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EXHIBIT 99.1
$100,000,000
SPANISH BROADCASTING SYSTEM, INC.
9 5/8% SENIOR SUBORDINATED NOTES DUE 2009
PURCHASE AGREEMENT
May 24, 2001
XXXXXX BROTHERS INC.,
c/x Xxxxxx Brothers, Inc.
Three World Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Spanish Broadcasting System Inc., a Delaware corporation (the
"Company"), proposes, upon the terms and considerations set forth herein, to
issue and sell to you, as the initial purchaser (the "Initial Purchaser"),
$100,000,000 in aggregate principal amount of its 9 5/8% Senior Subordinated
Notes Due 2009 (the "2009 Notes"). The Company's obligations under the 2009
Notes, including the due and punctual payment of interest on the 2009 Notes will
be unconditionally guaranteed (the "Subsidiary Guarantees") by certain of the
Company's subsidiaries specified in the Indenture (as defined below)(the
"Subsidiary Guarantors"). As used herein, the term "2009 Notes" shall include
the Subsidiary Guarantees, unless the context otherwise requires. The 2009 Notes
will (i) have terms and provisions which are summarized in the Offering
Memorandum dated as of the date hereof and (ii) are to be issued pursuant to an
Indenture (the "Indenture") to be entered into between the Company and The Bank
of New York as trustee. This is to confirm the agreement concerning the purchase
of the 2009 Notes from the Company by the Initial Purchaser.
1. Offering Memorandum. The 2009 Notes will be offered and sold to the
Initial Purchaser without registration under the Securities Act of 1933, as
amended (the "Act") and the rules and regulations (the "Rules and Regulations")
of the Securities and Exchange Commission (the "Commission") thereunder, in
reliance on an exemption pursuant to Section 4(2) under the Act. The Company and
Subsidiary Guarantors have prepared an offering memorandum, dated as of the date
hereof (the "Offering Memorandum"), setting forth information regarding the
Company, the Subsidiary Guarantors, the 2009 Notes and the Exchange Notes (as
defined herein). Any references herein to the Offering Memorandum shall be
deemed to include all amendments and supplements thereto. The Company and the
Subsidiary Guarantors hereby confirm that they have authorized the use of the
Offering Memorandum in connection with the offering and resale of the 2009 Notes
by the Initial Purchaser.
It is understood and acknowledged that upon original issuance thereof,
and until such time as the same is no longer required under the applicable
requirements of the Act, the 2009 Notes (and all securities issued in exchange
therefor or in substitution thereof) shall bear the following legend:
"THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS
ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION
XXXXX XXXXXXX 0 XX XXX XXXXXX XXXXXX
0
SECURITIES ACT OF 1933 (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 EXEMPTIONS FROM THE PROVISIONS OF
SECTION 5 OF THE SECURITIES ACT INCLUDING THOSE PROVIDED BY
RULE 144A THEREUNDER. THE HOLDER OF THE SECURITY EVIDENCED
HEREBY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) SUCH
SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY
(1) (a) TO A PERSON WHO THE SELLER REASONABLY BELIEVES 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 NON-U.S. PERSON IN A TRANSACTION MEETING THE
REQUIREMENTS OF REGULATION S UNDER THE SECURITIES ACT, OR (d)
IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION
OF COUNSEL IF THE COMPANY SO REQUESTS), (2) TO THE COMPANY, OR
(3) 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 SUBSEQUENT PURCHASER OF THE
SECURITY EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH
IN (A) ABOVE."
You have advised the Company that you will make offers (the "Exempt
Resales") of the 2009 Notes purchased by you hereunder on the terms set forth in
the Offering Memorandum, as amended or supplemented, solely to (i) persons
(each, a "144A Purchaser") whom you reasonably believe to be "qualified
institutional buyers" as defined in Rule 144A under the Act ("QIBs"), and (ii)
outside the United States to certain persons in offshore transactions in
reliance on Regulation S under the Act (the purchasers specified in clauses (i)
and (ii) being referred to herein as the "Eligible Purchasers").
Holders (including subsequent transferees) of the 2009 Notes will have
the registration rights set forth in the registration rights agreement (the
"Registration Rights Agreement"), to be dated the Closing Date (as defined
below), in substantially the form of Exhibit A hereto, for so long as such 2009
Notes constitute "Transfer Restricted Securities" (as defined in the
Registration Rights Agreement). Pursuant to the Registration Rights Agreement,
the Company will agree to file with the Securities and Exchange Commission (the
"Commission") under the circumstances set forth therein, a registration
statement under the Act (the "Exchange Offer Registration Statement") relating
to the Company's 9 5/8% Senior Subordinated Notes (the "Exchange Notes") to be
offered in exchange for (1) the 2009 Notes and (2) the Company's existing 9 5/8%
Senior Subordinated Notes due 2009 (the "Existing Notes") which are
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guaranteed (the "Existing Guarantees") by certain subsidiaries of the Company.
The Company's obligations under the Exchange Notes, including the due and
punctual payment of interest on the 2009 Notes and the Existing Notes, will be
unconditionally guaranteed (the "Exchange Guarantees") by the Subsidiary
Guarantors. As used herein, the term "Exchange Notes" shall include the Exchange
Guarantees, unless the context otherwise requires.
2. Representations, Warranties and Agreements of the Company and the
Subsidiary Guarantors. The Company and each of the Subsidiary Guarantors
represent, warrant and agree that:
(a) Assuming (i) that your representations and warranties in
Section 3 are true, (ii) compliance by you with your covenants set forth in
Section 5 and (iii) that each of the Eligible Purchasers is a QIB, an Accredited
Institution or a person who acquires the 2009 Notes in an "offshore transaction"
and is not a "U.S. Person" (within the meaning of Regulation S under the Act),
the purchase and resale of the 2009 Notes pursuant hereto (including pursuant to
the Exempt Resales) is exempt from the registration requirements of the Act. No
form of general solicitation or general advertising was used by the Company or
any of its representatives (other than you, as to whom the Company makes no
representation) in connection with the offer and sale of the 2009 Notes,
including, but not limited to, articles, notices or other communications
published in any newspaper, magazine, or similar medium or broadcast over
television or radio or any seminar or meeting whose attendees have been invited
by any general solicitation or general advertising. No securities of the same
class as the 2009 Notes have been issued and sold by the Company within the
six-month period immediately prior to the date hereof.
(b) The Company is not required to deliver the information
specified in Rule 144A(d)(4) in connection with the Exempt Resales.
(c) The Offering Memorandum with respect to the 2009 Notes has
been prepared by the Company and the Subsidiary Guarantors for use by the
Initial Purchaser in connection with the Exempt Resales. No order or decree
preventing the use of the Offering Memorandum, or any order asserting that the
transactions contemplated by this Agreement are subject to the registration
requirements of the Act, has been issued and no proceeding for that purpose has
commenced or is pending or, to the knowledge of the Company or any of the
Subsidiary Guarantors, is contemplated.
(d) The Offering Memorandum, as of its date and the Closing
Date, did not or will not at any time contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading; provided that no representation
and warranty is made as to information contained in or omitted from the Offering
Memorandum made in reliance upon and in conformity with written information
relating to the Initial Purchaser furnished to the Company in writing by or on
behalf of the Initial Purchaser expressly for inclusion therein.
(e) The documents incorporated or deemed to be incorporated by
reference in the Offering Memorandum at the time they were or hereafter are
filed with the Commission (after giving effect to any amendments thereof)
complied and will comply in all material respects with the requirements of the
Securities Exchange Act of 1934, as amended the ("Exchange Act") and the rules
and regulations thereunder, and when read together with the other information in
the Offering Memorandum, at the date of the Offering Memorandum and at the
Closing Date did not and will not include an untrue statement of material fact
or omit to state a material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading.
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(f) The Company believes that the market-related and other
statistical data and estimates included in the Company's filings under the
Exchange Act incorporated by reference into the Offering Memorandum are accurate
in all material respects and are based on or derived from reliable sources.
(g) The Company and each of its subsidiaries (as defined in
Section 15) have been duly incorporated and are validly existing as corporations
in good standing under the laws of their respective jurisdictions of
incorporation, are duly qualified to do business and are in good standing as
foreign corporations in each jurisdiction in which their respective ownership or
lease of property or the conduct of their respective businesses requires such
qualification, except where the failure to be so qualified would not have a
material adverse effect on the general affairs, management, consolidated
financial position, stockholders' equity or results of operation of the Company
and its subsidiaries taken as whole (a "Material Adverse Effect"). The Company
and its subsidiaries have all power and authority necessary to own or hold their
respective properties and to conduct the businesses in which they are engaged;
and none of the subsidiaries of the Company other than Spanish Broadcasting
System of Greater Miami, Inc., Spanish Broadcasting System of Illinois, Inc.,
Spanish Broadcasting System, Inc. (New Jersey), Spanish Broadcasting System
Finance Corporation , Spanish Broadcasting System of Florida, Inc., SBS of
Greater New York, Inc., WPAT Licensing, Inc., Spanish Broadcasting System of
Puerto Rico, Inc., Spanish Broadcasting System Holding Company, Inc., Spanish
Broadcasting System Southwest, Inc. is a "significant subsidiary," as such term
is defined in Rule 405 of the Rules and Regulations ("Significant Subsidiary").
