Exhibit 4.1
Radio Unica Corp.
$158,088,000
113/4% Senior Discount Notes due 2006
PURCHASE AGREEMENT
------------------
July 22, 1998
CIBC XXXXXXXXXXX CORP.
BEAR, XXXXXXX & CO. INC.
c/o CIBC XXXXXXXXXXX CORP.
000 Xxxxxxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Radio Unica Corp., a Delaware corporation (the "Company"), and each of
the Company's subsidiaries set forth on the signature pages hereto (each, a
"Guarantor" and, collectively, the "Guarantors" and, together with the Company,
the "Issuers ") hereby confirm their agreement with you (the "Initial
Purchasers"), as set forth below.
1. THE SECURITIES. Subject to the terms and conditions herein
contained, the Company proposes to issue and sell to the Initial Purchasers
$158,088,000 aggregate principal amount at maturity of its 113/4% Senior
Discount Notes due 2006 (the "Notes"). The obligations of the Company under the
Indenture (defined below) and the Notes will be unconditionally guaranteed on a
senior unsecured basis (the "Guarantees"), on a joint and several basis, by each
Guarantor. The Notes and the Guarantees are to be issued pursuant to the
Indenture (the "Indenture"), dated as of July 27, 1998 among the Company, the
Guarantors and Wilmington Trust Company, as trustee (the " Trustee"). The Notes
and the Guarantees are hereinafter referred to collectively as the "Securities."
The Notes will be offered and sold to the Initial Purchasers without
such offers and sales being registered under the Securities Act of 1933, as
amended (together with the rules and regulations of the Securities and Exchange
Commission (the "Commission") promulgated thereunder, the "Securities Act"), in
reliance on exemptions therefrom.
-2-
In connection with the sale of the Notes, the Company has prepared a
preliminary offering memorandum dated July 2, 1998 (the "Preliminary
Memorandum") and a final offering memorandum dated July 22, 1998 (including the
documents annexed thereto, the "Final Memorandum"; the Preliminary Memorandum
and the Final Memorandum each herein being referred to as a "Memorandum"), each
setting forth or including a description of the terms of the Securities, the
terms of the offering of the Notes, a description of the Company and its
subsidiaries and any material developments relating to the Company and its
subsidiaries occurring after the date of the most recent historical financial
statements included therein. All references in this Agreement to financial
statements and schedules and other information which is "contained," "included"
or "stated" in any Memorandum (or other references of like import) shall be
deemed to mean and include all such financial statements and schedules and other
information which is included in any Memorandum.
The Company and the Guarantors understand that the Initial Purchasers
propose to make an offering of the Notes only on the terms and in the manner set
forth in the Memorandum and Section 9 hereof as soon as the Initial Purchasers
deem advisable after this Agreement has been executed and delivered, to persons
in the United States whom the Initial Purchasers reasonably believe to be
qualified institutional buyers ("QIBs") as defined in Rule 144A under the
Securities Act, as such rule may be amended from time to time ("Rule 144A"), in
transactions under Rule 144A, and outside the United States to certain persons
in reliance on Regulation S under the Securities Act.
The Initial Purchasers and their direct and indirect transferees of
the Notes will be entitled to the benefits of the Registration Rights Agreement
dated as of the Closing Date (as defined in Section 3 below) among the parties
hereto (the "Registration Rights Agreement") pursuant to which the Issuers have
agreed, among other things, to file (i) a registration statement (the
"Registration Statement") with the Commission registering the Notes or the
Exchange Notes (as defined in the Registration Rights Agreement) under the
Securities Act or (ii) a shelf registration statement pursuant to Rule 415 under
the Securities Act relating to the resale of the Notes by holders thereof or, if
applicable, relating to the resale of Private Exchange Notes (as defined in the
Registration Rights Agreement) by the Initial Purchasers pursuant to an exchange
of the Notes for Private Exchange Notes.
-3-
The Securities, the Exchange Notes, the Private Exchange Notes, the
Indenture, the Registration Rights Agreement and this Agreement are herein
collectively referred to as the "Basic Documents".
2. REPRESENTATIONS AND WARRANTIES OF THE ISSUERS. The Issuers,
jointly and severally, represent and warrant to and agree with the Initial
Purchasers that:
(a) Neither the Preliminary Memorandum as of the date thereof nor the
Final Memorandum nor any amendment or supplement thereto as of the date
thereof and at all times subsequent thereto up to the Closing Date
contained or contains any untrue statement of a material fact or omitted or
omits to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading,
except that the representations and warranties set forth in this Section 2
do not apply to statements or omissions made in reliance upon and in
conformity with information relating to the Initial Purchasers furnished to
the Company in writing by the Initial Purchasers expressly for use in the
Preliminary Memorandum, the Final Memorandum or any amendment or supplement
thereto. The Preliminary Memorandum, the Final Memorandum and any
amendment or supplement thereto complied or will comply in all material
respects with the requirements of Rule 144A under the Securities Act.
(b) Each of the Company and its subsidiaries set forth in EXHIBIT A
hereto (the "Subsidiaries") has been duly incorporated and each of the
Company and the Subsidiaries is validly existing in good standing as a
corporation under the laws of its jurisdiction of incorporation, with the
requisite corporate power and authority to own its properties and conduct
its business as now conducted as described in the Final Memorandum and is
duly qualified to do business as a foreign corporation in good standing in
all other jurisdictions where the ownership or leasing of its properties or
the conduct of its business requires such qualification, except where the
failure to be so qualified would not, individually or in the aggregate,
have a material adverse effect on the general affairs, management,
business, condition (financial or other), properties, prospects or results
of operations of the Company and the Subsidiaries, taken as a whole (any
such event, a "Material Adverse Effect"); as of the Closing Date, the
Company will have the authorized, issued and outstanding capitalization set
forth in the Final Memoran-
-4-
dum; except as set forth in EXHIBIT A hereto, the Company does not have any
subsidiaries or own directly or indirectly any of the capital stock or
other equity or long-term debt securities of or have any equity interest in
any other person; except as set forth in the Final Memorandum, all of the
outstanding shares of capital stock of the Company and the Subsidiaries
have been duly authorized and validly issued, are fully paid and
nonassessable and were not issued in violation of any preemptive or similar
rights and are owned free and clear of all liens, encumbrances, equities
and restrictions on transferability (other than those imposed by the
Securities Act and the state securities or "Blue Sky" laws) or voting;
except as set forth in the Final Memorandum, all of the outstanding shares
of capital stock of the Subsidiaries are owned, directly or indirectly, by
the Company; except as set forth in the Final Memorandum, no options,
warrants or other rights to purchase from the Company or any Subsidiary,
agreements or other obligations of the Company or any Subsidiary to issue
or other rights to convert any obligation into, or exchange any securities
for, shares of capital stock of or ownership interests in the Company or
any Subsidiary are outstanding and no holder of securities of the Company
or any Subsidiary is entitled to have such securities registered under the
Registration Statement; and except as set forth in the Final Memorandum,
there is no agreement, understanding or arrangement among the Company or
any Subsidiary and each of their respective stockholders or any other
person relating to the ownership or disposition of any capital stock of the
Company or any Subsidiary or the election of directors of the Company or
any Subsidiary or the governance of the Company's or any Subsidiary's
affairs, and, if any, such agreements, understandings and arrangements will
not be breached or violated as a result of the execution and delivery of,
or the consummation of the transactions contemplated by, this Agreement or
the other Basic Documents.
(c) Each of the Issuers has the requisite corporate power and
authority to execute, deliver and perform its obligations under the
Securities, the Exchange Notes and the Private Exchange Notes. The Notes,
the Exchange Notes and the Private Exchange Notes have each been duly and
validly authorized by the Company for issuance and, when executed by the
Company and authenticated by the Trustee in accordance with the provisions
of the Indenture, and, in the case of the Notes, delivered to and paid for
by the Initial Purchasers in accordance with the terms hereof,
-5-
will have been duly executed, issued and delivered and will constitute
valid and legally binding obligations of the Company, entitled to the
benefits of the Indenture and enforceable against the Company in accordance
with their terms except that the enforcement thereof may be limited by (i)
bankruptcy, insolvency, reorganization, moratorium or other similar laws
now or hereafter in effect relating to or affecting creditors' rights
generally or (ii) general principles of equity and the discretion of the
court before which any proceeding therefor may be brought (regardless of
whether such enforcement is considered in a proceeding at law or in equity)
(collectively, the "Enforceability Exceptions"); the Guarantees endorsed on
the Notes and the guarantees to be endorsed on the Exchange Notes and the
Private Exchange Notes have each been duly and validly authorized by each
of the Guarantors and, when the Notes are executed by the Company and
authenticated by the Trustee in accordance with the provisions of the
Indenture, and delivered to and paid for by the Initial Purchasers in
accordance with the terms hereof, will have been duly executed, issued and
delivered and will constitute valid and legally binding obligations of the
Guarantors, entitled to the benefits of the Indenture and enforceable
against the Guarantors in accordance with their terms except that the
enforcement thereof may be limited by the Enforceability Exceptions; the
Securities are in the form contemplated by the Indenture.
