EXHIBIT 1.2
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2,000,000 SHARES
CHANCELLOR RADIO BROADCASTING COMPANY
12% EXCHANGEABLE PREFERRED STOCK
PURCHASE AGREEMENT
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January 17, 1997
BT Securities Corporation
Credit Suisse First Boston Corporation
Xxxxxxx, Xxxxx & Co.
NationsBanc Capital Markets, Inc.
Xxxxx Xxxxxx Inc.
c/o BT Securities Corporation
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Chancellor Radio Broadcasting Company (the "Company"), a
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Delaware corporation and a wholly-owned subsidiary of Chancellor
Broadcasting Company, a Delaware corporation ("Chancellor"), hereby
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confirms its agreement with you (the "Initial Purchasers"), as set
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forth below.
1. The Securities. Subject to the terms and conditions
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herein contained, the Company proposes to issue and sell to the
Initial Purchasers 2,000,000 shares of its Exchangeable Preferred
Stock, par value $.01 per share (the "Shares"). The Shares are to be
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exchangeable at the option of the Company, in whole but not in part,
on any dividend payment date for the Company's 12% Subordinated
Exchange Debentures due 2009 (the "Debentures"). The Debentures are
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to be issued under an indenture (the "Indenture") dated as of
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January 23, 1997 between the Company and U.S. Trust Company of Texas,
N.A., as trustee (the "Trustee"). The Shares and the Debentures are
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referred to herein collectively as the "Securities."
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The Securities will be offered and sold to the Initial
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Purchasers without being registered under the Securities Act of 1933,
as amended (the "Act"), in reliance on exemptions therefrom.
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In connection with the sale of the Securities, the Company
has prepared a preliminary offering memorandum dated January 3, 1997
(the "Preliminary Memorandum") and a final offering memorandum dated
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January 17, 1997 (the "Final Memorandum"; the Preliminary Memorandum
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and the Final Memorandum each herein being referred to as a
"Memorandum") setting forth or including a description of the terms of
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the Securities, the terms of the offering of the Securities, a
description of the Company and any material developments relating to
the Company occurring after the date of the most recent historical
financial statements included therein.
The Initial Purchasers and their direct and indirect
transferees of the Securities will be entitled to the benefits of the
Registration Rights Agreement, substantially in the form attached
hereto as Exhibit B (the "Registration Rights Agreement"), pursuant to
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which the Company has agreed, among other things, to file a
registration statement (the "Registration Statement") with the
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Securities and Exchange Commission (the "Commission") registering the
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Shares or the Exchange Preferred Stock (as defined in the Registration
Rights Agreement) under the Act.
Concurrently with the sale of the Securities, Chancellor is
offering up to $115 million liquidation preference of its 7%
Convertible Preferred Stock (the "Convertible Preferred Stock"), and
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the Company is entering into an amended and restated Credit Agreement
(the "New Credit Agreement"), to be dated as of the Closing Date,
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among the Company, Bankers Trust Company, as administrative agent and
a lender thereunder, and the other institutions party thereto, which
will provide for loans to the Company of up to $345,000,000. In
addition, the Company has entered into an agreement to acquire eight
radio stations from OmniAmerica Group (the "Omni Acquisition")
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pursuant to a purchase agreement between the Company and OmniAmerica
Group dated May 15, 1996 (the "Omni Agreement") and has entered into
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an agreement to acquire twelve radio stations from Colfax
Communications, Inc. (the "Colfax Acquisition") pursuant to a purchase
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agreement between the Company and Colfax Communications, Inc. dated
August 24, 1996 (the "Colfax Agreement"). In connection with the Omni
Acquisition, the Company (i) on June 24, 1996, entered into an
agreement (the "American Radio Agreement") with American Radio Systems
Corporation ("American Radio") for, among other things, the exchange
of a radio station being acquired pursuant to the
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Omni Acquisition for a radio station currently owned by American Radio
(the "American Radio Transaction") and (ii) on July 1, 1996 entered
into an agreement (the "SFX Agreement") with SFX for, among other
things, the exchange of a radio station being acquired pursuant to
the Omni Acquisition for four radio stations currently owned by SFX
(the "SFX Transaction"). In connection with the Colfax Acquisition,
the Company entered into a letter of intent dated December 19, 1996
(the "Milwaukee Letter of Intent") for the sale of the Milwaukee
stations being acquired pursuant to the Colfax Acquisition. The
Colfax Acquisition will be consummated on the Closing Date. The
"Company," as defined, shall include radio stations being acquired
pursuant to the Colfax Agreement. The transactions contemplated by
this agreement and the New Credit Agreement, and the consummation of
the Colfax Acquisition are herein collectively referred to as the
"Transactions." The Omni Agreement, the American Radio Agreement, the
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SFX Agreement and the Milwaukee Letter of Intent are referred to
herein collectively as the "Pending Agreements."
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2. Representations and Warranties of the Company. The
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Company represents and warrants to and agrees with the Initial
Purchasers that:
(a) Neither the Preliminary Memorandum as of the date
thereof nor the Final Memorandum nor any amendment or supplement
thereto as of the date thereof and at all times subsequent thereto up
to the Closing Date (as defined in Section 3 below) contained or
contains any untrue statement of a material fact or omitted or omits
to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading, except that the representations and warranties set forth
in this Section 2(a) do not apply to statements or omissions made in
reliance upon and in conformity with information relating to any of
the Initial Purchasers furnished to the Company in writing by the
Initial Purchasers expressly for use in the Preliminary Memorandum,
the Final Memorandum or any amendment or supplement thereto.
(b) Each of Chancellor, the Company and the subsidiaries of
the Company set forth on Schedule B hereto (collectively, the
"Subsidiaries"), has been duly incorporated and is validly existing
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and in good standing as a corporation under the laws of its
jurisdiction of incorporation, with all requisite corporate power and
authority to own or lease its properties and conduct its businesses,
as described in the Final Memorandum, and is duly qualified to do
business as a foreign corporation in good standing in all other
jurisdictions where the ownership or leasing of its properties or the
conduct of its
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businesses requires such qualification, except where the failure to be
so qualified would not have a material adverse effect on the business,
condition (financial or other) or results of operations of Chancellor,
the Company and the Subsidiaries, taken as a whole, or on the
validity or enforceability of the Securities; each of Chancellor and
the Company immediately after the Closing Date will have the
authorized, issued and outstanding capitalization set forth in the
Final Memorandum (on the bases as are set forth in the Final
Memorandum); the outstanding shares of capital stock of each of
Chancellor, the Company, and the Subsidiaries have been, and as of the
Closing Date will be, duly authorized and validly issued, are and will
be fully paid and nonassessable and were not and will not be issued in
violation of any preemptive or similar rights; and except as otherwise
set forth in the Final Memorandum, all of the outstanding shares of
capital stock (i) of the Company, excluding the Company's existing
shares of 12 1/4% Series A Cumulative Exchangeable Preferred Stock
(the "Senior Preferred Stock") and the Shares, are, and as of the
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Closing Date will be, owned by Chancellor and (ii) of each of the
Subsidiaries are, and as of the Closing Date will be, owned directly
or indirectly by the Company. Except for the stock of each of the
Subsidiaries owned by the Company, and partnership interests in
partnerships owning certain of the Company's transmitter facilities,
the Company does not own, directly or indirectly, any shares of stock
or any other equity or long-term debt securities or have any equity
interest in any firm, partnership, joint venture or other entity. No
holders of securities of the Company are entitled to have such
securities registered under the registration statement required to be
filed by the Company pursuant to the Registration Rights Agreement
other than as expressly permitted thereby.
