1
EXHIBIT 1.1
CHANCELLOR RADIO BROADCASTING COMPANY
$200,000,000
8-3/4% SENIOR SUBORDINATED NOTES DUE 2007
PURCHASE AGREEMENT
June 18, 1997
CREDIT SUISSE FIRST BOSTON
CORPORATION
BT SECURITIES CORPORATION
MORGAN STANLEY & CO. INCORPORATED
c/o Credit Suisse First Boston
Corporation
Eleven Madison Avenue
New York, New York 10010
Ladies and Gentlemen:
Chancellor Radio Broadcasting Company (the "Company"), a
Delaware corporation and subsidiary of Chancellor Broadcasting Company, a
Delaware corporation ("Chancellor"), and each subsidiary guarantor named on the
signature page hereto (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 $200,000,000 aggregate principal amount of its 8-3/4% Senior
Subordinated Notes due 2007, Series A (the "Notes" and, together with the
guarantee of each Guarantor (the "Guarantee"), the "Securities"). The Notes are
to be issued under an indenture (the "Indenture") to be dated as of June 24,
1997 by and among the Company, the Guarantors and U.S. Trust Company of Texas,
N.A., as trustee (the "Trustee").
The Notes will be offered and sold to the Initial Purchasers
without being registered under the Securities Act of 1933, as amended (the
"Act"), in reliance on exemptions therefrom.
2
-2-
In connection with the sale of the Notes, the Company has
prepared a final offering memorandum dated June 18, 1997 (the "Memorandum")
setting forth or including a description of the terms of the Notes, the terms
of the offering of the Notes, a description of the Company and any material
developments relating to the Company occurring after the date of the most
recent historical financial statements included therein.
The Initial Purchasers and their direct and indirect
transferees of the Notes will be entitled to the benefits of the Registration
Rights Agreement, substantially in the form attached hereto as Exhibit A (the
"Registration Rights Agreement"), pursuant to which the Company has agreed,
among other things, to file with the Securities and Exchange Commission (the
"Commission") under the circumstances set forth therein (i) a registration
statement (the "Registration Statement") under the Act relating to the
Company's 8-3/4% Senior Subordinated Notes due 2007, Series B (the "Exchange
Notes"), to be offered in exchange for the Notes or (ii) a shelf registration
statement pursuant to Rule 415 under the Act relating to the resale of the
Notes by holders thereof or, if applicable, relating to the resale of debt
securities of the Company substantially identical to the Exchange Notes (the
"Private Exchange Notes") by the Initial Purchasers pursuant to an exchange of
the Notes for Private Exchange Notes.
2. Representations and Warranties of the Company and the
Guarantors. Each of the Company and the Guarantors represents and warrants to
and agrees with the Initial Purchasers that:
(a) The Memorandum and any amendment or supplement thereto as
of the date thereof does not and as of the Closing Date (as defined in Section
3 below) will not contain any untrue statement of a material fact or omit 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(a) do not apply to
statements or omissions made in reliance upon and in conformity with
information relating to any of the Initial Purchasers furnished to the Company
in writing by or on behalf of such Initial Purchasers expressly for use in the
Memorandum or any amendment or supplement thereto.
(b) Each of the Company and the Guarantors has been duly
incorporated, is validly existing and is in good standing as a corporation
under the laws of its jurisdiction of incorporation, with all requisite
corporate power and authority to own
3
-3-
its properties and conduct its businesses as now conducted as described in the
Memorandum, and is duly qualified to do business as a foreign corporation and
is in good standing in all other jurisdictions where the ownership or leasing
of its properties or the conduct of its businesses requires such qualification,
except where the failure to be so qualified would not have a material adverse
effect on the business, condition (financial or other) or results of operations
of the Company and the Guarantors, taken as a whole (a "Material Adverse
Effect"). As of the Closing Date, the Company will have the authorized, issued
and outstanding capitalization set forth in the Memorandum under the caption
"Description of Capital Stock - The Company"; the outstanding shares of capital
stock of each of the Company and the Guarantors 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 except as disclosed in the
Memorandum under the caption "Description of Indebtedness - Credit Agreement",
all of the outstanding shares of capital stock of each of the Company and the
Guarantors are owned free and clear of all liens, encumbrances, equities and
claims or restrictions on transferability (other than those imposed by the Act
and the securities or "Blue Sky" laws of certain jurisdictions) or voting. The
Company does not own, directly or indirectly, any shares of stock or any other
equity or long-term debt securities or have any equity interest in any firm,
partnership, joint venture or other entity other than interests in its
subsidiaries or as described in the Memorandum.
(c) No holder of securities of the Company or the Guarantors
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.
(d) The Company has all requisite corporate power and
authority to execute, deliver and perform each of its obligations under the
Notes, the Exchange Notes and the Private Exchange Notes. The Notes, when
issued, will be in the form contemplated by the Indenture and conform in all
material respects to the description thereof in the Memorandum. The Notes, the
Exchange Notes and the Private Exchange Notes have each been duly authorized by
the Company 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 of this Agreement, will be entitled to the benefits of the Indenture
and will constitute valid and legally
4
-4-
binding obligations of the Company, enforceable against the Company in
accordance with their terms, except that the enforcement thereof may be subject
to (i) bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights generally, and (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 in equity
or at law), and except insofar as the usury waiver contained therein may be
unenforceable. Each of the Company and the Guarantors has all requisite
corporate power and authority to execute, deliver and perform its respective
obligations under the Indenture; the Indenture has been duly authorized by the
Company and the Guarantors and, when executed and delivered by the Company and
the Guarantors (assuming the due authorization, execution and delivery by the
Trustee), will constitute a valid and legally binding obligation of the Company
and the Guarantors, enforceable against the Company and the Guarantors in
accordance with its terms, except that the enforcement thereof may be subject
to (i) bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights generally and (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 in equity
or at law), and except insofar as the usury waiver contained therein may be
unenforceable.
