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EXHIBIT 1.1
EXECUTION COPY
INTERMEDIA CAPITAL PARTNERS IV, L.P.
INTERMEDIA PARTNERS IV CAPITAL CORP.
$292,000,000
11 1/4% SENIOR NOTES DUE 2006
PURCHASE AGREEMENT
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TABLE OF CONTENTS
1. Representations and Warranties................................................................ 2
(a) No Untrue Statement or Material Omission............................................. 2
(b) No Stop Orders....................................................................... 3
(c) No Action Requiring Registration of the Notes........................................ 3
(d) Exemption from Registration.......................................................... 3
(e) PORTAL Market........................................................................ 3
(f) Investment Company Act............................................................... 3
(g) Financial Statements................................................................. 4
(h) No Material Adverse Change in Business............................................... 4
(i) Good Standing, Etc................................................................... 4
(j) Capitalization....................................................................... 5
(k) No Existing Defaults................................................................. 5
(l) Possession of Licenses and Permits................................................... 5
(m) Absence of Proceedings............................................................... 6
(n) Title to Property.................................................................... 6
(o) Authority of the Issuers............................................................. 6
(p) Authorization of this Agreement...................................................... 9
(q) Authorization of the Indenture....................................................... 9
(r) Authorization of the Notes........................................................... 9
(s) Authorization of the New Notes....................................................... 9
(t) Authorization of the Registration Rights Agreement................................... 10
(u) Authorization of the Pledge Agreement................................................ 10
(v) Authorization of the Bank Facility and the Bank Facility Security
Agreements........................................................................... 10
(w) Authorization of the Partnership Agreement........................................... 10
(x) Authorization of the Subscription Agreements......................................... 11
(y) Authorization of the Acquisition Agreements.......................................... 11
(z) The Transaction Documents............................................................ 11
(aa) No Conflicts......................................................................... 11
(ab) Independent Accountants.............................................................. 12
(ac) Maintenance of Records............................................................... 12
(ad) Possession of Intellectual Property.................................................. 12
(ae) Insurance............................................................................ 12
(af) Doing Business with Cuba............................................................. 13
(ag) Employee Pension or Benefit Plans.................................................... 13
(ah) Environmental Laws................................................................... 13
(ai) Description of Certain Transactions.................................................. 13
(aj) D.D. Cable........................................................................... 14
(ak) Absence of Labor Dispute............................................................. 14
(al) Taxes................................................................................ 14
(am) Restriction on the Issuance of Securities............................................ 14
(an) Registration Rights.................................................................. 14
(ao) Absence of Unlawful Contribution..................................................... 14
(ap) Different Class of Securities........................................................ 14
(aq) No Sale, General Solicitation or Integrated Offering................................. 15
(ar) No Stabilization or Manipulation of Price............................................ 15
(as) Board of Governors of the Federal Reserve Regulation................................. 15
(at) Officer's Certificates............................................................... 15
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2. Purchase and Sale............................................................................. 15
3. Delivery and Payment.......................................................................... 15
4. Offering of Notes............................................................................. 16
5. Agreements of Each of the Issuers............................................................. 16
6. Conditions to the Obligation of the Initial Purchasers........................................ 18
7. Payment and Reimbursement of Expenses......................................................... 32
8. Indemnification and Contribution.............................................................. 33
9. Default by an Initial Purchaser............................................................... 35
10. Termination................................................................................... 35
11. Representations and Indemnities to Survive.................................................... 36
12. Notices....................................................................................... 36
13. Successors.................................................................................... 37
14. Applicable Law................................................................................ 37
15. Business Day.................................................................................. 38
16. Counterparts.................................................................................. 38
17. Amendments.................................................................................... 38
18. Submission to Jurisdiction.................................................................... 38
19. Headings; Title Page and Table of Contents.................................................... 39
ANNEX I Form of Registration Rights Agreement................................................A-1
ANNEX II Subscription Agreements..............................................................A-2
ANNEX III Acquisition Agreements...............................................................A-4
ANNEX IV Plan of Distribution Table...........................................................A-5
ANNEX V Form of Non-Distribution Letter for Purchasers.......................................A-6
ANNEX VI Opinion Agreements ..................................................................A-9
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INTERMEDIA CAPITAL PARTNERS IV, L.P.
INTERMEDIA PARTNERS IV CAPITAL CORP.
$292,000,000
11 1/4% SENIOR NOTES DUE 2006
PURCHASE AGREEMENT
July 19, 1996
NationsBanc Capital Markets, Inc.
Toronto Dominion Securities (USA) Inc.
c/o NationsBanc Capital Markets, Inc.
100 North Tryon Street
Charlotte, North Carolina 28255
Ladies and Gentlemen:
InterMedia Capital Partners IV, L.P., a California limited partnership
("ICP-IV"), and InterMedia Partners IV Capital Corp., a Delaware corporation and
wholly owned subsidiary of ICP-IV ("IPCC" and, together with ICP-IV, the
"Issuers"), jointly and severally propose to issue and sell to you (the "Initial
Purchasers") $292,000,000 principal amount of their 11 1/4% Senior Notes Due
2006 (the "Notes") under the terms and conditions outlined in this purchase
agreement (this "Purchase Agreement"). The Notes are to be issued under an
indenture (the "Indenture") dated as of the Closing Date (as defined herein)
among the Issuers and The Bank of New York, as trustee (the "Trustee").
The sale of the Notes to the Initial Purchasers will be made without
registration of the Notes under the Securities Act of 1933, as amended (the
"Securities Act"), in reliance upon exemptions from the registration
requirements of the Securities Act. You have advised the Issuers that the
Initial Purchasers will offer and sell the Notes purchased by them hereunder in
accordance with Section 4 hereof as soon as you deem advisable.
In connection with the sale of the Notes, the Issuers have prepared a
preliminary offering memorandum, dated July 2, 1996 (including any and all
exhibits thereto, and as modified by the supplement (the "Supplement") thereto
dated July 17, 1996, the "Preliminary Memorandum") and a final offering
memorandum, dated July 19, 1996 (including any and all exhibits thereto, the
"Final Memorandum" and, together with the Preliminary Memorandum, the "Offering
Memorandum") (the "Offering"). The Offering Memorandum sets forth certain
information concerning the Issuers and the Notes. The Issuers hereby confirm
that they have authorized the use of the Offering Memorandum, and any amendment
or supplement thereto, in connection with the offer and sale of the Notes by the
Initial Purchasers. Unless stated to the contrary, all references herein to the
Final Memorandum are to the Final Memorandum at the Execution Time (as defined
below) and are not meant to include any amendment or supplement, or any
information incorporated by reference therein, subsequent to the Execution Time
and any references herein to the terms "amend," "amendment" or "supplement" with
respect to the Final Memorandum shall be deemed to refer to and include any
information subsequent to the Execution Time that is incorporated by reference
therein.
The Initial Purchasers and their direct and indirect transferees will be
entitled to the benefits of the registration rights agreement, in the form
attached hereto as Annex I (the "Registration Rights Agreement"), pursuant to
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which the Issuers will file a registration statement (a "Registration
Statement") with the Securities and Exchange Commission (the "Commission")
registering the New Notes (as defined in the Offering Memorandum) under the
Securities Act.
At or prior to the Closing Date, ICP-IV will complete a series of transactions
described in the Offering Memorandum under the headings "The Financing Plan" and
"Acquisitions" and may consummate the Viacom Nashville Acquisition as described
in the Offering Memorandum under the heading "The Viacom Nashville Acquisition."
As part of these transactions, (i) ICP-IV will receive an aggregate of $360.0
million of cash and in-kind contributions of new equity from its partners, (ii)
InterMedia Partners IV, L.P., a California limited partnership (the "Operating
Partnership") will enter into a revolving credit facility for an aggregate of
$475.0 million and a term loan from an aggregate of $220.0 million, (iii) ICP-IV
and its subsidiaries will consummate the acquisition of certain cable television
assets as described in the Offering Memorandum, (iv) the Initial Purchasers will
purchase the Notes in a private placement as contemplated hereunder, and (v)
ICP-IV will use the net proceeds of the sale of the Notes hereunder as described
in the Offering Memorandum under the heading "Use of Proceeds." As used herein,
the term "Transactions" shall mean the occurrence of all of the events described
in this paragraph (except the Viacom Nashville Acquisition) and the other
transactions related thereto described in the Offering Memorandum.
1. Representations and Warranties. The Issuers jointly and severally
represent and warrant to each Initial Purchaser as set forth below:
(a) No Untrue Statement or Material Omission. The Preliminary
Memorandum, at the date thereof, did not contain any untrue
statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except for
the changes occasioned by the restructuring of the Notes as
described in the Supplement. The Final Memorandum, at the date
hereof, does not, and at the Closing Date will not (and any
amendment or supplement thereto, at the date thereof and at the
Closing Date, will not), contain any untrue statement of a material
fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which
they were made, not misleading; provided, however, that the Issuers
make no representation or warranty as to the information contained
in or omitted from the Offering Memorandum, or any amendment or
supplement thereto, in reliance upon and in conformity with
information furnished in writing to the Issuers by or on behalf of
the Initial Purchasers specifically for inclusion therein. The
information provided by the Issuers pursuant to Section 5(f) hereof
will not, at the date thereof, contain any untrue statement of a
material fact or omit to state any material fact necessary to make
the statements therein, in the light of the circumstances under
which they were made, not misleading.
(b) No Stop Orders. No stop order preventing the use of the
Offering Memorandum or any amendment or supplement thereto, or any
order asserting that any of the transactions contemplated by this
Purchase Agreement are subject to the registration requirements of
the Securities Act, has been issued or threatened and no proceedings
for that purpose have been instituted or are pending or, to the
knowledge of either of the Issuers, are contemplated by the
Commission or any other federal or state securities commission or
regulatory authority.
(c) No Action Requiring Registration of the Notes. Neither of
the Issuers, nor any of their affiliates (as defined in Rule 501(b)
of Regulation D under the Securities Act ("Regulation D")) (each, an
"Affiliate"), nor any Subsidiary (as defined in the Indenture) of
ICP-IV, other than IPSE and IPSE's subsidiaries, giving effect to
the Acquisitions (collectively, the "Subsidiaries" and,
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individually, a "Subsidiary"), nor any person acting on their
behalf has, directly or indirectly, made offers or sales of any
security, or solicited offers to buy any security, under
circumstances that would require the registration of the Notes under
the Securities Act or the qualification of the Indenture in respect
of the Notes under the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"). The Issuers have not paid or agreed to pay
to any person any compensation for soliciting another to purchase
any securities of the Issuers (except as contemplated by this
Purchase Agreement).
(d) Exemption from Registration. Assuming the Notes are
issued, sold and delivered under the circumstances contemplated by
the Offering Memorandum and this Purchase Agreement, that the
representations and warranties of the Initial Purchasers contained
in Section 4 hereof are true, correct and complete, and that the
Initial Purchasers comply with their covenants in Section 4 hereof,
(i) registration under the Securities Act of the Notes or
qualification of the Indenture in respect of the Notes under the
Trust Indenture Act is not required in connection with the offer and
sale of the Notes to the Initial Purchasers or by the Initial
Purchasers in the manner contemplated by the Offering Memorandum or
this Purchase Agreement, and (ii) initial resales of the Notes by
the Initial Purchasers on the terms and in the manner set forth in
the Offering Memorandum and Section 4 hereof are exempt from the
registration requirements of the Securities Act. No form of general
solicitation or general advertising (within the meaning of
Regulation D) was used by either of the Issuers or any of their
respective representatives (other than the Initial Purchasers, as to
whom each of the Issuers makes no representation) in connection with
the offer and sale of the Notes, including but not limited to,
articles, notices or other communications published in any
newspaper, magazine or similar medium or broadcast over television
or radio, or any seminar or meeting whose attendees have been
invited by any general solicitation or general advertising. The
Notes satisfy the eligibility requirements of Rule 144A(d)(3) under
the Securities Act.
(e) PORTAL Market. The Issuers have been advised by the
National Association of Securities Dealers, Inc. Private Offerings,
Resales and Trading through Automated Linkages ("PORTAL") Market
that the Notes have been designated PORTAL eligible securities in
accordance with the rules and regulations of the National
Association of Securities Dealers, Inc.
(f) Investment Company Act. Neither of the Issuers are now,
nor will be after the sale of the Notes to be sold by the Issuers
hereunder and the application of the net proceeds from such sale as
described in the Offering Memorandum under the caption "Use of
Proceeds," an "investment company" within the meaning of the
Investment Company Act of 1940, as amended (the "Investment Company
Act").
(g) Financial Statements. The financial statements (including
the related notes) included in the Offering Memorandum present
fairly the financial condition and results of operations of the
entities purported to be shown thereby, at the dates and for the
periods indicated, and have been prepared in conformity with
generally accepted accounting principles applied on a consistent
basis throughout the periods involved except as disclosed in the
Offering Memorandum. The pro forma financial information included in
the Offering Memorandum (the "Pro Forma Information") is fairly
presented and has been prepared on a basis consistent with
the audited historical financial statements of each of the
Issuers and each of the Subsidiaries included in the Offering
Memorandum, except for the pro forma adjustments specified therein,
and give effect to assumptions made on a reasonable basis to give
effect to historical and proposed transactions and events described
in the Offering Memorandum. To the knowledge of each of ICP-IV and
IPCC, the statistical data included in the Offering Memorandum are
true and correct in all material respects. The Offering Memorandum
contains all financial information that would be required to be
contained in a registration statement on
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Form S-1 and all such financial statements comply in all material
respects as to form with the accounting requirements of the
Securities Act applicable to a registration statement on Form S-1.
(h) No Material Adverse Change in Business. Since the
respective dates as of which information is given in the Offering
Memorandum, except as otherwise stated therein, (i) there has been
no change or development involving, or that may reasonably be
expected to involve, a material adverse change in the condition,
financial or otherwise, earnings or affairs of ICP-IV and the
Subsidiaries considered as a whole, whether or not arising in the
ordinary course of business, and (ii) there have been no material
transactions entered into by ICP-IV or any of the Subsidiaries other
than those in the ordinary course of business.
