EXHIBIT 10.230
PAXSON COMMUNICATIONS CORPORATION
$365,000,000
Senior Secured Floating Rate Notes Due 2010
Purchase Agreement
New York, New York
January 5, 2004
Citigroup Global Markets Inc.
Bear, Stearns & Co. Inc.
CIBC World Markets Corp.
As Representatives of the Initial
Purchasers
c/o Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
Ladies and Gentlemen:
Paxson Communications Corporation, a corporation organized
under the laws of Delaware (the "Company"),
proposes to issue and sell to the
several parties named in Schedule I hereto
(the "Initial Purchasers"), for whom
you (the "Representatives") are acting as
representatives, $365,000,000
principal amount of its Senior Secured
Floating Rate Notes Due 2010 (the
"Notes"). As described in the Final
Memorandum, the Company's obligations with
respect to a portion of the Notes will be
unconditionally guaranteed (the
"Guarantees" and together with the Notes,
the "Securities") on a senior secured
basis by each of the Company's direct and
indirect domestic subsidiaries set
forth on the signature page hereto (the
"Guarantors" and together with the
Company, the "Issuers"). The Securities are
to be issued under an indenture (the
"Indenture"), to be dated as of the Closing
Date (as defined below), among the
Issuers and The Bank of New York, as
trustee (the "Trustee"). Each Issuer's
obligations with respect to the Securities
and to the Trustee will have the
benefit of liens on the Collateral (as
defined in the Final Memorandum) owned by
such Issuer pursuant to a Pledge and
Security Agreement (the "Security
Agreement" and together with each other
agreement purporting to create a lien in
favor of the Collateral Agent (as defined
below) for the benefit of the holders
of Securities, the "Security Documents"),
to be dated as of the Closing Date, by
and among the Issuers and the Collateral
Agent in the form attached as Annex A.
The Company intends to apply a portion of
the net proceeds from the sale of the
Securities to the Initial Purchasers to
repay and terminate that certain Amended
and Restated Credit Agreement (as amended,
the "Credit Agreement"), dated as of
May 5, 2003, by and among the Company,
Citicorp USA, Inc. (the "Agent") and the
lenders named therein and to pre-fund or
repay certain letters of credit
outstanding under the Credit Agreement (the
"Refinancing"). The issuance and
sale of the Securities, the granting of the
security interests in favor of the
Collateral Agent under the Security
Documents and the Refinancing are sometimes
hereinafter collectively referred to as the
"Transactions." To the extent there
are
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no additional parties listed on Schedule I
other than you, the term
Representatives as used herein shall mean
you as the Initial Purchasers, and the
terms Representatives and Initial
Purchasers shall mean either the singular or
plural as the context requires. The use of
the neuter in this Agreement shall
include the feminine and masculine wherever
appropriate. Certain terms used
herein are defined in Section 18
hereof.
The sale of the Securities to the Initial Purchasers will be
made without registration of the Securities
under the Act in reliance upon
exemptions from the registration
requirements of the Act.
In connection with the sale of the Securities, the Company has
prepared a preliminary offering memorandum,
dated December 10, 2003 (as amended
or supplemented at the Execution Time, the
"Preliminary Memorandum"), and a
final offering memorandum, dated January 5,
2004 (as amended or supplemented to
the Closing Date, the "Final Memorandum").
Each of the Preliminary Memorandum
and the Final Memorandum sets forth certain
information concerning the Issuers
and the Securities. Each Issuer hereby
confirms that it has authorized the use
of the Preliminary Memorandum and the Final
Memorandum, and any amendment or
supplement thereto, in connection with the
offer and sale of the Securities by
the Initial Purchasers.
1. Representations and Warranties. The Issuers, jointly and
severally, represent and warrant to each
Initial Purchaser as set forth below in
this Section 1:
(a) The Preliminary Memorandum, at the date thereof, did not
contain any untrue
statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the
light of
the circumstances under which they were made, not misleading. At
the
Execution Time and on the Closing Date, the Final Memorandum did
not,
and will not (and any amendment or supplement thereto, at the
date
thereof and at the Closing Date, will not), contain any untrue
statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
provided,
however, that the Issuers make no representation or warranty as to
the
information contained in or omitted from the Preliminary Memorandum
or
the Final Memorandum, or any amendment or supplement thereto,
in
reliance upon and in conformity with information furnished in
writing
to the Company by or on behalf of the Initial Purchasers through
the
Representatives specifically for inclusion therein.
(b) None of the Issuers nor any of their Affiliates nor any
person acting on behalf of any of them has, directly or
indirectly,
made offers or sales of any security, or solicited offers to buy
any
security, under circumstances that would require the registration
of
the Securities under the Act.
(c) None of the Issuers nor any of their Affiliates nor any
person acting on behalf of any of them has engaged in any form
of
general solicitation or general advertising (within the meaning
of
Regulation D) in connection with any offer or sale of the
Securities in
the United States.
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(d) The Securities satisfy the eligibility requirements of
Rule 144A(d)(3) under the Act.
(e) None of the Issuers nor any of their Affiliates nor any
person acting on behalf of any of them has engaged in any
directed
selling efforts with respect to the Securities, and each of them
has
complied with the offering restrictions requirement of Regulation
S.