(e) The Guarantees have been duly authorized by each Guarantor
and, when executed by the Guarantors and authenticated by the Trustee in
accordance with the provisions of the Indenture will, upon the execution,
authentication and delivery of the Notes and payment therefor in accordance
with the terms of this Agreement, by entitled to the benefits of the Indenture
and will constitute a valid and legally binding obligation of the Guarantors
enforceable in accordance with its terms, except that the enforcement thereof
may be subject to (i) bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium or other similar laws now or hereafter in effect
relating to creditor's rights and remedies generally, and (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 in equity or at law), and except insofar as the
usury waiver contained therein may be unenforceable.
5
-5-
(f) Each of the Company and the Guarantors has all requisite
corporate power and authority to execute and deliver this Agreement, to issue
and deliver the Securities and to consummate the transactions contemplated
hereby. This Agreement has been duly authorized, executed and delivered by each
of the Issuers. No consent, approval, authorization or order of any court or
governmental agency or body (including, without limitation, the Federal
Communications Commission (the "FCC")) is required for the performance of this
Agreement, the Notes, the Guarantee, the Indenture or any of the transactions
contemplated hereby by the Company and by the Guarantors, to the extent a party
thereto, except such as have been obtained and such as may be required under
state securities or "Blue Sky" laws in connection with the purchase and initial
resale of the Securities by the Initial Purchasers and except as contemplated
by the Registration Rights Agreement. None of the Company or the Guarantors is
(i) in violation of its certificate of incorporation or bylaws (or similar
organizational document), (ii) in violation of any statute, judgment, decree,
order, rule or regulation applicable to the Company or the Guarantors, which
violation would have a Material Adverse Effect, or (iii) in default in the
performance or observance of any obligation, agreement, covenant or condition
contained in any indenture, mortgage, deed of trust, loan agreement, note,
lease, license, franchise agreement, permit, certificate, contract or other
agreement or instrument to which the Company and or the Guarantors is a party
or to which the Company or the Guarantors is subject, which violation or
default would have a Material Adverse Effect.
(g) Each of the Company and the Guarantors has all requisite
corporate power and authority to enter into the Registration Rights Agreement.
The Registration Rights Agreement has been duly authorized by each of the
Company and the Guarantors and, when executed and delivered by the Company and
the Guarantors, will constitute a valid and legally binding obligation of the
Company and the Guarantors, enforceable against each of the Company and the
Guarantors in accordance with its terms, except that (A) the enforcement
thereof may be subject to (i) bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally and (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
in equity or at law) and (B) any rights to indemnity or contribution thereunder
may be limited by federal and state securities laws and public policy
considerations.
6
-6-
(h) The execution, delivery and performance by the Company and
the Guarantors of this Agreement, the Notes, the Guarantee, the Indenture and
the Registration Rights Agreement and the consummation by Chancellor, the
Company and the Guarantors of the transactions contemplated hereby and thereby
will not conflict with or constitute or result in a breach or violation by the
Company of any of (i) the terms or provisions of, or constitute a default by
the Company or any Guarantor under, any contract, indenture, mortgage, deed of
trust, loan agreement, note, lease, license, franchise agreement or other
agreement or instrument to which the Company or any Guarantor is a party or to
which any of them or their respective properties is subject (each a "Contract"
or collectively, the "Contracts"), which conflict, breach, violation or default
would have a Material Adverse Effect, (ii) the certificate of incorporation or
bylaws (or similar organizational document) of the Company or any Guarantor, as
the same will be in effect on the Closing Date, or (iii) (assuming compliance
with all applicable state securities and "Blue Sky" laws and assuming the
accuracy of the representations and warranties of the Initial Purchasers in
Section 8 hereof) any statute, judgment, decree, order, rule or regulation of
any court or governmental agency or other body applicable to the Company or or
any Guarantor or any of their properties, which conflict, breach, violation or
default would have a Material Adverse Effect.
(i) The audited consolidated financial statements of the
Company and its consolidated subsidiaries included in the Memorandum present
fairly, in all material respects, the consolidated financial position, results
of operations and cash flows of the Company and its consolidated subsidiaries
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, except as otherwise stated therein. The unaudited
consolidated financial statements and the related notes included in the
Memorandum present fairly, in all material respects, the consolidated financial
position, results of operations and cash flows of the Company and its
consolidated subsidiaries at the dates and for the periods to which they
relate, subject to year-end audit adjustments and the more detailed note
requirements for audited statements, and have been prepared in accordance with
generally accepted accounting principles applied on a consistent basis, except
as otherwise stated therein. To the Company's knowledge, Coopers & Lybrand
L.L.P., which has examined certain of such consolidated financial statements as
set forth in its reports included in the Memorandum are independent public
7
-7-
accountants under Rule 101 of the AICPA's Code of Professional Conduct, and its
rulings and interpretations.
(j) The audited financial statements and schedules of "Trefoil
Communications, Inc." (as defined in the Memorandum) included in the Memorandum
present fairly, in all material respects, the consolidated financial position,
results of operations and cash flows of Trefoil Communications, Inc. and its
consolidated subsidiaries 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, except as otherwise stated therein.
To the Company's knowledge, Price Waterhouse LLP, which has examined certain of
such consolidated financial statements of Trefoil Communications, Inc. and its
consolidated subsidiaries as set forth in its reports included in the
Memorandum, are independent public accountants under Rule 101 of the AICPA's
Code of Professional Conduct, and its rulings and interpretations.
(k) The audited combined financial statements and schedules of
Colfax Communications, Inc. ("Colfax") included in the Memorandum present
fairly, in all material respects, the financial position, results of operations
and cash flows of Colfax 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, except as otherwise stated therein.
To the Company's knowledge, Arthur Andersen LLP, which has examined certain of
such financial statements of Colfax as set forth in its reports included in the
Memorandum, are independent public accountants under Rule 101 of the AICPA's
Code of Professional Conduct, and its rulings and interpretations.
