EXHIBIT 1.1
▇▇▇▇▇ MEDIA CORP.
$260,000,000
7 1/4% Senior Subordinated Notes due 2013
AMENDED AND RESTATED
PURCHASE AGREEMENT
Dated as of December 17, 2002
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
WACHOVIA SECURITIES, INC.
SUNTRUST CAPITAL MARKETS, INC.
BNP PARIBAS SECURITIES CORP.
c/o ▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
▇▇▇▇▇ Media Corp., a Delaware corporation (the "Company"),
proposes to issue and sell $260,000,000 aggregate principal amount of its 7 1/4%
Senior Subordinated Notes due 2013 (the "Securities"). The Securities will be
issued pursuant to an Indenture to be dated as of December 23, 2002 (the
"Indenture") between the Company, certain subsidiaries of the Company, as
Guarantors (the "Guarantors") and Wachovia Bank of Delaware, National
Association, as trustee (the "Trustee"). The Company hereby confirms its
agreement with ▇.▇. ▇▇▇▇▇▇ Securities Inc. ("JPMorgan"), Wachovia Securities,
Inc., SunTrust Capital Markets, Inc. and BNP Paribas Securities Corp.
(collectively, the "Initial Purchasers"), concerning the purchase of the
Securities from the Company by the several Initial Purchasers. Payment of the
principal, interest and premium, if any, on the Securities shall be guaranteed
on a senior subordinated basis by each of the Guarantors as provided and to the
extent set forth in the Indenture (the "Guarantees"). All references herein to
the Securities include the Guarantees. The Company and the Guarantors are
collectively referred to herein as the "Issuers."
The Securities will be offered and sold to the Initial
Purchasers without being registered under the Securities Act of 1933, as amended
(the "Securities Act"), in reliance upon an exemption therefrom. The Company has
prepared a preliminary offering memorandum dated December 12, 2002 (the
"Preliminary Offering Memorandum") and will prepare an offering memorandum dated
the date hereof (the "Offering Memorandum") setting forth information concerning
the Company and the Securities. Copies of the Preliminary Offering Memorandum
have been, and copies of the Offering Memorandum will be, delivered by the
Company to the Initial Purchasers pursuant to the terms of this Agreement. Any
references herein to the Preliminary Offering Memorandum and the Offering
Memorandum shall be deemed to include all amendments and supplements thereto,
unless otherwise noted. The
Company hereby confirms that it has authorized the use of the Preliminary
Offering Memorandum and the Offering Memorandum in connection with the offering
and resale of the Securities by the Initial Purchasers in accordance with
Section 2.
Holders of the Securities (including the Initial Purchasers
and their direct and indirect transferees) will be entitled to the benefits of a
Registration Rights Agreement, substantially in the form attached hereto as
Annex A (the "Registration Rights Agreement"), pursuant to which the Company
will agree to file with the Securities and Exchange Commission (the
"Commission") (i) a registration statement under the Securities Act (the
"Exchange Offer Registration Statement") registering an issue of senior
subordinated notes of the Company (the "Exchange Securities"), which are
identical in all material respects to the Securities (except that the Exchange
Securities will not contain terms with respect to transfer restrictions or
additional interest) and (ii) under certain circumstances, a shelf registration
statement pursuant to Rule 415 under the Securities Act (the "Shelf Registration
Statement").
On the Closing Date, the Company shall give State Street Bank
and Trust Company (the "9-5/8% Notes Trustee"), as trustee under the Indenture
dated as of November 15, 1996 by and among the Company, the guarantors named
therein State Street Bank and Trust Company, as trustee, irrevocable
instructions (the "Irrevocable Instructions") to redeem the 9-5/8% Senior
Subordinated Notes due 2006 (the "9-5/8% Notes") issued by the Company not later
than 45 days after the Closing Date and the Company shall deposit with the
9-5/8% Notes Trustee, solely for the benefit of the holders of the 9-5/8% Notes,
the net proceeds received by the Company from the issuance and sale of the
Securities, together with available cash, sufficient to pay the redemption price
of the 9-5/8% Notes plus accrued and unpaid interest to the date of redemption.
Capitalized terms used but not defined herein shall have the
meanings given to such terms in the Offering Memorandum.
1. Representations, Warranties and Agreements of the Issuers.
Each of the Issuers represents and warrants to, and agrees with, the several
Initial Purchasers on and as of the date hereof and the Closing Date (as defined
in Section 3) that:
(a) Each of the Preliminary Offering Memorandum and the
Offering Memorandum, as of its respective date, did not, and on the
Closing Date the Offering Memorandum will not, contain any untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; provided, however, that the Company makes no
representation or warranty as to information contained in or omitted
from the Preliminary Offering Memorandum or the Offering Memorandum in
reliance upon and in conformity with the Initial Purchasers'
Information (as defined in Section 9).
(b) Each of the Preliminary Offering Memorandum and the
Offering Memorandum, as of its respective date, contains all of the
information that, if requested by a prospective purchaser of the
Securities, would be required to be provided to such prospective
purchaser pursuant to Rule 144A(d)(4) under the Securities Act.
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(c) Assuming the accuracy of the representations and
warranties of the Initial Purchasers contained in Section 2 and their
compliance with the agreements set forth therein, it is not necessary,
in connection with the issuance and sale of the Securities to the
Initial Purchasers and the offer, resale and delivery of the Securities
by the Initial Purchasers in the manner contemplated by this Agreement
and the Offering Memorandum, to register the Securities under the
Securities Act or to qualify the Indenture under the Trust Indenture
Act of 1939, as amended (the "Trust Indenture Act").
(d) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware
with full corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Offering
Memorandum, and is duly registered or qualified to conduct its business
and is in good standing in each jurisdiction or place where the nature
of its properties or the conduct of its business requires such
registration or qualification, except where the failure so to register
or qualify or be in good standing does not, individually or in the
aggregate, have a material adverse effect on the condition (financial
or other), business, properties, net worth or results of operations of
the Company and the Subsidiaries (as hereinafter defined), taken as a
whole (a "Material Adverse Effect").
(e) Each of the Company's consolidated subsidiaries
(collectively, the "Subsidiaries") is listed in Exhibit A hereto. Each
Subsidiary, other than Missouri Logos, a Partnership, is a Guarantor
and has guaranteed the Securities pursuant to its Guarantee. Each
Subsidiary is a corporation, limited liability company or partnership
duly organized, validly existing and in good standing in the
jurisdiction of its organization, with full corporate, limited
liability company or partnership power and authority, as the case may
be, to own, lease and operate its properties and to conduct its
business as described in the Offering Memorandum, and is duly
registered or qualified to conduct its business and is in good standing
in each jurisdiction or place where the nature of its properties or the
conduct of its business requires such registration or qualification,
except where the failure so to register or qualify does not have a
material adverse effect on the condition (financial or other),
business, properties, net worth or results of operations of such
Subsidiary; all the outstanding shares of capital stock or other equity
interest of each of the Subsidiaries have been duly authorized and
validly issued, are fully paid and nonassessable, and, except as set
forth in the Offering Memorandum, are owned by the Company directly, or
indirectly through one of the other Subsidiaries free and clear of any
lien, adverse claim, security interest, equity or other encumbrance
except for any such lien, adverse claim, security interest, equity or
other encumbrance that would not reasonably be expected, individually
or in the aggregate, to materially impair the value of such shares or
other equity interests and, except for the liens under the Credit
Agreement, dated as of August 13, 1999, as amended to the date hereof
(the "Senior Credit Facility"), among the Company, the guarantor
parties thereto, the several lenders from time to time parties thereto
and JPMorgan Chase Bank (formerly The Chase Manhattan Bank), as
administrative agent, as described in the Offering Memorandum.
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(f) The Company has an authorized capitalization as set forth
in the Offering Memorandum under the heading "Capitalization" and all
of the outstanding shares of capital stock of the Company have been
duly and validly authorized and issued and are fully paid and
non-assessable.
(g) Each of the Issuers has full right, power and authority to
execute and deliver this Agreement, the Indenture, the Registration
Rights Agreement, the Securities, the Guarantees and the Exchange
Securities (including the related guarantees) (collectively, the
"Transaction Documents"), to the extent each is a party thereto and to
perform its obligations hereunder and thereunder, to the extent each is
a party thereto; and all corporate, limited liability company or
partnership action, as the case may be, required to be taken for the
due and proper authorization, execution and delivery of each of the
Transaction Documents and the consummation of the transactions
contemplated hereby and thereby have been duly and validly taken.
(h) This Agreement has been duly authorized, executed and
delivered by each of the Issuers and constitutes a valid and legally
binding agreement of each of the Issuers.
(i) The Registration Rights Agreement has been duly authorized
by each of the Issuers and, when duly executed and delivered in
accordance with its terms by each of the parties thereto, will
constitute a valid and legally binding agreement of each of the Issuers
enforceable against each of the Issuers in accordance with its terms,
except to the extent that (i) such enforceability may be limited by
applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws affecting creditors'
rights generally and by general equitable principles (whether
considered in a proceeding in equity or at law) and (ii) the
enforceability of rights to indemnification and contribution thereunder
may be limited by federal and state securities laws or regulations or
the public policy underlying such laws or regulations.
(j) The Indenture has been duly authorized by each of the
Issuers and, when duly executed and delivered in accordance with its
terms by each of the parties thereto, will constitute a valid and
legally binding agreement of each of the Issuers enforceable against
each of the Issuers in accordance with its terms, except to the extent
that such enforceability may be limited by applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other
similar laws affecting creditors' rights generally and by general
equitable principles (whether considered in a proceeding in equity or
at law). On the Closing Date, the Indenture will conform in all
material respects to the requirements of the Trust Indenture Act and
the rules and regulations of the Commission applicable to an indenture
that is qualified thereunder.
(k) The Securities have been duly authorized by the Company
and, when duly executed, authenticated, issued and delivered as
provided in the Indenture and paid for as provided herein, will be duly
and validly issued and outstanding and will constitute valid and
legally binding obligations of the Company entitled to the benefits of
the Indenture and enforceable against the Company in accordance with
their terms, except to the extent that such enforceability may be
limited by applicable bankruptcy,
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insolvency, fraudulent conveyance, reorganization, moratorium and other
similar laws affecting creditors' rights generally and by general
equitable principles (whether considered in a proceeding in equity or
at law).
(l) The Guarantees have been duly authorized by each of the
Guarantors and, when the Securities are duly executed, authenticated,
issued and delivered as provided in the Indenture and paid for as
provided herein, the Securities will be entitled to the benefits of the
Guarantees and the Guarantees will be duly and validly issued and
outstanding and will constitute valid and legally binding obligations
of the Guarantors enforceable against each of the Guarantors in
accordance with their terms, except to the extent that such
enforceability may be limited by applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar
laws affecting creditors, rights generally and by general equitable
principles (whether considered in a proceeding in equity or at law).
(m) The Exchange Securities have been duly authorized by the
Company and, when duly executed, authenticated, issued and delivered as
provided in the Registration Rights Agreement, will be duly and validly
issued and outstanding and will constitute valid and legally binding
obligations of the Company entitled to the benefits of the Indenture
and enforceable against the Company in accordance with their terms,
except to the extent that such enforceability may be limited by
applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws affecting creditors'
rights generally and by general equitable principles (whether
considered in a proceeding in equity or at law).
(n) The guarantees of the Exchange Securities have been duly
authorized by each of the Guarantors and, when such guarantees are duly
executed, authenticated, issued and delivered as provided in the
Registration Rights Agreement, the Exchange Securities will be entitled
to the benefits of such guarantees and such guarantees will be duly and
validly issued and outstanding and will constitute valid and legally
binding obligations of the Guarantors and enforceable against each of
the Guarantors in accordance with their terms, except to the extent
that such enforceability may be limited by applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other
similar laws affecting creditors, rights generally and by general
equitable principles (whether considered in a proceeding in equity or
at law).
(o) Each Transaction Document conforms in all material
respects to the description thereof contained in the Offering
Memorandum.
