Exhibit 1.1
EXECUTION COPY
$59,999,901 (Gross Proceeds)
TELEMUNDO HOLDINGS, INC.
11 1/2% Senior Discount Notes Due 2008
PURCHASE AGREEMENT
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July 30, 2001
CREDIT SUISSE FIRST BOSTON CORPORATION
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
c/o Credit Suisse First Boston Corporation
Xxxxxx Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
1. Introductory. Telemundo Holdings, Inc., a Delaware corporation (the
"Company"), proposes, subject to the terms and conditions stated herein, to
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issue and sell to the several initial purchasers named in Schedule A hereto
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(collectively, the "Initial Purchasers") $75,153,000 aggregate principal amount
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at maturity of its 11 1/2% Senior Discount Notes Due 2008 (the "Notes") to be
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issued under an indenture, dated as of August 10, 2001 (the "Indenture"),
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between the Company and The Bank of New York, as Trustee.
The Initial Purchasers and their direct and indirect transferees of
the Notes will be entitled to the benefits of a Registration Rights Agreement,
substantially in the form attached hereto as Exhibit A (the "Registration Rights
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Agreement"), pursuant to which the Company will agree, among other things, to
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file a registration statement with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Securities
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Act").
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This Agreement, the Notes, the Exchange Securities (as defined in the
Registration Rights Agreement), the Indenture and the Registration Rights
Agreement are referred to herein as the "Operative Agreements."
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The Company hereby agrees with the several Initial Purchasers as
follows:
2. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, the several Initial Purchasers
that:
(a) An offering circular to be dated as of the date hereof (the
"Offering Circular") relating to the Notes to be offered by the Initial
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Purchasers will be prepared by the Company. The Offering Circular, as of
its date and as of the Closing Date (as defined below), will not include
any 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, not misleading. The preceding
sentence does not apply to statements in or omissions from the Offering
Circular based upon written information furnished to the Company by or on
behalf of any Initial Purchaser
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through Credit Suisse First Boston Corporation ("CSFBC") specifically for
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use therein, it being understood and agreed that the only such information
is that described as such in Section 7(b) hereof.
(b) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware, with
power and authority (corporate and other) to own its properties and conduct
its business as described in the Offering Circular; and the Company is duly
qualified to do business as a foreign corporation in good standing in all
other jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification except where the
failure to so qualify or to be in good standing could not, singly or in the
aggregate, reasonably be expected to have a material adverse effect on the
condition (financial or other), business, properties, results of operations
or prospects of the Company and the Subsidiaries, taken as a whole (a
"Material Adverse Effect").
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(c) Schedule B hereto lists each entity in which the Company has,
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directly or indirectly, a majority voting or equity interest (such
entities, collectively, the "Subsidiaries"). Each Subsidiary has been duly
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incorporated and is an existing corporation in good standing under the laws
of the jurisdiction of its incorporation, with power and authority
(corporate and other) to own its properties and conduct its business as
described in the Offering Circular; and each Subsidiary is duly qualified
to do business as a foreign corporation in good standing in all other
jurisdictions in which its ownership or lease of property or the conduct of
its business requires such qualification, except where the failure to so
qualify or to be in good standing could not, singly or in the aggregate,
reasonably be expected to have a Material Adverse Effect. All of the issued
and outstanding capital stock of each Subsidiary has been duly authorized
and validly issued and is fully paid and nonassessable; and, except as
described in the Offering Circular, all of the capital stock of each
Subsidiary is owned directly by the Company or indirectly through another
Subsidiary, free from liens, encumbrances and defects.
(d) The Company has all requisite corporate power and authority to
execute, deliver and perform its obligations under the Operative
Agreements, including the issuance and sale of the Notes. This Agreement
has been duly authorized, executed and delivered by the Company. Each of
the Operative Agreements has been duly authorized by the Company.
(e) The Indenture meets the requirements for qualification under the
Trust Indenture Act of 1939, as amended (the "TIA"). When executed and
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delivered by the Company on the Closing Date (as defined below), the
Indenture will have been duly executed and delivered by the Company and
(assuming due authorization, execution and delivery thereof by the Trustee)
will constitute a valid and legally binding agreement of the Company,
enforceable in accordance with its terms, subject to bankruptcy, fraudulent
conveyance, insolvency, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and to
general equity principles (the "Bankruptcy Limitations").
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(f) When executed, issued and authenticated in accordance with the
terms of the Indenture and delivered to and paid for by the Initial
Purchasers pursuant to this Agreement on the Closing Date, the Notes will
have been duly executed, issued, authenticated and delivered and will
constitute valid and legally binding obligations of the Company, entitled
to the benefits of the Indenture and enforceable in accordance with their
terms, subject to the Bankruptcy Limitations.
(g) When executed, issued and authenticated in accordance with the
terms of the Indenture and delivered in exchange for Notes pursuant to the
Registration Rights Agreement, the Ex-
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change Securities will have been duly executed, issued, authenticated and
delivered and will constitute valid and legally binding obligations of the
Company, entitled to the benefits of the Indenture and enforceable in
accordance with their terms, subject to the Bankruptcy Limitations.
(h) When executed and delivered by the Company on the Closing Date,
the Registration Rights Agreement will have been duly executed and
delivered by the Company and (assuming due authorization, execution and
delivery thereof by the Initial Purchasers) will constitute a valid and
legally binding agreement of the Company, enforceable in accordance with
its terms, (x) except as rights of indemnity or contribution, or both, may
be limited by state and federal securities laws or public policy underlying
such laws, and (y) subject to the Bankruptcy Limitations.
(i) Except as disclosed in the Offering Circular, there are no
contracts, agreements or understandings between the Company or any
Subsidiary and any person (other than the Initial Purchasers) that would
give rise to a valid claim against the Company or any Initial Purchaser for
a brokerage commission, finder's fee or other like payment in connection
with the issuance, purchase and sale of the Notes.
(j) No consent, approval, authorization or order of, or filing with,
any governmental agency or body or any court, domestic or foreign (a
"Governmental Authority") is required by the Company or any of the
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Subsidiaries for the issuance and sale of the Notes and the use of proceeds
therefrom as described in the Offering Circular, except (i) such as may be
required under state securities and Blue Sky laws and regulations, (ii)
those that have been obtained or made and are in full force and effect,
(iii) consents that are required under the Company's senior secured credit
facilities (the "Credit Agreement"), which will be obtained prior to the
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Closing Date, (iv) such as may be required from the Federal Communications
Commission (the "FCC") and under the Xxxx-Xxxxx-Xxxxxx Antitrust
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Improvements Act of 1976, as amended (the "HSR"), to consummate the
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acquisition of KXTX as described in the Offering Circular and (v) those
that could not, singly or in the aggregate, reasonably be expected to have
a Material Adverse Effect and would not materially or adversely affect the
ability of the Company to perform its obligations under the Operative
Agreements.
