1
EXHIBIT 10.28
STC BROADCASTING, INC.
$100,000,000
11% Senior Subordinated Notes due 2007
PURCHASE AGREEMENT
March 19, 1997
CHASE SECURITIES INC.
NATIONSBANC CAPITAL MARKETS, INC.
XXXXXXXX XXXXXXXX & CO., INCORPORATED
c/o Chase Securities Inc.
000 Xxxx Xxxxxx, 0xx xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
STC BROADCASTING, INC., a Delaware corporation (the
"Company"), proposes to issue and sell $100,000,000 aggregate principal amount
of its 11% Senior Subordinated Notes due 2007 (the "Securities"). The
Securities will be issued pursuant to an Indenture to be dated as of March 25,
1997 (the "Indenture") between the Company and U.S. Trust Company of Texas,
N.A., as trustee (the "Trustee"). The Company hereby confirms its agreement
with Chase Securities Inc. ("CSI"), NationsBanc Capital Markets, Inc. and
Xxxxxxxx Xxxxxxxx & Co. Inc. (together with CSI, the "Initial Purchasers")
concerning the purchase of the Securities from the Company by the several
Initial Purchasers.
The Securities will be offered and sold to the Initial
Purchasers without being registered under the Securities Act of 1933, as
amended (the "Securities Act"), in reliance upon exemptions therefrom. The
Company has prepared a preliminary offering memorandum dated February 28, 1997
(the "Preliminary Offering Memorandum") and a final offering memorandum dated
the date hereof (the "Final Offering Memorandum"; and, together with the
Preliminary Offering Memorandum, the "Offering Memoranda") setting forth
information concerning the Company and the Securities. Copies of the
Preliminary Offering Memorandum have been, and copies of the Final Offering
Memorandum will be,
2
delivered by the Company to the Initial Purchasers pursuant to the terms of
this Agreement. Any references herein to the Preliminary Offering Memorandum
and the Final Offering Memorandum shall be deemed to include all amendments and
supplements thereto, unless otherwise noted. The Company hereby confirms that
it has authorized the use of the Preliminary Offering Memorandum and the Final
Offering Memorandum in connection with the offering and resale of the
Securities by the Initial Purchasers in accordance with Section 2.
Holders of the Securities (including the Initial Purchasers
and their direct and indirect transferees) will be entitled to the benefits of
an Exchange and Registration Rights Agreement, substantially in the form
attached hereto as Annex A (the "Registration Rights Agreement"), pursuant to
which the Company will agree to file with the Securities and Exchange
Commission (the "Commission") (i) a registration statement under the Securities
Act (the "Exchange Offer Registration Statement") registering an issue of
senior subordinated notes of the Company (the "Exchange Securities") which are
identical in all material respects to the Securities (except that the Exchange
Securities will not contain terms with respect to transfer restrictions) and
(ii) under certain circumstances, a shelf registration statement pursuant to
Rule 415 under the Securities Act (the "Shelf Registration Statement").
In connection with the acquisition (the "Acquisitions") by the Company
and Xxxxx Acquisition Company of substantially all of the assets of four
television broadcasting stations from Jupiter/Xxxxx T.V. Holdings, L.P. and
Xxxxx Broadcasting Partners, L.P. (collectively, the "Sellers"), (i) the
Company entered into a $95.0 million credit facility (the "Credit Agreement")
with The Chase Manhattan Bank, as administrative agent, and each of the lenders
named therein and (ii) Sunrise Television Corp., the corporate parent of the
Company ("Holdings"), made a $50.0 million gross equity capital contribution
(the "Capital Contribution") to the Company. The net proceeds of the offering
and sale of the Securities (the "Offering"), will be used by the Company to
repay all outstanding indebtedness under the Credit Agreement. The
consummation of the Offering is sometimes referred to hereinafter as the
"Transaction".
Capitalized terms used but not defined herein shall have the
meanings given to such terms in the Final Offering Memorandum.
1. Representations, Warranties and Agreements of the Company.
The Company represents and warrants to, and agrees with, the several Initial
Purchasers that:
(a) Each of the Preliminary Offering Memorandum, as of its
date, and the Final Offering Memorandum, as of the date hereof and as
of the Closing Date (as defined in Section 3) did not (or will not),
contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading; provided, however, that the Company makes no
representation or warranty as to information contained in or omitted
from the Preliminary Offering Memorandum or
3
the Final Offering Memorandum in reliance upon and in conformity with
written information furnished to the Company by or on behalf of any
Initial Purchaser relating to such Initial Purchaser specifically for
use therein (the "Initial Purchasers' Information"). The parties
hereto acknowledge and agree that, for all purposes of this Agreement,
the Initial Purchasers' Information consists solely of the last
paragraph on the front cover page concerning the terms of the Offering
by the Initial Purchasers, the first paragraph of the legends on page
"i" concerning over-allotments and the statements relating to the
Initial Purchasers in the third, fourth, sixth, seventh, eighth and
ninth paragraphs under the heading "Plan of Distribution" in the
Preliminary Offering Memorandum and the Final Offering Memorandum.
(b) Assuming the accuracy of the representations and
warranties of the Initial Purchasers contained in Section 2 and their
compliance with the agreements set forth herein, it is not necessary,
in connection with the issuance and sale of the Securities to the
Initial Purchasers and the offer, resale and delivery of the
Securities by the Initial Purchasers in the manner contemplated by
this Agreement and the Final Offering Memorandum, to register the
Securities under the Securities Act or to qualify the Indenture under
the Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act").
(c) The Company and each of its subsidiaries have been duly
incorporated and are validly existing as corporations in good standing
under the laws of their respective jurisdictions of incorporation, are
duly qualified to do business and are in good standing as foreign
corporations in each jurisdiction in which their respective ownership
or lease of property or the conduct of their respective businesses
requires such qualification, and have all power and authority
necessary to own or hold their respective properties and to conduct
the businesses in which they are engaged, except where the failure to
so qualify or have such power or authority would not, singularly or in
the aggregate, have a material adverse effect on the condition
(financial or otherwise), results of operations, business or prospects
of the Company and its subsidiaries taken as a whole (a "Material
Adverse Effect").
(d) On the Closing Date, the authorized capital stock of the
Company will consist of 1,000,000 shares of preferred stock, par value
$0.01 per share, of which 300,000 shares are issued and outstanding
and 1,000 shares of common stock, $0.01 par value per share, of which
1,000 shares are issued and outstanding; all of the outstanding shares
of capital stock of the Company are duly and validly authorized and
issued and fully paid and non-assessable; and the preferred stock of
the Company conforms in all material respects to the description
thereof contained in the Final Offering Memorandum under the caption
"Description of Redeemable Preferred Stock". All of the outstanding
shares of capital stock of each subsidiary of the Company (and, in the
case of Xxxxx Acquisition Company, 100% of the nonvoting stock) have
been duly and validly authorized and issued, are fully paid and
non-assessable and are owned directly or indirectly by the Company,
free and clear of any
- 0 -
0
xxxx, xxxxxx, xxxxxxxxxxx, security interest, restriction upon voting
(except for Xxxxx Acquisition Company) or transfer or any other claim
of any third party (other than liens and security interests created
pursuant to the Credit Agreement, the Indenture or applicable law) and
restrictions on transfer imposed by Federal Communications Commission
(the "FCC") requirements.
(e) The Company has all requisite corporate power and
authority to execute and deliver this Agreement, the Indenture, the
Registration Rights Agreement and the Securities (collectively, the
"Transaction Documents") and to perform its obligations hereunder and
thereunder.
(f) This Agreement has been duly authorized, executed and
delivered by the Company and constitutes a valid and legally binding
agreement of the Company, enforceable against the Company in
accordance with its terms, except (i) to the extent that such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium and other similar laws affecting creditors'
rights generally and by general equitable principles (whether
considered in a proceeding in equity or at law) and (ii) to the extent
that the enforceability of rights to indemnification and contribution
thereunder may be limited by federal or state securities laws or
regulations or the public policy underlying such laws or regulations.
