Exhibit
(b)(1)
LAMAR MEDIA CORP.
$350,000,000
($314,926,500 gross proceeds)
9.750% Senior Notes due 2014
PURCHASE AGREEMENT
March 20, 2009
J.P. MORGAN SECURITIES INC.
BANC OF AMERICA SECURITIES LLC
BNP PARIBAS SECURITIES CORP.
BNY MELLON CAPITAL MARKETS, LLC
CALYON SECURITIES (USA) INC.
GREENWICH CAPITAL MARKETS, INC.
RBC CAPITAL MARKETS CORPORATION
WACHOVIA CAPITAL MARKETS, LLC
c/o J.P. Morgan Securities Inc.
270 Park Avenue, 5th floor
New York, New York 10017
Ladies and Gentlemen:
Lamar Media Corp., a Delaware corporation (the “Company”), proposes to issue and sell
$350,000,000 aggregate principal amount ($314,926,500 gross proceeds) of its 9.750% Senior Notes
due 2014 (the “Securities”). The Securities will be issued pursuant to an Indenture to be dated
March 27, 2009 (the “Indenture”) between the Company, certain subsidiaries of the Company, as
Guarantors (the “Guarantors”), and The Bank of New York Mellon, as trustee (the “Trustee”). The
Company hereby confirms its agreement with J.P. Morgan Securities Inc. (“JPMorgan”), Banc of
America Securities LLC, BNP Paribas Securities Corp., BNY Mellon Capital Markets, LLC, Calyon
Securities (USA) Inc., Greenwich Capital Markets, Inc., RBC Capital Markets Corporation and
Wachovia Capital Markets, LLC (collectively, the “Initial Purchasers”) concerning the purchase of
the Securities from the Company by the several Initial Purchasers. Payment of the principal of and
interest and premium, if any, on the Securities shall be guaranteed on a senior basis by each of
the Guarantors as provided and to the extent set forth in the Indenture (the “Guarantees”). The
Company and the Guarantors are collectively referred to herein as the “Issuers.”
The Securities will be offered and sold to the Initial Purchasers without being registered
under the Securities Act of 1933, as amended (the “Securities Act”), in reliance upon one or more
exemptions therefrom. The Company has prepared a preliminary offering memorandum dated March 19,
2009 (including the information incorporated by reference therein, the “Preliminary Offering
Memorandum”) and will prepare an offering memorandum dated the date hereof (including the
information incorporated by reference therein, the “Offering Memorandum”) setting forth information
concerning the Company and the Securities. Copies of the Preliminary Offering Memorandum have
been, and copies of the Offering Memorandum will be, delivered by the Company to the Initial
Purchasers pursuant to the terms of this Agreement. Any references herein to the Preliminary
Offering Memorandum, any other Time of Sale Information (as defined below) and the Offering
Memorandum shall be deemed to include all amendments and supplements thereto, unless otherwise
noted. The Company hereby confirms that it has authorized the use of the Preliminary Offering
Memorandum, the other Time of Sale Information and the Offering
Memorandum in connection with the offering and resale of the Securities by the Initial
Purchasers in the manner contemplated by this Agreement.
At or prior to the time when sales of the Securities were first made (the “Time of Sale”), the
following information shall have been prepared (collectively, the “Time of Sale Information”): the
Preliminary Offering Memorandum, as supplemented or amended by the communications listed on Annex A
hereto.
Holders of the Securities (including the Initial Purchasers and their direct and indirect
transferees) will be entitled to the benefits of a Registration Rights Agreement, substantially in
the form attached hereto as Exhibit A (the “Registration Rights Agreement”), pursuant to which the
Company will agree to file with the Securities and Exchange Commission (the “Commission”) (i) a
registration statement under the Securities Act (the “Exchange Offer Registration Statement”)
registering an issue of senior notes of the Company (the “Exchange Securities”) that are identical
in all material respects to the Securities (except that the Exchange Securities will not contain
terms with respect to transfer restrictions or additional interest) and (ii) under certain
circumstances, a shelf registration statement pursuant to Rule 415 under the Securities Act (the
“Shelf Registration Statement”).
Capitalized terms used but not defined herein shall have the meanings given to such terms in
the Time of Sale Information.
1. Representations, Warranties and Agreements of the Issuers. Each of the Issuers
represents and warrants to, and agrees with, the several Initial Purchasers on and as of the date
hereof and the Closing Date (as defined in Section 3) that:
(a) The Preliminary Offering Memorandum, as of its date, did not, the Time of Sale
Information, at the Time of Sale, did not, and as of the Closing Date, will not, and the
Offering Memorandum, in the form first used by the Initial Purchasers to confirm sales of
the Securities and as of the Closing Date, will not, contain any untrue statement of a
material fact or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading;
provided, however, that the Issuers make no representation or warranty with respect to any
statements or omissions made in reliance upon and in conformity with the Initial Purchasers’
Information (as defined in Section 10). The documents incorporated by reference in each of
the Time of Sale Information and the Offering Memorandum, when filed with the Commission,
conformed or will conform, as the case may be, in all material respects to the requirements
of the Securities Exchange Act of 1934, as amended, and the rules and regulations of the
Commission thereunder (the “Exchange Act”).
(b) Other than the Preliminary Offering Memorandum and the Offering Memorandum, the
Company (including its agents, other than the Initial Purchasers in their capacity as such)
has not made, used, prepared, authorized, approved or referred to and will not make, use,
prepare, authorize, approve or refer to any written communication that constitutes an offer
to sell or solicitation of an offer to buy the Securities (each such communication by the
Company or its agents and representatives, other than written communications that are listed
on Annex A hereto, the Preliminary Offering Memorandum and the Offering Memorandum, an
“Issuer Written Communication”), and other written communications used in accordance with
Section 4(d). Each such Issuer Written Communication, when taken together with the Time of
Sale Information, did not, and at the Closing Date will not, contain any untrue statement of
a material fact or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading;
provided, however, that the Issuers make no representation or warranty with respect to any
statements or omissions made in reliance upon and in conformity with the Initial Purchasers’
Information (as defined in Section 10).
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(c) On the Closing Date, the Securities will not be of the same class as securities
listed on a national securities exchange registered under Section 6 of the Exchange Act or
quoted in an automated inter-dealer quotation system; and each of the Time of Sale
Information and the Offering Memorandum, as of its respective date, contains all of the
information that, if requested by a prospective purchaser of the Securities, would be
required to be provided to such prospective purchaser pursuant to Rule 144A(d)(4) under the
Securities Act.
(d) Assuming the accuracy of the representations and warranties of the Initial
Purchasers contained in Section 2 and their compliance with the agreements set forth
therein, it is not necessary, in connection with the issuance and sale of the Securities to
the Initial Purchasers and the offer, resale and delivery of the Securities by the Initial
Purchasers in the manner contemplated by this Agreement, the Time of Sale Information and
the Offering Memorandum, to register the Securities under the Securities Act or to qualify
the Indenture under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”).
(e) The Company has been duly incorporated and is an existing corporation in good
standing under the laws of the State of Delaware with full corporate power and authority to
own, lease and operate its properties and to conduct its business as described in each of
the Time of Sale Information and the Offering Memorandum, and is duly registered or
qualified to conduct its business and is in good standing in each jurisdiction or place
where the nature of its properties or the conduct of its business requires such registration
or qualification, except where the failure to so register or qualify or be in good standing
does not, individually or in the aggregate, have a material adverse effect on the condition
(financial or other), business, properties, net worth or results of operations of the
Company and the Subsidiaries (as hereinafter defined), taken as a whole (a “Material Adverse
Effect”).
(f) Each of the Company’s consolidated subsidiaries (collectively, the “Subsidiaries”)
is listed in Exhibit B hereto. Each Subsidiary (other than those identified as “Not a
guarantor” on Exhibit B hereto), is a Guarantor and has guaranteed the Securities pursuant
to its Guarantee. Each Subsidiary is a corporation, limited liability company or
partnership duly organized, validly existing and in good standing in the jurisdiction of its
organization, with full corporate, limited liability company or partnership power and
authority, as the case may be, to own, lease and operate its properties and to conduct its
business as described in each of the Time of Sale Information and the Offering Memorandum,
and is duly registered or qualified to conduct its business and is in good standing in each
jurisdiction or place where the nature of its properties or the conduct of its business
requires such registration or qualification, except where the failure so to register or
qualify does not, individually or in the aggregate, have a Material Adverse Effect; all the
outstanding shares of capital stock or other equity interest of each of the Subsidiaries
have been duly authorized and validly issued, are fully paid and nonassessable, and, except
as set forth in each of the Time of Sale Information and the Offering Memorandum, are owned
by the Company directly, or indirectly through one of the other Subsidiaries, free and clear
of any lien, adverse claim, security interest, equity or other encumbrance except for any
such lien, adverse claim, security interest, equity or other encumbrance that would not
reasonably be expected, individually or in the aggregate, to materially impair the value of
such shares or other equity interests and except for the liens under the Credit Agreement,
dated as of September 30, 2005, as amended to the date hereof, among the Company, the
guarantor parties thereto, the several lenders from time to time parties thereto and
JPMorgan Chase Bank, N.A., as administrative agent, as described in each of the Time of Sale
Information and the Offering Memorandum (the “Credit Agreement”).
(g) The Company has an authorized capitalization as set forth in each of the
Preliminary Offering Memorandum and the Offering Memorandum under the heading
“Capitalization,” and all of the outstanding shares of capital stock of the Company have
been duly and validly authorized and issued and are fully paid and nonassessable.
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(h) Each of the Issuers has full right, power and authority to execute and deliver this
Agreement, the Indenture, the Registration Rights Agreement, the Securities, the Guarantees
and the Exchange Securities (including the related guarantees) (collectively, the
“Transaction Documents”), to the extent each is a party thereto, and to perform its
obligations hereunder and thereunder, to the extent each is a party thereto; and all
corporate, limited liability company or partnership action, as the case may be, required to
be taken for the due and proper authorization, execution and delivery of each of the
Transaction Documents and the consummation of the transactions contemplated hereby and
thereby has been duly and validly taken.
(i) This Agreement has been duly authorized, executed and delivered by each of the
Issuers and constitutes a valid and legally binding agreement of each of the Issuers.
(j) The Registration Rights Agreement has been duly authorized by each of the Issuers
and, when duly executed and delivered in accordance with its terms by each of the parties
thereto, will constitute a valid and legally binding agreement of each of the Issuers
enforceable against each of the Issuers in accordance with its terms, except to the extent
that (i) such enforceability may be limited by applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws affecting creditors’ rights
generally and by general equitable principles (whether considered in a proceeding in equity
or at law) and (ii) the enforceability of rights to indemnification and contribution
thereunder may be limited by federal and state securities laws or regulations or the public
policy underlying such laws or regulations.
(k) The Indenture has been duly authorized by each of the Issuers and, when duly
executed and delivered in accordance with its terms by each of the parties thereto, will
constitute a valid and legally binding agreement of each of the Issuers enforceable against
each of the Issuers in accordance with its terms, except to the extent that such
enforceability may be limited by applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws affecting creditors’ rights generally and
by general equitable principles (whether considered in a proceeding in equity or at law).