(l) The audited financial statements of WDRQ Inc., the
combined financial statements of KYSR, Inc. and KIBB Inc. and the financial
statements of WLIT Inc. (such stations, collectively, the "Chancellor-Viacom
Stations") included in the Memorandum present fairly, in all material respects,
the financial position, results of operations and cash flows of the Chancellor-
Viacom Stations 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, except as otherwise stated therein. The
unaudited combined financial statements and the related notes included in the
Memorandum present fairly, in all material respects (on the basis stated
therein, the financial position, results of operations and cash flows of the
Chancellor-Viacom Stations at the dates and for the periods to which they
relate, subject to
8
-8-
year-end audit adjustments, and have been prepared in accordance with generally
accepted principles applied on a consistent basis, except as otherwise stated
therein.) To the knowledge of the Company, KPMG Peat Marwick, which has
examined certain of such financial statements of the Chancellor-Viacom Stations
as set forth in its reports included in the Memorandum, are independent public
accountants under Rule 101 of the AICPA's Code of Professional Conduct, and its
rulings and interpretations.
(m) The pro forma consolidated financial information
(including the notes thereto) included in the Memorandum (A) presents the
information shown therein under the applicable requirements of Regulation S-X
promulgated under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"); (B) have been prepared in accordance with the applicable
requirements of Regulation S-X promulgated under the Exchange Act; (C) have
been prepared in accordance with the Commission's rules and guidelines with
respect to pro forma financial statements; and (D) have been properly computed
on the bases described therein. The assumptions used in the preparation of the
pro forma financial statements and other pro forma condensed consolidated
financial information included in the Memorandum are reasonable and the
adjustments used therein are reasonably appropriate to give effect to the
transactions or circumstances referred to therein.
(n) Except as described in the Memorandum, there is not
pending or, to the knowledge of the Company or any Guarantor, threatened, any
action, suit, proceeding, inquiry or investigation to which the Company or any
Guarantor is a party, or to which the property of the Company or any Guarantor
is subject, before or brought by any court or governmental agency or body
(including, without limitation, the FCC), that would have a Material Adverse
Effect.
(o) Each of the Company and the Guarantors owns or possesses
licenses or other rights to use all material patents, trademarks, service
marks, trade names, copyrights and know-how necessary to conduct the businesses
now or proposed to be operated by it as described in the Memorandum, and
neither the Company nor any Guarantor 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 which, if such assertion of
infringement or conflict were sustained, would have a Material Adverse Effect.
9
-9-
(p) Each of the Company and the Guarantors has obtained, or
has applied for, all licenses, permits, franchises and other governmental
authorizations necessary to conduct the businesses now or proposed to be
operated by it as described in the Memorandum, the lack of which would have a
Material Adverse Effect.
(q) Subsequent to the respective dates as of which information
is given in the Memorandum and except as described therein or contemplated
thereby, (i) neither the Company nor any Guarantor has incurred any material
liabilities or obligations, direct or contingent, or entered into any material
transactions, not in the ordinary course of business and (ii) the Company has
not purchased any of its outstanding capital stock, nor declared, paid or
otherwise made any dividend or distribution of any kind on its capital stock.
(r) Except as described in the Memorandum, neither the Company
nor any Guarantor is in default under any Contract, has received a notice or
claim of any such default or has knowledge of any breach of any Contract by the
other party or parties thereto, except such defaults or breaches as would not
have a Material Adverse Effect.
(s) Each of the Company and the Guarantors has filed all
necessary federal, state and foreign income and franchise tax returns, except
where the failure to so file such returns would not have a Material Adverse
Effect, and each has paid all taxes shown as due thereon; and other than tax
deficiencies which the Company or any Guarantor is contesting in good faith and
for which adequate reserves have been provided, there is no tax deficiency that
has been asserted against the Company or any Guarantor that would have a
Material Adverse Effect.
(t) Neither the Company nor any Guarantor nor any agent acting
on their behalf has taken or will take any action that might cause this
Agreement or the issuance and sale of the Securities to violate Regulation G,
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.
(u) Each of the Company and the Guarantors has good and
marketable title to all real property and good title to all personal property
described in the Memorandum as being owned by it and good and marketable title
to a leasehold estate in the real and personal property described in the
Memorandum as being leased by it (except for those leases of real property in
which
10
-10-
the Company has good title and that would be marketable but for the requirement
that the landlord consent to an assignment or sublease of the lease), free and
clear of all liens, charges, encumbrances or restrictions, except, in each
case, as described in the Memorandum or to the extent the failure to have such
title or the existence of such liens, charges, encumbrances or restrictions
would not have a Material Adverse Effect.
(v) Except for the Company's existing credit agreement and
except as described in the Memorandum, there are no consensual encumbrances or
restrictions on the ability of the Guarantors (i) to pay dividends or make any
other distributions on its capital stock or to pay any indebtedness owed to the
Company; (ii) to make any loans or advances to, or investments in, the Company;
or (iii) to transfer any of its property or assets to the Company or the
Guarantors or any other subsidiary of the Company or the Guarantors.
(w) Neither the Company nor any Guarantor is an "investment
company" or an affiliated person of, or "promoter" or "principal underwriter"
for, an "investment company," as such terms are defined in the Investment
Company Act of 1940, as amended, and the rules and regulations thereunder.
(x) Neither the Company, any Guarantor nor, to their
knowledge, any of their directors, officers or controlling persons has taken,
directly or indirectly, any action designed, or that might reasonably be
expected, to cause or result, under the Act or otherwise, in, or that has
constituted, stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Notes.
(y) Each of the Company and the Guarantors is in compliance
with all provisions of Section 517.075 of Florida Statutes, as amended,
relating to issuers doing business with Cuba.
(z) The Notes, the Guarantees, the Exchange Notes, the Private
Exchange Notes, the Indenture and the Registration Rights Agreement will
conform in all material respects to the descriptions thereof in the Memorandum.
(aa) Neither the Company nor any Guarantor or any of their
respective Affiliates (as defined in Rule 501(b) of Regulation D under the Act)
has 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
11
-11-
the Act) that is or could be integrated with the sale of the Notes in a manner
that would require the registration under the Act of the Notes or (ii) engaged
in any form of general solicitation or general advertising (as those terms are
used in Regulation D under the Act) in connection with the offering of the
Notes or in any manner involving a public offering within the meaning of
Section 4(2) of the Act. Assuming the accuracy of the representations and
warranties of the Initial Purchasers in Section 8 hereof, the Company has not
been informed by counsel that it is necessary in connection with the offer,
sale and delivery of the Notes to the Initial Purchasers in the manner
contemplated by this Agreement to register any of the Notes under the Act or to
qualify the Indenture under the Trust Indenture Act of 1939, as amended (the
"TIA").
