Exhibit 10.11
BIG CITY RADIO, INC.
$174,000,000
11 1/4% Senior Discount Notes due 2005
PURCHASE AGREEMENT
March 12, 1998
CHASE SECURITIES INC.
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
SECURITIES CORPORATION
BT ▇▇▇▇ ▇▇▇▇▇ INCORPORATED
ING BARING (U.S.) SECURITIES, INC.
c/o Chase Securities Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Big City Radio, Inc., a Delaware corporation (the "Company"), proposes
to issue and sell $174,000,000 aggregate principal amount of its 11 1/4%
Senior Discount Notes due 2005 (the "Notes") which Notes are guaranteed (the
"Guarantees") by the subsidiary guarantors (the "Subsidiary Guarantors")
named on the signature pages hereof (the Guarantees and the Notes are
collectively referred to herein as the "Securities;" and the Company and the
Subsidiary Guarantors are collectively referred to herein as the "Issuers").
The Securities will be issued pursuant to an Indenture to be dated as of
March 18, 1998 (the "Indenture"), by and among the Company, the Subsidiary
Guarantors and First Trust National Association, a national association, as
trustee (the "Trustee"). The Issuers hereby confirm their agreement with
Chase Securities Inc. ("CSI"), ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities
Corporation ("DLJ"), BT ▇▇▇▇ ▇▇▇▇▇ Incorporated ("▇▇▇▇ ▇▇▇▇▇"), ING Baring
(U.S.) Securities, Inc. ("INGBS," and together with CSI, DLJ and ▇▇▇▇ ▇▇▇▇▇,
the "Initial Purchasers") concerning the purchase of the Securities from the
Issuers by the several Initial Purchasers.
The Securities will be offered and sold to the Initial Purchasers without
being registered under the Securities Act of 1933, as amended (the "Securities
Act"), in reliance upon an
exemption therefrom. The Issuers have prepared a preliminary offering
memorandum dated February 25, 1998 (the "Preliminary Offering Memorandum")
and will prepare an offering memorandum, dated the date hereof (the "Offering
Memorandum"), setting forth information concerning the Issuers and the
Securities. Copies of the Preliminary Offering Memorandum have been, and
copies of the Offering Memorandum will be, delivered by the Issuers to the
Initial Purchasers pursuant to the terms of this Agreement. Any references
herein to the Preliminary Offering Memorandum and the Offering Memorandum
shall be deemed to include all amendments and supplements thereto, unless
otherwise noted. The Issuers hereby confirm that they have authorized the use
of the Preliminary Offering Memorandum and the Offering Memorandum in
connection with the offering and resale of the Securities by the Initial
Purchasers in accordance with Section 2.
Holders of the Securities (including the Initial Purchasers and their
direct and indirect transferees) will be entitled to the benefits of an
Exchange and Registration Rights Agreement, substantially in the form
attached hereto as Annex A (the "Registration Rights Agreement"), pursuant to
which the Issuers will agree to file with the Securities and Exchange
Commission (the "Commission") (i) a registration statement under the
Securities Act (the "Exchange Offer Registration Statement") registering an
issue of senior discount notes of the Company and related guarantees
(together, the "Exchange Securities") which are identical in all material
respects to the Securities (except that the Exchange Securities will not
contain terms with respect to transfer restrictions) and (ii) under certain
circumstances, a shelf registration statement pursuant to Rule 415 under the
Securities Act (the "Shelf Registration Statement").
Capitalized terms used but not defined herein shall have the meanings
given to such terms in the Offering Memorandum.
1. Representations, Warranties and Agreements of the Issuers. The
Issuers, jointly and severally, represent and warrant to, and agree with, the
several Initial Purchasers on and as of the date hereof and the Closing Date
(as defined in Section 3) or on and as of such other date as specified herein
that:
(a) Each of the Preliminary Offering Memorandum and the Offering
Memorandum, as of its respective date, did not, and on the Closing Date the
Offering Memorandum will not, contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that the
Issuers make no representation or warranty as to information contained in
or omitted from the Preliminary Offering Memorandum or the Offering
Memorandum in reliance upon and in conformity with written information
relating to the Initial Purchasers furnished to the Issuers by or on behalf
of any Initial Purchaser specifically for use therein (the "Initial
Purchasers' Information").
(b) Each of the Preliminary Offering Memorandum and the Offering
Memorandum,
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as of its respective date, contains all of the information that, if
requested by a prospective purchaser of the Securities, would be required
to be provided to such prospective purchaser pursuant to Rule 144A(d)(4)
under the Securities Act.
(c) Assuming the accuracy of the representations and warranties of the
Initial Purchasers contained in Section 2 and their compliance with the
agreements set forth therein, it is not necessary, in connection with the
issuance and sale of the Securities to the Initial Purchasers and the
offer, resale and delivery of the Securities by the Initial Purchasers in
the manner contemplated by this Agreement and the Offering Memorandum, to
register the Securities under the Securities Act or to qualify the
Indenture under the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act").
(d) The Company and each of its subsidiaries have been duly organized,
are validly existing as corporations or limited liability companies in good
standing under the laws of their respective jurisdictions of organization
and have the power (corporate or other) and authority to carry on their
respective businesses as described in the Offering Memorandum and to own,
lease and operate their respective properties, and are duly qualified and
are in good standing as foreign corporations or limited liability companies
authorized to do business in each jurisdiction in which the nature of their
respective businesses or their ownership or leasing of property requires
such qualification, except where the failure to be so qualified could not
be reasonably expected to have a material adverse effect on the business,
prospects, financial condition or results of operations of the Company and
its subsidiaries, taken as a whole.
(e) There are no outstanding subscriptions, rights, warrants, options,
calls, convertible or exchangeable securities, commitments of sale or liens
granted or issued by the Company or any of its subsidiaries relating to or
entitling any person to purchase or otherwise to acquire any shares of the
capital stock of the Company or any of its subsidiaries except as otherwise
disclosed in the Offering Memorandum.
(f) All the outstanding shares of capital stock of the Company have
been duly authorized and validly issued and are fully paid, nonassessable
and not subject to any preemptive or similar rights.
(g) All the outstanding shares of capital stock of each subsidiary of
the Company have been duly authorized and are validly issued, fully paid
and nonassessable and not subject to any preemptive or similar rights and
are owned, directly or indirectly, by the Company.
(h) The Company has an authorized capitalization as set forth in all
material respects in the Offering Memorandum under the heading
"Capitalization."
(i) Neither the Company nor any of its subsidiaries is in violation of
its charter,
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by-laws or other constitutive documents; and neither the Company nor any of
its subsidiaries is in default in the performance of any obligation,
agreement, covenant or condition contained in any indenture, loan
agreement, mortgage or lease or in any other agreement or instrument each
of which is material to the Company and its subsidiaries, taken as a whole,
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 property is
bound.
(j) The Issuers have full corporate or limited liability company
right, power and authority to execute and deliver this Agreement, the
Indenture, the Registration Rights Agreement and the Securities
(collectively, the "Transaction Documents") and to perform their respective
obligations hereunder and thereunder; and all corporate or other action
required to be taken for the due and proper authorization, execution and
delivery of each of the Transaction Documents and the consummation of the
transactions contemplated thereby have been duly and validly taken.
(k) This Agreement has been duly authorized, executed and delivered by
each of the Issuers.
(l) The execution, delivery and performance of each of the Transaction
Documents by each of the Issuers, as the case may be, the issuance,
authentication, sale and delivery of the Securities and the compliance by
each of the Issuers, as the case may be, with the terms thereof, the
compliance by each of the Issuers, as the case may be, with all the
provisions hereof and the consummation of the transactions contemplated by
the Transaction Documents will not (i) require any consent, approval,
authorization or other order of, or qualification with, any court or
governmental body or agency (except such as may be required under the
securities or Blue Sky laws of the various states), (ii) conflict with or
constitute a breach of any of the terms or provisions of, or a default
under, the charter or by-laws or other constitutive documents of the
Company or its subsidiaries or any indenture, loan agreement, mortgage,
lease or other agreement or instrument that is material to the Company and
its subsidiaries, taken as a whole, 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 property is bound, (iii) violate or conflict
with any applicable law or any rule, regulation, judgment, order or decree
of any court or any governmental body or agency having jurisdiction over
the Company or any of its subsidiaries or any of their respective property
or (iv) result in the suspension, termination or revocation of any
Authorization (as defined below) of the Company or of any of its
subsidiaries or any other impairment of the rights of the holder of any
such Authorization.
(m) There are no legal or governmental proceedings pending or, to the
Company's knowledge, threatened to which the Company or any of its
subsidiaries is or, to the Company's knowledge, could be a party or to
which any of their respective property is or, to the Company's knowledge,
could be subject that are required to be described in the Offering
Memorandum and are not so described; nor are there any statutes,
regulations,
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contracts or other documents that are required to be described in the
Offering Memorandum that are not so described as required.
(n) Neither the Company nor any of its subsidiaries has violated any
foreign, federal, state or local law or regulation relating to the
protection of human health and safety, the environment or hazardous or
toxic substances or wastes, pollutants or contaminants ("Environmental
Laws") or any provisions of the Employee Retirement Income Security Act of
1974, as amended, or the rules and regulations promulgated thereunder,
except for such violations which, singly or in the aggregate, could not
reasonably be expected to have a material adverse effect on the business,
prospects, financial condition or results of operation of the Company and
its subsidiaries, taken as a whole.
(o) The Company and each of its subsidiaries possess such permits,
licenses, approvals, consents, and other authorizations (collectively,
"Government Licenses") issued by the appropriate federal, state, or local
regulatory agencies or bodies necessary to conduct the Company's and each
of its subsidiaries' respective businesses as they are currently operated
and as they are currently proposed to be conducted, except as discussed in
the Offering Memorandum; each of the Governmental Licenses is valid, in
full force and effect, has not been suspended, revoked, cancelled, or
modified in any adverse way, and is not subject to any conditions or
requirements that are not generally imposed by the relevant government
bodies upon the holders of such authorizations generally; to the Company's
knowledge, except for proceedings that affect the radio broadcasting
industry generally and as described in the Offering Memorandum, there is
not pending any application, petition, objection or other pleading with any
government body which questions the validity of or contests any of the
Governmental Licenses; no application, action, or proceeding is pending or,
to the Company's knowledge, threatened, that would permit, or after notice
or lapse of time or both would permit, any modification, revocation,
suspension or termination of any of the Governmental Licenses or may result
in the revocation, modification, non-renewal, suspension, or termination of
any of the Governmental Licenses, the issuance of a cease-and-desist order,
or the imposition of any administrative or judicial sanction with respect
to any of the Governmental Licenses; and the Company and each of its
subsidiaries are in compliance with the terms and conditions of all such
Governmental Licenses, except where the failure to so comply could not,
singly or in the aggregate, be reasonably expected to have a material
adverse effect on the business, prospects, financial condition or results
of operations of the Company and its subsidiaries, taken as a whole.