(k) The execution, delivery and performance of the Operative
Agreements and the issuance and sale of the Notes and compliance with the
terms and provisions thereof will not result in a breach or violation of
(x) any of the terms and provisions of, or constitute a default under, any
statute, rule, regulation or order of any Governmental Authority, (y) any
agreement or instrument to which the Company or any Subsidiary is a party
or by which the Company or any Subsidiary is bound or which any of their
respective property is subject or affected, or (z) the charter or by-laws
of the Company or any Subsidiary, except, in the case of clause (x) or (y),
(i) for such breaches, violations and defaults as could not, singly or in
the aggregate, reasonably be expected to have a Material Adverse Effect and
would not materially or adversely affect the ability of the Company to
perform its obligations under the Operative Agreements and (ii) that
consents are required under the Credit Agreement and will be obtained prior
to the Closing Date.
(l) Neither the Company nor any Subsidiary is in a breach or violation
of (x) any of the terms and provisions of, or a default under, any statute,
rule, regulation or order of any Governmental Authority, (y) any agreement
or instrument to which the Company or any Subsidiary is a party or by which
the Company or any Subsidiary is bound or which any of their respective
property is subject or affected, or (z) the charter or by-laws of the
Company or any Subsidiary, except, in the case of clause (x) or (y), for
such breaches, violations and defaults as could not, singly or in the ag-
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gregate, reasonably be expected to have a Material Adverse Effect and would
not materially or adversely affect the ability of the Company to perform
its obligations under the Operative Agreements.
(m) Except as disclosed in the Offering Circular, the Company and the
Subsidiaries have good and marketable title to all real property and all
other property owned by them and necessary to the operation of their
respective businesses, in each case free from liens, encumbrances and
defects that would materially affect the value thereof or materially
interfere with the use made or to be made thereof by them; and except as
disclosed in the Offering Circular, the Company and the Subsidiaries hold
any leased real or personal property under valid and enforceable leases
with no exceptions that would materially interfere with the use made or to
be made thereof by them.
(n) Except as disclosed in the Offering Circular, the Company and the
Subsidiaries own, hold or possess adequate certificates, licenses,
authorities, permits, or other rights issued by appropriate Governmental
Authorities, including without limitation the FCC ("Licenses"), necessary
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to conduct the business now operated by them, except where the failure to
have such Licenses could not, singly or in the aggregate, reasonably be
expected to have a Material Adverse Effect. Neither the Company nor any
Subsidiary has received any notice of proceedings relating to the
revocation or modification of any such License that, if determined
adversely to the Company or any Subsidiary, could, singly or in the
aggregate, reasonably be expected to have a Material Adverse Effect.
(o) Except as disclosed in the Offering Circular, no material labor
dispute with the employees of the Company or any Subsidiary exists or, to
the knowledge of the Company, is imminent.
(p) The Company and the Subsidiaries own, possess or can acquire on
reasonable terms, adequate trademarks, trade names and other rights to
inventions, know-how, patents, copyrights, confidential information and
other intellectual property (collectively, "intellectual property rights")
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necessary to conduct the business now operated by them, or presently
employed by them, and have not received any notice of infringement of or
conflict with asserted rights of others with respect to any intellectual
property rights that, if determined adversely to the Company or any
Subsidiary, could, singly or in the aggregate, reasonably be expected to
have a Material Adverse Effect.
(q) Except as disclosed in the Offering Circular, neither the Company
nor any Subsidiary is in violation of any applicable statute, rule,
regulation, decision or order of any Governmental Authority relating to the
use, disposal or release of hazardous or toxic substances or relating to
the protection or restoration of the environment or human exposure to
hazardous or toxic substances (collectively, "environmental laws"), owns or
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operates any real property that, to its knowledge, (i) is contaminated with
any substance that is subject to any environmental laws, (ii) is liable for
any off-site disposal or contamination pursuant to any environmental laws,
or (iii) is subject to any claim relating to any environmental laws, which
violation, contamination, liability or claim could, singly or in the
aggregate, reasonably be expected to have a Material Adverse Effect; and
the Company is not aware of any pending investigation which might lead to
such a claim.
(r) Except as disclosed in the Offering Circular, there are no pending
actions, suits or proceedings against or affecting the Company or any such
Subsidiary or any of their respective property that, if determined
adversely to the Company or such Subsidiary, could, singly or in the
aggregate, reasonably be expected to have a Material Adverse Effect, or
would materially and adversely affect the ability of the Company to perform
its obligations under the Operative Agreements, or which are otherwise
material in the context of the issuance and sale of the Notes and the use
of pro-
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ceeds therefrom as described in the Offering Circular and no such actions,
suits or proceedings are, to the Company's knowledge, threatened.
(s) The financial statements (including the notes thereto) included in
the Offering Circular present fairly, in all material respects, the
financial position of the entities to which they relate as of the dates
shown and their results of operations and cash flows for the periods shown,
and, except as otherwise disclosed in the Offering Circular, such financial
statements have been prepared in conformity with the generally accepted
accounting principles in the United States ("U.S. GAAP"), applied on a
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consistent basis and comply as to form in all material respects with the
applicable accounting requirements of the Securities Act and the rules and
regulations thereunder. The summary and selected financial and statistical
data included in the Offering Circular present fairly in all material
respects the information shown therein and have been prepared and applied
on a basis consistent with the audited financial statements included
therein, except as otherwise stated therein, and, in the case of the
selected financial data, include in all material respects the information
called for therein applicable to the accounting requirements of the
Securities Act and the rules and regulations thereunder.
(t) The pro forma financial statements (including the notes thereto)
included in the Offering Circular (x) excluding the pro forma statement of
operations for the 12 months ended July 30, 2001, comply as to form in all
material respects with the applicable requirements of Regulation S-X under
the Securities Exchange Act of 1934, as amended (the "Exchange Act") and
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(y) have been properly compiled on the bases described therein. In the
opinion of the Company, the assumptions used in the preparation of such pro
forma financial statements are reasonable and the adjustments used therein
are appropriate to give effect to the transactions and circumstances
referred to therein.
(u) Except as disclosed in the Offering Circular, since the date of
the latest audited financial statements included in the Offering Circular,
there has been no material adverse change, nor any development or event
involving a prospective material adverse change, in the condition
(financial or other), business, properties or results of operations of the
Company and the Subsidiaries taken as a whole, and, except as disclosed in
or contemplated by the Offering Circular, there has been no dividend or
distribution of any kind declared, paid or made by the Company on any class
of its capital stock. Each of Deloitte & Touche LLP and Xxxxxx Xxxxxxxx LLP
is an independent public accounting firm as required by the Securities Act
and the rules and regulations thereunder.