(d) Each of the Issuers has the requisite corporate power and
authority to execute, deliver and perform its obligations under the
Indenture. The Indenture has been duly and validly authorized by the
Issuers and meets the requirements for qualification under the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"), and, when
executed and delivered by the Issuers (assuming the due authorization,
execution and delivery by the Trustee), will constitute a valid and legally
binding agreement of the Issuers, enforceable against the Issuers in
accordance with its terms except that the enforcement thereof may be
limited by the Enforceability Exceptions.
(e) Each of the Issuers has the requisite corporate power and
authority to execute, deliver and perform its obligations under this
Agreement. This Agreement has been duly and validly authorized by the
Issuers and, when executed and delivered by the Issuers, will constitute a
valid and legally binding agreement of the Issuers, enforceable against the
Issuers in accordance with its terms
-6-
except that the enforcement thereof may be limited by the Enforceability
Exceptions and except as any rights to indemnity or contribution hereunder
may be limited by federal and state securities laws and public policy
considerations.
(f) Each of the Issuers has the requisite corporate power and
authority to execute, deliver and perform its obligations under the
Registration Rights Agreement. The Registration Rights Agreement has been
duly and validly authorized by the Issuers and, when executed and delivered
by the Issuers, will constitute a valid and legally binding agreement of
the Issuers, enforceable against the Issuers in accordance with its terms
except that the enforcement thereof may be limited by the Enforceability
Exceptions and except as any rights to indemnity or contribution thereunder
may be limited by federal and state securities laws and public policy
considerations. The Securities, the Indenture and the Registration Rights
Agreement conform in all material respects to the descriptions thereof in
the Final Memorandum.
(g) Except as disclosed in the Final Memorandum and assuming the
Securities are sold in the manner described in this Agreement, no consent,
approval, authorization, license, qualification, exemption or order of any
court or governmental agency or body or third party is required for the
performance of this Agreement, the Registration Rights Agreement, the
Securities or the Indenture by the Issuers or for the consummation by the
Issuers of any of the transactions contemplated hereby and thereby, or the
application of the proceeds of the issuance of the Securities as described
in the Final Memorandum, except for consents, approvals, authorizations,
licenses, qualifications, exemptions or orders the failure of which to
obtain would not, individually or in the aggregate, cause a Material
Adverse Effect and as has already been acquired or as may be required under
foreign or state securities or "Blue Sky" laws in connection with the
purchase and distribution of the Securities by the Initial Purchaser or the
Securities Act and the Trust Indenture Act in the case of the Registration
Rights Agreement; all such consents, approvals, authorizations, licenses,
qualifications, exemptions and orders set forth in the Final Memorandum
which are required to be obtained by the Closing Date have been or will be
prior to the Closing Date obtained or made, as the case may be, and are or
will be prior to the Closing Date in full force and effect and not the
subject of any pend-
-7-
ing or, to the best knowledge of the Issuers, threatened attack by appeal
or direct proceeding or otherwise.
(h) None of the Company or the Subsidiaries is (i) in violation of
its certificate of incorporation or bylaws (or similar organizational
document), (ii) in breach or violation of any statute, judgment, decree,
order, rule or regulation applicable to it or any of its properties or
assets, which breach or violation would, individually or in the aggregate,
have a Material Adverse Effect, or (iii) in default (nor has any event
occurred which with notice or passage of time, or both, would constitute a
default) in the performance or observance of any obligation, agreement,
covenant or condition contained in this Agreement, the Registration Rights
Agreement, the Securities, the Indenture, or any other contract, indenture,
mortgage, deed of trust, loan agreement, note, lease, license, franchise
agreement, permit, certificate or agreement or instrument to which it is a
party or to which it is subject, which default would, individually or in
the aggregate, have a Material Adverse Effect.
(i) The execution, delivery and performance by the Issuers of this
Agreement, the Registration Rights Agreement, the Securities and the
Indenture and the consummation by the Issuers of the transactions
contemplated hereby and thereby and by the Final Memorandum and the
fulfillment of the terms hereof and thereof will not (a) violate, conflict
with or constitute or result in a breach of or a default under (or an event
that, with notice or lapse of time, or both, would constitute a breach of
or a default under) any of (i) the terms or provisions of any contract,
indenture, mortgage, deed of trust, loan agreement, note, lease, license,
franchise agreement, permit, certificate or agreement or instrument to
which any of the Company or the Subsidiaries is a party or to which any of
their respective properties or assets are subject, (ii) the certificate of
incorporation or bylaws of any of the Company or the Subsidiaries (or
similar organizational document) or (iii) (assuming the Securities are sold
in the manner described in this Agreement and assuming compliance with all
applicable foreign or state securities or "Blue Sky" laws and with respect
to the Registration Rights Agreement, the Securities Act and the Trust
Indenture Act) any statute, judgment, decree, order, rule or regulation of
any court or governmental agency or other body applicable to the Company or
the Subsidiaries or any of their respective properties or assets or (b)
result in
-8-
the imposition of any lien upon or with respect to any of the properties or
assets now owned or hereafter acquired by the Company or any of the
Subsidiaries, which violation, conflict, breach, default or lien would,
individually or in the aggregate, have a Material Adverse Effect.
(j) The audited consolidated financial statements of the Company and
the audited financial statements of 13 Radio Corporation and Oro Spanish
Broadcasting, Inc. included in the Final Memorandum present fairly the
consolidated financial position, results of operations and cash flows of
the Company on a consolidated basis and to the best knowledge of the
Company, after due inquiry, of 13 Radio Corporation and Oro Spanish
Broadcasting, Inc., at the dates and for the periods to which they relate
and have been prepared in accordance with generally accepted accounting
principles applied on a consistent basis; the interim unaudited
consolidated financial statements included in the Final Memorandum present
fairly the consolidated financial position, results of operations and cash
flows of the Company at the dates and for the periods to which they relate
subject to year-end audit adjustments and have been prepared in accordance
with generally accepted accounting principles applied on a consistent basis
with the audited consolidated financial statements of the Company included
therein; the summary and selected financial and statistical data included
in the Final Memorandum present fairly the information shown therein and
have been prepared and compiled on a basis consistent with the audited
financial statements included therein, except as otherwise stated therein;
and Ernst & Young LLP and Miller, Kaplan, Arase & Co., LLP, each of which
has examined certain of such financial statements as set forth in their
reports included in the Final Memorandum, is an independent public
accounting firm as required by the Securities Act.
(k) The unaudited pro forma combined financial statements and other
pro forma financial information (including the notes thereto) included in
the Final Memorandum (A) have been prepared in all material respects in
accordance with Rule 11-02 of Regulation S-X promulgated under the
Securities Exchange Act of 1934, as amended (together with the rules and
regulations of the Commission promulgated thereunder, the "Exchange Act")
and (B) have been properly computed on the bases described therein; and the
assumptions used in the preparation of the unaudited pro forma combined
financial statements and other pro
-9-
forma financial information included in the Final Memorandum are reasonable
and the adjustments used therein are appropriate to give effect to the
transactions or circumstances referred to therein.
(l) Except as described in the Final Memorandum and except as
described on Schedule II hereto, there is not pending or, to the best
knowledge of the Issuers, threatened any action, suit, proceeding, inquiry
or investigation, governmental or otherwise, to which any of the Company or
the Subsidiaries is a party, or to which their respective properties or
assets are subject, before or brought by any court, arbitrator or
governmental agency or body, that, if determined adversely to the Company
or any such Subsidiary would, individually or in the aggregate, have a
Material Adverse Effect or that seeks to restrain, enjoin, prevent the
consummation of or otherwise challenge the issuance or sale of the
Securities to be sold hereunder or the application of the proceeds
therefrom or the other transactions described in the Final Memorandum.
(m) None of the Company or the Subsidiaries has, and, after giving
effect to the issuance and sale of the Securities, will not have, any
material liability for any prohibited transaction or funding deficiency or
any complete or partial withdrawal liability with respect to any pension,
profit sharing or other plan which is subject to the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), to which any of the
Company or the Subsidiaries makes or ever has made a contribution and in
which any employee of any of the Company or the Subsidiaries is or has ever
been a participant. With respect to such plans, the Company and the
Subsidiaries are, and, after giving effect to the issuance and sale of the
Securities, will be, in compliance in all material respects with all
provisions of ERISA.
