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Exhibit 4.3
ALL AMERICAN COMMUNICATIONS, INC.
10 7/8% SENIOR SUBORDINATED NOTES DUE 2001
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PURCHASE AGREEMENT
October 4, 1996
Xxxxxxx, Xxxxx & Co.
Xxxxx Securities Inc.
c/o Goldman, Sachs & Co.
000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Ladies and Gentlemen:
All American Communications, Inc., a Delaware corporation (the
"Company"), proposes, subject to the terms and conditions stated herein, to
issue and sell to the Purchasers named in Schedule I hereto (the "Purchasers")
an aggregate of $100,000,000 principal amount of the 10 7/8% Senior Subordinated
Notes due 2001 specified above (the "Securities").
1. The Company represents and warrants to, and agrees with, each of the
Purchasers that:
(a) A preliminary offering circular, dated September 17, 1996 (the
"Preliminary Offering Circular") and an offering circular, dated October 4, 1996
(the "Offering Circular") in each case including the international supplement
thereto have been prepared in
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connection with the offering of the Securities. Any reference to the Preliminary
Offering Circular or the Offering Circular, as the case may be, shall be deemed
to refer to and include, without limitation, the Company's Annual Report on Form
10-K for the fiscal year ended December 31, 1995 (the "10-K") the amendments
thereto on Form 10-K/A dated April 29, 1996 and June 18, 1996 and Quarterly
Report on Form 10-Q for the quarter ended June 30, 1996, (the "10-Q") and all
subsequent documents filed with the United States Securities and Exchange
Commission (the "Commission") pursuant to Section 13(a), 13(c) or 15(d) of the
United States Securities Exchange Act of 1934, as amended (the "Exchange Act"),
on or prior to the date of the Preliminary Offering Circular or the Offering
Circular, as the case may be (the "Exchange Reports"), and any reference to the
Preliminary Offering Circular or the Offering Circular, as the case may be, as
amended or supplemented, as of any specified date, shall be deemed to include
the Exchange Act Reports and any documents filed with the Commission pursuant to
Section 13(a), 13(c) or 15(d) of the Exchange Act after the date of the
Preliminary Offering Circular, as the case may be, and prior to such specified
date (the "Incorporated Documents"). The Incorporated Documents, when they were
or are filed with the Commission, conformed or will conform in all material
respects to the applicable requirements of the Exchange Act and the applicable
rules and regulations of the Commission thereunder, and included or will include
at the time required to be filed all exhibits thereto (whether by incorporation
by reference or otherwise) and all contracts and documents of a character
required by the Commission to be filed as exhibits to such reports. The
Preliminary Offering Circular and the Offering Circular and any amendments or
supplements thereto and the Incorporated Documents did not and will not, as of
their respective dates, contain an untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading;
provided, however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with information
furnished in writing to the Company by a Purchaser through Xxxxxxx, Xxxxx & Co.
expressly for use therein;
(b) Neither the Company nor any of All American FDF Holdings, Inc., All
American Television, Inc., All American Television Production, Inc., All
American Entertainment, Inc., All American Fremantle International, Inc., All
American Xxxxxxx, Inc., Fremantle (Deutschland) Fernsehproduktions GmbH, The
Baywatch Production Company, The Baywatch Nights Production Company, The Malibu
Branch Production Company, All American Music Group, Fremantle France
Productions SARL, Xxxx Xxxxxxx Productions, LLC (collectively, the "Significant
Subsidiaries") has sustained since the date of the latest audited financial
statements included in the Offering Circular any material loss or interference
with its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the Offering
Circular; and, since the respective dates as of which information is given in
the Offering Circular, there has not been any change in the capital stock or
long-term debt of the Company and its subsidiaries, other than those changes set
forth in the accountants letter delivered pursuant to Section 7(f) hereof, or
any material adverse change, or any development involving a prospective material
adverse change, in or affecting the general affairs, management, financial
position, stockholders' equity or results of operations of the
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Company and its subsidiaries, in each case, otherwise than as set forth or
contemplated in the Offering Circular;
(c) The Company and its subsidiaries have good and marketable title in
fee simple to each of the items of real property and good title to each of the
items of personal property which are reflected in the latest audited financial
statements included in the Offering Circular (except as disposed of after the
date of such financial statements in the ordinary course of business) or are
referred to in the Offering Circular as being owned by it and valid and
enforceable leasehold interest in each of the items of real and personal
property which are referred to in the Offering Circular as being leased by it,
in each case free and clear of all liens, encumbrances, claims, security
interests and defects, other than those described in the Offering Circular and
as would not, individually or in the aggregate, result in a material adverse
effect on the current or future financial position, stockholders' equity or
results of operations of the Company and its subsidiaries taken as a whole;
(d) The Company and each of its subsidiaries have been duly
incorporated or organized, as the case may be, and is validly existing as a
corporation or limited liability company, as the case may be, in good standing
under the laws of its jurisdiction of incorporation or organization, with full
corporate power and authority to own its properties and conduct its business as
described in the Offering Circular and to execute, deliver and perform its
obligations under this Agreement, the Indenture by and between the Company and
the trustee named therein (the "Trustee") under which the Securities will be
issued (the "Indenture"), the Securities, and the Registration Rights Agreement
by and among the Company and the Purchasers, to be dated as of the Time of
Delivery (as defined below) (the "Registration Rights Agreement") (collectively,
the "Operative Documents"), and to consummate the transactions contemplated
hereby and thereby, including, with respect to the Company, without limitation,
the corporate power and authority to issue, sell and deliver the Securities as
provided herein and therein, and that Company and each of its subsidiaries has
been duly qualified as a foreign corporation or limited liability company, as
the case may be, for the transaction of business and is in good standing under
the laws of each other jurisdiction in which it owns or leases properties or
conducts any business so as to require such qualification, or is subject to no
liability or disability by reason of the failure to be so qualified in any such
jurisdiction, except as would not, individually or in the aggregate, result in a
material adverse effect on the current or future financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries taken as a whole;
(e) As of the date stated therein, the Company has an authorized
capitalization as set forth in the Offering Circular, and all of the issued
shares of capital stock of the Company have been duly and validly authorized and
issued and are fully paid and non-assessable; and all of the issued shares of
capital stock of each subsidiary of the Company have been duly and validly
authorized and issued, are fully paid and non-assessable (to the extent such
concepts are applicable with respect to any subsidiary incorporated or organized
in a non-U.S. jurisdiction) and (except for (i) directors' qualifying shares,
(ii) with respect to Fremantle International, Inc., 1% of its outstanding common
stock, (iii) with respect to Fremantle Hellas SA, a Greek corporation, 40% of
its outstanding common stock, (iv) with respect to Fremantle Hellas EPE, a
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Greek corporation, 5% of its outstanding common stock and (v) Fremantle de
Espana, a Spanish corporation, 0.4% of its common stock) are owned directly or
indirectly by the Company, free and clear of all liens, encumbrances, equities
