Execution Copy
SFX ENTERTAINMENT, INC.
$350,000,000
9-1/8% SENIOR SUBORDINATED NOTES DUE 2008
PURCHASE AGREEMENT
February 5, 1998
Xxxxxx Brothers Inc.
Xxxxxxx, Xxxxx & Co.
BNY Capital Markets, Inc.
ING Barings
c/x Xxxxxx Brothers Inc.
3 World Financial Center
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
SFX Entertainment, Inc., a Delaware corporation (the
"COMPANY") and each of the entities listed on Schedule I hereto (the
"SUBSIDIARIES") hereby confirms its agreement with each of Xxxxxx Brothers
Inc., Xxxxxxx, Xxxxx & Co., BNY Capital Markets, Inc. and ING Barings
(collectively, the "INITIAL PURCHASERS"), as set forth below.
1. The Notes. Subject to the terms and conditions herein
contained, the Company proposes to issue and sell (the "OFFERING") to the
Initial Purchasers $350,000,000 in aggregate principal amount of its 9-1/8%
Senior Subordinated Notes due 2008 (the "INITIAL NOTES"). The payment of
principal, premium, if any, interest and Liquidated Damages (as defined below),
if any, on the Notes and the Company's 9-1/8% Senior Subordinated Notes due
2008 to be issued in the Exchange Offer referred to below (the "NEW NOTES" and,
together with the Initial Notes, the "NOTES") will be unconditionally
guaranteed on a senior subordinated basis by each of the Subsidiaries listed as
Guarantors on Schedule 1 hereto (collectively, the "GUARANTORS") pursuant to
their guarantees of the Notes (the "SUBSIDIARY GUARANTEES"). The Initial Notes
are to be issued pursuant to an indenture to be dated as of the Closing Date
(the "INDENTURE") among the Company, the Guarantors and The Chase Manhattan
Bank, as trustee (the "TRUSTEE").
Capitalized terms used herein and not otherwise defined are
used as defined in the Offering Memorandum (as defined below) or the Indenture.
Upon original issuance thereof, and until such time as is no
longer required under the applicable requirements of the Securities Act of
1933, as amended (the "SECURITIES ACT"), the Initial Notes (and all securities
issued in exchange therefor or in substitution thereof) shall bear the
following legend:
"THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY HAS
NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT") OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY,
MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING
SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER: (1) REPRESENTS THAT
IT IS (A) A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT) OR (B) NOT A U.S. PERSON AND IS ACQUIRING
THE NOTE EVIDENCED HEREBY IN AN OFFSHORE TRANSACTION; (2) AGREES THAT
IT WILL NOT RESELL OR OTHERWISE TRANSFER THE NOTE EVIDENCED HEREBY
EXCEPT TO (A) THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) A QUALIFIED
INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES
ACT, (C) AN INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO SUCH
TRANSFER, FURNISHES TO THE CHASE MANHATTAN BANK, AS TRUSTEE (OR A
SUCCESSOR TRUSTEE, AS APPLICABLE), A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON
TRANSFER OF THE NOTE EVIDENCED HEREBY (THE FORM OF WHICH LETTER CAN BE
OBTAINED FROM SUCH TRUSTEE OR A SUCCESSOR TRUSTEE, AS APPLICABLE), (D)
OUTSIDE THE UNITED STATES IN COMPLIANCE WITH RULE 904 UNDER THE
SECURITIES ACT, (E) PURSUANT TO THE EXEMPTION FROM REGISTRATION
PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) OR IN
ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT OR (F) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT, AND, IN EACH CASE, IN ACCORDANCE
WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OR ANY OTHER
APPLICABLE JURISDICTION; AND (3) AGREES THAT IT WILL DELIVER TO EACH
PERSON TO WHOM THE NOTE EVIDENCED HEREBY IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IF THE PROPOSED TRANSFER
IS PURSUANT TO CLAUSE (C), (D) OR (E) ABOVE, THE HOLDER MUST, PRIOR TO
SUCH TRANSFER, FURNISH TO THE CHASE MANHATTAN BANK, AS TRUSTEE (OR A
SUCCESSOR TRUSTEE, AS APPLICABLE), SUCH CERTIFICATIONS, LEGAL OPINIONS
OR OTHER INFORMATION AS IT MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH
TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION,"
"UNITED STATES" AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY
REGULATION S UNDER THE SECURITIES ACT."
The Company has prepared a preliminary offering memorandum,
dated January 21, 1998 (the "PRELIMINARY OFFERING MEMORANDUM"), and will
prepare a final offering memorandum to be dated the date hereof (as amended or
supplemented, the "OFFERING MEMORANDUM"), setting forth or including a
description of the terms of the Initial Notes, the terms of the Offering, a
description of the Company and the Subsidiaries and any material developments
relating to the Company and the Subsidiaries occurring after January 21, 1998.
Copies of the Preliminary Offering Memorandum have been, and copies of the
Offering Memorandum will be, delivered by the Company to the Initial Purchasers
pursuant to the terms of this Purchase Agreement (this
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"AGREEMENT"). The Company hereby confirms that it has authorized the use of the
Preliminary Offering Memorandum and the Offering Memorandum in connection with
the offering and resale of the Initial Notes by the Initial Purchasers in
accordance with Section 4 hereof.
Each Initial Purchaser has advised the Company that it will
make offers (the "EXEMPT RESALES") of the Initial Notes purchased by them
hereunder on the terms set forth in the Offering Memorandum, as amended or
supplemented, solely to (i) persons whom the Initial Purchasers reasonably
believe to be qualified institutional buyers ("QUALIFIED INSTITUTIONAL BUYERS")
as defined in Rule 144A under the Securities Act, as such rule may be amended
from time to time ("RULE 144A"), and (ii) to persons other than U.S. Persons in
offshore transactions meeting the requirements of Rule 903 of Regulation S
(such persons specified in clauses (i) and (ii) being referred to herein as the
"ELIGIBLE PURCHASERS"). As used herein, the terms "offshore transaction" and
"U.S. Person" have the respective meanings given to them in Regulation S. Each
Initial Purchaser will offer the Initial Notes to Eligible Purchasers initially
at the price set forth on the cover page of the Offering Memorandum. Such price
may be changed at any time without notice.
Holders (including subsequent transferees) of the Initial
Notes will have the registration rights set forth in the registration rights
agreement (the "REGISTRATION RIGHTS AGREEMENT"), to be dated the Closing Date.
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, (i) a registration statement under the
Securities Act (the "EXCHANGE OFFER REGISTRATION STATEMENT") relating to the
New Notes to be offered in exchange for the Initial Notes (such offer to
exchange being referred to collectively as the "EXCHANGE OFFER") and, if
required, (ii) a shelf registration statement pursuant to Rule 415 under the
Securities Act (the "SHELF REGISTRATION STATEMENT," and together with the
Exchange Offer Registration Statement, the "REGISTRATION STATEMENTS") relating
to the Exchange Offer and resale of the Initial Notes by certain holders of
such Notes, and to use all commercially reasonable efforts to cause such
Registration Statements to be declared effective.
The Initial Notes will be offered and sold to the Initial
Purchasers without being registered under the Securities Act in reliance on an
exemption from such registration requirements.
It is understood by the parties hereto that (i) the Company
and the other parties thereto have entered into a commitment letter (the
"COMMITMENT LETTER") relating to a new credit agreement (the "NEW CREDIT
AGREEMENT"), (ii) on the Closing Date, the Company will make payment in cash
for the consents and waivers, upon the terms of and subject to the Consent
Solicitation Statement, dated January 7, 1998 (as supplemented by Supplement
No. 1 dated January 28, 1998, the "NOTES CONSENT SOLICITATION"), relating to
the outstanding 10-3/4% Senior Subordinated Notes due 2006 (the "OLD NOTES") of
SFX Broadcasting, Inc. ("BROADCASTING") delivered by the holders thereof
pursuant to the Notes Consent Solicitation, and (iii) on the Closing Date, the
Company will make payment in cash for the consents and waivers, upon the terms
of and subject to the Consent Solicitation Statement, dated January 7, 1998 (as
supplemented by Supplement No. 1 dated January 28, 1998, the "PREFERRED CONSENT
SOLICITATION" and, together with the Notes Consent Solicitation, the "CONSENT
SOLICITATIONS"), relating to the outstanding 12-5/8% Series E Cumulative
Exchangeable Preferred Stock due 2007 (the "OLD PREFERRED") of Broadcasting
delivered by the holders thereof pursuant to the Preferred Consent
Solicitation.
The Initial Purchasers and their direct and indirect
transferees will be entitled to the benefits of the Registration Rights
Agreement, substantially in the form attached hereto as Exhibit A, pursuant to
which the Company and the Guarantors will agree to use their best efforts (i)
to commence, among other things, an
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offer to exchange the Initial Notes for New Notes that have been registered
under the Securities Act, and that otherwise are identical in all respects to
the Initial Notes, or, if required, (ii) to cause a shelf registration
statement to become effective under the Securities Act and to remain effective
for the period designated in such Registration Rights Agreement.
2. Representations and Warranties of the Company and the
Subsidiaries. The Company and each Subsidiary represents and warrants to and
agrees with the Initial Purchasers as follows:
a. Each of the Preliminary Offering Memorandum and the
Offering Memorandum as of its respective date did not, and the Offering
Memorandum as of the Closing Date will not, contain any untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading; provided, however, that the Company and the Subsidiaries make
no representation or warranty as to information contained in or omitted from
the Preliminary Offering Memorandum or the Offering Memorandum in reliance upon
and in conformity with written information furnished to the Company by or on
behalf of the Initial Purchasers specifically for inclusion in the Preliminary
Offering Memorandum or the Offering Memorandum.
b. Assuming the Initial Notes are issued, sold and delivered
under the circumstances contemplated by the Offering Memorandum and this
Agreement, that the representations and warranties and covenants of the Initial
Purchasers contained in Section 4 hereof are true, correct and complete, and
that the Initial Purchasers comply with their covenants in Section 4 hereof,
(i) registration under the Securities Act of the Initial Notes or qualification
of the Indenture in respect of the Initial Notes under the Trust Indenture Act
of 1939, as amended (the "TRUST INDENTURE ACT"), is not required in connection
with the offer and sale of the Initial Notes to the Initial Purchasers in the
manner contemplated by the Offering Memorandum or this Agreement and (ii)
initial resales of the Initial Notes by the Initial Purchasers on the terms and
in the manner set forth in the Offering Memorandum and Section 4 hereof are
exempt from the registration requirements of the Securities Act.
c. No securities of the same class (within the meaning of
Rule 144A(d)(3) under the Securities Act) as the Initial Notes are listed on
any national securities exchange registered under Section 6 of the Securities
Exchange Act of 1934, as amended (the "EXCHANGE ACT") or quoted on an automated
inter-dealer quotation system.
d. Neither the Company nor any affiliate (as defined in Rule
501(b) of Regulation D under the Securities Act ("REGULATION D")) of the
Company has, directly or through any agent (provided that no representation is
made as to the Initial Purchasers or any person acting on their behalf), (i)
sold, offered for sale, solicited offers to buy or otherwise negotiated in
respect of any security (as defined in the Securities Act) that is or will be
integrated with the offering and sale of the Initial Notes in a manner that
would require the registration of the Initial Notes under the Securities Act or
(ii) engaged in any form of general solicitation or general advertising (within
the meaning of Regulation D) in connection with the offering of the Initial
Notes.
e. Neither the Company nor any of the Subsidiaries has taken,
nor will any of them take, directly or indirectly, any action designed to, or
that could reasonably be expected to, cause or result in stabilization or
manipulation of the price of the Initial Notes to facilitate the sale and
resale of the Initial Notes.
f. Each of the Preliminary Offering Memorandum and the
Offering Memorandum, as of their respective dates, contains the information
specified in Rule 144A(d)(4) under the Securities Act.
