EXECUTION COPY
$85,478,000
RADIO ONE, INC.
12% Senior Subordinated Notes Due 2004
PURCHASE AGREEMENT
May 14, 1997
Credit Suisse First Boston Corporation
NationsBanc Capital Markets, Inc.
c/o Credit Suisse First Boston Corporation
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Dear Sirs:
1. Introductory. Radio One, Inc., a Delaware corporation (the
"Issuer"), proposes, subject to the terms and conditions stated herein, to issue
and sell to the several initial purchasers named in Schedule A hereto (the
"Initial Purchasers") U.S.$85,478,000 principal amount at maturity of its 12%
Senior Subordinated Notes due 2004 (the "Offered Securities") to be
unconditionally guaranteed on a senior subordinated basis (the "Guarantees") by
Radio One Licenses, Inc., a Delaware corporation and a wholly owned subsidiary
of the Issuer, and all future Subsidiary Guarantors (as defined in the Indenture
referred to below) (collectively, the "Guarantors"). The Offered Securities will
be issued under an indenture dated as of May 15, 1997 (the "Indenture"), among
the Issuer, the Guarantors named therein and United States Trust Company of New
York, as Trustee.
This Agreement, the Indenture, the Registration Rights
Agreement referred to below and each Guarantee are referred to herein
collectively as the "Operative Documents". The Issuer, each Guarantor and each
other subsidiary of the Issuer are referred to herein individually as a
"Relevant Party" and collectively as the "Relevant Parties".
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The Issuer and the Guarantors hereby agree with the several
Initial Purchasers as follows:
2. Representations and Warranties of the Issuer. The Issuer
and the Guarantors represent and warrant to, and agree with, the several Initial
Purchasers that:
(a) A confidential preliminary offering circular dated March
26, 1997 (the "Preliminary Offering Circular") and a confidential offering
circular dated May 14, 1997 (the "Final Offering Circular") relating to the
Offered Securities have been prepared by the Issuer. The Preliminary Offering
Circular and the Final Offering Circular are hereinafter collectively referred
to as the "Offering Document". The Preliminary Offering Circular and the Final
Offering Circular, as of their respective dates, do not include any untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading. The preceding sentence does not apply to
statements in or omissions from the Offering Document based upon written
information furnished to the Issuer by any Initial Purchaser through Credit
Suisse First Boston Corporation ("CSFBC") specifically for use therein, it being
understood and agreed that the only such information is that described as such
in Section 7(b). The information (the "Additional Issuer Information") required
to be delivered to holders and prospective purchasers of the Offered Securities
pursuant to Section 4.02 of the Indenture and in accordance with Rule 144A(d)(4)
under the Securities Act of 1933, as amended (the "Securities Act"), does not
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.
(b) The Issuer has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware, with power
and authority (corporate and other) to own its properties and conduct its
business as described in the Offering Document; and the Issuer is duly qualified
to do business as a foreign corporation in good standing in all other
jurisdictions in which its ownership or lease of property or the conduct of its
business requires such qualification, except where the failure to so qualify and
be in good standing could not reasonably be expected to have a material adverse
effect on the condition (financial or other), business, properties or results of
operations of the Relevant Parties taken as a whole (a "Material Adverse
Effect").
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(c) The Issuer has an authorized capitalization as set forth
in the Offering Document and all the issued shares of capital stock of the
Issuer have been duly authorized and validly issued and are fully paid and
non-assessable. The capital stock of the Issuer conforms in all material
respects to the description thereof contained in the Offering Document.
(d) Each subsidiary of the Issuer has been duly organized and
is validly existing in good standing under the laws of the jurisdiction of its
organization, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Offering Document; and
each subsidiary of the Issuer is duly qualified to do business in good standing
in all other jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification except where the failure to
so qualify and be in good standing could not reasonably be expected to have a
Material Adverse Effect; all of the issued and outstanding capital stock of each
subsidiary of the Issuer that is a corporation has been duly authorized and
validly issued and is fully paid and nonassessable; and the capital stock or
equity interests of each subsidiary owned by the Issuer, directly or through
subsidiaries, is owned free from liens, encumbrances and defects, except as
otherwise described in the Offering Document.
(e) The Indenture has been duly authorized by the Issuer and
the Guarantors; the Offered Securities have been duly authorized by the Issuer;
each Guarantee has been duly authorized by each Guarantor party to it; and when
the Offered Securities are delivered and paid for pursuant to this Agreement on
the Closing Date (as defined below), the Indenture will have been duly executed
and delivered by the Issuer and the Guarantors, such Offered Securities will
have been duly executed, authenticated, issued and delivered and will conform to
the description thereof contained in the Offering Document, each Guarantee will
have been duly executed and delivered by each Guarantor party thereto, and the
Indenture, each Guarantee and such Offered Securities will constitute valid and
legally binding obligations of the Issuer and the Guarantors, enforceable in
accordance with their terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity principles.
(f) The Registration Rights Agreement dated May 14, 1997 (the
"Registration Rights Agreement"), among the Issuer, the Guarantors and the
Initial Purchasers, has
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been duly authorized, executed and delivered by each of the Issuer and the
Guarantors and conforms in all material respects to the description thereof
contained in the Offering Document. The Registration Rights Agreement
constitutes a valid and legally binding obligation of the Issuer and each
Guarantor and is enforceable in accordance with its terms.
(g) This Agreement has been duly authorized, executed and
delivered by the Issuer and the Guarantors.
(h) There are no contracts, agreements or understandings
between the Issuer and any person that would give rise to a valid claim against
the Issuer or any Initial Purchaser for a brokerage commission, finder's fee or
other like payment in connection with the issuance and sale of the Offered
Securities other than the Initial Purchasers.
(i) No consent, approval, authorization, or order of, or
filing with, any governmental agency or body or any court is required for the
consummation of the transactions contemplated by the Operative Documents or in
connection with the issuance and sale of the Offered Securities by the Issuer,
except such as have been obtained or made or as may be required under the
Securities Act and the rules and regulations of the Commission thereunder with
respect to the Registration Rights Agreement and the transactions contemplated
thereunder and such as may be required by securities or blue sky laws of the
various states of the United States.
(j) The execution, delivery and performance by each of the
Issuer and the Guarantors of the Operative Documents to which it is a party and
the issuance and sale of the Offered Securities and compliance with the terms
and provisions of the Operative Documents and the Offered Securities, will not
result in a breach or violation of any of the terms and provisions of, or
constitute a default under, any statute, any rule, regulation or order of any
governmental agency or body or any court, domestic or foreign, having
jurisdiction over any Relevant Party or any of their respective properties, or
any agreement or instrument to which any Relevant Party is a party or by which
any Relevant Party is bound or to which any of the properties of any Relevant
Party is subject except for any breaches or violations that could not reasonably
be expected, individually or in the aggregate, to have a Material Adverse
Effect, or the charter or by-laws of any Relevant Party. The Issuer and each
Guarantor has full power and authority to authorize, issue and sell the Offered
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Securities and the Guarantees, respectively, as contemplated by this Agreement.
(k) The Preferred Stockholders' Agreement dated as of May 14,
1997 (the "Preferred Stockholders' Agreement") has been executed and delivered
by the Issuer, each Guarantor and each holder of the Issuer's outstanding 15%
Subordinated Promissory Notes due 2003 (together with all accrued interest
thereon, the "Existing Notes").
(l) No consent, approval, authorization, or order of, or
filing with, any governmental agency or any court is required under United
States federal or state laws for the consummation of the Existing Notes Exchange
(as defined below) or the Philadelphia Acquisition (as defined below).
