1
EXHIBIT 1.2
LIBERTY GROUP PUBLISHING, INC.
1,800,000 Shares
Series A 14 3/4% Senior Redeemable Exchangeable Cumulative Preferred Stock
(Liquidation Preference of $25 per Share)
PURCHASE AGREEMENT
January 20, 1998
XXXXXXXXX, XXXXXX & XXXXXXXX SECURITIES CORPORATION
2
1,800,000 Shares
Series A 14 3/4% Senior Redeemable Exchangeable Cumulative Preferred Stock
(Liquidation Preference of $25 per Share)
of
LIBERTY GROUP PUBLISHING, INC.
PURCHASE AGREEMENT
January 20, 1998
Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Liberty Group Publishing, Inc., a Delaware corporation (the
"Company"), proposes to issue and sell to Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation (the "Initial Purchaser"), subject to the terms and
conditions set forth herein, an aggregate of 1,800,000 shares of Series A
14 3/4% Senior Redeemable Exchangeable Cumulative Preferred Stock, par value
$0.01 per share, with a liquidation preference of $25 per share (the "Series A
Senior Preferred Stock") of the Company, exchangeable, at the option of the
Company, for the Company's 14 3/4% Senior Subordinated Debentures due 2010 (the
"Series A Exchange Debentures"). The Series A Senior Preferred Stock is to be
issued pursuant to a Certificate of Designations of the Company (the
"Certificate of Designations"), to be filed with the Secretary of State of the
State of Delaware on or prior to the Closing Date (as defined below). The
Exchange Debentures will be issued pursuant to an indenture between the Company
and State Street Bank and Trust Company, as trustee (the "Exchange Indenture").
The Series A Senior Preferred Stock and the Exchange Senior Preferred Stock (as
defined below) issuable in exchange therefor are collectively referred to herein
as the "Senior Preferred Stock." The Series A Exchange Debentures and the
Series B Exchange Debentures (as defined below) issuable in exchange therefor
are collectively referred to herein as the "Exchange Debentures." Capitalized
terms used but not defined herein shall have the meanings given to such terms in
the Offering Memorandum (as defined herein).
1. Offering Memorandum. The Series A Senior Preferred Stock
will be offered and sold to the Initial Purchaser pursuant to one or more
exemptions from the
-2-
3
registration requirements under the Securities Act of 1933, as amended (the
"Act"). The Company has prepared an offering memorandum, dated January 15,
1998 as supplemented by the Supplement To Offering Memorandum dated January 20,
1998, including a supplement describing the Senior Preferred Stock, dated
January 20, 1998 (the "Offering Memorandum").
Upon original issuance thereof, and until such time as the same
is no longer required by the Company, the Series A Senior Preferred Stock and
the Series A Exchange Debentures (and all securities (other than the Exchange
Senior Preferred Stock and the Series B Exchange Debentures) issued in exchange
therefor or in substitution thereof) shall bear the following legend:
"THE SECURITIES EVIDENCED HEREBY WERE ORIGINALLY ISSUED IN
A TRANSACTION EXEMPT FROM REGISTRATION UNDER XXXXXXX 0 XX XXX
XXXXXX XXXXXX SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND THE SECURITIES EVIDENCED HEREBY MAY NOT BE OFFERED,
SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION
OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THE
SECURITIES EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER
MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5
OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. THE
HOLDER OF THE SECURITIES EVIDENCED HEREBY AGREES FOR THE BENEFIT
OF THE COMPANY THAT (A) SUCH SECURITIES MAY BE OFFERED, RESOLD,
PLEDGED OR OTHERWISE TRANSFERRED, ONLY (a) INSIDE THE UNITED
STATES TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
144A, (b) OUTSIDE THE UNITED STATES TO A FOREIGN PERSON IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR RULE 904 OF
REGULATION S UNDER THE SECURITIES ACT, (c) IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT,
(d) TO THE COMPANY, (e) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT OR (f) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON
AN OPINION OF COUNSEL IF THE COMPANY SO REQUESTS) AND, IN EACH
CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY
STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION
AND (B) THE HOLDER
-3-
4
WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY
PURCHASER FROM IT OF THE SECURITIES EVIDENCED HEREBY OF THE
RESALE RESTRICTIONS SET FORTH IN (A) ABOVE."
2. Agreements to Sell and Purchase. On the basis of the
representations, warranties and covenants contained in this Agreement, and
subject to the terms and conditions contained herein, the Company agrees to
issue and sell to the Initial Purchaser, and the Initial Purchaser agrees to
purchase from the Company, an aggregate of 1,800,000 shares of Series A Senior
Preferred Stock at a purchase price equal to $25.00 per share (the "Purchase
Price") and the Company will pay the Initial Purchaser a fee equal to $1.25 per
share.
3. Terms of Offering. The Initial Purchaser has advised the
Company that the Initial Purchaser will make offers (the "Exempt Resales") of
the Series A Senior Preferred Stock purchased hereunder on the terms set forth
in the Offering Memorandum, as amended or supplemented, solely to (i) persons
whom the Initial Purchaser reasonably believe to be "qualified institutional
buyers" as defined in Rule 144A under the Act ("QIBs") and (ii) to persons
permitted to purchase the Series A Senior Preferred Stock in offshore
transactions in reliance upon Regulation S under the Act (each, a "Regulation S
Purchaser") (such persons specified in clauses (i) and (ii) being referred to
herein as the "Eligible Purchasers"). The Initial Purchaser will offer the
Series A Senior Preferred Stock to Eligible Purchasers initially at the
offering price set forth in the Offering Memorandum. Such price may be changed
at any time without notice.
Holders (including subsequent transferees of the Series A Senior
Preferred Stock) will have the registration rights set forth in the
registration rights agreement (the "Registration Rights Agreement"), to be
dated the Closing Date, substantially as described in the Offering Memorandum
and containing other customary and reasonable provisions. Pursuant to the
Registration Rights Agreement, the Company will agree to file with the
Securities and Exchange Commission (the "Commission"), under the circumstances
set forth therein, (i) a registration statement under the Act (the "Exchange
Offer Registration Statement") relating to the Company's Series A 14 3/4%
Senior Redeemable Exchangeable Cumulative Preferred Stock, par value $0.01 per
share, with a liquidation preference of $25 per share (the "Exchange Senior
Preferred Stock"), to be offered in exchange for the Series A Senior Preferred
Stock (such offer to exchange being referred to as the "Exchange Offer") and/or
(ii) a shelf registration statement pursuant to Rule 415 under the Act (the
"Shelf Registration Statement" and, together with the Exchange Offer
Registration Statement, the "Registration Statements") relating to the resale
by certain holders of the Series A Senior Preferred Stock and use its
reasonable best efforts to cause such Registration Statements to be declared
and remain effective and usable for the periods specified in the Registration
Rights Agreement and to consummate the Exchange Offer. This Agreement, the
Certificate of Designations, the Senior Preferred Stock, the Exchange Indenture
and the Registration
-4-
5
Rights Agreement (each as defined herein) and the Revolving Credit Facility,
the Management Agreement and the Asset Purchase Agreements (each as defined in
the Offering Memorandum) are hereinafter sometimes referred to collectively as
the "Operative Documents."
4. Delivery and Payment.
(a) Delivery of, and payment of the Purchase Price for,
the Series A Senior Preferred Stock shall be made at such locations as may be
mutually acceptable to the parties hereto. Such delivery and payment shall be
made at 9:00 a.m., New York City time, on the fifth business day following the
date of this Agreement (January 27, 1998), or at such other time as shall be
agreed upon by the Initial Purchaser and the Company. The time and date of such
delivery and the payment are herein called the "Closing Date."
(b) One or more of the certificates in definitive form
representing all of the Series A Senior Preferred Stock to be purchased
hereunder, registered in the name of Cede & Co., as nominee of the Depository
Trust Company ("DTC"), (collectively, the "Senior Preferred Stock
Certificate"), shall be delivered by the Company to the Initial Purchaser (or
as the Initial Purchaser directs), in each case with any transfer taxes thereon
duly paid by the Company against payment by the Initial Purchaser of the
Purchase Price thereof by wire transfer in same day funds to an account
designated by order of the Company. The Senior Preferred Stock Certificate
shall be made available to the Initial Purchaser for inspection not later than
9:30 a.m., New York City time, on the business day immediately preceding the
Closing Date.