or claims, other than pursuant to or permitted by the Credit, Security, Guaranty
and Pledge Agreement, dated as of April 13, 1995, by and between the Company,
the guarantors named therein and the lenders named therein (as amended,
including each instrument pursuant to which obligations thereunder are deferred,
extended, renewed, replaced, refunded or refinanced, the "Bank Credit
Agreement"); the Company has no direct or indirect subsidiaries as of the date
hereof except as set forth in the Incorporated Documents, including the exhibits
thereto; and except as set forth in the Offering Circular and the Incorporated
Documents, there are no outstanding subscriptions, rights, warrants, options,
calls, convertible securities, commitments of sale or liens related to or
entitling any person to purchase or otherwise to acquire any shares of the
capital stock of, or other ownership interest in, the Company or any of its
subsidiaries, other than (i) pursuant to or as contemplated by the Bank Credit
Agreement and (ii) liens incurred in the ordinary course of business;
(f) The Securities have been duly authorized and, when issued and
delivered pursuant to this Agreement and the Indenture and authenticated by the
Trustee, will have been duly executed, authenticated, issued and delivered and
will constitute valid and legally binding obligations of the Company,
enforceable against the Company in accordance with their terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization, moratorium,
receivership, and other laws of general applicability relating to or affecting
creditors' rights and to general equity principles and, as to rights of
indemnification, by principles of public policy or federal or state securities
laws relating thereto, and entitled to the benefits provided by the Indenture;
the Indenture has been duly authorized and, when executed and delivered by the
Company and the Trustee, the Indenture will constitute a valid and legally
binding instrument, enforceable in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization, moratorium,
receivership, and other laws of general applicability relating to or affecting
creditors' rights and to general equity principles and, as to rights of
indemnification, by principles of public policy or federal or state securities
laws relating thereto; and the Securities and the Indenture will conform to the
descriptions thereof in the Offering Circular and will be in substantially the
form previously delivered to you;
(g) The Registration Rights Agreement in substantially the form
previously delivered to you, has been duly authorized by the Company and, when
duly executed and delivered by the Company and by you will be the valid and
legally binding obligation of the Company, enforceable against the Company in
accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization, moratorium, receivership, and other laws of general
applicability relating to or affecting creditors' rights and to general equity
principles and, as to rights of indemnification, by principles of public policy
or federal or state securities laws relating thereto; pursuant to the
Registration Rights Agreement, the Company will agree to file with the
Commission, under the circumstances set forth therein, (i) the registration
statement under the United States Securities Act of 1933, as amended (the
"Securities Act"), as provided in Section 5(l) hereof, relating to another
series of debt securities of the Company with terms identical to the Securities
(the "Exchange Securities") to be offered in exchange for the Securities (the
"Exchange Offer"), and (ii) to the extent required by the Registration Rights
Agreement, a
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shelf registration statement pursuant to Rule 415 under the Securities Act
relating to the resale by certain holders of the Securities, and to use its best
efforts to cause such Registration Statements to be declared effective; the
Exchange Securities have been duly and validly authorized for issuance by the
Company, and when issued and authenticated in accordance with the terms of the
Indenture, the Registration Rights Agreement and the Exchange Offer, the
Exchange Securities will be the valid and legally binding obligations of the
Company, enforceable against the Company in accordance with their terms and
entitled to the benefits of the Indenture, subject, as to enforcement, to
bankruptcy, insolvency, reorganization, moratorium, receivership, and other laws
of general applicability relating to or affecting creditors' rights and to
general equity principles and, as to rights of indemnification, by principles of
public policy or federal or state securities laws relating thereto;
(h) This Agreement has been duly and validly authorized, executed and
delivered by the Company and constitutes a valid and legally binding agreement
of the Company;
(i) None of the transactions contemplated by this Agreement (including,
without limitation, the use of the proceeds from the sale of the Securities)
will violate or result in a violation of Section 7 of the Exchange Act, or any
regulation promulgated thereunder, including, without limitation, Regulations G,
T, U and X of the Board of Governors of the Federal Reserve System;
(j) Prior to the date hereof, none of the Company or any of its
subsidiaries or any of their respective officers and directors or, to the best
knowledge of the Company, any person acting on its on or their behalf, has taken
any action which is designed to or which has constituted or which might have
been expected to cause or result in stabilization or manipulation of the price
of any security of the Company in connection with the offering of the
Securities;
(k) The issue and sale of the Securities, the issue of the Exchange
Securities in the Exchange Offer, and the compliance by the Company with all of
the provisions of the Securities, the Exchange Securities, the Indenture, the
Registration Rights Agreement and this Agreement and the consummation of the
transactions herein and therein contemplated will not conflict with or result in
a breach or violation of any of the terms or provisions of, or constitute a
default under (or an event that with notice or the lapse of time, or both, would
constitute a default under), or require a consent under, or result in the
imposition or creation of (or the obligation to create or impose) a lien or an
acceleration of indebtedness pursuant to, any indenture, mortgage, deed of
trust, loan agreement, lease or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which the Company or any of
its subsidiaries is bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject, nor will such action result in
any violation of the provisions of the certificate of incorporation or bylaws of
the Company or any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or any of its
subsidiaries or any of their respective properties or assets; and no consent,
approval, authorization, order, registration or qualification of or with any
such court or governmental agency or body is required for the issue and sale of
the Securities, the issue of the Exchange Securities in the Exchange
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Offer, or the consummation by the Company of the transactions contemplated by
this Agreement, the Indenture, the Securities, the Exchange Securities and the
Registration Rights Agreement, except for the filing of a registration statement
by the Company with the Commission pursuant to the Securities Act pursuant to
Section 5(l) hereof, the filing of a notice on Form D by the Company with the
Commission pursuant to Section 5(h) hereof, such consents, approvals,
authorizations, registrations or qualifications as may be required under state
or foreign securities or Blue Sky laws in connection with the purchase and
distribution of the Securities by the Purchasers and the issue of the Exchange
Securities in the Exchange Offer and, in connection with the Exchange Offer,
qualification of the Indenture under the Trust Indenture Act of 1939, as
amended;
(l) Neither the Company nor any of its subsidiaries is (i) in any
violation of the provisions of its certificate of incorporation or bylaws or, in
the case of a limited liability company, its operating agreement or any other
organizational document; (ii) in default in the performance or observance of any
material obligation, covenant or condition contained in any indenture, mortgage,
deed of trust, loan agreement, lease or other agreement or instrument to which
it is a party or by which it or any of its properties or assets may be bound or
