Exhibit 10.64
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Radio One, Inc.
The guarantors party hereto
$ 300,000,000
8 7/8% Senior Subordinated Notes due 2011
Purchase Agreement
dated May 4, ▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ Securities LLC
Credit Suisse First Boston Corporation
Deutsche Bank Alex. ▇▇▇▇▇ Inc.
▇▇▇▇▇▇▇▇ & Partners, L.P.
First Union Securities, Inc.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
TD Securities (USA) Inc.
Table of Contents
SECTION 1. Representations and Warranties.............................................................. 2
(a) No Registration Required.................................................................... 2
(b) No Integration of Offerings or General Solicitation......................................... 2
(c) Eligibility for Resale under Rule 144A...................................................... 3
(d) The Offering Memorandum..................................................................... 3
(e) The Purchase Agreement...................................................................... 3
(f) The Registration Rights Agreement........................................................... 3
(g) Authorization of the Securities and the Exchange Securities................................. 4
(h) Authorization of the Indenture.............................................................. 4
(i) Description of the Securities and the Indenture............................................. 4
(j) No Material Adverse Change.................................................................. 4
(k) Independent Accountants..................................................................... 5
(l) Preparation of the Financial Statements..................................................... 5
(m) Incorporation and Good Standing of the Company and its Subsidiaries......................... 5
(n) Capitalization.............................................................................. 6
(o) Non-Contravention of Existing Instruments; No Further Authorizations or Approvals Required.. 6
(p) No Material Actions or Proceedings.......................................................... 6
(q) Intellectual Property Rights................................................................ 6
(r) All Necessary Permits, etc.................................................................. 7
(s) FCC Licenses................................................................................ 7
(t) Condition of Stations....................................................................... 8
(u) Title to Properties......................................................................... 8
(v) Tax Law Compliance.......................................................................... 8
(w) Company Not an "Investment Company"......................................................... 8
(x) Insurance................................................................................... 8
(y) No Price Stabilization or Manipulation...................................................... 9
(z) Company's Accounting System................................................................. 9
(aa) Compliance with Environmental Laws.......................................................... 9
(bb) ERISA Compliance............................................................................ 9
(cc) No Default in Senior Debt................................................................... 10
(dd) Compliance with Regulations S............................................................... 10
(ee) Temporary Regulations S Global Note......................................................... 10
SECTION 2. Purchase, Sale and Delivery of the Securities............................................... 10
(a) The Securities.............................................................................. 10
(b) The Closing Date............................................................................ 11
(c) Delivery of the Securities.................................................................. 11
(d) Delivery of Offering Memorandum to the Initial Purchasers................................... 11
(e) Initial Purchasers as Qualified Institutional Buyers........................................ 11
(f) Resale of Securities........................................................................ 11
SECTION 3. Additional Covenants........................................................................ 11
(a) Initial Purchasers' Review of Proposed Amendments and Supplements........................... 11
(b) Amendments and Supplements to the Offering Memorandum and Other Securities Act Matters...... 12
(c) Copies of the Offering Memorandum........................................................... 12
(d) Blue Sky Compliance......................................................................... 12
(e) Use of Proceeds............................................................................. 13
(f) The Depositary.............................................................................. 13
(g) Additional Issuer Information............................................................... 13
(h) Future Reports to the Initial Purchasers.................................................... 13
(i) No Integration.............................................................................. 13
(j) Legended Securities......................................................................... 13
(k) PORTAL...................................................................................... 13
SECTION 4. Payment of Expenses......................................................................... 14
i
SECTION 5. Conditions of the Obligations of the Initial Purchasers..................................... 14
(a) Accountants' Comfort Letter................................................................. 14
(b) No Material Adverse Change or Ratings Agency Change......................................... 15
(c) Opinion of Counsel for the Company.......................................................... 15
(d) Opinion of Regulatory Counsel for the Company............................................... 15
(e) Opinion of Counsel for the Initial Purchasers............................................... 15
(f) Officers' Certificate....................................................................... 15
(g) Bring-down Comfort Letter................................................................... 16
(h) PORTAL Listing.............................................................................. 16
(i) Registration Rights Agreement............................................................... 16
(j) Indenture................................................................................... 16
(k) Additional Documents........................................................................ 16
SECTION 6. Reimbursement of Initial Purchasers' Expenses............................................... 16
SECTION 7. Offer, Sale and Resale Procedures........................................................... 16
SECTION 8. Indemnification............................................................................. 17
(a) Indemnification of the Initial Purchasers................................................... 18
(b) Indemnification of the Company, its Directors and Officers.................................. 18
(c) Notifications and Other Indemnification Procedures.......................................... 19
(d) Settlements................................................................................. 20
SECTION 9. Contribution................................................................................ 20
SECTION 10. Termination of this Agreement............................................................... 21
SECTION 11. Representations and Indemnities to Survive Delivery......................................... 22
SECTION 12. Notices..................................................................................... 22
SECTION 13. Successors.................................................................................. 23
SECTION 14. Partial Unenforceability.................................................................... 23
SECTION 15. Governing Law Provisions.................................................................... 23
SECTION 16. Consent to Jurisdiction..................................................................... 23
SECTION 17. Default of One or More of the Several Initial Purchasers.................................... 23
SECTION 18. General Provisions.......................................................................... 24
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Purchase Agreement
May 4, ▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ SECURITIES LLC
CREDIT SUISSE FIRST BOSTON CORPORATION
DEUTSCHE BANK ALEX. ▇▇▇▇▇ INC.
▇▇▇▇▇▇▇▇ & PARTNERS, L.P.
FIRST UNION SECURITIES, INC.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
TD SECURITIES (USA) INC.
c/o BANC OF AMERICA SECURITIES LLC
▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
as representatives of the several initial purchasers
Ladies and Gentlemen:
Radio One, Inc., a Delaware corporation (the "Company"), proposes to
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issue and sell to the several Initial Purchasers named in Schedule I (the
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"Initial Purchasers"), acting severally and not jointly, the respective amounts
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set forth in such Schedule I of the Company's 8 7/8% Senior Subordinated Notes
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due 2011 (the "Notes"). Banc of America Securities LLC has agreed to act as the
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lead Initial Purchaser in connection with the offering and sale of the Notes.
The Notes will be issued pursuant to an indenture, dated as of May 18,
2001 (the "Indenture"), among the Company, the Guarantors (as defined below) and
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United States Trust Company of New York, as trustee (the "Trustee"). Notes
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issued in book-entry form will be issued in the name of Cede & Co., as nominee
of The Depository Trust Company (the "Depositary").
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The holders of the Notes will be entitled to the benefits of a
registration rights agreement, dated as of May 4, 2001 (the "Registration Rights
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Agreement"), among the Company, the Guarantors (as defined below) and the
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Initial Purchasers, pursuant to which the Company will agree to file, within 60
days of the Closing Date, a registration statement with the Commission
registering the Exchange Securities (as defined below) under the Securities Act.
The payment of principal, premium and Liquidated Damages (as defined
in the Indenture), if any, and interest on the Notes and the Exchange Notes (as
defined below) will be fully and unconditionally guaranteed on a senior
unsecured basis, jointly and severally by (i) the parties named in Schedule II
and (ii) any subsidiary of the Company formed or acquired after the Closing Date
that executes an additional guarantee in accordance with the terms of the
Indenture, and their respective successors and assigns (collectively, the
"Guarantors"), pursuant to their guarantees (the "Guarantees"). The Notes and
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the Guarantees attached thereto are herein collectively referred to as the
"Securities"; and the Exchange Notes and the Guarantees attached thereto are
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herein collectively referred to as the "Exchange Securities".
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The Company understands that the Initial Purchasers propose to make an
offering of the Securities on the terms and in the manner set forth herein and
in the Offering Memorandum (as defined below) and agrees that the Initial
Purchasers may resell, subject to the conditions set forth herein, all or a
portion of the Securities to purchasers (the "Subsequent Purchasers") at any
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time after the date of this Agreement. The Securities are to be offered and
sold to or through the Initial Purchasers without being registered with the
Securities and Exchange Commission (the "Commission") under the Securities Act
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of 1933 (as amended, the "Securities Act," which term, as used herein, includes
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the rules and regulations of the Commission promulgated thereunder), in reliance
upon exemptions therefrom. The terms of the Securities and the Indenture will
require that investors that acquire Securities expressly agree that Securities
may only be resold or otherwise transferred, after the date hereof, if such
Securities are registered for sale under the Securities Act or if an exemption
from the registration requirements of the Securities Act is available (including
the exemptions afforded by Rule 144A ("Rule 144A") or Regulation S
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("Regulation S") thereunder).
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The Company has prepared and delivered to each Initial Purchaser
copies of a Preliminary Offering Memorandum, dated April 23, 2001 (the
"Preliminary Offering Memorandum"), and has prepared and will deliver to each
--------------------------------
Initial Purchaser, copies of the Offering Memorandum, dated May 7, 2001,
describing the terms of the Securities, each for use by such Initial Purchaser
in connection with its solicitation of offers to purchase the Securities. As
used herein, the "Offering Memorandum" shall mean, with respect to any date or
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time referred to in this Agreement, the Company's Offering Memorandum, dated May
7, 2001, including amendments or supplements thereto, any exhibits thereto, in
the most recent form that has been prepared and delivered by the Company to the
Initial Purchasers in connection with their solicitation of offers to purchase
Securities. Further, any reference to the Preliminary Offering Memorandum or
the Offering Memorandum shall be deemed to refer to and include any Additional
Issuer Information (as defined in Section 3) furnished by the Company prior to
the completion of the distribution of the Securities.