(g) The Registration Rights Agreement has been duly
authorized by the Company and, when duly executed and delivered in
accordance with its terms by each of the parties thereto, will
constitute a valid and legally binding agreement of the Company,
enforceable against the Company in accordance with its terms, except
(i) to the extent that such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium and
other similar laws affecting creditors' rights generally and by
general equitable principles (whether considered in a proceeding in
equity or at law) and (ii) to the extent that the enforceability of
rights to indemnification and contribution thereunder may be limited
by federal or state securities laws or regulations or the public
policy underlying such laws or regulations.
(h) The Indenture has been duly authorized by the Company
and, when duly executed and delivered in accordance with its terms by
each of the parties thereto, will constitute a valid and legally
binding agreement of the Company enforceable against the Company in
accordance with its terms, except to the extent that such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium and other similar laws affecting creditors'
rights generally and by general equitable principles (whether
considered in a proceeding in equity or at law) and except to the
extent that the waiver contained in Section 4.10 of the Indenture may
not be enforceable.
- 4 -
5
(i) The Securities have been duly authorized by the Company
and, when duly executed, authenticated, issued and delivered as
provided in the Indenture and paid for as provided herein, will be
duly and validly issued and outstanding and will constitute valid and
legally binding obligations of the Company entitled to the benefits of
the Indenture and enforceable against the Company in accordance with
their terms, except to the extent that such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization,
moratorium and other similar laws affecting creditors' rights
generally and by general equitable principles (whether considered in a
proceeding in equity or at law) and except to the extent that the
waiver contained in Section 4.10 of the Indenture may not be
enforceable.
(j) The Exchange Securities have been duly authorized by
the Company and, when duly executed, authenticated, issued and
delivered as provided in the Indenture and the Registration Rights
Agreement, will be duly and validly issued and outstanding and will
constitute valid and legally binding obligations of the Company
entitled to the benefits of the Indenture and enforceable against the
Company in accordance with their terms, except to the extent that such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium and other similar laws affecting creditors'
rights generally and by general equitable principles (whether
considered in a proceeding in equity or at law) and except to the
extent that the waiver contained in Section 4.10 of the Indenture may
not be enforceable.
(k) Each Transaction Document that is described in the Final
Offering Memorandum conforms in all material respects to the
description thereof contained in the Final Offering Memorandum.
(l) The execution, delivery and performance by the Company of
each of the Transaction Documents, the issuance, authentication, sale
and delivery of the Securities by the Company and compliance by the
Company with the terms thereof and the consummation by the Company and
its subsidiaries of the transactions contemplated by the Transaction
Documents do not and will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a
default under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or
any of its subsidiaries pursuant to, any material indenture, mortgage,
deed of trust, loan agreement or other material agreement or
instrument to which the Company or any of its subsidiaries is a party
or by which the Company or any of its subsidiaries is bound or to
which any of the property or assets of the Company or any of its
subsidiaries is subject, except for any such conflict, breach,
violation, default, lien, charge or encumbrance that could not, singly
or in the aggregate, reasonably be expected to have a Material Adverse
Effect; nor will such actions result in any violation of the
provisions of the charter or by-laws of the Company or any of its
subsidiaries; or any statute or any order, rule or regulation
(including, without limitation, the Communications Act of 1934, as
amended (the "Communications Act"), and the rules and regulations of
the FCC
- 5 -
6
thereunder) of any court or arbitrator or governmental agency or body
(including, without limitation, the FCC) having jurisdiction over the
Company or any of its subsidiaries or any of their properties or
assets, except for any such conflict, breach, violation, default,
lien, charge or encumbrance that could not, singly or in the
aggregate, reasonably be expected to have a Material Adverse Effect;
and, except for such consents, approvals, authorizations,
registrations or qualifications which have been obtained or as may be
required under (i) applicable Blue Sky or securities laws in
connection with the purchase and resale of the Notes by the Initial
Purchasers, (ii) the Trust Indenture Act of 1939 in connection with
the Exchange Securities or (iii) the Securities Act and state Blue Sky
laws or securities laws in connection with the actions contemplated by
the Registration Rights Agreement, no consent, approval, authorization
or order of, or filing or registration with, any such court or
arbitrator or governmental agency or body (including, without
limitation, the FCC, the Federal Trade Commission (the "FTC") and the
Department of Justice (the "DOJ")) is required for the execution,
delivery and performance by the Company of each of the Transaction
Documents, the issuance, authentication, sale and delivery of the
Securities and compliance by the Company with the terms thereof and
the consummation of the transactions contemplated by the Transaction
Documents, except for such consents, approvals, authorizations,
filings, registrations or qualifications (i) which have been obtained
or made prior to the Closing Date, (ii) as may be required to be
obtained or made under the Securities Act and applicable state
securities laws as provided in the Registration Rights Agreement and
(iii) that from time to time, the Company or its Subsidiaries may be
required to obtain from or make with the FCC in the ordinary course of
business.
(m) The network affiliation agreements between each of
the broadcast television stations of the Company and CBS Inc. and
National Broadcasting Company, Inc., as applicable, have been duly
authorized, executed and delivered by the Company and constitute valid
and legally binding agreements of the respective parties thereto and
the description of such network affiliation agreements contained in
the Final Offering Memorandum is a fair and accurate summary thereof.
(n) (i) Xxxxxx Xxxxxxxx LLP are independent public
accountants with respect to the Company and its subsidiaries within
the meaning of Rule 101 of the Code of Professional Conduct of the
American Institute of Certified Public Accountants ("AICPA") and its
interpretations and rulings thereunder and (ii) the financial
statements (including the related notes) contained in the Offering
Memorandum have been prepared in conformity with generally accepted
accounting principles consistently applied throughout the periods
covered thereby and fairly present in all material respects the
financial condition and the results of operations of the entities
purported to be covered thereby for the respective periods indicated
except as otherwise disclosed therein. The financial information
contained in the Offering Memorandum under the headings
"Summary--Summary Historical and Pro Forma Combined Financial Data,"
"Capitalization," "Selected Historical Combined Financial
Information,"
- 6 -
7
"Management's Discussion and Analysis of Financial Condition and
Results of Operations" are derived from the accounting records of the
entities purported to be covered thereby and fairly present the
information purported to be shown thereby. The pro forma financial
information and statistical data contained in the Final Offering
Memorandum has been prepared on a basis consistent with the historical
financial statements contained in the Final Offering Memorandum and
the pro forma adjustments specified therein include all material
adjustments to the historical financial information required by Rule
11-02 of Regulation S-X under the Securities Act to fairly reflect the
transactions described in the Final Offering Memorandum, and utilizes
assumptions made on a reasonable basis to give effect to the
historical and proposed transactions described in the Final Offering
Memorandum.
(o) There are no legal or governmental proceedings
(including, without limitation, before or by the FCC, the FTC or the
DOJ) pending to which the Company or any of its subsidiaries is a
party or of which any property or assets of the Company or any of its
subsidiaries or affiliates is the subject which, singularly or in the
aggregate, if determined adversely to the Company or any of its
subsidiaries or affiliates, could reasonably be expected to have a
Material Adverse Effect; and to the best knowledge of the Company, no
such proceedings are threatened or contemplated by governmental
authorities or threatened by others.
(p) No injunction, restraining order or order of any nature
by any federal or state court of competent jurisdiction has been
issued with respect to the Company or any of its subsidiaries which
would prevent or suspend the issuance or sale of the Securities or the
use of the Preliminary Offering Memorandum or the Final Offering
Memorandum in any jurisdiction; no action, suit or proceeding is
pending against or, to the best knowledge of the Company, threatened
against or affecting the Company or any of its subsidiaries before any
court or arbitrator or any governmental agency, body or official,
domestic or foreign, which could reasonably be expected to interfere
with or adversely affect the issuance of the Securities or in any
manner draw into question the validity or enforceability of any of the
Transaction Documents or any action taken or to be taken pursuant
thereto.
