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Exhibit 10.1
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SECURITIES PURCHASE AGREEMENT
by and among
SPANISH BROADCASTING SYSTEM, INC.,
(a Delaware corporation)
as Issuer
SPANISH BROADCASTING SYSTEM, INC.
(a New Jersey corporation),
SPANISH BROADCASTING SYSTEM OF CALIFORNIA, INC.,
SPANISH BROADCASTING SYSTEM OF FLORIDA, INC.,
SPANISH BROADCASTING SYSTEM NETWORK, INC.,
SBS PROMOTIONS, INC.,
▇▇▇▇▇▇▇ HOLDINGS, INC. and
SBS OF GREATER NEW YORK, INC.,
as Guarantors,
and
CIBC WOOD GUNDY SECURITIES CORP.,
as Initial Purchaser
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Dated as of March 24, 1997
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
Section 1.1. Definitions ...................................... 4
Section 1.2. Accounting Terms; Financial
Statements ..................................... 10
ARTICLE II
ISSUE OF SECURITIES; PURCHASE AND SALE OF
SECURITIES; RIGHTS OF HOLDERS OF SECURITIES;
OFFERING BY INITIAL PURCHASER
Section 2.1. Issue of Securities .............................. 11
Section 2.2. Purchase, Sale and Delivery of
Securities...................................... 11
Section 2.3. Registration Rights of Holders of
Securities...................................... 12
Section 2.4. Offering by the Initial Purchaser ................ 13
ARTICLE III
REPRESENTATIONS AND WARRANTIES; RESALE OF SECURITIES
Section 3.1. Representations and Warranties of
the Company and the Guarantors.................. 13
Section 3.2. Resale of Shares ................................. 28
ARTICLE IV
CONDITIONS PRECEDENT TO CLOSING
Section 4.1. Conditions Precedent to Obligations
of the Initial Purchaser ....................... 29
ARTICLE V
COVENANTS
Section 5.1. Covenants ........................................ 32
ARTICLE VI
FEES
Section 6.1 Costs, Expenses and Taxes ........................ 35
ARTICLE VII
INDEMNITY
Section 7.1. Indemnity ........................................ 36
Section 7.2. Contribution ..................................... 40
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Section 7.3. Registration Rights .............................. 41
ARTICLE VIII
MISCELLANEOUS
Section 8.1. Survival of Provisions ........................... 41
Section 8.2. Termination ...................................... 41
Section 8.3. No Waiver; Modifications in
Writing ........................................ 43
Section 8.4 Information Supplied by the Initial
Purchaser ...................................... 43
Section 8.5. Communications ................................... 44
Section 8.6. Execution in Counterparts ........................ 44
Section 8.7. Successors ....................................... 44
Section 8.8. Governing Law .................................... 45
Section 8.9. Severability of Provisions ....................... 45
Section 8.10. Headings ......................................... 45
SIGNATURE PAGE
EXHIBITS
Exhibit 1 Form of Opinion of Kaye, Scholer, ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Handler,
LLP
Exhibit 2 Form of Opinion of Lowenthal, Landau, ▇▇▇▇▇▇▇ & Bring
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SECURITIES PURCHASE AGREEMENT, dated as of March 24, 1997 (the
"Agreement"), by and among SPANISH BROADCASTING SYSTEM, INC., a Delaware
corporation (the "Company"), the Guarantors party hereto and CIBC WOOD GUNDY
SECURITIES CORP. (the "Initial Purchaser").
In consideration of the mutual covenants and agreements set forth
herein and for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1. Definitions. As used in this Agreement, and unless the
context requires a different meaning, the following terms have the meanings
indicated:
"Accredited Investor" has the meaning provided therefor in Section
3.2 of this Agreement.
"Act" means the Securities Act of 1933, as amended, and the rules
and regulations of the Commission thereunder.
"Affiliate" means, with respect to any Person, any other Person
which directly or indirectly through one or more intermediaries controls, or is
controlled by, or is under common control with, the Person in question. For
purposes of this definition, "control" (including, with correlative meanings,
the terms "controlling", "controlled by" and "under common control with"), as
used with respect to any Person, means the possession, directly or indirectly,
of the power to direct or cause the direction of the management and policies of
such Person, whether through the ownership of voting securities, by agreement or
otherwise; provided, however, that beneficial ownership of at least 10% of the
voting securities of a Person shall be deemed to be control.
"Agreement" means this Agreement, as the same may be amended,
supplemented or modified in accordance with the terms hereof.
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"Basic Documents" means, collectively, the Indenture, the Notes, the
Guarantees, the Notes Registration Rights Agreement, the Certificate of
Designation, the Shares, the Debenture Indenture, the Preferred Stock
Registration Rights Agreement, the Warrant Agreement, the Warrants, the Common
Stock Registration Rights Agreement, the Unit Agreement, the Units and this
Agreement.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in the City of New York
are authorized or obligated by law to close.
"Certificate of Designation" means the certificate of designation
under which the Shares will be issued.
"Certificate of Incorporation" means the certificate of
incorporation of the Company.
"Class A Common Stock" means the Class A Common Stock, par value
$.01 per share, of the Company.
"Class B Common Stock" means the Class B Common Stock, par value
$.01 per share, of the Company.
"Closing" has the meaning set forth in Section 2.2(b)
of this Agreement.
"Code" means the Internal Revenue Code of 1986, as
amended.
"Commission" means the Securities and Exchange Commission or any
similar agency then having jurisdiction to enforce the Act.
"Common Stock Registration Rights Agreement" means the Common Stock
Registration Rights Agreement dated as of March 15, 1997 among the Company, the
Management Stockholders party thereto and the Initial Purchaser.
"Commonly Controlled Entity" has the meaning set forth in Section
3.1(z) of this Agreement.
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"Debenture Guarantees" means the guarantees of the Debentures and
the In-kind Debentures issued under the Debenture Indenture.
"Debenture Indenture" means the indenture dated as of March 15, 1997
among the Company, the Guarantors and the Debenture Trustee.
"Debenture Trustee" means United States Trust Company of New York,
as trustee under the Debenture Indenture.
"Debentures" has the meaning set forth in Section 2.1 of this
Agreement.
"Default" means any event, act or condition which, with notice or
lapse of time or both, would constitute an Event of Default under the Indenture.
"Dividend Shares" has the meaning set forth in Section 3.1(l) of
this Agreement.
"Enforceability Exceptions" has the meaning set forth in Section
3.1(e).
"Environmental Law" has the meaning set forth in Section 3.1(hh) of
this Agreement.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended.
"Event of Default" means any event defined as an Event of Default in
the Indenture.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission thereunder.
"Exchange Guarantees" means the guarantees of the Exchange Notes
issued under the Indenture.
"Exchange Notes" has the meaning set forth in the Notes Registration
Rights Agreement.
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"Exchange Preferred Stock" has the meaning set forth in the
Preferred Stock Registration Rights Agreement.
"Final Memorandum" has the meaning set forth in Section 2.1 of this
Agreement.
"Foreign Plans" has the meaning set forth in Section 3.1(z) of this
Agreement.
"Guarantees" means the guarantees of the Notes issued under the
Indenture.
"Guarantors" means Spanish Broadcasting System, Inc., a New Jersey
corporation, Spanish Broadcasting System of California, Inc., Spanish
Broadcasting System of Florida, Inc., Spanish Broadcasting System Network, Inc.,
SBS Promotions, Inc., ▇▇▇▇▇▇▇ Holdings, Inc. and SBS of Greater New York, Inc.
"Indemnified Party" has the meaning set forth in Section 7.1(c) of
this Agreement.
"Indemnifying Party" has the meaning set forth in Section 7.1(c) of
this Agreement.
"Indenture" means the indenture dated as of March 15, 1997 by and
among the Company, the Guarantors and the Trustee under which the Notes will be
issued.
"In-kind Debentures" has the meaning set forth in Section 3.1(q) of
this Agreement.
"Initial Purchaser" has the meaning set forth in the introductory
paragraph of this Agreement.
"Lien" means, with respect to any property or assets of any Person,
any mortgage or deed of trust, pledge, hypothecation, assignment, deposit
arrangement, security interest, lien, charge, easement, encumbrance, preference,
priority or other security agreement or preferential arrangement of any kind or
nature whatsoever on or with respect to such property or assets, conditional
sales, or other title retention agreement having substantially the same economic
effect as any of the foregoing).
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"Material Adverse Effect" means, with respect to the Company and its
Subsidiaries, a material adverse effect on the business, condition (financial or
otherwise), results of operations or prospects of the Company and its
Subsidiaries, taken as a whole, or a material adverse effect on the ability of
the Company or a Guarantor to perform its obligations under the Basic Documents
to which it is a party, including this Agreement.
"Memoranda" has the meaning set forth in Section 2.1 of this
Agreement.
"Notes" means the $75,000,000 aggregate principal amount of 11%
Senior Notes due 2004 of the Company to be issued under the Indenture.
"Notes Registration Rights Agreement" means the Notes Registration
Rights Agreement dated as of March 15, 1997 by and among the Company, the
Guarantors and the Initial Purchaser.
"Offering Materials" has the meaning provided therefor in Section
7.1(a) of this Agreement.
"Person" means any individual, corporation, limited liability
company, partnership, joint venture, incorporated or unincorporated association,
joint-stock company, trust, government (or an agency or political subdivision
thereof) or other entity of any kind.
"PORTAL" means the Private Offerings, Resales and Trading through
Automated Linkages Market.