(h) The Company has an authorized capitalization as set forth in
or incorporated by reference in the Offering Memorandum, and all of the issued
shares of capital stock of the Company have been duly and validly authorized and
issued, are fully paid and non-assessable and conform to the description thereof
contained or incorporated by reference in the Offering Memorandum; and all of
the issued shares of capital stock of each subsidiary (other than JuJu Media,
Inc.) of the Company have been duly and validly authorized and issued and are
fully paid and non-assessable and (except for directors' qualifying shares) are
owned directly or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims and none of such shares of capital stock was
issued in violation of preemptive or other similar rights arising by operation
of law, under the charter and by-laws of the Company or under any agreement to
which the Company or any subsidiary is a party or otherwise.
(i) This Agreement has been duly authorized, executed and
delivered by the Company and the Significant Subsidiaries, and each of the other
documents relating to this Agreement to which the Company or any of its
subsidiaries is a party has been duly authorized, executed and delivered by the
Company and each such subsidiary as the case may be.
(j) The Indenture has been duly authorized, executed and
delivered by the Company and the Subsidiary Guarantors and is a valid and
legally binding agreement of the Company and the Subsidiary Guarantors,
enforceable in accordance with its terms except as (i) the enforceability
thereof may be limited by bankruptcy, insolvency or similar laws affecting
creditor's rights generally and (ii) rights of acceleration and the availability
of equitable remedies may be limited by equitable principles of general
applicability. No qualification of the Indenture under the Trust Indenture Act
of 1939, as amended (the "Trust Indenture Act"), is required in connection with
the offer and sale of the 2009 Notes contemplated hereby or in connection with
the Exempt Resales.
(k) The 2009 Notes and the Subsidiary Guarantees have been duly
and validly authorized by the Company and the Subsidiary Guarantors and, when
executed, authenticated and issued in accordance with the provisions of the
Indenture and delivered to and paid for by the Initial Purchaser, will be in the
form contemplated by and will be entitled to the benefits of, the Indenture and
will be
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validly issued and free and clear of all liens and restrictions on transfer
(other than restrictions on transfer contemplated hereby and in the Offering
Memorandum) and will constitute valid and legally binding obligations of the
Company and the Subsidiary Guarantors, enforceable against them in accordance
with their respective terms except as (i) enforceability thereof may be limited
by bankruptcy, insolvency or similar laws affecting creditors' rights generally
and (ii) rights of acceleration and the availability of equitable remedies may
be limited by equitable principles of general applicability.
(l) The Exchange Notes and the Exchange Guarantees have been
duly and validly authorized by the Company and the Subsidiary Guarantors and,
when duly executed, authenticated and issued in accordance with the provisions
of the Indenture and delivered in accordance with the Exchange Offer provided
for in the Registration Rights Agreement, will be substantially in the form
contemplated by and will be entitled to the benefits of the Indenture and will
be validly issued and free and clear of all liens and restrictions on transfer
(other than restrictions on transfer imposed by applicable state and Federal
securities laws) and will constitute valid and legally binding obligations of
the Company and the Subsidiary Guarantors, enforceable against them in
accordance with their respective terms except as (i) enforceability thereof may
be limited by bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (ii) rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general applicability.
(m) When the 2009 Notes are issued and delivered pursuant to
this Agreement, such 2009 Notes will not be of the same class (within the
meaning of Rule 144A under the Act) as securities of the Company that are listed
on a national securities exchange registered under Section 6 of the Exchange Act
or that are quoted in a United States automated inter-dealer quotation system.
(n) The execution, delivery and performance of this Agreement,
the Indenture, the Registration Rights Agreement, the 2009 Notes, the Subsidiary
Guarantees, the Exchange Notes and the Exchange Guarantees and the consummation
of the transactions contemplated hereby, thereby and in the Offering Memorandum
(including the issuance and sale of the 2009 Notes and the Subsidiary Guarantees
and the use of proceeds from the sale of the 2009 Notes as described under the
caption "Use of Proceeds") and the Exchange Offer Registration Statement will
not conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement, license or instrument to which the
Company or any of its subsidiaries is a party or by which the Company or any of
its subsidiaries is bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject, except for such defaults which,
individually or in the aggregate, would not result in a Material Adverse Effect,
nor will such actions result in any violation of the provisions of the charter,
certificate of designation, by-laws or similar governing document of the Company
or any of its subsidiaries or any statute or any order, rule or regulation of
any court or governmental agency or body having jurisdiction over the Company or
any of its subsidiaries or any of their properties or assets; and except for the
registration of the Exchange Notes and the Exchange Guarantees under the Act and
such consents, approvals, authorizations, registrations or qualifications as may
be required under the Exchange Act, Trust Indenture Act and applicable state
securities laws in connection with the purchase and distribution of the 2009
Notes by the Initial Purchaser, no consent, approval, authorization or order of,
or filing or registration with, any such court or governmental agency or body is
required for the execution, delivery and performance of this Agreement, the
Indenture, the Registration Rights Agreement, the 2009 Notes, the Subsidiary
Guarantees, the Exchange Notes and the Exchange Guarantees and the consummation
of the transactions contemplated hereby or thereby, including the issuance, sale
and delivery of the 2009 Notes to be issued, sold and delivered by the Company
hereunder.
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(o) The Company has all requisite corporate power and authority
to enter into the Registration Rights Agreement. The Registration Rights
Agreement has been duly authorized by the Company and, when executed and
delivered by the Company in accordance with the terms hereof, will be validly
executed and delivered and (assuming the due execution and delivery thereof by
you) will be the legally valid and binding obligation of the Company in
accordance with the terms hereof, enforceable against the Company in accordance
with its terms, except as (i) enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights generally,
(ii) rights of acceleration and the availability of equitable remedies may be
limited by equitable principles of general applicability, and (iii) as to rights
of indemnification and contribution, by principles of public policy.
(p) Except as to the shares issued in connection with the
Xxxxxxxxx Communications, Inc. acquisition or with the warrants that may be
issued in connection with the asset purchase agreement, as amended, with the
International Church of the Four Square Gospel, and as described (including by
incorporation by reference) in the Offering Memorandum, there are no contracts,
agreements or understandings between the Company and any person granting such
person the right (other than rights which have been waived or satisfied) to
require the Company to file a registration statement under the Act with respect
to any securities of the Company owned or to be owned by such person or to
require the Company to include such securities in the securities registered
pursuant to the Exchange Offer Registration Statement or in any securities being
registered pursuant to any other registration statement filed by the Company
under the Act.
(q) Except as described (including by incorporation by
reference) in the Offering Memorandum, the Company has not sold or issued any
securities, or securities that are convertible into other securities, with terms
that are substantially similar to the 2009 Notes during the six-month period
preceding the date of the Offering Memorandum, including any sales pursuant to
Rule 144A under, or Regulations D or S of, the Act.
(r) The Company has not taken and will not take, directly or
indirectly, any action designed to cause or result in, or which constitutes or
which might reasonably be expected to constitute, the stabilization or
manipulation of the price of the 2009 Notes to facilitate the sale or resale of
the 2009 Notes.
(s) Neither the Company nor any of its subsidiaries has
sustained, since the date of the latest audited financial statements included or
incorporated by reference in the Offering Memorandum, any loss or interference
with its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the Offering
Memorandum that would result in a Material Adverse Effect; and, since such date,
there has not been any change in the capital stock or long-term debt of the
Company or any of its subsidiaries or any material adverse change, or any
development involving a prospective material adverse change, in or affecting the
general affairs, management, consolidated financial position, stockholders'
equity, results of operations, business or prospects of the Company and its
subsidiaries, otherwise than as set forth or contemplated in the Offering
Memorandum.
(t) The financial statements (including the related notes and
supporting schedules) included or incorporated by reference in the Offering
Memorandum present fairly, in all material respects, the financial condition and
results of operations of the entities purported to be shown thereby, at the
dates and for the periods indicated, and have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis
throughout the periods involved. The other financial data or information
included in the Offering Memorandum present fairly the information shown therein
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and have been compiled on a basis consistent with that of the financial
statements incorporated by reference in the Offering Memorandum.
(u) No default or event of default with respect to any
Indebtedness (as such term is defined in the Indenture) exists or will exist as
a result of the execution and delivery of this Agreement or the consummation of
the transactions contemplated hereby and each of the Company and its
subsidiaries has duly performed or observed all material obligations,
agreements, covenants or conditions contained in any contract, indenture,
mortgage, agreement or instrument relating to any Indebtedness, including
without limitation the indenture relating to the Existing Notes.
(v) None of the Company or its subsidiaries, or any agent acting
on their behalf, has taken or will take any action that might cause this
Agreement or the sale of the 2009 Notes to violate Regulation G, T, U or X of
the Board of Governors of the Federal Reserve System, in each case as in effect,
or as the same may hereafter be in effect, on the Closing Date.
(w) The 2009 Notes and the Indenture conform, in all material
respects, to the descriptions thereof in the Offering Memorandum.
(x) Immediately after the consummation of the transactions
contemplated by this Agreement, the fair value and present fair saleable value
of the assets of the Company will exceed the sum of its stated liabilities and
identified contingent liabilities; the Company is not, nor will the Company be,
after giving effect to the execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated hereby, (i) left with
unreasonably small capital with which to carry on its business as it is proposed
to be conducted, (ii) unable to pay its debts (contingent and otherwise) as they
mature or (iii) otherwise insolvent.
(y) To the best knowledge of the Company, KPMG LLP, who have
certified certain financial statements of the Company, whose report is
incorporated by reference in the Offering Memorandum and who has delivered the
initial letter referred to in Section 7(e) hereof, are independent public
accountants as required by the Act and the Rules and Regulations.