(q) Neither the Company nor any of its subsidiaries is (i) in
violation of its charter or by-laws, (ii) in default in any material
respect, and no event has occurred which, with notice or lapse of time
or both, would constitute such a default, in the due performance or
observance of any term, covenant or condition contained in any
material indenture, mortgage, deed of trust, loan agreement or other
material agreement or instrument to which it is a party or by which it
is bound or to which any of its property or assets is subject or (iii)
in violation in any material respect of any applicable law, ordinance,
court decree, governmental rule or regulation (including, without
limitation, the Communications Act and the rules and regulations of
the FCC thereunder) to which it or its property or assets may be
subject.
- 7 -
8
(r) The Company and each of its subsidiaries possess all
material licenses, orders, certificates, authorizations, approvals and
permits issued by, and have made all declarations and filings with,
the appropriate federal, state or foreign regulatory agencies or
bodies (including, without limitation, the FCC, the FTC and the DOJ)
that are necessary or desirable for the ownership of their respective
properties or the conduct of their respective businesses as described
in the Final Offering Memorandum, except where the failure to possess
or make the same would not, singularly or in the aggregate, have a
Material Adverse Effect, and neither the Company nor any of its
subsidiaries has received notification of any revocation or
modification of any such license, certificate, authorization or permit
that is generally renewable in the ordinary course or has any reason
to believe that any such license, certificate, authorization or permit
will not be renewed in the ordinary course. The licenses issued with
respect to the Company's television broadcast stations by the FCC (the
"Licenses") are valid and in full force and effect with no
restrictions or qualifications (other than standard restrictions or
qualifications usually on similar licenses) that would, singly or in
the aggregate, have a Material Adverse Effect. No event has occurred
that permits, or with notice or lapse of time or both would permit,
and no legal governmental proceeding has been instituted or threatened
that could cause, the revocation or termination of any of the Licenses
or that might result in any other impairment or modification of the
rights of the Company or any subsidiary thereof that in any such case
would, singly or in the aggregate, have a Material Adverse Effect.
The Company has no reason to believe that any License issued by the
FCC will not be renewed in the ordinary course.
(s) Neither the Company nor any of its subsidiaries is (i) an
"investment company" within the meaning of the Investment Company Act
of 1940, as amended (the "Investment Company Act"), and the rules and
regulations thereunder.
(t) The Company and each of its subsidiaries maintain a
system of internal accounting controls sufficient to provide
reasonable assurance that (i) transactions are executed in accordance
with management's general or specific authorizations; (ii)
transactions are recorded as necessary to permit preparation of
financial statements in conformity with generally accepted accounting
principles and to maintain asset accountability; (iii) access to
assets is permitted only in accordance with management's general or
specific authorization; and (iv) the recorded accountability for
assets is compared with the existing assets at reasonable intervals
and appropriate action is taken with respect to any differences.
(u) The Company and each of its subsidiaries have insurance
covering their respective properties, operations, personnel and
businesses, which insurance is in amounts and insures against such
losses and risks as are in the Company's opinion adequate to protect
the Company and its subsidiaries and their respective businesses.
Neither the Company nor any of its subsidiaries has received notice
from any insurer
- 8 -
9
or agent of such insurer that capital improvements or other
expenditures are required or necessary to be made in order to continue
such insurance.
(v) The Company and each of its subsidiaries own or possess
adequate rights to use all material patents, patent applications,
trademarks, service marks, trade names, trademark registrations,
service xxxx registrations, copyrights, licenses and know-how
(including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures)
necessary for the conduct of their respective businesses; and the
conduct of their respective businesses does not conflict in any
material respect with, and the Company and its subsidiaries have not
received any notice of any claim of conflict with, any such rights of
others.
(w) The Company and each of its subsidiaries have good and
marketable title in fee simple to, or have valid rights to lease or
otherwise use, all items of real and personal property which are
material to the business of the Company and its subsidiaries, taken as
a whole, in each case free and clear of all liens, encumbrances and
defects other than (i) liens and encumbrances to be granted pursuant
to the Credit Agreement and (ii) liens, encumbrances and defects that
do not materially interfere with the use made and proposed to be made
of such property by the Company and its subsidiaries or could not
reasonably be expected to have a Material Adverse Effect.
(x) No labor disturbance by or dispute with the employees
of the Company or any of its subsidiaries exists or, to the best
knowledge of the Company, is imminent, which could reasonably be
expected to have a Material Adverse Effect.
(y) There has been no storage, generation, transportation,
handling, treatment, disposal, discharge, emission or other release or
threatened release of any kind of toxic or other wastes or other
hazardous substances by, due to or caused by the Company or any of its
subsidiaries (or, to the best knowledge of the Company, any other
entity (including any predecessor) for whose acts or omissions the
Company or any of its subsidiaries is or could reasonably be expected
to be liable) upon any property now or previously owned or leased by
the Company or any of its subsidiaries, or upon any other property, in
violation of any statute or any ordinance, rule, regulation, order,
judgment, decree or permit or which would, under any statute or any
ordinance, rule (including rule of common law), regulation, order,
judgment, decree or permit, give rise to any liability except for any
violation or liability which would not have, singularly or in the
aggregate with all such violations and liabilities, a Material Adverse
Effect; and there has been no disposal, discharge, emission or other
release of any kind onto such property or into the environment
surrounding such property of any toxic or other wastes or other
hazardous substances with respect to which the Company has knowledge,
except for any such disposal, discharge, emission or other release of
any kind which would not have, singularly or in the aggregate with all
such disposal, discharge, emission and other release, a Material
Adverse Effect.
- 9 -
10
(z) On the Closing Date, the Company and its subsidiaries,
taken as a whole, (after giving effect to the issuance of the
Securities as described in the Final Offering Memorandum) will be
Solvent. As used in this paragraph, the term "Solvent" means, with
respect to a particular date, that on such date (i) the aggregate fair
value (or present fair saleable value) of the assets of the Company
and its subsidiaries, taken as a whole, is not less than their total
existing debts and liabilities (including contingent liabilities) as
they become absolute and matured in the normal course of business and
(ii) the Company and its subsidiaries, taken as a whole, do not have
an unreasonably small amount of capital with which to conduct their
businesses. In computing the amount of such contingent liabilities at
any time, it is intended that such liabilities will be computed at the
amount that, in the light of all the facts and circumstances existing
at such time, represents the amount that can reasonably be expected to
become an actual or matured liability.
(aa) Except as described in the Final Offering Memorandum,
there are no outstanding subscriptions, rights, warrants, calls or
options to acquire, or instruments convertible into or exchangeable
for, or agreements or understandings with respect to the sale or
issuance of, any shares of capital stock of or other equity or other
ownership interest in the Company.
(bb) No holder of securities of the Company or any of its
subsidiaries will be entitled to have such securities registered under
the registration statements required to be filed by the Company
pursuant to the Registration Rights Agreement, other than as expressly
permitted thereby.
(cc) The statistical and market-related data included in the
Final Offering Memorandum are based on or derived from sources which
the Company believes to be reliable and accurate.
(dd) None of the proceeds of the sale of the Securities will
be used, directly or indirectly, for the purpose of purchasing or
carrying any margin security, for the purpose of reducing or retiring
any indebtedness which was originally incurred to purchase or carry
any margin security or for any other purpose which might cause any of
the Securities to be considered a "purpose credit" within the meanings
of Regulation G, T, U or X of the Board of Governors of the Federal
Reserve System.