(v) The Company is not an open-end investment company, unit investment
trust or face amount certificate company that is or is required to be
registered under Section 8 of the United States Investment Company Act of
1940 (the "Investment Company Act"), and the Company is not and, after
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giving effect to the offering and sale of the Notes and the application of
the proceeds thereof as described in the Offering Circular, will not be an
"investment company" as defined in the Investment Company Act.
(w) No securities of the same class (within the meaning of Rule
144A(d)(3) under the Securities Act) as the Notes are listed on any
national securities exchange registered under Section 6 of the Exchange Act
or quoted in a U.S. automated inter-dealer quotation system. No holder of
securities of the Company (except as set forth in the Registration Rights
Agreement) will be entitled to have such securities registered under the
registration statements required to be filed by the Company pursuant to the
Registration Rights Agreement other than as expressly permitted thereby.
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(x) The offer and sale of the Notes in the manner contemplated by this
Agreement (assuming that the representations and warranties in Section 4
hereof are true and correct and the Initial Purchasers comply with the
offer and sale procedures set forth in this Agreement) will be exempt from
the registration requirements of the Securities Act by reason of Section
4(2) thereof and by reason of Regulation S thereunder; and it is not
necessary to qualify an indenture in respect of the Notes under the TIA.
(y) Neither the Company, nor any of its affiliates, nor any person
acting on its or their behalf (i) has, within the six-month period prior to
the date hereof, offered or sold in the United States or to any U.S. person
(as such terms are defined in Regulation S under the Securities Act) the
Notes or any security of the same class or series as the Notes or (ii) has
offered or will offer or sell the Notes (A) in the United States by means
of any form of general solicitation or general advertising within the
meaning of Rule 502(c) under the Securities Act or (B) with respect to any
such securities sold in reliance on Rule 903 of Regulation S ("Regulation
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S") under the Securities Act, by means of any directed selling efforts
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within the meaning of Rule 902(b) of Regulation S. The Company, its
affiliates and any person acting on its or their behalf have complied and
will comply with the offering restrictions requirement of Regulation S. The
Company has not entered and will not enter into any contractual arrangement
with respect to the distribution of the Notes except for this Agreement.
(z) The statistical and market-related data included in the Offering
Circular are based on or delivered from sources which the Company believes
to be reliable.
(aa) Neither the transactions contemplated by this Agreement nor the
sale, issuance, execution or delivery of the Securities (as defined in the
Registration Rights Agreement) will violate Regulation T, U or X of the
Board of Governors of the Federal Reserve System.
(bb) There is no "substantial U.S. market interest" as defined in Rule
902(j) of Regulation S in the Company's debt securities.
3. Purchase, Sale and Delivery of Notes. On the basis of the
representations, warranties and agreements of the Initial Purchasers herein
contained, the Company agrees to sell to the Initial Purchasers, and on the
basis of representations, warranties and agreements of the Company herein
contained, but subject to the terms and conditions herein set forth, the Initial
Purchasers agree, severally and not jointly, to purchase the Notes, at a
purchase price equal to 77.0427% of the principal amount at maturity thereof
plus the increase in accreted value from August 10, 2001 to the Closing Date in
the respective principal amounts of Notes set forth opposite the names of the
several Initial Purchasers in Schedule A hereto.
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The Company will deliver against payment of the purchase price the
Notes in the form of one or more permanent global Notes in definitive form (the
"Global Securities") deposited with the Trustee as custodian for The Depository
Trust Company ("DTC") and registered in the name of Cede & Co., as nominee for
DTC. Interests in any permanent Global Securities will be held only in
book-entry form through DTC, except in the limited circumstances described in
the Offering Circular.
Payment for the Notes shall be made by the Initial Purchasers in
Federal (same day) funds by official check or checks or wire transfer to an
account at a bank acceptable to CSFBC designated by the Company drawn to the
order of the Company at the office of Xxxxxx Xxxxxx & Xxxxxxx, 00 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx at 9:00 A.M. (New York time), on August 10, 2001 or at such
other time not later than seven full business days thereafter as CSFBC and the
Company determine, such time being herein referred to as the "Closing Date",
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against delivery to the Trustee as custodian for DTC of the Global Securities.
The
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Global Securities will be made available for checking at the above office of
Xxxxxx Xxxxxx & Xxxxxxx at least 24 hours prior to the Closing Date.
4. Representations by Initial Purchasers; Resale by Initial
Purchasers. (a) Each Initial Purchaser severally represents and warrants to the
Company that it is an "accredited investor" within the meaning of Regulation D
under the Securities Act.
(b) Each Initial Purchaser severally acknowledges that the Notes have
not been registered under the Securities Act and may not be offered or sold
within the United States or to, or for the account or benefit of, U.S. persons
except to qualified institutional buyers in reliance on Rule 144A under the
Securities Act ("Rule 144A") and to certain persons in offshore transactions in
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reliance on Regulation S under the Securities Act. Each Initial Purchaser
severally represents and agrees that it has offered and sold the Notes, and will
offer and sell the Notes as part of its distribution only in accordance with
Rule 903 or Rule 144A under the Securities Act. Accordingly, neither such
Initial Purchaser nor its affiliates, nor any persons acting on its or their
behalf, have engaged or will engage in any directed selling efforts with respect
to the Notes, and such Initial Purchaser, its affiliates and all persons acting
on its or their behalf have complied and will comply with the offering
restrictions requirement of Regulation S. Each Initial Purchaser severally
agrees that, at or prior to confirmation of sale of the Notes, other than a sale
pursuant to Rule 144A, such Initial Purchaser will have sent to each
distributor, dealer or person receiving a selling concession, fee or other
remuneration that purchases the Notes from it 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, as amended (the "Securities Act"), and may not
be offered or sold within the United States or to, or for the account
or benefit of, U.S. persons, except in accordance with Regulation S
(or Rule 144A if available) under the Securities Act. Terms used above
have the meanings given to them by Regulation S.
Terms used in this subsection (b) have the meanings given to them by
Regulation S.
(c) Each Initial Purchaser severally agrees that it and each of its
affiliates has not entered and will not enter into any contractual arrangement
with respect to the distribution of the Notes except for any such arrangements
with the other Initial Purchasers or affiliates of the other Initial Purchasers
or with the prior written consent of the Company.