"Preferred Stock Registration Rights Agreement" means the Preferred
Stock Registration Rights Agreement dated as of March 15, 1997 by and among the
Company, the Guarantors and the Initial Purchaser relating to the Shares, the
Debentures and the Debenture Guarantees.
"Preliminary Memorandum" has the meaning set forth in Section 2.1 of
this Agreement.
"Private Exchange Notes" has the meaning set forth in the Notes
Registration Rights Agreement.
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"Private Exchange Shares" has the meaning set forth in the Preferred
Stock Registration Rights Agreement.
"Proceeding" has the meaning set forth in Section 7.1(c) of this
Agreement.
"QIB" has the meaning set forth in Section 3.2 of this Agreement.
"Regulation S" has the meaning set forth in Section 3.1(ll) of this
Agreement.
"Securities" has the meaning set forth in Section 2.1 of this
Agreement.
"Shares" has the meaning set forth in Section 2.1 of this Agreement.
"State" means each of the states of the United States, the District
of Columbia and the Commonwealth of Puerto Rico.
"State Commission" means any agency of any State having jurisdiction
to enforce such State's securities laws.
"Subsidiaries" means, with respect to any Person, any corporation,
partnership, joint venture, association or other business entity, whether now
existing or hereafter organized or acquired, (i) in the case of a corporation,
of which more than 50% of the total voting power of the capital stock entitled
(without regard to the occurrence of any contingency) to vote in the election of
directors, officers or trustees thereof is held by such first-named Person or
any of its Subsidiaries; or (ii) in the case of a partnership, joint venture,
association or other business entity, with respect to which such first-named
Person or any of its Subsidiaries has the power to direct or cause the direction
of the management and policies of such entity by contract or otherwise or if in
accordance with generally accepted accounting principles such entity is
consolidated with the first-named Person for financial statement purposes;
provided, however, that ▇▇▇▇▇▇▇ Investments, Inc., a New Jersey corporation,
shall not constitute a Subsidiary of the Company or of any Subsidiary of the
Company.
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"Supplement" has the meaning set forth in Section 2.1
of this Agreement.
"Taxes" has the meaning set forth in Section 3.1(cc) of this
Agreement.
"Time of Purchase" has the meaning set forth in Section 2.2(b) of
this Agreement.
"Trustee" means IBJ ▇▇▇▇▇▇▇▇ Bank & Trust Company, as trustee under
the Indenture.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended, and the rules and regulations of the Commission thereunder.
"Unit Agent" means IBJ ▇▇▇▇▇▇▇▇ Bank & Trust Company, as Unit Agent
under the Unit Agreement.
"Unit Agreement" means the Unit Agreement dated as of March 15, 1997
between the Company and the IBJ ▇▇▇▇▇▇▇▇ Bank & Trust Company, as Unit Agent.
"Units" means the 175,000 Units issued under the Unit Agreement,
each Unit consisting of one Share and one Warrant.
"Voting Rights Triggering Event" means any event defined as a Voting
Rights Triggering Event under the Certificate of Designation.
"Warrant Agent" means IBJ ▇▇▇▇▇▇▇▇ Bank & Trust Company, as Warrant
Agent under the Warrant Agreement.
"Warrant Agreement" means the Warrant Agreement dated as of March
15, 1997 between the Company and the Warrant Agent.
"Warrants" means the 175,000 warrants, each to purchase .428 shares
Class A Common Stock, to be issued under the Warrant Agreement.
Section 1.2. Accounting Terms; Financial Statements. All accounting
terms used herein not expressly defined in this Agreement shall have the
respective meanings given to them in
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accordance with generally accepted accounting principles in the United States as
the same may be in effect from time to time.
ARTICLE II
ISSUE OF SECURITIES; PURCHASE AND SALE
OF SECURITIES; RIGHTS OF HOLDERS OF SECURITIES;
_________OFFERING BY INITIAL PURCHASER
Section 2.1. Issue of Securities. The Company has authorized the
issuance of (a) $75,000,000 aggregate principal amount of Notes and (b) 175,000
Units, consisting of 175,000 shares of 14-1/4% Senior Exchangeable Preferred
Stock, par value $.01 per share (the "Shares"), and 175,000 Warrants. The Shares
are exchangeable, at the option of the Company, in whole or in part, for the
Company's 14-1/4% Exchange Debentures due 2005 (the "Debentures") on any
dividend payment date. The Debentures are to be issued under the Debenture
Indenture. The Notes, the Units, the Shares, the Guarantees and the Warrants are
referred to herein as the "Securities."
The Securities have not been registered under the Act, and will be
offered and sold to the Initial Purchaser in reliance on exemptions therefrom.
In connection with the sale of the Securities, the Company has
prepared a preliminary offering memorandum dated March 3, 1997 (including the
information incorporated by reference therein, the "Preliminary Memorandum") and
prepared a final offering memorandum dated March 24, 1997 (including the
information incorporated by reference therein, the "Final Memorandum" and,
together with the Preliminary Memorandum, the "Memoranda") setting forth or
including a description of the terms of the Securities and the Debentures, a
description of the Company and any material developments relating to the Company
occurring after the date of the most recent financial statements included
therein.
Section 2.2. Purchase, Sale and Delivery of Securities.
(a) On the basis of the representations, warranties,
agreements and covenants herein contained and subject to the terms
and conditions herein set forth, the Company agrees that it will
sell to the Initial Purchaser, and the Initial
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Purchaser agrees that it will purchase from the Company at the Time
of Purchase (i) the Notes at a purchase price of $970 per $1,000
principal amount thereof and (ii) the Units at a price of $960 per
Unit.
(b) The purchase, sale and delivery of the Securities will
take place at a closing (the "Closing") at the offices of ▇▇▇▇▇▇
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, at 9:00 A.M.,
New York time, on March 27, 1997, or such later date and time, if
any, as the Initial Purchaser and the Company shall agree. The time
at which such Closing (and the concurrent closing of the
Acquisitions, the Refinancing and the Consent Solicitation (each as
defined in the Final Memorandum)) is concluded is herein called the
"Time of Purchase."
(c) Certificates in definitive form for the Securities that
the Initial Purchaser has agreed to purchase hereunder, and in such
denominations and registered in such name or names as the Initial
Purchaser requests upon notice to the Company at least 48 hours
prior to the Closing, shall be delivered by or on behalf of the
Company to the Initial Purchaser, against payment by or on behalf of
the Initial Purchaser of the purchase price therefor by wire
transfer of immediately available funds wired in accordance with the
written instructions of the Company. The Company will make such
certificates for the Securities available for checking and packaging
by the Initial Purchaser at the offices of the Initial Purchaser, or
such other place as the Initial Purchaser may designate, at least 24
hours prior to the Closing.
Section 2.3. Registration Rights of Holders of Securities. The
Initial Purchaser and its direct and indirect transferees of (a) the Notes will
have such rights with respect to the registration of the Notes and Exchange
Notes under the Act as set forth in the Notes Registration Rights Agreement,
(ii) the Shares will have such rights with respect to the registration of the
Shares, the Exchange Preferred Stock and Debentures under the Act as set forth
in the Preferred Stock Registration Rights Agreement and (iii) the Warrants will
have such rights with respect to the registration of the Class A Common Stock
issuable upon exercise of the Warrants as set forth in the Common Stock
Registration Rights Agreement.
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Section 2.4. Offering by the Initial Purchaser. The Initial
Purchaser proposes to make an offering of the Securities at the prices and upon
the terms set forth in the Final Memorandum and solely to the persons described
in Section 3.2(c) hereof, as soon as practicable after this Agreement is entered
into and as in the judgment of the Initial Purchaser is advisable.
ARTICLE III
REPRESENTATIONS AND WARRANTIES; RESALE OF SECURITIES
Section 3.1. Representations and Warranties of the Company and the
Guarantors. The Company and the Guarantors jointly and severally represent and
warrant to and agree with the Initial Purchaser as follows:
(a) The Final Memorandum, as of its date and at the Time of
Purchase, will not contain any 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, except that the representations and warranties
set forth in this Section 3.1(a) do not apply to statements or
omissions made in reliance upon and in conformity with information
relating to the Initial Purchaser furnished to the Company or a
Guarantor in writing by the Initial Purchaser expressly for use in
the Final Memorandum or any amendment or supplement thereto or
relating to the manner of sale of the Securities by the Initial
Purchaser.
(b) The consolidated financial statements of the Company
included or incorporated by reference in the Final Memorandum
present fairly the consolidated financial position, results of
operations and cash flows of the Company and, its consolidated
Subsidiaries at the dates and for the periods to which they relate
(as applicable) and have been prepared in accordance with generally
accepted accounting principles applied on a consistent basis, except
as otherwise stated therein. To the knowledge of the Company, the
financial statements of New Age Broadcasting, Inc. ("New Age")
included in the Final Memorandum present fairly the financial
position, results of operations and
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cash flow of New Age at the dates and for the periods to which they
relate (as applicable) and have been prepared in accordance with
generally accepted accounting principles, applied on a consistent
basis, except as otherwise stated therein. To the knowledge of the
Company, the combined financial statements of New Age and the
Seventies Broadcasting Corporation ("Seventies") included in the
Final Memorandum present fairly the financial position, results of
operations and cash flow of New Age and Seventies at the dates and
for the periods to which they relate (as applicable) and have been
prepared in accordance with generally accepted accounting principles
applied on a consistent basis, except as otherwise stated therein.