The Company and each of the Guarantors hereby confirm their agreements
with the Initial Purchasers as follows:
SECTION 1. Representations and Warranties. Each of the Company and the
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Guarantors, jointly and severally, hereby represent, warrant and covenant to
each Initial Purchaser as follows:
(a) No Registration Required. Subject to compliance by the Initial
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Purchasers with the representations and warranties set forth in Section 2 hereof
and with the procedures set forth in Section 7 hereof, it is not necessary in
connection with the offer, sale and delivery of the Securities to the Initial
Purchasers and to each Subsequent Purchaser in the manner contemplated by this
Agreement and the Offering Memorandum to register the Securities under the
Securities Act or, until such time as the Exchange Securities are issued
pursuant to an effective registration statement, to qualify the Indenture under
the Trust Indenture Act of ▇▇▇▇ (▇▇▇ "▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇," which term, as used
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herein, includes the rules and regulations of the Commission promulgated
thereunder).
(b) No Integration of Offerings or General Solicitation. Neither the
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Company nor any Guarantor has, directly or indirectly, solicited any offer to
buy or offered to sell, nor will, directly or indirectly, solicit any offer to
buy or offer to sell, in the United States or to any United States citizen or
resident, any security which is or would be integrated with the sale of the
Securities in a manner that would require the Securities to be registered under
the Securities Act. None of the Company or Guarantors, their respective
affiliates (as such term is defined in Rule 501 under the Securities Act (each,
an "Affiliate"), or any person acting on its or their respective behalf (other
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than the Initial Purchasers, as to whom the Company and Guarantors make no
representation or
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warranty) has engaged or will engage, in connection with the offering of the
Securities, in any form of general solicitation or general advertising within
the meaning of Rule 502 under the Securities Act. With respect to those
Securities sold in reliance upon Regulation S, none of the Company or the
Guarantors, their Affiliates or any person acting on its or their behalf (other
than the Initial Purchasers, as to whom the Company and Guarantors make no
representation or warranty) has engaged or will engage in any directed selling
efforts within the meaning of Regulation S and.
(c) Eligibility for Resale under Rule 144A. The Securities are
--------------------------------------
eligible for resale pursuant to Rule 144A and will not be, at the Closing Date,
of the same class as securities listed on a national securities exchange
registered under Section 6 of the Exchange Act or quoted in a U.S. automated
interdealer quotation system.
(d) The Offering Memorandum. The Offering Memorandum does not, and
-----------------------
at the Closing Date 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 under which they were made, not misleading;
provided that this representation, warranty and agreement shall not apply to
statements in or omissions from the Offering Memorandum made in reliance upon
and in conformity with information furnished to the Company in writing by any
Initial Purchaser expressly for use in the Offering Memorandum. Each of the
Preliminary Offering Memorandum and the Offering Memorandum, as of its date,
contains all the information specified in, and meeting the requirements of, Rule
144A. Neither the Company nor any Guarantor has distributed or will distribute,
prior to the later of the Closing Date and the completion of the Initial
Purchasers' distribution of the Securities, any offering material in connection
with the offering and sale of the Securities other than a Preliminary Offering
Memorandum or the Offering Memorandum.
(e) The Purchase Agreement. This Agreement has been duly authorized,
----------------------
executed and delivered by, and is a valid and binding agreement of the Company
and the Guarantors, enforceable against the Company and the Guarantors in
accordance with its terms, except as rights to indemnification hereunder may be
limited by applicable law and except as the enforcement hereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to or affecting the rights and remedies of creditors or by general
equitable principles and except as rights to indemnification under the
Registration Rights Agreement may be limited by applicable law.
(f) The Registration Rights Agreement. At the Closing Date, the
---------------------------------
Registration Rights Agreement will be duly authorized, executed and delivered
by, and will be a valid and binding agreement of the Company and the Guarantors,
enforceable against the Company and the Guarantors in accordance with its terms,
except as the enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting the
rights and remedies of creditors or by general equitable principles and except
as rights to indemnification under the Registration Rights Agreement may be
limited by applicable law. Pursuant to the Registration Rights Agreement, the
Company will agree to file with the Commission, under the circumstances set
forth therein, a registration statement under the Securities Act relating to
another series of debt securities of the Company with terms substantially
identical to the Notes (the "Exchange Notes") to be offered in exchange
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for the Notes (the "Exchange Offer") and (ii) to the extent required by the
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Registration Rights Agreement, a shelf registration statement pursuant to Rule
415 of the Securities Act relating to the resale by certain holders of the
Notes, and in each case, to use its best efforts to cause such registration
statements to be declared effective.
3
(g) Authorization of the Securities and the Exchange Securities.
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(i) The Notes to be purchased by the Initial Purchasers from
the Company are in the form contemplated by the Indenture, have been duly
authorized for issuance and sale pursuant to this Agreement and at the Closing
Date the Indenture will have been duly executed by the Company and the
Guarantors and, when authenticated in the manner provided for in the Indenture
and delivered against payment of the purchase price therefor, will constitute
valid and binding agreements of the Company, enforceable against the Company in
accordance with their terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to or affecting the rights and remedies of creditors or by general
equitable principles and will be entitled to the benefits of the Indenture.
(ii) The Exchange Notes have been duly and validly authorized
for issuance by the Company, and when issued and authenticated in accordance
with the terms of the Indenture, the Registration Rights Agreement and the
Exchange Offer, will constitute valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium, or similar laws relating to or affecting enforcement of the rights
and remedies of creditors or by general principles of equity and will be
entitled to the benefits of the Indenture.
(iii) The Guarantees of the Notes and the Exchange Notes are in
the respective forms contemplated by the Indenture, have been duly authorized
for issuance and sale pursuant to this Agreement and the Indenture and, at the
Closing Date, will have been duly executed by each of the Guarantors and, when
the Notes have been authenticated in the manner provided for in the Indenture
and delivered against payment of the purchase price therefor, will constitute
valid and binding agreements of the Guarantors, enforceable in accordance with
their terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating to or
affecting the rights and remedies of creditors or by general equitable
principles and will be entitled to the benefits of the Indenture.
(h) Authorization of the Indenture. The Indenture has been duly
------------------------------
authorized by the Company and the Guarantors, and, at the Closing Date, will
have been duly executed and delivered by the Company and the Guarantors, and
will constitute a valid and binding agreement of the Company and the Guarantors,
enforceable against the Company and the Guarantors in accordance with its terms,
except as the enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting the
rights and remedies of creditors or by general equitable principles.
(i) Description of the Securities and the Indenture. The Notes, the
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Exchange Notes, the Guarantees of the Notes and the Exchange Notes and the
Indenture will conform in all material respects to the respective statements
relating thereto contained in the Offering Memorandum.
(j) No Material Adverse Change. Except as otherwise disclosed in the
--------------------------
Offering Memorandum, subsequent to the respective dates as of which information
is given in the Offering Memorandum: (i) there has been no material adverse
change, or any development that could reasonably be expected to result in a
material adverse change, in the condition, financial or otherwise, or in the
earnings, business, operations or prospects, whether or not arising from
transactions in the ordinary course of business, of the Company and its
subsidiaries (any such change is called a "Material Adverse Change"); (ii)
-----------------------
neither the Company nor any of its subsidiaries have incurred any material
liability or obligation, indirect, direct or contingent, not in the ordinary
course of business nor entered into any material transaction or agreement not in
the
4
ordinary course of business; and (iii) there has been no dividend or
distribution of any kind declared, paid or made by the Company or, except for
dividends paid to the Company or other subsidiaries, any of its subsidiaries on
any class of capital stock or repurchase or redemption by the Company or any of
its subsidiaries of any class of capital stock other than the dividends paid on
April 15, 2001 on the Existing Preferred Stock (as defined in the Indenture).
(k) Independent Accountants. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP,
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PricewaterhouseCoopers LLP and Clark, Schaefer, ▇▇▇▇▇▇▇ & Co, who have expressed
their opinion with respect to the financial statements (which term as used in
this Agreement includes the related notes thereto) included in the Offering
Memorandum are independent public or certified public accountants within the
meaning of Regulation S-X under the Securities Act and the Exchange Act.
(l) Preparation of the Financial Statements. The financial statements,
---------------------------------------
together with the related schedules and notes, included in the Offering
Memorandum present fairly the consolidated financial position of the Company and
its subsidiaries as of and at the dates indicated and the results of their
operations and cash flows for the periods specified. Such financial statements
have been prepared in conformity with generally accepted accounting principles
applied on a consistent basis throughout the periods involved, except as may be
expressly stated in the related notes thereto. The financial data set forth in
the Offering Memorandum under the captions "Offering Memorandum Summary--Summary
Historical and Pro Forma Consolidated Financial Data" and "Selected Historical
Consolidated Financial Data" fairly present the information set forth therein on
a basis consistent with that of the audited financial statements contained in
the Offering Memorandum. The pro forma consolidated financial statements of the
Company and its subsidiaries and the related notes thereto included under the
caption "Offering Memorandum Summary--Summary Historical and Pro Forma
Consolidated Financial Data", "Unaudited Pro Forma Consolidated Financial
Information" and elsewhere in the Offering Memorandum present fairly the
information contained therein, have been prepared in accordance with the
Commission's rules and guidelines with respect to pro forma financial
statements, except that EBITDA and broadcast cash flow are not within the scope
of the Commission's guidelines, and have been properly presented on the bases
described therein, and the assumptions used in the preparation thereof are
reasonable and the adjustments used therein are appropriate to give effect to
the transactions and circumstances referred to therein.