(bb) No securities of the Company or any subsidiary are of the
same class (within the meaning of Rule 144A under the Act) as the Notes 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.
(cc) The statistical and market-related data included in the
Memorandum are based on or derived from sources that the Company believes to be
reliable and accurate in all material respects.
(dd) The information set forth in the Memorandum under the
caption "Summary - Recent Developments - Evergreen Merger" is true and accurate
in all material respects as of the date hereof; and to the knowledge of the
Company, the representations and warranties of Evergreen Media Corporation
contained in the Merger Agreement (as defined in the Memorandum) were true and
accurate in all material respects as of the date of the Merger Agreement.
Any certificate signed by any officer of the Company or any
subsidiary and delivered to any Initial Purchaser or to counsel for the Initial
Purchasers shall be deemed a representation and warranty by the Company to
each Initial Purchaser 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 Issuers
agree to issue and sell to the Initial Purchasers, and the Initial Purchasers,
acting severally and not jointly, agree to purchase from the Issuers the Notes
in the respective amounts set forth in Schedule I hereto
12
-12-
at 97.25% of their principal amount. One or more certificates in definitive
form for the Notes that the Initial Purchasers have agreed to purchase
hereunder, and in such denomination or denominations and registered in such
name or names as the Initial Purchasers request upon notice to the Company at
least 36 hours prior to the Closing Date, shall be delivered by or on behalf of
the Issuers to the Initial Purchasers, against payment by or on behalf of the
Initial Purchasers of the purchase price therefor by wire transfer (same day
funds) to such account or accounts as the Company shall specify prior to the
Closing Date, or by such means as the parties hereto shall agree prior to the
Closing Date. Such delivery of and payment for the Notes shall be made at the
offices of Cahill Gordon & Reindel, 80 Pine Street, New York, New York 10005,
at 9:00 A.M., New York time, on June 24, 1997, or at such other place, time or
date as the Initial Purchasers, on the one hand, and the Company, on the other
hand, 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 available for checking and packaging
by the Initial Purchasers at the offices of Credit Suisse First Boston
Corporation in New York, New York, or at such other place as Credit Suisse
First Boston Corporation may designate, 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 Notes at the price and upon the
terms set forth in the Memorandum, as soon as practicable after this Agreement
is entered into and as in the judgment of the Initial Purchasers is advisable.
5. Covenants of the Issuers. Each of the Issuers,
jointly and severally, covenants and agrees with the Initial Purchasers that:
(a) None of the Issuers will amend or supplement the
Memorandum or any amendment or supplement thereto of which the Initial
Purchasers shall not previously have been advised and furnished a copy for a
reasonable period of time prior to the proposed amendment or supplement and as
to which the Initial Purchasers shall not have given its consent, which will
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 Memorandum that may be necessary or
advisable in connection with the resale of the Notes by the Initial Purchasers.
13
-13-
(b) Each of the Issuers will cooperate with the Initial
Purchasers in arranging for the qualification of the Notes for offering and
sale under the securities or "Blue Sky" laws of which jurisdictions as the
Initial Purchasers may designate and will continue such qualifications in
effect for as long as may be reasonably necessary to complete the resale of the
Notes; 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 subject itself to taxation
in any such jurisdiction where it is not so subject.
(c) If, at any time prior to the completion of the
distribution by the Initial Purchasers of the Securities, any event occurs or
information becomes known as a result of which the Memorandum as then amended
or supplemented would include any untrue statement of a material fact, or omit
to state a material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading, or if for any
other reason it is necessary at any time to amend or supplement the Memorandum
to comply with applicable law, the Issuers will promptly notify the Initial
Purchasers thereof and will prepare, at the expense of the Issuers, an
amendment or supplement to the Memorandum that corrects such statement or
omission or effects such compliance.
(d) Each of the Issuers will, without charge, provide to the
Initial Purchasers and to counsel for the Initial Purchasers as many copies of
the Memorandum or any amendment or supplement thereto as the Initial Purchasers
may reasonably request.
(e) The Company will apply the net proceeds from the sale of
the Notes substantially as set forth under "Use of Proceeds" in the Memorandum.
(f) For so long as the Securities remain outstanding (but in
no event longer than five years), the Issuers will furnish to the Initial
Purchasers copies of all reports and other communications (financial or
otherwise) furnished by the Issuers to the Trustee or to the holders of the
Securities and, as soon as available, copies of any reports or financial
statements furnished to or filed by the Company with the Commission or any
national securities exchange on which any class of securities of the Company
may be listed.
(g) Prior to the Closing Date, the Issuers will furnish to the
Initial Purchasers, as soon as they have been
14
-14-
prepared, a copy of any unaudited interim financial statements of the Company
for any period subsequent to the period covered by the most recent financial
statements appearing in the Memorandum.
(h) Neither the Company nor any Guarantor 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 Act) that
could be integrated with the sale of the Notes in a manner which would require
the registration under the Act of the Notes.
(i) The Issuers will not engage in any form of general
solicitation or general advertising (as those terms are used in Regulation D
under the Act) in connection with the offering of the Notes or in any manner
involving a public offering within the meaning of Section 4(2) of the Act.
(j) The Issuers will use their reasonable best efforts to (i)
assist the Initial Purchasers in permitting the Notes to be designated PORTAL
securities in accordance with the rules and regulations adopted by the NASD
relating to trading in the Private Offerings, Resales and Trading through
Automated Linkages market (the "PORTAL Market") and (ii) permit the Notes to be
eligible for clearance and settlement through The Depository Trust Company.
