Exhibit 10.01
Olympus Communications, L.P.
Olympus Capital Corporation
105/8% Senior Notes
due November 15, 2006
Purchase Agreement
November 6, 1996
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Olympus Communications, L.P., a Delaware limited partnership (the
"Company"), and Olympus Capital Corporation, a Delaware corporation ("Olympus
Capital" and, together with the Company, the "Issuers"), propose, subject to the
terms and conditions stated herein, to issue and sell to Xxxxxxx, Sachs & Co.
(the "Purchasers") an aggregate of $200,000,000 principal amount of the 105/8%
Senior Notes due 2006 of the Issuers specified above (the "Securities"). As used
herein, the term "Subsidiaries" shall mean all subsidiaries of the Company
existing on the date hereof.
1. The Issuers, jointly and severally, represent and warrant to,
and agree with, the Purchasers that:
(a) A preliminary offering circular, dated October 15, 1996 (the
"Preliminary Offering Circular"), and an offering circular, dated November
6, 1996 (the "Offering Circular"), in each case including the
international supplement thereto, have been prepared in connection with
the offering of the Securities. 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 any
Additional Issuer Information (as defined in Section 5(f)) furnished by
the Issuers prior to the completion of the distribution of the Securities.
The Preliminary Offering Circular or the Offering Circular, as the case
may be, and any amendments or supplements thereto 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 Issuers by the
Purchasers concerning the Purchasers expressly for use therein (the
"Purchaser Information"). Each of the Preliminary Offering Circular and
the Offering Circular, as of its date, contains all the information
specified in, and meeting the requirements of, Rule 144A(d)(4) under the
United States Securities Act of 1933, as amended (the "Act");
(b) None of the Issuers or the 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 reduction in the
consolidated partner's equity or change in the capital stock, as
applicable (other than reductions in the ordinary course of business
consistent with prior periods), material increase in the total amount of
short-term debt (excluding trade payables) and long-term debt of the
Issuers or the Subsidiaries or any material adverse change, or any
development involving a prospective material adverse change, in or
affecting the general affairs, management, financial position, partners'
equity, shareholders' equity or results of operations of the Issuers and
the Subsidiaries, otherwise than as set forth or contemplated in the
Offering Circular;
(c) Each of the Issuers and the Subsidiaries has good and marketable
title in fee simple to all real property and good and marketable title to
all personal property owned by them, in each case free and clear of all
liens, encumbrances and defects except such as are described in the
Offering Circular or such as do not affect the value of such property and
do not interfere with the use made and proposed to be made of such
property by the Issuers and the Subsidiaries; and any real property and
buildings held under lease by the Issuers and the Subsidiaries are held by
them under valid, subsisting and enforceable leases with such exceptions
as are not material and do not interfere with the use made and proposed to
be made of such property and buildings by the Issuers and the
Subsidiaries; except in any case that would not have a material adverse
effect on the business, general affairs, management, financial position,
partners equity or shareholders' equity (other than reductions in the
ordinary course of business consistent with prior periods), results of
operations or prospects of the Company and its Subsidiaries, taken as a
whole a "Material Adverse Effect";
(d) Each of the Company and the Subsidiaries that are partnerships
has been duly formed and is validly existing as a partnership in good
standing under the laws of its state of formation, with full power and
authority (partnership and other) to own its properties and conduct its
business as described in the Offering Circular, and has been duly
qualified as a foreign partnership 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 material liability or disability by
reason of the failure to be so qualified in any such jurisdiction except
where the failure to so qualify would not have a Material Adverse Effect;
(e) Each of Olympus Capital and the Subsidiaries that are
corporations has been duly incorporated and is validly existing as a
corporation in good standing under the laws of its state of incorporation,
with power and authority (corporate and other) to own its properties and
conduct its business as described in the Offering Circular, and has been
duly qualified as a foreign corporation 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 material liability or disability
by reason of the failure to be so qualified in any such jurisdiction
except where the failure to so qualify would not have a Material Adverse
Effect;
(f) Each of the Issuers and the Subsidiaries has the ownership or
authorized capitalizations, as the case may be, as set forth in the
Offering Circular, and all of the partnership interests of the Company and
the Subsidiaries that are partnerships and all of the issued shares of
capital stock of Olympus Capital and the Subsidiaries that are
corporations have been duly and validly authorized and issued and with
respect to shares of capital stock are fully paid and non-assessable; and
all of the partnership interests of the Subsidiaries disclosed in the
Offering Circular as being owned directly or indirectly by the Company and
all of the issued shares of capital stock of Olympus Capital and the
Subsidiaries that are corporations have been duly and validly authorized
and issued are fully paid and non-assessable and (except for director's
qualifying shares) are owned directly or indirectly by the Company free
and clear of all liens, encumbrances, equities or claims (other than liens
to secure indebtedness under credit facilities disclosed in the Offering
Circular); and ownership of the various interests and shares of the
Issuers and the Subsidiaries is as described in the Offering Circular;
(g) The Securities have been duly authorized and, when issued and
delivered pursuant to this Agreement, will have been duly executed,
authenticated, issued and delivered and will constitute valid and legally
binding obligations of the Issuers entitled to the benefits provided by
the indenture to be dated as of November 12, 1996 (the "Indenture")
between the Issuers and Bank of Montreal Trust Company, as Trustee (the
"Trustee"), under which they are to be issued, which will be substantially
in the form previously delivered to the Purchasers; the Indenture has been
duly authorized by the Issuers and, when executed and delivered by the
Issuers and the Trustee, the Indenture will constitute a valid and legally
binding instrument, enforceable in accordance with its terms against the
Issuers, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles; 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 the Purchasers;
(h) 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;
(i) Prior to the date hereof, none of the Issuers or any of their
affiliates (other than the Purchasers or any person acting on their behalf
as to which the Issuers make no representation) has taken, directly or
indirectly, 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 Issuers in connection
with the offering of the Securities;
(j) The Registration Rights Agreement between the Issuers and the
Purchasers to be dated as of November 12, 1996 (the "Registration Rights
Agreement") has been duly authorized by the Issuers and, when executed and
delivered by the Issuers and the Purchasers, will constitute a valid and
legally binding instrument, enforceable against the Issuers in accordance
with its terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles; and the
Registration Rights Agreement will conform to the description thereof in
the Offering Circular and will be in substantially the form previously
delivered to the Purchasers;
(k) The issue and sale of the Securities and the compliance by the