(m) Incorporation and Good Standing of the Company and its
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Subsidiaries. The Company and each of its subsidiaries has been duly
------------
incorporated or formed, as applicable and is validly existing as a corporation
or limited liability company, as the case may be, in good standing under the
laws of the jurisdiction of its incorporation or formation and has corporate
power and authority to own, lease and operate its properties and to conduct its
business as described in the Offering Memorandum and, in the case of the Company
and each of the Guarantors, to enter into and perform their respective
obligations under each of this Agreement, the Registration Rights Agreement, the
Securities, the Exchange Securities, the Guarantees and the Indenture. Each of
the Company, the Guarantors and their respective subsidiaries is duly qualified
as a foreign corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except for such
jurisdictions where the failure to so qualify or to be in good standing would
not, individually or in the aggregate, result in a Material Adverse Change. All
of the issued and outstanding capital stock or LLC interests, as applicable, of
each subsidiary has been duly authorized and validly issued, is fully paid and
nonassessable and is owned by the Company, directly or through subsidiaries,
free and clear of any security interest, mortgage, pledge, lien, encumbrance or
claim. The Company does not own or control, directly or indirectly, any
corporation, association or other entity other than the subsidiaries listed in
Schedule III hereto.
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5
(n) Capitalization. As of December 31, 2000, on a consolidated
--------------
basis, after giving pro forma effect to the issuance and sale of the Securities
pursuant hereto, the Company would have an authorized and outstanding
capitalization as set forth in the Offering Memorandum under the caption
"Capitalization" (other than for subsequent issuances of capital stock, if any,
pursuant to employee benefit plans or upon exercise of outstanding options or
warrants).
(o) Non-Contravention of Existing Instruments; No Further
-----------------------------------------------------
Authorizations or Approvals Required. Neither the Company nor any of its
------------------------------------
subsidiaries is in violation of its charter or by-laws or formation documents or
is in default (or, with the giving of notice or lapse of time, would be in
default) ("Default") under any indenture, mortgage, loan or credit agreement,
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note, contract, franchise, lease or other instrument to which the Company or its
subsidiaries is a party or by which it or any of them may be bound (including,
without limitation, the Company's Credit Agreement (as defined in the Indenture)
or the Company's 12% Senior Subordinated Notes due 2004), or to which any of the
property or assets of the Company or any of its subsidiaries is subject (each,
an "Existing Instrument"), except for such Defaults as would not, individually
-------------------
or in the aggregate, result in a Material Adverse Change. The Company's and the
Guarantors' execution, delivery and performance of this Agreement, the
Registration Rights Agreement and the Indenture, and the issuance and delivery
of the Securities (including the Guarantees endorsed thereon) or the Exchange
Securities (including the Guarantees endorsed thereon), and consummation of the
transactions contemplated hereby and thereby and by the Offering Memorandum (i)
have been duly authorized by all necessary corporate action and will not result
in any violation of the provisions of the charter or by-laws of the Company or
any of its subsidiaries, (ii) will not 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 Company or its subsidiaries
pursuant to, or require the consent of any other party to, any Existing
Instrument, except for such conflicts, breaches, Defaults, liens, charges or
encumbrances as would not, individually or in the aggregate, result in a
Material Adverse Change and (iii) will not result in any violation of any law,
administrative regulation or administrative or court decree applicable to the
Company or any of its subsidiaries. No consent, approval, authorization or other
order of, or registration or filing with, any court or other governmental or
regulatory authority or agency, is required for the Company's or the Guarantors'
execution, delivery and performance of this Agreement, the Registration Rights
Agreement or the Indenture, or the issuance and delivery of the Securities
(including the Guarantees endorsed thereon) or the Exchange Securities
(including the Guarantees endorsed thereon), or consummation of the transactions
contemplated hereby and thereby and by the Offering Memorandum, except such as
have been obtained or made by the Company or the Guarantors and are in full
force and effect under the Securities Act, applicable state securities or blue
sky laws and except such as may be required by federal and state securities laws
with respect to the Company's or the Guarantors' obligations under the
Registration Rights Agreement.
(p) No Material Actions or Proceedings. There are no legal or
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governmental actions, suits or proceedings pending or, to the best of the
Company's or any Guarantor's knowledge, threatened against or affecting the
Company or any of its subsidiaries, which has as the subject thereof any
property owned or leased by the Company or its subsidiaries, where in any such
case there is a reasonable possibility that such action, suit or proceeding
might be determined adversely to the Company or any such subsidiary and any such
action, suit or proceeding, if so determined adversely, would reasonably be
expected to result in a Material Adverse Change or adversely affect the
consummation of the transactions contemplated by this Agreement. No material
labor dispute with the employees of the Company or its subsidiaries, exists or,
to the best of the Company's or any Guarantor's knowledge, is threatened or
imminent.
(q) Intellectual Property Rights. The Company and its subsidiaries own
----------------------------
or possess sufficient trademarks, trade names, patent rights, copyrights,
licenses, approvals, trade secrets
6
and other similar rights (collectively, "Intellectual Property Rights")
----------------------------
reasonably necessary to conduct their businesses as now conducted; and the
expected expiration of any of such Intellectual Property Rights would not result
in a Material Adverse Change. Neither the Company nor any of its subsidiaries
has received any notice of infringement or conflict with asserted Intellectual
Property Rights of others, which infringement or conflict, if the subject of an
unfavorable decision, would result in a Material Adverse Change.
(r) All Necessary Permits, etc. The Company and each subsidiary
--------------------------
possess such valid and current certificates, authorizations or permits issued by
the appropriate state, federal or foreign regulatory agencies or bodies
necessary to conduct their respective businesses, and neither the Company nor
any subsidiary has received any notice of proceedings relating to the revocation
or modification of, or non-compliance with, any such certificate, authorization
or permit which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, could result in a Material Adverse Change.
(s) FCC Licenses.
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(i) The Company and each of its subsidiaries holds such
validly issued Federal Communications Commission (the "FCC") licenses and
---
authorizations as are necessary to operate their respective radio stations,
which are listed on Schedule IV (the "Stations"), as they are currently operated
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(collectively, the "FCC Licenses"), and each such FCC License is in full force
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and effect. The FCC Licenses of the Company and each such subsidiary are listed
on Schedule IV, and each of such FCC Licenses has the expiration date indicated
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on Schedule IV.
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(ii) Neither the Company nor any subsidiary has knowledge of
any condition imposed by the FCC as part of any FCC License, which condition is
neither set forth on the face thereof as issued by the FCC nor contained in the
rules and regulations of the FCC applicable generally to stations of the type,
nature, class or location of the Station in question. Each Station has been and
is being operated in all material respects in accordance with the terms and
conditions of the FCC Licenses applicable to it and the rules and regulations of
the FCC and the Communications Act of 1934, as amended (the "Communications
--------------
Act").
---
(iii) No proceedings are pending or are threatened which may
result in the revocation, modification, non-renewal or suspension of any of the
FCC Licenses, the denial of any pending applications, the issuance of any cease
and desist order or the imposition of any fines, forfeitures or other
administrative actions by the FCC with respect to any Station or its operation,
other than any matters which, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Change and proceedings
affecting the radio broadcasting industry in general.
(iv) All reports, applications and other documents required to
be filed by the Company or any such subsidiary with the FCC with respect to the
Stations have been timely filed, and all such reports, applications and
documents are true, correct and complete in all respects, except where the
failure to make such timely filing or any inaccuracy therein could not
reasonably be expected to result in a Material Adverse Change, and neither the
Company nor any of the subsidiaries has knowledge of any matters that could
reasonably be expected to result in the suspension or revocation of or the
refusal to renew any of the FCC Licenses or the imposition on the Company or any
subsidiary of any material fines or forfeitures by the FCC, or which could
reasonably be expected to result in the revocation, rescission, reversal or
modification of any Station's authorization to operate as currently authorized
under the Communications Act and the policies, rules and regulations of the FCC.
7
(v) There are no unsatisfied or otherwise outstanding citations
issued by the FCC with respect to any Station or its operations.
(t) Condition of Stations. All of the material properties, equipment
---------------------
and systems of the Company and its subsidiaries and the Stations owned and/or
operated by them are, and all material properties, equipment and systems to be
added in connection with any contemplated Station expansion or construction will
be, in condition which is sufficient for the operation thereof in accordance
with past practice of the Station in question and are and will be in material
compliance with all applicable standards, rules or requirements imposed by (a)
any governmental agency or authority including without limitation the FCC and
(b) any FCC License, in each case except where such noncompliance could not
reasonably be expected to result in a Material Adverse Change.
(u) Title to Properties. The Company and each of its subsidiaries
-------------------
have good and marketable title to all the properties and assets reflected as
owned in the financial statements referred to in Section 1 above, in each case
free and clear of any security interests, mortgages, liens, encumbrances,
equities, claims and other defects, except such as do not materially and
adversely affect the value of such property and do not materially interfere with
the use made or proposed to be made of such property by the Company or such
subsidiary. The real property, improvements, equipment and personal property
held under lease by the Company and any of its subsidiaries are held under valid
and enforceable leases, with such exceptions as are not material and do not
materially interfere with the use made or proposed to be made of such real
property, improvements, equipment or personal property by the Company or such
subsidiary.
(v) Tax Law Compliance. Except as would not, individually or in
------------------
the aggregate, result in a Material Adverse Change, the Company and its
subsidiaries (including the Guarantors) have filed all necessary federal, state
and foreign income and franchise tax returns and have paid all taxes required to
be paid by any of them and, if due and payable, any related or similar
assessment, fine or penalty levied against any of them. Except as would not,
individually or in the aggregate, result in a Material Adverse Change, the
Company has made adequate charges, accruals and reserves in the applicable
financial statements referred to in Section 1 above in respect of all federal,
state and foreign income and franchise taxes for all periods as to which the tax
liability of the Company and any of its subsidiaries (including the Guarantors)
has not been finally determined.
