$100,000,000
UNIVERSAL OUTDOOR, INC.
9 3/4% Series B Senior Subordinated Notes due 2006
PURCHASE AGREEMENT
December 11, 1996
PURCHASE AGREEMENT
December 11, 1996
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
BT SECURITIES CORPORATION
c/o Bear, ▇▇▇▇▇▇▇ & Co. Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
Universal Outdoor, Inc., a corporation organized and existing under
the laws of Illinois (the "Company"), proposes, subject to the terms and
conditions stated herein, to issue and sell to you (the "Initial Purchasers")
$100,000,000 aggregate principal amount of its 9 3/4% Series B Senior
Subordinated Notes due 2006 (the "Securities"), to be issued pursuant to an
indenture dated as of December 16, 1996 (the "Indenture") between the Company
and United States Trust Company of New York, as trustee (the "Trustee").
The Securities will be offered and sold to the Initial Purchasers
without being registered under the Securities Act of 1933, as amended (the
"Act"), in reliance on an exemption therefrom. The Company has prepared a
preliminary offering memorandum, dated December 9, 1996 (such preliminary
offering memorandum, being hereinafter referred to as the "Preliminary Offering
Memorandum"), and an offering memorandum, dated December 11, 1996 (such offering
memorandum, in the form first furnished to the Initial Purchasers for use in
connection with the offering of Securities, being hereinafter referred to as the
"Offering Memorandum"), setting forth information regarding the Company and the
Securities. 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.
The Company understands that you propose to make an offering of the
Securities on the terms set forth in the Offering Memorandum, as soon as you
deem advisable after this Agreement has been executed as delivered, (i) to
persons in the United States whom you reasonably believe to be qualified
institutional buyers ("Qualified Institutional Buyers") as defined in Rule 144A
promulgated by the Securities and Exchange Commission (the "Commission") under
the Act, as such rule may be amended from time to time ("Rule 144A"), in a
transaction under Rule 144A and (ii) to institutional "accredited investors" (as
defined in Rule 501(A)(1), (2), (3) or (7) under the Act), provided that such
offers and sales are made in the manner contemplated by Section 3(a), (d) and
(e) hereof.
1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to, and agrees with, you that:
(a) Each of the Preliminary Closing Memorandum and the Offering
Memorandum, as of its date, contains all the information that, if requested by a
prospective purchaser of the Securities, would be required to be provided
pursuant to Rule 144A(d)(4) under the Act. As of its date, the Offering
Memorandum does not, and at the Closing Date will not, contain an untrue
statement of a material fact or omit to state a material fact necessary 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
representations or warranties as to information contained in or omitted from the
Offering Memorandum in reliance upon, and in conformity with, written
information furnished to the Company by or on behalf of any Initial Purchaser
specifically for use therein.
(b) The Company has been duly organized and is validly existing
as a corporation in good standing under the laws of the State of Illinois, with
corporate power and authority to own or lease its properties and conduct its
business as described in the Registration Statement. Each of the subsidiaries
of the Company (collectively, the "Subsidiaries") has been duly organized and is
validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, with corporate power and authority to own or
lease its properties and conduct its business as de-
2
scribed in the Offering Memorandum. The Subsidiaries are the only subsidiaries,
direct or indirect, of the Company. The Company and each of the Subsidiaries
are duly qualified to transact business in all jurisdictions in which the
conduct of their business requires such qualification. The outstanding shares
of capital stock of each of the Subsidiaries have been duly authorized and
validly issued, are fully paid and non-assessable and are owned by the Company
or another Subsidiary free and clear of all liens, encumbrances and equities and
claims, except for the pledge of the issued and outstanding common stock of each
Subsidiary pursuant to the Amended and Restated Credit Facility (the "Credit
Facility"), each among the Company, LaSalle National Bank and Bankers Trust
Company (collectively, the "Existing Stock Pledges"); and no options, warrants
or other rights to purchase, agreements or other obligations to issue or other
rights to convert any obligations into shares of capital stock or ownership
interests in the Subsidiaries are outstanding.
(c) The outstanding shares of common stock of the Company have
been duly authorized and validly issued and are fully paid and non-assessable.
(d) The information set forth under the caption "Capitalization"
in the Offering Memorandum is true and correct. All of the Securities conform
to the description thereof contained in the Offering Memorandum. The form of
certificates for the Securities conforms to the corporate law of the
jurisdiction of the Company's incorporation.
(e) The consolidated financial statements of the Company and the
Subsidiaries, together with related notes and schedules as set forth in the
Offering Memorandum, present fairly the financial position and the results of
operations and cash flows of the Company and the consolidated Subsidiaries, at
the indicated dates and for the indicated periods. Such financial statements
and related schedules have been prepared in accordance with generally accepted
accounting principles, consistently applied throughout the periods involved,
except as disclosed therein, and all adjustments necessary for a fair
presentation of results for such periods have been made. The summary financial
and statistical data included in the Offering Memorandum presents fairly the
information
3
shown therein and such data has been compiled on a basis consistent with the
financial statements presented therein and the books and records of the Company.
The pro forma financial statements and other pro forma financial information
included in the Offering Memorandum present fairly the information shown
therein, have been prepared in accordance with the Commission's rules and
guidelines with respect to pro forma financial statements, have been properly
compiled on the pro forma bases described therein, and, in the opinion of the
Company, the assumptions used in the preparation thereof are reasonable and the
adjustments used therein are appropriate to give effect to the transactions or
circumstances referred to therein.
(f) Price Waterhouse LLP, who have certified certain of the
financial statements set forth in the Offering Memorandum, are independent
public accountants as defined in the Act and the rules and regulations
promulgated thereunder (the "Rules and Regulations").