On the Closing Date, the Indenture will conform in all material respects to the requirements
of the Trust Indenture Act and the rules and regulations of the Commission applicable to an
indenture that is qualified thereunder.
(l) The Securities have been duly authorized by the Company and, when duly executed,
authenticated, issued and delivered as provided in the Indenture and paid for as provided
herein, will be duly and validly issued and outstanding and will constitute valid and
legally binding obligations of the Company entitled to the benefits of the Indenture and
enforceable against the Company in accordance with their terms, except to the extent that
such enforceability may be limited by applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws affecting creditors’ rights
generally and by general equitable principles (whether considered in a proceeding in equity
or at law).
(m) The Guarantees have been duly authorized by each of the Guarantors and, when the
Guarantees are duly executed, issued and delivered as provided in the Indenture and the
Securities are duly executed, authenticated, issued and delivered as provided in the
Indenture and paid for as provided herein, the Securities will be entitled to the benefits
of the Guarantees and the Guarantees will be duly and validly issued and outstanding and
will constitute valid and legally binding obligations of the Guarantors enforceable against
each of the Guarantors in accordance with their terms, except to the extent that such
enforceability may be limited by applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws affecting creditors, rights generally and
by general equitable principles (whether considered in a proceeding in equity or at law).
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(n) The Exchange Securities have been duly authorized by the Company and, when duly
executed, authenticated, issued and delivered as provided in the Registration Rights
Agreement and the Indenture, will be duly and validly issued and outstanding and will
constitute valid and legally binding obligations of the Company entitled to the benefits of
the Indenture and enforceable against the Company in accordance with their terms, except to
the extent that such enforceability may be limited by applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws affecting
creditors’ rights generally and by general equitable principles (whether considered in a
proceeding in equity or at law).
(o) The guarantees of the Exchange Securities have been duly authorized by each of the
Guarantors and, when the Exchange Securities are duly executed, authenticated, issued and
delivered as provided in the Registration Rights Agreement and the Indenture and such
guarantees are duly executed, authenticated, issued and delivered as provided in the
Registration Rights Agreement and the Indenture, the Exchange Securities will be entitled to
the benefits of such guarantees and such guarantees will be duly and validly issued and
outstanding and will constitute valid and legally binding obligations of the Guarantors and
enforceable against each of the Guarantors in accordance with their terms, except to the
extent that such enforceability may be limited by applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws affecting
creditors, rights generally and by general equitable principles (whether considered in a
proceeding in equity or at law).
(p) Each Transaction Document conforms in all material respects to the description
thereof contained in each of the Time of Sale Information and the Offering Memorandum.
(q) None of the issuance or sale of the Securities, the execution, delivery or
performance of the Transaction Documents by the Issuers or the consummation by the Issuers
of the transactions contemplated thereby (i) requires any consent, approval, authorization
or other order of or registration or filing with, any court, regulatory body, administrative
agency or other governmental body, agency or official (except such as may be required under
the Securities Act and applicable state securities laws as provided in the Registration
Rights Agreement and assuming the accuracy of the Initial Purchasers’ representations set
forth in Section 2 of this Agreement, including the resale of the Securities in conformity
with such representations and warranties) or conflicts or will conflict with or constitutes
or will constitute a breach of, or a default under, the certificate or articles of
incorporation or bylaws, the certificate of formation or operating agreement, or the
partnership agreement, or other organizational documents, of the Company or any of the
Subsidiaries or (ii) conflicts or will conflict with or constitutes or will constitute a
breach of, or a default under, any agreement, indenture, lease or other instrument to which
the Company or any of the Subsidiaries is a party or by which any of them or any of their
respective properties may be bound, or violates or will violate any statute, law, regulation
or filing or judgment, injunction, order or decree applicable to the Company or any of the
Subsidiaries or any of their respective properties, or will result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of the Company or
any of the Subsidiaries pursuant to the terms of any agreement or instrument to which any of
them is a party or by which any of them may be bound or to which any of the property or
assets of any of them is subject, except, in the case of the foregoing clause (ii), where
such conflict, breach or default would not, individually or in the aggregate, have a
Material Adverse Effect.
(r) KPMG LLP, who have certified certain of the financial statements of the Company
included (or incorporated by reference) in each of the Time of Sale Information and the
Offering Memorandum (and any amendment or supplement thereto), are an independent registered
public accounting firm with regard to the Company within the applicable rules and
regulations adopted by the Commission and the Public Company Accounting Oversight Board
(United States) and as required by the Securities Act.
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(s) The historical financial statements, together with related schedules and notes,
included (or incorporated by reference) in each of the Time of Sale Information and the
Offering Memorandum (and any amendment or supplement thereto) comply as to form in all
material respects with the requirements applicable to a registration statement on Form S-3
under the Securities Act (assuming for the purpose of this representation that the Company
is eligible to use such form and such information in each case, therefore, includes any and
all information incorporated by reference therein); such historical financial statements,
together with related schedules and notes, present fairly the consolidated financial
position, results of operations, cash flows and changes in financial position of the
entities to which they relate on the basis stated in each of the Time of Sale Information
and the Offering Memorandum at the respective dates or for the respective periods to which
they apply; such statements and related schedules and 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 (or incorporated by reference) in each of the Time of Sale Information and
the Offering Memorandum (and any amendment or supplement thereto) are accurately presented
in all material respects and prepared on a basis consistent in all material respects with
such financial statements and the books and records of the entities to which they relate.
(t) There are no legal or governmental proceedings pending or, to the knowledge of the
Issuers, threatened against the Company or any of the Subsidiaries, or to which the Company
or any of the Subsidiaries is a party, or to which any of their respective properties is
subject, that are required to be described in each of the Time of Sale Information and the
Offering Memorandum but are not so described as required; and all pending legal or
governmental proceedings to which the Company or any of the Subsidiaries is a party or that
affect any of their respective properties including ordinary routine litigation incidental
to the business, that are not described in each of the Time of Sale Information and the
Offering Memorandum and as to which an adverse determination is not remote would not, if
determined adversely to the Company or any of the Subsidiaries, individually or in the
aggregate, result in a Material Adverse Effect.
(u) No action has been taken and no statute, rule, regulation or order has been
enacted, adopted or issued by any governmental agency or body that prevents the issuance or
sale of the Securities or the Guarantees or suspends the issuance or sale of the Securities
or the Guarantees in any jurisdiction; no injunction, restraining order or order of any
nature by any federal or state court of competent jurisdiction has been issued with respect
to the Company or any of the Subsidiaries that would prevent or suspend the issuance or sale
of the Securities or the Guarantees or the use of any of the Preliminary Offering
Memorandum, any other Time of Sale Information, any Issuer Written Communication or the
Offering Memorandum in any jurisdiction; no action, suit or proceeding is pending against
or, to the knowledge of the Issuers, threatened against or affecting the Company or any of
the Subsidiaries before any court or arbitrator or any governmental agency, body or
official, domestic or foreign, which could reasonably be expected to interfere with or
adversely affect the issuance or sale of the Securities or the Guarantees or in any manner
draw into question the validity or enforceability of any of the Transaction Documents or any
action taken or to be taken pursuant thereto; and each of the Issuers has complied with any
and all requests by any securities authority in any jurisdiction for additional information
to be included in each of the Preliminary Offering Memorandum, any other Time of Sale
Information, any Issuer Written Communication and the Offering Memorandum.
(v) Neither the Company nor any of the Subsidiaries is in violation (i) of its
certificate or articles of incorporation or bylaws, certificate of formation or operating
agreement, or partnership agreement, or other organizational documents, or (ii) of any law,
ordinance, administrative or governmental rule or regulation applicable to the Company or
any of the Subsidiaries, including, without limitation, (x) any foreign, Federal, state or
local law or regulation relating to the protection
of human health and safety, the environment or hazardous or toxic substances or wastes,
pollutants
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or contaminants (“Environmental Laws”), (y) any Federal or state law relating to
discrimination in the hiring, promotion or pay of employees or any applicable federal or
state wages and hours laws, or (z) any provisions of the Employee Retirement Income Security
Act or the rules and regulations promulgated thereunder (collectively, “ERISA”), or of any
decree of any court or governmental agency or body having jurisdiction over the Company or
any of the Subsidiaries except for, in the case of the foregoing clause (ii), such
violations that would not, individually or in the aggregate, reasonably be expected to have
a Material Adverse Effect.
(w) Neither the Company nor any of the Subsidiaries is in default in the performance of
any obligation, agreement or condition contained in any bond, debenture, note or any other
evidence of indebtedness or in any other agreement, indenture, lease or other instrument to
which the Company or any of the Subsidiaries is a party or by which any of them or any of
their respective properties may be bound, except for such defaults which would not,
individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(x) The Company and each of the Subsidiaries has such permits, licenses, franchises and
authorizations including, without limitation, under any applicable Environmental Laws, of
governmental or regulatory authorities (“permits”) as are necessary to own its respective
properties and to conduct its business in the manner described in each of the Time of Sale
Information and the Offering Memorandum, subject to such qualifications as may be set forth
in each of the Time of Sale Information and the Offering Memorandum and with such exceptions
as would not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect; the Company and each of the Subsidiaries has fulfilled and performed all its
material obligations with respect to such permits and no event has occurred which allows, or
after notice or lapse of time or both would allow, revocation or termination thereof or
result in any other material impairment of the rights of the holder of any such permit,
subject in each case to such qualification as may be set forth in each of the Time of Sale
Information and the Offering Memorandum; and, except as described in each of the Time of
Sale Information and the Offering Memorandum, none of such permits contains any restriction
that is materially burdensome to the Company or any of the Subsidiaries.
(y) The Company and each of the Subsidiaries have filed, or have received an unexpired
valid extension for the filing of, all tax returns required to be filed, which returns are
complete and correct in all material respects, and neither the Company nor any Subsidiary is
in default in the payment of any taxes which were payable pursuant to said returns or any
assessments with respect thereto, except for such failures to file or defaults in payment of
a character which would not reasonably be expected to have a Material Adverse Effect.
(z) None of the Issuers is now, and after sale of the Securities to be sold hereunder
and application of the net proceeds from such sale as described in each of the Time of Sale
Information and the Offering Memorandum under the caption “Use of proceeds” none of them
will be, an “investment company” within the meaning of the Investment Company Act of 1940,
as amended.
(aa) The Company maintains an effective system of “disclosure controls and procedures”
(as defined in Rule 13a-15(e) of the Exchange Act) that is designed to ensure that
information required to be disclosed by the Company in reports that it files or submits
under the Exchange Act is recorded, processed, summarized and reported within the time
periods specified in the Commission’s rules and forms, including controls and procedures
designed to ensure that such information is accumulated and communicated to the Company’s
management as appropriate to allow timely decisions regarding required disclosure. The
Company has carried out evaluations of the effectiveness of its disclosure controls and procedures as required by
Rule 13a-15 of the Exchange Act.
