EXHIBIT 10.3
EXECUTION COPY
Nexstar Finance Holdings, L.L.C.
Nexstar Finance Holdings, Inc.
as Issuers
$130,000,000
11.375% Senior Discount Notes due 2013
Purchase Agreement
dated as of March 18, ▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ Securities LLC
Bear ▇▇▇▇▇▇▇ & Co. Inc.
Table of Contents
SECTION 1. Representations and Warranties.........................................................2
(a) No Registration Required........................................................................2
(b) No Integration of Offerings or General Solicitation.............................................2
(c) Eligibility for Resale under Rule 144A..........................................................3
(d) The Offering Memorandum.........................................................................3
(e) The Purchase Agreement..........................................................................3
(f) The Registration Rights Agreement...............................................................3
(g) Authorization of the Notes and the Exchange Notes...............................................4
(h) Authorization of the Indenture..................................................................4
(i) Description of the Notes and the Indenture......................................................4
(j) No Material Adverse Change......................................................................4
(k) Independent Accountants.........................................................................5
(l) Preparation of the Financial Statements.........................................................5
(m) Incorporation and Good Standing of the Company and its Subsidiaries.............................5
(n) Capitalization..................................................................................6
(o) Non-Contravention of Existing Instruments; No Further Authorizations or Approvals Required......6
(p) No Material Actions or Proceedings..............................................................6
(q) Intellectual Property Rights....................................................................7
(r) All Necessary Permits, etc......................................................................7
(s) FCC Licenses....................................................................................7
(t) Condition of Stations...........................................................................8
(u) Title to Properties.............................................................................8
(v) Tax Law Compliance..............................................................................8
(w) Company Not an "Investment Company".............................................................9
(x) Insurance.......................................................................................9
(y) No Price Stabilization or Manipulation..........................................................9
(z) Company's Accounting System.....................................................................9
(aa) ERISA Compliance................................................................................9
(bb) Regulation S...................................................................................10
SECTION 2. Purchase, Sale and Delivery of the Notes..............................................10
(a) The Notes......................................................................................10
(b) The Closing Date...............................................................................10
(c) Delivery of the Notes..........................................................................11
(d) Delivery of Offering Memorandum to the Initial Purchasers......................................11
(e) Initial Purchaser as Qualified Purchaser.......................................................12
(f) Resale of Notes................................................................................12
SECTION 3. Additional Covenants..................................................................12
(a) Initial Purchasers' Review of Proposed Amendments and Supplements..............................12
(b) Amendments and Supplements to the Offering Memorandum and Other Securities Act Matters.........12
(c) Copies of the Offering Memorandum..............................................................13
(d) Blue Sky Compliance............................................................................13
(e) Use of Proceeds................................................................................13
(f) The Depositary.................................................................................13
(g) Additional Issuer Information..................................................................13
(h) Future Reports to the Initial Purchasers.......................................................14
(i) No Integration.................................................................................14
(j) Legended Notes.................................................................................14
(k) PORTAL.........................................................................................14
SECTION 4. Payment of Expenses...................................................................14
SECTION 5. Conditions of the Obligations of the Initial Purchasers...............................15
(a) Accountants' Comfort Letter....................................................................15
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(b) No Material Adverse Change or Ratings Agency Change............................................15
(c) Financial Information..........................................................................16
(d) Opinion of Counsel for the Company.............................................................16
(e) Opinion of Regulatory Counsel for the Company..................................................16
(f) Opinion of Counsel for the Initial Purchasers..................................................16
(g) Officers' Certificate..........................................................................16
(h) PORTAL Listing.................................................................................16
(i) Registration Rights Agreement..................................................................17
(j) Indenture......................................................................................17
(k) Additional Documents...........................................................................17
SECTION 6. Reimbursement of Initial Purchasers' Expenses.........................................17
SECTION 7. Offer, Sale and Resale Procedures.....................................................17
SECTION 8. Indemnification.......................................................................18
(a) Indemnification of the Initial Purchaser.......................................................18
(b) Indemnification of the Company, its Directors and Officers.....................................19
(c) Notifications and Other Indemnification Procedures.............................................20
(d) Settlements....................................................................................20
SECTION 9. Contribution..........................................................................21
SECTION 10. Termination of this Agreement.........................................................22
SECTION 11. Representations and Indemnities to Survive Delivery...................................22
SECTION 12. Notices...............................................................................23
SECTION 13. Successors............................................................................23
SECTION 14. Partial Unenforceability..............................................................24
SECTION 15. Governing Law Provisions..............................................................24
SECTION 16. Consent to Jurisdiction...............................................................24
SECTION 17. Default of One or More of the Several Initial Purchasers..............................24
SECTION 18. General Provisions....................................................................25
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PURCHASE AGREEMENT
March 18, ▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ SECURITIES LLC
BEAR ▇▇▇▇▇▇▇ & CO. INC.
c/o BANC OF AMERICA SECURITIES LLC
▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Nexstar Finance Holdings, L.L.C., a Delaware limited liability
company, and Nexstar Finance Holdings, Inc., a Delaware corporation (together,
the "Company"), propose to issue and sell to the several Initial Purchasers
named in Schedule I (the "Initial Purchasers"), acting severally and not
jointly, the respective amounts set forth in such Schedule I of the Company's
11.375% Senior Discount Notes due 2013 (the "Notes"). Banc of America LLC has
agreed to act as the lead Initial Purchaser in connection with the offering and
the sale of the Notes.
The Notes will be issued pursuant to an indenture, to be dated
as of the Closing Date (as defined below) (the "Indenture"), among the Company,
Mission Broadcasting, Inc. ("Mission") and United States Trust Company of New
York, as trustee (the "Trustee"). Notes issued in book-entry form will be issued
in the name of Cede & Co., as nominee of The Depository Trust Company (the
"Depositary").
The holders of the Notes will be entitled to the benefits of a
registration rights agreement, to be dated as of Closing Date (the "Registration
Rights Agreement"), among the Company and the Initial Purchasers, pursuant to
which the Company will agree to file, within 90 days after the Closing Date, a
registration statement with the Commission registering the Exchange Notes (as
defined below) under the Securities Act.
The Company understands that the Initial Purchasers propose to
make an offering of the Notes on the terms and in the manner set forth herein
and to be set forth in the Offering Memorandum (as defined below) and agrees
that the Initial Purchasers may resell, subject to the conditions set forth
herein, all or a portion of the Notes to purchasers (the "Subsequent
Purchasers") at any time after the date of this Agreement. The Notes are to be
offered and sold to or through the Initial Purchasers without being registered
with the Securities and Exchange Commission (the "Commission") under the
Securities Act of 1933 (as amended, the "Securities Act," which term, as used
herein, includes the rules and regulations of the Commission promulgated
thereunder), in reliance upon exemptions therefrom. The terms of the Notes and
the Indenture will require that investors that acquire Notes expressly agree
that Notes may only be resold or
otherwise transferred, after the date hereof, if such Notes are registered for
sale under the Securities Act or if an exemption from the registration
requirements of the Securities Act is available (including the exemptions
afforded by Rule 144A ("Rule 144A") or Regulations S ("Regulation S")
thereunder). The terms of the Notes and the Indenture will require that
investors that acquire Notes expressly agree that Notes, may only be resold or
otherwise transferred, after the date hereof, if such Notes are registered for
sale under the Securities Act or if an exemption from the registration
requirements of the Securities Act is available (including the exemptions
afforded by Rule 144A or Regulation S ("Regulation S") thereunder).
The Company will prepare on or before two business days prior
to the Closing Date, and deliver to the Initial Purchasers, copies of the
Offering Memorandum describing the terms of the Notes, each for use by such
Initial Purchaser in connection with its solicitation of offers to purchase the
Notes. As used herein, the "Offering Memorandum" shall mean, with respect to any
date or time referred to in this Agreement, the Company's Offering Memorandum,
to be dated on or before such date, including amendments or supplements thereto,
any exhibits thereto, in the most recent form that will be prepared and
delivered by the Company to the Initial Purchasers in connection with its
solicitation of offers to purchase Notes. Such Offering Memorandum shall provide
the information described in Section 2(d) hereof and otherwise in form and
substance reasonably acceptable to the Initial Purchasers. Further, any
reference to the Offering Memorandum shall be deemed to refer to and include any
Additional Issuer Information (as defined in Section 3) furnished by the
Company's prior to the completion of the distribution of the Notes.
The Company hereby confirms its agreement with the Initial
Purchasers as follows:
SECTION 1. Representations and Warranties. The Company hereby represents,
warrants and covenants to each Initial Purchaser on the date hereof, on the date
of delivery of the Offering Memorandum and on the Closing Date, as follows:
(a) No Registration Required. Subject to compliance by the Initial
Purchasers with the representations and warranties set forth in Section 2 hereof
and with the procedures set forth in Section 7 hereof, it is not necessary in
connection with the offer, sale and delivery of the Notes to the Initial
Purchasers and to each Subsequent Purchaser in the manner contemplated by this
Agreement and the Offering Memorandum to register the Notes under the Securities
Act or, until such time as the Exchange Notes are issued pursuant to an
effective registration statement, to qualify the Indenture under the Trust
Indenture Act of ▇▇▇▇ (▇▇▇ "▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇," which term, as used herein,
includes the rules and regulations of the Commission promulgated thereunder).
(b) No Integration of Offerings or General Solicitation. The
Company has not, directly or indirectly, solicited any offer to buy or offered
to sell, nor will, directly or indirectly, solicit any offer to buy or offer to
sell, in the United States or to any United States citizen or resident, any
security which is or would be integrated with the sale of the Notes in a manner
that would require any of the Notes to be registered under the Securities Act.
The Company, its affiliates as such term is defined in Rule 501 under the
Securities Act (each, an "Affiliate"), or any person acting on its behalf (other
than the Initial Purchasers, as to whom the Company makes no representation or
warranty) has not engaged or will not engage, in connection with the offering of
the Notes, in any form of general solicitation or general advertising within the
meaning of Rule 502 under the Securities Act. With respect to those Notes sold
in reliance upon Regulation S, the Company or its Affiliates or any person
acting on its behalf (other than the Initial Purchasers, as to whom the Company
makes no representation or warranty) has not engaged or will not engage in any
directed selling efforts within the meaning of Regulation S.
(c) Eligibility for Resale under Rule 144A. The Notes are eligible
for resale pursuant to Rule 144A and will not be, at the Closing Date, of the
same class as securities listed on a national
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securities exchange registered under Section 6 of the Exchange Act or quoted in
a U.S. automated interdealer quotation system.
(d) The Offering Memorandum. The Offering Memorandum, as of its
date and at the Closing Date, 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 under which they were made, not
misleading; provided that this representation, warranty and agreement shall not
apply to statements in or omissions from the Offering Memorandum made in
reliance upon and in conformity with information furnished to the Company in
writing by any Initial Purchaser expressly for use in the Offering Memorandum.
The Offering Memorandum, as of its date, will contain all the information
specified in, and meeting the requirements of, Rule 144A. The Company has not
distributed or will not distribute, prior to the later of the Closing Date and
the completion of the Initial Purchasers' distribution of the Notes, any
offering material in connection with the offering and sale of the Notes other
than the Offering Memorandum.