(i) Good Standing, Etc. Each of InterMedia Capital Management
IV, L.P. ("ICM- IV") and ICP-IV has been duly formed and is validly
existing as a limited partnership in good standing under the laws of
the State of California, with full power and authority to own, lease
and operate its properties and to conduct its business as described
in the Offering Memorandum. Each of ICM-IV and ICP-IV is duly
qualified or registered to do business as a foreign limited
partnership and is in good standing in each jurisdiction or place
where the nature of its properties or the conduct of its business
requires such registration or qualification, except where the
failure to so register or qualify does not have a material adverse
effect on the condition, financial or otherwise, business,
properties, net worth or result of the operations of ICP-IV and the
Subsidiaries taken as a whole. Each of ICP-IV's Subsidiaries that is
a limited partnership has been duly formed and is validly existing
as a limited partnership in good standing under the laws of the
state of its certification, with full power and authority to own,
lease and operate its properties and to conduct its business as
described in the Offering Memorandum. Each of ICP-IV's Subsidiaries
that is a limited partnership is duly qualified or registered to do
business as a foreign limited partnership and is in good standing in
each jurisdiction or place where the nature of its properties or the
conduct of its business requires such registration or qualification,
except where the failure to so register or qualify does not have a
material adverse effect on the condition, financial or otherwise,
business, properties, net worth or result of the operations of
ICP-IV and the Subsidiaries taken as a whole. Each of ICP-IV's
Subsidiaries that is a corporation has been duly organized and is
validly existing as a corporation in good standing under the laws of
the state of its incorporation, with full power and authority to
own, lease and operate its properties and to conduct its business as
described in the Offering Memorandum. Each of ICP-IV's Subsidiaries
that is a corporation is duly qualified to do business as a foreign
corporation and is in good standing in each jurisdiction or place
where the nature of its properties or the conduct of its business
requires such registration or qualification, except where the
failure to so register or qualify does not have a material adverse
effect on the condition, financial or otherwise, business,
properties, net worth or result of the operations of ICP-IV and the
Subsidiaries taken as a whole.
(j) Capitalization. ICP-IV has the authorized capitalization
as set forth in the Offering Memorandum under the caption
"Capitalization." All of the issued partnership interests of each of
ICM-IV and ICP-IV have been duly and validly authorized and issued.
All of the issued partnership interests of each of ICP-IV's
Subsidiaries that is a limited partnership have been duly and
validly authorized and issued. ICP-IV owns or will own as of the
consummation of the Offering (the "Closing"), directly or
indirectly, such partnership interests of each
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of the Subsidiaries that is a limited partnership as set forth
in the Offering Memorandum, free and clear of all liens,
encumbrances, equities or claims, except for those that will be
removed at the Closing. All of the issued shares of capital stock of
each of the Subsidiaries that is a corporation have been duly and
validly authorized and issued and are fully paid and non-assessable
and free of any preemptive or similar rights. Except for directors'
qualifying shares, ICP-IV owns directly or indirectly such shares of
capital stock of each of the Subsidiaries that is a corporation as
set forth in the Offering Memorandum, free and clear of all liens,
encumbrances, equities or claims, except for those that will be
removed at the Closing.
(k) No Existing Defaults. Except as specifically described in
the Offering Memorandum, neither of the Issuers nor any of the
Subsidiaries: (i) is in violation of its partnership agreement,
charter or bylaws, as applicable; (ii) is in default in any material
respect, and no event has occurred that, with notice or lapse of
time or both, would constitute such a default, in the due
performance or observance of any term, covenant or condition
contained in any material indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which it is a party or
by which it is bound or to which any of its properties or assets is
subject; or (iii) is in violation in any material respect of any
law, ordinance, governmental rule, regulation or court decree to
which it or its property or assets may be subject or has failed to
obtain any material license, permit, certificate, franchise or other
governmental authorization or permit, including but not limited to
Federal Communications Commission ("FCC") or other federal, state or
local franchise authority licenses, consents, permits or ordinances
necessary to the ownership of its property or to the conduct of its
business, which in the cases of clauses (ii) and (iii), violation or
default would have or could reasonably be expected to have a
material adverse effect on the condition, financial or otherwise,
business, properties, net worth or results of operations of the
Issuers and the Subsidiaries taken as a whole.
(l) Possession of Licenses and Permits. Each of the Issuers
and each of the Subsidiaries possesses, or will possess as of the
respective consummations of each of the Acquisitions and the Viacom
Nashville Acquisition, such certificates, authorizations or permits
issued by the appropriate state, federal or foreign regulatory
agencies or bodies that are necessary to conduct the business now
operated by them or that will be operated by them following the
completion of each of the respective Acquisitions and the Viacom
Nashville Acquisition as described in the Offering Memorandum,
including but not limited to FCC or other federal, state or local
franchise authority licenses, consents, permits or ordinances,
except where the failure to possess such certificates,
authorizations or permits would not have a material adverse effect
on the consolidated financial position, stockholders (if
applicable), equity, results of operations or business of either of
the Issuers or any of the Subsidiaries and neither of the Issuers
nor any of the Subsidiaries has received any notice of proceedings
relating to the revocation or modification of any such certificate,
authorization or permit that, singularly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, could have a
material adverse effect on the consolidated financial position,
stockholders (if applicable), equity, results of operations or
business of either of the Issuers or any of the Subsidiaries.
(m) Absence of Proceedings. Except as set forth in the
Offering Memorandum, there is no action, suit or proceeding before
or by any court or governmental agency or body, domestic or foreign,
now pending or, to the knowledge of either of the Issuers,
threatened against or affecting ICP-IV or any of the Subsidiaries,
that might result in any material adverse change in the condition,
financial or otherwise, earnings, affairs or business of ICP-IV or
any of the Subsidiaries considered as a whole, or that might
materially and adversely affect the properties or assets thereof or
that might materially and adversely affect the offering of the
Notes.
(n) Title to Property. Upon consummation of the Transactions,
ICP-IV and each of the Subsidiaries will have good and marketable
title in fee simple to all material real property and good and
marketable title to all personal property owned by it and necessary
in the conduct of the business of ICP-IV or such Subsidiary, in each
case free and clear of all liens, encumbrances and defects except
(i) those incurred to secure obligations under workers'
compensation, social security or similar laws, or under unemployment
insurance, (ii) minor imperfections of title on real estate,
provided such
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imperfections do not render title unmarketable, (iii) that do
not materially adversely affect the value of such property to ICP-IV
and its Subsidiaries taken as a whole, and do not interfere with the
use made and proposed to be made of such property by ICP-IV or such
Subsidiary to an extent that such interference would have a material
adverse effect on ICP-IV and its Subsidiaries taken as a whole, (iv)
that arise in the ordinary course of business in favor of landlords
of real property leases to the extent of assets of ICP-IV or a
Subsidiary actually located on the premises, (v) arising out of the
security documents entered into on the Closing Date (the "Bank
Facility Security Agreements") related to that certain Revolving
Credit and Term Loan Agreement to be entered into on the Closing
Date (the "Bank Facility") among the Operating Partnership, as
borrower, The Bank of New York, as administrative agent and
arranging agent, NationsBank of Texas, N.A. and The Toronto-Dominion
Bank, each as arranging agent and syndication agent, and the lenders
party thereto, (vi) arising out of that certain loan agreement,
dated as of May 8, 1996 (the "TCIC Loan") by and between InterMedia
Partners Southeast, L.P. ("IPSE") and TCI of Houston, Inc.
("TCI-Houston"), (vii) arising out of that certain Pledge and
Security Agreement, dated as of May 8, 1996 (the "TCIC Pledge
Agreement") by and among ICM-IV, the Operating Partnership and
TCI-Houston, (viii) arising out of that certain Pledge and Security
Agreement, dated as of May 8, 1996 (the "BA Loan"), by and among
ICM-IV, IPSE and the Bank of America NT & SA and (ix) arising out of
that certain Pledge and Escrow Agreement, dated as of the Closing
Date (the "Pledge Agreement"), among the Issuers and the Trustee
with respect to the Notes. All material real property and buildings
held under lease by either of the Issuers or any of the Subsidiaries
are held by them under valid, subsisting and enforceable leases,
with such exceptions as are not material and do not interfere with
the use made and proposed to be made of such property and buildings
by ICP-IV or any of the Subsidiaries.
(o) Authority of the Issuers. Each of the Issuers and, as
appropriate, each of the Subsidiaries, has all of the requisite
power and authority to execute and deliver each of the following
documents (the "Transaction Documents") to which it is a party and
to perform its obligations thereunder:
(i) this Purchase Agreement;
(ii) the Indenture;
(iii) the Notes;
(iv) the New Notes (as defined in the Offering
Memorandum);
(v) the Registration Rights Agreement;
(vi) the Pledge Agreement;
(vii) the Bank Facility;
(viii) the Bank Facility Security Documents;
(ix) the Partnership Agreement of ICP-IV (the
"Partnership Agreement");
(x) the subscription agreements to the Partnership
Agreement listed on Annex II hereto (collectively,
the "Subscription Agreements");
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(xi) the Contribution Agreement, dated as of April 30,
1996 (the "IPWT Contribution Agreement"), by and
among ICP-IV, InterMedia Partners, a California
limited partnership ("IP-I") and General Electric
Capital Corp. ("GECC");
(xii) the first amendment to the IPWT Contribution
Agreement, dated as of June 26, 1996, among ICP-IV,
IP-I and GECC;
(xiii) the second amendment to the IPWT Contribution
Agreement, dated as of the Closing Date, among
ICP-IV, IP-I and GECC;
(xiv) the stock exchange agreement, dated as of July 26,
1996 (the "RMH Acquisition Agreement"), by and
among InterMedia Partners V, L.P ("IP-V"),
InterMedia Capital Management V, L.P., ("ICM-V"),
Robin Media Holdings, Inc. ("RMH"), the Operating
Partnership, ICM-IV and TCID-IP V, Inc.;
(xv) the Contribution Agreement, dated March 4, 1996
(the "G/S Contribution Agreement"), by and
among ICP-IV, TCI of Greenville, Inc.
("TCI-Greenville"), TCI of Piedmont, Inc.
("TCI-Piedmont") and TCI of Spartanburg, Inc.
("TCI-Spartanburg" and, together with
TCI-Greenville and TCI-Piedmont, the "TCI
Entities");
(xvi) the Amendment to the G/S Contribution Agreement,
dated March 26, 1996, by and among and the
Operating Partnership and the TCI Entities (the
"Amendment to the G/S Contribution Agreement"); and
(xvii) the Assignment and Assumption Agreement, dated as
of ________, 1996, between IP-IV and ICP-IV,
pursuant to which IP-IV assigns, and ICP-IV
assumes, all rights and obligations under the G/S
Contribution Agreement (the "G/S Assignment and
Assumption Agreement").
(p) Authorization of this Purchase Agreement. This Purchase
Agreement has been duly authorized, executed and delivered by each
of the Issuers and constitutes a valid and binding agreement of each
of the Issuers enforceable against each of them in accordance with
its terms, subject to the effects of bankruptcy, insolvency,
reorganization, receivership, conservatorship, arrangement,
moratorium or other laws affecting or relating to the rights of
creditors generally, and the rules governing the availability of
specific performance, injunctive relief or other equitable remedies
and general principles of equity, regardless of whether considered
in a proceeding in equity or at law, or an implied covenant of good
faith and fair dealing.
(q) Authorization of the Indenture. The Indenture has been
duly authorized and, when duly executed by the proper
representatives of each of the Issuers and delivered by each of the
Issuers, will (assuming due authorization, execution and delivery of
the Indenture by the Trustee) constitute a valid and binding
agreement of each of the Issuers enforceable against each of the
Issuers in accordance with its terms, subject to the effects of
bankruptcy, insolvency, reorganization, receivership,
conservatorship, arrangement, moratorium or other laws affecting or
relating to the rights of creditors generally, and the rules
governing the availability of specific performance, injunctive
relief or other equitable remedies and general principles of equity,
regardless of whether considered in a proceeding in equity or at
law, or an implied covenant of good faith and fair dealing.
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(r) Authorization of the Notes. The Notes have been duly
authorized by each of the Issuers and (assuming due authorization,
execution and delivery of the Indenture by the Trustee), when duly
executed, authenticated, issued and delivered as provided in the
Indenture, will be duly and validly issued and outstanding, and will
constitute valid and binding obligations of each of the Issuers
entitled to the benefits of the Indenture and enforceable against
each of them in accordance with their terms, subject to the effects
of bankruptcy, insolvency, reorganization, receivership,
conservatorship, arrangement, moratorium or other laws affecting or
relating to the rights of creditors generally, and the rules
governing the availability of specific performance, injunctive
relief or other equitable remedies and general principles of equity,
regardless of whether considered in a proceeding in equity or at
law, or an implied covenant of good faith and fair dealing.
(s) Authorization of the New Notes. The New Notes have been
duly authorized by each of the Issuers and, when issued in the
Exchange Offer contemplated by the Registration Rights Agreement,
will be duly and validly issued and outstanding, and will constitute
valid and binding obligations of each of the Issuers entitled to the
benefits of the Indenture and enforceable against each of the
Issuers in accordance with their terms, subject to the effects of
bankruptcy, insolvency, reorganization, receivership,
conservatorship, arrangement, moratorium or other laws affecting or
relating to the rights of creditors generally, and the rules
governing the availability of specific performance, injunctive
relief or other equitable remedies and general principles of equity,
regardless of whether considered in a proceeding in equity or at
law, or an implied covenant of good faith and fair dealing.
(t) Authorization of the Registration Rights Agreement. The
Registration Rights Agreement has been duly authorized by each of
the Issuers and (assuming due authorization, execution and delivery
by each of the Initial Purchasers), when duly executed and delivered
by each of the Issuers, will constitute a valid and binding
agreement of each of the Issuers enforceable against each of the
Issuers in accordance with its terms, subject to the effects of
bankruptcy, insolvency, reorganization, receivership,
conservatorship, arrangement, moratorium or other laws affecting or
relating to the rights of creditors generally, and the rules
governing the availability of specific performance, injunctive
relief or other equitable remedies and general principles of equity,
regardless of whether considered in a proceeding in equity or at
law, or an implied covenant of good faith and fair dealing.