Issuers with all of the provisions of the 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, any material indenture, mortgage, deed of
trust, sale/leaseback agreement, loan agreement or other similar financing
agreement or instrument or other agreement or instrument (including,
without limitation, any license or franchise granted to the Issuers or a
Subsidiary by a local franchising governmental body) to which the Issuers
or any of the Subsidiaries is a party or by which the Issuers or any of
the Subsidiaries is bound or has rights under or to which any of the
property or assets of the Issuers or any of the Subsidiaries is subject,
nor will such action result in any violation of the provisions of the
Certificates of Limited Partnership or the partnership agreements of the
Company or the Subsidiaries that are partnerships, the Certificate of
Incorporation or By-laws of Olympus Capital or the Subsidiaries that are
corporations, or any statute or any order, rule or regulation of any court
or governmental agency or body having jurisdiction over the Issuers or any
of the Subsidiaries or any of their properties; 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 or the consummation by the Issuers of the transactions
contemplated by this Agreement, the Indenture or the Registration Rights
Agreement, other than (i) such consents, approvals, authorizations,
registrations or qualifications as may be required under state securities
or Blue Sky laws in connection with the purchase and distribution of the
Securities by the Purchasers, (ii) the filing of a registration statement
by the Issuers with the United States Securities and Exchange Commission
(the "Commission") pursuant to the Act pursuant to Section 5(I) hereof,
and (iii) such other consents, approvals, authorizations, registrations or
qualifications as may be required under the Act, state or foreign
securities or Blue Sky laws in connection with the exchange, offer or
resale registration contemplated in the Offering Circular and described in
the Registration Rights Agreement in connection with the purchase and
distribution of the Securities by the Purchasers;
(l) None of the Issuers or the Subsidiaries is in violation of its
Certificate of Limited Partnership, partnership agreement, Certificate of
Incorporation or By-laws, as the case may be, or in default in the
performance or observance of any material obligation, agreement, covenant
or condition contained in any indenture, mortgage, deed of trust,
sale/leaseback agreement, loan agreement or other similar financing
agreement or instrument or other agreement or instrument (including,
without limitation, any license or franchise granted to the Issuers or a
Subsidiary by a local franchising governmental body) to which the Issuers
or a Subsidiary is a party or by which it or any of its properties may be
bound, except where such default would not have a Material Adverse Effect;
(m) The statements set forth in the Offering Circular under the
caption "Description of Senior Notes", insofar as they purport to
constitute a summary of the terms of the Securities, under the caption
"Certain United States Federal Tax Considerations for Non-United States
Holders", and under the caption "Offer and Resale", insofar as they
purport to describe the provisions of the laws and documents referred to
therein, are accurate, complete and fair in all material respects;
(n) 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 144 under the Act) as securities of the Issuers which are
listed on a national securities exchange registered under Section 6 of the
United States Securities Exchange Act of 1934, as amended (the "Exchange
Act") or quoted in a U.S. automated inter-dealer quotation system;
(o) None of the Issuers or the Subsidiaries is and, after giving
effect to the offering and sale of the Securities, will 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");
(p) None of the Issuers or any person acting on its or their behalf
(other than the Purchasers, as to which the Issuers make no representation
or warranty) has offered or sold the Securities by means of any general
solicitation or general advertising within the meaning of Rule 502(c)
under the Act or, with respect to Securities sold outside the United
States to non-U.S. persons (as defined in Rule 902 under the Act), by
means of any directed selling efforts within the meaning of Rule 902 under
the Act and the Issuers, any affiliate of the Issuers and any person
acting on its or their behalf has complied with and will implement the
"offering restriction" within the meaning of such Rule 902;
(q) Within the preceding six months, none of the Issuers or any other
person acting on behalf of the Issuers (other than the Purchasers, as to
which the Issuers make no representation or warranty) 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 Issuers 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 Act)
of any Securities or any substantially similar security issued by the
Issuers, within six months subsequent to the date on which the
distribution of the Securities has been completed (as notified by the
Purchasers), 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 Act;
(r) None of the Issuers or any of their 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;
(s) Other than as set forth in the Offering Circular (including those
matters referred to therein relating to general rulemakings and similar
matters relating generally to the cable television industry), there are no
legal or governmental proceedings pending to which the Issuers or any of
the Subsidiaries is a party or of which any property of the Issuers or any
of the Subsidiaries is the subject which, if determined adversely to the
Issuers or any of the Subsidiaries, would individually or in the aggregate
have a Material Adverse Effect and, to the best of the Issuers' knowledge,
no such proceedings are threatened or contemplated by governmental
authorities or by others; and except with respect to general rulemakings
and similar matters relating generally to the cable television industry,
during the time the Systems (as defined below) have been owned by the
Issuers or a Subsidiary (i) there has been no adverse judgment, order, or
decree issued by the United States Federal Communications Commission (the
"FCC") relating to any of the Systems that has not been disclosed in the
Offering Circular that would be required to be disclosed in a public
offering registered under the Act; (ii) there are no actions, suits,
proceedings, inquiries or investigations by the FCC pending or threatened
in writing against or affecting the Issuers, any Subsidiaries or any
System; and (iii) to the Issuers' knowledge, after due inquiry, there is
no reasonable basis for any such action, suit, proceeding or
investigation;
(t) Deloitte & Touche LLP, who have reported on certain financial
statements of the Issuers, Ernst & Young LLP, who have reported on
financial statements of WB Cable Associates, Ltd. and Geo. S. Olive & Co.,
LLC, who have reported on financial statements of Leadership Cablevision,
a Division of Fairbanks Communications, Inc., are each independent public
accountants as required by the Act and the rules and regulations of the
Commission thereunder;
(u) This Agreement has been duly authorized, executed and delivered
by the Issuers;
(v) Except for matters covered by paragraph (x) below or with respect
to matters that would not individually or in the aggregate have a Material
Adverse Effect, (i) the Issuers and the Subsidiaries have made all
filings, recordings and registrations with, and possess all validations or
exemptions, approvals, orders, authorizations, consents, licenses,
certificates and permits from, the FCC, applicable public utilities and
other federal, state and local regulatory or governmental bodies and
authorities or any subdivision thereof, including, without limitation,
cable television franchises, pole attachment agreements, and cable antenna
relay service, broadcast auxiliary, earth station, business radio,
microwave or special safety radio service licenses issued by the FCC
(collectively, the "Authorizations") necessary or appropriate to own,
operate and construct the cable communication systems owned by them (the
"Systems") or otherwise for the operation of their businesses and are not