(c) The Certificate of Designation relating to the Shares
(the "Certificate of Designation") has been duly authorized by the
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Company. Prior to the Closing Date, the Shares, the Exchange
Preferred Stock and the Private Exchange Preferred Stock (as defined
in the Registration Rights Agreement) shall have been duly authorized
and, when issued and delivered, in the case of the Shares, against
payment therefor in accordance with the terms hereof, will be validly
issued, fully paid and nonassessable and free of any preemptive or
similar rights; as of the Closing Date, the capital stock of the
Company shall conform, in all material respects, to the description
thereof in the Final Memorandum. The Certificate of Incorporation of
the Company, by virtue of the Certificate of Designation, sets forth
the rights, preferences and priorities of the Shares. The
certificates for the Shares that are being sold by the Company are in
due and proper form and the holders of such Shares will not be subject
to
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personal liability by reason of being such holders.
(d) The Debentures have been duly authorized by the Company
for issuance and conform in all material respects to the description
thereof in the Final Memorandum. The Debentures, when executed by the
Company and authenticated by the Trustee in accordance with the
provisions of the Indenture and delivered upon the exchange of the
Shares, will have been duly executed, issued and delivered and will
constitute valid and legally binding obligations of the Company,
entitled to the benefits of the Indenture and enforceable against the
Company in accordance with their terms, except that the enforcement
thereof may be subject to (i) bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights and remedies
generally and (ii) general principles of equity and the discretion of
the court before which any proceeding therefor may be brought
(regardless of whether such enforcement is considered in a proceeding
in equity or at law).
(e) The Company has all requisite corporate power and
authority to execute, deliver and perform its obligations under the
Indenture; the Indenture has been duly authorized by the Company and
meets the requirements for qualification under the Trust Indenture Act
of 1939, as amended (the "TIA") and, when executed and delivered by
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the Company (assuming the due authorization, execution and delivery by
the Trustee), will constitute a valid and legally binding agreement of
the Company, enforceable against it in accordance with its terms,
except that the enforcement thereof may be subject to (i) bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium or other
similar laws now or hereafter in effect relating to creditors' rights
generally and (ii) general principles of equity and the discretion of
the court before which any proceeding therefor may be brought
(regardless of whether such enforcement is considered in a proceeding
in equity or at law).
(f) The Company has all requisite corporate power and
authority to execute and deliver the Registration Rights Agreement;
the Registration Rights Agreement has been duly authorized by the
Company and, when executed and delivered by the Company (assuming due
authorization, execution and delivery by you), will constitute a valid
and legally binding agreement of the Company enforceable against it in
accordance with its terms, except that (A) the enforcement thereof may
be subject to (i) bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights generally and (ii) general
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principles of equity and the discretion of the court before which any
proceeding therefor may be brought (regardless of whether such
enforcement is considered in a proceeding in equity or at law) and
(B) any rights to indemnity or contribution thereunder may be limited
by federal and state securities laws and public policy considerations.
(g) The Company has all requisite corporate power and
authority to execute and deliver this Agreement and, subsequent to the
filing of the Certificate of Designation, to issue and deliver the
Securities, to consummate the transactions contemplated hereby and to
consummate each of the other Transactions. This Agreement has been
duly authorized, executed and delivered by the Company. No consent,
approval, authorization or order of any court or governmental agency
or body (including, without limitation, the Federal Communications
Commission (the "FCC")) is required for the performance of this
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Agreement by the Company or the consummation by the Company of the
transactions contemplated hereby, or the consummation of any of the
other Transactions, except such as have been obtained and such as may
be required under state securities or "Blue Sky" laws in connection
with the purchase and resale of the Securities by the Initial
Purchasers. In addition, no consent, approval, authorization or order
of any court or governmental agency or body (except for such consents,
approvals or authorizations as are required by the FCC or under the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976) is required for
the performance by the Company of the transactions contemplated by the
Pending Agreements, and the Company has no reasonable basis to believe
that the transactions contemplated by the Pending Agreements will not
be consummated in accordance with their terms.
(h) None of Chancellor, the Company, or any of the
Subsidiaries is (i) in violation of its certificate of incorporation
or by-laws, (ii) in violation of any statute, judgment, decree, order,
rule or regulation applicable to Chancellor, the Company or any of the
Subsidiaries, which violation would have a material adverse effect on
the business, condition (financial or other) or results of operations
of Chancellor, the Company and the Subsidiaries, taken as a whole, or
on the validity or enforceability of the Securities, as the case may
be, or (iii) in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement, note, lease,
license, franchise agreement, permit, certificate, contract or other
agreement or instrument to which Chancellor, the Company or any of the
Subsidiaries is a party or to which Chancellor, the Company or any of
the Subsidiaries is subject,
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which default would have a material adverse effect on the business,
condition (financial or other) or results of operations of Chancellor,
the Company or the Subsidiaries taken as a whole, or on the validity
or enforceability of the Securities, as the case may be.
(i) Neither the issuance and sale of the Securities nor the
execution, delivery and performance by the Company of this Agreement
or the Registration Rights Agreement and the consummation of the
transactions contemplated hereby and thereby nor the consummation of
the other Transactions will conflict with or constitute or result in a
breach or violation of any of (i) the terms or provisions of, or
constitute a default by the Company under any indenture, mortgage,
deed of trust, loan agreement, note, lease, license, franchise
agreement, or other agreement or instrument to which the Company is a
party or to which the Company or its respective properties is subject,
which conflict, breach, violation or default would have a material
adverse effect on the business, condition (financial or other) or
results of operations of the Company or on the validity or
enforceability of the Securities, as the case may be, (ii) the
certificate of incorporation or by-laws of the Company, as the same
will be in effect on the Closing Date, or (iii) (assuming compliance
with all applicable state securities and "Blue Sky" laws and assuming
the accuracy of the representations and warranties of the Initial
Purchasers in Section 8 hereof) any statute, judgment, decree, order,
rule or regulation of any court or governmental agency or other body
applicable to the Company or any of its respective properties, which
conflict, breach, violation or default would have a material adverse
effect on the business, condition (financial or other) or results of
operations of the Company or on the validity or enforceability of the
Securities, as the case may be.