(d) Each Initial Purchaser severally represents and agrees that it and
each of its affiliates has not and will not offer or sell the Notes in the
United States by means of any form of general solicitation or general
advertising within the meaning of Rule 502(c) under the Securities Act,
including, but not limited to (i) any advertisement, article, notice or other
communication published in any newspaper, magazine or similar media or broadcast
over television or radio, or (ii) any seminar or meeting whose attendees have
been invited by any general solicitation or general advertising. Each Initial
Purchaser severally agrees, with respect to resales made in reliance on Rule
144A of any of the Notes, to deliver either with the confirmation of such resale
or otherwise prior to settlement of such resale a notice to the effect that the
resale of such Notes has been made in reliance upon the exemption from the
registration requirements of the Securities Act provided by Rule 144A.
(e) Each of the Initial Purchasers severally represents and agrees
that (i) it has not offered or sold, and prior to the date six months after the
date of issue of the Notes will not offer or sell, any Notes to persons in the
United Kingdom except to persons whose ordinary activities involve them in
acquir-
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ing, holding, managing or disposing of investments (as principal or agent) for
the purposes of their businesses or otherwise in circumstances which have not
resulted and will not result in an offer to the public in the United Kingdom
within the meaning of the Public Offers of Securities Regulations 1995; (ii) it
has complied and will comply with all applicable provisions of the Financial
Services Act 1986 with respect to anything done by it in relation to the Notes
in, from or otherwise involving the United Kingdom; and (iii) it has issued or
passed on and will issue or pass on in the United Kingdom any document received
by it in connection with the issue of the Notes only to a person who is of a
kind described in Article 11(3) of the Financial Services Act 1986 (Investment
Advertisements) (Exemptions) Order 1996 or is a person to whom such document may
otherwise lawfully be issued or passed on.
5. Certain Agreements of the Company. The Company agrees with the
several Initial Purchasers that:
(a) The Company will advise CSFBC promptly of any proposal to amend or
supplement the Offering Circular and will not effect such amendment or
supplement without CSFBC's consent, which shall not be unreasonably
withheld. If, at any time prior to the completion of the resale of the
Notes by the Initial Purchasers, any event occurs 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, not misleading, the Company promptly will
notify CSFBC of such event and promptly will prepare, at its own expense,
an amendment or supplement which will correct such statement or omission.
Neither CSFBC's consent to, nor the Initial Purchasers' delivery to
offerees or investors of, any such amendment or supplement shall constitute
a waiver of any of the conditions set forth in Section 6.
(b) The Company will prepare and print the Offering Circular as soon
as practicable after the execution and delivery of this Agreement; provided
that the Offering Circular shall be in the form of the July 31, 2001 draft
thereof sent to, and accepted by, the Initial Purchasers, with such changes
and additions thereto as are reasonably requested by, or otherwise
reasonably satisfactory in all material respects to, the Initial
Purchasers. The Company will furnish to CSFBC copies of the Offering
Circular and all amendments and supplements thereto, in each case as soon
as available and in such quantities as CSFBC reasonably requests, and the
Company will furnish to CSFBC, as soon as the Offering Circular is
available, three copies thereof signed by a duly authorized officer of the
Company, one of which will include the independent accountants' reports
therein manually signed by such independent accountants. For so long as the
Notes are outstanding and are restricted securities within the meaning of
Rule 144(a)(3) under the Securities Act and at any time when the Company is
not subject to Section 13 or 15(d) of the Exchange Act, the Company will
promptly furnish or cause to be furnished to CSFBC (and, upon request, to
each of the other Initial Purchasers) and, upon request of holders and
prospective purchasers of the Notes, to such holders and purchasers, copies
of the information required to be delivered to holders and prospective
purchasers of the Notes pursuant to Rule 144A(d)(4) under the Securities
Act (or any successor provision thereto) in order to permit compliance with
Rule 144A in connection with resales by such holders of the Notes. The
Company will pay the expenses of printing and distributing to the Initial
Purchasers all such documents.
(c) The Company, in cooperation with the Initial Purchasers, will
arrange for the qualification of the Notes for sale and the determination
of their eligibility for investment under the laws of such jurisdictions in
the United States and Canada as CSFBC reasonably designates and will
continue such qualifications in effect so long as required for the resale
of the Notes by the Initial Purchasers, provided that the Company will not
be required to qualify as a foreign corporation or as a
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dealer in securities or to take any action that would subject it to service
of process or taxation in any such jurisdiction.
(d) During the period of ten years after the Closing Date, for so long
as the Notes are outstanding, the Company will furnish to the Initial
Purchasers, as promptly as practicable after the end of each fiscal year, a
copy of its annual report to shareholders for such year; and the Company
will furnish to CSFBC and, upon request, to each of the other Initial
Purchasers (i) as promptly as practicable, a copy of each report, notices
or communications sent by the Company to holders of Notes or, if
applicable, filed with foreign regulators or securities exchanges, and (ii)
from time to time, such other information concerning the Company as CSFBC
may reasonably request.
(e) During the period of two years after the Closing Date, the Company
will, upon request, furnish to CSFBC, each of the other Initial Purchasers
and any holder of Notes a copy of the restrictions on transfer applicable
to the Notes.
(f) During the period of two years after the Closing Date, 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 Notes that have been
reacquired by any of them.
(g) During the period of two years after the Closing Date, the Company
will not be or become, an open-end investment company, unit investment
trust or face-amount certificate company that is or is required to be
registered under Section 8 of the Investment Company Act.
(h) The Company will pay all expenses in connection with the
performance of its obligations under the Operative Agreements, including
(i) the fees and expenses of the Trustee and its professional advisers;
(ii) all expenses in connection with the execution, issue, authentication,
packaging and delivery of the Notes, the preparation and printing of the
Operative Agreements, the Offering Circular and all amendments and
supplements thereto, and any other document relating to the issuance,
offer, sale and delivery of the Notes; (iii) the cost of listing the Notes
and qualifying the Notes for trading in The Portal(SM) Market ("PORTAL") of
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The Nasdaq Stock Market, Inc. and any expenses in connection therewith;
(iv) the cost of any advertising approved by the Company in connection with
the issue of the Notes; (v) any expenses (including reasonable fees and
disbursements of counsel) incurred in connection with qualification of the
Notes for sale under the laws of such jurisdictions in the United States
and Canada as CSFBC reasonably designates and the printing of memoranda
relating thereto; (vi) any fees charged by investment rating agencies for
the rating of the Securities; and (vii) expenses incurred in distributing
Offering Circulars (including any amendments and supplements thereto) to
the Initial Purchasers.
(i) In connection with the offering, until CSFBC shall have notified
the Company and the other Initial Purchasers of the completion of the
resale of the Notes, neither the Company nor any of its affiliates has or
will, either alone or with one or more other persons, bid for or purchase
for any account in which it or any of its affiliates has a beneficial
interest any Notes or attempt to induce any person to purchase any Notes;
and neither it nor any of its affiliates will make bids or purchases for
the purpose of creating actual, or apparent, active trading in, or of
raising the price of, the Notes.