in violation thereof; (ii) all such Authorizations are in full force and
effect, and no event has occurred that permits, or after notice or lapse
of time could permit, the revocation, termination or modification of any
Authorization which is necessary or appropriate to own, operate and
construct the Systems or otherwise for the operation of any such business;
(iii) none of the Issuers or any of the Subsidiaries is in violation of
any duty or obligation required by the United States Communications Act of
1934, as amended (the "Communications Act"), or any FCC rule or regulation
applicable to the operation of any portion of any of the Systems; (iv)
none of the Issuers or any of the Subsidiaries is in violation of any duty
or obligation required by Florida or local laws, or local rules or
regulations applicable to the operation of any portion of any of the
Systems; (v) there is not pending or, to the best knowledge of the Issuers
or any of the Subsidiaries, threatened, any action by the FCC or state or
local regulatory authority to modify, revoke, cancel, suspend or refuse to
renew any Authorization; (vi) other than as described in the Offering
Circular, there is not now issued or outstanding or, to the best knowledge
of the Issuers or any of the Subsidiaries, threatened, any notice of any
hearing, material violation or material complaint against the Issuers or
any of the Subsidiaries with respect to the operation of any portion of
the Systems and none of the Issuers or the Subsidiaries has any knowledge
that any Person intends to contest renewal of any material Authorization;
(w) (i) (A) The Issuers and the Subsidiaries have entered into, or
have rights under, all required programming agreements (including, without
limitation, all non-broadcast affiliation agreements under which the
Issuers and the Subsidiaries are accorded retransmission rights relating
to programming that the Systems provide to their customers) that are
material to the conduct of their business as described in the Offering
Circular; and (B) all such material agreements are in full force and
effect and none of the Issuers, any of the Subsidiaries or any of its
affiliates has received any written notice of revocation or material
modifications of such material agreements; and (ii)(A) either one of the
Issuers or a Subsidiary has entered into agreements with the television
stations that have notified one of the Issuers or the Subsidiaries that
such station's respective consent is required to carry such stations on
the Systems or has ceased carrying such stations; (B) all such agreements
grant the Issuers or one of the Subsidiaries retransmission consent in
exchange for various non-cash consideration; and (C) all such agreements
are in full force and effect and are not subject to revocation (except in
the case of material breach by the Issuers or the Subsidiaries) or
material modifications, and no event has occurred that permits, or after
notice or lapse of time could permit, the revocation, termination or
material modification of any such agreement, except where the failure of
such agreements to be in full force and effect or such revocation would
not, in either case, have a Material Adverse Effect;
(x) Except for matters that would not individually or in the
aggregate have a Material Adverse Effect, (i) all registration statements
and all other documents (including but not limited to annual reports)
required by the FCC in connection with the operation of the Systems have
been filed with the FCC; (ii) all frequencies within the restricted
aeronautical and navigational bands (i.e., 108-136 MHz and 225-400 MHz)
which are currently being used in connection with the operation of the
Systems have been authorized for such use by the FCC; (iii) each of the
Systems subject to Equal Employment Opportunity Commission ("EEO")
compliance certification by the FCC has been certified by the FCC for
annual EEO compliance during the time such Systems have been owned by the
Issuers or the Subsidiaries; and (iv) all towers associated with the
Systems are in compliance with the rules and regulations of the United
States Federal Aviation Administration;
(y) Except for matters that would not individually or in the
aggregate have a Material Adverse Effect, none of the Issuers or any of
the Subsidiaries is in breach or violation of, or in default under, any of
the terms, conditions or provisions of the Communications Act or the
rules, regulations or policies of the FCC thereunder;
(z) (i) Except for matters that would not individually or in the
aggregate have a Material Adverse Effect, all statements of accounts and
any other filings that are required under Section 111 of the United States
Copyright Act of 1976, as amended, in connection with the retransmission
of any broadcast television and radio signals on the Systems have been
timely filed with the United States Copyright Office and indicated royalty
payments have been made for each System for each accounting period during
which such Systems have been owned by the Issuers or the Subsidiaries;
(ii) none of the Issuers, any of the Subsidiaries or any System has
received any inquiry or request from the United States Copyright Office or
from any other party challenging or questioning any such statements of
account or royalty payments; and (iii) no claim of copyright infringement
has been made or threatened in writing against the Issuers, any of the
Subsidiaries or any System;
(aa)Neither the execution and delivery of this Agreement, the
Indenture or the Registration Rights Agreement, nor the consummation of
the transactions contemplated hereby and thereby or by the Offering
Circular under "Use of Proceeds", nor compliance with the terms,
conditions and provisions thereof by the Issuers, will conflict with the
Communications Act or the rules, regulations or policies of the FCC
thereunder, or will cause any suspension, revocation, impairment,
forfeiture, nonrenewal or termination of any material license, permit,
franchise, certificate, consent, authorization, designation, declaration,
filing, registration or qualification;
(bb)Neither the execution and delivery of this Agreement, the
Indenture or the Registration Rights Agreement, nor the execution,
delivery, offer, issuance and sale of the Securities, nor compliance with
the terms, conditions and provisions thereof by the Issuers, requires any
license, permit, franchise, certificate, consent, authorization,
designation, declaration, filing, registration or qualification by or with
the FCC;
(cc)None of the Issuers or the Subsidiaries or any of their
respective officers or directors or, to the best knowledge of the Issuers,
any person acting on its or their behalf, has engaged or will engage in
any directed selling efforts within the meaning of Regulation S with
respect to the Securities, the Issuers and the Subsidiaries and its or
their affiliates and, to the best knowledge of the Issuers, all persons
acting on its or their behalf have complied with and will comply with the
offering restrictions requirements of Regulation S in connection with the
offering of the Securities outside the United States;
(dd)There is no "substantial U.S. market interest" as defined in
Rule 902(n) of Regulation S for the Securities or any security of the
same class as the Securities; and
(ee)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 Act.
2. Subject to the terms and conditions herein set forth, the Issuers agree
to issue and sell to the Purchasers, and the Purchasers agree to purchase from
the Issuers, at a purchase price of 97.75% of the principal amount thereof, plus
accrued interest, if any, from November 12, 1996 to the Time of Delivery
hereunder, the Securities.
3. Upon the authorization by the Purchasers of the release of the
Securities, the Purchasers propose to offer the Securities for sale upon the
terms and conditions set forth in this Agreement and the Offering Circular and
the Purchasers hereby represent and warrant to, and agree with the Issuers 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 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 under the Act or, (iii) upon the terms and conditions
set forth in Annex I to this Agreement;
(b) It is an Institutional Accredited Investor; and
(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 Act.