(g) Except as set forth in the Offering Memorandum, there is
neither (i) any action, suit, claim or proceeding pending or, to the knowledge
of the Company, threatened against the Company or any of the Subsidiaries before
any court or administrative agency or otherwise which, if determined adversely
to the Company or any of its Subsidiaries, might result in, nor (ii) any
legislation, statute, regulation, rule or ordinance to the knowledge of the
Company proposed or pending before any legislative body or administrative
agency, which, if enacted or promulgated, might result in, any material adverse
change in the earnings, business, management, properties, assets, rights,
operations, condition (financial or otherwise) or prospects of the Company and
of the Subsidiaries taken as a whole or to prevent the consummation of the
transactions contemplated hereby,
(h) The Company and the Subsidiaries have good and marketable
title to all of the properties and assets reflected in the financial statements
(or as described in the Offering Memorandum) hereinabove described, subject to
no lien, mortgage, pledge, charge or encumbrance of any kind except those
reflected in such financial statements (or as described in the Offering
Memorandum) or which are not material in amount. The Company and the
Subsidiaries occupy their leased properties or proper-
4
ties subject to easement under valid and binding leases or easements,
respectively.
(i) The Company and the Subsidiaries have filed all Federal,
state, local and foreign income tax returns which have been required to be filed
and have paid all taxes indicated by said returns and all assessments received
by them or any of them to the extent that such taxes have become due and are not
being contested in good faith. All tax liabilities have been adequately
provided for in the financial statements of the Company.
(j) Since the date as of which information is given in the
Offering Memorandum, there has not been any material adverse change or any
development involving a prospective material adverse change in or affecting the
earnings, business, management, properties, assets (including for these purposes
the assets of the Memphis/Tunica Sellers (as defined in the Offering Memorandum)
to be sold pursuant to the Option Agreement (as defined below) as if they were
owned by the Company or any of its Subsidiaries), rights, operations, condition
(financial or otherwise), or prospects of the Company and its Subsidiaries taken
as a whole, whether or not occurring in the ordinary course of business, and
there has not been any material transaction entered into or any material
transaction that is probable of being entered into by the Company or the
Subsidiaries, other than transactions in the ordinary course of business and
changes and transactions described in the Offering Memorandum. The Company and
the Subsidiaries have no material contingent obligations which are not disclosed
in the Company's financial statements which are included in the Offering
Memorandum.
(k) Neither the Company nor any of the Subsidiaries is or, with
the giving of notice or lapse of time or both, will be, in violation of or in
default under its Articles of Incorporation or By-Laws as presently in effect or
under any agreement, lease, contract, indenture or other instrument or
obligation (including, but not limited to, the Credit Facility or the indenture
with respect to the Company's 9 3/4% Senior Subordinated Notes due 2006 (the
"Existing Indenture")) to which it is a party or by which it, or any of its
properties, is bound and which default is of material significance in respect of
the condition, financial or otherwise of the
5
Company and its Subsidiaries taken as a whole or the business, management,
properties, assets, rights, operations, condition (financial or otherwise) or
prospects of the Company and the Subsidiaries taken as a whole. The execution
and delivery of this Agreement, the registration agreement of even date herewith
relating to the Securities (the "Registration Agreement") and the Indenture and
the consummation of the transactions therein contemplated and the fulfillment of
the terms thereof will not conflict with or result in a breach of any of the
terms or provisions of, or constitute a default under, any indenture, mortgage,
deed of trust or other agreement or instrument to which the Company or any
Subsidiary is a party (including, but not limited to, the Credit Facility or the
Existing Indenture), or of the Articles of Incorporation or By-laws of the
Company as presently in effect or any Subsidiary or any order, rule or
regulation applicable to the Company or any Subsidiary of any court or of any
regulatory body or administrative agency or other governmental body having
jurisdiction.
(l) Each approval, consent, order, authorization, designation,
declaration or filing by or with any regulatory, administrative or other
governmental body necessary in connection with the execution and delivery by the
Company of this Agreement and the Indenture and the consummation of the
transactions herein contemplated (except such additional steps as may be
necessary to qualify the Securities under state securities or Blue Sky laws) has
been obtained or made and is in full force and effect.
(m) The Company and each of the Subsidiaries hold all material
licenses, consents, authorizations, approvals, orders, certificates and permits
(collectively, "Licenses") of and from, and have made all declarations and
filings with and satisfied all eligibility and other similar requirements
imposed by, all Federal, state, local and other governmental authorities, all
self-regulatory organizations and all courts and other tribunals, in each case
as required for the conduct of the business in which it is engaged, and each
such License is in full force and effect, except to the extent that the failure
to obtain any such License or to make any such declaration or filing or satisfy
any such requirement would not have a material adverse effect on the earnings,
business, management, properties, assets,
6
rights, operations, condition (financial or otherwise) or prospects of the
Company and its Subsidiaries, taken as a whole.
(n) The Company and its Subsidiaries are in compliance with all
applicable Federal, state and local laws and regulations relating to (i) zoning,
land use, protection of the environment, human health and safety or hazardous or
toxic substances, wastes, pollutants or contaminants and (ii) employee or
occupational safety, discrimination in hiring, promotion or pay of employees,
employee hours and wages or employee benefits, except where such noncompliance
would not, singly or in the aggregate, have a material adverse effect on the
earnings, business, management, properties, assets, rights, operations,
condition (financial or otherwise) or prospects of the Company and its
Subsidiaries taken as a whole.
(o) Neither the Company nor any of the Subsidiaries has
infringed any patents, patent rights, trade names, trademarks or copyrights,
which infringement is material to the business of the Company and the
Subsidiaries taken as a whole. The Company knows of no material infringement by
others of patents, patent rights, trade names, trademarks or copyrights owned by
or licensed to the Company.
(p) Neither the Company nor any Subsidiary is an "investment
company" within the meaning of such term under the Investment Company Act of
1940 (the "1940 Act") and the rules and regulations of the Commission
thereunder.
(q) The Company maintains a system of internal accounting
controls sufficient to provide reasonable assurances that (A) transactions are
executed in accordance with management's general or specific authorization; (B)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to
maintain accountability for assets; (C) access to assets is permitted only in
accordance with management's general or specific authorization; and (D) the
recorded accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
7
(r) The Company and each of its Subsidiaries carry, or are
covered by, insurance in such amounts and covering such risks as is adequate for
the conduct of their respective businesses and the value of their respective
properties and as is customary for companies engaged in similar industries.