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(bb) The Company maintains systems of “internal control over financial reporting” (as
defined in Rule 13a-15(f) of the Exchange Act) that comply with the requirements of the
Exchange Act and have been designed by, or under the supervision of, its principal executive
and principal financial officers, or persons performing similar functions, to provide
reasonable assurance regarding the reliability of financial reporting and the preparation of
financial statements for external purposes in accordance with generally accepted accounting
principles. The Company maintains a system of internal accounting controls sufficient to
provide reasonable assurances that (i) transactions are executed in accordance with
management’s general or specific authorization, (ii) transactions are recorded as necessary
to permit preparation of financial statements in conformity with generally accepted
accounting principles and to maintain accountability for assets, (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 existing assets at reasonable
intervals and appropriate action is taken with respect to any differences. Except as
disclosed in each of the Time of Sale Information and the Offering Memorandum, there are no
material weaknesses in the Company’s internal controls.
(cc) Except as described in each of the Time of Sale Information and the Offering
Memorandum, the Company and each of the Subsidiaries maintain insurance of the types and in
the amounts that are reasonable for the businesses operated by them, all of which insurance
is in full force and effect, except for such policies that, if not in full force and effect,
would not individually or in the aggregate reasonably be expected to have a Material Adverse
Effect.
(dd) The Company and the Subsidiaries own or possess all patents, trademarks, trademark
registrations, service marks, service mark registrations, trade names, copyrights, licenses,
inventions, trade secrets and rights described in each of the Time of Sale Information and
the Offering Memorandum as being owned by them or any of them or necessary for the conduct
of their respective businesses, and none of the Issuers is aware of any claim to the
contrary or any challenge by any other person to the rights of the Company and the
Subsidiaries with respect to the foregoing.
(ee) Each of the Company and the Subsidiaries has good and marketable title to all
property (real and personal) described in each of the Time of Sale Information and the
Offering Memorandum as being owned by it, free and clear of all liens, claims, security
interests or other encumbrances except such as are described in each of the Time of Sale
Information and the Offering Memorandum or which would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect or materially impair the
value of such property to the Company or such Subsidiary, as the case may be, and all the
property described in each of the Time of Sale Information and the Offering Memorandum as
being held under lease or sublease by each of the Company and the Subsidiaries is held by it
under valid, subsisting and enforceable leases or subleases with such exceptions as would
not, individually or in the aggregate, reasonably be expected to have a Material Adverse
Effect or materially impair the value of such leasehold estate to the Company or such
Subsidiary, as the case may be, and such leases and subleases are in full force and effect;
neither the Company nor any of the Subsidiaries has any notice of any claim of any sort that
has been asserted by anyone adverse to the rights of the Company or any of the Subsidiaries
under any of the leases or subleases mentioned above, or affecting or questioning the rights
of the Company or any of the Subsidiaries to the continued possession of the leased or
subleased premises under any such lease or sublease, which claim could, individually or in
the aggregate, reasonably be expected to have a Material Adverse Effect.
(ff) No labor problem exists with the employees of the Company or any of the
Subsidiaries or, to the knowledge of any of the Issuers, is imminent that, in either case,
could, individually or in the aggregate, reasonably be expected to result in any Material
Adverse Effect.
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(gg) No “prohibited transaction” (as defined in ERISA or Section 4975 of the Internal
Revenue Code of 1986, as amended from time to time (the “Code”)) or “accumulated funding
deficiency” (as defined in Section 302 of ERISA) or any of the events set forth in Section
4043(b) of ERISA (other than events with respect to which the 30-day notice requirement
under Section 4043 of ERISA has been waived) has occurred with respect to any employee
benefit plan (other than a multi-employer plan as defined in Section 3(37) or Section
4001(a)(3) of ERISA) of the Company or any of the Subsidiaries which could reasonably be
expected to have a Material Adverse Effect; each such employee benefit plan (other than a
multi-employer plan as defined in Section 3(37) or Section 4001(a)(3) of ERISA) is in
compliance in all respects with applicable law, including ERISA and the Code except where
such non compliance could not reasonably be expected to have a Material Adverse Effect; the
Company and each of the Subsidiaries have not incurred and do not expect to incur liability
under Title IV of ERISA which could reasonably be expected to have a Material Adverse Effect
with respect to the termination of, or withdrawal from, any pension plan for which the
Company or any of the Subsidiaries would have any liability; and each such pension plan
(other than a multi-employer plan as defined in Section 3(37) or Section 4001(a)(3) of
ERISA) that is intended to be qualified under Section 401(a) of the Code is, to the best of
the knowledge of Company and its Subsidiaries, so qualified in all material respects and
nothing has occurred, whether by action or by failure to act by Company or its Subsidiaries
or affiliates, which could reasonably be expected to cause the loss of such qualification.
(hh) Neither the Company nor any of the Subsidiaries nor, to the knowledge of any of
the Issuers, any director, officer, agent, employee or other person acting on behalf of the
Company or any of the Subsidiaries has (i) used any corporate funds for any unlawful
contribution, gift, entertainment or other unlawful expense relating to political activity,
(ii) made any direct or indirect unlawful payment to any foreign or domestic government
official or employee from corporate funds, (iii) violated or is in violation of any
provision of the Foreign Corrupt Practices Act of 1977 or (iv) made any bribe, rebate,
payoff, influence payment, kickback or other unlawful payment.
(ii) None of the Issuers is, nor will any of them be, after giving effect to the
issuance of the Securities and the Guarantees and the execution, delivery and performance of
this Agreement, the Indenture and the Registration Rights Agreement and the consummation of
the transactions contemplated hereby and thereby, (i) insolvent, (ii) left with unreasonably
small capital with which to engage in its anticipated businesses or (iii) incurring debts
beyond its ability to pay such debts as they mature.
(jj) Neither the issuance, sale and delivery of the Securities nor the application of
the proceeds thereof by the Company as described in each of the Time of Sale Information and
the Offering Memorandum will violate Regulation T, U or X of the Board of Governors of the
Federal Reserve System (the “Federal Reserve Board”).
(kk) Neither the Company nor any of the Subsidiaries is a party to any contract,
agreement or understanding with any person that would give rise to a valid claim against the
Company, any Subsidiary or the Initial Purchasers for a brokerage commission, finder’s fee
or like payment in connection with the offering and sale of the Securities.
(ll) The Securities satisfy the eligibility requirements of Rule 144A(d)(3) under the
Securities Act.
(mm) Neither the Company nor any of its affiliates has, directly or through any agent,
sold, offered for sale, solicited offers to buy or otherwise negotiated in respect of, any
security (as such term is defined in the Securities Act), which is or will be integrated
with the sale of the Securities in a manner that would require registration of the
Securities under the Securities Act.
- 9 -
(nn) None of the Company or any of its affiliates or any other person acting on its or
their behalf has (i) engaged, in connection with the offering of the Securities, in any form
of general solicitation or general advertising within the meaning of Rule 502(c) under the
Securities Act or (ii) engaged in any directed selling efforts within the meaning of
Regulation S under the Securities Act (“Regulation S”), and all such persons have complied
with the offering restrictions requirement of Regulation S.
(oo) The Issuers have not 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 the Securities to facilitate the sale or resale of the Securities.
(pp) No forward-looking statement (within the meaning of Section 27A of the Securities
Act and Section 21E of the Exchange Act) contained in the Time of Sale Information or the
Offering Memorandum has been made or reaffirmed without a reasonable basis or has been
disclosed other than in good faith.
(qq) The Company has complied with all provisions of Florida Statutes, § 517.075,
relating to issuers doing business with Cuba.
(rr) Except as disclosed in each of the Time of Sale Information and the Offering
Memorandum, subsequent to the respective dates as of which such information is given in each
of the Time of Sale Information and the Offering Memorandum, (i) neither the Company nor any
of the Subsidiaries has incurred any liability or obligation, direct or contingent, or
entered into any transaction, not in the ordinary course of business, that is material to
the Company and the Subsidiaries, taken as a whole, and (ii) there has not been any change
in the capital stock, or material increase in the short-term debt or long-term debt, of the
Company or any of the Subsidiaries, or any material adverse change, or any development
involving, or which may reasonably be expected to involve, a prospective material adverse
change, in the condition (financial or other), business, properties, net worth or results of
operations of the Company and the Subsidiaries, taken as a whole.
(ss) Nothing has come to the attention of the Company that has caused the Company to
believe that the statistical and market-related data included (or incorporated by reference)
in the Time of Sale Information and the Offering Memorandum is not based on or derived from
sources that are reliable and accurate in all material respects.
(tt) The Company and, to the Company’s knowledge, each of its directors and officers,
in their capacities as such, are in compliance in all material respects with any applicable
provision of the United States Sarbanes-Oxley Act of 2002 and the rules and regulations
promulgated in connection therewith.
(uu) No Guarantor is currently prohibited, directly or indirectly, under any agreement
or other instrument to which it is a party or is subject, from paying any dividends to the
Company, from making any other distribution on such subsidiary’s capital stock, from
repaying to the Company any loans or advances to such subsidiary from the Company or from
transferring any of such subsidiary’s properties or assets to the Company or any other
subsidiary of the Company, other than any such prohibitions contained in the Credit
Agreement (including as set forth in the disclosure schedules thereto) and the Company’s 71/4%
Senior Subordinated Notes due 2013,
65/8%
Senior Subordinated Notes due 2015, 65/8% Senior Subordinated Notes due 2015—Series B
and
65/8% Senior Subordinated Notes due 2015—Series C.
- 10 -
2. Purchase and Resale of the Securities.
(a) On the basis of the representations, warranties and agreements contained herein, and
subject to the terms and conditions set forth herein, the Company agrees to issue and sell to each
of the Initial Purchasers, severally and not jointly, and each of the Initial Purchasers, severally
and not jointly, agrees to purchase from the Company, the principal amount of Securities set forth
opposite the name of such Initial Purchaser on Schedule 1 hereto at a purchase price equal to
87.954% of the gross proceeds to be derived therefrom plus accrued interest from March 27, 2009 to
the Closing Date. The Company shall not be obligated to deliver any of the Securities except upon
payment for all of the Securities to be purchased as provided herein.