(p) The Company and each of its subsidiaries have such permits,
licenses, consents, exemptions, franchises, authorizations and other
approvals (each, an "Authorization") of, and have made all filings with and
notices to, all governmental or regulatory authorities and self-regulatory
organizations and all courts and other tribunals, including, without
limitation, under any applicable Environmental Laws and the Communications
Act (as defined below), as are necessary to own, lease, license and operate
their respective properties and to conduct their respective businesses,
except where the failure to have any such Authorization or to
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make any such filing or notice could not, singly or in the aggregate, be
reasonably expected to have a material adverse effect on the business,
prospects, financial condition or results of operations of the Company and
its subsidiaries, taken as a whole. To the best of the Company's knowledge,
each such Authorization is valid and in full force and effect and the
Company and each of its subsidiaries are in compliance with all the terms
and conditions thereof and with the rules and regulations of the
authorities and governing bodies having jurisdiction with respect thereto;
and no event has occurred (including, without limitation, the receipt of
any notice from any authority or governing body) which allows or, after
notice or lapse of time or both, would allow, revocation, suspension or
termination of any such Authorization or results or, after notice or lapse
of time or both, would result in any other impairment of the rights of the
holder of any such Authorization; and no such Authorization contains any
restrictions that, singly or in the aggregate, are materially burdensome to
the Company and its subsidiaries, taken as a whole; except where such
failure to be valid and in full force and effect or to be in compliance,
the occurrence of any such event or the presence of any such restriction
could not, singly or in the aggregate, be reasonably expected to have a
material adverse effect on the business, prospects, financial condition or
results of operations of the Company and its subsidiaries, taken as a
whole.
(q) The execution, delivery and performance of this Agreement,
compliance by the Company with all the provisions hereof and the
consummation of the transactions contemplated hereby have not and will not
(A) require any consent, approval, authorization or other order of the
Federal Communications Commission (the "FCC") or (B) violate or conflict
with the Communications Act of 1934, as amended, and the rules and
regulations of the FCC thereunder (collectively called the "Communications
Act") or rulings or court decrees thereunder. Subsequent to the execution
of this Agreement, the Company may be required to file certain customary
notifications or documents with the FCC.
(r) To the best of the Company's knowledge, the operation of the radio
stations identified in the Offering Memorandum under the caption "Business"
(collectively, the "Radio Stations") in the manner and to the full extent
now operated or proposed to be operated as described in the Offering
Memorandum is in accordance with the Authorizations issued by the FCC, the
Communications Act and all orders, rules and regulations of the FCC. To the
best of the Company's knowledge, no event has occurred which permits (nor
has an event occurred which with notice or lapse of time or both would
permit) the revocation, suspension or termination of the Authorizations
issued by the FCC or which might result in any other material impairment of
the rights of the Company or any of its subsidiaries therein or thereunder,
and the Company and its subsidiaries each are in compliance with all
statutes, orders, rules or regulation of the FCC relating to or affecting
the broadcasting operations of any of its Radio Stations.
(s) There are no costs or liabilities associated with Environmental
Laws (including, without limitation, any capital or operating expenditures
required for clean-up, closure of properties or compliance with
Environmental Laws or any Authorization, any related
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constraints on operating activities and any potential liabilities to third
parties) which could, singly or in the aggregate, be reasonably expected to
have a material adverse effect on the business, prospects, financial
condition or results of operations of the Company and its subsidiaries,
taken as a whole.
(t) KPMG Peat Marwick LLP are independent public accountants with
respect to the Company, WZVU-FM ("WZVU") and WVVX, Inc. ("WVVX") and each
of their respective subsidiaries within the meaning of Rule 101 of the Code
of Professional Conduct of the American Institute of Certified Public
Accountants ("AICPA") and its interpretations and rulings thereunder. ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ & Co. LLP are independent public accountants with respect to the
Company and each of its subsidiaries within the meaning of Rule 101 of the
Code of Professional Conduct of the AICPA and its interpretations and
rulings thereunder.
(u) The pro forma financial statements of the Company and the related
notes thereto set forth in the Offering Memorandum (and in each case, any
amendment or supplement thereto) (i) have been prepared on a basis
consistent with the historical financial statements of the Company, (ii)
give effect to the assumptions used in the preparation thereof on a
reasonable basis and (iii) in good faith present fairly the historical and
proposed transactions contemplated therein. Such pro forma financial
statements have been prepared in accordance with the applicable
requirements of Rule 11-02 of Regulation S-X promulgated by the Commission.
The other pro forma financial and statistical information and data set
forth in the Offering Memorandum (and any supplement or amendment thereto)
are, in all material respects, accurately presented and prepared on a basis
consistent with the pro forma financial statements.
(v) The Company and each of its subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable assurance
that (i) transactions are executed in accordance with management's general
or specific authorizations; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset accountability; (iii)
access to assets is permitted only in accordance with management's general
or specific authorization and (iv) the recorded accountability for assets
is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
(w) The financial statements included in the Offering Memorandum (and
any amendment or supplement thereto), together with related notes, present
fairly the financial position, results of operations and changes in
financial position of the Company, WZVU and WVVX on the basis stated
therein at the respective dates, as applicable, or for the respective
periods to which they apply; such statements and related notes have been
prepared in accordance with generally accepted accounting principles
consistently applied throughout the periods involved; and the other
financial and statistical information and data set forth in the Offering
Memorandum (and any amendment or supplement thereto) are, in all material
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respects, accurately presented and prepared on a basis consistent with such
financial statements and the books and records of the Company.
(x) All tax returns required to be filed by the Company or any of its
subsidiaries in any jurisdiction have been filed, other than those filings
being contested in good faith and other than those filings of which the
failure to file could not, singly or in the aggregate, be reasonably
expected to have a material adverse effect on the business, prospects,
financial condition or results of operations of the Company and its
subsidiaries, taken as a whole, and all material taxes, including
withholding taxes, penalties and interest, assessments, fees and other
charges due or claimed to be due from such entities have been paid, other
than those being contested in good faith and for which adequate reserves
have been provided or those currently payable without penalty or interest.
(y) The Company and each of its subsidiaries is not and, after giving
effect to the offering and sale of the Securities and the application of
the proceeds thereof as described in the Offering Memorandum, will not be,
an "investment company" as such term is defined in the Investment Company
Act of 1940, as amended.
(z) Since the respective dates as of which information is given in the
Offering Memorandum, other than as set forth in the Offering Memorandum
(exclusive of any amendments or supplements thereto subsequent to the date
of this Agreement), (i) there has not occurred any material adverse change
or any development involving a prospective material adverse change in the
condition, financial or otherwise, or the earnings, business, prospects,
management or operations of the Company or any of its subsidiaries, (ii)
there has not been any material adverse change or any development involving
a prospective material adverse change in the capital stock or in the
long-term debt of the Company or any of its subsidiaries and (iii) neither
the Company nor any of its subsidiaries has incurred any material liability
or obligation, direct or contingent.
(aa) Each certificate signed by any officer of the Company and
delivered to the Initial Purchasers, or counsel for the Initial Purchasers,
pursuant to the terms hereof shall be deemed to be a representation and
warranty by the Company to each Initial Purchaser as to the matters covered
thereby.
(bb) The Company and each of its subsidiaries maintain insurance
covering their respective properties, operations, personnel and businesses
to the extent necessary to insure against such losses and risks as are
reasonably adequate in accordance with customary industry practice to
protect the Company, each of its subsidiaries and their respective
businesses.
(cc) The Registration Rights Agreement has been duly authorized,
executed and delivered by the Issuers and, assuming the due authorization,
execution and delivery by each of the other parties thereto, will
constitute a valid and legally binding agreement of the
8
Issuers, enforceable against the Issuers in accordance with its terms,
except to the extent that such enforceability may be limited by applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium
and other similar laws affecting creditors' rights generally and by general
equitable principles (whether considered in a proceeding in equity or at
law) and as to rights of indemnification or contribution thereunder may be
limited by principles of public policy or federal or state securities laws
relating thereto.
(dd) The Indenture has been duly authorized, executed and delivered by
the Issuers and, assuming the due authorization, execution and delivery by
each of the other parties thereto, will constitute a valid and legally
binding agreement of the Issuers, enforceable against the Issuers in
accordance with its terms, except to the extent that such enforceability
may be limited by applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws affecting creditors'
rights generally and by general equitable principles (whether considered in
a proceeding in equity or at law). On the Closing Date, the Indenture will
conform in all material respects to the requirements of the Trust Indenture
Act and the rules and regulations of the Commission applicable to an
indenture which is qualified thereunder.
(ee) The Securities have been duly authorized by the Issuers and, when
duly executed, authenticated, issued and delivered as provided in the
Indenture and paid for as provided herein, will be duly and validly issued
by the Issuers and will constitute valid and legally binding obligations of
the Issuers entitled to the benefits of the Indenture and enforceable
against the Issuers in accordance with their terms, except to the extent
that such enforceability may be limited by applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other
similar laws affecting creditors' rights generally and by general equitable
principles (whether considered in a proceeding in equity or at law).
(ff) Each Transaction Document conforms in all material respects to
the description thereof contained in the Offering Memorandum.