(e) The Purchase Agreement. This Agreement has been duly
authorized, executed and delivered by, and is a valid and binding agreement of
the Company, enforceable against the Company in accordance with its terms,
except as rights to indemnification hereunder may be limited by applicable law
and except as the enforcement hereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting the
rights and remedies of creditors or by general equitable principles and except
as rights to indemnification under the Registration Rights Agreement may be
limited by applicable law.
(f) The Registration Rights Agreement. At the Closing Date, the
Registration Rights Agreement will be duly authorized, executed and delivered
by, and will be a valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms, except as the enforcement
thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws relating to or affecting the rights and remedies of creditors
or by general equitable principles and except as rights to indemnification under
the Registration Rights Agreement may be limited by applicable law. Pursuant to
the Registration Rights Agreement, the Company will agree to file with the
Commission, under the circumstances set forth therein, a registration statement
under the Securities Act relating to another series of debt securities of the
Company with terms substantially identical to the Notes (the "Exchange Notes")
to be offered in exchange for the Notes (the "Exchange Offer") and (ii) to the
extent required by the Registration Rights Agreement, a shelf registration
statement pursuant to Rule 415 of the Securities Act relating to the resale by
certain holders of the Notes, and in each case, to use its best efforts to cause
such registration statements to be declared effective.
(g) Authorization of the Notes and the Exchange Notes.
(i) The Notes to be purchased by the Initial Purchasers
from the Company will be in the form contemplated by the Indenture, have been
duly authorized for issuance and sale pursuant to this Agreement and at the
Closing Date the Indenture will have been duly executed by the Company and, when
authenticated in the manner provided for in the Indenture and delivered against
payment of the purchase price therefor, will constitute valid and binding
agreements of the Company, enforceable against the Company in accordance with
their terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating to or
affecting the rights and remedies of creditors or by general equitable
principles and will be entitled to the benefits of the Indenture.
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(ii) The Exchange Notes have been duly and validly
authorized for issuance by the Company, and when issued and authenticated in
accordance with the terms of the Indenture, the Registration Rights Agreement
and the Exchange Offer, will constitute valid and binding obligations of the
Company, enforceable against the Company in accordance with their terms, except
as the enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium, or similar laws relating to or affecting enforcement
of the rights and remedies of creditors or by general principles of equity and
will be entitled to the benefits of the Indenture.
(h) Authorization of the Indenture. The Indenture has been duly
authorized by the Company, and, at the Closing Date, will have been duly
executed and delivered by the Company, and will, when executed by the Trustee,
constitute a valid and binding agreement of the Company, enforceable against the
Company in accordance with its terms, except as the enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or other similar
laws relating to or affecting the rights and remedies of creditors or by general
equitable principles.
(i) Description of the Notes and the Indenture. The Notes, the
Exchange Notes and the Indenture will conform in all material respects to the
respective statements relating thereto to be contained in the Offering
Memorandum.
(j) No Material Adverse Change. Except as otherwise will be
disclosed in the Offering Memorandum, subsequent to the respective dates as of
which information will be given in the Offering Memorandum: (i) there has been
no material adverse change, or any development that could reasonably be expected
to result in a material adverse change, in the condition, financial or
otherwise, or in the earnings, business, operations or prospects, whether or not
arising from transactions in the ordinary course of business, of the Company or
its subsidiaries (any such change is called a "Material Adverse Change"); (ii)
none of the Company or its subsidiaries have incurred any material liability or
obligation, indirect, direct or contingent, not in the ordinary course of
business nor entered into any material transaction or agreement not in the
ordinary course of business; and (iii) there has been no dividend or
distribution of any kind declared, paid or made by the Company or, except for
dividends paid to the Company, its subsidiaries on any class of capital stock or
repurchase or redemption by the Company, or its subsidiaries of any class of
capital stock.
(k) Independent Accountants. PricewaterhouseCoopers LLP
("PricewaterhouseCoopers") and KPMG LLP ("KPMG"), who have expressed their
opinion with respect to the financial statements (which term as used in this
Agreement includes the related notes thereto) included in the Offering
Memorandum are independent public or certified public accountants within the
meaning of Regulation S-X under the Securities Act and the Exchange Act.
(l) Preparation of the Financial Statements. The financial
statements, together with the related schedules and notes, to be included in the
Offering Memorandum will present fairly the consolidated financial position of
the Company and its subsidiaries as of and at the dates indicated and the
results of their operations and cash flows for the periods specified. Such
financial statements have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis throughout the periods
involved, except as may be expressly stated in the related notes thereto. The
financial data to be set forth in the Offering Memorandum under the captions
"Offering Memorandum Summary--Summary Historical and Pro Forma Condensed
Consolidated Financial Data" and "Selected Historical Consolidated Financial
Data" fairly present the information set forth therein on a basis consistent
with that of the audited financial statements contained in the Offering
Memorandum. The pro forma
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consolidated, condensed financial statements of the Company and its subsidiaries
and the related notes thereto included under the caption "Offering Memorandum
Summary--Summary Historical and Pro Forma Condensed Consolidated Financial
Data", "Unaudited Pro Forma Consolidated Financial Statements" and elsewhere in
the Offering Memorandum will present fairly the information contained therein,
have been prepared in accordance with the Commission's rules and guidelines with
respect to pro forma financial statements, except that Adjusted EBITDA and
broadcast cash flow are not within the scope of the Commission's guidelines, and
have been properly presented on the bases described therein, and the assumptions
used in the preparation thereof are reasonable and the adjustments used therein
are appropriate to give effect to the transactions and circumstances referred to
therein.
(m) Incorporation and Good Standing of the Company and its
Subsidiaries. The Company and its subsidiaries has been duly incorporated or
formed, as applicable, and is validly existing as a corporation or limited
liability company, as the case may be, in good standing under the laws of the
jurisdiction of its incorporation or formation and has corporate power and
authority to own, lease and operate its properties and to conduct its business
as described in the Offering Memorandum and, in the case of the Company, to
enter into and perform its obligations under each of this Agreement, the
Registration Rights Agreement, the Notes, the Exchange Notes and the Indenture.
The Company and its subsidiaries is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except for such jurisdictions where the
failure to so qualify or to be in good standing would not, individually or in
the aggregate, result in a Material Adverse Change. All of the issued and
outstanding capital stock or LLC interests, as applicable, of the Company and
each subsidiary of the Company has been duly authorized and validly issued, is
fully paid and nonassessable and is owned by the Company, directly or through
subsidiaries, free and clear of any security interest, mortgage, pledge, lien,
encumbrance or claim. The Company does not own or control, directly or
indirectly, any corporation, association or other entity other than the
subsidiaries listed in Schedule II hereto.
(n) Capitalization. At December 31, 2002, on a consolidated basis,
after giving pro forma effect to the issuance and sale of the Notes pursuant
hereto, the Company would have an authorized and outstanding capitalization to
be set forth in the Offering Memorandum under the caption "Capitalization"
(other than for subsequent issuances of capital stock, if any, pursuant to
employee benefit plans to be described in the Offering Memorandum or upon
exercise of outstanding options or warrants described in the Offering
Memorandum).
(o) Non-Contravention of Existing Instruments; No Further
Authorizations or Approvals Required. The Company, and each of its subsidiaries,
is not in violation of its charter or by-laws or is in default (or, with the
giving of notice or lapse of time, would be in default) ("Default") under any
indenture, mortgage, loan or credit agreement, note, contract, franchise, lease
or other instrument to which the Company or its subsidiaries is a party or by
which it or any of them may be bound (including, without limitation, the
Company's $50.0 million, seven-year revolving credit facility, $130.0 million,
eight-year term loan facility, and Mission's $55.0 million, eight-year term
credit facility and $30.0 million, seven-year revolving credit facility), or to
which any of the property or assets of the Company, and each of its
subsidiaries, is subject (each, an "Existing Instrument"), except for such
Defaults as would not, individually or in the aggregate, result in a Material
Adverse Change. The Company's execution, delivery and performance, as
applicable, of this Agreement, the Registration Rights Agreement and the
Indenture, and the issuance and delivery of the Notes or the Exchange Notes and
consummation of the transactions contemplated hereby and thereby and by the
Offering Memorandum (i) has been duly authorized by all necessary corporate
action and will not result in any violation of the
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provisions of the charter or by-laws or operation agreement, as applicable, of
any of the Company or its subsidiaries, (ii) will not conflict with or
constitute a breach of, or Default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of any
of the Company or its subsidiaries pursuant to, or require the consent of any
other party to, any Existing Instrument, except for such conflicts, breaches,
Defaults, liens, charges or encumbrances as would not, individually or in the
aggregate, result in a Material Adverse Change and (iii) will not result in any
violation of any law, administrative regulation or administrative or court
decree applicable to the Company or any of its subsidiaries. No consent,
approval, authorization or other order of, or registration or filing with, any
court or other governmental or regulatory authority or agency, is required for
the Company's execution, delivery and performance, as applicable, of this
Agreement, the Registration Rights Agreement or the Indenture, or the issuance
and delivery of the Notes or the Exchange Notes or consummation of the
transactions contemplated hereby and thereby and by the Offering Memorandum,
except such as have been obtained or made by the Company and are in full force
and effect under the Securities Act, applicable state securities or blue sky
laws and except such as may be required by federal and state securities laws
with respect to the obligations under the Registration Rights Agreement.
(p) No Material Actions or Proceedings. There are no legal or
governmental actions, suits or proceedings pending or, to the best of the
Company's knowledge, threatened against or affecting any of the Company or its
subsidiaries, which has as the subject thereof any property owned or leased by
the Company or any of its subsidiaries, where in any such case there is a
reasonable possibility that such action, suit or proceeding might be determined
adversely to the Company or any such subsidiary and any such action, suit or
proceeding, if so determined adversely, would reasonably be expected to result
in a Material Adverse Change or adversely affect the consummation of the
transactions contemplated by this Agreement. No material labor dispute with the
employees of the Company's or its subsidiaries, exists or, to the best of the
Company's knowledge, is threatened or imminent.
(q) Intellectual Property Rights. Except as otherwise disclosed in
the Offering Memorandum, the Company and its subsidiaries, or Mission, own or
possess sufficient trademarks, trade names, patent rights, copyrights, licenses,
approvals, trade secrets and other similar rights (collectively, "Intellectual
Property Rights") reasonably necessary to conduct their businesses as now
conducted; and the expected expiration of any of such Intellectual Property
Rights would not result in a Material Adverse Change. None of the Company or any
of its subsidiaries, or Mission, has received any notice of infringement or
conflict with asserted Intellectual Property Rights of others, which
infringement or conflict, if the subject of an unfavorable decision, would
result in a Material Adverse Change.
(r) All Necessary Permits, etc. Each of the Company and its
subsidiaries possesses such valid and current certificates, authorizations or
permits issued by the appropriate state, federal or foreign regulatory agencies
or bodies necessary to conduct their respective businesses, and none of the
Company or any of its subsidiaries has received any notice of proceedings
relating to the revocation or modification of, or non-compliance with, any such
certificate, authorization or permit which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, could result in a
Material Adverse Change.