(b) The Company understands that the Initial Purchasers intend to offer the Securities for
resale on the terms set forth in the Time of Sale Information and the Offering Memorandum. Each
Initial Purchaser, severally and not jointly, represents, warrants and agrees that: (i) it is a
qualified institutional buyer within the meaning of Rule 144A under the Securities Act (a “QIB”)
and an accredited investor within the meaning of Rule 501(a) under the Securities Act; (ii) it has
not solicited offers for, or offered or sold, and will not solicit offers for, or offer or sell,
the Securities by means of any form of general solicitation or general advertising within the
meaning of Rule 502(c) of Regulation D under the Securities Act (“Regulation D”) or in any manner
involving a public offering within the meaning of Section 4(2) of the Securities Act; and (iii) it
has not solicited offers for, or offered or sold, and will not solicit offers for, or offer or
sell, the Securities as part of their initial offering except: (A) within the United States to
persons whom it reasonably believes to be QIBs in transactions pursuant to Rule 144A under the
Securities Act (“Rule 144A”) and in connection with each such sale, it has taken or will take
reasonable steps to ensure that the purchaser of the Securities is aware that such sale is being
made in reliance on Rule 144A; or (B) in accordance with the restrictions set forth in Annex B
hereto. Each Initial Purchaser, severally and not jointly, agrees that, prior to or simultaneously
with the confirmation of sale by such Initial Purchaser to any purchaser of any of the Securities
purchased by such Initial Purchaser from the Company pursuant hereto, such Initial Purchaser shall
furnish to that purchaser a copy of each of the Time of Sale Information and the Offering
Memorandum (and any amendment or supplement thereto that the Company shall have furnished to such
Initial Purchaser prior to the date of such confirmation of sale). Each Initial Purchaser
acknowledges and agrees that the Company and, for purposes of the opinions to be delivered to the
Initial Purchasers pursuant to Sections 6(d) and (g), counsel for the Company and counsel for the
Initial Purchasers, respectively, may rely upon the accuracy of the representations and warranties
of the Initial Purchasers, and compliance by the Initial Purchasers with their agreements,
contained in this Section 2(b) (including Annex B hereto), and each Initial Purchaser hereby
consents to such reliance.
(c) The Company acknowledges and agrees that the Initial Purchasers may offer and sell
Securities to or through any affiliate of an Initial Purchaser and that any such affiliate may
offer and sell Securities purchased by it to or through an Initial Purchaser.
(d) The Company acknowledges and agrees that the Initial Purchasers are acting solely in the
capacity of an arm’s length contractual counterparty to the Issuers with respect to the offering of
Securities contemplated hereby (including in connection with determining the terms of the offering)
and not as financial advisors or fiduciaries to, or agents of, the Issuers or any other person.
Additionally, no Initial Purchaser is advising the Issuers or any other person as to any legal,
tax, investment, accounting or regulatory matters in any jurisdiction. The Issuers shall consult
with its own advisors concerning such matters and shall be responsible for making their own
independent investigation and appraisal of the transactions contemplated hereby, and the Initial
Purchasers shall have no responsibility or liability to the Issuers with respect thereto. Any
review by any Initial Purchaser of the Issuers, the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the
benefit of such Initial Purchaser and shall not be on behalf of the Issuers or any other person.
- 11 -
3. Delivery of and Payment for the Securities.
(a) Delivery of and payment for the Securities shall be made at the offices of Cahill Gordon &
Reindel llp, 80 Pine Street, New York, New York, or at such other place as shall be agreed
upon by the Initial Purchasers and the Company, at 10:00 A.M., New York City time, on March 27,
2009, or at such other time or date, not later than seven full business days thereafter, as shall
be agreed upon by the Initial Purchasers and the Company (such date and time of payment and
delivery being referred to herein as the “Closing Date”).
(b) On the Closing Date, payment of the purchase price for the Securities shall be made to the
Company by wire or book-entry transfer of same-day funds to such account or accounts as the Company
shall specify prior to the Closing Date or by such other means as the parties hereto shall agree
prior to the Closing Date against delivery to the Initial Purchasers of the certificates evidencing
the Securities. Time shall be of the essence, and delivery at the time and place specified
pursuant to this Agreement is a further condition of the obligations of the Initial Purchasers
hereunder. Upon delivery, the Securities shall be in global form, registered in such names and in
such denominations as JPMorgan on behalf of the Initial Purchasers shall have requested in writing
not less than two full business days prior to the Closing Date. The Company agrees to make one or
more global certificates evidencing the Securities available for inspection by JPMorgan on behalf
of the Initial Purchasers in New York, New York at least 24 hours prior to the Closing Date.
4. Further Agreements of the Issuers. Each of the Issuers jointly and severally
agrees with each of the several Initial Purchasers:
(a) to advise the Initial Purchasers promptly and, if requested, confirm such advice in
writing, of the happening of any event that makes any statement of a material fact made in
either the Time of Sale Information or the Offering Memorandum untrue or which requires the
making of any additions to or changes in either the Time of Sale Information or the Offering
Memorandum (as amended or supplemented from time to time) in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading; to
advise the Initial Purchasers promptly of any order preventing or suspending the use of the
Preliminary Offering Memorandum, any other Time of Sale Information or the Offering
Memorandum, of any suspension of the qualification of the Securities for offering or sale in
any jurisdiction and of the initiation or threatening of any proceeding for any such
purpose; and to use its best efforts to prevent the issuance of any such order preventing or
suspending the use of the Preliminary Offering Memorandum, any other Time of Sale
Information or the Offering Memorandum or suspending any such qualification and, if any such
suspension is issued, to obtain the lifting thereof at the earliest possible time;
(b) to furnish promptly to each of the Initial Purchasers and counsel for the Initial
Purchasers, without charge, as many copies of the Preliminary Offering Memorandum, any other
Time of Sale Information and the Offering Memorandum (and any amendments or supplements
thereto) as may be reasonably requested;
(c) prior to making any amendment or supplement to either the Time of Sale Information
or the Offering Memorandum, to furnish a copy thereof to each of the Initial Purchasers and
counsel for the Initial Purchasers and not to effect any such amendment or supplement to
which the Initial Purchasers shall reasonably object by notice to the Company after a
reasonable period to review unless the Company is advised in writing by counsel that such
amendment or supplement is legally required;
(d) before using, authorizing, approving or referring to any Issuer Written
Communication, to furnish to JPMorgan on behalf of the Initial Purchasers and counsel for
the Initial
- 12 -
Purchasers a copy of such written communication for review and not to use,
authorize, approve or refer to any such written communication to which JPMorgan on behalf of
the Initial Purchasers reasonably objects based upon the advise of such counsel;
(e) (1) if, at any time prior to completion of the resale of the Securities by the
Initial Purchasers, (i) any event shall occur or condition exist as a result of which it is
necessary, in the opinion of counsel for the Initial Purchasers or counsel for the Company,
to amend or supplement the Offering Memorandum in order that the Offering Memorandum will
not include an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the circumstances
existing at the time it is delivered to a purchaser, not misleading or (ii) if it is
necessary to amend or supplement the Offering Memorandum to comply with applicable law,
subject to Section 4(c) hereof, to promptly prepare such amendment or supplement as may be
necessary to correct such untrue statement or omission or so that the Offering Memorandum,
as so amended or supplemented, will comply with applicable law and (2) if at any time prior
to the Closing Date (i) any event shall occur or condition shall exist as a result of which
any of the Time of Sale Information as then amended or supplemented would 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 or (ii) it is necessary to amend or supplement any of the Time of Sale
Information to comply with law, the Company will immediately notify the Initial Purchasers
thereof and forthwith prepare and, subject to Section 4(c) hereof, furnish to the Initial
Purchasers such amendments or supplements to any of the Time of Sale Information (or any
document to be filed with the Commission and incorporated by reference therein) as may be
necessary so that the statements in any of the Time of Sale Information as so amended or
supplemented will not, in light of the circumstances under which they were made, be
misleading;
(f) for so long as the Securities are outstanding and are “restricted securities”
within the meaning of Rule 144(a)(3) under the Securities Act, to furnish to holders of the
Securities and prospective purchasers of the Securities designated by such holders, upon
request of such holders or such prospective purchasers, the information required to be
delivered pursuant to Rule 144A(d)(4) under the Securities Act, unless the Company is in
compliance with Section 13 or 15(d) of the Exchange Act, as if it were then subject to
Section 13 or 15(d) of the Exchange Act (the foregoing agreement being for the benefit of
the holders from time to time of the Securities and prospective purchasers of the Securities
designated by such holders);
(g) for a period of two years following the Closing Date, to furnish to the Initial
Purchasers copies of any annual reports, quarterly reports and current reports filed by the
Company with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar forms as may
be designated by the Commission, and such other documents, reports and information as shall
be furnished by the Issuers to the Trustee or to the holders of the Securities pursuant to
the Indenture or the Exchange Act or any rule or regulation of the Commission thereunder;
(h) to promptly take from time to time such actions as the Initial Purchasers may
reasonably request to qualify the Securities for offering and sale under the securities or
Blue Sky laws of such jurisdictions as the Initial Purchasers may designate and to continue
such qualifications in effect for so long as required for the resale of the Securities; and
to arrange for the determination of the eligibility for investment of the Securities under
the laws of such jurisdictions as the Initial Purchasers may reasonably request; provided,
however, that the Company and the Subsidiaries shall not be obligated to qualify as foreign
corporations in any jurisdiction in which they are not so qualified or to file a general
consent to service of process in any jurisdiction;
(i) to assist the Initial Purchasers in arranging for the Securities to be eligible for
clearance and settlement through The Depository Trust Company (“DTC”);
- 13 -
(j) not to, and to cause its affiliates not to, sell, offer for sale or solicit offers
to buy or otherwise negotiate in respect of any security (as such term is defined in the
Securities Act) that could be integrated with the sale of the Securities in a manner that
would require registration of the Securities under the Securities Act;
(k) except following the effectiveness of the Exchange Offer Registration Statement or
the Shelf Registration Statement, as the case may be, not to, and to cause its affiliates
not to, and not to authorize or knowingly permit any person acting on their behalf to,
(i) solicit any offer to buy or offer to sell the Securities by means of any form of general
solicitation or general advertising within the meaning of Regulation D or in any manner
involving a public offering within the meaning of Section 4(2) of the Securities Act; and
not to offer, sell, contract to sell or otherwise dispose of, directly or indirectly, any
securities under circumstances where such offer, sale, contract or disposition would cause
the exemption afforded by Section 4(2) of the Securities Act to cease to be applicable to
the offering and sale of the Securities as contemplated by this Agreement, the Time of Sale
Information and the Offering Memorandum or (ii) engage in any directed selling efforts
within the meaning of Regulation S, and all such persons will comply with the offering
restrictions requirement of Regulation S;
(l) for a period of 90 days from the date of the Offering Memorandum, not to offer for
sale, sell, contract to sell or otherwise dispose of, directly or indirectly, or file a
registration statement for, or announce any offer, sale, contract for sale of or other
disposition of any debt securities substantially similar to the Securities, or securities
exchangeable for, or convertible into, debt securities substantially similar to the
Securities, issued or guaranteed by the Company or any of the Subsidiaries (other than the
Securities, the Guarantees and the Exchange Securities and related guarantees) without the
prior written consent of JPMorgan on behalf of the Initial Purchasers;
(m) during the period from the Closing Date until two years after the Closing Date,
without the prior written consent of JPMorgan on behalf of the Initial Purchasers, not to,
and not permit any of its affiliates (as defined in Rule 144 under the Securities Act) to,
resell any of the Securities that have been reacquired by them, except for Securities
purchased by the Company or any of its affiliates and resold in a transaction registered
under the Securities Act;
(n) not to, for so long as the Securities are outstanding, be or become, or be or
become owned by, 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
Investment Company Act, and to not be or become, or be or become owned by, a closed-end
investment company required to be registered, but not registered thereunder;
(o) in connection with the offering of the Securities, until JPMorgan on behalf of the
Initial Purchasers shall have notified the Company of the completion of the resale of the
Securities, not to, and to cause its affiliated purchasers (as defined in Regulation M under
the Exchange Act) not to, either alone or with one or more other persons, bid for or
purchase, for any account in which it or any of its affiliated purchasers has a beneficial
interest, any Securities, or attempt to induce any person to purchase any Securities; and
not to, and to cause its affiliated purchasers not to, make bids or purchase for the purpose
of creating actual, or apparent, active trading in or of raising the price of the
Securities;
(p) in connection with the offering of the Securities, to make its officers, employees,
independent registered public accounting firm and legal counsel reasonably available upon
request by the Initial Purchasers;
- 14 -
(q) to furnish to each of the Initial Purchasers on the date hereof a copy of the
independent registered public accounting firm’s report incorporated by reference in the Time
of Sale Information and the Offering Memorandum signed by the accountants rendering such
report;
(r) to do and perform all things required to be done and performed by it under this
Agreement that are within its control prior to or after the Closing Date, and to use its
best efforts to satisfy all conditions precedent on its part to the delivery of the
Securities;
(s) not to take any action prior to the execution and delivery of the Indenture that,
if taken after such execution and delivery, would have violated any of the covenants
contained in the Indenture provided as a draft to Edwards Angell Palmer & Dodge LLP on
March 20, 2009;
(t) unless required by law, not to take any action prior to the Closing Date that would
require either the Time of Sale Information or the Offering Memorandum to be amended or
supplemented pursuant to Section 4(e);
(u) prior to the Closing Date, not to issue any press release or other communication
directly or indirectly or hold any press conference with respect to the Company, its
condition, financial or otherwise, or earnings, business affairs or business prospects
(except for routine oral marketing communications in the ordinary course of business and
consistent with the past practices of the Company and of which the Initial Purchasers are
notified), without the prior written consent of JPMorgan on behalf of the Initial
Purchasers, unless in the judgment of the Company and its counsel, and after notification to
the Initial Purchasers, such press release or communication is required by law;
(v) to apply the net proceeds from the sale of the Securities as set forth in each of
the Time of Sale Information and the Offering Memorandum under the heading “Use of
proceeds.”