4. (a) The Securities to be purchased by the Purchasers 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 Issuers with The Depository Trust
Company ("DTC") or its designated custodian. The Issuers will deliver the
Securities to the Purchasers, against payment by or on behalf of the Purchasers
of the purchase price therefor by certified or official bank check or checks,
payable to the order of the Issuers in Federal (same day) funds, by causing DTC
to credit the Securities to the account of Xxxxxxx, Xxxxx & Co. at DTC. The
Issuers 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"). The time and date of such
delivery and payment shall be 9:30 a.m., New York City time, on November 12,
1996 or such other time and date as Xxxxxxx, Xxxxx & Co. and the Issuers 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 requested by the Purchasers
pursuant to Section 7(j) hereof, will be delivered at such time and date at the
offices of Xxxxxx & Xxxxxxx, 000 Xxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx
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 3:00 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 Issuers, jointly and severally, agree with the Purchasers:
(a) To prepare the Offering Circular in a form approved by the
Purchasers; to make no amendment or any supplement to the Offering
Circular which shall be disapproved by the Purchasers promptly after
reasonable notice thereof; and to furnish the Purchasers with copies
thereof;
(b) Promptly from time to time to take such action as the Purchasers
may reasonably request to qualify the Securities for offering and sale
under the securities laws of such jurisdictions as the Purchasers 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 Issuers shall not be required to qualify to
transact business or to file a general consent to service of process in
any jurisdiction;
(c) To furnish the Purchasers with two copies of the Offering
Circular and each amendment and supplement thereto signed by an authorized
officer of the Issuers with the Independent Auditors' reports in the
Offering Circular, and any amendment or supplement containing amendments
to the financial statements covered by such reports, signed by the
accountants, and additional copies thereof in such amounts as the
Purchasers may from time to time reasonably request, if, at any time prior
to the 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 for any other reason it shall be necessary or desirable during such
same period to amend or supplement the Offering Circular, to notify the
Purchasers and upon the Purchasers' request to prepare and furnish without
charge to the Purchasers and to any dealer in securities as many copies as
the Purchasers 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 Issuers that are substantially similar to the
Securities, other than the Exchange Offer pursuant to the Registration
Rights Agreement;
(e) Not to be or become, at any time prior to the expiration of three
years after the Time of Delivery, 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;
(f) At any time when the Issuers are 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 the Issuers' 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 Act;
(g) If requested by the Purchasers, 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.;
(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 Act (one of
which will be manually signed by a person duly authorized by the Issuers);
to otherwise comply with the requirements of Rule 503 under the 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, partners' equity, stockholders'
equity, as appropriate, and cash flows of the Issuers and the 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 Issuers and
Subsidiaries for such quarter in reasonable detail;
(j) During a period of five years from the date of the Offering
Circular, to furnish to the Purchasers copies of all reports or other
communications (financial or other) furnished to partners or stockholders
of the Issuers, as appropriate, that are publicly available and to deliver
to the Purchasers (i) as soon as they are available, copies of any reports
and financial statements furnished to or filed with the Commission or any
securities exchange on which the Securities or any class of securities of
the Issuers and the Subsidiaries are listed; and (ii) such additional
information concerning the business and financial condition of the Issuers
and the Subsidiaries as the Purchasers may from time to time reasonably
request (such financial statements to be on a consolidated basis to the
extent the accounts of the Issuers and the Subsidiaries are consolidated
in reports furnished to its partners or stockholders, as appropriate,
generally or to the Commission);
(k) During the period of three years after the Time of Delivery, the
Issuers will not, and will not permit any of its "affiliates" (as defined
in Rule 144 under the Act) to, resell any of the Securities which
constitute "restricted securities" under Rule 144 that have been
reacquired by any of them;
(l) The Issuers shall file on or prior to 90 days after the Time of
Delivery, and use their best efforts to cause to be declared or become
effective under the Act, a registration statement on Form S-4 providing
for the registration of another series of debt securities of the Issuers,
with terms identical to the Securities (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 Act; and
(m) 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".
6. The Issuers, jointly and severally, covenant and agree with the
Purchasers that the Issuers will pay or cause to be paid the following: (i) the
fees, disbursements and expenses of the Issuers' 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 or producing this Agreement, the Indenture, the Registration
Rights Agreement, 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 securities laws as provided in Section 5(b) hereof, including the
fees and disbursements of counsel for the Purchasers in connection with such
qualification and in connection with the Blue Sky and legal investment surveys;
(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 and (viii) 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 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, transfer taxes on
resale of any of the Securities by them, and any advertising expenses connected
with any offers they may make.