To the knowledge of the Company, the financial statements of Park
Radio of Greater New York, Inc. ("WPAT") to the extent included or
incorporated by reference in the Final Memorandum present fairly the
financial position, results of operations and cash flows of WPAT at
the dates and for the periods to which they relate (as applicable)
and have been prepared in accordance with generally accepted
accounting principles applied on a consistent basis, except as
otherwise stated therein. The summary and selected historical
financial data in the Final Memorandum present fairly in all
material respects the financial information shown therein and have
been prepared and compiled on a basis consistent with the applicable
financial statements included therein, except as otherwise stated
therein. Each of KPMG Peat Marwick LLP and ▇▇▇▇▇▇, ▇▇▇▇▇▇ and
Company is an independent public accounting firm within the meaning
of the Act and the rules and regulations promulgated thereunder. The
pro forma financial statements (including the notes thereto) and the
summary pro forma financial information included or incorporated by
reference in the Final Memorandum have been prepared using
reasonable assumptions and in accordance with the applicable
requirements of the Act and include all adjustments necessary to
present fairly the pro forma financial information included within
the Final Memorandum at the respective dates and for the respective
periods indicated.
(c) The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Delaware. Each Subsidiary of the Company is a corporation duly
incorporated or organized, validly existing
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and in good standing under the laws of the state or other
jurisdiction of its incorporation or organization. Each of the
Company and its Subsidiaries is duly qualified and in good standing
as a foreign corporation and is authorized to do business in each
jurisdiction in which the ownership or leasing of any property or
the character of its operations makes such qualification necessary,
except where the failure to be so qualified would not have a
Material Adverse Effect.
(d) As of the date hereof, the Company's authorized capital
stock consists of 5,000,000 shares of Class A Common Stock, 200,000
shares of Class B Common Stock and 500,000 shares of preferred
stock. As of the Time of Purchase (on a pro forma basis as described
in the Final Memorandum), 558,135 shares of Class A Common Stock,
48,533 shares of Class B Common Stock and 175,000 Shares will be
outstanding. All of the issued and outstanding shares of capital
stock of the Company and its Subsidiaries are validly issued, all of
such capital stock is fully paid and nonassessable and none of such
shares or interests were issued in violation of any preemptive or
similar rights. The Company has no Subsidiaries other than the
Guarantors. Except as set forth in the Final Memorandum, at the Time
of Purchase (i) all of the capital stock of each Subsidiary of the
Company is owned directly by the Company or another Subsidiary of
the Company, free and clear of any Liens, (ii) there are no
outstanding subscriptions, options, warrants, rights, convertible
securities or other binding agreements or commitments of any
character obligating the Company or its Subsidiaries to issue any
securities and (iii) there is no agreement, understanding or
arrangement among the Company or its Subsidiaries and their
respective stockholders or any other Person relating to the
ownership or disposition of any capital stock in the Company or any
of its Subsidiaries, the election of directors of the Company or any
of its Subsidiaries or the governance of the Company's or any of its
Subsidiaries' affairs, and such agreements, arrangements or
understandings will not be breached or violated as a result of the
execution and delivery of, or the consummation of the transactions
contemplated by, this Agreement and the other Basic Documents.
(e) This Agreement has been duly authorized, executed and
delivered by each of the Company and the Guarantors and
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(assuming the due authorization, execution and delivery by the
Initial Purchaser) is a valid and legally binding agreement of each
of the Company and the Guarantors, enforceable in accordance with
its terms except (i) that the enforcement hereof may be subject to
bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium or other similar laws now or hereafter in effect relating
to creditors' rights generally, and to general principles of equity
and the discretion of the court before which any proceeding therefor
may be brought (the "Enforceability Exceptions") and (ii) as any
rights to indemnity or contribution hereunder may be limited by
federal and state securities laws and public policy considerations.
(f) The Indenture has been duly authorized by each of the
Company and the Guarantors and, when duly executed and delivered by
each of the Company and the Guarantors (assuming the due
authorization, execution and delivery by the Trustee), will
constitute a valid and legally binding agreement of each of the
Company and the Guarantors, enforceable in accordance with its
terms, subject to the Enforceability Exceptions.
(g) The Notes and the Guarantees have been duly authorized by
the Company and the Guarantors, respectively, and, when issued and
delivered by the Company and the Guarantors against payment therefor
by the Initial Purchaser in accordance with the terms of this
Agreement (and, in the case of the Notes, assuming the due
authentication thereof by the Trustee in accordance with the
Indenture), will constitute valid and binding obligations of the
Company and the Guarantors, respectively, enforceable in accordance
with their respective terms, subject to the Enforceability
Exceptions. The Exchange Notes and Private Exchange Notes have been
duly authorized by the Company and, when executed, issued and
delivered by the Company in accordance with the terms of the
Indenture and the Exchange Offer contemplated by the Notes
Registration Rights Agreement (and assuming the due authentication
thereof by the Trustee in accordance with the Indenture), will
constitute valid and binding obligations of the Company, enforceable
in accordance with their respective terms, subject to the
Enforceability Exceptions.
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(h) The Unit Agreement has been duly authorized by the Company
and, when executed and delivered by the Company (assuming the due
authorization, execution and delivery by the Unit Agent), will
constitute a valid and legally binding agreement of the Company,
enforceable in accordance with its terms, subject to the
Enforceability Exceptions.
(i) The Units have been duly authorized by the Company and,
when issued and delivered by the Company against payment therefor by
the Initial Purchaser in accordance with the terms of this Agreement
(assuming due authentication, execution and delivery thereof by the
Unit Agent in accordance with the Unit Agreement), will constitute a
valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms, subject to the Enforceability
Exceptions.
(j) The Warrant Agreement has been duly authorized by the
Company and, when executed and delivered by the Company (assuming
the due authorization, execution and delivery thereof by the Warrant
Agent), will constitute a valid and legally binding agreement of the
Company, enforceable in accordance with its terms, subject to the
Enforceability Exceptions.
(k) The Warrants have been duly authorized by the Company and,
when issued and delivered by the Company against payment therefor by
the Initial Purchaser in accordance with the terms of this Agreement
(assuming the due authentication thereof by the Warrant Agent in
accordance with the Warrant Agreement), will constitute valid and
legally binding obligations of the Company, enforceable in
accordance with their terms, subject to the Enforceability
Exceptions.
(l) The Certificate of Designation relating to the Shares and
any additional Shares issued as dividends in accordance with the
terms of the Certificate of Designation (the "Dividend Shares") has
been duly authorized by the Company. The Shares and the Dividend
Shares have been duly authorized and, when issued and delivered by
the Company against payment therefor in accordance with the
provisions of this Agreement, in the case of the Shares, and in
accordance with the terms of the Certificate of Designation,
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in the case of the Dividend Shares, will be validly issued, fully
paid and nonassessable and free of any preemptive or similar rights;
the certificates for the Shares and the Dividend Shares are in due
and proper form; and the holders of such Shares and Dividend Shares
will not be subject to personal liability by reason of being such
holders. The Company has reserved for issuance, and duly authorized
the issuance of, the maximum number of Shares and Dividend Shares
issuable as dividends pursuant to the terms of the Certificate of
Designation. The Certificate of Incorporation of the Company, by
virtue of the Certificate of Designation, sets forth the rights,
preferences and priorities of the Shares and the Dividend Shares.
The Exchange Preferred Stock and the Private Exchange Preferred
Stock have been duly authorized and, when issued and delivered by
the Company in accordance with the provisions of the Exchange Offer
contemplated by the Preferred Stock Registration Rights Agreement,
will be validly issued, fully paid and nonassessable and free of any
preemptive or similar rights.
(m) The Debenture Indenture has been duly authorized by the
Company and, when executed and delivered by the Company (assuming
the due authorization, execution and delivery by the Debenture
Trustee), will constitute a valid and legally binding agreement of
the Company, enforceable against the Company in accordance with its
terms, subject to the Enforceability Exceptions.
(n) The Notes Registration Rights Agreement has been duly
authorized by each of the Company and the Guarantors and, when
executed and delivered by each of the Company and the Guarantors
(assuming due authorization, execution and delivery by the Initial
Purchaser), will constitute a valid and legally binding agreement of
each of the Company and the Guarantors, enforceable in accordance
with its terms, subject to the Enforceability Exceptions and as any
rights to indemnity or contribution thereunder may be limited by
federal and state securities laws and public policy considerations.
(o) The Common Stock Registration Rights Agreement has been
duly authorized by the Company and, when executed and delivered by
the Company (assuming due authorization,
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execution and delivery by each other party thereto), will constitute
a valid and legally binding agreement of the Company, enforceable in
accordance with its terms, subject to the Enforceability Exceptions
and as any rights to indemnity or contribution thereunder may be
limited by federal and state securities laws and public policy
considerations.
(p) The Preferred Stock Registration Rights Agreement has been
duly authorized by each of the Company and the Guarantors and, when
executed and delivered by each of the Company and the Guarantors
(assuming the due authorization, execution and delivery by the
Initial Purchaser), will constitute a valid and legally binding
agreement of each of the Company and the Guarantors, enforceable in
accordance with its terms, subject to the Enforceability Exceptions
and as any rights to indemnity or contribution thereunder may be
limited by federal and state securities laws and public policy
considerations.