5. Certain Agreements of the Initial Purchasers. Each Initial Purchaser hereby
represents and agrees that it has not and will not use, authorize use of, refer to, or participate
in the planning for use of, any written communication that constitutes an offer to sell or the
solicitation of an offer to buy the Securities other than (i) the Preliminary Offering Memorandum
and the Offering Memorandum, (ii) a written communication that contains no “issuer information” (as
defined in Rule 433(h)(2) under the Securities Act) that was not included (including through
incorporation by reference) in the Preliminary Offering Memorandum or the Offering Memorandum,
(iii) any written communication listed on Annex A or prepared pursuant to Section 4(d) above,
(iv) any written communication prepared by such Initial Purchaser and approved by the Company in
advance in writing or (v) any written communication relating to or that contains solely the terms
of the Securities and/or other information that was included (including through incorporation by
reference) in the Preliminary Offering Memorandum or the Offering Memorandum.
6. Conditions of Initial Purchasers’ Obligations. The respective obligations of the
several Initial Purchasers hereunder are subject to the accuracy, on and as of the date hereof and
the Closing Date, of the representations and warranties of the Issuers contained herein, to the
accuracy of the statements of the Issuers and their officers made in any certificates delivered
pursuant hereto on the date thereof and the Closing Date, to the performance by the Issuers of
their obligations hereunder, and to each of the following additional terms and conditions:
(a) The Offering Memorandum (and any amendments or supplements thereto) shall have been
printed and copies distributed to the Initial Purchasers as promptly as practicable on or
following the date of this Agreement or at such other date and time as to which the Initial
Purchasers may agree and final electronic versions of the Time of Sale Information shall
have been
- 15 -
distributed to the Initial Purchasers; and no stop order suspending the sale of
the Securities in any jurisdiction shall have been issued and no proceeding for that purpose
shall have been commenced or shall be pending or threatened.
(b) None of the Initial Purchasers shall have discovered and disclosed to the Company
on or prior to the Closing Date that either the Time of Sale Information or the Offering
Memorandum or any amendment or supplement thereto contains an untrue statement of a fact
that, in the opinion of counsel for the Initial Purchasers, is material or omits to state
any fact which, in the opinion of such counsel, is material and is required to be stated
therein or is necessary to make the statements therein not misleading.
(c) All corporate proceedings and other legal matters incident to the authorization,
form and validity of each of the Transaction Documents, the Time of Sale Information and the
Offering Memorandum, and all other legal matters relating to the Transaction Documents and
the transactions contemplated thereby, shall be satisfactory in all material respects to the
Initial Purchasers, and the Issuers shall have furnished to the Initial Purchasers all
documents and information that they or their counsel may reasonably request to enable them
to pass upon such matters.
(d) Edwards Angell Palmer & Dodge LLP shall have furnished to the Initial Purchasers
their written opinion, as counsel to the Company, addressed to the Initial Purchasers and
dated the Closing Date, in form and substance reasonably satisfactory to the Initial
Purchasers, substantially to the effect set forth in Annex C hereto.
(e) Kean, Miller, Hawthorne, D’Armond, McCowan & Jarman, L.L.P. shall have furnished to
the Initial Purchasers their written opinion, as counsel to the Issuers, addressed to the
Initial Purchasers and dated the Closing Date, in form and substance reasonably satisfactory
to the Initial Purchasers, substantially to the effect set forth in Annex D hereto.
(f) James R. McIlwain, Esq. shall have furnished to the Initial Purchasers his written
opinion, as general counsel to the Company, addressed to the Initial Purchasers and dated
the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers,
substantially to the effect set forth in Annex E hereto.
(g)
The Initial Purchasers shall have received from Cahill Gordon & Reindel llp, counsel for the Initial Purchasers, such opinion or opinions, dated the
Closing Date, with respect to such matters as the Initial Purchasers may reasonably require,
and the Issuers shall have furnished to such counsel such documents and information as they
request for the purpose of enabling them to pass upon such matters.
(h) The Company shall have furnished to the Initial Purchasers a letter (the “Initial
Letter”) from KPMG LLP, addressed to the Initial Purchasers and dated the date hereof, in
form and substance satisfactory to the Initial Purchasers; provided, however, that the
Initial Purchasers shall have provided to KPMG LLP the representations required by SAS 72.
(i) The Company shall have furnished to the Initial Purchasers a letter (the
“Bring-Down Letter”) from KPMG LLP, addressed to the Initial Purchasers and dated the
Closing Date (i) confirming that they are an independent registered public accounting firm
within the meaning of the Exchange Act and the published rules and regulations thereunder,
(ii) stating, as of the date of the Bring-Down Letter (or, with respect to matters involving
changes or developments since the
respective dates as of which specified financial information is given in each of the
Time of Sale Information and the Offering Memorandum, as of a date not more than three
business days prior to the date of the Bring-Down Letter), that the conclusions and findings
of such accountants with respect to the financial information and other matters covered by
the Initial Letter are accurate
- 16 -
and (iii) confirming in all material respects the
conclusions and findings set forth in the Initial Letter.
(j) The Company shall have furnished to the Initial Purchasers a certificate, dated the
Closing Date, of its chief executive officer and its chief financial officer stating that
(i) such officers have carefully examined each of the Time of Sale Information and the
Offering Memorandum, (ii) in their opinion, each of the Time of Sale Information and the
Offering Memorandum, as of its date, did not include any untrue statement of a material fact
and did not omit to state a material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the circumstances under which they
were made, not misleading, and since the Time of Sale or the date of the Offering
Memorandum, no event has occurred that should have been set forth in a supplement or
amendment to each of the Time of Sale Information and the Offering Memorandum so that each
of the Time of Sale Information and the Offering Memorandum (as so amended or supplemented)
would not include any untrue statement of a material fact and would not omit to state a
material fact required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading and
(iii) as of the Closing Date, the representations and warranties of the Issuers in this
Agreement are true and correct in all material respects (except to the extent that any such
representation and warranty is qualified as to “materiality” or “Material Adverse Effect”,
in which case such representation and warranty shall be true and correct in all respects)
and, each of the Issuers has complied with all agreements and satisfied all conditions on
its part to be performed or satisfied hereunder on or prior to the Closing Date, and (iv)
subsequent to the date of the most recent financial statements included (or incorporated by
reference) in each of the Time of Sale Information and the Offering Memorandum, there has
been no material adverse change in the financial position or results of operation of the
Company or any of the Subsidiaries, taken as a whole, or any change, or any development
including a prospective change, in or affecting the condition (financial or otherwise),
results of operations, business or prospects of the Company and the Subsidiaries taken as a
whole, except as set forth in each of the Time of Sale Information (exclusive of any
amendment or supplement thereto) and the Offering Memorandum.
(k) The Initial Purchasers shall have received a counterpart of the Registration Rights
Agreement, which shall have been executed and delivered by a duly authorized officer of each
of the Issuers.
(l) The Indenture shall have been duly executed and delivered by each of the Issuers
and the Trustee, the Securities shall have been duly executed and delivered by the Company
and duly authenticated by the Trustee and the Guarantees shall have been duly executed and
delivered by each of the Guarantors.
(m) The Securities shall be eligible for clearance and settlement through DTC.
(n) If any event shall have occurred that requires the Issuers under Section 4(e) to
prepare an amendment or supplement to either the Time of Sale Information or the Offering
Memorandum, such amendment or supplement shall have been prepared, the Initial Purchasers
shall have been given a reasonable opportunity to comment thereon (unless such opportunity
is not required by Section 4(c)), and copies thereof shall have been delivered to the
Initial Purchasers reasonably in advance of the Closing Date.
(o) There shall not have occurred any invalidation of Rule 144A under the Securities
Act by any court or any withdrawal or proposed withdrawal of any rule or regulation under
the Securities Act or the Exchange Act by the Commission or any amendment or proposed
amendment thereof by the Commission that in the judgment of the Initial Purchasers would
materially impair
- 17 -
the ability of the Initial Purchasers to purchase, hold or effect resales
of the Securities as contemplated hereby.
(p) Subsequent to the execution and delivery of this Agreement or, if earlier, the
dates as of which information is given in each of the Time of Sale Information and the
Offering Memorandum (exclusive of any amendment or supplement thereto), no event or
condition of a type described in Section 1(rr) shall have occurred or exist the effect of
which, in any such case described above, is, in the reasonable judgment of the Initial
Purchasers, so material and adverse as to make it impracticable or inadvisable to proceed
with the offering, sale or delivery of the Securities on the terms and in the manner
contemplated by this Agreement, the Time of Sale Information and the Offering Memorandum
(exclusive of any amendment or supplement thereto).