(s) FCC Licenses.
(i) The Company or its respective subsidiaries, or
Mission, hold such validly issued Federal Communications Commission ("FCC")
licenses and authorizations as are necessary to operate their respective
television stations, which are listed on Schedule III (the
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"Stations"), as they are currently operated (collectively, the "FCC Licenses"),
and each such FCC License is in full force and effect. The FCC Licenses of the
Company or its subsidiaries, or Mission, are listed on Schedule III, and each of
such FCC Licenses has the expiration date indicated on Schedule III.
(ii) The Company has no knowledge of any condition imposed
by the FCC as part of any FCC License, which condition is neither set forth on
the face thereof as issued by the FCC nor contained in the rules and regulations
of the FCC applicable generally to stations of the type, nature, class or
location of the Station in question. Each Station has been and is being operated
in all material respects in accordance with the terms and conditions of the FCC
Licenses applicable to it and the rules and regulations of the FCC and the
Communications Act of 1934, as amended (the "Communications Act").
(iii) No proceedings are pending or are threatened which
may result in the revocation, modification, non-renewal or suspension of any of
the FCC Licenses, the denial of any pending applications, the issuance of any
cease and desist order or the imposition of any fines, forfeitures or other
administrative actions by the FCC with respect to any Station or its operation,
other than any matters which, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Change and proceedings
affecting the television broadcasting industry in general.
(iv) All reports, applications and other documents
required to be filed by the Company and its respective subsidiaries, or Mission,
with the FCC with respect to the Stations have been timely filed, and all such
reports, applications and documents are true, correct and complete in all
respects, except where the failure to make such timely filing or any inaccuracy
therein could not reasonably be expected to result in a Material Adverse Change,
and the Company has no knowledge of any matters that could reasonably be
expected to result in the suspension or revocation of or the refusal to renew
any of the FCC Licenses or the imposition on the Company or any of its
subsidiaries, or Mission, of any material fines or forfeitures by the FCC, or
which could reasonably be expected to result in the revocation, rescission,
reversal or modification of any Station's authorization to operate as currently
authorized under the Communications Act and the policies, rules and regulations
of the FCC.
(v) There are no unsatisfied or otherwise outstanding
citations issued by the FCC with respect to any Station or its operations.
(t) Condition of Stations. All of the material properties,
equipment and systems of the Company or its subsidiaries, or Mission, and the
Stations owned and/or operated by them are, and all material properties,
equipment and systems to be added in connection with any contemplated Station
expansion or construction will be, in condition which is sufficient for the
operation thereof in accordance with past practice of the Station in question
and are and will be in compliance with all applicable standards, rules or
requirements imposed by (a) any governmental agency or authority including
without limitation the FCC and (b) any FCC License, in each case except where
such noncompliance could not reasonably be expected to result in a Material
Adverse Change.
(u) Title to Properties. The Company and each of its subsidiaries
have good and marketable title to all the properties and assets reflected as
owned in the financial statements referred to in Section 1 above, in each case
free and clear of any security interests, mortgages, liens, encumbrances,
equities, claims and other defects, except such as do not materially and
adversely affect the value of such property and do not materially interfere with
the use made or
7
proposed to be made of such property by the Company or such subsidiary. The real
property, improvements, equipment and personal property held under lease by the
Company or any of its subsidiaries are held under valid and enforceable leases,
with such exceptions as are not material and do not materially interfere with
the use made or proposed to be made of such real property, improvements,
equipment or personal property by the Company or such subsidiary.
(v) Tax Law Compliance. The Company and its consolidated
subsidiaries have filed all necessary federal, state and foreign income and
franchise tax returns and have paid all taxes required to be paid by any of them
and, if due and payable, any related or similar assessment, fine or penalty
levied against any of them. The Company has made adequate charges, accruals and
reserves in the applicable financial statements referred to in Section 1 above
in respect of all federal, state and foreign income and franchise taxes for all
periods as to which the tax liability of the Company and any of its consolidated
subsidiaries has not been finally determined.
(w) Company Not an "Investment Company". The Company has been
advised of the rules and requirements under the Investment Company Act of 1940,
as amended (the "Investment Company Act"). No Company is, or after receipt of
payment for the Notes will be, an "investment company" within the meaning of
Investment Company Act, and the Company will conduct its business in a manner so
that it will not become subject to the Investment Company Act.
(x) Insurance. Each of the Company and its subsidiaries are
insured by recognized, financially sound institutions with policies in such
amounts and with such deductibles and covering such risks as are generally
deemed adequate and customary for their businesses including, but not limited
to, policies covering real and personal property owned or leased by the Company
and its subsidiaries against theft, damage, destruction, acts of vandalism and
earthquakes. The Company has no reason to believe that it they any of its
subsidiaries will not be able (i) to renew their existing insurance coverage as
and when such policies expire or (ii) to obtain comparable coverage from similar
institutions as may be necessary or appropriate to conduct their business as now
conducted and at a cost that would not result in a Material Adverse Change. None
of the Company or any of its subsidiaries has been denied any insurance coverage
that it has sought or for which it has applied.
(y) No Price Stabilization or Manipulation. The Company has not
taken or will not take, directly or indirectly, any action designed to or that
might be reasonably expected to cause or result in stabilization or manipulation
of the price of any security of the Company to facilitate the sale or resale of
the Notes.
(z) Company's Accounting System. The Company maintains a system of
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 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.
(aa) ERISA Compliance. Except as otherwise will be disclosed in the
Offering Memorandum, the Company, its subsidiaries and any "employee benefit
plan" (as defined under ERISA) established or maintained by the Company or its
subsidiaries or their "ERISA Affiliates" (as defined below) are in compliance in
all material respects with ERISA. "ERISA Affiliate"
8
means, with respect to the Company or any of its subsidiaries, any member of any
group of organizations described in Section 414 of the Internal Revenue Code of
1986, as amended, and the regulations and published interpretations thereunder
(the "Code") of which the Company or such subsidiary is a member. No "reportable
event" (as defined under ERISA) has occurred or is reasonably expected to occur
with respect to any "employee benefit plan" established or maintained by the
Company or its subsidiaries or any of their ERISA Affiliates. No "employee
benefit plan" established or maintained by the Company, its subsidiaries or any
of their ERISA Affiliates, if such "employee benefit plan" were terminated,
would have any "amount of unfunded benefit liabilities" (as defined under
ERISA). None of the Company, its respective subsidiaries or any of their ERISA
Affiliates have incurred or reasonably expect to incur any liability under Title
IV of ERISA with respect to termination of, or withdrawal from, any "employee
benefit plan" or (ii) Sections 412, 4971, 4975 or 4980B of the Code. Each
"employee benefit plan" established or maintained by the Company, its respective
subsidiaries or any of their ERISA Affiliates that is intended to be qualified
under Section 401 of the Code is so qualified and nothing has occurred, whether
by action or failure to act, which would cause the loss of such qualification.
(bb) Regulation S. The Company and its Affiliates and all persons
acting on their behalf (other than the Initial Purchasers, as to whom the
Company makes no representation) have complied with and will comply with the
offering restrictions requirements of Regulation S in connection with the
offering of the Notes outside the United States and, in connection therewith,
the Offering Memorandum will contain the disclosure required by Rule 902. The
Company is a "reporting issuer", as defined in Rule 902 under the Securities
Act.
Any certificate signed by an officer of the Company and
delivered to the Initial Purchasers or to counsel for the Initial Purchasers
shall be deemed to be a representation and warranty by the Company to the
Initial Purchasers as to the matters set forth therein.
SECTION 2. PURCHASE, SALE AND DELIVERY OF THE NOTES.
(a) The Notes. The Company agrees to issue and sell to the several
Initial Purchasers, severally and not jointly, all of the Notes upon the terms
herein set forth. On the basis of the representations, warranties and agreements
herein contained, and upon the terms but subject to the conditions herein set
forth, the Initial Purchasers agrees, to purchase from the Company the number of
Notes set forth opposite their names on Schedule I, at a purchase price equal to
57.442% of the principal amount thereof payable on the Closing Date.
(b) The Closing Date. Delivery of certificates for the Notes in
definitive form to be purchased by the Initial Purchasers and payment therefor
shall be made at the offices of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ (or such other place as may be agreed to by the Company and the Initial
Purchaser) at 9:00 a.m. New York City time, on March 27, 2003 or such other time
and date as the Initial Purchasers shall designate by notice to the Company (the
time and date of such closing are called the "Closing Date"). The Company hereby
acknowledges that circumstances under which the Initial Purchasers may provide
notice to postpone the Closing Date as originally scheduled include, but are in
no way limited to, any determination by the Company or the Initial Purchasers to
recirculate to investors copies of an amended or supplemented Offering
Memorandum or a delay as contemplated by the provisions of Section 16.
9
(c) Delivery of the Notes. The Company shall deliver, or cause to
be delivered, to the Initial Purchaser certificates for the Notes on the Closing
Date against the irrevocable release of a wire transfer of immediately available
funds for the amount of the purchase price therefor. The certificates for the
Notes shall be in such denominations and registered in the name of Cede & Co.,
as nominee of the Depository, and shall be made available for inspection on the
business day preceding the Closing Date at a location in New York City, as the
Initial Purchaser may designate. Time shall be of the essence, and delivery at
the time and place specified in this Agreement is a further condition to the
obligations of the Initial Purchaser.
(d) Delivery of Offering Memorandum to the Initial Purchasers.
(i) Not later than 12:00 noon on Thursday, March 27,
2003, the Company shall deliver or cause to be delivered copies of the Offering
Memorandum in such quantities and at such places as the Initial Purchasers shall
reasonably request. Such Offering Memorandum shall be in form and substance
reasonably acceptable to the Initial Purchasers.
(ii) By the Closing Date, the Company shall include in the
Offering Memorandum (i) with the financial and other data set forth under the
caption "Management's Discussion and Analysis of Financial Condition and Results
of Operations" a discussion of the financial condition, changes in financial
position and results of operation of the Company and its subsidiaries based on
the audited consolidated financial statements of the Company for the year ended
December 31, 2002 consistent with past practice of the Company and in compliance
with Item 303 of Regulation S-K under the Securities Act; (ii) the audited
consolidated financial statements of the Company for the year ended December 31,
2002; (iii) the audited financial statements of United Broadcasting Corporation
and ▇▇▇▇▇▇ Network of Alabama, Inc. (the "▇▇▇▇▇▇ Group") for the year ended
September 30, 2002; and (iv) pro forma financial information computed on a basis
consistent with the audited historical consolidated financial statements of the
Company, prepared using reasonable assumptions and containing such appropriate
adjustments to give effect to the transactions or circumstances referred to
therein and in form and substance reasonably acceptable to the Initial
Purchasers.
