EXHIBIT 10.1
EXECUTION COPY
Nexstar Finance, L.L.C.
Nexstar Finance, Inc.
The guarantors party hereto
$ 160,000,000
12% Senior Subordinated Notes due 2008
Purchase Agreement
dated March 13, ▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ Securities L.L.C.
Barclays Capital Inc.
CIBC World Markets Corp.
First Union Securities, Inc.,
as representatives of the several initial purchasers
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 Securities and the Exchange Securities.......................................... 4
(h) Authorization of the Indenture....................................................................... 4
(i) Description of the Securities and the Indenture...................................................... 5
(j) No Material Adverse Change........................................................................... 5
(k) Independent Accountants.............................................................................. 5
(l) Preparation of the Financial Statements.............................................................. 5
(m) Incorporation and Good Standing of the Company, the Guarantors and their Respective Subsidiaries..... 6
(n) Capitalization....................................................................................... 6
(o) Non-Contravention of Existing Instruments; No Further Authorizations or Approvals Required........... 6
(p) No Material Actions or Proceedings................................................................... 7
(q) Intellectual Property Rights......................................................................... 7
(r) All Necessary Permits, etc........................................................................... 7
(s) FCC Licenses......................................................................................... 7
(t) Condition of Stations................................................................................ 8
(u) Title to Properties.................................................................................. 9
(v) Tax Law Compliance................................................................................... 9
(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..................................................................................... 10
(bb) No Default in Senior Indebtedness.................................................................... 10
(cc) Compliance with Regulations S........................................................................ 10
(dd) Temporary Regulations S Global Note.................................................................. 10
SECTION 2. Purchase, Sale and Delivery of the Securities............................................... 11
(a) The Securities....................................................................................... 11
(b) The Closing Date..................................................................................... 11
(c) Delivery of the Securities........................................................................... 11
(d) Delivery of Offering Memorandum to the Initial Purchasers............................................ 11
(e) Initial Purchasers as Qualified Institutional Buyers................................................. 11
(f) Resale of Securities................................................................................. 11
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............................................................. 13
(i) No Integration....................................................................................... 13
(j) Legended Securities.................................................................................. 14
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(k) PORTAL............................................................................................... 14
SECTION 4. Payment of Expenses......................................................................... 14
SECTION 5. Conditions of the Obligations of the Initial Purchasers..................................... 14
(a) Accountants' Comfort Letter.......................................................................... 15
(b) No Material Adverse Change or Ratings Agency Change.................................................. 15
(c) Opinion of Counsel for the Company................................................................... 15
(d) Opinion of Counsel for the Guarantors................................................................ 15
(e) Opinion of Regulatory Counsel for the Company........................................................ 15
(f) Opinion of Counsel for the Initial Purchasers........................................................ 15
(g) Officers' Certificate................................................................................ 15
(h) Bring-down Comfort Letter............................................................................ 16
(i) PORTAL Listing....................................................................................... 16
(j) Registration Rights Agreement........................................................................ 16
(k) Indenture............................................................................................ 16
(l) Additional Documents................................................................................. 16
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 Purchasers............................................................ 18
(b) Indemnification of the Company, the Guarantors, their Directors and Officers......................... 19
(c) Notifications and Other Indemnification Procedures................................................... 19
(d) Settlements.......................................................................................... 20
SECTION 9. Contribution................................................................................ 20
SECTION 10. Termination of this Agreement............................................................... 22
SECTION 11. Representations and Indemnities to Survive Delivery......................................... 22
SECTION 12. Notices..................................................................................... 22
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
ii
Purchase Agreement
March 13, ▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ SECURITIES LLC
BARCLAYS CAPITAL INC.
CIBC WORLD MARKETS CORP.
FIRST UNION SECURITIES, INC.
[_] BANC OF AMERICA SECURITIES LLC
9 West ▇▇/▇▇/ ▇▇▇▇▇▇, ▇▇/▇▇/ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
as representatives of the several initial purchasers
Ladies and Gentlemen:
Nexstar Finance, L.L.C., a Delaware limited liability company, and
Nexstar Finance, Inc., a Delaware corporation (together, the "Company"), propose
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to issue and sell to the several Initial Purchasers named in Schedule I (the
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"Initial Purchasers"), acting severally and not jointly, the respective amounts
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set forth in such Schedule I of the Company's 12% Senior Subordinated Notes due
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2008 (the "Notes"), Banc of America Securities LLC has agreed to act as the lead
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Initial Purchaser in connection with the offering and sale of the Notes.
The Notes will be issued pursuant to an indenture, dated as of March
16, 2001 (the "Indenture"), among the Company, the Guarantors (as defined below)
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and United States Trust Company of New York, as trustee (the "Trustee"). Notes
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issued in book-entry form will be issued in the name of Cede & Co., as nominee
of The Depository Trust Company (the "Depositary").