(m) Except as disclosed in the Offering Document, the Relevant
Parties have good and marketable title to all material real properties and good
and valid title to all other material properties and assets owned by them, in
each case free from liens, encumbrances and defects that would materially affect
the value thereof or materially interfere with the use made or to be made
thereof by them; and the Relevant Parties hold any leased real or personal
property under valid and enforceable leases with no exceptions that would
materially interfere with the use made or to be made thereof by them.
(n) The Relevant Parties possess adequate certificates,
authorities or permits issued by appropriate governmental agencies or bodies,
other than the Federal Communications Commission (the "FCC"), necessary to
conduct the business now operated by them and have not received any notice of
proceedings relating to the revocation or modification of any such certificate,
authority or permit that, if determined adversely to any Relevant Party, would
individually or in the aggregate have a Material Adverse Effect.
(o) Schedule B hereto contains a true and complete list of all
the licenses, permits and authorizations (the "Licenses") obtained from the FCC
which the Issuer directly, or indirectly through its subsidiaries, holds with
respect to the radio stations (the "Stations") owned or operated by the Issuer,
directly or indirectly through its subsidiaries. The Issuer, directly or
indirectly through its subsidiaries, is the authorized legal holder of the
Licenses listed in Schedule B, none of which is subject to any restrictions or
conditions other than on the face of the Licenses or those generally applicable
to the operations of the Stations that would limit in any
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material respect the full operation of the Stations as currently operated. There
are no applications, complaints, or proceedings pending or, to the Issuer's best
knowledge, threatened as of the date hereof and the Closing Date before the FCC
relating to the business or operations of the Stations, except as disclosed in
Schedule C hereto. No proceedings, other than those affecting the broadcast
industry generally, are pending or, to the Issuer's best knowledge, threatened
which may result in the revocation, modification, non-renewal or suspension of
any of the Licenses listed in Schedule B, the denial of any pending application,
the issuance of any cease and desist order, the imposition of any administrative
action by the FCC or any other governmental or regulatory authority with respect
to the Licenses listed in Schedule B, except as disclosed in Schedule C. The
Issuer has no reason to believe that the Licenses listed in Schedule B will not
be renewed in their ordinary course, and all material reports, forms and
statements required to be filed with the FCC with respect to the Stations since
the grant of the last renewal of the Stations' Licenses issued by the FCC have
been filed and were complete and accurate in all material respects when filed.
The Licenses listed in Schedule B, or extensions or renewals thereof, are in
full force and effect and are unimpaired by any acts or omissions of any
Relevant Party.
(p) As of the date hereof and the Closing Date, the Stations
are operating in material compliance with all applicable requirements of the FCC
and the Stations are not under any special or temporary authority with respect
to their operations.
(q) Each Relevant Party is in material compliance with the
Communications Act of 1934 as amended (the "Communications Act") and all written
rules, regulations and policies of the FCC applicable to the conduct of the
business and operations of the Stations. As of the date hereof and the Closing
Date, the use of the assets of the Stations does not violate the Communications
Act and any written rules, regulations or policies of the FCC, except where such
violation could not reasonably be expected to have a Material Adverse Effect.
(r) As of the date hereof and the Closing Date, no labor
dispute with the employees of any Relevant Party exists or, to the knowledge of
any Relevant Party, is imminent that might have a Material Adverse Effect.
(s) The Relevant Parties own, possess or can acquire on
reasonable terms adequate trademarks, trade names and other rights to
inventions, know-how, patents,
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copyrights, confidential information and other intellectual property
(collectively, "intellectual property rights") necessary to conduct the business
now operated by them, or presently employed by them, and have not received any
notice of infringement of or conflict with asserted rights of others with
respect to any intellectual property rights that, if determined adversely to any
Relevant Party, would individually or in the aggregate have a Material Adverse
Effect.
(t) No Relevant Party is in violation of any statute, any
rule, regulation, decision or order of any governmental agency or body or any
court, domestic or foreign, relating to the use, disposal or release of
hazardous or toxic substances or relating to the protection or restoration of
the environment or human exposure to hazardous or toxic substances
(collectively, "environmental laws"), owns or operates any real property
contaminated with any substance that is subject to any environmental laws, is
liable for any off-site disposal or contamination pursuant to any environmental
laws, or is subject to any claim relating to any environmental laws, which
violation, contamination, liability or claim would individually or in the
aggregate have a Material Adverse Effect; and no Relevant Party is aware of any
pending investigation which might lead to such a claim.
(u) There are no pending actions, suits or proceedings against
or affecting any Relevant Party or any of their respective properties that, if
determined adversely to any Relevant Party, would individually or in the
aggregate have a Material Adverse Effect, or would materially and adversely
affect the ability of any Relevant Party to perform its obligations under any
Operative Document to which it is a party, or which are otherwise material in
the context of the sale of the Offered Securities; and no such actions, suits or
proceedings are threatened or contemplated.
(v) The financial statements included in the Offering Document
present fairly in all material respects the financial position of the Issuer and
its consolidated subsidiaries and, to the best knowledge of the Issuer, Xxxxx
Broadcasting Company of Pennsylvania Inc. ("Xxxxx") as of the dates shown and
their results of operations and cash flows for the periods shown, and such
financial statements have been prepared in conformity with the generally
accepted accounting principles in the United States applied on a consistent
basis; and the assumptions used in preparing the pro forma financial statements
included in the Offering Document provide a reasonable basis for presenting the
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significant effects directly attributable to the transactions or events
described therein, the related pro forma adjustments give appropriate effect to
those assumptions and the pro forma columns therein reflect the proper
application of those adjustments to the corresponding historical financial
statement amounts. To the best knowledge of the Issuer, the Statement of
Operations relating to WYCB-AM included in the Offering Document presents fairly
in all material respects the information contained therein.
(w) Since the date of the latest audited financial statements
included in the Offering Document there has been no material adverse change, nor
any development or event involving a prospective material adverse change, in the
condition (financial or other), business, properties or results of operations of
the Relevant Parties taken as a whole, or Xxxxx and there has been no dividend
or distribution of any kind declared, paid or made by the Issuer on any class of
its capital stock.
(x) The Issuer is not an open-end investment company, unit
investment trust or face-amount certificate company that is or is required to be
registered under Section 8 of the United States Investment Company Act of 1940
(the "Investment Company Act"), nor is it a closed-end investment company
required to be registered, but not registered, thereunder; and the Issuer is not
and, after giving effect to the offering and sale of the Offered Securities and
the application of the proceeds thereof as described in the Offering Document,
will not be an "investment company" as defined in the Investment Company Act.
(y) No securities of the same class (within the meaning of
Rule 144A(d)(3) under the Securities Act) as the Offered Securities are listed
on any national securities exchange registered under Section 6 of the United
States Securities Exchange Act of 1934 (the "Exchange Act") or quoted in a U.S.
automated inter-dealer quotation system.
(z) Assuming that the representations and warranties set forth
in Section 4 hereof are true and correct, the offer and sale of the Offered
Securities in the manner contemplated by this Agreement will be exempt from the
registration requirements of the Securities Act by reason of Section 4(2)
thereof and Regulation S thereunder; and it is not necessary to qualify an
indenture in respect of the Offered Securities under the United States Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act").
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(aa) Assuming that the representations and warranties set
forth in Section 4 hereof are true and correct, neither the Issuer, nor any of
its affiliates, nor any person acting on its or their behalf (i) has, within the
six-month period prior to the date hereof, offered or sold in the United States
or to any U.S. person (as such terms are defined in Regulation S under the
Securities Act) the Offered Securities or any security of the same class or
series as the Offered Securities or (ii) has offered or will offer or sell the
Offered Securities (A) in the United States by means of any form of general
solicitation or general advertising within the meaning of Rule 502(c) under the
Securities Act or (B) with respect to any such securities sold in reliance on
Rule 903 of Regulation S ("Regulation S") under the Securities Act, by means of
any directed selling efforts within the meaning of Rule 902(b) of Regulation S.