to which any of the property or assets of the Company or any of its subsidiaries
is subject; or (iii) is in violation of any statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction over
the Company or any of its subsidiaries or their respective properties or assets,
except as would not with respect to the matters identified in clauses (ii) and
(iii) of this paragraph, individually or in the aggregate, result in a material
adverse effect on the current or future financial position, stockholders' equity
or results of operations of the Company and its subsidiaries taken as a whole,
and there exists no condition that, with notice or the lapse of time, or both,
would constitute any such default under any such document or instrument, except
as would not, individually or in the aggregate, result in a material adverse
effect on the current or future financial position, stockholders' equity or
results of operations of the Company and its subsidiaries taken as a whole;
(m) The statements set forth in the Offering Circular under the caption
"Description of Notes," insofar as they purport to constitute a summary of the
terms of the Securities, under the captions "Notice to Investors," "Certain
United States Federal Tax Considerations for Non-United States Holders" and
"Offer and Resale," insofar as they purport to describe the provisions of the
laws and documents referred to therein, are accurate and fair in all material
respects;
(n) Other than as set forth in the Offering Circular, there are no
legal or governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or any of its
subsidiaries is the subject which have a reasonable likelihood of being
determined adversely to the Company or any of its subsidiaries, and which, if so
determined, would individually or in the aggregate have a material adverse
effect on the current or future financial position, stockholders' equity or
results of operations of the Company and its subsidiaries taken as a whole,
would interfere with or adversely affect the issuance and sale of the
Securities, the issue of the Exchange Securities and consummation of the
Exchange Offer or would affect the validity of any Operative Document, and, to
the best of the
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Company's knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(o) When the Securities are issued and delivered pursuant to this
Agreement, the Securities will not be of the same class (within the meaning of
Rule 144A under the Securities Act) as securities of the Company which are
listed on a national securities exchange registered under Section 6 of the
Exchange Act or quoted in a U.S. automated inter-dealer quotation system;
(p) The Company is subject to Section 13 or 15(d) of the Exchange Act;
(q) The Company is not, and after giving effect to the offering and
sale of the Securities will not be, an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in the United
States Investment Company Act of 1940, as amended (the "Investment Company
Act");
(r) Neither the Company, its subsidiaries, their respective officers
and directors, nor, to the best knowledge of the Company, any other person
acting on its or their behalf other than the Purchasers, has offered or sold the
Securities by means of any general solicitation or general advertising within
the meaning of Rule 502(c) under the Securities Act or, with respect to
Securities sold outside the United States to non-U.S. persons (as defined in
Rule 902 under the Securities Act), by means of any directed selling efforts
within the meaning of Rule 902 under the Securities Act ("Regulation S") and the
Company, any affiliate of the Company and any person acting on its or their
behalf has complied with and will implement the "offering restriction" within
the meaning of Regulation S;
(s) Within the preceding six months, neither the Company nor any other
person acting on behalf of the Company has offered or sold to any person any
Securities, or any securities of the same or a similar class as the Securities,
other than Securities offered or sold to the Purchasers hereunder. The Company
will take reasonable precautions designed to insure that any offer or sale,
direct or indirect, in the United States or to any U.S. person (as defined in
Rule 902 under the Securities Act) of any Securities or any substantially
similar security issued by the Company, within six months subsequent to the date
on which the distribution of the Securities has been completed (as notified to
the Company by Xxxxxxx, Sachs & Co.), is made under restrictions and other
circumstances reasonably designed not to affect the status of the offer and sale
of the Securities in the United States and to U.S. persons contemplated by this
Agreement as transactions exempt from the registration provisions of the
Securities Act;
(t) Neither the Company nor any of its affiliates does business with
the government of Cuba or with any person or affiliate located in Cuba within
the meaning of Section 517.075, Florida Statutes;
(u) Ernst & Young LLP and Price Waterhouse, LLP, each of whom have
certified certain financial statements and/or certain financial data of the
Company and its subsidiaries, are independent public accountants as required by
the Securities Act and the rules and regulations of the Commission thereunder.
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(v) The Company and each of its subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management's general or specific
authorizations, (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain accountability for assets, (iii) access to
assets is permitted only in accordance with management's general or specific
authorization and (iv) the recorded accountability for assets is compared with
the existing assets at reasonable intervals and appropriate action is taken with
respect thereto;
(w) To the best of knowledge of the Company, neither the Company nor
any of its subsidiaries has violated any environmental, safety or similar law or
regulation applicable to 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 permits,
licenses or other approvals required of them under applicable Environmental Laws
or is violating any term or condition of any such permit, license or approval,
except as would not, individually or in the aggregate, result in a material
adverse effect on the current or future financial position, stockholders' equity
or results of operations of the Company and its subsidiaries taken as a whole;
(x) Except as would not, individually or in the aggregate, have a
material adverse effect on the current or future financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries taken as a whole, (i) the Company and each of its subsidiaries has
all certificates, consents, exemptions, orders, permits, licenses,
authorizations, or other approvals (each, an "Authorization") of and from, and
has made all declarations and filings with, all Federal, state, foreign, local
and other governmental authorities, all self-regulatory organizations and all
courts and other tribunals, necessary or required to engage in its business
currently conducted by it in the manner described in the Offering Circular, (ii)
all such Authorizations are valid and in full force and effect and (iii) the
Company and each of its subsidiaries are in compliance in all material respects
with the terms and conditions of all such Authorizations and with the rules and
regulations of the regulatory authorities and governing bodies having
jurisdiction with respect thereto;
(y) The Company and each of its subsidiaries owns or possesses or has
the enforceable right to use the patents, patent rights, licenses, inventions,
copyrights, know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or procedures),
trademarks, service marks and trade names, performing rights and literary,
dramatic, musical, artistic, personal, private or contract rights (collectively,
the "Intellectual Property") presently employed by them in connection with, and
material, individually or in the aggregate, to the operation of the businesses
now operated by them and as described in the Offering Circular, and neither the
Company nor any of its subsidiaries has received any notice of infringement of
or conflict with asserted rights of others with respect to the foregoing which
has a reasonable likelihood of resulting in an unfavorable decision, ruling or
finding, which, individually or in the aggregate, would result in a material
adverse effect on the current or future financial position, stockholders' equity
or results of operations of the Company and its subsidiaries taken as a whole.