6. Expenses. The Issuers, jointly and severally, agree
to pay the following costs and expenses and all other costs and expenses
incident to the performance of their respective obligations under this
Agreement, whether or not the transactions contemplated herein are consummated
or this Agreement is terminated pursuant to Section 11 hereof, including all
costs and expenses incident to (i) the printing, word processing or other
production of documents with respect to the transactions contemplated hereby,
including any costs of printing the Memorandum and any amendment or supplement
thereto, and any "Blue Sky" memoranda, (ii) all arrangements relating to the
delivery to the Initial Purchasers of copies of the foregoing documents, (iii)
the fees and disbursements of the counsel, the accountants and any other
experts or advisors retained by the Issuers, (iv) preparation (including
printing), issuance and delivery to the Initial Purchasers of the Securities
(including Trustee's fees), (v) the qualification of the Notes under state
securities and "Blue Sky" laws, including filing fees and reasonable fees and
disbursements of counsel for the Initial Purchasers relating thereto, (vi) fees
and expenses of the Trustee including fees and expenses of counsel and (vii)
all expenses
15
-15-
and listing fees incurred in connection with the application for quotation of
the Notes on the PORTAL Market. If the sale of the Securities provided for
herein is not consummated because any condition to the obligations of the
Initial Purchasers set forth in Section 7 hereof is not satisfied, because this
Agreement is terminated or because of any failure, refusal or inability on the
part of the Company or any Guarantor to perform all obligations and satisfy all
conditions on their part to be performed or satisfied hereunder (other than
solely by reason of a default by the Initial Purchasers of their obligations
hereunder after all conditions hereunder have been satisfied in accordance
herewith), the Company and the Guarantors agree to promptly reimburse the
Initial Purchasers upon demand for all reasonable out-of-pocket expenses
(including reasonable fees and disbursements of Cahill Gordon & Reindel,
counsel for the Initial Purchasers) that shall have been incurred by the
Initial Purchasers in connection with the proposed purchase and sale of the
Notes.
7. Conditions of the Initial Purchasers' Obligations.
The obligation of the Initial Purchasers to purchase and pay for the Securities
shall, in their sole discretion, be subject to the following conditions on or
prior to the Closing Date:
(a) The Initial Purchasers shall have received opinions in
form and substance satisfactory to the Initial Purchasers, dated the Closing
Date, of (i) Weil, Gotshal & Manges LLP, counsel for the Issuers, substantially
in the form of Exhibit B-1 hereto and (ii) Leibowitz & Associates, regulatory
counsel for the Issuers, substantially in the form of Exhibit B-2 hereto. In
rendering such opinions, Weil, Gotshal & Manges LLP and Liebowitz & Associates
shall have received and may rely upon such certificates and other documents and
information as they may reasonably request to pass upon such matters.
(b) The Initial Purchasers shall have received an opinion,
dated the Closing Date, of Cahill Gordon & Reindel, counsel for the Initial
Purchasers, with respect to certain legal matters relating to this Agreement,
and such other related matters as the Initial Purchasers may require. In
rendering such opinion, Cahill Gordon & Reindel 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, Cahill Gordon & Reindel may state that their opinion is limited to
matters of New York, Delaware corporate and federal law.
16
-16-
(c) The Initial Purchasers shall have received from each of
Coopers & Lybrand L.L.P., Arthur Andersen LLP and KPMG Peat Marwick, dated,
respectively, on or about the date hereof and as of the Closing Date, customary
comfort letters addressed to the Initial Purchasers, in form and substance
reasonably satisfactory to the Initial Purchasers and counsel for the Initial
Purchasers.
(d) The representations and warranties of the Company and the
Guarantors contained in this Agreement shall be true and correct in all
material respects as of the date hereof and as of the Closing Date; the Company
and the Guarantors shall have complied in all material respects with all
covenants and agreements and satisfied all conditions on its part to be
performed or satisfied hereunder at or prior to the Closing Date; and
subsequent to the date of the most recent financial statements in the
Memorandum, there shall have been no material adverse change in the business,
condition (financial or other), results of operations or prospects of the
Company and the Guarantors, taken as a whole, except as set forth in, or
contemplated by, the Memorandum.
(e) The issuance and sale of the Securities by the Company and
the Guarantors hereunder shall not be enjoined (temporarily or permanently) on
the Closing Date and no restraining order or other injunctive order shall have
been issued or any action, suit or proceeding shall have been commenced with
respect to this Agreement or any other transactions hereby, before any court or
governmental authority (including, without limitation, the FCC).
(f) Subsequent to the date as of which information is given in
the Memorandum, except as described in or as contemplated by the Memorandum,
none of the Company or any Guarantor shall have incurred any liabilities or
obligations, direct or contingent (other than in the ordinary course of
business) that are material to the Company and the Guarantors, taken as a
whole, or entered into any transactions not in the ordinary course of business
that are material to the business, condition (financial or other), results of
operations or prospects of the Company and the Guarantors, taken as a whole,
and, other than as contemplated by the Memorandum, there shall not have been
any change in the capital stock or long-term indebtedness of the Company or any
Guarantor that is material to the business, condition (financial or other),
results of operations or prospects of the Company and the Guarantors, taken as
a whole.
17
-17-
(g) Subsequent to the date as of which information is given in
the Memorandum, the conduct of the business and operations of the Company or
any of its subsidiaries has not been interfered with by strike, fire, flood,
hurricane, accident or other calamity (whether or not insured) or by any court
or governmental action, order or decree, and, except as otherwise stated
therein, the properties of the Company or any of its subsidiaries have not
sustained any loss or damage (whether or not insured) as a result of any such
occurrence, except any such interference, loss or damage which would not have a
Material Adverse Effect.
(h) The Initial Purchasers shall have received a certificate
of the Company, dated the Closing Date, signed on behalf of the Company by its
President and Chief Executive Officer and Senior Vice President and Chief
Financial Officer of the Company, to the effect that:
(i) The representations and warranties of the Company and
the Guarantors in this Agreement are true and correct in all material
respects as if made on and as of the Closing Date (other than to the
extent any such representation or warranty is expressly made to a
certain date), and the Company and each Guarantor has performed in all
material respects all covenants and agreements and satisfied, in all
material respects, all conditions on their part to be performed or
satisfied hereunder, to the extent a party thereto, at or prior to the
Closing Date;
(ii) At the Closing Date, since the date hereof or since
the date of the most recent financial statement in the Memorandum, no
event or events have occurred, nor has any information become known
that, individually or in the aggregate, would have a Material Adverse
Effect;
(iii) The issuance and sale of the Securities by the
Company and the Guarantors hereunder has not been enjoined
(temporarily or permanently); and
(iv) Subsequent to the respective dates as of which
information is given in the Memorandum, except in each case as
described in or as contemplated by the Memorandum, neither the Company
nor any of the Guarantors has incurred any liabilities or obligations,
direct or contingent, that are material to the Company and the
Guarantors, taken as a whole, or entered into any transactions that,
individually or in the aggregate, would have a Material Adverse
Effect; and there has been no change in the capital stock or long-term
18
-18-
indebtedness of the Company or the Guarantors that individually or in
the aggregate would have a Material Adverse Effect.