(gg) To the best knowledge of the Company and its subsidiaries, no
action has been taken and no statute, rule, regulation or order has been
enacted, adopted or issued by any governmental agency or body which
prevents the issuance of the Securities or suspends the sale of the
Securities in any jurisdiction; no injunction, restraining order or order
of any nature by any federal or state court of competent jurisdiction has
been issued with respect to the Company or any of its subsidiaries which
would prevent or suspend the issuance or sale of the Securities or the use
of the Preliminary Offering Memorandum or the Offering Memorandum in any
jurisdiction; no action, suit or proceeding is pending against or, to the
best knowledge of the Company, threatened against or affecting the Company
or any of its subsidiaries before any court or arbitrator or any
governmental agency, body or official, domestic or foreign, which could
reasonably be expected to materially interfere with or adversely
materially affect the issuance of the Securities or in any manner draw into
question the validity or enforceability of any of the Transaction Documents
or any action taken or to
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be taken pursuant thereto; and the Company has materially complied with any
and all requests by any securities authority in any jurisdiction for
additional information to be included in the Preliminary Offering
Memorandum and the Offering Memorandum.
(hh) On and immediately after the Closing Date, the Company (after
giving effect to the issuance of the Securities and to the application of
the net proceeds therefrom and to the other transactions related thereto as
described in the Offering Memorandum) will be Solvent. As used in this
paragraph, the term "Solvent" means, with respect to the Company on a
particular date, that on such date (i) the present fair market value (or
present fair saleable value) of the assets of the Company taken as a whole
is not less than the total amount required to pay the probable liabilities
of the Company on its total existing debts and liabilities (including
contingent liabilities) as they become absolute and matured, (ii) the
Company is able to realize upon its assets and pay its debts and other
liabilities, contingent obligations and commitments as they mature and
become due in the normal course of business, (iii) assuming the sale of the
Securities and the application of the net proceeds therefrom as
contemplated by this Agreement and the Offering Memorandum, the Company is
not incurring debts or liabilities beyond its ability to pay as such debts
and liabilities as they mature and (iv) the Company is not engaged in any
business or transaction, and is not about to engage in any business or
transaction, for which its property would constitute unreasonably small
capital after giving due consideration to the prevailing practice in the
industry in which the Company is engaged. In computing the amount of such
contingent liabilities at any time, it is intended that such liabilities
will be computed at the amount that, in the light of all the facts and
circumstances existing at such time, represents the amount that can
reasonably be expected to become an actual or matured liability.
(ii) Neither the Company nor any of its subsidiaries owns any "margin
securities" as that term is defined in Regulations G and U of the Board of
Governors of the Federal Reserve System (the "Federal Reserve Board"), and
none of the proceeds of the sale of the Securities will be used, directly
or indirectly, for the purpose of purchasing or carrying any margin
security, for the purpose of reducing or retiring any indebtedness which
was originally incurred to purchase or carry any margin security or for any
other purpose which might cause any of the Securities to be considered a
"purpose credit" within the meanings of Regulation G, T, U or X of the
Federal Reserve Board.
(jj) The Securities satisfy the eligibility requirements of Rule
144A(d)(3) under the Securities Act.
(kk) None of the Company, any of its affiliates or any person acting
on its or their behalf has engaged or will engage in any directed selling
efforts (as such term is defined in Regulation S under the Securities Act
("Regulation S")), and all such persons have complied and will comply with
the offering restrictions requirement of Regulation S to the extent
applicable.
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(ll) Neither the Company nor any of its affiliates has, directly or
through any agent, sold, offered for sale, solicited offers to buy or
otherwise negotiated in respect of, any security (as such term is defined
in the Securities Act), which is or will be integrated with the sale of the
Securities in a manner that would require registration of the Securities
under the Securities Act.
(mm) None of the Company or any of its affiliates or any other person
acting on its or their behalf has engaged, in connection with the offering
of the Securities, in any form of general solicitation or general
advertising within the meaning of Rule 502(c) under the Securities Act.
(nn) The Company has not taken and will not take, directly or
indirectly, any action prohibited by Regulation M under the Securities
Exchange Act of 1934, as amended (the "Exchange Act") in connection with
the offering of the Securities.
(oo) No forward-looking statement (within the meaning of Section 27A
of the Securities Act and Section 21E of the Exchange Act) contained in the
Preliminary Offering Memorandum or the Offering Memorandum has been made or
reaffirmed without a reasonable basis or has been disclosed other than in
good faith.
(pp) The following sets forth a complete and accurate list of the
subsidiaries of the Company: Big City Radio-NYC, L.L.C., a Delaware limited
liability company, Big City Radio-CHI, L.L.C., a Delaware limited liability
company, Big City Radio-LA, L.L.C., a Delaware limited liability company,
Odyssey Traveling Billboards, Inc., a Delaware corporation and WRKL
Rockland Radio, L.L.C., a Delaware limited liability company.
2. Purchase and Resale of the Securities. (a) On the basis of the
representations, warranties and agreements contained herein, and subject to the
terms and conditions set forth herein, the Issuers agree, jointly and severally,
to issue and sell to each of the Initial Purchasers, severally and not jointly,
and each of the Initial Purchasers, severally and not jointly, agrees to
purchase from the Issuers, the principal amount of Securities set forth opposite
the name of such Initial Purchaser on Schedule 1 hereto at a purchase price
equal to 69.893% of the principal amount thereof. The Issuers shall not be
obligated to deliver any of the Securities except upon payment for all of the
Securities to be purchased as provided herein.
(b) The Initial Purchasers have advised the Issuers that they propose to
offer the Securities for resale upon the terms and subject to the conditions set
forth herein and in the Offering Memorandum. Each Initial Purchaser, severally
and not jointly, represents, warrants and agrees that (i) it has not solicited
offers for, or offered or sold, and will not solicit offers for, or offer or
sell, the Securities by means of any form of general solicitation or general
advertising within the meaning of Rule 502(c) of Regulation D under the
Securities Act ("Regulation D") or in any manner involving a public offering
within the meaning of Section 4(2) of the Securities Act and (ii) it has
solicited and will solicit offers for the Securities only from, and has offered
or sold and will offer,
11
sell or deliver the Securities, as part of their initial offering, only (A)
within the United States to persons whom it reasonably believes to be qualified
institutional buyers ("Qualified Institutional Buyers"), as defined in Rule 144A
under the Securities Act ("Rule 144A"), 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 it that each such account is a
Qualified Institutional Buyer 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 in accordance with Rule 144A and (B) outside the United States to
persons other than U.S. persons in reliance on Regulation S.
(c) In connection with the offer and sale of Securities in reliance on
Regulation S, each Initial Purchaser, severally and not jointly, represents,
warrants and agrees that:
(i) The Securities have not been registered under the Securities Act
and may not be offered or sold within the United States or to, or for the
account or benefit of, U.S. persons except pursuant to an exemption from,
or in transactions not subject to, the registration requirements of the
Securities Act.
(ii) Such Initial Purchaser has offered and sold the Securities, and
will offer and sell the Securities, (A) as part of their distribution at
any time and (B) otherwise until 40 days after the later of the
commencement of the offering of the Securities and the Closing Date, only
in accordance with Regulation S or Rule 144A or any other available
exemption from registration under the Securities Act.
(iii) None of such Initial Purchaser or any of its affiliates or any
other person acting on its or their behalf has engaged or will engage in
any directed selling efforts with respect to the Securities, and all such
persons have complied and will comply with the offering restrictions
requirement of Regulation S.
(iv) At or prior to the confirmation of sale of any Securities sold in
reliance on Regulation S, it will have sent to each distributor, dealer or
other person receiving a selling concession, fee or other remuneration that
purchase Securities from it during the restricted period a confirmation or
notice to substantially the following effect:
"The Securities covered hereby have not been registered under the U.S.
Securities Act of 1933, as amended (the "Securities Act"), and may not be
offered or sold within the United States or to, or for the account or
benefit of, U.S. persons (i) as part of their distribution at any time or
(ii) otherwise until 40 days after the later of the commencement of the
offering of the Securities and the date of original issuance of the
Securities, except in accordance with Regulation S or Rule 144A or any
other available exemption from registration under the Securities Act. Terms
used above have the meanings given to them by Regulation S."
(v) It has not and will not enter into any contractual arrangement
with any distributor with respect to the distribution of the Securities,
except with its affiliates
12
or with the prior written consent of the Company.
Terms used in this Section 2(c) have the meanings given to them by
Regulation S.
(d) Each Initial Purchaser, severally and not jointly, represents, warrants
and agrees that (i) it has not offered or sold and prior to the date six months
after the Closing Date will not offer or sell any Securities to persons in the
United Kingdom except to persons whose ordinary activities involve them in
acquiring, holding, managing or disposing of investments (as principal or agent)
for the purposes of their businesses or otherwise in circumstances which have
not resulted and will not result in an offer to the public in the United Kingdom
within the meaning of the Public Offers of Securities Regulations 1995; (ii) it
has complied and will comply with all applicable provisions of the Financial
Services ▇▇▇ ▇▇▇▇ and the Public Offers of Securities Regulations 1995 with
respect to anything done by it in relation to the Securities in, from or
otherwise involving the United Kingdom; and (iii) it has only issued or passed
on and will only issue or pass on in the United Kingdom any document received by
it in connection with the issue of the Securities to a person who is of a kind
described in Article 11(3) of the Financial Services ▇▇▇ ▇▇▇▇ (Investment
Advertisements) (Exemptions) Order 1996 or is a person to whom such document may
otherwise lawfully be issued or passed on.
(e) Each Initial Purchaser, severally and not jointly, agrees that, prior
to or simultaneously with the confirmation of sale by such Initial Purchaser to
any purchaser of any of the Securities purchased by such Initial Purchaser from
the Issuers pursuant hereto, such Initial Purchaser shall furnish to that
purchaser a copy of the Offering Memorandum (and any amendment or supplement
thereto that the Issuers shall have furnished to such Initial Purchaser prior to
the date of such confirmation of sale). In addition to the foregoing, each
Initial Purchaser acknowledges and agrees that the Issuers and, for purposes of
the opinions to be delivered to the Initial Purchasers pursuant to Sections 5(e)
and (f), counsel for the Issuers and for the Initial Purchasers, respectively,
may rely upon the accuracy of the representations and warranties of the Initial
Purchasers and their compliance with their agreements contained in this Section
2, and each Initial Purchaser hereby consents to such reliance.
(f) The Issuers acknowledge and agree that the Initial Purchasers may sell
Securities to any affiliate of an Initial Purchaser and that any such affiliate
may sell Securities purchased by it to an Initial Purchaser in each case,
pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act.