(ee) Neither the Company nor any Affiliate (as defined in
Rule 501(b) of Regulation D under the Securities Act ("Regulation D"))
has directly, or through any agent (provided that no representation is
made as to the Initial Purchasers or any Person acting on their
behalf) (i) sold, offered for sale, solicited offers to buy or
otherwise negotiated in respect of, any "security" (as defined in the
Securities Act) which is or will be integrated with the sale of the
Securities in a manner that would require the registration under the
Securities Act of the Securities or (ii) engaged in
- 10 -
11
any form of general solicitation or general advertising (as those
terms are used in Regulation D) in connection with the offering of the
Securities.
(ff) When the Securities are delivered pursuant to this
Agreement, none of the Securities will be of the same class (within
the meaning of Rule 144A under the Securities Act) as securities of
the Company or any subsidiary of the Company that are listed on a
national securities exchange registered under Section 6 of the
Exchange Act or that are quoted in a United States automated
inter-dealer quotation system.
(gg) None of the Company, any of its subsidiaries, any of
their respective Affiliates (as defined in Rule 501(b) of Regulation
D) or any person acting on any of their behalf (other than the Initial
Purchasers) has engaged in any directed selling efforts (as that term
is defined in Regulation S under the Securities Act ("Regulation S"))
with respect to the Securities; the Company and its Affiliates and any
person acting on any of its behalf (other than the Initial Purchasers)
have complied with the offering restrictions requirement of Regulation
S.
(hh) The Company is in compliance with all provisions of
Section 517.075 of Florida Statutes, as amended, relating to issuers
doing business with the government of Cuba.
(ii) Since the date as of which information is given in the
Final Offering Memorandum, except as otherwise stated therein, (i)
there has been no material adverse change or any development involving
a prospective material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs, management or
business prospects of the Company, whether or not arising in the
ordinary course of business, (ii) neither the Company nor any of its
subsidiaries has incurred any liability or obligation, direct or
contingent, other than in the ordinary course of business, which
would, singly or in the aggregate, have a Material Adverse Effect,
(iii) neither the Company nor any of its subsidiaries has entered into
any material transaction other than in the ordinary course of business
and (iv) there has not been any change in the capital stock or
long-term debt of the Company, or any dividend or distribution of any
kind declared, paid or made by the Company on any class of its capital
stock.
2. Purchase and Resale of the Securities. (a) On the basis
of the representations, warranties and agreements contained herein, and subject
to the terms and conditions set forth herein, the Company agrees to issue and
sell to each of the Initial Purchasers, severally and not jointly, and each of
the Initial Purchasers, severally and not jointly, agrees to purchase from the
Company, the principal amount of Securities set forth opposite the name of such
Initial Purchaser on Schedule 1 hereto at a purchase price equal to 97.0% of
the principal amount thereof. The Company shall not be obligated to deliver any
of the Securities except upon payment for all of the Securities to be purchased
as provided herein.
- 11 -
12
(b) The Initial Purchasers have advised the Company that they
propose to offer the Securities for resale upon the terms and subject to the
conditions set forth herein and in the Final Offering Memorandum. Each Initial
Purchaser, severally and not jointly, represents and warrants to, and agrees
with, the Company that (i) it is purchasing the Securities pursuant to a
private sale exempt from registration under the Securities Act, (ii) it has not
solicited offers for, or offered or sold, and will not solicit offers for, or
offer or sell, the Securities by means of any form of general solicitation or
general advertising within the meaning of Rule 502(c) of Regulation D or in any
manner involving a public offering within the meaning of Section 4(2) of the
Securities Act and (iii) it has solicited and will solicit offers for the
Securities only from, and has offered or sold and will offer, sell or deliver
the Securities, as part of its initial offering, only to (A) persons whom it
reasonably believes to be qualified institutional buyers ("Qualified
Institutional Buyers") as defined in Rule 144A under the Securities Act as such
rule may be amended from time to time ("Rule 144A"), or if any such person is
buying for one or more institutional accounts for which such person is acting
as fiduciary or agent, only when such person has represented to it that each
such account is a Qualified Institutional Buyer to whom notice has been given
that such sale or delivery is being made in reliance on Rule 144A and in each
case, in transactions in accordance with Rule 144A or (B) a limited number of
other accredited investors ("Accredited Investors") as defined in Rule
501(a)(1), (2), (3) or (7) under Regulation D that are institutional investors
in private sales exempt from registration under the Securities Act. Each
Initial Purchaser, severally and not jointly, agrees that, prior to or
simultaneously with the confirmation of sale by such Initial Purchaser to any
purchaser of any of the Securities purchased by such Initial Purchaser from the
Company pursuant hereto, such Initial Purchaser shall furnish to that purchaser
a copy of the Final Offering Memorandum (and any amendment or supplement
thereto that the Company shall have furnished to such Initial Purchaser prior
to the date of such confirmation of sale). In addition to the foregoing, each
Initial Purchaser acknowledges and agrees that the Company and, for purposes of
the opinions to be delivered to the Initial Purchasers pursuant to Sections
5(d) and (f), counsel for the Company and for the Initial Purchasers,
respectively, may rely upon the accuracy of the representations and warranties
of the Initial Purchasers and their compliance with their agreements contained
in this Section 2, and each Initial Purchaser hereby consents to such reliance.
3. Delivery of and Payment for the Securities. (a) Delivery
of and payment for the Securities shall be made at the offices of Xxxxxx Xxxxxx
& Xxxxxxx, New York, New York, or at such other place as shall be agreed upon
by the Initial Purchasers and the Company, at 10:00 A.M., New York City time,
on March 25, or at such other time or date, not later than seven full business
days thereafter, as shall be agreed upon by the Initial Purchasers and the
Company (such date and time of payment and delivery being referred to herein as
the "Closing Date").
(b) On the Closing Date, payment of the purchase price for
the Securities shall be made to the Company by wire or book-entry transfer of
same-day funds to such account or accounts as the Company shall specify prior
to the Closing Date or by such other
- 12 -
13
means as the parties hereto shall agree prior to the Closing Date against
delivery to the Initial Purchasers of the certificates evidencing the
Securities. Time shall be of the essence, and delivery at the time and place
specified pursuant to this Agreement is a further condition of the obligations
of the Initial Purchasers hereunder. Upon delivery, the Securities shall be in
global form, registered in such names and in such denominations as CSI on
behalf of the Initial Purchasers shall have requested in writing not less than
two full business days prior to the Closing Date. The Company agrees to make
one or more global certificates evidencing the Securities available for
inspection by CSI on behalf of the Initial Purchasers in New York, New York at
least 24 hours prior to the Closing Date.