(i) On the Closing Date, the Initial Purchasers shall have
received the Registration Rights Agreement executed by the Company and the
Guarantors and such agreement shall be in full force and effect on the Closing
Date.
(j) On or before the Closing Date, the Initial Purchasers and
counsel for the Initial Purchasers shall have received such further documents,
opinions, certificates and schedules or instruments relating to the business,
corporate, legal and financial affairs of the Issuers as they shall have
heretofore reasonably requested from the Issuers.
All such opinions, certificates, letters, schedules, documents
or instruments delivered pursuant to this Agreement will comply with the
provisions hereof only if they are reasonably satisfactory in all material
respects to the Initial Purchasers and counsel for the Initial Purchasers. The
Company 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. Offering of Notes; Restrictions on Transfer. (a) Each
of the Initial Purchasers represents and warrants that it is a QIB. Each of the
Initial Purchasers 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 Act) or in any manner involving a public offering within the meaning
of Section 4(2) of the 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 it 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 it 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,
19
-19-
however, that, in the case of this clause (B), in purchasing such Securities
such persons are deemed to have represented and agreed as provided under the
caption "Transfer Restrictions" contained in the Memorandum.
(b) Each of the Initial Purchasers represents and warrants (as
to itself only) with respect to offers and sales outside the United States that
(i) it has complied 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 the 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 Act
or pursuant to an exemption from the registration requirements of the 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 Notes 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
account 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 8(b) and not defined in this Agreement have the
meanings given to them in Regulation S.
20
-20-
(c) Each of the Initial Purchasers represents and warrants (as
to itself only) that the source of funds being used by it to acquire the
Securities does not include the assets of any "employee benefit plan" (within
the meaning of Section 3 of ERISA) or any "plan" (within the meaning of Section
4975 of the Code).
9. Indemnification and Contribution. (a) The Issuers
agree, jointly and severally, to indemnify and hold harmless each Initial
Purchaser, and each person, if any, who controls any Initial Purchaser within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act, against
any losses, claims, damages or liabilities to which any Initial Purchaser or
such controlling person may become subject under the Act, the Exchange Act or
otherwise, insofar as any such losses, claims, damages or liabilities (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 the Memorandum or any amendment or
supplement thereto or any application or other document, or any
amendment or supplement thereto, executed by the Company or the
Guarantors or based upon written information furnished by or on behalf
of the Issuers filed in any jurisdiction in order to qualify the
Securities under the securities or "Blue Sky" laws thereof or filed
with any securities association or securities exchange (each an
"Application"); or
(ii) the omission or alleged omission to state, in the
Memorandum or any amendment or supplement thereto or any Application,
a material fact required to be stated therein or necessary to make the
statements therein not misleading,
and will reimburse, as incurred, the Initial Purchasers and each such
controlling person for any legal or other expenses incurred by the Initial
Purchasers or such controlling person in connection with investigating,
defending against or appearing as a third-party witness in connection with any
such loss, claim, damage, liability or action; provided, however, the Issuers
will not be liable in any such case to the extent that any such loss, claim,
damage, or liability arises out of or is based upon any untrue statement or
alleged untrue statement or omission or alleged omission made in the Memorandum
or any amendment or supplement thereto or any Application in reliance upon and
in conformity with written information concerning the Initial Purchasers
furnished to the Issuers by or on behalf of
21
-21-
any Initial Purchaser through Credit Suisse First Boston Corporation ("CSFB")
specifically for use therein. This indemnity agreement will be in addition to
any liability that the Issuers may otherwise have to the indemnified parties.
The Issuers shall not be liable under this Section 9 for any settlement of any
claim or action effected without its prior written consent, which shall not be
unreasonably withheld.
The Initial Purchasers shall not, without the prior written
consent of the Company, effect any settlement or compromise of any pending or
threatened proceeding in respect of which the Company or any Guarantor is or
could have been a party, or indemnity could have been sought hereunder by the
Company or any Guarantor, unless such settlement (A) includes an unconditional
written release of the Company or such Guarantor, in form and substance
reasonably satisfactory to the Company, from all liability on claims that are
the subject matter of such proceeding and (B) does not include any statement as
to an admission of fault, culpability or failure to act by or on behalf of the
Company or any Guarantor.
(b) Each of the Initial Purchasers agrees, severally and not
jointly, to indemnify and hold harmless each of the Company and the Guarantors,
their respective directors, officers and each person, if any, who controls the
Company or any Guarantor within the meaning of Section 15 of the Act or Section
20 of the Exchange Act against any losses, claims, damages or liabilities to
which the Company, the Guarantors or any such director, officer or controlling
person may become subject under the 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 (i) any untrue statement or alleged untrue
statement of any material fact contained in any Memorandum or any amendment or
supplement thereto or any Application, or (ii) the omission or the alleged
omission to state therein a material fact required to be stated in any
Memorandum or any amendment or supplement thereto or any Application, or
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information concerning such Initial Purchaser through
CSFB, furnished to the Issuers by or on behalf of such Initial Purchaser
specifically for use therein; and subject to the limitation set forth
immediately preceding this clause, will reimburse, as incurred, any legal or
other expenses incurred by the Company, the Guarantors or any such director,
officer or controlling person in connection with investigating
22
-22-
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. The Initial
Purchasers shall not be liable under this Section 9 for any settlement of any
claim or action effected without its consent, which shall not be unreasonably
withheld.