Assuming that the representations and warranties set forth in Section 4 hereof
are true and correct, the Issuer, its affiliates and any person acting on its or
their behalf have complied and will comply with the offering restrictions
requirement of Regulation S. The Issuer has not entered and will not enter into
any contractual arrangement with respect to the distribution of the Offered
Securities except for this Agreement.
3. Purchase, Sale and Delivery of Offered Securities. On the
basis of the representations, warranties and agreements herein contained, but
subject to the terms and conditions herein set forth, the Issuer agrees to sell
to the Initial Purchasers, and the Initial Purchasers agree, severally and not
jointly, to purchase from the Issuer, at a purchase price of 97% of the gross
proceeds thereof plus accrued interest and any increase in accreted value from
May 19, 1997 to the Closing Date (as hereinafter defined), the respective
principal amounts at maturity of the Offered Securities set forth opposite the
names of the several Initial Purchasers in Schedule A hereto. The Issuer will
deliver against payment of the purchase price the Offered Securities in the form
of one or more permanent global securities in definitive form (the "Global
Securities") deposited with the Trustee as custodian for The Depository Trust
Company ("DTC") and registered in the name of Cede & Co., as nominee for DTC,
and such other securities in definitive, fully registered form as CSFBC shall
request for delivery to institutional "accredited investors" (the "AI
Securities"). Interests in any permanent Global Securities will be held only in
book-entry form through DTC, except in the limited circumstances described in
the Offering Document. Payment for the Offered Securities shall be made by the
Initial Purchasers in Federal (same-day) funds by
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wire transfer to an account in New York previously designated to CSFBC by the
Issuer at a bank acceptable to CSFBC at the office of Xxxxxxxx & Xxxxx, Citicorp
Center, 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx, at 10:00 a.m. (New York time),
on May 19, 1997, or at such other time not later than seven full business days
thereafter as CSFBC and the Issuer determine, such time being herein referred to
as the "Closing Date", against delivery to the Trustee as custodian for DTC of
the Global Securities and delivery to CSFBC of the AI Securities. The Global
Securities and AI Securities will be made available for checking at the above
office at least 24 hours prior to the Closing Date.
4. Representations by Initial Purchasers; Resale by Initial
Purchasers. (a) Each Initial Purchaser severally represents and warrants to the
Issuer that it is an "accredited investor" within the meaning of Regulation D
under the Securities Act.
(b) Each Initial Purchaser severally acknowledges that the
Offered Securities have not been registered under the Securities Act and, unless
so registered, may not be offered or sold within the United States or to, or for
the account or benefit of, U.S. persons except in accordance with Regulation S
or pursuant to an exemption from the registration requirements of the Securities
Act. Each Initial Purchaser severally represents and agrees that it has offered
and sold the Offered Securities, and will offer and sell the Offered Securities
only in accordance with Rule 903 or Rule 144A under the Securities Act ("Rule
144A"). Accordingly, neither such Initial Purchaser nor its affiliates, nor any
persons acting on its or their behalf, have engaged or will engage in any
directed selling efforts with respect to the Offered Securities, and such
Initial Purchaser, its affiliates and all persons acting on its or their behalf
have complied and will comply with the offering restrictions requirement of
Regulation S. Unless otherwise defined herein, terms used in this subsection (b)
have the meanings given to them by Regulation S.
(c) Each Initial Purchaser may offer and sell Offered
Securities in definitive, fully registered form to a limited number of
institutions, each of which is reasonably believed by such Initial Purchaser to
be an "accredited investor" within the meaning of Rule 501(a)(1), (2), (3) or
(7) under the Securities Act or an entity in which all of the equity owners are
accredited investors within the meaning of Rule 501(a)(1), (2), (3) or (7) under
the Securities Act (each, an "Institutional Accredited Investor"); provided,
however, that each such Institutional Accredited Investor executes and delivers
to the Initial
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Purchasers and the Company, prior to the consummation of any sale of Offered
Securities to such Institutional Accredited Investor, an Accredited Investor's
Letter in substantially the form attached as Annex A to the Offering Document.
(d) Each Initial Purchaser severally agrees that it and each
of its affiliates has not entered and will not enter into any contractual
arrangement with respect to the distribution of the Offered Securities except
for any such arrangements with the other Initial Purchasers or affiliates of the
other Initial Purchasers or with the prior written consent of the Issuer.
(e) Each Initial Purchaser severally agrees that it and each
of its affiliates will not offer or sell the Offered Securities purchased hereby
in the United States by means of any form of general solicitation or general
advertising within the meaning of Rule 502(c) under the Securities Act,
including, but not limited to (i) any advertisement, article, notice or other
communication published in any newspaper, magazine or similar media or broadcast
over television or radio or (ii) any seminar or meeting whose attendees have
been invited by any general solicitation or general advertising. Each Initial
Purchaser severally agrees, with respect to resales made in reliance on Rule
144A of any of the Offered Securities, to deliver either with the confirmation
of such resale or otherwise prior to settlement of such resale a notice to the
effect that the resale of such Offered Securities has been made in reliance upon
the exemption from the registration requirements of the Securities Act provided
by Rule 144A.
(f) Each Initial Purchaser severally represents and agrees
that (i) it has not offered or sold and prior to the date six months after the
date of issue of the Offered Securities will not offer or sell any Offered
Securities to persons in the United Kingdom except to persons whose ordinary
activities involve them in acquiring, holding, managing or disposing of
investments (as principal or agent) for the purposes of their businesses or
otherwise in circumstances which have not resulted and will not result in an
offer to the public in the United Kingdom within the meaning of the Public
Offers of Securities Regulations 1995, (ii) it has complied and will comply with
all applicable provisions of the Financial Services Xxx 0000 with respect to
anything done by it in relation to the Offered Securities in, from or otherwise
involving the United Kingdom and (iii) it has only issued or passed on and will
only issue or pass on in the United Kingdom any document received by it in
connection with the issue of the Offered Securities to a person who is of a kind
described in Article 11(3) of the
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Financial Services Xxx 0000 (Investment Advertisements) (Exemptions) Order 1996
or is a person to whom the document may otherwise lawfully be issued or passed
on.
(g) Each Initial Purchaser severally represents and agrees
that (i) it has not solicited, and will not solicit, offers to purchase any of
the Offered Securities from, (ii) it has not sold, and will not sell, any of the
Offered Securities to, and (iii) it has not distributed, and will not
distribute, the Offering Document to, any person or entity in any jurisdiction
outside of the United States except, in each case, in compliance in all material
respects with all applicable laws. For the purpose of this Agreement, "United
States" means the United States of America, its territories, its possessions and
other areas subject to its jurisdiction.
5. Certain Agreements of the Issuer. The Issuer agrees with
the several Initial Purchasers that:
(a) The Issuer will advise CSFBC promptly of any proposal to
amend or supplement the Offering Document and will not effect such amendment or
supplementation without CSFBC's consent. If, at any time prior to the completion
of the resale of the Offered Securities by the Initial Purchasers, any event
occurs as a result of which the Offering Document as then amended or
supplemented would include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading, or if
it is necessary at any such time to amend or supplement the Offering Document to
comply with any applicable law, the Issuer promptly will notify CSFBC of such
event and promptly will prepare, at its own expense, an amendment or supplement
that will correct such statement or omission or effect such compliance. Neither
CSFBC's consent to, nor the Initial Purchasers' delivery to offerees or
investors of, any such amendment or supplement shall constitute a waiver of any
of the conditions set forth in Section 6.