3. Delivery of and Payment for the Securities. (a) Delivery of and payment
for the Securities shall be made at the offices of ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇
& ▇▇▇▇▇▇▇▇, New York, New York, or at such other place as shall be agreed upon
by the Initial Purchasers and the Company, at 10:00 A.M., New York City time, on
March 18, 1998, or at such other time or date, not later than seven full
business days thereafter, as shall be agreed upon by the Initial Purchasers and
the Company (such date and time of payment and delivery being referred to herein
as the "Closing Date").
13
(b) On the Closing Date, payment of the purchase price for the
Securities shall be made to the Company by wire or book-entry transfer of
same-day funds to such account or accounts as the Company shall specify
prior to the Closing Date or by such other means as the parties hereto
shall agree prior to the Closing Date against delivery to the Initial
Purchasers of the certificates evidencing the Securities. Time shall be of
the essence, and delivery at the time and place specified pursuant to this
Agreement is a further condition of the obligations of the Initial
Purchasers hereunder. Upon delivery, the Securities shall be in global
form, registered in such names and in such denominations as CSI on behalf
of the Initial Purchasers shall have requested in writing not less than two
full business days prior to the Closing Date. The Company agrees to make
one or more global certificates evidencing the Securities available for
inspection by CSI on behalf of the Initial Purchasers in New York, New York
at least 24 hours prior to the Closing Date.
4. Further Agreements of the Issuers. The Issuers agree with each of the
several Initial Purchasers:
(a) at any time prior to completion of the resale of the Securities by
the Initial Purchasers, to advise the Initial Purchasers promptly and, if
requested, confirm such advice in writing, of the happening of any event
which makes any statement of a material fact made in the Offering
Memorandum untrue or which requires the making of any additions to or
changes in the Offering Memorandum (as amended or supplemented from time to
time) in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; to advise the
Initial Purchasers promptly of any order preventing or suspending the use
of the Preliminary Offering Memorandum or the Offering Memorandum, of any
suspension of the qualification of the Securities for offering or sale in
any jurisdiction and of the initiation or threatening of any proceeding for
any such purpose; and to use its best efforts to prevent the issuance of
any such order preventing or suspending the use of the Preliminary Offering
Memorandum or the Offering Memorandum or suspending any such qualification
and, if any such suspension is issued, to obtain the lifting thereof at the
earliest possible time;
(b) to furnish promptly to each of the Initial Purchasers and one
counsel for the Initial Purchasers, without charge, as many copies of the
Preliminary Offering Memorandum and the Offering Memorandum (and any
amendments or supplements thereto) as may be reasonably requested;
(c) prior to making any amendment or supplement to the Offering
Memorandum, to furnish a copy thereof to each of the Initial Purchasers and
one counsel for the Initial Purchasers and not to effect any such amendment
or supplement to which the Initial Purchasers shall reasonably object by
notice to the Company after a reasonable period to review;
14
(d) if, at any time prior to completion of the resale of the
Securities by the Initial Purchasers, any event shall occur or condition
exist as a result of which it is necessary, in the opinion of counsel for
the Initial Purchasers or counsel for the Issuers, to amend or supplement
the Offering Memorandum in order that the Offering Memorandum will not
include an untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances existing at the time it is delivered to a purchaser, not
misleading, or if it is necessary to amend or supplement the Offering
Memorandum to comply with applicable law, to promptly prepare such
amendment or supplement as may be necessary to correct such untrue
statement or omission or so that the Offering Memorandum, as so amended or
supplemented, will comply with applicable law;
(e) for so long as the Securities are outstanding and are "restricted
securities" within the meaning of Rule 144(a)(3) under the Securities Act,
to furnish to holders of the Securities and prospective purchasers of the
Securities designated by such holders, upon request of such holders or such
prospective purchasers, the information required to be delivered pursuant
to Rule 144A(d)(4) under the Securities Act, unless the Company is then
subject to and in compliance with Section 13 or 15(d) of the Exchange Act
(the foregoing agreement being for the benefit of the holders from time to
time of the Securities and prospective purchasers of the Securities
designated by such holders);
(f) for so long as the Securities are outstanding, to furnish to the
Initial Purchasers copies of any annual reports, quarterly reports and
current reports filed by the Company with the Commission on Forms 10-K,
10-Q and 8-K, or such other similar forms as may be designated by the
Commission, and such other documents, reports and information as shall be
furnished by the Company to the Trustee or to the holders of the Securities
pursuant to the Indenture or the Exchange Act or any rule or regulation of
the Commission thereunder;
(g) at any time prior to completion of the resale of the Securities,
to promptly take from time to time such actions as the Initial Purchasers
may reasonably request to qualify the Securities for offering and sale
under the securities or Blue Sky laws of such jurisdictions as the Initial
Purchasers may designate and to continue such qualifications in effect for
so long as required for the resale of the Securities; and to arrange for
the determination of the eligibility for investment of the Securities under
the laws of such jurisdictions as the Initial Purchasers may reasonably
request; provided that the Company and its subsidiaries shall not be
obligated to qualify as foreign business organizations in any jurisdiction
in which they are not so qualified or to file a general consent to service
of process in any jurisdiction;
(h) to assist the Initial Purchasers in arranging for the Securities
to be designated Private Offerings, Resales and Trading through Automated
Linkages ("PORTAL") Market securities in accordance with the rules and
regulations adopted by the National Association of Securities Dealers, Inc.
("NASD") relating to trading in the PORTAL Market and for the Securities to
be eligible and to maintain such eligibility for clearance and settlement
through
15
The Depository Trust Company ("DTC");
(i) not to, and to cause its affiliates not to, sell, offer for sale or
solicit offers to buy or otherwise negotiate in respect of any security (as
such term is defined in the Securities Act) which could be integrated with
the sale of the Securities in a manner which would require registration of
the Securities under the Securities Act;
(j) except following the effectiveness of the Exchange Offer
Registration Statement or the Shelf Registration Statement, as the case may
be, not to, and to cause its affiliates not to, and not to authorize or
knowingly permit any person acting on their behalf to, solicit any offer to
buy or offer to sell the Securities by means of any form of general
solicitation or general advertising within the meaning of Regulation D or in
any manner involving a public offering within the meaning of Section 4(2) of
the Securities Act; and not to offer, sell, contract to sell or otherwise
dispose of, directly or indirectly, any securities under circumstances where
such offer, sale, contract or disposition would cause the exemption afforded
by Section 4(2) of the Securities Act to cease to be applicable to the
offering and sale of the Securities as contemplated by this Agreement and the
Offering Memorandum;
(k) for a period of 180 days from the date of the Offering Memorandum,
not to offer for sale, sell, contract to sell or otherwise dispose of,
directly or indirectly, or file a registration statement for, or announce any
offer, sale, contract for sale of or other disposition of any debt securities
issued or guaranteed by the Company or any of its subsidiaries (other than
the Securities) without the prior written consent of the Initial Purchasers;
(l) during the period from the Closing Date until two years after the
Closing Date, without the prior written consent of the Initial Purchasers,
not to, and not permit any of its affiliates (as defined in Rule 144 under
the Securities Act) to, resell any of the Securities that have been
reacquired by them, except for Securities purchased by the Company or any of
its affiliates and resold in a transaction registered under the Securities
Act;
(m) not to, for so long as the Securities are outstanding, be or become,
or be or become owned by, an open-end investment company, unit investment
trust or face-amount certificate company that is or is required to be
registered under Section 8 of the Investment Company Act of 1940, as amended,
and to not be or become, or be or become owned by, a closed-end investment
company required to be registered, but not registered thereunder;
(n) in connection with the offering of the Securities, until CSI on
behalf of the Initial Purchasers shall have notified the Company of the
completion of the resale of the Securities, not to, and to cause its
affiliated purchasers (as defined in Regulation M under the Exchange Act) not
to, either alone or with one or more other persons, bid for or purchase, for
any account in which it or any of its affiliated purchasers has a beneficial
interest, any Securities, or attempt to induce any person to purchase any
Securities; and not to, and to cause its affiliated purchasers not to, make
bids or purchase for the purpose of creating actual, or
16
apparent, active trading in or of raising the price of the Securities;
(o) in connection with the offering of the Securities, to make its
officers, employees, independent accountants and legal counsel reasonably
available upon request by the Initial Purchasers;
(p) to do and perform all things required to be done and performed by it
under this Agreement that are within its control on or prior to or after the
Closing Date, as applicable, and to use its best efforts to satisfy all
conditions precedent on its part to the delivery of the Securities;
(q) to not take any action prior to the execution and delivery of the
Indenture which, if taken after such execution and delivery, would have
violated any of the covenants contained in the Indenture;
(r) to not take any action prior to the Closing Date which would require
the Offering Memorandum to be amended or supplemented pursuant to Section
4(d);
(s) prior to the Closing Date, not to issue any press release or other
communication directly or indirectly or hold any press conference with
respect to the Issuers, their condition, financial or otherwise, or earnings,
business affairs or business prospects (except for routine oral marketing
communications in the ordinary course of business and consistent with the
past practices of the Issuers and of which the Initial Purchasers are
notified), without the prior written consent of the Initial Purchasers,
unless in the judgment of the Issuers and their counsel, and after
notification to the Initial Purchasers, such press release or communication
is required by law;
(t) to not voluntarily claim, and to actively resist any attempts to
claim, the benefit of any usury laws against the holders of the Securities;
and
(u) to apply the net proceeds from the sale of the Securities as set
forth in the Offering Memorandum under the heading "Use of Proceeds;" and
(v) subsequent to the execution of this Agreement, to file certain
customary notifications or documents with the FCC.
5. Conditions of Initial Purchasers' Obligations. The respective
obligations of the several Initial Purchasers hereunder are subject to the
accuracy, on and as of the date hereof and the Closing Date, of the
statements of the Issuers and their respective officers made in any
certificates delivered pursuant hereto, to the performance by the Issuers of
their obligations hereunder, and to each of the following additional terms
and conditions:
(a) All the representations and warranties of the Issuers contained in
this Agreement
17
shall have been true and correct in all material respects on the date of this
Agreement and shall be true and correct in all material respects on the
Closing Date with the same force and effect as if made on and as of the
Closing Date (except that such phrase "in all material respects" shall be
disregarded to the extent that any such representation and warranty is
qualified by "material," "material adverse effect" or any similar terms or by
any phrase using any of such terms).