(q) No action shall have been taken and no statute, rule, regulation or order shall
have been enacted, adopted or issued by any governmental agency or body which would, as of
the Closing Date, prevent the issuance or sale of the Securities or the issuance of the
Guarantees; and no injunction, restraining order or order of any other nature by any federal
or state court of competent jurisdiction shall have been issued as of the Closing Date which
would prevent the issuance or sale of the Securities or the issuance of the Guarantees.
(r) Subsequent to the earlier of (A) the Time of Sale and (B) the execution and
delivery of this Agreement, (i) no downgrading shall have occurred in the rating accorded
the Securities or any other debt securities or preferred stock issued or guaranteed by the
Company or any of the Guarantors by any “nationally recognized statistical rating
organization,” as such term is defined by the Commission for purposes of Rule 436(g)(2)
under the Securities Act; and (ii) no such organization shall have publicly announced that
it has under surveillance or review, or has changed its outlook with respect to, its rating
of the Securities or of any other debt securities or preferred stock issued or guaranteed by
the Company or any of the Guarantors (other than an announcement with positive implications
of a possible upgrading).
(s) Subsequent to the earlier of (A) the Time of Sale and (B) execution and delivery of
this Agreement there shall not have occurred any of the following: (i) trading generally
shall have been suspended or materially limited on the New York Stock Exchange or the
over-the-counter market; (ii) trading of any securities issued or guaranteed by the Company
or any of the Guarantors shall have been suspended on any exchange or in any
over-the-counter market; (iii) a general moratorium on commercial banking activities shall
have been declared by federal or New York State authorities; or (iv) there shall have
occurred any outbreak or escalation of hostilities or any change in financial markets or any
calamity or crisis, either within or outside the United States, that, in the judgment of
JPMorgan, is material and adverse and makes it impracticable or inadvisable to proceed with
the offering, sale or delivery of the Securities on the terms and in the manner contemplated
by this Agreement, the Time of Sale Information and the Offering Memorandum.
All opinions, letters, evidence and certificates mentioned above or elsewhere in this
Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form
and substance reasonably satisfactory to counsel for the Initial Purchasers.
7. Termination. The obligations of the Initial Purchasers hereunder may be terminated
by the Initial Purchasers, in their absolute discretion, by notice given to and received by the Company prior to delivery of and payment for the Securities if, prior to that time, any of the
events described in Section 6(o), (p), (q), (r) or (s) shall have occurred and be continuing.
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8. Defaulting Initial Purchasers.
(a) If, on the Closing Date, any Initial Purchaser defaults in the performance of its
obligations under this Agreement, the non-defaulting Initial Purchasers may make arrangements for
the purchase of the Securities that such defaulting Initial Purchaser agreed but failed to purchase
by other persons satisfactory to the Company and the non-defaulting Initial Purchasers, but if no
such arrangements are made within 36 hours after such default, this Agreement shall terminate
without liability on the part of the non-defaulting Initial Purchasers or the Issuers, except that
the Issuers will continue to be liable for the payment of expenses to the extent set forth in
Sections 9 and 12 and except that the provisions of Sections 10, 13 and 16 shall not terminate and
shall remain in effect. As used in this Agreement, the term “Initial Purchasers” includes, for all
purposes of this Agreement unless the context otherwise requires, any party not listed in Schedule
1 hereto that, pursuant to this Section 8, purchases Securities which a defaulting Initial
Purchaser agreed but failed to purchase.
(b) Nothing contained herein shall relieve a defaulting Initial Purchaser of any liability it
may have to the Company or any non-defaulting Initial Purchaser for damages caused by its default.
If other persons are obligated or agree to purchase the Securities of a defaulting Initial
Purchaser, either the non-defaulting Initial Purchasers or the Company may postpone the Closing
Date for up to seven full business days in order to effect any changes that in the opinion of
counsel for the Company or counsel for the Initial Purchasers may be necessary in each of the Time
of Sale Information and the Offering Memorandum or in any other document or arrangement, and each
of the Issuers agrees to promptly prepare any amendment or supplement to each of the Time of Sale
Information and the Offering Memorandum that effects any such changes.
9. Reimbursement of Initial Purchasers’ Expenses. If (a) this Agreement shall have
been terminated pursuant to Section 7, (b) the Company shall fail to tender the Securities for
delivery to the Initial Purchasers or (c) the Initial Purchasers shall decline to purchase the
Securities for any reason permitted under this Agreement, the Issuers agree, jointly and severally,
to reimburse the Initial Purchasers for such out-of-pocket expenses (including reasonable fees and
disbursements of counsel) as shall have been reasonably incurred by the Initial Purchasers in
connection with this Agreement and the proposed purchase and resale of the Securities. If this
Agreement is terminated pursuant to Section 8 by reason of the default of one or more of the
Initial Purchasers, the Issuers shall not be obligated to reimburse any defaulting Initial
Purchaser on account of such expenses.
10. Indemnification.
(a) Each of the Issuers jointly and severally agree to indemnify and hold harmless each
Initial Purchaser, its affiliates, directors and officers and each person, if any, who controls
such Initial Purchaser within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act, from and against any and all losses, claims, damages and liabilities (including,
without limitation, legal fees and other expenses incurred in connection with any suit, action or
proceeding or any claim asserted, as such fees and expenses are incurred), joint or several, that
arise out of, or are based upon, any untrue statement or alleged untrue statement of a material
fact contained in the Preliminary Offering Memorandum, any other Time of Sale Information, any
Issuer Written Communication or the Offering Memorandum (or any amendment or supplement thereto) or
any 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 in
each case, except insofar as such losses, claims, damages or liabilities arise out of, or are based
upon, any untrue statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with any information relating to any Initial Purchaser furnished to the
Company in writing by such Initial Purchaser through JPMorgan expressly for use therein;
provided, however, that the foregoing indemnity agreement with respect to the Preliminary
Offering Memorandum shall not inure to the benefit of any Initial Purchaser from whom the person
asserting any such losses, claims, damages or liabilities purchased Notes, or any person
controlling such Initial Purchaser
- 19 -
where it shall have been determined by a court of competent
jurisdiction by final and nonappealable judgment that (i) prior to the Time of Sale, the Issuers
shall have notified such Initial Purchaser that the Preliminary Offering Memorandum contains an
untrue statement of material fact or omits to state therein a material fact required to be stated
therein in order to make the statements therein not misleading, (ii) such untrue statement or
omission of a material fact was corrected in an amended or supplemented Preliminary Offering
Memorandum or, where permitted by law, an Issuer Written Communication and such corrected
Preliminary Offering Memorandum or Issuer Written Communication was provided to such Initial
Purchaser far enough in advance of the Time of Sale so that such corrected Preliminary Offering
Memorandum or Issuer Written Communication could have been provided to such person prior to the
Time of Sale, (iii) the Initial Purchaser did not send or give such corrected Preliminary Offering
Memorandum or Issuer Written Communication to such person at or prior to the Time of Sale of the
Notes to such person, and (iv) such loss, claim, damage or liability would not have occurred had
the Initial Purchaser delivered the corrected Preliminary Offering Memorandum or Issuer Written
Communication to such person.
(b) Each Initial Purchaser agrees, severally and not jointly, to indemnify and hold harmless
each of the Issuers and their respective directors, officers, employees, representatives and
agents, and each person, if any, who controls each of the Issuers within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act to the same extent as the indemnity set
forth in paragraph (a) above, but only with respect to any losses, claims, damages or liabilities
that arise out of, or are based upon, any untrue statement or omission or alleged untrue statement
or omission made in reliance upon and in conformity with any information relating to such Initial
Purchaser furnished to the Company in writing by such Initial Purchaser through JPMorgan expressly
for use in the Preliminary Offering Memorandum, any other Time of Sale Information and the Offering
Memorandum (or any amendment or supplement thereto), it being understood and agreed that the only
such information consists of the following: the first sentence of the second paragraph and the
fourth sentence of the ninth paragraph, in each case under the heading “Plan of distribution” in
the Offering Memorandum (the “Initial Purchasers’ Information”).
(c) If any suit, action, proceeding (including any governmental or regulatory investigation),
claim or demand shall be brought or asserted against any person in respect of which indemnification
may be sought pursuant to either paragraph (a) or (b) above, such person (the “Indemnified Person”)
shall promptly notify the person against whom such indemnification may be sought (the “Indemnifying
Person”) in writing; provided, however, that the failure to notify the Indemnifying Person shall
not relieve it from any liability that it may have under paragraph (a) or (b) above except to the
extent that it has been materially prejudiced (through the forfeiture of substantive rights or
defenses) by such failure; and provided further, however, that the failure to notify the
Indemnifying Person shall not relieve it from any liability that it may have to an Indemnified
Person otherwise than under paragraph (a) or (b) above. If any such proceeding shall be brought or
asserted against an Indemnified Person and it shall have notified the Indemnifying Person thereof,
the Indemnifying Person shall retain counsel reasonably satisfactory to the Indemnified Person (who
shall not, without the consent of the Indemnified Person, be counsel to the Indemnifying Person) to
represent the Indemnified Person and any others entitled to indemnification pursuant to this
Section 10 that the Indemnifying Person may designate in such proceeding and shall pay the fees and
expenses of such counsel related to such proceeding, as incurred. In any such proceeding, any
Indemnified Person shall have the right to retain its own counsel, but the fees and expenses of
such counsel shall be at the expense of such Indemnified Person unless (i) the Indemnifying Person
and the Indemnified Person shall have mutually agreed to the contrary, (ii) the Indemnifying Person
has failed within a reasonable time to retain counsel reasonably satisfactory to the Indemnified
Person, (iii) the Indemnified Person shall have reasonably concluded that there may be legal
defenses available to it that are different from or in addition to those available to the
Indemnifying Person or (iv) the named parties in any such proceeding (including any impleaded parties) include both the Indemnifying Person and the Indemnified Person and
representation of both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood and agreed that the Indemnifying
Person shall not, in connection with any proceeding or related proceeding in the same jurisdiction,
be liable for the fees and expenses of
- 20 -
more than one separate firm (in addition to any local
counsel) for all Indemnified Persons, and that all such fees and expenses shall be reimbursed as
they are incurred. Any such separate firm for any Initial Purchaser, its affiliates, directors and
officers and any control persons of such Initial Purchaser shall be designated in writing by
JPMorgan and any such separate firm for the Issuers and any control persons of the Issuers shall be
designated in writing by the Company. The Indemnifying Person shall not be liable for any
settlement of any proceeding effected without its written consent, but if settled with such consent
or if there be a final judgment for the plaintiff, the Indemnifying Person agrees to indemnify each
Indemnified Person from and against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an Indemnified Person shall have requested
that an Indemnifying Person reimburse the Indemnified Person for fees and expenses of counsel as
contemplated by this paragraph, the Indemnifying Person shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is entered into more than 30
days after receipt by the Indemnifying Person of such request and (ii) the Indemnifying Person
shall not have reimbursed the Indemnified Person in accordance with such request prior to the date
of such settlement. No Indemnifying Person shall, without the written consent of the Indemnified
Person, effect any settlement of any pending or threatened proceeding in respect of which any
Indemnified Person is or could have been a party and indemnification could have been sought
hereunder by such Indemnified Person, unless such settlement (x) includes an unconditional release
of such Indemnified Person, in form and substance reasonably satisfactory to such Indemnified
Person, from all liability on claims that are the subject matter of such proceeding and (y) does
not include any statement as to or any admission of fault, culpability or a failure to act by or on
behalf of any Indemnified Person.