(b) The Issuer will furnish to CSFBC copies of any preliminary
offering circular, the Offering Document and all amendments and supplements to
such documents, in each case as soon as available and in such quantities as
CSFBC reasonably requests, and the Issuer will furnish to CSFBC on the date
hereof three copies of the Offering Document signed by a duly authorized officer
of the Issuer, one of which will include the independent accountants' reports
therein manually signed by such independent accountants. At any time when the
Issuer is not subject to Section 13 or 15(d)
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of the Exchange Act, the Issuer will promptly furnish or cause to be furnished
to CSFBC (and, upon request, to each of the other Initial Purchasers) and, upon
request of holders and prospective purchasers of the Offered Securities, to such
holders and purchasers, copies of the information required to be delivered to
holders and prospective purchasers of the Offered Securities pursuant to Rule
144A(d)(4) under the Securities Act (or any successor provision thereto) in
order to permit compliance with Rule 144A in connection with resales by such
holders of the Offered Securities. The Issuer will pay the expenses of printing
and distributing to the Initial Purchasers all such documents.
(c) The Issuer will arrange for the qualification of the
Offered Securities for sale under the laws of such jurisdictions in the United
States and Canada as CSFBC reasonably designates and will continue such
qualifications in effect so long as required for the resale of the Offered
Securities by the Initial Purchasers; provided, however, that the Issuer will
not be required to qualify as a foreign corporation, subject itself to taxation
or to file a general consent to service of process in any such jurisdiction.
(d) For so long as any Offered Securities remain outstanding,
the Issuer will furnish to CSFBC and, upon request, to the other Initial
Purchaser, as soon as practicable after the end of each fiscal year, a copy of
its annual report to stockholders for such year; and the Issuer will furnish to
CSFBC and, upon request, to the other Initial Purchaser (i) as soon as
available, a copy of each report, notice or communication sent to security
holders or, if applicable, filed with any securities exchange and (ii) from time
to time, such other information concerning the Issuer as CSFBC may reasonably
request.
(e) During the period of two years after the Closing Date, the
Issuer will, upon request, furnish to CSFBC and the other Initial Purchaser and
any holder of Offered Securities a copy of the restrictions on transfer
applicable to the Offered Securities.
(f) During the period of two years after the Closing Date, the
Issuer will not, and will not permit any of its affiliates (as defined in Rule
144 under the Securities Act) to, resell any of the Offered Securities that have
been reacquired by them.
(g) During the period of two years after the Closing Date, the
Issuer will not be or become an open-end investment company, unit investment
trust or face-amount
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certificate company that is or is required to be registered under Section 8 of
the Investment Company Act and is not, and will not be or become, a closed-end
investment company required to be registered, but not registered, under the
Investment Company Act.
(h) The Issuer will pay all expenses incidental to the
performance of the Issuer's and each Guarantor's obligations (as applicable)
under the Operative Documents, including (i) the fees and expenses of the
Trustee and its professional advisers; (ii) all expenses in connection with the
execution, issue, authentication, packaging and initial delivery of the Offered
Securities, the preparation and printing of this Agreement, the Registration
Rights Agreement, the Offered Securities, the Indenture, the Guarantees, the
Offering Document and amendments and supplements thereto, and any other document
relating to the issuance, offer, sale and delivery of the Offered Securities;
(iii) the cost of qualifying the Offered Securities for trading in the Private
Offerings, Resale and Trading through Automated Linkages (PORTAL) market and any
expenses incidental thereto; and (iv) the cost of any advertising approved by
the Issuer in connection with the issue of the Offered Securities. The Issuer
will also pay or reimburse the Initial Purchasers (to the extent incurred by
them) for any expenses (including reasonable fees and disbursements of counsel)
incurred in connection with qualification of the Offered Securities for sale
under the laws of such jurisdictions in the United States and Canada as CSFBC
reasonably designates and the printing of memoranda relating thereto, for any
fees charged by investment rating agencies for the rating of the Offered
Securities, for all travel expenses of the Issuer's officers and employees and
any other expenses of the Issuer in connection with attending or hosting
meetings with prospective purchasers of the Offered Securities from the Initial
Purchasers and for expenses incurred in distributing preliminary offering
circulars and the Offering Document (including any amendments and supplements
thereto) to the Initial Purchasers.
(i) For a period of 90 days after the date hereof, neither the
Issuer nor any of its affiliates has or will, either alone or with one or more
other persons, bid for or purchase for any account in which it or any of its
affiliates has a beneficial interest any Offered Securities or attempt to induce
any person to purchase any Offered Securities; and neither it nor any of its
affiliates will make bids or purchases for the purpose of creating actual, or
apparent, active trading in, or of raising the price of, the Offered Securities.
15
(j) For a period of 180 days after the date hereof, the Issuer
will not offer, sell, contract to sell, pledge or otherwise dispose of any
United States dollar-denominated debt securities issued or guaranteed by the
Issuer (other than any commercial loans or other debt incurred in the ordinary
course of the Issuer's business) and having a maturity of more than one year
from the date of issue without the prior written consent of CSFBC, which consent
shall not be reasonably withheld. The Issuer will not at any time offer, sell,
contract to sell, pledge or otherwise dispose of, directly or indirectly, any
securities under circumstances where such offer, sale, pledge, contract or
disposition would cause the exemption afforded by Section 4(2) of the Securities
Act or the safe harbor of Regulation S thereunder to cease to be applicable to
the offer and sale of the Offered Securities.
6. Conditions of the Obligations of the Initial Purchasers.
The obligations of the several Initial Purchasers to purchase and pay for the
Offered Securities will be subject to the accuracy of the representations and
warranties on the part of the Issuer and the Guarantors herein, to the accuracy
of the statements of officers of the Issuer made pursuant to the provisions
hereof, to the performance by the Issuer of its obligations hereunder and to the
following additional conditions precedent:
(a) The Purchasers shall have received a letter,
dated the date of this Agreement, of Xxxxxx Xxxxxxxx LLP in
form and substance satisfactory to the Initial Purchasers
concerning the financial information with respect to the
Issuer and its consolidated subsidiaries, Xxxxx and WYCB-AM
set forth in the Offering Document and the Additional Issuer
Information.
(b) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) a change in U.S.
or international financial, political or economic conditions
or currency exchange rates or exchange controls as would, in
the judgment of CSFBC, be likely to prejudice materially the
success of the proposed issue, sale or distribution of the
Offered Securities, whether in the primary market or in
respect of dealings in the secondary market, or (ii)(A) any
change, or any development or event involving a prospective
change, in the condition (financial or other), business,
properties or results of operations of the Issuer or its
subsidiaries which, in the judgment of a majority in interest
of the Initial Purchasers including CSFBC, is material and
adverse and
16
makes it impractical or inadvisable to proceed with completion
of the offering or the sale of and payment for the Offered
Securities; (B) any downgrading in the rating of any debt
securities of the Issuer by any "nationally recognized
statistical rating organization" (as defined for purposes of
Rule 436(g) under the Securities Act), or any public
announcement that any such organization has under surveillance
or review its rating of any debt securities of the Issuer
(other than an announcement with positive implications of a
possible upgrading, and no implication of a possible
downgrading, of such rating); (C) any suspension or limitation
of trading in securities generally on the New York Stock
Exchange, or any setting of minimum prices for trading on such
exchange, or any suspension of trading of any securities of
the Issuer on any exchange or in the over-the-counter market;
(D) any banking moratorium declared by U.S. Federal or New
York authorities; or (E) any outbreak or escalation of major
hostilities in which the United States is involved, any
declaration of war by Congress or any other substantial
national or international calamity or emergency if, in the
judgment of a majority in interest of the Initial Purchasers
including CSFBC, the effect of any such outbreak, escalation,
declaration, calamity or emergency makes it impractical or
inadvisable to proceed with completion of the offering or sale
of and payment for the Offered Securities.