4. Further Agreements of the Company. The Company agrees
with each of the several Initial Purchasers:
(a) to advise the Initial Purchasers promptly and, if
requested, confirm such advice in writing, of the happening of any
event which makes any statement of a material fact made in the Final
Offering Memorandum untrue or which requires the making of any
additions to or changes in the Final Offering Memorandum (as amended
or supplemented from time to time) in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; to advise the Initial Purchasers promptly of any order
preventing or suspending the use of the Preliminary Offering
Memorandum or the Final Offering Memorandum, of any suspension of the
qualification of the Securities for offering or sale in any
jurisdiction and of the initiation or threatening of any proceeding
for any such purpose; and to use its reasonable best efforts to
prevent the issuance of any such order preventing or suspending the
use of the Preliminary Offering Memorandum or the Final Offering
Memorandum or suspending any such qualification and, if any such
suspension is issued, to obtain the lifting thereof at the earliest
possible time;
(b) to furnish to each of the Initial Purchasers, without
charge, as many copies of the Preliminary Offering Memorandum and the
Final Offering Memorandum (and any amendments or supplements thereto)
as may be reasonably requested;
(c) prior to making any amendment or supplement to the Final
Offering Memorandum, to furnish a copy thereof to each of the Initial
Purchasers and counsel for the Initial Purchasers and not to effect
any such amendment or supplement to which the Initial Purchasers shall
reasonably object by notice to the Company after a reasonable period
to review, which shall not be in any case longer than five business
days after receipt of such copy;
(d) if, at any time prior to completion of the resale of the
Securities by the Initial Purchasers, any event shall occur or
condition exist as a result of which it is necessary, in the opinion
of counsel for the Initial Purchasers or counsel for the Company, to
amend or supplement the Final Offering Memorandum in order that the
Final Offering Memorandum will not include an untrue statement of a
material fact or
- 13 -
14
omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances existing at the
time it is delivered to a purchaser, not misleading, or if it is
necessary to amend or supplement the Final Offering Memorandum to
comply with applicable law, to promptly prepare such amendment or
supplement as may be necessary to correct such untrue statement or
omission so that the Final Offering Memorandum, as so amended or
supplemented, will comply with applicable law;
(e) for so long as the Securities are outstanding and are
"restricted securities" within the meaning of Rule 144(a)(3) under the
Securities Act, to furnish to holders of the Securities and
prospective purchasers of the Securities designated by such holders,
upon request of such holders or such prospective purchasers, the
information required to be delivered pursuant to Rule 144A(d)(4) under
the Securities Act, unless the Company is then subject to and in
compliance with Section 13 or 15(d) of the Exchange Act;
(f) for a period of five years following the Closing Date, to
furnish to the Initial Purchasers copies of any annual reports,
quarterly reports and current reports filed by the Company with the
Commission on Forms 10-K, 10-Q and 8-K, or such other similar forms as
may be designated by the Commission, and such other documents, reports
and information as shall be furnished by the Company to the Trustee or
to the holders of the Securities pursuant to the Indenture;
(g) to use their reasonable best efforts to qualify the
Securities for sale under the state securities or Blue Sky laws of
such jurisdictions as the Initial Purchasers may reasonably designate
and to continue such qualifications in effect for so long as required
for the distribution of the Securities; provided, however, that the
Company and its subsidiaries shall not be obligated to qualify as
foreign corporations or to file a general consent to service of
process in any jurisdiction;
(h) to use their reasonable best efforts to assist the
Initial Purchasers in arranging for the Securities to be designated
Private Offerings, Resales and Trading through Automated Linkages
("PORTAL") Market securities in accordance with the rules and
regulations adopted by the National Association of Securities Dealers,
Inc. ("NASD") relating to trading in the PORTAL Market and for the
Securities to be eligible for clearance and settlement through the
Depository Trust Company ("DTC");
(i) not to, and to cause its affiliates not to, sell, offer
for sale or solicit offers to buy or otherwise negotiate in respect of
any security (as such term is defined in the Securities Act) which
could be integrated with the sale of the Securities in a manner which
would require registration of the Securities under the Securities Act;
(j) except following the effectiveness of the Exchange Offer
Registration Statement or the Shelf Registration Statement, as the
case may be, not to, and to
- 14 -
15
cause its affiliates as such term is defined in Rule 501(B) of
Regulation D not to, and not to authorize or knowingly permit any
person acting on their behalf to, solicit any offer to buy or offer to
sell the Securities by means of any form of general solicitation or
general advertising within the meaning of Regulation D or in any
manner involving a public offering within the meaning of Section 4(2)
of the Securities Act; and not to offer, sell, contract to sell or
otherwise dispose of, directly or indirectly, any securities under
circumstances where such offer, sale, contract or disposition would
cause the exemption afforded by Section 4(2) of the Securities Act to
cease to be applicable to the offering and sale of the Securities as
contemplated by this Agreement and the Final Offering Memorandum;
(k) for a period of 90 days from the date of the Final
Offering Memorandum, not to offer for sale, sell, contract to sell or
otherwise dispose of, directly or indirectly, or file a registration
statement (except as required by the Registration Rights Agreement)
for, or announce any offer, sale, contract for sale of or other
disposition of any debt securities issued or guaranteed by the Company
or any of its subsidiaries (other than the Securities or the Exchange
Securities) without the prior written consent of the Initial
Purchasers;
(l) in connection with the Offering, until CSI on behalf of
the Initial Purchasers shall have notified the Company of the
completion of the resale of the Securities, neither the Company nor
any of its affiliated purchasers (as defined in Rule 10b-6 under the
Exchange Act), either alone or with one or more other persons, will
bid for or purchase, for any account in which it or any of its
affiliated purchasers has a beneficial interest, any Securities, or
attempt to induce any person to purchase any Securities; and neither
it nor any of its affiliated purchasers will make bids or purchase for
the purpose of creating actual, or apparent, active trading in or of
raising the price of the Securities;
(m) to not take any action prior to the Closing Date which
would require the Final Offering Memorandum to be amended or
supplemented pursuant to Section 4(d);
(n) to apply the net proceeds from the sale of the Securities
as set forth in the Final Offering Memorandum under the heading "Use
of Proceeds".
5. Conditions of Initial Purchasers' Obligations. The
respective obligations of the several Initial Purchasers hereunder are subject
to the accuracy, on and as of the date hereof and the Closing Date, of the
representations and warranties of the Company contained herein, to the accuracy
of the statements of the Company and its officers made in any certificates
delivered pursuant hereto, to the performance by the Company of its obligations
hereunder, and to each of the following additional terms and conditions:
- 15 -
16
(a) The Final Offering Memorandum (and any amendments or
supplements thereto) shall have been printed and copies distributed to
the Initial Purchasers as promptly as practicable on or following the
date of this Agreement or at such other date and time as to which the
Initial Purchasers may agree; and no stop order suspending the sale of
the Securities in any jurisdiction shall have been issued and no
proceeding for that purpose shall have been commenced or shall be
pending or threatened.
(b) None of the Initial Purchasers shall have discovered and
disclosed to the Company on or prior to the Closing Date that the
Final Offering Memorandum or any amendment or supplement thereto
contains an untrue statement of a fact which is material or omits to
state any fact which, in the opinion of such counsel, is material and
is necessary to make the statements therein not misleading.
(c) All corporate proceedings and other legal matters
incident to the authorization, form and validity of each of the
Transaction Documents and the Final Offering Memorandum, and all other
legal matters relating to the Transaction Documents and the
transactions contemplated thereby, shall be reasonably satisfactory in
all material respects to the Initial Purchasers, and the Company shall
have furnished to the Initial Purchasers all documents and information
that they or their counsel may reasonably request to enable them to
pass upon such matters.
(d) Weil, Gotshal & Xxxxxx shall have furnished to the
Initial Purchasers their written opinion, as counsel for the Company,
addressed to the Initial Purchasers and dated the Closing Date,
substantially to the effect set forth in Annex B hereto.
(e) Each of Xxxxxx Xxxxxxx Xxxxxx Leader & Xxxxxxxx L.L.P.
and Xxxxx and Xxxxxxx L.L.P. shall have furnished to the Initial
Purchasers their respective written opinions, as FCC counsel for the
Company and Xxxxx Acquisition Company, respectively, addressed to the
Initial Purchasers and dated the Closing Date, substantially to the
effect set forth in Annex C hereto.
(f) The Initial Purchasers shall have received from Xxxxxx
Xxxxxx & Xxxxxxx, counsel for the Initial Purchasers, such opinion or
opinions, dated the Closing Date, with respect to such matters as the
Initial Purchasers may reasonably require, and the Company shall have
furnished to such counsel such documents and information as they
reasonably request for the purpose of enabling them to pass upon such
matters.