5. Agreements of the Company. The Company hereby agrees with
the Initial Purchaser as follows:
(a) To advise the Initial Purchaser promptly and, if
requested by the Initial Purchaser, confirm such advice in writing, (i) of the
issuance by any state securities commission of any stop order suspending the
qualification or exemption from qualification of any Series A Senior Preferred
Stock for offering or sale in any jurisdiction designated by the Initial
Purchaser pursuant to Section 5(e) hereof, or the initiation of any proceeding
by any state securities commission or any other federal or state regulatory
authority for such purpose and (ii) of the happening of any event during the
period referred to in Section 5(d) below that makes any statement of a material
fact made in the Offering Memorandum, as then amended or supplemented, untrue
or that requires any additions to or changes in the Offering Memorandum, as
then amended or supplemented, in order to make the statements therein, in light
of the circumstances under which they are made, not misleading. The Company
shall use its reasonable best efforts to prevent the issuance of any stop order
or order suspending the qualification or exemption of any Series A Senior
Preferred Stock under any state securities or Blue Sky laws and, if at any time
any state securities commission or other federal or state regulatory authority
shall issue an order
-5-
6
suspending the qualification or exemption of any Series A Senior Preferred
Stock under any state securities or Blue Sky laws, the Company shall use its
reasonable best efforts to obtain the withdrawal or lifting of such order at
the earliest possible time.
(b) To furnish the Initial Purchaser and those persons
identified by the Initial Purchaser to the Company, without charge, as many
copies of the Offering Memorandum, and any amendments or supplements thereto,
as the Initial Purchaser may reasonably request. Subject to the Initial
Purchaser's compliance with its representations and warranties and agreements
set forth in Section 7 hereof, the Company consents to the use of the Offering
Memorandum, and any amendments and supplements thereto, by the Initial
Purchaser in connection with Exempt Resales.
(c) During the period referred to in Section 5(d)
below, (i) not to make any amendment or supplement to the Offering Memorandum
of which the Initial Purchaser shall not previously have been advised or to
which the Initial Purchaser shall reasonably object within a reasonable time
after being so advised and (ii) to prepare promptly upon the Initial
Purchaser's reasonable request, any amendment or supplement to the Offering
Memorandum which may be necessary or advisable in connection with Exempt
Resales.
(d) If, after the date hereof during such period as the
Initial Purchaser is required to deliver the Offering Memorandum in connection
with Exempt Resales by it, any event shall occur as a result of which it
becomes necessary to amend or supplement the Offering Memorandum in order to
make the statements therein, in the light of the circumstances as of the date
the Offering Memorandum is delivered to an Eligible Purchaser, not misleading,
or if it is necessary to amend or supplement the Offering Memorandum to comply
with any applicable law, promptly to prepare an appropriate amendment or
supplement to such Offering Memorandum so that the statements therein, as so
amended or supplemented, will not, in the light of the circumstances when it is
so delivered, be misleading, or so that such Offering Memorandum, as so amended
or supplemented, will comply with applicable law, and to furnish to the Initial
Purchaser and such other persons as the Initial Purchaser may designate such
number of copies thereof as the Initial Purchaser may reasonably request.
(e) Prior to the sale of all the Series A Senior
Preferred Stock pursuant to Exempt Resales as contemplated hereby, to cooperate
with the Initial Purchaser and counsel to the Initial Purchaser in connection
with the registration or qualification of the Series A Senior Preferred Stock
for offer and sale to the Initial Purchaser and pursuant to Exempt Resales
under the securities or Blue Sky laws of such jurisdictions as the Initial
Purchaser may reasonably request and to continue such qualification in effect
so long as required to consummate such Exempt Resales and to file such consents
to service of process or other documents as may be necessary in order to effect
such registration or qualification; provided, however, that the Company shall
not be required in connection therewith to
-6-
7
register or qualify as a foreign corporation in any jurisdiction in which it is
not now so qualified or to take any action that would subject it to service of
process or taxation other than as to matters and transactions relating to
Exempt Resales, in any jurisdiction in which it is not now so subject.
(f) For a period of five (5) years after the Closing
Date and thereafter so long as the Initial Purchaser is making a market in the
Senior Preferred Stock, to furnish to the Initial Purchaser as soon as
available copies of all reports or other communications furnished by the
Company to its security holders or furnished to or filed with the Commission or
any national securities exchange on which any class of securities of the
Company is listed.
(g) For so long as any of the Series A Senior Preferred
Stock remain outstanding and during any period in which the Company is not
subject to Section 13 or 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), to make available to any holder of Series A
Senior Preferred Stock in connection with any sale thereof and any prospective
purchaser of such Series A Senior Preferred Stock designated by such holder,
upon request, the information ("Rule 144A Information") required by Rule
144A(d)(4) under the Act.
(h) Whether or not the transactions contemplated in
this Agreement are consummated or this Agreement is terminated, to pay or cause
to be paid all expenses incident to performance of the obligations of the
Company under this Agreement, including, without limitation: (i) all fees and
expenses in connection with the preparation, printing and distribution of the
Offering Memorandum and all amendments and supplements thereto (including
financial statements) prior to or during the period specified in Section 5(d),
including the mailing and delivering of copies thereof to the Initial Purchaser
and persons designated by them as specified herein, (ii) all costs and expenses
related to the issuance and delivery of the Series A Senior Preferred Stock to
the Initial Purchaser and pursuant to Exempt Resales, including any transfer or
other taxes payable thereon, (iii) all costs of printing or reproduction of any
agreements or documents in connection with the offering, purchase, sale or
delivery of the Series A Senior Preferred Stock, (iv) all expenses in
connection with the registration or qualification of the Series A Senior
Preferred Stock for offer and sale under the securities or Blue Sky laws of the
several states referred to in Section 5(e) hereof and all costs of printing or
producing any preliminary and supplemental Blue Sky memoranda in connection
therewith (including the filing fees and reasonable fees and disbursements of
counsel for the Initial Purchaser in connection with such registration or
qualification and memoranda relating thereto), (v) the cost of printing
certificates representing the Series A Senior Preferred Stock, (vi) all
expenses and listing fees in connection with the application for quotation of
the Series A Senior Preferred Stock in the National Association of Securities
Dealers, Inc. ("NASD") Automated Quotation System - PORTAL ("PORTAL"), (vii)
all costs and charges of any transfer agent, registrar and/or
-7-
8
depositary (including DTC), and (viii) all costs and expenses of the Exchange
Offer and any Registration Statement.
(i) To use its reasonable best efforts to effect the
inclusion of the Series A Senior Preferred Stock in PORTAL and to maintain the
listing of the Series A Senior Preferred Stock on PORTAL for so long as the
Series A Senior Preferred Stock is outstanding.
(j) To use its reasonable best efforts to obtain the
approval of DTC for "book-entry" transfer of the Senior Preferred Stock, and to
comply with all of its agreements set forth in the representation letter of the
Company to DTC relating to the approval of the Senior Preferred Stock by DTC
for "book entry" transfer.
(k) During the period beginning on the date hereof and
continuing to and including the Closing Date, not to offer, sell, contract to
sell or otherwise transfer or dispose of any equity securities of the Company
or any warrants rights or options to purchase or otherwise acquire equity
securities of the Company substantially similar to the Senior Preferred Stock
(other than the Senior Preferred Stock and the Holdings Junior Preferred Stock
(as defined in the Offering Memorandum)) without the prior written consent of
the Initial Purchaser.
(l) Not to, and not to permit any of its affiliates (as
such term is defined in Rule 501(b) under the Act) to, sell, offer for sale or
solicit offers to buy or otherwise negotiate in respect of any security (as
defined in the Act) that would reasonably be expected to be integrated with the
sale of the Series A Senior Preferred Stock to the Initial Purchaser or
pursuant to Exempt Resales in a manner that would require the registration of
any such sale of the Series A Senior Preferred Stock under the Act.
(m) Except in connection with the Exchange Offer or the
filing of the Shelf Registration Statement, as the case may be, not to, and not
to authorize or knowingly permit any person acting on its behalf to, solicit
any offer to buy or offer to sell the Senior Preferred Stock by means of any
form of general solicitation or general advertising (as such terms are used in
Regulation D under the 0000 Xxx) or in any manner involving a public offering
within the meaning of Section 4(2) of the Act.
(n) To use its reasonable best efforts to do and
perform all things required or necessary to be done and performed under this
Agreement by it prior to the Closing Date and to satisfy all conditions
precedent to the delivery of the Series A Senior Preferred Stock.
6. Representations and Warranties of the Company. As of the
date hereof, the Company represents and warrants to the Initial Purchaser (it
being understood that all representations and warranties herein with respect to
the condition, financial or
-8-
9
otherwise, or the earnings, business, management or operations of the Company
give effect to the Transactions as if they had occurred as of the date hereof)
that:
(a) The Offering Memorandum does not, and as
supplemented or amended will not, contain any untrue statement of a material
fact or omit 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, except that the representations and
warranties contained in this paragraph (a) shall not apply to statements in or
omissions from the Offering Memorandum (or any supplement or amendment thereto)
based solely upon information relating to the Initial Purchaser furnished to
the Company in writing by the Initial Purchaser expressly for use therein. The
Company acknowledges for all purposes of this Agreement that (i) the last
paragraph on the cover page of the Offering Memorandum, (ii) the information
contained in the first paragraph, the first two sentences of the third
paragraph, the fourth paragraph, the fifth sentence of the sixth paragraph, and
the eighth and ninth paragraphs under the caption "Plan of Distribution" in the
Offering Memorandum and the second paragraph of page 1 and "Plan of
Distribution" in the supplement describing the Senior Preferred Stock, and
(iii) the information regarding stabilization on page i of the Offering
Memorandum constitute the only information relating to the Initial Purchaser
furnished to the Company in writing by the Initial Purchaser expressly for use
in the Offering Memorandum and that the Initial Purchaser shall not be deemed
to have provided any other information (and therefore are not responsible for
any such statement or omission) pertaining to any arrangement or agreement with
respect to any party other than the Initial Purchaser. No contract or document
that would be required to be described in the Offering Memorandum if the
Offering Memorandum were a prospectus contained in a registration statement on
Form S-1 filed under the Act is not so described. 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 Agreement are
subject to the registration requirements of the Act, has been issued.