(n) Except as described in the Final Memorandum, the Company and the
Subsidiaries own or possess adequate licenses or other rights to use all
patents, trademarks, service marks, trade names, copyrights and know-how
that are necessary to conduct their business as described in the Final
Memorandum. None of the Company or the Subsidiaries has received any
notice of infringement of or conflict with (or knows of any such
infringement of or conflict with) asserted rights of others with respect to
any patents, trademarks, service marks, trade names, copyrights or know-how
that, if such assertion of infringement
-10-
or conflict were sustained, would, individually or in the aggregate, have a
Material Adverse Effect.
(o) Except as described in the Final Memorandum, each of the Company
and the Subsidiaries possesses all licenses, permits, certificates,
consents, orders, approvals and other authorizations from, and has made all
declarations and filings with, all federal, state, local and other
governmental authorities, all self-regulatory organizations and all courts
and other tribunals presently required or necessary to own or lease, as the
case may be, and to operate its respective properties and to carry on its
respective businesses as now or proposed to be conducted as set forth in
the Final Memorandum ("Permits"), except where the failure to obtain such
Permits would not, individually or in the aggregate, have a Material
Adverse Effect; except as described in the Final Memorandum, each of the
Company and the Subsidiaries has fulfilled and performed all of its
obligations with respect to such Permits and no event has occurred which
allows, or after notice or lapse of time would allow, revocation or
termination thereof or results in any other material impairment of the
rights of the holder of any such Permit; and none of the Company or the
Subsidiaries has received any notice of any proceeding relating to
revocation or termination of any such Permit, except as described in the
Final Memorandum and except where such revocation or termination would not,
individually or in the aggregate, have a Material Adverse Effect.
(p) Subsequent to the respective dates as of which information is
given in the Final Memorandum and except as described therein, (i) the
Company and the Subsidiaries have not incurred any material liabilities or
obligations, direct or contingent, or entered into any material
transactions, in either case whether or not in the ordinary course of
business, (ii) the Company and the Subsidiaries have not purchased any of
their respective outstanding capital stock, or declared, paid or otherwise
made any dividend or distribution of any kind on any of their respective
capital stock or otherwise (other than, with respect to any of such
Subsidiaries, the purchase of, or dividend or distribution on, capital
stock owned by the Company) and (iii) there shall not have been any change
in the capital stock or long-term indebtedness of the Company or any of the
Subsidiaries.
-11-
(q) There are no legal or governmental proceedings, nor are there any
contracts or other documents required by the Securities Act to be described
in a prospectus that are not described in the Final Memorandum. Except as
described in the Final Memorandum, none of the Company or the Subsidiaries
is in default under any of the contracts described in the Final Memorandum,
has received a notice or claim of any such default or has knowledge of any
breach of such contracts by the other party or parties thereto, except such
defaults or breaches as would not, individually or in the aggregate, have a
Material Adverse Effect.
(r) None of the Company or the Subsidiaries has taken or will take
any action that would cause this Agreement or the issuance or sale of the
Securities to violate Regulation T, U or X of the Board of Governors of the
Federal Reserve System, in each case as in effect, or as the same may
hereafter be in effect, on the Closing Date.
(s) Each of the Company and the Subsidiaries has good and marketable
title to all real property described in the Final Memorandum as being owned
by it and good and marketable title to the leasehold estate in the real
property described therein as being leased by it, free and clear of all
liens, charges, encumbrances or restrictions, except, in each case, as
described in the Final Memorandum or such as would not, individually or in
the aggregate, have a Material Adverse Effect. All leases, contracts and
agreements, including those referred to in the Final Memorandum to which
the Company or any of the Subsidiaries is a party or by which any of them
is bound are valid and enforceable against the Company or any such
Subsidiary, are, to the knowledge of the Issuers, valid and enforceable
against the other party or parties thereto and are in full force and
effect, except where the failure to be valid and enforceable against the
other party or other parties thereto or to be in full force and effect
would not have a Material Adverse Effect.
(t) Each of the Company and the Subsidiaries has filed all necessary
federal, state and foreign income and franchise tax returns, except where
the failure to so file such returns would not, individually or in the
aggregate, have a Material Adverse Effect, and have paid all taxes shown to
be due on such returns; there is no tax deficiency that has been asserted
against the Company or any
-12-
Subsidiary that would, individually or in the aggregate, have a Material
Adverse Effect.
(u) (i) Immediately after the consummation of the transactions
contemplated by this Agreement and, the other Basic Documents, the fair
value and present fair saleable value of the assets of each of the Company
and the Subsidiaries will exceed the sum of its stated liabilities and
identified contingent liabilities; and (ii) each of the Company and the
Subsidiaries is not, nor will it be, after giving effect to the execution,
delivery and performance of this Agreement and the other Basic Documents,
and the consummation of the other transactions contemplated hereby and
thereby, (a) left with unreasonably small capital with which to carry on
its business as it is proposed to be conducted, (b) unable to pay its debts
(contingent or otherwise) as they mature or (c) otherwise insolvent.
(v) Except as disclosed in the Final Memorandum and except as would
not, individually or in the aggregate, have a Material Adverse Effect, (A)
each of the Company and the Subsidiaries is in compliance with all
applicable Environmental Laws, (B) each of the Company and the Subsidiaries
has made all filings and provided all notices required under any applicable
Environmental Law, and has all permits, authorizations and approvals
required under any applicable Environmental Laws and is in compliance with
their requirements, (C) there is no civil, criminal or administrative
action, suit, demand, claim, hearing, notice of violation, investigation,
proceeding, notice or demand letter or request for information pending or,
to the best knowledge of the Issuers, threatened against the Company or any
of the Subsidiaries under any Environmental Law, (D) no lien, charge,
encumbrance or restriction has been recorded under any Environmental Law
with respect to any assets, facility or property owned, operated, leased or
controlled by the Company or any of the Subsidiaries, (E) neither the
Company nor any of the Subsidiaries has received notice that it has been
identified as a potentially responsible party under the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended
("CERCLA") or any comparable state law, and (F) no property or facility of
the Company or any of the Subsidiaries is (i) listed or proposed for
listing on the National Priorities List under CERCLA or (ii) listed in the
Comprehensive Environmental Response, Compensation, Liability Information
System List promulgated pursuant to
-13-
CERCLA, or on any comparable list maintained by any state or local
governmental authority.
For purposes of this Agreement, the following terms shall have the
following meanings: "Environmental Law" means any federal, state, local or
municipal statute, law, rule, regulation, ordinance, code, policy or rule
of common law and any judicial or administrative interpretation thereof,
including any judicial or administrative order, consent decree or judgment
binding on any of the Company or the Subsidiaries, relating to pollution or
protection of the environment or health or safety or any chemical, material
or substance, that is subject to regulation thereunder. "Environmental
Claims" means any and all administrative, regulatory or judicial actions,
suits, demands, demand letters, claims, notices of responsibility,
information requests, liens, notices of noncompliance or violation,
investigations or proceedings relating in any way to any Environmental Law.
(w) None of the Company or the Subsidiaries is, or immediately after
the Closing Date will be, required to register as an "investment company"
or a company "controlled by" an "investment company" within the meaning of
the Investment Company Act of 1940, as amended.
(x) None of the Company or the Subsidiaries or any of such entities'
directors, officers, employees, agents or controlling persons has taken,
directly or indirectly, any action designed, or that might reasonably be
expected, to cause or result, under the Securities Act or otherwise, in, or
that has constituted, stabilization or manipulation of the price of the
Securities.
(y) None of the Company, the Subsidiaries or any of their respective
Affiliates (as defined in Rule 501(b) of Regulation D under the Securities
Act) directly, or through any agent, (i) sold, offered for sale, solicited
offers to buy or otherwise negotiated in respect of any "security" (as
defined in the Securities Act) which is or could be integrated with the
sale of the Securities in a manner that would require the registration
under the Securities Act of the Securities or (ii) engaged in any form of
general solicitation or general advertising (as those terms are used in
Regulation D under the Securities Act) in connection with the offering of
the Securities or in any manner involving a public offering within the
meaning of Section 4(2) of the Securities Act. Assuming (i) the
-14-
accuracy of the representations and warranties of the Initial Purchasers in
Section 9 hereof and (ii) the due performance by the Initial Purchasers of
the covenants and agreements set forth in Section 9 hereof, it is not
necessary in connection with the offer, sale and delivery of the Securities
to the Initial Purchasers in the manner contemplated by this Agreement to
register any of the Securities under the Securities Act or to qualify the
Indenture under the Trust Indenture Act.