(iii) The Company will as soon as possible after the date
hereof inform the Initial Purchasers (i) if PricewaterhouseCoopers informs
either of them of any matters that may give rise to a qualification or
modification to its audit report for consolidated financial statement of the
Company for the year ended December 31, 2002; or (ii) if PricewaterhouseCoopers
informs either of them that PricewaterhouseCoopers is not or may not be in a
position to issue an unqualified or unmodified audit opinion for consolidated
financial statement of the Company for the year ended December 31, 2002.
(iv) On the Closing Date, the Initial Purchaser shall have
received a copy, certified a true copy by an officer of the Company, of the
audited consolidated financial statements of the Company for the year ended
December 31, 2002 containing an audit opinion of PricewaterhouseCoopers, without
qualification, stating that such financial statements present fairly, in all
material respects, the financial position of the Company and its subsidiaries
and were produced in conformity with accounting principles generally acceptable
in the United States of America.
(e) Initial Purchaser as Qualified Purchaser. Each Initial
Purchaser, severally and not jointly, represents and warrants to, and agrees
with, the Company that it is a Qualified
10
Institutional Buyer within the meaning of Rule 144A ("Qualified Institutional
Buyer") and an "accredited investor" within the meaning of Rule 501 under the
Securities Act.
(f) Resale of Notes. Each Initial Purchaser severally and not
jointly represents and warrants to, and agrees with the Company that such
Initial Purchaser will make offers of the Notes purchased hereunder on the terms
set forth in the Offering Memorandum solely to (i) persons whom such Initial
Purchaser reasonably believes to be Qualified Institutional Buyers, and (ii)
persons permitted to purchase the Notes in offshore transactions in reliance
upon Regulation S under the Securities Act (such persons specified in clauses
(i) and (ii) are the Subsequent Purchasers referred to herein).
SECTION 3. Additional Covenants. The Company further covenants and agrees
with the Initial Purchasers as follows:
(a) Initial Purchasers' Review of Proposed Amendments and
Supplements. Prior to amending or supplementing the Offering Memorandum, the
Company shall furnish to the Initial Purchasers for review a copy of each such
proposed amendment or supplement, and the Company shall not use any such
proposed amendment or supplement to which the Initial Purchasers reasonably
object.
(b) Amendments and Supplements to the Offering Memorandum and
Other Securities Act Matters. If, prior to the completion of the placement of
the Notes by the Initial Purchasers with the Subsequent Purchasers, any event
shall occur or condition exist as a result of which it is necessary to amend or
supplement the Offering Memorandum in order to make the statements therein, in
the light of the circumstances when the Offering Memorandum is delivered to a
purchaser, not misleading, or if in the opinion of the Initial Purchasers or
counsel for the Initial Purchasers it is otherwise necessary to amend or
supplement the Offering Memorandum to comply with law, the Company agrees to
promptly prepare (subject to Section 3 hereof), and furnish at its own expense
to the Initial Purchasers, amendments or supplements to the Offering Memorandum
so that the statements in the Offering Memorandum as so amended or supplemented
will not, in the light of the circumstances when the Offering Memorandum is
delivered to a purchaser, be misleading or so that the Offering Memorandum, as
amended or supplemented, will comply with law.
Following the consummation of the Exchange Offer or the
effectiveness of an applicable shelf registration statement and for so long as
the Notes are outstanding if, in the reasonable judgment of the Initial
Purchasers, the Initial Purchasers or any of its affiliates (as such term is
defined in the rules and regulations under the Securities Act) are required to
deliver a prospectus in connection with sales of, or market-making activities
with respect to, such securities, to periodically amend the applicable
registration statement so that the information contained therein complies with
the requirements of Section 10 of the Securities Act, to amend the applicable
registration statement or supplement the related prospectus or the documents
incorporated therein when necessary to reflect any material changes in the
information provided therein so that the registration statement and the
prospectus will not contain 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 existing as of the date the prospectus is so
delivered, not misleading and to provide the Initial Purchasers with copies of
each amendment or supplement filed and the information required to be provided
to the Trustee pursuant to the Indenture.
The Company hereby expressly acknowledges that the
indemnification and contribution provisions of Sections 8 and 9 hereof are
specifically applicable and relate to each
11
offering memorandum, registration statement, prospectus, amendment or supplement
referred to in this Section 3.
(c) Copies of the Offering Memorandum. The Company agrees to
furnish the Initial Purchasers, without charge, as many copies of the Offering
Memorandum and any amendments and supplements thereto as it shall have
reasonably requested.
(d) Blue Sky Compliance. The Company shall cooperate with the
Initial Purchasers and counsel for the Initial Purchasers to qualify or register
the Notes for sale under (or obtain exemptions from the application of) the Blue
Sky or state securities laws of those jurisdictions designated by the Initial
Purchasers, shall comply with such laws and shall continue such qualifications,
registrations and exemptions in effect so long as required for the distribution
of the Notes. The Company shall not be required to qualify as a foreign
corporation or to take any action that would subject it to general service of
process in any such jurisdiction where it is not presently qualified or where it
would be subject to taxation as a foreign corporation. The Company will advise
the Initial Purchasers promptly of the suspension of the qualification or
registration of (or any such exemption relating to) the Notes for offering, sale
or trading in any jurisdiction or any initiation or threat of any proceeding for
any such purpose, and in the event of the issuance of any order suspending such
qualification, registration or exemption, the Company shall use its best efforts
to obtain the withdrawal thereof at the earliest possible moment.
(e) Use of Proceeds. The Company shall apply the net proceeds from
the sale of the Notes sold by it in the manner to be described under the caption
"Use of Proceeds" in the Offering Memorandum.
(f) The Depositary. The Company will cooperate with the Initial
Purchasers and use its best efforts to permit the Notes to be eligible for
clearance and settlement through the facilities of the Depositary.
(g) Additional Issuer Information. Additionally, at any time when
the Company is not subject to Section 13 or 15 of the Exchange Act, for the
benefit of holders and beneficial owners from time to time of Notes, the Company
shall furnish, at its expense, upon request, to holders and beneficial owners of
Notes and prospective purchasers of Notes information ("Additional Issuer
Information") satisfying the requirements of subsection of Rule 144A.
(h) Future Reports to the Initial Purchasers. For so long as any
Exchange Notes remain outstanding, the Company will furnish to Banc of America
Securities LLC (i) as soon as practicable after the end of each fiscal year,
copies of the Annual Report of the Company containing the balance sheet of the
Company as of the close of such fiscal year and statements of income,
stockholders' equity (or member's equity, as applicable) and cash flows for the
year then ended and the opinion thereon of the Company's independent public or
certified public accountants; (ii) as soon as practicable after the filing
thereof, copies of each proxy statement, Annual Report on Form 10-K, Quarterly
Report on Form 10-Q, Current Report on Form 8-K or other report filed by the
Company with the Commission, the NASD or any securities exchange; and (iii) as
soon as available, copies of any report or communication the Company mailed
generally to holders of its capital equity or debt securities (including the
holders of the Notes).
(i) No Integration. The Company agrees that it will not and will
cause its Affiliates not to make any offer or sale of securities of the Company
of any class if, as a result of the doctrine of "integration" referred to in
Rule 502 under the Securities Act, such offer or sale would render invalid (for
the purpose of the sale of the Notes by the Company to the Initial Purchaser,
(i) the resale of the Notes by the Initial Purchasers to Subsequent Purchasers
or (ii) the resale of the
12
Notes by such Subsequent Purchasers to others) the exemption from the
registration requirements of the Securities Act provided by Section 4 thereof or
by Rule 144A thereunder or otherwise.
(j) Legended Notes. Each certificate for a Notes, Note or Common
Share will bear the respective legend to be contained in "Notice to Investors"
in the Offering Memorandum for the time period and upon the other terms stated
in the Offering Memorandum.
(k) PORTAL. The Company will use its best efforts to cause such
Notes to be eligible for the National Association of Securities Dealers, Inc.
PORTAL market (the "PORTAL market").
Banc of America Securities LLC, on behalf of the several
Initial Purchasers, may, in its sole discretion, waive in writing the
performance by the Company of any one or more of the foregoing covenants or
extend the time for their performance.
SECTION 4. Payment of Expenses. The Company agrees to pay all costs, fees
and expenses incurred in connection with the performance of their obligations
hereunder and in connection with the transactions contemplated hereby,
including, without limitation, all expenses incident to the issuance and
delivery of the Notes (including all printing and engraving costs), (ii) all
necessary issue, transfer and other stamp taxes in connection with the issuance
and sale of the Notes to the Initial Purchaser, (iii) all fees and expenses of
the Companys' counsel, independent public or certified public accountants and
other advisors, (iv) all costs and expenses incurred in connection with the
preparation, printing, filing, shipping and distribution of the Offering
Memorandum (including financial statements and exhibits), and all amendments and
supplements thereto, this Agreement, the Registration Rights Agreement, the
Indenture and the Notes, all filing fees, attorneys' fees and expenses incurred
by the Company or the Initial Purchasers in connection with qualifying or
registering (or obtaining exemptions from the qualification or registration of)
all or any part of the Notes for offer and sale under the Blue Sky laws and, if
requested by the Initial Purchasers, preparing and printing a "Blue Sky Survey"
or memorandum, and any supplements thereto, advising the Initial Purchasers of
such qualifications, registrations and exemptions, (vi) the fees and expenses of
the Trustee, including the fees and disbursements of counsel for the Trustee in
connection with the Indenture, the Notes and the Exchange Notes, (vii) any fees
payable in connection with the rating of the Notes or the Exchange Notes with
the ratings agencies and the listing of the Notes with the PORTAL market, (viii)
any filing fees incident to the review by the National Association of Securities
Dealers, Inc., if any, of the terms of the sale of the Notes or the Exchange
Notes, (ix) all fees and expenses (including reasonable fees and expenses of
counsel) of the Company in connection with approval of the Notes by the
Depositary for "book-entry" transfer, and the performance by the Company of its
obligations under this Agreement. Except as provided in this Section 4, Section
6, Section 8 and Section 9 hereof, the Initial Purchasers shall pay their own
expenses, including the fees and disbursements of their counsel.
SECTION 5. Conditions of the Obligations of the Initial Purchasers. The
obligations of the Initial Purchasers to purchase and pay for the Notes as
provided herein on the Closing Date shall be subject to the accuracy of the
representations and warranties on the part of the Company set forth in Section 1
hereof as of the date hereof and as of the Closing Date as though then made and
to the timely performance by the Company of its covenants and other obligations
hereunder, and to each of the following additional conditions:
(a) Accountants' Comfort Letter. On the Closing Date, the Initial
Purchasers shall have received from each of PricewaterhouseCoopers, independent
public or certified public accountants for the Company, and KPMG, independent
public or certified public auditors with
13
respect to the ▇▇▇▇▇▇ Group, a letter dated such date addressed to the Initial
Purchasers, in form and substance reasonably satisfactory to the Initial
Purchasers, containing statements and information of the type ordinarily
included in accountant's "comfort letters" to the Initial Purchasers, delivered
according to Statement of Auditing Standards Nos. 72 and 76 (or any successor
bulletins), with respect to the audited and unaudited financial statements and
certain financial information contained in the Offering Memorandum.