(z) The Company and each of its subsidiaries have good and
marketable title to all real property and good and valid title to all material
personal property owned by them, in each case free and clear of all liens,
encumbrances and defects, except such as are described (including by
incorporation by reference) in the Offering Memorandum or such as do not
materially affect the value of such property and do not materially interfere
with the use made and proposed to be made of such property by the Company and
its subsidiaries; and all assets held under lease by the Company and its
subsidiaries are held by them under valid, subsisting and enforceable leases,
with such exceptions as are not material and do not interfere with the use made
and proposed to be made of such property and buildings by the Company and its
subsidiaries.
(aa) The Company and its subsidiaries carry, or are covered by,
insurance in such amounts and covering such risks as are reasonably adequate for
the conduct of their respective businesses and the value of their respective
properties and as are customary for companies of similar size, engaged in
similar businesses in similar industries.
(bb) The Company and each of its subsidiaries own, license or
possess adequate rights to use all material patents, patent applications,
trademarks, service marks, trade names, trademark registrations, service xxxx
registrations, copyrights and licenses necessary for the conduct of their
respective businesses and have no reason to believe that the conduct of their
respective businesses will
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conflict with, and have not received any notice of any claim of conflict with,
any such rights of others, except as disclosed in the Offering Memorandum or
where the failure to so own, license or possess such rights would not,
individually or in the aggregate, have a Material Adverse Effect.
(cc) There are no legal or governmental proceedings pending to
which the Company or any of its subsidiaries is a party or of which any property
or assets of the Company or any of its subsidiaries is the subject which, if
determined adversely to the Company or any of its subsidiaries, might have a
Material Adverse Effect; and to the best of the Company's knowledge, no such
proceedings are threatened or contemplated by governmental authorities or
threatened by others.
(dd) The Company has filed all forms, reports and documents
required to be filed by it with the Commission since November 2, 1999
(collectively, as amended, the "Company's SEC Reports"). The Company's SEC
Reports have complied in all material respects with all applicable requirements
of the Securities Act and the Exchange Act, including without limitation the
applicable requirements of Rule 3-05 and Article 11 of Regulation S-X. As of
their respective dates, none of the Company's SEC Reports, including any
financial statements or schedules included or incorporated by reference herein,
contained any untrue statements of a material fact or omitted to state a
material fact required to be stated or incorporated by reference therein or
necessary in order to make the statement therein, in light of the circumstances
under which they were made, not misleading.
(ee) There are no contracts, arrangements or other documents
which are required to be described in or filed as exhibits to the Company's SEC
Reports which have not been described or filed.
(ff) No relationship, direct or indirect, exists between or
among the Company on the one hand, and any of its former or present directors,
officers, stockholders, customers or suppliers on the other hand, which is
required to be described in the Company's SEC Reports which is not so described.
(gg) No labor disturbance by the employees of the Company exists
or, to the knowledge of the Company, is imminent, which might be expected to
have a Material Adverse Effect.
(hh) The Company is in compliance in all material respects with
all presently applicable provisions of the Employee Retirement Income Security
Act of 1974, as amended, including the regulations and published interpretations
thereunder ("ERISA"); no "reportable event" (as defined in Section 4043 of
ERISA) has occurred with respect to any "defined benefit plan" (as defined in
Section 3(35) of ERISA) for which the Company would have any liability; the
Company has not incurred and does not expect to incur liability under (i) Title
IV of ERISA with respect to termination of, or withdrawal from, any "defined
benefit plan" or (ii) Sections 412 or 4971 of the Internal Revenue Code of 1986,
as amended, including the regulations and published interpretations thereunder
(the "Code"); and each "defined benefit plan" for which the Company has any
liability or to which it makes contributions that is intended to be qualified
under Section 401(a) of the Code is so qualified in all material respects and
nothing has occurred, whether by action or by failure to act, which would cause
the loss of such qualification.
(ii) The Company has filed all material federal, state and local
income and franchise tax returns required to be filed through the date hereof
and has paid all taxes shown as due thereon, except where failure to so file or
pay would not have a Material Adverse Effect, and no tax deficiency has been
determined adversely to the Company or any of its subsidiaries which has had
(nor does the Company have any knowledge of any tax deficiency which, if
determined adversely to the Company or any of its subsidiaries, might have) a
Material Adverse Effect. There are no tax audits presently being conducted
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which, if determined adversely to the Company or any of its subsidiaries, could
have a Material Adverse Effect.
(jj) Since March 25, 2001 through the date hereof, and except as
may otherwise be disclosed (including by incorporation by reference) in the
Offering Memorandum, none of the Company nor any of its subsidiaries has (i)
issued or granted any securities, (ii) incurred any material liability or
obligation, direct or contingent, other than liabilities and obligations which
were incurred in the ordinary course of business, (iii) entered into any
transaction not in the ordinary course of business, or (iv) declared or paid any
dividend on its capital stock.
(kk) The Company (i) makes and keeps accurate books and records,
and (ii) maintain internal accounting controls which provide reasonable
assurance that (A) transactions are executed in accordance with management's
general or specific authorization, (B) transactions are recorded as necessary to
permit preparation of its financial statements and to maintain accountability
for its assets, (C) access to its assets is permitted only in accordance with
management's general or specific authorization and (D) the reported
accountability for its assets is compared with existing assets at reasonable
intervals.
(ll) Neither the Company nor any of its subsidiaries (i) is in
violation of its charter, certificate of designation, by-laws or similar
governing document, (ii) is in default in any material respect, and no event has
occurred which, with notice or lapse of time or both, would constitute such a
default, in the due performance or observance of any term, covenant or condition
contained in any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which it is a party or by which it is bound or to
which any of its properties or assets is subject or (iii) is in violation in any
material respect of any law, ordinance, governmental rule, regulation or court
decree to which it or its property or assets may be subject.
(mm) Each of the radio stations owned, operated, programmed, or
to which sales and marketing services are provided, by the Company and its
subsidiaries is validly licensed by the Federal Communications Commission (the
"FCC") and no administrative or judicial proceedings are pending before or, to
the knowledge of the Company or its subsidiaries, threatened by the FCC with
respect to such licenses; the Company and its subsidiaries possess adequate
certificates, authorizations, consents, contract rights, orders, approvals,
licenses or permits which are in full force and effect issued by all appropriate
governmental agencies or bodies necessary to the ownership of their respective
properties and the conduct of the businesses now operated by them and have not
received any notice of proceedings relating to the revocation or modification of
any such certificate, authority, consent, order, approval, license or permit and
the Company and its subsidiaries are in compliance in all material respects with
the Communications Act of 1934, as amended, and the rules, regulations and
policies of the FCC.
(nn) Neither the Company nor any of its subsidiaries, nor any
director, officer, agent, employee or other person associated with or acting on
behalf of the Company or any of its subsidiaries, has used any corporate funds
for any unlawful contribution, gift, entertainment or other unlawful expense
relating to political activity; made any direct or indirect unlawful payment to
any foreign or domestic government official or employee from corporate funds;
violated or is in violation of any provision of the Foreign Corrupt Practices
Act of 1977; or made any bribe, rebate, payoff, influence payment, kickback or
other unlawful payment.
(oo) There has been no storage, disposal, generation,
manufacture, refinement, transportation, handling or treatment of toxic wastes,
medical wastes, hazardous wastes or hazardous substances by the Company or any
of its subsidiaries (or, to the knowledge of the Company, any of their
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predecessors in interest) at, upon or from any of the property now or previously
owned or leased by the Company or its subsidiaries in violation of any
applicable law, ordinance, rule, regulation, order, judgment, decree or permit
or which would require remedial action under any applicable law, ordinance,
rule, regulation, order, judgment, decree or permit, except for any violation or
remedial action which would not have, or could not be reasonably likely to have,
singularly or in the aggregate with all such violations and remedial actions, a
Material Adverse Effect; there has been no material spill, discharge, leak,
emission, injection, escape, dumping or release of any kind onto such property
or into the environment surrounding such property of any toxic wastes, medical
wastes, solid wastes, hazardous wastes or hazardous substances due to or caused
by the Company or any of its subsidiaries or with respect to which the Company
or any of its subsidiaries have knowledge, except for any such spill, discharge,
leak, emission, injection, escape, dumping or release which would not have or
would not be reasonably likely to have, singularly or in the aggregate with all
such spills, discharges, leaks, emissions, injections, escapes, dumpings and
releases, a Material Adverse Effect; and the terms "hazardous wastes", "toxic
wastes", "hazardous substances" and "medical wastes" shall have the meanings
specified in any applicable local, state, federal and foreign laws or
regulations with respect to environmental protection.
(pp) Neither the Company nor any subsidiary is, or, as of the
Closing Date after giving effect to the application of the net proceeds as
described in the Offering Memorandum, will be, an "investment company" as
defined in the Investment Company Act of 1940, as amended.
(qq) The Company has complied with, and is and will be in
compliance with, the provisions of that certain Florida act relating to
disclosure of doing business with Cuba, codified as Section 517.075 of the
Florida statutes, and the rules and regulations thereunder or is exempt
therefrom.
3. Purchase of the 2009 Notes by the Initial Purchaser; Agreements to
Sell, Purchase and Resell.
(a) The Company and the Subsidiary Guarantors hereby agree, on
the basis of the representations, warranties and agreements of the Initial
Purchaser contained herein and subject to all the terms and conditions set forth
herein, to issue and sell to the Initial Purchaser and, upon the basis of the
representations, warranties and agreements of the Company and the Subsidiary
Guarantors herein contained and subject to all the terms and conditions set
forth herein, the Initial Purchaser agrees to purchase from the Company, at a
purchase price of ___% of the principal amount thereof, the principal amount of
2009 Notes set forth opposite the name of such Initial Purchaser in Schedule I
hereto. The Company and the Subsidiary Guarantors shall not be obligated to
deliver any of the securities to be delivered hereunder except upon payment for
all of the securities to be purchased as provided herein.