(u) Authorization of the Pledge Agreement. The Pledge
Agreement has been duly authorized by each of the Issuers and
(assuming due authorization, execution and delivery by each of the
other parties thereto), when duly executed and delivered by each of
the Issuers will constitute a valid and binding agreement of the
Issuers enforceable against each of the Issuers in accordance with
its terms, subject to the effects of bankruptcy, insolvency,
reorganization, receivership, conservatorship, arrangement,
moratorium or other laws affecting or relating to the rights of
creditors generally, and the rules governing the availability of
specific performance, injunctive relief or other equitable remedies
and general principles of equity, regardless of whether considered
in a proceeding in equity or at law, or an implied covenant of good
faith and fair dealing.
(v) Authorization of the Bank Facility and the Bank Facility
Security Agreements. Each of (i) the Bank Facility has been duly
authorized by the Operating Partnership and (assuming due
authorization, execution and delivery of each of the other parties
thereto), when duly executed and delivered by the Operating
Partnership, will constitute a valid and binding agreement of the
Operating Partnership enforceable against it in accordance with its
terms, subject to the effects of bankruptcy, insolvency,
reorganization, receivership, conservatorship, arrangement,
moratorium or other laws
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affecting or relating to the rights of creditors generally, and the
rules governing the availability of specific performance, injunctive
relief or other equitable remedies and general principles of equity,
regardless of whether considered in a proceeding in equity or at
law, or an implied covenant of good faith and fair dealing; and (ii)
the Bank Facility Security Agreements has been duly authorized by
each of IP-TN, InterMedia Partners of West Tennessee, L.P. ("IPWT"),
Robin Media Group, Inc. ("RMG"), RMH and IPSE (collectively, the
"Bank Facility Guarantors") that is a party thereto, and (assuming
due authorization, execution and delivery of each of the other
parties to each respective Bank Facility Security Agreement), when
duly executed and delivered by each of the Bank Facility Guarantors
that is a party thereto, will constitute a valid and binding
agreement of each such Bank Facility Guarantor enforceable against
it in accordance with its terms, subject to the effects of
bankruptcy, insolvency, reorganization, receivership,
conservatorship, arrangement, moratorium or other laws affecting or
relating to the rights of creditors generally, and the rules
governing the availability of specific performance, injunctive
relief or other equitable remedies and general principles of equity,
regardless of whether considered in a proceeding in equity or at
law, or an implied covenant of good faith and fair dealing.
(w) Authorization of the Partnership Agreement. The
Partnership Agreement has been duly authorized, executed and
delivered by each of InterMedia Partners, a California limited
partnership ("IP-I"), and ICM-IV and constitutes a valid and binding
agreement of each of IP-I and ICM-IV, enforceable against each of
IP-I and ICM-IV in accordance with its terms, subject to the effects
of bankruptcy, insolvency, reorganization, receivership,
conservatorship, arrangement, moratorium or other laws affecting or
relating to the rights of creditors generally, and the rules
governing the availability of specific performance, injunctive
relief or other equitable remedies and general principles of equity,
regardless of whether considered in a proceeding in equity or at
law, or an implied covenant of good faith and fair dealing.
(x) Authorization of the Subscription Agreements. Each of the
Subscription Agreements has been duly authorized, executed and
delivered by ICM-IV and (assuming due authorization, execution and
delivery by each of the other parties thereto) constitutes a valid
and binding agreement of ICM-IV enforceable against ICM-IV in
accordance with its terms, subject to the effects of bankruptcy,
insolvency, reorganization, receivership, conservatorship,
arrangement, moratorium or other laws affecting or relating to the
rights of creditors generally, and the rules governing the
availability of specific performance, injunctive relief or other
equitable remedies and general principles of equity, regardless of
whether considered in a proceeding in equity or at law, or an
implied covenant of good faith and fair dealing.
(y) Authorization of the Acquisition Agreements. Each of the
agreements pursuant to which each of the Threshold Acquisitions (as
defined in the Offering Memorandum) and the Viacom Nashville
Acquisition will be consummated has been duly authorized, executed
and delivered by each of ICP-IV and its Subsidiaries, as applicable,
(and assuming due authorization, execution and delivery by each of
the other parties thereto) constitutes a valid and binding agreement
of each of each of ICP-IV and its Subsidiaries, as applicable,
enforceable against each of them that is a party thereto in
accordance with its terms, subject to the effects of bankruptcy,
insolvency, reorganization, receivership, conservatorship,
arrangement, moratorium or other laws affecting or relating to the
rights of creditors generally, and the rules governing the
availability of specific performance, injunctive relief or other
equitable remedies and general principles of equity, regardless of
whether considered in a proceeding in equity or at law, or an
implied covenant of good faith and fair dealing.
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(z) The Transaction Documents. Each of the Transaction
Documents: (i) has been, or will be no later than Closing Date,
delivered to you in final executed form; (ii) conforms in all
material respects to the description thereof contained in the
Offering Memorandum; and (iii) has not been amended since the date
of the final executed form thereof referred to in clause (i) above.
(aa) No Conflicts. The execution, delivery and performance of
each of the Transaction Documents by each of the Issuers that is a
party thereto, and the issuance, authentication, sale and delivery
of the Notes, and compliance with the terms thereof, and the
consummation of the transactions contemplated hereby or thereby,
will not conflict with or result in a material breach or violation
of any of the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which either of the Issuers or any of the
Subsidiaries is a party or by which either of the Issuers or any of
the Subsidiaries is bound or to which any of the property or assets
of either of the Issuers or any of the Subsidiaries is subject, nor
will such actions result in any violation of the provisions of the
partnership agreement, charter or by-laws, as applicable, of either
of the Issuers or any of the Subsidiaries or any statute or any
order, rule or regulation of any court or governmental agency or
body having jurisdiction over either of the Issuers or any of the
Subsidiaries or any of their respective property or assets, which
default or violation would have or could reasonably be expected to
have a material adverse effect on ICP-IV and the Subsidiaries taken
as a whole; and except such consents, approvals, authorizations,
registrations or qualifications as may be required under the
applicable state securities laws in connection with the purchase and
distribution of the Notes by the Initial Purchasers and such other
approvals as have been obtained, no consent, approval, authorization
or order of, or filing (other than filings solely for information
purposes or to obtain action that is not a subject of governmental
discretion) or registration with, any such court or governmental
agency or body is required for the execution, delivery and
performance of any of the Transaction Documents, the issuance,
authentication, sale and delivery of the Notes, and compliance with
the terms thereof, and the consummation by each of the Issuers of
the transactions contemplated thereby.
(ab) Independent Accountants. Each of Price Waterhouse LLP,
San Francisco, Price Waterhouse LLP, San Jose, KPMG Peat Marwick,
LLP and Ernst & Young, LLP, each of whom has certified certain
financial statements of the Issuers and the Subsidiaries, whose
reports appear in the Offering Memorandum and who has delivered its
initial letter referred to in Section 6(n) hereof, is an independent
public accountant as required under Rule 101 of the Code of
Professional Conduct of the American Institute of Certified Public
Accountants (the "AICPA") and its interpretations and rulings during
the periods covered by the financial statements on which it reported
contained in the Offering Memorandum.
(ac) Maintenance of Records. ICP-IV and each of the
Subsidiaries maintains a system of internal accounting controls
sufficient to provide reasonable assurances that: (i) transactions
are executed in accordance with management's general or specific
authorizations; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with
generally accepted accounting principles and to maintain asset
accountability; (iii) access to assets is permitted only in
accordance with management's general or specific authorization; and
(iv) the recorded accountability for assets is compared with the
existing assets at reasonable intervals and appropriate action is
taken with respect to any differences.
(ad) Possession of Intellectual Property. ICP-IV and each of
the Subsidiaries owns or otherwise possesses the right to use all
patents, trademarks, service marks, trade names and copyrights, all
applications and registrations for each of the foregoing, and all
other proprietary rights
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and confidential information used by them or necessary for or
material to the conduct of their respective businesses as currently
conducted; and neither ICP-IV nor any of the Subsidiaries has
received any notice of, or is otherwise aware of, any infringement
of or conflict with the rights of any third party with respect to
any of the foregoing that, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would have or
could reasonably be expected to have a material adverse effect on
ICP-IV.
(ae) Insurance. Upon the consummation of each of the
Transactions, ICP-IV and each of the Subsidiaries will be insured by
insurers of recognized financial responsibility against such losses
and risks and in such amounts as are prudent and customary in the
businesses in which they are engaged; neither ICP-IV nor any of the
Subsidiaries has been refused any insurance coverage sought or
applied for, and neither ICP-IV nor any of the Subsidiaries has any
reason to believe that it will not be able to renew its existing
insurance coverage as and when such coverage expires or to obtain
similar coverage from similar insurers as may be necessary to
continue its business at a cost that would not have a material
adverse effect on ICP-IV and the Subsidiaries taken as a whole.
(af) Doing Business with Cuba. ICP-IV and each of the
Subsidiaries has complied with all provisions of Section 517.075,
Florida Statutes (Chapter 92-198, Laws of Florida), relating to
doing business with the Government of Cuba or with persons or
affiliates located in Cuba.
(ag) Employee Pension or Benefit Plans. Each of the Issuers
and each of the Subsidiaries is in compliance in all material
respects with all presently applicable provisions of the Employee
Retirement Income Security Act of 1974, as amended, including the
regulations and published interpretations thereunder (collectively,
"ERISA"); no "reportable event" (as defined in ERISA) has occurred
with respect to any "pension plan" (as defined in ERISA) for which
either of the Issuers or any of the Subsidiaries would have any
liability; each of the Issuers and each of the Subsidiaries has not
incurred and does not expect to incur liability under (i) Title IV
of ERISA with respect to termination of, or withdrawal from, any
"pension plan" or (ii) Sections 412 or 4971 of the Internal Revenue
Code of 1986, as amended, including the regulations and published
interpretations thereunder (collectively, the "Code"); and each
"pension plan" for which either of the Issuers or any of the
Subsidiaries would have any liability that is intended to be
qualified under Section 401(a) of the Code is so qualified in all
material respects and nothing has occurred, whether by action or by
failure to act, that would cause the loss of such qualification.
(ah) Environmental Laws. To the knowledge of ICP-IV or any
Subsidiary, there has been no: (i) storage, disposal, generation,
manufacture, refinement, transportation, handling or treatment of
toxic wastes, medical wastes, solid wastes, hazardous wastes or
hazardous substances by either of the Issuers or any of the
Subsidiaries (or, to the knowledge of either of the Issuers or any
of the Subsidiaries, by any of its predecessors-in-interest) at,
upon or from any of the property now or previously owned or leased
by either of the Issuers or any of the Subsidiaries in violation of
any applicable law, ordinance, rule, regulation, order, judgment,
decree or permit or that would require remedial action under any
applicable law, ordinance, rule, regulation, order, judgment, decree
or permit, except for any violation or remedial action that would
not have, or could not be reasonably likely to have, singularly or
in the aggregate with all such violations and remedial actions, a
material adverse effect on the general affairs, management,
financial position, stockholders (if applicable), equity or results
of operations of either of the Issuers or any of the Subsidiaries;
nor any (ii) material spill, discharge, leak, emission, injection,
escape, dumping or release of any kind onto such property or into
the environment surrounding such property of any toxic wastes,
medical wastes, solid wastes, hazardous wastes or hazardous
substances due to or caused by either of the Issuers or any of the
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Subsidiaries or with respect to which either of the Issuers or any
of the Subsidiaries has knowledge, except for any such spill,
discharge, leak, emission, injection, escape, dumping or release
that would not have or would not be reasonably likely to have,
singularly or in the aggregate with all such spills, discharges,
leaks, emissions, injections, escapes, dumpings and releases, a
material adverse effect on the general affairs, management,
financial position, stockholders (if applicable), equity or results
of operations of either of the Issuers or any of the Subsidiaries.
The terms "toxic wastes," "medical wastes," "solid wastes,"
"hazardous wastes" and "hazardous substances" as used in either
clause (i) or (ii) above shall have the meanings specified in any
applicable local, state, federal and foreign laws or regulations
with respect to environmental protection.
(ai) Description of Certain Transactions. No relationship,
direct or indirect, exists between or among either of the Issuers or
any of the Subsidiaries on the one hand, and (as applicable) the
partners, directors, officers, stockholders, affiliates, customers
or suppliers of either of the Issuers or any of the Subsidiaries on
the other hand, that would be required to be described in a
registration statement on Form S-1 and that is not so described in
the Offering Memorandum.
(aj) D.D. Cable. The only material asset owned by IP-II as of
the Closing Date is its interest in D.D. Cable Partners, L.P.
(ak) Absence of Labor Dispute. No labor disturbance by the
employees of either of the Issuers or any of the Subsidiaries exists
or, to the knowledge of either of the Issuers or any of the
Subsidiaries, is imminent that could have a material adverse effect
on the consolidated financial position, stockholders (if
applicable), equity, results of operations or business of either of
the Issuers or any of the Subsidiaries.
(al) Taxes. Each of the Issuers and each of the Subsidiaries
has filed all material federal, state and local income and franchise
tax returns required to be filed through the date hereof and has
paid all taxes due thereon, and no tax deficiency has been
determined adversely to either of the Issuers or any of the
Subsidiaries that has had (nor does either of the Issuers or any of
the Subsidiaries have any knowledge of any tax deficiency that, if
determined adversely to either of the Issuers or any of the
Subsidiaries, could have) a material adverse effect on the
consolidated financial position, stockholders (if applicable),
equity, results of operations or business of either of the Issuers
or any of the Subsidiaries.