(j) The audited consolidated financial statements and
schedules of the Company included in the Final Memorandum present
fairly, in all material respects, the consolidated financial position,
results of operations and cash flows of the Company at the dates and
for the periods to which they relate and have been prepared in
accordance with generally accepted accounting principles applied on a
consistent basis, except as otherwise stated therein. The unaudited
financial statements and the related notes included in the Final
Memorandum present fairly, in all material respects (on the basis
stated therein), the financial position, results of operations and
cash flows of the Company at the dates and for the periods to which
they relate, subject to year-end audit adjustments, and have been
prepared in accordance with generally accepted accounting principles
applied
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on a consistent basis, except as otherwise stated therein. Coopers &
Xxxxxxx L.L.P., which has examined certain of such consolidated
financial statements and schedules as set forth in its reports
included in the Final Memorandum, is an independent public accounting
firm within the meaning of the Act and the rules and regulations
promulgated thereunder.
(k) The audited financial statements and schedules of "Old
Chancellor Communications" (as defined in the Final Memorandum)
included in the Final Memorandum present fairly, in all material
respects, the financial position, results of operations and cash flows
of Old Chancellor Communications at the dates and for the periods to
which they relate and have been prepared in accordance with generally
accepted accounting principles applied on a consistent basis, except
as otherwise stated therein. Coopers & Xxxxxxx L.L.P., which has
examined certain of such financial statements and schedules as set
forth in its reports included in the Final Memorandum, is an
independent public accounting firm within the meaning of the Act and
the rules and regulations promulgated thereunder.
(l) The audited consolidated financial statements and
schedules of "Trefoil Communications, Inc." (as defined in the Final
Memorandum) included in the Final Memorandum present fairly, in all
material respects, the consolidated financial position, results of
operations and cash flows of Trefoil Communications, Inc. at the dates
and for the periods to which they relate and have been prepared in
accordance with generally accepted accounting principles applied on a
consistent basis, except as otherwise stated therein. Price
Waterhouse LLP, which has examined certain of such consolidated
financial statements and schedules as set forth in its reports
included in the Final Memorandum, is an independent public accounting
firm within the meaning of the Act and the rules and regulations
promulgated thereunder.
(m) The audited financial statements and schedules of KDWB-
FM (as defined in the Final Memorandum) included in the Final
Memorandum present fairly, in all material respects, the financial
position, results of operations and cash flows of KDWB-FM at the dates
and for the periods to which they relate and have been prepared in
accordance with generally accepted accounting principles applied on a
consistent basis, except as otherwise stated therein. The unaudited
financial statements and the related notes included in the Final
Memorandum present fairly, in all material respects (on the basis
stated therein), the financial position, results of operations and
cash flows of KDWB-FM at the dates and for the periods to which they
relate, subject
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to year-end audit adjustments, and have been prepared in accordance
with generally accepted accounting principles applied on a consistent
basis, except as otherwise stated therein. Coopers & Xxxxxxx L.L.P.,
which has examined certain of such financial statements and schedules
as set forth in its reports included in the Final Memorandum, is an
independent public accounting firm within the meaning of the Act and
the rules and regulations promulgated thereunder.
(n) The audited combined financial statements and schedules
of Colfax included in the Final Memorandum present fairly, in all
material respects, the financial position, results of operations and
cash flows of Colfax at the dates and for the periods to which they
relate and have been prepared in accordance with generally accepted
accounting principles applied on a consistent basis, except as
otherwise stated therein. The unaudited combined financial statements
and the related notes included in the Final Memorandum present fairly,
in all material respects (on the basis stated therein), the financial
position, results of operations and cash flows of Colfax at the dates
and for the periods to which they relate, subject to year-end audit
adjustments, and have been prepared in accordance with generally
accepted accounting principles applied on a consistent basis, except
as otherwise stated therein. Xxxxxx Xxxxxxxx LLP, which has examined
certain of such financial statements and schedules as set forth in its
reports included in the Final Memorandum, is an independent public
accounting firm within the meaning of the Act and the rules and
regulations promulgated thereunder.
(o) The audited combined financial statements and schedules
of the "Sundance Stations" (as defined in the Final Memorandum)
included in the Final Memorandum present fairly, in all material
respects, the financial position, results of operations and cash flows
of the Sundance Stations at the dates and for the periods to which
they relate and have been prepared in accordance with generally
accepted accounting principles applied on a consistent basis, except
as otherwise stated therein. The unaudited combined financial
statements and the related notes included in the Final Memorandum
present fairly, in all material respects (on the basis stated
therein), the financial position, results of operations and cash flows
of the Sundance Stations at the dates and for the periods to which
they relate, subject to year-end audit adjustments, and have been
prepared in accordance with generally accepted accounting principles
applied on a consistent basis, except as otherwise stated therein.
Coopers & Xxxxxxx L.L.P., which has examined certain of such financial
statements and schedules as set forth in its reports included in the
Final Memorandum, is an
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independent public accounting firm within the meaning of the Act and
the rules and regulations promulgated thereunder.
(p) The audited combined financial statements and schedules
of the Omni Corporations included in the Final Memorandum present
fairly, in all material respects, the financial position, results of
operations and cash flows of Omni at the dates and for the periods to
which they relate and have been prepared in accordance with generally
accepted accounting principles applied on a consistent basis, except
as otherwise stated therein. Coopers & Xxxxxxx L.L.P., which has
examined certain of such financial statements and schedules as set
forth in its reports included in the Final Memorandum, is an
independent public accounting firm within the meaning of the Act and
the rules and regulations promulgated thereunder.
(q) The pro forma condensed financial statements and other
pro forma financial information (including the notes thereto) included
in the Final Memorandum (A) present fairly in all material respects
the information shown therein; (B) have been prepared in accordance
with the applicable requirements of Regulation S-X promulgated under
the Act; (C) have been prepared in accordance with the Commission's
rules and guidelines with respect to pro forma financial statements;
and (D) have been properly computed on the bases described therein.
The assumptions used in the preparation of the pro forma financial
statements and other pro forma condensed consolidated financial
information included in the Final Memorandum are reasonable and the
adjustments used therein are reasonably appropriate to give effect to
the transactions or circumstances referred to therein.
(r) Except as described in the Final Memorandum, there is
neither pending nor, to the knowledge of the Company, threatened any
action, suit, proceeding, inquiry or investigation involving
Chancellor, the Company, any of the Subsidiaries or to which any of
their respective properties is subject, before or brought by any court
or governmental agency or body (including, without limitation, the
FCC) that would be reasonably likely to have a material adverse effect
on the business, condition (financial or other) or results of
operations of Chancellor, the Company and the Subsidiaries, taken as a
whole.
(s) Each of Chancellor, the Company and the Subsidiaries,
owns or possesses adequate licenses or other rights to use all
patents, trademarks, service marks, trade names, copyrights and
know-how necessary to conduct the businesses operated by it, and on
the Closing Date will possess such licenses, rights and know-how
necessary to conduct the businesses
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proposed to be operated by it, as described in the Final Memorandum,
and none of Chancellor, the Company or any Subsidiary, has received
any notice of infringement of, or conflict with (or knows of any such
infringement of or conflict with), asserted rights of others with
respect to any patents, trademarks, service marks, trade names,
copyrights or know-how that, if such assertion of infringement or
conflict were sustained, would have a material adverse effect on the
business, condition (financial or other) or results of operations of
Chancellor, the Company and the Subsidiaries, taken as a whole.