(b) The Initial Purchaser hereby represents and warrants to the
Company that it will offer the 2009 Notes for sale upon the terms and conditions
set forth in this Agreement and in the Offering Memorandum. The Initial
Purchaser hereby represents and warrants to, and agrees with, the Company that
such Initial Purchaser (i) is a QIB with such knowledge and experience in
financial and business matters as are necessary in order to evaluate the merits
and risks of an investment in the 2009 Notes; (ii) is purchasing the 2009 Notes
pursuant to a private sale exempt from registration under the Act; (iii) in
connection with the Exempt Resales, will solicit offers to buy the 2009 Notes
only from, and will offer to sell the 2009 Notes only to, the Eligible
Purchasers in accordance with this Agreement and on the terms contemplated by
the Offering Memorandum; and (iv) will not offer or sell the 2009 Notes, nor has
it offered or sold the 2009 Notes by, or otherwise engaged in, any form of
general solicitation or general advertising (within the meaning of Regulation D;
including, but not limited to, advertisements, articles, notices or other
communications published in any newspaper, magazine, or similar medium or
broadcast over television or radio, or any seminar or meeting whose attendees
have been invited by any
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general solicitation or general advertising) in connection with the offering of
the 2009 Notes. The Initial Purchaser has advised the Company that they will
offer the 2009 Notes to Eligible Purchasers at a price initially equal to 100%
of the principal amount thereof, plus accrued interest, if any, from the date of
issuance of the 2009 Notes. Such price may be changed by the Initial Purchaser
at any time thereafter without notice. Eligible Purchasers purchasing the 2009
Notes from the Initial Purchaser shall be entitled to receive a delayed draw
special payment from the Company equal to ____% of the principal amount of the
2009 Notes purchased, subject to delivery by the Eligible Purchaser to the
Company of a written acknowledgment regarding certain taxation issues.
(c) The Initial Purchaser understands that the Company and, for
purposes of the opinions to be delivered to the Initial Purchaser pursuant to
Sections 7(c) and 7(d) hereof, counsel to the Company and counsel to the Initial
Purchaser, will rely upon the accuracy and truth of the foregoing
representations, warranties and agreements and the Initial Purchaser hereby
consents to such reliance.
4. Delivery of the 2009 Notes and Payment Therefor. Delivery to the
Initial Purchaser of and payment for the 2009 Notes shall be made at the office
of Xxxxxxxx Chance Xxxxxx & Xxxxx LLP, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, at
10:00 A.M., New York City time, on June [1], 2001 (the "Closing Date"). The
place of closing for the 2009 Notes and the Closing Date may be varied by
agreement between the Initial Purchaser and the Company.
The 2009 Notes will be delivered to the Initial Purchaser against
payment of the purchase price therefor by certified or official bank check or
checks payable in or wire transfer in immediately available funds; provided,
that the amount of such payment shall be reduced by one day's interest on the
amount of gross proceeds at the Initial Purchaser's cost of borrowing such funds
plus any other expenses associated with such payment of immediately available
funds. Time shall be of the essence, and delivery at the time and place
specified pursuant to this Agreement is a further condition to the obligation of
the Initial Purchaser hereunder. The 2009 Notes will be evidenced by a single
global security in definitive form (the "Global Note") and/or by additional
definitive securities, and will be registered, in the case of the Global Note,
in the name of Cede & Co. as nominee of The Depository Trust Company ("DTC"),
and in the other cases, in such names and in such denominations as the Initial
Purchaser shall request prior to 9:30 A. M., New York City time, on the second
business day preceding the Closing Date. The 2009 Notes to be delivered to the
Initial Purchaser shall be made available to the Initial Purchaser in New York
City for inspection and packaging not later than 9:30 A.M., New York City time,
on the business day preceding the Closing Date.
5. Agreements of the Company. The Company agrees with each Initial
Purchaser as follows:
(a) The Company will furnish to the Initial Purchaser, without
charge, such number of copies of the Offering Memorandum as may then be amended
or supplemented as the Initial Purchaser may reasonably request.
(b) The Company will not make any amendment or supplement to the
Offering Memorandum of which the Initial Purchaser shall not previously have
been advised or to which the Initial Purchaser shall reasonably object after
being so advised.
(c) The Company and each of the Subsidiary Guarantors consent to
the use of the Offering Memorandum in accordance with the securities or Blue Sky
laws of the jurisdictions in which the 2009 Notes are offered by the Initial
Purchaser and by all dealers to whom 2009 Notes may be sold, in connection with
the offering and sale of the 2009 Notes.
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(d) If, at any time prior to completion of the distribution of
the 2009 Notes by the Initial Purchaser to Eligible Purchasers, any event shall
occur that in the judgment of the Company, any of the Subsidiary Guarantors or
in the opinion of counsel for the Initial Purchaser should be set forth in the
Offering Memorandum in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is necessary
to supplement or amend the Offering Memorandum in order to comply with any law,
the Company will forthwith prepare an appropriate supplement or amendment
thereto or such document, and will expeditiously furnish to the Initial
Purchaser and dealers a reasonable number of copies thereof.
(e) The Company and each of the Subsidiary Guarantors will
cooperate with the Initial Purchaser and with their counsel in connection with
the qualification of the 2009 Notes for offering and sale by the Initial
Purchaser and by dealers under the securities or Blue Sky laws of such
jurisdictions as the Initial Purchaser may designate and will file such consents
to service of process or other documents necessary or appropriate in order to
effect such qualification; provided, that in no event shall the Company or any
of the Subsidiary Guarantors be obligated to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action which would
subject it to service of process in suits, other than those arising out of the
offering or sale of the 2009 Notes, in any jurisdiction where it is not now so
subject.
(f) For a period of 180 days from the date of the Offering
Memorandum, not to, directly or indirectly, sell, contract to sell, grant any
option to purchase, issue any instrument convertible into or exchangeable for,
or otherwise transfer or dispose of, any debt securities of the Company or any
of its subsidiaries, except (i) for the Exchange Notes in connection with the
Exchange Offer or (ii) with the prior consent of Xxxxxx Brothers.
(g) So long as any of the 2009 Notes and Exchange Notes are
outstanding, the Company will furnish to the Initial Purchaser (i) as soon as
available, a copy of each report of the Company furnished to stockholders
generally or to holders of the 2009 Notes or Exchange Notes, as the case may be,
or filed with or furnished to any stock exchange, regulatory body or the
Commission and (ii) from time to time such other information concerning the
Company or the Subsidiary Guarantors as the Initial Purchaser may reasonably
request.
(h) The Company will apply the net proceeds from the sale of the
2009 Notes to be sold by it hereunder in accordance with the description set
forth in the Offering Memorandum under the caption "Use of Proceeds."
(i) Except as stated in this Agreement and in the Offering
Memorandum, the Company has not taken, nor will it take, directly or indirectly,
any action designed to or that might reasonably be expected to cause or result
in stabilization or manipulation of the price of the 2009 Notes to facilitate
the sale or resale of the 2009 Notes. Except as permitted by the Act, the
Company will not distribute any offering material in connection with the Exempt
Resales.
(j) The Company and the Subsidiary Guarantors will use their
best efforts to permit the 2009 Notes to be designated Private Offerings,
Resales and Trading through Automated Linkages ("PORTAL") market securities in
accordance with the rules and regulations adopted by the National Association of
Securities Dealers, Inc. relating to trading in the PORTAL Market and to permit
the 2009 Notes to be eligible for clearance and settlement through DTC.
(k) From and after the Closing Date, so long as any of the 2009
Notes are outstanding and are "restricted securities" within the meaning of the
Rule 144(a)(3) under the Act or, if earlier, until
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three years after the Closing Date, and during any period in which the Company
is not subject to Section 13 or 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), the Company and the Subsidiary Guarantors will
furnish to holders of the 2009 Notes and prospective purchasers of 2009 Notes
designated by such holders, upon request of such holders or such prospective
purchasers, the information required to be delivered pursuant to Rule 144A(d)(4)
under the Act to permit compliance with Rule 144A in connection with resale of
the 2009 Notes.
(l) The Company and the Subsidiary Guarantors have complied and
will comply with all provisions of Florida Statutes Section 517.075 relating to
issuers doing business with Cuba.
(m) The Company and the Subsidiary Guarantors agree not to sell,
offer for sale or solicit offers to buy or otherwise negotiate in respect of any
security (as defined in the Act) that would be integrated with the sale of the
2009 Notes in a manner that would require the registration under the Act of the
sale to the Initial Purchaser or the Eligible Purchasers of the 2009 Notes.
(n) The Company and the Subsidiary Guarantors agree to comply
with all the terms and conditions of the Registration Rights Agreement and all
agreements set forth in the representation letters of the Company to DTC
relating to the approval of the 2009 Notes by DTC for "book entry" transfer.
(o) The Company and the Subsidiary Guarantors agree to cause the
Exchange Offer, if available, to be made in the appropriate form, as
contemplated by the Registration Rights Agreement, to permit registration of the
Exchange Notes to be offered in exchange for the 2009 Notes, and to comply with
all applicable federal and state securities laws in connection with the
Registered Exchange Offer.
(p) The Company and the Subsidiary Guarantors agree that prior
to any registration of the 2009 Notes pursuant to the Registration Rights
Agreement, or at such earlier time as may be required, the Indenture shall be
qualified under the Trust Indenture Act and any necessary supplemental
indentures will be entered into in connection therewith.
(q) The Company and the Subsidiary Guarantors will not
voluntarily claim, and will resist actively all attempts to claim, the benefit
of any usury laws against holders of the 2009 Notes.