(am) Restriction on the Issuance of Securities. Since the date
as of which information is given in the Offering Memorandum through
the date hereof, and except as may otherwise be disclosed in the
Offering Memorandum, neither of the Issuers and none of the
Subsidiaries has (i) issued or granted any securities, (ii) incurred
any liability or obligation, direct or contingent, other than
liabilities and obligations that were incurred in the ordinary
course of business, (iii) entered into any transaction not in the
ordinary course of business or (iv) declared or paid any
distributions or any dividend on any capital stock.
(an) Registration Rights. Except as set forth in the
Registration Rights Agreement, there are no contracts, agreements or
understandings between either of the Issuers and any person granting
such person the right to require such Issuer to file a registration
statement under the Securities Act with respect to any securities of
such Issuer owned or to be owned by such person or to require such
Issuer to include such securities in any securities being registered
pursuant to any registration statement filed by either of the
Issuers under the Securities Act.
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(ao) Absence of Unlawful Contribution. Neither of the Issuers
and none of the Subsidiaries, nor any partner, director, officer,
agent, employee or other person associated with or acting on behalf
of either of the Issuers or any of the Subsidiaries, has (i) used
any partnership or corporate funds, as applicable, for any unlawful
contribution, gift, entertainment or other unlawful expense relating
to political activity; (ii) made any direct or indirect unlawful
payment to any foreign or domestic government official or employee
from partnership or corporate funds, as applicable; (iii) violated
or is in violation of any provision of the Foreign Corrupt Practices
Act of 1977; or (iv) made any bribe, rebate, payoff, influence
payment, kickback or other unlawful payment.
(ap) Different Class of Securities. No securities of the same
class (within the meaning of Rule 144A(d)(3) under the Securities
Act) as the Notes are listed on any national securities exchange,
registered under Section 6 of the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), or quoted on an automated
interdealer quotation system.
(aq) No Sale, General Solicitation or Integrated Offering.
Neither of the Issuers nor any Affiliate has directly, or through
any agent (provided that no representation is made as to the Initial
Purchasers or any person acting on their behalf), (i) sold, offered
for sale, solicited offers to buy or otherwise negotiated in respect
of, any security (as defined in the Securities Act) that is or will
be integrated with the offering and sale of the Notes in a manner
that would require the registration of the Notes under the
Securities Act or (ii) engaged in any form of general solicitation
or general advertising (within the meaning of Regulation D) in
connection with the offering of the Notes.
(ar) No Stabilization or Manipulation of Price. Neither of the
Issuers nor any Affiliate thereof has taken, nor will take, directly
or indirectly, any action designed to, or that could reasonably be
expected to, cause or result in stabilization or manipulation of the
price of the Notes.
(as) Board of Governors of the Federal Reserve Regulation.
Neither the issuance or sale of the Notes nor the application of the
proceeds thereof by the Issuers as set forth in the Offering
Memorandum will violate Regulations G, T, U or X of the Board of
Governors of the Federal Reserve System or analogous foreign laws
and regulations.
(at) Officer's Certificates. Any certificate signed by one or
more of the following: the Managing General Partner, the President,
the Treasurer or any Executive Vice President or Vice President
(each, an "Officer") of either of the Issuers or any of the
Subsidiaries and delivered to the Initial Purchasers or to counsel
for the Initial Purchasers shall be deemed a representation and
warranty by each of the Issuers to each of the Initial Purchasers as
to the matters covered thereby.
2. Purchase and Sale. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Issuers
agree to sell to each Initial Purchaser, and each Initial Purchaser agrees,
severally and not jointly, to purchase from the Issuers the principal amount of
Notes set forth opposite such Initial Purchaser's name in Annex IV hereto.
3. Delivery and Payment. Delivery of and payment for the Notes shall
be made at 10:00 a.m. New York City time on July 30, 1996, or such later date
(not later than August 5, 1996) as the Initial Purchasers shall designate, which
date and time may be postponed by agreement between the Initial Purchasers and
the Issuers or as provided in Section 9 hereof (such date and time of delivery
and payment for the Notes being herein called the "Closing Date"). Delivery of
the Notes shall be made to the Initial Purchasers against payment by the Initial
Purchasers of the purchase price thereof to or upon the order of the Issuers by
wire transfer to the account of the Issuers or such other manner of payment as
may be agreed by the Issuers and
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the Initial Purchasers. Delivery of the Notes shall be made at such location as
the Initial Purchasers shall reasonably designate at least one business day in
advance of the Closing Date and payment for the Notes shall be made at the
office of Pillsbury Madison & Sutro LLP, 235 Montgomery Street, San Francisco,
California 94104. Certificates for the Notes shall be registered in such names
and in such denominations as the Initial Purchasers may request not less than
two full business days in advance of the Closing Date.
The Issuers agree to have the Notes available for inspection,
checking and packaging by the Initial Purchasers in New York, New York not later
than 1:00 p.m. New York City time on the business day prior to the Closing Date.
4. Offering of Notes. Each Initial Purchaser, severally and not
jointly, represents and warrants to and agrees with the Issuers that:
(a) It has not offered or sold, and will not offer or sell,
any Notes except (i) to those it reasonably believes to be qualified
institutional buyers (as defined in Rule 144A under the Securities
Act) and that, in connection with each such sale, it has taken or
will take reasonable steps to ensure that the purchaser of such
Notes is aware that such sale is being made in reliance on Rule
144A, or (ii) to other institutional "accredited investors" (as
defined in Rule 501(a) (1), (2), (3) or (7) of Regulation D) who
provide to it and to the Issuers a letter in the form of Annex V
hereto.
(b) Neither it nor any person acting on its behalf has made or
will make offers or sales of the Notes by means of any form of
general solicitation or general advertising (within the meaning of
Regulation D).
5. Agreements of Each of the Issuers.
Each of the Issuers jointly and severally agrees:
(a) To advise you promptly (and, if requested by you, confirm
such advice in writing) of the issuance by any state securities
commission of any stop order suspending the qualification or
exemption from qualification of any Notes for offering or sale in
any jurisdiction, or the initiation of any proceeding for such
purpose by the Commission or any state securities commission or
other regulatory authority. Each of the Issuers shall use its best
efforts to prevent the issuance of any stop order or order
suspending the qualification or exemption of the Notes under any
state securities or Blue Sky laws and, if at any time any state
securities commission shall issue any stop order suspending the
qualification or exemption of the Notes under any state securities
or Blue Sky laws, each of the Issuers shall use every reasonable
effort to obtain the withdrawal or lifting of such order at the
earliest possible time.
(b) To furnish to each Initial Purchaser and to Latham &
Watkins, without charge during the period referred to in paragraph
(d) below, such reasonable number of copies of the Final Memorandum
and any amendments and supplements thereto as it may request. The
Issuers shall pay the expenses of printing or other production of
all documents relating to the Offering.
(c) Not to amend or supplement the Final Memorandum without
the prior written consent of the Initial Purchasers.
(d) If at any time prior to the completion of the sale of the
Notes by the Initial Purchasers, any event occurs as a result of
which the Final Memorandum, as then amended or
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supplemented, would include any untrue statement of a material fact
or omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading, or if it should be necessary to amend or
supplement the Final Memorandum to comply with applicable law, the
Issuers shall promptly notify the Initial Purchasers of the same
and, subject to the requirements of paragraph (c) of this Section 5,
shall prepare and provide to the Initial Purchasers pursuant to
paragraph (b) of this Section 5 an amendment or supplement that will
correct such statement or omission or effect such compliance.
(e) To provide to you every proposed form of letter, notice,
circular or other written communication proposed to be distributed
to potential purchasers and not to distribute any such letter,
notice, circular or other communication without your prior written
consent.
(f) So long as the Notes are outstanding and are "Restricted
Securities" within the meaning of Rule 144(a)(3) under the
Securities Act and during any period in which either of the Issuers
is not subject to Section 13 or 15(d) of the Exchange Act, to
furnish to holders or beneficial owners of the Notes and prospective
purchasers of Notes designated by such holders or beneficial owners,
upon request of such holders or such beneficial owners or such
prospective purchasers, the information required to be delivered
pursuant to Rule 144A(d)(4) under the Securities Act.
(g) Whether or not required by the rules and regulations of
the Commission, so long as any of the Notes or New Notes are
outstanding, ICP-IV will furnish the following to you: (i) all
quarterly and annual financial information that would be required to
be contained in a filing with the Commission on Forms 10-Q and 10-K
if ICP-IV were required to file such forms, including a
"Management's Discussion and Analysis of Financial Condition and
Results of Operations" that describes the financial condition and
results of operations of ICP-IV and its Restricted Subsidiaries (as
defined in the Indenture) and, with respect to the annual
information only, a report thereon by ICP-IV's certified independent
accountants; and (ii) all current reports that would be required to
be filed with the Commission on Form 8-K if ICP-IV were required to
file such reports.
(h) To arrange for the qualification of the Notes for sale by
the Initial Purchasers under the securities or Blue Sky laws of such
jurisdiction as the Initial Purchasers may designate and will
maintain such qualifications in effect as long as required for the
sale of the Notes. The Issuers shall promptly advise the Initial
Purchasers of the receipt by the Issuers of any modification with
respect to the suspension of the qualification of the Notes for sale
in any jurisdiction or the initiation or threatening of any
proceeding for such purpose.
(i) Not to, and to cause its Affiliates not to, resell any
Notes that have been acquired by any of them.
(j) Not to, and to cause its Affiliates not to, sell, offer
for sale or solicit offers to buy or otherwise negotiate in respect
of any Security (as defined in the Securities Act) in any
transaction that could be integrated with the sale of the Notes in a
manner that would require the registration under the Securities Act
of such Notes.
(k) Except following the effectiveness of the Exchange
Registration Statement (as defined in the Registration Rights
Agreement), not to, and to cause its Affiliates not to, solicit any
offer to buy or offer to sell the Notes by means of 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.
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(l) To use its best efforts to permit the Notes to be
designated PORTAL securities in accordance with the rules and
regulations adopted by the National Association of Securities
Dealers, Inc. relating to trading in the PORTAL market and to permit
the Notes to be eligible for clearance and settlement through The
Depository Trust Company ("DTC").
(m) Not to, until 60 days following the Closing Date, without
the prior written consent of the Initial Purchasers, offer, sell or
contract to sell, or otherwise dispose of, directly or indirectly,
or announce the offering of, any debt securities issued or
guaranteed by the Issuers (other than the New Notes).
(n) To apply the net proceeds from the sale of the Notes as
set forth in the Offering Memorandum.
(o) To take such steps as shall be necessary to ensure that
neither of the Issuers nor any of the Subsidiaries shall become an
"investment company" within the meaning of such term under the
Investment Company Act.
(p) To comply with its agreements in the Registration Rights
Agreement, and all agreements set forth in the representation
letters of each of the Issuers to the DTC relating to the approval
of the Notes by the DTC for "book-entry" transfer.
(q) To comply with the terms and conditions of each of the
Transaction Documents and to consummate the transactions
contemplated thereby.
(r) Not to claim voluntarily, and will actively resist any
attempts to claim, the benefit of any usury laws against the holders
of the Notes.
(s) To do all things necessary to satisfy the closing
conditions set forth in Section 6 hereof.
6. Conditions to the Obligation of the Initial Purchasers. The
obligations of the Initial Purchasers to purchase the Notes shall be subject to
the accuracy of the representations and warranties on the part of the Issuers
contained herein at the date and time that this Purchase Agreement is executed
and delivered by the parties hereto (the "Execution Time") and the Closing Date,
to the accuracy of the statements of the Issuers made in any certificates
pursuant to the provisions hereof, to the performance by the Issuers of their
obligations hereunder and to the following additional conditions:
(a) The Issuers shall have entered into a Registration Rights
Agreement with the Initial Purchasers of even date herewith.
(b) No Initial Purchaser shall have discovered and disclosed
to ICP-IV on or prior to the Closing Date that the Offering
Memorandum or any amendment or supplement thereto contains an untrue
statement of a fact that, in the reasonable opinion of Latham &
Watkins, counsel for the Initial Purchaser, is material or omits to
state a fact that, in the reasonable opinion of Latham & Watkins, is
material and is required to be stated therein or is necessary to
make the statements therein, in the light of the circumstances under
which they were made, not misleading.
(c) All partnership and corporate proceedings, as applicable,
and other legal matters incident to the authorization, form and
validity of each of the Transaction Documents and all other
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legal matters relating to the Transaction Documents and the
transactions contemplated thereby shall be satisfactory in all
material respects to the Initial Purchasers, and the Issuers shall
have furnished to Latham & Watkins all documents and information
that Latham & Watkins may reasonably request to enable it to pass
upon such matters.
(d) Each of the conditions to the consummation of the
Threshold Acquisitions shall have been satisfied or waived and the
Threshold Acquisitions shall have been consummated substantially in
accordance with the terms thereof and as described in the Offering
Memorandum.