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g. The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware with full
corporate power and authority to own, lease and operate its properties and to
conduct its business as described in the Preliminary Offering Memorandum and
the Offering Memorandum, is and, after giving effect to the Pending
Acquisitions (as defined in the Offering Memorandum), will be duly registered
and qualified to conduct its business and is and, after giving effect to the
Pending Acquisitions, will be in good standing, in each jurisdiction or place
where the nature of its business requires such registration or qualification,
except where the failure to be so qualified would not have a material adverse
effect or a prospective material adverse effect on the assets, liabilities,
results of operations, management, condition (financial or other), prospects,
properties, business or net worth of the Company and its direct and indirect
subsidiaries, taken as a whole (a "MATERIAL ADVERSE EFFECT").
h. All of the issued shares of capital stock of the Company
have been duly authorized, are validly issued, fully paid and nonassessable and
have been issued in compliance with all applicable federal and state securities
laws.
i. Neither the Company nor any of the Subsidiaries owns or
controls any subsidiaries other than the Subsidiaries. Each Subsidiary is a
corporation duly organized, validly existing and in good standing in the
jurisdiction of its incorporation, with full corporate power and authority to
own, lease and operate its properties and to conduct its business as described
in the Preliminary Offering Memorandum and the Offering Memorandum, is and,
after giving effect to the Pending Acquisitions, will be duly registered and
qualified to conduct its business and is and, after giving effect to the
Pending Acquisitions, will be in good standing, in each jurisdiction or place
where the nature of its business requires such registration or qualification,
except where the failure to be so qualified would not have a Material Adverse
Effect; all of the outstanding shares of capital stock of each of the
Subsidiaries have been duly authorized and validly issued, are fully paid and
nonassessable and free of any preemptive or similar rights, and are owned by
the Company directly, or indirectly through one of the other Subsidiaries, free
and clear of any lien, adverse claim, security interest or other encumbrance
(except for security interests under the existing Broadcasting Credit Agreement
(the "BROADCASTING CREDIT AGREEMENT") and the New Credit Agreement) and have
been issued in compliance with all applicable federal and state securities
laws.
j. The Company and each of the Subsidiaries have full
corporate power and authority to enter into this Agreement, the Indenture, the
Registration Rights Agreement, the indenture governing the Exchange Notes (as
defined in the Offering Memorandum), the Commitment Letter, the New Credit
Agreement, the purchase agreements and other agreements relating to each of the
Pending Acquisitions (the "ACQUISITION DOCUMENTS") (each a "TRANSACTION
DOCUMENT" and collectively the "TRANSACTION DOCUMENTS"), to carry out all the
terms and provisions hereof and thereof to be carried out by them and to issue,
and deliver the Notes and the Subsidiary Guarantees, as applicable, as provided
herein and therein.
k. This Agreement has been duly authorized, validly executed
and delivered by the Company and each Subsidiary and constitutes a legal, valid
and binding agreement of the Company and each of the Subsidiaries (assuming it
is a legal, valid and binding agreement of the Initial Purchasers), enforceable
against the Company and each Subsidiary in accordance with its terms except to
the extent that: (i) the same may be limited by bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or other laws now or
hereafter in effect relating to creditors' rights generally or by general
principles of equity whether asserted in an action at law or in equity and (ii)
rights to indemnity and contribution hereunder may be limited by state or
federal securities laws.
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l. The execution and delivery of the Registration Rights
Agreement have been duly authorized by the Company and each of the Guarantors
and when duly executed and delivered by the Company and each of the Guarantors
(assuming the due execution and delivery by the Initial Purchasers) will
constitute the legal, valid and binding agreement of the Company and each of
the Guarantors (assuming it is a legal, valid and binding agreement of the
Initial Purchasers), enforceable against the Company and each Guarantor in
accordance with its terms except to the extent that: (i) the same may be
limited by bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium or other laws now or hereafter in effect relating to creditors'
rights generally or by general principles of equity whether asserted in an
action at law or in equity and (ii) rights to indemnity and contribution
hereunder may be limited by state or federal securities laws.
m. The execution and delivery of the Indenture have been duly
authorized by the Company and each of the Guarantors and when duly executed and
delivered by the Company and each of the Guarantors (assuming the due execution
and delivery by the Trustee) will constitute the legal, valid and binding
agreement of the Company and each of the Guarantors, enforceable against the
Company and each Guarantor in accordance with its terms except to the extent
that: (i) the same may be limited by bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium or other laws now or hereafter in effect
relating to creditors' rights generally or by general principles of equity
whether asserted in an action at law or in equity and (ii) rights to indemnity
and contribution hereunder may be limited by state or federal securities laws.
n. The Initial Notes have been duly authorized by the Company
and, when duly executed, authenticated, issued and delivered by the Company
upon payment therefor as provided herein, will be validly issued and
outstanding, and will constitute the legal, valid and binding obligations of
the Company, entitled to the benefits of the Indenture and enforceable against
the Company in accordance with their terms except to the extent that: (i) the
same may be limited by bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium or other laws now or hereafter in effect relating to
creditors' rights generally or by general principles of equity whether asserted
in an action at law or in equity and (ii) rights to indemnity and contribution
hereunder may be limited by state or federal securities laws.
o. The New Notes have been duly authorized by the Company
and, when duly executed, authenticated, issued and delivered by the Company
upon exchange for the Initial Notes as provided for in the Registration Rights
Agreement, will be validly issued and outstanding, and will constitute the
legal, valid and binding obligations of the Company, entitled to the benefits
of the Indenture and enforceable against the Company in accordance with their
terms except to the extent that: (i) the same may be limited by bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium or other laws now
or hereafter in effect relating to creditors' rights generally or by general
principles of equity whether asserted in an action at law or in equity and (ii)
rights to indemnity and contribution hereunder may be limited by state or
federal securities laws.
p. The Subsidiary Guarantees to be endorsed on the Initial
Notes have been duly authorized by the Guarantors and, when duly executed,
authenticated, issued and delivered by the Guarantors as provided herein and
when the Initial Notes have been duly executed, authenticated, issued and
delivered upon payment therefor as provided herein, will be validly issued and
outstanding, and will constitute the legal, valid and binding obligations of
each of the Guarantors, entitled to the benefits of the Indenture and
enforceable against the Guarantors in accordance with their terms except to the
extent that: (i) the same may be limited by bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or other laws now
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or hereafter in effect relating to creditors' rights generally or by general
principles of equity whether asserted in an action at law or in equity and (ii)
rights to indemnity and contribution hereunder may be limited by state or
federal securities laws.
q. The Subsidiary Guarantees to be endorsed on the New Notes
have been duly authorized by the Guarantors and, when duly executed,
authenticated, issued and delivered and when the New Notes have been duly
executed, authenticated, issued and delivered by the Guarantors upon exchange
for the Initial Notes as provided for in the Registration Rights Agreement,
will be validly issued and outstanding, and will constitute the legal, valid
and binding obligations of each of the Guarantors, entitled to the benefits of
the Indenture and enforceable against the Guarantors in accordance with their
terms except to the extent that: (i) the same may be limited by bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium or other laws now
or hereafter in effect relating to creditors' rights generally or by general
principles of equity whether asserted in an action at law or in equity and (ii)
rights to indemnity and contribution hereunder may be limited by state or
federal securities laws.
r. The execution and delivery of each of the other
Transaction Documents to which the Company or any Subsidiary is a party have
been duly authorized by the Company and each Subsidiary party thereto and each
of such other Transaction Documents which has been executed prior to or on the
date hereof has been duly executed and delivered by the Company and each
Subsidiary party thereto and is the legal, valid and binding agreement of the
Company and each Subsidiary party thereto (assuming it is a legal, valid and
binding agreement of the other parties thereto), enforceable against the
Company and each Subsidiary party thereto in accordance with its terms except
to the extent that: (i) the same may be limited by bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or other laws now or
hereafter in effect relating to creditors' rights generally or by general
principles of equity whether asserted in an action at law or in equity; and
(ii) rights to indemnity and contribution hereunder may be limited by state or
federal securities laws.
s. The Company has an authorized, issued and outstanding
capitalization as set forth in the Offering Memorandum. The authorized capital
stock of the Company conforms to the description thereof contained in the
Offering Memorandum.
t. The Company's capitalization at September 30, 1997, and
adjusted capitalization at such date after giving effect to the Financing (as
defined in the Offering Memorandum), the Pending Acquisitions, the Spin-Off (as
defined in the Offering Memorandum) and the Broadcasting Merger (as defined in
the Offering Memorandum), is, in each case, as set forth in the Offering
Memorandum under the caption "Capitalization."
u. Except as disclosed in the Preliminary Offering Memorandum
and the Offering Memorandum, there are no outstanding (A) securities or
obligations of the Company or any of the Subsidiaries convertible into or
exchangeable for any capital stock of the Company or any such Guarantor, (B)
warrants, rights or options to subscribe for or purchase from the Company or
any of the Subsidiaries any such capital stock or any such convertible or
exchangeable securities or obligations, or (C) obligations of the Company or
any of the Subsidiaries to issue any shares of capital stock, any such
convertible or exchangeable securities or obligations, or any such warrants,
rights or options.
v. Except as disclosed in the Offering Memorandum and as set
forth in the Registration Rights Agreement, there are no contracts, agreements
or understandings between the Company and any person
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granting such person the right to require the Company to file a registration
statement under the Securities Act with respect to any securities owned or to
be owned by such person or to require the Company to include such securities in
any securities being registered pursuant to any registration statement filed by
the Company under the Securities Act.
w. The consolidated financial statements of the Company and
the Subsidiaries and the financial statements of each of the businesses to be
acquired in the Pending Acquisitions (collectively, the "ACQUISITION ENTITIES")
included in the Preliminary Offering Memorandum and the Offering Memorandum
comply as to form in all material respects with the requirements applicable to
registration statements on Form S-1 under the Securities Act and present fairly
in all material respects the financial position of the Company on a
consolidated basis and of each of the Acquisition Entities, respectively, and
the results of operations and changes in financial condition as of the dates
and for the periods therein specified. Such financial statements have been
prepared in accordance with generally accepted accounting principles
consistently applied throughout the periods involved (except as otherwise noted
therein). The selected financial data set forth under the captions "Offering
Memorandum Summary--Summary Consolidated Financial Data of the Company,"
"Selected Consolidated Financial Data of the Company" and "Unaudited Pro Forma
Condensed Combined Financial Statements" in the Preliminary Offering Memorandum
and the Offering Memorandum fairly present, on the basis stated in the
Preliminary Offering Memorandum and the Offering Memorandum, the information
included. The other financial and statistical information and data set forth in
the Preliminary Offering Memorandum and the Offering Memorandum is, in all
material respects, accurately presented and prepared on a basis consistent with
such financial statements and the books and records of the Company, the
Subsidiaries and the Acquisition Entities, as applicable. The unaudited pro
forma condensed combined financial statements and the related notes thereto
included in the Preliminary Offering Memorandum and the Offering Memorandum
comply as to form in all material respects with the requirements applicable to
pro forma financial statements included in registration statements on Form S-1
under the Securities Act and present fairly, as stated therein, the pro forma
financial position and results of operations at the respective dates and for
the respective periods indicated. The pro forma adjustments are factually
supportable. All adjustments necessary to fairly present this pro forma
information have been made.
x. Each of Ernst & Young LLP, Xxxxxx Xxxxxxxx LLP and Price
Waterhouse LLP, who have certified certain financial statements of the Company,
its consolidated subsidiaries and the Acquisition Entities, and whose reports
appear in the Preliminary Offering Memorandum and the Offering Memorandum, were
independent public accountants under Rule 101 of AICPA's Code of Professional
Conduct and its interpretations and rulings during the periods covered by the
financial statements on which they reported contained in the Preliminary
Offering Memorandum and the Offering Memorandum.
y. Subsequent to the date of the most recent balance sheet
for each of the Company, the Subsidiaries and each of the Acquisition Entities
included in the Preliminary Offering Memorandum and the Offering Memorandum,
except as set forth in the Preliminary Offering Memorandum and the Offering
Memorandum, (i) none of the Company, any of the Subsidiaries or any Acquisition
Entity has incurred any liabilities or obligations, direct or contingent, or
entered into any transaction not in the ordinary course of business, except
such as would not have a Material Adverse Effect and (ii) none of the Company,
any of the Subsidiaries or any Acquisition Entity has sustained, since the date
of the latest audited financial statements included in the Preliminary Offering
Memorandum and the Offering Memorandum, any material losses or interferences
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, except such as would not have a Material Adverse
Effect.