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The holders of the Notes will be entitled to the benefits of a
registration rights agreement, dated as of March 16, 2001 (the "Registration
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Rights Agreement"), among the Company, the Guarantors (as defined below) and the
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Initial Purchasers, pursuant to which the Company will agree to file, within 90
days of the Closing Date, a registration statement with the Commission
registering the Exchange Securities (as defined below) under the Securities Act.
The payment of principal, premium and Liquidated Damages (as defined
in the Indenture), if any, and interest on the Notes and the Exchange Notes (as
defined below) will be fully and unconditionally guaranteed on a senior
unsecured basis, jointly and severally by (i) the parties named in Schedule II
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and (ii) any subsidiary of the Company or any party named in Schedule II formed
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or acquired after the Closing Date that executes an additional guarantee in
accordance with the terms of the Indenture, and their respective successors and
assigns (collectively, the "Guarantors"), pursuant to their guarantees (the
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"Guarantees"). The Notes and the Guarantees attached thereto are herein
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collectively referred to as the "Securities"; and the Exchange Notes and the
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Guarantees attached thereto are herein collectively referred to as the "Exchange
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Securities".
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The Company understands that the Initial Purchasers propose to make
an offering of the Securities on the terms and in the manner set forth herein
and 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 Securities to purchasers (the "Subsequent Purchasers") at any
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time after the date of this Agreement. The Securities 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
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of 1933 (as amended, the "Securities Act," which term, as used herein, includes
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the rules and regulations of the Commission promulgated thereunder), in reliance
upon exemptions therefrom. The terms of the Securities and the Indenture will
require that investors that acquire Securities expressly agree that Securities
may only be resold or otherwise transferred, after the date hereof, if such
Securities 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 Regulation S ("Regulation
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S") thereunder).
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The Company has prepared and delivered to each Initial Purchaser
copies of a Preliminary Offering Memorandum, dated February 27, 2001 (the
"Preliminary Offering Memorandum"), and has prepared and will deliver to each
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Initial Purchaser, copies of the Offering Memorandum, dated March 13, 2001,
describing the terms of the Securities, each for use by such Initial Purchaser
in connection with its solicitation of offers to purchase the Securities. As
used herein, the "Offering Memorandum" shall mean, with respect to any date or
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time referred to in this Agreement, the Company's Offering Memorandum, dated
March 13, 2001, including amendments or supplements thereto, any exhibits
thereto, in the most recent form that has been prepared and delivered by the
Company to the Initial Purchasers in connection with their solicitation of
offers to purchase Securities. Further, any reference to the Preliminary
Offering Memorandum or the Offering Memorandum shall be deemed to refer to and
include any Additional Issuer Information (as defined in Section 3) furnished by
the Company prior to the completion of the distribution of the Securities.
The Company and each of the Guarantors hereby confirm their
agreements with the Initial Purchasers as follows:
SECTION 1. Representations and Warranties. Each of the Company and the
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Guarantors, jointly and severally, hereby represent, warrant and covenant to
each Initial Purchaser as follows:
(a) No Registration Required. Subject to compliance by the Initial
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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 Securities to the Initial
Purchasers and to each Subsequent Purchaser in the manner contemplated by this
Agreement and the Offering Memorandum to register the Securities under the
Securities Act or, until such time as the Exchange Securities are issued
pursuant to an effective registration statement, to qualify the Indenture under
the Trust Indenture Act of ▇▇▇▇ (▇▇▇ "▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇," which term, as used
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herein, includes the rules and regulations of the Commission promulgated
thereunder).
(b) No Integration of Offerings or General Solicitation. Neither the
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Company nor any Guarantor has, 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
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the United States or to any United States citizen or resident, any security
which is or would be integrated with the sale of the Securities in a manner that
would require the Securities to be registered under the Securities Act. None of
the Company or Guarantors, their respective affiliates (as such term is defined
in Rule 501 under the Securities Act (each, an "Affiliate"), or any person
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acting on its or their respective behalf (other than the Initial Purchasers, as
to whom the Company and Guarantors make no representation or warranty) has
engaged or will engage, in connection with the offering of the Securities, in
any form of general solicitation or general advertising within the meaning of
Rule 502 under the Securities Act. With respect to those Securities sold in
reliance upon Regulation S, none of the Company or the Guarantors, their
Affiliates or any person acting on its or their behalf (other than the Initial
Purchasers, as to whom the Company and Guarantors make no representation or
warranty) has engaged or will engage in any directed selling efforts within the
meaning of Regulation S.
(c) Eligibility for Resale under Rule 144A. The Securities are eligible
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for resale pursuant to Rule 144A and will not be, at the Closing Date, of the
same class as securities listed on a national 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 does not, and at
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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. Each of the
Preliminary Offering Memorandum and the Offering Memorandum, as of its date,
contains all the information specified in, and meeting the requirements of, Rule
144A. Neither the Company nor any Guarantor has distributed or will distribute,
prior to the later of the Closing Date and the completion of the Initial
Purchasers' distribution of the Securities, any offering material in connection
with the offering and sale of the Securities other than a Preliminary Offering
Memorandum or the Offering Memorandum.