7. The obligations of the Purchasers hereunder shall be subject, in their
discretion, to the condition that all representations and warranties and other
statements of the Issuers herein are, at and as of the Time of Delivery, true
and correct, the condition that the Issuers shall have performed all of their
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 such
counsel shall have received such papers and information as they may
reasonably request to enable them to pass upon such matters;
(b) Xxxxxxxx Ingersoll Professional Corporation, counsel for the
Issuers, shall have furnished to you their written opinion, dated the Time
of Delivery, in form and substance satisfactory to you, to the effect
that:
(i) Each of the Company and the Subsidiaries that are limited
partnerships has been duly formed and is validly existing as a limited
partnership in good standing under the laws of its state of formation,
with full partnership power and authority to own its properties and
conduct its business as described in the Offering Circular;
(ii) Each of Olympus Capital and the Subsidiaries that are
corporations has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the state of its formation
with full corporate power and authority to own its properties and conduct
its business as described in the Offering Circular;
(iii) Each of the Issuers and the Subsidiaries has the
ownership or authorized capitalization, as the case may be, as set forth
in the Offering Circular, and all of the partnership interests of the
Company and the Subsidiaries that are partnerships and all of the issued
shares of capital stock of Olympus Capital and the Subsidiaries that are
corporations have been duly and validly authorized and issued and with
respect to shares of capital stock are fully paid and non-assessable;
(iv) The Company should be treated as a partnership and not a
corporation for federal income tax purposes and the Securities should
constitute debt and not equity for federal income tax purposes;
(v) Each Subsidiary of the Company listed on Schedule B hereto
is owned of record by the Company (except for minority interests indicated
in the Offering Circular), and to the best of such counsel's knowledge
owned free and clear of security interests, liens or other encumbrances
(other than liens to secure indebtedness under credit facilities disclosed
in the Offering Circular) (such counsel being entitled to rely in respect
of the opinion in this clause upon opinions of local counsel and in
respect of matters of fact upon certificates of officers of the Company or
its Subsidiaries, provided that such counsel shall state that they believe
that both the Purchasers and they are justified in relying upon such
opinions and certificates);
(vi) This Agreement has been duly authorized, executed
and delivered by the Issuers;
(vii) The Registration Rights Agreement has been duly
authorized, executed and delivered by the Issuers;
(viii) The Securities have been duly authorized and, when
issued and delivered pursuant to this Agreement, will have been duly
executed, authenticated, issued and delivered and will constitute valid
and legally binding obligations of the Issuers entitled to the benefits
provided by the Indenture and enforceable against the Issuers in
accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization, moratorium and other laws of general
applicability relating to or affecting creditors' rights and to general
equity principles; and the Securities and the Indenture conform in all
material respects to the descriptions thereof in the Offering Circular;
(ix) The Indenture has been duly authorized, executed and
delivered by the Issuers and will constitute a valid and legally binding
instrument, enforceable in accordance with its terms against the Issuers,
subject, as to enforcement, to bankruptcy, insolvency, reorganization,
moratorium and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles;
(x) The Registration Rights Agreement has been duly authorized
by the Issuers and, when executed and delivered by the parties thereto,
will constitute a valid and legally binding instrument, enforceable in
accordance with its terms against the Issuers, subject, as to enforcement,
to bankruptcy, insolvency, reorganization, moratorium and other laws of
general applicability relating to or affecting creditors' rights, to
general equity principles; and the Registration Rights Agreement will
conform in all material respects to the description thereof in the
Offering Circular;
(xi) The issue and sale of the Securities and the compliance by
the Issuers with all of the provisions of the 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 the agreements listed on Schedule A hereto,
nor will such actions result in any violation of the provisions of the
Certificate of Limited Partnership or the partnership agreements or the
Certificate of Incorporation and By-laws of the Issuers and the
Subsidiaries, as appropriate, or any statute or, to the best of our
knowledge, any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Issuers or any of the
Subsidiaries or any of their properties;
(xii) The statements set forth in the Offering Circular under
the caption "Description of Senior Notes", insofar as they purport to
constitute a summary of the terms of the Securities, under the caption
"Certain United States Federal Tax Considerations for Non-United States
Holders" and under the caption "Offer and Resale", insofar as they purport
to describe the provisions of the laws and documents referred to therein,
are accurate, complete and fair in all material respects;
(xiii) No registration of the Securities under the Act, and no
qualification of an indenture under the United States Trust Indenture Act
of 1939 with respect thereto, is required for the offer, sale and initial
resale of the Securities by the Purchasers in the manner contemplated by
this Agreement;
(xiv) Although they do not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Offering Circular, except for those referred to in the opinion in
subsection (xii) of this Section 7(b), no facts have come to their
attention which have given them a reason to believe that the Offering
Circular or any further amendment thereto made by the Issuers prior to
such Time of Delivery (other than the financial statements (including the
notes thereto) and related schedules therein and financial data, as to
which such counsel need express no opinion) contained an untrue statement
of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading
or that, as of such Time of Delivery, the Offering Circular or any further
amendment or supplement thereto made by the Issuers prior to such Time of
Delivery (other than the financial statements (including the notes
thereto) and related schedules therein and financial data, as to which
such counsel need express no opinion) contains an untrue statement of a
material fact or omits to state a material fact necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading; and
(xv) The Company is not an "investment company" or an entity
"controlled" by an "investment company", as such terms are defined in the
Investment Company Act.
(c) Xxxxxxxxx and Xxxxx, L.L.P., special regulatory counsel for the
Issuers, shall have furnished to you their written opinion, dated the Time of
Delivery, in form and substance satisfactory to you, to the effect that:
(i) Except as set forth in the Offering Circular, each of the
Issuers and the Subsidiaries has all of the licenses, permits and
authorizations, if any, required by the FCC for the provision of cable
television service (as such counsel understands service to be provided),
where the failure to obtain or hold such license, permit or authorization
would reasonably be expected to have a Material Adverse Effect;
(ii) To the best of such counsel's knowledge after due inquiry,
each of the Issuers and the Subsidiaries has filed all current and routine
filings, reports, applications and submissions required under the
Communications Act of 1934, as amended, and the rules and regulations of
the FCC ;
(iii) To the best of such counsel's knowledge after due
inquiry, all relevant Statements of Account required by Section 111 of the
Copyright Act, as amended, and royalty payments accompanying said
statements of account have been submitted to the Licensing Division of the
United States Copyright Office with respect to the Systems of the Issuers
and the Subsidiaries. Such counsel may state that it did not prepare the
information or review the accuracy of the amounts contained therein and
express no opinion with respect thereto and that its opinion is expressly
limited to the determination of whether such statements of Account were
filed and the stated royalty fees paid for the applicable periods. To the
best of such counsel's knowledge, after due inquiry, there have been no
inquiries received from the United States Copyright Office or any other
party which would reasonably be expected to have a Material Adverse Effect
or which question the Statements of Account or any copyright payments made
by the Issuers and the Subsidiaries with respect to the Systems of the
Issuers and the Subsidiaries, and there is no claim, action, or demand for
copyright infringement or for non-payment of royalties pending or
threatened against the Issuers and the Subsidiaries with respect to the
Systems;
(iv) There are no actions, suits or proceedings pending or, to
the best of such counsel's knowledge, threatened by or before any court or
governmental body within the United States or elsewhere against or
affecting the Issuers or the Subsidiaries, or the business of the Issuers
or the Subsidiaries, in which an unfavorable ruling, decision or finding
would reasonably be expected to have a Material Adverse Effect;
(v) In counsel's opinion, the statements in the Offering
Circular under the headings "Risk Factors - Regulation in the
Telecommunications Industry," "Risk Factors - Competition," "Risk Factors
Introduction of New Services," "Business," and "Legislation and
Regulation" insofar as they purport to describe the provisions of the laws
referred to therein, are accurate, complete and fair in all material
respects;
(vi) The Company has the consents, approvals and authorizations
of the FCC, if any, required for the consummation of the transactions
contemplated in the Purchase Agreement where the failure to obtain the
consents, approvals, authorizations, licenses, certificates, permits or
orders would reasonably be expected to have a Material Adverse Effect; and
(vii) Neither the execution and delivery of the Purchase
Agreement nor the offering of the Senior Notes contemplated thereby will
conflict with or result in a violation of any order or regulation of the
FCC applicable to the Issuers and the Subsidiaries, the conflict with or
the violation of which would reasonably be expected to have a Material
Adverse Effect. Such counsel may qualify the foregoing with respect to
security interests in FCC licenses and the requirement for FCC approval
prior to any assignment or transfer of control of any FCC license.