(s) The Company is in compliance in all material respects with
all presently applicable provisions of the Employee Retirement Income Security
Act of 1974, as amended, including the regulations and published interpretations
thereunder ("ERISA"); no "reportable event" (as defined in ERISA) has occurred
with respect to any "pension plan" (as defined in ERISA) for which the Company
would have any liability; the Company has not incurred and does not expect to
incur liability under (A) Title IV of ERISA with respect to termination of, or
withdrawal from, any "pension plan" or (B) Sections 412 or 4971 of the Internal
Revenue Code of 1986, as amended, including the regulations and published
interpretations thereunder (the "Code"); and each "pension plan" for which the
Company would have any liability 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 would cause the loss of
such qualification.
(t) The Option and Asset Purchase Agreement, dated September 12,
1996, between the Company, ▇▇▇▇▇▇ Acquisition Corporation ("Acquisition
Corporation") and the Memphis/Tunica Sellers (the "Option Agreement") has been
duly authorized, executed and delivered by the parties thereto and constitutes a
valid and binding agreement of the parties thereto, enforceable against the
parties thereto in accordance with its terms, except to the extent that
enforcement thereof may be limited by (A) bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally and (B) general principles of equity.
(u) The Company confirms as of the date hereof that it is in
compliance with all provisions of Section 1 of Laws of Florida, Chapter 92-198,
AN ACT RELATING TO DISCLOSURE OF DOING BUSINESS WITH CUBA, and the Company
further agrees that if it commences engaging
8
in business with the government of Cuba or with any person or affiliate located
in Cuba after the date of the Offering Memorandum, or if the information
contained in the Offering Memorandum, if any, concerning the Company's business
with Cuba or with any person or affiliate located in Cuba changes in any
material way, the Company will provide the Florida Department of Banking and
Finance (the "Department") notice of such business or change, as appropriate, in
a form acceptable to the Department.
(v) The Securities have been duly and validly authorized by the
Company and the Securities, when they are authenticated by the Trustee and
issued, sold and delivered in accordance with this Agreement and the Indenture,
will have been duly and validly executed, authenticated, issued and delivered
and will constitute valid and binding obligations of the Company, enforceable
against the Company, in accordance with their terms and entitled to the benefits
provided by the Indenture, except to the extent that enforcement thereof may be
limited by (A) bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors' rights generally
and (B) general principles of equity.
(w) The Indenture and the Securities conform to the description
thereof contained in the Offering Memorandum, and the Indenture has been duly
and validly authorized and, when executed and delivered by the Company and the
Trustee, will constitute a valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, except to the
extent that enforcement thereof may be limited by (A) bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally and (B) general principles of equity.
(x) Each of this Agreement and the Registration Agreement has
been duly and validly authorized, executed and delivered by the Company and
constitutes a valid and binding obligation of the Company, enforceable against
the Company in accordance with its terms, except to the extent that enforcement
thereof may be limited by (A) bankruptcy, insolvency, reorganization, moratorium
or other similar laws now or hereafter in effect relating to
9
creditors' rights generally and (B) general principals of equity.
(y) When the Securities are issued and delivered pursuant to
this Agreement, such Securities will not be of the same class (within the
meaning of Rule 144A) as securities of the Company which are listed on a
national securities exchange registered under Section 6 of the Exchange Act of
1934 (the "Exchange Act") or quoted in a U.S. automated inter-dealer quotation
system.
(z) None of the Company or the Subsidiaries or any affiliate of
any of them (as defined in Rule 501(b) under the Act) has, directly or through
any agent, sold, offered for sale, solicited offers to buy or otherwise
negotiated in respect of, any security (as defined in the Act) which is subject
to integration with the sale of the Securities in a manner that would require
the registration of the Securities under the Act.
(aa) None of the Company or the Subsidiaries or any person
acting on their behalf has engaged, in connection with the offering of the
Securities, in any form of general solicitation or general advertising (as those
terms are used within the meaning of Regulation D under the Act); it has not
solicited offers for, or offered or sold, such Securities by means of any form
of general solicitation or general advertising (as those terms are used in
Regulation D under the Act) or in any manner involving a public offering within
the meaning of Section 4(2) of the Act.
2. PURCHASE, SALE AND DELIVERY OF THE SECURITIES. On the basis of the
representations, warranties, covenants and agreements herein contained, but
subject to the terms and conditions herein set forth, you agree to purchase from
the Company, at a purchase price of 98.5% of the principal amount thereof, plus
accrued interest, if any, from December 16, 1996 to the Closing Date.
Delivery of and payment of the purchase price for the Firm Securities
shall be made in your offices at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or
at such other location as may be mutually acceptable. Such delivery and payment
shall be made at 10:00 a.m., New York time, on December 16, 1996, or at such
other time as shall be agreed upon by you and the Company. The time
10
and date of such delivery and payment are herein called the "Closing Date."
Delivery of the Securities shall be made to you for your account against payment
of the purchase price for the Securities by wire transfer of immediately
available funds to an account or accounts to be designated by the Company at
least one business day prior to the Closing Date, and the Company shall promptly
reimburse you for the costs of obtaining such funds.
The Securities shall be registered in such name or names and in such
authorized denominations as you may request in writing at least two full
business days prior to the Closing Date. The Company will permit you to examine
and package such Securities for delivery at least one full business day prior to
the Closing Date.
The Initial Purchasers have advised the Company that they propose to
offer the Securities for resale upon the terms and conditions set forth in this
Agreement and in the Offering Memorandum. The Initial Purchasers hereby,
severally, and not jointly, represent and warrant to, and agree with, the
Company that they (i) have not and will not solicit offers for, or offer or
sell, such Securities by means of any form of general solicitation or general
advertising (as those terms are used in Regulation D under the Act) or in any
manner involving a public offering within the meaning of Section 4(2) of the
Act, (ii) will solicit offers for such Securities pursuant to Rule 144A or
resales not involving a public offering, as applicable, only from, and will
offer, sell or deliver such Securities, as part of its distribution, only to,
respectively, (A) persons in the United States whom it reasonably believes to be
qualified institutional buyers within the meaning of Rule 144A ("Qualified
Institutional Buyers") and (B) institutional "accredited investors," as defined
in Rule 501(a)(1), (2), (3) or (7) under the Act, provided, however, that such
"accredited investor" must complete and deliver to it an investment letter
substantially in the form of Annex A to the Offering Memorandum prior to
acceptance of any order, (iii) are Qualified Institutional Buyers, with such
knowledge and experience in financial and business matters as are necessary in
order to evaluate the merits and risks of an investment in the Securities and
(iv) will, during their initial distribution of the Securities, unless
prohibited by applicable law, furnish to each person to whom they
11
offer any Securities a copy of the Preliminary Offering Memorandum or inform
each such person that a copy of such Preliminary Offering Memorandum is
available upon request and will, during their initial distribution of the
Securities, furnish to each person to whom they sell any Securities a copy of
the Offering Memorandum.