(z) No securities of any Issuer are of the same class (within the
meaning of Rule 144A under the Securities Act) as the Securities and listed
on a national securities exchange registered under Section 6 of the
Exchange Act, or quoted in a U.S. automated inter-dealer quotation system.
(aa) Except as set forth in the Final Memorandum, there is no strike,
labor dispute, slowdown or work stoppage by the employees of the Company or
any of the Subsidiaries which is pending or, to the best knowledge of the
Company or any of the Subsidiaries, threatened.
(bb) Each of the Company and the Subsidiaries carries insurance
(including self-insurance) in such amounts and covering such risks as in
its reasonable determination is adequate for the conduct of its business
and the value of its properties.
(cc) Each of the Company and the Subsidiaries (i) makes and keeps
accurate books and records and (ii) maintains internal accounting controls
which provide reasonable assurance that (A) transactions are executed in
accordance with management's authorization, (B) transactions are recorded
as necessary to permit preparation of its financial statements and to
maintain accountability for its assets, (C) access to its assets is
permitted only in accordance with management's authorization and (D) the
reported accountability for its assets is compared with existing assets at
reasonable intervals.
(dd) No holder of securities of the Company or any Subsidiary 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.
-15-
(ee) The statistical and market and industry-related data included in
the Final Memorandum are based on or derived from sources which the Issuers
believe to be reliable and accurate or represent the Issuers' good faith
estimates that are made on the basis of data derived from such sources.
(ff) Except as stated in the Final Memorandum, the Company does not
know of any claims for services, either in the nature of a finder's fee or
financial advisory fee, with respect to the offering of the Securities and
the transactions contemplated by the Final Memorandum.
(gg) None of the Company, the Subsidiaries, any of their respective
Affiliates or any person acting on its or their behalf (other than the
Initial Purchasers) has engaged in any directed selling efforts (as that
term is defined in Regulation S under the Securities Act ("Regulation S"))
with respect to the Securities and the Company, the Subsidiaries and their
respective Affiliates and any person acting on its or their behalf (other
than the Initial Purchasers) have acted in accordance with the offering
restrictions requirement of Regulation S.
Any certificate signed by any officer of the Company or any Subsidiary
and delivered to the Initial Purchasers or to counsel for the Initial Purchasers
shall be deemed a joint and several representation and warranty by the Issuers
to the Initial Purchasers as to the matters covered thereby.
3. PURCHASE, SALE AND DELIVERY OF THE SECURITIES. On the basis of
the representations, warranties, agreements and covenants herein contained and
subject to the terms and conditions herein set forth, the Company agrees to
issue and sell to the Initial Purchasers, and each Initial Purchaser agrees to
purchase from the Company, the Notes in the respective amounts set forth in
Schedule A hereto, at 63.256% of their principal amount.
One or more certificates in definitive form for the Notes and the
related Guarantees that the Initial Purchasers have agreed to purchase
hereunder, and in such denomination or denominations and registered in such name
or names as the Initial Purchasers request upon notice to the Company at least
48 hours prior to the Closing Date shall be delivered by or on behalf of the
Company, against payment by or on behalf of the Initial Purchasers, of the
purchase price therefor by wire transfer of immediately available funds to the
account of the
-16-
Company previously designated by it in writing. Such delivery of and payment
for the Notes and the related Guarantees shall be made at the offices of Xxxxxx
Xxxxxx & Xxxxxxx, 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at 9:00 a.m. New
York time, on July 27, 1998, or at such date as the Initial Purchasers and the
Company may agree upon, such time and date of delivery against payment being
herein referred to as the "Closing Date." The Company will make such
certificate or certificates for the Notes and the related Guarantees available
for checking and packaging by the Initial Purchasers at the offices in New York,
New York of CIBC XXXXXXXXXXX CORP. at least 24 hours prior to the Closing Date.
4. OFFERING BY THE INITIAL PURCHASERS. The Initial Purchasers
propose to make an offering of the Securities at the price and upon the terms
set forth in the Final Memorandum as soon as practicable after this Agreement is
entered into and as in the judgment of the Initial Purchasers is advisable.
5. CERTAIN COVENANTS. The Issuers jointly and severally covenant
and agree with the Initial Purchasers that:
(i) The Issuers will not amend or supplement the Final Memorandum or
any amendment or supplement thereto unless the Initial Purchasers shall
have been advised and furnished a copy for a reasonable period of time
prior to the proposed amendment or supplement and the Initial Purchasers
shall have given its consent (which consent shall not be unreasonably
withheld). The Issuers will promptly, upon the reasonable request of the
Initial Purchasers or counsel for the Initial Purchasers, make any
amendments or supplements to the Preliminary Memorandum or the Final
Memorandum that may be necessary in connection with the resale of the
Securities by the Initial Purchasers.
(ii) The Issuers will cooperate with the Initial Purchasers in
arranging for the qualification of the Securities for offering and sale
under the securities or "Blue Sky" laws of such jurisdictions as the
Initial Purchasers may designate and will continue such qualifications in
effect for as long as may be necessary to complete the resale of the
Securities by the Initial Purchasers; PROVIDED, HOWEVER, that in connection
therewith none of the Issuers shall be required to qualify as a foreign
corporation or to execute a general consent to service of process in any
jurisdiction or to take any other action that would subject it to general
service of process or to taxation in
-17-
excess of a nominal amount in respect of doing business in any jurisdiction
in which it is not otherwise subject.
(iii) If, at any time prior to the completion of the resale by the
Initial Purchasers of the Notes or the Private Exchange Notes, any event
shall occur as a result of which it is necessary, in the reasonable opinion
of counsel for the Initial Purchasers, to amend or supplement the Final
Memorandum in order to make such Final Memorandum not misleading in the
light of the circumstances existing at the time it is delivered to a
purchaser, or if for any other reason it shall be necessary to amend or
supplement the Final Memorandum in order to comply with applicable laws,
rules or regulations, the Issuers shall (subject to Section 5(i)) forthwith
amend or supplement such Final Memorandum at their own expense so that, as
so amended or supplemented, such Final Memorandum will not include an
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances existing at the time it is delivered to a purchaser, not
misleading and will comply with all applicable laws, rules or regulations.
(iv) The Issuers will, without charge, provide to the Initial
Purchasers and to counsel for the Initial Purchasers as many copies of each
Preliminary Memorandum or Final Memorandum or any amendment or supplement
thereto as the Initial Purchasers may reasonably request.
(v) None of the Issuers or any of their respective Affiliates will
sell, offer for sale or solicit offers to buy or otherwise negotiate in
respect of any "security" (as defined in the Securities Act) which could be
integrated with the sale of the Securities in a manner which would require
the registration under the Securities Act of the Securities.
(vi) For so long as any of the Securities remain outstanding, the
Company will furnish to the Initial Purchasers (a) as soon as available, a
copy of each report or other communication (financial or otherwise) of the
Company mailed to the Trustee or holders of the Securities or stockholders
or filed with the Commission or any national securities exchange on which
any class of securities of the Company may be listed, and (b) from time to
time such other information concerning the Issuers as the Initial
Purchasers may reasonably request.
-18-
(vii) The Company will apply the net proceeds from the sale of the
Securities as set forth under "Use of Proceeds" in the Final Memorandum.
(viii) Prior to the Closing Date, the Company will furnish to the
Initial Purchasers, as soon as they have been prepared by or are available
to the Company, a copy of any unaudited interim consolidated financial
statements of the Company and the Subsidiaries, for any period subsequent
to the period covered by the most recent financial statements appearing in
the Final Memorandum.
(ix) The Company will not, and will not permit any of the
Subsidiaries to, engage in any form of general solicitation or general
advertising (as those terms are used in Regulation D under the Securities
Act) in connection with the offering of the Securities or in any manner
involving a public offering within the meaning of Section 4(2) of the
Securities Act.
(x) For so long as any of the Securities remain outstanding, the
Company will make available at its expense, upon request, to any holder of
Securities and any prospective purchasers thereof the information specified
in Rule 144A(d)(4) under the Securities Act, unless the Company is then
subject to Section 13 or 15(d) of the Exchange Act.
(xi) The Issuers will use their reasonable best efforts to (i)
permit the Securities to be designated PORTAL securities in accordance with
the rules and regulations adopted by the National Association of Securities
Dealers, Inc. (the "NASD") relating to trading in the Private Offerings,
Resales and Trading through Automated Linkages market (the "Portal Market")
and (ii) permit the Securities to be eligible for clearance and settlement
through The Depository Trust Company.
(xii) In connection with Securities offered and sold in an offshore
transaction (as defined in Regulation S), the Issuers will not register any
transfer of such Securities not made in accordance with the provisions of
Regulation S and will not, except in accordance with the provisions of
Regulation S, if applicable, issue any such Securities in the form of
definitive securities.