(g) With respect to the letter (the "Initial Letter") of
Xxxxxx Xxxxxxxx LLP delivered to the Initial Purchasers concurrently
with the execution of this Agreement (which letter shall be in form
and substance satisfactory to the Initial Purchasers and counsel for
the Initial Purchasers), the Company shall have caused Xxxxxx Xxxxxxxx
LLP to furnish to the Initial Purchasers a letter (the "Bring-Down
Letter") addressed to the Initial Purchasers and dated the Closing
Date (i) confirming that they are
- 16 -
17
independent public accountants with respect to the Company and its
subsidiaries within the meaning of Rule 101 of the Code of
Professional Conduct of the AICPA and its interpretations and rulings
thereunder, (ii) stating, as of the date of the Bring-Down Letter (or,
with respect to matters involving changes or developments since the
respective dates as of which specified financial information is given
in the Final Offering Memorandum, as of a date not more than three
business days prior to the date of the Bring-Down Letter), that the
conclusions and findings of such accountants with respect to the
financial information and other matters covered by the Initial Letter
are accurate and (iii) confirming in all material respects the
conclusions and findings set forth in the Initial Letter.
(h) The Company shall have furnished to the Initial
Purchasers a certificate, dated the Closing Date, of a senior
executive officer in his capacity as an officer of the Company and not
as an individual stating that (A) such officer has carefully examined
the Final Offering Memorandum, (B) in his opinion, the Final Offering
Memorandum, as of its date, did not include any untrue statement of a
material fact and did not omit to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and since
the date of the Final Offering Memorandum, no event has occurred which
should have been set forth in a supplement or amendment to the Final
Offering Memorandum so that the Final Offering Memorandum (as so
amended or supplemented) would not include any untrue statement of a
material fact and would not omit to state a material fact required to
be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading and (C) to the best of his knowledge, as of the Closing
Date, the representations and warranties of the Company in this
Agreement are true and correct in all material respects, the Company
has complied in all material respects with all agreements and
satisfied in all material respects all conditions on its part to be
performed or satisfied hereunder on or prior to the Closing Date in
all material respects, and subsequent to the date of the most recent
financial statements contained in the Final Offering Memorandum, there
has been no material adverse change in the financial position or
results of operations of the Company or any of its subsidiaries, or
any material change, or any material development including a
prospective material change, in or affecting the condition (financial
or otherwise), results of operations, business or prospects of the
Company and its subsidiaries taken as a whole, except as set forth in
the Final Offering Memorandum.
(i) The Initial Purchasers shall have received on the date
hereof a counterpart of the Registration Rights Agreement which shall
have been executed and delivered by a duly authorized officer of the
Company.
(j) The Indenture shall have been duly executed and delivered
by the Company and the Trustee, and the Securities shall have been
duly executed and delivered by the Company and duly authenticated by
the Trustee.
- 17 -
18
(k) If any event shall have occurred that requires the
Company under Section 4(d) to prepare an amendment or supplement to
the Final Offering Memorandum, such amendment or supplement shall have
been prepared, the Initial Purchasers shall have been given a
reasonable opportunity to comment thereon, and copies thereof shall
have been delivered to the Initial Purchasers reasonably in advance of
the Closing Date.
(l) There shall not have occurred any invalidation of Rule
144A under the Securities Act by any court or any withdrawal or
proposed withdrawal of any rule or regulation under the Securities Act
or the Exchange Act by the Commission or any amendment or proposed
amendment thereof by the Commission which in the reasonable judgment
of the Initial Purchasers would materially impair the ability of the
Initial Purchasers to purchase, hold or effect resales of the
Securities as contemplated hereby.
(m) Other than as contemplated by the Transactions or the
Final Offering Memorandum, since the dates as of which information is
given in the Final Offering Memorandum, there shall not have been any
change in the capital stock or long-term debt or any change, or any
development involving a prospective change, in or affecting the
condition (financial or otherwise), results of operations, business or
prospects of the Company and its subsidiaries taken as a whole, the
effect of which, in any such case described above, is, in the judgment
of CSI, so material and adverse as to make it impracticable or
inadvisable to proceed with the sale or delivery of the Securities on
the terms and in the manner contemplated in the Final Offering
Memorandum (exclusive of any amendment or supplement thereto).
(n) No action shall have been taken and no statute, rule,
regulation or order shall have been enacted, adopted or issued by any
governmental agency or body which would, as of the Closing Date,
prevent the issuance or sale of the Securities; and no injunction,
restraining order or order of any other nature by any federal or state
court of competent jurisdiction shall have been issued as of the
Closing Date which would prevent the issuance, sale or resale of the
Securities.
(o) Subsequent to the execution and delivery of this
Agreement (i) no downgrading shall have occurred in the rating
accorded the Securities or any of the Company's other debt securities
or preferred stock by any "nationally recognized statistical rating
organization," as such term is defined by the Commission for purposes
of Rule 436(g)(2) of the rules and regulations of the Commission under
the Securities Act and (ii) no such organization shall have publicly
announced that it has under surveillance or review (other than an
announcement with positive implications of a possible upgrading), its
rating of the Securities or any of the Company's other debt securities
or preferred stock.
- 18 -
19
(p) Subsequent to the execution and delivery of this
Agreement there shall not have occurred any of the following: (i)
trading in securities generally on the New York Stock Exchange, the
American Stock Exchange or the over-the-counter market shall have been
suspended or limited, or minimum prices shall have been established on
any such exchange or market by the Commission, by any such exchange or
by any other regulatory body or governmental authority having
jurisdiction, or trading in any securities of the Company on any
exchange or in the over-the-counter market shall have been suspended
or (ii) a general moratorium on commercial banking activities shall
have been declared by federal or New York state authorities or (iii)
an outbreak or escalation of hostilities or a declaration by the
United States of a national emergency or war or (iv) a material
adverse change in general economic, political or financial conditions
(or the effect of international conditions on the financial markets in
the United States shall be such) the effect of which, in the case of
this clause (iv), is, in the judgment of CSI, so material and adverse
as to make it impracticable or inadvisable to proceed with the sale or
the delivery of the Securities on the terms and in the manner
contemplated by this Agreement and in the Final Offering Memorandum
(exclusive of any amendment or supplement thereto).
All opinions, letters, evidence and certificates mentioned
above or elsewhere in this Agreement shall be deemed to be in compliance with
the provisions hereof only if they are in form and substance reasonably
satisfactory to counsel for the Initial Purchasers.
6. Termination. The obligations of the Initial Purchasers
hereunder may be terminated by the Initial Purchasers, in their absolute
discretion, by notice given to and received by the Company prior to delivery of
and payment for the Securities if, prior to that time, any of the events
described in Section 5(p) shall have occurred and be continuing.
7. Defaulting Initial Purchasers. (a) If, on the Closing
Date, any Initial Purchaser defaults in the performance of its obligations
under this Agreement, the non-defaulting Initial Purchasers may make
arrangements for the purchase of the Securities which such defaulting Purchaser
agreed but failed to purchase by other persons satisfactory to the Company and
the non-defaulting Initial Purchasers, but if no such arrangements are made
within 36 hours after such default, this Agreement shall terminate without
liability on the part of the non-defaulting Initial Purchasers or the Company,
except that the Company will continue to be liable for the payment of expenses
to the extent set forth in Sections 8 and 12 and except that the provisions of
Sections 9, 10, 14 and 16 shall not terminate and shall remain in effect. As
used in this Agreement, the term "Initial Purchasers" includes, for all
purposes of this Agreement unless the context otherwise requires, any party not
listed in Schedule 1 hereto that, pursuant to this Section 7, purchases
Securities which a defaulting Initial Purchaser agreed but failed to purchase.
(b) Nothing contained herein shall relieve a defaulting
Initial Purchaser of any liability it may have to the Company or any
non-defaulting Initial Purchaser for damages caused by its default. If other
persons agree to purchase the Securities of a defaulting Initial
- 19 -
20
Purchaser, either the non-defaulting Initial Purchasers or the Company may
postpone the Closing Date for up to seven full business days in order to effect
any changes that in the reasonable opinion of counsel for the Company or
counsel for the Initial Purchasers may be necessary in the Offering Memorandum
or in any other document or arrangement, and the Company agrees to reasonably
promptly prepare any amendment or supplement to the Final Offering Memorandum
that effects any such changes.