(d) If the indemnification provided for in paragraphs (a) and (b) above is unavailable to an
Indemnified Person or insufficient in respect of any losses, claims, damages or liabilities
referred to therein, then each Indemnifying Person under such paragraph, in lieu of indemnifying
such Indemnified Person thereunder, shall contribute to the amount paid or payable by such
Indemnified Person as a result of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits received by the Issuers, on the one
hand, and the Initial Purchasers, on the other, from the offering of the Securities or (ii) if the
allocation provided by clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i) but also the
relative fault of the Issuers, 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 Issuers, on the one hand, and the Initial Purchasers on the other shall be deemed
to be in the same respective proportions as the net proceeds (before deducting expenses) received
by the Company from the sale of the Securities and the total discounts and commissions received by
the Initial Purchasers in connection therewith, as provided in this Agreement, bear to the
aggregate offering price of the Securities. The relative fault of the Issuers, on the one hand,
and the Initial Purchasers, on the other, 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 or any Guarantor
or by the Initial Purchasers and the parties’ relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
(e) The Issuers and the Initial Purchasers agree that it would not be just and equitable if
contribution pursuant to this Section 10 were determined by pro rata allocation (even if the
Initial Purchasers were treated as one entity for such purpose) or by any other method of
allocation that does not take account of the equitable considerations referred to in paragraph (d)
above. The amount paid or payable by an Indemnified Person as a result of the losses, claims,
damages and liabilities referred to in paragraph (d) above shall be deemed to include, subject to
the limitations set forth above, any legal or
other expenses incurred by such Indemnified Person in connection with any such action or
claim. Notwithstanding the provisions of this Section 10, in no event shall an Initial Purchaser
be required to contribute any amount in excess of the amount by which the total discounts and
commissions received by such Initial Purchaser with respect to the offering of the Securities
exceeds the amount of any damages that
- 21 -
such Initial Purchaser 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 Securities Act)
shall be entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Initial Purchasers’ obligations to contribute pursuant to this Section 10
are several in proportion to their respective purchase obligations hereunder and not joint.
(f) The remedies provided for in this Section 10 are not exclusive and shall not limit any
rights or remedies that may otherwise be available to any Indemnified Person at law or in equity.
11. Persons Entitled to Benefit of Agreement. This Agreement shall inure to the
benefit of and be binding upon the Initial Purchasers, the Company and their respective successors.
This Agreement and the terms and provisions hereof are for the sole benefit of only those persons,
except as provided in Section 10 with respect to affiliates of the Initial Purchasers and officers,
directors, employees, representatives, agents and controlling persons of the Issuers and the
Initial Purchasers and in Section 4(f) with respect to holders and prospective purchasers of the
Securities. Nothing in this Agreement is intended or shall be construed to give any person, other
than the persons referred to in this Section 11, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision contained herein.
12. Expenses. The Issuers agree, joint and severally, with the Initial Purchasers to
pay: (a) the costs incident to the authorization, issuance, sale, preparation and delivery of the
Securities and any taxes payable in that connection; (b) the costs incident to the preparation,
printing and distribution of the Time of Sale Information, the Offering Memorandum and any
amendments or supplements thereto; (c) the costs of reproducing and distributing each of the
Transaction Documents; (d) the costs incident to the preparation, printing and delivery of the
certificates evidencing the Securities, including stamp duties and transfer taxes, if any, payable
upon issuance of the Securities; (e) the fees and expenses of the Issuers’ counsel and independent
accountants; (f) the fees and expenses of qualifying the Securities under the securities laws of
the several jurisdictions as provided in Section 4(h) and of preparing, printing and distributing
Blue Sky Memoranda (including related fees and expenses of counsel for the Initial Purchasers);
(g) any fees charged by rating agencies for rating the Securities; (h) the fees and expenses of the
Trustee and any paying agent (including related fees and expenses of any counsel to such parties);
(i) all expenses and application fees incurred in connection with the approval of the Securities
for book-entry transfer by DTC; and (j) all other costs and expenses incident to the performance of
the obligations of the Issuers under this Agreement that are not otherwise specifically provided
for in this Section 12; provided, however, that except as provided in this Section 12 and
Sections 9 and 10, the Initial Purchasers shall pay their own costs and expenses, including fees of
their counsel, taxes on resales of the Securities by them and any expenses in connection with any
offers they make.
13. Survival. The respective indemnities, rights of contribution, representations,
warranties and agreements of the Issuers and the Initial Purchasers contained in this Agreement or
made by or on behalf of the Issuers or the Initial Purchasers pursuant to this Agreement or any
certificate delivered pursuant hereto shall survive the delivery of and payment for the Securities
and shall remain in full force and effect, regardless of any termination or cancellation of this
Agreement or any investigation made by or on behalf of any of them or any of their respective
affiliates, officers, directors, employees, representatives, agents or controlling persons.
14. Notices, etc. All statements, requests, notices and agreements hereunder shall be
in writing, and:
(a) if to the Initial Purchasers, shall be delivered or sent by mail or telecopy
transmission to J.P. Morgan Securities Inc., 270 Park Avenue, New York, New York 10017,
Attention: Richard Gabriel (telecopier no.: (212) 270-1063); or
- 22 -
(b) if to the Company, shall be delivered or sent by mail or telecopy transmission to
the address of the Company set forth or incorporated by reference in the Offering
Memorandum, Attention: James R. McIlwain, Esq., General Counsel (telecopier no.:
(225) 928-3400);
Any such statements, requests, notices or agreements shall take effect at the time of receipt
thereof. The Company shall be entitled to act and rely upon any request, consent, notice or
agreement given or made on behalf of the Initial Purchasers by JPMorgan.
15. Definition of Terms. For purposes of this Agreement, (a) the term “business day”
means any day other than a day on which banks are permitted or required to be closed in New York
City, (b) except where otherwise expressly provided, the term “subsidiary” has the meaning set
forth in Rule 405 under the Securities Act, (c) the term “written communication” has the meaning
set forth in Rule 405 under the Securities Act and (d) except where otherwise expressly provided,
the term “affiliate” has the meaning set forth in Rule 405 under the Securities Act.
16. Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York (without giving effect to any conflict of laws principles
that would require application of the laws of another jurisdiction).
17. Counterparts. This Agreement may be executed in one or more counterparts (which
may include counterparts delivered by telecopier) and, if executed in more than one counterpart,
the executed counterparts shall each be deemed to be an original, but all such counterparts shall
together constitute one and the same instrument.
18. Amendment. No amendment or waiver of any provision of this Agreement, nor any
consent or approval to any departure therefrom, shall in any event be effective unless the same
shall be in writing and signed by the parties hereto.
19. Headings. The headings herein are inserted for convenience of reference only and
are not intended to be part of, or to affect the meaning or interpretation of, this Agreement.
[signature pages follow]
- 23 -
If the foregoing is in accordance with your understanding of our agreement kindly sign and
return to us a counterpart hereof, whereupon this instrument will become a binding agreement
between the Issuers and the several Initial Purchasers in accordance with its terms.
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Very truly yours,
LAMAR MEDIA CORP.
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By: |
/s/ Keith A. Istre
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Name: |
Keith A. Istre |
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Title: |
Vice President-Finance and
Chief Financial Officer |
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AMERICAN SIGNS, INC. |
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COLORADO LOGOS, INC. |
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FLORIDA LOGOS, INC. |
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KANSAS LOGOS, INC. |
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LAMAR ADVERTISING OF COLORADO SPRINGS, INC. |
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LAMAR ADVERTISING OF KENTUCKY, INC. |
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LAMAR ADVERTISING OF MICHIGAN, INC. |
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LAMAR ADVERTISING OF OKLAHOMA, INC. |
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LAMAR ADVERTISING OF SOUTH DAKOTA, INC. |
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LAMAR ADVERTISING OF YOUNGSTOWN, INC. |
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LAMAR ADVERTISING SOUTHWEST, INC. |
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LAMAR BENCHES, INC. |
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LAMAR DOA TENNESSEE HOLDINGS, INC. |
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LAMAR DOA TENNESSEE, INC. |
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LAMAR ELECTRICAL, INC. |
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LAMAR FLORIDA, INC. |
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LAMAR I-40 WEST, INC. |
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LAMAR OBIE CORPORATION |
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LAMAR OCI NORTH CORPORATION |
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LAMAR OCI SOUTH CORPORATION |
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LAMAR OHIO OUTDOOR HOLDING CORP. |
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LAMAR OKLAHOMA HOLDING COMPANY, INC. |
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LAMAR PENSACOLA TRANSIT, INC. |
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MICHIGAN LOGOS, INC. |
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MINNESOTA LOGOS, INC. |
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NEBRASKA LOGOS, INC. |
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NEVADA LOGOS, INC. |
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NEW MEXICO LOGOS, INC. |
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O. B. WALLS, INC. |
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OHIO LOGOS, INC. |
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OUTDOOR MARKETING SYSTEMS, INC. |
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PREMERE OUTDOOR, INC. |
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SALE POINT POSTERS, INC. |
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SEABOARD OUTDOOR ADVERTISING CO., INC. |
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SOUTH CAROLINA LOGOS, INC. |
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TENNESSEE LOGOS, INC. |
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TLC PROPERTIES II, INC. |
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TLC PROPERTIES, INC. |
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UTAH LOGOS, INC.
VISTA MEDIA GROUP, INC.
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By: |
/s/ Keith A. Istre
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Name: |
Keith A. Istre |
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Title: |
Vice President-Finance and
Chief Financial Officer |
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DELAWARE LOGOS, L.L.C.
GEORGIA LOGOS, L.L.C.
KENTUCKY LOGOS, LLC
LOUISIANA INTERSTATE LOGOS, L.L.C.
MAINE LOGOS, L.L.C.
MISSISSIPPI LOGOS, L.L.C.
MISSOURI LOGOS, LLC
NEW JERSEY LOGOS, L.L.C.
OKLAHOMA LOGOS, L.L.C.
PENNSYLVANIA LOGOS, LLC
VIRGINIA LOGOS, LLC
WASHINGTON LOGOS, L.L.C.
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By: |
Interstate Logos, L.L.C., its Managing Member
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By: |
Lamar Media Corp., its Managing Member
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By: |
/s/ Keith A. Istre
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Name: |
Keith A. Istre |
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Title: |
Vice President-Finance and
Chief Financial Officer |
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INTERSTATE LOGOS, L.L.C.
THE LAMAR COMPANY, L.L.C.