(c) The Initial Purchasers shall have received such
opinion or opinions, dated the Closing Date, of Xxxxxxxx &
Xxxxx, counsel for the Issuer to the effect that:
(i) Each of the Relevant Parties is validly
existing and in good standing under the laws of the
jurisdiction of its incorporation, with corporate
power and authority to own its properties and conduct
its business as described in the Offering Document;
and each of the Relevant Parties is duly qualified to
do business as a foreign corporation in good standing
in all the jurisdictions set forth in Schedule A
thereto;
(ii) Each Operative Document has been duly
authorized, executed and delivered by each Relevant
Party thereto; the Offered Securities have been duly
authorized, executed, authenticated, issued and
delivered and conform as to legal matters in all
material respects to the description thereof
contained in the Offering
17
Document; and each Operative Document and the Offered
Securities constitute valid and legally binding
obligations of the Relevant Party thereto and the
Issuer, enforceable in accordance with their terms,
subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws
of general applicability relating to or affecting
creditors' rights and to general equity principles;
(iii) No Relevant Party is and, after giving
effect to the offering and sale of the Offered
Securities and the application of the proceeds
thereof as described in the Offering Document, will
be an "investment company" as defined in the
Investment Company Act;
(iv) To the best knowledge of such counsel,
no consent, approval, authorization or order of, or
filing with, any governmental agency or body or any
court is required for the consummation of the
transactions contemplated by the Operative Documents,
or in connection with the issuance or sale of the
Offered Securities by the Issuer, except such as have
been obtained or made or as may be required under the
Securities Act and the rules and regulations of the
Commission thereunder with respect to the
Registration Rights Agreement and the transactions
contemplated thereunder and such as may be required
by securities or blue sky laws of the various states
of the United States;
(v) The execution, delivery and performance
of the Operative Documents, and the issuance and sale
of the Offered Securities and compliance with the
terms and provisions thereof, will not result in a
breach or violation of (A) any of the terms and
provisions of, or constitute a default under, any
United States Federal or State of New York statute,
rule or regulation which, in the opinion of such
counsel is normally applicable to transactions
similar to the transactions contemplated hereby, (B)
any order of any governmental agency or body or court
having jurisdiction over the Relevant Parties and
which order is known to such counsel, (C) any
agreement or instrument identified to such counsel by
any Relevant Party as being a material agreement or
instrument, which are set forth in Schedule B
thereto, to which any Relevant Party is a party or by
which any Relevant Party is bound or to which
18
any of the properties of any Relevant Party is
subject or (D) the charter or by-laws of any Relevant
Party, and the Issuer and the Guarantors have full
corporate power and authority to authorize the
Offered Securities and the Guarantees, respectively,
and to issue and sell the Offered Securities, in each
case, as contemplated by this Agreement;
(vi) The descriptions in the Offering
Document of contracts and other documents under the
captions "Risk Factors--Restrictions Imposed by the
Preferred Stockholders' Agreement; --Restrictions
Imposed by the New Credit Facility; Pledge of
Assets", "Description of the Notes", "Description of
Certain Indebtedness", "Description of Capital
Stock", and "Plan of Distribution" (with respect to
this Agreement) are accurate in all material respects
and fairly present the information called for; it
being understood that such counsel need express no
opinion as to the financial statements or other
financial data contained in the Offering Document;
(vii) Assuming that the representations and
warranties set forth in Section 4 hereof are true and
correct, it is not necessary in connection with (A)
the offer, sale and delivery of the Offered
Securities or the Guarantees by the Issuer and each
of the Guarantors, respectively, to the several
Initial Purchasers pursuant to this Agreement or (B)
the resales of the Offered Securities by the several
Initial Purchasers in the manner contemplated by this
Agreement, to register the Offered Securities under
the Securities Act or to qualify an indenture in
respect thereof under the Trust Indenture Act; and
(viii) To the best of such counsel's
knowledge, no consent, approval, authorization, or
order of, or filing with, any governmental agency or
body (other than the FCC) or any court is required
under United States Federal or state laws for the
consummation of the Existing Notes Exchange.
At the time the foregoing opinion is delivered, such
counsel shall additionally state that it has participated in
conferences with officers and other representatives of the
Relevant Parties, representatives of the independent public
accountants for the Relevant
19
Parties, representatives of the Initial Purchasers and counsel
for the Initial Purchasers, at which conferences the contents
of the Offering Document and related matters were discussed,
and, although it has not independently verified and is not
passing upon and assumes no responsibility for the accuracy,
completeness or fairness of the statements contained in the
Offering Document (except to the extent specified in clause
(ii) under Section 6(c)), no facts have come to its attention
which lead it to believe that the Offering Document on the
date thereof or at the Closing 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 contained therein, in the light of the
circumstances under which they were made, not misleading (it
being understood that such counsel need express no opinion
with respect to the financial statements and related notes
thereto and the other financial, statistical and accounting
data included in the Offering Document).
(d) The Initial Purchasers shall have received an
opinion, dated the Closing Date of Xxxxxxx & Xxxxxx, P.C.,
counsel to the Issuer on certain regulatory matters, that:
(i) Schedule B hereto contains a true and
complete list of all the Licenses obtained from the
FCC which the Issuer directly, or indirectly through
its subsidiaries, holds with respect to the Stations
owned or operated by the Issuer, directly or
indirectly through its subsidiaries. The Issuer,
directly or indirectly through its subsidiaries, is
the authorized legal holder of the Licenses listed in
Schedule B, none of which is subject to any
restrictions or conditions other than on the face of
the Licenses or those generally applicable to the
operations of the Stations that would limit in any
material respect the full operation of the Stations
as currently operated. There are no applications,
complaints, or proceedings pending or, to the best of
such counsel's knowledge and belief after due
inquiry, threatened as of the date hereof and the
Closing Date before the FCC relating to the business
or operations of the Stations, except as disclosed in
Schedule C hereto. No proceedings, other than those
affecting the broadcast industry generally, are
pending or, to the best of such counsel's knowledge
and belief after due inquiry, threatened which may
result in the revocation, modification,
20
non-renewal or suspension of any of the Licenses
listed in Schedule B, the denial of any pending
applications, the issuance of any cease and desist
order, the imposition of any administrative actions
by the FCC with respect to the Licenses listed in
Schedule B, except as disclosed in Schedule C. Such
counsel has no reason to believe that the Licenses
listed in Schedule B will not be renewed in their
ordinary course, and all material reports, forms and
statements required to be filed with the FCC with
respect to the Stations since the grant of the last
renewal of the Stations' Licenses issued by the FCC
have been filed and, to the best of such counsel's
knowledge, were complete and accurate in all material
respects when filed. The Licenses listed in Schedule
B, or extensions or renewals thereof, are in full
force and effect and are unimpaired by any acts or
omissions of any Relevant Party;
(ii) To the best of such counsel's knowledge
based upon a certificate from the responsible
officers of the Relevant Parties, as of the date
hereof and the Closing Date, the Stations are
operating in material compliance with all applicable
requirements of the FCC and the Stations are not
under any special or temporary authority with respect
to their operations;
(iii) To the best of such counsel's
knowledge based upon a certificate from the
responsible officers of the Relevant Parties, each
Relevant Party is in material compliance with the
Communications Act and all written rules, regulations
and policies of the FCC applicable to the conduct of
the business and operations of the Stations. To the
best of such counsel's knowledge, as of the date
hereof and the Closing Date, the use of the assets of
the Stations does not violate the Communications Act
or any written rules, regulations or policies of the
FCC;
(iv) No license, permit, consent, approval,
order or authorization of, or filing with, the FCC is
required in connection with the issuance of the
Offered Securities, the Philadelphia Acquisition, the
Existing Notes Exchange and the consummation of the
transactions contemplated by that certain Amended and
Restated Credit Agreement to be entered into by the
Issuer, NationsBank of Texas, N.A., as Agent and a
Lender, and the other Lenders to be
21
named therein (the "Credit Agreement") described in
the Offering Document, except such as have been
obtained and except that the filing of certain
documents with the FCC may be required after the
issuance of the Offered Securities or the
consummation of the Philadelphia Acquisition, the
Existing Notes Exchange or the transactions
contemplated by the Credit Agreement;
(v) Neither the issuance and sale of the
Offered Securities nor the performance by the Issuer
and the Guarantors of their respective obligations
under Operative Documents will result in a violation
of the Communications Act, or any applicable
policies, rules or regulations promulgated under the
Communications Act binding on the Issuer or any of
its subsidiaries or, to the best of such counsel's
knowledge and belief after due inquiry, any order,
writ, judgment, injunction, decree or award of the
FCC binding on the Issuer or any of its subsidiaries
except that in pursuing any remedies that the Trustee
may have upon a default by the Issuer pursuant to the
Operative Documents and applicable law, if the
exercise of such remedies would result in a change of
control of any Relevant Party, or an assignment of
the Licenses, then such exercise will be subject to
prior FCC approval; and
(vi) To the extent they constitute a summary
of the legal matters, documents or proceedings
referred to therein, the statements in the Offering
Document under the captions "Risk Factors
--Government Regulation; --Antitrust Matters",
"Business--Competition; --Federal Regulation of Radio
Broadcasting" and "The Transactions--Pending
Acquisitions" fairly present the information called
for with respect to such legal matters, documents and
proceedings and fairly summarize the matters referred
to therein in all material respects; it being
understood that, except with respect to the
statements in the Offering Document under the caption
"The Transactions--Pending Acquisitions", such
counsel's opinion with regard to the foregoing is
limited to its knowledge of the Communications Act
and the written rules, regulations or policies of the
FCC.