3. COVENANTS OF THE COMPANY: The Company covenants and agrees with
you as follows:
(a) The Company will cooperate with the Initial Purchasers in
endeavoring to qualify the Securities for sale under the securities laws of such
jurisdictions as the Initial Purchasers may reasonably have designated in
writing and will make such applications, file such documents, and furnish such
information as may be reasonably required for that purpose, provided the Company
shall not be required to qualify as a foreign corporation or to file a general
consent to service of process in any jurisdiction where it is not now so
qualified or required to file such a consent. The Company will, from time to
time, prepare and file such statements, reports, and other documents, as are or
may be required to continue such qualifications in effect for so long a period
as the Initial Purchasers may reasonably request for distribution of the
Securities.
(b) At any time prior to the completion of the distribution of
the Securities by the Initial Purchasers to purchasers who are not affiliates
thereof, the Company will give the Initial Purchasers notice of its intention to
prepare any supplement or amendment to the Offering Memorandum, will furnish the
Initial Purchasers with copies of any such amendment, supplement or other
document a reasonable amount of time prior to such proposed filing or use, and
will not use any such amendment or supplement to which the Initial Purchasers or
counsel for the Initial Purchasers shall object within five days of being
furnished a copy thereof.
(c) The Company has furnished or will furnish to the Initial
Purchasers such number of copies of the Offering Memorandum (as amended or
supplemented) as the Initial Purchasers may reasonably request.
(d) At any time prior to the completion of the distribution of
the Securities by the Initial
12
Purchasers to purchasers who are not affiliates thereof, if any event shall
occur as a result of which it is necessary, in the reasonable opinion of counsel
for the Initial Purchasers, to amend or supplement the Offering Memorandum in
order to make the Offering Memorandum not misleading in the light of the
circumstances existing at the time it is delivered to a purchaser, the Company
will forthwith amend or supplement the Offering Memorandum (in form and
substance reasonably satisfactory to counsel for the Initial Purchasers) so
that, as so amended or supplemented, the Offering Memorandum will not include an
untrue statement of 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 the purchaser, not misleading, and the Company
will furnish to the Initial Purchasers a reasonable number of copies of such
amendment or supplement.
(e) At any time prior to completion of the distribution of the
Securities by the Initial Purchasers to purchasers who are not affiliates
thereof, the Company will, as required, subject to Section 3(b), file promptly
all documents required to be filed with the Commission pursuant to Section 13,
14, or 15(d) of the Exchange Act.
(f) None of the Company and its Subsidiaries will solicit any
offer to buy or offer or sell the Securities by means of any form of general
solicitation or general advertising.
(g) None of the Company and its Subsidiaries or any affiliate of
any of them (as defined in Rule 501(b) of the Act) will offer, sell or solicit
offers to buy or otherwise negotiate in respect of any security (as defined in
the Act) which will be integrated with the sale of the Securities in a manner
that would require the registration of the Securities under the Act.
(h) During the period from the Closing Date to three years
after the Closing Date, the Company and its Subsidiaries will not, and will
not permit any of "affiliate" (as defined in Rule 144 under the Act) of the
Company to, resell any of the Securities that have been reacquired by them,
except for Securities purchased by the Company and its Subsidiaries or any of
their affiliates
13
and resold in a transaction registered under the Act.
(i) The Company will, so long as the Securities are outstanding
and are "restricted securities" within the meaning of Rule 144(a)(3) under the
Act, either (i) file reports and other information with the Commission under
Section 13 or 15(d) of the Exchange Act, or (ii) in the event it is not subject
to Section 13 or 15(d) of the Exchange Act, make available to holders of the
Securities and prospective purchasers of the Securities designated by such
holders, upon request of such prospective purchasers, the information required
to be delivered pursuant to Rule 144A(d)(4) under the Act to permit compliance
with Rule 144A in connection with resales of the Securities.
(j) The Company will, if requested by the Initial Purchasers,
use its best efforts in cooperation with the Initial Purchasers to permit the
Securities to be eligible for clearance and settlement through The Depository
Trust Company.
(k) Each of the Securities will bear the legend contained in
"Notice to Investors" in the Offering Memorandum and upon the other terms stated
therein, except after such Securities are resold or exchanged pursuant to a
registration statement effective under the Act.
(l) The Company will, for a period of five years from the
Closing Date, deliver to the Initial Purchasers copies of annual reports and
copies of all other documents, reports and information furnished by the Company
to its stockholders or filed with any securities exchange pursuant to the
requirements of such exchange or with the Commission pursuant to the Act or the
Exchange Act. The Company will deliver to the Initial Purchasers similar
reports with respect to significant subsidiaries, as that term is defined in the
Rules and Regulations, which are not consolidated in the Company's financial
statements.
(m) The Company shall apply the net proceeds of its sale of the
Securities as set forth in the Offering Memorandum.
14
(n) The Company shall not invest, or otherwise use the proceeds
received by the Company from its sale of the Securities in such a manner as
would require the Company or any of the Subsidiaries to register as an
investment company under the 1940 Act or the rules and regulations thereunder.
(o) For a period of 180 days after the date of this Agreement,
except as described in or contemplated by the Offering Memorandum, the Company
will not, without your prior written consent, issue, sell, offer or agree to
sell, or otherwise dispose of, directly or indirectly, any debt securities of
the Company.
(p) The Company will not claim the benefit of any usury laws
against any holders of the Securities.