8. Reimbursement of Initial Purchasers' Expenses. If (a)
this Agreement shall have been terminated pursuant to Section 6, (b) the
Company shall fail to tender the Securities for delivery to the Initial
Purchasers for any reason permitted under this Agreement or (c) the Initial
Purchasers shall decline to purchase the Securities for any reason permitted
under this Agreement, the Company shall reimburse the Initial Purchasers for
such reasonable out-of-pocket expenses (including reasonable fees and
disbursements of counsel) as shall have been reasonably incurred by the Initial
Purchasers in connection with this Agreement and the proposed purchase of the
Securities. If this Agreement is terminated pursuant to Section 7 by reason of
the default of one or more of the Initial Purchasers, the Company shall not be
obligated to reimburse any such defaulting Initial Purchaser on account of such
expenses.
9. Indemnification. (a) The Company shall indemnify and
hold harmless each Initial Purchaser, its affiliates, their respective
officers, directors, employees, representatives and agents, and each person, if
any, who controls any Initial Purchaser within the meaning of the Securities
Act or the Exchange Act (collectively referred to for purposes of this Section
9(a) and Section 10 as an Initial Purchaser), from and against any loss, claim,
damage or liability, joint or several, or any action in respect thereof
(including, without limitation, any loss, claim, damage, liability or action
relating to purchases and sales of the Securities), to which that Initial
Purchaser may become subject, whether commenced or threatened, under the
Securities Act, the Exchange Act, any other federal or state statutory law or
regulation, at common law or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, (i) any untrue statement
or alleged untrue statement of a material fact contained in the Preliminary
Offering Memorandum or the Final Offering Memorandum or in any amendment or
supplement thereto or in any information provided by the Company pursuant to
Section 4(e) or (ii) the omission or alleged omission to state therein a
material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading, and shall
reimburse each Initial Purchaser promptly upon demand for any legal or other
expenses reasonably incurred by that Initial Purchaser in connection with
investigating or defending or preparing to defend against or appearing as a
third party witness in connection with any such loss, claim, damage, liability
or action as such expenses are incurred; provided, however, that the Company
shall not be liable in any such case to the extent that any such loss, claim,
damage, liability or action arises out of, or is based upon, an untrue
statement or alleged untrue statement in or omission or alleged omission from
any of such documents in reliance upon and in conformity with any Initial
Purchasers' Information; and provided, further, however, that with respect to
any such untrue statement in or omission from the Preliminary Offering
Memorandum, the
- 20 -
21
indemnity agreement contained in this Section 9(a) shall not inure to the
benefit of any such Initial Purchaser to the extent that such sale to the
person asserting any such loss, claim, damage, liability or action was an
initial resale by such Initial Purchaser and any such loss, claim, damage,
liability or action of or with respect to such Initial Purchaser results from
the fact that both (A) a copy of the Final Offering Memorandum was not sent or
given to such person at or prior to the written confirmation of the sale of
such Securities to such person and (B) the untrue statement in or omission from
the Preliminary Offering Memorandum was corrected in the Final Offering
Memorandum unless, in either case, such failure to deliver the Final Offering
Memorandum was a result of non-compliance by the Company with Section 4(b).
(b) Each Initial Purchaser, severally and not jointly, shall
indemnify and hold harmless the Company, its affiliates, their respective
officers, directors, employees, representatives and agents, and each person, if
any, who controls the Company within the meaning of the Securities Act or the
Exchange Act (collectively referred to for purposes of this Section 9(b) and
Section 10 as the Company), from and against any loss, claim, damage or
liability, joint or several, or any action in respect thereof, to which the
Company may become subject, whether commenced or threatened, under the
Securities Act, the Exchange Act, any other federal or state statutory law or
regulation, at common law or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, (i) any untrue statement
or alleged untrue statement of a material fact contained in the Preliminary
Offering Memorandum or the Final Offering Memorandum or in any amendment or
supplement thereto or (ii) the omission or alleged omission to state therein a
material fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, but in each case only to the extent that the untrue
statement or alleged untrue statement or omission or alleged omission was made
in reliance upon and in conformity with Initial Purchasers' Information, and
shall reimburse the Company for any legal or other expenses reasonably incurred
by the Company in connection with investigating or defending or preparing to
defend against or appearing as a third party witness in connection with any
such loss, claim, damage, liability or action as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under this
Section 9 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against
the indemnifying party pursuant to Section 9(a) or 9(b), notify the
indemnifying party in writing of the claim or the commencement of that action;
provided, however, that the failure to notify the indemnifying party shall not
relieve it from any liability which it may have under this Section 9 except to
the extent that it has been materially prejudiced (through the forfeiture of
substantive rights or defenses) by such failure; and, provided, further,
however, that the failure to notify the indemnifying party shall not relieve it
from any liability which it may have to an indemnified party otherwise than
under this Section 9. If any such claim or action shall be brought against an
indemnified party, and it shall notify the indemnifying party thereof, the
indemnifying party shall be entitled to participate therein and, to the extent
that it wishes, jointly with any other
- 21 -
22
similarly notified indemnifying party, to assume the defense thereof with
counsel reasonably satisfactory to the indemnified party. After notice from
the indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 9 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, that
an indemnified party shall have the right to employ its own counsel in any such
action, but the fees, expenses and other charges of such counsel for the
indemnified party will be at the expense of such indemnified party unless (1)
the employment of counsel by the indemnified party has been authorized in
writing by the indemnifying party, (2) a conflict or potential conflict exists
(based upon advice of counsel to the indemnified party) between the indemnified
party and the indemnifying party (in which case the indemnifying party will not
have the right to direct the defense of such action on behalf of the
indemnified party) or (3) the indemnifying party has not in fact employed
counsel reasonably satisfactory to the indemnified party to assume the defense
of such action within a reasonable time after receiving notice of the
commencement of the action, in each of which cases the reasonable fees,
disbursements and other charges of counsel will be at the expense of the
indemnifying party or parties. It is understood that the indemnifying party or
parties shall not, in connection with any proceeding or related proceedings in
the same jurisdiction, be liable for the reasonable fees, disbursements and
other charges of more than one separate firm of attorneys (in addition to any
local counsel) at any one time for all such indemnified party or parties. Each
indemnified party, as a condition of the indemnity agreements contained in
Sections 9(a) and 9(b), shall use all reasonable efforts to cooperate with the
indemnifying party in the defense of any such action or claim. No indemnifying
party shall be liable for any settlement of any such action effected without
its written consent (which consent shall not be unreasonably withheld), but if
settled with its written consent or if there be a final judgment for the
plaintiff in any such action, the indemnifying party agrees to indemnify and
hold harmless any indemnified party from and against any loss or liability by
reason of such settlement or judgment. No indemnifying party shall, without
the prior written consent of the indemnified party (which consent shall not be
unreasonably withheld), effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified party
unless such settlement (i) does not contain an admission of fault or wrongdoing
and (ii) includes an unconditional release of such indemnified party from all
liability on claims that are the subject matter of such proceeding.
The obligations of the Company and the Initial Purchasers in
this Section 9 and in Section 10 are in addition to any other liability that
the Company or the Initial Purchasers, as the case may be, may otherwise have.