(p) None of the issuance or sale of the Securities, the
execution, delivery or performance of the Transaction Documents by the
Issuers or the consummation by the Issuers of the transactions
contemplated thereby (i) requires any consent, approval, authorization
or other order of or registration or filing with, any court, regulatory
body, administrative agency or other governmental body, agency or
official (except such as may be required under the Securities Act and
applicable state securities laws as provided in the Registration Rights
Agreement and assuming the accuracy of the Initial Purchasers'
representations set forth in Section 4 of this Agreement,
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including the resale of the Securities in conformity with such
representations and warranties) or conflicts or will conflict with or
constitutes or will constitute a breach of, or a default under, the
certificate or articles of incorporation or bylaws, the certificate of
formation or operating agreement, or the partnership agreement, or
other organizational documents, of the Company or any of the
Subsidiaries or (ii) conflicts or will conflict with or constitutes or
will constitute a breach of, or a default under, any agreement,
indenture, lease or other instrument to which the Company or any of the
Subsidiaries is a party or by which any of them or any of their
respective properties may be bound, or violates or will violate any
statute, law, regulation or filing or judgment, injunction, order or
decree applicable to the Company or any of the Subsidiaries or any of
their respective properties, or will result in the creation or
imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any of the Subsidiaries pursuant to the terms
of any agreement or instrument to which any of them is a party or by
which any of them may be bound or to which any of the property or
assets of any of them is subject.
(q) KPMG LLP, who have certified certain of the financial
statements of the Company included in the Offering Memorandum (and any
amendment or supplement thereto) are independent public accountants
with regard to the Company.
(r) The historical financial statements, together with related
schedules and notes, included in the Offering Memorandum (and any
amendment or supplement thereto) comply as to form in all material
respects with the requirements applicable to a registration statement
on Form S-3 under the Securities Act; such historical financial
statements, together with related schedules and notes, present fairly
the consolidated financial position, results of operations, cash flows
and changes in financial position of the entities to which they relate
on the basis stated in the Offering Memorandum at the respective dates
or for the respective periods to which they apply; such statements and
related schedules and notes have been prepared in accordance with
generally accepted accounting principles consistently applied
throughout the periods involved, except as disclosed therein; and the
other financial and statistical information and data included in the
Offering Memorandum (and any amendment or supplement thereto) are
accurately presented in all material respects and prepared on a basis
consistent in all material respects with such financial statements and
the books and records of the entities to which they relate.
(s) There are no legal or governmental proceedings pending or,
to the knowledge of the Issuers, threatened, against the Company or any
of the Subsidiaries, or to which the Company or any of the Subsidiaries
is a party, or to which any of their respective properties is subject,
that are required to be described in the Offering Memorandum but are
not so described as required; and all pending legal or governmental
proceedings to which the Company or any of the Subsidiaries is a party
or that affect any of their respective properties including ordinary
routine litigation incidental to the business, that are not described
in the Offering Memorandum and as to which an adverse determination is
not remote, would not, if determined adversely to the Company or any of
the Subsidiaries, individually or in the aggregate, result in a
Material Adverse Effect.
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(t) No action has been taken and no statute, rule, regulation
or order has been enacted, adopted or issued by any governmental agency
or body that prevents the issuance or sale of the Securities or the
Guarantees or suspends the issuance or sale of the Securities or the
Guarantees in any jurisdiction; no injunction, restraining order or
order of any nature by any federal or state court of competent
jurisdiction has been issued with respect to the Company or any of the
Subsidiaries that would prevent or suspend the issuance or sale of the
Securities or the Guarantees or the use of the Preliminary Offering
Memorandum or the Offering Memorandum in any jurisdiction; no action,
suit or proceeding is pending against or, to the knowledge of the
Issuers, threatened against or affecting the Company or any of the
Subsidiaries before any court or arbitrator or any governmental agency,
body or official, domestic or foreign, which could reasonably be
expected to interfere with or adversely affect the issuance or sale of
the Securities or the Guarantees or in any manner draw into question
the validity or enforceability of any of the Transaction Documents or
any action taken or to be taken pursuant thereto; and each of the
Issuers has complied with any and all requests by any securities
authority in any jurisdiction for additional information to be included
in the Preliminary Offering Memorandum and the Offering Memorandum.
(u) Neither the Company nor any of the Subsidiaries is in
violation (i) of its certificate or articles of incorporation or
bylaws, certificate of formation or operating agreement, or partnership
agreement, or other organizational documents, or (ii) of any law,
ordinance, administrative or governmental rule or regulation applicable
to the Company or any of the Subsidiaries, including, without
limitation, (x) any foreign, Federal, state or local law or regulation
relating to the protection of human health and safety, the environment
or hazardous or toxic substances or wastes, pollutants or contaminants
("Environmental Laws"), (y) any Federal or state law relating to
discrimination in the hiring, promotion or pay of employees or any
applicable federal or state wages and hours laws, or (z) any provisions
of the Employee Retirement Income Security Act or the rules and
regulations promulgated thereunder (collectively, "ERISA"), or of any
decree of any court or governmental agency or body having jurisdiction
over the Company or any of the Subsidiaries except for, in the case of
the foregoing clause (ii), such violations that would not, individually
or in the aggregate, reasonably be expected to have a Material Adverse
Effect.
(v) Neither the Company nor any of the Subsidiaries is in
default in the performance of any obligation, agreement or condition
contained in any bond, debenture, note or any other evidence of
indebtedness or in any other agreement, indenture, lease or other
instrument to which the Company or any of the Subsidiaries is a party
or by which any of them or any of their respective properties may be
bound, except for such defaults which would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.
(w) The Company and each of the Subsidiaries has such permits,
licenses, franchises and authorizations including, without limitation,
under any applicable Environmental Laws, of governmental or regulatory
authorities ("permits") as are necessary to own its respective
properties and to conduct its business in the manner described in the
Offering Memorandum, subject to such qualifications as may be set
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forth in the Offering Memorandum and with such exceptions as would not,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect; the Company and each of the Subsidiaries has
fulfilled and performed all its material obligations with respect to
such permits and no event has occurred which allows, or after notice or
lapse of time or both would allow, revocation or termination thereof or
result in any other material impairment of the rights of the holder of
any such permit, subject in each case to such qualification as may be
set forth in the Offering Memorandum; and, except as described in the
Offering Memorandum, none of such permits contains any restriction that
is materially burdensome to the Company or any of the Subsidiaries.
(x) The Company and each of the Subsidiaries have filed all
tax returns required to be filed, which returns are complete and
correct in all material respects, and neither the Company nor any
Subsidiary is in default in the payment of any taxes which were payable
pursuant to said returns or any assessments with respect thereto,
except for such failures to file or defaults in payment of a character
which would not reasonably be expected to have a Material Adverse
Effect.
(y) The Issuers are not now, and after sale of the Securities
to be sold hereunder and application of the net proceeds from such sale
as described in the Offering Memorandum under the caption "Use of
proceeds" none of them will be, an "investment company" within the
meaning of the Investment Company Act of 1940, as amended.
(z) The Company maintains a system of internal accounting
controls sufficient to provide reasonable assurances that (i)
transactions are executed in accordance with management's general or
specific authorization, (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain accountability for
assets, (iii) access to assets is permitted only in accordance with
management's general or specific authorization and (iv) the recorded
accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to
any differences.
(aa) Except as described in the Offering Memorandum, the
Company and each of the Subsidiaries maintain insurance of the types
and in the amounts that are reasonable for the businesses operated by
them, including, but not limited to, insurance covering real and
personal property owned or leased by the Company and the Subsidiaries
against theft, damage, destruction, acts of vandalism and liability,
all of which insurance is in full force and effect.
(bb) The Company and the Subsidiaries own or possess all
patents, trademarks, trademark registrations, service marks, service
mark registrations, trade names, copyrights, licenses, inventions,
trade secrets and rights described in the Offering Memorandum as being
owned by them or any of them or necessary for the conduct of their
respective businesses and none of the Issuers is aware of any claim to
the contrary or any challenge by any other person to the rights of the
Company and the Subsidiaries with respect to the foregoing.
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(cc) Each of the Company and the Subsidiaries has good and
marketable title to all property (real and personal) described in the
Offering Memorandum as being owned by it, free and clear of all liens,
claims, security interests or other encumbrances except such as are
described in the Offering Memorandum or which would not, individually
or in the aggregate, reasonably be expected to have a Material Adverse
Effect or materially impair the value of such property to the Company
or such Subsidiary, as the case may be, and all the property described
in the Offering Memorandum as being held under lease or sublease by
each of the Company and the Subsidiaries is held by it under valid,
subsisting and enforceable leases or subleases with such exceptions as
would not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect or materially impair the value of such
leasehold estate to the Company or such Subsidiary, as the case may be,
and such leases and subleases are in full force and effect; neither the
Company nor any of the Subsidiaries has any notice of any claim of any
sort that has been asserted by anyone adverse to the rights of the
Company or any of the Subsidiaries under any of the leases or subleases
mentioned above, or affecting or questioning the rights of the Company
or any of the Subsidiaries to the continued possession of the leased or
subleased premises under any such lease or sublease, which claim could,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
(dd) No labor problem exists with the employees of the Company
or any of the Subsidiaries or, to the knowledge of any of the Issuers,
is imminent that, in either case, could, individually or in the
aggregate, reasonably be expected to result in any Material Adverse
Effect.
(ee) No "prohibited transaction" (as defined in ERISA or
Section 4975 of the Internal Revenue Code of 1986, as amended from time
to time (the "Code")) or "accumulated funding deficiency" (as defined
in Section 302 of ERISA) or any of the events set forth in Section
4043(b) of ERISA (other than events with respect to which the 30-day
notice requirement under Section 4043 of ERISA has been waived) has
occurred with respect to any employee benefit plan of the Company or
any of the Subsidiaries which could reasonably be expected to have a
Material Adverse Effect; each such employee benefit plan is in
compliance in all material respects with applicable law, including
ERISA and the Code; the Company and each of the Subsidiaries have not
incurred and do not expect to incur liability under Title IV of ERISA
with respect to the termination of, or withdrawal from, any pension
plan for which the Company or any of the Subsidiaries would have any
liability; and each such pension plan that is intended to be qualified
under Section 401(a) of the Code is so qualified in all material
respects and nothing has occurred, whether by action or by failure to
act, which could reasonably be expected to cause the loss of such
qualification.
(ff) Neither the Company nor any of the Subsidiaries nor, to
the knowledge of any of the Issuers, any director, officer, agent,
employee or other person associated with or acting on behalf of the
Company or any of the Subsidiaries has (i) used any corporate funds for
any unlawful contribution, gift, entertainment or other unlawful
expense relating to political activity, (ii) made any direct or
indirect unlawful payment to any foreign or domestic government
official or employee from corporate funds, (iii) violated or is in
violation of any provision of the Foreign Corrupt Practices
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Act of 1977 or (iv) made any bribe, rebate, payoff, influence payment,
kickback or other unlawful payment.
(gg) None of the Issuers is, nor will any of them be, after
giving effect to the issuance of the Securities and the Guarantees and
the execution, delivery and performance of this Agreement, the
Indenture and the Registration Rights Agreement and the consummation of
the transactions contemplated hereby and thereby, (i) insolvent, (ii)
left with unreasonably small capital with which to engage in its
anticipated businesses or (iii) incurring debts beyond its ability to
pay such debts as they mature.
(hh) Neither the issuance, sale and delivery of the Securities
nor the application of the proceeds thereof by the Company as described
in the Offering Memorandum will violate Regulation T, U or X of the
Board of Governors of the Federal Reserve System (the "Federal Reserve
Board").
(ii) Neither the Company nor any of the Subsidiaries is a
party to any contract, agreement or understanding with any person that
would give rise to a valid claim against the Company or the Initial
Purchasers for a brokerage commission, finder's fee or like payment in
connection with the offering and sale of the Securities.
(jj) The Securities satisfy the eligibility requirements of
Rule 144A(d)(3) under the Securities Act.
(kk) The Company has not distributed and, prior to the later
to occur of (i) the Closing Date and (ii) completion of the
distribution of the Securities, will not distribute any offering
material in connection with the offering and sale of the Securities
other than the Preliminary Offering Memorandum and the Offering
Memorandum.