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z. Each of the Transaction Documents, the Initial Notes and
the Subsidiary Guarantees conform in all material respects to the respective
statements relating thereto contained in the Preliminary Offering Memorandum
and the Offering Memorandum.
aa. Except as disclosed in the Preliminary Offering
Memorandum and the Offering Memorandum (including, without limitation, the
documents incorporated by reference therein), there are no business
relationships or related party transactions which would be required to be
disclosed therein by Item 404 of Regulation S-K of the Commission and each
business relationship or related party transaction described therein is a fair
and accurate description of the relationships and transactions so described.
bb. None of the Company or the Subsidiaries, nor, to the
Company's knowledge, any of the Acquisition Entities or any director, officer,
agent, employee or other person associated with or acting on behalf of the
Company or any of the Subsidiaries, has used any corporate funds during the
last five years for any unlawful contribution, gift, entertainment or other
unlawful expense relating to political activity; made any 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, as amended; or made any bribe, rebate, payoff, influence payment,
kickback or other unlawful payment, except such as would not have a Material
Adverse Effect.
cc. Except as disclosed in the Preliminary Offering
Memorandum and the Offering Memorandum, the execution, delivery and performance
of this Agreement, the execution, delivery and performance of the other
Transaction Documents, and the consummation by the Company and the Subsidiaries
of the transactions contemplated hereby and thereby will not (A) require any
consent, approval, authorization or other order (which has not been obtained)
of any court, regulatory body, administrative agency or other governmental body
except such as may be required under the Securities Act, the Exchange Act, the
Trust Indenture Act, securities regulatory bodies (including self-regulatory
bodies), securities exchanges or the securities or Blue Sky laws of the various
states and under the Xxxx-Xxxxx-Xxxxxx Anti-Trust Improvement Act of 1976; (B)
conflict with or constitute a breach of any of the terms or provisions of, or a
default under, the charter or by-laws of the Company or any of the
Subsidiaries; (C) require any consent or approval (which has not been obtained)
of the parties to, or conflict with or constitute a breach of any of the terms
or provisions of, or a default under, any agreement or other instrument to
which the Company or any of the Subsidiaries is a party or by which the Company
or any of the Subsidiaries or their respective property is bound; (D) violate
or conflict with any laws or administrative regulations, rulings of court,
decrees applicable to the Company, any of the Subsidiaries or their respective
property; or (E) result in the creation or imposition of any lien (other than
under the New Credit Agreement) on any asset of the Company or any of the
Subsidiaries, except, in the case of (A), (C), (D), or (E) above, such as would
not, either singly or in the aggregate, have a Material Adverse Effect.
dd. Except as disclosed in the Preliminary Offering
Memorandum and the Offering Memorandum, each of the Company, the Subsidiaries
and the Acquisition Entities is operating in material compliance with all (and
has not violated any) laws, regulations, administrative orders or rulings or
court decrees applicable to it or to any of its property (including without
limitation those relating to broadcast operations, environmental, safety or
similar matters, federal or state laws relating to the hiring, promotion or pay
of employees), except for violations which would not have a Material Adverse
Effect.
ee. Except as, singly or in the aggregate, would not have a
Material Adverse Effect, (i) the Company and the Subsidiaries, have (A) such
permits, licenses, franchises and authorizations of
- 9 -
governmental or regulatory authorities ("PERMITS") as are necessary to own,
lease and operate their properties and to conduct their businesses as presently
conducted, and (B) fulfilled and performed all of their material obligations
with respect to the Permits, and (ii) no event has occurred that would allow,
or after notice or lapse of time would allow, revocation or termination of any
Permit or that would result in any other material impairment of the rights
granted to the Company or any of the Subsidiaries under any Permit, and (iii)
neither the Company nor any Subsidiary has any reason to believe that any
governmental body or agency is considering limiting, suspending or revoking any
Permit.
ff. No legal or governmental proceedings are pending to which
the Company, any of the Subsidiaries or any of the Acquisition Entities is a
party or to which the property of the Company, any of the Subsidiaries or any
of the Acquisition Entities is subject that would be required to be described
in a registration statement on Form S-1 under the Securities Act and are not
described in the Preliminary Offering Memorandum and the Offering Memorandum,
and no such proceedings have been threatened against the Company, any of the
Subsidiaries or any of the Acquisition Entities or with respect to any of their
respective properties; and no contract or other document would be required to
be described in a registration statement on Form S-1 under the Securities Act
that is not described in the Preliminary Offering Memorandum and the Offering
Memorandum.
gg. None of the Company, the Subsidiaries or, to the
knowledge of the Company, the sellers of the Acquisition Entities is in breach
or violation of any of the terms or provisions of any indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument to which the Company,
any of the Subsidiaries or, to the knowledge of the Company, any of sellers of
the Acquisition Entities, as applicable, is a party or by which the Company,
any of the Subsidiaries or, to the knowledge of the Company, any of the sellers
of the Acquisition Entities, as applicable, is bound or to which any of the
property or assets of the Company, any of the Subsidiaries or, to the knowledge
of the Company, any of sellers of the Acquisition Entities, as applicable, is
subject, nor is the Company, any of the Subsidiaries or, to the knowledge of
the Company, any of the sellers of the Acquisition Entities in violation of the
provisions of its charter, by-laws, operating agreement or other organizational
documents or any statute or any judgment, order, rule or regulation of any
court or governmental agency or body having jurisdiction over the Company, any
of the Subsidiaries, to the knowledge of the Company, any of the sellers of the
Acquisition Entities or any of their properties or assets (except to the extent
any such conflict, breach, violation or default is cured at or prior to the
Closing Date and within the grace period applicable thereto or would not have a
Material Adverse Effect).
hh. Each of the Company, the Subsidiaries and the sellers of
each of the Acquisition Entities has (i) good title to all of the properties
and assets owned by them as described in the Preliminary Offering Memorandum
and the Offering Memorandum, free and clear of all liens, charges, encumbrances
or restrictions (except security interests under the Broadcasting Credit
Agreement and the New Credit Agreement), except as would not have a Material
Adverse Effect and (ii) peaceful and undisturbed possession in all material
respects under all material leases to which such person is a party as lessee,
except as would not have a Material Adverse Effect.
ii. The Company, the Subsidiaries and the sellers of each of
the Acquisition Entities own or possess adequate rights to use all material
trademarks, service marks, tradenames, trademark registrations, service mark
registrations and copyrights necessary for the conduct of their businesses, and
to the Company's knowledge, the conduct of their businesses will not conflict
with, and neither the Company nor any of the Subsidiaries has received any
notice of any claim of conflict with, any such rights of others (except in any
such case for any conflict that would not have a Material Adverse Effect).
- 10 -
jj. Each of the Company, the Subsidiaries and the Acquisition
Entities 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 ERISA) has occurred with
respect to any "pension plan" (as defined in ERISA) for which the Company or
any Subsidiary would have any liability; none of the Company or the
Subsidiaries has incurred or expects to incur liability under (i) Title IV of
ERISA with respect to termination of, or withdrawal from, any "pension plan" or
(ii) Section 412 or 4971 of the Internal Revenue Code of 1986, as amended,
including the regulations and published interpretations thereunder (the
"CODE"); and each "pension plan" for which the Company or any Subsidiary would
have any liability 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, except, in each case, as would not have a Material Adverse
Effect.
kk. There is (i) no material unfair labor practice complaint
pending against the Company, any of the Subsidiaries or any of the Acquisition
Entities, or, to the best knowledge of the Company, threatened against any of
them, before the National Labor Relations Board or any state or local labor
relations board, and no significant grievance or significant arbitration
proceeding arising out of or under any collective bargaining agreement is so
pending against the Company, any of the Subsidiaries or any of the Acquisition
Entities, or, to the best knowledge of the Company, threatened against any of
them, (ii) no material strike, labor dispute, slowdown or stoppage pending
against the Company, any of the Subsidiaries or any of the Acquisition Entities
nor, to the best knowledge of the Company, threatened against the Company, any
of the Subsidiaries or any of the Acquisition Entities and (iii) to the best
knowledge of the Company, no union representation question existing with
respect to the employees of the Company, any of the Subsidiaries or any of the
Acquisition Entities and, to the best knowledge of the Company, no union
organizing activities are taking place, except, in each case, as would not have
a Material Adverse Effect.
ll. The Company and each of the Subsidiaries has reviewed the
effect of Environmental Laws (as defined below) and the disposal of hazardous
or toxic substances, wastes, pollutants and contaminants on the business,
assets, operations and properties of the Company, each of the Subsidiaries and
each of the Acquisition Entities, as applicable, and identified and evaluated
associated costs and liabilities (including, without limitation, any material
capital and operating expenditures required for clean-up, closure of properties
and compliance with Environmental Laws, all permits, licenses and approvals,
all related constraints on operating activities and all potential liabilities
to third parties). On the basis of such reviews, the Company has reasonably
concluded that such associated costs and liabilities would not have a Material
Adverse Effect. None of the Company, the Subsidiaries or the Acquisition
Entities has violated any environmental, safety or similar law or regulation
applicable to it or its business or property relating to the protection of
human health and safety, the environment or hazardous or toxic substances or
wastes, pollutants or contaminants ("ENVIRONMENTAL LAWS"), lacks any permit,
license or other approval required of it under applicable Environmental Laws or
is violating any term or condition of such permit, license or approval which
could reasonably be expected to, either individually or in the aggregate, have
a Material Adverse Effect.
mm. The Company, the Subsidiaries and the Acquisition
Entities have filed all federal, state and local income and franchise tax
returns required to be filed through the date hereof and have paid, or made
adequate reserve or provision for the payment of, all taxes shown as due
thereon except in any case where such failure would not have a Material Adverse
Effect, and the Company has no knowledge of any tax deficiency that has had (or
would have) a Material Adverse Effect.