(t) Each of Chancellor, the Company and the Subsidiaries
has obtained, or has applied for, all licenses, permits, franchises
and other governmental authorizations necessary to conduct its
businesses as described in the Final Memorandum, the lack of which
would have a material adverse effect on the business, condition
(financial or other) or results of operations of Chancellor, the
Company and the Subsidiaries, taken as a whole.
(u) Subsequent to the respective dates as of which
information is given in the Final Memorandum and except as described
therein or contemplated thereby, (i) none of Chancellor, the Company
or any Subsidiary, has incurred any material liabilities or
obligations, direct or contingent, or entered into any material
transactions, not in the ordinary course of business; and (ii) the
Company has not purchased any of its outstanding capital stock or
declared, paid or otherwise made any dividend or distribution of any
kind on its capital stock.
(v) There are no legal or governmental proceedings that
would be required to be described in a prospectus pursuant to the Act
that are not described in the Final Memorandum, nor are there any
contracts or other documents that would be required to be described in
a prospectus pursuant to the Act that have not been described in the
Final Memorandum. Except as described in the Final Memorandum, none
of Chancellor, the Company or any Subsidiary, is in default under any
material contract, has received a notice or claim of any such default
or has knowledge of any breach of any such contract by the other party
or parties thereto, except such defaults or breaches as would not,
individually or in the aggregate, have a material adverse effect on
the business, condition (financial or other) or results of operations
of Chancellor, the Company and the Subsidiaries, taken as a whole, or
on the validity or enforceability of the Securities, as the case may
be.
(w) Each of Chancellor, the Company and the
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Subsidiaries has filed all necessary federal, state, local and
foreign income and franchise tax returns, except where the failure to
so file such returns would not have a material adverse effect on the
business, condition (financial or other) or results of operations of
Chancellor, the Company and the Subsidiaries, taken as a whole, and
each of Chancellor, the Company and the Subsidiaries, has paid all
taxes shown as due thereon; and other than tax deficiencies that
Chancellor, the Company or any Subsidiary is contesting in good faith
and for which adequate reserves have been provided, there is no tax
deficiency that has been asserted against Chancellor, the Company or
any Subsidiary, that would, individually or in the aggregate, have a
material adverse effect on the business, condition (financial or
other) or results of operations of Chancellor, the Company and the
Subsidiaries, taken as a whole.
(x) Neither the Company nor any agent acting on its behalf
has taken or will take any action that might cause this Agreement or
the issuance and sale of the Securities to violate Regulation G, T, U
or X of the Board of Governors of the Federal Reserve System, in each
case as in effect on the Closing Date.
(y) Each of Chancellor, the Company and the Subsidiaries
has good and marketable title to all real property and good title to
all personal property described in the Final Memorandum as being owned
by it and good and marketable title to all leasehold estates in the
real and personal property described in the Final Memorandum as being
leased by it (except for those leases of real property in which
Chancellor, the Company or any Subsidiary, has good title and that
would be marketable but for the requirement that the landlord consent
to an assignment or sublease of the lease), free and clear of all
liens, charges, encumbrances or restrictions, except, in each case, as
described in the Final Memorandum or to the extent the failure to have
such title or the existence of such liens, charges, encumbrances or
restrictions would not, individually or in the aggregate, have a
material adverse effect on the business, condition (financial or
other) or results of operations of Chancellor, the Company and the
Subsidiaries taken as a whole.
(z) The Company is in compliance with all provisions of
Section 517.075 of Florida Statutes, as amended, relating to issuers
doing business with Cuba.
(aa) The Company is not an "investment company," as defined
in the Investment Company Act of 1940, as amended, and the rules and
regulations thereunder.
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(ab) Neither the Company nor any of its directors, officers
or controlling persons has taken, directly or indirectly, any action
designed, or that might reasonably be expected, to cause or result,
under the Act or otherwise, in, or that has constituted, stabilization
or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Securities.
(ac) None of the Company, any Subsidiary or any of their
respective Affiliates (as defined in Rule 501(b) of Regulation D under
the Act) has directly, or through any agent, (i) sold, offered for
sale, solicited offers to buy or otherwise negotiated in respect of,
any "security" (as defined in the Act) which is or could be integrated
with the sale of the Securities in a manner that would require the
registration under the Act of the Securities or (ii) engaged in any
form of general solicitation or general advertising (as those terms
are used in Regulation D under the Act) in connection with the
offering of the Securities or in any manner involving a public
offering within the meaning of Section 4(2) of the Act. Assuming the
accuracy of the representations and warranties of the Initial
Purchasers in Section 8 hereof, it is not necessary in connection with
the offer, sale and delivery of the Securities to the Initial
Purchasers in the manner contemplated by this Agreement to register
any of the Securities under the Act or to qualify the Indenture under
the TIA.
(ad) No securities of the Company or any Subsidiary are of
the same class (within the meaning of Rule 144A under the Act) as the
Shares or the Debentures and listed on a national securities exchange
registered under Section 6 of the Exchange Act, or quoted in a U.S.
automated inter-dealer quotation system.
3. Purchase, Sale and Delivery of the Securities. On the
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basis of the representations, warranties, agreements and covenants
herein contained and subject to the terms and conditions herein set
forth, the Company agrees to issue and sell to each of the Initial
Purchasers, and each of the Initial Purchasers severally agrees to
purchase from the Company, at a price of $96.50 per share, the number
of Shares set forth opposite their respective names on Schedule A
hereto. The obligations of the Initial Purchasers under this
Agreement are several and not joint.
One or more certificates in definitive form for the Shares
that the Initial Purchasers have agreed to purchase hereunder, and in
such denomination or denominations and registered in such name or
names as each Initial Purchaser
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requests upon notice to the Company at least 48 hours prior to the
Closing Date, shall be delivered by or on behalf of the Company to the
Initial Purchasers, against payment by or on behalf of the Initial
Purchasers of the purchase price therefor, by wire transfer payable to
or upon the order of the Company in immediately available funds. Such
delivery of and payment for the Shares shall be made at the offices of
Xxxxxx Xxxxxx & Xxxxxxx, 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx on or
about 9:00 A.M., New York City time, on January 23, 1997 (the Company
having requested, and the Initial Purchasers having agreed to such
date in order for certain conditions to the Initial Purchasers'
obligations to be able to be satisfied) or at such other place, time
or date as the Initial Purchasers and the Company may agree upon, such
time and date of delivery against payment being herein referred to as
the "Closing Date." The Company will make such certificate or
------------
certificates for the Shares available for checking and packaging by
the Initial Purchasers at the offices in New York, New York of BT
Securities Corporation at least 24 hours prior to the Closing Date.
4. Offering by the Initial Purchasers. The Initial
----------------------------------
Purchasers propose to make an offering of the Securities at the price
and upon the terms set forth in the Final Memorandum, as soon as
practicable after this Agreement is entered into and as in the
judgment of the Initial Purchasers is advisable.