To the best knowledge of the Company, the use of such
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Intellectual Property in connection with the business and operations of the
Company and its subsidiaries does not infringe on the rights of any person,
except as would not, individually or in the aggregate, result in a material
adverse effect on the current or future financial position, stockholders' equity
or results of operations of the Company and its subsidiaries taken as a whole;
(z) The Company and each of its subsidiaries maintains insurance
covering its respective properties, operations, personnel and businesses. Such
insurance insures against such losses and risks as are adequate in accordance
with customary industry practice to protect the Company and its subsidiaries and
their businesses. Neither the Company nor its subsidiaries has received notice
from any insurer or agent of such insurer that substantial capital improvements
or other expenditures will have to be made in order to continue such insurance.
All such insurance is outstanding and duly in force on the date hereof and will
be outstanding and duly in force on the Time of Delivery (as defined);
(aa) Except as described in the Offering Circular and the Incorporated
Documents, there are no holders of securities of the Company who, by reason of
the execution by the Company of this Agreement or any other Operative Document
or the consummation of the transactions contemplated hereby and thereby, have
the right to request or demand the Company register under the Securities Act or
analogous foreign laws and regulations securities held by them (other than
pursuant to (1) the Registration Rights Agreement, (2) the Registration Rights
Agreement dated August 3, 1994 by and between the Company and The Interpublic
Group of Companies, Inc., (3) the Shareholders Agreement dated February 25, 1991
among the Company and the other parties thereto, and (4) the Registration Rights
Agreement dated February 8, 1993 by and between the Company and The Bank of New
York);
(bb) To the best knowledge of the Company, on the date hereof and upon
the issuance of the Securities, the present fair saleable value of the assets of
the Company and its subsidiaries, taken as a whole, exceeds or will exceed the
amount that will be required to be paid on or in respect of the existing debts
and other liabilities (including the maximum amount of liability that may
reasonably be expected to result from contingent liabilities) of the Company and
its subsidiaries as they become absolute and matured and the assets of the
Company and its subsidiaries, taken as a whole, do not and will not constitute
unreasonably small capital to carry out their business as conducted or as
proposed to be conducted. The Company does not intend to, or believe that it
will, incur debts beyond its ability to pay such debts as they mature. The
Company does not intend to permit any of its subsidiaries to incur debts beyond
their respective ability to pay such debts as they mature (other than with
respect to the guarantees by any such subsidiaries of the Company's obligation
under the Bank Credit Agreement);
(cc) Each certificate signed by any officer of the Company and
delivered to the Purchasers or counsel for the Purchasers shall be deemed to be
a representation and warranty by the Company to each Purchaser as to the matters
covered thereby;
(dd) The sale of the Securities in offshore transactions pursuant to
Regulation S is not part of a plan or scheme to evade the registration
provisions of the Securities Act.
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The Company acknowledges that the Purchasers and, for purposes of the
opinions to be delivered to the Purchasers pursuant to Section 7 hereof, counsel
to the Company and counsel to the Purchasers will rely upon the accuracy and
truth of the foregoing representations and the Company hereby consents to such
reliance.
2. Subject to the terms and conditions herein set forth, the Company
agrees to issue and sell to each of the Purchasers, and each of the Purchasers
agrees, severally and not jointly, to purchase from the Company, at a purchase
price of 97.0% of the principal amount thereof, plus accrued interest, if any,
from October 11, 1996 to the Time of Delivery hereunder, the principal amount of
Securities set forth opposite the name of such Purchaser in Schedule I hereto.
3. Upon the authorization by you of the release of the Securities, the
several Purchasers propose to offer the Securities for sale upon the terms and
conditions set forth in this Agreement and the Offering Circular. Each Purchaser
hereby represents and warrants to, and agrees with the Company that:
(a) It will offer and sell the Securities only to: (i) persons who it
reasonably believes are "qualified institutional buyers" ("QIBs") within the
meaning of Rule 144A under the Securities Act in transactions meeting the
requirements of Rule 144A, (ii) institutions which it reasonably believes are
"accredited investors" ("Institutional Accredited Investors") within the meaning
of Rule 501(a)(1), (2), (3) or (7) under the Securities Act or, (iii) upon the
terms and conditions set forth in Annex I to this Agreement;
(b) It is an Institutional Accredited Investor;
(c) It will not offer or sell the Securities by any form of general
solicitation or general advertising, including but not limited to the methods
described in Rule 502(c) under the Securities Act;
(d) The sale of Securities in offshore transactions pursuant to
Regulation S is not part of a plan or scheme to evade the registration
provisions of the Securities Act; and
(e) Such Purchaser also understands that the Company and, for purposes
of the opinions to be delivered to you pursuant to Section 7 hereof, counsel to
the Company and counsel to such Purchasers will rely upon the accuracy and truth
of the foregoing representations and hereby consents to such reliance.
Terms used in this Section 3 that have meanings assigned to them in Regulation S
are used herein as so defined.
4. (a) The Securities to be purchased by each Purchaser hereunder will be
represented by one or more definitive global Securities in book-entry form which
will be deposited by or on behalf of the Company with The Depository Trust
Company ("DTC") or its designated custodian; provided, however, that such
Securities, if any, as Xxxxxxx, Xxxxx & Co. may request upon at least
forty-eight hours' prior to notice to the Company (such request to include the
authorized denominations and the names in which they are to be registered),
shall be
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delivered in definitive certificated form. The Company will deliver the
Securities to Xxxxxxx, Sachs & Co., for the account of each Purchaser, against
payment by or on behalf of such Purchaser of the purchase price therefor by wire
transfer of immediately available funds to the account of the Company, by
causing DTC to credit the Securities to the account of Xxxxxxx, Xxxxx & Co. at
DTC. The Company will cause the certificates representing the Securities to be
made available to Xxxxxxx, Sachs & Co. for checking at least twenty-four hours
prior to the Time of Delivery (as defined below) at the office of DTC or its
designated custodian (the "Designated Office"), or in the case of Securities in
definitive certificated form, at the offices of Xxxxxxx, Xxxxx & Co., 00 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000. The time and date of such delivery and payment
shall be 9:30 a.m., New York City time, on October __ , 1996 or such other time
and date as Xxxxxxx, Sachs & Co. and the Company may agree upon in writing. Such
time and date are herein called the "Time of Delivery."