- 11 -
nn. The Company and the Subsidiaries (i) make and keep
accurate books and records and (ii) maintain internal accounting controls which
provide reasonable assurance that (A) transactions are executed in accordance
with management's specific or general authorization, (B) transactions are
recorded as necessary to permit preparation of their consolidated financial
statements and to maintain accountability for their assets, (C) access to their
assets is permitted only in accordance with management's specific or general
authorization and (D) the reported accountability for their assets is compared
with existing assets at reasonable intervals.
oo. Neither the Company nor any of the Subsidiaries is (i) an
"investment company" or a company "controlled" by an "investment company"
within the meaning of the Investment Company Act of 1940, as amended, or (ii) a
"holding company" or a "subsidiary company" or an "affiliate" of a holding
company within the meaning of the Public Utility Holding Company Act of 1935,
as amended.
pp. Each of the Company, the Subsidiaries and the Acquisition
Entities has complied with all provisions of Florida Statutes, ss.517.075,
relating to doing business in Cuba.
qq. None of the Company, the Subsidiaries or any agent
thereof acting on behalf of any of them has taken, and none of them will take,
any action that might cause this Agreement or the issuance or sale of the Notes
to violate Regulation G (12 C.F.R. Part 207), Regulation T (12 C.F.R. Part
220), Regulation U (12 C.F.R. Part 221) or Regulation X (12 C.F.R. Part 224) of
the Board of Governors of the Federal Reserve
rr. The Company has delivered to the Initial Purchasers true
and correct, executed copies of each Transaction Document that has been
executed prior to the date hereof and there have been no amendments,
alterations, modifications or waivers thereto or in the exhibits or schedules
thereto other than those as to which the Initial Purchasers shall previously
have been advised and shall not have reasonably objected after being furnished
a copy thereof.
ss. Other than as contemplated by this Agreement, the
Transaction Documents and the Preliminary Offering Memorandum and the Offering
Memorandum, there is no broker, finder or other party that is entitled to
receive from the Company or any of the Subsidiaries any brokerage or finder's
fee or other fee or commission as a result of any of the transactions
contemplated by this Agreement or any of the Transaction Documents.
tt. None of the Company or any of its affiliates or any
person acting on its or their behalf (other than the Initial Purchasers) has
engaged or will engage during the applicable restricted period in any directed
selling efforts within the meaning of Rule 902(b) of Regulation S with respect
to the Notes, and the Company and its affiliates and all persons acting on its
or their behalf (other than the Initial Purchasers) have complied with and will
comply with the offering restrictions requirements of Regulation S in
connection with the offering of the Notes outside of the United States.
uu. The sale of the Initial Notes pursuant to Regulation S
are "offshore transactions" and are not part of a plan or scheme to evade the
registration provision of the Securities Act.
3. Purchase, Sale and Delivery of the Initial Notes. On the
basis of the representations, warranties, agreements and covenants herein
contained and subject to the terms and conditions herein set forth, the Company
agrees to issue and sell to the Initial Purchasers, and the Initial Purchasers
agree, severally and not jointly, to purchase from the Company, at 97.0% of
their principal amount, the respective aggregate
- 12 -
principal amounts of the Initial Notes set forth in Schedule II hereto.
Certificates in definitive form for the Initial Notes that the Initial
Purchasers have agreed to purchase hereunder, and in such denomination or
denominations and registered in such name or names as the Initial Purchasers
request 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 for
the account of the Initial Purchasers against payment to or upon the order of
the Company of the purchase price by wire transfer in federal (same-day) funds
net of the overnight cost of such funds, which amount shall be agreed upon by
mutual consent of the parties hereto. Such delivery of and payment for the
Initial Notes shall be made at the offices of Xxxxx & XxXxxxxx, 000 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at 9:00 A.M., New York City time, on February
11, 1998, 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 Initial Notes available for checking and
packaging by the Initial Purchasers at the offices in New York, New York of
Xxxxxx Brothers Inc. at least 24 hours prior to the Closing Date. Time shall be
of the essence, and delivery at the time and place specified pursuant to this
Agreement is a further condition of the obligation of the Initial Purchasers
hereunder.
4. Sale and Resale of the Initial Notes by the Initial
Purchasers. Each Initial Purchaser represents and warrants with respect to
itself that:
(a) Such Initial Purchaser is a Qualified Institutional Buyer
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
Initial Notes.
(b) Such Initial Purchaser (i) is not acquiring the Initial
Notes with a view to any distribution thereof or with any present intention of
offering or selling any of the Initial Notes in a transaction that would
violate the Securities Act or the securities laws of any State of the United
States or any other applicable jurisdiction; (ii) in connection with the Exempt
Resales, will solicit offers to buy the Notes only from, and will offer to sell
the Notes only to, the Eligible Purchasers in accordance with this Agreement
and on the terms contemplated by the Offering Memorandum; and (iii) will not
offer or sell the Notes pursuant to, nor has it offered or sold the 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 general
solicitation or general advertising).
(c) The Notes have not been and will not be registered under
the Securities Act and may not be offered or sold within the United States or
to, or for the account or benefit of, U.S. persons except in accordance with
Regulation S under the Securities Act or pursuant to an exemption from the
registration requirements of the Securities Act. The Initial Purchasers
represent that they have not offered, sold or delivered the Notes, and will not
offer, sell or deliver the Notes (i) as part of its distribution at any time or
(ii) otherwise until 40 days after the later of the commencement of the
offering and the Closing Date (such period, the "RESTRICTED PERIOD"), within
the United States or to, or for the account or benefit of U.S. persons, except
in accordance with Rule 144A under the Securities Act or another applicable
exemption. Accordingly, each Initial Purchaser represents and agrees that
neither it, its affiliates nor any persons acting on its or their behalf has
engaged or will engage in any directed selling efforts within the meaning of
Rule 902(b) of Regulation S with respect to the Notes, and it, its affiliates
and all persons acting on its behalf have complied and will comply with the
offering restrictions requirements of Regulation S.
- 13 -
(d) Such Initial Purchaser agrees that, at or prior to
confirmation of a sale of Notes (other than a sale pursuant to Rule 144A), it
will have sent to each distributor, dealer or person receiving a selling
concession, fee or other remuneration that purchases Notes from it during the
Restricted Period a confirmation or notice substantially to the following
effect:
"The Notes covered hereby have not been registered
under the U.S. Securities Act of 1933 (the "Securities Act") and may
not be offered and sold within the United States or to, or for the
account or benefit of, U.S. persons (i) as part of their distribution
at any time or (ii) otherwise until 40 days after the later of the
commencement of the offering or the closing date, except in either
case in accordance with Regulation S (or Rule 144A if available) under
the Securities Act. Terms used above have the meanings assigned to
them in Regulation S."
Such Initial Purchaser further agrees that it has not entered
and will not enter into any contractual arrangement with respect to the
distribution or delivery of the Notes, except with its affiliates or with the
prior written consent of the Company.
(e) Such Initial Purchaser further represents and agrees that
(i) it has not offered or sold and will not offer or sell any Notes to persons
in the United Kingdom prior to the expiry of the period of six months from the
issue date of the Notes, except to persons whose ordinary activities involve
them in acquiring, holding, managing or disposing of investments (as principal
or agent) for the purposes of their businesses or otherwise in circumstances
which have not resulted and will not result in an offer to the public in the
United Kingdom within the meaning of the Public Offers of Securities
Regulations 1995, (ii) it has complied and will comply with all applicable
provisions of the Financial Services Act 1986 with respect to anything done by
it in relation to the Notes in, from or otherwise involving the United Kingdom,
and (iii) it has only issued or passed on and will only issue or pass on in the
United Kingdom any document received by it in connection with the issuance of
the Notes to a person who is of a kind described in Article 11(3) of the
Financial Services Act 1986 (Investment Advertisements) (Exemptions) Order 1996
or is a person to whom the document may otherwise lawfully be issued or passed
on.
(f) Such Initial Purchaser agrees not to cause any
advertisement of the Notes to be published in any newspaper or periodical or
posted in any public place and not to issue any circular relating to the Notes,
except such advertisements as include the statements required by Regulation S.
(g) The sale of the Initial Notes pursuant to Regulation S
are "offshore transactions" and are not part of a plan or scheme to evade the
registration provision of the Securities Act.
(h) Such Initial Purchaser understands that the Company and,
for purposes of the opinions to be delivered to the Initial Purchaser pursuant
to Section 7 hereof, counsel to the Company and counsel to the Initial
Purchasers, will rely upon the accuracy and truth of the foregoing
representations and such Initial Purchasers hereby consent to such reliance.
The terms used in this Section 4 that have meanings assigned
to them in Regulation S are used herein as so defined therein.
- 14 -
Each Initial Purchaser further agrees that, in connection
with the Exempt Resales, it will solicit offers to buy the Initial Notes only
from, and will offer to sell the Initial Notes only to, the Eligible Purchasers
in Exempt Resales.
5. Covenants of the Company and the Subsidiaries. The Company
and each of the Subsidiaries covenant and agree with the Initial Purchasers as
follows:
a. To furnish to the Initial Purchasers, without charge, as
many copies of the Preliminary Offering Memorandum and the Offering Memorandum
and any supplements and amendments thereto as they may reasonably request.
b. Prior to making any amendment or supplement to the
Offering Memorandum, the Company shall furnish a copy thereof to the Initial
Purchasers and counsel to the Initial Purchasers and will not effect any such
amendment or supplement to which the Initial Purchasers shall reasonably object
by notice to the Company after a reasonable period to review, which shall not
in any case be longer than three business days after receipt of such copy.
c. If, at any time prior to completion of the distribution of
the Initial Notes by the Initial Purchasers to purchasers, any event shall
occur or condition exist as a result of which it is necessary, in the
reasonable opinion of counsel for the Initial Purchasers or counsel for the
Company, to amend or supplement the Offering Memorandum in order that the
Offering Memorandum will not include an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements therein
not misleading in light of the circumstances existing at the time it is
delivered to a purchaser, or if it is necessary to amend or supplement the
Offering Memorandum to comply with applicable law, to promptly prepare such
amendment or supplement as may be necessary to correct such untrue statement or
omission or so that the Offering Memorandum, as so amended or supplemented,
will comply with applicable law and to furnish to the Initial Purchasers such
number of copies as they may reasonably request.
d. So long as any Initial Notes are outstanding and are
"Restricted Securities" within the meaning of Rule 144(a)(3) under the
Securities Act, to furnish to holders of the Initial Notes and prospective
purchasers of Initial Notes designated by such holders, upon request of such
holders or such prospective purchasers, the information, if any, required to be
delivered pursuant to Rule 144A(d)(4) under the Securities Act.
e. For a period of five years following the Closing Date, to
furnish to the Initial Purchasers copies of any annual reports, quarterly
reports and current reports filed with the Commission on Forms 10-K, 10-Q and
8-K, or such other similar forms as may be designated by the Commission, and
such other documents, reports and information as shall be furnished by the
Company to the Trustee or to the holders of the Notes pursuant to the
Indenture.
f. The Company, as soon as practicable, will make generally
available to holders of the Initial Notes and to the Initial Purchasers
consolidated earnings statements of the Company and its subsidiaries (which
need not be certified by an independent public accountant) that satisfy the
provisions of Section 11(a) of the Securities Act and Rule 158 thereunder.
g. To use their reasonable best efforts to qualify the
Initial Notes for sale under the securities or Blue Sky laws of such
jurisdictions as the Initial Purchasers reasonably designate and to continue
- 15 -
such qualifications in effect so long as reasonably required for the
distribution of the Initial Notes. The Company and the Subsidiaries will also
arrange for the determination of the eligibility for investment of the Initial
Notes under the laws of such jurisdictions as the Initial Purchasers reasonably
request. Notwithstanding the foregoing, neither the Company nor any of the
Subsidiaries shall be obligated to qualify as a foreign corporation in any
jurisdiction in which it is not so qualified or to file a general consent to
service of process in any jurisdiction.
h. To use their best efforts to permit the Initial Notes to
be designated as eligible for trading in the Private Offerings, Resales and
Trading through Automated Linkages Market ("PORTAL") 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 Initial Notes to be eligible for clearance and settlement through The
Depository Trust Company ("DTC").