5. Covenants of the Company. The Company covenants and
------------------------
agrees with the Initial Purchasers that:
(a) The Company will not amend or supplement the Final
Memorandum or any amendment or supplement thereto of which the Initial
Purchasers shall not previously have been advised and furnished a copy
for a reasonable period of time, prior to the proposed amendment or
supplement and as to which the Initial Purchasers shall not have given
their consent. The Company will promptly, upon the reasonable request
of the Initial Purchasers or counsel for the Initial Purchasers, make
any amendments or supplements to the Preliminary Memorandum or the
Final Memorandum that may be necessary or advisable in connection with
the resale of the Securities by the Initial Purchasers.
(b) The Company will cooperate with the Initial Purchasers
in arranging for the qualification of the Securities for offering and
sale under the securities or "Blue Sky" laws of such jurisdictions as
the Initial Purchasers may designate and will continue such
qualifications in effect for as long as may be necessary to complete
the resale of the Securities by the Initial Purchasers; provided,
--------
however, that in connection therewith the
-------
--
Company shall be required to qualify as a foreign corporation or to
execute a general consent to service of process in any jurisdiction.
(c) If, at any time prior to the completion of the
distribution by the Initial Purchasers of the Shares or the Private
Exchange Preferred Stock, any event occurs as a result of which the
Final Memorandum as then amended or supplemented would include an
untrue statement of a material fact, or omit to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if for
any other reason it is necessary at any time to amend or supplement
the Final Memorandum in order to comply with applicable law, the
Company will promptly notify the Initial Purchasers thereof and will
prepare, at the Company's expense, an amendment to the Final
Memorandum that corrects such statement or omission or effects such
compliance.
(d) The Company will, without charge, provide to the
Initial Purchasers and to counsel for the Initial Purchasers, as many
copies of the Preliminary Memorandum and the Final Memorandum or any
amendment or supplement thereto as the Initial Purchasers may
reasonably request.
(e) The Company will apply the net proceeds from the sale
of the Securities substantially as set forth under "Use of Proceeds"
in the Final Memorandum.
(f) For and during the five-year period ending on the fifth
anniversary of this Agreement, the Company will furnish to the Initial
Purchasers copies of all reports and other communications (financial
or otherwise) furnished by the Company to the Trustee or the holders
of the Securities and, as soon as available, copies of any reports or
financial statements furnished to or filed by the Company with the
Commission or any national securities exchange on which any class of
securities of the Company may be listed.
(g) Prior to the Closing Date, the Company will furnish to
the Initial Purchasers, as soon as they have been prepared by or are
available to the Company, a copy of any unaudited interim consolidated
financial statements of the Company for any period subsequent to the
period covered by its most recent financial statements appearing in
the Final Memorandum.
(h) None of the Company or any of its Affiliates will sell,
offer for sale or solicit offers to buy or otherwise
--
negotiate in respect of any "security" (as defined in the Act) which
could be integrated with the sale of the Securities in a manner which
would require the registration under the Act of the Securities.
(i) Except in connection with the Registration Rights
Agreement, the Company will not, and will not permit any of the
Subsidiaries to, engage in any form of general solicitation or general
advertising (as those terms are used in Regulation D under the Act) in
connection with the offering of the Securities or in any manner
involving a public offering within the meaning of Section 4(2) of the
Act.
(j) For so long as any of the Shares remain outstanding,
the Company will make available at its expense, upon request, to any
holder of such Shares and any prospective purchasers thereof the
information specified in Rule 144A(d)(4) under the Act, unless the
Company is then subject to Section 13 or 15(d) of the Securities
Exchange Act of 1934, as amended.
(k) The Company will use its best efforts to (i) permit the
Shares to be designated PORTAL securities in accordance with the rules
and regulations adopted by the NASD relating to trading in the Private
Offerings, Resales and Trading through Automated Linkages market (the
"Portal Market") and (ii) permit the Shares to be eligible for
-------------
clearance and settlement through The Depository Trust Company.
6. Expenses. The Company agrees to pay the following
--------
costs and expenses and all other costs and expenses incident to the
performance of its obligations under this Agreement, whether or not
the transactions contemplated herein are consummated or this Agreement
is terminated pursuant to Section 11 hereof: (i) the printing, word
processing or other production of documents with respect to such
transactions, including any costs of printing the Preliminary
Memorandum and the Final Memorandum and any amendments thereto, and
any "Blue Sky" memoranda, (ii) all arrangements relating to the
delivery to the Initial Purchasers of copies of the foregoing
documents, (iii) the fees and disbursements of the counsel, the
accountants and any other experts or advisors retained by the Company,
(iv) the preparation (including printing), issuance and delivery to
the Initial Purchasers of any certificates evidencing the Shares,
including transfer agent's fees, (v) the qualification of the
Securities under state securities and "Blue Sky" laws, including
filing fees and reasonable fees and disbursements of counsel for the
Initial Purchasers relating thereto, (vi) the expenses of the Company
in connection with any meetings with prospective investors in the
--
Securities and (vii) the fees and expenses of the Trustee, including
fees and expenses of its counsel. If the issuance and sale of the
Securities provided for herein is not consummated because any
condition to the obligations of the Initial Purchasers set forth in
Section 7 hereof is not satisfied, because this Agreement is
terminated pursuant to Section 11 hereof or because of any failure,
refusal or inability on the part of the Company to perform all
obligations and satisfy all conditions on its part to be performed or
satisfied hereunder other than by reason of a default by the Initial
Purchasers, the Company will reimburse the Initial Purchasers upon
demand for all reasonable out-of-pocket expenses (including
reasonable counsel fees and disbursements) that shall have been
incurred by the Initial Purchasers in connection with the proposed
purchase and sale of the Securities.
7. Conditions of the Initial Purchasers' Obligations. The
-------------------------------------------------
obligations of the Initial Purchasers to purchase and pay for the
Securities shall, in their sole discretion, be subject to the
following conditions:
(a) The Initial Purchasers shall have received opinions in
form and substance satisfactory to the Initial Purchasers and counsel
for the Initial Purchasers, dated the Closing Date, of (i) Weil,
Gotshal & Xxxxxx LLP, counsel for the Company, substantially in the
form of Exhibit A-1 hereto and (ii) Xxxxxxxxx & Associates, regulatory
counsel for the Company, substantially in the form of Exhibit A-2
hereto.
(b) The Initial Purchasers shall have received an opinion,
dated the Closing Date, of Xxxxxx Xxxxxx & Xxxxxxx, counsel for the
Initial Purchasers, with respect to certain legal matters relating to
this Agreement, and such other related matters as the Initial
Purchasers may require. In rendering such opinion, Xxxxxx Xxxxxx &
Xxxxxxx shall have received and may rely upon such certificates and
other documents and information as they may reasonably request to pass
upon such matters. In addition, in rendering their opinion, Xxxxxx
Xxxxxx & Xxxxxxx may state that their opinion is limited to matters of
New York, Delaware corporate and federal law.
(c) The Initial Purchasers shall have received from each of
Coopers & Xxxxxxx L.L.P., independent public accountants for the
Company, and Xxxxxx Xxxxxxxx LLP, independent public accountants for
Colfax, letters dated, respectively, the date hereof and the Closing
Date, in form and substance satisfactory to the Initial Purchasers and
counsel for the Initial Purchasers.