(b) The Company has been duly organized and is validly
existing as a corporation in good standing under the laws of the State of
Delaware. The Company has full corporate power and authority to carry on its
business and to own, lease and operate its properties as described in the
Offering Memorandum. The Company has the requisite corporate power and
authority to authorize the offering of the Senior Preferred Stock and to
execute, deliver and perform its obligations under each Operative Document to
which it is a party. The Company is duly qualified and is in good standing as
a foreign corporation authorized to do business in each jurisdiction in which
such qualification is required, except where the failure to be so qualified or
in good standing would not (i) have a material adverse effect on the business,
prospects, financial condition or results of operations of the Company and its
subsidiaries taken as a whole, (ii) materially interfere with or materially
adversely affect the issuance or marketability of the Series A Senior Preferred
Stock pursuant hereto or (iii) adversely affect in any manner the validity of
this Agreement or any of the other
-9-
10
Operative Documents (the events referred to in clauses (i) through (iii), a
"Material Adverse Effect").
(c) All of the outstanding capital stock of the Company
(i) has been duly authorized and validly issued and (ii) is fully paid,
nonassessable and not subject to any preemptive or similar rights and all of
the capital stock of the Company issued in the Transactions will be duly
authorized and validly issued and fully paid, non-assessable and not subject to
any preemptive or similar rights. On the Closing Date, the authorized capital
stock of the Company conforms as to legal matters to the description thereof
contained in the Offering Memorandum. The Company owns all the capital stock
of Liberty Group Operating, Inc. ("Liberty Group Operating").
(d) This Agreement has been duly authorized, executed
and delivered by the Company and, assuming the due execution and delivery by
the Initial Purchaser, is a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, except (i) as the
enforceability thereof may be limited by bankruptcy, fraudulent conveyance,
insolvency, reorganization, moratorium or other similar laws affecting
creditors' rights generally, (ii) for general principles of equity (regardless
of whether enforcement is brought in a proceeding at law or in equity) and
(iii) limitations of applicable law regarding the enforceability of any rights
to contribution or indemnification.
(e) On the Closing Date, the Series A Senior Preferred
Stock will have been duly authorized and validly issued and delivered by the
Company. When the Series A Senior Preferred Stock have been issued in
accordance with the provisions of the Certificate of Designations and delivered
to and paid for by the Initial Purchaser in accordance with the terms of this
Agreement, the Series A Senior Preferred Stock will be duly authorized and
validly issued and fully paid, nonassessable and not subject to any preemptive
or similar rights. The Series A Senior Preferred Stock, when issued and
delivered, will conform in all material respects to the description thereof
contained in the Offering Memorandum.
(f) On the Closing Date, the Exchange Senior Preferred
Stock will have been duly authorized by the Company. When the Exchange Senior
Preferred Stock are issued in accordance with the provisions of the Certificate
of Designations and delivered in exchange for Series A Senior Preferred Stock
in accordance with the Certificate of Designations and the Exchange Offer, the
Exchange Senior Preferred Stock will be duly authorized and validly issued and
fully paid, nonassessable and not subject to any preemptive or similar rights.
(g) On the Closing Date, the Exchange Indenture will
have been duly authorized and validly executed and delivered by the Company.
When the Exchange Indenture has been duly executed and delivered by the
Company, the Exchange Indenture
-10-
11
will be a valid and binding agreement of the Company, enforceable against the
Company in accordance with its terms (assuming the due execution and delivery
of the Exchange Indenture by the Trustee) except (i) as the enforceability
thereof may be limited by bankruptcy, fraudulent conveyance, insolvency,
reorganization, moratorium or other similar laws affecting creditors' rights
generally, (ii) for general principles of equity (regardless of whether
enforcement is brought in a proceeding at law or in equity) and (iii) the
waiver as to stay, extension or usury laws may not be enforceable. On the
Closing Date, the Exchange Indenture will conform in all material respects to
the requirements of the Trust Indenture Act of 1939, as amended (the "TIA"),
and the rules and regulations of the Commission applicable to an indenture
which is qualified thereunder.
(h) Upon issuance of the Exchange Debentures, the
Exchange Debentures will be entitled to the benefits of the Exchange Indenture
and will be the valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms, except (i) as the
enforceability thereof may be limited by bankruptcy, fraudulent conveyance,
insolvency, reorganization, moratorium or other similar laws affecting
creditors' right generally, (ii) for general principles of equity (regardless
of whether enforcement is brought in a proceeding at law or in equity) and
(iii) the waiver as to stay, extension or usury laws may not be enforceable.
(i) On the Closing Date, the Registration Rights
Agreement will have been duly authorized and validly executed and delivered by
the Company. When the Registration Rights Agreement has been duly executed and
delivered by the Company, the Registration Rights Agreement will be a valid and
binding agreement of the Company, enforceable against the Company in accordance
with its terms (assuming the due execution and delivery of the Registration
Rights Agreement by the Initial Purchaser) except (i) as the enforceability
thereof may be limited by bankruptcy, fraudulent conveyance, insolvency,
reorganization, moratorium or other similar laws affecting creditors' rights
generally, (ii) for general principles of equity (regardless of whether
enforcement is brought in a proceeding at law or in equity) and (iii)
limitations of applicable law regarding the enforceability of any rights to
contribution or indemnification. The Registration Rights Agreement conforms in
all material respects to the description thereof in the Offering Memorandum.
(j) On the Closing Date, the Asset Purchase Agreements
will have been duly authorized and validly executed and delivered by the
Company and Liberty Group Operating and will be valid and binding agreements of
each respective entity, enforceable against each in accordance with their terms
(assuming the due execution and delivery of the Asset Purchase Agreements by
each other party thereto) except (i) as the enforceability thereof may be
limited by bankruptcy, fraudulent conveyance, insolvency, reorganization,
moratorium or other similar laws affecting creditors' rights generally and (ii)
for general principles of equity (regardless of whether enforcement is brought
in a proceeding at law or in equity). Each transaction comprising the
Acquisition conforms to the descriptions thereof in the Offering Memorandum.
-11-
12
(k) Neither the Company nor Liberty Group Operating (i)
is in violation of its certificate of incorporation or by-laws, or (ii)(a)
before giving effect to the Transactions is, or (b) assuming that the
Transactions are consummated as contemplated by the Offering Memorandum will
be, in default in the performance of any obligation, agreement, covenant or
condition contained in any indenture, loan agreement, mortgage, lease or other
agreement or instrument to which the Company or Liberty Group Operating is a
party or by which the Company, Liberty Group Operating or any of their
respective property is bound, except in the case of clause (ii) for any such
violation and defaults as would not, singly or in the aggregate, have a
Material Adverse Effect. There exists no condition that, with notice, the
passage of time or otherwise, would constitute a default under any such
document or instrument, except for any such defaults or violations as would
not, singly or in the aggregate, have a Material Adverse Effect.
(l) The execution, delivery and performance by the
Company and Liberty Group Operating of each Operative Agreement to which either
of them is a party, the issuance and sale of the Series A Senior Preferred
Stock as contemplated by this Agreement and the Offering Memorandum and the
consummation of the transactions contemplated by this Agreement, each other
Operative Document and the Offering Memorandum will not (i) require any
consent, approval, authorization or other order of, or qualification with, any
court or governmental body or agency (except such as may be required under the
securities or Blue Sky laws of the various states or as previously have been
made or obtained (or in the case of the Registration Rights Agreement, will be
obtained and made in accordance therewith) and assuming the accuracy of the
representations and warranties of the Initial Purchaser in Section 7 hereof),
or (ii) violate the certificate of incorporation or by-laws of the Company or
Liberty Group Operating, or (iii) constitute a breach of any of the terms or
provisions of, or a default under, or cause an acceleration of any obligation
under, or result in the imposition or creation of (or the obligation to create
or impose) a Lien (as defined below) with respect to, any indenture, loan
agreement, mortgage, lease or other agreement or instrument to which the
Company or Liberty Group Operating is a party or by which the Company or
Liberty Group Operating or their respective property is subject, or (iv)
violate or conflict with any applicable law or any rule, regulation, judgment,
order or decree of any court or any governmental body or agency having
jurisdiction over the Company, Liberty Group Operating or their respective
property (assuming the accuracy of the representations and warranties of the
Initial Purchaser in Section 7 hereof, compliance with all applicable state
securities and Blue Sky laws, and, in the case of the Registration Rights
Agreement, compliance with the Act, the Exchange Act and the TIA), or (v)
result in the termination or revocation of any permit (as defined below) of the
Company or Liberty Group Operating or result in any other impairment of the
rights of the holder of any such permit, except, in the case of clause (iii),
(iv) or (v) above, for such conflicts or violations as would not, singly or in
the aggregate, have a Material Adverse Effect.