(b) No Material Adverse Change or Ratings Agency Change. For the
period from and after the date of this Agreement and prior to the Closing Date:
(i) in the reasonable judgment of the Initial Purchasers
there shall not have occurred any Material Adverse Change; and
(ii) there shall not have occurred any downgrading, nor
shall any notice have been given of any intended or potential
downgrading or of any review for a possible change that does
not indicate the direction of the possible change, in the
rating accorded any securities of any of the Company or its
subsidiaries by any "nationally recognized statistical rating
organization" as such term is defined for purposes of Rule 436
under the Securities Act.
(c) Financial Information. The preliminary financial statements
provided by the Company to the Initial Purchasers on the date hereof together
with the related schedules and notes, shall not be materially different, in the
reasonable judgment of the Initial Purchasers, from the financial statements,
together with the related schedules and notes, included in the Offering
Memorandum, as of its date.
(d) Opinion of Counsel for the Company. On the Closing Date, the
Initial Purchasers shall have received the favorable opinion of ▇▇▇▇▇▇▇▇ &
▇▇▇▇▇, counsel for the Company, dated as of such Closing Date, the form of which
is attached as Exhibit A.
(e) Opinion of Regulatory Counsel for the Company . On the Closing
Date, the Initial Purchasers shall have received the favorable opinions of
Drinker ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, special regulatory counsel for the Company, dated as
of such Closing Date, substantially in the form attached as Exhibit B.
(f) Opinion of Counsel for the Initial Purchasers. On the Closing
Date the Initial Purchasers shall have received the favorable opinion of ▇▇▇▇▇▇
& ▇▇▇▇▇▇▇, counsel for the Initial Purchasers, dated as of such Closing Date,
with respect to such matters as may be reasonably requested by the Initial
Purchasers.
(g) Officers' Certificate. On the Closing Date the Initial
Purchasers shall have received a written certificate executed by the Chairman of
the Board, Chief Executive Officer or President and the Chief Financial Officer
or Chief Accounting Officer of the Company, dated as of the Closing Date, to the
effect set forth in subsection (b) (ii) of this Section 5, and further to the
effect that:
(i) for the period from and after the date of this
Agreement and prior to the Closing Date there has not occurred
any Material Adverse Change;
(ii) the representations and warranties of the Company set
forth in Section 1 of this Agreement are true and correct with
the same force and
14
effect as though expressly made on and as of the Closing Date;
and
(iii) the Company has complied with all the agreements and
satisfied all the conditions on its part to be performed or
satisfied at or prior to the Closing Date.
(h) PORTAL Listing. At the Closing Date the Notes shall have been
designated for trading on the PORTAL market.
(i) Registration Rights Agreement. The Company shall have entered
into the Registration Rights Agreement, and the Initial Purchasers shall have
received executed counterparts thereof.
(j) Indenture. The Company, Mission and the Trustee shall have
entered into the Indenture, and the Initial Purchasers shall have received an
executed copy thereof.
(k) Additional Documents. On or before the Closing Date, the
Initial Purchasers and counsel for the Initial Purchasers shall have received
such information, documents and opinions as they may reasonably require for the
purposes of enabling them to pass upon the issuance and sale of the Notes as
contemplated herein, or in order to evidence the accuracy of any of the
representations and warranties, or the satisfaction of any of the conditions or
agreements, herein contained.
If any condition specified in this Section 5 is not satisfied
when and as required to be satisfied, this Agreement may be terminated by the
Initial Purchasers by notice to the Company at any time on or prior to the
Closing Date, which termination shall be without liability on the part of any
party to any other party, except that Section 4, Section 6, Section 8 and
Section 9 shall at all times be effective and shall survive such termination.
SECTION 6. Reimbursement of Initial Purchasers' Expenses. If this
Agreement is terminated by the Initial Purchasers pursuant to Section 5, or if
the sale to the Initial Purchasers of the Notes on the Closing Date is not
consummated because of any refusal, inability or failure on the part of the
Company to perform any agreement herein or to comply with any provision hereof,
the Company agrees to reimburse the Initial Purchasers (or such Initial
Purchasers as have terminated this Agreement with respect to themselves),
severally, upon demand for all out-of-pocket expenses that shall have been
reasonably incurred by the Initial Purchasers in connection with the proposed
purchase and the offering and sale of the Notes, including but not limited to
fees and disbursements of counsel, printing expenses, travel expenses, postage,
facsimile and telephone charges.
SECTION 7. Offer, Sale and Resale Procedures. Each of the Initial
Purchasers, on the one hand, and the Company, on the other hand, hereby
establish and agree to observe the following procedures in connection with the
offer and sale of the Notes:
(i) Offers and sales of the Notes will be made only by
the Initial Purchasers or Affiliates thereof qualified to do so in the
jurisdictions in which such offers or sales are made. Each such offer or sale
shall only be made to persons whom the offeror or seller reasonably believes to
be Qualified Institutional Buyers or non-U.S. persons outside the United States
to whom the offeror or seller reasonably believes offers and sales of the Notes
may be made in
15
reliance upon Regulation S under the Securities Act, upon the terms and
conditions set forth in Annex I hereto, which Annex I is hereby expressly made a
part hereof.
(ii) The Notes will be offered by approaching prospective
Subsequent Purchasers on an individual basis. No general solicitation or general
advertising (within the meaning of Rule 502 under the Securities Act) will be
used in the United States in connection with the offering of the Notes.
(iii) Upon original issuance by the Company, and until such
time as the same is no longer required under the applicable requirements of the
Securities Act, the Notes (and all securities issued in exchange therefor or in
substitution thereof, other than the Exchange Notes) shall bear the following
legend:
"THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER ▇▇▇▇▇▇▇ ▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND THE SECURITY
EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH
PURCHASER OF THE SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER
MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. THE HOLDER OF THE SECURITY
EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) SUCH SECURITY
MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (i) (a) TO A PERSON WHO IS
A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (b) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (c)
OUTSIDE THE UNITED STATES TO A FOREIGN PERSON IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 UNDER THE SECURITIES ACT, (d) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(a)(1), (2), (3) OR
(7) OF THE SECURITIES ACT (AN "INSTITUTIONAL ACCREDITED INVESTOR")) THAT, PRIOR
TO SUCH TRANSFER, FURNISHES THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE
TRUSTEE) AND, IF SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT OF
NOTES LESS THAN $250,000, AN OPINION OF COUNSEL ACCEPTABLE TO THE ISSUE THAT
SUCH TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT, OR (e) IN ACCORDANCE
WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT
(AND BASED UPON AN OPINION OF COUNSEL IF THE COMPANY SO REQUESTS), (ii) TO THE
COMPANY, OR (iii) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AND, IN EACH
CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND (B) THE HOLDER WILL, AND
EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF THE
SECURITY EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN (A) ABOVE."
Following the sale of the Notes by the Initial Purchasers to
Subsequent Purchasers pursuant to the terms hereof, the Initial Purchasers shall
not be liable or responsible to the Company for any losses, damages or
liabilities suffered or incurred by the Company, including any losses, damages
or liabilities under the Securities Act, arising from or relating to any resale
or transfer of any Security by non-Affiliates of the Initial Purchasers.
16
SECTION 8. INDEMNIFICATION.
(a) Indemnification of the Initial Purchaser. The Company agrees
to indemnify and hold harmless the Initial Purchaser, its directors, officers
and employees, and each person, if any, who controls each Initial Purchaser
within the meaning of the Securities Act and the Exchange Act against any loss,
claim, damage, liability or expense, as incurred, to which the Initial Purchaser
or such controlling person may become subject, under the Securities Act, the
Exchange Act or other federal or state statutory law or regulation, or at common
law or otherwise (including in settlement of any litigation, if such settlement
is effected with the written consent of the Company), insofar as such loss,
claim, damage, liability or expense (or actions in respect thereof as
contemplated below) arises out of or is based (i) upon any untrue statement or
alleged untrue statement of a material fact contained in the Offering Memorandum
(or any amendment or supplement thereto), or the omission or alleged omission
therefrom of a 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) in whole or in part upon any failure of the Company to perform its
obligations hereunder or under law; or (iii) any act or failure to act or any
alleged act or failure to act by such Initial Purchaser in connection with, or
relating in any manner to, the offering contemplated hereby, and which is
included as part of or referred to in any loss, claim, damage, liability or
action arising out of or based upon any matter covered by clause above; provided
that the Company shall not be liable under this clause (iii) to the extent that
a court of competent jurisdiction shall have determined by a final judgment that
such loss, claim, damage, liability or action resulted directly from any such
acts or failures to act undertaken or omitted to be taken by such Initial
Purchaser through its gross negligence or willful misconduct; and to reimburse
each Initial Purchaser and each such controlling person for reasonable expenses
(including the reasonable fees and disbursements of counsel chosen by Banc of
America Securities LLC) as such expenses are reasonably incurred by such Initial
Purchaser or such controlling person in connection with investigating,
defending, settling, compromising or paying any such loss, claim, damage,
liability, expense or action; provided, however, that the foregoing indemnity
agreement shall not apply to any loss, claim, damage, liability or expense to
the extent, but only to the extent, arising out of or based upon any untrue
statement or alleged untrue statement or omission or alleged omission made in
reliance upon and in conformity with written information furnished to the
Company by the Initial Purchasers for use in the Offering Memorandum (or any
amendment or supplement thereto). The indemnity agreement set forth in this
Section 8 shall be in addition to any liabilities that the Company may otherwise
have.
(b) Indemnification of the Company, its Directors and Officers.
Each Initial Purchaser agrees, severally and not jointly, to indemnify and hold
harmless the Company and each of its respective directors and each person, if
any, who controls the Company within the meaning of the Securities Act or the
Exchange Act, against any loss, claim, damage, liability or expense, as
incurred, to which the Company or any such director, or controlling person may
become subject, under the Securities Act, the Exchange Act, or other federal or
state statutory law or regulation, or at common law or otherwise (including in
settlement of any litigation, if such settlement is effected with the written
consent of such Initial Purchaser), insofar as such loss, claim, damage,
liability or expense (or actions in respect thereof as contemplated below)
arises out of or is based upon any untrue or alleged untrue statement of a
material fact contained in the Offering Memorandum (or any amendment or
supplement thereto), or arises out of or is based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in the Offering Memorandum
(or any amendment or supplement thereto), in reliance upon and in conformity
with written information furnished to the Company by the Initial Purchasers
expressly for use therein; and to reimburse any the Company or any such
17
director or controlling person for any legal and other expenses reasonably
incurred by the Company or any such director or controlling person in connection
with investigating, defending, settling, compromising or paying any such loss,
claim, damage, liability, expense or action. The Company hereby acknowledges
that the only information that the Initial Purchasers have furnished to the
Company expressly for use in the Offering Memorandum (or any amendment or
supplement thereto) are the statements referenced on Schedule IV, which Schedule
IV shall be attached to this Agreement on the date of the Offering Memorandum
and shall be part of this Agreement as if attached to this Agreement on the date
hereof); and each Initial Purchaser confirms that such statements are correct.
The indemnity agreement set forth in this Section 8 shall be in addition to any
liabilities that each Initial Purchaser may otherwise have.