--
(d) The representations and warranties of the Company
contained in this Agreement shall be true and correct in all material
respects on and as of the Closing Date (other than to the extent any
such representation or warranty is expressly made as to a certain
date); the Company shall have performed, in all material respects, all
covenants and agreements and satisfied, in all material respects, all
conditions on its part to be performed or satisfied hereunder at or
prior to the Closing Date; and subsequent to the date of the most
recent financial statements in the Final Memorandum, there shall have
been no material adverse change in the business, condition (financial
or other) or results of operations of the Company and the
Subsidiaries, taken as a whole, except as set forth in, or
contemplated by, the Final Memorandum.
(e) The issuance and sale of the Securities pursuant to
this Agreement shall not be enjoined (temporarily or permanently) and
no restraining order or other injunctive order shall have been issued
or any action, suit or proceeding shall have been commenced with
respect to this Agreement before any court or governmental authority
(including, without limitation, the FCC).
(f) Subsequent to the respective dates as of which
information is given in the Final Memorandum, except in each case as
described in or as contemplated by the Final Memorandum, the Company
and the Subsidiaries shall not have incurred any liabilities or
obligations, direct or contingent, that are material to the Company
and the Subsidiaries taken as a whole, or entered into any
transactions that are material to the business, condition (financial
or other) or results of operations of the Company and the Subsidiaries
taken as a whole, and there shall not have been any change in the
capital stock or long-term indebtedness of the Company that is
material to the business, condition (financial or other) or results of
operations of the Company and the Subsidiaries, taken as a whole.
(g) The Initial Purchasers shall have received
certificates, dated the Closing Date, signed on behalf of the Company
by its President and Chief Executive Officer and Senior Vice President
and Chief Financial Officer to the effect that:
(i) The representations and warranties of the Company in
this Agreement are true and correct in all material respects as if
made on and as of the Closing Date (other than to the extent any such
representation or warranty is expressly made to a certain date), and
the Company has performed, in all material respects, all covenants and
agreements and satisfied, in
--
all material respects, all conditions on its part to be performed or
satisfied hereunder at or prior to the Closing Date;
(ii) Subsequent to the respective dates as of which
information is given in the Final Memorandum, there has not been any
material adverse change in the business, condition (financial or
other) or results of operations of the Company and the Subsidiaries,
taken as a whole;
(iii) Subsequent to the respective dates as of which
information is given in the Final Memorandum, except in each case as
described in or as contemplated by the Final Memorandum, none of the
Company or any Subsidiary has incurred any liabilities or obligations,
direct or contingent that are material to the Company or the
Subsidiaries taken as a whole, or entered into any transactions that
are material to the business, condition (financial or other) or
results of operations of the Company and the Subsidiaries, taken as a
whole, and there has been no change in the capital stock or long-term
indebtedness of the Company that is material to the business,
condition (financial or other) or results of operations of the Company
and the Subsidiaries taken as a whole; and
(iv) The issuance and sale of the Securities by the
Company has not been enjoined (temporarily or permanently).
(h) On the Closing Date, the Initial Purchasers shall
have received the Registration Rights Agreement executed by the
Company and such agreement shall be in full force and effect at all
times from and after the Closing Date.
(i) The closing under the New Credit Agreement and the
completion of the offering by Chancellor of the Convertible Preferred
Stock shall have occurred concurrently with the closing hereunder on
the Closing Date.
(j) The Colfax Acquisition shall have been consummated
on or prior to the Closing Date.
(k) On or before the Closing Date, the Initial
Purchasers and counsel for the Initial Purchasers shall have received
such further documents, opinions, certificates and schedules or
instruments relating to the business, corporate, legal and financial
affairs of the Company as they shall have heretofore reasonably
requested from the Company.
All such documents, opinions, certificates and schedules
or instruments delivered pursuant to this Agreement
--
will comply with the provisions hereof only if they are reasonably
satisfactory in all material respects to the Initial Purchasers and
counsel for the Initial Purchasers. The Company shall furnish to the
Initial Purchasers such conformed copies of such documents, opinions,
certificates and schedules or instruments in such quantities as the
Initial Purchasers shall reasonably request.
8. Offering of Securities; Restrictions on Transfer.
------------------------------------------------
Each of the Initial Purchasers represents and warrants (as to itself
only) that it is a QIB. Each of the Initial Purchasers agrees with
the Company (as to itself only) that (i) it has not and will not
solicit offers for, or offer or sell, the Securities by any form of
general solicitation or general advertising (as those terms are used
in Regulation D under the Act) or in any manner involving a public
offering within the meaning of Section 4(2) of the Act; and (ii) it
has and will solicit offers for the Securities only from, and will
offer the Securities only to (A) in the case of offers inside the
United States, (x) persons whom the Initial Purchasers reasonably
believe to be QIBs or, if any such person is buying for one or more
institutional accounts for which such person is acting as fiduciary or
agent, only when such person has represented to the Initial Purchasers
that each such account is a QIB, to whom notice has been given that
such sale or delivery is being made in reliance on Rule 144A, and, in
each case, in transactions under Rule 144A or (y) a limited number of
other institutional investors reasonably believed by the Initial
Purchasers to be accredited investors, as defined in Rule 501(a)(1),
(2), (3) or (7) promulgated under the Act that, prior to their
purchase of the Securities, deliver to the Initial Purchasers a letter
containing the representations and agreements set forth in Annex A to
the Final Memorandum and (B) in the case of offers outside the United
States, to persons other than U.S. persons ("foreign purchasers,"
------------------
which term shall include dealers or other professional fiduciaries in
the United States acting on a discretionary basis for foreign
beneficial owners (other than an estate or trust)); provided, however,
-------- -------
that, in the case of this clause (B), in purchasing such Securities
such persons are deemed to have represented and agreed as provided
under the caption "Transfer Restrictions" contained in the Final
Memorandum.
9. Indemnification and Contribution. (a)The Company
--------------------------------
agrees to indemnify and hold harmless each of the Initial Purchasers,
and each person, if any, who controls any of the Initial Purchasers
within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, against any losses, claims, damages or liabilities,
joint or several, to which such Initial
--
Purchaser or such controlling person may become subject under the Act,
the Exchange Act or otherwise, insofar as any such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or
are based upon:
(i) any untrue statement or alleged untrue statement of
any material fact contained in (A) any Memorandum or any amendment or
supplement thereto or (B) any application or other document, or any
amendment or supplement thereto, executed by the Company or based
upon written information furnished by or on behalf of the Company
filed in any jurisdiction in order to qualify the Securities under the
securities or "Blue Sky" laws thereof or filed with any securities
association or securities exchange (each an "Application"); or
-----------
(ii) the omission or alleged omission to state, in any
Memorandum or any amendment or supplement thereto, or any Application,
a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they
were made, not misleading,
and will reimburse, as incurred, each Initial Purchaser and each such
controlling person for any legal or other expenses reasonably incurred
by such Initial Purchaser or such controlling person in connection
with investigating, defending against or appearing as a third-party
witness in connection with any such loss, claim, damage, liability or
action; provided, however, that the Company will not be liable in any
-------- -------
such case to the extent that any such loss, claim, damage, or
liability arises out of or is based upon any untrue statement or
alleged untrue statement or omission or alleged omission made in any
Memorandum or any amendment or supplement thereto, or any Application
in reliance upon and in conformity with written information furnished
to the Company by the Initial Purchasers specifically for use therein;
and provided, further, that the Company will not be liable to an
-------- -------
Initial Purchaser or any person controlling such Initial Purchaser
with respect to any such untrue statement or omission made in any
Preliminary Memorandum that is corrected in the Final Memorandum if
the person asserting any such loss, claim, damage or liability
purchased Securities from such Initial Purchaser in reliance upon a
Preliminary Memorandum but was not sent or given a copy of the Final
Memorandum (as amended or supplemented) at or prior to the written
confirmation of the sale of such Securities to such person, unless
such failure to deliver the Final Memorandum (as amended or
supplemented) was a result of noncompliance by the Company with
Section 5(c) of this Agreement. This indemnity agreement will be in
addition to any liability that the Company may otherwise have to the
indemnified parties.