-12-
13
(m) The Company has good and marketable title to, or
valid leasehold interests in, all its properties and assets, in each case free
and clear of all liens, encumbrances, pledges, claims, security interests,
mortgages, assessments, easements, rights of way, covenants, restrictions,
rights of first refusal, defects in title, encroachments and other burdens or
adverse claims (collectively, "Liens"), except for Liens under the Revolving
Credit Facility or such as do not, singly or in the aggregate, have a Material
Adverse Effect. Any real property and buildings held under lease by the
Company are held by the Company under valid, subsisting and enforceable leases
with such exceptions as do not, singly or in the aggregate, have a Material
Adverse Effect.
(n) There is no legal or governmental proceeding
pending or, to the Company's knowledge, threatened to which the Company or
Liberty Group Operating is bound or could reasonably be expected to be a party
or to which any of their respective property is or could reasonably be
expected to be subject, except for any such proceedings as would not, singly or
in the aggregate, be reasonably expected to have a Material Adverse Effect.
(o) To the Company's knowledge, no action has been
taken and no law, statute, rule or regulation or order has been enacted,
adopted or issued by any governmental agency or body which prevents the
execution, delivery or performance of any of the Operative Documents, the
consummation of any of the transactions contemplated thereunder or the issuance
of the Series A Senior Preferred Stock, or suspends the sale of the Series A
Senior Preferred Stock in any jurisdiction referred to in Section 5(e). No
injunction, restraining order or other order or relief of any nature by a
federal or state court or other tribunal of competent jurisdiction has been
issued with respect to the Company or Liberty Group Operating which would
prevent or suspend the issuance or sale of the Series A Senior Preferred Stock
in any jurisdiction referred to in Section 5(e) or the consummation of any
transaction contemplated by the Operative Documents.
(p) Except as would not, singly or in the aggregate,
have a Material Adverse Effect, (i) the Company is not in violation of any
Federal, state or local laws or regulations relating to pollution or protection
of human health or the environment ("Environment Laws"), which violation
includes, but is not limited to, noncompliance with or lack of any permits (as
defined below) or other governmental authorizations; and (ii) (A) the Company
has not received any communication, whether from a governmental authority or
otherwise, alleging any such violation or noncompliance, and there are no
circumstances, either past, present or that are reasonably foreseeable, that
are reasonably likely to lead to such violation in the future, (B) there is no
pending or, to the Company's knowledge, threatened claim, action, investigation
or notice by any person or entity alleging potential liability for
investigatory, cleanup, or governmental response costs, or natural resources or
property damages, or personal injuries, attorney's fees or penalties relating
to any actual, alleged or, to the Company's knowledge, threatened pollution or
contamination, or, to the Company's knowledge, any circumstances forming the
basis of any violation, or
-13-
14
alleged violation, of any Environmental Law (collectively, "Environmental
Claims"), and (C) there are no past or present actions, activities,
circumstances, conditions, events or incidents that could reasonably be
expected to form the basis of any Environmental Claim against the Company or
against any person or entity whose liability for any Environmental Claim the
Company has retained or assumed either contractually or by operation of law.
(q) Except for the Initial Purchaser, there are no
contracts, agreements or understandings between the Company or Liberty Group
Operating and any person granting such person the right to require the Company
to include securities held by such person in the Registration Statement
contemplated by the Registration Rights Agreement.
(r) Except as would not be unlawful, neither the
Company nor Liberty Group Operating has (i) taken, directly or indirectly, any
action designed to, or that might reasonably be expected to, cause or result in
stabilization or manipulation of the price of any security of the Company or
Liberty Group Operating to facilitate the sale or resale of the Senior
Preferred Stock or (ii) except as set forth in the Offering Memorandum (A)
sold, bid for, purchased or paid any person any compensation for soliciting
purchases of the Senior Preferred Stock or (B) paid or agreed to pay to any
person any compensation for soliciting another to purchase any other securities
of the Company or Liberty Group Operating.
(s) Except for the Initial Purchaser, there are no
contracts, agreements or understandings between the Company or Liberty Group
Operating and any person that would give rise to a valid claim against the
Company, Liberty Group Operating or the Initial Purchaser for a brokerage
commission, finder's fee or like payment in connection with the issuance,
purchase and sale of the Senior Preferred Stock.
(t) The Company has no knowledge of any actionable
violation by the Company of any Federal, state or local law relating to
employment practices, discrimination in the hiring, promotion or pay of
employees or any applicable wage or hour laws, or of any provisions of the
Employee Retirement Income Security Act of 1974 ("ERISA") or the rules and
regulations promulgated thereunder, except for any such violation as would not,
singly or in the aggregate, have a Material Adverse Effect. There is (A) no
material unfair labor practice complaint pending against the Company or, to the
best knowledge of the Company, threatened against it, before the National Labor
Relations Board or any state or local labor relations board, and no significant
grievance or significant arbitration proceeding arising out of or under any
collective bargaining agreement is pending against the Company or, to the
knowledge of the Company, threatened against it, (B) no labor strike, dispute,
slowdown or stoppage ("Labor Dispute") in which the Company is involved nor, to
the best knowledge of the Company, is any Labor Dispute imminent, other than
routine disciplinary and grievance matters, except with respect to any matter
specified in clause (A) or (B) above as would not, singly or in the aggregate,
have a Material Adverse
-14-
15
Effect. Except as set forth in the Offering Memorandum, there exist no
material employment, consulting, severance or termination agreements or
arrangements between the Company or Liberty Group Operating and any current or
former officer or director of the Company or Liberty Group Operating, and there
are no collective bargaining or other labor union agreements to which the
Company or Liberty Group Operating is a party or by which either of them is
bound.
(u) The Company has such permits, licenses, consents,
exemptions, franchises, authorizations and other approvals ("permits") of, and
has made all filings with and notice to, all governmental or regulatory
authorities and self-regulatory organizations and all courts and other
tribunals, including, without limitation, under any applicable Environmental
Laws, as are necessary to own, lease, license and operate its properties and to
conduct its business, except where the failure to have any such permit or to
make any such filing or notice would not, singly or in the aggregate, have a
Material Adverse Effect. Each such permit is valid and in full force and
effect and the Company is in compliance with all the terms and conditions of
its permits and with the rules and regulations of the authorities and governing
bodies having jurisdiction with respect thereto; no event has occurred
(including the receipt of any notice from any authority or governing body)
which allows or, after notice or elapse of time or both, would allow
revocation, suspension or termination of any such permit, or results or, after
notice or lapse of time or both, would result in any other impairment of the
rights of the holder of any such permit; and such permits contain no
restrictions that are unduly burdensome to the Company, except, in each case,
where such failure to be valid and in full force and effect or to be in
compliance, the occurrence of any such event or the presence of any such
restriction would not, singly or in the aggregate, have a Material Adverse
Effect.
(v) Except as would not, singly or in the aggregate,
have a Material Adverse Effect: (i) the Company owns or possesses, free and
clear of all Liens other than Liens under the Revolving Credit Facility, valid
rights to all patents, patent rights, copyrights, computer databases and
software, logos, slogans, inventions, know-how (including trade secrets and
other unpatented and/or unpatentable proprietary or confidential information,
systems or procedures), trademarks, service marks and trade names and all
licenses, applications and registrations related to the foregoing used in the
business of the Company (collectively, the "Intellectual Property"); (ii) the
Company has not received any notice of infringement of or conflict with
asserted rights of others with respect to any Intellectual Property, and has no
knowledge of any infringement of the Intellectual Property by any person; and
(iii) the use of the Intellectual Property in connection with the business and
operations of the Company does not infringe on the rights of any person.
(w) The Company maintains reasonably adequate insurance
covering its properties, operations, personnel and businesses.
-15-
16
(x) The accountants, KPMG Peat Marwick LLP, that have
certified the financial statements and related notes included in the Offering
Memorandum are independent public accountants with respect to the Company as
would be required by the Act and the Exchange Act if the Offering Memorandum
were a prospectus included in a registration statement on Form S-1 filed with
the Commission under the Act. The historical financial statements, together
with the related notes, included in the Offering Memorandum comply as to form
in all material respects with the requirements applicable to registration
statements on Form S-1 under the Act.
(y) The historical financial statements, together with
related notes forming part of the Offering Memorandum (and any amendment or
supplement thereto), present fairly the financial position, results of
operations and changes in financial position of the Company on the basis stated
in the Offering Memorandum at the respective dates or for the respective
periods to which they apply; such statements and related notes have been
prepared in accordance with generally accepted accounting principles
consistently applied throughout the periods involved, except as disclosed
therein; and the other financial and statistical information and data included
in the Offering Memorandum (and any amendment or supplement thereto) are
presented and prepared on a basis consistent with such financial statements and
the books and records of the Company.