i. Not to, and will cause their affiliates not to, sell,
offer for sale or solicit offers to buy or otherwise negotiate in respect of
any security (as defined in the Securities Act) in a transaction that could be
integrated with the sale of the Initial Notes in a manner which would require
the registration under the Securities Act of the Initial Notes.
j. Except following the effectiveness of any Registration
Statement (as defined in the Registration Rights Agreement) and except for such
offers as may be made as a result of, or subsequent to, filing such
Registration Statement or amendments thereto prior to the effectiveness
thereof, not to, and will cause their affiliates not to, solicit any offer to
buy or offer to sell the Initial Notes by means of any form of general
solicitation or general advertising (as those terms are used in Regulation D
under the Securities Act) or in any manner involving a public offering within
the meaning of Section 4(2) of the Securities Act.
k. For a period of 180 days from the date of the Offering
Memorandum, not to, directly or indirectly, sell, offer to sell, contract to
sell, grant any option to purchase, issue any instrument convertible into or
exchangeable for, or otherwise transfer or dispose of (or enter into any
transaction or device which is designed to, or could be expected to, result in
the disposition in the future of), debt securities of the Company or any of the
Subsidiaries, except (i) for the New Notes in connection with the Exchange
Offer, (ii) for debt obligations acquired pursuant to the acquisition of all or
substantially all of the stock or assets of a Permitted Business (as defined in
the Offering Memorandum), (iii) for up to $25.0 million debt securities of the
Company or any of the Subsidiaries or (iv) with the prior written consent of
Xxxxxx Brothers Inc.; provided that, in each case, immediately after giving
effect to such transaction, no default or event of default exists under the
Indenture.
l. To apply the net proceeds from the sale of the Initial
Notes as set forth in the Offering Memorandum.
m. To take such steps as shall be necessary to ensure that
neither the Company nor any of the Subsidiaries shall become (i) an "investment
company" within the meaning of the Investment Company Act of 1940, as amended,
or (ii) a "holding company" or a "subsidiary company" or an "affiliate" of a
"holding company" within the meaning of the Public Utility Holding Company Act
of 1935, as amended.
n. Not to, and will cause their affiliates not to, take any
actions which would require the registration under the Securities Act of the
Initial Notes.
- 16 -
o. If, prior to the completion of the distribution of the
Initial Notes, the Company or any Subsidiary commences engaging in business
with the government of Cuba or with any person or affiliate located in Cuba
after the date the Offering Memorandum or if the information reported in the
Offering Memorandum, if any, concerning the Company's or any Guarantor's
business with Cuba or with any person or affiliate located in Cuba changes in
any material way, the Company will provide the Florida Department of Banking
and Finance (the "DEPARTMENT") notice of such business or change, as
appropriate, in a form acceptable to the Department.
p. To do all things necessary to satisfy the closing
conditions set forth in Section 7 hereof.
6. Expenses. The Company and the Subsidiaries, jointly and
severally, agree to pay all costs and expenses incident to the performance of
their obligations under this Agreement, whether or not the transactions
contemplated herein are consummated or this Agreement is terminated pursuant to
Section 9 hereof, including all costs and expenses incident to (i) the
printing, word processing or other production of documents with respect to the
transactions, including any costs of printing the Preliminary Offering
Memorandum, the Offering Memorandum and any amendment or supplement thereto and
any "Blue Sky" memoranda, (ii) all arrangements relating to the delivery to the
Initial Purchasers of copies of the foregoing documents and the costs of
distributing the foregoing documents, (iii) the fees and disbursements of the
counsel, the accountants and any other experts or advisors retained by the
Company or the Subsidiaries, (iv) preparation (including printing), issuance
and delivery to the Initial Purchasers of the Initial Notes, including
trustee's fees, (v) the qualification of the Initial Notes under state
securities and "Blue Sky" laws, including filing fees and fees and
disbursements of counsel for the Initial Purchasers relating thereto, (vi) the
costs and expenses of DTC and its nominee, including its book-entry system;
(vii) all expenses and listing fees incurred in connection with the application
for quotation of the Initial Notes on the PORTAL market, (viii) expenses of the
Company and the Guarantors in connection with any meetings with prospective
investors in the Initial Notes, (ix) fees and expenses of the Trustee,
including fees and expenses of counsel to the Trustee, (x) any fees charged by
investment rating agencies for the rating of the Initial Notes and (xi) all
other costs and expenses incident to the performance of the obligations of the
Company and the Subsidiaries under this Agreement. If the sale of the Initial
Notes 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 10 hereof
or because of any failure, refusal or inability on the part of the Company or
the Subsidiaries to perform all obligations and satisfy all conditions on their
part to be performed or satisfied hereunder other than by reason of a default
by the Initial Purchasers, the Company and the Subsidiaries will reimburse the
Initial Purchasers upon demand (accompanied by documentation) for all
out-of-pocket expenses (including counsel fees and disbursements) that shall
have been incurred by the Initial Purchasers in connection with the proposed
purchase and sale of the Initial Notes. The Company shall not in any event be
liable to the Initial Purchasers for the loss of anticipated profits from the
transactions covered by this Agreement.
7. Conditions of the Initial Purchasers' Obligations. The
obligation of the Initial Purchasers to purchase and pay for the Initial Notes
are, in their sole discretion, subject to the accuracy, when made and on the
Closing Date, of the representations and warranties of the Company and the
Subsidiaries contained herein, to the performance by the Company and the
Subsidiaries of their obligations hereunder, and to each of the following
additional terms and conditions:
- 17 -
a. The Initial Purchasers shall not have discovered and
disclosed to the Company on or prior to the Closing Date that the Offering
Memorandum contains an untrue statement of a fact which, in the reasonable
opinion of Xxxxxx & Xxxxxxx, counsel for the Initial Purchasers, is material or
omits to state a fact which, in the opinion of such counsel, is material and is
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading.
b. All of the representations and warranties of the Company
and the Subsidiaries contained in this Agreement shall be true and correct on
the date hereof and on the Closing Date with the same force and effect as if
made on and as of the date hereof and the Closing Date, respectively. The
Company and the Subsidiaries shall have performed or complied with all of the
agreements herein contained and required to be performed or complied with by
them at or prior to the Closing Date.
c. The Offering Memorandum shall have been printed and copies
distributed to the Initial Purchasers not later than 9:00 a.m., New York City
time, on the day following the date of this Agreement or at such later date and
time as to which the Initial Purchasers may agree. No stop order suspending the
qualification or exemption from qualification of the Initial Notes in any
jurisdiction referred to in Section 5(g) shall have been issued and no
proceeding for that purpose shall have been commenced or shall be pending or to
the knowledge of the Company and the Subsidiaries threatened.
d. No action shall have been taken and no statute, rule,
regulation or order shall have been enacted, adopted or issued by any
governmental agency which would, as of the Closing Date, have a Material
Adverse Effect; no action, suit or proceeding shall have been commenced and be
pending against or affecting or, to the best knowledge of the Company and the
Subsidiaries, threatened against, the Company or any of the Subsidiaries before
any court or arbitrator or any governmental body, agency or official that, if
adversely determined, could reasonably be expected to result in a Material
Adverse Effect; and no stop order shall have been issued by the Commission or
any governmental agency of any jurisdiction referred to in Section 5(g)
preventing the use of the Offering Memorandum, or any amendment or supplement
thereto, or which could reasonably be expected to have a Material Adverse
Effect.
e. Since the dates as of which information is given in the
Offering Memorandum and other than as set forth in the Offering Memorandum, (i)
there has not been, singly or in the aggregate, any material adverse change, or
any development involving or which may reasonably be expected to involve, a
prospective material adverse change, in the assets, liabilities, results of
operation, management, condition (financial or other), prospects, properties,
business or net worth of the Company, the Subsidiaries and the Acquisition
Entities, taken as a whole (each a "MATERIAL ADVERSE CHANGE"), or any material
change in the long-term debt, or material increase in the short-term debt, from
that set forth in the Offering Memorandum; (ii) no dividend or distribution of
any kind shall have been declared, paid or made by the Company on any class of
its capital stock; (iii) the Company, the Subsidiaries and the Acquisition
Entities shall not have incurred any liabilities or obligations, direct or
contingent, that are material, individually or in the aggregate, to the
Company, the Subsidiaries and the Acquisition Entities, taken as a whole, and
that are required to be disclosed on a balance sheet or notes thereto in
accordance with generally accepted accounting principles and are not disclosed
on the latest balance sheet or notes thereto included in the Offering
Memorandum.
f. The Initial Purchasers shall have received a certificate,
dated the Closing Date, signed on behalf of the Company by (i) Xxxxxx X.X.
Xxxxxxxxx, Executive Chairman, (ii) Xxxxxx X. Xxxxx, General Counsel, Secretary
and Executive Vice President, and (iii) Xxxxxx X. Xxxxxx, Vice President and
Chief Financial Officer, in each case of the Company, confirming that (A) such
officers, have participated in
- 18 -
conferences with other officers and representatives of the Company and the
Subsidiaries, representatives of the independent public accountants of the
Company and the Subsidiaries and representatives of counsel to the Company and
the Subsidiaries at which the contents of the Offering Memorandum and related
matters were discussed and (B) the matters set forth in paragraphs (b), (d) and
(e) and the second sentence of paragraph (c) of this Section 7 are true and
correct as of the Closing Date.
g. All corporate proceedings and other legal matters incident
to the authorization, form and validity of this Agreement, the Notes, the
Subsidiary Guarantees, the Indenture, the Registration Rights Agreement, the
Offering Memorandum and all other legal matters relating to this Agreement and
the transactions contemplated hereby including, without limitation, the Pending
Acquisitions, the Commitment Letter, the New Credit Agreement and the Consent
Solicitations, shall be satisfactory in all material respects to counsel for
the Initial Purchasers, and the Company and the Subsidiaries shall have
furnished to such counsel all documents and information that they may
reasonably request to enable them to pass upon such matters.