(w) Company Not an "Investment Company". The Company has been advised
----------------------------------
of the rules and requirements under the Investment Company Act of 1940, as
amended (the "Investment Company Act"). The Company is not, and after receipt of
----------------------
payment for the Securities will not be, an "investment company" within the
meaning of Investment Company Act and will conduct its business in a manner so
that it will not become subject to the Investment Company Act.
(x) Insurance. Each of the Company and its subsidiaries are insured
---------
by recognized, financially sound institutions with policies in such amounts and
with such deductibles and covering such risks as are generally deemed adequate
and customary for their businesses including, but not limited to, policies
covering real and personal property owned or leased by the Company and its
subsidiaries against theft, damage, destruction, acts of vandalism and
earthquakes. The Company and its subsidiaries have no reason to believe that it
or any of their respective subsidiaries will not be able (i) to renew its
existing insurance coverage as and when such policies expire or (ii) to obtain
comparable coverage from similar institutions as may be necessary or appropriate
to conduct its business as now conducted and at a cost that would not
8
result in a Material Adverse Change. Neither the Company nor any of its
subsidiaries has been denied any insurance coverage that it has sought or for
which it has applied.
(y) No Price Stabilization or Manipulation. The Company has not taken
--------------------------------------
and will not take, directly or indirectly, any action designed to or that might
be reasonably expected to cause or result in stabilization or manipulation of
the price of any security of the Company to facilitate the sale or resale of the
Securities.
(z) Company's Accounting System. The Company and each of its
---------------------------
subsidiaries maintains a system of accounting controls sufficient to provide
reasonable assurances that (i) transactions are executed in accordance with
management's general or specific authorization; (ii) transactions are recorded
as necessary to permit preparation of financial statements in conformity with
generally accepted accounting principles and to maintain accountability for
assets; (iii) access to assets is permitted only in accordance with management's
general or specific authorization; and (iv) the recorded accountability for
assets is compared with existing assets at reasonable intervals and appropriate
action is taken with respect to any differences.
(aa) Compliance with Environmental Laws. Except as would not,
----------------------------------
individually or in the aggregate, result in a Material Adverse Change (i)
neither the Company nor any of its subsidiaries is in violation of any federal,
state, local or foreign law or regulation relating to pollution or protection of
human health or the environment (including without limitation, ambient air,
surface water, groundwater, land surface or subsurface strata) or wildlife,
including without limitation, laws and regulations relating to emissions,
discharges, releases or threatened releases of chemicals, pollutants,
contaminants, wastes, toxic substances, hazardous substances, petroleum and
petroleum products (collectively, "Materials of Environmental Concern"), or
otherwise relating to the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of Materials of Environmental Concern
(collectively, "Environmental Laws"), which violation includes, but is not
limited to, noncompliance with any permits or other governmental authorizations
required for the operation of the business of the Company or its subsidiaries
under applicable Environmental Laws, or noncompliance with the terms and
conditions thereof, nor has the Company or any of its subsidiaries received any
written communication, whether from a governmental authority, citizens group,
employee or otherwise, that alleges that the Company or any of its subsidiaries
is in violation of any Environmental Law; (ii) there is no claim, action or
cause of action filed with a court or governmental authority, no investigation
with respect to which the Company has received written notice, and no written
notice by any person or entity alleging potential liability for investigatory
costs, cleanup costs, governmental responses costs, natural resources damages,
property damages, personal injuries, attorneys' fees or penalties arising out
of, based on or resulting from the presence, or release into the environment, of
any Material of Environmental Concern at any location owned, leased or operated
by the Company or any of its subsidiaries, now or in the past (collectively,
"Environmental Claims"), pending or, to the best of the Company's knowledge,
threatened against the Company or any of its subsidiaries or any person or
entity whose liability for any Environmental Claim the Company or any of its
subsidiaries has retained or assumed either contractually or by operation of
law; and (iii) to the best of the Company's knowledge, there are no past or
present actions, activities, circumstances, conditions, events or incidents,
including, without limitation, the release, emission, discharge, presence or
disposal of any Material of Environmental Concern, that reasonably could result
in a violation of any Environmental Law or form the basis of a potential
Environmental Claim against the Company or any of its subsidiaries or against
any person or entity whose liability for any Environmental Claim the Company or
any of its subsidiaries has retained or assumed either contractually or by
operation of law.
(bb) ERISA Compliance. Except as otherwise disclosed inthe Offering
----------------
Memorandum, the Company, its subsidiaries and any "employee benefit plan" (as
defined under the Employee
9
Retirement Income Security Act of 1974, as amended, and the regulations
and published interpretations thereunder (collectively, "ERISA")) established or
-----
maintained by the Company or its subsidiaries or their "ERISA Affiliates" (as
----------------
defined below) are in compliance in all material respects with ERISA. "ERISA
Affiliate" means, with respect to the Company or any of its respective
subsidiaries, any member of any group of organizations described in Sections 414
(b), (c), or (m) of the Internal Revenue Code of 1986, as amended, and the
regulations and published interpretations thereunder (the "Code") of which the
----
Company or such subsidiary is a member. No "reportable event" (as defined
under ERISA) has occurred or is reasonably expected to occur with respect to any
"employee benefit plan" established or maintained by the Company or its
subsidiaries or any of their ERISA Affiliates. No "employee benefit plan"
established or maintained by the Company, its subsidiaries or any of their ERISA
Affiliates, if such "employee benefit plan" were terminated, would have any
"amount of unfunded benefit liabilities" (as defined under ERISA). Neither the
Company, its respective subsidiaries nor any of their ERISA Affiliates have
incurred or reasonably anticipate incurring any liability under Title IV of
ERISA with respect to termination of, or withdrawal from, any "employee benefit
plan" or Sections 412, 4971, 4975 or 4980B of the Code. Each "employee benefit
plan" established or maintained by the Company, its subsidiaries or any of their
ERISA Affiliates that is intended to be qualified under Section 401 of the Code
is so qualified and nothing has occurred, whether by action or failure to act,
which would cause the loss of such qualification.
(cc) No Default in Senior Debt. No event of default exists under any
-------------------------
contract, indenture, mortgage, loan agreement, note, lease or other agreement or
instrument constituting Senior Debt (as defined in the Indenture).
(dd) Compliance with Regulations S. The Company, the Guarantors,
-----------------------------
their respective affiliates and all persons acting on their behalf (other than
the Initial Purchasers, as to whom the Company and the Guarantors make no
representation) have complied with and will comply with the offering
restrictions requirements of Regulation S in connection with the offering of the
Securities outside the United States and, in connection therewith, the Offering
Memorandum will contain the disclosure required by Rule 902.
(ee) Temporary Regulations S Global Note. The Securities sold in
-----------------------------------
reliance on Regulation S will be represented upon issuance by a temporary global
security that may not be exchanged for definitive securities until the
expiration of the 40-day restricted period referred to in Rule 903 of the
Securities Act and only upon certification of beneficial ownership of such
Securities by non-U.S. persons or U.S. persons who purchased such Securities in
transactions that were exempt from the registration requirements of the
Securities Act.
Any certificate signed by an officer of the Company or any of the
Guarantors and delivered to the Initial Purchasers or to counsel for the Initial
Purchasers shall be deemed to be a representation and warranty by the Company or
such Guarantor to each Initial Purchaser as to the matters set forth therein.
SECTION 2. Purchase, Sale and Delivery of the Securities.
----------------------------------------------
(a) The Securities. The Company agrees to issue and sell to the
--------------
several Initial Purchasers, severally and not jointly, all of the
Securities upon the terms herein set forth. On the basis of the
representations, warranties and agreements herein contained, and
upon the terms but subject to the conditions herein set forth, the
Initial Purchasers agree, severally and not jointly, to purchase
from the Company the aggregate principal amount of Securities set
forth opposite their names on Schedule I, at a purchase
----------
price of 97.25% of the principal amount thereof payable on the
Closing Date.
10
(b) The Closing Date. Delivery of certificates for the Securities in
----------------
definitive form to be purchased by the Initial Purchasers and
payment therefor shall be made at the offices of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇.▇. (or such other place as may
be agreed to by the Company and the Initial Purchasers) at 9:00
a.m. East Coast time, on May 18, 2001 or such other time and date
as the Initial Purchasers shall designate by notice to the Company
(the time and date of such closing are called the "Closing Date").
------------
The Company hereby acknowledges that circumstances under which the
Initial Purchasers may provide notice to postpone the Closing Date
as originally scheduled include, but are in no way limited to, any
determination by the Company or the Initial Purchasers to
recirculate to investors copies of an amended or supplemented
Offering Memorandum or a delay as contemplated by the provisions of
Section 17.
(c) Delivery of the Securities. The Company shall deliver, or
--------------------------
cause to be delivered, to Banc of America Securities LLC for the
accounts of the several Initial Purchasers certificates for the
Securities at the Closing Date against the irrevocable release of a
wire transfer of immediately available funds for the amount of the
purchase price therefor. The certificates for the Securities shall
be in such denominations and registered in the name of Cede & Co.,
as nominee of the Depository, and shall be made available for
inspection on the business day preceding the Closing Date at a
location in New York City, as the Initial Purchasers may designate.
Time shall be of the essence, and delivery at the time and place
specified in this Agreement is a further condition to the
obligations of the Initial Purchasers.
(d) Delivery of Offering Memorandum to the Initial Purchasers. Not
---------------------------------------------------------
later than 12:00 noon on the fourth business day following the
date of this Agreement, the Company shall deliver or cause to be
delivered copies of the Offering Memorandum in such quantities and
at such places as the Initial Purchasers shall reasonably request.
(e) Initial Purchasers as Qualified Institutional Buyers. Each
----------------------------------------------------
Initial Purchaser severally and not jointly represents and warrants
to, and agrees with, the Company that it is a "qualified
institutional buyer" within the meaning of Rule 144A (a "Qualified
---------
Institutional Buyer") and an "accredited investor" within the
-------------------
meaning of Rule 501 under the Securities Act (an "Accredited
----------
Investor").