(z) The pro forma financial statements and related
notes thereto included in the Offering Memorandum give effect to assumptions
made on a reasonable basis and in good faith and present fairly the historical
and proposed transactions contemplated by the Offering Memorandum; and such pro
forma financial statements and related notes comply as to form in all material
respects with the requirements applicable to pro forma financial statements
included in registration statements on Form S-1 under the Act. The other pro
forma financial and statistical information and data included in the Offering
Memorandum are, in all material respects, presented and prepared on a basis
consistent with such pro forma financial statements.
(aa) The Company is not and, after giving effect to the
consummation of the Transactions, will not be, an "investment company," as such
term is defined in the Investment Company Act of 1940, as amended.
(ab) Since the respective dates as of which information
is given in the Offering Memorandum, other than as set forth in the Offering
Memorandum (exclusive of any amendments or supplements thereto subsequent to
the date of this Agreement), (i) there has not occurred any material adverse
change or any development involving a prospective material adverse change in
the condition, financial or otherwise, or the earnings, business, management or
operations of the Company and its subsidiaries taken as a whole, (ii) there has
not been any material adverse change or any development involving a prospective
material adverse change in the capital stock or in the long-term debt of the
-16-
17
Company and its subsidiaries taken as a whole and (iii) the Company and its
subsidiaries taken as a whole has not incurred any material liability or
obligation, direct or contingent.
(ac) No "nationally recognized statistical rating
organization" as such term is defined for purposes of Rule 436(g)(2) under the
Act (i) has imposed (or has informed the Company that it is considering
imposing) any condition (financial or otherwise) on the Company's retaining any
rating assigned to the Company or any securities of the Company or (ii) has
indicated to the Company that it is considering (a) the downgrading,
suspension, or withdrawal of, or any review for a possible change in, any
rating so assigned or (b) any change in the outlook for any rating of the
Company or any securities of the Company.
(ad) The Offering Memorandum, as of its date, contains
all the information specified in, and meeting the requirements of, Rule
144A(d)(4) under the Act.
(ae) No form of general solicitation or general
advertising (within the meaning of Regulation D under the Act) was or will be
used by the Company, Liberty Group Operating or any of their respective
representatives (other than the Initial Purchaser, as to whom the Company makes
no representation) in connection with the offer and sale of the Series A Senior
Preferred Stock contemplated hereby. No securities of the same class as the
Series A Senior Preferred Stock have been issued and sold by the Company within
the six-month period immediately prior to the date hereof.
(af) No registration under the Act of the Series A
Senior Preferred Stock is required for the sale of the Series A Senior
Preferred Stock to the Initial Purchaser as contemplated hereby or for the
Exempt Resales, assuming the accuracy of the Initial Purchaser's
representations and warranties and agreements set forth in Section 7 hereof.
(ag) The Company, Liberty Group Operating and their
respective affiliates and all persons acting on their behalf (other than the
Initial Purchaser, as to whom the Company and Liberty Group Operating make no
representation) have complied with and will comply with the offering
restrictions requirements of Regulation S under the Act (including, without
limitation, provisions regarding directed selling efforts (within the meaning
of Regulation S)) in connection with any offering of the Series A Senior
Preferred Stock outside the United States.
(ah) Assuming the accuracy of the Initial Purchasers'
representations, warranties and agreements set forth in Section 7 hereof, prior
to the effectiveness of any Registration Statement, the Exchange Indenture is
not required to be qualified under the TIA.
(ai) Upon filing of the registration statement with
respect to the Exchange Offer, the Company will have established a system of
internal accounting controls
-17-
18
sufficient to provide reasonable assurance 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.
(aj) No Tax liens have been filed on the assets to be
acquired pursuant to the Asset Purchase Agreements and no claims are being
asserted that could reasonably result in a Tax lien on such assets, except as
would not, singly or in the aggregate, have a Material Adverse Effect. For
purposes of this Agreement, "Taxes" (including, with correlative meaning, the
term "Tax") shall mean all Taxes, charges, fees, levies, penalties or other
assessments imposed by any federal, state, local or foreign taxing authority,
including, but not limited to, income, gross receipts, excise, property, sales,
transfer, franchise, payroll, withholding, social security and other Taxes, and
shall include any interest, penalties or additions attributable thereto.
(ak) Immediately after and after giving effect to the
offering of the Series A Senior Preferred Stock as contemplated hereby and the
consummation of the Transactions, (i) the present fair salable value of the
Company's assets shall be more than the amount that will be required to pay its
debts (including contingent and unliquidated debts) as they become absolute and
matured, (ii) the Company's assets, at a fair valuation, shall be greater than
the sum of its debts (including contingent and unliquidated debts), (iii) the
Company shall not be engaged in a business or transaction for which its
remaining assets are unreasonably small in relation to such business or
transaction, and (iv) the Company shall not intend to incur or believe that it
will incur debts beyond its ability to pay such debts as they become absolute
and matured. The Company disclaims any intent to hinder, defraud or delay its
creditors, or to prefer some creditors over creditors over others, and believes
that the Senior Preferred Stock is being issued for proper purposes in good
faith.
(al) Each certificate signed by any officer of the
Company and delivered to the Initial Purchaser or counsel for the Initial
Purchaser in connection with this Agreement on or prior to the Closing Date
shall be deemed to be a representation and warranty of the Company to the
Initial Purchaser as to the matters covered thereby.
The Company acknowledges that the Initial Purchaser and, for
purposes of the opinions to be delivered to the Initial Purchaser pursuant to
Section 9 hereof, counsel to the Company and counsel to the Initial Purchaser,
will rely upon the accuracy and truth of the foregoing representations and
hereby consents to such reliance.
7. Initial Purchaser's Representations and Warranties. The
Initial Purchaser represents and warrants to the Company and agrees that:
-18-
19
(a) The Initial Purchaser is a QIB with such knowledge
and experience in financial and business matters as is necessary in order to
evaluate the merits and risks of an investment in the Series A Senior Preferred
Stock.
(b) The Initial Purchaser (A) is not acquiring the
Series A Senior Preferred Stock with a view to any distribution thereof or with
any present intention of offering or selling any of the Series A Senior
Preferred Stock in a transaction that would violate the Act or the securities
laws of any state of the United States or any other applicable jurisdiction and
(B) will be reoffering and reselling the Series A Senior Preferred Stock only
to (x) QIB's in reliance on the exemption from the registration requirements of
the Act provided by Rule 144A and (y) in offshore transactions in reliance upon
Regulation S under the Act.
(c) The Initial Purchaser represents and warrants that
(i) no form of general solicitation or general advertising (within the meaning
of Regulation D under the Act) has been or will be used by the Initial
Purchaser or any of its representatives in connection with the offer and sale
of the Series A Senior Preferred Stock pursuant hereto, and (ii) it has not and
will not solicit offers for or offer to sell Series A Senior Preferred Stock in
any manner involving a public offering within the meaning of Section 4(2) of
the Act.
(d) The Initial Purchaser agrees that, in connection
with Exempt Resales, the Initial Purchaser will solicit offers to buy the
Series A Senior Preferred Stock only from, and will offer to sell the Series A
Senior Preferred Stock only to, Eligible Purchasers, and will make available
copies of the Offering Memorandum (as then amended or supplemented through the
respective dates of such offers ) in connection with such offers and (assuming
the Company's compliance with Section 5(b) hereof) will deliver a copy of the
Offering Memorandum (as then amended or supplemented) to each purchaser of
Series A Senior Preferred Stock from it contemporaneously with or prior to the
delivery of any Series A Senior Preferred Stock to each such Purchaser. The
Initial Purchaser further agrees that it will offer to sell the Series A Senior
Preferred Stock only to, and will solicit offers to buy the Series A Senior
Preferred Stock only from (1)(A) QIBs who, in purchasing the Series A Senior
Preferred Stock will be deemed to have represented and agreed that (x) they are
purchasing the Series A Senior Preferred Stock for their own accounts or
accounts with respect to which they exercise sole investment discretion and
that they or such accounts are QIBs and (y) they acknowledge that the seller of
such Series A Senior Preferred Stock may be relying on the exemption from the
provisions of Section 5 of the Act provided by Rule 144A thereunder and that
such Series A Senior Preferred Stock will not have been registered under the
Act and (B) Regulation S Purchaser who, in purchasing the Series A Senior
Preferred Stock will be deemed to have represented and agreed that their
purchase of Series A Senior Preferred Stock pursuant to Regulation S is not
part of a plan or a scheme to evade the registration provisions of the Act and
(2) Eligible Purchasers that agree that (x) Series
-19-
20
A Senior Preferred Stock purchased by them may be offered, resold, pledged or
otherwise transferred within the time period referred to under Rule 144(k)
(taking into account the provisions of Rule 144(d) under the Act, if
applicable) under the Act, as in effect on the date of the transfer of such
Series A Senior Preferred Stock, only (I) to a person whom the seller
reasonably believes is a QIB in a transaction meeting the requirements of Rule
144A, (II) in an offshore transaction complying with Rule 903 or Rule 904 of
Regulation S, (III) pursuant to an exemption from registration under the Act
provided by Rule 144 thereunder (if available), (IV) to the Company, (V)
pursuant to an effective registration statement under the Act or (VI) in
accordance with another exemption from the registration requirements of the Act
(and based upon an opinion of counsel if the Company so requests), and, in each
case, in accordance with any applicable securities laws of any State of the
United States or any other applicable jurisdiction and (y) they will deliver to
each person to whom such Series A Senior Preferred Stock or an interest therein
is transferred a notice substantially to the effect of the foregoing.