4. PAYMENT OF EXPENSE. Whether or not the transactions contemplated
in this Agreement are consummated or this Agreement is terminated, the Company
hereby agrees to pay all costs and expenses incident to the performance of the
obligations of the Company hereunder, including those in connection with
(i) preparing, printing, duplicating, filing and distributing the Offering
Memorandum and all amendments thereof, any preliminary offering memoranda and
any amendments thereof or supplements thereto (including, without limitation,
fees and expenses of the Company's accountants and counsel), the Indenture, the
underwriting documents (including this Agreement and the Registration
Agreement), and all other documents related to the offering of the Securities
(including those supplied to you in quantities as hereinabove stated), (ii) the
issuance, transfer and delivery of the Securities to you, including any transfer
or other taxes payable thereon, (iii) the qualification of the Securities under
state and foreign securities or Blue Sky laws and the eligibility of the
Securities for investment under state and foreign law, including the costs of
printing and mailing a preliminary and final "Blue Sky Survey" and a "Legal
Investment Memorandum" and the reasonable fees of your counsel and such
counsel's reasonable disbursements in relation thereto, (iv) the rating of the
Securities by one or more rating agencies and (v) the fees and expenses of the
Trustee and any agent of the Trustee and the fees and disbursements of
15
counsel for the Trustee in connection with the Indenture and the Securities.
5. CONDITIONS OF INITIAL PURCHASERS' OBLIGATIONS. Your obligations to
purchase and pay for the Securities on the Closing Date shall be subject to the
accuracy of the representations and warranties of the Company contained as of
the date hereof and as of the Closing Date, to the absence from any
certificates, opinions, written statements or letters furnished to you pursuant
to this Section 5 or to your counsel, Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
("Initial Purchasers' Counsel") pursuant to this Section 5 of any material
misstatement or omission, to the performance by the Company of its obligations
hereunder, and to the following additional conditions:
(a) The Underwriters shall have received on the Closing Date the
opinion of Winston & ▇▇▇▇▇▇, counsel for the Company, dated the Closing Date,
addressed to the Initial Purchasers to the effect that:
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws of
the State of Illinois, with corporate power and authority to own or
lease its properties and conduct its business as described in the
Offering Memorandum; each of the Subsidiaries has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, with
corporate power and authority to own or lease its properties and
conduct its business as described in the Offering Memorandum; the
Company and each of the Subsidiaries are duly qualified to transact
business in all jurisdictions in which the failure to qualify would
have a materially adverse effect upon the business of the Company
taken as a whole; and the outstanding shares of capital stock of each
of the Subsidiaries have been duly authorized and validly issued and
are fully paid and non-assessable and are owned by the Company or a
Subsidiary; and, to the best of such counsel's knowledge, the
outstanding shares of capital stock of each of the Subsidiaries is
owned free
16
and clear of all liens, encumbrances and equities and claims except for the
Existing Stock Pledges, and no options, warrants or other rights to
purchase, agreements or other obligations to issue or other rights to
convert any obligations into any shares of capital stock or of ownership
interests in the Subsidiaries are outstanding.
(ii) The Company has authorized and outstanding
capital stock as set forth under the caption "Capitalization" in the
Offering Memorandum; the authorized shares of the Company's common
stock have been duly authorized; the outstanding shares of the
Company's common stock have been duly authorized and validly issued
and are fully paid and non-assessable.
(iii) The statements in the Offering Memorandum under
the captions "Management's Discussion and Analysis of Financial
Condition and Results of Operations -- Liquidity and Capital
Resources," "Description of Indebtedness and Other Commitments,"
"Certain Transactions," and "Management -- The 1996 Warrant Plan," as
such statements constitute a summary of the legal matters or documents
referred to therein or matters of law, fairly summarize in all
material respects the information required to be shown (except that
such counsel need express no opinion as to the financial or
statistical data therein).
(iv) Such counsel does not know of any contracts or
other documents of a character required to be described in the
Offering Memorandum which are not so described, and such contracts and
documents as are summarized in the Offering Memorandum are fairly
summarized in all material respects.
(v) Such counsel knows of no material legal or
governmental proceedings pending or threatened against the Company or
any of the Subsidiaries except as set forth in the Offering
Memorandum.
17
(vi) The execution and delivery of this Agreement, the
Registration Agreement and the Indenture and the consummation of the
transactions therein contemplated do not and will not conflict with or
result in a breach of any of the terms or provisions of, or constitute
a default under, the Articles of Incorporation or By-laws of the
Company, or any material agreement or instrument to which the Company
or any of the Subsidiaries is a party or by which the Company or any
of the Subsidiaries is bound.
(vii) Each of this Agreement and the Registration
Agreement has been duly authorized, executed and delivered by the
Company and the Registration Agreement constitutes a valid and binding
obligation of the Company, enforceable against the Company in
accordance with its terms, except to the extent that enforcement
thereof may be limited by (A) bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect relating
to creditors' rights generally and (B) general principals of equity.
(viii) No approval, consent, order, authorization,
designation, declaration or filing by or with any regulatory,
administrative or other governmental body which has not been received
or granted is required in connection with the execution and delivery
of this Agreement and the Indenture and the consummation of the
transactions herein contemplated (other than as may be required by
state securities and Blue Sky laws as to which such counsel need
express no opinion).
(ix) The Company is not, and will not become, as a
result of the consummation of the transactions contemplated by this
Agreement, and application of the net proceeds therefrom as described
in the Offering Memorandum, required to register as an investment
company under the 1940 Act.
18
(x) The Option Agreement has been duly authorized,
executed and delivered by each of the Company and Acquisition
Corporation and constitutes a valid and binding agreement of each of
the Company and Acquisition Corporation, enforceable against each of
the Company and Acquisition Corporation in accordance with its terms,
except to the extent that enforcement thereof may be limited by
(A) bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors' rights
generally and (B) general principles of equity.
(xi) The Indenture has been duly and validly
authorized, executed and delivered by the Company and constitutes a
valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms, except as such enforcement may
be subject to (A) bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer or conveyance or other similar laws now or hereafter
in effect relating to creditors' rights generally and (B) general
principles of equity (regardless of whether such enforcement may be
sought in a proceeding in equity or at law), and except to the extent
that a waiver of rights under any usury laws may be unenforceable. No
taxes or fees are required to be paid with respect to the execution of
the Indenture by the Company and the issuance of the Securities. The
Securities have been duly and validly authorized, executed, authenticated,
issued and delivered and constitute valid and binding obligations of the
Company, enforceable against the Company in accordance with their terms
and entitled to the benefits of the Indenture, except as such enforcement
may be subject to (A) bankruptcy, insolvency, reorganization, fraudulent
transfer or conveyance, moratorium or other similar laws now or hereafter
in effect relating to creditors' rights generally and (B) general
principles of equity (regardless of whether such enforcement may be
sought in a proceeding in equity or at law), and except to the extent
that a waiver of rights
19
under any usury laws may be unenforceable. The Initial Purchasers will
receive good, valid and marketable title to the Securities being sold by
the Company hereunder, free and clear of all liens, encumbrances, claims,
security interests, restrictions or transfer, shareholders' agreements,
voting trusts and other defects of title whatsoever. The Securities and
the Indenture conform to the descriptions thereof contained in the Offering
Memorandum.