--
The Company shall not be liable under this paragraph (a) for any
settlement of any claim or action effected without its consent, which
consent shall not be unreasonably withheld or delayed.
(b) Each Initial Purchaser will, not jointly but
severally in proportion to its Initial Purchaser obligation to
purchase Shares hereunder, indemnify and hold harmless the Company,
its directors, its officers and each person, if any, who controls the
Company within the meaning of Section 15 of the Act or Section 20 of
the Exchange Act against any losses, claims, damages or liabilities to
which the Company or any such director, officer or controlling person
may become subject under the Act, the Exchange Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon (i) any untrue
statement or alleged untrue statement of any material fact contained
in any Memorandum or any amendments or supplement thereto, or any
Application or (ii) the omission or the alleged omission to state
therein a material fact required to be stated in any Memorandum or any
amendment or supplement thereto, or any Application, or necessary to
make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the
Company by such Initial Purchaser specifically for use therein; and,
subject to the limitation set forth immediately preceding this clause,
will reimburse, on a monthly basis, any reasonable legal or other
expenses incurred by the Company or any such director, officer or
controlling person in connection with investigating or defending
against or appearing as a third party witness in connection with any
such loss, claim, damage, liability or action in respect thereof.
This indemnity agreement will be in addition to any liability that the
Initial Purchasers may otherwise have to the indemnified parties.
None of the Initial Purchasers shall be liable under this paragraph
(b) for any settlement of any claim or action effected without its
consent, which consent shall not be unreasonably withheld or delayed.
(c) Promptly after receipt by an indemnified party under
paragraphs (a) or (b) above of notice of the commencement of any
action for which such indemnified party is entitled to indemnification
under this Section 9, such indemnified party will, if a claim in
respect thereof is to be made against the indemnifying party under
this Section 9, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party (i) will
not relieve it from any liability under paragraph (a) or (b) above
unless and to the extent it did
--
not otherwise learn of such action and such omission results in the
forfeiture by the indemnifying party of substantial rights and
defenses and (ii) will not, in any event, relieve the indemnifying
party from any obligations to any indemnified party other than the
indemnification obligation provided in paragraphs (a) and (b) above.
In case any such action is brought against any indemnified party, and
it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein and, to the
extent that it may wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel
reasonably satisfactory to such indemnified party; provided, however,
-------- -------
that if (i) the indemnifying party has failed to assume the defense
thereof and employ such counsel or (ii) the named parties to any such
action (including any impleaded parties) include both the indemnifying
party and the indemnified party and the indemnifying party and the
indemnified party shall have been advised by counsel that
representation of such indemnifying party and such indemnified party
by the same counsel would be inappropriate under applicable standards
of professional conduct due to differing interests between them, then,
in each such case, the indemnifying party shall not have the right to
direct the defense of such action on behalf of such indemnified party
or parties and such indemnified party or parties shall have the right
to select separate counsel to defend such action on behalf of such
indemnified party or parties. After notice from the indemnifying
party to such indemnified party of its election so to assume the
defense thereof and approval by such indemnified party of counsel
appointed to defend such action, the indemnifying party will not be
liable to such indemnified party under this Section 9 for any legal or
other expenses, other than reasonable costs of investigation,
subsequently incurred by such indemnified party in connection with the
defense thereof, unless (i) the indemnified party shall have employed
separate counsel in accordance with the proviso to the immediately
preceding sentence (it being understood, however, that in connection
with such action the indemnifying party shall not be liable for the
expenses of more than one separate counsel (in addition to local
counsel) in any one action or separate but substantially similar
actions in the same jurisdiction arising out of the same general
allegations or circumstances, designated by the Initial Purchasers in
the case of paragraph (a) of this Section 9 or the Company in the case
of paragraph (b) of this Section 9, representing the indemnified
parties under such paragraph (a) or paragraph (b), as the case may be,
who are parties to such action or actions) or (ii) the indemnifying
party has authorized in writing the employment of counsel for the
indemnified party at the expense of the indemnifying party. After
such notice from the indemnifying
--
party to such indemnified party, the indemnifying party will not be
liable for the costs and expenses of any settlement of such action
effected by such indemnified party without the consent of the
indemnifying party, unless such indemnified party waived in writing
its rights under this Section 9, in which case the indemnified party
may effect such a settlement without such consent.
(d) In circumstances in which the indemnity agreement
provided for in the preceding paragraphs of this Section 9 is
unenforceable although available by its terms, each indemnifying
party, in order to provide for just and equitable contribution, shall
contribute to the amount paid or payable by such indemnified party as
a result of such losses, claims, damages or liabilities (or actions in
respect thereof) in such proportion as is appropriate to reflect (i)
the relative benefits received by the indemnifying party or parties on
the one hand and the indemnified party on the other from the offering
of the Securities or (ii) if the allocation provided by the foregoing
clause (i) is not permitted by applicable law, not only such relative
benefits but also the relative fault of the indemnifying party or
parties on the one hand and the indemnified party on the other in
connection with the statements or omissions or alleged statements or
omissions that resulted in such losses, claims, damages or liabilities
(or actions in respect thereof). The relative benefits received by
the Company on the one hand and the Initial Purchasers on the other
shall be deemed to be in the same proportion as the total proceeds
from the offering (before deducting expenses) received by the Company
bear to the total discounts and commissions received by the Initial
Purchasers. The relative fault of the parties shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to
state a material fact relates to information supplied by the Company,
on the one hand, or the Initial Purchasers, on the other, the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission, and any other equitable
considerations appropriate in the circumstances. The Company and the
Initial Purchasers agree that it would not be equitable if the amount
of such contribution were determined by pro rata or per capita
allocation or by any other method of allocation that does not take
into account the equitable considerations referred to in the first
sentence of this paragraph (d). Notwithstanding any other provision
of this paragraph (d), the Initial Purchasers shall not be obligated
to make contributions hereunder that in the aggregate exceed the total
discounts and commissions received by the Initial Purchasers under
this Agreement, less the aggregate
--
amount of any damages that the Initial Purchasers have otherwise been
required to pay by reason of the untrue or alleged untrue statements
or the omissions or alleged omissions to state a material fact, and 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. For
purposes of this paragraph (d), each person, if any, who controls
either Initial Purchaser within the meaning of Section 15 of the Act
or Section 20 of the Exchange Act shall have the same rights to
contribution as the Initial Purchasers, and each director of the
Company, each officer of the Company and each person, if any, who
controls the Company within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act shall have the same rights to
contribution as the Company.