(r) The Company will take such steps as shall be necessary to
ensure that neither the Company nor any subsidiary shall become an "Investment
Company" within the meaning of the Investment Company Act of 1940, as amended.
(s) The Company and the Subsidiary Guarantors will do and
perform all things required or necessary to be done and performed under this
Agreement by them prior to the Closing Date, and to satisfy all conditions
precedent to the Initial Purchaser's obligations hereunder to purchase the 2009
Notes.
6. Expenses. The Company agrees: whether or not the transactions
contemplated by this Agreement are consummated or this Agreement becomes
effective or is terminated, to pay all costs, expenses, fees and taxes incident
to and in connection with: (i) the preparation, printing, filing and
distribution of the Offering Memorandum (including, without limitation,
financial statements and exhibits) and all amendments and supplements thereto,
(ii) the preparation, printing (including, without limitation, word processing
and duplication costs) and delivery of this Agreement, the Indenture, the
Registration Rights Agreement, all Blue Sky Memoranda and all other agreements,
memoranda, correspondence and other documents printed and delivered in
connection wherewith and with the Exempt Resales (including fees of such counsel
plus reasonable disbursements incurred in connection with the
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preparation, printing and delivery of such Blue Sky Memoranda), (iii) the
issuance, sale and delivery by the Company of the 2009 Notes, (iv) the
qualification of the 2009 Notes for offer and sale under the securities or Blue
Sky laws of the several states (including, without limitation, the reasonable
fees and disbursements of your counsel relating to such registration or
qualification), (v) furnishing such copies of the Offering Memorandum, and all
amendments and supplements thereto, as may be reasonably requested for use in
connection with the Exempt Resales, (vi) the preparation of certificates for the
2009 Notes (including, without limitation, printing and engraving thereof),
(vii) the fees, disbursements and expenses and listing fees in connection with
the application for quotation of the 2009 Notes in the National Association of
Securities Dealers, Inc. Automated Quotation System - PORTAL ("PORTAL"), (ix)
all fees and expenses (including fees and expenses of counsel) of the Company
and the Subsidiary Guarantors in connection with approval of the 2009 Notes by
DTC for "book-entry" transfer, (x) the costs and expenses of the Company
relating to investor presentations on any "road show" undertaken in connection
with the marketing of the offering of the 2009 Notes, including, without
limitation, expenses associated with the production of road show slides and
graphics, fees and expenses of any consultants engaged in connection with the
road show presentations with the prior approval of the Company, travel and
lodging expenses of the representatives and officers of the Company and any such
consultants, and the cost of any aircraft chartered in connection with the road
show and (x) the performance by the Company and the Subsidiary Guarantors of
their other obligations under this Agreement; provided that, except as provided
in this Section 6 and in Section 11, the Initial Purchaser shall pay its own
costs and expenses, including the costs and expenses of its counsel and any
transfer taxes on the 2009 Notes which it may sell.
7. Conditions of Initial Purchaser's Obligations. The respective
obligations of the Initial Purchaser hereunder are subject to the accuracy, when
made and on the Closing Date, of the representations and warranties of the
Company contained herein, to the performance by the Company and the Subsidiary
Guarantors of their respective obligations hereunder, and to each of the
following additional terms and conditions:
(a) The Initial Purchaser shall not have discovered and
disclosed to the Company on or prior to the Closing Date that the Offering
Memorandum or any amendment or supplement thereto contains an untrue statement
of a fact which, in the opinion of Xxxxxxxx Chance Xxxxxx & Xxxxx LLP, counsel
for the Initial Purchaser, is material or omits to state a fact which, in the
opinion of such counsel, is material and is required to be stated therein or is
necessary to make the statements therein not misleading.
(b) All corporate proceedings and other legal matters incident
to the authorization, form and validity of this Agreement, the 2009 Notes, the
Registration Rights Agreement and the Offering Memorandum, and all other legal
matters relating to this Agreement and the transactions contemplated hereby
shall be reasonably satisfactory in all material respects to counsel for the
Initial Purchaser, and the Company and the Subsidiary Guarantors shall have
furnished to such counsel all documents and information that they may reasonably
request to enable them to pass upon such matters.
(c) Xxxx Xxxxxxx LLP shall have furnished to the Initial
Purchaser its written opinion, as counsel to the Company, addressed to the
Initial Purchaser and dated the Closing Date, in form and substance reasonably
satisfactory to the Initial Purchaser, to the effect that:
(i) The Company and each of its Subsidiaries have been
duly incorporated and is validly existing in good standing under the laws of
their respective jurisdictions of incorporation, each is duly qualified to do
business and are in good standing as a foreign corporation in each jurisdiction
in which their respective ownership or lease of property or the conduct of their
respective
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businesses requires such qualification and each has the power and authority
necessary to own or hold their respective properties and conduct the businesses
in which they are engaged;
(ii) The Company has an authorized capitalization as set
forth in or incorporated by reference in the Offering Memorandum, and all of the
issued shares of capital stock of the Company have been duly and validly
authorized and issued, are fully paid and nonassessable and conform to the
description thereof contained or incorporated by reference in the Offering
Memorandum; and all of the issued shares of capital stock of each subsidiary of
the Company have been duly and validly authorized and issued and are fully paid,
non-assessable and (except for directors' qualifying shares) are owned directly
or indirectly by the Company, free and clear of all liens, encumbrances,
equities or claims and none of such shares of capital stock was issued in
violation of preemptive or other similar rights arising by operation of the
Delaware General Corporation Law, under the charter and by-laws of the Company
or under any agreement known to such counsel to which the Company or any
subsidiary is a party, as set forth in an attachment to such opinion;
(iii) The 2009 Notes have been duly authorized, executed
and issued by the Company and the Subsidiary Guarantees have been duly
authorized, executed and issued by the Subsidiary Guarantors and, assuming due
authentication thereof by the Trustee and upon payment and delivery in
accordance with the terms of this Agreement, will be entitled to the benefits of
the Indenture and will be validly issued and free and clear of all liens and
restrictions on transfer (other than restrictions on transfer imposed by
applicable state and Federal securities laws) will constitute valid and legally
binding obligations of the Company and the Subsidiary Guarantors enforceable
against the Company and the Subsidiary Guarantors in accordance with their
terms, except as enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance or other similar
laws affecting enforcement of creditors' rights generally and except as
enforcement thereof is subject to general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity or at law) and
except that certain of the remedies therein contained may not be enforceable or
be subject to available defenses and procedural requirements which are not
necessarily reflected therein;
(iv) When the 2009 Notes are issued and delivered
pursuant to the Agreement, such 2009 Notes will not be of the same class (within
the meaning of Rule 144A under the Act) as securities of the Company or any
Subsidiary Guarantor that are listed on a national securities exchange
registered under Section 6 of the Exchange Act or that are quoted in a United
States automated inter-dealer quotation system;
(v) No registration under the Act of the 2009 Notes is
required for the sale of the 2009 Notes to you as contemplated hereby or for the
Exempt Resales (assuming (i) that the Eligible Purchasers who buy the 2009 Notes
in the Exempt Resales are QIBs, Accredited Institutions or persons who acquire
the 2009 Notes in an "offshore transaction" and is not a "U.S. Person" (within
the meaning of Regulation S under the Act), (ii) the accuracy of your
representations and those of the Company regarding the absence of general
solicitation in connection with the Exempt Resales contained herein and (iii)
the accuracy of the representations made by each Accredited Institution who
purchases 2009 Notes pursuant to an Exempt Resale as set forth in the letters of
representation executed by such Accredited Institutions in the form of Annex A
to the Offering Memorandum);
(vi) The 2009 Notes and the Subsidiary Guarantees
conform in all material respects to the descriptions thereof contained in the
Offering Memorandum and the Indenture. The Indenture conforms in all material
respects, and the Registration Rights Agreement conforms in all material
respects to the description thereof contained in the Offering Memorandum;
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(vii) To the best of such counsel's knowledge and other
than as set forth in the Offering Memorandum (including by incorporation by
reference), there are no legal or governmental proceedings pending to which the
Company or any of its subsidiaries is a party or of which any property or assets
of the Company or any of its subsidiaries is the subject which, if determined
adversely to the Company or any of its subsidiaries, might have a Material
Adverse Effect on the consolidated financial position, stockholders' equity,
results of operations, business or prospects of the Company and its subsidiaries
taken as a whole; and, to the best of such counsel's knowledge, no such
proceedings are threatened or contemplated by governmental authorities or
threatened by others;
(viii) To the best of such counsel's knowledge, no order
or decree preventing the use of the Offering Memorandum, or any order asserting
that the transactions contemplated by this Agreement are subject to the
registration requirements of the Act, has been issued and no proceeding for that
purpose has commenced, is pending or is threatened by the Commission;
(ix) The statements contained in the Offering Memorandum
under the captions "Risk Factors--Government Regulation," "Risk
Factors--Antitrust Matters," "Description of Notes," "Certain Federal Income Tax
Consequences," and the statements contained in the Company's Annual Report on
Form 10-K for the fiscal year ended September 24, 2000 under the captions
"Business--Antitrust," "Business--Federal Regulation of Radio Broadcasting,"
Business--FCC Licenses," "Business--Recent Developments," "Executive
Compensation--Employment Agreement and Arrangements," "Executive
Compensation--Stock Plans," "Executive Compensation--Non-Employee Director Stock
Option Plan," "Executive Compensation--40l(K) Plan," and "Executive
Compensation--Limitation on Directors' and Officers' Liability," insofar as they
describe contracts, agreements or other legal documents or they describe federal
statutes, rules and regulations, constitute a fair summary thereof;
(x) The Company's SEC Reports that are incorporated by
reference into the Offering Memorandum (after giving effect to any amendments
thereof) at the time they were filed with the Commission complied as to form in
all material respects with the requirements of the Exchange Act; [provided that
such counsel need not express an opinion as to financial statements or schedules
included there in];
(xi) To the best of such counsel's knowledge, there are
no contracts, arrangements or other documents which are required to be described
in or filed as exhibits to the Company's SEC Reports which have not been so