---------
(f) Resale of Securities. Each Initial Purchaser severally and not
--------------------
jointly represents and warrants to, and agrees with the Company
that such Initial Purchaser will make offers of the Securities
purchased hereunder on the terms set forth in the Offering
Memorandum solely to (i) persons whom such Initial Purchaser
reasonably believes to be Qualified Institutional Buyers, and
(ii) persons permitted to purchase the Securities in offshore
transactions in reliance upon Regulation S under the Securities Act
(such persons specified in clauses (i) and (ii) are the Subsequent
Purchasers referred to herein).
SECTION 3. Additional Covenants. The Company and the Guarantors, jointly and
--------------------
severally, further covenant and agree with each Initial Purchaser as follows:
(a) Initial Purchasers' Review of Proposed Amendments and Supplements.
-----------------------------------------------------------------
Prior to amending or supplementing the Offering Memorandum, the
Company shall furnish to the Initial Purchasers for review a copy
of each such proposed amendment or supplement, and the Company
shall not use any such proposed amendment or supplement to which
the Initial Purchasers reasonably object.
11
(b) Amendments and Supplements to the Offering Memorandum and Other
---------------------------------------------------------------
Securities Act Matters. If, prior to the completion of the
----------------------
placement of the Securities by the Initial Purchasers with the
Subsequent Purchasers, any event shall occur or condition exist as
a result of which it is necessary to amend or supplement the
Offering Memorandum in order to make the statements therein, in the
light of the circumstances when the Offering Memorandum is
delivered to a purchaser, not misleading, or if in the opinion of
the Initial Purchasers or counsel for the Initial Purchasers it is
otherwise necessary to amend or supplement the Offering Memorandum
to comply with law, the Company agrees to promptly prepare (subject
to Section 3 hereof), and furnish at its own expense to the Initial
Purchasers, amendments or supplements to the Offering Memorandum so
that the statements in the Offering Memorandum as so amended or
supplemented will not, in the light of the circumstances when the
Offering Memorandum is delivered to a purchaser, be misleading or
so that the Offering Memorandum, as amended or supplemented, will
comply with law.
Following the consummation of the Exchange Offer or the
effectiveness of an applicable shelf registration statement and for so
long as the Securities are outstanding if, in the reasonable judgment of
the Initial Purchasers, the Initial Purchasers or any of their
affiliates (as such term is defined in the rules and regulations under
the Securities Act) are required to deliver a prospectus in connection
with sales of, or market-making activities with respect to, such
securities, to periodically amend the applicable registration statement
so that the information contained therein complies with the requirements
of Section 10 of the Securities Act, to amend the applicable
registration statement or supplement the related prospectus or the
documents incorporated therein when necessary to reflect any material
changes in the information provided therein so that the registration
statement and the prospectus will not contain any untrue statement of a
material fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances existing
as of the date the prospectus is so delivered, not misleading and to
provide the Initial Purchasers with copies of each amendment or
supplement filed and the information required to be provided to the
Trustee pursuant to the Indenture.
The Company and Guarantors hereby expressly acknowledge that the
indemnification and contribution provisions of Sections 8 and 9 hereof
are specifically applicable and relate to each offering memorandum,
registration statement, prospectus, amendment or supplement referred to
in this Section 3.
(c) Copies of the Offering Memorandum. The Company agrees to furnish
---------------------------------
the Initial Purchasers, without charge, as many copies of the
Offering Memorandum and any amendments and supplements thereto as
they shall have reasonably requested.
(d) Blue Sky Compliance. The Company shall cooperate with the
-------------------
Initial Purchasers and counsel for the Initial Purchasers to
qualify or register the Securities for sale under (or obtain
exemptions from the application of) the Blue Sky or state
securities laws of those jurisdictions designated by the Initial
Purchasers, shall comply with such laws and shall continue such
qualifications, registrations and exemptions in effect so long as
required for the distribution of the Securities. The Company shall
not be required to qualify as a foreign corporation or to take any
action that would subject it to general service of process in any
such jurisdiction where it is not presently qualified or where it
would be subject to taxation as a foreign corporation. The Company
will advise the Initial Purchasers promptly of the suspension of
the qualification or registration of (or any such exemption
relating to) the Securities for offering, sale or trading in any
jurisdiction or any initiation or threat of any proceeding for any
such
12
purpose, and in the event of the issuance of any order suspending
such qualification, registration or exemption, the Company shall
use its best efforts to obtain the withdrawal thereof at the
earliest possible moment.
(e) Use of Proceeds. The Company shall apply the net proceeds from
---------------
the sale of the Securities sold by it in the manner described under
the caption "Use of Proceeds" in the Offering Memorandum.
(f) The Depositary. The Company will cooperate with the Initial
--------------
Purchasers and use its best efforts to permit the Securities to be
eligible for clearance and settlement through the facilities of the
Depositary.
(g) Additional Issuer Information. At any time when the Company is
-----------------------------
not subject to Section 13 or 15 of the Exchange Act, for the
benefit of holders and beneficial owners from time to time of
Securities, the Company shall furnish, at its expense, upon
request, to holders and beneficial owners of Securities and
prospective purchasers of Securities information ("Additional
----------
Issuer Information") satisfying the requirements of subsection
------------------
of Rule 144A.
(h) Future Reports to the Initial Purchasers. For so long as any
----------------------------------------
Securities or Exchange Securities remain outstanding, the Company
will make available to Banc of America Securities LLC (i) as soon
as practicable after the end of each fiscal year, copies of the
Annual Report of the Company containing the consolidated balance
sheet of the Company and its subsidiaries as of the close of such
fiscal year and consolidated statements of income, stockholders'
equity and cash flows for the year then ended and the opinion
thereon of the Company's and its subsidiaries independent public or
certified public accountants; (ii) as soon as practicable after the
filing thereof, copies of each proxy statement, Annual Report on
Form 10-K, Quarterly Report on Form 10-Q, Current Report on
Form 8-K or other report filed by the Company and its subsidiaries
with the Commission, the NASD or any securities exchange; and
(iii) as soon as available, copies of any report or communication
of the Company mailed generally to holders of its capital stock or
debt securities (including the holders of the Securities).
(i) No Integration. The Company agrees that it will not and will
--------------
cause its Affiliates not to make any offer or sale of securities of
the Company of any class if, as a result of the doctrine of
"integration" referred to in Rule 502 under the Securities Act,
such offer or sale would render invalid (for the purpose of the
sale of the Securities by the Company to the Initial Purchasers,
(i) the resale of the Securities by the Initial Purchasers to
Subsequent Purchasers or (ii) the resale of the Securities by such
Subsequent Purchasers to others) the exemption from the
registration requirements of the Securities Act provided by
Section 4 thereof or by Rule 144A or by Regulation S thereunder or
otherwise.
(j) Legended Securities. Each certificate for a Note will bear the
-------------------
legend contained in "Notice to Investors" in the Offering
Memorandum for the time period and upon the other terms stated in
the Offering Memorandum.
(k) PORTAL. The Company will use its best efforts to cause such
------
Notes to be eligible for the National Association of Securities
Dealers, Inc. PORTAL market (the "PORTAL market").
-------------
(l) Comfort Letter.
--------------
13
The Company shall cause ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, independent public
accountants for the Company, to deliver to the Initial Purchasers a
letter dated as of the same date as the final Offering Memorandum
addressed to the Initial Purchasers, in form and substance
satisfactory to the Initial Purchasers, containing statements and
information of the type ordinarily included in accountant's
"comfort letters" to Initial Purchasers, delivered according to
Statement of Auditing Standards Nos. 72 and 76 (or any successor
bulletins), with respect to the audited and unaudited financial
statements and certain financial information contained the Offering
Memorandum.
Banc of America Securities LLC, on behalf of the several Initial
Purchasers, may, in its sole discretion, waive in writing the performance by the
Company or any Guarantor of any one or more of the foregoing covenants or extend
the time for their performance.
SECTION 4. Payment of Expenses. The Company agrees to pay (i) all costs,
-------------------
fees and expenses incurred in connection with the performance of its obligations
hereunder and in connection with the transactions contemplated hereby, including
without limitation all expenses incident to the issuance and delivery of the
Securities (including all printing and engraving costs), (ii) all necessary
issue, transfer and other stamp taxes in connection with the issuance and sale
of the Securities to the Initial Purchasers, (iii) all fees and expenses of the
Company's and the Guarantors' counsel, independent public or certified public
accountants and other advisors, (iv) all costs and expenses incurred in
connection with the preparation, printing, filing, shipping and distribution of
each Preliminary Offering Memorandum and the Offering Memorandum (including
financial statements and exhibits), and all amendments and supplements thereto,
this Agreement, the Registration Rights Agreement, the Indenture and the Notes
and the Guarantees, (v) all filing fees, attorneys' fees and expenses incurred
by the Company or the Initial Purchasers in connection with qualifying or
registering (or obtaining exemptions from the qualification or registration of)
all or any part of the Securities for offer and sale under the Blue Sky laws
and, if requested by the Initial Purchasers, preparing and printing a "Blue Sky
Survey" or memorandum, and any supplements thereto, advising the Initial
Purchasers of such qualifications, registrations and exemptions, (vi) the fees
and expenses of the Trustee, including the fees and disbursements of counsel for
the Trustee in connection with the Indenture, the Securities and the Exchange
Securities, (vii) any fees payable in connection with the rating of the
Securities or the Exchange Securities with the ratings agencies and the listing
of the Securities with the PORTAL market, (viii) any filing fees incident to the
review by the National Association of Securities Dealers, Inc., if any, of the
terms of the sale of the Securities or the Exchange Securities, (ix) all fees
and expenses (including reasonable fees and expenses of counsel) of the Company
and the Guarantors in connection with approval of the Securities by DTC for
"book-entry" transfer, and the performance by the Company and the Guarantors of
their respective obligations under this Agreement. Except as provided in this
Section 4, Section 6, Section 8 and Section 9 hereof, the Initial Purchasers
shall pay their own expenses, including the fees and disbursements of their
counsel.