(e) The Issuers shall deliver to the Initial Purchasers on the
Closing Date the following duly authorized, validly existing and
fully executed documents, in each case, as amended to and including
the Closing Date:
(i) The Partnership Agreement;
(ii) The Subscription Agreements;
(iii) The Partnership Agreement of ICM-IV;
(iv) The G/S Contribution Agreement;
(v) The Amendment to the G/S Contribution Agreement;
(vi) The G/S Assignment and Assumption Agreement;
(vii) The Bills of Sale and Assignment, each dated as of
the Closing Date, (i) by TCI-Greenville in favor of IP-IV; (ii)
by TCI-Piedmont in favor of IP-IV; (iii) by TCI-Spartanburg in
favor of IP-IV; and (iv) by IP-TN in favor of IP-IV, evidencing
the consummation of the Greenville/Spartanburg Acquisition
substantially in accordance with the terms of the G/S
Contribution Agreement and as described in the Offering
Memorandum;
(viii) Certification that all approvals and consents of
local franchising authorities required for the consummation of
the Greenville/Spartanburg Acquisition substantially in
accordance with the terms of the G/S Contribution Agreement and
as described in the Offering Memorandum have been received or
waived;
(ix) The Bill of Sale and Assignment, dated as of the
Closing Date, by IPWT in favor of ICP-IV, evidencing the
consummation of the IPWT Acquisition substantially in accordance
with the terms of the IPWT Contribution Agreement and as
described in the Offering Memorandum;
(x) Certification that all approvals and consents by
any local franchising authority required for the consummation of
the IPWT Acquisition substantially in accordance with the terms
of the IPWT Contribution Agreement and as described in the
Offering Memorandum have been received or waived;
(xi) A copy of the share certificate or certificates
representing the outstanding shares of common stock of RMH and
RMG delivered to ICP-IV by RMH, evidencing
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consummation of the RMH Acquisition substantially in accordance
with the terms of the RMH Agreement and as described in the
Offering Memorandum;
(xii) Certification that all approvals and consents of
local franchising authorities required for the consummation of
the RMH Acquisition substantially in accordance with the terms
of the RMH Agreement and as described in the Offering Memorandum
have been received or waived;
(xiii) Evidence satisfactory to the Initial Purchasers of
the defeasance of RMG's obligations under the indenture (the
"RMG Senior Subordinated Note Indenture") relating to the 11
1/8% Senior Subordinated Deferred Interest Notes Due 1997 (the
"RMG Senior Subordinated Notes") of RMG, which was formerly
known as Cooke Media Group Incorporated ("Cooke Media") through:
(i) ICP-IV's irrevocable commitment to the trustee under such
indenture to issue within two business days of the Closing Date
a redemption notice published in a nationally circulated
newspaper and mailed to holders of such notes; and (ii) ICP-IV's
irrevocable deposit in trust with the trustee thereof (on terms
satisfactory to the Initial Purchasers) of sufficient funds to
pay the redemption price of and accrued interest on all such
notes to be redeemed on the redemption date, substantially in
accordance with the terms of the RMG Senior Subordinated Note
Indenture and as described in the Offering Memorandum;
(xiv) Evidence satisfactory to the Initial Purchasers of
the defeasance of RMG's obligations under the indenture (the
"RMG Subordinated Debenture Indenture" and, together with the
RMG Subordinated Note Indenture, the "RMG Indentures") relating
to the 11 5/8% Subordinated Debentures Due 1999 (the "RMG
Subordinated Debentures") through: (i) ICP-IV's irrevocable
commitment to the trustee under such indenture to issue within
two business days of the Closing Date a redemption notice
published in a nationally circulated newspaper and mailed to
holders of such debentures; and (ii) ICP-IV's irrevocable
deposit in trust with the trustee thereof (on terms satisfactory
to the Initial Purchasers) of sufficient funds to pay the
redemption price of and accrued interest on all such debentures
to be redeemed on the redemption date, substantially in
accordance with the terms of the RMG Subordinated Debenture
Indenture and as described in the Offering Memorandum;
(xv) Evidence satisfactory to the Initial Purchasers of
the repayment in full of the outstanding principal balance under
the Bridge Loan substantially in accordance with the terms of
the Bridge Loan and as described in the Offering Memorandum; and
(f) The Issuers shall have delivered to the Initial Purchasers
the Bank Facility and the Bank Facility Security Agreements, which
shall be reasonably acceptable to the Initial Purchasers.
(g) The Issuers shall have furnished to the Initial Purchasers
the opinion of Pillsbury Madison & Sutro LLP, counsel for the Issuers,
dated the Closing Date substantially to the effect that:
(i) No Untrue Statement or Material Omission. Such counsel
has acted as counsel to the Issuers with respect to the
Acquisitions (as defined in the Offering Memorandum) and
participated in the preparation of the Offering Memorandum and,
although such counsel did not undertake to investigate or verify
independently, and did not assume any responsibility for, the
accuracy, completeness or fairness of the statements contained
in the Memorandum, on the basis of the foregoing (relying as to
materiality to a
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large extent upon the officers and other representatives of the
Company), nothing has come to such counsel's attention that
leads such counsel to believe that the Preliminary Offering
Memorandum, as of its date, contained an untrue statement of
fact or omitted to state 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, except for the changes occasioned by the
restructuring of the Notes as described in the Supplement, or
that the Supplement, as of its date, contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under
which they were made, not misleading, or that the Final
Memorandum, as of its date and as of the Closing Date, contained
or contains an untrue statement of a material fact or omitted or
omits to state any 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. Such
counsel need not express any opinion as to the financial
statements and schedules and other financial and statistical
data contained in the Offering Memorandum or as to FCC laws or
regulations (or similar laws or regulations) or local franchise
authority licenses, consents, permits or ordinances.
(ii) No Stop Orders. To such counsel's knowledge, no
stop order preventing the use of the Offering Memorandum or any
amendment or supplement thereto, or any order asserting that any
of the transactions contemplated by the Offering Memorandum or
this Purchase Agreement are subject to the registration
requirements of the Securities Act, has been issued or
threatened and no proceedings for that purpose have been
instituted or are pending or are contemplated by the Commission
or any other federal or state securities commission or
regulatory authority;
(iii) Exemption from Registration. Assuming the Notes
are issued, sold and delivered under the circumstances
contemplated by the Offering Memorandum and this Purchase
Agreement, that the representations and warranties of the
Initial Purchasers contained in Section 4 hereof are true,
correct and complete, and that the Initial Purchasers comply
with their covenants in Section 4 hereof, (i) registration under
the Securities Act of the Notes or qualification of the
Indenture in respect of the Notes under the Trust Indenture Act
is not required in connection with the offer and sale of the
Notes to the Initial Purchasers or by the Initial Purchasers in
the manner contemplated by the Offering Memorandum or this
Purchase Agreement, and (ii) initial resales of the Notes by the
Initial Purchasers on the terms and in the manner set forth in
the Offering Memorandum and Section 4 hereof are exempt from the
registration requirements of the Securities Act. To such
counsel's knowledge, no form of general solicitation or general
advertising (within the meaning of Regulation D) was used by
either of the Issuers or any of their respective representatives
(other than the Initial Purchasers, as to whom each of the
Issuers makes no representation) in connection with the offer
and sale of the Notes, including but not limited to, articles,
notices or other communications published in any newspaper,
magazine or similar medium or broadcast over television or
radio, or any seminar or meeting whose attendees have been
invited by any general solicitation or general advertising. The
Notes satisfy the eligibility requirements of Rule 144A(d)(3)
under the Securities Act; and the Offering Memorandum, and each
amendment or supplement thereto, contains the information
specified in, and meets the requirements of, Rule 144A(d)(4) of
the Securities Act;
(iv) Investment Company Act. Neither of the Issuers
are now, nor will be after the sale of the Notes to be sold by
the Issuers hereunder and the application of the net proceeds
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23
from such sale as described in the Offering Memorandum under the
caption Use of Proceeds," an "investment company" within the
meaning of the Investment Company Act;
(v) Good Standing, Etc. Each of ICM-IV and ICP-IV has
been duly formed and is validly existing as a limited
partnership in good standing under the laws of the State of
California, with full power and authority to own, lease and
operate its properties and to conduct its business as described
in the Offering Memorandum. Each of ICM-IV and ICP-IV is duly
qualified or registered to do business as a foreign limited
partnership and is in good standing in each jurisdiction or
place where the nature of its properties or the conduct of its
business requires such registration or qualification, except
where the failure to so register or qualify does not have a
material adverse effect on the condition, financial or
otherwise, business, properties, net worth or result of the
operations of ICP- IV and the Subsidiaries taken as a whole.
Each of the Subsidiaries that is a limited partnership has been
duly organized and is validly existing as a limited partnership
in good standing under the laws of the state of its
certification, with full power and authority to own, lease and
operate its properties and to conduct its business as described
in the Offering Memorandum. Each of the Subsidiaries that is a
limited partnership is duly qualified or registered to do
business as a foreign limited partnership and is in good
standing in each jurisdiction or place where the nature of its
properties or the conduct of its business requires such
registration or qualification, except where the failure to so
register or qualify does not have a material adverse effect on
the condition, financial or otherwise, business, properties, net
worth or result of the operations of ICP-IV and the Subsidiaries
taken as a whole. Each of the Subsidiaries that is a corporation
has been duly organized and is validly existing as a corporation
in good standing under the laws of the state of its
incorporation, with full power and authority to own, lease and
operate its properties and to conduct its business as described
in the Offering Memorandum. Each of the Subsidiaries that is a
corporation is duly qualified to do business as a foreign
corporation and is in good standing in each jurisdiction or
place where the nature of its properties or the conduct of its
business requires such registration or qualification, except
where the failure to so register or qualify does not have a
material adverse effect on the condition, financial or
otherwise, business, properties, net worth or result of the
operations of ICP-IV and the Subsidiaries taken as a whole.
(vi) Capitalization. ICP-IV has the authorized
capitalization as set forth in the Offering Memorandum under the
caption "Capitalization." All of the issued partnership
interests of ICM-IV and ICP-IV have been duly and validly
authorized and issued. All of the issued partnership interests
of each of ICP-IV's Subsidiaries that is a limited partnership
have been duly and validly authorized and issued. ICP-IV owns
directly or indirectly such partnership interests of each of
ICP-IV's Subsidiaries that is a limited partnership as set forth
in the Offering Memorandum. All of the issued shares of capital
stock of each of ICP-IV's Subsidiaries that is a corporation
have been duly and validly authorized and issued and are fully
paid and non-assessable and, to such counsel's knowledge, are
free and clear of any preemptive or similar rights. Except for
directors' qualifying shares, ICP-IV owns directly or indirectly
such shares of capital stock of each of ICP-IV's Subsidiaries
that is a corporation as set forth in the Offering Memorandum;
(vii) No Existing Defaults. Except as specifically
described in the Offering Memorandum, neither of the Issuers nor
any of the Subsidiaries: (i) to such counsel's knowledge is in
violation of its partnership agreement, charter or bylaws, as
applicable; (ii) to such counsel's knowledge, is in default in
any material respect, and such counsel's
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knowledge, no event has occurred that, with notice or lapse of
time, or both, would constitute such a default, in the due
performance or observance of any term, covenant or condition
contained in any of the agreements certified to such counsel as
the material agreements of the Issuers (the "Material
Agreements") to which it is a party or by which it is bound or
to which any of its properties or assets is subject; or (iii) to
such counsel's knowledge, is in violation in any material
respect of any law, ordinance, governmental rule, regulation or
court decree to which it or its property or assets may be
subject, which in the cases of clauses (ii) and (iii), violation
or default would have or could reasonably be expected to have a
material adverse effect on the condition, financial or
otherwise, business, properties, net worth or results of
operations of the Issuers and Subsidiaries taken as a whole;
provided, however, that such counsel need not express any
opinion regarding FCC laws or regulations (or similar laws or
regulations) or local franchise authority licenses, consent,
permits or ordinances;
(viii) Absence of Proceedings. Except as set forth in
the Offering Memorandum, to such counsel's knowledge, there is
no action, suit or proceeding before or by any court or
governmental agency or body, domestic or foreign, now pending or
threatened against or affecting ICP-IV or any of the
Subsidiaries, that might result in any material adverse change
in the condition, financial or otherwise, earnings, affairs or
business of ICP-IV or any of the Subsidiaries taken as a whole,
or might materially and adversely affect the properties or
assets thereof or might materially and adversely affect the
offering of the Notes;
(ix) Authority of Each of the Issuers. Each of the
Issuers has all of the requisite power and authority to execute
and deliver each of the agreements set forth on Annex VI hereto
(the "Opinion Agreements") to which it is a party and to perform
its obligations thereunder;
(x) Authorization of this Purchase Agreement. This
Purchase Agreement has been duly authorized, executed and
delivered by each of the Issuers and (assuming due
authorization, execution and delivery by the Initial Purchasers)
constitutes a valid and binding agreement of each of the Issuers
enforceable against each of them in accordance with its terms,
subject to the effects of bankruptcy, insolvency,
reorganization, receivership, conservatorship, arrangement,
moratorium or other laws affecting or relating to the rights of
creditors generally, and the rules governing the availability of
specific performance, injunctive relief or other equitable
remedies and general principles of equity, regardless of whether
considered in a proceeding in equity or at law, or an implied
covenant of good faith and fair dealing and the effect of any
provisions for indemnification against claims arising under
provisions of applicable securities laws;
(xi) Authorization of the Indenture. The Indenture
has been duly authorized, executed and delivered by each of the
Issuers and (assuming due authorization, execution and delivery
of the Indenture by the Trustee) constitutes a valid and binding
agreement of each of the Issuers enforceable against each of
them in accordance with its terms, subject to the effects of
bankruptcy, insolvency, reorganization, receivership,
conservatorship, arrangement, moratorium or other laws affecting
or relating to the rights of creditors generally, and the rules
governing the availability of specific performance, injunctive
relief or other equitable remedies and general principles of
equity, regardless of whether considered in a proceeding in
equity or at law, or an implied covenant of good faith and fair
dealing;
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(xii) Authorization of the Notes. The Notes have been
duly authorized by each of the Issuers and (assuming due
execution, authentication, issuance and delivery by each of the
Issuers as provided in the Indenture, and assuming due
authorization, execution and delivery of the Indenture by the
Trustee) is duly and validly issued and outstanding, and
constitutes valid and binding obligations of each of the Issuers
entitled to the benefits of the Indenture and enforceable in
accordance with their terms, subject to the effects of
bankruptcy, insolvency, reorganization, receivership,
conservatorship, arrangement, moratorium or other laws affecting
or relating to the rights of creditors generally, and the rules
governing the availability of specific performance, injunctive
relief or other equitable remedies and general principles of
equity, regardless of whether considered in a proceeding in
equity or at law, or an implied covenant of good faith and fair
dealing;
(xiii) Authorization of the New Notes. The New Notes
have been duly authorized by each of the Issuers and, when
issued in the Exchange Offer contemplated by the Registration
Rights Agreement, will be duly and validly issued and
outstanding, and will constitute valid and binding obligations
of each of the Issuers entitled to the benefits of the Indenture
and enforceable in accordance with their terms, subject to the
effects of bankruptcy, insolvency, reorganization, receivership,
conservatorship, arrangement, moratorium or other laws affecting
or relating to the rights of creditors generally, and the rules
governing the availability of specific performance, injunctive
relief or other equitable remedies and general principles of
equity, regardless of whether considered in a proceeding in
equity or at law, or an implied covenant of good faith and fair
dealing;
(xiv) Authorization of the Registration Rights
Agreement. The Registration Rights Agreement has been duly
authorized, executed and delivered by each of the Issuers and
(assuming due authorization, execution and delivery by each of
the Initial Purchasers) constitutes a valid and binding
agreement of each of the Issuers enforceable against each of
them in accordance with its terms, subject to the effects of
bankruptcy, insolvency, reorganization, receivership,
conservatorship, arrangement, moratorium or other laws affecting
or relating to the rights of creditors generally, and the rules
governing the availability of specific performance, injunctive
relief or other equitable remedies and general principles of
equity, regardless of whether considered in a proceeding in
equity or at law, or an implied covenant of good faith and fair
dealing and the effect of any provisions for indemnification
against claims outstanding under provisions of applicable
securities laws;
(xv) Authorization of the Pledge Agreement. The
Pledge Agreement has been duly authorized, executed and
delivered by the Issuers and (assuming due authorization,
execution and delivery by each of the other parties thereto)
constitutes a valid and binding agreement of the Issuers
enforceable against each of them in accordance with its terms,
subject to the effects of bankruptcy, insolvency,
reorganization, receivership, conservatorship, arrangement,
moratorium or other laws affecting or relating to the rights of
creditors generally, and the rules governing the availability of
specific performance, injunctive relief or other equitable
remedies and general principles of equity, regardless of whether
considered in a proceeding in equity or at law, or an implied
covenant of good faith and fair dealing.