(b) The Offering Memorandum (and any amendments or supplements thereto)
shall have been printed and copies distributed to the Initial Purchasers as
promptly as practicable on or following the date of this Agreement or at such
other date and time as to which the Initial Purchasers may agree; and no stop
order suspending the sale of the Securities in any jurisdiction shall have
been issued and no proceeding for that purpose shall have been commenced or
shall be pending or threatened.
(c) None of the Initial Purchasers shall have discovered and disclosed
to the Issuers on or prior to the Closing Date that the Offering Memorandum
(without giving effect to any amendment or supplement thereto) or any
amendment or supplement thereto contains an untrue statement of a fact which,
in the opinion of counsel for the Initial Purchasers, is material or omits to
state any fact which, in the opinion of such counsel, is material and is
required to be stated therein or is necessary to make the statements therein
not misleading.
(d) All corporate proceedings and other legal matters incident to the
authorization, form and validity of each of the Transaction Documents and the
Offering Memorandum, and all other legal matters relating to the Transaction
Documents and the transactions contemplated thereby, shall be satisfactory in
all material respects to the Initial Purchasers, and the Issuers shall have
furnished to the Initial Purchasers all documents and information that they
or their counsel may reasonably request to enable them to pass upon such
matters.
(e) ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Issuers,
on the Closing Date, shall have furnished to the Initial Purchasers their
written opinion, as counsel for the Issuers, addressed to the Initial
Purchasers and dated the Closing Date, in form and substance reasonably
satisfactory to the Initial Purchasers, substantially to the effect set forth
in Annex B hereto.
(f) The Initial Purchasers, on the Closing Date, shall have received
from Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Initial
Purchasers, an opinion, dated the Closing Date, as to the matters referred to
in paragraphs (i), (vi), (vii), (viii), (xii) and (xv) of Annex B. In giving
such opinions with respect to the matters covered by paragraph (xv), ▇▇▇▇,
Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ and Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇
LLP may each state that their opinion and belief are based upon their
participation in the preparation of the Offering Memorandum, but are without
independent check or verification (except as specified).
18
(g) ▇▇▇▇▇ & ▇▇▇▇▇▇▇, L.L.P., special radio communications counsel for
the Issuers, on the Closing Date, shall have furnished to the Initial
Purchasers their written opinion, addressed to the Initial Purchasers and
dated the Closing Date, in form and substance reasonably satisfactory to the
Initial Purchasers, substantially to the effect set forth in Annex C hereto.
(h) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Executive Vice President, General Counsel and
Secretary for the Company, on the Closing Date, shall have furnished to the
Initial Purchasers, his written opinion, addressed to the Initial Purchasers
and dated the Closing Date, in form and substance reasonably satisfactory to
the Initial Purchasers, substantially to the effect set forth in Annex D
hereto.
(i) The Company, on the date hereof, shall have furnished to the Initial
Purchasers a letter (the "Initial Letter") of KPMG Peat Marwick LLP and ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ & Co., LLP, addressed to the Initial Purchasers and dated the date
hereof, in form and substance satisfactory to the Initial Purchasers, with
respect to the financial statements and certain financial information
contained in the Offering Memorandum.
(j) The Company shall have furnished to the Initial Purchasers a letter
(the "Bring-Down Letter") of KPMG Peat Marwick LLP addressed to the Initial
Purchasers and dated the Closing Date (i) confirming that they are
independent public accountants with respect to the Company and its
subsidiaries within the meaning of Rule 101 of the Code of Professional
Conduct of the AICPA and its interpretations and rulings thereunder, (ii)
stating, as of the date of the Bring-Down Letter (or, with respect to matters
involving changes or developments since the respective dates as of which
specified financial information is given in the Offering Memorandum, as of a
date not more than three business days prior to the date of the Bring-Down
Letter), that the conclusions and findings of such accountants with respect
to the financial information and other matters covered by the Initial Letter
are accurate and (iii) confirming in all material respects the conclusions
and findings set forth in the Initial Letter.
(k) The Company shall have furnished to the Initial Purchasers a
certificate, dated the Closing Date, of its chief executive officer and its
chief financial officer stating that (A) such officers have carefully
examined the Offering Memorandum, (B) in their opinion, the Offering
Memorandum, as of its date, did not include any untrue statement of a
material fact and did not omit to state a material fact required to be stated
therein or necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading, and since the
date of the Offering Memorandum, no event has occurred which should have been
set forth in a supplement or amendment to the Offering Memorandum so that the
Offering Memorandum (as so amended or supplemented) would not include any
untrue statement of a material fact and would not omit to state a material
fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading and (C) all the representations and warranties of the
Issuers contained in this Agreement are true and correct in all material
respects on the date of this Agreement and are
19
true and correct in all material respects on the Closing Date with the same
force and effect as if made on and as of the date hereof (except that such
phrase "in all material respects" shall be disregarded to the extent that any
such representation and warranty is qualified by "material," "material
adverse effect" or any similar terms or by any phrase using any of such
terms), the Issuers have complied with all agreements and satisfied all
conditions on their part to be performed or satisfied hereunder on or prior
to the Closing Date, and subsequent to the date of the most recent financial
statements contained in the Offering Memorandum, there has been no material
adverse change in the financial position or results of operation of the
Company or any of its subsidiaries, or any change, or any development
including a prospective change, in or affecting the condition (financial or
otherwise), results of operations, business or prospects of the Company and
its subsidiaries taken as a whole, except as set forth in the Offering
Memorandum.
(l) The Initial Purchasers shall have received an executed counterpart
of the Registration Rights Agreement which shall have been executed and
delivered by a duly authorized officer of each of the Issuers.
(m) The Indenture shall have been duly executed and delivered by each of
the Issuers and the Trustee, the Initial Purchasers shall have received an
executed counterpart of the Indenture and the Securities shall have been duly
executed and delivered by the Company and duly authenticated by the Trustee.
(n) The Securities shall have been approved by the NASD for trading in
the PORTAL Market.
(o) If any event shall have occurred that requires the Issuers under
Section 4(d) to prepare an amendment or supplement to the Offering
Memorandum, such amendment or supplement shall have been prepared, the
Initial Purchasers shall have been given a reasonable opportunity to comment
thereon, and copies thereof shall have been delivered to the Initial
Purchasers reasonably in advance of the Closing Date.
(p) There shall not have occurred any invalidation of Rule 144A under
the Securities Act by any court or any withdrawal or proposed withdrawal of
any rule or regulation under the Securities Act or the Exchange Act by the
Commission or any amendment or proposed amendment thereof by the Commission
which in the judgment of the Initial Purchasers would materially impair the
ability of the Initial Purchasers to purchase, hold or effect resales of the
Securities as contemplated hereby.
(q) Subsequent to the execution and delivery of this Agreement or, if
earlier, the dates as of which information is given in the Offering
Memorandum (exclusive of any amendment or supplement thereto), there shall
not have been any change in the capital stock or long-term debt or any
change, or any development involving a prospective change, in or affecting
the condition (financial or otherwise), results of operations, business or
prospects of the Company and its subsidiaries taken as a whole, the effect of
which, in any such case described above, is, in the
20
judgment of the Initial Purchasers, so material and adverse as to make it
impracticable or inadvisable to proceed with the sale or delivery of the
Securities on the terms and in the manner contemplated by this Agreement and
the Offering Memorandum (exclusive of any amendment or supplement thereto).
(r) No action shall have been taken and no statute, rule, regulation or
order shall have been enacted, adopted or issued by any governmental agency
or body which would, as of the Closing Date, prevent the issuance or sale of
the Securities; and no injunction, restraining order or order of any other
nature by any federal or state court of competent jurisdiction shall have
been issued as of the Closing Date which would prevent the issuance or sale
of the Securities.
(s) Subsequent to the execution and delivery of this Agreement (i) no
downgrading shall have occurred in the rating accorded the Securities or any
of the Company's other debt securities or preferred stock by any "nationally
recognized statistical rating organization", as such term is defined by the
Commission for purposes of Rule 436(g)(2) of the rules and regulations of the
Commission under the Securities Act and (ii) no such organization shall have
publicly announced that it has under surveillance or review (other than an
announcement with positive implications of a possible upgrading), its rating
of the Securities or any of the Company's other debt securities or preferred
stock.
(t) Subsequent to the execution and delivery of this Agreement there
shall not have occurred any of the following: (i) trading in securities
generally on the New York Stock Exchange, the American Stock Exchange or the
over-the-counter market shall have been suspended or limited, or minimum
prices shall have been established on any such exchange or market by the
Commission, by any such exchange or by any other regulatory body or
governmental authority having jurisdiction, or trading in any securities of
the Company on any exchange or in the over-the-counter market shall have been
suspended or (ii) any moratorium on commercial banking activities shall have
been declared by federal or New York state authorities or (iii) an outbreak
or escalation of hostilities or a declaration by the United States of a
national emergency or war or (iv) a material adverse change in general
economic, political or financial conditions (or the effect of international
conditions on the financial markets in the United States shall be such) the
effect of which, in the case of this clause (iv), is, in the judgment of the
Initial Purchasers, so material and adverse as to make it impracticable or
inadvisable to proceed with the sale or the delivery of the Securities on the
terms and in the manner contemplated by this Agreement and in the Offering
Memorandum (exclusive of any amendment or supplement thereto).
(u) Each of the Issuers shall not have failed, on or prior to the
Closing Date, to perform or comply with any of the agreements herein
contained and required to be performed or complied with by each of the
Issuers on or prior to such date.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and
21
substance reasonably satisfactory to counsel for the Initial Purchasers.
6. Termination. The obligations of the Initial Purchasers hereunder may
be terminated by the Initial Purchasers, in their absolute discretion, by
notice given to and received by the Company prior to delivery of and payment
for the Securities if, prior to that time, any of the events described in
Section 5(p), (q), (r), (s) or (t) shall have occurred and be continuing.