(q) The Debentures and any additional Debentures issued as
interest in accordance with the provisions of the Indenture (the
"In-kind Debentures") and the Debenture Guarantees have been duly
authorized by the Company and the Guarantors, respectively. The
Debentures and the In-kind Debentures and the Debenture Guarantees,
when executed by the Company and the Guarantors, respectively
(assuming, in the case of the Debenture and In-kind Debentures, due
authentication by the Debenture Trustee in accordance with the
Debenture Indenture) and delivered upon the exchange of the Shares
and/or the Dividend Shares, if any, in accordance with the
Certificate of Designation relating to the Shares and the Dividend
Shares in the case of the Exchange Debentures, or as interest on
outstanding Debentures in accordance with the Debenture Indenture,
in the case of the In-kind Debentures, will have been duly executed,
issued and delivered and will constitute valid and binding
obligations of the Company and the Guarantors, respectively,
enforceable in accordance with their respective terms, subject to
the Enforceability Exception.
(r) Immediately after the consummation of the transactions
contemplated by this Agreement (including the use of proceeds from
the sale of the Securities at the Time
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of Purchase), the present fair saleable value of the assets of the
Company (on a consolidated basis) will exceed the sum of its stated
liabilities and identified contingent liabilities; the Company (on a
consolidated basis) will not be, after giving effect to the
execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby (including the
use of proceeds from the sale of the Securities at the Time of
Purchase), (i) left with unreasonably small capital with which to
carry on its business as it is proposed to be conducted, (ii) unable
to pay its debts (contingent or otherwise) as they mature or (iii)
otherwise insolvent.
(s) Each of the Company and the Guarantors has all requisite
corporate power and authority to execute, deliver and perform its
obligations under each of the Basic Documents to which it is a party
and to consummate the transactions contemplated hereby and thereby.
(t) Subsequent to the date as of which information is given in
the Final Memorandum to the date hereof, except as contemplated in
the Final Memorandum, there has not been (i) any event or condition
that has had or that could reasonably be expected to have a Material
Adverse Effect, (ii) any transaction entered into by the Company or
any of its Subsidiaries that is material to the Company and its
Subsidiaries, taken as a whole, other than in the ordinary course of
business, or (iii) any dividend or distribution of any kind
declared, paid or made by the Company on its common stock.
(u) Except as set forth in the Final Memorandum, there is no
action, suit, investigation or proceeding, governmental or
otherwise, pending or, to the best knowledge of the Company,
threatened to which the Company or any of its Subsidiaries is or
would be a party or of which the properties or assets of the Company
or its Subsidiaries are or may be subject, that (i) seeks to
restrain, enjoin, prevent the consummation of or otherwise challenge
the issuance and sale of the Securities by the Company or any of the
other transactions contemplated by the Basic Documents, (ii)
questions the legality or validity of any such transactions or seeks
to recover damages or obtain other relief in connection with any
such transactions or (iii)
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could reasonably be expected to have a Material Adverse Effect.
(v) The execution, delivery and performance by the Company and
the Guarantors of the Basic Documents to which they are a party, the
issuance and sale by the Company and the Guarantors of the
Securities to be issued by them, the execution, delivery and
performance by the Company and the Guarantors of all other
agreements and instruments to be executed by them and delivered
pursuant hereto or thereto or in connection herewith or therewith or
in connection with any of the transactions contemplated hereby or
thereby, and compliance by the Company and the Guarantors with the
terms and provisions hereof and thereof, and consummation of the
other Transactions (as defined in the Final Memorandum) do not and
will not (i) violate any provision of any law, rule or regulation
(including, without limitation, Regulation G, T, U or X of the Board
of Governors of the Federal Reserve System), order, writ, judgment,
decree, determination or award presently in effect or in effect at
the Time of Purchase having applicability to the Company or any of
its Subsidiaries, (ii) assuming simultaneous consummation of the
Refinancing, conflict with or result in a breach of or constitute a
default under the certificate of incorporation or by-laws (or
similar organizational document) of the Company or any of its
Subsidiaries, or, as of the Time of Purchase, any indenture or loan
or credit agreement, or any other material agreement or instrument,
to which the Company or any of its Subsidiaries is a party or by
which the Company or any of its Subsidiaries or any of their
respective properties or assets may be bound or affected, or (iii)
result in, or require the creation or imposition of, any Lien upon
or with respect to any of the properties or assets now owned or
hereafter acquired by the Company or any of its Subsidiaries,
except, in each case, where such violation, conflict, default or
creation or imposition of any Lien would not (individually or in the
aggregate) be reasonably likely to have a Material Adverse Effect.
(w) Neither the Company nor any of its Subsidiaries is
currently or, after giving effect to the consummation of the
transactions contemplated by this Agreement and the other
Transactions, will be (i) in violation of its respective certificate
of incorporation or by-laws (or similar
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organizational document), (ii) in default (nor will an event occur
which with notice or passage of time or both would constitute such a
default) under or in violation of any indenture or loan or credit
agreement or any other material agreement or instrument to which it
is a party or by which it or any of its properties or assets may be
bound or affected, (iii) in violation of any order of any court,
arbitrator or governmental body, or (iv) in violation of or will
have violated any statute, rule or regulation of any governmental
authority, except in each case, which default or violation
(individually or in the aggregate) could not reasonably be expected
to (x) affect the legality, validity or enforceability of any of the
Basic Documents in any material respect or (y) have a Material
Adverse Effect.
(x) Except as set forth in the Final Memorandum, and assuming
the accuracy of the Initial Purchaser's representations and
warranties set forth in Section 3.2 hereof, and the due performance
by the Initial Purchaser of the covenants and agreements set forth
in Section 3.2 hereof, no authorization, consent, approval, license,
qualification or formal exemption from, nor any filing, declaration
or registration with, any court, governmental agency or regulatory
authority or any securities exchange is required in connection with
the execution, delivery or performance by the Company or any of the
Guarantors (to the extent they are a party thereto) of any of the
Basic Documents or consummation of any of the transactions
contemplated thereby or consummation of any of the other
Transactions, except (i) as may be required under state securities
or "blue sky" laws or the laws of any foreign jurisdiction, (ii)
such as have been obtained or made, (iii) as may be required under
the Act, the Exchange Act and the Trust Indenture Act in connection
with the performance of obligations under the Notes Registration
Rights Agreement, the Preferred Stock Registration Rights Agreement
and the Common Stock Registration Rights Agreement, (iv) as may be
required under the Exchange Act after the Time of Purchase or (v) as
would not (individually or in the aggregate) be reasonably likely to
have a Material Adverse Effect. All such authorizations, consents,
approvals, licenses, qualifications, exemptions, filings,
declarations and registrations set forth in the Final Memorandum
(other than as disclosed therein) which are required to have been
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obtained by the date hereof have been obtained or made, as the case
may be, and are in full force and effect and not the subject of any
pending or, to the knowledge of the Company, threatened attack by
appeal or direct proceeding or otherwise.
(y) The Company is not, and immediately after the Time of
Purchase will not be, an "investment company" or a company
"controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
(z) The execution and delivery of this Agreement and the other
Basic Documents and the sale of the Securities to the Initial
Purchaser will not involve any non-exempt prohibited transaction
within the meaning of Section 406 of ERISA, or Section 4975 of the
Code on the part of the Company or any of its Subsidiaries. No
Reportable Event (as defined in Section 4043 of ERISA) has occurred
during the five-year period prior to the date on which this
representation is made or deemed made with respect to any Employee
Benefit Plan (as defined in Section 3(3) of ERISA), and the Company
and its Subsidiaries have complied in all material respects with the
applicable provisions of ERISA and the Code in connection with each
Employee Benefit Plan. The present value of all benefits vested
under each Employee Benefit Plan maintained by the Company or any
person or entity treated with the Company as a single employer under
Section 414 of ERISA (a "Commonly Controlled Entity") (based on the
current liability, interest rate and other assumptions used in
preparation of the plan's Form 5500 Annual Report) did not, as of
the last annual valuation date prior to the date on which this
representation is made or deemed made, exceed the value of the
assets of such plan allocable to such accrued benefits. Neither the
Company nor any Commonly Controlled Entity has had a complete or
partial withdrawal from any Multiemployer Plan (as defined in
ERISA), and neither the Company nor any Commonly Controlled Entity
would become subject to any liability under ERISA if the Company or
any such Commonly Controlled Entity were to withdraw completely from
all Multiemployer Plans as of the valuation date most closely
preceding the date on which such representation is made or deemed
made. No such Multiemployer Plan is in reorganization or insolvent.
There are no material liabilities of the Company or any Commonly
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Controlled Entity for post-retirement benefits to be provided to
their current and former employees under Plans which are welfare
benefit plans (as described in Section 3(1) of ERISA). To the best
of the Company's knowledge, the Company and its Subsidiaries are
substantially and in all material respects in compliance with all
applicable laws with respect to all employee benefit plans
maintained or contributed to in respect of employees other than
those employed in the United States ("Foreign Plans"). There are no
material unfunded liabilities in respect of the Foreign Plans.
(aa) The Company and each of its Subsidiaries have good and
valid title to, or valid and enforceable leasehold interests in, all
properties and assets identified in the Final Memorandum as owned or
leased, respectively, by each of them which are material to the
business of the Company and its Subsidiaries, taken as a whole, free
and clear of all Liens, except (i) such Liens as are described in
the Final Memorandum or (ii) Liens created in the ordinary course of
business which are Permitted Liens (as defined in the Indenture).
All of the leases material to the business of the Company or any of
its Subsidiaries and under which the Company or any of its
Subsidiaries, as the case may be, holds properties described in the
Final Memorandum, are valid and binding as leased by them, with such
exceptions as are not material and do not interfere with the use
made and proposed to be made of such properties by the Company or
any of its Subsidiaries, as the case may be.