(c) Notifications and Other Indemnification Procedures. Promptly
after receipt by an indemnified party under this Section 8 of notice of the
commencement of any action, such indemnified party will, if a claim in respect
thereof is to be made against an indemnifying party under this Section 8, notify
the indemnifying party in writing of the commencement thereof, but the omission
so to notify the indemnifying party will not relieve it from any liability which
it may have to any indemnified party for contribution or otherwise than under
the indemnity agreement contained in this Section 8 or to the extent it is not
prejudiced as a proximate result of such failure. In case any such action is
brought against any indemnified party and such indemnified party seeks or
intends to seek indemnity from an indemnifying party, the indemnifying party
will be entitled to participate in and, to the extent that it shall elect,
jointly with all other indemnifying parties similarly notified, by written
notice delivered to the indemnified party promptly after receiving the aforesaid
notice from such indemnified party, to assume the defense thereof with counsel
reasonably satisfactory to such indemnified party; provided, however, if the
defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that a conflict may arise between the positions of the indemnifying party and
the indemnified party in conducting the defense of any such action or that there
may be legal defenses available to it and/or other indemnified parties which are
different from or additional to those available to the indemnifying party, the
indemnified party or parties shall have the right to select separate counsel to
assume such legal defenses and to otherwise participate in the defense of such
action on behalf of such indemnified party or parties. Upon receipt of notice
from the indemnifying party to such indemnified party of such indemnifying
party's election so to assume the defense of such action and approval by the
indemnified party of counsel, the indemnifying party will not be liable to such
indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof unless the indemnified party shall have employed separate counsel in
accordance with the proviso to the next preceding sentence (it being understood,
however, that the indemnifying party shall not be liable for the expenses of
more than one separate counsel (together with local counsel), approved by the
indemnifying party (Banc of America Securities LLC in the case of Section 8 and
Section 9), representing the indemnified parties who are parties to such action)
or (ii) the indemnifying party shall not have employed counsel satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time after notice of commencement of the action, in each of which cases the fees
and expenses of counsel shall be at the expense of the indemnifying party.
(d) Settlements. The indemnifying party under this Section 8 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 party agrees to indemnify the indemnified party
against any loss, claim, damage, liability or expense by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as contemplated by Section 8
hereof, the indemnifying party agrees that (i) it
18
shall be liable for any settlement of any proceeding effected without its
written consent if such settlement is entered into more than 30 days after
receipt by such indemnifying party of the aforesaid request and (ii) such
indemnifying party shall not have reimbursed the indemnified party in accordance
with such request prior to the date of such settlement. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement, compromise or consent to the entry of judgment in any pending or
threatened action, suit or proceeding in respect of which any indemnified party
is or could have been a party and indemnity was or could have been sought
hereunder by such indemnified party, unless such settlement, compromise or
consent includes an unconditional release of such indemnified party from all
liability on claims that are the subject matter of such action, suit or
proceeding.
SECTION 9. CONTRIBUTION.
If the indemnification provided for in Section 8 is for any
reason held to be unavailable to or otherwise insufficient to hold harmless an
indemnified party in respect of any losses, claims, damages, liabilities or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount paid or payable by such indemnified party, as incurred, as
a result of any losses, claims, damages, liabilities or expenses referred to
therein in such proportion as is appropriate to reflect the relative benefits
received by the Company, on the one hand, and the Initial Purchasers, on the
other hand, from the offering of the Notes pursuant to this Agreement or (ii) if
the allocation provided by clause above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause above but also the relative fault of the Company, on the
one hand, and the Initial Purchasers, on the other hand, in connection with the
statements or omissions or inaccuracies in the representations and warranties
herein which resulted in such losses, claims, damages, liabilities or expenses,
as well as any other relevant equitable considerations. The relative benefits
received by the Company, on the one hand, and the Initial Purchasers, on the
other hand, in connection with the offering of the Notes pursuant to this
Agreement shall be deemed to be in the same respective proportions as the total
net proceeds from the offering of the Notes pursuant to this Agreement (before
deducting expenses) received by the Company, and the total discount received by
the Initial Purchasers bear to the aggregate initial offering price of the
Notes. The relative fault of the Company, on the one hand, and the Initial
Purchasers, on the other hand, shall be determined by reference to, among other
things, whether any such untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact or any such inaccurate
or alleged inaccurate representation or warranty relates to information supplied
by the Company, on the one hand, or the Initial Purchasers, on the other hand,
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The amount paid or payable by a party as a result of the
losses, claims, damages, liabilities and expenses referred to above shall be
deemed to include, subject to the limitations set forth in Section 8, any legal
or other fees or expenses reasonably incurred by such party in connection with
investigating or defending any action or claim. The provisions set forth in
Section 8 with respect to notice of commencement of any action shall apply if a
claim for contribution is to be made under this Section 9; provided, however,
that no additional notice shall be required with respect to any action for which
notice has been given under Section 8 for purposes of indemnification.
The Company and the Initial Purchasers agree that it would not
be just and equitable if contribution pursuant to this Section 9 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
19
allocation which does not take account of the equitable considerations referred
to in this Section 9.
Notwithstanding the provisions of this Section 9, the Initial
Purchaser shall not be required to contribute any amount in excess of the
discount received by the Initial Purchaser in connection with the Notes
distributed by it. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11 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 9 are
several, and not joint, in proportion to their respective commitments as set
forth opposite their names on Schedule I. For purposes of this Section 9, each
director, officer and employee of the Initial Purchaser and each person, if any,
who controls an Initial Purchaser within the meaning of the Securities Act and
the Exchange Act shall have the same rights to contribution as such Initial
Purchaser, and each director of the Company, and each person, if any, who
controls the Company with the meaning of the Securities Act and the Exchange Act
shall have the same rights to contribution as the Company.
SECTION 10. Termination of this Agreement. Prior to the Closing Date, this
Agreement may be terminated by the Initial Purchasers by notice given to the
Company if at any time (i) trading in securities generally on either the Nasdaq
Stock Market or the New York Stock Exchange shall have been suspended or limited
or minimum or maximum prices shall have been generally established on any such
stock exchanges by the Commission or the NASD; (ii) a general banking moratorium
shall have been declared by any of federal, New York, Delaware or California
authorities; (iii) there shall have occurred any attack on or act of terrorism
involving the United States, any declaration of war on or by the United States,
outbreak or any escalation of national or international hostilities or any
crisis or calamity, or any change in the United States or international
financial markets, or any substantial change or development involving a
prospective substantial change in United States' or international political,
financial or economic conditions, as in the reasonable judgment of the Initial
Purchasers is material and adverse and makes it impracticable to market the
Notes in the manner and on the terms described in the Offering Memorandum or to
enforce contracts for the sale of securities; (iv) in the reasonable judgment of
the Initial Purchasers there shall have occurred any Material Adverse Change; or
the Company or its subsidiaries shall have sustained a loss by strike, fire,
flood, earthquake, accident or other calamity of such character as in the
reasonable judgment of the Initial Purchasers may interfere materially with the
conduct of the business and operations of the Company or its subsidiaries
regardless of whether or not such loss shall have been insured. Any termination
pursuant to this Section 10 shall be without liability on the part of (A) the
Company to any Initial Purchaser, except that the Company shall be obligated to
reimburse the expenses of the Initial Purchasers pursuant to Section 4 and, in
the case of clause (iv) above, Section 6 hereof, (B) any Initial Purchaser to
the Company, or (c) any party hereto to any other party except that the
provisions of Section 8 and Section 9 shall at all times be effective and shall
survive such termination.
SECTION 11. Representations and Indemnities to Survive Delivery. The
respective indemnities, agreements, representations, warranties and other
statements of the Company, of its officers and of the several Initial Purchasers
set forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation made by or on behalf of any Initial
Purchaser, the Company or any of its partners, officers or directors or any
controlling person, as the case may be, and will survive delivery of and payment
for the Notes sold hereunder and any termination of this Agreement.
SECTION 12. Notices. All communications hereunder shall be in writing and
shall be mailed, hand delivered or telecopied and confirmed to the parties
hereto as follows:
20
If to the Initial Purchasers:
Banc of America Securities LLC
▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇▇-▇▇▇-▇▇▇▇
Attention: High Yield Capital Markets
with a copy to:
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
If to the Company:
Nexstar Finance, L.L.C.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: 1212 446-4900
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Any party hereto may change the address for receipt of communications by giving
written notice to the others.
SECTION 13. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto, including any substitute Initial Purchasers
pursuant to Section 16 hereof, and to the benefit of the employees, officers and
directors and controlling persons referred to in Section 8 and Section 9, and in
each case their respective successors, and no other person will have any right
or obligation hereunder. The term "successors" shall not include any purchaser
of the Notes as such from the Initial Purchasers merely by reason of such
purchase.
SECTION 14. Partial Unenforceability. The invalidity or unenforceability
of any Section, paragraph or provision of this Agreement shall not affect the
validity or enforceability of any other Section, paragraph or provision hereof.
If any Section, paragraph or provision of this Agreement is for any reason
determined to be invalid or unenforceable, there shall be deemed to be made such
minor changes (and only such minor changes) as are necessary to make it valid
and enforceable.
21
SECTION 15. Governing Law Provisions. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN SUCH STATE.
SECTION 16. Consent to Jurisdiction. Any legal suit, action or proceeding
arising out of or based upon this Agreement or the transactions contemplated
hereby ("Related Proceedings") may be instituted in the federal courts of the
United States of America located in the City and County of New York or the
courts of the State of New York in each case located in the City and County of
New York (collectively, the "Specified Courts"), and each party irrevocably
submits to the non-exclusive jurisdiction (except for proceedings instituted in
regard to the enforcement of a judgment of any such court (a "Related
Judgment"), as to which such jurisdiction is non-exclusive) of such courts in
any such suit, action or proceeding. Service of any process, summons, notice or
document by mail to such party's address set forth above shall be effective
service of process for any suit, action or other proceeding brought in any such
court. The parties irrevocably and unconditionally waive any objection to the
laying of venue of any suit, action or other proceeding in the Specified Courts
and irrevocably and unconditionally waive and agree not to plead or claim in any
such court that any such suit, action or other proceeding brought in any such
court has been brought in an inconvenient forum.
SECTION 17. Default of One or More of the Several Initial Purchasers. If
any one or more of the several Initial Purchasers shall fail or refuse to
purchase Notes that it or they have agreed to purchase hereunder on the Closing
Date, and the aggregate number of Notes that such defaulting Initial Purchaser
or Initial Purchasers agreed but failed or refused to purchase does not exceed
10% of the aggregate number of the Notes to be purchased on such date, the other
Initial Purchasers shall be obligated, severally, in the proportions that the
number of Notes set forth opposite their respective names on Schedule I bears to
the aggregate number of Notes set forth opposite the names of all such
non-defaulting Initial Purchasers, or in such other proportions as may be
specified by the Initial Purchasers with the consent of the non-defaulting
Initial Purchasers, to purchase the Notes that such defaulting Initial Purchaser
or Initial Purchasers agreed but failed or refused to purchase on such date. If
any one or more of the Initial Purchasers shall fail or refuse to purchase Notes
and the aggregate number of Notes with respect to which such default occurs
exceeds 10% of the aggregate number of Notes to be purchased on the Closing
Date, and arrangements satisfactory to the Initial Purchasers and the Company
for the purchase of such Notes are not made within 48 hours after such default,
this Agreement shall terminate without liability of any party to any other party
except that the provisions of Section 4, Section 8 and Section 9 shall at all
times be effective and shall survive such termination. In any such case, either
the Initial Purchasers or the Company shall have the right to postpone the
Closing Date, as the case may be, but in no event for longer than seven days in
order that the required changes, if any, to the Offering Memorandum or any other
documents or arrangements may be effected.