(xii) the offer, issuance, sale and delivery of the
Securities to the Initial Purchasers and, assuming compliance with the
transfer restrictions, the reoffer, resale and delivery by the Initial
Purchasers in the manner and to the persons contemplated by this
Agreement and the Offering Memorandum do not require registration
under the Act or qualification of the Indenture under the Trust
Indenture Act of 1939.
In addition to the matters set forth above, such opinion shall also
include a statement to the effect that no facts have come to the attention of
such counsel which led them to believe that either the Offering Memorandum or
any amendment or supplement thereto, as of its date and the Closing Date,
contained an untrue statement of a material fact or omitted to state a material
fact necessary in order to make the statements, in the light of the
circumstances under which they are made, not misleading (except that such
counsel need express no view as to financial statements, schedules and
statistical information therein). With respect to such statement, Winston &
▇▇▇▇▇▇ may state that their belief is based upon the procedures set forth
therein, but is without independent check and verification.
The Initial Purchasers shall also have received on the Closing Date
the opinion of local counsel for the Company experienced in such matters in
Jacksonville, dated the Closing Date addressed to the Initial Purchasers to the
effect that the statements under the caption "Business-Government Regulation,"
insofar as such statements constitute a summary of regulatory matters in such
jurisdiction relating to the outdoor advertising indus-
20
try, fairly describe the regulatory matters relating to such industry.
(b) The Initial Purchasers shall have received from Skadden,
Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Initial Purchasers, an opinion
dated the Closing Date as to such matters as the Initial Purchasers may
reasonably require. In addition to the matters set forth above, such opinion
shall also include a statement to the effect that nothing has come to the
attention of such counsel which leads them to believe that either the Offering
Memorandum or any amendment or supplement thereto, as of its date and the
Closing Date, contained an untrue statement of a material fact or omitted to
state a material fact, necessary in order to make the statements, in the light
of the circumstances under which they are made, not misleading (except that such
counsel need express no view as to financial statements, schedules and
statistical information therein). With respect to such statement, Skadden,
Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP may state that their belief is based upon the
procedures set forth therein, but is without independent check and verification.
(c) The Initial Purchase shall have received at or prior to the
Closing Date from Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP a memorandum or
summary, in form and substance satisfactory to the Initial Purchasers, with
respect to the qualification for offering and sale by the Initial Purchasers of
the Securities under the state securities or Blue Sky laws of such jurisdictions
as the Initial Purchasers may reasonably have designated to the Company.
(d) The Initial Purchasers shall have received, on each of the
dates hereof and the Closing Date letters dated the date hereof or the Closing
Date, as the case may be, in form and substance satisfactory to you, of Price
Waterhouse LLP, Ernst & Young LLP, BDO ▇▇▇▇▇▇▇, LLP and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP
confirming that they are independent public accountants within the meaning of
the Act and the applicable published Rules and Regulations thereunder and
stating that in their opinion the financial statements and schedules examined by
them comply in form in all material respects with the applicable accounting
requirements of the Act and the related published Rules and Regulations; and
containing such other
21
statements and information as is ordinarily included in accountants' "comfort
letters" to Initial Purchasers with respect to the financial statements and
certain financial and statistical information contained in the Offering
Memorandum.
(e) The Securities shall have been approved for inclusion on the
PORTAL system, subject to official issuance.
(f) The Registration Agreement shall have been executed and
delivered by the Company.
(g) The Initial Purchasers shall have received on the Closing
Date a certificate or certificates of the President and Chief Executive Officer
and the Chief Financial Officer of the Company to the effect that, as of the
Closing Date each of them severally represents as follows:
(i) The representations and warranties of the Company
contained in Section 1 hereof are true and correct as of the Closing
Date;
(ii) He has carefully examined the Offering Memorandum
and, in his opinion, as of the date of the Offering Memorandum, the
statements contained in the Offering Memorandum were true and correct,
and such Offering Memorandum did not omit to state a material fact
required to be stated therein or necessary in order to make the
statements therein not misleading, and since the date of the Offering
Memorandum, no event has occurred which should have been set forth in
a supplement to or an amendment of the Offering Memorandum which has
not been so set forth in such supplement or amendment; and
(iii) Since the date as of which information is given
in the Offering Memorandum, there has not been any material adverse
change or any development involving a prospective material adverse
change in or affecting the condition, financial or otherwise, of the
Company and its Subsidiaries taken as a
22
whole or the earnings, business, management, properties, assets, rights,
operations, condition (financial or otherwise) or prospects of the Company
and the Subsidiaries taken as a whole, whether or not arising in the
ordinary course of business.
The opinions and certificates mentioned in this Agreement shall be
deemed to be in compliance with the provisions hereof only if they are in all
material respects satisfactory to the Initial Purchasers and to Skadden, Arps,
Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters.
If any of the conditions specified in this Section 5 shall not have
been fulfilled when and as required by this Agreement, or if any of the
certificates, opinions, written statements or letters furnished to you or to
Initial Purchasers' Counsel pursuant to this Section 5 shall not be in all
material respects reasonably satisfactory in form and substance to you and to
Initial Purchasers' Counsel, all your obligations hereunder may be cancelled by
you at, or at any time prior to, the Closing Date. Notice of such cancellation
shall be given to the Company in writing, or by telephone, telex or telegraph,
confirmed in writing.