10. Contribution. If the indemnification provided for in
Section 9 is unavailable or insufficient to hold harmless an indemnified party
under Section 9(a) or 9(b), then each indemnifying party shall, in lieu of
indemnifying such indemnified party, contribute to the amount paid or payable
by such indemnified party as a result of such loss,
- 22 -
23
claim, damage or liability, or action in respect thereof, (i) in such
proportion as shall be appropriate to reflect the relative benefits received by
the Company on the one hand and the Initial Purchasers on the other from the
offering of the Securities or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Company on the one hand and the Initial
Purchasers on the other with respect to the statements or omissions that
resulted in such loss, claim, damage or liability, or action in respect
thereof, as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and the Initial Purchasers on
the other with respect to such offering shall be deemed to be in the same
proportion as the total net proceeds from the offering of the Securities
purchased under this Agreement (before deducting expenses) received by or on
behalf of the Company, on the one hand, and the total discounts and commissions
received by the Initial Purchasers with respect to the Securities purchased
under this Agreement, on the other, bear to the total gross proceeds from the
sale of the Securities under this Agreement, in each case as set forth in the
table on the cover page of the Final Offering Memorandum. The relative fault
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to the Company or information supplied by the
Company on the one hand or to any Initial Purchasers' Information on the other,
the intent of the parties and their relative knowledge, access to information
and opportunity to correct or prevent such untrue statement or omission. The
Company and the Initial Purchasers agree that it would not be just and
equitable if contributions pursuant to this Section 10 were to be determined by
pro rata allocation (even if the Initial Purchasers were treated as one entity
for such purpose) or by any other method of allocation that does not take into
account the equitable considerations referred to herein. The amount paid or
payable by an indemnified party as a result of the loss, claim, damage or
liability, or action in respect thereof, referred to above in this Section 10
shall be deemed to include, for purposes of this Section 10, any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 10, no Initial Purchaser shall be required to
contribute any amount in excess of the amount by which the total discounts and
commissions received by such Initial Purchaser with respect to the Securities
purchased by it under this Agreement exceeds the amount of any damages which
such Initial Purchaser has otherwise paid or become liable to pay by reason of
any untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Initial
Purchasers' obligations to contribute as provided in this Section 10 are
several in proportion to their respective purchase obligations and not joint.
11. Persons Entitled to Benefit of Agreement. This Agreement
shall inure to the benefit of and be binding upon the Initial Purchasers, the
Company and their respective successors. This Agreement and the terms and
provisions hereof are for the sole benefit of only those persons, except as
provided in Sections 9 and 10 with respect to affiliates,
- 23 -
24
officers, directors, employees, representatives, agents and controlling persons
of the Company and the Initial Purchasers and in Section 4(e) with respect to
holders and prospective purchasers of the Securities. Nothing in this
Agreement is intended or shall be construed to give any person, other than the
persons referred to in this Section 11, any legal or equitable right, remedy or
claim under or in respect of this Agreement or any provision contained herein.
12. Expenses. The Company agrees with the Initial Purchasers
to pay (a) the costs incident to the authorization, issuance, sale, preparation
and delivery of the Securities and any taxes payable in that connection; (b)
the costs incident to the preparation, printing and distribution of the
Preliminary Offering Memorandum, the Final Offering Memorandum and any
amendments or supplements thereto; (c) the costs of reproducing and
distributing each of the Transaction Documents; (d) the costs incident to the
preparation, printing and delivery of the certificates evidencing the
Securities, including stamp duties and transfer taxes, if any, payable upon
issuance of the Securities; (e) the fees and expenses of the Company's counsel
and independent accountants; (f) the fees and expenses of qualifying the
Securities under the securities laws of the several jurisdictions as provided
in Section 4(h) and of preparing, printing and distributing Blue Sky Memoranda
(including related fees and expenses of counsel for the Initial Purchasers in
an amount up to $7,500); (g) any fees charged by rating agencies for rating the
Securities; (h) the fees and expenses of the Trustee and any paying agent
(including related fees and expenses of any counsel to such parties); (i) all
expenses and application fees incurred in connection with the application for
the inclusion of the Securities on the PORTAL Market and the approval of the
Securities for book-entry transfer by DTC; and (j) all other costs and expenses
incident to the performance of the obligations of the Company under this
Agreement which are not otherwise specifically provided for in this Section 12;
provided, however, that except as provided in this Section 12 and Section 8,
the Initial Purchasers shall pay their own costs and expenses (including the
costs and expenses of their counsel).
13. Survival. The respective indemnities, rights of
contribution, representations, warranties and agreements of the Company and the
Initial Purchasers contained in this Agreement or made by or on behalf of the
Company or the Initial Purchasers pursuant to this Agreement shall survive the
delivery of and payment for the Securities and shall remain in full force and
effect, regardless of any termination or cancellation of this Agreement or any
investigation made by or on behalf of any of them.
14. Notices, etc.. All statements, requests, notices and
agreements hereunder shall be in writing, and:
(a) if to the Initial Purchasers, shall be delivered or sent
by mail or telecopy transmission to Chase Securities Inc., 000 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx X. Xxxxx
(telecopier no.: (000) 000-0000); or
- 24 -
25
(b) if to the Company, shall be delivered or sent by mail or
telecopy transmission to the address of the Company at 0000 0xx Xxxxxx
Xxxxx, Xxxxx 000, Xx. Xxxxxxxxxx, Xxxxxxx 00000, Attention: Chief
Executive Officer (telecopier no.: (000) 000-0000) and to Xxxxxxxx X.
Xxxxxx Xx., Hicks, Muse, Xxxx & Xxxxx Incorporated, 000 Xxxxxxxx
Xxxxx, Xxxxx 0000, Xxxxxx, Xxxxx (telecopier no: (000) 000-0000);
provided, however, that any notice to an Initial Purchaser pursuant to Section
9(c) shall also be delivered or sent by mail to such Initial Purchaser at its
address set forth on the signature page hereof. Any such statements, requests,
notices or agreements shall take effect at the time of receipt thereof. The
Company shall be entitled to act and rely upon any request, consent, notice or
agreement given or made on behalf of the Initial Purchasers by CSI.
15. Definition of Terms. For purposes of this Agreement, (a)
the term "business day" means any day on which the New York Stock Exchange,
Inc. is open for trading, (b) the term "subsidiary" has the meaning set forth
in Rule 405 under the Securities Act and (c) except where otherwise expressly
provided, the term "affiliate" has the meaning set forth in Rule 405 under the
Securities Act.
16. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD
TO THE CONFLICTS OF LAW PROVISIONS THEREOF TO THE EXTENT THE APPLICATION OF THE
LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
18. Counterparts. This Agreement may be executed in one or
more counterparts (which may include counterparts delivered by telecopier) and,
if executed in more than one counterpart, the executed counterparts shall each
be deemed to be an original, but all such counterparts shall together
constitute one and the same instrument.
19. Amendments. No amendment or waiver of any provision of
this Agreement, nor any consent or approval to any departure therefrom, shall
in any event be effective unless the same shall be in writing and signed by the
parties hereto.
20. Headings. The headings herein are inserted for
convenience of reference only and are not intended to be part of, or to affect
the meaning or interpretation of, this Agreement.
[Remainder of Page Intentionally Left Blank]
- 25 -
26
If the foregoing is in accordance with your understanding of
our agreement, kindly sign and return to us a counterpart hereof, whereupon
this instrument will become a binding agreement between the Company and the
several Initial Purchasers in accordance with its terms.
Very truly yours,
STC BROADCASTING, INC.
By /s/ XXXXXX X. XXXXX
-----------------------------------
Name: Xxxxxx X. Xxxxx
Title: Chief Executive Officer
Accepted:
CHASE SECURITIES INC.
By /s/ XXXXXXX X. XXXXXX
------------------------------
Authorized Signatory
Address for notices pursuant to Section 9(c):
0 Xxxxx Xxxxx, 00xx xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Legal Department
NATIONSBANC CAPITAL MARKETS, INC.
By /s/ XXX X. XXXXXXXXXX
------------------------------
Authorized Signatory
Address for notices pursuant to Section 9(c):
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxx 00000
Attention: Legal Department
- 26 -
27
XXXXXXXX WERTHEIM & CO. INCORPORATED
By /s/ XXXXX X. XXXXX
---------------------------------
Authorized Signatory
Address for notices pursuant to Section 9(c):
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Legal Department
- 27 -