(xvi) Authorization of the Bank Facility and the Bank
Facility Security Agreements. Each of (A) the Bank Facility has
been duly authorized, executed and delivered by ICP-IV and the
Operating Partnership and (assuming due authorization, execution
and
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delivery by each of the other parties thereto) constitutes a
valid and binding agreement of each of ICP-IV and the Operating
Partnership enforceable against each of them in accordance with
its terms, subject to the effects of bankruptcy, insolvency,
reorganization, receivership, conservatorship, arrangement,
moratorium or other laws affecting or relating to the rights of
creditors generally, and the rules governing the availability of
specific performance, injunctive relief or other equitable
remedies and general principles of equity, regardless of whether
considered in a proceeding in equity or at law, or an implied
covenant of good faith and fair dealing; and (ii) the Bank
Facility Security Agreements has been duly authorized by each of
the Bank Facility Guarantors that is a party thereto, and
(assuming due authorization, execution and delivery of each of
the other parties to each respective Bank Facility Security
Agreement), when duly executed and delivered by each of the Bank
Facility Guarantors that is a party thereto, will constitute a
valid and binding agreement of each such Bank Facility Guarantor
enforceable against each of them in accordance with its terms,
subject to the effects of bankruptcy, insolvency,
reorganization, receivership, conservatorship, arrangement,
moratorium or other laws affecting or relating to the rights of
creditors generally, and the rules governing the availability of
specific performance, injunctive relief or other equitable
remedies and general principles of equity, regardless of whether
considered in a proceeding in equity or at law, or an implied
covenant of good faith and fair dealing.
(xvii) Authorization of the Partnership Agreement.
The Partnership Agreement has been duly authorized, executed and
delivered by each of IP-I and ICM-IV and (assuming due
authorization, execution and delivery by each of the other
parties thereto) constitutes a valid and binding agreement of
each of IP-I and ICM-IV, enforceable against each of IP-I and
ICM-IV in accordance with its terms, subject to the effects of
bankruptcy, insolvency, reorganization, receivership,
conservatorship, arrangement, moratorium or other laws affecting
or relating to the rights of creditors generally, and the rules
governing the availability of specific performance, injunctive
relief or other equitable remedies and general principles of
equity, regardless of whether considered in a proceeding in
equity or at law, or an implied covenant of good faith and fair
dealing;
(xviii) Authorization of the Subscription Agreements.
Each of the Subscription Agreements has been duly authorized,
executed and delivered by ICM-IV and (assuming due
authorization, execution and delivery by each of the other
parties thereto) constitutes a valid and binding agreement of
ICM-IV, enforceable against ICM-IV in accordance with its terms,
subject to the effects of bankruptcy, insolvency,
reorganization, receivership, conservatorship, arrangement,
moratorium or other laws affecting or relating to the rights of
creditors generally, and the rules governing the availability of
specific performance, injunctive relief or other equitable
remedies and general principles of equity, regardless of whether
considered in a proceeding in equity or at law, or an implied
covenant of good faith and fair dealing;
(xix) Authorization of Acquisition Agreements. Each
of the Acquisition Agreements set forth on Annex III attached
hereto has been duly authorized, executed and delivered by
ICP-IV or, where applicable, each Subsidiary that is a party
thereto, and (assuming due authorization, execution and delivery
by each of the other parties thereto) constitutes a valid and
binding agreement of each of ICP-IV or its Subsidiaries, as
applicable, subject to the effects of bankruptcy, insolvency,
reorganization, receivership, conservatorship, arrangement,
moratorium or other laws affecting or relating to the rights of
creditors generally, and the rules governing the availability of
specific performance, injunctive relief
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or other equitable remedies and general principles of equity,
regardless of whether considered in a proceeding in equity or at
law, or an implied covenant of good faith and fair dealing.
(xx) No Conflicts. The execution, delivery and
performance of each of the Opinion Agreements by each of the
Issuers that is a party thereto, and the issuance,
authentication, sale and delivery of the Notes, and compliance
with the terms thereof, and the consummation of the transactions
contemplated thereby, will not conflict with or result in a
material breach or violation of any of the terms or provisions
of, or constitute a default under, any of the Material
Agreements, nor will such actions result in any violation of the
provisions of the partnership agreement, charter or by-laws, as
applicable, of either of the Issuers or any of the Subsidiaries
or any statute or any order, rule or regulation (other than
ordinances and regulations of counties and political
subdivisions thereof) known to such counsel of any court or
governmental agency or body having jurisdiction over either of
the Issuers or any of the Subsidiaries or any of their
properties or assets, which default or violation would have or
could reasonably be expected to have a material adverse effect
on ICP-IV and its Subsidiaries taken as a whole; and, except for
such consents, approvals, authorizations, registrations or
qualifications as may be required under the applicable state
securities laws in connection with the purchase and distribution
of the Notes by the Initial Purchasers, no consent, approval,
authorization or order of, or filing (other than filings solely
for information purposes or to obtain action that is not the
subject of governmental discretion) or registration with, any
such court or governmental agency or body is required for the
execution, delivery and performance of any of the Opinion
Agreements by each of the Issuers and the consummation of the
transactions contemplated thereby;
(xxi) Different Class of Securities. No securities of
the Issuers of the same class (within the meaning of Rule
144A(d)(3) under the Securities Act) as the Notes are listed on
any national securities exchange registered under Section 6 of
the Exchange Act or quoted on an automated interdealer quotation
system; and
(xxii) Board of Governors of the Federal Reserve
Regulation. Neither the issuance or sale of the Notes nor the
application of the proceeds thereof by each of the Issuers as
set forth in the Offering Memorandum will violate Regulations G,
T, U or X of the Board of Governors of the Federal Reserve
System or analogous foreign laws and regulations.
In rendering such opinion, such counsel will opine as to the of
laws of the State of New York, the State of California, the General
Corporate Law of the State of Delaware or the laws of the United
States, and may rely as to matters of fact, to the extent it deems
proper, on certificates of responsible Officers of the Issuers and
public officials.
(h) Dow, Lohnes & Albertson shall have furnished to the Initial
Purchasers its written opinion, as regulatory counsel to the Issuers,
addressed to you and dated the Closing Date, in form and substance
satisfactory to the Initial Purchasers, to the effect that:
(i) No approval of the FCC is required in connection with
the issuance and sale of the Notes;
(ii) The execution and delivery and performance of each of
the Transaction Documents, the issuance of the Notes, the actions
contemplated by the Indenture and the Offering described in the
Offering Memorandum do not violate any statute, regulation or
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other law of the United States relating specifically to the cable
communications industry (except as otherwise explicitly set forth in
the Offering Memorandum) or, to such counsel's knowledge, any order,
judgement or decree of any court or governmental body of the United
States relating specifically to the cable communications industry and
applicable to each of the Issuers and each of the Subsidiaries and
which violation would have or could be reasonably expected to have a
material adverse effect on the business or financial condition of the
Issuers and the Subsidiaries taken as a whole;
(iii) The statements in the Offering Memorandum under the
captions "Risk Factors--Competition in Cable Television Industry; Rapid
Technological Change," "Risk Factors--Regulation of the Cable
Television Industry," "Business--Competition" and "Legislation and
Regulation," insofar as such statements constitute a summary of legal
matters, documents, statutes, regulations or proceedings referred to
therein, are accurate in all material respects; and
(iv) Such counsel does not know of any proceedings pending
before the FCC to which the Issuers or any of the Subsidiaries is a
party or involving the cable communications properties, licenses or
authorizations of the Issuers and the Subsidiaries, or of any cable
communications law or regulation relevant thereto required to be
described in the Offering Memorandum that is not described therein.
In rendering such opinion, such counsel may rely (A) as to
matters of law, solely on the 1934 Communications Act, the 1984 Cable Act, the
1992 Cable Act, the 1996 Act, and the rules and regulations of the FCC. Such
counsel need not conduct an independent field investigation of each of the
Issuers' and each of the Subsidiaries' cable systems, and need not examine the
actual day-to-day operations of such systems; and (B) as to the matters of fact,
to the extent it deems proper, on certificates of responsible Officers of the
Issuers and public officials. Such counsel shall also have furnished to the
Initial Purchasers a written statement, addressed to the Initial Purchasers and
dated the Closing Date, in form and substance satisfactory to the Initial
Purchasers, to the effect that based on the foregoing, no facts have come to the
attention of such counsel in preparing the opinions set forth in clauses (i)
through (iv) above that leads it to believe that the sections entitled "Risk
Factors--Competition in Cable Television Industry; Rapid Technological Change,"
"Risk Factors--Regulation of the Cable Television Industry,"
"Business--Competition" and "Legislation and Regulation" in the Preliminary
Memorandum or the Final Memorandum, as of their respective dates and as of the
Closing Date, contained or contains any untrue statement of a material fact or
omitted or omits to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(i) Bruce J. Stewart, Esq. shall have furnished to the Initial Purchasers
his written opinion, as General Counsel of each of the Issuers, addressed to you
and dated the Closing Date, in form and substance satisfactory to the Initial
Purchasers, to the effect that:
(i) Title to Property. ICP-IV and each of the Subsidiaries
has good and marketable title in fee simple to all material real
property and good and marketable title to all material personal
property owned by it, in each case free and clear of all liens,
encumbrances and defects except (i) those incurred to secure
obligations under workers' compensation, social security or
similar laws, or under employment insurance, (ii) minor
imperfections of title on real estate, provided such
imperfections do not render title unmarketable, (iii) that do
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not materially adversely affect the value of such property to
ICP-IV and its Subsidiaries taken as a whole, and do not
interfere with the use made and proposed to be made of such
property by ICP-IV or such Subsidiary to an extent that such
interference would have a material adverse effect on ICP-IV
and its Subsidiaries taken as a whole; (iv) that arise in the
ordinary course of business in favor of landlords of real
property leases to the extent of assets of ICP-IV or a
Subsidiary actually located on the premises, (v) arising out
of the Bank Facility Security Agreements, (vi) arising out of
the TCIC Loan, (vii) the TCIC Pledge Agreement, (viii) arising
out of the BA Loan and (ix) arising out of the Pledge
Agreement. All Material real property and buildings held under
lease by either of the Issuers or any of the Subsidiaries are
held by them under valid, subsisting and enforceable leases,
with such exceptions as are not material and do not interfere
with the use made and proposed to be made of such property and
buildings by ICP-IV or any of the Subsidiaries;
(ii) Possession of Licenses and Permits. Each of the
Issuers and each of the Subsidiaries possesses, or will
possess as of the respective consummations of each of the
Acquisitions, such certificates, authorizations or permits
issued by the appropriate state, federal or foreign regulatory
agencies or bodies that are necessary to conduct the business
now operated by them or will be operated by them following the
completion of the Acquisitions in the manner described in the
Offering Memorandum, including but not limited to FCC, state
or local franchise authority licenses, consents, permits or
ordinances, except where the failure to possess such
certificates, authorizations or permits would not have a
material adverse effect on the consolidated financial
position, stockholders (if applicable), equity, results of
operations or business of either of the Issuers or any of the
Subsidiaries and neither of the Issuers nor any of the
Subsidiaries has received any notice of proceedings relating
to the revocation or modification of any such certificate,
authorization or permit which, singularly or in the aggregate,
if the subject of an unfavorable decision, ruling, or finding,
would have a material adverse effect on the consolidated
financial position, stockholders (if applicable), equity,
results of operations or business of either of the Issuers or
any of the Subsidiaries; and
(iii) Absence of Proceedings. Except as set forth in
the Offering Memorandum, to such counsel's knowledge there is
no action, suit or proceeding before or by any court or
governmental agency or body, domestic or foreign, now pending
or, to the knowledge of the Issuers, threatened against or
affecting ICP-IV or any of the Subsidiaries, which might
result in any material adverse change in the condition,
financial or otherwise, earnings, affairs or business of
ICP-IV or any of the Subsidiaries considered as a whole, or
might materially and adversely affect the properties or assets
thereof or might materially and adversely affect the offering
of the Notes.
(iv) Orders, Writs or Decrees. To such counsel's
knowledge, there is no state or local franchise authority
order, writ, injunction or decree that has been issued against
the ongoing operations of any of ICP-IV's or any of the
Subsidiaries' cable television systems, nor is such counsel
aware of any state or local franchise authority action, suit
or proceeding against any of such systems.