6 INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless you and
each person, if any, who controls you within the meaning of Section 15 of the
Act or Section 20(a) of the Exchange Act, against any and all losses,
liabilities, claims, damages and out-of-pocket expenses whatsoever (including
but not limited to reasonable attorneys' fees and any and all reasonable
expenses whatsoever incurred in investigating, preparing or defending against
any litigation, commenced or threatened, or any claim whatsoever, and any and
all amounts paid in settlement of any claim or litigation), joint or several, to
which you or any such person may become subject under the Act, the Exchange Act
or otherwise, insofar as such losses, liabilities, claims, damages or expenses
(or actions in respect thereof) 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 in any supple-
23
ment thereto or amendment thereof, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading;
PROVIDED, HOWEVER, that the Company will not be liable in any such case to the
extent, but only to the extent, that any such loss, liability, claim, damage or
expense arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made therein in reliance upon
and in conformity with written information furnished to the Company by or on
behalf of you expressly for use therein and PROVIDED, further, that the Company
will not be liable to you or any person who controls you with respect to any
untrue statement or omission or alleged untrue statement or omission made in the
Preliminary Offering Memorandum which is corrected in the Offering Memorandum,
or in any supplement thereto or amendment thereof, if the Company sustains the
burden of proving that you sold securities to the person asserting any such
loss, liability, claim or damage without sending or giving, at or prior to the
written confirmation of the sale of such securities to such person, a copy of
the Offering Memorandum (as amended or supplemented), if the Company had
previously furnished copies thereof to you. This indemnity agreement will be in
addition to any liability which the Company may otherwise have, including, under
this Agreement.
(b) You agree to indemnify and hold harmless the Company, each
of its directors and each other person, if any, who controls the Company within
the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act,
against any losses, liabilities, claims, damages and expenses whatsoever
(including but not limited to attorneys' fees and any and all expenses
whatsoever incurred in investigating, preparing or defending against any
litigation, commenced or threatened, or any claim whatsoever and any and all
amounts paid in settlement of any claim or litigation), joint or several, to
which they or any of them may become subject under the Act, the Exchange Act or
otherwise, insofar as such losses, liabilities, claims, damages or expenses (or
actions in respect thereof) 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 in any amendment thereof or
supplement thereto, or arise out of or are based upon
24
the omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that any such loss, liability,
claim, damage or expense arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished to
the Company by or on behalf of you expressly for use therein; PROVIDED, HOWEVER,
that in no case shall you be liable or responsible for any amount in excess of
the underwriting discount received by you. This indemnity will be in addition
to any liability which you may otherwise have including under this Agreement.
The Company acknowledges that the statements set forth in the last paragraph of
the cover page and the third paragraph under the caption "Plan of Distribution"
in the Offering Memorandum constitute the only information furnished in writing
by or on behalf of you expressly for use in the Offering Memorandum or the
Preliminary Offering Memorandum or in any amendment thereof or supplement
thereto, as the case may be.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify each party against whom
indemnification is to be sought in writing of the commencement thereof (but the
failure so to notify an indemnifying party shall not relieve it from any
liability which it may have under this Section 6). In case any such action is
brought against any indemnified party, and it notifies an indemnifying party of
the commencement thereof, the indemnifying party will be entitled to participate
therein, and to the extent it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof with counsel reasonably
satisfactory to such indemnified party. Notwithstanding the foregoing, the
indemnified party or parties shall have the right to employ its or their own
counsel in any such case, but the fees and expenses of such counsel shall be at
the expense of such indemnified party or parties unless (i) the employment of
such counsel shall have been authorized in writing by one of the indemnifying
parties in connection
25
with the defense of such action, (ii) the indemnifying parties shall not have
employed counsel to have charge of the defense of such action within a
reasonable time after notice of commencement of the action, or (iii) such
indemnified party or parties shall have reasonably concluded that there may be
defenses available to it or them which are different from or additional to those
available to one or all of the indemnifying parties (in which case the
indemnifying parties shall not have the right to direct the defense of such
action on behalf of the indemnified party or parties), in any of which events
such fees and expenses shall be borne by the indemnifying parties, it being
understood, however, that the indemnifying parties shall not, in connection with
any one such action or separate but substantially similar related actions
arising out of the same general allegations or circumstances, be liable for fees
and expenses of more than one separate firm of attorneys (in addition to any
local counsel) at any time for the indemnified parties. Anything in this
subsection to the contrary notwithstanding, an indemnifying party shall not be
liable for any settlement of any claim or action effected without its written
consent; PROVIDED, HOWEVER, that such consent was not unreasonably withheld.
7. CONTRIBUTION. In order to provide for contribution in
circumstances in which the indemnification provided for in Section 6 hereof is
for any reason held to be unavailable from any indemnifying party or is
insufficient to hold harmless a party indemnified thereunder, the Company and
you shall contribute to the aggregate losses, claims, damages, liabilities and
expenses of the nature contemplated by such indemnification provision (including
any investigation, legal and other expenses incurred in connection with, and any
amount paid in settlement of, any action, suit or proceeding or any claims
asserted, but after deducting in the case of losses, claims, damages,
liabilities and expenses suffered by the Company, any contribution received by
the Company from persons, other than you, who may also be liable for
contribution, including persons who control the Company within the meaning of
Section 15 of the Act or Section 20(a) of the Exchange Act and directors of the
Company) to which the Company and you may be subject, in such proportions as is
appropriate to reflect the relative benefits received by the Company and you
from the offering of the Securities or, if such allocation is not
26
permitted by applicable law or indemnification is not available as a result of
the indemnifying party not having received notice as provided in Section 6
hereof, in such proportion as is appropriate to reflect not only the relative
benefits referred to above but also the relative fault of the Company and you in
connection with the statements or omissions which resulted in such losses,
claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative benefits received by the Company and you
shall be deemed to be in the same proportion as (x) the total proceeds from the
offering (net of underwriting discounts and commissions but before deducting
expenses) received by the Company and (y) the underwriting discounts and
commissions received by you, respectively, in each case as set forth in the
table on the cover page of the Offering Memorandum. The relative fault of the
Company and of you 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 you and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Company and you agree that it would not be just and equitable if
contribution pursuant to this Section 7 were determined by pro rata allocation
or by any other method of allocation which does not take account of the
equitable considerations referred to above. Notwithstanding the provisions of
this Section 7, (i) in no case shall you be liable or responsible for any amount
in excess of the underwriting discount applicable to the Securities purchased by
you hereunder, and (ii) no person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
Notwithstanding the provisions of this Section 7, you shall not be required to
contribute any amount in excess of the amount by which the total price at which
the Securities purchased by you hereunder exceeds the amount of any damages that
you have otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. For purposes of this
Section 7, each person, if any, who controls you within the meaning of
Section 15 of the Act or Section 20(a) of the Exchange Act shall have the same
rights to contribution as you, and each person, if any,
27
who controls the Company within the meaning of Section 15 of the Act or
Section 20(a) of the Exchange Act and each director of the Company shall have
the same rights to contribution as the Company, subject in each case to clauses
(i) and (ii) of this Section 7. Any party entitled to contribution will,
promptly after receipt of notice of commencement of any action, suit or
proceeding against such party in respect of which a claim for contribution may
be made against another party or parties, notify each party or parties from whom
contribution may be sought, but the omission to so notify such party or parties
shall not relieve the party or parties from whom contribution may be sought from
any obligation it or they may have under this Section 7 or otherwise. No party
shall be liable for contribution with respect to any action or claim settled
without its consent; PROVIDED, HOWEVER, that such consent was not unreasonably
withheld.