(b) The documents to be delivered at the Time of Delivery by or on
behalf of the parties hereto pursuant to Section 7 hereof, including the
cross-receipt for the Securities and any additional documents reasonably
requested by the Purchasers pursuant to Section 7(k) hereof, will be delivered
at such time and date at the offices of Xxxxxx & Xxxxxxx, 000 Xxxx Xxxxx Xxxxxx,
Xxxxx 0000, Xxx Xxxxxxx, Xxxxxxxxxx 00000 (the "Closing Location"), and the
Securities will be delivered at the Designated Office, all at the Time of
Delivery. A meeting will be held at the Closing Location at 6:00 p.m., New York
City time, on the New York Business Day next preceding the Time of Delivery, at
which meeting the final drafts of the documents to be delivered pursuant to the
preceding sentence will be available for review by the parties hereto. For the
purposes of this Section 4, "New York Business Day" shall mean each Monday,
Tuesday, Wednesday, Thursday and Friday which is not a day on which banking
institutions in New York are generally authorized or obligated by law or
executive order to close.
5. The Company agrees with each of the Purchasers:
(a) To prepare the Offering Circular in a form approved by you; to make
no amendment or any supplement to the Offering Circular which shall be
reasonably disapproved by you promptly after reasonable notice thereof; and to
furnish you with copies thereof;
(b) Promptly from time to time to take such action as you may
reasonably request to qualify the Securities for offering and sale under the
securities laws of such jurisdictions as you may request and to comply with such
laws so as to permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the distribution of
the Securities, provided that in connection therewith the Company shall not be
required to qualify as a foreign corporation or to file a general consent to
service of process in any jurisdiction;
(c) To furnish the Purchasers with five copies of the Offering Circular
and each amendment or supplement thereto with copies of the independent
accountants' report(s) in the Offering Circular, and copies of any amendment or
supplement containing amendments to the financial statements covered by such
report(s), signed by the accountants, and additional copies thereof in such
quantities as you may from time to time reasonably request, and if, at any
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time prior to the earlier of (i) consummation of the Exchange Offer and (ii)
expiration of nine months after the date of the Offering Circular, any event
shall have occurred as a result of which the Offering Circular as then amended
or supplemented would include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made when such Offering
Circular is delivered, not misleading, or, if it shall be necessary or desirable
during such same period to amend or supplement the Offering Circular, to notify
you and upon your request to prepare and furnish without charge to each
Purchaser as many copies as you may from time to time reasonably request of an
amended Offering Circular or a supplement to the Offering Circular which will
correct such statement or omission or effect such compliance;
(d) During the period beginning from the date hereof and continuing
until the date six months after the Time of Delivery, not to offer, sell
contract to sell or otherwise dispose of, except as provided hereunder any
securities of the Company that are substantially similar to the Securities
(except as contemplated by the Registration Rights Agreement and the Exchange
Offer), including but not limited to any securities that are convertible into or
exchangeable for, or that represent the right to receive, Securities or any such
substantially similar securities without the prior written consent of Xxxxxxx,
Sachs & Co., which consent shall not be unreasonably withheld;
(e) Not to be or become, at any time prior to the expiration of the
earlier of (i) three years after the Time of Delivery or (ii) the date on which
none of the Securities are Transfer Restricted Securities (as defined below), an
open-end investment company, unit investment trust, closed-end investment
company or face-amount certificate company that is or is required to be
registered under Section 8 of the Investment Company Act. For the purposes of
this Section 5(e), "Transfer Restricted Subsidiaries" shall mean each Note,
until the earliest to occur of (a) the date on which such Note is exchanged in
the Exchange Offer and entitled to be resold to the public by the Holder thereof
without complying with the prospectus delivery requirements of the Securities
Act, (b) the date on which such Note has been disposed of in accordance with a
shelf registration statement pursuant to the Registration Rights Agreement, (c)
the date on which such Note is disposed of by a broker-dealer pursuant to the
"Plan of Distribution" contemplated by the exchange offer registration statement
(including delivery of the prospectus contained therein) pursuant to the
Registration Rights Agreement or (d) the date on which such Note is distributed
to the public pursuant to Rule 144 under the Securities Act;
(f) As long as the Securities are outstanding, at any time when the
Company is not subject to Section 13 or 15(d) of the Exchange Act, for the
benefit of holders from time to time of Securities, to furnish at its expense,
upon request, to holders of Securities and prospective purchasers of securities
information (the "Additional Issuer Information") satisfying the requirements of
subsection (d)(4)(i) of Rule 144A under the Securities Act;
(g) If requested by you, to use its best efforts to cause such
Designated Securities to be eligible for the PORTAL trading system of the
National Association of Securities Dealers, Inc.;
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(h) To file with the Commission, not later than 15 days after the Time
of Delivery, five copies of a notice on Form D under the Securities Act (one of
which will be manually signed by a person duly authorized by the Company); to
otherwise comply with the requirements of Rule 503 under the Securities Act; and
to furnish promptly to you evidence of each such required timely filing
(including a copy thereof);
(i) To furnish to the holders of the Securities as soon as practicable
after the end of each fiscal year an annual report (including a balance sheet
and statements of income, stockholders' equity and cash flows of the Company and
its consolidated subsidiaries certified by independent public accountants) and,
as soon as practicable after the end of each of the first three quarters of each
fiscal year (beginning with the fiscal quarter ending after the date of the
Offering Circular), consolidated summary financial information of the Company
and its subsidiaries for such quarter in reasonable detail (which may be in the
form of an annual report on form 10-K or a quarterly report on form 10-Q as
prescribed by the SEC);
(j) During a period of five years from the date of the Offering
Circular, to furnish to you copies of all reports or other communications
(financial or other) furnished to stockholders of the Company, and to deliver to
you (i) as soon as they are available, copies of any reports and financial
statements furnished to or filed (on a non-confidential basis) with the
Commission or any securities exchange on which the Securities, or any class of
securities of the Company is listed; and (ii) such additional information
concerning the business and financial condition of the Company as you may from
time to time reasonably request (such financial statements to be on a
consolidated basis to the extent the accounts of the Company and its
subsidiaries are consolidated in reports furnished to its stockholders generally
or to the Commission);
(k) During the period of three years after the Time of Delivery, the
Company will not, and will not permit any of its "affiliates" (as defined in
Rule 144 under the Securities Act) to, resell any of the Securities which
constitute "restricted securities" under Rule 144 under the Securities Act that
have been reacquired by any of them, without the prior written consent of
Xxxxxxx, Xxxxx & Co., which consent shall not be unreasonably withheld;
(l) Pursuant to the Registration Rights Agreement, the Company shall
file and use its best efforts to cause to be declared or become effective under
the Securities Act (i) on or prior to 120 days after the Time of Delivery, a
registration statement on Form S-4 providing for the registration of the
Exchange Securities, and the exchange of the Securities for the Exchange
Securities, all in a manner which will permit persons who acquire the Exchange
Securities to resell the Exchange Securities pursuant to Section 4(1) of the
Securities Act and (ii) at the time and to the extent required by the
Registration Rights Agreement, a shelf registration statement pursuant to Rule
415 under the Securities Act relating to the resale by certain holders of the
Securities;
(m) To comply with all agreements set forth in the representation
letter of the Company to DTC relating to the approval of the Securities by DTC
for "book-entry" transfer;
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(n) To advise the Purchasers promptly and, if requested by any of the
Purchasers, confirm such advice in writing of the issuance by any state or
foreign securities commission of any stop order suspending the qualification or
exemption of the Securities for offering or sale in any jurisdiction, or the
initiation of any proceeding for such purpose by the Commission or any state or
foreign securities commission or other regulatory authority, and to use its best
efforts to prevent the issuance of any stop order or order suspending the
qualification or exemption of the Securities under any state or foreign
securities or Blue Sky laws, and if, at any time, any state or foreign
securities commission or other regulatory authority shall issue an order
suspending the qualification or exemption of the Securities under any state or
foreign securities or Blue Sky laws, to use its best efforts to obtain the
withdrawal or lifting of such order at the earliest possible time;
(o) To use the net proceeds received by it from the sale of the
Securities pursuant to this Agreement in the manner specified in the Offering
Circular under the caption "Use of Proceeds"; and
(p) Upon original issuance thereof by the Company, and until such time
as the same is no longer required under the applicable requirements of the
Securities Act, the Securities (and all securities issued in exchange therefor
or in substitution thereof) shall bear the legend set forth in the Offering
Circular under the caption "Notice to Investors."