described or filed;
(xii) This Agreement has been duly authorized, executed
and delivered by the Company and the Subsidiaries identified on the signature
pages hereto, and each of the other documents relating to this Agreement to
which the Company or any of its subsidiaries is a party has been duly
authorized, executed and delivered by the Company and each such subsidiary as
the case may be;
(xiii) The Company has the requisite corporate power and
authority to enter into the Registration Rights Agreement. The Registration
Rights Agreement has been duly authorized by the Company and, when executed and
delivered by the Company in accordance with the terms hereof and will be validly
executed and delivered and (assuming the due execution and delivery thereof by
you) will be the legally valid and binding obligation of the Company in
accordance with the terms hereof, enforceable against the Company in accordance
with its terms, except as enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance or other similar
laws affecting enforcement of creditors' rights generally and except as
enforcement thereof is subject to general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity or
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at law) and except that certain of the remedies therein contained may not be
enforceable or be subject to available defenses and procedural requirements
which are not necessarily reflected therein;
(xiv) The Indenture has been duly authorized, executed
and delivered by the Company and the Subsidiary Guarantors and assuming due
authorization, execution and delivery thereof by the Trustee, constitutes a
valid and legally binding obligation of the Company and each Subsidiary
Guarantor enforceable against the Company and each Subsidiary Guarantor in
accordance with its terms except as (i) enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights generally and
(ii) rights of acceleration and the availability of equitable remedies may be
limited by equitable principles of general applicability. No qualification of
the Indenture under the Trust Indenture Act is required in connection with the
offer and sale of the 2009 Notes or in connection with the Exempt Resales
(assuming (i) that the Eligible Purchasers who buy the 2009 Notes in the Exempt
Resales are QIBs, Accredited Institutions or persons who acquire the 2009 Notes
in an "offshore transaction" and is not a "U.S. Person" (within the meaning of
Regulation S under the Act), (ii) the accuracy of your representations and those
of the Company regarding the absence of general solicitation in connection with
the Exempt Resales contained herein and (iii) the accuracy of the
representations made by each Accredited Institution who purchases 2009 Notes
pursuant to an Exempt Resale as set forth in the letters of representation
executed by such Accredited Institutions in the form of Annex A to the Offering
Memorandum);
(xv) The issue and sale of the 2009 Notes and the
Subsidiary Guarantees being delivered on the Closing Date by the Company and the
Subsidiary Guarantors pursuant to this Agreement and the execution, delivery and
compliance by the Company and the Subsidiary Guarantors with all of the
provisions of this Agreement, the Indenture, the Registration Rights Agreement,
the 2009 Notes and the Subsidiary Guarantees, the Exchange Notes and the
Exchange Guarantees and each of the other documents to be entered into in
connection with the consummation of the transactions contemplated hereby,
thereby and in the Offering Memorandum (including the issuance and sale of the
2009 Notes and the Subsidiary Guarantees and the use of proceeds from the sale
of the 2009 Notes as described under the caption "Use of Proceeds") and the
Exchange Offer Registration Statement will not conflict with or result in a
breach or violation of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan agreement or other
agreement, license (including FCC Licenses (as hereinafter defined)) or
instrument known to such counsel to which the Company or any of its subsidiaries
is a party or by which the Company or any of its subsidiaries is bound or to
which any of the property or assets of the Company or any of its subsidiaries is
subject, nor will such actions result in any violation of the provisions of the
charter, certificate of designation, by-laws or similar governing document of
the Company or any of its subsidiaries or any New York or federal statute, rule
or regulation (including the Federal Communications Laws (as hereinafter
defined)) or any order, judgment or decree known to such counsel; and, except
for the registration of the Exchange Notes and the Exchange Guarantees under the
Act and such consents, approvals, authorizations, registrations or
qualifications as may be required under the Exchange Act and applicable state
securities laws in connection with the purchase and distribution of the 2009
Notes by the Initial Purchaser, no consent, approval, authorization or order of,
or filing or registration with, any such court or governmental agency or body
(including pursuant to the Communications Act of 1934, as amended and the rules,
regulations and administrative orders promulgated thereunder (collectively, the
"Federal Communications Laws")) is required for the execution, delivery and
performance of this Agreement, the Indenture, the Registration Rights Agreement,
the 2009 Notes, the Subsidiary Guarantees, the Exchange Notes and the Exchange
Guarantees or any of the other documents to be entered into in connection with
this Agreement by the Company and the Subsidiary Guarantors and the consummation
of the transactions contemplated hereby or thereby, including the issuance, sale
and delivery of the 2009 Notes to be issued, sold and delivered by the Company
hereunder;
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(xvi) Except as described (including by incorporation
by reference) in the Offering Memorandum, to the best of such counsel's
knowledge, there are no contracts, agreements or understandings between the
Company and any person granting such person the right (other than rights which
have been waived or satisfied) to require the Company to file a registration
statement under the Act with respect to any securities of the Company owned or
to be owned by such person or to require the Company to include such securities
in the securities registered pursuant to the Exchange Offer Registration
Statement or in any securities being registered pursuant to any statement filed
by the Company under the Act;
(xvii) The Company and its subsidiaries are the holders
of the FCC licenses listed in an attachment to such opinion (the "FCC
Licenses"), all of which are in full force and effect, for the term specified
therein, the FCC Licenses have no material conditions, restrictions or
qualifications other than as described in the Offering Memorandum, and to such
counsel's knowledge, such FCC Licenses constitute all of the licenses for the
Company and the subsidiaries to operate their radio stations as described in the
Offering Memorandum;
(xviii) There are no published or, to such counsel's
knowledge, unpublished FCC orders, decrees or rulings outstanding against the
Company or any of its subsidiaries or any pending or threatened actions, suits
or proceedings against the Company or any of its subsidiaries by or before the
FCC that seek to revoke, or if determined adversely to the Company or any of its
subsidiaries, would have a material adverse effect on the Company and its
subsidiaries taken as a whole or would result in a revocation or nonrenewal of,
any of the FCC Licenses, other than as disclosed in the Offering Memorandum,
including by incorporation by reference;
(xix) Neither the Company nor any subsidiary is an
"investment company" as defined in the Investment Company Act of 1940, as
amended.
In rendering such opinion, such counsel may state its opinion is
limited to matters governed by the Federal laws of the United States of America,
the laws of the State of New York and the General Corporation Law of the State
of Delaware. Such opinion shall also be to the effect (but in form and substance
satisfactory to the Initial Purchaser) that (x) such counsel has acted as
counsel to the Company on a regular basis and has acted as counsel to the
Company in connection with previous financing transactions and has acted as
counsel to the Company in connection with the preparation of the Offering
Memorandum, and (y) based on the foregoing, no facts have come to the attention
of such counsel which lead it to believe that, as of its date and as of the date
of such opinion, the Offering Memorandum (including the documents incorporated
by reference therein, but excluding the financial statements and financial
schedules and other financial data included or incorporated by reference
therein) contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary in order to make the
statements therein not misleading, or that the Offering Memorandum (including
the documents incorporated by reference therein, but excluding the financial
statements and financial schedules and other financial data included or
incorporated by reference therein) contains any untrue statement of a material
fact or omits to state a material fact required to be stated therein or
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading. The foregoing opinion and statement
may be qualified by a statement to the effect that such counsel does not assume
any responsibility for the accuracy, completeness or fairness of the statements
contained in the Offering Memorandum except as set forth in clause (x) above,
insofar as such statements relate to legal matters.
(d) The Initial Purchaser shall have received from Xxxxxxxx Chance
Xxxxxx & Xxxxx LLP, counsel for the Initial Purchaser, such opinion or opinions,
dated the Closing Date, with respect to the
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issuance and sale of the 2009 Notes, the Offering Memorandum and other related
matters as the Initial Purchaser may reasonably require, and the Company shall
have furnished to such counsel such documents as they reasonably request for the
purpose of enabling them to pass upon such matters.
(e) At the time of execution of this Agreement, the Initial
Purchaser shall have received from KPMG LLP a letter, in form and substance
satisfactory to the Initial Purchaser, addressed to the Initial Purchaser and
dated the date hereof (i) confirming that they are independent public
accountants within the meaning of the Act and are in compliance with the
applicable requirements relating to the qualification of accountants under Rule
2-01 of Regulation S-X of the Commission, (ii) stating, as of the date hereof
(or, with respect to matters involving changes or developments since the
respective dates as of which specified financial information is given or
incorporated by reference in the Offering Memorandum, as of a date not more than
five days prior to the date hereof), the conclusions and findings of such firm
with respect to the financial information and other matters ordinarily covered
by accountants' "comfort letters" to underwriters in connection with registered
public offerings.
(f) With respect to the letter of KPMG LLC referred to in the
preceding paragraph and delivered to the Initial Purchaser concurrently with the
execution of this Agreement (the "initial letter"), the Company shall have
furnished to the Initial Purchaser a letter (the "bring-down letter") of such
accountants, addressed to the Initial Purchaser and dated such Closing Date (i)
confirming that they are independent public accountants within the meaning of
the Act and are in compliance with the applicable requirements relating to the
qualification of accountants under Rule 2-01 of Regulation S-X of the
Commission, (ii) stating, as of the date of the bring-down letter (or, with
respect to matters involving changes or developments since the respective dates
as of which specified financial information is given or incorporated by
reference in the Offering Memorandum, as of a date not more than five days prior
to the date of the bring-down letter), the conclusions and findings of such firm
with respect to the financial information and other matters covered by the
initial letter and (iii) confirming in all material respects the conclusions and
findings set forth in the initial letter.