(ll) Neither the Company nor any of its affiliates has,
directly or through any agent, sold, offered for sale, solicited offers
to buy or otherwise negotiated in respect of, any security (as such
term is defined in the Securities Act), which is or will be integrated
with the sale of the Securities in a manner that would require
registration of the Securities under the Securities Act.
(mm) None of the Company or any of its affiliates or any other
person acting on its or their behalf has (i) engaged, in connection
with the offering of the Securities, in any form of general
solicitation or general advertising within the meaning of Rule 502(c)
under the Securities Act or (ii) engaged in any directed selling
efforts within the meaning of Regulation S under the Securities Act
("Regulation S"), and all such persons have complied with the offering
restrictions requirement of Regulation S.
(nn) The Issuers have not taken, directly or indirectly, any
action designed to or that might reasonably be expected to cause or
result in stabilization or manipulation of the price of the Securities
to facilitate the sale or resale of the Securities.
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(oo) No forward-looking statement (within the meaning of
Section 27A of the Securities Act and Section 21E of the Securities
Exchange Act of 1934, as amended (the "Exchange Act")) contained in the
Preliminary Offering Memorandum or the Offering Memorandum has been
made or reaffirmed without a reasonable basis or has been disclosed
other than in good faith.
(pp) The Company has complied with all provisions of Florida
Statutes, Section 517.075, relating to issuers doing business with
Cuba.
(qq) Except as disclosed in the Offering Memorandum,
subsequent to the respective dates as of which such information is
given in the Offering Memorandum, neither the Company nor any of the
Subsidiaries has incurred any liability or obligation, direct or
contingent, or entered into any transaction, not in the ordinary course
of business, that is material to the Company and the Subsidiaries,
taken as a whole, and there has not been any change in the capital
stock, or material increase in the short-term debt or long-term debt,
of the Company or any of the Subsidiaries, or any material adverse
change, or any development involving, or which may reasonably be
expected to involve, a prospective material adverse change, in the
condition (financial or other), business, properties, net worth or
results of operations of the Company and the Subsidiaries, taken as a
whole.
(rr) Nothing has come to the attention of the Company that has
caused the Company to believe that the statistical and market-related
data included in the Preliminary Offering Memorandum and the Offering
Memorandum is not based on or derived from sources that are reliable
and accurate in all material respects.
2. Purchase and Resale of the Securities. (a) On the basis of
the representations, warranties and agreements contained herein, and subject to
the terms and conditions set forth herein, the Company agrees to issue and sell
to each of the Initial Purchasers, severally and not jointly, and each of the
Initial Purchasers, severally and not jointly, agrees to purchase from the
Company, the principal amount of Securities set forth opposite the name of such
Initial Purchaser on Schedule 1 hereto at a purchase price equal to 98.60% of
the principal amount thereof. The Company shall not be obligated to deliver any
of the Securities except upon payment for all of the Securities to be purchased
as provided herein.
(b) The Company understands that the Initial Purchasers intend
to offer the Securities for resale on the terms set forth in the Offering
Memorandum. Each Initial Purchaser, severally and not jointly, represents,
warrants and agrees that: (i) it is a qualified institutional buyer within the
meaning of Rule 144A under the Securities Act (a "QIB") and an accredited
investor within the meaning of Rule 501(a) under the Securities Act; (ii) it has
not solicited offers for, or offered or sold, and will not solicit offers for,
or offer or sell, the Securities by means of any form of general solicitation or
general advertising within the meaning of Rule 502(c) of Regulation D under the
Securities Act ("Regulation D") or in any manner involving a public offering
within the meaning of Section 4(2) of the Securities Act; and (iii) it has not
solicited offers for, or offered or sold, and will not solicit offers for, or
offer or sell, the Securities as part of their initial offering except: (A)
within the United States to persons whom it reasonably believes to be QIBs in
transactions pursuant to Rule 144A under the Securities
-11-
Act ("Rule 144A") and in connection with each such sale, it has taken or will
take reasonable steps to ensure that the purchaser of the Securities is aware
that such sale is being made in reliance on Rule 144A; or (B) in accordance with
the restrictions set forth in Annex B hereto. Each Initial Purchaser, severally
and not jointly, agrees that, prior to or simultaneously with the confirmation
of sale by such Initial Purchaser to any purchaser of any of the Securities
purchased by such Initial Purchaser from the Company pursuant hereto, such
Initial Purchaser shall furnish to that purchaser a copy of the Offering
Memorandum (and any amendment or supplement thereto that the Company shall have
furnished to such Initial Purchaser prior to the date of such confirmation of
sale). Each Initial Purchaser acknowledges and agrees that the Company and, for
purposes of the opinions to be delivered to the Initial Purchasers pursuant to
Sections 5(d), (e), (f) and (g), counsel for the Company and counsel for the
Initial Purchasers, respectively, may rely upon the accuracy of the
representations and warranties of the Initial Purchasers, and compliance by the
Initial Purchasers with their agreements, contained in this Section 2(b) above
(including Annex B hereto), and each Initial Purchaser hereby consents to such
reliance.
(c) The Company acknowledges and agrees that the Initial
Purchasers may sell Securities to any affiliate of an Initial Purchaser and that
any such affiliate may sell Securities purchased by it to an Initial Purchaser.
3. Delivery of and Payment for the Securities. (a) Delivery of
and payment for the Securities shall be made at the offices of ▇▇▇▇▇▇ ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, or at such other place as shall be
agreed upon by the Initial Purchasers and the Company, at 10:00 A.M., New York
City time, on December 23, 2002, or at such other time or date, not later than
seven full business days thereafter, as shall be agreed upon by the Initial
Purchasers and the Company (such date and time of payment and delivery being
referred to herein as the "Closing Date").
(b) On the Closing Date, payment of the purchase price for the
Securities shall be made to the Company by wire or book-entry transfer of
same-day funds to such account or accounts as the Company shall specify prior to
the Closing Date or by such other means as the parties hereto shall agree prior
to the Closing Date against delivery to the Initial Purchasers of the
certificates evidencing the Securities. Time shall be of the essence, and
delivery at the time and place specified pursuant to this Agreement is a further
condition of the obligations of the Initial Purchasers hereunder. Upon delivery,
the Securities shall be in global form, registered in such names and in such
denominations as JPMorgan on behalf of the Initial Purchasers shall have
requested in writing not less than two full business days prior to the Closing
Date. The Company agrees to make one or more global certificates evidencing the
Securities available for inspection by JPMorgan on behalf of the Initial
Purchasers in New York, New York at least 24 hours prior to the Closing Date.
4. Further Agreements of the Issuers. Each of the Issuers
jointly and severally agrees with each of the several Initial Purchasers:
(a) to advise the Initial Purchasers promptly and, if
requested, confirm such advice in writing, of the happening of any
event that makes any statement of a material fact made in the Offering
Memorandum untrue or which requires the making of any additions to or
changes in the Offering Memorandum (as amended or supplemented
-12-
from time to time) in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
to advise the Initial Purchasers promptly of any order preventing or
suspending the use of the Preliminary Offering Memorandum or the
Offering Memorandum, of any suspension of the qualification of the
Securities for offering or sale in any jurisdiction and of the
initiation or threatening of any proceeding for any such purpose; and
to use their best efforts to prevent the issuance of any such order
preventing or suspending the use of the Preliminary Offering Memorandum
or the Offering Memorandum or suspending any such qualification and, if
any such suspension is issued, to obtain the lifting thereof at the
earliest possible time;
(b) to furnish promptly to each of the Initial Purchasers and
counsel for the Initial Purchasers, without charge, as many copies of
the Preliminary Offering Memorandum and the Offering Memorandum (and
any amendments or supplements thereto) as may be reasonably requested;
(c) prior to making any amendment or supplement to the
Offering Memorandum, to furnish a copy thereof to each of the Initial
Purchasers and counsel for the Initial Purchasers and not to effect any
such amendment or supplement, to which the Initial Purchasers shall
reasonably object by notice to the Company after a reasonable period to
review unless the Company is advised in writing by counsel that such
amendment or supplement is legally required;
(d) if, at any time prior to completion of the resale of the
Securities by the Initial Purchasers, any event shall occur or
condition exist as a result of which it is necessary, in the opinion of
counsel for the Initial Purchasers or counsel for the Company, to amend
or supplement the Offering Memorandum in order that the Offering
Memorandum will not include an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances existing at the time it is
delivered to a purchaser, not misleading, or if it is necessary to
amend or supplement the Offering Memorandum to comply with applicable
law, subject to Section 4(c) hereof, to promptly prepare such amendment
or supplement as may be necessary to correct such untrue statement or
omission or so that the Offering Memorandum, as so amended or
supplemented, will comply with applicable law;
(e) for so long as the Securities are outstanding and are
"restricted securities" within the meaning of Rule 144(a)(3) under the
Securities Act, to furnish to holders of the Securities and prospective
purchasers of the Securities designated by such holders, upon request
of such holders or such prospective purchasers, the information
required to be delivered pursuant to Rule 144A(d)(4) under the
Securities Act, unless the Company is in compliance with Section 13 or
15(d) of the Exchange Act, as if it were then subject to Section 13 or
15(d) of the Exchange Act, (the foregoing agreement being for the
benefit of the holders from time to time of the Securities and
prospective purchasers of the Securities designated by such holders);
(f) for a period of two years following the Closing Date, to
furnish to the Initial Purchasers copies of any annual reports,
quarterly reports and current reports
-13-
filed by the Company with the Commission on Forms 10-K, 10-Q and 8-K,
or such other similar forms as may be designated by the Commission, and
such other documents, reports and information as shall be furnished by
the Issuers to the Trustee or to the holders of the Securities pursuant
to the Indenture or the Exchange Act or any rule or regulation of the
Commission thereunder;
(g) to promptly take from time to time such actions as the
Initial Purchasers may reasonably request to qualify the Securities for
offering and sale under the securities or Blue Sky laws of such
jurisdictions as the Initial Purchasers may designate and to continue
such qualifications in effect for so long as required for the resale of
the Securities; and to arrange for the determination of the eligibility
for investment of the Securities under the laws of such jurisdictions
as the Initial Purchasers may reasonably request; provided, however,
that the Company and the Subsidiaries shall not be obligated to qualify
as foreign corporations in any jurisdiction in which they are not so
qualified or to file a general consent to service of process in any
jurisdiction;
(h) to assist the Initial Purchasers in arranging for the
Securities to be designated Private Offerings, Resales and Trading
through Automated Linkages Market ("The Portal Market") securities in
accordance with the rules and regulations adopted by the National
Association of Securities Dealers, Inc. (the "NASD") relating to
trading in The Portal Market and for the Securities to be eligible for
clearance and settlement through The Depository Trust Company ("DTC");
(i) not to, and to cause its affiliates not to, sell, offer
for sale or solicit offers to buy or otherwise negotiate in respect of
any security (as such term is defined in the Securities Act) that could
be integrated with the sale of the Securities in a manner that would
require registration of the Securities under the Securities Act;
(j) except following the effectiveness of the Exchange Offer
Registration Statement or the Shelf Registration Statement, as the case
may be, not to, and to cause its affiliates not to, and not to
authorize or knowingly permit any person acting on their behalf to, (i)
solicit any offer to buy or offer to sell the Securities by means of
any form of general solicitation or general advertising within the
meaning of Regulation D or in any manner involving a public offering
within the meaning of Section 4(2) of the Securities Act; and not to
offer, sell, contract to sell or otherwise dispose of, directly or
indirectly, any securities under circumstances where such offer, sale,
contract or disposition would cause the exemption afforded by Section
4(2) of the Securities Act to cease to be applicable to the offering
and sale of the Securities as contemplated by this Agreement and the
Offering Memorandum or (ii) engage in any directed selling efforts
within the meaning of Regulation S, and all such persons will comply
with the offering restrictions requirement of Regulation S;
(k) for a period of 90 days from the date of the Offering
Memorandum, not to offer for sale, sell, contract to sell or otherwise
dispose of, directly or indirectly, or file a registration statement
for, or announce any offer, sale, contract for sale of or other
disposition of any debt securities substantially similar to the
Securities, or securities exchangeable for, or convertible into, debt
securities substantially similar to the Securities, issued or
guaranteed by the Company or any of the Subsidiaries (other
-14-
than the Securities, the Guarantees and the Exchange Securities and
related guarantees) without the prior written consent of JPMorgan on
behalf of the Initial Purchasers;
(l) during the period from the Closing Date until two years
after the Closing Date, without the prior written consent of JPMorgan
on behalf of the Initial Purchasers, not to, and not permit any of its
affiliates (as defined in Rule 144 under the Securities Act) to, resell
any of the Securities that have been reacquired by them, except for
Securities purchased by the Company or any of its affiliates and resold
in a transaction registered under the Securities Act;
(m) not to, for so long as the Securities are outstanding, be
or become, or be or become owned by, an open-end investment company,
unit investment trust or face-amount certificate company that is or is
required to be registered under Section 8 of the Investment Company
Act, and to not be or become, or be or become owned by, a closed-end
investment company required to be registered, but not registered
thereunder;
(n) in connection with the offering of the Securities, until
JPMorgan on behalf of the Initial Purchasers shall have notified the
Company of the completion of the resale of the Securities, not to, and
to cause its affiliated purchasers (as defined in Regulation M under
the Exchange Act) not to, either alone or with one or more other
persons, bid for or purchase, for any account in which it or any of its
affiliated purchasers has a beneficial interest, any Securities, or
attempt to induce any person to purchase any Securities; and not to,
and to cause its affiliated purchasers not to, make bids or purchase
for the purpose of creating actual, or apparent, active trading in or
of raising the price of the Securities;
(o) in connection with the offering of the Securities, to make
its officers, employees, independent accountants and legal counsel
reasonably available upon request by the Initial Purchasers;
(p) to furnish to each of the Initial Purchasers on the date
hereof a copy of the independent accountants' report included in the
Offering Memorandum signed by the accountants rendering such report;
(q) to do and perform all things required to be done and
performed by it under this Agreement that are within its control prior
to or after the Closing Date, and to use its best efforts to satisfy
all conditions precedent on its part to the delivery of the Securities;
(r) to not take any action prior to the execution and delivery
of the Indenture that, if taken after such execution and delivery,
would have violated any of the covenants contained in the Indenture;
(s) unless required by law, to not take any action prior to
the Closing Date that would require the Offering Memorandum to be
amended or supplemented pursuant to Section 4(d);
-15-
(t) prior to the Closing Date, not to issue any press release
or other communication directly or indirectly or hold any press
conference with respect to the Company, its condition, financial or
otherwise, or earnings, business affairs or business prospects (except
for routine oral marketing communications in the ordinary course of
business and consistent with the past practices of the Company and of
which the Initial Purchasers are notified), without the prior written
consent of JPMorgan on behalf of the Initial Purchasers, unless in the
judgment of the Company and its counsel, and after notification to the
Initial Purchasers, such press release or communication is required by
law; and
(u) to apply the net proceeds from the sale of the Securities
as set forth in the Offering Memorandum under the heading "Use of
proceeds."