x. Xxxxx & XxXxxxxx, counsel for the Company and the
Subsidiaries, shall have furnished to the Initial Purchasers its written
opinion, as counsel to the Company and the Subsidiaries, addressed to the
Initial Purchasers and dated the Closing Date, in form and substance reasonably
satisfactory to the Initial Purchasers, to the effect that:
1. the Company is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Delaware with full corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Offering Memorandum, and is duly registered and qualified to conduct
its business and is in good standing, in each jurisdiction or place
where the nature of its business requires such registration or
qualification, except where the failure to be so qualified would not
have a Material Adverse Effect;
2. all of the issued shares of capital stock of the
Company have been duly authorized, are validly issued, fully paid and
nonassessable;
3. each Subsidiary is a corporation duly organized,
validly existing and in good standing in the jurisdiction of its
incorporation, with full corporate power and authority to own, lease
and operate its properties and to conduct its business as described in
the Offering Memorandum, and is duly registered and qualified to
conduct its business and is in good standing, in each jurisdiction or
place where the nature of its business requires such registration or
qualification, except where the failure to be so qualified would not
have a Material Adverse Effect;
4. all of the outstanding shares of capital stock of
each of the Subsidiaries have been duly authorized and validly issued,
are fully paid and nonassessable and free of any preemptive or similar
rights, and are owned by the Company directly, or indirectly through
one of the other Subsidiaries, to such counsel's knowledge, free and
clear of any lien, adverse claim, security interest or other
encumbrance (except for security interests under the Broadcasting
Credit Agreement and the New Credit Agreement);
5. the Company and each of the Guarantors has full
corporate power and authority to issue, sell and deliver the Initial
Notes to the Initial Purchasers as provided herein and to enter into
this Agreement, the Indenture, the Registration Rights Agreement and
the other Transaction
- 19 -
Documents to which they are a party, to carry out all the terms and
provisions hereof and thereof to be carried out by them and to issue,
and deliver the Notes and the Subsidiary Guarantees, as applicable, as
provided herein and therein;
6. this Agreement has been duly authorized, validly
executed and delivered by the Company and each Subsidiary and
constitutes the legal, valid and binding agreement of the Company and
each of the Subsidiaries (assuming it is a legal, valid and binding
agreement of the Initial Purchasers), enforceable against the Company
and each Subsidiary in accordance with its terms except to the extent
that: (i) the same may be limited by bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or other laws now or
hereafter in effect relating to creditors' rights generally or by
general principles of equity whether asserted in an action at law or
in equity; and (ii) rights to indemnity and contribution hereunder may
be limited by state or federal securities laws;
7. the execution and delivery of the Registration
Rights Agreement have been duly authorized by the Company and each of
the Guarantors and the Registration Rights Agreement has been duly
executed and delivered by the Company and each of the Guarantors and
is the legal, valid and binding agreement of the Company and each
Guarantor (assuming it is a legal, valid and binding agreement of the
Initial Purchasers), enforceable against the Company and each
Guarantor in accordance with its terms except to the extent that: (i)
the same may be limited by bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium or other laws now or hereafter in
effect relating to creditors' rights generally or by general
principles of equity whether asserted in an action at law or in
equity; and (ii) rights to indemnity and contribution hereunder may be
limited by state or federal securities laws;
8. the execution and delivery of the Indenture have
been duly authorized by the Company and each of the Guarantors and the
Indenture has been duly executed and delivered by the Company and each
Guarantor and is the legal, valid and binding agreement of the Company
and each of the Guarantors (assuming it is a legal, valid and binding
agreement of the Trustee), enforceable against the Company and each
Guarantor in accordance with its terms except to the extent that: (i)
the same may be limited by bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium or other laws now or hereafter in
effect relating to creditors' rights generally or by general
principles of equity whether asserted in an action at law or in
equity; and (ii) rights to indemnity and contribution hereunder may be
limited by state or federal securities laws;
9. the Initial Notes have been duly authorized,
executed, issued and delivered by the Company and, assuming due
authentication by the Trustee, are legal, valid and binding
obligations of the Company, entitled to the benefits of the Indenture
and enforceable against the Company in accordance with their terms
except to the extent that: (i) the same may be limited by bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium or other
laws now or hereafter in effect relating to creditors' rights
generally or by general principles of equity whether asserted in an
action at law or in equity; and (ii) rights to indemnity and
contribution hereunder may be limited by state or federal securities
laws;
10. the New Notes have been duly authorized by the
Company, and, when duly executed, authenticated, issued and delivered
by the Company, will be validly issued and outstanding, and will
constitute the legal, valid and binding obligations of the Company,
entitled to the benefits
- 20 -
of the Indenture and enforceable against the Company in accordance
with their terms except to the extent that: (i) the same may be
limited by bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium or other laws now or hereafter in effect
relating to creditors' rights generally or by general principles of
equity whether asserted in an action at law or in equity; and (ii)
rights to indemnity and contribution hereunder may be limited by state
or federal securities laws;
11. the Subsidiary Guarantees endorsed on the
Initial Notes have been duly authorized, executed, issued and
delivered by the Guarantors and are the legal, valid and binding
obligations of each of the Guarantors, entitled to the benefits of the
Indenture and enforceable against the Guarantors in accordance with
their terms except to the extent that: (i) the same may be limited by
bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium or other laws now or hereafter in effect relating to
creditors' rights generally or by general principles of equity whether
asserted in an action at law or in equity; and (ii) rights to
indemnity and contribution hereunder may be limited by state or
federal securities laws;
12. the Subsidiary Guarantees to be endorsed on the
New Notes have been duly authorized by the Guarantors and, when duly
executed, authenticated, issued and delivered by each of the
Guarantors and when the New Notes have been duly executed,
authenticated, issued and delivered, will be validly issued and
outstanding, and will constitute the legal, valid and binding
obligations of each of the Guarantors, entitled to the benefits of the
Indenture and enforceable against the Guarantors in accordance with
their terms except to the extent that: (i) the same may be limited by
bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium or other laws now or hereafter in effect relating to
creditors' rights generally or by general principles of equity whether
asserted in an action at law or in equity; and (ii) rights to
indemnity and contribution hereunder may be limited by state or
federal securities laws;
13. the execution and delivery of each of the other
Transaction Documents to which the Company or any Subsidiary is a
party have been duly authorized by the Company and each Subsidiary
party thereto and each of such other Transaction Documents which has
been executed prior to or on the Closing Date has been duly executed
and delivered by the Company and each Subsidiary party thereto and is
the legal, valid and binding agreement of the Company and each
Subsidiary party thereto (assuming it is a legal, valid and binding
agreement of the other parties thereto), enforceable against the
Company and each Subsidiary party thereto in accordance with its terms
except to the extent that: (i) the same may be limited by bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium or other
laws now or hereafter in effect relating to creditors' rights
generally or by general principles of equity whether asserted in an
action at law or in equity; and (ii) rights to indemnity and
contribution hereunder may be limited by state or federal securities
laws;
14. the descriptions of the Indenture, the Initial
Notes, the Subsidiary Guarantees, the Registration Rights Agreement
and the other Transaction Documents in the Offering Memorandum conform
in all material respects to the terms thereof;
15. the statements set forth under the heading
"Description of the Notes" in the Offering Memorandum, insofar as such
statements purport to summarize certain provisions of the Initial
Notes, provide a fair summary of such provisions; and the statements
in the Offering Memorandum, insofar as they are descriptions of
contracts, agreements or other legal documents, or
- 21 -
refer to statements of law or legal conclusions, are accurate in all
material respects and present fairly the information shown;
16. the statements set forth under the heading
"Description of Other Debt" in the Offering Memorandum, insofar as
such statements purport to summarize certain provisions of the
outstanding indebtedness of the Company, provide a fair summary of
such provisions;
17. to the best knowledge of such counsel, no legal
or governmental proceedings are pending to which the Company or any of
the Subsidiaries is a party or to which the property of the Company or
any of the Subsidiaries is subject that would be required to be
described in a registration statement on Form S-1 under the Securities
Act that is not described in the Offering Memorandum, and, to the best
knowledge of such counsel, no such proceedings have been threatened
against the Company or any of the Subsidiaries or with respect to any
of their respective properties; and, to the best knowledge of such
counsel, no contract or other document would be required to be
described in a registration statement on Form S-1 under the Securities
Act that is not described in the Offering Memorandum;
18. except as disclosed in the Offering Memorandum,
the execution, delivery and performance of this Agreement, the
execution, delivery and performance of the other Transaction Documents
to be entered into on or before the Closing Date by the Company and
the Subsidiaries, and the consummation by the Company and the
Subsidiaries of the transactions contemplated hereby and thereby will
not (A) require any consent, approval, authorization or other order
(which has not been obtained) of any court, regulatory body,
administrative agency or other governmental body, except such as may
be required under the Securities Act, the Exchange Act, the Trust
Indenture Act, securities regulatory bodies (including self-regulatory
bodies), securities exchanges or the securities or Blue Sky laws of
the various states and the Xxxx-Xxxxx-Xxxxxx Anti-Trust Improvement
Act of 1976 with respect to the Pending Acquisitions; (B) conflict
with or constitute a breach of any of the terms or provisions of, or a
default under, the charter or by-laws of the Company or any of the
Subsidiaries; (C) to the best knowledge of such counsel, require any
consent or approval (which has not been obtained) of the parties to,
or conflict with or constitute a breach of any of the terms or
provisions of, or a default under, any agreement or other instrument
to which the Company or any of the Subsidiaries is a party or by which
the Company or any of the Subsidiaries or their respective property is
bound; (D) to the best knowledge of such counsel, violate or conflict
with any laws or administrative regulations, rulings of court or
decrees applicable to the Company, any of the Subsidiaries or their
respective property; or (E) to the best knowledge of such counsel,
result in the creation or imposition of any lien (except pursuant to
the New Credit Agreement) on any asset of the Company or any of the
Subsidiaries, except, in the case of (A), (C), (D) or (E) above, such
as would not, either singly or in the aggregate, have a Material
Adverse Effect;
19. neither the Company nor any of the Subsidiaries
is (i) an "investment company" or a company "controlled" by an
"investment company" within the meaning of the Investment Company Act
of 1940, as amended, or (ii) a "holding company" or a "subsidiary
company" or an "affiliate" of a "holding company" within the meaning
of the Public Utility Holding Company Act of 1935, as amended;
20. assuming that the representations and warranties
of the Initial Purchasers contained in Section 4 hereof are true,
correct and complete and that the Company, the Subsidiaries
- 22 -
and Initial Purchasers comply with their respective covenants in
Sections 4 and 5 hereof, (A) registration under the Securities Act of
the Initial Notes or qualification of the Indenture under the Trust
Indenture Act is not required in connection with the offer and sale of
the Initial Notes to the Initial Purchasers in the manner contemplated
by the Offering Memorandum and this Agreement, and (B) initial resales
of the Initial Notes by the Initial Purchasers on the terms and in the
manner set forth in the Offering Memorandum and Section 4 hereof are
exempt from the registration requirements of the Securities Act;
21. no securities of the same class (within the
meaning of Rule 144A(d)(3) under the Securities Act) as the Initial
Notes are listed on any national securities exchange registered under
Section 6 of the Exchange Act or quoted on an automated inter-dealer
quotation system; and
22. the issuance or sale of the Notes, the issuance
of the Subsidiary Guarantees and the application by the Company of the
net proceeds thereof as set forth in the Offering Memorandum will not
violate Regulation G, T, U or X of the Board of Governors of the
Federal Reserve System.
In addition, such counsel shall state that
it has participated in conferences with officers and other
representatives of the Company and the Subsidiaries, representatives
of the independent public accountants of the Company and the
Subsidiaries and representatives of and counsel for the Initial
Purchasers at which the contents of the Offering Memorandum and
related matters were discussed and, although such counsel has not
undertaken to investigate or verify independently, and does not assume
any responsibility for, the accuracy, completeness or fairness of the
statements contained in the Offering Memorandum, on the basis of the
foregoing, no information has come to the attention of such counsel
that causes such counsel to believe that the Offering Memorandum
(except as to (a) financial statements, including the notes thereto,
(b) statistical data included in the Offering Memorandum and (c) other
financial and accounting data (including, without limitation, the pro
forma financial information), in each case, included therein or
omitted therefrom, as to which no belief need be expressed), as of its
date or the Closing Date, contained or contains an untrue statement of
a material fact or omitted or omits to state a material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
In rendering such opinion, such counsel may
state that its opinion is limited to matters governed by the federal
laws of the United States of America (other than the Communications
Laws), the General Corporation Law of the State of Delaware and the
laws of the State of New York.