(e) The Purchase Agreement. This Agreement has been duly authorized,
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executed by, and is a valid and binding agreement of the Company and the
Guarantors, enforceable against the Company and the Guarantors 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
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Registration Rights Agreement will be duly authorized, executed and delivered
by, and will be a valid and binding agreement of the Company and the Guarantors,
enforceable against the Company and the Guarantors 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
3
under the Securities Act relating to another series of debt securities of the
Company with terms substantially identical to the Notes (the "Exchange Notes")
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to be offered in exchange for the Notes (the "Exchange Offer") and (ii) to the
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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 Securities and the Exchange Securities.
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(i) The Notes to be purchased by the Initial Purchasers from the
Company are 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 the Guarantors 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.
(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.
(iii) The Guarantees of the Notes and the Exchange Notes are in the
respective forms contemplated by the Indenture, have been duly authorized for
issuance and sale pursuant to this Agreement and the Indenture and, at the
Closing Date, will have been duly executed by each of the Guarantors and, when
the Notes have been 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 Guarantors, enforceable 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.
(h) Authorization of the Indenture. The Indenture has been duly
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authorized by the Company and the Guarantors, and, at the Closing Date, will
have been duly executed and delivered by the Company and the Guarantors, and
will constitute a valid and binding agreement of the Company and the Guarantors,
enforceable against the Company and the Guarantors 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.
4
(i) Description of the Securities and the Indenture. The Notes, the
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Exchange Notes, the Guarantees of the Notes and the Exchange Notes and the
Indenture will conform in all material respects to the respective statements
relating thereto contained in the Offering Memorandum.
(j) No Material Adverse Change. Except as otherwise disclosed in the
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Offering Memorandum, subsequent to the respective dates as of which information
is 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, the Guarantors
and their respective subsidiaries (any such change is called a "Material Adverse
----------------
Change"); (ii) none of the Company, the Guarantors or their respective
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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, the
Guarantors or their respective subsidiaries on any class of capital stock or
repurchase or redemption by the Company, the Guarantors or their respective
subsidiaries of any class of capital stock.
(k) Independent Accountants. PricewaterhouseCoopers LLP and Ernst & Young
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LLP, 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,
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together with the related schedules and notes, included in the Offering
Memorandum present fairly the consolidated financial position of the Company ,
the Guarantors and their respective 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 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 consolidated, condensed financial
statements of the Company, the Guarantors and their respective 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 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.
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(m) Incorporation and Good Standing of the Company, the Guarantors and
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their Respective Subsidiaries. Each of the Company , the Guarantors and their
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respective 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 and each of the Guarantors, to enter into and
perform their respective obligations under each of this Agreement, the
Registration Rights Agreement, the Securities, the Exchange Securities, the
Guarantees and the Indenture. Each of the Company, the Guarantors and their
respective 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 each subsidiary
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 III hereto.
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(n) Capitalization. At December 31, 2000, on a consolidated basis, after
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giving pro forma effect to the issuance and sale of the Securities pursuant
hereto, the Company would have an authorized and outstanding capitalization as
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 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
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or Approvals Required. Neither the Company, the Guarantors, nor any of their
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respective subsidiaries is 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,
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contract, franchise, lease or other instrument to which the Company, the
Guarantors or their respective subsidiaries is a party or by which it or any of
them may be bound (including, without limitation, the Company's $72.0 million,
six-year revolving credit facility, $110.0 million, six-year term loan facility,
and the Bastet Group's $43.0 million, six-year revolving credit facility), or to
which any of the property or assets of the Company, the Guarantors or any of
their respective subsidiaries is subject (each, an "Existing Instrument"),
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except for such Defaults as would not, individually or in the aggregate, result
in a Material Adverse Change. The Company's and the Guarantors' execution,
delivery and performance of this Agreement, the Registration Rights Agreement
and the Indenture, and the issuance and delivery of the Securities (including
the Guarantees endorsed thereon) or the Exchange Securities (including the
Guarantees endorsed thereon), and consummation of the transactions contemplated
hereby and thereby and by the Offering Memorandum (i) have been duly authorized
by all necessary corporate action and will not result in any violation of the
provisions of the charter or by-laws of the Company, the Guarantors or any of
their respective 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 the Company, the
Guarantors or their respective subsidiaries pursuant to, or require the consent
of any
6
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, the Guarantors or any of their respective
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 or the Guarantors' execution,
delivery and performance of this Agreement, the Registration Rights Agreement or
the Indenture, or the issuance and delivery of the Securities (including the
Guarantees endorsed thereon) or the Exchange Securities (including the
Guarantees endorsed thereon), 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 or the Guarantors 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 Company's or the Guarantors' obligations under the Registration
Rights Agreement.
(p) No Material Actions or Proceedings. There are no legal or
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governmental actions, suits or proceedings pending or, to the best of the
Company's or any Guarantor's knowledge, threatened against or affecting the
Company, the Guarantors or their respective subsidiaries, (ii) which has as the
subject thereof any property owned or leased by the Company, the Guarantors or
their respective subsidiaries, where in any such case there is a reasonable
possibility that such action, suit or proceeding might be determined adversely
to the Company, any Guarantor 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, the Guarantors or their respective subsidiaries,
exists or, to the best of the Company's or any Guarantor's knowledge, is
threatened or imminent.