Neither the Company nor any Guarantor shall without the prior
written consent of the Initial Purchasers, effect any settlement or compromise
of any pending or threatened proceeding in respect of which any Initial
Purchaser is or could have been a party, or indemnity could have been sought
hereunder by any Initial Purchaser, unless such settlement (A) includes an
unconditional written release of the Initial Purchasers, in form and substance
reasonably satisfactory to the Initial Purchasers, from all liability on claims
that are the subject matter of such proceeding and (B) does not include any
statement as to an admission of fault, culpability or failure to act by or on
behalf of any Initial Purchaser.
(c) Promptly after receipt by an indemnified party under
paragraphs (a) or (b) of this Section 9 of notice of the commencement of any
action for which such indemnified party is entitled to indemnification under
this Section 9, such indemnified party will, if a claim in respect thereof is
to be made against the indemnifying party under this Section 9, notify the
indemnifying party of the commencement thereof in writing; but the omission to
so notify the indemnifying party (i) will not relieve it from any liability
under paragraph (a) or (b) above unless and to the extent such failure results
in the forfeiture by the indemnifying party of substantial rights and defenses
and (ii) will not, in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the indemnification obligation
provided in paragraphs (a) and (b) above. 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; provided, however,
that if (i) the use of counsel chosen by the indemnifying party to represent
the indemnified party would present such counsel with a conflict of interest,
or (ii) the indemnifying party shall not have employed counsel reasonably
satisfactory to the indemnified party to represent the indemnified party within
a reasonable
23
-23-
time after receipt by the indemnifying party of notice of the institution of
such action, then, in each such case, the indemnifying party 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 9 for any legal or
other expenses, other than reasonable costs of investigation, subsequently
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, designated by the Initial Purchasers in the case
of paragraph (a) of this Section 9 or the Company or any Guarantor in the case
of paragraph (b) of this Section 9, representing the indemnified parties under
such paragraph (a) or paragraph (b), as the case may be, who are parties to
such action or actions) or (ii) the indemnifying party has authorized in
writing the employment of counsel for the indemnified party at the expense of
the indemnifying party. After such notice from the indemnifying party to such
indemnified party, the indemnifying party will not be liable for the costs and
expenses of any settlement of such action effected by such indemnified party
without the prior written consent of the indemnifying party (which consent
shall not be unreasonably withheld), unless such indemnified party waived in
writing its rights under this Section 9, 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 9 is available by its terms,
but is held to be unenforceable, 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
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
24
-24-
the one hand and the indemnified party on the other from the offering of the
Notes 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 or liabilities (or actions in respect thereof). The relative benefits
received by the Issuers on the one hand and the Initial Purchasers on the other
shall be deemed to be in the same proportion as the total proceeds from the
offering (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 or alleged
statement or omission, and any other equitable considerations appropriate in
the circumstances. The Issuers and the Initial Purchasers agree that it would
not be just and equitable if the amount of such contribution were determined by
pro rata or per capita allocation 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,
commissions and other compensation 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 or the omissions or alleged omissions to state a
material fact, and no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. For purposes of
this paragraph (d), each person, if any, who controls the Initial Purchasers
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act
shall have the same rights to contribution as the Initial Purchasers, and each
director of the Company, each officer of the Company and each Guarantor and
each person, if any, who controls the Company within the meaning of Section 15
of the Act or Section 20 of the Exchange Act, shall have the same rights to
contribution as the Company and the Guarantors.
25
-25-
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 pursuant to this Agreement shall
remain in full force and effect, regardless of (a) 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 9 hereof
and (b) delivery of and payment for the Securities. The respective agreements,
covenants, indemnities and other statements set forth in Sections 6, 9 and 15
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
prior to the Closing Date in the event that the Issuers shall have failed,
refused or been unable to perform all obligations and satisfy all conditions on
its part to be performed or satisfied hereunder at or prior thereto or, if at
or prior to the Closing Date:
(i) trading in securities generally on the New York Stock
Exchange, American Stock Exchange or the Nasdaq National Market shall
have been suspended or materially limited;
(ii) a general moratorium on commercial banking activities
in New York shall have been declared by either federal, state or other
governmental authorities;
(iii) there shall have occurred an outbreak or escalation
of hostilities or other international or domestic calamity, crisis or
change in political, financial or economic conditions, the effect of
which on or markets of the United States is such as to make it, in the
sole judgment of the Initial Purchasers, impracticable or inadvisable
to commence or continue the offering or the delivery of the Securities
as contemplated by the Memorandum, as amended as of the date hereof;
or
(iv) any securities of the Company shall have been
downgraded or placed on any "watch list" for possible downgrading by
any nationally recognized statistical rating organization.
26
-26-
(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. Information Supplied by the Initial Purchasers. The
statements set forth in the last paragraph on the front cover page, the legend
concerning over-allotments, stabilizing transactions, syndicate short covering
transactions and penalty bids on page iii, and in the third paragraph under the
caption "Plan of Distribution" in the Memorandum and the last two paragraphs
under the caption "Plan of Distribution" in the Memorandum (to the extent such
statements relate to the Initial Purchasers) constitute the only information
furnished on behalf of each Initial Purchaser to the Issuers for the purposes
of Sections 2(a) and 9 hereof.
13. Notices. All communications hereunder shall be in
writing and, if sent to the Initial Purchasers, shall be mailed, delivered or
telecopied to Credit Suisse First Boston Corporation, Eleven Madison Avenue,
New York, New York 10010, Attention: Corporate Finance Department; if sent to
the Company, shall be mailed, delivered or telecopied to the Company or any
Guarantor at Chancellor Radio Broadcasting Company, 12655 North Central
Expressway, Suite 405, Dallas, Texas 75243, Attention: Jacques Kerrest.
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; and one
business day after being timely delivered to a next-day air courier; and when
receipt is acknowledged by addressee, if telecopied.
14. Successors. This Agreement shall inure to the benefit
of and be binding upon the Initial Purchasers, 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 9 of this
Agreement shall also be for the benefit of any person or persons who control
the Initial Purchasers within the meaning of Section 15 of the Act or Section
20 of the Exchange Act and (ii) the indemnities of the Initial Purchasers
contained in
27
-27-
Section 9 of this Agreement shall also be for the benefit of the directors of
the Issuers, its officers and any person or persons who control the Issuers
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act.