(d) Xxxxxxx X. Xxxxxx, general counsel of Adelphia Communications
Corporation, a Delaware corporation, shall have furnished to you his
written opinion, dated the Time of Delivery, in form and substance
satisfactory to you, to the effect that:
(i) Except as set forth in the Offering Circular, each of the
Issuers and the Subsidiaries has all of the licenses, permits, franchises
and authorizations, if any, required by the relevant governmental
authorities of the State of Florida and/or its political subdivisions for
the provision of cable television service (as such counsel understands
service to be provided which may be based on a certificate of an officer
of the Issuers, provided that such counsel shall state that they believe
that both the Purchasers and they are justified in relying on such
certificate), where the failure to obtain or hold such license, permit,
franchise or authorization would have a Material Adverse Effect on the
Issuers and the Subsidiaries;
(ii) To the best of such counsel's knowledge after due inquiry,
each of the Issuers and the Subsidiaries has made all filings, reports,
applications and submissions required by the laws and ordinances relating
to cable services of the State of Florida, and the ordinances of the
state's political subdivisions relating thereto, and the rules and
regulations promulgated therewith;
(iii) Each of the Issuers and the Subsidiaries has the
consents, approvals, authorizations, licenses, certificates, permits, or
orders of any governmental authorities of the State of Florida and its
political subdivisions, if any, required for the consummations of the
transactions contemplated in the Purchase Agreement where the failure to
obtain the consents, approvals, authorizations, licenses, certificates,
permits or orders would have a Material Adverse Effect on the Issuers and
the Subsidiaries;
(iv) There are no actions, suits or proceedings pending or, to
the best of such counsel's knowledge, threatened by or before any court or
governmental body within the State of Florida against or affecting any of
the Issuers or the Subsidiaries, or the business of the Issuers and the
Subsidiaries;
(v) The statements in the Offering Circular under the headings
"Risk Factors - Regulation in the Telecommunications Industry," "Risk
Factors - Competition," Risk Factors - Introduction to New Services,"
"Business," and "Legislation and Regulation", insofar as they relate to
the Issuer's and the Subsidiaries operations in the State of Florida and
purport to describe the provisions of the laws and documents referred to
therein, are accurate, complete and fair in all material respects; and
(vi) Neither the execution and delivery of the Purchase
Agreement nor the offering of the Senior Notes contemplated thereby will
conflict with or result in a violation of any order or regulation of the
State of Florida or its political subdivisions applicable to the Issuers
and the Subsidiaries, the conflict with or the violation of which would
have a Material Adverse Effect on the Issuers and the Subsidiaries.
(e) Xxxxx Xxxxxx, deputy general counsel to the Issuers, shall have
furnished to you his written opinion, dated the Time of Delivery, in form
and substance satisfactory to you, to the effect that:
(i) None of the Issuers or the Subsidiaries is in violation of
its Certificate of Limited partnership, partnership agreement, Certificate
of Incorporation or by-laws, as applicable, or in default in the
performance or observance of any material obligation, covenant or
condition contained in any partnership agreement, 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 may be bound;
(ii) Each of the Issuers and the Subsidiaries has been duly
qualified as a foreign partnership or corporation, 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 material
liability or disability by reason of the failure to be so qualified in any
such jurisdiction, except where the failure to so qualify would not have a
Material Adverse Effect (such counsel being entitled to rely in respect of
the opinion in this clause upon opinions of local counsel and in respect
of matters of fact upon certificates of officers of the Issuers, provided
that such counsel shall state that they believe that both the Purchasers
and they are justified in relying upon such opinions and certificates);
(iii) Each Subsidiary of the Company listed on Schedule C
hereto is owned of record by the Company as indicated on Schedule C and to
the best of such counsel's knowledge owned free and clear of all security
interests, liens or other encumbrances (other than liens to secure
indebtedness under credit facilities disclosed in the Offering Circular)
(such counsel being entitled to rely in respect of the opinion in this
clause upon opinions of local counsel and in respect of matters of fact
upon certificates of officers of the Company or its Subsidiaries, provided
that such counsel shall state that they believe that both the Purchasers
and they are justified in relying upon such opinions and certificates);
(iv) To the best of such counsel's knowledge and other than as
set forth in the Offering Circular, there are no legal or governmental
proceedings pending to which the Issuers or any of the Subsidiaries is a
party or of which any property of the Issuers or any of the Subsidiaries
is the subject which, if determined adversely to the Issuers or any of the
Subsidiaries, would individually or in the aggregate have a Material
Adverse Effect on the current or future consolidated financial position,
partners' equity, shareholder's equity or results of operations of the
Issuers and the Subsidiaries; and, to the best of such counsel's
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(v) The issue and sale of the Securities and the compliance by
the Issuers with all of the provisions of the 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 any material indenture, mortgage, deed of
trust, sale/leaseback transaction, loan agreement or other similar
financing agreement, or instrument or other agreement or instrument
(including, without limitation, any license or franchise granted to the
Issuers or a Subsidiary by a local franchising governmental body) to which
the Issuer or any of the Subsidiaries is a party or by which the Issuer or
any of the Subsidiaries is bound or to which any of the property or assets
of the Issuer or any of the Subsidiaries is subject, nor will such actions
result in any violation of the provisions of the Certificate of Limited
Partnership or the partnership agreements or the Certificate of
Incorporation and By-laws of the Issuers and the Subsidiaries, as
appropriate, or any statute or any order, rule or regulation of any court
or governmental agency or body having jurisdiction over the Issuers or any
of the Subsidiaries or any of their properties; and
(vi) 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 or the consummation
by the Issuers of the transactions contemplated by this Agreement, the
Indenture or the Registration Rights Agreement, except such consents,
approvals, authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection with the
purchase and distribution of the Securities by the Purchasers.