(q) Intellectual Property Rights. Except as otherwise disclosed in the
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Offering Memorandum, the Company, the Guarantors and their respective
subsidiaries 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
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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, the Guarantors, or any of their respective subsidiaries 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, the Guarantors and
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their respective 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, the Guarantors, or any of their respective 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.
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(i) The Company and each of the Guarantors holds such validly issued
Federal Communications Commission ("FCC") licenses and authorizations as are
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necessary to operate their respective television stations, which are listed on
Schedule IV (the "Stations"), as they are currently operated (collectively, the
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"FCC Licenses"), and each such FCC License is in full force and effect. The FCC
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Licenses of the Company and each such Guarantor are listed on Schedule IV, and
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each of such FCC Licenses has the expiration date indicated on Schedule IV.
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(ii) Neither the Company nor any Guarantor has 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
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Act").
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(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 or any such Guarantor 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 neither the
Company nor any of the Guarantors has 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
Guarantor 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 and the Guarantors 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.
8
(u) Title to Properties. The Company, the Guarantors and each of their
-------------------
respective 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 proposed to be made of such property by the
Company, such Guarantor or such subsidiary. The real property, improvements,
equipment and personal property held under lease by the Company, Guarantors or
any of their respective 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, such Guarantor or such
subsidiary.
(v) Tax Law Compliance. The Company and their consolidated subsidiaries
------------------
(including the Guarantors) 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 (including the Guarantors) 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"). The Company is not, and after receipt of payment
----------------------
for the Securities will not be, an "investment company" within the meaning of
Investment Company Act and 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, the Guarantors and their respective
---------
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, the Guarantors and their respective subsidiaries against theft,
damage, destruction, acts of vandalism and earthquakes. The Company and
Guarantors have no reason to believe that it or any of their respective
subsidiaries will not be able (i) to renew its 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 its business as now
conducted and at a cost that would not result in a Material Adverse Change.
None of the Company, the Guarantors or any of their respective 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 and
--------------------------------------
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
Securities.
(z) Company's Accounting System. The Company and each Guarantor maintain
---------------------------
a system of accounting controls sufficient to provide reasonable assurances that
(i) transactions are executed in accordance with management's general or
specific
9
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 disclosed in the Offering
----------------
Memorandum, the Company , the Guarantors, their respective subsidiaries and any
"employee benefit plan" (as defined under the Employee Retirement Income
Security Act of 1974, as amended, and the regulations and published
interpretations thereunder (collectively, "ERISA")) established or maintained by
-----
the Company, the Guarantors or their respective subsidiaries or their "ERISA
-----
Affiliates" (as defined below) are in compliance in all material respects with
----------
ERISA. "ERISA Affiliate" means, with respect to the Company, any Guarantor or
any of their respective subsidiaries, any member of any group of organizations
described in Sections 414, , or of the Internal Revenue Code of 1986, as
amended, and the regulations and published interpretations thereunder (the
"Code") of which the Company, such Guarantor 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, the Guarantors or their respective subsidiaries or
any of their ERISA Affiliates. No "employee benefit plan" established or
maintained by the Company, the Guarantors, their respective 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, the Guarantors, their 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,
the Guarantors, their 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) No Default in Senior Indebtedness. No event of default exists under
---------------------------------
any contract, indenture, mortgage, loan agreement, note, lease or other
agreement or instrument constituting Senior Debt (as defined in the Indenture).
(cc) Compliance with Regulations S. The Company, the Guarantors, their
-----------------------------
respective affiliates and all persons acting on their behalf (other than the
Initial Purchasers, as to whom the Company and the Guarantors make no
representation) have complied with and will comply with the offering
restrictions requirements of Regulation S in connection with the offering of the
Securities outside the United States and, in connection therewith, the Offering
Memorandum will contain the disclosure required by Rule 902.
(dd) Temporary Regulations S Global Note. The Securities sold in
-----------------------------------
reliance on Regulation S will be represented upon issuance by a temporary global
security that may not be exchanged for definitive securities until the
expiration of the 40-day restricted period referred to in Rule 903 of the
Securities Act and only upon certification of beneficial ownership of such
Securities by non-U.S. persons or U.S. persons who purchased such Securities in
transactions that were exempt from the registration requirements of the
Securities Act.
10
Any certificate signed by an officer of the Company or any of the
Guarantors 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 or
such Guarantor to each Initial Purchaser as to the matters set forth therein.
SECTION 2. Purchase, Sale and Delivery of the Securities.
----------------------------------------------
(a) The Securities. The Company agrees to issue and sell to the several
---------------
Initial Purchasers, severally and not jointly, all of the Securities 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 agree, severally and not jointly, to
purchase from the Company the aggregate principal amount of Securities set forth
opposite their names on Schedule I, at a purchase price of 93.42% of the
----------
principal amount thereof payable on the Closing Date.