(bb) No form of general solicitation or general advertising
was used by the Company, any of its Subsidiaries or any of their
respective representatives in connection with the offer and sale of
the Securities. Neither the Company, any of its Subsidiaries nor any
Person authorized to act for any of them has, either directly or
indirectly, sold or offered for sale any of the Securities, or
solicited any offers to buy any thereof from, or has otherwise
approached or negotiated in respect thereof with, any Person or
Persons other than with or through the Initial Purchaser; and the
Company agrees that neither it, any of its Subsidiaries nor any
Person acting on its or their behalf will sell or offer for sale any
Securities to, or solicit any offers to buy any Securities from, or
otherwise approach
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or negotiate in respect thereof with, any Person or Persons so as
thereby to bring the issuance or sale of any of the Securities
within the provisions of Section 5 of the Act.
(cc) All tax returns required to be filed by the Company or
any of its Subsidiaries in any jurisdiction (including foreign
jurisdictions) have been duly filed and all taxes, assessments, fees
and other charges including, without limitation, withholding taxes,
penalties, and interest ("Taxes") due or claimed to be due have been
paid, other than those Taxes being contested in good faith and for
which adequate reserves or accruals have been established in
accordance with generally accepted accounting principles, except
where the failure to file such returns or to pay such Taxes is not
reasonably likely to have, singly or in the aggregate, a Material
Adverse Effect. The Company knows of no actual or proposed
additional tax assessments for any fiscal period against the Company
or any of its Subsidiaries that, individually or in the aggregate,
is reasonably likely to have a Material Adverse Effect.
(dd) The Company and its Subsidiaries are the owners or
licensees of all trade names, unregistered trademarks and service
marks, brand names, patents, registered and unregistered copyrights,
registered trademarks and service marks, and all applications for
any of the foregoing, and all permits, grants and licenses or other
rights with respect thereto, the absence of which could reasonably
be expected to have a Material Adverse Effect. Except as set forth
in the Final Memorandum, neither the Company nor any of its
Subsidiaries has been charged with any material infringement of any
intangible property of the character described above or been
notified or advised of any material claim of any other Person
relating to any of the intangible property, which infringements or
claims (individually or in the aggregate) would be reasonably likely
to have a Material Adverse Effect.
(ee) The Notes, Guarantees, Indenture, Warrants, Warrant
Agreement, the Class A Common Stock, Shares, Certificate of
Designation, Debentures, Debenture Indenture, Debenture Guarantees,
Preferred Stock Registration Rights Agreement, Notes Registration
Rights Agreement and Common Stock Registration Rights Agreement
conform in all material
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respects to the descriptions thereof in the Final Memorandum.
(ff) Assuming the accuracy of the Initial Purchaser's
representations and warranties set forth in Section 3.2 hereof, and
the due performance by the Initial Purchaser of the covenants and
agreements set forth in Section 3.2 hereof, the offer and sale of
the Securities to the Initial Purchaser in the manner contemplated
by this Agreement and the Memorandum does not require registration
under the Act.
(gg) Except as described in the Final Memorandum, each of the
Company and its Subsidiaries is in compliance with all federal,
state, local and foreign laws, and any rules, regulations, orders,
decrees, judgments or injunctions issued or promulgated thereunder
relating to pollution and protection of public and employee health
and the environment ("Environmental Law") and with the terms and
conditions of any permit, license or approval required thereunder in
connection with the ownership, operation or use of its business,
property and assets where the failure to be in such compliance could
reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect; except as disclosed in the Final
Memorandum, and to the knowledge of the Company, none of the Company
or any of its Subsidiaries is subject to any liability, absolute or
contingent, under any Environmental Law which liability would,
individually or in the aggregate, be reasonably likely to result in
a Material Adverse Effect; except as disclosed in the Final
Memorandum, there is no civil, criminal or administrative action,
suit, demand, hearing, notice of violation or deficiency,
investigation, proceeding or notice of potential responsibility or
liability or demand letter or request for information pending or, to
the knowledge of the Company, threatened against the Company or any
of its Subsidiaries under any Environmental Law which, if determined
adversely to the Company or any such Subsidiary, would, individually
or in the aggregate, be reasonably likely to result in a Material
Adverse Effect.
(hh) Except as set forth in the Final Memorandum, there is no
strike, labor dispute, slowdown or work stoppage with the employees
of the Company or any of its Subsidiaries
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which is pending or, to the best knowledge of the Company,
threatened.
(ii) Each of the Company and its Subsidiaries carries
insurance (including self insurance) in such amounts and covering
such risks as in its reasonable determination is adequate for the
conduct of its business and the value of its properties.
(jj) No securities of the Company or any of its Subsidiaries
are of the same class (within the meaning of Rule 144A under the
Act) as any of the Securities and listed on a national securities
exchange registered under Section 6 of the Exchange Act, or quoted
in a U.S. automated inter-dealer quotation system.
(kk) None of the Company or its Subsidiaries has taken, nor
will any of them take, directly or indirectly, any action designed
to, or that might be reasonably expected to, cause or result in
stabilization or manipulation of the price of any of the Securities.
(ll) None of the Company, its Subsidiaries, any of their
respective Affiliates or any person acting on its or their behalf
(other than the Initial Purchaser) has engaged in any directed
selling efforts (as that term is defined in Regulation S under the
Act ("Regulation S") with respect to any of the Securities and the
Company, its Subsidiaries and their respective Affiliates and any
person acting on its or their behalf (other than the Initial
Purchaser) have acted in accordance with the offering restrictions
requirement of Regulation S.
(mm) The statistical and market-related data included in the
Final Memorandum are based on or derived from sources which the
Company believes to be reliable and accurate in all material
respects or represents the Company's good faith estimates that are
made on the basis of data derived from such sources.
(nn) Except as stated in the Final Memorandum, the Company
does not know of any claims for services, either in the nature of a
finder's fee or financial advisory fee, with
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respect to the offering of the Securities and the transactions
contemplated by the Final Memorandum.
(oo) No securities of the same class as any of the Securities
have been offered or issued and sold by the Company within the
six-month period immediately prior to the date hereof.
Section 3.2. Resale of Shares. The Initial Purchaser represents and
warrants that it is a "qualified institutional buyer" as defined in Rule 144A
under the Act ("QIB"). The Initial Purchaser agrees with the Company that (a) it
has not and will not, directly or indirectly, solicit offers for, or offer or
sell, any of the Securities by 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; (b) has not and will not, directly or indirectly, engage in any "directed
selling efforts" (as defined in Regulation S under the Act); and (c) it has and
will solicit offers for the Securities only from, and will offer the Securities
only to (A) in the case of offers inside the United States, (i) Persons whom the
Initial Purchaser reasonably believes to be QIBs or, if any such Person is
buying for one or more institutional accounts for which such Person is acting as
fiduciary or agent, only when such Person has represented to the Initial
Purchaser that each such account is a QIB, to whom notice has been given that
such sale or delivery is being made in reliance on Rule 144A, and, in each case,
in transactions under Rule 144A or (ii) a limited number of other institutional
investors reasonably believed by the Initial Purchaser to be "Accredited
Investors" (as defined in Rule 501(a)(1), (2), (3) or (7) of the Act) that,
prior to their purchase of any of the Securities, deliver to the Initial
Purchaser a letter containing the representations and agreements set forth in
Annex A to the Final Memorandum and (B) in the case of offers outside the United
States, to Persons other than U.S. Persons ("foreign purchasers," which term
shall include dealers or other professional fiduciaries in the United States
acting on a discretionary basis for foreign beneficial owners (other than an
estate or trust)); provided, however, that, in the case of this clause (B), in
purchasing such Securities such Persons are deemed to have represented and
agreed as provided under the caption "Notice to Investors" contained in the
Final Memorandum.
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ARTICLE IV
CONDITIONS PRECEDENT TO CLOSING
Section 4.1. Conditions Precedent to Obligations of the Initial
Purchaser. The obligation of the Initial Purchaser to purchase the Securities to
be purchased by it hereunder is subject to the satisfaction of the following
conditions:
(a) The Initial Purchaser shall have received an opinion,
addressed to the Initial Purchaser in form and substance
satisfactory to counsel to the Initial Purchaser and dated the Time
of Purchase, from each of (i) Kaye, Scholer, ▇▇▇▇▇▇▇, ▇▇▇▇▇ &
Handler LLP, counsel to the Company, in substantially the form set
forth in Exhibit 1 hereto, and (ii) Lowenthal, Landau, ▇▇▇▇▇▇▇ &
Bring, special counsel to the Company, in substantially the form set
forth in Exhibit 2 hereto.
(b) The Initial Purchaser shall have received an opinion,
addressed to the Initial Purchaser in form and substance
satisfactory to the Initial Purchaser and dated the Time of
Purchase, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel to the Initial
Purchaser, as to such matters as the Initial Purchaser shall
reasonably request.
In rendering such opinions in accordance with Sections 4.1(a)
and (b), each such counsel may rely as to factual matters upon
certificates or other documents furnished by officers and directors
of the Company and representations of the Initial Purchaser and by
government officials, and upon such other documents as such counsel
deem appropriate as a basis for their opinion. Each such counsel may
specify the jurisdictions in which it is admitted to practice and
that it is not admitted to practice in any other jurisdiction or an
expert in the law of any other jurisdiction. To the extent such
opinion concerns the laws of any other such jurisdiction such
counsel may rely upon the opinion of counsel (satisfactory to the
Initial Purchaser) admitted to practice in such jurisdiction. Any
opinion relied upon by such counsel as aforesaid shall be delivered
to the Initial Purchaser together with the opinion of such counsel,
which
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opinion shall state that such counsel believes that their and the
Initial Purchaser's reliance thereon is justified.