In rendering such opinion, such counsel may: (A)
state that his opinion is limited to matters governed by the laws of
the United States and the laws of the State of New York, the State of
California, the State of Tennessee, the State of Kentucky, the State of
South Carolina and the State
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of Georgia, and may assume that the respective local laws of each such
state are the same or similar to the laws of the State of New York; and
(B) in giving the opinion referred to in Section 6(j)(i), state that no
examination of record titles for the purpose of such opinion has been
made, and that he is relying upon a general review of the titles of
each of the Issuers and each of the Subsidiaries, and abstracts,
reports and policies of title companies rendered or issued at or
subsequent to the time of acquisition of such property by either of the
Issuers, or any of the Subsidiaries, and, in respect of matters of
fact, upon certificates of the appropriate representatives of either of
the Issuers or any of the Subsidiaries, provided that such counsel
shall state that it believes that both the Initial Purchasers and such
counsel are justified in relying upon such abstracts, reports, policies
and certificates. Such counsel shall also have furnished to the Initial
Purchasers a written statement, addressed to the Initial Purchasers and
dated the Closing Date, in form and substance satisfactory to the
Initial Purchasers, to the effect that (x) such counsel is the General
Counsel of each of the Issuers, and (y) based on the foregoing, no
facts have come to the attention of such counsel that leads him to
believe that the Preliminary Memorandum, as of its date, the
Supplement, as of its date, or the Final Memorandum, as of its date and
as of the Closing Date, contained or contains any untrue statement of a
material fact or omitted or omits to state a material fact required to
be stated therein or necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading.
(j) The Initial Purchasers shall have received from Latham &
Watkins such opinion or opinions, dated the Closing Date, with respect
to the issuance and sale of the Notes, the Final Memorandum (as amended
or supplemented as the Closing Date) and other related matters as the
Initial Purchasers may reasonably require, and the Issuers shall have
furnished to Latham & Watkins such documents as it requests for the
purpose of enabling it to pass upon such matters.
(k) ICP-IV shall have furnished to the Initial Purchasers a
certificate, signed by its Managing General Partner, dated the Closing
Date, to the effect that the signer of such certificate has carefully
examined the Final Memorandum, any amendment or supplement to the Final
Memorandum and this Purchase Agreement and that:
(i) The representations and warranties of ICP-IV in
this Purchase Agreement are true and correct in all material
respects on and as of the Closing Date with the same effect as
if made on the Closing Date, and ICP-IV has complied with all
the agreements contained herein and satisfied all the
conditions set forth in Section 6 hereof at or prior to the
Closing Date;
(ii) Since the date of the most recent financial
statements included in the Final Memorandum, there has been no
material adverse change in the condition (financial or
otherwise), earnings, business or properties of ICP-IV and
each of the Subsidiaries, whether or not arising from
transactions in the ordinary course of business, except as set
forth in or contemplated by the Final Memorandum (exclusive of
any amendment or supplement thereto); and
(iii) (A) as of the date hereof, the Final Memorandum
did not include any untrue statement of a material fact and
did not omit to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading, and (B) since such date no event has occurred that
should have been set forth in a supplement or amendment to the
Final Memorandum.
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(l) IPCC shall have furnished to the Initial Purchasers a
certificate, signed by an Officer of IPCC, dated the Closing Date, to
the effect that the signer of such certificate has carefully examined
the Final Memorandum, any amendment or supplement to the Final
Memorandum and this Purchase Agreement and that:
(i) The representations and warranties of IPCC in
this Purchase Agreement are true and correct in all material
respects on and as of the Closing Date with the same effect as
if made on the Closing Date, and IPCC has complied with all
the agreements contained herein and satisfied all the
conditions set forth in Section 6 at or prior to the Closing
Date;
(ii) Since the date of the most recent financial
statements included in the Final Memorandum, there has been no
material adverse change in the condition (financial or
otherwise), earnings, business or properties of ICP-IV and
each of the Subsidiaries, whether or not arising from
transactions in the ordinary course of business, except as set
forth in or contemplated by the Final Memorandum (exclusive of
any amendment or supplement thereto); and
(iii) (A) as of the date hereof, the Final Memorandum
did not include any untrue statement of a material fact and
did not omit to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading, and (B) since such date no event has occurred that
should have been set forth in a supplement or amendment to the
Final Memorandum.
(m) On the date hereof, each of Price Waterhouse LLP, San
Francisco, Price Waterhouse LLP, San Jose, KPMG Peat Marwick, LLP and
Ernst & Young, LLP shall have furnished to the Initial Purchasers a
comfort letter and dated respectively as of the Execution Time, in form
and substance satisfactory to the Initial Purchasers as previously
agreed, and on the Closing Date shall have furnished to the Initial
Purchasers a bring-down comfort letter dated as of the Closing Date, in
form and substance satisfactory to the Initial Purchasers as previously
agreed.
(n) Subsequent to the Execution Time or, if earlier, the dates
as of which information is given in the Final Memorandum, there shall
not have been: (i) any change or decrease specified in the letter or
letters referred to paragraph (m) of this Section 6 or (ii) any change
or any development involving a prospective change, in or affecting the
business or properties of ICP-IV or any of the Subsidiaries, the effect
of which, in any case referred to in clause (i) or (ii) above, is, in
the judgment of the Initial Purchasers, so material and adverse as to
make it impractical or inadvisable to market the Notes as contemplated
by the Final Memorandum.
(o) At the Closing Date, after giving effect to the
consummation of the transactions contemplated by this Purchase
Agreement, the Registration Rights Agreement and the Indenture, there
shall exist no default or event of default pursuant to the Indenture or
the Bank Facility.
(p) Except as otherwise set forth in the Offering Memorandum
or such as are not material to the assets, properties, business,
results of operations or condition (financial or otherwise) of each of
the Issuers, at the Closing Date, each of the Issuers shall have good
and marketable title, free and clear of all liens, claims, encumbrances
and restrictions, except liens for taxes not yet due and payable, to
all property and assets described in the Offering Memorandum as being
owned by it. With such exceptions as do not materially interfere with
the use made by each of the Issuers, at the Closing Date, all leases to
which any of the Issuers and the Subsidiaries is a party shall be valid
and binding,
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no default will have occurred or be continuing thereunder, and each of
the Issuers and the Subsidiaries will enjoy peaceful and undisturbed
possession under all such leases to which it is a party as a lessee.
(q) (i) Neither of the Issuers nor any of the Subsidiaries
shall have sustained, since the date of the latest audited financial
statements thereof included in the Offering Memorandum, any loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Offering Memorandum or (ii)
since such date, there shall not have been any change in the equity or
long-term debt of either of the Issuers or any of the Subsidiaries or
any change, or any development involving a prospective change, in or
affecting the general affairs, management, financial position,
stockholders (if applicable), equity, or results of operations of
either of the Issuers or any of the Subsidiaries, otherwise than as set
forth or contemplated in the Offering Memorandum, the effect of which,
in any case described in clause (i) or (ii), is, in the judgment of the
Initial Purchasers, so material and adverse as to make it impracticable
or inadvisable to proceed with the Offering or the delivery of the
Notes on the terms and in the manner contemplated in the Offering
Memorandum.
(r) Between the Execution Time and the Closing Date, there
shall not have been any decrease in the rating of any of ICP-IV's debt
securities by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 486(g) under the
Securities Act) or any notice given by such rating agency, of any
intended or potential decrease in any such rating or of a possible
change in any such rating that does not indicate the direction of the
possible change.
(s) Subsequent to the execution and delivery of this Purchase
Agreement, there shall not have occurred any of the following: (i)
trading in securities generally on the New York Stock Exchange or the
American Stock Exchange or in the over-the-counter market, or trading
in any securities of either of the Issuers on any exchange or in the
over-the-counter market, shall have been suspended or minimum prices
shall have been established on any such exchange or such market by the
Commission, by such exchange or by any other regulatory body or
governmental authority having jurisdiction; (ii) a banking moratorium
shall have been declared by Federal or state authorities; (iii) the
United States shall have become engaged in hostilities, there shall
have been an escalation in hostilities involving the United States or
there shall have been a declaration of a national emergency or war by
the United States; or (iv) there shall have occurred such a material
adverse change in general economic, political or financial conditions
(or the effect of international conditions on the financial markets in
the United States shall be such) as to make it, in the judgment of a
majority in interest of the several Initial Purchasers, impracticable
or inadvisable to proceed with the offering or delivery of the Notes on
the terms and in the manner contemplated in the Offering Memorandum.
(t) Prior to the Closing Date, ICP-IV shall have furnished to
the Initial Purchasers such other information, certificates and
documents as the Initial Purchasers may reasonably request.
If any of the conditions specified in this Section 6 shall not
have been fulfilled in all material respects when and as provided in this
Purchase Agreement, or if any of the opinions and certificates mentioned above
or elsewhere in this Purchase Agreement shall not be in all material respects
reasonably satisfactory in form and substance to the Initial Purchasers and
Counsel for the Initial Purchasers, this Purchase Agreement and all obligations
of the Initial Purchasers hereunder may be canceled at, or at any time prior to,
the Closing Date by the Initial Purchasers. Notice of such cancellation shall be
given the Issuers in writing or by telephone or telegraph confirmed in writing.
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The documents required to be delivered by this Section 6 shall
be delivered at the offices of Pillsbury Madison & Sutro LLP, 235 Montgomery
Street, San Francisco, California 94104, on the Closing Date.
7. Payment and Reimbursement of Expenses.
(a) Each of the Issuers agrees to pay the fees, disbursements
and out-of-pocket costs: (i) incident to the authorization, issuance,
sale and delivery of the Notes and any taxes payable in that
connection, (ii) incident to the preparation and printing of the
Offering Memorandum and any amendments or supplements thereto, (iii) of
distributing the Offering Memorandum and any amendments or supplements
thereto, (iv) of reproducing and distributing this Purchase Agreement,
the Registration Rights Agreement and the Indenture, (v) the costs
incident to the preparation, printing and delivery of the certificates
representing the Notes, including but not limited to capital duties and
stamp duties, payable upon issuance of any of the Notes, (vi) of each
of the Issuers' counsel and accountants, (vii) charged by rating
agencies for rating the Notes, (viii) of qualifying the Notes under
securities laws of the several jurisdictions as provided in Section
5(h) hereof and of preparing, printing and distributing a Blue Sky
memorandum (including related fees and expenses of counsel to the
Initial Purchasers), (ix) of the Trustee and any paying agent
(including related fees and expenses of their respective counsel), (x)
in connection with the application for quotation of the Notes on the
PORTAL market, (xi) each of the Issuers (including reasonable fees and
expenses of counsel) of in connection with approval of the Notes by DTC
for "book-entry" transfer, and (xii) all other reasonable costs and
expenses incident to the performance of each of the Issuers'
obligations hereunder that are not otherwise specifically provided for
in this section.
(b) If the sale of the Notes provided for herein is not
consummated because any condition to the obligations of the Initial
Purchasers set forth in Section 6 hereof is not satisfied, because of
any termination pursuant to Section 10 hereof or because of any
refusal, inability or failure on the part of either of the Issuers to
perform any agreement herein or comply with any provision hereof other
than by reason of default by any of the Initial Purchasers in payment
for the Notes on the Closing Date, the Issuers shall reimburse the
Initial Purchasers severally upon demand for all out-of-pocket expenses
(including reasonable fees and disbursements of counsel) that shall
have been incurred by them in connection with the proposed purchase and
sale of the Notes.
8. Indemnification and Contribution.
(a) The Issuers jointly and severally agree to indemnify and
hold harmless each Initial Purchaser, the directors, officers,
employees and agents of each Initial Purchaser and each person who
controls either Initial Purchaser within the meaning of either the
Securities Act or the Exchange Act against any and all losses, claims,
damages or liabilities, joint or several, to which
they or any of them may become subject under the Securities Act, the
Exchange Act or other Federal or state statutory law or regulation, at
common law or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereto arise out of or are based
upon any untrue statement or alleged untrue statement of a material
fact contained in the Preliminary Memorandum, the Final Memorandum or
any information provided by the Issuers to any holder or prospective
purchaser of Notes pursuant to Section 5(f) hereof, or in any amendment
or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein 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 agree to reimburse each such indemnified party, as incurred, for
any legal or other expenses reasonably incurred by it in connection
with investigating or defending any
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such loss, claim, damage, liability or action; provided, however, that
the Issuers shall not be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon
any such untrue statement or alleged untrue statement or omission or
alleged omission made in the Offering Memorandum, or in any amendment
thereof or supplement thereto, in reliance upon and conformity with
written information furnished to the Issuers by or on behalf of any
Initial Purchasers specifically for inclusion therein. The foregoing
indemnity with respect to any untrue statement contained in or any
omission from the Preliminary Memorandum shall not inure to the benefit
of any Initial Purchaser (or any director, officer, employee or agent
of such Initial Purchaser or any person controlling such Initial
Purchaser) from whom the person asserting any such loss, claim, damage
or liability purchased any of the Notes that are the subject thereof if
the Issuers shall sustain the burden of proving that such person was
not sent or given a copy of the Final Memorandum (or the Final
Memorandum as amended or supplemented) at or prior to the written
confirmation of the sale of such Notes to such person and the untrue
statement contained in and the omission from the Preliminary Memorandum
was corrected in the Final Memorandum (or in the Final Memorandum as
amended or supplemented). This indemnity agreement shall be in addition
to any liability that the Issuers may otherwise have.
(b) Each Initial Purchaser, severally and not jointly, agrees
to indemnify and hold harmless the Issuers, their partners, directors,
officers, and each person who controls the Issuers within the meaning
of either the Securities Act or the Exchange Act, to the same extent as
the foregoing indemnity from the Issuers to each Initial Purchaser, but
only with reference to written information relating to such Initial
Purchaser furnished to the Issuers by or on behalf of such Initial
Purchaser specifically for inclusion in the Offering Memorandum (or in
any amendment or supplement thereto). This indemnity agreement shall be
in addition to any liability that any Initial Purchaser may otherwise
have. The Issuers acknowledge that the statements set forth in the last
paragraph of the cover page and under the heading "Plan of
Distribution" in the Offering Memorandum constitute the only
information furnished in writing by or on behalf of the Initial
Purchasers for inclusion in the Offering Memorandum (or any amendment
or supplement thereto).