(b) The Closing Date. Delivery of certificates for the Securities 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
Purchasers) at 9:00 a.m. New York City time, on March 16, 2001 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.
(c) Delivery of the Securities. The Company shall deliver, or cause to be
--------------------------
delivered, to Banc of America Securities LLC for the accounts of the several
Initial Purchasers certificates for the Securities at 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 Securities
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 Purchasers 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 Purchasers.
(d) Delivery of Offering Memorandum to the Initial Purchasers. Not later
---------------------------------------------------------
than 12:00 noon on the second business day following the date of this Agreement,
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.
(e) Initial Purchasers as Qualified Institutional Buyers. Each Initial
----------------------------------------------------
Purchaser severally and not jointly represents and warrants to, and agrees with,
the Company that it is a "qualified institutional buyer" within the meaning of
Rule 144A (a "Qualified Institutional Buyer") and an "accredited investor"
-----------------------------
within the meaning of Rule 501 under the Securities Act (an "Accredited
----------
Investor").
---------
(f) Resale of Securities. 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 Securities purchased hereunder on the
terms set forth in the
11
Offering Memorandum solely to (i) persons whom such Initial Purchaser reasonably
believes to be Qualified Institutional Buyers, and (ii) persons permitted to
purchase the Securities 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 and the Guarantors, jointly and
--------------------
severally, further covenant and agree with each Initial Purchaser 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
----------------------
Securities 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 their 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 Securities
are outstanding if, in the reasonable judgment of the Initial Purchasers, the
Initial Purchasers or any of their 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 and Guarantors hereby expressly acknowledge that the
indemnification and contribution provisions of Sections 8 and 9 hereof are
specifically applicable and relate to each offering memorandum, registration
statement, prospectus, amendment or supplement referred to in this Section 3.
12
(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 they 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
Securities 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 Securities. 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
Securities 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 Securities sold by it in the manner 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 Securities 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 Securities, the Company
shall furnish, at its expense, upon request, to holders and beneficial owners of
Securities and prospective purchasers of Securities information ("Additional
----------
Issuer Information") satisfying the requirements of subsection of Rule 144A.
-------------------
(h) Future Reports to the Initial Purchasers. For so long as any
----------------------------------------
Securities or Exchange Securities remain outstanding, the Company and Guarantors
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 and Guarantors as of the close of
such fiscal year and statements of income, stockholders' equity and cash flows
for the year then ended and the opinion thereon of the Company's and Guarantors'
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 and Guarantors with the Commission, the NASD or any
securities exchange; and (iii) as soon as available, copies of any report or
communication of the Company or the Guarantors mailed generally to holders of
its capital stock or debt securities (including the holders of the Securities).
(i) No Integration. The Company agrees that it will not and will cause
--------------
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 Securities by
13
the Company to the Initial Purchasers, (i) the resale of the Securities by the
Initial Purchasers to Subsequent Purchasers or (ii) the resale of the Securities
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
or by Regulation S thereunder or otherwise.
(j) Legended Securities. Each certificate for a Note will bear the legend
-------------------
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 or any Guarantor 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 its obligations
hereunder and in connection with the transactions contemplated hereby, including
without limitation all expenses incident to the issuance and delivery of the
Securities (including all printing and engraving costs), (ii) all necessary
issue, transfer and other stamp taxes in connection with the issuance and sale
of the Securities to the Initial Purchasers, (iii) all fees and expenses of the
Company's and the Guarantors' 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
each preliminary Offering Memorandum and 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
and the Guarantees, all filing fees, attorneys' fees and expenses incurred by
the Company, the Guarantors 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 Securities 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
Securities and the Exchange Securities, (vii) any fees payable in connection
with the rating of the Securities or the Exchange Securities with the ratings
agencies and the listing of the Securities 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 Securities or the
Exchange Securities, (ix) all fees and expenses (including reasonable fees and
expenses of counsel) of the Company and the Guarantors in connection with
approval of the Securities by DTC for "book-entry" transfer, and the performance
by the Company and the Guarantors of their respective 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 several Initial Purchasers to purchase and pay for the
Securities as
14
provided herein on the Closing Date shall be subject to the accuracy of the
representations and warranties on the part of the Company and Guarantors 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 and Guarantors of
its covenants and other obligations hereunder, and to each of the following
additional conditions:
(a) Accountants' Comfort Letter. On the date hereof, the Initial
---------------------------
Purchasers shall have received from each of PricewaterhouseCoopers LLP,
independent public or certified public accountants for the Company, and Ernst &
Young LLP, independent auditors with respect to KTAL-TV, Inc., a letter dated
the date hereof addressed to the Initial Purchasers, in form and substance
satisfactory to the Initial Purchasers, containing statements and information of
the type ordinarily included in accountant's "comfort letters" to 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
Registration Statement and 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 the Company, the Guarantors or their
respective subsidiaries by any "nationally recognized statistical
rating organization" as such term is defined for purposes of Rule
436 under the Securities Act.