10. Survival Clause. The respective representations,
---------------
warranties, agreements, covenants, indemnities and other statements of
the Company, its officers and the Initial Purchasers set forth in this
Agreement or made by or on behalf of them, respectively, pursuant to
this Agreement shall remain in full force and effect, regardless of
(i) any investigation made by or on behalf of the Company, any of its
officers or directors, the Initial Purchasers or any controlling
person referred to in Section 9(a) hereof and (ii) delivery of and
payment for the Securities. The respective agreements, covenants,
indemnities and other statements set forth in Sections 6 and 9 hereof
shall remain in full force and effect, regardless of any termination
or cancellation of this Agreement.
11. Termination. (a)This Agreement may be terminated in
-----------
the sole discretion of the Initial Purchasers by notice to the Company
given prior to the Closing Date in the event that the Company shall
have failed, refused or been unable to perform, in all material
respects, all obligations and satisfy all conditions on its part to be
performed or satisfied hereunder at or prior thereto or, if at or
prior to the Closing Date:
(i) trading in securities generally on the New York
Stock Exchange, the American Stock Exchange or the Nasdaq National
Market shall have been suspended or materially limited;
(ii) a general moratorium on commercial banking
activities in New York shall have been declared by either federal,
state or other governmental authorities;
(iii) there shall have occurred any outbreak or escalation
of hostilities or other international or domestic
--
calamity, crisis or change in political, financial or economic
conditions, the effect of which on the financial markets of the United
States is such as to make it, in the judgment of the Initial
Purchasers, impracticable or inadvisable to commence or continue the
offering of the Securities as contemplated by the Final Memorandum, as
amended as of the date hereof; or
(iv) any securities of the Company shall have been
downgraded or placed on any "watch list" for possible downgrading by
any nationally recognized statistical rating organization.
(b) Termination of this Agreement pursuant to this
Section 11 shall be without liability of any party to any other party
except as provided in Section 10 hereof.
12. Notices. All communications hereunder shall be in
-------
writing and, if sent to the Initial Purchasers, shall be mailed or
delivered or telecopied and confirmed in writing to BT Securities
Corporation, One Bankers Trust Plaza, 000 Xxxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Corporate Finance Department; if sent to
the Company, shall be mailed or delivered or telecopied and confirmed
in writing to the Company at 00000 Xxxxx Xxxxxxx Xxxxxxxxxx, Xxxxx
000, Xxxxxx, Xxxxx 00000, Attention: Xxxxxxx Xxxxxxx.
13. Successors. This Agreement shall inure to the
----------
benefit of and be binding upon the Initial Purchasers and the Company
and their respective successors and legal representatives, and nothing
expressed or mentioned in this Agreement is intended or shall be
construed to give any other person any legal or equitable right,
remedy or claim under or in respect of this Agreement, or any
provisions herein contained; this Agreement and all conditions and
provisions hereof being intended to be and being for the sole and
exclusive benefit of such persons and for the benefit of no other
person except that (i) the indemnities of the Company contained in
Section 9 of this Agreement shall also be for the benefit of any
person or persons who control the Initial Purchasers within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act and
(ii) the indemnities of the Initial Purchasers contained in Section 9
of this Agreement shall also be for the benefit of the directors of
the Company, its officers and any person or persons who control the
Company within the meaning of Section 15 of the Act or Section 20 of
the Exchange Act. No purchaser of Securities from the Initial
Purchasers will be deemed a successor because of such purchase.
14. APPLICABLE LAW. THE VALIDITY AND
--------------
--
INTERPRETATION OF THIS AGREEMENT, AND THE TERMS AND CONDITIONS SET
FORTH HEREIN, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ANY
PROVISIONS RELATING TO CONFLICTS OF LAW.
15. Counterparts. This Agreement may be executed in two
------------
or more counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument.
16. Default of Initial Purchasers. If any Initial
-----------------------------
Purchaser defaults in its obligations to purchase Securities hereunder
and arrangements satisfactory to the non-defaulting Initial Purchasers
and the Company for the purchase of such Securities by other persons
are not made within 36 hours after such default, this Agreement will
terminate without liability on the part of the non-defaulting Initial
Purchaser or the Company, except as provided in Sections 5 and 6. As
used in this Agreement, the term "Initial Purchaser" includes any
person substituted for an Initial Purchaser under this Section.
Nothing herein will relieve a defaulting Initial Purchaser from
liability for its default.
If the foregoing correctly sets forth our understanding,
please indicate your acceptance thereof in the space provided below
for that purpose, whereupon this letter shall constitute a binding
agreement among the Company and the Initial Purchasers.
Very truly yours,
CHANCELLOR RADIO BROADCASTING COMPANY
By: /s/ XXXXXX XXXXXX
---------------------------------------
Name: Xxxxxx Xxxxxx
Title: President and Chief Financial
Officer
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
BT SECURITIES CORPORATION
By: /s/ AUTHORIZED SIGNATORY OF
BT SECURITIES CORPORATION
----------------------------------------
CREDIT SUISSE FIRST BOSTON CORPORATION
By: /s/ AUTHORIZED SIGNATORY OF
CREDIT SUISSE FIRST BOSTON CORPORATION
----------------------------------------
XXXXXXX, SACHS & CO.
By: /s/ AUTHORIZED SIGNATORY OF
XXXXXXX, XXXXX & CO.
----------------------------------------
NATIONSBANC CAPITAL MARKETS, INC.
By: /s/ AUTHORIZED SIGNATORY OF
NATIONSBANC CAPITAL MARKETS, INC.
----------------------------------------
XXXXX XXXXXX INC.
By: /s/ AUTHORIZED SIGNATORY OF
XXXXX XXXXXX INC.
----------------------------------------
SCHEDULE A
Underwriter Number of Shares
----------- ----------------
BT Securities Corporation . . . . . . . . 800,000
Credit Suisse First Boston
Corporation . . . . . . . . . . . . . . 300,000
Xxxxxxx, Sachs & Co. . . . . . . . . . . . 300,000
NationsBanc Capital Markets, Inc. . . . . 300,000
Xxxxx Xxxxxx Inc. . . . . . . . . . . . . 300,000
_________
Total . . . . . . . . . . . . . . . . 2,000,000
=========
SCHEDULE B
Subsidiaries of Chancellor Radio
Broadcasting Company
Chancellor Broadcasting Licensee Company
Trefoil Communications, Inc.
Shamrock Broadcasting Inc.
Shamrock Radio Licenses, Inc.
Shamrock Broadcasting Licenses of Denver, Inc.
Shamrock Broadcasting of Texas, Inc.