(e) The Initial Purchasers shall have received from
Cravath, Swaine & Xxxxx, counsel for the Initial Purchasers,
such opinion or opinions, dated the Closing
22
Date with respect to the incorporation of the Issuer, the
validity of the Offered Securities, the Offering Document, the
exemption from registration for the offer and sale of the
Offered Securities by the Issuer to the several Initial
Purchasers and the resales by the several Initial Purchasers
as contemplated hereby and other related matters as CSFBC may
require, and the Issuer shall have furnished to such counsel
such documents as they request for the purpose of enabling
them to pass upon such matters.
(f) The Initial Purchasers shall have received a
certificate, dated the Closing Date, of the President or any
Vice President and a principal financial or accounting officer
of:
(i) the Issuer in which such officers, to
the best of their knowledge after reasonable
investigation, shall state that the representations
and warranties of the Issuer in this Agreement are
true and correct, that the Issuer has complied with
all agreements and satisfied all conditions on its
part to be performed or satisfied hereunder at or
prior to the Closing Date and that, subsequent to the
respective dates of the most recent financial
statements in the Offering Document there has been no
material adverse change, nor any development or event
involving a prospective material adverse change, in
the condition (financial or other), business,
properties or results of operations of the Relevant
Parties taken as a whole, Xxxxx and WYCB-AM, except
as described in such certificate; and
(ii) each Guarantor in which such officers,
to the best of their knowledge after reasonable
investigation, shall state that the representations
and warranties of such Guarantor in this Agreement
are true and correct and that such Guarantor has
complied with all agreements and satisfied all
conditions on its part to be performed or satisfied
hereunder at or prior to the Closing Date.
(g) The Initial Purchasers shall have received a
letter, dated the Closing Date, of Xxxxxx Xxxxxxxx LLP that
meets the requirements of subsection (a) of this Section
except that the specified date referred to in such subsection
will be a date not more than three business days prior to the
Closing Date for the purposes of this subsection.
23
(h) Concurrently with or prior to the issuance and
sale of the Offered Securities by the Issuer, (i) all the
Existing Notes shall have been exchanged (the "Existing Notes
Exchange") for shares of the Issuer's 15% Senior Cumulative
Redeemable Preferred Stock, par value $.01 per share, pursuant
to the terms of the Preferred Stockholders' Agreement and (ii)
the Initial Purchasers shall have received true and correct
copies of the Preferred Stockholders' Agreement and evidence
reasonably satisfactory to the Initial Purchasers of the
consummation thereof.
(i) Concurrently with or prior to the issuance and
sale of the Offered Securities by the Issuer, (i) the Issuer
shall have acquired substantially all the assets of WPHI-FM
(the "Philadelphia Acquisition") pursuant to the terms of the
Asset Purchase Agreement dated as of December 6, 1996, between
Xxxxx and the Issuer, as amended by the First Amendment
thereto dated as of March 21, 1997, and the Second Amendment
thereto dated as of April 16, 1997, and (ii) the Initial
Purchasers shall have received evidence reasonably
satisfactory to the Initial Purchasers of the consummation
thereof.
(j) Concurrently with or prior to the issuance and
sale of the Offered Securities by the Issuer, (i) that certain
First Amendment to be entered into by the Issuer and the other
parties thereto, to the Warrantholders' Agreement dated as of
June 6, 1995, and that certain Standstill Agreement to be
entered into by the Issuer, and the other parties thereto,
each of which including such terms as those described in the
Offering Document, shall have been duly executed and delivered
by the respective parties thereto and (ii) the Initial
Purchasers shall have received true and correct copies
thereof.
(k) On the Closing Date and concurrently with the
issuance and sale of the Offered Securities, (i) the
provisions of the Letter of Intent dated March 12, 1997,
between the Issuer and Allied Capital Financial Corporation
relating to the acquisition by the Issuer of WYCB-AM, shall
constitute valid and legally binding obligations of the
parties thereto and (ii) the Initial Purchasers shall have
received evidence reasonably satisfactory to the Initial
Purchasers of the foregoing.
The Issuer will furnish the Initial Purchasers with such
conformed copies of such opinions, certificates, letters and documents as the
Initial Purchasers reasonably request. CSFBC may in its sole discretion waive on
behalf of the
24
Initial Purchasers compliance with any conditions to the obligations of the
Initial Purchasers hereunder.
7. Indemnification and Contribution. (a) The Issuer and each
Guarantor will, jointly and severally, indemnify and hold harmless each Initial
Purchaser against any losses, claims, damages or liabilities, joint or several,
to which such Initial Purchaser may become subject, under the Securities Act or
the Exchange Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the Offering Document, or any amendment or supplement thereto, or any related
preliminary offering circular, or arise out of or are based upon the omission or
alleged omission to state therein a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, and will reimburse each Initial Purchaser for any legal or
other expenses reasonably incurred by such Initial Purchaser in connection with
investigating or defending any such loss, claim, damage, liability or action as
such expenses are incurred; provided, however, that the Issuer and the
Guarantors will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement in or omission or alleged omission from any of such
documents in reliance upon and in conformity with written information furnished
to the Issuer by any Initial Purchaser through CSFBC specifically for use
therein, it being understood and agreed that the only such information consists
of the information described as such in subsection (b) below.
(b) Each Initial Purchaser will severally and not jointly
indemnify and hold harmless the Issuer and the Guarantors against any losses,
claims, damages or liabilities to which the Issuer or the Guarantors may become
subject, under the Securities Act or the Exchange Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in the Offering Document, or any amendment or
supplement thereto, or any related preliminary offering circular, or arise out
of or are based upon the omission or the alleged omission to state therein a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading, in each case to
the extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Issuer
25
by such Initial Purchaser through CSFBC specifically for use therein, and will
reimburse any legal or other expenses reasonably incurred by the Issuer or the
Guarantors in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred, it being understood
and agreed that the only such information furnished by any Initial Purchaser
consists of the following information in the Offering Document furnished on
behalf of each Initial Purchaser: the last paragraph at the bottom of the cover
page concerning the terms of the offering by the Initial Purchasers, the legend
concerning over-allotments, stabilizing transactions, short covering
transactions and penalty bids on the bottom of page 4 and, under the caption
"Plan of Distribution", (i) the third sentence of the second paragraph
thereunder, (ii) the fourth paragraph thereunder, (iii) the third sentence in
the sixth paragraph thereunder and (iv) the eighth paragraph thereunder.