(c) The Initial Purchaser shall have received from KPMG Peat
Marwick LLP a comfort letter or letters dated the date hereof and
the Time of Purchase in form and substance satisfactory to counsel
to the Initial Purchaser.
(d) The representations and warranties made by the Company
herein shall be true and correct in all material respects (except
for changes expressly provided for in this Agreement) on and as of
the Time of Purchase with the same effect as though such
representations and warranties had been made on and as of the Time
of Purchase; the Company and the Guarantors shall have complied in
all material respects with all agreements as set forth in or
contemplated hereunder and in the other Basic Documents required to
be performed by the Company at or prior to the Time of Purchase.
(e) Subsequent to the date of the Final Memorandum, (i) there
shall not have been any change which has had or could be reasonably
likely to have a Material Adverse Effect, and (ii) the Company and
its Subsidiaries shall have conducted their respective businesses
only in the ordinary course.
(f) At the Time of Purchase, after giving effect to the
consummation of the transactions contemplated by this Agreement and
the other Basic Documents and the other Transactions, there shall
exist no Default or Event of Default and no Voting Rights Triggering
Event.
(g) The purchase of and payment for the Securities by the
Initial Purchaser hereunder shall not be prohibited or enjoined
(temporarily or permanently) by any applicable law or governmental
regulation (including, without limitation, Regulation G, T, U or X
of the Board of Governors of the Federal Reserve System).
(h) At the Time of Purchase, the Initial Purchaser shall have
received a certificate, dated the Time of Purchase, from the Company
stating that the conditions specified in Sections 4.1(d), (e), (f)
and (k) have been satisfied or duly waived at the Time of Purchase.
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(i) Each of the Basic Documents shall be satisfactory in form
and substance to the Initial Purchaser and shall have been executed
and delivered by all the respective parties thereto and shall be in
full force and effect.
(j) All proceedings taken in connection with the issuance of
the Securities and the transactions contemplated by this Agreement,
the other Basic Documents and all documents and papers relating
thereto shall be satisfactory to the Initial Purchaser and counsel
to the Initial Purchaser. The Initial Purchaser and counsel to the
Initial Purchaser shall have received copies of such papers and
documents as they may reasonably request in connection therewith,
all in form and substance reasonably satisfactory to them.
(k) The issuance and sale of the Securities hereunder shall
not have been enjoined (temporarily or permanently) at the Time of
Purchase.
(l) There shall not have been any announcement by any
"nationally recognized statistical rating organization," as defined
for purposes of Rule 436(g) under the Act, that (A) it is
downgrading its rating assigned to any debt securities of the
Company, or (B) it is reviewing its rating assigned to any debt
securities of the Company with a view to possible downgrading, or
with negative implications, or direction not determined.
(m) The Initial Purchaser shall have sold the Securities in
accordance with the provisions of Section 3.2 hereof.
(n) The Company shall have received the Requisite Consents (as
defined in Supplement No. 1 to Consent Solicitation Statement of the
Company dated March 14, 1997 (the "Consent Solicitation Statement"))
and the Proposed Amendments (as defined in Consent Solicitation
Statement) shall have become operative.
(o) The Acquisitions (as defined in the Final Memorandum)
shall be consummated on the terms set forth in the respective
acquisition agreements as in effect of the date hereof.
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(p) The Company shall redeem or repurchase all of its
outstanding 12 1/4% Senior Secured Notes due 2001 and all of its
outstanding shares of Senior Exchangeable Preferred Stock, Series A,
at the Time of Purchase.
On or before the Time of Purchase, the Initial Purchaser and counsel
to the Initial Purchaser shall have received such further documents, opinions,
certificates and schedules or other instruments relating to the business,
corporate, legal and financial affairs of the Company and its Subsidiaries as
they may reasonably request.
ARTICLE V
COVENANTS
Section 5.1. Covenants. The Company and the Guarantors, as the
case may be, covenant and agree with the Initial Purchaser that:
(a) The Company will not amend or supplement the Final
Memorandum or any amendment or supplement thereto of which the
Initial Purchaser shall not previously have been advised and
furnished a copy for a reasonable period of time prior to the
proposed amendment or supplement and as to which the Initial
Purchaser shall not have given its consent, which consent shall not
be unreasonably withheld. The Company will promptly, upon the
reasonable request of the Initial Purchaser or counsel to the
Initial Purchaser, make any amendments or supplements to the
Preliminary Memorandum or the Final Memorandum that may be necessary
or advisable in the opinion of the Initial Purchaser or counsel to
the Initial Purchaser in connection with the resale of the
Securities by the Initial Purchaser.
(b) The Company will cooperate with the Initial Purchaser in
arranging for the qualification of the Securities for offering and
sale under the securities or "blue sky" laws of such jurisdictions
as the Initial Purchaser may designate and will continue such
qualifications in effect for as long as may be reasonably necessary
to complete the resale of the Securities; provided, however, that in
connection therewith, the Company
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shall not be required to qualify as a foreign corporation or to
execute a general consent to service of process in any jurisdiction
or subject itself to service of process in suits or taxation in
excess of a nominal dollar amount in any such jurisdiction where it
is not then so subject.
(c) If, at any time prior to the completion of the
distribution by the Initial Purchaser of the Securities, any event
occurs or information becomes known as a result of which the Final
Memorandum as then amended or supplemented would include any 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, or if for
any other reason it is necessary at any time to amend or supplement
the Final Memorandum to comply with applicable law, the Company will
promptly notify the Initial Purchaser thereof (who thereafter will
not use such Final Memorandum until appropriately amended or
supplemented) and will prepare, at the expense of the Company, an
amendment or supplement to the Final Memorandum that corrects such
statement or omission or effects such compliance; provided, however,
that the Company's obligation hereunder shall not be applicable to
the extent resale by the Initial Purchaser may be accomplished
pursuant to a registration statement filed by the Company pursuant
to the Notes Registration Rights Agreement or Preferred Stock
Registration Rights Agreement.
(d) The Company will, without charge, provide to the Initial
Purchaser and to counsel to the Initial Purchaser as many copies of
the Preliminary Memorandum and the Final Memorandum or any amendment
or supplement thereto as the Initial Purchaser may reasonably
request.
(e) The Company will apply the net proceeds from the sale of
the Securities as set forth under "Use of Proceeds" in the Final
Memorandum.
(f) For and during the period ending on the date no Securities
are outstanding, the Company will furnish to the Initial Purchaser
copies of all reports and other communications (financial or
otherwise) furnished by the Company to the holders of its securities
generally and, promptly after available, copies of any reports or
financial
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statements furnished to or filed by the Company with the Commission
or any national securities exchange on which any class of securities
of the Company may be listed.
(g) Prior to the Time of Purchase, the Company will furnish to
the Initial Purchaser, as soon as they have been prepared, a copy of
any unaudited interim financial statements of the Company for any
period subsequent to the period covered by the most recent financial
statements appearing in the Final Memorandum.
(h) None of the Company or any of its Affiliates will sell,
offer for sale or solicit offers to buy or otherwise negotiate in
respect of any "security" (as defined in the Act) which could be
integrated with the sale of any of the Securities in a manner which
would require the registration under the Act of any of the
Securities.
(i) The Company will not, and will not permit any of its
Subsidiaries to, solicit any offer to buy or offer to sell the
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.
(j) For so long as any of the Securities remain outstanding
and are "restricted securities" within the meaning of Rule 144(a)(3)
under the Act and not salable in full under Rule 144 under the Act
(or any successor provision), the Company will make available, upon
request, to any seller of such Securities the information specified
in Rule 144A(d)(4) under the Act, unless the Company is then subject
to Section 13 or 15(d) of the Exchange Act.
(k) The Company will use its best efforts to (i) permit the
Securities to be included for quotation on PORTAL and (ii) permit
the Securities to be eligible for clearance and settlement through
The Depository Trust Company.
(l) The Company and the Guarantors will use their best efforts
to do and perform all things required to be done and performed by
them under this Agreement and the other Basic Documents prior to or
after the Closing and to satisfy all
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conditions precedent on their part to the obligations of the Initial
Purchaser to purchase and accept delivery of the Securities.