5. Conditions of Initial Purchasers' Obligations. The
respective obligations of the several Initial Purchasers hereunder are subject
to the accuracy, on and as of the date hereof and the Closing Date, of the
representations and warranties of the Issuers contained herein, to the accuracy
of the statements of the Issuers and their officers made in any certificates
delivered pursuant hereto, to the performance by the Issuers of their
obligations hereunder, and to each of the following additional terms and
conditions:
(a) The Offering Memorandum (and any amendments or supplements
thereto) shall have been printed and copies distributed to the Initial
Purchasers as promptly as practicable on or following the date of this
Agreement or at such other date and time as to which the Initial
Purchasers may agree; and no stop order suspending the sale of the
Securities in any jurisdiction shall have been issued and no proceeding
for that purpose shall have been commenced or shall be pending or
threatened.
(b) None of the Initial Purchasers shall have discovered and
disclosed to the Company on or prior to the Closing Date that the
Offering Memorandum or any amendment or supplement thereto contains an
untrue statement of a fact that, in the opinion of counsel for the
Initial Purchasers, is material or omits to state any fact which, in
the opinion of such counsel, is material and is required to be stated
therein or is necessary to make the statements therein not misleading.
(c) All corporate proceedings and other legal matters incident
to the authorization, form and validity of each of the Transaction
Documents and the Offering Memorandum, and all other legal matters
relating to the Transaction Documents and the transactions contemplated
thereby, shall be satisfactory in all material respects to the Initial
Purchasers, and the Issuers shall have furnished to the Initial
Purchasers all documents and information that they or their counsel may
reasonably request to enable them to pass upon such matters.
(d) ▇▇▇▇▇▇ & Dodge LLP shall have furnished to the Initial
Purchasers their written opinion, as counsel to the Company, addressed
to the Initial Purchasers and dated the Closing Date, in form and
substance reasonably satisfactory to the Initial Purchasers,
substantially to the effect set forth in Annex C hereto.
-16-
(e) ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇'▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇,
L.L.P. shall have furnished to the Initial Purchasers their written
opinion, as counsel to the Company, addressed to the Initial Purchasers
and dated the Closing Date, in form and substance reasonably
satisfactory to the Initial Purchasers, substantially to the effect set
forth in Annex D hereto.
(f) ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq. shall have furnished to the
Initial Purchasers his written opinion, as general counsel to the
Company, addressed to the Initial Purchasers and dated the Closing
Date, in form and substance reasonably satisfactory to the Initial
Purchasers, substantially to the effect set forth in Annex E hereto.
(g) The Initial Purchasers shall have received from ▇▇▇▇▇▇
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Initial Purchasers, such opinion or
opinions, dated the Closing Date, with respect to such matters as the
Initial Purchasers may reasonably require, and the Issuers shall have
furnished to such counsel such documents and information as they
request for the purpose of enabling them to pass upon such matters.
(h) The Company shall have furnished to the Initial Purchasers
a letter (the "Initial Letter") from KPMG LLP, addressed to the Initial
Purchasers and dated the date hereof, in form and substance
satisfactory to the Initial Purchasers; provided, however, that the
Initial Purchasers shall have provided to KPMG LLP the representations
required by SAS 72.
(i) The Company shall have furnished to the Initial Purchasers
a letter (the "Bring-Down Letter") from KPMG LLP, addressed to the
Initial Purchasers and dated the Closing Date (i) confirming that they
are independent public accountants with respect to the entities
referenced in such letter within the meaning of Rule 101 of the Code of
Professional Conduct of the AICPA and its interpretations and rulings
thereunder, (ii) stating, as of the date of the Bring-Down Letter (or,
with respect to matters involving changes or developments since the
respective dates as of which specified financial information is given
in the Offering Memorandum, as of a date not more than three business
days prior to the date of the Bring-Down Letter), that the conclusions
and findings of such accountants with respect to the financial
information and other matters covered by the Initial Letter are
accurate and (iii) confirming in all material respects the conclusions
and findings set forth in the Initial Letter.
(j) The Company shall have furnished to the Initial Purchasers
a certificate, dated the Closing Date, of its chief executive officer
and its chief financial officer stating that (i) such officers have
carefully examined the Offering Memorandum, (ii) in their opinion, the
Offering Memorandum, as of its date, did not include any untrue
statement of a material fact and did not omit to state a material fact
required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, and since the date of the Offering
Memorandum, no event has occurred that should have been set forth in a
supplement or amendment to the Offering Memorandum so that the Offering
Memorandum (as so amended or supplemented) would not include any untrue
statement of a material fact and would not omit to state a material
fact required to be stated therein or necessary in order to make the
statements therein, in the light of the
-17-
circumstances under which they were made, not misleading and (iii) as
of the Closing Date, the representations and warranties of the Issuers
in this Agreement are true and correct in all material respects, each
of the Issuers has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied hereunder on or
prior to the Closing Date, and subsequent to the date of the most
recent financial statements contained in the Offering Memorandum, there
has been no material adverse change in the financial position or
results of operation of the Company or any of the Subsidiaries, taken
as a whole, or any change, or any development including a prospective
change, in or affecting the condition (financial or otherwise), results
of operations, business or prospects of the Company and the
Subsidiaries taken as a whole, except as set forth in the Offering
Memorandum.
(k) The Initial Purchasers shall have received a counterpart
of the Registration Rights Agreement, which shall have been executed
and delivered by a duly authorized officer of each of the Issuers.
(l) The Indenture shall have been duly executed and delivered
by each of the Issuers and the Trustee, the Securities shall have been
duly executed and delivered by the Company and duly authenticated by
the Trustee and the Guarantees shall have been duly executed and
delivered by each of the Guarantors.
(m) The Securities shall have been approved by the NASD for
trading in The Portal Market.
(n) If any event shall have occurred that requires the Issuers
under Section 4(d) to prepare an amendment or supplement to the
Offering Memorandum, such amendment or supplement shall have been
prepared, the Initial Purchasers shall have been given a reasonable
opportunity to comment thereon (unless such opportunity is not required
by Section 4(c)), and copies thereof shall have been delivered to the
Initial Purchasers reasonably in advance of the Closing Date.
(o) There shall not have occurred any invalidation of Rule
144A under the Securities Act by any court or any withdrawal or
proposed withdrawal of any rule or regulation under the Securities Act
or the Exchange Act by the Commission or any amendment or proposed
amendment thereof by the Commission which in the judgment of the
Initial Purchasers would materially impair the ability of the Initial
Purchasers to purchase, hold or effect resales of the Securities as
contemplated hereby.
(p) Subsequent to the execution and delivery of this Agreement
or, if earlier, the dates as of which information is given in the
Offering Memorandum (exclusive of any amendment or supplement thereto),
there shall not have been any decrease in the capital stock or increase
in the long-term debt or any change, or any development involving a
prospective change, in or affecting the condition (financial or
otherwise), results of operations, business or prospects of the Company
and the Subsidiaries taken as a whole, the effect of which, in any such
case described above, is, in the reasonable judgment of the Initial
Purchasers, so material and adverse as to make it impracticable or
inadvisable to proceed with the offering, sale or delivery of
-18-
the Securities on the terms and in the manner contemplated by this
Agreement and the Offering Memorandum (exclusive of any amendment or
supplement thereto).
(q) No action shall have been taken and no statute, rule,
regulation or order shall have been enacted, adopted or issued by any
governmental agency or body which would, as of the Closing Date,
prevent the issuance or sale of the Securities; and no injunction,
restraining order or order of any other nature by any federal or state
court of competent jurisdiction shall have been issued as of the
Closing Date which would prevent the issuance or sale of the
Securities.
(r) Subsequent to the execution and delivery of this
Agreement, (i) no downgrading shall have occurred in the rating
accorded the Securities or any other debt securities or preferred stock
issued or guaranteed by the Company or any of the Guarantors by any
"nationally recognized statistical rating organization," as such term
is defined by the Commission for purposes of Rule 436(g)(2) under the
Securities Act; and (ii) no such organization shall have publicly
announced that it has under surveillance or review, or has changed its
outlook with respect to, its rating of the Securities or of any other
debt securities or preferred stock issued or guaranteed by the Company
or any of the Guarantors (other than an announcement with positive
implications of a possible upgrading).
(s) Subsequent to the execution and delivery of this Agreement
there shall not have occurred any of the following: (i) trading
generally shall have been suspended or materially limited on the New
York Stock Exchange or the over-the-counter market; (ii) trading of any
securities issued or guaranteed by the Company or any of the Guarantors
shall have been suspended on any exchange or in any over-the-counter
market; (iii) a general moratorium on commercial banking activities
shall have been declared by federal or New York State authorities; or
(iv) there shall have occurred any outbreak or escalation of
hostilities or any change in financial markets or any calamity or
crisis, either within or outside the United States, that, in the
judgment of JPMorgan, is material and adverse and makes it
impracticable or inadvisable to proceed with the offering, sale or
delivery of the Securities on the terms and in the manner contemplated
by this Agreement and the Offering Memorandum.