SECTION 5. Conditions of the Obligations of the Initial Purchasers. The
-------------------------------------------------------
obligations of the several Initial Purchasers to purchase and pay for the
Securities as provided herein on the Closing Date shall be subject to the
accuracy of the representations and warranties on the part of the Company and
Guarantors set forth in Section 1 hereof as of the date hereof and as of the
Closing Date as though then made and to the timely performance by the Company
and Guarantors of its covenants and other obligations hereunder, and to each of
the following additional conditions:
(a) Accountants' Comfort Letter. The Initial Purchasers shall have
---------------------------
received from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, independent public accountants
for the Company, a letter dated the date of the Offering Memorandum
addressed to the Initial Purchasers, in form and substance
satisfactory to the Initial Purchasers, containing statements and
14
information of the type ordinarily included in accountant's
"comfort letters" to Initial Purchasers, delivered according to
Statement of Auditing Standards Nos. 72 and 76 (or any successor
bulletins), with respect to the audited and unaudited financial
statements and certain financial information contained in the
Registration Statement and the Offering Memorandum.
(b) No Material Adverse Change or Ratings Agency Change. For the
---------------------------------------------------
period from and after the date of this Agreement and prior to
the Closing Date:
(i) in the reasonable judgment of the Initial Purchasers
there shall not have occurred any Material Adverse
Change; and
(ii) there shall not have occurred any downgrading,
nor shall any notice have been given of any intended
or potential downgrading or of any review for a
possible change that does not indicate the direction
of the possible change, in the rating accorded any
securities of the Company by any "nationally
recognized statistical rating organization" as such
term is defined for purposes of Rule 436 under the
Securities Act.
(c) Opinion of Counsel for the Company. On the Closing Date, the
----------------------------------
Initial Purchasers shall have received the favorable opinion of
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, counsel for the Company and certain of the
Guarantors, dated as of such Closing Date, the form of which is
attached as Exhibit A.
---------
(d) Opinion of Regulatory Counsel for the Company. On the Closing
---------------------------------------------
Date, the Initial Purchasers shall have received the favorable
opinion of ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, special regulatory counsel
for the Company, dated as of such Closing Date, the form of which
is attached as Exhibit B.
---------
(e) Opinion of Counsel for the Initial Purchasers. On the Closing
---------------------------------------------
Date the Initial Purchasers shall have received the favorable
opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Initial Purchasers,
dated as of such Closing Date, with respect to such matters as may
be reasonably requested by the Initial Purchasers.
(f) Officers' Certificate. On the Closing Date the Initial
---------------------
Purchasers shall have received a written certificate executed by
the Chairman of the Board, Chief Executive Officer, President, or
Chief Financial Officer of the Company, and one additional
executive officer of the Company and each Guarantor, dated as of
the Closing Date, to the effect set forth in subsection b (ii) of
this Section 5, and further to the effect that:
(i) for the period from and after the date of this Agreement
and prior to the Closing Date there has not occurred any
Material Adverse Change;
(ii) the representations and warranties of the Company and the
Guarantors set forth in Section 1 of this Agreement are true
and correct with the same force and effect as though expressly
made on and as of the Closing Date; and
(iii) the Company and the Guarantors have complied with all
the agreements and satisfied all the conditions on its part to
be performed or satisfied at or prior to the Closing Date.
15
(g) Bring-down Comfort Letter. On the Closing Date, the Initial
-------------------------
Purchasers shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP,
independent public or certified public accountants for the Company,
a letter dated such date, in form and substance satisfactory to the
Initial Purchasers, to the effect that they reaffirm the statements
made in the letter furnished by them pursuant to subsection (a) of
this Section 5, except that the specified date referred to therein
for the carrying out of procedures shall be no more than three
business days prior to the Closing Date.
(h) PORTAL Listing. At the Closing Date the Notes shall have been
--------------
designated for trading on the PORTAL market.
(i) Registration Rights Agreement. The Company and each Guarantor
-----------------------------
shall have entered into the Registration Rights Agreement and the
Initial Purchasers shall have received executed counterparts
thereof.
(j) Indenture. The Company, each Guarantor and the Trustee shall have
---------
entered into the Indenture and the Initial Purchasers shall have
received an executed copy thereof.
(k) Additional Documents. On or before the Closing Date, the Initial
--------------------
Purchasers and counsel for the Initial Purchasers shall have
received such information, documents and opinions as they may
reasonably require for the purposes of enabling them to pass upon
the issuance and sale of the Securities as contemplated herein, or
in order to evidence the accuracy of any of the representations and
warranties, or the satisfaction of any of the conditions or
agreements, herein contained.
If any condition specified in this Section 5 is not satisfied when and
as required to be satisfied, this Agreement may be terminated by the Initial
Purchasers by notice to the Company at any time on or prior to the Closing Date,
which termination shall be without liability on the part of any party to any
other party, except that Section 4, Section 6, Section 8 and Section 9 shall at
all times be effective and shall survive such termination.
SECTION 6. Reimbursement of Initial Purchasers' Expenses. If this Agreement
---------------------------------------------
is terminated by the Initial Purchasers pursuant to Section 5, or if the sale to
the Initial Purchasers of the Securities on the Closing Date is not consummated
because of any refusal, inability or failure on the part of the Company or the
Guarantors to perform any agreement herein or to comply with any provision
hereof, each of the Company and Guarantors agrees, jointly and severally, to
reimburse the Initial Purchasers (or such Initial Purchasers as have terminated
this Agreement with respect to themselves), severally, upon demand for all out-
of-pocket expenses that shall have been reasonably incurred by the Initial
Purchasers in connection with the proposed purchase and the offering and sale of
the Securities, including but not limited to fees and disbursements of counsel,
printing expenses, travel expenses, postage, facsimile and telephone charges.
SECTION 7. Offer, Sale and Resale Procedures. Each of the Initial Purchasers,
---------------------------------
on the one hand, and the Company and each of the Guarantors, on the other hand,
hereby establish and agree to observe the following procedures in connection
with the offer and sale of the Securities:
(A) Offers and sales of the Securities will be made only by the
Initial Purchasers or Affiliates thereof qualified to do so in the jurisdictions
in which such offers or sales are made. Each such offer or sale shall only be
made to persons whom the offeror or seller reasonably believes to be qualified
institutional buyers (as defined in Rule 144A under the Securities Act) or non-
U.S. persons outside the United States to whom the offeror or seller reasonably
believes offers and sales of the Securities may be made in reliance upon
Regulation S under the Securities
16
Act, upon the terms and conditions set forth in Annex I hereto, which Annex I
------- -------
is hereby expressly made a part hereof.
(B) The Securities will be offered by approaching prospective
Subsequent Purchasers on an individual basis. No general solicitation or general
advertising (within the meaning of Rule 502 under the Securities Act) will be
used in the United States in connection with the offering of the Securities.
(C) Upon original issuance by the Company, and until such time as
the same is no longer required under the applicable requirements of the
Securities Act, the Securities (and all securities issued in exchange therefor
or in substitution thereof, other than the Exchange Securities) shall bear the
following legend:
"THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS
ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER ▇▇▇▇▇▇▇ ▇ ▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND
THE SECURITY EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED
IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH
PURCHASER OF THE SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER
MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. THE HOLDER OF THE SECURITY
EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT (A) SUCH SECURITY MAY
BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (i) (a) TO A PERSON WHO IS A
QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT)
IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (b) IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (c) OUTSIDE THE
UNITED STATES TO A FOREIGN PERSON IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 904 UNDER THE SECURITIES ACT, (d) TO AN INSTITUTIONAL "ACCREDITED INVESTOR"
(AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF THE SECURITIES ACT (AN
"INSTITUTIONAL ACCREDITED INVESTOR")) THAT, PRIOR TO SUCH TRANSFER, FURNISHES
THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS
(THE FORM OF WHICH CAN BE OBTAINED FROM THE TRUSTEE) AND, IF SUCH TRANSFER IS IN
RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT OF NOTES LESS THAN $250,000, AN OPINION
OF COUNSEL ACCEPTABLE TO THE ISSUER THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE
SECURITIES ACT, OR (e) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION OF
COUNSEL IF THE ISSUER SO REQUESTS), (ii) TO THE ISSUER, OR (iii) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH ANY
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER
APPLICABLE JURISDICTION AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS
REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF THE SECURITY EVIDENCED HEREBY OF
THE RESALE RESTRICTIONS SET FORTH IN (A) ABOVE."
Following the sale of the Securities by the Initial Purchasers
to Subsequent Purchasers pursuant to the terms hereof, the Initial Purchasers
shall not be liable or responsible to the Company for any losses, damages or
liabilities suffered or incurred by the Company, including any losses, damages
or liabilities under the Securities Act, arising from or relating to any resale
or transfer of any Security by any non-Affiliates of the Initial Purchasers.
SECTION 8. Indemnification.