(c) Opinion of Counsel for the Company. On the Closing Date, the Initial
----------------------------------
Purchasers shall have received the favorable opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇,
counsel for the Company and certain of the Guarantors, dated as of such Closing
Date, the form of which is attached as Exhibit A.
---------
(d) Opinion of Counsel for the Guarantors. On the Closing Date, the
-------------------------------------
Initial Purchasers shall have received the favorable opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇
LLP counsel for certain of the Guarantors, dated as of such Closing Date, the
form of which is attached as Exhibit B.
---------
(e) Opinion of Regulatory Counsel for the Company. On the Closing Date,
----------------------------------------------
the Initial Purchasers shall have received the favorable opinion of ▇▇▇▇▇ &
▇▇▇▇▇▇ LLP, special regulatory counsel for the Company, dated as of such Closing
Date, the form of which is attached as Exhibit C.
---------
(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
15
Executive Officer or President of the Company and the Chief Financial Officer or
Chief Accounting Officer of the Company and each Guarantor, 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, and of
such Guarantor, set forth in Section 1 of this Agreement are true
and correct with the same force and effect as though expressly
made on and as of the Closing Date; and
(iii) the Company, and such Guarantor, 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) Bring-down Comfort Letter. On the Closing Date, the Initial
-------------------------
Purchasers shall have received from each of PricewaterhouseCoopers LLP,
independent public or certified public accountants for the Company, and from
Ernst & Young LLP, independent auditors with respect to KTAL-TV, Inc. a letter
dated such date, in form and substance satisfactory to the Initial Purchasers,
to the effect that they reaffirm the statements made in the letter furnished by
them pursuant to subsection of this Section 5, except that the specified date
referred to therein for the carrying out of procedures shall be no more than
three business days prior to the Closing Date.
(i) PORTAL Listing. At the Closing Date the Notes shall have been
--------------
designated for trading on the PORTAL market.
(j) Registration Rights Agreement. The Company and each Guarantor shall
-----------------------------
have entered into the Registration Rights Agreement and the Initial Purchasers
shall have received executed counterparts thereof.
(k) Indenture. The Company, each Guarantor and the Trustee shall have
---------
entered into the Indenture and the Initial Purchasers shall have received an
executed copy thereof.
(l) 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 Securities
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.
16
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 Securities on the Closing Date is not consummated
because of any refusal, inability or failure on the part of the Company or the
Guarantors to perform any agreement herein or to comply with any provision
hereof, each of the Company and Guarantors agrees, jointly and severally, 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 Securities, 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 and each of the Guarantors, on the other hand,
hereby establish and agree to observe the following procedures in connection
with the offer and sale of the Securities:
(A) Offers and sales of the Securities 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 (as defined in Rule 144A under the Securities Act) or non-
U.S. persons outside the United States to whom the offeror or seller reasonably
believes offers and sales of the Securities may be made in 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.
------- -------
(B) The Securities 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 Securities.
(C) 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 Securities (and all securities issued in exchange therefor or in
substitution thereof, other than the Exchange Securities) 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 ISSUER 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
17
REQUIREMENTS OF RULE 904 UNDER THE SECURITIES ACT, (d) TO AN INSTITUTIONAL
"ACCREDITED INVESTOR" (AS DEFINE DIN 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 ISSUER SO REQUESTS), (ii) TO THE
ISSUER, 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 Securities 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.
SECTION 8. Indemnification.
---------------
(a) Indemnification of the Initial Purchasers. The Company and the
-----------------------------------------
Guarantors, jointly and severally, agree to indemnify and hold harmless each
Initial Purchaser, its directors, officers and employees, and each person, if
any, who controls any 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 such 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 Preliminary Offering Memorandum or 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 or the Guarantors 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 any 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 and the Guarantors 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
18
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 any Preliminary Offering
Memorandum or 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 or the Guarantors may otherwise have.
(b) Indemnification of the Company, the Guarantors, their Directors and
-------------------------------------------------------------------
Officers. Each Initial Purchaser agrees, severally and not jointly, to indemnify
--------
and hold harmless the Company, the Guarantors and each of their respective
directors and each person, if any, who controls the Company and the Guarantors
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 any Preliminary
Offering Memorandum or 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 any Preliminary Offering Memorandum or 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 the Company, any
such Guarantor, or any such director or controlling person for any legal and
other expenses reasonably incurred by the Company, any such Guarantor 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
any Preliminary Offering Memorandum or the Offering Memorandum (or any amendment
or supplement thereto) are the statements set forth as the sixth paragraph on
page ii of the Offering Memorandum concerning stabilization by the Initial
Purchasers and in the last sentence of the third paragraph, the second sentence
of the fourth paragraph and in the fifth paragraph under the caption "Plan of
Distribution" in the Offering Memorandum; and the Initial Purchasers confirm
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
19
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 it 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.