As used in this Agreement, the term "Initial Purchaser" shall
be deemed to include any person substituted for a defaulting Initial Purchaser
under this Section 10. Any action taken under this Section 16 shall not relieve
any defaulting Initial Purchaser from liability in respect of any default of
such Initial Purchaser under this Agreement.
SECTION 18. General Provisions. This Agreement constitutes the entire
agreement of the parties to this Agreement and supersedes all prior written or
oral and all contemporaneous oral agreements, understandings and negotiations
with respect to the subject matter hereof. This Agreement may be executed in two
or more counterparts, each one of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
This
22
Agreement may not be amended or modified unless in writing by all of the parties
hereto, and no condition herein (express or implied) may be waived unless waived
in writing by each party whom the condition is meant to benefit. The Table of
Contents and the section headings herein are for the convenience of the parties
only and shall not affect the construction or interpretation of this Agreement.
23
If the foregoing is in accordance with your understanding of
our agreement, kindly sign and return to the Company the enclosed copies hereof,
whereupon this instrument, along with all counterparts hereof, shall become a
binding agreement in accordance with its terms.
Very truly yours,
NEXSTAR FINANCE HOLDINGS, L.L.C.
NEXSTAR FINANCE HOLDINGS, INC.
By: _____________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: President
The foregoing Purchase Agreement is hereby confirmed and
accepted by the Initial Purchasers as of the date first above written.
BY: BANC OF AMERICA SECURITIES LLC
BEAR ▇▇▇▇▇▇▇ & CO. INC.
By: _________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director
SCHEDULE I
Number of Securities
Initial Purchaser to be Purchased
Banc of America Securities LLC ........................ 65,000
Bear ▇▇▇▇▇▇▇ & Co. Inc................................. 65,000
Total......................................... 130,000
I-1
SCHEDULE II
Subsidiaries
Nexstar Finance, L.L.C.
Nexstar Finance, Inc.
Entertainment Realty Corporation
Nexstar Alabama Acquisition, Inc.
Nexstar Arkansas Acquisition, Inc.
Nexstar Management, Inc.
Nexstar Broadcasting of Abilene, L.L.C.
Nexstar Broadcasting of Beaumont/Port ▇▇▇▇▇▇, L.L.C.
Nexstar Broadcasting of Champaign, L.L.C.
Nexstar Broadcasting of Erie, L.L.C.
Nexstar Broadcasting of Joplin, L.L.C.
Nexstar Broadcasting of Louisiana, L.L.C.
Nexstar Broadcasting of Midland-Odessa, L.L.C.
Nexstar Broadcasting of the Midwest, Inc.
Nexstar Broadcasting of Northeastern Pennsylvania, L.L.C.
Nexstar Broadcasting of Peoria, L.L.C.
Nexstar Broadcasting of Rochester, L.L.C.
Nexstar Broadcasting of Wichita Falls, L.L.C.
II-1
SCHEDULE III
STATIONS LICENSED TO NEXSTAR BROADCASTING GROUP, L.L.C.
PORT ▇▇▇▇▇▇, TEXAS
Licensee: Nexstar Broadcasting of Beaumont/Port ▇▇▇▇▇▇, L.L.C.
Facility Type Call Sign Exp. Date
------------- --------- ----------
TV Broadcast Station License KBTV-TV 08/01/2006
(Channel ▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇)
DTV STA KBTV-DT 05/22/2003
(Channel ▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇)
TV Intercity Relay KB-98129 08/01/2006
TV Pickup KD-4600 08/01/2006
TV Pickup KE-5101 08/01/2006
Auxiliary Remote Pickup KKX215 08/01/2006
TV Studio Transmitter Link KLA-89 08/01/2006
TV Pickup KT-2456 08/01/2006
TV Intercity Relay WLD-443 08/01/2006
TV Intercity Relay WPNG-520 08/01/2006
WICHITA FALLS, TEXAS
Licensee: Nexstar Broadcasting of Wichita Falls, L.L.C.
Facility Type Call Sign Exp. Date
------------- --------- ----------
TV Broadcast Station License KFDX-TV 08/01/2006
(Channel 3, Wichita Falls, Texas)
DTV STA KFDX-DT 08/13/2003
(Channel 28, Wichita Falls, Texas)
Auxiliary Low Power System BLP00464 08/01/2006
TV Pickup KB-55270 08/01/2006
Auxiliary Remote Pickup KLB-725 08/01/2006
TV Pickup KJ-3525 08/01/2006
III-1
MIDLAND, TEXAS
Licensee: Nexstar Broadcasting of Midland-Odessa, L.L.C.
Facility Type Call Sign Exp. Date
------------- --------- ---------
TV Broadcast Station License KMID 08/01/2006
(Channel 2, Midland, Texas)
DTV STA KMID-DT 05/22/2003
(Channel ▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇)
TV Translator Station License K12FM 08/01/2006
TV Pickup KB-96686 08/01/2006
TV Studio Transmitter Link KKR-61 08/01/2006
TV Studio Transmitter Link KLB-45 08/01/2006
TV Studio Transmitter Link WHG-362 08/01/2006
TV Intercity Relay WLE-628 08/01/2006
TV Intercity Relay WLE-644 08/01/2006
TV Intercity Relay WLF-217 08/01/2006
Weather Radar Station WPMY-327 03/25/2004
ABILENE, TEXAS
Licensee: Nexstar Broadcasting of Abilene, L.L.C.
Facility Type Call Sign Exp. Date
------------- --------- ---------
TV Broadcast Station License KTAB-TV 08/01/2006
(Channel 32, Abilene, Texas)
DTV STA KTAB-DT 06/02/2003
(Channel ▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇)
Receive-Only Earth Station E8009 11/16/2004
Business Radio KA-51599 04/17/2004
TV Pickup KS-5717 08/01/2006
Business Radio WGA-708 04/17/2004
TV Studio Transmitter Link WGH-906 08/01/2006
Business Radio WZJ-613 04/17/2004
III-2
TEXARKANA, TEXAS
Licensee: Nexstar Broadcasting of Louisiana, L.L.C.
Facility Type Call Sign Exp. Date
------------- --------- ---------
TV Broadcast Station License KTAL-TV 08/01/2006
(Channel 6, Texarkana, Texas)
DTV Construction Permit KTAL-DT 07/09/2003
(Channel ▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇)
Auxiliary Low Power Station BLQ-74 08/01/2006
TV Pickup KA-88839 08/01/2006
Auxiliary Remote Pickup KLB-589 08/01/2006
Auxiliary Remote Pickup KLB-590 08/01/2006
Auxiliary Remote Pickup KLB-591 08/01/2006
TV Intercity Relay WHB-602 08/01/2006
TV Studio Transmitter Link WHB-603 08/01/2006
TV Studio Transmitter Link WHB-604 08/01/2006
TV Intercity Relay WLP-781 08/01/2006
TV Intercity Relay WLP-782 08/01/2006
III-3
▇▇▇▇▇▇-▇▇▇▇▇, PENNSYLVANIA
Licensee: Nexstar Broadcasting of Northeastern Pennsylvania, L.L.C.
Facility Type Call Sign Exp. Date
------------- --------- ----------
TV Broadcast Station License WBRE-TV 08/01/2007
(Channel 28, ▇▇▇▇▇▇-▇▇▇▇▇, Pennsylvania)
DTV STA WBRE-DT 05/13/2003
(Channel 11, ▇▇▇▇▇▇-▇▇▇▇▇, Pennsylvania)
TV Translator Station License W24BL 07/31/2007
TV Translator Station License W30AN 07/31/2007
TV Translator Station License W51BP 07/31/2007
TV Translator Station License W64AL 07/31/2007
Transmit-Only Earth Station License E910642 11/01/2011
Satellite Uplink Truck E020058 05/03/2017
TV Pickup KA-35201 08/01/2007
TV Pickup KA-35425 08/01/2007
TV Pickup KA-74870 08/01/2007
TV Pickup KC-62824 08/01/2007
Broadcast Auxiliary KF-5726 08/01/2007
R/P Base Mobile System KGU-973 08/01/2007
TV Studio Transmitter Link KGH-66 08/01/2007
TV Pickup KK-4138 08/01/2007
TV Pickup KL-2535 08/01/2007
TV Pickup KP-4407 08/01/2007
R/P Base Mobile System KQB-618 08/01/2007
TV Pickup KR-7688 08/01/2007
TV Pickup KR-7693 08/01/2007
TV Pickup KR-7771 08/01/2007
TV Pickup KS-2001 08/01/2007
TV Pickup KY-2899 08/01/2007
R/P Mobile KY-5608 08/01/2007
TV Studio Transmitter Link KZO-21 08/01/2007
TV Intercity Relay WFW-575 08/01/2007
TV Intercity Relay WGI-290 08/01/2007
TV Intercity Relay WHB-674 08/01/2007
TV Intercity Relay WLI-324 08/01/2007
TV Intercity Relay WLI-325 08/01/2007
TV Intercity Relay WLI-337 08/01/2007
III-4
ERIE, PENNSYLVANIA
Licensee: Nexstar Broadcasting of Erie, L.L.C.
Facility Type Call Sign Exp. Date
------------- --------- ----------
TV Broadcast Station License WJET-TV 08/01/2007
(Channel 24, Erie, Pennsylvania)
DTV Construction Permit WJET-DT 06/20/2003
(Channel 58, Erie, Pennsylvania)
DTV STA Request Accepted for Filing 03/13/2003
Auxiliary TV Broadcast Pickup KC-26079 08/01/2007
TV Intercity Relay WPJE-618 08/01/2007
Weather Radar Station WPOZ-488 09/14/2004
R/P Base Mobile System WSM-744 08/01/2007
ROCHESTER, NEW YORK
Licensee: Nexstar Broadcasting of Rochester, L.L.C.
Facility Type Call Sign Exp. Date
------------- --------- ----------
TV Broadcast Station License WROC-TV 06/01/2007
(Channel ▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇)
DTV STA WROC-DT 05/13/2003
(Channel ▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇)
Receive-Only Earth Station E940506 09/15/2004
Transmit/Receive Earth Station E000660 12/12/2010
OFS Microwave WPOU895 08/26/2009
TV Pickup KA-4851 06/01/2007
TV Intercity Relay KA-6058 06/01/2007
TV Studio Transmitter Link KEA-91 06/01/2007
TV Pickup KR-4704 06/01/2007
TV Pickup KR-4705 06/01/2007
Auxiliary Remote Pickup WHE-925 06/01/2007
Auxiliary Remote Pickup WHE-926 06/01/2007
III-5
ST. ▇▇▇▇▇▇, MISSOURI
Licensee: Nexstar Broadcasting of the Midwest, Inc.