----------------
17
(a) Indemnification of the Initial Purchasers. The Company and the
-----------------------------------------
Guarantors, jointly and severally, agree to indemnify and hold
harmless each Initial Purchaser, its directors, officers and
employees, and each person, if any, who controls any Initial
Purchaser within the meaning of the Securities Act and the Exchange
Act against any loss, claim, damage, liability or expense, as
incurred, to which such Initial Purchaser or such controlling
person may become subject, under the Securities Act, the Exchange
Act or other federal or state statutory law or regulation, or at
common law or otherwise (including in settlement of any litigation,
if such settlement is effected with the written consent of the
Company), insofar as such loss, claim, damage, liability or expense
(or actions in respect thereof as contemplated below) arises out of
or is based (i) upon any untrue statement or alleged untrue
statement of a material fact contained in the Preliminary Offering
Memorandum or the Offering Memorandum (or any amendment or
supplement thereto), or the omission or alleged omission therefrom
of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading; or (ii) in whole or in part upon any failure
of the Company or the Guarantors to perform its obligations
hereunder or under law; or (iii) any act or failure to act or any
alleged act or failure to act by any Initial Purchaser in
connection with, or relating in any manner to, the offering
contemplated hereby, and which is included as part of or referred
to in any loss, claim, damage, liability or action arising out of
or based upon any matter covered by clause (i) above, provided that
the Company and the Guarantors shall not be liable under this
clause (iii) to the extent that a court of competent jurisdiction
shall have determined by a final judgment that such loss, claim,
damage, liability or action resulted directly from any such acts or
failures to act undertaken or omitted to be taken by such Initial
Purchaser through its gross negligence or willful misconduct; and
to reimburse each Initial Purchaser and each such controlling
person for reasonable expenses (including the reasonable fees and
disbursements of counsel chosen by Banc of America Securities LLC)
as such expenses are reasonably incurred by such Initial Purchaser
or such controlling person in connection with investigating,
defending, settling, compromising or paying any such loss, claim,
damage, liability, expense or action; provided, however, that the
foregoing indemnity agreement shall not apply to any loss, claim,
damage, liability or expense to the extent, but only to the extent,
arising out of or based upon any untrue statement or alleged untrue
statement or omission or alleged omission made in reliance upon and
in conformity with written information furnished to the Company by
the Initial Purchasers for use in any Preliminary Offering
Memorandum or the Offering Memorandum (or any amendment or
supplement thereto). The indemnity agreement set forth in this
Section 8 shall be in addition to any liabilities that the Company
or the Guarantors may otherwise have.
(b) Indemnification of the Company, its Directors and Officers. Each
----------------------------------------------------------
Initial Purchaser agrees, severally and not jointly, to indemnify
and hold harmless the Company and each of its directors and each
person, if any, who controls the Company within the meaning of the
Securities Act or the Exchange Act, against any loss, claim,
damage, liability or expense, as incurred, to which the Company or
any such director, or controlling person may become subject, under
the Securities Act, the Exchange Act, or other federal or state
statutory law or regulation, or at common law or otherwise
(including in settlement of any litigation, if such settlement is
effected with the written consent of such Initial Purchaser),
insofar as such loss, claim, damage, liability or expense (or
actions in respect thereof as contemplated below) arises out of or
is based upon any untrue or alleged untrue statement of a material
fact contained in any Preliminary Offering Memorandum or the
Offering Memorandum (or any
18
amendment or supplement thereto), or arises out of or is based upon
the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in any Preliminary Offering
Memorandum or the Offering Memorandum (or any amendment or
supplement thereto), in reliance upon and in conformity with
written information furnished to the Company by the Initial
Purchasers expressly for use therein; and to reimburse the Company
or any such director or controlling person for any legal and other
expenses reasonably incurred by the Company or any such director or
controlling person in connection with investigating, defending,
settling, compromising or paying any such loss, claim, damage,
liability, expense or action. The Company hereby acknowledges that
the only information that the Initial Purchasers have furnished to
the Company expressly for use in any Preliminary Offering
Memorandum or the Offering Memorandum (or any amendment or
supplement thereto) are the statements set forth as the fifth
paragraph on page ii of the Offering Memorandum concerning
stabilization by the Initial Purchasers and in the last sentence of
the third paragraph, the second sentence of the fourth paragraph
and in the fifth paragraph under the caption "Plan of Distribution"
in the Offering Memorandum; and the Initial Purchasers confirm that
such statements are correct. The indemnity agreement set forth in
this Section 8 shall be in addition to any liabilities that each
Initial Purchaser may otherwise have.
(c) Notifications and Other Indemnification Procedures. Promptly after
--------------------------------------------------
receipt by an indemnified party under this Section 8 of notice of
the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against an indemnifying
party under this Section 8, notify the indemnifying party in
writing of the commencement thereof, but the omission so to notify
the indemnifying party will not relieve it from any liability which
it may have to any indemnified party for contribution or otherwise
than under the indemnity agreement contained in this Section 8 or
to the extent it is not prejudiced as a proximate result of such
failure. In case any such action is brought against any indemnified
party and such indemnified party seeks or intends to seek indemnity
from an indemnifying party, the indemnifying party will be entitled
to participate in and, to the extent that it shall elect, jointly
with all other indemnifying parties similarly notified, by written
notice delivered to the indemnified party promptly after receiving
the aforesaid notice from such indemnified party, to assume the
defense thereof with counsel reasonably satisfactory to such
indemnified party; provided, however, if the defendants in any such
action include both the indemnified party and the indemnifying
party and the indemnified party shall have reasonably concluded
that a conflict may arise between the positions of the indemnifying
party and the indemnified party in conducting the defense of any
such action or that there may be legal defenses available to it
and/or other indemnified parties which are different from or
additional to those available to the indemnifying party, the
indemnified party or parties shall have the right to select
separate counsel to assume such legal defenses and to otherwise
participate in the defense of such action on behalf of such
indemnified party or parties. Upon receipt of notice from the
indemnifying party to such indemnified party of such indemnifying
party's election so to assume the defense of such action and
approval by the indemnified party of counsel, the indemnifying
party will not be liable to such indemnified party under this
Section 8 for any legal or other expenses subsequently incurred by
such indemnified party in connection with the defense thereof
unless the indemnified party shall have employed separate counsel
in accordance with the proviso to the next preceding sentence (it
being understood, however, that the
19
indemnifying party shall not be liable for the expenses of more
than one separate counsel (together with local counsel), approved
by the indemnifying party (Banc of America Securities LLC in the
case of Section 8 and Section 9), representing the indemnified
parties who are parties to such action) or (ii) the indemnifying
party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a
reasonable time after notice of commencement of the action, in each
of which cases the fees and expenses of counsel shall be at the
expense of the indemnifying party.
(d) Settlements. The indemnifying party under this Section 8 shall
-----------
not be liable for any settlement of any proceeding effected without
its written consent, but if settled with such consent or if there
be a final judgment for the plaintiff, the indemnifying party
agrees to indemnify the indemnified party against any loss, claim,
damage, liability or expense by reason of such settlement or
judgment. Notwithstanding the foregoing sentence, if at any time an
indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel as
contemplated by Section 8 hereof, the indemnifying party agrees
that it shall be liable for any settlement of any proceeding
effected without its written consent if such settlement is entered
into more than 30 days after receipt by such indemnifying party of
the aforesaid request and (ii) such indemnifying party shall not
have reimbursed the indemnified party in accordance with such
request prior to the date of such settlement. No indemnifying party
shall, without the prior written consent of the indemnified party,
effect any settlement, compromise or consent to the entry of
judgment in any pending or threatened action, suit or proceeding in
respect of which any indemnified party is or could have been a
party and indemnity was or could have been sought hereunder by such
indemnified party, unless such settlement, compromise or consent
includes an unconditional release of such indemnified party from
all liability on claims that are the subject matter of such action,
suit or proceeding.
SECTION 9. Contribution. If the indemnification provided for in Section 8 is
------------
for any reason held to be unavailable to or otherwise insufficient to hold
harmless an indemnified party in respect of any losses, claims, damages,
liabilities or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate amount paid or payable by such indemnified party, as
incurred, as a result of any losses, claims, damages, liabilities or expenses
referred to therein (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company, on the one hand, and the Initial
Purchasers, on the other hand, from the offering of the Securities pursuant to
this Agreement or (ii) if the allocation provided by clause above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause above but also the relative
fault of the Company or the Guarantors, on the one hand, and the Initial
Purchasers, on the other hand, in connection with the statements or omissions or
inaccuracies in the representations and warranties herein which resulted in such
losses, claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative benefits received by the Company, on the
one hand, and the Initial Purchasers, on the other hand, in connection with the
offering of the Securities pursuant to this Agreement shall be deemed to be in
the same respective proportions as the total net proceeds from the offering of
the Securities pursuant to this Agreement (before deducting expenses) received
by the Company, and the total discount received by the Initial Purchasers bear
to the aggregate initial offering price of the Securities. The relative fault
of the Company, on the one hand, and the Initial Purchasers, on the other hand,
shall be determined by reference to, among other things, whether any such untrue
or alleged untrue statement of a material fact or omission or alleged omission
to state a material fact or any such inaccurate or alleged inaccurate
20
representation or warranty relates to information supplied by the Company, on
the one hand, or the Initial Purchasers, on the other hand, and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The amount paid or payable by a party as a result of the losses,
claims, damages, liabilities and expenses referred to above shall be deemed to
include, subject to the limitations set forth in Section 8, any legal or other
fees or expenses reasonably incurred by such party in connection with
investigating or defending any action or claim. The provisions set forth in
Section 8 with respect to notice of commencement of any action shall apply if a
claim for contribution is to be made under this Section 9; provided, however,
that no additional notice shall be required with respect to any action for which
notice has been given under Section 8 for purposes of indemnification.
The Company and the Initial Purchasers agree that it would not be just
and equitable if contribution pursuant to this Section 9 were determined by pro
rata allocation (even if the Initial Purchasers were treated as one entity for
such purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to in this Section 9.