(xiii) If this Agreement shall be terminated by the Initial
Purchasers in accordance with Section 11(a)(i) or
-19-
11(a)(v) hereof, the Company agrees to reimburse the Initial Purchasers for
all reasonable out-of-pocket expenses (including fees and expenses of
counsel for the Initial Purchasers) incurred by the Initial Purchasers in
connection herewith, but in no event will the Company be liable to the
Initial Purchasers for damages on account of loss of anticipated profits
from the sale of the Securities.
(xiv) The Issuers will use their commercially reasonable best
efforts to do and perform all things required to be done and performed by
them under this Agreement and the other Basic Documents prior to or after
the Closing Date and to satisfy all conditions precedent on their part to
the obligations of the Initial Purchasers to purchase and accept delivery
of the Securities.
6. EXPENSES. Notwithstanding any termination of this Agreement
(pursuant to Section 11 or otherwise), the Issuers jointly and severally agree
to pay the following costs and expenses and all other reasonable costs and
expenses incident to the performance by the Issuers of their obligations
hereunder: (i) the preparation, printing, typing, and reproduction of this
Agreement and of the other Basic Documents, any amendment or supplement to or
modification of any of the foregoing and any and all other documents furnished
pursuant hereto or thereto or in connection herewith or therewith; (ii) the
preparation, printing or reproduction of each Preliminary Memorandum, the Final
Memorandum and each amendment or supplement to any of them; (iii) the
preparation, printing (or reproduction) and delivery (including postage, air
freight charges and charges for counting and packaging) of such copies of each
Preliminary Memorandum, the Final Memorandum and all amendments or supplements
to any of them as may be reasonably requested for use in connection with the
offering and sale of the Securities; (iv) the preparation, printing,
authentication, issuance and delivery of certificates for the Notes and the
related Guarantees, including any stamp taxes in connection with the original
issuance and sale of the Securities and Trustees' fees; (v) the reproduction and
delivery of the preliminary and supplemental "Blue Sky" memoranda and all other
agreements or documents reproduced and delivered in connection with the offering
of the Securities; (vi) the registration or qualification of the Securities for
offer and sale under the securities or Blue Sky laws of the several states
(including filing fees and the fees, expenses and disbursements of Xxxxxx Xxxxxx
& Xxxxxxx, counsel to the Initial Purchasers, relating to such registration and
qualification); (vii) the filing fees in connection with any filings required to
be made with the NASD (including the fees
-20-
and disbursements of Xxxxxx Xxxxxx & Xxxxxxx, counsel to the Initial Purchasers,
in respect thereof and in connection with obtaining an opinion of the NASD
concerning the fairness of the terms and arrangements of the underwriting of the
Securities); (viii) one-half of the transportation and other expenses incurred
by or on behalf of Company representatives in connection with presentations to
prospective purchasers of the Securities; (ix) the fees and expenses of the
Company's accountants and the fees and expenses of counsel (including local and
special counsel) for the Issuers; (x) fees and expenses of the Trustee including
fees and expenses of its counsel; (xi) all expenses and listing fees incurred in
connection with the application for quotation of the Securities on the PORTAL
Market; and (xii) any fees charged by investment rating agencies for the rating
of the Securities.
7. CONDITIONS OF THE INITIAL PURCHASERS' OBLIGATIONS. The
obligation of the Initial Purchasers to purchase and pay for the Securities is
subject to the accuracy of the representations and warranties contained herein,
to the performance by the Issuers of their respective covenants and agreements
hereunder and to the following additional conditions unless waived in writing by
the Initial Purchasers:
(i) The Initial Purchasers shall have received an opinion of
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel to the Issuers, in form
and substance satisfactory to the Initial Purchasers and Xxxxxx Xxxxxx &
Xxxxxxx, counsel to the Initial Purchasers, dated the Closing Date. In
rendering such opinion, Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, shall
have received and may rely upon such certificates and other documents and
information, including one or more opinions of local counsel reasonably
acceptable to the Initial Purchasers, as they may reasonably request to
pass upon such matters.
(ii) The Initial Purchasers shall have received an opinion, dated
the Closing Date, of Xxxxxx Xxxxxx & Xxxxxxx, counsel to the Initial
Purchasers, with respect to the sufficiency of certain legal matters
relating to this Agreement and such other related matters as the Initial
Purchasers may require. In rendering such opinion, Xxxxxx Xxxxxx & Xxxxxxx
shall have received and may rely upon such certificates and other documents
and information as they may reasonably request to pass upon such matters.
In addition, in rendering their opinion, Xxxxxx Xxxxxx & Xxxxxxx may state
that their opinion is limited to matters of New York, Delaware corporate
and federal law.
-21-
(iii) The Initial Purchasers shall have received from Ernst & Young
LLP, independent public accountants for the Issuers, a "comfort" letter
dated the date hereof and the Closing Date, in form and substance
reasonably satisfactory to the Initial Purchasers and Xxxxxx Xxxxxx &
Xxxxxxx, counsel to the Initial Purchasers.
(iv) The representations and warranties of the Issuers contained in
this Agreement shall be true and correct on and as of the Closing Date; the
Issuers shall have complied in all material respects with all agreements
and satisfied all conditions on their part to be performed or satisfied
hereunder at or prior to the Closing Date.
(v) There shall not have been any change in the capital stock of
the Issuers or any material increase in the consolidated short-term or
long-term debt of the Company from that set forth or contemplated in the
Final Memorandum and (b) the Issuers shall not have any liabilities or
obligations, contingent or otherwise (whether or not in the ordinary course
of business), that are material to the Issuers, taken as a whole, other
than those reflected in the Final Memorandum.
(vi) None of the issuance and sale of the Securities pursuant to
this Agreement or any of the transactions contemplated by any of the other
Basic Documents shall be enjoined (temporarily or permanently) and no
restraining order or other injunctive order shall have been issued; and
there shall not have been any legal action, order, decree or other
administrative proceeding instituted or threatened against any of the
Issuers or against the Initial Purchasers relating to the issuance of the
Securities or the Initial Purchasers' activities in connection therewith or
any other transactions contemplated by this Agreement or the Final
Memorandum or the other Basic Documents.
(vii) Subsequent to the date of this Agreement and since the date of
the most recent financial statements in the Final Memorandum (exclusive of
any amendment or supplement thereto after the date hereof), there shall not
have occurred (i) any change, or any development involving a prospective
change, in or affecting the general affairs, management, business,
condition (financial or other), properties, prospects or results of
operations of the Issuers, taken as a whole, not contemplated by the Final
Memorandum would materially adversely affect the market for the Securities,
or (ii) any event or development re-
-22-
lating to or involving any of the Issuers or any of the officers or
directors of the Issuers that makes any statement made in the Final
Memorandum untrue or that requires the making of any addition to or change
in the Final Memorandum in order to state a material fact required by any
applicable law, rule or regulation to be stated therein or necessary in
order to make the statements made therein not misleading.
(viii) The Initial Purchasers shall have received certificates, dated
the Closing Date and signed by the chief executive officer and the chief
financial officer of the Issuers, to the effect that:
a. All of the representations and warranties of the Issuers set
forth in this Agreement are true and correct as if made on and
as of the Closing Date and the Issuers have complied in all
material respects with all agreements and satisfied all
conditions on their part to be performed or satisfied at or
prior to the Closing Date.
b. The issuance and sale of the Securities pursuant to this
Agreement or the Final Memorandum have not been enjoined
(temporarily or permanently) and no restraining order or other
injunctive order has been issued and there has not been any
legal action, order, decree or other administrative proceeding
instituted or, to the best knowledge of the Issuers,
threatened against the Issuers relating to the issuance of the
Securities or the Initial Purchasers' activities in connection
therewith or in connection with any other transactions
contemplated by this Agreement, the Final Memorandum or the
other Basic Documents.
c. Subsequent to the date of this Agreement and since the date of
the most recent financial statements in the Final Memorandum
(exclusive of any amendment or supplement thereto after the
date hereof), there has not occurred (i) any change, or any
development involving a prospective change, in or affecting
the general affairs, management, business, condition
(financial or other), properties, prospects or results of
operations of the Issuers, taken as a whole, not contemplated
by the Final Memorandum
-23-
that would materially adversely affect the market for the
Securities, or (ii) any event or development relating to or
involving any of the Issuers or any of the respective officers
or directors of the Issuers that makes any statement made in
the Final Memorandum untrue or that requires the making of any
addition to or change in the Final Memorandum in order to
state a material fact required by any applicable law, rule or
regulation to be stated therein or necessary in order to make
the statements made therein not misleading.
d. (i) There has not been any change in the capital stock of the
Issuers nor any material increase in the consolidated
short-term or long-term debt of the Issuers from that set
forth or contemplated in the Final Memorandum and (ii) the
Issuers have no liabilities or obligations, contingent or
otherwise (whether or not in the ordinary course of business),
that are material to the Issuers, taken as a whole, other than
those reflected in the Final Memorandum.
e. At the Closing Date and after giving effect to the
consummation of the transactions contemplated by this
Agreement and, the other Basic Documents, there exists no
Default or Event of Default (as defined in the Indenture).