(g) The Company shall have furnished to the Initial Purchaser a
certificate, dated the Closing Date, of its Chairman of the Board, its President
or a Vice President and its chief financial officer stating that:
(i) The representations, warranties and agreements of
the Company in Section 2 are true and correct as of the Closing Date; the
Company has complied with all its agreements contained herein; and the
conditions set forth in Section 7(h) and (i) have been fulfilled;
(ii) No default or event of default with respect to
any Indebtedness (as such term is defined in the Indenture) exists or will exist
as a result of the execution and delivery of this Agreement or the consummation
of the transactions contemplated hereby and each of the Company and its
subsidiaries has duly performed or observed all material obligations,
agreements, covenants or conditions contained in any contract, indenture,
mortgage, agreement or instrument relating to any Indebtedness, including
without limitation the indenture relating to the Existing Notes; and
(iii) They have carefully examined the Offering
Memorandum (including the documents incorporated by reference therein) and, in
their opinion (A) as of its date, the Offering Memorandum (including the
documents incorporated by reference therein) did not include any untrue
statement of a material fact and did not omit to state a material fact required
to be stated therein or necessary to make the statements therein not misleading,
and (B) since its date no event has occurred which should have been set forth in
a supplement or amendment to the Offering Memorandum.
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(h) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements included or
incorporated by reference in the Offering Memorandum (i) any loss or
interference with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or
contemplated in the Offering Memorandum or (ii) since such date there shall not
have been any change in the capital stock or long-term debt of the Company or
any of its subsidiaries or any change, or any development involving a
prospective change, in or affecting the general affairs, management, financial
position, stockholders' equity or results of operations of the Company and its
subsidiaries, otherwise than as set forth or contemplated in the Offering
Memorandum, the effect of which, in any such case described in clause (i) or
(ii), is, in the judgment of the Initial Purchaser, so material and adverse as
to make it impracticable or inadvisable to proceed with the offering or the
delivery of the 2009 Notes being delivered on the Closing Date on the terms and
in the manner contemplated in the Offering Memorandum.
(i) Subsequent to the execution and delivery of this Agreement
(i) no downgrading shall have occurred in the rating accorded the Company's debt
securities by any "nationally recognized statistical rating organization", as
that term is defined by the Commission for purposes of Rule 436(g)(2) of the
Rules and Regulations and (ii) no such organization shall have publicly
announced that it has under surveillance or review, with possible negative
implications, its rating of any of the Company's debt securities.
(j) The Company shall have received from each Eligible Purchaser
of the 2009 Notes from the Initial Purchasers, an agreement to treat the receipt
of the delayed draw special payment as ordinary income for tax purposes.
(k) Subsequent to the execution and delivery of this Agreement
there shall not have occurred any of the following: (i) trading in securities
generally on the New York Stock Exchange or the American Stock Exchange or in
the over-the-counter market, or trading in any securities of the Company on any
exchange or in the over-the-counter market, shall have been suspended or minimum
prices shall have been established on any such exchange or such market by the
Commission, by such exchange or by any other regulatory body or governmental
authority having jurisdiction, (ii) a banking moratorium shall have been
declared by Federal or state authorities, (iii) the United States shall have
become engaged in hostilities, there shall have been an escalation in
hostilities involving the United States or there shall have been a declaration
of a national emergency or war by the United States or (iv) there shall have
occurred such a material adverse change in general economic, political or
financial conditions (or the effect of international conditions on the financial
markets in the United States shall be such) as to make it, in the judgment of
the Initial Purchaser, impracticable or inadvisable to proceed with the public
offering or delivery of the 2009 Notes being delivered on such Closing Date on
the terms and in the manner contemplated in the Offering Memorandum.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Initial Purchaser.
8. Indemnification and Contribution.
(a) The Company, and each of the Significant Subsidiaries,
jointly and severally, shall indemnify and hold harmless each Initial Purchaser,
its officers and employees and each person, if any, who controls any Initial
Purchaser within the meaning of the Act, from and against any loss, claim,
damage or liability, joint or several, or any action in respect thereof
(including, but not limited to, any loss, claim,
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damage, liability or action relating to purchases and sales of the 2009 Notes
and the Exempt Resales), to which that Initial Purchaser, officer, employee or
controlling person may become subject, under the Act or otherwise, insofar as
such loss, claim, damage, liability or action arises out of, or is based upon,
(i) any untrue statement or alleged untrue statement of a material fact
contained (A) in any Offering Memorandum (including the documents incorporated
by reference therein) or in any amendment or supplement thereto; (B) in any
materials or information provided to investors by, or with the approval of, the
Company in connection with the marketing of the offering of the 2009 Notes
("Marketing Material"), including any roadshow or investor presentations made to
investors by the Company (whether in person or electronically, or (C) in any
blue sky application or other document prepared or executed by the Company (or
based upon any written information furnished by the Company) specifically for
the purpose of qualifying any or all of the 2009 Notes under the securities laws
of any state or other jurisdiction (any such application, document or
information being hereinafter called a "Blue Sky Application"), (ii) the
omission or alleged omission to state in the Offering Memorandum, (including the
documents incorporated by reference therein) or in any amendment or supplement
thereto, in the Marketing Materials, or in any Blue Sky Application, of any
material fact required to be stated therein or necessary to make the statements
therein not misleading or (iii) any act or failure to act or any alleged act or
failure to act by the Initial Purchaser in connection with, or relating in any
manner to, the 2009 Notes or 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 matters covered by clause (i) or (ii) above
(provided that the Company and the Principal Subsidiaries shall not be liable
under this clause (iii) to the extent that it is determined in a final judgment
by a court of competent jurisdiction 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 the Initial Purchaser through its gross negligence or
willful misconduct), and shall reimburse the Initial Purchaser and each such
officer, employee or controlling person promptly upon demand for any legal or
other expenses reasonably incurred by the Initial Purchaser, officer, employee
or controlling person in connection with investigating or defending or preparing
to defend against any such loss, claim, damage, liability or action as such
expenses are incurred; provided, however, that the Company and the Principal
Subsidiaries shall not be liable in any such case to the extent that any such
loss, claim, damage, liability or action arises out of, or is based upon, any
untrue statement or alleged untrue statement or omission or alleged omission
made in Offering Memorandum, or in any such amendment or supplement, or in any
Blue Sky Application, in reliance upon and in conformity with written
information concerning the Initial Purchaser furnished to the Company through
the Initial Purchaser by or on behalf of any Initial Purchaser specifically for
inclusion therein. The foregoing indemnity agreement is in addition to any
liability which the Company or the Principal Subsidiaries may otherwise have to
any Initial Purchaser or to any officer, employee or controlling person of that
Initial Purchaser.
(b) The Initial Purchaser, severally and not jointly, shall
indemnify and hold harmless the Company, its officers and employees, each of its
directors, and each person, if any, who controls the Company within the meaning
of the Act, from and against any loss, claim, damage or liability, joint or
several, or any action in respect thereof, to which the Company or any such
director, officer or controlling person may become subject, under the Act or
otherwise, insofar as such loss, claim, damage, liability or action arises out
of, or is based upon, (i) any untrue statement or alleged untrue statement of a
material fact contained (A) in the Offering Memorandum or in any amendment or
supplement thereto, or (B) in any Blue Sky Application or (ii) the omission or
alleged omission to state in any Offering Memorandum or in any amendment or
supplement thereto, or in any Blue Sky Application any material fact required to
be stated therein or necessary to make the statements therein not misleading,
but in each case only to the extent that the untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information concerning such Initial Purchaser furnished
to the Company by or on behalf of that Initial Purchaser specifically for
inclusion therein, and shall reimburse the Company and any such director,
officer or controlling
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person for any legal or other expenses reasonably incurred by the Company or any
such director, officer or controlling person in connection with investigating or
defending or preparing to defend against any such loss, claim, damage, liability
or action as such expenses are incurred. The foregoing indemnity agreement is in
addition to any liability which any Initial Purchaser may otherwise have to the
Company or any such director, officer, employee or controlling person.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 8, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however, that
the failure to notify the indemnifying party shall not relieve it from any
liability which it may have under this Section 8 except to the extent it has
been materially prejudiced by such failure and, provided further, that the
failure to notify the indemnifying party shall not relieve it from any liability
which it may have to an indemnified party otherwise than under this Section 8.
If any such claim or action shall be brought against an indemnified party, and
it shall notify the indemnifying party thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it wishes, jointly with
any other similarly notified indemnifying party, to assume the defense thereof
with counsel reasonably satisfactory to the indemnified party. After notice from
the indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, that
the Initial Purchaser shall have the right to employ counsel to represent
jointly the Initial Purchaser and the Initial Purchaser and its respective
officers, employees and controlling persons who may be subject to liability
arising out of any claim in respect of which indemnity may be sought by the
Initial Purchaser against the Company or the Principal Subsidiaries under this
Section 8 if, in the reasonable judgment of the Initial Purchaser, it is
advisable for the Initial Purchaser and those officers, employees and
controlling persons to be jointly represented by separate counsel, and in that
event the fees and expenses of such separate counsel shall be paid by the
Company or the Principal Subsidiaries. No indemnifying party shall (i) without
the prior written consent of the indemnified parties (which consent shall not be
unreasonably withheld), settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding, or (ii) be liable for any
settlement of any such action effected without its written consent (which
consent shall not be unreasonably withheld), but if settled with the consent of
the indemnifying party or if there be a final judgment of the plaintiff in any
such action, the indemnifying party agrees to indemnify and hold harmless any
indemnified party from and against any loss or liability by reason of such
settlement or judgment.