(t) The Company shall have delivered the Irrevocable
Instructions to the 9-5/8% Notes Trustee, in form and substance
reasonably satisfactory to the Initial Purchasers.
All opinions, letters, evidence and certificates mentioned
above or elsewhere in this Agreement shall be deemed to be in compliance with
the provisions hereof only if they are in form and substance reasonably
satisfactory to counsel for the Initial Purchasers.
6. Termination. The obligations of the Initial Purchasers
hereunder may be terminated by the Initial Purchasers, in their absolute
discretion, by notice given to and received by the Company prior to delivery of
and payment for the Securities if, prior to that time, any of the events
described in Section 5(o), (p), (q), (r), (s) or (t) shall have occurred and be
continuing.
-19-
7. Defaulting Initial Purchasers. (a) If, on the Closing Date,
any Initial Purchaser defaults in the performance of its obligations under this
Agreement, the non-defaulting Initial Purchasers may make arrangements for the
purchase of the Securities that such defaulting Initial Purchaser agreed but
failed to purchase by other persons satisfactory to the Company and the
non-defaulting Initial Purchasers, but if no such arrangements are made within
36 hours after such default, this Agreement shall terminate without liability on
the part of the non-defaulting Initial Purchasers or the Issuers, except that
the Issuers will continue to be liable for the payment of expenses to the extent
set forth in Sections 8 and 11 and except that the provisions of Sections 9, 13
and 15 shall not terminate and shall remain in effect. As used in this
Agreement, the term "Initial Purchasers" includes, for all purposes of this
Agreement unless the context otherwise requires, any party not listed in
Schedule 1 hereto that, pursuant to this Section 7, purchases Securities which a
defaulting Initial Purchaser agreed but failed to purchase.
(b) Nothing contained herein shall relieve a defaulting
Initial Purchaser of any liability it may have to the Company or any
non-defaulting Initial Purchaser for damages caused by its default. If other
persons are obligated or agree to purchase the Securities of a defaulting
Initial Purchaser, either the non-defaulting Initial Purchasers or the Company
may postpone the Closing Date for up to seven full business days in order to
effect any changes that in the opinion of counsel for the Company or counsel for
the Initial Purchasers may be necessary in the Offering Memorandum or in any
other document or arrangement, and each of the Issuers agrees to promptly
prepare any amendment or supplement to the Offering Memorandum that effects any
such changes.
8. Reimbursement of Initial Purchasers' Expenses. If (a) this
Agreement shall have been terminated pursuant to Section 6, (b) the Company
shall fail to tender the Securities for delivery to the Initial Purchasers or
(c) the Initial Purchasers shall decline to purchase the Securities for any
reason permitted under this Agreement, the Issuers agree, jointly and severally,
to reimburse the Initial Purchasers for such out-of-pocket expenses (including
reasonable fees and disbursements of counsel) as shall have been reasonably
incurred by the Initial Purchasers in connection with this Agreement and the
proposed purchase and resale of the Securities. If this Agreement is terminated
pursuant to Section 7 by reason of the default of one or more of the Initial
Purchasers, the Issuers shall not be obligated to reimburse any defaulting
Initial Purchaser on account of such expenses.
9. Indemnification. (a) Each of the Issuers jointly and
severally agree to indemnify and hold harmless each Initial Purchaser, its
affiliates, directors and officers and each person, if any, who controls such
Initial Purchaser within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act, from and against any and all losses, claims,
damages and liabilities (including, without limitation, legal fees and other
expenses incurred in connection with any suit, action or proceeding or any claim
asserted, as such fees and expenses are incurred), joint or several, that arise
out of, or are based upon, any untrue statement or alleged untrue statement of a
material fact contained in the Preliminary Offering Memorandum or the Offering
Memorandum (or any amendment or supplement thereto) or any omission or alleged
omission to state therein a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, except insofar as such losses, claims, damages or
liabilities arise out of, or are based upon, any untrue statement or omission or
alleged untrue statement or
-20-
omission made in reliance upon and in conformity with any information relating
to any Initial Purchaser furnished to the Company in writing by such Initial
Purchaser through JPMorgan expressly for use therein; provided, however, that
with respect to any such untrue statement in or omission from the Preliminary
Offering Memorandum, the indemnity agreement contained in this paragraph (a)
shall not inure to the benefit of any Initial Purchaser to the extent that the
sale to the person asserting any such loss, claim, damage or liability was an
initial resale by such Initial Purchaser and any such loss, claim, damage or
liability of or with respect to such Initial Purchaser results from the fact
that both (i) a copy of the Offering Memorandum was not sent or given to such
person at or prior to the written confirmation of the sale of such Securities to
such person and (ii) the untrue statement in or omission from such Preliminary
Offering Memorandum was corrected in the Offering Memorandum unless, in either
case, such failure to deliver the Offering Memorandum was a result of
non-compliance by the Company with the provisions of Section 4(b) hereof.
(b) Each Initial Purchaser agrees, severally and not jointly,
to indemnify and hold harmless each of the Issuers and their respective
directors, officers, employees, representatives and agents, and each person, if
any, who controls each of the Issuers within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act to the same extent as the
indemnity set forth in paragraph (a) above, but only with respect to any losses,
claims, damages or liabilities that arise out of, or are based upon, any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with any information relating to such Initial Purchaser
furnished to the Company in writing by such Initial Purchaser through JPMorgan
expressly for use in the Preliminary Offering Memorandum and the Offering
Memorandum (or any amendment or supplement thereto), it being understood and
agreed that the only such information consists of the following: the third
paragraph, the fifth and sixth sentences of the eighth paragraph and the tenth
paragraph, in each case under the heading "Plan of distribution" in the Offering
Memorandum (the "Initial Purchasers' Information").
(c) If any suit, action, proceeding (including any
governmental or regulatory investigation), claim or demand shall be brought or
asserted against any person in respect of which indemnification may be sought
pursuant to either paragraph (a) or (b) above, such person (the "Indemnified
Person") shall promptly notify the person against whom such indemnification may
be sought (the "Indemnifying Person") in writing; provided, however, that the
failure to notify the Indemnifying Person shall not relieve it from any
liability that it may have under this Section 9 except to the extent that it has
been materially prejudiced (through the forfeiture of substantive rights or
defenses) by such failure; and provided further, however, that the failure to
notify the Indemnifying Person shall not relieve it from any liability that it
may have to an Indemnified Person otherwise than under this Section 9. If any
such proceeding shall be brought or asserted against an Indemnified Person and
it shall have notified the Indemnifying Person thereof, the Indemnifying Person
shall retain counsel reasonably satisfactory to the Indemnified Person to
represent the Indemnified Person and any others entitled to indemnification
pursuant to this Section 9 that the Indemnifying Person may designate in such
proceeding and shall pay the fees and expenses of such counsel related to such
proceeding, as incurred. In any such proceeding, any Indemnified Person shall
have the right to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such Indemnified Person unless (i) the
Indemnifying Person and the Indemnified Person shall have mutually agreed to the
contrary, (ii) the Indemnifying Person has failed within a reasonable
-21-
time to retain counsel reasonably satisfactory to the Indemnified Person, (iii)
the Indemnified Person shall have reasonably concluded that there may be legal
defenses available to it that are different from or in addition to those
available to the Indemnifying Person or (iv) the named parties in any such
proceeding (including any impleaded parties) include both the Indemnifying
Person and the Indemnified Person and representation of both parties by the same
counsel would be inappropriate due to actual or potential differing interests
between them. It is understood and agreed that the Indemnifying Person shall
not, in connection with any proceeding or related proceeding in the same
jurisdiction, be liable for the fees and expenses of more than one separate firm
(in addition to any local counsel) for all Indemnified Persons, and that all
such fees and expenses shall be reimbursed as they are incurred. Any such
separate firm for any Initial Purchaser, its affiliates, directors and officers
and any control persons of such Initial Purchaser shall be designated in writing
by JPMorgan and any such separate firm for the Issuers and any control persons
of the Issuers shall be designated in writing by the Company. The Indemnifying
Person shall not be liable for any settlement of any proceeding effected without
its written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the Indemnifying Person agrees to indemnify each
Indemnified Person from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time
an Indemnified Person shall have requested that an Indemnifying Person reimburse
the Indemnified Person for fees and expenses of counsel as contemplated by this
paragraph, the Indemnifying Person shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by the Indemnifying Person of such
request and (ii) the Indemnifying Person shall not have reimbursed the
Indemnified Person in accordance with such request prior to the date of such
settlement. No Indemnifying Person shall, without the written consent of the
Indemnified Person, effect any settlement of any pending or threatened
proceeding in respect of which any Indemnified Person is or could have been a
party and indemnification could have been sought hereunder by such Indemnified
Person, unless such settlement (x) includes an unconditional release of such
Indemnified Person, in form and substance reasonably satisfactory to such
Indemnified Person, from all liability on claims that are the subject matter of
such proceeding and (y) does not include any statement as to or any admission of
fault, culpability or a failure to act by or on behalf of any Indemnified
Person.
(d) If the indemnification provided for in paragraphs (a) and
(b) above is unavailable to an Indemnified Person or insufficient in respect of
any losses, claims, damages or liabilities referred to therein, then each
Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Issuers, on the one hand, and the Initial Purchasers,
on the other, from the offering of the Securities or (ii) if the allocation
provided by clause (i) is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause
(i) but also the relative fault of the Issuers, on the one hand, and the Initial
Purchasers, on the other, in connection with the statements or omissions that
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by the
Issuers, on the one hand, and the Initial Purchasers on the other shall be
deemed to be in the same respective proportions as the net proceeds (before
deducting expenses) received by the Company from the sale of the Securities and
-22-
the total discounts and commissions received by the Initial Purchasers in
connection therewith, as provided in this Agreement, bear to the aggregate
offering price of the Securities. The relative fault of the Issuers, on the one
hand, and the Initial Purchasers, on the other, shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or any Guarantor or by the
Initial Purchasers and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
(e) The Issuers and the Initial Purchasers agree that it would
not be just and equitable if contribution pursuant to this Section 9 were
determined by pro rata allocation (even if the Initial Purchasers were treated
as one entity for such purpose) or by any other method of allocation that does
not take account of the equitable considerations referred to in paragraph (d)
above. The amount paid or payable by an Indemnified Person as a result of the
losses, claims, damages and liabilities referred to in paragraph (d) above shall
be deemed to include, subject to the limitations set forth above, any legal or
other expenses incurred by such Indemnified Person in connection with any such
action or claim. Notwithstanding the provisions of this Section 9, in no event
shall an Initial Purchaser be required to contribute any amount in excess of the
amount by which the total discounts and commissions received by such Initial
Purchaser with respect to the offering of the Securities exceeds the amount of
any damages that such Initial Purchaser has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The Initial
Purchasers' obligations to contribute pursuant to this Section 9 are several in
proportion to their respective purchase obligations hereunder and not joint.
(f) The remedies provided for in this Section 9 are not
exclusive and shall not limit any rights or remedies that may otherwise be
available to any Indemnified Person at law or in equity.
10. Persons Entitled to Benefit of Agreement. This Agreement
shall inure to the benefit of and be binding upon the Initial Purchasers, the
Company and their respective successors. This Agreement and the terms and
provisions hereof are for the sole benefit of only those persons, except as
provided in Section 9 with respect to affiliates of the Initial Purchasers and
officers, directors, employees, representatives, agents and controlling persons
of the Issuers and the Initial Purchasers and in Section 4(e) with respect to
holders and prospective purchasers of the Securities. Nothing in this Agreement
is intended or shall be construed to give any person, other than the persons
referred to in this Section 10, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision contained herein.