7. Defaulting Initial Purchasers. (a) If, on the Closing Date, any
Initial Purchaser defaults in the performance of its obligations under this
Agreement, the non-defaulting Initial Purchasers may make arrangements for
the purchase of the Securities which such defaulting Initial Purchaser agreed
but failed to purchase by other persons satisfactory to the Company and the
non-defaulting Initial Purchasers. If, after giving effect to any
arrangements for the purchase of the Securities of a defaulting Initial
Purchaser by the Initial Purchasers as described above, the aggregate
principal amount of such Securities which remains unpurchased does not exceed
one-tenth of the aggregate principal amount of all the Securities, then the
Issuers shall have the right to require each non-defaulting Initial Purchaser
to purchase the principal amount of Securities which such Initial Purchaser
agreed to purchase hereunder and, in addition, to require each such
non-defaulting Initial Purchaser to purchase its pro rata share (based on the
principal amount of Securities which such Initial Purchaser agreed to
purchase hereunder) of the Securities of such defaulting Initial Purchaser or
Purchasers for which such arrangements have not been made. If after giving
effect to any arrangements for the purchase of the Securities of a defaulting
Initial Purchaser by the Issuers and the Initial Purchasers the aggregate
principal amount of Securities which remains unpurchased exceeds one-tenth of
the aggregate principal amount of all the Securities or if the Issuers do not
exercise their right to require the Initial Purchasers to purchase additional
Securities as described above or if no such arrangements are made within 36
hours after such default, this Agreement shall terminate without liability on
the part of the non-defaulting Initial Purchasers or the Company, except that
the Company will continue to be liable for the payment of expenses to the
extent set forth in Sections 8 and 12 and except that the provisions of
Sections 9 and 10 shall not terminate and shall remain in effect. As used in
this Agreement, the term "Initial Purchasers" includes, for all purposes of
this Agreement unless the context otherwise requires, any party not listed in
Schedule 1 hereto that, pursuant to this Section 7, purchases Securities
which a defaulting Initial Purchaser agreed but failed to purchase.
(b) Nothing contained herein shall relieve a defaulting Initial
Purchaser of any liability it may have to the Company or any
non-defaulting Initial Purchaser for damages caused by its default. If
other persons are obligated or agree to purchase the Securities of a
defaulting Initial Purchaser, either the non-defaulting Initial
Purchasers or the Company may postpone the Closing Date for up to seven
full business days in order to effect any changes that in the opinion of
counsel for the Issuers or counsel for the Initial Purchasers may be
necessary in the Offering Memorandum or in any other document or
arrangement, and the Company agrees to promptly prepare any amendment or
supplement to the Offering Memorandum that effects any such changes.
8. Reimbursement of Initial Purchasers' Expenses. If (a) this Agreement
shall have been terminated pursuant to Section 6 or 7, (b) the Company shall
fail to tender the Securities for delivery to
22
the Initial Purchasers for any reason permitted under this Agreement or (c)
the Initial Purchasers shall decline to purchase the Securities for any
reason permitted under this Agreement, the Company shall reimburse the
Initial Purchasers for such out-of-pocket expenses (including reasonable fees
and disbursements of one firm of attorneys plus necessary local counsel for
the Initial Purchasers) as shall have been reasonably incurred by the Initial
Purchasers in connection with this Agreement and the proposed purchase and
resale of the Securities. Notwithstanding the foregoing, if this Agreement is
terminated pursuant to Section 7 by reason of the default of one or more of
the Initial Purchasers, the Company shall not be obligated to reimburse any
defaulting Initial Purchaser on account of such expenses.
9. Indemnification. (a) The Issuers, jointly and severally agree to
indemnify and hold harmless each Initial Purchaser, its directors, its
officers and each person, if any, who controls any Initial Purchaser within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act, from and against any and all losses, claims, damages, liabilities and
judgments (including, without limitation, any legal or other expenses
incurred in connection with investigating or defending any matter, including
any action, that could give rise to any such losses, claims, damages,
liabilities or judgments) caused by any untrue statement or alleged untrue
statement of a material fact contained in the Offering Memorandum (or any
amendment or supplement thereto) or any preliminary offering memorandum, or
caused by 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, except insofar as such losses, claims, damages, liabilities or
judgments are caused by any such untrue statement or omission or alleged
untrue statement or omission based upon information relating to any Initial
Purchaser furnished in writing to the Issuers by such Initial Purchaser
through CSI expressly for use therein. The foregoing indemnity agreement with
respect to any untrue statement or omission from a preliminary offering
memorandum shall not inure to the benefit of any Initial Purchaser from whom
the person asserting any such losses, liabilities, claims, damages or
expenses purchased Securities, or any person controlling such Initial
Purchaser, if a copy of the Offering Memorandum as then amended or
supplemented (if the Issuers shall have furnished such Initial Purchaser such
amended or supplemented Offering Memorandum on a timely basis) was not sent
or given by or on behalf of the Initial Purchasers to such person, if such
was required by law, at or prior to the written confirmation of the sale of
such Securities to such person and the untrue statement contained in or
omission from such preliminary offering memorandum was corrected in such
Offering Memorandum (or such Offering Memorandum as amended or supplemented).
23
(b) Each Initial Purchaser agrees, severally and not jointly, to
indemnify and hold harmless the Issuers , their directors, their officers and
each person, if any, who controls the Issuers within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act, to the same
extent as the foregoing indemnity from the Issuers to such Initial Purchaser
but only with reference to information relating to such Initial Purchaser
furnished in writing to the Issuers by such Initial Purchaser through CSI
expressly for use in the Offering Memorandum (or any amendment or supplement
thereto) or any preliminary offering memorandum.
(c) In case any action shall be commenced involving any person in
respect of which indemnity may be sought pursuant to Section 9(a) or Section
9(b) (the "indemnified party"), the indemnified party shall promptly notify
the person against whom such indemnity may be sought (the "indemnifying
party") in writing and the indemnifying party shall assume the defense of
such action, including the employment of counsel reasonably satisfactory to
the indemnified party and the payment of all reasonable fees and expenses of
such counsel, as incurred (except that in the case of any action in respect
of which indemnity may be sought pursuant to both Sections 9(a) and 9(b), the
Initial Purchaser shall not be required to assume the defense of such action
pursuant to this Section 9(c), but may employ separate counsel and
participate in the defense thereof, but the fees and expenses of such
counsel, except as provided below, shall be at the expense of such Initial
Purchaser). Any indemnified party shall have the right to employ separate
counsel in any such action and participate in the defense thereof, but the
fees and expenses of such counsel shall be at the expense of the indemnified
party unless (i) the employment of such counsel shall have been specifically
authorized in writing by the indemnifying party, (ii) the indemnifying party
shall have failed to assume the defense of such action within a reasonable
period of time or employ counsel reasonably satisfactory to the indemnified
party or (iii) the named parties to any such action (including any impleaded
parties) include both the indemnified party and the indemnifying party, and
the indemnified party shall have been reasonably advised by such counsel that
a conflict may exist between the indemnified party and the indemnifying party
(in which case the indemnifying party shall not have the right to assume the
defense of such action on behalf of the indemnified party). In any such case,
the indemnifying party shall not, in connection with any one action or
separate but substantially similar or related actions 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
(in addition to any local counsel) for all indemnified parties and all such
fees and expenses shall be reimbursed as they are incurred. Such firm shall
be designated in writing by CSI, in the case of parties indemnified pursuant
to Section 9(a), and by the Issuers, in the case of parties indemnified
pursuant to Section 9(b). The indemnifying party shall indemnify and hold
harmless the indemnified party from and against any and all losses, claims,
damages, liabilities and judgments by reason of any settlement of any action
(i) effected with its written consent or (ii) effected without its written
consent if the settlement is entered into more than thirty business days
after the indemnifying party shall have received a request from the
indemnified party for reimbursement for the fees and expenses of counsel (in
any case where such fees and expenses are at the expense of the indemnifying
party), the indemnifying party shall have received notice of the terms of the
settlement at least 30 days prior to the settlement being entered into and,
prior to the date of such settlement, the indemnifying
24
party shall have failed to comply with such reimbursement request. No
indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement or compromise of, or consent to the
entry of judgment with respect to, any pending or threatened action in
respect of which the indemnified party is or could have been a party and
indemnity or contribution may be or could have been sought hereunder by the
indemnified party, unless such settlement, compromise or judgment (i)
includes an unconditional release of the indemnified party from all liability
on claims that are or could have been the subject matter of such action and
(ii) does not include a statement as to or an admission of fault, culpability
or a failure to act, by or on behalf of the indemnified party.
10. Contribution. (a) To the extent the indemnification provided for in
Section 9 is unavailable to an indemnified party or insufficient in respect
of any losses, claims, damages, liabilities or judgments referred to therein,
then each 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, liabilities and judgments (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Issuers on the one hand and the Initial Purchasers on the other hand from the
offering of the Securities or (ii) if the allocation provided by clause
10(a)(i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause
10(a)(i) above but also the relative fault of the Issuers on the one hand and
the Initial Purchasers on the other hand in connection with the statements or
omissions which resulted in such losses, claims, damages, liabilities or
judgments, as well as any other relevant equitable considerations. The
relative benefits received by the Issuers on the one hand and the Initial
Purchasers on the other hand shall be deemed to be in the same proportion as
the total net proceeds from the offering (before deducting expenses) received
by the Issuers, and the total discounts and commissions received by the
Initial Purchasers, bear to the gross proceeds from the sale of the
Securities, in each case as set forth in the table on the cover page of the
Offering Memorandum. The relative fault of the Issuers on the one hand and
the Initial Purchasers on the other hand 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 Issuers or the Initial Purchasers and
the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
(b) The Issuers and the Initial Purchasers agree that it would not
be just and equitable if contribution pursuant to this Section 10 were
determined by pro rata allocation (even if the Initial Purchasers were
treated as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred to in
the immediately preceding paragraph. The amount paid or payable by an
indemnified party as a result of the losses, claims, damages, liabilities or
judgments referred to in the immediately preceding paragraph shall be deemed
to include, subject to the limitations set forth above, any legal or other
expenses incurred by such indemnified party in connection with investigating
or defending any matter, including any action, that could have given rise to
such losses, claims, damages, liabilities or judgments. Notwithstanding the
provisions of Sections 9 and 10, no Initial Purchaser shall be required to
contribute any amount in excess of the amount by which the total discounts and
25
commissions received by such Initial Purchaser with respect to the Securities
purchased exceeds the amount of any damages which such Initial Purchaser has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Initial Purchasers' obligations to
contribute pursuant to this Section 10 are several in proportion to the
respective purchase obligations for the Securities and not jointly.
(c) The remedies provided for in Sections 9 and 10 are not exclusive and
shall not limit any rights or remedies which may otherwise be available to
any indemnified party at law or in equity.