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 8, notify the indemnifying party
in writing of the commencement thereof; but the failure so to notify
the indemnifying party: (i) shall not relieve it from liability under
paragraph (a) or (b) of this Section 8 unless and to the extent it did
not otherwise learn of such action and such failure results in the
forfeiture by the indemnifying party of substantial rights and defenses
and (ii) shall not, in any event, relieve the indemnifying party from
any obligations to any indemnified party other than the indemnification
obligation provided in paragraph (a) or (b) of this Section 8. The
indemnifying party shall be entitled to appoint counsel of the
indemnifying party's choice at the indemnifying party's expense to
represent the indemnified party in any action for which indemnification
is sought (in which the indemnifying party shall not thereafter be
responsible for the fees and expense of any separate counsel retained
by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be satisfactory to the
indemnified party. Notwithstanding the indemnifying party's election to
appoint counsel to represent the indemnified party in an action, the
indemnified party shall have the right to employ separate counsel
(including local counsel), and the indemnifying party shall bear the
reasonable fees, costs and expenses of such separate counsel if: (i)
the named parties to any such action, claim or proceeding (including
any impleaded parties) include both the indemnifying party and the
indemnified party; and such indemnified party shall have been advised
in writing by counsel that a conflict of interest may exist if such
counsel represents such indemnified party and the indemnifying party;
(ii) the actual or
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potential defendants in, or targets of, any such action include both
the indemnified party and the indemnifying party and the indemnified
party shall have reasonably concluded that there may be legal defenses
available to it and/or other indemnified parties that are different
from or additional to those available by the indemnifying party; (iii)
the indemnifying party shall not have employed counsel satisfactory to
the indemnified party to represent the indemnified party within a
reasonable time after notice of the institution of such action; or (iv)
the indemnifying party shall authorize the indemnified party to employ
separate counsel at the expense of the indemnifying party. An
indemnifying party shall not, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of
any judgement with respect to any pending or threatened claim, action,
suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified parties are
actual or potential parties to such claim or action) unless such
settlement compromise or consent includes an unconditional release of
each indemnified party from all liability arising out of such claim,
action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a)
or (b) of this Section 8 is unavailable to or insufficient to hold
harmless an indemnified party for any reason, the Issuers and the
Initial Purchasers agree to contribute the aggregate loss, claim,
damages and liabilities (including legal or other expenses reasonably
incurred in connection with investigating or defending same)
(collectively, "Losses") to which the Issuers and one or more of the
Initial Purchasers may be subject in such proportion as is appropriate
to reflect the relative benefits received by the Issuers and by the
Initial Purchasers from the offering of the Notes; provided, however,
that in no case shall any Initial Purchaser (except as may be provided
in any agreement among the Initial Purchasers relating to the offering
of the Notes) be responsible for any amount in excess of the purchase
discount or commission applicable to the Notes purchased by such
Initial Purchaser hereunder. If the allocation provided by the
immediately preceding sentence is unavailable for any reason, the
Issuers and the Initial Purchasers shall contribute in such proportion
as is appropriate to reflect not only such relative benefits but also
the relative fault of the Issuers and of the Initial Purchasers in
connection with the statements or omissions that resulted in such
losses as well as any other relevant equitable considerations. Benefits
received by the Issuers shall be deemed to be equal to the total net
proceeds from the offering (before deducting expenses), and benefits
received by the Initial Purchasers shall be deemed to be equal to the
total purchase discounts and commissions received by the Initial
Purchasers from the Issuers in connection with the purchase of the
Notes hereunder. Relative fault shall be determined by reference to
whether any alleged untrue statement or omission relates to information
provided by the Issuers or the Initial Purchasers. The Issuers and the
Initial Purchasers agree that it would not be just and equitable if
contribution were determined by pro rata allocation or any other method
of allocation that does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of
this paragraph (d), 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 Section 8, each
person who controls an Initial Purchaser within the meaning of either
the Securities Act or the Exchange Act and each director, officer,
employee and agent of an Initial Purchaser shall have the same rights
to contribution as such Initial Purchaser, and each person who controls
the Issuers within the meaning of either the Securities Act or the
Exchange Act and each partner, officer and director of the Issuers
shall have the same rights to contribution as the Issuers, subject in
each case to the applicable terms and conditions of this paragraph (d).
9. Default by an Initial Purchaser. If any one or more Initial
Purchasers shall purchase and pay for any of the Notes agreed to be purchased by
such Initial Purchaser hereunder and such failure to purchase shall constitute a
default in the performance of its or their obligations under this Purchase
Agreement, the
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remaining Initial Purchasers shall be obligated severally to take up and pay for
(in the respective proportions that the principal amount of Notes set forth
opposite their names in Schedule I hereto bears to the aggregate principal
amount of Notes set forth opposite the name of all the remaining Initial
Purchasers) the Notes that the defaulting Initial Purchaser or Initial
Purchasers agreed but failed to purchase; provided, however, that in the event
that the aggregate principal amount of Notes that the defaulting Initial
Purchaser or Initial Purchaser agreed but failed to purchase shall exceed 10% of
the aggregate principal amount of Notes set forth in Annex IV hereto, the
remaining Initial Purchasers shall have the right to purchase all, but shall not
be under any obligation to purchase any, of the Notes, and if such
non-defaulting Initial Purchasers do not purchase all the Notes, this Purchase
Agreement shall terminate without liability to any non-defaulting Initial
Purchaser or the Issuers. In the event of a default by any Initial Purchaser as
set forth this Section 9, the Closing Date shall be postponed for such period,
not exceeding seven days, as the Initial Purchasers shall determine in order
that the required changes in the Final Memorandum or in any other documents or
arrangements may be effected. Nothing contained in this Purchase Agreement shall
relieve any defaulting Initial Purchaser of its liability, if any, to the
Issuers or any non-defaulting Initial Purchaser for damages occasioned by its
default hereunder.
10. Termination.
(a) This Purchase Agreement shall be subject to termination in
the absolute discretion of the Initial Purchasers, by notice given to
the Issuers prior to delivery of and payment for the Notes, if prior to
such time: (i) trading in securities generally on the New York Stock
Exchange shall have been suspended or limited or minimum prices shall
have been established on such exchange; (ii) a banking moratorium shall
have been declared either by Federal or New York State authorities; or
(iii) there shall have occurred any outbreak or escalation of
hostilities, declaration by the United States of a national emergency
or war or other calamity or crisis the effect of which on financial
markets is such as to make it, in the judgment of the Initial
Purchasers, impracticable or inadvisable to proceed with the Offering
or delivery of the Notes as contemplated by the Final Memorandum.
(b) If either of the Issuers shall fail to tender the Notes
for delivery to the Initial Purchasers for any reason permitted under
this Purchase Agreement or the Initial Purchasers shall decline to
purchase the Notes for any reason permitted under this Purchase
Agreement (including the termination of this Purchase Agreement
pursuant to Section 10(a) hereof), each of the Issuers shall reimburse
the Initial Purchasers for the reasonable fees and expenses of their
counsel and for such other out-of-pocket expenses as shall have been
incurred by them in connection with this Purchase Agreement and the
proposed purchase of the Notes, and upon demand each of the Issuers
shall pay the full amount thereof to the Initial Purchasers.
11. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Issuers or their officers and of the Initial Purchasers set forth in or made
pursuant to this Purchase Agreement shall remain in full force and effect,
regardless of any investigation made by or on behalf of the Initial Purchasers
or the Issuers or any of the officers, directors or controlling persons referred
to in Section 8 hereof, and shall survive delivery of and payment for the Notes.
The provisions of Sections 7 and 8 hereof shall survive the termination or
cancellation of this Purchase Agreement.
12. Notices. Any such statements, requests, notices or agreements shall
take effect at the time of receipt thereof. Each of the Issuers shall be
entitled to act and rely upon any request, consent, notice or agreement given or
made on behalf of the Initial Purchasers by NationsBanc Capital Markets, Inc.
All statements, requests, notices and agreements hereunder shall be in writing,
and:
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(a) if to the Initial Purchasers, shall be delivered or sent
by mail, telex or facsimile transmission to them as follows:
c/o NationsBanc Capital Markets, Inc.
100 North Tryon St., 20th Floor
Charlotte, North Carolina 28255
Attention: J. Scott Holmes
(Fax: 704-386-6453);
with a copy to:
Kirk A. Davenport, Esq.
Latham & Watkins
885 Third Avenue, Suite 1000
New York, New York 10022-4802
(Fax: 212-751-4864);
provided, however, that any notice to an Initial Purchaser pursuant to
Section 8(c) shall be delivered or sent by mail, telex or facsimile
transmission to such Initial Purchaser at,
if to NationsBanc Capital Markets, Inc.:
100 North Tryon Street, 20th Floor
Charlotte, North Carolina 28255
Attention: J. Scott Holmes
(Fax: 704-386-6453);
and if to Toronto Dominion Securities (USA) Inc.:
31 West 52nd Street
New York, New York 10019
Attention: Mark C. Bush
(Fax: 212-586-0631).
with a copy to:
Kirk A. Davenport, Esq.
Latham & Watkins
885 Third Avenue, Suite 1000
New York, New York 10022-4802
(Fax: 212-751-4864);
(b) if to either of the Issuers, shall be delivered or sent by
mail, telex or facsimile transmission to the address of each of the
Issuers as follows,
InterMedia Partners
235 Montgomery Street, Suite 420
San Francisco, California 94104
Attention: Edon V. Hartley
(Fax: 415-397-3978);
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with a copy to:
Gregg F. Vignos, Esq.
Pillsbury Madison & Sutro LLP
235 Montgomery Street
San Francisco, California 94104
(Fax: 415-983-1200).
13. Successors. This Purchase Agreement shall inure to the benefit of
and be binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons thereof referred to in Section 8
hereof, and, except as expressly set forth in Section 5(f) hereof, no other
person shall acquire or have any right or obligation under or by virtue of this
Purchase Agreement.
14. Applicable Law. This Purchase Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
15. Business Day. For purposes of this Purchase Agreement, "business
day" means each Monday, Tuesday, Wednesday, Thursday and Friday that is not a
day on which banking institutions in the City of New York, New York are
authorized or obligated by law, executive order or regulation to close.
16. Counterparts. This Purchase Agreement may be executed in one or
more counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same instrument.
17. Amendments. No amendment or waiver of any provision of this
Purchase Agreement, nor any consent or approval to any departure therefrom,
shall in any event be effective unless the same shall be in writing and signed
by each of the parties hereto.
18. Submission to Jurisdiction. Each of the Issuers hereby irrevocably
and unconditionally:
(a) Submits itself and its property in any legal action or
proceeding relating to this Purchase Agreement, or for recognition and
enforcement of any judgment in respect thereof, to the non-exclusive
jurisdiction of the courts of the State of New York and the courts of
the United States of America for the Southern District of New York, and
appellate courts thereof, and consents and agrees to such action or
proceeding being brought in such courts as you may elect.
(b) Waives any objection that it may now or hereafter have to
the venue of any such action or proceeding in any such court or that
such action or proceeding was brought in an inconvenient court and
agrees not to plead or claim the same.
(c) Designates and directs CSC Networks with offices on the
date hereof at New York, New York, as its agent to receive service of
any and all process and documents on its behalf in any legal action or
proceeding referred to in paragraph (a) of this Section 18 in the State
of New York and agrees that service upon such agent shall constitute
valid and effective service upon each of the Issuers and that failure
of CSC Networks to give any notice of such service to such parties
shall not affect or impair in any way the validity of such service or
of any judgment rendered in any action or proceeding based thereon.
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(d) Agrees to notify each of the Initial Purchasers promptly
by registered or certified mail if any such agent in the City of New
York shall cease to act as agent and, in such event, promptly to
designate another agent in the City of New York to receive service in
place of such agent and deliver to each of the Initial Purchasers
written evidence of such substitute agent's acceptance of such
designation.
(e) Agrees as an alternate means of service to service of
process in any such legal action or proceeding by mailing of copies
thereof (by registered or certified mail, if practicable) postage
prepaid, or by telex, to the then-active agent or each of the Issuers
at the address of each of the Issuers as set forth in Section 12 hereof
or at such other address of which you shall have been notified pursuant
thereto, and agrees that failure to receive such copy or notice shall
not affect or impair the validity of such service or of any judgment
rendered in any action or proceeding based thereon.
(f) Agrees that nothing herein shall affect your right to
effect service of process in any other manner permitted by law, and
that you shall have the right to bring any legal proceedings (including
a proceeding for enforcement of a judgment entered by any of the
aforementioned courts) against either of the Issuers in such courts or
in any other court or jurisdiction in accordance with applicable law.
19. Headings; Title Page and Table of Contents. The headings herein and
the title page and table of contents hereof have been inserted for convenience
of reference only and are not intended to be part of, or affect the meaning or
interpretation of, this Purchase Agreement.
[signature page follows]
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If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this Purchase Agreement and your acceptance shall represent a binding
agreement between the Issuers and the Initial Purchasers.
Very truly yours,
INTERMEDIA CAPITAL PARTNERS IV, L.P.,
a California limited partnership
By: INTERMEDIA CAPITAL MANAGEMENT IV, L.P.,
a California limited partnership,
as general partner of InterMedia Capital
Partners IV, L.P.
By: /s/ Leo J. Hindery, Jr.
-----------------------------------------
Leo J. Hindery, Jr.,
Managing General Partner
INTERMEDIA PARTNERS IV CAPITAL CORP.,
a Delaware corporation
By: /s/ Leo J. Hindery, Jr.
-----------------------------------------
Leo J. Hindery, Jr.,
President
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
NATIONSBANC CAPITAL MARKETS, INC.
By: /s/ Gary Wolfe
------------------------
Gary Wolfe,
Vice President
TORONTO DOMINION SECURITIES (USA) INC.
By: /s/ Gordon Paris
------------------------
Gordon Paris,
Managing Director