x. Xxxxx & XxXxxxxx, counsel for Broadcasting, shall have
furnished to the Initial Purchasers its written opinion, as counsel to
Broadcasting, addressed to the Initial Purchasers and dated the Closing Date,
in form and substance reasonably satisfactory to the Initial Purchasers, to the
effect that except as disclosed in the Offering Memorandum, the execution,
delivery and performance of this Agreement by the Company and the Subsidiaries,
the execution, delivery and performance of the other Transaction Documents to
be entered into by the Company and the Subsidiaries on or before the Closing
Date, and the consummation by the Company and the Subsidiaries of the
transactions contemplated hereby or thereby will not (A) require Broadcasting
to obtain any consent, approval, authorization or other order (which has not
been obtained) of any court, regulatory body, administrative agency or other
governmental body, except such as may be required
- 23 -
under the Securities Act, the Exchange Act, the Trust Indenture Act, securities
regulatory bodies (including self-regulatory bodies), securities exchanges or
the securities or Blue Sky laws of the various states; (B) conflict with or
constitute a breach of any of the terms or provisions of, or a default under,
the charter or by-laws of Broadcasting; (C) to the best knowledge of such
counsel, require any consent or approval (which has not been obtained) of the
parties to, or conflict with or constitute a breach of any of the terms or
provisions of, or a default under, any agreement or other instrument to which
Broadcasting is a party or by which Broadcasting or its respective property is
bound and which is identified on a schedule; (D) to the best knowledge of such
counsel, violate or conflict with any laws or administrative regulations,
rulings of court or decrees applicable to Broadcasting or its respective
property (other than FCC Communications Laws); or (E) to the best knowledge of
such counsel, result in the creation or imposition of any lien on any asset of
Broadcasting, except, in the case of (A), (C), (D) or (E) above, such as would
not, either singly or in the aggregate, have a material adverse effect or a
prospective material adverse effect on the assets, liabilities, results of
operation, management, condition (financial or other), prospects, properties,
business or net worth of Broadcasting and its subsidiaries, taken as a whole.
j. The Initial Purchasers shall have received on the Closing
Date an opinion of Xxxxxx & Xxxxxxx, counsel for the Initial Purchasers, dated
the Closing Date and addressed to the Initial Purchasers, in form and substance
reasonably satisfactory to the Initial Purchasers.
k. With respect to the letters of Xxxxx & Young LLP, Xxxxxx
Xxxxxxxx LLP and Price Waterhouse LLP delivered to the Initial Purchasers
concurrently with the execution of this Agreement (the "INITIAL LETTERS"), the
Company shall have furnished to the Initial Purchasers letters (as used in this
paragraph, the "BRING-DOWN LETTERS") of such accountants, addressed to the
Initial Purchasers and dated such Closing Date (i) confirming that they are
independent public accountants under the guidelines of the American Institute
of Certified Public Accountants, (ii) stating, as of the date of the bring-down
letters (or, with respect to matters involving changes or developments since
the respective dates as of which specified financial information is given in
the Offering Memorandum, as of a date not more than two days prior to the date
of the bring-down letters), the conclusions and findings of such firm with
respect to the financial information and other matters covered by the initial
letters and (iii) confirming in all material respects the conclusions and
findings set forth in the initial letters.
l. The Company, the Guarantors and the Trustee shall have
entered into the Indenture and the Initial Purchasers shall have received
counterparts, conformed as executed, thereof.
m. The Company, the Guarantors and the Initial Purchasers
shall have entered into the Registration Rights Agreement and the Initial
Purchasers shall have received counterparts, conformed as executed, thereof.
n. The Company and each other party thereto shall have
entered into the Commitment Letter (the form and substance of which shall be
reasonably acceptable to the Initial Purchasers) with respect to the New Credit
Agreement and the Initial Purchasers shall have received counterparts,
conformed as executed, thereof and of all other documents and agreements
entered into in connection therewith.
o. The Company shall have entered into each of the
Transaction Documents, the form and substance of each of which shall be
reasonably acceptable to the Initial Purchasers (provided that any Transaction
Document that was entered into and delivered to each of the Initial Purchasers
and their counsel prior to the date of this Agreement shall be deemed
acceptable to the Initial Purchasers in form and substance
- 24 -
for purposes of this Section 7), and the Initial Purchasers shall have received
counterparts, conformed as executed, thereof and of all other documents and
agreements entered into in connection therewith. There shall exist at and as of
the Closing Date, after giving effect to the transactions contemplated by this
Agreement and the other Transaction Documents, no conditions that would
constitute a default (or an event that with notice or the lapse of time, or
both, would constitute a default other than the automatic extension of the
closing of the BGP Acquisition (as defined in the Offering Memorandum)
contemplated in the BGP Agreement (as defined in the Offering Memorandum))
under any of the other Transaction Documents or that would have a Material
Adverse Effect on the Company's ability to consummate the Pending Acquisitions
as described in the Offering Memorandum. Each Transaction Document shall be in
full force and effect.
p. The Company shall have paid cash for, upon the terms of
and subject to the Consent Solicitations, any and all of the consents delivered
by the holders of the Old Notes and the Old Preferred pursuant to the terms of
the Consent Solicitations.
q. Broadcasting, the guarantors of the Old Notes and the
trustee relating to the Old Notes shall have entered into the Supplemental
Indenture and the Initial Purchasers shall have received counterparts,
conformed as executed, thereof.
r. Broadcasting shall have executed and filed the Amended
Series E Certificate and the Initial Purchasers shall have received copies
thereof certified as filed with the Secretary of State of the State of
Delaware.
s. Broadcasting shall have received and delivered to each of
the Initial Purchasers and their counsel the written consent of the lenders
under the Broadcasting Credit Agreement to the Spin-Off, the Offering and any
related transactions.
t. The Company shall have furnished to the Initial Purchasers
a certificate, dated the Closing Date, of its Vice President and Chief
Financial Officer as to the solvency of the Company and the Subsidiaries
following consummation of the transactions contemplated hereby.
u. (i) None of the Company, any of the Subsidiaries or any of
the Acquisition Entities shall have sustained since the date of the latest
audited financial statements included in the Offering Memorandum losses or
interferences with their businesses, taken as a whole, 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, any of the Subsidiaries or any of the Acquisition Entities 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, the Subsidiaries and the Acquisition
Entities, taken as a whole, 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 reasonable judgment of the Initial Purchasers, so
material and adverse as to make it impracticable or inadvisable to proceed with
the offering or the delivery of the Initial Notes being delivered on the
Closing Date on the terms and in the manner contemplated herein and in the
Offering Memorandum.
v. 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 Nasdaq Stock Market's National
Market or in the over-the-counter market shall have been suspended or
- 25 -
materially limited, or minimum prices shall have been established on such
exchange by the Commission, or 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
reasonable judgment of the Initial Purchasers, impracticable or inadvisable to
proceed with the offering or delivery of the Initial Notes being delivered on
the Closing Date on the terms and in the manner contemplated herein and in the
Offering Memorandum.
w. Subsequent to the execution and delivery of this
Agreement, (i) no downgrading shall have occurred in the rating accorded the
Initial Notes or any other debt security of the Company by a nationally
recognized statistical rating organization, as that term is defined by the
Commission for purposes of Rule 436(g)(2) under the Securities Act, 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
Initial Notes or any other debt security of the Company.
x. There shall exist at and as of the Closing Date no
conditions that would constitute a default (or an event that with notice or the
lapse of time, or both, would constitute a default) under the Broadcasting
Credit Agreement or under terms of the New Credit Agreement as set forth in the
Commitment Letter. On the Closing Date, the Commitment Letter shall be in full
force and effect and shall not have been modified or the Company shall have
entered into the New Credit Agreement which shall be in full force and effect
and shall not have been modified.
x. Xxxxxx & Xxxxxxx shall have been furnished with such
documents, in addition to those set forth above, as they may reasonably require
for the purpose of enabling them to review or pass upon
the matters referred to in this Section 7 and in order to evidence the
accuracy, completeness or satisfaction in all material respects of any of the
representations, warranties or conditions herein contained.
z. Prior to the Closing Date, the Company and the
Subsidiaries shall have furnished to the Initial Purchasers such further
information, certificates and documents as the Initial Purchasers may
reasonably request.
All such opinions, certificates, letters, schedules,
documents 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.
8. Indemnification and Contribution.
a. The Company and the Subsidiaries hereby jointly and
severally agree to 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 Securities 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, damage, liability or action
relating to purchases and sales of Notes), to which that Initial Purchaser,
officer, employee or controlling person may become subject, under the
Securities 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
- 26 -
statement of a material fact contained in the Preliminary Offering
Memorandum or the Offering Memorandum or in any amendment or supplement thereto
or (ii) the omission or alleged omission to state in any Preliminary Offering
Memorandum or the Offering Memorandum or in any amendment or supplement thereto
any material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, the Company and the
Subsidiaries will not be liable in any such case to the extent that any such
loss, claim, damage, or liability is finally judicially determined to arise out
of or be based upon any untrue statement or alleged untrue statement or
omission or alleged omission made in such Preliminary Offering Memorandum of
the Offering Memorandum or in any amendment or supplement thereto, or any
Application in reliance upon and in conformity with written information
relating to the Initial Purchasers furnished to the Company by the Initial
Purchasers specifically for use therein; and provided, further, that the
Company and the Subsidiaries will not be liable to the Initial Purchasers or
any person controlling the Initial Purchasers with respect to any such untrue
statement or omission made in any Preliminary Offering Memorandum which is
completely corrected in the Offering Memorandum or any amendment or supplement
thereto if (x) it is finally judicially determined that the person asserting
any such loss, claim, damage or liability purchased the Initial Notes from the
Initial Purchasers in reliance upon the Preliminary Offering Memorandum but was
not sent or given a copy of the Offering Memorandum (as amended or
supplemented) at or prior to the written confirmation of the sale of such
Initial Notes to such person and that the disclosure in the Offering Memorandum
completely corrected such untrue statement or omission made in any Preliminary
Offering Memorandum and (y) the Company notified the Initial Purchasers to send
the Offering Memorandum to such person, unless such failure to deliver the
Offering Memorandum was a result of noncompliance by the Company with Section 5
of this Agreement. The Company and the Subsidiaries shall reimburse each
Initial Purchaser and each such officer, employee or controlling person
promptly upon demand for any legal or other expenses reasonably incurred by
that 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. The foregoing
indemnity agreement is in addition to any liability which the Company or any
Subsidiary may otherwise have to any Initial Purchaser or to any officer,
employee or controlling person of that Initial Purchaser.
b. Each Initial Purchaser, severally and not jointly, shall
indemnify and hold harmless the Company, the Subsidiaries, their officers and
employees, each of their directors, and each person, if any, who controls the
Company or any Subsidiary within the meaning of the Securities Act or the
Exchange 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
Guarantor, director, officer or controlling person may become subject, under
the Securities 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 in any Preliminary Offering
Memorandum or the Offering Memorandum or in any amendment or supplement thereto
or (ii) the omission or alleged omission to state in any Preliminary Offering
Memorandum or the Offering Memorandum, or in any amendment or supplement
thereto, 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, the Subsidiaries, and any such director, officer or controlling
person promptly upon demand for any legal or other expenses reasonably incurred
by the Company, the Subsidiaries, 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 indemnified parties.