11. Expenses. The Issuers agree, joint and severally, with the
Initial Purchasers to pay: (a) the costs incident to the authorization,
issuance, sale, preparation and delivery of the Securities and any taxes payable
in that connection; (b) the costs incident to the preparation, printing and
distribution of the Preliminary Offering Memorandum, the Offering Memorandum and
any amendments or supplements thereto; (c) the costs of reproducing
-23-
and distributing each of the Transaction Documents; (d) the costs incident to
the preparation, printing and delivery of the certificates evidencing the
Securities, including stamp duties and transfer taxes, if any, payable upon
issuance of the Securities; (e) the fees and expenses of the Issuer's counsel
and independent accountants; (f) the fees and expenses of qualifying the
Securities under the securities laws of the several jurisdictions as provided in
Section 4(g) and of preparing, printing and distributing Blue Sky Memoranda
(including related fees and expenses of counsel for the Initial Purchasers); (g)
any fees charged by rating agencies for rating the Securities; (h) the fees and
expenses of the Trustee and any paying agent (including related fees and
expenses of any counsel to such parties); (i) all expenses and application fees
incurred in connection with the application for the inclusion of the Securities
on The Portal Market and the approval of the Securities for book-entry transfer
by DTC; and (j) all other costs and expenses incident to the performance of the
obligations of the Issuers under this Agreement that are not otherwise
specifically provided for in this Section 11; provided, however, that except as
provided in this Section 11 and Section 8, the Initial Purchasers shall pay
their own costs and expenses, including fees of their counsel, taxes on resales
of the Securities by them and any expenses in connection with any offers they
make.
12. Survival. The respective indemnities, rights of
contribution, representations, warranties and agreements of the Issuers and the
Initial Purchasers contained in this Agreement or made by or on behalf of the
Issuers or the Initial Purchasers pursuant to this Agreement or any certificate
delivered pursuant hereto shall survive the delivery of and payment for the
Securities and shall remain in full force and effect, regardless of any
termination or cancellation of this Agreement or any investigation made by or on
behalf of any of them or any of their respective affiliates, officers,
directors, employees, representatives, agents or controlling persons.
13. Notices, etc. All statements, requests, notices and
agreements hereunder shall be in writing, and:
(a) if to the Initial Purchasers, shall be delivered or sent
by mail or telecopy transmission to ▇.▇. ▇▇▇▇▇▇ Securities Inc., ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇
(telecopier no.: (▇▇▇) ▇▇▇-▇▇▇▇); or
(b) if to the Company, shall be delivered or sent by mail or
telecopy transmission to the address of the Company set forth in the
Offering Memorandum, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq., General
Counsel (telecopier no.: (▇▇▇) ▇▇▇-▇▇▇▇);
provided, however, that any notice to an Initial Purchaser pursuant to Section
9(c) shall also be delivered or sent by mail to such Initial Purchaser at its
address set forth on the signature page hereof. Any such statements, requests,
notices or agreements shall take effect at the time of receipt thereof. The
Company shall be entitled to act and rely upon any request, consent, notice or
agreement given or made on behalf of the Initial Purchasers by JPMorgan.
14. Definition of Terms. For purposes of this Agreement, (a)
the term "business day" means any day on which the New York Stock Exchange, Inc.
is open for
-24-
trading, (b) except where otherwise expressly provided, the term "subsidiary"
has the meaning set forth in Rule 405 under the Securities Act and (c) except
where otherwise expressly provided, the term "affiliate" has the meaning set
forth in Rule 405 under the Securities Act.
15. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
16. Counterparts. This Agreement may be executed in one or
more counterparts (which may include counterparts delivered by telecopier) and,
if executed in more than one counterpart, the executed counterparts shall each
be deemed to be an original, but all such counterparts shall together constitute
one and the same instrument.
17. Amendment. No amendment or waiver of any provision of this
Agreement, nor any consent or approval to any departure therefrom, shall in any
event be effective unless the same shall be in writing and signed by the parties
hereto.
18. Headings. The headings herein are inserted for convenience
of reference only and are not intended to be part of, or to affect the meaning
or interpretation of, this Agreement.
19. Amendment and Restatement of Original Purchase Agreement.
The parties hereto agree that the Purchase Agreement dated December 17, 2002
between the Company, the Guarantors and JPMorgan (including all exhibits and
schedules thereto) is hereby amended and restated effective as of December 17,
2002 to read in its entirety as set forth herein.
-25-
If the foregoing is in accordance with your understanding of
our agreement kindly sign and return to us counterpart hereof, whereupon this
instrument will become a binding agreement between the Company and the several
Initial Purchasers in accordance with its terms.
Very truly yours,
▇▇▇▇▇ MEDIA CORP.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Financial Officer
and Treasurer
AMERICAN SIGNS, INC.
COLORADO LOGOS, INC.
▇▇▇▇▇▇ DEVELOPMENT CORPORATION
▇▇▇▇▇ ADVERTISING OF COLORADO SPRINGS, INC.
▇▇▇▇▇ ADVERTISING OF KENTUCKY, INC.
▇▇▇▇▇ ADVERTISING OF SOUTH DAKOTA, INC.
▇▇▇▇▇ ADVERTISING OF YOUNGSTOWN, INC.
▇▇▇▇▇ OCI NORTH CORPORATION
▇▇▇▇▇ OCI SOUTH CORPORATION
NEBRASKA LOGOS, INC.
UTAH LOGOS, INC.
OHIO LOGOS, INC.
KANSAS LOGOS, INC.
LAMAR PENSACOLA TRANSIT, INC.
▇▇▇▇▇ TEXAS GENERAL PARTNER, INC.
MICHIGAN LOGOS, INC.
MINNESOTA LOGOS, INC.
NEW MEXICO LOGOS, INC.
SOUTH CAROLINA LOGOS, INC.
TENNESSEE LOGOS, INC.
TLC PROPERTIES, INC.
TLC PROPERTIES II, INC.
▇▇▇▇▇ ADVERTISING OF MICHIGAN, INC.
CANADIAN TODS LIMITED
NEVADA LOGOS, INC.
FLORIDA LOGOS, INC.
▇▇▇▇▇ ELECTRICAL, INC.
▇▇▇▇▇▇▇ DEVELOPMENT COMPANY
REVOLUTION OUTDOOR ADVERTISING, INC.
▇▇▇▇▇ FLORIDA, INC.
LAMAR ADVAN, INC.
-26-
▇▇▇▇▇ ADVERTISING OF IOWA, INC.
▇▇▇▇▇ CENTRAL OUTDOOR, INC.
▇▇▇▇▇ ADVANTAGE HOLDING COMPANY
▇▇▇▇▇ OKLAHOMA HOLDING COMPANY, INC.
▇▇▇▇▇ ADVERTISING OF OKLAHOMA, INC.
▇▇▇▇▇ BENCHES, INC.
▇▇▇▇▇ I-40 WEST, INC.
▇▇▇▇▇ OHIO OUTDOOR HOLDING CORP.
OUTDOOR MARKETING SYSTEMS, INC.
▇▇▇▇▇ ADVERTISING SOUTHWEST, INC.
LAMAR DOA TENNESSEE HOLDINGS, INC.
LAMAR DOA TENNESSEE, INC.
TRANS WEST OUTDOOR ADVERTISING, INC.
LAMAR PINNACLE ACQUISITION CO.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President-Finance and Chief
Financial Officer
-27-
MISSOURI LOGOS, LLC
KENTUCKY LOGOS, LLC
OKLAHOMA LOGOS, ▇.▇▇.
MISSISSIPPI LOGOS, L.L.C.
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: ▇▇▇▇▇ Media Corp., its Managing Member
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President-Finance and Chief
Financial Officer
INTERSTATE LOGOS, L.L.C.
THE ▇▇▇▇▇ COMPANY, L.L.C.
By: ▇▇▇▇▇ Media Corp., its
Managing Member
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President-Finance and Chief
Financial Officer
-28-
▇▇▇▇▇ ADVERTISING OF PENN, LLC
▇▇▇▇▇ ADVERTISING OF LOUISIANA, L.L.C.
▇▇▇▇▇ TENNESSEE, L.L.C.
▇▇▇▇▇ AIR, L.L.C.
LC BILLBOARD L.L.C.
By: The ▇▇▇▇▇ Company, L.L.C., its
Managing Member
By: ▇▇▇▇▇ Media Corp., its
Managing Member
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President-Finance and Chief
Financial Officer
▇▇▇▇▇ TEXAS LIMITED PARTNERSHIP
By: Lamar Texas General Partner, Inc.,
its General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President-Finance and Chief
Financial Officer
TLC PROPERTIES, L.L.C.
By: TLC Properties, Inc., its
Managing Member
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President-Finance and Chief
Financial Officer
-29-
OUTDOOR PROMOTIONS WEST, LLC
TRANSIT AMERICA LAS VEGAS, L.L.C.
LAMAR 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/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President-Finance and Chief
Financial Officer
LAMAR ADVANTAGE GP COMPANY, LLC
LAMAR ADVANTAGE LP COMPANY, LLC
TRIUMPH OUTDOOR HOLDINGS, LLC
By: Lamar Central Outdoor, Inc., its
Managing Member
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President-Finance and Chief
Financial Officer
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/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President-Finance and Chief
Financial Officer
-30-
▇▇▇▇▇ ▇.▇.▇., L.L.C.
By: ▇▇▇▇▇ Advertising of Youngstown, Inc., its
Managing Member
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: 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: ▇▇▇▇▇ Media Corp., its
Managing Member
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President-Finance and Chief
Financial Officer
OUTDOOR MARKETING SYSTEMS, L.L.C.
By: Outdoor Marketing Systems, Inc., its
Managing Member
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President-Finance and Chief
Financial Officer
-31-
Accepted:
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
For itself and on behalf of the several
Initial Purchasers listed in Schedule 1 hereto
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------------
Authorized Signatory
SCHEDULE 1
Principal
Amount
Initial Purchasers of Securities
------------------ ------------
▇.▇. ▇▇▇▇▇▇ Securities Inc. ............................. $146,250,000
Wachovia Securities, Inc. ............................... 65,000,000
SunTrust Capital Markets, Inc. .......................... 32,500,000
BNP Paribas Securities Corp. ............................ 16,250,000
------------
Total .......................................... $260,000,000
============
Exhibit A
Subsidiaries of ▇▇▇▇▇ Media Corp.