------------
20
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 or the Guarantors, on the one hand, and the Initial
Purchasers, on the other hand, from the offering of the Securities 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 or the Guarantors, 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 or
Guarantors, on the one hand, and the Initial Purchasers, on the other hand, in
connection with the offering of the Securities pursuant to this Agreement shall
be deemed to be in the same respective proportions as the total net proceeds
from the offering of the Securities 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
Securities. The relative fault of the Company or the Guarantors, 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 or the Guarantors, 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 allocation which does not take account
of the equitable considerations referred to in this Section 9.
Notwithstanding the provisions of this Section 9, no Initial Purchaser
shall be required to contribute any amount in excess of the discount received by
such Initial Purchaser in connection with the Securities 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
in Schedule I. For purposes of this
----------
21
Section 9, each director, officer and employee of an 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 and each Guarantor with the meaning of the
Securities Act and the Exchange Act shall have the same rights to contribution
as the Company and each Guarantor.
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 outbreak or 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 Securities 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, the Guarantors
or their respective 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, the Guarantors or their
respective 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 the Company and the Guarantors to any Initial Purchaser, except
that the Company and the Guarantors 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, any Initial Purchaser to the Company, or of 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 and the Guarantors, of their respective 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, the Guarantors or any of their respective
partners, officers or directors or any controlling person, as the case may be,
and will survive delivery of and payment for the Securities 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:
22
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 or any Nexstar Guarantor:
Nexstar Finance, L.L.C.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile:
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇/▇▇/ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
If to any Bastet/Mission Guarantor:
Bastet Broadcasting, Inc.
Mission Broadcasting of Wichita Falls, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇
with a copy to:
▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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
23
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 Securities as such from any of 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.
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
Securities that it or they have agreed to purchase hereunder on the Closing
Date, and the aggregate number of Securities which such defaulting Initial
Purchaser or Initial Purchasers agreed but failed or refused to purchase does
not exceed 10% of the aggregate number of the Securities to be purchased on such
date, the other Initial Purchasers shall be obligated, severally, in the
proportions that the number of Securities set forth opposite their respective
names on Schedule I bears to the aggregate number of Securities 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 Securities which 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 Securities and the aggregate number of Securities
with respect to which such default occurs exceeds 10% of the aggregate number of
Securities to be purchased on the Closing Date, and arrangements satisfactory to
the Initial Purchasers and the Company for the purchase of such Securities 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
24
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
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.
25
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, L.L.C.
NEXSTAR FINANCE, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President and Secretary
ENTERTAINMENT REALTY CORPORATION
NEXSTAR BROADCASTING GROUP, 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.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President and Secretary
BASTET BROADCASTING, INC.
MISSION BROADCASTING OF WICHITA FALLS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
The foregoing Purchase Agreement is hereby confirmed and accepted by
the Initial Purchasers as of the date first above written.
BANC OF AMERICA SECURITIES LLC
BARCLAYS CAPITAL INC.
CIBC WORLD MARKETS CORP.
FIRST UNION SECURITIES, INC.,
as representatives of the several initial purchasers
By: BANC OF AMERICA SECURITIES LLC
By: /s/ ▇ ▇ ▇▇▇▇▇
---------------------------------
Name: ▇ ▇ ▇▇▇▇▇
Title: Managing Director
SCHEDULE I
Aggregate
Principal Amount
Initial Purchasers of Securities to
be Purchased
Banc of America Securities LLC.................. $112,000,000
Barclays Capital Inc............................ 24,000,000
CIBC World Markets Corp......................... 12,000,000
First Union Securities, Inc..................... 12,000,000
Total........................................ $160,000,000
I-1
SCHEDULE II
Guarantors
Nexstar Guarantors:
Entertainment Realty Corporation
Nexstar Broadcasting Group, 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.
Bastet/Mission Guarantors:
Bastet Broadcasting, Inc.
Mission Broadcasting of Wichita Falls, Inc.
II-1
SCHEDULE III
Subsidiaries
III-1
SCHEDULE IV
Port ▇▇▇▇▇▇, Texas
(Nexstar Broadcasting of Beaumont-Port ▇▇▇▇▇▇, L.L.C.)
Facility Type Call Sign Exp. Date
------------- --------- ----------
TV Broadcast Station License KBTV-TV 08/01/2006
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
(Nexstar Broadcasting of Wichita Falls, L.L.C.)
Facility Type Call Sign Exp. Date
------------- --------- ----------
TV Broadcast Station License KFDX-TV 08/01/2006
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
Midland, Texas
(Nexstar Broadcasting of Midland-Odessa, L.L.C.)
Facility Type Call Sign Exp. Date
------------- --------- ----------
TV Broadcast Station License KMID 08/01/2006
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
IV-1
Abilene, Texas
(Nexstar Broadcasting of Abilene, L.L.C.)
Facility Type Call Sign Exp. Date
------------- --------- ----------
TV Broadcast Station License KTAB-TV 08/01/2006
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
Texarkana, Texas
(Nexstar Broadcasting of Louisiana, L.L.C.)