- 27 -
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 Purchasers shall have the right to employ
counsel to represent jointly the Initial Purchasers and their 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 Purchasers against the Company or any Subsidiary under this Section 8
if, in the reasonable judgment of the Initial Purchasers, it is advisable for
the Initial Purchasers, officers, employees and controlling persons to be
jointly represented by separate counsel if the defendants in any such action
include both the indemnified party and the indemnifying party and the
indemnified party shall have been advised by counsel that there may be one or
more legal defenses available to it that are different from or additional to
those available to the indemnifying party, and in that event the fees and
expenses of such single separate counsel shall be paid by the Company. 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) 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 Subsidiaries on the one hand and the Initial
Purchasers on the other from the offering of the Initial 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 Subsidiaries on the one hand and the Initial Purchasers 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 considerations. The relative benefits received by the
Company and the Subsidiaries
- 28 -
on the one hand and the Initial Purchasers 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 Initial Notes purchased under this Agreement (before
deducting expenses) received by the Company, on the one hand, and the total
discounts and commissions received by the Initial Purchasers with respect to
the Initial Notes purchased under this Agreement, on the other hand, bear to
the total gross proceeds from the offering of the Initial Notes under this
Agreement, in each case as set forth in the table on the cover page of 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 Subsidiaries or the Initial Purchasers, the intent of the
parties and their relative knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company, the Subsidiaries
and the Initial Purchasers agree that it would not be just and equitable if
contributions pursuant to this Section 8(d) were to be determined by pro rata
allocation (even if the Initial Purchasers were treated as one entity for such
purpose) or by any other method of allocation which does not take 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 shall be deemed to
include, for purposes of this Section 8(d), 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(d), no Initial Purchaser shall be required to contribute any amount
in excess of the amount by which the total price at which the Initial Notes
purchased by it was resold to Eligible Purchasers 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 Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The Initial
Purchasers' obligations to contribute as provided in this Section 8(d) are
several in proportion to their respective underwriting obligations and not
joint.
e. The Initial Purchasers severally confirm and the Company
acknowledges that the stabilization legend on page iii and the information set
forth in the 1st through the 9th and the 13th paragraphs under the caption
"Plan of Distribution" in the Offering Memorandum constitute the only
information concerning such Initial Purchasers furnished in writing to the
Company by or on behalf of the Initial Purchasers specifically for inclusion in
the Offering Memorandum.
9. Survival Clause. The respective representations,
warranties, agreements, covenants, indemnities and other statements of the
Company, the Subsidiaries, their 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, the Subsidiaries, any of
their officers or directors, the Initial Purchasers or any controlling person
referred to in Section 8 hereof and (ii) delivery of and payment for the
Initial Notes. The respective agreements, covenants, indemnities and other
statements set forth in Sections 5 and 8 hereof shall remain in full force and
effect, regardless of any termination or cancellation of this Agreement.
10. 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 or the Subsidiaries shall
have failed, refused or been unable to perform all obligations and satisfy all
conditions on its part to be performed or satisfied hereunder at or prior
thereto or, if at or prior to the Closing Date:
- 29 -
i) the Company, any Subsidiary or any Acquisition Entity
shall have sustained any loss or interference with respect to its businesses or
properties from fire, flood, hurricane, accident or other calamity, whether or
not covered by insurance, or from any labor dispute or any legal or
governmental proceeding, which loss or interference, in the sole reasonable
judgment of the Initial Purchasers, has had or has a Material Adverse Effect or
there shall have been, in the sole reasonable judgment of the Initial
Purchasers, any Material Adverse Change, except in each case as described in or
contemplated by the Offering Memorandum (exclusive of any amendment or
supplement thereto);
ii) trading in securities generally on the New York Stock
Exchange or The Nasdaq Stock Market's National Market or in the
over-the-counter market shall have been suspended or materially limited, or
minimum prices shall have been established on such exchange by the Commission,
or by such exchange or by any other regulatory body or governmental authority
having jurisdiction;
iii) a banking moratorium shall have been declared by federal
or state authorities;
iv) 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;
v) (a) a downgrading shall have occurred in the rating
accorded the Initial Notes or any other debt security of the Company by a
nationally recognized statistical rating organization, as that term is defined
by the Commission for purposes of Rule 436(g)(2) under the Securities Act, or
(b) any such organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, its rating of any
of the Initial Notes or any other debt security of the Company; or
vi) 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 reasonable judgment of the Initial Purchasers,
impracticable or inadvisable to proceed with the offering or delivery of the
Initial Notes being delivered on the Closing Date on the terms and in the
manner contemplated herein and in the Offering Memorandum.
(b) Termination of this Agreement pursuant to this Section 10
shall be without liability of any party to any other party except as provided
in Section 9 hereof.
11. 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 Xxxxxx Brothers Inc., 3 World Financial
Center, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate
Finance Department, with a copy to Xxxxxx & Xxxxxxx, 000 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Xxxxxxxxx: Xxxx X. Xxxxxxxxx; if sent to the Company or
the Subsidiaries, shall be mailed or delivered or telecopied and confirmed in
writing to the Company at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxxx X. Xxxxx, Esq., with a copy to Xxxxx & XxXxxxxx, 000 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx X. Xxxxxxxx, Esq.
12. Successors. This Agreement shall inure to the benefit of
and be binding upon the Initial Purchasers, 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;
- 30 -
this Agreement and all conditions and provisions hereof being intended to be
and being for the sole and exclusive benefit of such persons and for the
benefit of no other person except that (i) the indemnities of the Company and
the Subsidiaries contained in Section 8 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 Securities Act or Section 20 of the Exchange Act
and (ii) the indemnities of the Initial Purchasers contained in Section 8 of
this Agreement shall also be for the benefit of any person or persons who
control the Company or the Subsidiaries within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act. No purchaser of Initial Notes
from the Initial Purchasers will be deemed a successor because of such
purchase.
13. 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.
14. 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.
[Purchase Agreement signature pages follow]
- 31 -
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 between the
Company, the Subsidiaries and the Initial Purchasers.
Very truly yours,
SFX ENTERTAINMENT, INC.
By: /s/ Xxxxxx X. Xxxxx
----------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: General Counsel, Executive Vice President
and Secretary
ATLANTA CONCERTS, INC.
By: /s/ Xxxxxx X. Xxxxx
----------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President and Secretary
ARDEE FESTIVALS N.J., INC.
By: /s/ Xxxxxx X. Xxxxx
----------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President and Secretary
ARDEE PRODUCTIONS, LTD.
By: /s/ Xxxxxx X. Xxxxx
----------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President and Secretary
BEACH CONCERTS, INC.
By: /s/ Xxxxxx X. Xxxxx
----------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President and Secretary
- 32 -
BGP ACQUISITION, LLC
BY: SFX ENTERTAINMENT, INC., its managing member
By: /s/ Xxxxxx X. Xxxxx
----------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: General Counsel, Executive Vice President
and Secretary
BROADWAY CONCERTS, INC.
By: /s/ Xxxxxx X. Xxxxx
----------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President and Secretary
CONNECTICUT AMPHITHEATER DEVELOPMENT CORP.
By: /s/ Xxxxxx X. Xxxxx
----------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President and Secretary
CONNECTICUT CONCERTS, INCORPORATED
By: /s/ Xxxxxx X. Xxxxx
----------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President and Secretary
CONNECTICUT PERFORMING ARTS, INC.
By: /s/ Xxxxxx X. Xxxxx
----------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President and Secretary
- 33 -
CONNECTICUT PERFORMING ARTS PARTNERS
By: NOC, INC., its general partner
By: /s/ Xxxxxx X. Xxxxx
----------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President and Secretary
CONN TICKETING COMPANY
By: NORTHEAST TICKETING COMPANY, its general partner
By: /s/ Xxxxxx X. Xxxxx
----------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President and Secretary
CONTEMPORARY GROUP ACQUISITION CORP.
By: /s/ Xxxxxx X. Xxxxx
----------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President and Secretary
DEER CREEK AMPHITHEATER CONCERTS, INC.
By: /s/ Xxxxxx X. Xxxxx
----------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President and Secretary
DEER CREEK AMPHITHEATER CONCERTS, LP
By: DEER CREEK AMPHITHEATER CONCERTS, INC., its
general partner
By: /s/ Xxxxxx X. Xxxxx
----------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President and Secretary
- 34 -
DELSENER/XXXXXX ENTERPRISES, LTD.
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President and Secretary
DUMB DEAL, INC.
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President and Secretary
EXIT 116 REVISITED, INC.
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President and Secretary
FPI CONCERTS, INC.
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President and Secretary
IN HOUSE TICKETS, INC.
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President and Secretary
IRVING PLAZA CONCERTS, INC.
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Agent
- 35 -
MURAT CENTER CONCERTS, INC.
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President and Secretary
MURAT CENTER CONCERTS, LP
By: MURAT CENTER CONCERTS, INC., its general partner
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President and Secretary
NOC, INC.
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President and Secretary
NORTHEAST TICKETING COMPANY
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President and Secretary
POLARIS AMPHITHEATER CONCERTS, INC.
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President and Secretary
- 36 -
QN CORP.
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President and Secretary
SFX BROADCASTING OF THE MIDWEST, INC.
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President and Secretary
SFX CONCERTS, INC.
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President and Secretary
SFX NETWORK GROUP, LLC
By: SFX ENTERTAINMENT, INC., its managing member
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: General Counsel, Executive Vice President
and Secretary
SOUTHEAST TICKETING COMPANY
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President and Secretary
- 37 -
SUNSHINE CONCERTS, LLC
By: SFX BROADCASTING OF THE MIDWEST, INC., its
managing member
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President and Secretary
SUNSHINE DESIGNS, INC.
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President and Secretary
SUNSHINE DESIGNS, LP
By: SUNSHINE DESIGNS, INC., its general partner
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President and Secretary
SUNTEX ACQUISITION, INC.
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President and Secretary
SUNTEX ACQUISITION, LP
By: SUNTEX ACQUISITION, INC., its general partner
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President and Secretary
- 37 -
WESTBURY MUSIC FAIR, LLC
By: SFX ENTERTAINMENT, INC., its managing member
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: General Counsel, Executive Vice President
and Secretary
- 39 -
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
XXXXXX BROTHERS INC.
By: /s/ X.X. XxXxxxxx
------------------------------
Name: Xxxxxx X. XxXxxxxx
Title:
XXXXXXX, XXXXX & CO.
By: /s/ Xxxxxxx, Xxxxx & Co.
------------------------------
(Xxxxxxx, Xxxxx & Co.)
BNY CAPITAL MARKETS, INC.
By: /s/ Xxxx Xxx .
------------------------------
Name: Xxxx Xxx
Title: Managing Director
ING BARINGS
By: /s/ Xxx Xxxxxx
------------------------------
Name: Xxx Xxxxxx
Title: Vice Chairman
- 40 -
SCHEDULE I
(SCHEDULE OF SUBSIDIARIES AND GUARANTORS)
Atlanta Concerts, Inc.
Ardee Festivals N.J., Inc.
Ardee Productions, Ltd.
Beach Concerts, Inc.
BGP Acquisition, LLC
Broadway Concerts, Inc.
Connecticut Amphitheater Development Corp.
Connecticut Concerts, Incorporated
Connecticut Performing Arts, Inc.
Connecticut Performing Arts Partners
Conn Ticketing Company
Contemporary Group Acquisition Corp.
Deer Creek Amphitheater Concerts, Inc.
Deer Creek Amphitheater Concerts, XX
Xxxxxxxx/Xxxxxx Enterprises, Ltd.
Dumb Deal, Inc.
Exit 116 Revisited, Inc.
FPI Concerts, Inc.
In House Tickets, Inc.
Irving Plaza Concerts, Inc.
Murat Center Concerts, Inc.
Murat Center Concerts, LP
NOC, Inc.
Northeast Ticketing Company
Polaris Amphitheater Concerts, Inc.
QN Corp.
SFX Broadcasting of the Midwest, Inc.
SFX Concerts, Inc.
SFX Network Group, LLC
Southeast Ticketing Company
Sunshine Concerts, LLC
Sunshine Designs, Inc.
Sunshine Designs, LP
Suntex Acquisition, Inc.
Suntex Acquisition, LP
Westbury Music Fair, LLC
SCHEDULE II
PRINCIPAL AMOUNT OF NOTES
INITIAL PURCHASER TO BE PURCHASED
Xxxxxx Brothers Inc. $175,000,000
Xxxxxxx, Xxxxx & Co. 105,000,000
BNY Capital Markets, Inc. 35,000,000
ING Barings 35,000,000
============
TOTAL $350,000,000