ARTICLE VI
FEES
Section 6.1. Costs, Expenses and Taxes. The Company agrees to pay
all costs and expenses incident to the performance of its obligations under this
Agreement, whether or not the transactions contemplated herein are consummated
or this Agreement is terminated pursuant to Section 8.2 hereof, including, but
not limited to, all costs and expenses incident to (i) its negotiation,
preparation, printing, typing, reproduction, execution and delivery of this
Agreement and each of the other Basic Documents, any amendment or supplement to
or modification of any of the foregoing and any and all other documents
furnished pursuant hereto or thereto or in connection herewith or therewith,
(ii) any costs of printing the Preliminary Memorandum and the Final Memorandum
and any amendment or supplement thereto, any other marketing related materials
and any "blue sky" memoranda (which shall include the reasonable disbursements
of counsel to the Initial Purchaser in respect thereof), (iii) all arrangements
relating to the delivery to the Initial Purchaser of copies of the foregoing
documents, (iv) the fees and disbursements of the counsel, the accountants and
any other experts or advisors retained by the Company, (v) the fees and expenses
of counsel to the Initial Purchaser, (vi) preparation (including printing),
issuance and delivery to the Initial Purchaser of the Securities, including
transfer agent fees, (vii) the qualification of the Securities under state
securities and "blue sky" laws, including filing fees and reasonable fees and
disbursements of counsel to the Initial Purchaser relating thereto, (viii) its
respective expenses and the cost of any private or chartered jets in connection
with any meetings with prospective investors in the Securities, (ix) fees and
expenses of the Trustee, Debenture Trustee, Warrant Agent, Unit Agent and
transfer agent for the Shares including fees and expenses of counsel to the
Trustee, Debenture Trustee, Warrant Agent, Unit Agent and transfer agent for the
Shares, (x) all expenses and listing fees incurred in connection with the
application for quotation of the Securities on PORTAL, (xi) any fees charged by
investment rating agencies for the rating of the Securities and
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(xii) except as limited by Article VII, all costs and expenses (including,
without limitation, reasonable attorneys' fees and expenses), if any, in
connection with the enforcement of this Agreement, the Securities or any other
agreement furnished pursuant hereto or thereto or in connection herewith or
therewith. In addition, the Company shall pay any and all stamp, transfer and
other similar taxes (but excluding any income, franchise, personal property, ad
valorem or gross receipts taxes) payable or determined to be payable in
connection with the execution and delivery of this Agreement, any of the other
Basic Documents or the issuance of the Securities, and shall save and hold the
Initial Purchaser harmless from and against any and all liabilities with respect
to or resulting from any delay in paying, or omission to pay, such taxes (other
than if such delay is caused by the Initial Purchaser).
ARTICLE VII
INDEMNITY
Section 7.1. Indemnity.
(a) Indemnification by the Company and the Guarantors. The
Company and the Guarantors agree and covenant to jointly and
severally hold harmless and indemnify the Initial Purchaser and any
director, officer, employee, agent or controlling Person of any of
the foregoing from and against any losses, claims, damages,
liabilities and expenses (including expenses of investigation) to
which the Initial Purchaser and such Affiliates of the Initial
Purchaser may become subject arising out of or based upon any untrue
statement or alleged untrue statement of any material fact contained
in the Memoranda and any amendments or supplements thereto, any
documents filed with the Commission or any State Commission
(collectively, the "Offering Materials") or arising out of or based
upon the omission or alleged omission to state in any of the
Offering Materials a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided,
however, that the Company and the Guarantors shall not be liable
under this paragraph (a) to the extent that such losses, claims,
damages or liabilities arose out of or are based upon an untrue
statement or omission or alleged untrue statement or omission made
in any of the documents referred
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to in this paragraph (a) in reliance upon and in conformity with the
information relating to the Initial Purchaser furnished in writing
by the Initial Purchaser for inclusion therein (or for a breach by
the Initial Purchaser of any representation or warranty contained in
this Agreement); provided, further, that the Company and the
Guarantors shall not be liable under this paragraph (a) to the
extent that such losses, claims, damages or liabilities arose out of
or are based upon an untrue statement or omission or alleged untrue
statement or omission made in any Memoranda that is corrected in the
Final Memorandum (or any amendment or supplement thereto) if the
person asserting such loss, claim, damage or liability purchased
Shares from the Initial Purchaser in reliance on such Memorandum but
was not given the Final Memorandum (or any amendment or supplement
thereto) on or prior to the confirmation of the sale of such Shares.
The Company and the Guarantors further agree jointly and severally
to reimburse the Initial Purchaser for any reasonable legal and
other expenses as they are incurred by it in connection with
investigating, preparing to defend or defending any lawsuits, claims
or other proceedings or investigations for which indemnification may
be sought under this paragraph (a); provided that if the Company and
the Guarantors reimburse the Initial Purchaser hereunder for any
expenses incurred in connection with a lawsuit, claim or other
proceeding for which indemnification is sought, the Initial
Purchaser hereby agrees to refund such reimbursement of expenses to
the extent that the losses, claims, damages or liabilities arise out
of or are based upon an untrue statement or omission or alleged
untrue statement or omission made in any of the documents referred
to in this paragraph (a) in reliance upon and in conformity with the
information relating to the Initial Purchaser furnished in writing
by the Initial Purchaser for inclusion therein (or for a breach by
the Initial Purchaser of any representation or warranty contained in
this Agreement). The Company and the Guarantors further agree that
the indemnification, contribution and reimbursement commitments set
forth in this Article VII shall apply whether or not the Initial
Purchaser is a formal party to any such lawsuits, claims or other
proceedings. The indemnity, contribution and expense reimbursement
obligations of the Company and the Guarantors under this Article VII
shall be in addition to any liability the Company may otherwise
have.
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(b) Indemnification by the Initial Purchaser. The Initial
Purchaser agrees and covenants to hold harmless and indemnify the
Company and the Guarantors and any director, officer, employee,
agent or controlling Person of any of the foregoing from and against
any losses, claims, damages, liabilities and expenses insofar as
such losses, claims, damages, liabilities or expenses arise out of
or are based upon any untrue statement or alleged untrue statement
of any material fact contained in the Offering Materials, or any
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 such untrue statement or omission was made in reliance
upon and in conformity with the information relating to the Initial
Purchaser furnished in writing by the Initial Purchaser for
inclusion therein. The Initial Purchaser agrees to reimburse the
Company and the Guarantors for any reasonable legal and other
expenses as they are incurred by them in connection with
investigating, preparing to defend or defending any lawsuits, claims
or other proceedings or investigations for which indemnification may
be sought under this paragraph (b). The indemnity, contribution and
expense reimbursement obligations of the Initial Purchaser under
this Article VII shall be in addition to any liability the Initial
Purchaser may otherwise have.
(c) Procedure. If any Person shall be entitled to indemnity
hereunder (each an "Indemnified Party"), such Indemnified Party
shall give prompt written notice to the party or parties from which
such indemnity is sought (each an "Indemnifying Party") of the
commencement of any action, suit, investigation or proceeding,
governmental or otherwise (a "Proceeding"), with respect to which
such Indemnified Party seeks indemnification or contribution
pursuant hereto; provided, however, that the failure so to notify
the Indemnifying Parties shall not relieve the Indemnifying Parties
from any obligation or liability except to the extent that the
Indemnifying Parties have been prejudiced materially by such
failure. The Indemnifying Parties shall have the right, exercisable
by giving written notice to an Indemnified Party promptly after the
receipt of written notice from such Indemnified Party of such
Proceeding, to assume, at the Indemnifying Parties' expense, the
defense of
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any such Proceeding, with counsel reasonably satisfactory to such
Indemnified Party; provided, however, that an Indemnified Party or
Parties (if more than one such Indemnified Party is named in any
Proceeding) shall have the right to employ separate counsel in any
such Proceeding and to participate in the defense thereof, but the
fees and expenses of such counsel shall be at the expense of such
Indemnified Party or parties unless: (1) the Indemnifying Parties
agree to pay such fees and expenses; or (2) the Indemnifying Parties
fail promptly to assume the defense of such Proceeding or fail to
employ counsel reasonably satisfactory to such Indemnified Party or
Parties; or (3) the named parties to any such Proceeding (including
any impleaded parties) include both such Indemnified Party or
Parties and the Indemnifying Party or an Affiliate of the
Indemnifying Party and such Indemnified Parties, and the Indemnified
Parties shall have been advised in writing by counsel that there may
be one or more legal defenses available to such Indemnified Party or
Parties that are different from or additional to those available to
the Indemnifying Parties and in the reasonable judgment of such
counsel it is advisable for such Indemnified Parties to employ
separate counsel, in which case, if such Indemnified Party or
Parties notifies the Indemnifying Parties in writing that it elects
to employ separate counsel at the expense of the Indemnifying
Parties, the Indemnifying Parties shall not have the right to assume
the defense thereof with respect to the Indemnified Parties and such
counsel shall be at the expense of the Indemnifying Parties, it
being understood, however, that the Indemnifying Parties shall not,
in connection with any one such Proceeding or separate but
substantially similar or related Proceedings in the same
jurisdiction, arising out of the same general allegations or
circumstances, be liable for the fees and expenses of more than one
separate firm of attorneys (together with appropriate local counsel)
at any time for such Indemnified Party or Parties (which firm (and
local counsel, if any) shall be designated in writing by such
Indemnified Party or Parties), or for fees and expenses that are not
reasonable. No Indemnified Party or Parties will settle any
Proceeding without the consent of the Indemnifying Party or Parties
(but such consent shall not be unreasonably withheld). Each
Indemnified Party shall use its best efforts to cooperate with the
Indemnifying Parties
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in the defense of any such Proceeding. No Indemnifying Party shall,
without the prior written consent of the Indemnified Party, effect
any settlement of any pending or threatened Proceeding in respect of
which any Indemnified Party is or could have been or a party and
indemnity could have been sought hereunder by such Indemnified
Party, unless such settlement includes an unconditional release of
such Indemnified Party from all liability or claims that are the
subject of such Proceeding.