(j) For a period of 90 days after the date of the initial offering of
the Notes by the Initial Purchasers, the Company will not, and will not
permit any Subsidiary to, offer, sell, contract to sell, pledge or
otherwise dispose of, directly or indirectly, any United States
dollar-denominated debt
-10-
securities issued or guaranteed by the Company or any Subsidiary and having
a maturity of more than one year from the date of issue, or publicly
disclose the intention to make any such offer, sale, pledge or disposition,
without the prior written consent of CSFBC. The Company will not at any
time offer, sell, contract to sell, pledge or otherwise dispose of,
directly or indirectly, any securities (other than the Exchange Securities)
under circumstances where such offer, sale, pledge, contract or disposition
would cause the exemption afforded by Section 4(2) of the Securities Act or
the safe harbor of Regulation S thereunder to cease to be applicable to the
offer and sale of the Notes.
(k) The Company will apply the net proceeds from the sale of the Notes
substantially as set forth under "Use of Proceeds" in the Offering
Circular.
(l) The Company will cooperate with the Initial Purchasers to effect
the inclusion of the Notes in PORTAL.
6. Conditions of the Obligations of the Initial Purchasers. The
obligations of the several Initial Purchasers to purchase and pay for the Notes
will be subject to the accuracy of the representations and warranties on the
part of the Company herein, to the accuracy of the statements of officers of the
Company made pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following additional conditions
precedent:
(a) The Initial Purchasers shall have received a letter, dated the
Closing Date, from each of Deloitte & Touche LLP and Xxxxxx Xxxxxxxx LLP in
form and substance reasonably satisfactory to the Initial Purchasers and
counsel for the Initial Purchasers.
(b) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred (i) a change in U.S. or international financial,
political or economic conditions or currency exchange rates or exchange
controls as would, in the reasonable judgment of CSFBC, be likely to
prejudice materially the success of the proposed issue, sale or
distribution of the Notes, whether in the primary market or in respect of
dealings in the secondary market, or (ii) (A) any change, or any
development or event involving a prospective change, in the condition
(financial or other), business, properties or results of operations of the
Company or any Subsidiary which, in the judgment of a majority in interest
of the Initial Purchasers including CSFBC, is material and adverse and
makes it impractical or inadvisable to proceed with completion of the
offering or the sale of and payment for the Notes; (B) any downgrading in
the rating of any debt of the Company or any Subsidiary by any "nationally
recognized statistical rating organization" (as defined for purposes of
Rule 436(g) under the Securities Act), or any public announcement that any
such organization has under surveillance or review its rating of any debt
of the Company or any Subsidiary (other than an announcement with positive
implications of a possible upgrading, and no implication of a possible
downgrading, of such rating); (C) any suspension or limitation of trading
in securities generally on the New York Stock Exchange or any setting of
minimum prices for trading on such exchange, or any suspension of trading
of any securities of the Company or any Subsidiary on any exchange or in
the over-the-counter market; (D) any banking moratorium declared by U.S.
Federal or New York authorities; or (E) any outbreak or escalation of major
hostilities in which the United States is involved, any declaration of war
by Congress or any other substantial national or international calamity or
emergency if, in the judgment of a majority in interest of the Initial
Purchasers including CSFBC, the effect of any such outbreak, escalation,
declaration, calamity or emergency makes it impractical or inadvisable to
proceed with completion of the offering or sale of and payment for the
Notes.
-11-
(c) The Initial Purchasers shall have received an opinion, dated the
Closing Date, of Xxxxxx & Xxxxxxx, counsel for the Company, substantially
to the effect that:
(i) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware,
with corporate power and authority to own its properties and conduct
its business as described in the Offering Circular.
(ii) The Company has all requisite corporate power and authority
to execute, deliver and perform its obligations under the Operative
Agreements, including the issuance and sale of the Notes. Each of the
Operative Agreements to which it is a party has been duly authorized,
executed and delivered by the Company.
(iii) The Indenture meets the requirements for qualification
under the TIA. Assuming due authorization, execution and delivery
thereof by the Trustee, the Indenture constitutes a valid and legally
binding agreement of the Company, enforceable in accordance with its
terms, subject to the Bankruptcy Limitations.
(iv) Assuming due authentication thereof by the Trustee, the
Notes constitute valid and legally binding obligations of the Company,
entitled to the benefits of the Indenture and enforceable in
accordance with their terms, subject to the Bankruptcy Limitations.
(v) When executed, issued and authenticated in accordance with
the terms of the Indenture and delivered in exchange for Notes
pursuant to the Registration Rights Agreement, the Exchange Securities
will have been duly executed, issued, authenticated and delivered and
will constitute valid and legally binding obligations of the Company,
entitled to the benefits of the Indenture and enforceable in
accordance with their terms, subject to the Bankruptcy Limitations.
(vi) Assuming due authorization, execution and delivery thereof
by the Initial Purchasers, the Registration Rights Agreement
constitutes a valid and legally binding agreement of the Company,
enforceable in accordance with its terms, (x) except as rights of
indemnity or contribution, or both, may be limited by state and
federal securities laws or public policy underlying such laws, and (y)
subject to the Bankruptcy Limitations.
(vii) The Company is not and, after giving effect to the offering
and sale of the Notes and the application of the proceeds thereof as
described in the Offering Circular, will not be an "investment
company" as defined in the Investment Company Act.
(viii) No consent, approval, authorization or order of, or filing
with, any Governmental Authority is required by the Company or any
Subsidiary for the issuance and sale of the Notes and use of proceeds
therefrom as described in the Offering Circular, except (i) such as
may be required under state securities and Blue Sky laws and
regulations, (ii) those that have been obtained or made and are in
full force and effect, (iii) such as may be required from the FCC and
under the HSR to consummate the acquisition of KXTX as described in
the Offering Circular, and (iv) those that could not, singly or in the
aggregate, reasonably be expected to have a Material Adverse Effect
and would not materially or adversely affect the ability of the
Company to perform its obligations under the Operative Agreements.
-12-
(ix) The execution, delivery and performance of the Operative
Agreements and the issuance and sale of the Notes and compliance with
the terms and provisions thereof will not result in a breach or
violation of (x) any of the terms and provisions of, or constitute a
default under, any statute, rule, regulation or order of any
Governmental Authority, (y) any agreement or instrument in Schedule C
----------
hereto (and such counsel has been advised by a responsible officer of
the Company that neither the Company nor any of the Subsidiaries is a
party to or is bound by any other material contract), or (z) the
charter or by-laws of the Company or any Subsidiary, except, in the
case of clause (x) or (y), for such breaches, violations and defaults
as could not, singly or in the aggregate, reasonably be expected to
have a Material Adverse Effect and would not materially or adversely
affect the ability of the Company to perform its obligations under the
Operative Agreements.