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By: |
Lamar Media Corp., its Managing Member
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By: |
/s/ Keith A. Istre
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Name: |
Keith A. Istre |
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Title: |
Vice President-Finance and
Chief Financial Officer |
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[Purchase Agreement Signature Page]
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LAMAR ADVERTISING OF LOUISIANA, L.L.C.
LAMAR ADVERTISING OF PENN, LLC
LAMAR TENNESSEE, L.L.C.
LC BILLBOARD L.L.C.
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By: |
The Lamar Company, L.L.C., its Managing Member
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By: |
Lamar Media Corp., its Managing Member
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By: |
/s/ Keith A. Istre
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Name: |
Keith A. Istre |
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Title: |
Vice President-Finance and
Chief Financial Officer |
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LAMAR TEXAS LIMITED PARTNERSHIP
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By: |
The Lamar Company, L.L.C., its General Partner
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By: |
Lamar Media Corp., its Managing Member
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By: |
/s/ Keith A. Istre
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Name: |
Keith A. Istre |
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Title: |
Vice President-Finance and
Chief Financial Officer |
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TLC FARMS, L.L.C.
TLC Properties, L.L.C.
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By: |
TLC Properties, Inc., its Managing Member
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By: |
/s/ Keith A. Istre
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Name: |
Keith A. Istre |
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Title: |
Vice President-Finance and
Chief Financial Officer |
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[Purchase Agreement Signature Page]
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OUTDOOR PROMOTIONS WEST, LLC
TRIUMPH OUTDOOR RHODE ISLAND, LLC
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By: |
Triumph Outdoor Holdings, LLC,
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its Managing Member |
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By: |
Lamar Central Outdoor, LLC,
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its Managing Member |
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By: |
Lamar Media Corp.,
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its Managing Member |
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By: |
/s/ Keith A. Istre
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Name: |
Keith A. Istre |
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Title: |
Vice President-Finance and
Chief Financial Officer |
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LAMAR ADVANTAGE GP COMPANY, LLC
LAMAR ADVANTAGE LP COMPANY, LLC
TRIUMPH OUTDOOR HOLDINGS, LLC
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By: |
Lamar Central Outdoor, LLC,
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its Managing Member |
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By: |
Lamar Media Corp.,
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its Managing Member |
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By: |
/s/ Keith A. Istre
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Name: |
Keith A. Istre |
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Title: |
Vice President-Finance and
Chief Financial Officer |
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LAMAR CENTRAL OUTDOOR, LLC
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By: |
Lamar Media Corp., its Managing Member
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By: |
/s/ Keith A. Istre
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Name: |
Keith A. Istre |
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Title: |
Vice President-Finance and
Chief Financial Officer |
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[Purchase Agreement Signature Page]
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LAMAR AIR, L.L.C.
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By: |
The Lamar Company, L.L.C., its Managing Member
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By: |
Lamar Media Corp., its Managing Member
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By: |
/s/ Keith A. Istre
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Name: |
Keith A. Istre |
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Title: |
Vice President-Finance and
Chief Financial Officer |
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LAMAR T.T.R., L.L.C.
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By: |
Lamar Advertising of Youngstown, Inc., its
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Managing Member |
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By: |
/s/ Keith A. Istre
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Name: |
Keith A. Istre |
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Title: |
Vice President-Finance and
Chief Financial Officer |
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OUTDOOR MARKETING SYSTEMS, L.L.C.
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By: |
Outdoor Marketing Systems, Inc., its
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Managing Member |
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By: |
/s/ Keith A. Istre
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Name: |
Keith A. Istre |
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Title: |
Vice President-Finance and
Chief Financial Officer |
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OBIE BILLBOARD LLC
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By: |
Lamar Obie Corporation,
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its Managing Member |
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By: |
/s/ Keith A. Istre
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Name: |
Keith A. Istre |
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Title: |
Vice President-Finance and
Chief Financial Officer |
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[Purchase Agreement Signature Page]
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TEXAS LOGOS, L.P.
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By: |
Oklahoma Logos, L.L.C.,
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its General Partner |
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By: |
Interstate Logos, L.L.C.,
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its Managing Member |
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By: |
Lamar Media Corp.,
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its Managing Member |
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By: |
/s/ Keith A. Istre
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Name: |
Keith A. Istre |
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Title: |
Vice President-Finance and
Chief Financial Officer |
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LAMAR ADVANTAGE OUTDOOR COMPANY, L.P.
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By: |
Lamar Advantage GP Company, LLC,
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its General Partner |
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By: |
Lamar Central Outdoor, LLC,
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its Managing Member |
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By: |
Lamar Media Corp.,
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its Managing Member |
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By: |
/s/ Keith A. Istre
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Name: |
Keith A. Istre |
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Title: |
Vice President-Finance and
Chief Financial Officer |
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LAMAR ADVANTAGE HOLDING COMPANY
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By: |
/s/ Keith A. Istre
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Name: |
Keith A. Istre |
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Title: |
Vice President-Finance and
Chief Financial Officer |
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[Purchase Agreement Signature Page]
Accepted:
J.P. MORGAN SECURITIES INC.
For itself and on behalf of the several
Initial Purchasers listed in Schedule 1 hereto
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By:
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/s/ Earl E. Dowling |
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Authorized Signatory
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[Purchase Agreement Signature Page]
SCHEDULE 1
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Principal Amount at |
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Closing Date |
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| Initial Purchasers |
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of Securities |
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J.P. MORGAN SECURITIES INC |
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$ |
211,728,405 |
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BANC OF AMERICA SECURITIES LLC |
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$ |
8,641,990 |
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BNP PARIBAS SECURITIES CORP |
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$ |
8,641,990 |
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BNY MELLON CAPITAL MARKETS, LLC |
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$ |
8,641,990 |
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CALYON SECURITIES (USA) INC |
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$ |
8,641,990 |
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GREENWICH CAPITAL MARKETS, INC |
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$ |
13,827,100 |
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RBC CAPITAL MARKETS CORPORATION |
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$ |
8,641,990 |
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WACHOVIA CAPITAL MARKETS, LLC |
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$ |
81,234,545 |
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Total |
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$ |
350,000,000 |
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Exhibit A
[Form of Registration Rights Agreement]
Exhibit B
Subsidiaries of Lamar Media Corp.
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| Subsidiary/Guarantor |
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Jurisdiction of Organization |
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American Signs, Inc.
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Washington |
Canadian TODS Limited
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Nova Scotia, Canada* |
Colorado Logos, Inc.
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Colorado |
Delaware Logos, L.L.C.
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Delaware |
Florida Logos, Inc.
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Florida |
Georgia Logos, L.L.C.
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Georgia |
Interstate Logos, L.L.C.
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Louisiana |
Kansas Logos, Inc.
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Kansas |
Kentucky Logos, LLC
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Kentucky |
Lamar Advantage GP Company, LLC
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Delaware |
Lamar Advantage Holding Company
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Delaware |
Lamar Advantage LP Company, LLC
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Delaware |
Lamar Advantage Outdoor Company, L.P.
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Delaware |
Lamar Advertising of Colorado Springs, Inc.
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Colorado |
Lamar Advertising of Kentucky, Inc.
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Kentucky |
Lamar Advertising of Louisiana, L.L.C.
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Louisiana |
Lamar Advertising of Michigan, Inc.
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Michigan |
Lamar Advertising of Oklahoma, Inc.
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Oklahoma |
Lamar Advertising of Penn, LLC
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Delaware |
Lamar Advertising of Puerto Rico, Inc.
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Puerto Rico* |
Lamar Advertising of South Dakota, Inc.
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South Dakota |
Lamar Advertising of Youngstown, Inc.
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Delaware |
Lamar Advertising Southwest, Inc.
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Nevada |
Lamar Air, L.L.C.
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Louisiana |
Lamar Benches, Inc.
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Oklahoma |
Lamar Canadian Outdoor Company
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Ontario, Canada* |
Lamar Central Outdoor, LLC
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Delaware |
Lamar DOA Tennessee Holdings, Inc.
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Delaware |
Lamar DOA Tennessee, Inc.
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Delaware |
Lamar Electrical, Inc.
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Louisiana |
Lamar Florida, Inc.
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Florida |
Lamar I-40 West, Inc.
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Oklahoma |
Lamar Obie Corporation
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Delaware |
Lamar OCI North Corporation
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Delaware |
Lamar OCI South Corporation
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Mississippi |
Lamar Ohio Outdoor Holding Corp.
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Ohio |
Lamar Oklahoma Holding Company, Inc.
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Oklahoma |
Lamar Pensacola Transit, Inc.
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Florida |
Lamar T.T.R., L.L.C.
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Arizona |
Lamar Tennessee, L.L.C.
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Tennessee |
Lamar Texas General Partner, Inc.
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Louisiana |
Lamar Texas Limited Partnership
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Texas |
Lamar Transit Advertising Canada Ltd.
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British Columbia* |
LC Billboard L.L.C.
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Delaware |
Louisiana Logos, L.L.C.
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Louisiana |
Maine Logos, L.L.C.
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Maine |
Michigan Logos, Inc.
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Michigan |
Minnesota Logos, Inc.
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Minnesota |
Mississippi Logos, L.L.C.
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Mississippi |
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| Subsidiary/Guarantor |
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Jurisdiction of Organization |
Missouri Logos, a Partnership
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Missouri* |
Missouri Logos, LLC
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Missouri |
Nebraska Logos, Inc.
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Nebraska |
Nevada Logos, Inc.
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Nevada |
New Jersey Logos, L.L.C.
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New Jersey |
New Mexico Logos, Inc.
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New Mexico |
O. B. Walls, Inc.
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Oregon |
Obie Billboard, LLC
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Oregon |
Ohio Logos, Inc.
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Ohio |
Oklahoma Logos, L.L.C.
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Oklahoma |
Outdoor Marketing Systems, Inc.
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Pennsylvania |
Outdoor Marketing Systems, LLC
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Pennsylvania |
Outdoor Promotions West, LLC
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Delaware |
Pennsylvania Logos, LLC
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Pennsylvania |
Premere Outdoor, Inc.
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Illinois |
QMC Transit, Inc.
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Puerto Rico* |
Sale Point Posters, Inc.
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New York |
Seaboard Outdoor Advertising Co., Inc.
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New York |
South Carolina Logos, Inc.
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South Carolina |
Tennessee Logos, Inc.
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Tennessee |
Texas Logos, L.P.
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Texas |
The Lamar Company, L.L.C.
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Louisiana |
TLC Farms, L.L.C.
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Louisiana |
TLC Properties II, Inc.
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Texas |
TLC Properties, Inc.
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Louisiana |
TLC Properties, L.L.C.
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Louisiana |
Triumph Outdoor Holdings, LLC
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Delaware |
Triumph Outdoor Rhode Island, LLC
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Delaware |
Utah Logos, Inc.
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Utah |
Virginia Logos, LLC
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Virginia |
Vista Media Group, Inc.
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Delaware |
Washington Logos, L.L.C.
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Washington |
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