(c) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under subsection (a) or (b) above, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability that it may have to any indemnified party
otherwise than under subsection (a) or (b) above. In case any such action is
brought against any indemnified party and it notifies the indemnifying party of
the commencement thereof, the indemnifying party will be entitled to participate
therein and, to the extent that it may wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party (who shall not, except with the consent
of the indemnified party, be counsel to the indemnifying party), and after
notice from the indemnifying party to such indemnified party of its election so
to assume the defense thereof, the indemnifying party will not be liable to such
indemnified party under this Section for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened action in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party unless such settlement includes an
unconditional release of such indemnified party from all liability on any claims
that are the subject matter of such action.
26
(d) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in subsection (a) or (b) above (i) in
such proportion as is appropriate to reflect the relative benefits received by
the Issuer and the Guarantors on the one hand and the Initial Purchasers on the
other from the offering of the Offered Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Issuer and the
Guarantors on the one hand and the Initial Purchasers on the other in connection
with the statements or omissions that resulted in such losses, claims, damages
or liabilities as well as any other relevant equitable considerations. The
relative benefits received by the Issuer and the Guarantors on the one hand and
the Initial Purchasers on the other shall be deemed to be in the same proportion
as the total net proceeds from the offering (before deducting expenses) received
by the Issuer and the Guarantors bear to the total discounts and commissions
received by the Initial Purchasers under this Agreement. The relative fault
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Issuer or the
Initial Purchasers and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission. The amount paid by an indemnified party as a result of the losses,
claims, damages or liabilities referred to in the first sentence of this
subsection (d) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any action or claim that is the subject of this subsection (d). Notwithstanding
the provisions of this subsection (d), no Initial Purchaser shall be required to
contribute any amount in excess of the amount by which the total price at which
the Offered Securities purchased by it were resold exceeds the amount of any
damages that such Initial Purchaser has otherwise been required to pay by reason
of such untrue or alleged untrue statement or omission or alleged omission. The
Initial Purchasers' obligations in this subsection (d) to contribute are several
in proportion to their respective purchase obligations and not joint.
(e) The obligations of the Issuer and the Guarantors under
this Section shall be in addition to any
27
liability which the Issuer may otherwise have and shall extend, upon the same
terms and conditions, to each person, if any, who controls any Initial Purchaser
within the meaning of the Securities Act or the Exchange Act; and the
obligations of the Initial Purchasers under this Section shall be in addition to
any liability that the respective Initial Purchasers may otherwise have and
shall extend, upon the same terms and conditions, to each person, if any, who
controls the Issuer within the meaning of the Securities Act or the Exchange
Act.
8. Default of Purchasers. If any Initial Purchaser or Initial
Purchasers default in their obligations to purchase Offered Securities hereunder
and the aggregate principal amount of Offered Securities that such defaulting
Initial Purchaser agreed but failed to purchase does not exceed 10% of the total
principal amount of Offered Securities, CSFBC may make arrangements satisfactory
to the Issuer for the purchase of such Offered Securities by other persons,
including any of the other Initial Purchasers, but if no such arrangements are
made by the Closing Date, the non-defaulting Initial Purchasers shall be
obligated severally, in proportion to the respective commitments hereunder, to
purchase the Offered Securities that such defaulting Initial Purchasers agreed
but failed to purchase. If any Initial Purchaser or Initial Purchasers so
default and the aggregate principal amount of Offered Securities with respect to
which such default or defaults occur exceeds 10% of the total principal amount
of Offered Securities and arrangements satisfactory to CSFBC and the Issuer for
the purchase of such Offered Securities by other persons are not made within 36
hours after such default, this Agreement will terminate without liability on the
part of any non-defaulting Initial Purchaser or the Issuer, except as provided
in Section 9. As used in this Agreement, the term "Initial Purchaser" includes
any person substituted for an Initial Purchaser under this Section. Nothing
herein will relieve a defaulting Initial Purchaser from liability for its
default.
9. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Issuer or its officers and of the several Initial Purchasers
set forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation, or statement as to the results thereof,
made by or on behalf of any Initial Purchaser, the Issuer or any of their
respective representatives, officers or directors or any controlling person, and
will survive delivery of and payment for the Offered Securities. If this
Agreement is terminated pursuant to Section 8 or if for any reason the purchase
of the Offered Securities by the Initial Purchasers is not consummated, the
28
Issuer shall remain responsible for the expenses to be paid or reimbursed by it
pursuant to Section 5 and the respective obligations of the Issuer and the
Initial Purchasers pursuant to Section 7 shall remain in effect. If the purchase
of the Offered Securities by the Initial Purchasers is not consummated for any
reason other than solely because of the termination of this Agreement pursuant
to Section 8 or the occurrence of any event specified in clause (C), (D) or (E)
of Section 6(b)(ii), the Issuer will reimburse the Initial Purchasers for all
out-of-pocket expenses (including fees and disbursements of counsel) reasonably
incurred by them in connection with the offering of the Offered Securities.
10. Notices. All communications hereunder will be in writing
and, if sent to the Initial Purchasers, will be mailed, delivered or telegraphed
and confirmed to the Initial Purchasers c/o Credit Suisse First Boston
Corporation, Eleven Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000, Attention: Investment
Banking Department--Transactions Advisory Group, or, if sent to the Issuer, will
be mailed, delivered or telegraphed and confirmed to it at Radio One, Inc., 0000
Xxxxxxxx Xxxxxx Xxxxxxx, Xxxxxx, XX, Attention: Xxxxxx X. Xxxxxxx, III;
provided, however, that any notice to an Initial Purchaser pursuant to Section 7
will be mailed, delivered or telegraphed and confirmed to such Initial
Purchaser.
11. Successors. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective successors and the
controlling persons referred to in Section 7, and no other person will have any
right or obligation hereunder, except that holders of Offered Securities shall
be entitled to enforce the agreements for their benefit contained in the second
and third sentences of Section 5(b) hereof against the Issuer as if such holders
were parties thereto.
12. Representation of Initial Purchasers. You will act for the
several Initial Purchasers in connection with this purchase, and any action
under this Agreement taken by you jointly or by CSFBC will be binding upon all
the Initial Purchasers.
13. Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
29
14. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD
TO PRINCIPLES OF CONFLICTS OF LAWS.
The Issuer, the Guarantors and the Initial Purchasers hereby
submit to the non-exclusive jurisdiction of the Federal and state courts in the
Borough of Manhattan in The City of New York in any suit or proceeding arising
out of or relating to this Agreement or the transactions contemplated hereby.
30
If the foregoing is in accordance with the Initial Purchasers'
understanding of our agreement, kindly sign and return to us one of the
counterparts hereof, whereupon it will become a binding agreement among the
Issuer, the Guarantors and the several Initial Purchasers in accordance with its
terms.
Very truly yours,
RADIO ONE, INC., as the Issuer
by /s/ Xxxxxx Xxxxxxx
--------------------------
Name: Xxxxxx Xxxxxxx
Title: President
RADIO ONE LICENSES, INC., as a
Guarantor
by /s/ Xxxxxx Xxxxxxx
--------------------------
Name: Xxxxxx Xxxxxxx
Title: President
The foregoing Purchase
Agreement is hereby
confirmed and accepted
as of the date first
above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
NATIONSBANC CAPITAL MARKETS, INC.