Facility Type Call Sign Exp. Date
------------- --------- ----------
TV Broadcast Station License KQTV 02/01/2006
(Channel 2, St. ▇▇▇▇▇▇, Missouri)
DTV Construction Permit KQTV-DT 06/20/2003
(Channel 53, St. ▇▇▇▇▇▇, Missouri)
STA Request Accepted for Filing on 03/17/2003
TV Pickup KC-26093 02/01/2006
R/P Automatic Relay KQB-577 02/01/2006
JOPLIN, MISSOURI
Licensee: Nexstar Broadcasting Joplin, L.L.C.
Facility Type Call Sign Exp. Date
------------- --------- ----------
TV Broadcast Station License KSNF 02/01/2006
(Channel 16, Joplin, Missouri)
DTV STA KSNF-DT 08/13/2003
(Channel 46, Joplin, Missouri)
TV Pickup KW-6078 02/01/2006
Business Radio WNKN-977 02/01/2006
Weather Radar Station WPMJ-419 08/12/2003
III-6
TERRE HAUTE, INDIANA
Licensee: Nexstar Broadcasting of the Midwest, Inc.
Facility Type Call Sign Exp. Date
------------- --------- ----------
TV Broadcast Station License WTWO 08/01/2005
(Channel 2, Terre Haute, Indiana)
DTV STA WTWO-DT 08/27/2003
(Channel 36, Terre Haute, Indiana)
TV Pickup KC-26086 08/01/2005
R/P Base Mobile System KLH-391 08/01/2005
Weather Radar Station KVB-629 03/30/2004
Broadcast Auxiliary KW-4107 08/01/2005
TV Pickup KW-4108 08/01/2005
TV Intercity Relay WHF-306 08/01/2005
TV Intercity Relay WMU-968 08/01/2005
Weather Radar Station WPPH-816 01/06/2005
SPRINGFIELD, ILLINOIS
Licensee: Nexstar Broadcasting of Champaign, L.L.C.
Facility Type Call Sign Exp. Date
------------- --------- ----------
TV Broadcast Station License WCFN 12/01/2005
(Channel 49, Springfield, Illinois)
DTV STA WCFN-DT 04/09/2003
(Channel 53, Springfield, Illinois)
TV Studio Transmitter Link WLD-973 12/01/2005
III-7
CHAMPAIGN, ILLINOIS
Licensee: Nexstar Broadcasting of Champaign, L.L.C.
Facility Type Call Sign Exp. Date
------------- --------- ----------
TV Broadcast Station License WCIA 12/01/2005
(Channel 3, Champaign, Illinois)
DTV STA WCIA-DT 04/09/2003
(Channel 48, Champaign, Illinois)
Transmit-Receive Earth Station E920434 07/24/2017
Auxiliary Low Power Station BLP00192 12/01/2005
Auxiliary Low Power Station BLP00322 12/01/2005
Auxiliary Low Power Station BLP00544 12/01/2005
Auxiliary Low Power Station BLP00883 12/01/2005
Auxiliary Low Power Station BLP00919 12/01/2005
Auxiliary Low Power Station BLP01124 12/01/2005
Auxiliary Low Power Station BLP01288 12/01/2005
TV Pickup KA-95317 12/01/2005
Business Radio KAP-730 12/01/2005
TV Pickup KC-5875 12/01/2005
Auxiliary Remote Pickup KSD-920 12/01/2005
Auxiliary Remote Pickup KSD-921 12/01/2005
TV Studio Transmitter Link KSG-35 12/01/2005
TV Intercity Relay KSI-74 12/01/2005
TV Intercity Relay KSI-75 12/01/2005
TV Pickup KW-6065 12/01/2005
TV Pickup KW-6066 12/01/2005
TV Pickup KW-6073 12/01/2005
TV Pickup KW-6074 12/01/2005
TV Intercity Relay WBJ-983 12/01/2005
TV Intercity Relay WBJ-986 12/01/2005
TV Intercity Relay WBJ-987 12/01/2005
TV Intercity Relay WBJ-988 12/01/2005
TV Intercity Relay WLG-233 12/01/2005
TV Intercity Relay WPNL-408 12/01/2005
III-8
PEORIA, ILLINOIS
Licensee: Nexstar Broadcasting of Peoria, L.L.C.
Facility Type Call Sign Exp. Date
------------- --------- ----------
TV Broadcast Station License WMBD-TV 12/01/2005
(Channel 31, Peoria, Illinois)
DTV Construction Permit WMDB-DT 06/20/2003
(Channel 30, Peoria, Illinois)
TV Pickup KA-88843 12/01/2005
TV Pickup KA-88844 12/01/2005
TV Intercity Relay KSI-71 12/01/2005
TV Intercity Relay KSI-72 12/01/2005
TV Intercity Relay KSI-73 12/01/2005
Remote Pick-up KSJ-777 12/01/2005
TV Studio Transmitter Link KSK-48 12/01/2005
TV Intercity Relay WBJ-984 12/01/2005
TV Intercity Relay WBJ-985 12/01/2005
TV Intercity Relay WLG-752 12/01/2005
TV Intercity Relay WMV-276 12/01/2005
OFS Microwave WNTX-533 02/08/2010
III-9
STATIONS LICENSED TO MISSION BROADCASTING, INC.
SCRANTON, PENNSYLVANIA
Facility Type Call Sign Exp. Date
------------- --------- ----------
TV Broadcast Station License WYOU 08/01/2007
(Channel 22, Scranton, Pennsylvania)
DTV STA WYOU-DT 05/08/2003
(Channel 13, Scranton, Pennsylvania)
TV Translator License W19AR 08/01/2007
TV Translator License W26AT 08/01/2007
TV Translator License W54AV 08/01/2007
TV Translator License W55AG 08/01/2007
TV Translator License W60AH 08/01/2007
TV Translator License W66AI 08/01/2007
Auxiliary Low Power BLQ-375 08/01/2007
TV Pickup KA-35173 08/01/2007
TV Pickup KA-35184 08/01/2007
TV Pickup KA-35185 08/01/2007
Auxiliary Remote Pickup KB-97161 08/01/2007
TV Studio Transmitter Link KGH-69 08/01/2007
TV Intercity Relay KGI-49 08/01/2007
TV Intercity Relay KHC-88 08/01/2007
TV Pickup KO-9753 08/01/2007
Auxiliary Remote Pickup KPH-450 08/01/2007
Auxiliary Remote Pickup KPJ-719 08/01/2007
Auxiliary Remote Pickup KQB-642 08/01/2007
Auxiliary Remote Pickup KQB-643 08/01/2007
TV Intercity Relay WFD-523 08/01/2007
TV Studio Transmitter Link WLL-212 08/01/2007
TV Intercity Relay WLO-276 08/01/2007
TV Intercity Relay WLO-277 08/01/2007
TV Studio Transmitter Link WPNF-884 08/01/2007
ERIE, PENNSYLVANIA
Facility Type Call Sign Exp. Date
------------- --------- ---------
TV Broadcast Station License WFXP 08/01/2007
(Channel 66, Erie, Pennsylvania)
DTV Construction Permit WFXP-DT Not yet granted
(Channel 22, Erie, Pennsylvania)
TV Studio Transmitter Link WLD-767 08/01/2007
▇▇▇-▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇
Facility Type Call Sign Exp. Date
------------- --------- ----------
TV Broadcast Station License KJTL 08/01/2006
(Channel 18, Wichita Falls, Texas)
DTV STA KJTL-DT 07/22/2003
(Channel 15, Wichita Falls, Texas)
LPTV Broadcast Station License KJBO-LP 08/01/2006
(Channel 35, Wichita Falls, Texas)
TV Translator License K47DK 06/01/2006
TV Translator License K53DS 06/01/2006
TV Studio Transmitter Link WLD-942 08/01/2006
TV Studio Transmitter Link WLJ-748 08/01/2006
JOPLIN, MISSOURI
Facility Type Call Sign Exp. Date
------------- --------- ----------
TV Broadcast Station License KODE-TV 02/01/2006
(Channel 12, Joplin, Missouri)
DTV STA KODE-DT 08/13/2002
(Channel 43, Joplin, Missouri)
TV Pickup KC62805 02/01/2006
TV Pickup KM3441 02/01/2006
Remote Pickup KPH932 02/01/2006
TV Pickup KR7926 02/01/2006
Remote Pickup KTK819 02/01/2006
Weather Radar Station WPFW393 10/25/2004
Business Radio WNEQ599 05/29/2012
Business Radio WNEH385 04/28/2012
Business Radio WNEH386 04/28/2012
III-11
SCHEDULE IV
Initial Purchasers Information
IV-1
EXHIBIT A
A-1
EXHIBIT B
B-1
ANNEX I
Resale Pursuant to Regulation S or Rule 144A. Each Initial
Purchaser understands that:
Such Initial Purchaser agrees that it has not offered or sold
and will not offer or sell the Notes in the United States or to, or for the
benefit or account of, a U.S. Person (other than a distributor), in each case,
as defined in Rule 902 under the Securities Act as part of its distribution at
any time and (ii) otherwise until 40 days after the later of the commencement of
the offering of the Notes pursuant hereto and the Closing Date, other than in
accordance with Regulation S of the Securities Act or another exemption from the
registration requirements of the Securities Act. Such Initial Purchaser agrees
that, during such 40-day restricted period, it will not cause any advertisement
with respect to the Notes (including any "tombstone" advertisement) to be
published in any newspaper or periodical or posted in any public place and will
not issue any circular relating to the Notes, except such advertisements as are
permitted by and include the statements required by Regulation S.
Such Initial Purchaser agrees that, at or prior to
confirmation of a sale of Notes by it to any distributor, dealer or person
receiving a selling concession, fee or other remuneration during the 40-day
restricted period referred to in Rule 903 under the Securities Act, it will send
to such distributor, dealer or person receiving a selling concession, fee or
other remuneration a confirmation or notice to substantially the following
effect:
"The Notes covered hereby have not been registered under the
U.S. Securities Act of 1933, as amended (the "Securities Act"), and may
not be offered and sold within the United States or to, or for the
account or benefit of, U.S. persons as part of your distribution at any
time or (ii) otherwise until 40 days after the later of the date the
Notes were first offered to persons other than "distributors" (as
defined in Regulation S) in reliance upon Regulation S and the Closing
Date, except in either case in accordance with Regulation S under the
Securities Act (or Rule 144A or to Accredited Institutions in
transactions that are exempt from the registration requirements of the
Securities Act), and in connection with any subsequent sale by you of
the Notes covered hereby in reliance on Regulation S during the period
referred to above to any distributor, dealer or person receiving a
selling concession, fee or other remuneration, you must deliver a
notice to substantially the foregoing effect. Terms used above have the
meanings assigned to them in Regulation S."
1