(x) Each of the Operative Agreements conforms in all material
respects to the descriptions thereof in the Offering Circular. The
statements in the Offering Circular under the captions "Description of
Certain Indebtedness" and "Certain U.S. Federal Income Tax
Considerations," insofar as they purport to constitute a summary of
the legal matters, documents or proceedings referred to therein,
fairly present in all material respects such legal matters, documents
and proceedings.
(xi) It is not necessary in connection with (i) the offer, sale
and delivery of the Notes by the Company to the several Initial
Purchasers pursuant to this Agreement or (ii) the initial resales of
the Notes by the several Initial Purchasers in the manner contemplated
by this Agreement (assuming that the representations and warranties in
Section 4 hereof are true and correct and the Initial Purchasers
comply with the offer and sale procedures set forth in this
Agreement), to register the Notes under the Securities Act or to
qualify an indenture in respect thereof under the TIA.
In addition, such counsel shall state that in the course of the
preparation of the Offering Circular, such counsel participated in
conferences with certain officers or employees or representatives of the
Company and the Subsidiaries and with independent auditors for the Company
and with the Initial Purchasers and counsel for the Initial Purchasers and
although such counsel has not independently verified the accuracy,
completeness or fairness of the statements contained in the Offering
Circular and does not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Offering
Circular (except as otherwise specifically stated in clause (x) above), no
facts have come to the attention of such counsel that would lead such
counsel to believe that the Offering Circular, or any amendment or
supplement thereto, as of their respective dates, contained any 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, in light
of the circumstances under which they were made, not misleading, or that
the Offering Circular, as of the Closing Date, contains any untrue
statement of a material fact or omits to state a material fact required to
be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading (it being
understood that such counsel need not express any belief as to the
financial statements and other financial information included in the
Offering Circular).
(d) The Initial Purchasers shall have received an opinion, dated the
Closing Date, of Xxxxx Xxxxxxx, General Counsel of the Company,
substantially to the effect that:
(i) Each Subsidiary has been duly incorporated and is an existing
corporation in good standing under the laws of its jurisdiction of
incorporation, with corporate power and
-13-
authority to own its properties and conduct its business as described
in the Offering Circular. Each of the Company and the Subsidiaries is
duly qualified to do business as a foreign corporation in good
standing in all other jurisdictions in which its ownership or lease of
property or the conduct of its business requires such qualification,
except where the failure to so qualify or to be in good standing could
not, singly or in the aggregate, reasonably be expected to have a
Material Adverse Effect. All of the issued and outstanding capital
stock of each Subsidiary has been duly authorized and validly issued
and is fully paid and nonassessable; and, except as described in the
Offering Circular, all of the capital stock of each Subsidiary is
owned directly by the Company or indirectly through another
Subsidiary, free from liens, encumbrances and defects.
(ii) Except as disclosed in the Offering Circular, to the
knowledge of such counsel, there are no pending actions, suits or
proceedings against or affecting the Company, any Subsidiaries or any
of their respective property that, if determined adversely to the
Company or such Subsidiary, would singly or in the aggregate
reasonably be expected to have a Material Adverse Effect, or would
materially and adversely affect the ability of the Company to perform
its obligations under the Indenture or this Agreement, or which are
otherwise material in the context of the sale of the Notes; and no
such actions, suits or proceedings are, to such counsel's knowledge,
threatened.
(iii) To the knowledge of such counsel, neither the Company nor
any Subsidiary is in a breach or violation of (x) any of the terms and
provisions of, or a default under, any statute, rule, regulation or
order of any Governmental Authority, (y) any agreement or instrument
to which the Company or any Subsidiary is a party or by which the
Company or any Subsidiary is bound or which any of their respective
property is subject or affected, or (z) the charter or by-laws of the
Company or any Subsidiary, except, in the case of clause (x) or (y),
for such breaches, violations and defaults as could not, singly or in
the aggregate, reasonably be expected to have a Material Adverse
Effect and would not materially or adversely affect the ability of the
Company to perform its obligations under the Operative Agreements.
(iv) Except as disclosed in the Offering Circular, the Company
and the Subsidiaries own, hold or possess adequate Licenses, including
without limitation the FCC Licenses, necessary to conduct the business
now operated by them, except where the failure to have such Licenses
could not, singly or in the aggregate, reasonably be expected to have
a Material Adverse Effect. Neither of the Company nor any Subsidiary
has received any notice of proceedings relating to the revocation or
modification of any such License that, if determined adversely to the
Company or any Subsidiary, could, singly or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
(v) There are no contracts, agreements or understandings between
the Company and any person known to such counsel granting such person
the right to require the Company to include securities held by such
person in any registration statement required to be filed under the
Registration Rights Agreement.
(e) The Initial Purchasers shall have received an opinion, dated the
Closing Date, of Dow Xxxxxx & Xxxxxxxxx, PLLC, special regulatory counsel
for the Company, substantially in the form attached of Exhibit B hereto
---------
(provided that the completed Schedules A (Parts B and C) and B shall be
----------- -
reasonably satisfactory to the Initial Purchasers).
-14-
(f) The Initial Purchasers shall have received from Xxxxxx Xxxxxx &
Xxxxxxx, counsel for the Initial Purchasers, an opinion, dated the Closing
Date, in form and substance reasonably satisfactory to the Initial
Purchasers, and the Company shall have furnished to such counsel such
documents as they reasonably request for the purpose of enabling them to
pass upon such matters.
(g) The Notes shall have been listed and admitted to trading in
PORTAL.
(h) The Initial Purchasers shall have received a certificate, dated
the Closing Date, of the President or any Vice President and a principal
financial or accounting officer of the Company in which such officers, to
their knowledge after reasonable investigation, shall state that (i) the
representations and warranties of the Company in this Agreement are true
and correct, (ii) the Company has complied in all material respects with
all agreements and satisfied all conditions on its part to be performed or
satisfied hereunder at or prior to the Closing Date, (iii) subsequent to
the respective dates of the most recent financial statements in the
Offering Circular there has been no material adverse change, nor any
development or event involving a prospective material adverse change, in
the condition (financial or other), business, properties or results of
operations of the Company and the Subsidiaries taken as a whole except as
set forth in or contemplated by the Offering Circular and (iv) the sale of
the Notes has not been enjoined (temporarily or permanently).
(i) The Initial Purchasers shall have received (i) the audited balance
sheet of Southwest Sports Television, L.P. as of December 31, 2000 and the
related statements of operations and cash flows for the year ended December
31, 2000, (ii) the unaudited balance sheets of the Company and of Southwest
Sports Television, L.P. as of June 30, 2001 and the related statements of
operations and cash flows for the six months ended June 30, 2001 and 2000
and (iii) the pro forma balance sheet of the Company as of June 30, 2001
and the pro forma statements of operations for the year ended December 31,
2000, the six months ended June 30, 2001 and the twelve months ended June
30, 2001. Such financial statements shall be satisfactory to the Initial
Purchasers in all material respects.