(e) The Initial Purchaser acknowledges that the Company
and, for purposes of the opinions to be delivered to each Initial Purchaser
pursuant to Section 9 hereof, counsel to the Company and counsel to the Initial
Purchaser will rely upon the accuracy and truth of the foregoing
representations and the Initial Purchaser hereby consent to such reliance.
8. Indemnification.
(a) The Company agrees to indemnify and hold harmless
the Initial Purchaser, its directors, its officers and each person, if any, who
controls the Initial Purchaser within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, from and against any and all losses, claims,
damages, liabilities and judgments (including, without limitation, any
reasonable legal or other expenses incurred in connection with defending or
investigating any matter, including any action that could give rise to any such
losses, claims, damages, liabilities or judgments) caused by any untrue
statement of a material fact contained in the Offering Memorandum (or any
amendment or supplement thereto) or any Rule 144A Information or caused by any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages, liabilities or judgments are
caused by any such untrue statement or omission or alleged untrue statement or
omission (i) based upon information relating to the Initial Purchaser furnished
in writing to the Company by the Initial Purchaser expressly for use in the
Offering Memorandum, or (ii) contained in the Offering Memorandum, as the case
may be, if a copy of the Offering Memorandum (as then amended or supplemented)
was not sent or given by or on behalf of the Initial Purchaser to the person
asserting such loss, claim, damage or liability, at or prior to the written
confirmation of the sale of the Series A Senior Preferred Stock and the untrue
statement or omission or alleged untrue statement or omission was corrected in
the Offering Memorandum (as then amended or supplemented).
-20-
21
(b) The Initial Purchaser agrees to indemnify and hold
harmless the Company, its directors and officers and each person who controls
(within the meaning of Section 15 of the Act or Section 20 of the Exchange Act)
the Company to the same extent as the foregoing indemnity from the Company but
only with reference to information relating to the Initial Purchaser furnished
in writing to the Company by the Initial Purchaser expressly for use in the
Offering Memorandum.
(c) In case any action shall be commenced involving any
person in respect of which indemnity may be sought pursuant to Section 8(a) or
8(b) (the "indemnified party"), the indemnified party shall promptly notify the
person against whom such indemnity may be sought (the "indemnifying party") in
writing (provided that the failure to give such notice shall not relieve the
indemnifying party of its obligations under this Section 8 unless and only to
the extent the that indemnifying party is materially prejudiced by the failure
to notify) and the indemnifying party shall assume promptly the defense of such
action, including the employment of counsel reasonably satisfactory to the
indemnified party and the payment of all reasonable fees and expenses of such
counsel, as incurred (except that in the case of any action in respect of which
indemnity may be sought pursuant to both Sections 8(a) and 8(b), the Company
shall assume promptly the defense of such action as provided in this Section
8(c) and the Initial Purchaser shall not be required to assume the defense of
such action pursuant to this Section 8(c), but may employ separate counsel and
participate in the defense thereof; provided the fees and expenses of such
separate counsel, if any, retained by the Initial Purchaser (except as provided
below) shall be at the expense of the Initial Purchaser). Any indemnified
party shall have the right to employ separate counsel in any such action and
participate in the defense thereof, but the fees and expenses of such counsel
shall be at the expense of the indemnified party unless (i) the employment of
such counsel shall have been specifically authorized in writing by the
indemnifying party, (ii) the indemnifying party shall have failed promptly to
assume the defense of such action or employ counsel reasonably satisfactory to
the indemnified party or (iii) the named parties to any such action (including
any impleaded parties) include both the indemnified party and the indemnifying
party, and the indemnified party shall have been advised by such counsel that
representation of such indemnified party and any such indemnifying party by the
same counsel would be inappropriate under applicable standards of professional
conduct (whether or not such representation by the same counsel has been
proposed) due to actual or potential differing interests between them (in which
case the indemnifying party shall not have the right to assume the defense of
such action on behalf of the indemnified party). In any such case, the
indemnifying party shall not, in connection with any one action or separate but
substantially similar or related actions in the same jurisdiction arising out
of the same general allegations or circumstances, be liable for the reasonable
fees and expenses of more than one separate firm of attorneys (in addition to
any local counsel) for all indemnified parties and all such reasonable fees and
expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by the Initial Purchaser, in the case of the parties
indemnified pursuant to Section 8(a), and by the Company, in the case of
parties indemnified pursuant to Section 8(b). The indemnifying
-21-
22
party shall indemnify and hold harmless the indemnified party from and against
any and all losses, claims, damages, liabilities and judgments by reason of any
settlement of any action (i) effected with its written consent or (ii) effected
without its written consent if the settlement is entered into more than 60 days
after such indemnifying party shall have received a written request from the
indemnified for reimbursement for the fees and expenses of counsels (in any
case where such fees and expenses are at the expense of the indemnifying party,
and except with respect to fees and expenses the amount of which is being
contested in good faith by the indemnifying party, with respect to which this
clause (ii) shall not apply) and, prior to the date of such settlement, the
indemnifying party shall have failed to comply with such reimbursement request.
No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement or compromise of, or consent to the
entry of judgment with respect to, any pending or threatened action in respect
of which the indemnified party is an actual or potential party and indemnity or
contribution may be or could have been sought hereunder by the indemnified
party, unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability on claims
that are or could have been the subject matter of such action and (ii) does not
include a statement as to or an admission of fault, culpability or failure to
act by or on behalf of the indemnified party.
(d) To the extent the indemnification provided for in
this Section 8 is unavailable to an indemnified party (other than due to the
failure of the indemnified party to provide notice as required by Section
8(c)), or is insufficient in respect of any losses, claims, damages,
liabilities or judgments referred to herein, then each indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages, liabilities and judgments (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company, on the one hand, and the
Initial Purchaser, on the other than, from the offering of the Series A Senior
Preferred Stock or (ii) if the allocation provided by clause 8(d)(i) above is
not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause 8(d)(i) above but
also the relative fault of the Company, on the one hand, and the Initial
Purchaser, and on the other hand, in connection with the statements or
omissions which resulted in such losses, claims, damages, liabilities or
judgments, as well as any other relevant equitable considerations. The
relative benefits received by the Company, on the one hand, and the Initial
Purchaser, on the other hand, shall be deemed to be in the same proportion as
the total net proceeds from the offering of the Series A Senior Preferred Stock
(before deducting expenses but after deducting fees payable to the Initial
Purchaser) received by the Company, and total fees payable received by the
Initial Purchaser bear to the total price to investors of the Series A Senior
Preferred Stock, in each case as set forth in the Offering Memorandum. The
relative fault of the Company, on the one hand, and the Initial Purchaser, on
the other hand, shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company, on the one hand, or the Initial Purchaser, on the
other
-22-
23
hand, and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Company and the Initial Purchaser agree that it would not be
just and equitable if contribution pursuant to this Section 8(d) were
determined by pro rata allocation or by any other method of allocation which
does not take account of the equitable considerations referred to in the
immediately preceding paragraph. The amount paid or payable by an indemnified
party as a result of the losses, claims, damages, liabilities or judgments
referred to in the immediately preceding paragraph shall be deemed to include,
subject to the limitations set forth above, any reasonable legal or other
expenses incurred by such indemnified party in connection with investigating or
defending any matter that could have given rise to such losses, claims,
damages, liabilities or judgments. Notwithstanding the provisions of this
Section 8, the Initial Purchaser (and its related indemnified parties) shall
not be required to contribute any amount in excess of the amount by which the
total fees received by the Initial Purchaser in connection with the sale of
Series A Senior Preferred Stock pursuant to this Agreement exceeds the amount
of any damages which the Initial Purchaser (and any related indemnified party)
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation.
(e) The remedies provided for in this Section 8 are not
exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
9. Conditions of Initial Purchaser's Obligations. The
obligations of the Initial Purchaser to purchase the Series A Senior Preferred
Stock under this Agreement are subject to the satisfaction of each of the
following conditions:
(a) All the representations and warranties of the
Company contained in this Agreement shall be true and correct on the date
hereof and on the Closing Date with the same force and effect as if made on and
as of the Closing Date.