(ix) All proceedings taken in connection with the issuance of the
Securities and the transactions contemplated by this Agreement, the other
Basic Documents and all documents and papers relating thereto shall be
reasonably satisfactory to the Initial Purchasers and counsel to the
Initial Purchasers. The Initial Purchasers and counsel to the Initial
Purchasers shall have received copies of such papers and documents as they
may reasonably request in connection therewith, all in form and substance
reasonably satisfactory to them.
(x) There shall not have been any announcement by any "nationally
recognized statistical rating organization," as defined for purposes of
Rule 436(g) under the Securities Act, that (A) it is downgrading its rating
assigned to any debt securities of the Company, or (B) it is reviewing its
rating assigned to any debt securities of
-24-
the Company with a view to possible downgrading, or with negative
implications, or direction not determined.
(xi) On or before the Closing Date, the Initial Purchasers shall
have received the Registration Rights Agreement executed by the Company and
such agreement shall be in full force and effect at all times from and
after the Closing Date.
(xii) The Issuer shall have furnished or caused to be furnished to
the Initial Purchasers such further certificates and documents as the
Initial Purchasers shall have reasonably requested.
All such opinions, certificates, letters, schedules, documents or
instruments delivered pursuant to this Agreement will comply with the provisions
hereof only if they are reasonably satisfactory in all material respects to the
Initial Purchasers and counsel to the Initial Purchasers. The Issuer shall
furnish to the Initial Purchasers such conformed copies of such opinions,
certificates, letters, schedules, documents and instruments in such quantities
as the Initial Purchasers shall reasonably request.
8. INDEMNIFICATION AND CONTRIBUTION. (a) Each Issuer jointly
and severally agrees to indemnify and hold harmless the Initial Purchasers, each
director, officer, employee or agent of the Initial Purchasers and each person,
if any, who controls the Initial Purchasers within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act, against any losses,
claims, damages, liabilities or expenses to which the Initial Purchasers or such
director, officer, employee, agent or controlling person may become subject
under the Securities Act, the Exchange Act or otherwise, insofar as any such
losses, claims, damages, liabilities or expenses (or actions in respect thereof)
arise out of or are based upon:
(i) any untrue statement or alleged untrue statement of any
material fact contained in (A) any Preliminary Memorandum or the Final
Memorandum or any amendment or supplement thereto or (B) any of the Basic
Documents or any application or other document, or any amendment or
supplement thereto, executed by any Issuer or based upon written
information furnished by or on behalf of any Issuer filed in any
jurisdiction in order to qualify the Securities under the securities or
"Blue Sky" laws thereof
-25-
or filed with the Commission or any securities association or securities
exchange (collectively, the "Documents"); or
(ii) the omission or alleged omission to state, in any Preliminary
Memorandum or the Final Memorandum or any amendment or supplement thereto,
or any of the Documents, a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, and will reimburse, as
incurred, the Initial Purchasers and each such director, officer, employee,
agent or controlling person for any legal or other expenses reasonably
incurred by the Initial Purchasers or such director, officer, employee,
agent or controlling person in connection with investigating, defending
against or appearing as a third-party witness in connection with any such
loss, claim, damage, liability, expense or action; PROVIDED, HOWEVER, that
none of the Issuers will be liable to the Initial Purchasers or any
director, officer, employee, agent or controlling person of the Initial
Purchasers to the extent that any such loss, claim, damages, liability,
expense or action arises out of or is based upon any untrue statement or
alleged untrue statement or omission or alleged omission made in any
Preliminary Memorandum or the Final Memorandum or any amendment or
supplement thereto, or any Document, in reliance upon and in conformity
with written information furnished to the Issuers by or on behalf of the
Initial Purchasers specifically for use therein; and PROVIDED, FURTHER,
that none of the Issuers will be liable to the Initial Purchasers or any
director, officer, employee, agent or any person controlling the Initial
Purchasers with respect to any such untrue statement or omission made in
any Preliminary Memorandum that is corrected in the Final Memorandum (or
any amendment or supplement thereto) if the person asserting any such loss,
claim, damage, expense or liability purchased Securities from the Initial
Purchasers in reliance upon the Preliminary Memorandum but was not sent or
given a copy of the Final Memorandum (as amended or supplemented) that was
made available by the Issuers to the Initial Purchasers at or prior to the
written confirmation of the sale of the Securities to such person in any
case where such delivery of such Final Memorandum (as so amended or
supplemented) is required by the Securities Act, unless such failure to
deliver such Final Memorandum (as amended or supplemented) was a result of
noncompliance by the Issuers with Section 5(iv) of this Agreement. This
indemnity agreement will be in addition to any liability that the Issuers
may
-26-
otherwise have to the indemnified parties. The Issuers further agree that
the indemnification, contribution and reimbursement commitments set forth
in this Section 8 shall apply whether or not the Initial Purchasers are a
formal party to any such lawsuits, claims or other proceedings. None of
the Issuers will, without the prior written consent of the Initial
Purchasers, settle or compromise or consent to the entry of any judgment in
any pending or threatened claim, action, suit or proceeding in respect of
which indemnification by the Initial Purchasers may be sought hereunder
(whether or not the Initial Purchasers or any person who controls the
Initial Purchasers within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act is a party to such claim, action, suit or
proceeding), unless such settlement, compromise or consent includes an
unconditional release of the Initial Purchasers and each such director,
officer, employee, agent or controlling person from all liability arising
out of such claim, action, suit or proceeding.
(b) The Initial Purchasers, severally and not jointly, will indemnify
and hold harmless the Issuers, their respective directors, officers, employees
and agents and each person, if any, who controls any of the Issuers within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act
against any losses, claims, damages or liabilities to which any of the Issuers
or any such director, officer, employee, agent or controlling person may become
subject under the Securities Act, the Exchange Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in any Preliminary Memorandum or the Final Memorandum or
any amendment or supplement thereto or any Document, in each case to the extent,
but only to the extent, that such untrue statement or alleged untrue statement
was made in reliance upon and in conformity with written information furnished
to any of the Issuers by or on behalf of the Initial Purchasers specifically for
use therein; and, subject to the limitation set forth immediately preceding this
clause, will reimburse, as incurred, any legal or other expenses reasonably
incurred by any of the Issuers or any such director, officer, employee, agent or
controlling person in connection with investigating or defending against or
appearing as a third-party witness in connection with any such loss, claim,
damage, liability or action in respect thereof. This indemnity agreement will
be in addition to any liability that the Initial Purchasers may otherwise have
to the indemnified parties.
-27-
(c) Promptly after receipt by an indemnified party under this Section
8 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 this
Section 8, notify the indemnifying party of the commencement thereof; but the
omission so to notify the indemnifying party will not relieve it from any
liability that it may have to any indemnified party except to the extent that
such omission results in the forfeiture by the indemnifying party of substantial
rights and defenses. In case any such action is brought against any indemnified
party, and such indemnified party notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein and, to the extent that it may wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party; PROVIDED, HOWEVER, that if the named
parties in any such action (including any impleaded parties) include both the
indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be one or more legal defenses available
to it and/or other indemnified parties that are different from or additional to
those available to any such indemnifying party, then the indemnifying parties
shall not have the right to direct the defense of such action on behalf of such
indemnified party or parties and such indemnified party or parties shall have
the right to select separate counsel to defend such action on behalf of such
indemnified party or parties. After notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof and approval
by such indemnified party of counsel appointed to defend such action, the
indemnifying party will not be liable to such indemnified party under this
Section 8 for any legal or other expenses, other than reasonable out-of-pocket
costs of investigation, incurred by such indemnified party in connection with
the defense thereof, unless (i) the indemnified party shall have employed
separate counsel in accordance with the proviso to the immediately preceding
sentence (it being understood, however, that in connection with such action the
indemnifying party shall not be liable for the expenses of more than one
separate counsel (in addition to local counsel) in any one action or separate
but substantially similar actions in the same jurisdiction arising out of the
same general allegations or circumstances, representing the indemnified parties
under such paragraph (a) or paragraph (b), as the case may be, who are parties
to such action or actions); (ii) the indemnifying party has authorized in
writing the employment of counsel for the indemnified party at the expense of
the indemnifying parties; or (iii) the indemnifying party shall
-28-
have failed to assume the defense or retain counsel reasonably satisfactory to
the indemnified party. After such notice from the indemnifying parties to such
indemnified party (so long as the indemnified party shall have informed the
indemnifying parties of such action in accordance with this Section 8 on a
timely basis prior to the indemnified party seeking indemnification hereunder),
the indemnifying parties will not be liable under this Section 8 for the costs
and expenses of any settlement of such action effected by such indemnified party
without the consent of the indemnifying party, unless such indemnified party
waived its rights under this Section 8, in which case the indemnified party may
effect such a settlement without such consent.