Section 7.2. Contribution. If for any reason the indemnification
provided for in Section 7.1 of this Agreement is unavailable to an Indemnified
Party, or insufficient to hold it harmless, in respect of any losses, claims,
damages, liabilities or expenses referred to therein, then each applicable
Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall
contribute to the amount paid or payable by such Indemnified Party as a result
of such losses, claims, damages or liabilities in such proportion as is
appropriate to reflect not only the relative benefits received by the
Indemnifying Party on the one hand and the Indemnified Party on the other from
the offering of the Securities, but also the relative fault of the Indemnifying
and Indemnified Parties in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by the
Indemnifying and Indemnified Parties shall be deemed to be in the same
proportion as the total proceeds from the offering of the Securities (net of
discounts but before deducting expenses) received by the Company bear to the
total discounts and commissions received by the Initial Purchaser. The relative
fault of the Indemnifying and Indemnified Parties 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 Indemnifying or Indemnified Parties and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. The amount paid or payable by
a party as a result of the losses, claims, damages and liabilities referred to
above shall be deemed to include any legal or other fees or expenses reasonably
incurred by such party in connection with investigating or defending any such
claim.
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The Company and the Guarantors, on the one hand, and the Initial
Purchaser, on the other hand, agree that it would not be just and equitable if
contribution pursuant to the immediately preceding paragraph were determined pro
rata or per capita or by any other method of allocation which does not take into
account the equitable considerations referred to in such paragraph.
Notwithstanding any other provision of this Section 7.2, the Initial Purchaser
shall not be obligated to make contributions hereunder that in the aggregate
exceed the total discounts, commissions and other compensation received by the
Initial Purchaser under this Agreement, less the aggregate amount of any damages
that the Initial Purchaser has otherwise been required to pay by reason of the
untrue or alleged untrue statements or a breach of a representation or warranty
or the omissions or alleged omissions to state a material fact. 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.
Section 7.3. Registration Rights. Notwithstanding anything to the
contrary in this Article VII, the indemnification and contribution provisions of
the Notes Registration Rights Agreement and the Preferred Stock Registration
Rights Agreement shall govern any claim with respect thereto.
ARTICLE VIII
MISCELLANEOUS
Section 8.1. Survival of Provisions. The representations, warranties
and covenants of the Company, the Guarantors and their respective officers and
the Initial Purchaser made herein, the indemnity and contribution agreements
contained herein and each of the provisions of Articles VI, VII and VIII shall
remain operative and in full force and effect regardless of (a) the
investigation made by or on behalf of the Company or a Guarantor, the Initial
Purchaser or any Indemnified Party, (b) acceptance of any of the Securities and
payment therefor, (c) any termination of this Agreement or (d) disposition of
the Securities by the Initial Purchaser whether by redemption, exchange, sale or
otherwise.
Section 8.2. Termination. (a) This Agreement may be terminated by
the Initial Purchaser by notice to the Company given prior to the Time of
Purchase in the event that the Company
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shall have failed, refused or been unable to perform all obligations and satisfy
all conditions on its part to be performed or satisfied hereunder at or prior
thereto or, if at or prior to the Closing:
(i) the Company or any of its Subsidiaries shall have
sustained any loss or interference with respect to its
businesses or properties from fire, flood, hurricane, accident
or other calamity, whether or not covered by insurance, or
from any strike, labor dispute, slow down or work stoppage or
any legal or governmental proceeding, which loss or
interference, in the sole judgment of the Initial Purchaser,
has had or has a Material Adverse Effect, or there shall have
been any event or development that, individually or in the
aggregate, has or could be reasonably likely to have a
Material Adverse Effect (including without limitation a change
in control of the Company or any of its Subsidiaries), except
in each case as described in the Final Memorandum (exclusive
of any amendment or supplement thereto);
(ii) trading in securities of the Company or in
securities generally on the New York Stock Exchange, American
Stock Exchange or the Nasdaq National Market shall have been
suspended or minimum or maximum prices shall have been
established on any such exchange or market;
(iii) a banking moratorium shall have been declared by
New York or United States authorities;
(iv) there shall have been (A) an outbreak or escalation
of hostilities between the United States and any foreign
power, or (B) an outbreak or escalation of any other
insurrection or armed conflict involving the United States or
any other national or international calamity or emergency, or
(C) any material change in the financial markets of the United
States which, in the case of (A), (B) or (C) above and in the
sole judgment of the Initial Purchaser, makes it impracticable
or inadvisable to proceed with the offering or the delivery of
the Securities as contemplated by the Final Memorandum; or
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(v) any securities of the Company shall have been
downgraded or placed on any "watch list" for possible
downgrading by any nationally recognized statistical rating
organization.
(b) Termination of this Agreement pursuant to this Section 8.2
shall be without liability of any party to any other party except as
provided in Section 8.1 hereof.
Section 8.3. No Waiver; Modifications in Writing. No failure or
delay on the part of the Company, a Guarantor or the Initial Purchaser in
exercising any right, power or remedy hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or
remedy preclude any other or further exercise thereof or the exercise of any
other right, power or remedy. The remedies provided for herein are cumulative
and are not exclusive of any remedies that may be available to the Company, a
Guarantor or the Initial Purchaser at law or in equity or otherwise. No waiver
of or consent to any departure by the Company, a Guarantor or the Initial
Purchaser from any provision of this Agreement shall be effective unless signed
in writing by the party entitled to the benefit thereof, provided that notice of
any such waiver shall be given to each party hereto as set forth below. Except
as otherwise provided herein, no amendment, modification or termination of any
provision of this Agreement shall be effective unless signed in writing by or on
behalf of each of the Company, the Guarantors and the Initial Purchaser. Any
amendment, supplement or modification of or to any provision of this Agreement,
any waiver of any provision of this Agreement, and any consent to any departure
by the Company, a Guarantor or the Initial Purchaser from the terms of any
provision of this Agreement, shall be effective only in the specific instance
and for the specific purpose for which made or given. Except where notice is
specifically required by this Agreement, no notice to or demand on the Company
or a Guarantor in any case shall entitle the Company or a Guarantor to any other
or further notice or demand in similar or other circumstances.
Section 8.4. Information Supplied by the Initial Purchaser. The
statements set forth in the third paragraph, the third sentence of the fifth
paragraph and the seventh paragraph under the heading "Plan of Distribution" in
the Final Memorandum (to the extent such statements relate to the Initial
Purchaser)
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constitute the only information furnished by the Initial Purchaser to the
Company for the purposes of Sections 3.1(a) and 7.1(a) and (b) hereof.
Section 8.5. Communications. All notices, demands and other
communications provided for hereunder shall be in writing, and, (a) if to the
Initial Purchaser, shall be given by registered or certified mail, return
receipt requested, telex, telegram, telecopy, courier service or personal
delivery, addressed to CIBC Wood Gundy Securities Corp., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇, with a copy to
▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq., and (b) if to the Company or a Guarantor, shall be given by
similar means to Spanish Broadcasting System, Inc., ▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇, Chief Financial Officer, with a copy
to ▇▇▇▇, Scholer, Fierman, ▇▇▇▇ & Handler, LLP, Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
In each case notices, demands and other communications shall be deemed given
when received.
Section 8.6. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto on
separate counterparts, each of which counterparts, when so executed and
delivered, shall be deemed to be an original and all of which counterparts,
taken together, shall constitute but one and the same Agreement.
Section 8.7. Successors. This Agreement shall inure to the benefit
of and be binding upon the Initial Purchaser, the Company, the Guarantors and
their respective successors and legal representatives, and nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any other
Person any legal or equitable right, remedy or claim under or in respect of this
Agreement, or any provisions herein contained; this Agreement and all conditions
and provisions hereof being intended to be and being for the sole and exclusive
benefit of such Persons and for the benefit of no other Person except that (i)
the indemnities of the Company and the Guarantors contained in Section 7.1(a) of
this Agreement shall also be for the benefit of the directors, officers,
employees and agents of the Initial Purchaser and any Person or Persons who
control the Initial Purchaser within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act and (ii) the indemnities of the Initial Purchaser
contained in Section 7.1(b) of this Agreement shall
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also be for the benefit of the Company, the Guarantors, their respective
directors, officers, employees and agents and any Person or Persons who control
the Company or a Guarantor within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act. No purchaser of any Securities from the Initial
Purchaser will be deemed a successor because of such purchase.
Section 8.8. Governing Law. THIS AGREEMENT SHALL BE DEEMED TO BE A
CONTRACT MADE UNDER THE LAWS OF THE STATE OF NEW YORK, AND FOR ALL PURPOSES
SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF SAID STATE, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW.
Section 8.9. Severability of Provisions. Any provision of this
Agreement which is prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or
affecting the validity or enforceability of such provision in any other
jurisdiction.
Section 8.10. Headings. The Article and Section headings and Table
of Contents used or contained in this Agreement are for convenience of reference
only and shall not affect the construction of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the date first written above.
SPANISH BROADCASTING SYSTEM, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇.
---------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇.
Title: President and
Chief Executive Officer
SPANISH BROADCASTING SYSTEM, INC.
a New Jersey corporation
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇.
---------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇.
Title: President and
Chief Executive Officer
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SPANISH BROADCASTING SYSTEM OF
CALIFORNIA, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇.
---------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇.
Title: President and
Chief Executive Officer
SPANISH BROADCASTING SYSTEM OF
FLORIDA, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇.
---------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇.
Title: President and
Chief Executive Officer
SPANISH BROADCASTING SYSTEM
NETWORK, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇.
---------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇.
Title: President and
Chief Executive Officer
SBS PROMOTIONS, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇.
---------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇.
Title: President and
Chief Executive Officer
▇▇▇▇▇▇▇ HOLDINGS, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇.
---------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇.
Title: President and
Chief Executive Officer
SBS OF GREATER NEW YORK, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇.
---------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇.
Title: President and
Chief Executive Officer
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The foregoing Agreement is hereby
confirmed and accepted as of the
date first written above
CIBC WOOD GUNDY SECURITIES CORP.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Managing Director
47