11. Persons Entitled to Benefit of Agreement. This Agreement shall inure
to the benefit of and be binding upon the Initial Purchasers, the Issuers and
their respective successors. This Agreement and the terms and provisions
hereof are for the sole benefit of only those persons, except as provided in
Sections 9 and 10 with respect to affiliates, officers, directors, employees,
representatives, agents and controlling persons of the Issuers and the
Initial Purchasers and in Section 4(e) with respect to holders and
prospective purchasers of the Securities. Nothing in this Agreement is
intended or shall be construed to give any person, other than the persons
referred to in this Section 11, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision contained herein.
12. Expenses. The Company agrees with the Initial Purchasers to pay (a)
the costs incident to the authorization, issuance, sale, preparation and
delivery of the Securities and any taxes payable in that connection; (b) the
costs incident to the preparation, printing and distribution of the
Preliminary Offering Memorandum, the Offering Memorandum and any amendments
or supplements thereto; (c) the costs of reproducing and distributing each of
the Transaction Documents; (d) the costs incident to the preparation,
printing and delivery of the certificates evidencing the Securities,
including stamp duties and transfer taxes, if any, payable upon issuance of
the Securities; (e) the fees and expenses of the Company's counsel and
independent accountants; (f) the fees and expenses of qualifying the
Securities under the securities laws of the several jurisdictions as provided
in Section 4(h) and of preparing, printing and distributing Blue Sky
Memoranda (including related fees and expenses of one counsel for the Initial
Purchasers); (g) any fees charged by rating agencies for rating the
Securities; (h) the fees and expenses of the Trustee and any paying agent
(including related fees and expenses of any counsel to such parties); (i) all
expenses and application fees incurred in connection with the application for
the inclusion of the Securities on the PORTAL Market and the approval of the
Securities for book-entry transfer by DTC; and (j) all other costs and
expenses incident to the performance of the obligations of the Company under
this Agreement which are not otherwise specifically provided for in this
Section 12; provided, however, that except as provided in this Section 12 and
Section 8, the Initial Purchasers shall pay their own costs and expenses,
including the fees of their counsel, transfer taxes on resales of any of the
Securities held by them and any advertising expenses connected with any
offers they may make.
13. Survival. The respective indemnities, rights of contribution,
representations, warranties and agreements of the Company and the Initial
Purchasers contained in this Agreement or
26
made by or on behalf of the Issuers or the Initial Purchasers pursuant to
this Agreement or any certificate delivered pursuant hereto shall survive the
delivery of and payment for the Securities and shall remain in full force and
effect, regardless of any termination or cancellation of this Agreement or
any investigation made by or on behalf of any of them or any of their
respective affiliates, officers, directors, employees, representatives,
agents or controlling persons.
14. Notices, etc.. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to the Initial Purchasers, shall be delivered or sent by
mail or telecopy transmission to Chase Securities Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Legal Department (telecopier no.:
(▇▇▇) ▇▇▇-▇▇▇▇); or
(b) if to the Issuers, shall be delivered or sent by mail or telecopy
transmission to the address of the Company set forth in the Offering
Memorandum, Attention: General Counsel (telecopier no.: (▇▇▇) ▇▇▇-▇▇▇▇)
with a copy (which shall not constitute notice) to: ▇▇▇▇, Weiss,
Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇ (telecopier no. (▇▇▇) ▇▇▇-▇▇▇▇);
provided that any notice to an Initial Purchaser pursuant to Section 9(c)
shall also be delivered or sent by mail to such Initial Purchaser at its
address set forth on the signature page hereof. Any such statements,
requests, notices or agreements shall take effect at the time of receipt
thereof. The Issuers shall be entitled to act and rely upon any request,
consent, notice or agreement given or made on behalf of the Initial
Purchasers by CSI.
15. Definition of Terms. For purposes of this Agreement, (a) the term
"business day" means any day on which the New York Stock Exchange, Inc. is
open for trading, (b) the term "subsidiary" has the meaning set forth in Rule
405 under the Securities Act and (c) except where otherwise expressly
provided, the term "affiliate" has the meaning set forth in Rule 405 under
the Securities Act.
16. Initial Purchasers' Information. The parties hereto acknowledge and
agree that, for all purposes of this Agreement, the Initial Purchasers'
Information consists solely of the following information in the Preliminary
Offering Memorandum and the Offering Memorandum: (i) the last paragraph on
the front cover page concerning the terms of the offering by the Initial
Purchasers; (ii) the legend on the inside front cover page concerning
over-allotment and trading activities by the Initial Purchasers; and (iii)
the statements concerning the Initial Purchasers contained in the third,
ninth, twelfth and thirteenth paragraphs under the heading "Plan of
Distribution" and that the Initial Purchasers shall not be deemed to have
provided any information (and therefore are not responsible for any
statements or omissions) pertaining to any arrangement or agreement with
respect to any party other than the Initial Purchasers.
17. Governing Law. This Agreement shall be governed by and construed in
27
accordance with the laws of the State of New York.
18. Counterparts. This Agreement may be executed in one or more
counterparts (which may include counterparts delivered by telecopier) and, if
executed in more than one counterpart, the executed counterparts shall each
be deemed to be an original, but all such counterparts shall together
constitute one and the same instrument.
19. Amendments. No amendment or waiver of any provision of this
Agreement, nor any consent or approval to any departure therefrom, shall in
any event be effective unless the same shall be in writing and signed by the
parties hereto.
20. Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning
or interpretation of, this Agreement.
28
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us a counterpart hereof, whereupon this
instrument will become a binding agreement by and among the Company, the
Subsidiary Guarantors and the several Initial Purchasers in accordance with
its terms.
Very truly yours,
BIG CITY RADIO, INC.
By: /s/ ▇.▇. ▇▇▇▇▇▇▇
--------------------------------
Name: ▇.▇. ▇▇▇▇▇▇▇
Title: V.P. and CFO
SUBSIDIARY GUARANTORS:
BIG CITY RADIO--NYC, L.L.C.
By: /s/ ▇.▇. ▇▇▇▇▇▇▇
--------------------------------
Name: ▇.▇. ▇▇▇▇▇▇▇
Title: V.P. and CFO
BIG CITY RADIO--CHI, L.L.C.
By: /s/ ▇.▇. ▇▇▇▇▇▇▇
--------------------------------
Name: ▇.▇. ▇▇▇▇▇▇▇
Title: V.P. and CFO
BIG CITY RADIO--LA, L.L.C.
By: /s/ ▇.▇. ▇▇▇▇▇▇▇
--------------------------------
Name: ▇.▇. ▇▇▇▇▇▇▇
Title: V.P. and CFO
ODYSSEY TRAVELING BILLBOARDS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Assistant Secretary
WRKL ROCKLAND RADIO, L.L.C.
By: /s/ ▇.▇. ▇▇▇▇▇▇▇
--------------------------------
Name: ▇.▇. ▇▇▇▇▇▇▇
Title: V.P. and CFO
29
Accepted:
CHASE SECURITIES INC.
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Managing Director
Address for notices pursuant to Section 9(c):
▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ SECURITIES CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
Address for notices pursuant to Section 9(c):
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇
31
BT ▇▇▇▇ ▇▇▇▇▇ INCORPORATED
By: /s/ ▇▇▇▇▇▇ ▇. Garden
--------------------------------
Name: ▇▇▇▇▇▇ ▇. Garden
Ttile: Managing Director
Address for notices pursuant to Section 9(c):
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Ed Garden
32
ING BARING (U.S.) SECURITIES, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Principal
Address for notices pursuant to Section 9(c):
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
33
SCHEDULE 1
Principal
Amount
Initial Purchasers of Securities
------------------ -------------
Chase Securities Inc.......................... $ 78,300,000
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities
Corporation................................. 78,300,000
BT ▇▇▇▇ ▇▇▇▇▇ Incorporated..................... 8,700,000
ING Baring (U.S.) Securities, Inc. ............ 8,700,000
Total.............................. $174,000,000
S-1
ANNEX A
[Form of Exchange and Registration Rights Agreement]
A-1
[Filed as Exhibit 10.12]
ANNEX B
[Form of Opinion of Counsel for the Issuers]
▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ shall have furnished to the
Initial Purchasers their written opinion, as counsel for the Issuers,
addressed to the Initial Purchasers and dated the Closing Date, in form and
substance reasonably satisfactory to the Initial Purchasers, substantially to
the effect set forth below:
(i) Each of the Company and Odyssey Traveling Billboards, Inc. is
duly organized and is validly existing as a corporation in good standing
under the laws of the State of Delaware and each other Subsidiary
Guarantors is duly formed and is validly existing as a limited liability
company in good standing under the laws of the state of Delaware.
(ii) Each of the Issuers has the corporate or limited liability
company power and authority to own, lease and operate its properties and
to conduct its business as described in the Offering Memorandum and to
enter into and perform its obligations under the Purchase Agreement.
(iii) All descriptions in the Offering Memorandum of contracts and
other documents to which the Issuers are a party are in all material
respects accurate and fair summaries thereof.
(iv) The Indenture conforms as to form in all material respects with
the requirements of the Trust Indenture Act and the rules and
regulations of the Commission applicable to an indenture which is
qualified thereunder.
(v) Each of the Issuers has the corporate or limited liability company
right, power and authority to execute and deliver each of the
Transaction Documents to which it is a party and to perform its
obligations thereunder; and all corporate or limited liability company
action required to be taken for the due and proper authorization,
execution and delivery of each of the Transaction Documents and the
consummation of the transactions contemplated thereby have been duly and
validly taken.
(vi) The Purchase Agreement has been duly authorized, executed and
delivered by each of the Issuers.
(vii) Each of the Indenture and the Registration Rights Agreement
has been duly authorized, executed and delivered by each of the Issuers
and, assuming due authorization, execution and delivery thereof by the
Trustee, constitutes a valid and legally binding agreement
B-1
of each of the Issuers enforceable against each of the Issuers in
accordance with its terms, except to the extent that such enforceability
may be limited by applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws now or
hereafter in effect relating to or affecting creditors' rights and
remedies generally and by general equitable principles (whether
considered in a proceeding in equity or at law).