STATE OR OTHER JURISDICTION OF
INCORPORATION OR ORGANIZATION AS
NAME SPECIFIED IN ITS CHARTER
---- --------------------------------
American Signs, Inc. Washington
Canadian TODS Limited Nova Scotia, Canada
Colorado Logos, Inc. Colorado
Delaware Logos, L.L.C. Delaware
Florida Logos, Inc. Florida
▇▇▇▇▇▇ Development Corporation Florida
Kansas Logos, Inc. Kansas
Kentucky Logos, LLC Kentucky
▇▇▇▇▇ Advertising of Colorado Springs, Inc. Colorado
▇▇▇▇▇ Advertising of Kentucky, Inc. Kentucky
▇▇▇▇▇ Advertising of Michigan, Inc. Michigan
▇▇▇▇▇ Advertising of South Dakota, Inc. South Dakota
▇▇▇▇▇ Advertising of Youngstown, Inc. Delaware
▇▇▇▇▇ Air, L.L.C. Louisiana
▇▇▇▇▇ Electrical, Inc. Louisiana
▇▇▇▇▇ OCI North Corporation Delaware
▇▇▇▇▇ OCI South Corporation Mississippi
Lamar Pensacola Transit, Inc. Florida
▇▇▇▇▇ Tennessee, L.L.C. Tennessee
▇▇▇▇▇ Texas General Partner, Inc. Louisiana
▇▇▇▇▇ Texas Limited Partnership Texas
Michigan Logos, Inc. Michigan
Minnesota Logos, Inc. Minnesota
Missouri Logos, LLC Missouri
Nebraska Logos, Inc. Nebraska
Nevada Logos, Inc. Nevada
New Mexico Logos, Inc. New Mexico
Ohio Logos, Inc. Ohio
Outdoor Promotions West, LLC Delaware
▇▇▇▇▇▇▇ Development Company Florida
Revolution Outdoor Advertising, Inc. Florida
South Carolina Logos, Inc. South Carolina
Tennessee Logos, Inc. Tennessee
Texas Logos, L.P. Texas
TLC Properties II, Inc. Texas
TLC Properties, Inc. Louisiana
TLC Properties, L.L.C. Louisiana
Transit America Las Vegas, L.L.C. Delaware
Triumph Outdoor Rhode Island, LLC Delaware
Triumph Outdoor Holdings, LLC Delaware
Utah Logos, Inc. Utah
STATE OR OTHER JURISDICTION OF
INCORPORATION OR ORGANIZATION AS
NAME SPECIFIED IN ITS CHARTER
---- --------------------------------
Virginia Logos, LLC Virginia
The ▇▇▇▇▇ Company, L.L.C. Louisiana
▇▇▇▇▇ Advertising of Penn, LLC Delaware
▇▇▇▇▇ Advertising of Louisiana, L.L.C. Louisiana
▇▇▇▇▇ Florida, Inc. Florida
▇▇▇▇▇ Advan, Inc. Pennsylvania
▇▇▇▇▇ Advertising of Iowa, Inc. Iowa
▇▇▇▇▇ T.T.R., L.L.C. Arizona
▇▇▇▇▇ Central Outdoor, Inc. Delaware
▇▇▇▇▇ Advantage GP Company, LLC Delaware
▇▇▇▇▇ Advantage LP Company, LLC Delaware
▇▇▇▇▇ Advantage Outdoor Company, L.P. Delaware
Lamar Advantage Holding Company Delaware
▇▇▇▇▇ Oklahoma Holding Company, Inc. Oklahoma
▇▇▇▇▇ Advertising of Oklahoma, Inc. Oklahoma
▇▇▇▇▇ Benches, Inc. Oklahoma
▇▇▇▇▇ I-40 West, Inc. Oklahoma
Georgia Logos, L.L.C. Georgia
Mississippi Logos, L.L.C. Mississippi
New Jersey Logos, L.L.C. New Jersey
Oklahoma Logos, L.L.C. Oklahoma
Interstate Logos, L.L.C. Louisiana
LC Billboard L.L.C. Delaware
Lamar Ohio Outdoor Holding Corp. Ohio
Outdoor Marketing Systems, Inc. Pennsylvania
Outdoor Marketing Systems, LLC Pennsylvania
▇▇▇▇▇ Advertising Southwest, Inc. Nevada
Lamar Transit Advertising of New Orleans, LLC Delaware
Lamar DOA Tennessee Holdings, Inc. Delaware
Lamar DOA Tennessee, Inc. Delaware
Maine Logos, L.L.C. Maine
Trans West Outdoor Advertising, Inc. California
Washington Logos, L.L.C. ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ Pinnacle Acquisition Co. Georgia
Missouri Logos, a Partnership Missouri
-2-
ANNEX A
Form of Registration Rights Agreement
See Exhibit 10.1 to this Current Report on Form 8-K
ANNEX B
Restrictions on Offers and Sales Outside the United States
In connection with offers and sales of Securities outside the
United States:
(a) Each Initial Purchaser acknowledges that the Securities have not
been registered under the Securities Act and may not be offered or sold within
the United States or to, or for the account or benefit of, U.S. persons except
pursuant to an exemption from, or in transactions not subject to, the
registration requirements of the Securities Act.
(b) Each Initial Purchaser, severally and not jointly, represents,
warrants and agrees that:
(i) Such Initial Purchaser has offered and sold the
Securities, and will offer and sell the Securities, (A) as part of
their distribution at any time and (B) otherwise until 40 days after
the later of the commencement of the offering of the Securities and the
Closing Date, only in accordance with Regulation S under the Securities
Act ("Regulation S") or Rule 144A or any other available exemption from
registration under the Securities Act.
(ii) None of such Initial Purchaser or any of its affiliates
or any other person acting on its or their behalf has engaged or will
engage in any directed selling efforts with respect to the Securities,
and all such persons have complied and will comply with the offering
restrictions requirement of Regulation S.
(iii) At or prior to the confirmation of sale of any
Securities sold in reliance on Regulation S, such Initial Purchaser
will have sent to each distributor, dealer or other person receiving a
selling concession, fee or other remuneration that purchase Securities
from it during the distribution compliance period a confirmation or
notice to substantially the following effect:
"The Securities covered hereby have not been registered under the U.S.
Securities Act of 1933, as amended (the "Securities Act"), and may not
be offered or sold within the United States or to, or for the account
or benefit of, U.S. persons (i) as part of their distribution at any
time or (ii) otherwise until 40 days after the later of the
commencement of the offering of the Securities and the date of original
issuance of the Securities, except in accordance with Regulation S or
Rule 144A or any other available exemption from registration under the
Securities Act. Terms used above have the meanings given to them by
Regulation S."
(iv) Such Initial Purchaser has not and will not enter into
any contractual arrangement with any distributor with respect to the
distribution of the Securities, except with its affiliates or with the
prior written consent of the Company.
Terms used in paragraph (a) and this paragraph (b) and not otherwise defined in
this Agreement have the meanings given to them by Regulation S.
(c) Each Initial Purchaser, severally and not jointly, represents,
warrants and agrees that:
(i) it has not offered or sold and, prior to the date six
months after the Closing Date, will not offer or sell any Securities to
persons in the United Kingdom except to persons whose ordinary
activities involve them in acquiring, holding, managing or disposing of
investments (as principal or agent) for the purposes of their
businesses or otherwise in circumstances which have not resulted and
will not result in an offer to the public in the United Kingdom within
the meaning of the United Kingdom Public Offers of Securities
Regulations 1995 (as amended);
(ii) it has only communicated or caused to be communicated and
will only communicate or cause to be communicated any invitation or
inducement to engage in investment activity (within the meaning of
Section 21 of the United Kingdom Financial Services and Markets Act
2000 (the "FSMA")) received by it in connection with the issue or sale
of any Securities in circumstances in which Section 21(1) of the FSMA
does not apply to the Company or the Guarantors; and
(iii) it has complied and will comply with all applicable
provisions of the FSMA with respect to anything done by it in relation
to the Securities in, from or otherwise involving the United Kingdom.
(d) Each Initial Purchaser acknowledges that no action has been or will
be taken by the Company that would permit a public offering of the Securities,
or possession or distribution of the Preliminary Offering Memorandum, the
Offering Memorandum or any other offering or publicity material relating to the
Securities, in any country or jurisdiction where action for that purpose is
required.
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ANNEX C
▇▇▇▇▇▇ & Dodge LLP shall have furnished to the Initial
Purchasers their written opinion, as counsel to the Company, addressed to the
Initial Purchasers and dated the Closing Date, in form and substance reasonably
satisfactory to the Initial Purchasers, substantially to the effect set forth
below:
(i) The Company is validly existing as a corporation and in
good standing under the laws of the State of Delaware with full
corporate power and authority to own, lease and operate its properties
and to conduct its business as described in the Offering Memorandum
(and any amendment or supplement thereto);
(ii) the Securities (A) have been duly authorized and (B) when
issued and executed and authenticated in accordance with the provisions
of the Indenture and delivered to the Initial Purchasers in accordance
with the terms of the
Purchase Agreement, will be entitled to the
benefits of the Indenture, and will constitute valid and legally
binding obligations of the Company in accordance with their terms;
(iii) the Exchange Securities (A) have been duly authorized
and (B) when issued and executed and authenticated in accordance with
the provisions of the Indenture, will be entitled to the benefits of
the Indenture, and will constitute valid and legally binding
obligations of the Company in accordance with their terms;
(iv) (A) the Company has the corporate power and authority to
enter into the this Agreement, the Indenture and the Registration
Rights Agreement and to issue, sell and deliver the Securities and the
Exchange Securities to the Initial Purchasers as provided therein, and
(B) the Transaction Documents have been duly authorized, executed and
delivered by the Company;
(v) each of the
Purchase Agreement, the Registration Rights
Agreement and the Indenture is a legal, valid and binding agreement of
the Company, enforceable against the Company in accordance with its
terms;
(vi) each Transaction Document conforms in all material
respects to the descriptions thereof contained in the Offering
Memorandum;
(vii) neither the issuance, sale or delivery of the
Securities, nor the execution, delivery or performance of the
Purchase
Agreement, the Registration Rights Agreement or the Indenture, or
compliance by the Company with the provisions of the
Purchase
Agreement, the Registration Rights Agreement or the Indenture, nor
consummation by the Company of the transactions contemplated thereby
constitutes or will constitute a violation or breach of, or a default
under, the certificate of incorporation or bylaws, the certificate of
formation or operating agreement, or the partnership agreement or other
organizational documents of the Company or any of the Subsidiaries or
any document filed by the Company with the Securities and Exchange
Commission as an exhibit to any filing on the Form 10-K for the year
ended December 31, 2001 and on any 10-Q or 8-K filed on or after
January 1, 2002, or will result in the creation or imposition of any
lien, charge or encumbrance pursuant to
any such agreement, indenture, lease or other instrument upon any
property or assets of the Company or any of the Subsidiaries, nor will
any such action result in any violation of any existing law,
regulation, ruling (assuming compliance with all applicable state
securities and Blue Sky laws), judgment, injunction, order or decree
known to such counsel, to be applicable to the Company, the
Subsidiaries or any of their respective properties;
(viii) no consent, approval, authorization or other order of,
or registration or filing with, any court, regulatory body,
administrative agency or other governmental body, agency, or official
is required on the part of the Company for the valid issuance and sale
of the Securities pursuant to the
Purchase Agreement, the issuance of
the Exchange Securities, or the execution, delivery and performance of
Indenture, except such as may be required under the Securities Act and
applicable state securities laws as provided in the Registration Rights
Agreement;
(ix) assuming the accuracy of the representations, warranties
and agreements of the Company and of the Initial Purchasers contained
in the
Purchase Agreement, and the due performance by the Initial
Purchasers of its agreements as set forth therein, no registration of
the Securities under the Securities Act or qualification of the
Indenture under the Trust Indenture Act is required in connection with
the issuance and sale of the Securities by the Company and the offer,
resale and delivery of the Securities by the Initial Purchasers in the
manner contemplated by the
Purchase Agreement and the Offering;
(x) the statements in the Offering Memorandum under the
handling "Certain U.S. federal income tax considerations," to the
extent that they constitute summaries of matters of law or regulation
or legal conclusions, fairly summarize the matter described therein in
all material respects;
(xi) the Issuers are not, and after giving effect to the
offering and sale of the Securities and the application of the proceeds
thereof as described in the Offering Memorandum none of them will be,
an "investment company" or an entity "controlled" by an "investment
company" within the meaning of the Investment Company Act; and
(xii) neither the issuance, sale and delivery of the
Securities nor the application of the proceeds thereof by the Company
as described in the Offering Memorandum will violate Regulation T, U or
X of the Board of Governors of the Federal Reserve System or any other
regulation of such Board of Governors.
In giving such opinion, such counsel may limit its opinion to
the law of The Commonwealth of Massachusetts, the Delaware General Corporation
Law and the federal law of the United States. Counsel may rely upon an opinion
or opinions, each dated the Closing Date, of other counsel retained by them or
the Company as to laws of any jurisdiction other than the United States, the
State of Delaware or the Commonwealth of Massachusetts, provided that (1) each
such local counsel is acceptable to you, (2) such reliance is expressly
authorized by each opinion so relied upon and a copy of each such opinion is
delivered
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to the Initial Purchasers and is, in form and substance reasonably satisfactory
to the Initial Purchasers and your counsel, and (3) counsel shall state in their
opinion that they believe that they and the Initial Purchasers are justified in
relying thereon. Such counsel may also limit its opinion in paragraphs (ii),
(iii) and (v) above as subject to bankruptcy, insolvency, fraudulent transfer,
regorganziation, moratorium and other similar laws of general applicability
relating to or affecting the creditors' rights and remedies and to general
principles of equity (whether considered in proceeding in equity or at law).
Such counsel may also express no opinion with respect to any provision of the
Transaction Documents to the extent that such provision purports to exculpate
any person thereby or grants rights of indemnification that may violate public
policy, and insofar as enforceability of such provision may be limited under
state securities laws.
For purposes of the opinions in the foregoing clauses (ii),
(iii) and (v), insofar as such opinions relate to enforceability, such counsel
may assume that the law of Massachusetts governed, notwithstanding the
recitation in such instruments that the law of another jurisdiction govern.