(d) If the indemnification provided for in this Section 8 shall
for any reason be unavailable to or insufficient to hold harmless an indemnified
party under Section 8(a) or 8(b) in respect of any loss, claim, damage or
liability, or any action in respect thereof, referred to therein, then each
indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a result
of such loss, claim, damage or liability, or action in respect thereof, (i) in
such proportion as shall be appropriate to reflect the relative benefits
received by the Company and the Principal Subsidiaries on the one hand and the
Initial Purchaser on the other from the offering of the 2009 Notes or (ii) if
the allocation provided by clause (i) above is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company and
the Principal Subsidiaries, on the one hand and the Initial Purchaser on the
other with respect to the statements or omissions which resulted in such loss,
claim, damage or liability, or action in respect thereof, as well as any other
relevant equitable
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considerations. The relative benefits received by the Company and the Principal
Subsidiaries, on the one hand and the Initial Purchaser on the other with
respect to such offering shall be deemed to be in the same proportion as the
total net proceeds from the offering of the 2009 Notes purchased under this
Agreement (before deducting expenses) received by the Company and the Principal
Subsidiaries on the one hand, and the total underwriting discounts and
commissions received by the Initial Purchaser with respect to the 2009 Notes
purchased under this Agreement, on the other hand, bear to the total gross
proceeds from the offering of the 2009 Notes under this Agreement, in each case
as set forth in the Offering Memorandum. The relative fault shall be determined
by reference to whether the untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact relates to
information supplied by the Company and the Principal Subsidiaries or the
Initial Purchaser, the intent of the parties and their relative knowledge,
access to information and opportunity to correct or prevent such statement or
omission. For purposes of the preceding two sentences, the net proceeds deemed
to be received by the Company shall be deemed to be also for the benefit of the
Principal Subsidiaries and information supplied by the Company shall also be
deemed to have been supplied by the Principal Subsidiaries. The Company and the
Principal Subsidiaries and the Initial Purchaser agrees that it would not be
just and equitable if contributions pursuant to this Section 8 were to be
determined by pro rata allocation (even if the Initial Purchaser was treated as
one entity for such purpose) or by any other method of allocation which does not
take into account the equitable considerations referred to herein. The amount
paid or payable by an indemnified party as a result of the loss, claim, damage
or liability, or action in respect thereof, referred to above in this Section 8
shall be deemed to include, for purposes of this Section 8(e), any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 8(e), no Initial Purchaser shall be required to
contribute any amount in excess of the amount by which the total price at which
the 2009 Notes purchased by it and sold in accordance with this Agreement
exceeds the amount of any damages which such Initial Purchaser has otherwise
paid or become liable to pay by reason of any untrue or alleged untrue statement
or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Initial Purchaser's obligations to contribute as provided
in this Section 8(e) are several in proportion to their respective underwriting
obligations and not joint.
(e) The Initial Purchaser confirms and the Company acknowledges
that the statements with respect to the offering of the 2009 Notes by the
Initial Purchaser set forth on the "Plan of Distribution" in the Offering
Memorandum are correct and constitute the only information concerning such
Initial Purchaser furnished in writing to the Company by or on behalf of the
Initial Purchaser specifically for inclusion in the Offering Memorandum.
9. Termination. The obligations of the Initial Purchaser hereunder may
be terminated by the Initial Purchaser by notice given to and received by the
Company prior to delivery of and payment for the 2009 Notes if, prior to that
time, any of the events described in Sections 7(h), 7(i) or 7(k), shall have
occurred or if the Initial Purchaser shall decline to purchase the 2009 Notes
for any reason permitted under this Agreement.
10. Reimbursement of Initial Purchaser' Expenses. If the Company shall
fail to tender the 2009 Notes for delivery to the Initial Purchaser by reason of
any failure, refusal or inability on the part of the Company to perform any
agreement on its part to be performed, or because any other condition of the
obligations hereunder required to be fulfilled by the Company is not fulfilled,
the Company will reimburse the Initial Purchaser for all reasonable
out-of-pocket expenses (including fees and disbursements of counsel) incurred by
the Initial Purchaser in connection with this Agreement and the
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proposed purchase of the 2009 Notes, and upon demand the Company shall pay the
full amount thereof to the Initial Purchaser.
11. Notices, etc. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to the Initial Purchaser, shall be delivered or sent by
mail, telex or facsimile transmission to Xxxxxx Brothers Inc., Three World
Financial Center, New York, New York 10285, Attention: Syndicate Department
(Fax: 000-000-0000), with a copy, in the case of any notice pursuant to Section
8(c), to the Director of Litigation, Office of the General Counsel, Xxxxxx
Brothers Inc., 0 Xxxxx Xxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000;
(b) if to the Company, shall be delivered or sent by mail, telex
or facsimile transmission to the address of the Company set forth in the
Offering Memorandum, Attention: Xxxx Xxxxxxx, Xx. (Fax: (000) 000-0000) with a
copy to Xxxxxxx Xxxxxxx, Esq (Fax: (000) 000-0000); provided, however, that any
notice to an Initial Purchaser pursuant to Section 8(c) shall be delivered or
sent by mail, telex or facsimile transmission to such Initial Purchaser at its
address set forth in its acceptance telex to the Initial Purchaser, which
address will be supplied to any other party hereto by the Initial Purchaser upon
request. Any such statements, requests, notices or agreements shall take effect
at the time of receipt thereof. The Company shall be entitled to act and rely
upon any request, consent, notice or agreement given or made on behalf of the
Initial Purchaser by Xxxxxx Brothers Inc.
12. Persons Entitled to Benefit of Agreement. This Agreement shall
inure to the benefit of and be binding upon the Initial Purchaser, the Company,
and their respective successors. This Agreement and the terms and provisions
hereof are for the sole benefit of only those persons, except that (A) the
representations, warranties, indemnities and agreements of the Company contained
in this Agreement shall also be deemed to be for the benefit of the person or
persons, if any, who control any Initial Purchaser within the meaning of Section
15 of the Act and (B) the indemnity agreement of the Initial Purchaser contained
in Section 8(b) of this Agreement shall be deemed to be for the benefit of
directors of the Company and any person controlling the Company within the
meaning of Section 15 of the Act. Nothing in this Agreement is intended or shall
be construed to give any person, other than the persons referred to in this
Section 13, any legal or equitable right, remedy or claim under or in respect of
this Agreement or any provision contained herein.
13. Survival. The respective indemnities, representations, warranties
and agreements of the Company, the Subsidiary Guarantor, the Principal
Subsidiaries and the Initial Purchaser contained in this Agreement or made by or
on behalf on them, respectively, pursuant to this Agreement, shall survive the
delivery of and payment for the 2009 Notes and shall remain in full force and
effect, regardless of any investigation made by or on behalf of any of them or
any person controlling any of them.
14. Definition of the Terms "Business Day" and "Subsidiary". For
purposes of this Agreement, (a) "business day" means any day on which the New
York Stock Exchange, Inc. is open for trading and (b) "subsidiary" has the
meaning set forth in Rule 405 of the Rules and Regulations.
15. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF NEW YORK.
16. Counterparts. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
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17. Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
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If the foregoing correctly sets forth the agreement between the Company
and the Initial Purchaser, please indicate your acceptance in the space provided
for that purpose below.
SPANISH BROADCASTING SYSTEM OF
FLORIDA, INC.
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive VP, Chief
Financial Officer and
Secretary
SBS OF GREATER NEW YORK, INC.
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive VP, Chief
Financial Officer and
Secretary
WPAT LICENSING, INC.
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive VP, Chief
Financial Officer and
Secretary
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If the foregoing correctly sets forth the agreement between the Company
and the Initial Purchaser, please indicate your acceptance in the space provided
for that purpose below.
SPANISH BROADCASTING SYSTEM, INC.
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive VP,
Chief Financial Officer
and Secretary
SPANISH BROADCASTING SYSTEM, INC.
(a New Jersey corporation)
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive VP,
Chief Financial Officer
and Secretary
SPANISH BROADCASTING SYSTEM OF
GREATER MIAMI, INC.
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive VP,
Chief Financial Officer
and Secretary
SPANISH BROADCASTING SYSTEM OF
ILLINOIS, INC.
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive VP,
Chief Financial Officer
and Secretary
SPANISH BROADCASTING SYSTEM
FINANCE CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive VP,
Chief Financial Officer
and Secretary
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SPANISH BROADCASTING SYSTEM OF
PUERTO RICO, INC.
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive VP
Chief Financial Officer and
Secretary
SPANISH BROADCASTING SYSTEM
HOLDING COMPANY
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive VP
Chief Financial Officer and
Secretary
SPANISH BROADCASTING SYSTEM
SOUTHWEST, INC.
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive VP
Chief Financial Officer and
Secretary
Accepted:
XXXXXX BROTHERS INC.
By XXXXXX BROTHERS INC.
By: /s/ Xxxxxxxxx Xxxx
------------------------------------------------
Authorized Representative
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SCHEDULE 1
Principal Amount of
U.S. Initial Purchaser Notes to be Purchased
---------------------- ---------------------
Xxxxxx Brothers Inc............................................ $100,000,000
Total.......................................................... $ 100,000,000
1