6. The Company covenants and agrees with the several Purchasers that the
Company will pay or cause to be paid the following: (i) the fees, disbursements
and expenses of the Company's counsel and accountants in connection with the
issue of the Securities and all other expenses in connection with the
preparation, printing and filing of the Preliminary Offering Circular and the
Offering Circular and any amendments and supplements thereto and the mailing and
delivering of copies thereof to the Purchasers and dealers; (ii) the cost of
printing this Agreement, the Indenture, the Blue Sky and Legal Investment
Memoranda, closing documents (including any compilations thereof) and any other
documents in connection with the offering, purchase, sale and delivery of the
Securities; (iii) all expenses in connection with the qualification of the
Securities for offering and sale under state and foreign securities laws as
provided in Section 5(b) hereof, including the reasonable fees and disbursements
of counsel for the Purchasers in connection with such qualification and in
connection with the Blue Sky and legal investment surveys (not to exceed
$15,000); (iv) any fees charged by securities rating services for rating the
Securities; (v) the cost of preparing the Securities; (vi) the fees and expenses
of the Trustee and any agent of the Trustee and the fees and disbursements of
counsel for the Trustee in connection with the Indenture and the Securities;
(vii) any cost incurred in connection with the designation of the Securities for
trading in PORTAL; (viii) all fees and expenses payable to DTC in connection
with approval of the Securities by DTC for "book-entry" transfer; and (ix) all
other costs and expenses incident to the performance of its obligations
hereunder which are not otherwise specifically provided for in this Section. It
is understood, however, that, except as expressly provided in this Section, and
Sections 8 and 10 hereof, the Purchasers will pay all of their own costs and
expenses, including the fees of their counsel (other than as set forth in clause
(iii) above), transfer taxes on resale of any of the Securities by them, and any
advertising expenses connected with any offers they may make.
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7. The obligations of the Purchasers hereunder shall be subject, in their
discretion, to the condition that all representations and warranties of the
Company herein are, at and as of the Time of Delivery, true and correct, the
condition that the Company shall have performed all of its obligations hereunder
theretofore to be performed, and the following additional conditions:
(a) Xxxxxx & Xxxxxxx, counsel for the Purchasers, shall have furnished
to you such opinion or opinions, dated the Time of Delivery, with respect to
such matters as you may reasonably request, and Xxxxxx & Xxxxxxx shall have
received such papers and information as they may reasonably request to enable
them to pass upon such matters;
(b) Xxxx, Scholer, Fierman, Xxxx & Handler, LLP, counsel for the
Company, shall have furnished to you their written opinion, dated the Time of
Delivery, in the form of Annex II hereto;
(c) Xxxx X. Xxxxxx, General Counsel of the Company, shall have
furnished to you their written opinion, dated the Time of Delivery, in the form
of Annex III hereto;
(d) Foreign counsel, for each of the Company's Significant Subsidiaries
the Company, shall have furnished to you their written opinion, dated the Time
of Delivery, in the form of Annex IV hereto;
(e) On the date of the Offering Circular prior to the execution of this
Agreement, Ernst & Young, LLP shall have furnished to you a letter or letters,
dated the respective dates of delivery thereof, in form and substance
satisfactory to you, to the effect set forth in Annex V hereto;
(f) On the date of the Offering Circular prior to the execution of this
Agreement and also at the Time of Delivery, Price Waterhouse, LLP shall have
furnished to you a letter or letters, dated the respective dates of delivery
thereof, in form or substance satisfactory to you, to the effect set forth in
Annex VI hereto;
(g) On the date of the Offering Circular prior to the execution of this
Agreement, Coopers & Xxxxxxx, LLP shall have furnished to you a letter or
letters, dated the respective dates of delivery thereof, in form or substance
satisfactory to you, to the effect set forth in Annex VII hereto;
(h) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements included in
the Offering Circular any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or from
any labor dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Offering Circular, and (ii) since the
respective dates as of which information is given in the Offering Circular there
shall not have been any change in the capital stock or long-term debt of the
Company or any of its subsidiaries or any change, or any development involving a
prospective change, in or affecting the general affairs, management, financial
position, stockholders' equity or results of operations of the Company and its
subsidiaries taken as a whole, otherwise than as set forth or contemplated
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in the Offering Circular, the effect of which, in any such case described in
Clause (i) or (ii), is in the judgment of the Purchasers so material and adverse
as to make it impracticable or inadvisable to proceed with the offering or the
delivery of the Securities on the terms and in the manner contemplated in this
Agreement and in the Offering Circular;
(i) On or after the date hereof there shall not have occurred any of
the following: (i) a suspension or material limitation in trading in securities
generally on the New York Stock Exchange or on NASDAQ; (ii) a suspension or
material limitation in trading in the Company's securities on NASDAQ; (iii) a
general moratorium on commercial banking activities declared by either Federal
or New York or California State authorities; or (iv) the outbreak or escalation
of hostilities involving the United States or the declaration by the United
States of a national emergency or war, if the effect of any such event specified
in this Clause (iv) in the judgment of the Purchasers makes it impracticable or
inadvisable to proceed with the offering or the delivery of the Securities on
the terms and in the manner contemplated in the Offering Circular;
(j) The Securities have been designated for trading on PORTAL;
(k) The Company shall have furnished or caused to be furnished to you
at the Time of Delivery certificates of officers of the Company satisfactory to
you as to the accuracy of the representations and warranties of the Company
herein at and as of such Time of Delivery, as to the performance by the Company
of all of its obligations hereunder to be performed at or prior to such Time of
Delivery, as to the matters set forth in subsection (h) of this Section and as
to such other matters as you may reasonably request;
(l) No stop order suspending the qualification or exemption from
qualification of any of the Securities in any jurisdiction referred to in
Section 5(b) shall have been issued and no proceeding for that purpose shall
have been commenced or shall be pending or threatened;
(m) No action shall have been taken and no statute or any order, rule
or regulation of any court or governmental agency or body having jurisdiction
over the Company or any of its subsidiaries or their respective properties or
assets which would, as of the Time of Delivery, prevent the issuance of any of
the Securities, the Exchange Securities or consummation of the Exchange Offer;
and no injunction, restraining order or order of any nature by a Federal or
state court of competent jurisdiction shall have been issued as of the Time of
Delivery which would prevent the issuance of the Securities, the Exchange