(b) On or after the date hereof, (i) there shall not
have occurred any downgrading, suspension or withdrawal of, nor shall any
notice have been given of any potential or intended downgrading, suspension or
withdrawal of, or of any review (or any potential or intended review) for a
possible change that does not indicate the direction of the possible change in,
any rating of the Company or any securities of the Company (including, without
limitation, the placing of any of the foregoing ratings on credit watch with
negative or developing implications or under review with an uncertain
direction) by any "nationally recognized statistical rating organization," as
such term is defined for purposes of Rule 436(g)(2) under the Act and (ii)
there shall not have occurred any change, nor shall any
-23-
24
notice have been given of any potential or intended change, in the outlook for
any rating of the Company or any securities of the Company by any such rating
organization.
(c) The Initial Purchaser shall have received on the
Closing Date a certificate dated the Closing Date, signed by the President and
another executive officer of the Company, confirming, as of the Closing Date,
the matters set forth in paragraphs (a), (b), (e) (the first clause of which
may be limited to the Company's knowledge) and (k) of this Section 9.
(d) Since the respective dates as of which information
is given in the Offering Memorandum, other than as set forth in the Offering
Memorandum (exclusive of any amendments or supplements thereto subsequent to
the date of this Agreement), (i) there shall not have occurred any change or
any development involving a prospective change in the condition, financial or
otherwise, or the earnings, business, management or operations of the Company,
(ii) there shall not have been any change or any development involving a
prospective change in the capital stock or increase in the long-term debt of
the Company and (iii) the Company shall not have incurred any material
liability or obligation, direct or contingent, the effect of which, in any such
case described in clause 9(d)(i), 9(d)(ii) or 9(d)(iii), in your good faith
judgment, is material and adverse and, in your good faith judgment, makes it
impracticable to market the Series A Senior Preferred Stock on the terms and in
the manner contemplated in the Offering Memorandum.
(e) No action shall have been taken and no statute,
rule, regulation or order shall have been enacted, adopted or issue by any
governmental agency which would, as of the Closing Date, prevent the issuance
or sale of any of the Series A Senior Preferred Stock, prevent the consummation
of the Transactions or otherwise have a Material Adverse Effect; no action,
suit or proceeding shall be pending against or, to the knowledge of the
Company, threatened against, the Company or Liberty Group Operating before any
court or arbitrator or any governmental body, agency or official which would
reasonably be expected to prohibit, interfere with or adversely affect the
issuance or sale of the Senior Preferred Stock, the consummation of the
Acquisition or otherwise have a Material Adverse Effect; and no stop order,
injunction, restraining order, or order of any nature 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 Agreement are
subject to the registration requirements of the Act shall have been issued.
(f) On the Closing Date, the Initial Purchaser shall
have received an opinion, dated the Closing Date, of Xxxxx, Xxxxx & Xxxxx,
counsel for the Company, substantially to the effect that:
(1) The Company has been duly organized, is validly
existing as a corporation in good standing under the laws of the
State of Delaware and has full corporate power and authority to
carry on its business and to own,
-24-
25
lease and operate its properties as described in the Offering
Memorandum. The Company has the requisite corporate power and
authority to authorize the offering of the Senior Preferred Stock
and to execute, deliver and perform its obligations under each
Operative Document to which it is a party.
(2) The Company is duly qualified and is in good
standing as a foreign corporation authorized to do business in
each jurisdiction in which such qualification is required, except
where the failure to be so qualified or in good standing would
not be reasonably expected to have a Material Adverse Effect.
(3) All of the outstanding capital stock of the Company
(i) has been duly authorized and validly issued and (ii) is fully
paid, nonassessable and, to such counsel's knowledge, not subject
to any preemptive or similar rights. The authorized capital
stock of the Company conforms as to legal matters to the
description thereof contained in the Offering Memorandum.
(4) This Agreement has been duly authorized, executed
and delivered by the Company.
(5) The Series A Senior Preferred Stock has been duly
authorized by the Company, and when issued in accordance with the
provisions of the Certificate of Designations and delivered to
and paid for by the Initial Purchaser in accordance with the
terms of this Agreement, the Series A Senior Preferred Stock will
be duly authorized and validly issued, fully paid, nonassessable
and, to such counsel's knowledge, not subject to any preemptive
or similar rights.
(6) The Exchange Senior Preferred Stock has been duly
authorized by the Company, and when executed and authenticated in
accordance with the provisions of the Certificate of Designations
and delivered in exchange for Series A Senior Preferred Stock in
accordance with the Certificate of Designations and the Exchange
Offer, the Exchange Senior Preferred Stock will be duly
authorized and validly issued, fully paid, nonassessable and, to
such counsel's knowledge, not subject to any preemptive or
similar rights.
(7) The Exchange Indenture has been duly authorized,
executed and delivered by the Company, and assuming the due
authorization, execution and delivery of the Exchange Indenture
by the Trustee, the Exchange Indenture is a valid and binding
agreement of the Company, enforceable against the Company in
accordance with its terms, except (i) as the enforceability
thereof may be limited by bankruptcy, fraudulent
-25-
26
conveyance, insolvency, reorganization, moratorium or other
similar laws affecting creditor's rights generally, (ii) for
general principles of equity (regardless of whether enforcement
is brought in a proceeding at law or equity) and (iii) the waiver
as to stay, extension or usury laws may not be enforceable.
(8) Upon issuance of the Exchange Debentures, the
Exchange Debentures will be valid and binding obligations of the
Company, entitled to the benefits of the Exchange Indenture and
enforceable against the Company in accordance with their terms,
except (i) as the enforceability thereof may be limited by
bankruptcy, fraudulent conveyance, insolvency, reorganization,
moratorium or other similar laws affecting creditors' rights
generally, (ii) for general principles of equity (regardless of
whether enforcement is brought in a proceeding at law or in
equity) and (iii) the waiver as to stay, extension or usury laws
may not be enforceable.
(9) The Registration Rights Agreement has been duly
authorized, executed and delivered by the Company, and assuming
the due authorization, execution and delivery of the Registration
Rights Agreement by the Initial Purchaser, the Registration
Rights Agreement is a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms,
except (i) as the enforceability thereof may be limited by
bankruptcy, fraudulent conveyance, insolvency, reorganization,
moratorium or other similar laws affecting creditors' rights
generally, (ii) for general principles of equity (regardless of
whether enforcement is brought in a proceeding at law or in
equity) and (iii) no opinion need be expressed as to the
validity, binding nature or enforceability of any rights to
contribution or indemnification contained in the Registration
Rights Agreement.
(10) The Asset Purchase Agreements have been duly
authorized by the Company and Liberty Group Operating and, on the
Closing Date, will have been duly executed and delivered by the
Company and Liberty Group Operating and will be valid and binding
agreements of the Company and Liberty Group Operating,
enforceable against the Company and Liberty Group Operating in
accordance with their terms (assuming the due execution and
delivery of the Asset Purchase Agreements by each other party
thereto) except (i) as the enforceability thereof may be limited
by bankruptcy, fraudulent conveyance, insolvency, reorganization,
moratorium or other similar laws affecting creditors' rights
generally and (ii) for general principles of equity (regardless
of whether enforcement is brought in a proceeding at law or in
equity).
-26-
27
(11) The statements in the Offering Memorandum under the
captions "Summary--The Acquisition," "Certain Relationships and
Related Transactions," "The Acquisition," "Description of
Debentures," "Description of Other Indebtedness" and "Description
of Holdings' Capital Stock" and under the caption "The Offering"
in the supplement describing the Senior Preferred Stock, insofar
as such statements constitute a summary of the legal matters,
documents or proceedings referred to therein, fairly summarize in
all material respects the information called for with respect to
such legal matters, documents and proceedings.
(12) The execution and delivery of and performance by
the Company and Liberty Group Operating of each Operative
Document to which either of them is a party, the issuance and
sale of the Series A Senior Preferred Stock as contemplated by
this Agreement and the Offering Memorandum and the consummation
of the transactions contemplated by this Agreement, each other
Operative Document and the Offering Memorandum do not (i) require
any consent, approval, authorization or other order of, or
qualification with, any court or governmental body or agency
(except such as may be required under the securities or Blue Sky
laws of the various states or as previously have been made or
obtained, or, in the case of the Registration Rights Agreement,
will be obtained and made, and assuming the accuracy of the
representations and warranties of the Initial Purchaser in
Section 7 hereof), or (ii) violate the certificate of
incorporation or by-laws of the Company or Liberty Group
Operating, or (iii) constitute a breach of any of the terms or
provisions of, or a default under, or cause an acceleration of
any obligation under, or result in the imposition or creation of
(or the obligation to create or impose) a Lien with respect to,
any Operative Document (other than Liens created under the
Revolving Credit Facility) or (iv) violate or conflict with any
applicable law, rule or regulation which in such counsel's
experience is customarily applicable to transactions of the type
provided for in the Operative Documents or any judgment, order or
decree of any court or any governmental body or agency having
jurisdiction over the Company, Liberty Group Operating or their
respective property and known to such counsel (assuming the
accuracy of the representations, warranties and agreements of the
Initial Purchaser in Section 7 hereof, compliance with all
applicable state securities and Blue Sky laws, and, in the case
of the Registration Rights Agreement, compliance with the Act,
the Exchange Act and the TIA), except, in the case of clauses
(i), (iii) and (iv) above, for such conflicts or violations as
would not, singly or in the aggregate, have a Material Adverse
Effect.