(j) On or before August 3, 2001, the Company shall have delivered to
the Initial Purchasers as many copies of the Offering Circular as they
reasonably request.
(k) Each of the Indenture and the Registration Rights Agreement shall
have been duly executed and delivered by the Company, and each such
agreement shall be in full force and effect. The Notes shall have been duly
executed by the Company and duly authenticated by the Trustee.
(l) On or before the Closing Date, the Initial Purchasers and counsel
for the Initial Purchasers shall have received such further documents,
certificates and schedules or instruments as they shall have heretofore
reasonably requested from the Company.
(m) The Company shall have received the consents under the Credit
Agreement to permit issuance and sale of the Notes and the use of proceeds
therefrom as described in the Offering Circular.
The Company will furnish the Initial Purchasers with such conformed
copies of such opinions, certificates, letters and documents as the Initial
Purchasers reasonably request. CSFBC may in its sole discretion waive on behalf
of the Initial Purchasers compliance with any conditions to the obligations of
the Initial Purchasers hereunder.
-15-
7. Indemnification and Contribution. (a) The Company will indemnify
and hold harmless each Initial Purchaser, its partners, directors and officers
and each person, if any, who controls such Initial Purchaser within the meaning
of Section 15 of the Securities Act, against any losses, claims, damages or
liabilities, joint or several, to which such Initial Purchaser or such partner,
director, officer or controlling person may become subject, under the Securities
Act or the Exchange Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
breach of any of the representations and warranties of the Company contained
herein or any untrue statement or alleged untrue statement of any material fact
contained in 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 in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading, and will
reimburse such Initial Purchaser or such partner, director, officer or
controlling person for any legal or other expenses reasonably incurred by such
Initial Purchaser or such partner, director, officer or controlling person in
connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred; provided, however, that the
Company will not be liable in any such case to the extent that (i) any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement in or omission or alleged omission from
any of such documents in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any Initial Purchaser
through CSFBC specifically for use therein, it being understood and agreed that
the only such information consists of the information described as such in
subsection (b) below; and provided, further, that with respect to any untrue
statement or alleged untrue statement in or omission or alleged omission from
the Offering Circular the indemnity agreement contained in this subsection (a)
shall not inure to the benefit of any Initial Purchaser (or to the benefit of
any person controlling such Initial Purchaser) that sold the Notes concerned to
the person asserting any such losses, claims, damages or liabilities, to the
extent that such sale was an initial resale by such Initial Purchaser and any
such loss, claim, damage or liability of such Initial Purchaser results from the
fact that there was not sent or given to such person, at or prior to the written
confirmation of the sale of such Notes to such person, a copy of the any
amendment or supplement thereto (exclusive of any material included therein but
not attached thereto) if the Company had previously furnished copies thereof to
such Initial Purchaser.
(b) Each Initial Purchaser will severally and not jointly indemnify
and hold harmless the Company, its partners, directors and officers and each
person, if any, who controls the Company within the meaning of Section 15 of the
Securities Act against any losses, claims, damages or liabilities, joint or
several, to which the Company or such partner, director, officer or controlling
person may become subject, under the Securities Act or the Exchange Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the Offering Circular, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or the alleged omission to state therein a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading, in each case to the extent, but only to the extent,
that such untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written information
furnished to the Company by or on behalf of such Initial Purchaser through CSFBC
specifically for use therein, and will reimburse the Company or such partner,
director, officer or controlling person for any legal or other expenses
reasonably incurred by the Company or such partner, director, officer or
controlling person in connection with investigating or defending any such loss,
claim, damage, liability or action as such expenses are incurred, it being
understood and agreed that the only such information furnished by any Initial
Purchaser consists of the following information in the Offering Circular
furnished on behalf of each Initial Purchaser: the third paragraph and the third
sentence of the seventh paragraph under the caption "Plan of Distribution."
-16-
(c) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
subsection (a) or (b) above, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party otherwise than
under subsection (a) or (b) above except to the extent that it has been
prejudiced in any material respect by such omission. In case any such action is
brought against any indemnified party and it notifies the indemnifying party of
the commencement thereof, the indemnifying party will be entitled to participate
therein and, to the extent that it may wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party (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 in demnifying party will not be liable to
such indemnified party under this Section for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation. In no event shall the
indemnifying parties be liable for fees and expenses of more than one counsel
(in addition to any local counsel) separate from their own counsel for all
indemnified parties in connection with any one action or separate but similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement of any pending
or threatened action in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party unless such settlement includes an unconditional release of such
indemnified party from all liability on any claims that are the subject matter
of such action.
(d) If the indemnification provided for in this Section is unavailable
or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities referred to in subsection (a) or (b) above (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company on the
one hand and the Initial Purchasers on the other from the offering of the Notes
or (ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company on the one hand and the Initial Purchasers on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Initial Purchasers on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company bear to the total discounts and commissions
received by the Initial Purchasers from the Company under this Agreement. 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 or the Initial Purchasers and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such untrue
statement or omission. The amount paid by an indemnified party as a result of
the losses, claims, damages or liabilities referred to in the first sentence of
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 action or claim which is the subject of this subsection (d).
Notwithstanding the provisions of this subsection (d), no Initial Purchaser
shall be required to contribute any amount in excess of the amount by which the
total price at which the Notes purchased by it were resold exceeds the amount of
any damages which such Initial Purchaser has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. The Initial Purchasers' obligations in this subsection (d) to
contribute are several in proportion to their respective purchase obligations
and not joint.
-17-
(e) The obligations of the Company under this Section 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
Initial Purchaser within the meaning of the Securities Act or the Exchange Act;
and the obligations of the Initial Purchasers under this Section shall be in
addition to any liability which the respective Initial Purchasers may otherwise
have and shall extend, upon the same terms and conditions, to each person, if
any, who controls the Company within the meaning of the Securities Act or the
Exchange Act.