Securities or consummation of the Exchange Offer. No action, suit or proceeding
shall be pending against or affecting or, to the best of the Company's
knowledge, threatened against the Company or any of its subsidiaries before any
court or arbitrator or any governmental body, agency or official has a
reasonable likelihood of being determined adversely to the Company or any of its
subsidiaries, which, if so determined, would prohibit, interfere with or
adversely affect the issuance or sale of the Securities or would have a material
adverse effect on the current or future financial position, stockholders' equity
or results of operations of the Company and its subsidiaries taken as a whole,
or in any manner draw into question the validity of this Agreement or the other
Operative
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Documents; and no stop order preventing the use of the Offering Circular, or any
amendment or supplement thereto, or any order asserting that any of the
transactions contemplated by this Agreement are subject to the registration
requirements of the Securities Act shall have been issued;
(n) The Company shall have entered into the Registration Rights
Agreement and you shall have received executed counterparts thereof;
(o) The Company and the Trustee shall have entered into the Indenture
and you shall have received executed counterparts thereof; and
(p) The Company shall have received a consent and/or waiver from the
requisite lenders under the Bank Credit Agreement, reasonably satisfactory to
the Purchasers, to the effect that the issuance and sale of the Securities and
the Exchange Securities and the use of proceeds contemplated hereby will not
result in a "default," or an event which with notice or passage of time or both
would result in an "event of default" (as each such term is used in the Bank
Credit Agreement) under the Bank Credit Agreement in effect as of the Time of
Delivery.
All opinions, certificates, letters and other documents required to be
delivered by the Company will be in compliance with the provisions hereof only
if they are reasonably satisfactory in form and substance to the Purchasers or
in conformity herewith. The Company will furnish the Purchasers with such
conformed copies of such opinions, certificates, letters and other documents as
the Purchasers shall reasonably request.
8. (a) The Company will indemnify and hold harmless each Purchaser against
any losses, claims, damages or liabilities, joint or several, to which such
Purchaser may become subject, under the Securities Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue statement
of a material fact contained in any Preliminary Offering Circular or the
Offering Circular, or any amendment or supplement thereto, or arise out of or
are based upon the omission or alleged omission to state therein a material fact
necessary to make the statements therein not misleading, and will reimburse each
Purchaser for any legal or other expenses reasonably incurred by such Purchaser
in connection with investigating or defending any such action or claim as such
expenses are incurred; provided, however, that the Company shall not be liable
in any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in any Preliminary Offering Circular or the
Offering Circular or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by any Purchaser
through Xxxxxxx, Sachs & Co. expressly for use therein.
(b) Each Purchaser will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company may
become subject, under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon an untrue statement or alleged untrue statement of a material
fact contained in any Preliminary Offering Circular or the Offering Circular, or
any amendment or supplement thereto, or arise out of or are based upon the
omission or alleged
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omission to state therein a material fact or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in any Preliminary Offering Circular or the Offering Circular
or any such amendment or supplement in reliance upon and in conformity with
written information furnished to the Company by such Purchaser through Xxxxxxx,
Xxxxx & Co. expressly for use therein; and will reimburse the Company for any
legal or other expenses reasonably incurred by the Company in connection with
investigating or defending any such action or claim as such expenses are
incurred.
(c) Promptly after receipt by an indemnified party under subsection (a)
or (b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and,
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under such subsection for any legal expenses of
other counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the written consent
of the indemnified party, effect the settlement or compromise of, or consent to
the entry of any judgment with respect to, any pending or threatened action or
claim in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified party is an actual or potential party
to such action or claim) unless such settlement, compromise or judgment (i)
includes an unconditional release of the indemnified party from all liability
arising out of such action or claim and (ii) does not include a statement as to,
or an admission of, fault, culpability or a failure to act, by or on behalf of
any indemnified party.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Purchasers on
the other from the offering of the Securities. If, however, the allocation
provided by the immediately preceding sentence is not permitted by applicable
law or if the indemnified party failed to give the notice required under
subsection (c) above, then each indemnifying party shall contribute to such
amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and the Purchasers on the other in
connection with the
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statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and the Purchasers on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company bear to the total underwriting discounts and
commissions received by the Purchasers, in each case as set forth in the
Offering Circular. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company on the one hand or the Purchasers on the
other and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company and
the Purchasers agree that it would not be just and equitable if contribution
pursuant to this subsection (d) were determined by pro rata allocation (even if
the Purchasers were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable considerations
referred to above in this subsection (d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or liabilities (or
actions in respect thereof) referred to above in this subsection (d) shall be
deemed to include 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 subsection (d), no Purchaser
shall be required to contribute any amount in excess of the amount by which the
total price received by such Purchaser with respect to the sale of the
Securities exceeds the amount paid by such Purchaser for such Securities. The
Purchasers' obligations in this subsection (d) to contribute are several in
proportion to their respective underwriting obligations and not joint. 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.
(e) The obligations of the Company under this Section 8 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Purchaser within the meaning of the Securities Act; and the obligations of the
Purchasers under this Section 8 shall be in addition to any liability which the
respective Purchasers may otherwise have and shall extend, upon the same terms
and conditions, to each officer and director of the Company and to each person,
if any, who controls the Company within the meaning of the Securities Act.