(d) In circumstances in which the indemnity agreement provided for in
the preceding paragraphs of this Section 8 is unavailable or insufficient to
hold harmless an indemnified party in respect of any losses, claims, damages,
expenses or liabilities (or actions in respect thereof), each indemnifying
party, in order to provide for just and equitable contribution, shall contribute
to the amount paid or payable by such indemnified party as a result of such
losses, claims, damages, expenses or liabilities (or actions in respect thereof)
in such proportion as is appropriate to reflect (i) the relative benefits
received by the indemnifying party or parties on the one hand and the
indemnified party on the other from the offering of the Securities or (ii) if
the allocation provided by the foregoing clause (i) is not permitted by
applicable law, not only such relative benefits but also the relative fault of
the indemnifying party or parties on the one hand and the indemnified party on
the other in connection with the statements or omissions or alleged statements
or omissions that resulted in such losses, claims, damages, expenses or
liabilities (or actions in respect thereof). The relative benefits received by
the Issuers on the one hand and the Initial Purchaser on the other shall be
deemed to be in the same proportion as the total proceeds from the offering of
the Securities (before deducting expenses) received by the Issuers bear to the
total discounts and commissions received by the Initial Purchasers. The
relative fault of the parties shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Issuers on the one hand or the Initial Purchasers on the other,
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission, and any other equitable
considerations appropriate in the circumstances. The amount paid or payable by
a party as a re-
-29-
xxxx of the losses, claims, damages and liabilities referred to above shall be
deemed to include any legal or other fees or expenses incurred by such party in
connection with investigating or defending any such claim. The Issuers and the
Initial Purchasers agree that it would not be equitable if the amount of such
contribution were determined by pro rata or per capita allocation (even if the
Issuers on the one hand and the Initial Purchasers on the other hand were
treated as one entity for such purpose) or by any other method of allocation
that does not take into account the equitable considerations referred to in the
first sentence of this paragraph (d). Notwithstanding any other provision of
this paragraph (d), the Initial Purchasers shall not be obligated to make
contributions hereunder that in the aggregate exceed the total discounts and
commissions received by the Initial Purchasers under this Agreement, less the
aggregate amount of any damages that the Initial Purchasers have otherwise been
required to pay by reason of the untrue or alleged untrue statements, and no
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. For purposes of this
paragraph (d), each director, officer, employee or agent of and each person, if
any, who controls the Initial Purchasers within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act shall have the same rights to
contribution as the Initial Purchasers, and each director, officer, employee and
agent of any of the Issuers and each person, if any, who controls any of the
Issuers within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act shall have the same rights to contribution as the Issuers.
(e) Notwithstanding anything to the contrary in this Section 8, the
indemnification and contribution provisions of the Registration Rights Agreement
shall govern any claim with respect thereto.
9. OFFERING OF SECURITIES; RESTRICTIONS ON TRANSFER. (a) Each
Initial Purchaser represents and warrants that it is a QIB. Each Initial
Purchaser agrees with the Issuers that (i) it has not and will not solicit
offers for, or offer or sell, the Securities by any form of general solicitation
or general advertising (as those terms are used in Regulation D under the
Securities Act) or in any manner involving a public offering within the meaning
of Section 4(2) of the Securities Act; and (ii) it has and will solicit offers
for the Securities only from, and will offer the Securities only to, (A) in the
case of offers inside the United States, persons whom such Ini-
-30-
tial Purchaser reasonably believes to be QIBs or, if any such person is buying
for one or more institutional accounts for which such person is acting as
fiduciary or agent, only when such person has represented to such Initial
Purchaser that each such account is a QIB, to whom notice has been given that
such sale or delivery is being made in reliance on Rule 144A and, in each case,
in transactions under Rule 144A and (B) in the case of offers outside the United
States, to persons other than U.S. persons ("foreign purchasers," which term
shall include dealers or other professional fiduciaries in the United States
acting on a discretionary basis for foreign beneficial owners (other than an
estate or trust)); PROVIDED, HOWEVER, that, in the case of this clause (B), in
purchasing Securities such persons are deemed to have represented and agreed as
provided under the caption "Notice to Investors" contained in the Final
Memorandum.
(b) Each of the Initial Purchasers represents and warrants with
respect to offers and sales outside the United States that (i) it has and will
comply with all applicable laws and regulations in each jurisdiction in which it
acquires, offers, sells or delivers Securities or has in its possession or
distributes any Memorandum or any such other material, in all cases at its own
expense; (ii) the Securities have not been and will not be offered or sold
within the United States or to, or for the account or benefit of, U.S. persons
except in accordance with Regulation S under the Securities Act or pursuant to
an exemption from the registration requirements of the Securities Act; (iii) it
has offered the Securities and will offer and sell the Securities (A) as part of
its distribution at any time and (B) otherwise until 40 days after the later of
the commencement of the offering and the Closing Date, only in accordance with
Rule 903 of Regulation S and, accordingly, neither it nor any persons acting on
its behalf have engaged or will engage in any directed selling efforts (within
the meaning of Regulation S) with respect to the Securities, and any such
persons have complied and will comply with the offering restrictions requirement
of Regulation S; and (iv) it agrees that, at or prior to confirmation of sales
of the Securities, 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
United States Securities Act of 1933 (the "Securities Act") and may
not be offered and sold within the United States or to, or for the ac-
-31-
count or benefit of, U.S. persons (i) as part of the distribution of the
securities at any time or (ii) otherwise until 40 days after the later of
the commencement of the offering and the closing date of the offering,
except in either case in accordance with Regulation S (or Rule 144A if
available) under the Securities Act. Terms used above have the meaning
given to them in Regulation S."
Terms used in this Section 9 and not defined in this Agreement have the meanings
given to them in Regulation S.
10. SURVIVAL CLAUSE. The respective representations, warranties,
agreements, covenants, indemnities and other statements of the Issuers, their
respective officers and the Initial Purchasers set forth in this Agreement or
made by or on behalf of them, respectively, pursuant to this Agreement shall
remain in full force and effect, regardless of (i) any investigation made by or
on behalf of the Issuers, any of their respective officers or directors, the
Initial Purchasers or any controlling person referred to in Section 8 hereof and
(ii) delivery of, payment for or disposition of the Securities. The respective
agreements, covenants, indemnities and other statements set forth in Sections 6
and 8 hereof shall remain in full force and effect, regardless of any
termination or cancellation of this Agreement.
11. TERMINATION. (a) This Agreement may be terminated in the
sole discretion of the Initial Purchasers by notice to the Issuers given in the
event that the Issuers shall have failed, refused or been unable to satisfy all
conditions on their part to be performed or satisfied hereunder on or prior to
the Closing Date or if at or prior to the Closing Date:
(i) any of the Company or the Subsidiaries shall have sustained
any loss or interference with respect to their respective businesses or
properties from fire, flood, hurricane, earthquake, accident or other
calamity, whether or not covered by insurance, or from any labor dispute or
any legal or governmental proceeding, which loss or interference, in the
sole judgment of the Initial Purchasers, has had or has a Material Adverse
Effect on the general affairs, management, business, condition (financial
or other), properties, prospects or results of operations of the Company
and the Subsidiaries, taken as a whole, or there shall have been any
material adverse change, or any development involving a prospective mate-
-32-
rial adverse change (including without limitation a change in management or
control of the Company or any Subsidiary), in the general affairs,
management, business, condition (financial or other), properties, prospects
or results of operations of the Company and the Subsidiaries, taken as a
whole, except as described in or contemplated by the Final Memorandum
(exclusive of any amendment or supplement thereto);
(ii) trading in securities generally on the New York Stock
Exchange, the American Stock Exchange or the NASDAQ National Market shall
have been suspended or minimum or maximum prices shall have been
established on any such exchange;
(iii) a banking moratorium shall have been declared by New York or
United States authorities;
(iv) there shall have been (A) an outbreak or escalation of
hostilities between the United States and any foreign power, (B) an
outbreak or escalation of any other insurrection or armed conflict
involving the United States or any other national or international calamity
or emergency, or (C) any material change in the financial markets of the
United States that, in the case of (A), (B) or (C) above, in the sole
judgment of the Initial Purchasers, makes it impracticable or inadvisable
to proceed with the delivery of the Securities as contemplated by the Final
Memorandum, as amended as of the date hereof; or
(v) any securities of the Company or any of the Subsidiaries shall
have been downgraded or placed on any "watch list" for possible downgrading
by any nationally recognized statistical rating organization.