(13) After due inquiry, such counsel does not know of
any legal or governmental proceeding pending or threatened which
would be required to
-27-
28
be described in the Offering Memorandum if the Offering
Memorandum were a prospectus included in a registration statement
on Form S-1 and is not so described.
(14) The Company is not and, after giving effect to the
consummation of the Transactions, will not be, an "investment
company," as such term is defined in the Investment Company Act
of 1940, as amended.
(15) The Offering Memorandum (except for the financial
statements, including the notes thereto, and supporting schedules
and other financial, statistical and accounting data included
therein or omitted therefrom, as to which no opinion is
expressed), as of its date and as amended or supplemented through
the date hereof, appear on its face to comply with the
requirements of Rule 144A(d)(4) under the Act.
(16) No registration under the Act of the Series A
Senior Preferred Stock is required for the sale of the Series A
Senior Preferred Stock to the Initial Purchaser as contemplated
by this Agreement or for the Exempt Resales, assuming (i) the
accuracy of, and compliance with, the Initial Purchaser's
representations and agreements contained in Section 7 of this
Agreement and (ii) the accuracy of the representations and
agreements of the Company set forth in this Agreement and (iii)
that the offer, sale and delivery of the Series A Senior
Preferred Stock have been made as contemplated by this Agreement
and the Offering Memorandum.
In addition, Xxxxx, Xxxxx & Xxxxx shall state that such counsel
has participated in conferences with officers and other representatives of the
Company, representatives of the independent accountants of the Company, and the
Initial Purchaser at which the contents of the Offering Memorandum and related
matters were discussed and, although such counsel is not passing upon, and does
not assume any responsibility for, the accuracy, completeness or fairness of
the statements contained in the Offering Memorandum and has made no independent
check or verification thereof, on the basis of the foregoing, no facts have
come to such counsel's attention (relying to the extent such counsel deems
appropriate as to materiality upon the opinions of officers and other
representatives of the Company) that have led such counsel to believe that the
Offering 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 a
material fact necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading, except that such
counsel need not express any opinion or belief with respect to the financial
statements and schedules and other financial and statistical data included
therein or excluded therefrom.
-28-
29
(g) The Initial Purchaser shall have received on the
Closing Date an opinion, dated the Closing Date, of Xxxxxxxx & Xxxxxxxx,
counsel for the Initial Purchaser, in form and substance reasonably
satisfactory to the Initial Purchaser.
(h) The Initial Purchaser shall have received, at the
time this Agreement is executed and at the Closing Date, letters dated the date
hereof in form and substance satisfactory to the Initial Purchaser from KPMG
Peat Marwick LLP, independent public accountants, in each case containing the
information and statements of the type ordinarily included in accountants'
"comfort letters" to the Initial Purchaser with respect to the financial
statements and certain financial information contained in the Offering
Memorandum.
(i) The Series A Senior Preferred Stock shall have been
approved by the NASD for trading and duly listed in PORTAL.
(j) The Company shall have executed the Registration
Rights Agreement and the Initial Purchaser shall have received an original copy
thereof, duly executed by the Company.
(k) The Company shall have filed the Certificate of
Designations with the Secretary of State of the State of Delaware and the
Company and the Trustee shall have executed the Exchange Indenture and the
Initial Purchasers shall have received an original copy thereof, duly executed
by the Company. The Company shall not have failed at or prior to the Closing
Date to perform or comply in all material respects with any of the agreements
herein contained and required to be performed or complied with by the Company
at or prior to the Closing Date.
10. Effectiveness of Agreement and Termination. This
Agreement shall become effective upon the delivery of this Agreement by the
parties hereto.
This Agreement may be terminated at any time prior to the Closing
Date by the Initial Purchaser by written notice to the Company if any of the
following has occurred: (i) any outbreak or escalation of hostilities or other
national or international calamity or crisis or change in economic conditions
or in the financial markets of the United States or elsewhere that, in the
Initial Purchaser's good faith judgment, is material and adverse and would, in
the Initial Purchaser's good faith judgment, make it impracticable to market
the Series A Senior Preferred Stock on the terms and in the manner contemplated
in the Offering Memorandum, (ii) the suspension or material limitation of
trading in securities on the New York Stock Exchange, the American Stock
Exchange, the Chicago Board of Options Exchange, the Chicago Mercantile
Exchange, the Chicago Board of Trade or the Nasdaq National Market, (iii) the
suspension of trading of any securities of the Company on any exchange or in
the over-the-counter market, (iv) the enactment, publication, decree or other
promulgation of any federal or state statute, regulation, rule or order of any
court or other
-29-
30
governmental authority which in your good faith opinion materially and
adversely affects, or will materially and adversely affect, the business,
prospects, financial condition or results of operations of the Company and its
subsidiaries, taken as a whole, (v) the declaration of a banking moratorium by
either federal or New York State authorities or (vi) the taking of any action
by any federal, state or local government or agency in respect of its monetary
or fiscal affairs which in your good faith opinion has a material adverse
effect on the financial markets in the United States and would, in the Initial
Purchaser's good faith judgment, make it impracticable to market the Series A
Senior Preferred Stock on the terms and in the manner contemplated in the
Offering Memorandum.
11. Miscellaneous. Notices given pursuant to any provision of
this Agreement shall be addressed as follows: (i) if to the Company, to the
Liberty Group Publishing, Inc., 0000 Xxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxx 00000,
Attention: Xxxxxxx X. Xxxxxx, with a copy to Xxxxxxx Xxxxx & Partners, L.P.,
00000 Xxxxx Xxxxxx Xxxxxxxxx, Xxxxx 0000, Xxx Xxxxxxx, Xxxxxxxxxx 00000,
Attention: Xxxxx X. Xxxxx, and with a copy to Xxxxx, Xxxxx & Xxxxx, 000 Xxxxx
Xx Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000-0000, Attention: Xxxxx X. Xxxxx,
(ii) if to the Initial Purchaser, Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities
Corporation, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Syndicate
Department, with a copy to Xxxxxxxx & Xxxxxxxx, 000 Xxxxx Xxxxxx Xxxxxx, Xxx
Xxxxxxx, Xxxxxxxxxx 00000-0000, Attention: Xxxxxx X. Xxxxxxx, Esq. or (iii)
in any case to such other address as the person to be notified may have
requested in writing.
The respective indemnities, contribution agreements,
representations, warranties and other statements and agreements of the Company
and the Initial Purchaser set forth in or made pursuant to this Agreement shall
remain operative and in full force and effect, and will survive delivery of and
payment for the Series A Senior Preferred Stock, regardless of (i) any
investigation, or statement as to the results thereof, made by or on behalf of
the Initial Purchaser, the officers or directors of the Initial Purchaser, any
person controlling the Initial Purchaser, the Company, the officers or
directors of the Company, or any person controlling the Company, (ii)
acceptance of the Series A Senior Preferred Stock and payment for them
hereunder and (iii) termination of this Agreement.
If for any reason the Series A Senior Preferred Stock are not
delivered by or on behalf of the Company as provided herein (other than as a
result of any termination of this Agreement pursuant to Section 10), the
Company agrees to reimburse the Initial Purchaser for all out-of-pocket
expenses (including the fees and disbursements of counsel) reasonably incurred
by them. Notwithstanding any termination of this Agreement, the Company shall
be liable for all expenses which it has agreed to pay pursuant to Section 5(h)
hereof. The Company also agrees to reimburse the Initial Purchaser, its
respective directors and officers and any person controlling the Initial
Purchaser for any and all fees and expenses (including, without limitation, the
fees and disbursements of counsel) reasonably incurred by them in connection
with enforcing their rights hereunder.
-30-
31
Except as otherwise provided, this Agreement has been and is made
solely for the benefit of and shall be binding upon the parties hereto and
their respective successors and the officers and directors and other persons
referred to in Section 8, all as and to the extent provided in this Agreement,
and no other person shall acquire or have any right under or by virtue of this
Agreement. The term "successors and assigns" shall not include a purchaser of
any of the Series A Senior Preferred Stock from the Initial Purchaser merely
because of such purchase.
This Agreement shall be governed and construed in accordance with
the laws of the State of New York.
This Agreement may be signed in various counterparts which
together shall constitute one and the same instrument.
-31-
32
Please confirm that the foregoing correctly sets forth the
agreement among the Company and the Initial Purchaser.
Very truly yours,
LIBERTY GROUP PUBLISHING, INC.
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
The foregoing Purchase Agreement
is hereby confirmed and accepted
as of the date first above written.
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President
-32-