Acting on behalf of
themselves and as the
representatives of the
several Initial
Purchasers
by CREDIT SUISSE FIRST BOSTON CORPORATION
by /s/ Xxxxxx Xxxxxxxx
---------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Associate
SCHEDULE A
Principal Amount at
Maturity of Offered
Initial Purchasers Securities
------------------
Credit Suisse First Boston
Corporation $43,594,000
NationsBanc Capital Markets, Inc. $41,884,000
------------------
Total $85,478,000
==================
SCHEDULE B
FCC Licenses
--------------------------------------------------------------------------------
1. FCC LICENSES
----------------- ------------------- ------------------------ -----------------
Call Sign City of License File Number Expiration Date
----------------- ------------------- ------------------------ -----------------
WKYS-FM Xxxxxxxxxx, XX XXXX-000000XX
XXXX-000000XX
XXX-000000XX October 1, 2003
BLH-900130KB October 1, 2003
BMLH-920l30KC October 1, 2003
----------------- ------------------- ------------------------ -----------------
WOL(AM) Xxxxxxxxxx, XX XXX-000000XX
BR-950601B3 October 1, 1995*
BZ-921119AA October 1, 1995*
----------------- ------------------- ------------------------ -----------------
WMMJ(FM) Bethesda, MD XXXX-000000XX
BR-950601ZG October 1, 2003
BLH-910830KA October 1, 2003
----------------- ------------------- ------------------------ -----------------
WOLB(AM) Xxxxxxxxx, XX XXX-000000XX
BAL-950427GH
BR-950601VG October 1, 2003
BL-860207AJ October 1, 2003
----------------- ------------------- ------------------------ -----------------
WERQ-FM Baltimore, MD XXXX-000000XX
BAL-930401GH
BRH-950601ZF October 1, 2003
BLH-891228KA October 1, 2003
BLH-891228KB October 1, 2003
----------------- ------------------- ------------------------ -----------------
WWIN(AM) Xxxxxxxxx, XX XXX-000000XX
BAL-950427GI
BR-950601VE October 1, 2003
BZ-900430AH October 1, 2003
----------------- ------------------- ------------------------ -----------------
WWIN-FM Glen Burnie, MD XXXX-000000XX
XXXX-000000XX
BRH-95060IVF October 1, 2003
XXXX-000000XX October 1, 2003
----------------- ------------------- ------------------------ -----------------
WPHI-FM Xxxxxxxxxx, XX XXX-000000XX August 1, 1998
BLH-870408KA August 1, 1998
XXXX-000000XX
----------------- ------------------- ------------------------ -----------------
* Radio One's timely filing of a license renewal application for the license for
WOL(AM) has automatically extended the license term for the main station license
and the associated auxiliary licenses until the FCC takes action on the renewal
application.
--------------------------------------------------------------------------------
2. BROADCAST AUXILIARY FACILITIES
----------------- ------------------- ------------------------ -----------------
Primary Sation Auxiliary Call
Signs File Number Expiration Date
----------------- ------------------- ------------------------ -----------------
WKYS-FM KPH-709 BPLRE-860822MG October 1, 2003
KPJ-713 BPLRE-880421MB October 1, 0000
XXX-000 XXXXX-000000XX October 1, 2003
KPH-735 BPLRE-860823MY October 1, 2003
KGL-356 BALRE-880406MF October 1, 2003
KGL-357 BALRE-880406ME October 1, 2003
----------------- ------------------- ------------------------ -----------------
WOL(AM) WLP-796 XXXX-000000XX October 1, 1995*
----------------- ------------------- ------------------------ -----------------
WMMJ(FM) WLP-729 BPLST-900126MH October 1, 2003
WLP-724 XXXX-000000XX October 1, 2003
----------------- ------------------- ------------------------ -----------------
WERQ-FM WLE-939 BPLST-900220MA October 1, 0000
XXX-000 XXXXX-000000XX Xxxxxxx 1, 2003
KPK-262 BPLRE-900313MG October 1, 2003
----------------- ------------------- ------------------------ -----------------
WWIN(AM) WLP-458 BPLST-890321MD October 1, 2003
----------------- ------------------- ------------------------ -----------------
WWIN-FM WHS-275 BPLST-890321MC October 1, 2003
----------------- ------------------- ------------------------ -----------------
WPHI-FM XXX-000 XXXXX-000000XX August 1, 1998
KB-97399 BMLRE-871016MB August 1, 1998
----------------- ------------------- ------------------------ -----------------
* Radio One's timely filing of a license renewal application for the license for
WOL(AM) has automatically extended the license term for the main station license
and the associated auxiliary licenses until the FCC takes action on the renewal
application.
SCHEDULE C
Complaints
1. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION COMPLAINTS:
Charge #120950174: Xxxxxxx X. Xxxxxx v. Radio One of Maryland, Inc. Mr.
------------------------------------------------
Xxxxxx was terminated from part-time employment as an on-air personality, due to
poor ratings performance and in an effort to control costs by eliminating
excessive staffing levels. He claims he was fired on age discrimination grounds.
Xxxx Xxxx-Day v. Radio One, Inc. Race Discrimination, Wrongful
------------------------------------
Termination for Race.
Xxxxxx Xxxxx v. Radio One, Inc. Race Discrimination, Wrongful
------------------------------------
Termination for Race.
2. FCC LICENSE RENEWAL APPLICATIONS:
A license renewal application for Station WOL(AM), Washington, DC,
remains pending. On June 1, 1995, Radio One, Inc., filed with the FCC an
application for renewal of the license for Station WOL(AM) (FCC File No.
BR950601B3). The application was accepted for filing by the FCC pursuant to a
Public Notice dated June 19, 1995. No petitions to deny the applications and no
competing applications for the broadcast frequency were filed. However, action
on the renewal application has apparently been delayed due to the processing by
the FCC of a pending complaint against WOL(AM) alleging that programming
material broadcast on the station was indecent and obscene.
3. LISTENER COMPLAINTS:
Other unresolved complaints have been filed against Station WOL(AM),
all of which, except for two, were filed prior to the expiration of the October
1, 1995, license term. The complaints are as follows:
June 20, 1996, from Xxxxx Xxxxxxx, Counsel for Xxxxxxx Xxxxx, alleging
that WOL(AM) violated Section 73.1206 of the FCC's rules which requires consent
before recording a telephone conversation for broadcast and a D.C. statute that
prohibits disclosure of the names of juveniles in criminal proceedings. The
messages allegedly broadcast were left on a telephone answering machine. This
may involve the same facts as a complaint filed by Xxxxxxx Xxxxx on May 1, 1993,
alleging that WOL(AM) broadcast messages left on a telephone answering machine.
That complaint was resolved in favor of WOL(AM) by a letter dated September 30,
1993, from Xxxxx Xxxxxxx, Acting Chief of the Complaints and Investigations
Branch of the FCC.
2
October 3, 1995, from Xxx. X. Xxxxxxxx, alleging that broadcasts have
contained slurs directed at her.
March 27, 1994, from Xxxxxxx Xxxxxxx, alleging that racial slurs and
indecent language have been broadcast.
March 14, 1994, from Xxxxxx and Xxxxxx Xxxxxxxx, alleging that they are
experiencing the effects of high voltage.
February 23, 1994, from Xxxxx X. Xxxxx, alleging that racially biased
comments have been broadcast. Note that this complaint alleges that WMMJ also
broadcast such comments.
October 26, 1993, from Faith Dane, alleging that her First Amendment
rights were violated and that she was escorted from the studio against her will.
In addition to the complaints described above filed against Station
WOL(AM), a complaint was filed against Station WERQ-FM on March 20, 1997,
alleging that lyrics of a song played on the radio contained profanity.