(f) On the date of the Offering Circular prior to the execution of
this Agreement and also at the Time of Delivery, Deloitte & Touche LLC,
Ernst & Young LLP and Geo. S. Olive & Co., LLC, each 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 II, hereto;
(g) (i) None of the Issuers or the Subsidiaries has 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 has not been any reduction in the
consolidated partners' equity or change in capital stock, as applicable,
increase in the total amount of short-term debt (excluding trade payables)
and long-term debt of the Issuers or the Subsidiaries or any change, or
any development involving a prospective change, in or affecting the
general affairs, management, financial position, partners' equity,
stockholders' equity or results of operations of the Issuers or the
Subsidiaries in each case, otherwise than as set forth or contemplated 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;
(h) On or after the date hereof there shall not have occurred (i) any
downgrading in the rating accorded the Company's debt securities by any
"nationally recognized statistical rating organization", as that term is
defined by the Commission for purposes of Rule 436(g)(2) under the Act,
(ii) any such organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, its rating of
any of the Company's debt securities, (iii) a general moratorium on
commercial banking activities shall be declared by either Federal or New
York State authorities; (iv) any 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; or (v) any material adverse change in the existing financial,
political or economic conditions in the United States or elsewhere which,
in the judgment of the Purchasers, would materially and adversely affect
the financial markets or the market for the Securities and other debt
securities;
(i) The Securities have been designated for trading on PORTAL; and
(j) Each of the Issuers shall have furnished or caused to be
furnished to the Purchasers at the Time of Delivery certificates of
officers of the Issuers satisfactory to the Purchasers as to the accuracy
of the representations and warranties of the Issuers herein at and as of
such Time of Delivery, as to the performance by each of the Issuers of all
of its obligations hereunder to be performed at or prior to such Time of
Delivery, as to the matters set forth in subsections (a) and (g) of this
Section and as to such other matters as the Purchasers may reasonably
request.
8. (a) The Issuers jointly and severally, will indemnify and hold
harmless the Purchasers against any losses, claims, damages or
liabilities, joint or several, to which the Purchasers may become subject,
under the 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
(including the international supplement thereto), and any amendments or
supplements 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 the Purchasers for
any legal or other expenses reasonably incurred by the Purchasers in
connection with investigating or defending any such action or claim as
such expenses are incurred; provided, however, that the Issuers 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 Issuers by the Purchasers expressly for use therein.
(b) The Purchasers will indemnify and hold harmless the Issuers
against any losses, claims, damages or liabilities to which the Issuers
may become subject, under the 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 (including the international supplement thereto), 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 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 (including the international
supplement thereto) or any such amendment or supplement in reliance upon
and in conformity with written information furnished to the Issuers by the
Purchasers expressly for use therein; and will reimburse the Issuers 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 Issuers 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 Issuers on the one hand and the Purchasers on the other in connection
with the 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 Issuers 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 Issuers 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 Issuers 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 Issuers 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 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), the Purchasers shall not be required to
contribute any amount in excess of the amount by which the total price at
which the Securities underwritten by it and distributed to investors were
offered to investors exceeds the amount of any damages which the
Purchasers have otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission.
(e) The obligations of the Issuers under this Section 8 shall be in
addition to any liability which the Issuers may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls the Purchasers within the meaning of the Act; and the obligations
of the Purchasers under this Section 8 shall be in addition to any
liability which the Purchasers may otherwise have and shall extend, upon
the same terms and conditions, to each officer and director of the Issuers
and to each person, if any, who controls the Issuers within the meaning of
the Act.
9. The respective indemnities, agreements, representations, warranties and
other statements of each of the Issuers and the 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 the Purchasers or any controlling person of the Purchasers, the Issuers, or
the Subsidiaries or any officer or director or controlling person of the Issuers
or the Subsidiaries, and shall survive delivery of and payment for the
Securities.
10. If this Agreement shall be terminated or for any reason, the
Securities are not delivered by or on behalf of the Issuers as provided herein,
the Issuers will reimburse the Purchasers for all out-of-pocket expenses,
including fees and disbursements of counsel, reasonably incurred by the
Purchasers in making preparations for the purchase, sale and delivery of the
Securities, but the Issuers shall then be under no further liability to the
Purchasers except as provided in Sections 6 and 8 hereof.
11. 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 the Purchasers at 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Registration Department; and if to the Issuers shall be
delivered or sent by mail, telex or facsimile transmission to the address of the
Issuers set forth in the Offering Circular, Attention: Secretary; provided,
however, that any notice to the Purchasers pursuant to Section 8(c) hereof shall
be delivered or sent by mail, telex or facsimile transmission to the Purchasers
at its address above and 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, and the Issuers, to the extent provided in Sections 8 and 9
hereof, the officers and directors of each of the Issuers and each person who
controls either of the Issuers or the Purchasers, 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 the Purchasers 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.
If the foregoing is in accordance with your understanding, please sign and
return to us four counterparts hereof, and upon the acceptance hereof by the
Purchasers this letter and such acceptance hereof shall constitute a binding
agreement between the Purchasers and the Issuers.
Very truly yours,
Olympus Communications, L.P.
By: ACP Holdings, Inc.
Managing General Partner
By: ________________________________
Name:
Title:
Olympus Capital Corporation
By: ________________________________
Name:
Title:
Accepted as of the date hereof:
Xxxxxxx, Xxxxx & Co.
------------------------------
(Xxxxxxx, Sachs & Co.)
ANNEX I
The Securities have not been and will not be registered under the 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 Act or pursuant to an exemption from the registration requirements of the
Act. The Purchasers represent that they have offered and sold the Securities,
and will offer and sell the Securities (i) as part of their distribution at any
time and (ii) otherwise until 40 days after the later of the commencement of the
offering and the Time of Delivery, only in accordance with Rule 903 of
Regulation S, Rule 144A or pursuant to Paragraph 2 of this Annex I under the
Act. Accordingly, the Purchasers agree that neither it, its affiliates nor any
persons acting on its or their behalf has engaged or will engage in any directed
selling efforts with respect to the Securities, and it and they have complied
and will comply with the offering restrictions requirement of Regulation S. The
Purchasers agree that, at or prior to confirmation of sale of Securities (other
than a sale pursuant to Rule 144A) or pursuant to Paragraph 2 of this Annex I,
it will have sent to each distributor, dealer or person receiving a selling
concession, fee or other remuneration that purchases Securities from it during
the restricted period a confirmation or notice to substantially the following
effect:
"The Securities covered hereby have not been registered under the
U.S. Securities Act of 1933 (the "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 and the
closing date, except in either case in accordance with Regulation S (or
Rule 144A if available) under the Act. Terms used above have the meaning
given to them by Regulation S."
Terms used in this paragraph have the meanings given to them by Regulation S.