No purchaser of Notes from the Initial Purchasers will be deemed a successor
because of such purchase.
15. 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
APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED WHOLLY THEREIN, WITHOUT GIVING
EFFECT TO ANY PROVISIONS THEREOF RELATING TO CONFLICTS OF LAW.
16. 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.
28
If the foregoing correctly sets forth our understanding, please
indicate your acceptance thereof in the space provided below for that purpose,
whereupon this letter shall constitute a binding agreement between the Company,
the Guarantors and the Initial Purchasers.
Very truly yours,
CHANCELLOR RADIO BROADCASTING
COMPANY
By:
-----------------------------------
Name:
Title:
The Guarantors:
TREFOIL COMMUNICATIONS, INC.
By:
-----------------------------------
Name:
Title:
SHAMROCK BROADCASTING, INC.
By:
-----------------------------------
Name:
Title:
SHAMROCK RADIO LICENSES, INC.
By:
-----------------------------------
Name:
Title:
SHAMROCK BROADCASTING OF TEXAS, INC.
By:
-----------------------------------
Name:
Title:
29
SHAMROCK BROADCASTING LICENSES
OF DENVER, INC.
By:
-----------------------------------
Name:
Title:
CHANCELLOR BROADCASTING
LICENSEE COMPANY
By:
-----------------------------------
Name:
Title:
The foregoing Agreement is
hereby confirmed and accepted
as of the date first above
written.
CREDIT SUISSE FIRST BOSTON
CORPORATION
By:
---------------------------
Name:
Title:
BT SECURITIES CORPORATION
By:
---------------------------
Name:
Title:
MORGAN STANLEY & CO. INCORPORATED
By:
---------------------------
Name:
Title:
30
SCHEDULE I
Initial Purchasers Principal Amount of Notes
- ------------------ -------------------------
Credit Suisse First Boston Corporation $110,000,000
BT Securities Corporation 50,000,000
Morgan Stanley & Co.
Incorporated 40,000,000
------------
Total $200,000,000
============
31
SCHEDULE II
SUBSIDIARY GUARANTORS
32
EXHIBIT A
[REGISTRATION RIGHTS AGREEMENT]
33
EXHIBIT B-1
Form of Opinion of Weil, Gotshal & Manges LLP
34
EXHIBIT B-2
Form of Opinion of Leibowitz & Associates
(Capitalized terms used herein have the meanings provided therefor in
the Purchase Agreement to which this form of opinion is an Exhibit.)
(1) Except for such Federal Communications Commission ("FCC")
approvals that have already been obtained, which approvals to our knowledge are
in full force and effect, no FCC approval, authorization, consent or license is
required under the Communications Laws:
(i) to issue and sell the Securities as contemplated in the
Agreement; or
(ii) to issue the Exchange Notes and the Private Exchange Notes in
the manner contemplated in the Registration Rights Agreement; or
The execution, delivery and performance in accordance with its terms
of the Agreement and the Registration Rights Agreement by the Company will not
violate the Communications Laws, so long as (x) foreign governments, foreign
nationals and/or their agents do not acquire an ownership interest in
Chancellor Radio Broadcasting Company ("Chancellor") that exceeds an aggregate
of twenty-five percent (25%) of the Chancellor capital stock that is issued and
outstanding and (y) no person with attributable media interests that are
incompatible with the media interests of Chancellor under the FCC's Multiple
Ownership Rules or Cross-Ownership Rules acquires stock representing five
percent (5%) or more of the aggregate voting power of Chancellor's shareholders
and (z) no person who lacks requisite character to own broadcast stations,
e.g., a convicted felon or a person who has engaged in serious
broadcast-related misconduct, acquires stock representing five percent (5%) or
more of the aggregate voting power of Chancellor's shareholders.
(2) The following radio broadcast stations constitute all of the radio
broadcast stations owned by Chancellor as of [date of Memorandum] and are
hereafter collectively referred to as the "Stations."
35
[Chart to reflect stations at closing]
Chancellor holds all necessary authorizations, approvals, consents, orders,
licenses, certificates and permits under the Communications Laws to own and
operate the Stations except possibly for authorizations, approvals, consents,
orders, licenses, certificates and permits that if not so held would not have a
material adverse effect on the financial condition, business or properties of
Chancellor, taken as a whole (all such held material authorizations, approvals,
consents, orders, licenses, certificates and permits collectively referred to
as "FCC Material Licenses"). To our knowledge, all of the FCC Material Licenses
are valid and in full force and effect. The stations referred to in this
Paragraph (2) are collectively referred to as the "Stations".
(3) Except as set forth in the Memorandum and to our knowledge, there
are no proceedings pending or threatened in writing under the Communications
Laws that are specifically directed against Chancellor, or the Stations before
or by the FCC or any court having jurisdiction over matters arising under the
Communications Laws, relating to any invalidity, revocation, or modification of
any FCC Material Licenses, wherein an unfavorable ruling, decision, or finding
would materially and adversely change the financial condition, business or
properties of Chancellor taken as a whole. To our knowledge, the Stations are
operating in compliance with their respective FCC Material Licenses, except
possibly for noncompliance that would not have a material adverse effect on the
financial condition, business or properties of Chancellor taken as a whole.
(4) The statements in the Memorandum under the captions (a) "RISK
FACTORS -- Government Regulation" and (b) "BUSINESS -- Federal Regulation of
Radio Broadcasting," insofar as such statements constitute a summary of
material Communications Laws and material proceedings, fairly and in all
material respects present the information contained under such captions in
light of the circumstances in which such statements are made, and to the extent
they constitute matters of law and legal conclusions under the Communications
Laws, fairly and in all material respects accurately present the information
contained under such captions in light of the circumstances in which such
statements are made.
(5) To our knowledge, no event has occurred that permits, or with
notice or lapse of time or both would permit, the revocation or non-renewal of
any of the FCC Material Licenses, assuming the filing of timely license renewal
applications and the timely payment of all applicable filing and regulatory
fees to the FCC, or which might result in any other material impairment of the
rights of Chancellor in the FCC Material Licenses.