8. Default of Initial Purchasers. If any Initial Purchaser defaults in
its obligations to purchase Notes hereunder and the aggregate principal amount
of Notes that such defaulting Initial Purchaser agreed but failed to purchase
does not exceed 10% of the total principal amount of Notes, CSFBC may make
arrangements satisfactory to the Company for the purchase of such Notes by other
persons, including any of the Initial Purchasers, but if no such arrangements
are made by the Closing Date, the non-defaulting Initial Purchaser shall be
obligated to purchase the Notes that such defaulting Initial Purchaser agreed
but failed to purchase. If any Initial Purchaser so defaults and the aggregate
principal amount of Notes with respect to which such default occurs exceeds 10%
of the total principal amount of Notes and arrangements satisfactory to CSFBC
and the Company for the purchase of such Notes by other persons are not made
within 36 hours after such default, this Agreement will terminate without
liability on the part of any non-defaulting Initial Purchaser or the Company,
except as provided in Section 9. In any such case, either the non-defaulting
Initial Purchaser or the Company shall have the right to postpone the Closing,
but in no event longer than seven days, in order that the required changes, if
any, in the Offering Circular or in any other document or arrangements may be
effected. As used in this Agreement, the term "Initial Purchaser" includes any
person substituted for an Initial Purchaser under this Section. Nothing herein
will relieve a defaulting Initial Purchaser from liability for its default.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Company or its officers and of the several Initial Purchasers set forth in or
made pursuant to this Agreement will remain in full force and effect, regardless
of any investigation, or statement as to the results thereof, made by or on
behalf of any Initial Purchaser, the Company or any of their respective
representatives, officers or directors or any controlling person, and will
survive delivery of and payment for the Notes. If this Agreement is terminated
pursuant to Section 8 or if for any reason the purchase of the Notes by the
Initial Purchasers is not consummated, the Company shall remain responsible for
the expenses to be paid or reimbursed by it pursuant to Section 5 and the
respective obligations of the Company and the Initial Purchasers pursuant to
Section 7 shall remain in effect. If the purchase of the Notes by the Initial
Purchasers is not consummated for any reason other than solely because of the
termination of this Agreement pursuant to Section 8 or the occurrence of any
event specified in clause (C), (D) or (E) of Section 6(b)(ii), the Company will
reimburse the Initial Purchasers for all out-of-pocket expenses (including fees
and disbursements of counsel) reasonably incurred by them in connection with the
offering of the Notes.
10. Notices. All communications hereunder will be in writing and, if
sent to the Initial Purchasers will be mailed, delivered or telegraphed and
confirmed to the Initial Purchasers, c/o Credit Suisse First Boston Corporation,
Xxxxxx Xxxxxxx Xxxxxx, Xxx Xxxx, X.X. 10010-3629, Attention: Investment Banking
Department - Transactions Advisory Group, with a copy to Xxxxxx Xxxxxx &
Xxxxxxx, 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx X. Xxxxx,
Esq., or, if sent to the Company, will be mailed, delivered or telegraphed and
confirmed to it at Telemundo Group, Inc., 0000 Xxxx 0xx Xxxxxx, Xxxxxxx, Xxxxxxx
00000, Attention: Xxxxx Xxxxxxx, Esq., with a copy to Xxxxxx &Watkins, 000 Xxxxx
Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxxx,
Esq.; provided, however, that
-18-
any notice to an Initial Purchaser pursuant to Section 7 will be mailed,
delivered or telegraphed and confirmed to such Initial Purchaser.
11. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
controlling persons referred to in Section 7, and no other person will have any
right or obligation hereunder, except that holders of Notes shall be entitled to
enforce the agreements for their benefit contained in the second and third
sentences of Section 5(b) hereof against the Company as if such holders were
parties thereto.
12. Representation of Initial Purchasers. You will act for the several
Initial Purchasers in connection with this purchase, and any action under this
Agreement taken by you will be binding upon all the Initial Purchasers.
13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
14. Applicable Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS.
The Company hereby submits to the non-exclusive jurisdiction of the
Federal and state courts in the Borough of Manhattan in The City of New York in
any suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
-19-
If the foregoing is in accordance with the Initial Purchasers'
understanding of our agreement, kindly sign and return to us one of the
counterparts hereof, whereupon it will become a binding agreement between the
Company and the several Initial Purchasers in accordance with its terms.
Very truly yours,
TELEMUNDO HOLDINGS, INC.
By /s/ Xxxx Xxxxx
------------------------------------------
Name: Xxxx Xxxxx
Title: Chief Operating Officer
The foregoing Agreement is hereby confirmed and accepted
as of the date first above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By: CREDIT SUISSE FIRST BOSTON CORPORATION
By /s/ Xxxxxxx X. Xxxx
--------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Director
SCHEDULE A
Principal Amount at
Initial Purchasers Maturity of Notes
------------------ -----------------
Credit Suisse First Boston Corporation ................... $48,849,450
Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx
Incorporated ................................. $26,303,550
-----------
Total ................. $75,153,000
===========
-2-
SCHEDULE B
Subsidiaries
Xxxxxxxx Communications, Inc.
Xxxxxxxx License Corporation
New Jersey Television Broadcasting Corporation
SACC Acquisition Corporation
SAT Corporation
Spanish American Communications Corp.
Telemundo Group, Inc.
Telemundo Hispanic Scholarship Fund
Telemundo Network, Inc.
Telemundo News Network, Inc.
Telemundo of Chicago, Inc.
Telemundo of Colorado Springs, Inc.
Telemundo of Dallas Holdings, LLC
Telemundo of Dallas License Corp.
Telemundo of Dallas, L.P.
Telemundo of Dallas Partners, LLC
Telemundo of Florida, Inc.
Telemundo of Florida License Corporation
Telemundo of Galveston-Houston, Inc.
Telemundo of Galveston-Houston License Corporation
Telemundo of Galveston-Houston, L.P.
Telemundo of Galveston-Houston Partners, LLC
Telemundo of Key West, Inc.
Telemundo of Key West License Corp.
Telemundo of Los Angeles, Inc.
Telemundo of Los Angeles License Corp.
Telemundo of Mexico, Inc.
Telemundo of Northern California, Inc.
Telemundo of Northern California License Corporation
Telemundo of Puerto Rico, Inc.
Telemundo of Puerto Rico License Corporation
Telemundo of San Antonio, Inc.
Telemundo of San Antonio License Corporation
Telemundo of San Antonio, L.P.
Telemundo of San Antonio Partners, LLC
Telemundo of Steamboat Springs Colorado, Inc.
Telemundo of Steamboat Springs Colorado License Corporation
Telenoticias del Mundo, Inc.
Telenoticias del Mundo, L.P.
Tu Mundo Music, Inc.
Video 44 Acquisition Corporation, Inc.
2
-3-
WNJU-TV Broadcasting Corporation
WNJU License Corporation
SCHEDULE C
All documents listed as exhibits to the Annual Report on Form 10-K of the
Company for the fiscal year ended December 31, 2000 and any subsequent filing by
the Company under the Exchange Act prior to the Closing Date.
SCHEDULE D
FCC Licenses. See Schedule A to Exhibit B.
EXHIBIT A
Registration Rights Agreement
EXHIBIT B
[Dow Xxxxxx & Xxxxxxxxx Opinion]