(viii) The Securities have been duly authorized and issued by each of
the Issuers which is issuing them and, assuming due authentication
thereof by the Trustee and upon payment and delivery in accordance with
the Purchase Agreement, will constitute valid and legally binding
obligations of each of the Issuers entitled to the benefits of the
Indenture and enforceable against each of the Issuers in accordance with
their terms, except to the extent that such enforceability may be
limited by applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws now or hereafter in
effect relating to or affecting creditors' rights and remedies generally
and by general equitable principles (whether considered in a proceeding
in equity or at law).
(ix) No authorization, approval, consent or order of any court or
governmental authority or agency under the laws of the Federal
government of the United States or the State of New York or under the
General Corporation Law of the State of Delaware (other than those under
the Securities Act, or as may be required under the securities or Blue
Sky laws of the various states or foreign jurisdictions or the National
Association of Securities Dealers, Inc., and other than those under the
Communications Act or any published rules, regulations or policies of
the FCC thereunder, as to each of which such counsel need express no
opinion and the Registration Rights Agreement) is required in connection
with the due authorization, execution and delivery of the Purchase
Agreement or for the offering, issuance or sale of the Securities to the
Initial Purchasers.
(x) Each Transaction Document conforms in all material respects to
the description thereof contained in the Offering Memorandum.
(xi) The execution, delivery and performance by each of the Issuers
of each of the Transaction Documents to which it is a party and
compliance by each of the Issuers with its obligations under the terms
thereof will not, to such counsel's knowledge, conflict with or
constitute a breach of, or default under or result in the creation or
imposition of any lien, charge or encumbrance upon any property or
assets of the Issuers and their respective subsidiaries pursuant to any
contract, indenture, mortgage, deed of trust, loan or credit agreement,
note or lease (except for such conflicts, breaches, defaults or liens,
charges or encumbrances that could not, singly or in the aggregate, be
reasonably expected to result in a material adverse effect on the
business, prospects, financial condition or results of operations of the
Issuers and their respective subsidiaries, taken as a whole), nor will
such action result in any violation of the provisions of the respective
certificate of incorporation, bylaws, certificate of formation or other
constitutive document of each of the Issuers, or any applicable law,
statute, rule or regulation of the Federal government of the United
States (excluding the FCC) or the State of
B-2
New York or under the General Corporation Law of the State of Delaware, or,
to such counsel's knowledge, any judgment, order, writ or decree of any
government, government instrumentality (excluding the FCC) or court having
jurisdiction over the Issuers, any of their respective subsidiaries or any
of their respective properties, assets or operations except for such
violations of law, statute, rule, regulation, judgment, order, writ or
decree that could not be reasonably expected to result in a material
adverse effect on the business, prospects, financial condition or results
of operations of the Issuers and their respective subsidiaries, taken as a
whole.
(xii) Each of the Issuers is not an "investment company" as defined in
the Investment Company Act of 1940, as amended.
(xiii) Neither the consummation of the transactions contemplated by
the Purchase Agreement nor the sale, issuance, execution or delivery of the
Securities will violate Regulation G, T, U or X of the Federal Reserve
Board.
(xiv) Assuming (i) the accuracy of the representations, warranties and
agreements of the Issuers and of the Initial Purchasers set forth in the
Purchase Agreement, (ii) the due performance by the Issuers of the
covenants and agreements set forth in the Purchase Agreement, (iii) the
compliance by the Initial Purchasers and the Issuers with the offering and
transfer procedures and restrictions described in the Offering Memorandum,
(iv) the accuracy of the representations and warranties made as provided in
the Purchase Agreement and the Offering Memorandum by purchasers to whom
the Initial Purchasers initially resell the Securities and (v) that
purchasers to whom the Initial Purchasers initially resell the Securities
receive a copy of the Offering Memorandum prior to such sale, the offer,
sale and delivery of the Securities to the Initial Purchasers in the manner
contemplated by the Purchase Agreement and the Offering Memorandum and the
initial resale of the Securities by the Initial Purchasers in the manner
contemplated in the Offering Memorandum and the Purchase Agreement do not
require registration under the Securities Act, and the Indenture does not
require qualification under the Trust Indenture Act, it being understood
that such counsel expresses no opinion as to any subsequent resale of any
Security.
(xv) Such counsel shall also state that they have participated in
conferences with officers and other representatives of the Issuers, special
counsel for the Issuers, representatives of the independent accountants of
the Issuers, and the Initial Purchasers at which the contents of the
Offering Memorandum and related matters were discussed and, although such
counsel is not passing upon, and does not assume any responsibility for,
the accuracy, completeness or fairness of the statements contained in the
Offering Memorandum (or any amendments or supplements thereto) and has made
no independent check or verification thereof, on the basis of the
foregoing, no facts have come to such counsel's attention that have led
such counsel to believe that the Offering Memorandum (or any amendments or
supplements thereto), as of its date and as of the date hereof, contained
or contains an untrue statement of a material fact or omitted or omits to
state a material fact necessary in order to make the statements therein, in
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light of the circumstances under which they were made, not misleading,
except that such counsel expresses no opinion or belief with respect to the
financial statements and schedules and other financial and statistical data
included therein or excluded therefrom.
In rendering such opinion, such counsel may rely as to matters of fact, to
the extent such counsel deems proper, on certificates of employees, responsible
officers and other representatives of the Company and public officials.
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ANNEX C
[Form of Opinion of Special Radio Communications Counsel for the Issuers]
▇▇▇▇▇ and ▇▇▇▇▇▇▇, L.L.P. shall have furnished to the Initial Purchasers
their written opinion, as special radio communications counsel for the Issuers,
addressed to the Initial Purchasers and dated the Closing Date, in form and
substance reasonably satisfactory to the Initial Purchasers, substantially to
the effect set forth below.
(i) No authorization, approval, order, consent or filing under the
Communications Act or any published rules, regulations or policies of the
FCC thereunder or with the FCC on the part of the Issuers or their
respective subsidiaries with regard to any of the FCC Licenses (as defined
below) is required in connection with the issuance of the Securities
pursuant to the Purchase Agreement, other than such has been obtained or
filed and other than filings with the FCC required subsequent to the
issuance and sale of the Securities. The issuance and sale of the
Securities pursuant to the Purchase Agreement, does not violate applicable
provisions of the Communications Act or any published rules, regulations or
policies of the FCC thereunder.
(ii) A schedule to such counsel's opinion sets forth a complete list
of the broadcast station authorizations issued by the FCC to the Issuers
and their respective subsidiaries (the "FCC Licenses"). To such counsel's
knowledge, and except as noted on a schedule to such opinion, the FCC
Licenses are the only licenses, permits or authorizations required under
the Communications Act for the broadcast of signals on the main station
frequency of each of the Stations. Except as noted on a schedule to such
opinion, each of the FCC Licenses is valid and in full force and effect on
the date hereof.
(iii) Applications for renewals of the FCC Licenses are pending at the
FCC, as indicated on a schedule to such counsel's opinion. To such
counsel's knowledge, there is no FCC order, judgment, decree, notice of
apparent liability or order of forfeiture, investigation or other
proceeding pending or threatened, by or before the FCC against the Issuers
or any of their respective subsidiaries that might result in revocation,
cancellation, suspension, non-renewal, or short-term renewal of the FCC
Licenses, except FCC rulemaking proceedings generally affecting the radio
broadcasting industry.
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ANNEX D
[Form of Opinion of General Counsel and Secretary for the Company]
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ shall have furnished to the Initial Purchasers his written
opinion, as general counsel and secretary for the Company, addressed to the
Initial Purchasers and dated the Closing Date, in form and substance reasonably
satisfactory to the Initial Purchasers, substantially to the effect set forth
below:
(i) To the best of his knowledge, ▇▇. ▇▇▇▇▇▇ does not know of any
legal or governmental proceeding pending or threatened to which the Company
or any of its subsidiaries is or could be a party or to which any of their
respective property is or could be subject that is required to be described
in the Offering Memorandum and is not so described, or of any statute,
regulation, contract or other document that is required to be described in
the Offering Memorandum that is not so described as required;
(ii) To the best of his knowledge, the Company and its subsidiaries
each has such Authorizations of, and has made all filings with and notices
to, all governmental or regulatory authorities and self-regulatory
organizations and all courts and other tribunals, including, without
limitation, under any applicable Environmental Laws, as are necessary to
own, lease, license and operate its respective properties and to conduct
its business, except where the failure to have any such Authorization or to
make any such filing or notice could not, singly or in the aggregate, be
reasonably expected to have a material adverse effect on the business,
prospects, financial condition or results of operations of the Company and
its subsidiaries, taken as a whole; each such Authorization is valid and in
full force and effect and the Company and each of its subsidiaries is in
compliance with all the terms and conditions thereof and with the rules and
regulations of the authorities and governing bodies having jurisdiction
with respect thereto; and no event has occurred (including, without
limitation, the receipt of any notice from any authority or governing body)
which allows or, after notice or lapse of time or both, would allow,
revocation, suspension or termination of any such Authorization or results
or, after notice or lapse of time or both, would result in any other
impairment of the rights of the holder of any such Authorization; and such
Authorizations contain no restrictions that are burdensome to the Company
and its subsidiaries, taken as a whole; except where such failure to be
valid and in full force and effect or to be in compliance, the occurrence
of any such event or the presence of any such restriction would not, singly
or in the aggregate, have a material adverse effect on the business,
prospects, financial condition or results of operations of the Company and
its subsidiaries, taken as a whole;
(iii) To the best of his knowledge, neither the Company nor any of its
subsidiaries is in violation of its charter, bylaws, certificate of
formation or other constitutive documentation or in default in any respect
in the performance of any material contract, loan agreement,
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mortgage, deed of trust, material lease or other material written contract
or agreement or of any respective order, award or decree of any court,
arbitrator or governmental or administrative body binding upon or affecting
it or by which any of its respective properties or assets is bound or
affected, except for violations or defaults which could not reasonably be
expected to have a material adverse effect on the business, prospects,
financial condition or results of operations of the Company and its
subsidiaries, taken as a whole.
(iv) All the outstanding shares of capital stock of each subsidiary of
the Company have been duly and validly authorized and issued, are fully
paid and non-assessable and are owned directly or indirectly by the
Company, free and clear of any lien, charge, encumbrance, security
interest, restriction upon voting or transfer or any other claim of any
third party, except as otherwise disclosed in the Offering Memorandum.
D-2