8. DEFAULT BY AN INITIAL PURCHASER.
(a) If any Initial Purchaser shall default in its obligation to
purchase the Securities hereunder, the other Initial Purchaser may in its
discretion arrange for itself or for another party or parties to purchase such
Securities to which such default relates on the terms contained herein. In the
event that within five (5) calendar days after such a default you do not arrange
for the purchase of the Securities to which such default relates as provided in
this Section 8, this Agreement shall thereupon terminate, without liability on
the part of the Company with respect thereto (except in each case as provided in
Section 4, 6(a) and 7 hereof) or the non-defaulting Initial Purchaser, but
nothing in this Agreement shall relieve a defaulting Initial Purchaser of its
liability, if any, to the other Initial Purchaser and the Company for damages
occasioned by its or their default hereunder.
(b) In the event that the Securities to which the default
relates are to be purchased by the non-defaulting Initial Purchaser, or are to
be purchased by another party or parties as aforesaid, you or the Company shall
have the right to postpone the Closing Date for a period, not exceeding seven
(7) business days, in order to effect whatever changes may thereby be made
necessary in the Offering Memorandum or in any other documents and arrangements.
The term "Initial Purchaser" as used in
28
this Agreement shall include any party substituted under this Section 8 with
like effect as if it had originally been a party to this Agreement with respect
to such Securities.
9. SURVIVAL OF REPRESENTATIONS AND AGREEMENTS.
All representations and warranties, covenants and agreements of
you and the Company contained in this Agreement, including the agreements
contained in Section 4, the indemnity agreements contained in Section 6 and the
contribution agreements contained in Section 7, shall remain operative and in
full force and effect regardless of any investigation made by or on behalf of
you or any controlling person thereof or by or on behalf of the Company, any of
its officers and directors or any controlling person thereof, and shall survive
delivery of any payment for the Securities to and by you. The representations
contained in Section 1 and the agreements contained in Sections 4, 6, 7 and
10(c) hereof shall survive the termination of this Agreement including pursuant
to Section 10 hereof.
10. TERMINATION.
(a) You shall have the right to terminate this Agreement at any
time prior to the Closing Date if (A) any domestic or international event or act
or occurrence has materially disrupted, or in your opinion will in the immediate
future materially disrupt, the market for the Company's securities or securities
in general; or (B) if trading on the New York or American Stock Exchanges shall
have been suspended, or minimum or maximum prices for trading shall have been
fixed, or maximum ranges for prices for securities shall have been required, on
the New York or American Stock Exchanges by the New York or American Stock
Exchanges or by order of the Commission or any other governmental authority
having jurisdiction; or (C) if a banking moratorium has been declared by a state
or federal authority or if any new restriction materially adversely affecting
the distribution of the Securities shall have become effective; or (D)(i) if the
United States becomes engaged in hostilities or there is an escalation of
hostilities involving the United States or there is a declaration of a national
emergency or war by the United States or (ii) if there shall have been a change
in political, financial or economic conditions if the effect of any such event
in (i)
29
or (ii) is such as in your judgment makes it impracticable or inadvisable to
proceed with the offering, sale and delivery of the Securities on the terms
contemplated by the Prospectus.
(b) Any notice of termination pursuant to this Section 10 shall
be by telephone, telex, or telegraph, confirmed in writing by letter.
(c) If this Agreement shall be terminated pursuant to any of the
provisions hereof (otherwise than pursuant to (i) notification by you as
provided in Section 10(a) hereof, or if the sale of the Securities provided for
herein is not consummated because any condition to your obligations set forth
herein is not satisfied or because of any refusal, inability or failure on the
part of the Company to perform any agreement herein or comply with any provision
hereof, the Company will, subject to demand by you, reimburse you for all out-
of-pocket expenses (including the fees and expenses of your counsel), incurred
by you in connection herewith.
11. NOTICE. All communications hereunder, except as may be otherwise
specifically provided herein, shall be in writing and, if sent to you shall be
mailed, delivered, or telexed or telegraphed and confirmed in writing, to Bear,
▇▇▇▇▇▇▇ & Co. Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: Corporate
Finance Department; if sent to the Company, shall be mailed, delivered, or
telegraphed and confirmed in writing to Universal Outdoor, Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: Chief Financial Officer.
12. PARTIES. This Agreement shall inure solely to the benefit of,
and shall be binding upon you and the Company and the controlling persons,
directors, officers, employees and agents referred to in Sections 6 and 7,
and their respective successors and assigns, and no other person shall have
or be construed to have any legal or equitable right, remedy or claim under
or in respect of or by virtue of this Agreement or any provision herein
contained. The term "successors and assigns" shall not include a purchaser,
in its capacity as such, of Securities from you.
13. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW
30
YORK, BUT WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original but all of which together shall constitute one
and the same instrument.
31
If the foregoing correctly sets forth the understanding between you
and the Company, please so indicate in the space provided below for that
purpose, whereupon this letter shall constitute a binding agreement between us.
Very truly yours,
UNIVERSAL OUTDOOR, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
Accepted, as of the date first above written.
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
BT SECURITIES CORPORATION
By: BEAR, ▇▇▇▇▇▇▇ & CO. INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Senior Managing Director
32