(b) Termination of this Agreement pursuant to this Section 11 shall
be without liability of any party to any other party except as provided in
Section 10 hereof.
12. NOTICES. All communications hereunder shall be in writing
and, if sent to the Initial Purchasers, shall be hand delivered, mailed by
first-class mail, couriered by next-day air courier or telecopied and confirmed
in writing to CIBC XXXXXXXXXXX CORP., 000 Xxxxxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Corporate Finance Department, and with a copy to
Xxxxxx Xxxxxx & Xxxxxxx, 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Xxxxx Xxxxxxx, Esq. If sent to any of the Issuers, shall be mailed, delivered
or telecopied
-33-
and confirmed in writing, to Radio Unica Corp., 0000 X.X. 00xx Xxxxxx, Xxxxx
000, Xxxxx, Xxxxxxx, Attention: Chief Financial Officer, and with a copy to
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, 0000 Xxx Xxxx Xxxxxx, X.X.,
Xxxxxxxxxx, X.X. Attention: C. Xxxxx Xxxxxxxx, Esq.
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; five business days
after being deposited in the mail, postage prepaid, if mailed; one business day
after being timely delivered to a next-day air courier guaranteeing overnight
delivery; and when receipt is acknowledged by the addressee, if telecopied.
13. SUCCESSORS. This Agreement shall inure to the benefit of and
be binding upon the Initial Purchasers and each of the Issuers and their
respective successors and legal representatives, and nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any other
person any legal or equitable right, remedy or claim under or in respect of this
Agreement, or any provisions herein contained; this Agreement and all conditions
and provisions hereof being intended to be and being for the sole and exclusive
benefit of such persons and for the benefit of no other person except that (i)
the indemnities of the Issuers contained in Section 8 of this Agreement shall
also be for the benefit of the directors, officers, employees and agents and any
person or persons who control the Initial Purchasers within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act and (ii) the
indemnities of the Initial Purchasers contained in Section 8 of this Agreement
shall also be for the benefit of the directors, officers, employees and agents
of the Issuers and any person or persons who control any Issuer within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act.
No purchaser of Securities from the Initial Purchasers will be deemed a
successor because of such purchase.
14. NO WAIVER; MODIFICATIONS IN WRITING. No failure or delay on
the part of any Issuer or the Initial Purchasers in exercising any right, power
or remedy hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right, power or remedy preclude any other or
further exercise thereof or the exercise of any other right, power or remedy.
The remedies provided for herein are cumulative and are not exclusive of any
remedies that may be available to any Issuer or the Initial Purchasers at law or
in equity or otherwise. No waiver of or consent to any departure by any Issuer
or the Initial Purchasers from any provision of this Agreement
-34-
shall be effective unless signed in writing by the party entitled to the benefit
thereof, PROVIDED that notice of any such waiver shall be given to each party
hereto as set forth below. Except as otherwise provided herein, no amendment,
modification or termination of any provision of this Agreement shall be
effective unless signed in writing by or on behalf of each of the Issuers and
the Initial Purchasers. Any amendment, supplement or modification of or to any
provision of this Agreement, any waiver of any provision of this Agreement, and
any consent to any departure by the Issuers or the Initial Purchasers from the
terms of any provision of this Agreement shall be effective only in the specific
instance and for the specific purpose for which made or given. Except where
notice is specifically required by this Agreement, no notice to or demand on the
Issuers in any case shall entitle the Issuers to any other or further notice or
demand in similar or other circumstances.
15. INFORMATION SUPPLIED BY THE INITIAL PURCHASER. The statements
set forth in the last paragraph on the front cover page of the Final Memorandum;
the second sentence on page i of the Final Memorandum; the last two sentences of
the third paragraph; the third and fourth sentences of the fifth paragraph; and
the seventh and eighth paragraphs in each case under the heading "Plan of
Distribution" in the Final Memorandum (to the extent such statements relate to
the Initial Purchasers) constitute the only information furnished by the Initial
Purchasers to the Issuers for purposes of Section 8 hereof.
16. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement among the parties hereto and supersedes all prior agreements,
understandings and arrangements, oral or written, among the parties hereto with
respect to the subject matter hereof.
17. APPLICABLE LAW. THE VALIDITY AND INTERPRETATION OF THIS
AGREEMENT, AND THE TERMS AND CONDITIONS SET FORTH HEREIN SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
GIVING EFFECT TO ANY PROVISIONS RELATING TO CONFLICTS OF LAW.
18. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
19. JOINT AND SEVERAL OBLIGATIONS. All of the obligations of the
Issuers hereunder shall be joint and several obligations of each of them.
-35-
If the foregoing correctly sets forth our understanding, please
indicate your acceptance thereof in the space provided below for that purpose,
whereupon this Agreement shall constitute a binding agreement among the Issuers
and the Initial Purchasers.
Very truly yours,
RADIO UNICA CORP.
By: /s/ Xxxxxxx X. Xxxxx
------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Chairman and Chief
Executive Officer
RADIO UNICA OF SAN FRANCISCO INC.
By: /s/ Xxxxxxx X. Xxxxx
------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Chairman and Chief
Executive Officer
ORO SPANISH BROADCASTING, INC.
By: /s/ Xxxxxxx X. Xxxxx
------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Chairman and Chief
Executive Officer
RADIO UNICA OF SAN FRANCISCO LICENSE CORP.
By: /s/ Xxxxxxx X. Xxxxx
------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Chairman and Chief
Executive Officer
RADIO UNICA OF MIAMI, INC.
By: /s/ Xxxxxxx X. Xxxxx
------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Chairman and Chief
Executive Officer
RADIO UNICA OF MIAMI LICENSE CORP.
By: /s/ Xxxxxxx X. Xxxxx
------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Chairman and Chief
Executive Officer
RADIO UNICA OF LOS ANGELES, INC.
By: /s/ Xxxxxxx X. Xxxxx
------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Chairman and Chief
Executive Officer
RADIO UNICA OF LOS ANGELES LICENSE CORP.
By: /s/ Xxxxxxx X. Xxxxx
------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Chairman and Chief
Executive Officer
RADIO UNICA OF SAN ANTONIO, INC.
By: /s/ Xxxxxxx X. Xxxxx
------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Chairman and Chief
Executive Officer
RADIO UNICA NETWORK, INC.
By: /s/ Xxxxxxx X. Xxxxx
------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Chairman and Chief
Executive Officer
RADIO UNICA SALES CORP.
By: /s/ Xxxxxxx X. Xxxxx
------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Chairman and Chief
Executive Officer
The foregoing Agreement is
hereby confirmed and accepted as
of the date first above written.
CIBC XXXXXXXXXXX CORP.
By: /s/ Xxx X. Xxxxxxx
-----------------------------
Name: Xxx Xxxxxxx
Title: Director
BEAR, XXXXXXX & CO. INC.
By: /s/ Xxxx Xxxxxxxxx
-----------------------------
Name: Xxxx Xxxxxxxxx
Title: Managing Director
EXHIBIT A
Subsidiaries
------------
Radio Unica Of San Francisco Inc.
Oro Spanish Broadcasting, Inc.
Radio Unica Of San Francisco License Corp.
Radio Unica Of Miami, Inc.
Radio Unica Of Miami License Corp.
Radio Unica Of Los Angeles, Inc.
Radio Unica Of Los Angeles License Corp.
Radio Unica Of San Antonio, Inc.
Radio Unica Network, Inc.
Radio Unica Sales Corp.
SCHEDULE I
Principal Amount of Notes
Initial Purchaser At Maturity
----------------- -------------------------
CIBC Xxxxxxxxxxx Corp. 118,566,000
Bear, Xxxxxxx & Co., Inc. 39,522,000
------------
Total 158,088,000
============
SCHEDULE II
THREATENED LITIGATION
Counsel claiming to represent two purported unpaid creditors (Xxxxxxx X. Xxxxxx
and Xxxxxxx X. Xxxxxx) of Xxxx De La Xxxx ("RDLR") has asserted, among other
things, that such purported unpaid creditors have a security interest in the
stock of Oro Spanish Broadcasting, Inc. ("Oro"). The Company believes that,
under the purchase agreement between the Company and RDLR relating to the
Company's acquisition of Oro, the Company would be indemnified by RDLR for any
damages arising from such assertion.