9. (a) If any Purchaser shall default in its obligation to purchase the
Securities which it has agreed to purchase hereunder, you may in your discretion
arrange for you or another party or other parties to purchase such Securities on
the terms contained herein. If within thirty-six hours after such default by any
Purchaser you do not arrange for the purchase of such Securities, then the
Company shall be entitled to a further period of thirty-six hours within which
to procure another party or other parties satisfactory to you to purchase such
Securities on such terms. In the event that, within the respective prescribed
periods, you notify the Company that you have so arranged for the purchase of
such Securities, or the Company notifies you that it has so arranged for the
purchase of such Securities, you or the Company shall have the right to postpone
the Time of Delivery for a period of not more than seven days, in order to
effect whatever changes may thereby be made necessary in the Offering Circular,
or in any other
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documents or arrangements, and the Company agrees to prepare promptly any
amendments to the Offering Circular which in your opinion may thereby be made
necessary. The term "Purchaser" as used in this Agreement shall include any
person substituted under this Section with like effect as if such person had
originally been a party to this Agreement with respect to such Securities.
(b) If, after giving effect to any arrangements for the purchase of the
Securities of a defaulting Purchaser or Purchasers by you and the Company as
provided in subsection (a) above, the aggregate principal amount of such
Securities which remains unpurchased does not exceed one-tenth of the aggregate
principal amount of all the Securities, then the Company shall have the right to
require each non-defaulting Purchaser to purchase the principal amount of
Securities which such Purchaser agreed to purchase hereunder and, in addition,
to require each non-defaulting Purchaser to purchase its pro rata share (based
on the principal amount of Securities which such Purchaser agreed to purchase
hereunder) of the Securities of such defaulting Purchaser or Purchasers for
which such arrangements have not been made; but nothing herein shall relieve a
defaulting Purchaser from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Securities of a defaulting Purchaser or Purchasers by you and the Company as
provided in subsection (a) above, the aggregate principal amount of Securities
which remains unpurchased exceeds one-tenth of the aggregate principal amount of
all the Securities, or if the Company shall not exercise the right described in
subsection (b) above to require non-defaulting Purchasers to purchase Securities
of a defaulting Purchaser or Purchasers, then this Agreement shall thereupon
terminate, without liability on the part of any non-defaulting Purchaser or the
Company, except for the expenses to be borne by the Company and the Purchasers
as provided in Section 6 hereof and the indemnity and contribution agreements in
Section 8 hereof; but nothing herein shall relieve a defaulting Purchaser from
liability for its default.
(d) The respective indemnities, agreements, representations, warranties
and other statements of the Company and the several Purchasers, as 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 any
investigation (or any statement as to the results thereof) made by or on behalf
of any Purchaser or any controlling person of any Purchaser, or the Company, or
any officer or director or controlling person of the Company, and shall survive
delivery of and payment for the Securities.
10. If this Agreement shall be terminated pursuant to Section 9 hereof, the
Company shall not then be under any liability to any Purchaser except as
provided in Sections 6 and 8 hereof; but, if for any other reason, the
Securities are not delivered by or on behalf of the Company as provided herein,
the Company will reimburse the Purchasers through you for all out-of-pocket
expenses approved in writing by you, including fees and disbursements of
counsel, reasonably incurred by the Purchasers in making preparations for the
purchase, sale and delivery of the Securities (except that in the case of a
termination by the Purchasers pursuant to Section 7(i) hereof such expenses
shall not exceed $250,000), but the Company shall then be under no further
liability to any Purchaser except as provided in Sections 6 and 8 hereof.
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11. In all dealings hereunder, you shall act on behalf of each of the
Purchasers, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Purchaser made or given
by you jointly or by Xxxxxxx, Xxxxx & Co. on behalf of you as the
representatives.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Purchasers shall be delivered or sent by mail, telex or
facsimile transmission to you as the representatives at in care of Xxxxxxx,
Sachs & Co., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Registration
Department; and if to the Company shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Company set forth in the Offering
Circular, Attention: Secretary; provided, however, that any notice to a
Purchaser pursuant to Section 8(c) hereof shall be delivered or sent by mail,
telex or facsimile transmission to such Purchaser at its address set forth in
its Purchasers' Questionnaire, or telex constituting such Questionnaire, which
address will be supplied to the Company by you upon request. Any such
statements, requests, notices or agreements shall take effect upon receipt
thereof.
12. This Agreement shall be binding upon, and inure solely to the benefit
of, the Purchasers, the Company and, to the extent provided in Sections 8 and 10
hereof, the officers and directors of the Company and each person who controls
the Company or any Purchaser, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement. No purchaser of any of the
Securities from any Purchaser shall be deemed a successor or assign by reason
merely of such purchase.
13. Time shall be of the essence of this Agreement.
14. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
15. This Agreement may be executed by any one or more of the parties hereto
in any number of counterparts, each of which shall be deemed to be an original,
but all such respective counterparts shall together constitute one and the same
instrument.
21
22
If the foregoing is in accordance with your understanding, please sign and
return to us one for the Company and each of the Purchasers plus one for each
counsel counterparts hereof, and upon the acceptance hereof by you, on behalf of
each of the Purchasers, this letter and such acceptance hereof shall constitute
a binding agreement between each of the Purchasers and the Company. It is
understood that your acceptance of this letter on behalf of each of the
Purchasers is pursuant to the authority set forth in a form of Agreement Among
Purchasers, the form of which shall be submitted to the Company for examination
upon request, but without warranty on your part as to the authority of the
signers thereof.
Very truly yours,
All American Communications, Inc.
By: /s/ Xxxxxx Xxxxxxxx
------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Chief Financial Officer
Accepted as of the date hereof:
Xxxxxxx, Xxxxx & Co.
Xxxxx Securities Inc.
By Xxxxxxx, Sachs & Co.
By: /s/ Xxxxxxx, Xxxxx & Co.
-----------------------------------
(Xxxxxxx, Sachs & Co.)
On behalf of each of the Purchasers
23
SCHEDULE I
PRINCIPAL
AMOUNT OF
SECURITIES TO
PURCHASER BE PURCHASED
--------- -------------
Xxxxxxx, Xxxxx & Co. ................................ $ 75,000,000
Chase Securities Inc. ............................... 25,000,000
------------
Total ............................................... $100,000,000
============
24
SCHEDULE II
List of Exhibits
Annex I - Terms and Conditions of Sales under Regulation S under the
Securities Act.
Annex II - Opinion of Xxxx, Scholer, Fierman, Xxxx & Handler, LLP Referred
to in Section 7(b).
Annex III - Opinion of Xxxx X. Xxxxxx Referred to in Section 7(c).
Annex IV - Opinion of Foreign Counsel Referred to in Section 7(d).
Annex V - Form of Letter of Ernst & Young LLP.
Annex VI - Form of Letter of Price Waterhouse LLP.
Annex VII - Form of Letter of Coopers & Xxxxxxx, LLP.