(1) Each Purchaser further represents and agrees that (a) it has not
offered or sold and prior to the date six months after the date of issue of the
Securities will not offer or sell any Securities to persons in the United
Kingdom 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, (b) it
has complied, and will comply, with all applicable provisions of the Financial
Services Act of 1986 of Great Britain with respect to anything done by it in
relation to the Securities in, from or otherwise involving the United Kingdom,
and (c) 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 Securities to a person who is of a kind described in Article 11(3) of the
Financial Services Xxx 0000 (Investment Advertisements) (Exemptions) Order 1996
of Great Britain or is a person to whom the document may otherwise lawfully be
issued or passed on.
(2) Each Purchaser agrees that it will not offer, sell or deliver any of
the Securities in any jurisdiction outside the United States except under
circumstances that will result in compliance with the applicable laws thereof,
and that it will take at its own expense whatever action is required to permit
its purchase and resale of the Securities in such jurisdictions. Each Purchaser
understands that no action has been taken to permit a public offering in any
jurisdiction outside the United States where action would be required for such
purpose.
ANNEX II
Pursuant to Section 7(e) of the Purchase Agreement, the accountants shall
furnish letters to the Purchasers to the effect that:
(i) They are independent certified public accountants with respect to
the Issuers and their Subsidiaries under rule 101 of the American
Institute of Certified Public Accountants' Code of Professional Conduct,
and its interpretations and rulings;
(ii)In our opinion, the consolidated financial statements and
financial statement schedules audited by us and included in the Offering
Circular comply as to form in all material respects with the applicable
requirements of the Exchange Act and the related published rules and
regulations;
(iii) The unaudited selected financial information with respect to
the consolidated results of operations and financial position of the
Company for the five most recent fiscal years included in the Offering
Circular agrees with the corresponding amounts (after restatements where
applicable) in the audited consolidated financial statements for such five
fiscal years;
(iv)On the basis of limited procedures not constituting an audit in
accordance with generally accepted auditing standards, consisting of a
reading of the unaudited financial statements and other information
referred to below, a reading of the latest available interim financial
statements of the Issuers and their Subsidiaries, inspection of the minute
books of the Issuers and its Subsidiaries since the date of the latest
audited financial statements included in the Offering Circular, inquiries
of officials of the Issuers and its Subsidiaries responsible for financial
and accounting matters and such other inquiries and procedures as may be
specified in such letter, nothing came to their attention that caused them
to believe that:
(A) the unaudited consolidated statements of operations,
consolidated balance sheets and consolidated statements of cash
flows included in the Offering Circular are not in conformity with
generally accepted accounting principles applied on the basis
substantially consistent with the basis for the unaudited condensed
consolidated statements of operations, consolidated balance sheets
and consolidated statements of cash flows included in the Offering
Circular;
(B) any other unaudited statement of operations data and balance
sheet items included in the Offering Circular do not agree with the
corresponding items in the unaudited consolidated financial
statements from which such data and items were derived, and any such
unaudited data and items were not determined on a basis
substantially consistent with the basis for the corresponding
amounts in the audited consolidated financial statements included in
the Offering Circular;
(C) the unaudited financial statements which were not included in
the Offering Circular but from which were derived any unaudited
condensed financial statements referred to in Clause (A) and any
unaudited statement of operations data and balance sheet items
included in the Offering Circular and referred to in Clause (B) were
not determined on a basis substantially consistent with the basis
for the audited consolidated financial statements included in the
Offering Circular;
(D) as of a specified date not more than five days prior to the
date of such letter, there have been any changes in the consolidated
partner's equity (deficiency) or capital stock, as applicable (other
than issuances of capital stock upon exercise of options and stock
appreciation rights, upon earn-outs of performance shares and upon
conversions of convertible securities, in each case which were
outstanding on the date of the latest financial statements included
in the Offering Circular) or any increase in the consolidated
long-term debt of the Company and its Subsidiaries, partner's equity
(deficiency) or stockholders' equity, as applicable or other items
specified by the Purchasers, or any increases in any items specified
by the Purchasers, in each case as compared with amounts shown in
the latest balance sheet included in the Offering Circular except in
each case for changes, increases or decreases which the Offering
Circular discloses have occurred or may occur or which are described
in such letter; and
(E) for the period from the date of the latest financial
statements included in the Offering Circular to the specified date
referred to in Clause (D) there were any decreases in consolidated
net revenues or income from operations or increases in the total or
per share amounts of consolidated net loss or other items specified
by the Purchasers, or any increases in any items specified by the
Purchasers, in each case as compared with the comparable period of
the preceding year and with any other period of corresponding length
specified by the Purchasers, except in each case for decreases or
increases which the Offering Circular discloses have occurred or may
occur or which are described in such letter; and
(v) In addition to the examination referred to in their report(s)
included in the Offering Circular and the limited procedures, inspection
of minute books, inquiries and other procedures referred to in paragraphs
(iii) and (iv) above, they have carried out certain specified procedures,
not constituting an audit in accordance with generally accepted auditing
standards, with respect to certain amounts, percentages and financial
information specified by the Purchasers, which are derived from the
general accounting records of the Company and its Subsidiaries, which
appear in the Offering Circular, and have compared certain of such
amounts, percentages and financial information with the accounting records
of the Company and its Subsidiaries and have found them to be in
agreement.
SCHEDULE A
A-1
1. Revolving Credit Facility, dated as of May 12, 1995, among Adelphia Cable
Partners, L.P., Southeast Florida Cable, Inc., West Boca Acquisition
Limited Partnership, the lenders from time to time party thereto, and the
agents thereto including any related notes, guarantees, collateral
documents, instruments and agreements executed in connection therewith.
2. Amended and Restated Credit Agreement, dated as of March 29, 1996, by and
among Highland Video Associates, L.P., Telesat Acquisition Limited
Partnership, Global Acquisition Partners, L.P. and the lenders from time
to time party thereto including any related notes, guarantees, collateral
documents, instruments and agreements executed in connection therewith.
SCHEDULE B
B-1
Adelphia Cable Partners, L.P.
West Boca Acquisition Limited Partnership
Leadership Acquisition Limited Partnership.
Ownership by the
Company and its Subsidiaries
Timotheos Communications, L.P. 100%
West Boca Security, Inc.
Starpoint Limited Partnership 50.36%
Cable Sentry Corporation 100%*
Key Biscayne Cablevision 50%
Southeast Florida Cable, Inc. 100%
Palm Beach Group Cable, Inc. 100%
Palm Beach Group Cable Joint Venture 50%
*owned by Starpoint Limited Partnership