In addition to the matters set forth above, such opinion shall
also contain a statement to the effect that, although counsel has not
undertaken, except as otherwise indicated in their opinion, to determine
independently, and does not assume any responsibility for, the accuracy or
completeness of the statements in the Offering Memorandum, such counsel has
participated in the preparation of the Offering Memorandum, including review and
discussion of the contents thereof, and nothing has come to the attention of
such counsel that has caused it to believe (i) that the Offering Memorandum, and
any amendment or supplement thereto, as of the date thereof and the Closing
Date, contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading (it being understood that such counsel need express no opinion with
respect to the financial statements and the notes thereto and the schedules and
other financial and statistical data included in the Offering Memorandum).
The opinion of ▇▇▇▇▇▇ & Dodge LLP described above shall be
rendered to the Initial Purchasers at the request of the Company and shall so
state therein.
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ANNEX D
▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇'▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P.
shall have furnished to the Initial Purchasers their written opinion, as counsel
to the Issuers, addressed to the Initial Purchasers and dated the Closing Date,
in form and substance reasonably satisfactory to the Initial Purchasers,
substantially to the effect set forth below.
(i) The Company is duly registered and qualified to conduct
its business and is in good standing in each jurisdiction or place
where the nature of its properties or the conduct of its business
requires such registration or qualification, except where the failure
so to register or qualify does not have, individually or in the
aggregate, a material adverse effect on the condition (financial or
other), business, properties, net worth or results of operations of the
Company and the Subsidiaries taken as a whole;
(ii) each of the Subsidiaries is a corporation, partnership or
limited liability company duly organized and validly existing in good
standing under the laws of the jurisdiction of its organization, with
full corporate, partnership or limited liability company power and
authority, as the case may be, to own, lease, and operate its
properties and to conduct its business as described in the Offering
Memorandum (and any amendment or supplement thereto); and all the
outstanding shares of capital stock or other equity interests of each
of the Subsidiaries have been duly authorized and validly issued, are
fully paid and nonassessable, and are owned by the Company, except as
disclosed in the Offering Memorandum, directly, or indirectly through
one of the other Subsidiaries free and clear of any perfected security
interest, or, to the best knowledge of such counsel after reasonable
inquiry, any other security interest, lien, adverse claim, equity or
other encumbrance;
(iii) the authorized and outstanding capital stock of the
Company is as set forth under the caption "Capitalization" in the
Offering Memorandum; and all the outstanding shares of capital stock of
the Company have been duly authorized and validly issued, and are fully
paid and nonassessable and free of any pre-emptive or to the best
knowledge of such counsel, similar rights;
(iv) to the best knowledge of such counsel (A) other than as
described or contemplated in the Offering Memorandum (or any supplement
thereto), there are no legal or governmental proceedings pending or
threatened against the Company or any of the Subsidiaries, or to which
the Company or any of the Subsidiaries, or any of their property, is
subject, which would be required to be described in the Offering
Memorandum if it were a prospectus included in a registration statement
on Form S-3 that are not described in the Offering Memorandum (or any
amendment or supplement thereto) and (B) there are no agreements,
contracts, indentures, leases or other instruments, that would be
required to be described in the Offering Memorandum if it were a
prospectus included in a registration statement on Form S-3 that are
not described in the Offering Memorandum (or any amendment or
supplement thereto);
(v) neither the issuance or sale of the Guarantees, nor the
execution, delivery or performance of the Purchase Agreement, the
Registration Rights Agreement,
or the Indenture or compliance by the Guarantors with all the
provisions of the Purchase Agreement, the Registration Rights Agreement
or the Indenture, nor consummation by the Guarantors of the
transactions contemplated thereby constitutes or will constitute a
violation or breach of, or a default under, the certificate of
incorporation or bylaws, the certificate of formation or operating
agreement, or the partnership agreement or other organizational
documents of the Guarantors or, to our knowledge, any material
agreement, indenture, lease or other instrument to which they are a
party or by which any of them or any of their respective properties is
bound, or will result in the creation or imposition of any lien, charge
or encumbrance pursuant to any such agreement, indenture, lease or
other instrument upon any property or assets of any of the Guarantors,
nor will any such action result in any violation of any existing law,
regulation, ruling (assuming compliance with all applicable state
securities and Blue Sky laws), judgment, injunction, order or decree
known to such counsel to be applicable to the Guarantors or any of
their respective properties;
(vi) no consent, approval, authorization or other order of, or
registration or filing with, any court, regulatory body, administrative
agency or other governmental body, agency, or official is required to
be obtained or made by any Guarantor for the valid issuance and sale of
the Guarantees and the guarantees of the Exchange Securities pursuant
to the Transaction Documents, except such as may be required under the
Securities Act and applicable state securities laws as provided in the
Registration Rights Agreement;
(vii) the Guarantees have been duly authorized and validly
issued by each of the Guarantors, and when the Securities are executed
and authenticated in accordance with the Indenture and delivered to the
Initial Purchasers in accordance with the terms of the Purchase
Agreement, the Securities will be entitled to the benefits of the
Guarantees, and the Guarantees will constitute valid and legally
binding agreements of each of the Guarantors in accordance with their
terms set forth in the Indenture except that the enforceability thereof
may be (A) bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights generally and (B) general
principles of equity (whether considered in a proceeding in equity or
at law) and the discretion of the court before which the proceedings
may be brought;
(viii) the guarantees of the Exchange Securities have been
duly authorized and validly issued by each of the Guarantors, and when
the guarantees of the Exchange Securities are executed and
authenticated in accordance with the terms of the Registration Rights
Agreement, the Exchange Securities will be entitled to the benefits of
the guarantees of the Exchange Securities, and the guarantees of the
Exchange Securities will constitute valid and legally binding
agreements of each of the Guarantors in accordance with their terms set
forth in the Indenture except that (i) the enforceability thereof may
be limited by (A) bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights generally and (B) general
principles of equity (whether considered in a proceeding in equity or
at law) and the discretion of the court before which the proceedings
may be brought;
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(ix) (A) each of the Guarantors has the corporate or
partnership power and authority, as the case may be, to enter into the
Transaction Documents, to the extent each is a party thereto, and to
issue its Guarantee and its guarantees of the Exchange Securities, as
provided therein, and (B) each of the Transaction Documents has been
duly authorized, executed and delivered by each of the Guarantors, to
the extent each is a party thereto; and
(x) each of the Indenture, Registration Rights Agreement and
Purchase Agreement is a legal, valid and binding agreement of each of
the Guarantors, enforceable against each of them in accordance with its
terms except that (a) enforceability thereof may be limited by (A)
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights generally and (B) general principles of equity
(whether considered in a proceeding in equity or at law) and the
discretion of the court before which the proceedings may be brought and
(C) to the extent that the indemnification provisions thereof may be
unenforceable.
In addition to the matters set forth above, such opinion shall
also contain a statement to the effect that, although counsel has not
undertaken, except as otherwise indicated in their opinion, to determine
independently, and does not assume any responsibility for, the accuracy or
completeness of the statements in the Offering Memorandum, such counsel has
reviewed the Offering Memorandum, and nothing has come to the attention of such
counsel that has caused it to believe (i) that the Offering Memorandum, and any
amendment thereto, as of the date thereof and the Closing Date, contained an
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading (it being
understood that such counsel need express no opinion with respect to the
financial statements and the notes thereto and the schedules and other financial
and statistical data included in the Offering Memorandum).
In giving such opinions, such counsel may (a) limit its
opinion to the federal laws of the United States, the law of the State of
Louisiana, the General Corporation Law of the State of Delaware and the
corporation, partnership and limited liability company statutes of the
jurisdictions of incorporation or organization of each of the Guarantors; (b)
disclaim its opinion as to any provision of the Transaction Documents which
purports to exculpate any person thereby or grant rights of indemnification that
may violate public policy, and to the extent enforceability of such provision
may be limited under state securities laws. For purposes of the opinions in
clauses (vii), (viii) and (x) above, to the extent such opinions relate to
enforceability, such counsel may assume that the law of Louisiana governs,
notwithstanding the recitation in such instruments that the law of another
jurisdiction govern.
The opinion of ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇'▇▇▇▇▇▇, ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇, L.L.P. described above shall be rendered to the Initial Purchasers at
the request of the Issuers and shall so state therein.
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ANNEX E
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq. shall have furnished to the Initial
Purchasers his written opinion, as general counsel to the Issuers, addressed to
the Initial Purchasers and dated the Closing Date, in form and substance
reasonably satisfactory to the Initial Purchasers, substantially to the effect
set forth below.
(i) the Company and each of the Subsidiaries has corporate
power and authority, and all necessary governmental authorizations,
approvals, orders, licenses, certificates, franchises and permits of
and from all governmental regulatory officials and bodies (except where
the failure so to have any such authorizations, approvals, orders,
licenses, certificates, franchises or permits, individually or in the
aggregate, would not have a material adverse effect on the business,
properties, operations or financial condition of the Company and the
Subsidiaries taken as a whole), to own their respective properties and
to conduct their respective businesses as now being conducted, as
described in the Offering Memorandum;
(ii) to the best of his knowledge, other than as described or
contemplated in the Offering Memorandum (or any amendment or supplement
thereto), there are no legal or governmental proceedings pending or
threatened against the Company or any of the Subsidiaries, or to which
the Company or any of the Subsidiaries, or any of their property, is
subject, which would be required to be described in the Offering
Memorandum if it were a prospectus included in a registration statement
on Form S-3 and are not described in the Offering Memorandum (or any
amendment or supplement thereto);
(iii) to the best of his knowledge, there are no agreements,
contracts, indentures, leases or other instruments, which would be
required to be described in the Offering Memorandum were a prospectus
included in a registration statement on Form S-3 that are not described
in the Offering Memorandum (or any amendment or supplement thereto);
(iv) neither the Company nor any of the Subsidiaries (A) is in
violation of its respective certificate of incorporation or bylaws,
certificate of formation or operating agreement, partnership agreement
or other organizational documents, (B) to the best knowledge of such
counsel after reasonable inquiry, is in default in the performance of
any material obligation, agreement or condition contained in any bond,
debenture, note or other evidence of indebtedness, except as may be
disclosed in the Offering Memorandum or (C) is in violation of any law,
ordinance, administrative or governmental rule or regulation applicable
to the Company or any of the Subsidiaries or of any decree of any court
or governmental agency or body having jurisdiction over the Company or
any of the Subsidiaries which default or violation in the case of
either clause (B) or (C), either individually or in the aggregate,
would be reasonably likely to have a Material Adverse Effect;
(v) except as described in the Offering Memorandum, there are
no outstanding options, warrants or other rights calling for the
issuance of, and such counsel does not know of any commitment, plan or
arrangement to issue, any shares of
capital stock of the Company or any security convertible into or
exchangeable or exercisable for capital stock of the Company;
(vi) except as described in the Offering Memorandum, there is
no holder of any security of the Company or any other person who has
the right, contractual or otherwise, to cause the Company to sell or
otherwise issue to them, or to permit them to underwrite the sale of,
the Securities or the right to have any securities of the Company
included in or the right to require registration under the Securities
Act of 1933, as amended, of any securities of the Company; and
(vii) the statements in the Offering Memorandum under the
captions "Risk Factors - Our operations are significantly impacted by
the regulation of outdoor advertising by federal, state and local
governments" and "Business -- Regulation", insofar as such statements
constitute a summary of regulatory matters relating to the outdoor
advertising industry, fairly describe the regulatory matters relating
to such industry.
In addition to the matters set forth above, such opinion shall
also contain a statement to the effect that nothing has come to the attention of
such counsel that has caused it to believe that the Offering Memorandum, and any
amendment thereto as of the date thereof or the Closing Date, contained an
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading (it being
understood that such counsel need express no opinion with respect to the
financial statements and the notes thereto and the schedules and other financial
and statistical data included in the Offering Memorandum).
The opinion of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq. described above shall
be rendered to the Initial Purchasers at the request of the Issuers and shall so
state therein.
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