Notwithstanding the provisions of this Section 9, no Initial Purchaser
shall be required to contribute any amount in excess of the discount received by
such Initial Purchaser in connection with the Securities distributed by it. No
person guilty of fraudulent misrepresentation (within the meaning of Section 11
of the Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The Initial Purchasers'
obligations to contribute pursuant to this Section 9 are several, and not joint,
in proportion to their respective commitments as set forth opposite their names
in Schedule I. For purposes of this Section 9, each director, officer and
----------
employee of an Initial Purchaser and each person, if any, who controls an
Initial Purchaser within the meaning of the Securities Act and the Exchange Act
shall have the same rights to contribution as such Initial Purchaser, and each
director of the Company, and each person, if any, who controls the Company with
the meaning of the Securities Act and the Exchange Act shall have the same
rights to contribution as the Company.
SECTION 10. Termination of this Agreement. Prior to the Closing Date, this
-----------------------------
Agreement may be terminated by the Initial Purchasers by notice given to the
Company if at any time (i) trading or quotation in any of the Company's
securities shall have been suspended or limited by the Commission, or trading in
securities generally on the Nasdaq Stock Market or the New York Stock Exchange
shall have been suspended or limited or minimum or maximum prices shall have
been generally established on any such stock exchanges by the Commission or the
NASD; (ii) a general banking moratorium shall have been declared by any of
federal, New York, Delaware or California authorities; (iii) there shall have
occurred any outbreak or escalation of national or international hostilities or
any crisis or calamity, or any change in the United States or international
financial markets, or any substantial change or development involving a
prospective substantial change in United States' or international political,
financial or economic conditions, as in the reasonable judgment of the Initial
Purchasers is material and adverse and makes it impracticable to market the
Securities in the manner and on the terms described in the Offering Memorandum
or to enforce contracts for the sale of securities; (iv) in the reasonable
judgment of the Initial Purchasers there shall have occurred any Material
Adverse Change; or the Company or its subsidiaries shall have sustained a loss
by strike, fire, flood, earthquake, accident or other calamity of such character
as in the reasonable judgment of the Initial Purchasers may interfere materially
with the conduct of the business and operations of the Company or its
subsidiaries regardless of whether or not such loss shall have been insured.
Any termination pursuant to this Section 10 shall be without liability on the
part of the Company and the Guarantors to any Initial Purchaser, except that
the Company and the Guarantors shall be obligated to reimburse the expenses of
the Initial Purchasers pursuant to Section 4 and in the case of clause (iv)
above,
21
Section 6 hereof, any Initial Purchaser to the Company, or of any party hereto
to any other party except that the provisions of Section 8 and Section 9 shall
at all times be effective and shall survive such termination.
SECTION 11. Representations and Indemnities to Survive Delivery. The
---------------------------------------------------
respective indemnities, agreements, representations, warranties and other
statements of the Company and the Guarantors, of their respective officers and
of the several Initial Purchasers set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any investigation
made by or on behalf of any Initial Purchaser, the Company the Guarantors or any
of their partners, officers or directors or any controlling person, as the case
may be, and will survive delivery of and payment for the Securities sold
hereunder and any termination of this Agreement.
SECTION 12. Notices. All communications hereunder shall be in writing and
-------
shall be mailed, hand delivered or telecopied and confirmed to the parties
hereto as follows:
If to the Initial Purchasers:
Banc of America Securities LLC
▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: High Yield Capital Markets
with a copy to:
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
If to the Company or any Guarantor hereto:
Radio One, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: 301-306--9638
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
with a copy to:
22
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Any party hereto may change the address for receipt of communications by giving
written notice to the others.
SECTION 13. Successors. This Agreement will inure to the benefit of and be
----------
binding upon the parties hereto, including any substitute Initial Purchasers
pursuant to Section 17 hereof, and to the benefit of the employees, officers and
directors and controlling persons referred to in Section 8 and Section 9, and in
each case their respective successors, and no other person will have any right
or obligation hereunder. The term "successors" shall not include any purchaser
of the Securities as such from any of the Initial Purchasers merely by reason of
such purchase.
SECTION 14. Partial Unenforceability. The invalidity or unenforceability of
------------------------
any Section, paragraph or provision of this Agreement shall not affect the
validity or enforceability of any other Section, paragraph or provision hereof.
If any Section, paragraph or provision of this Agreement is for any reason
determined to be invalid or unenforceable, there shall be deemed to be made such
minor changes (and only such minor changes) as are necessary to make it valid
and enforceable.
SECTION 15. Governing Law Provisions. THIS AGREEMENT SHALL BE GOVERNED BY
------------------------
AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN SUCH STATE.
SECTION 16. Consent to Jurisdiction. Any legal suit, action or proceeding
-----------------------
arising out of or based upon this Agreement or the transactions contemplated
hereby ("Related Proceedings") may be instituted in the federal courts of the
-------------------
United States of America located in the City and County of New York or the
courts of the State of New York in each case located in the City and County of
New York (collectively, the "Specified Courts"), and each party irrevocably
-----------------
submits to the non-exclusive jurisdiction (except for proceedings instituted in
regard to the enforcement of a judgment of any such court (a "Related
-------
Judgment"), as to which such jurisdiction is non-exclusive) of such courts in
--------
any such suit, action or proceeding. Service of any process, summons, notice or
document by mail to such party's address set forth above shall be effective
service of process for any suit, action or other proceeding brought in any such
court. The parties irrevocably and unconditionally waive any objection to the
laying of venue of any suit, action or other proceeding in the Specified Courts
and irrevocably and unconditionally waive and agree not to plead or claim in any
such court that any such suit, action or other proceeding brought in any such
court has been brought in an inconvenient forum.
SECTION 17. Default of One or More of the Several Initial Purchasers. If any
--------------------------------------------------------
one or more of the several Initial Purchasers shall fail or refuse to purchase
Securities that it or they have agreed to purchase hereunder on the Closing
Date, and the aggregate number of Securities which such defaulting Initial
Purchaser or Initial Purchasers agreed but failed or refused to purchase does
not
23
exceed 10% of the aggregate number of the Securities to be purchased on such
date, the other Initial Purchasers shall be obligated, severally, in the
proportions that the number of Securities set forth opposite their respective
names on Schedule I bears to the aggregate number of Securities set forth
----------
opposite the names of all such non-defaulting Initial Purchasers, or
in such other proportions as may be specified by the Initial Purchasers with the
consent of the non-defaulting Initial Purchasers, to purchase the Securities
which such defaulting Initial Purchaser or Initial Purchasers agreed but failed
or refused to purchase on such date. If any one or more of the Initial
Purchasers shall fail or refuse to purchase Securities and the aggregate number
of Securities with respect to which such default occurs exceeds 10% of the
aggregate number of Securities to be purchased on the Closing Date, and
arrangements satisfactory to the Initial Purchasers and the Company for the
purchase of such Securities are not made within 48 hours after such default,
this Agreement shall terminate without liability of any party to any other party
except that the provisions of Section 4, Section 8 and Section 9 shall at all
times be effective and shall survive such termination. In any such case either
the Initial Purchasers or the Company shall have the right to postpone the
Closing Date, as the case may be, but in no event for longer than seven days in
order that the required changes, if any, to the Offering Memorandum or any other
documents or arrangements may be effected.
As used in this Agreement, the term "Initial Purchaser" shall be
deemed to include any person substituted for a defaulting Initial Purchaser
under this Section 17. Any action taken under this Section 17 shall not relieve
any defaulting Initial Purchaser from liability in respect of any default of
such Initial Purchaser under this Agreement.
SECTION 18. General Provisions. This Agreement constitutes the entire
------------------
agreement of the parties to this Agreement and supersedes all prior written or
oral and all contemporaneous oral agreements, understandings and negotiations
with respect to the subject matter hereof. This Agreement may be executed in two
or more counterparts, each one of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
This Agreement may not be amended or modified unless in writing by all of the
parties hereto, and no condition herein (express or implied) may be waived
unless waived in writing by each party whom the condition is meant to benefit.
The Table of Contents and the section headings herein are for the convenience of
the parties only and shall not affect the construction or interpretation of this
Agreement.
24
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to the Company the enclosed copies hereof,
whereupon this instrument, along with all counterparts hereof, shall become a
binding agreement in accordance with its terms.
Very truly yours,
RADIO ONE, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President and
Chief Executive Officer
RADIO ONE LICENSES, INC.
WYCB ACQUISITION CORPORATION
BROADCAST HOLDINGS, INC.
▇▇▇▇ BROADCASTING COMPANY
RADIO ONE OF DETROIT, INC.
ALLUR-DETROIT, INC.
ALLUR LICENSES, INC.
RADIO ONE OF ATLANTA, INC.
ROA LICENSES, INC.
DOGWOOD COMMUNICATIONS, INC.
DOGWOOD LICENSES, INC.
RADIO ONE OF CHARLOTTE, LLC,
RADIO ONE OF AUGUSTA, INC.
▇▇▇▇▇ BROADCASTING OF CHARLOTTE, INC.
RADIO ONE OF NORTH CAROLINA, INC.
RADIO ONE OF BOSTON, INC.
RADIO ONE OF BOSTON LICENSES, INC.
BLUE CHIP MERGER SUBSIDIARY, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President and
Chief Executive Officer
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The foregoing Purchase Agreement is hereby confirmed and accepted by
the Initial Purchasers as of the date first above written.
BANC OF AMERICA SECURITIES LLC
CREDIT SUISSE FIRST BOSTON CORPORATION
DEUTSCHE BANK ALEX. ▇▇▇▇▇ INC.
▇▇▇▇▇▇▇▇ & PARTNERS, L.P.
FIRST UNION SECURITIES, INC.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
TD SECURITIES (USA) INC.,
as representatives of the several initial purchasers
By: BANC OF AMERICA SECURITIES LLC
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President