Facility Type Call Sign Exp. Date
------------- --------- ----------
TV Broadcast Station License KTAL-TV 08/01/2006
Transmit-Receive Earth Station E940521 12/02/2004
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 Studio Transmitter Link KLS-96 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
Rochester, New York
(Nexstar Broadcasting of Rochester, L.L.C.)
Facility Type Call Sign Exp. Date
------------- --------- ----------
TV Broadcast Station License WROC 06/01/2007
Receive-Only Earth Station E940506 09/15/2004
Transmit/Receive Earth Station E000660 12/12/2010
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
IV-2
▇▇▇▇▇▇-▇▇▇▇▇, Pennsylvania
(Nexstar Broadcasting of Northeastern Pennsylvania, L.L.C.)
Facility Type Call Sign Exp. Date
------------- --------- ----------
TV Broadcast Station License WBRE-TV 08/01/2007
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 11/01/2001
TV Pickup KA-35201 08/01/2007
TV Pickup KA-35425 08/01/2007
TV Pickup KA-74870 08/01/2007
Business Radio KB-88735 06/26/2004
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
Erie, Pennsylvania
(Nexstar Broadcasting of Erie, L.L.C.)
Facility Type Call Sign Exp. Date
------------- --------- ----------
TV Broadcast Station License WJET-TV 08/01/2007
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
IV-3
St. ▇▇▇▇▇▇, Missouri
(Nexstar Broadcasting of the Midwest, Inc.)
Facility Type Call Sign Exp. Date
------------- --------- ----------
TV Broadcast Station License KQTV 02/01/2006
TV Pickup KC-26093 02/01/2006
R/P Automatic Relay KQB-577 02/01/2006
Joplin, Missouri
(Nexstar Broadcasting of Joplin, L.L.C.)
Facility Type Call Sign Exp. Date
------------- --------- ----------
TV Broadcast Station License KSNF 02/01/2006
TV Pickup KW-6078 02/01/2006
Business Radio WNKN-977 01/04/2003
Weather Radar Station WPMJ-419 08/12/2003
Terre Haute, Indiana
(Nexstar Broadcasting of the Midwest, Inc.)
Facility Type Call Sign Exp. Date
------------- --------- ----------
TV Broadcast Station License WTWO 08/01/2005
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
(Nexstar Broadcasting of Champaign, L.L.C.)
Facility Type Call Sign Exp. Date
------------- --------- ----------
TV Broadcast Station License WCFN 12/01/2005
TV Studio Transmitter Link WLD-973 12/01/2005
IV-4
Champaign, Illinois
(Nexstar Broadcasting of Champaign, L.L.C.)
Facility Type Call Sign Exp. Date
------------- --------- ----------
TV Broadcast Station License WCIA 12/01/2005
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 BLP01128 12/01/2005
TV Pickup KA-95317 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-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
Peoria, Illinois
(Nexstar Broadcasting of Peoria, L.L.C.)
Facility Type Call Sign Exp. Date
------------- --------- ----------
TV Broadcast Station License WMBD-TV 12/01/2005
TV Pickup KA-88843 12/01/2005
TV Pickup KA-88844 12/01/2005
Remote Pickup Mobile System KS-2010 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
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
___________________
Applications seeking FCC consent to the assignment of the licenses of
transmit/receive satellite earth station E920434, business radio station KAP-730
and operational fixed microwave station WNTX-533 from their current licensees to
a Nexstar Company were filed with the FCC on December 20 and 21, 2001. These
applications are currently pending with the FCC. The current licensees and a
Nexstar Company have entered into a Station Use Agreement to allow the Nexstar
Company to use these stations during the
IV-5
pendency of the assignment applications.
▇▇-▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇
(Mission Broadcasting of Wichita Falls, Inc.)
Facility Type Call Sign Exp. Date
------------- --------- ----------
TV Broadcast Station License KJTL 08/01/2006
LPTV Broadcast Station License KJBO-LP 08/01/2006
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
Scranton, Pennsylvania
(Bastet Broadcasting, Inc.)
Facility Type Call Sign Exp. Date
------------- --------- ----------
TV Broadcast Station License WYOU 08/01/2007
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
(Bastet Broadcasting, Inc.)
Facility Type Call Sign Exp. Date
------------- --------- ----------
TV Broadcast Station License WFXP 08/01/2007
TV Studio Transmitter Link WLD-767 08/01/2007
IV-7
EXHIBIT A
A-1
EXHIBIT B
B-1
EXHIBIT C
C-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 Securities 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 Securities 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 Securities (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 Securities, except such advertisements as
permitted by and include the statements required by Regulation S.
Such Initial Purchaser agrees that, at or prior to confirmation of a
sale of Securities 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 Securities 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 commencement of the Offering
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."
Such Initial Purchaser agrees that the Securities offered and sold in
reliance on Regulation S will be represented upon issuance by a global security
that may not be exchanged for definitive securities until the expiration of the
40-day restricted period referred to in Rule 903 of the Securities Act and only
upon certification of beneficial ownership of such Securities by non-U.S.
persons or U.S. persons who purchased such Securities in transactions that were
exempt from the registration requirements of the Securities Act.
Annex-1