Terms used in
this paragraph have the meanings given to them by
Regulation S.
(f) The Company has been advised by the NASD's PORTAL Market
that the Securities have been designated PORTAL-eligible securities
in
accordance with
the rules and regulations of the NASD.
(g) No Issuer is, and after giving effect to the offering and
sale of the Securities and the application of the proceeds thereof
as
described in the Final Memorandum, no Issuer will be, an
"investment
company" within the meaning of the Investment Company Act,
without
taking account of any exemption arising out of the number of
holders of
the Company's securities.
(h) The Company is subject to and in full compliance with the
reporting requirements of Section 13 or Section 15(d) of the
Exchange
Act.
(i) No Issuer has paid or agreed to pay to any person any
compensation for soliciting another to purchase any Securities
(except
as contemplated by this Agreement).
(j) No Issuer has taken, directly or indirectly, any action
designed to cause or which has constituted or which might
reasonably be
expected to cause or result, under the Exchange Act or otherwise,
in
the stabilization or manipulation of the price of any security of
the
Company to facilitate the sale or resale of the Securities.
(k) Each of the Issuers has been duly incorporated or
organized and is validly existing as a corporation, limited
liability
company or limited partnership in good standing under the laws of
the
jurisdiction in which it is chartered or organized with full
corporate,
limited liability company or partnership power and authority to own
or
lease, as the case may be, and to operate its properties and
conduct
its business as described in the Final Memorandum, and is duly
qualified to do business as a foreign corporation, limited
liability
company or partnership and is in good standing under the laws of
each
jurisdiction which requires such qualification, except where
the
failure to be so qualified would not reasonably be expected to have
a
material adverse effect on the condition (financial or
otherwise),
prospects, earnings, business or properties of the Company and
its
subsidiaries, taken as a whole. Except as set forth on Schedule
II
hereto, the Company has no subsidiaries other than the
Guarantors.
(l) With respect to those Guarantors which are corporations,
all the outstanding shares of capital stock of each Guarantor have
been
duly and validly authorized and issued and are fully paid and
nonassessable, and all outstanding shares
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of capital stock of the Guarantors are owned by the Company
either
directly or through other wholly owned Guarantors and on the
Closing
Date such ownership is free and clear of any perfected security
interest or any other security interests, claims, liens or
encumbrances
except for Permitted Liens (as defined in the Final
Memorandum).
(m) The statements in the Final Memorandum under the headings
"Description of Material Indebtedness and Preferred Stock,"
"Description of the Notes" and "Important Federal Income Tax
Considerations" fairly summarize the matters therein described.
(n) This Agreement has been duly authorized, executed and
delivered by each Issuer; the Indenture has been duly authorized
and,
assuming due authorization, execution and delivery thereof by
the
Trustee, when executed and delivered by each Issuer, will
constitute a
legal, valid and binding instrument enforceable against the each
Issuer
in accordance with its terms (subject, as to the enforcement of
remedies, to applicable bankruptcy, reorganization, insolvency,
moratorium or other laws affecting creditors' rights generally
from
time to time in effect and to general principles of equity);
the
Securities have been duly authorized, and, when executed and, in
the
case of the Notes, authenticated, in accordance with the provisions
of
the Indenture and delivered to and paid for by the Initial
Purchasers,
will have been
duly executed and delivered by the Company and each
Guarantor, as applicable, and will constitute the legal, valid
and
binding obligations of the Company and each Guarantor, as
applicable,
entitled to the benefits of the Indenture (subject, as to the
enforcement of remedies, to applicable bankruptcy, insolvency,
moratorium or other laws affecting creditors' rights generally
from
time to time in effect and to general principles of equity); and
each
Security Document has been duly authorized and, when executed
and
delivered by the applicable Issuers and the Collateral Agent,
will
constitute the legal, valid, binding and enforceable agreement of
each
Issuer (subject, as to the enforcement of remedies, to
applicable
bankruptcy, reorganization, insolvency, moratorium or other
laws
affecting creditors' rights generally from time to time in effect
and
to general principles of equity). The Security Documents, when
executed
and delivered in connection with the sale of the Securities,
will
create in favor of the Collateral Agent for the benefit of the
Secured
Parties (as defined in the Security Agreement), valid and
enforceable
security interests in the Collateral and, upon the filing of
appropriate Uniform Commercial Code financing statements and the
taking
of the other actions described in the Security Documents, the
security
interests in the
rights of the Issuers in such Collateral will be
perfected and superior to and prior to the liens of all third
persons
other than Permitted Liens.
(o) No consent, approval, authorization, filing with or order
of any court or governmental agency or body is required in
connection
with the execution of this Agreement, the Indenture or the
Security
Documents or the consummation of the Transactions, or the
fulfillment
of the terms hereof or thereof, except such as may be required
under
the blue sky laws of any jurisdiction in connection with the
purchase
and distribution of the Securities by the Initial Purchasers in
the
manner contemplated
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herein and in the Final Memorandum and filings required to be made
by
the Security Agreement in order to perfect the lien created by
the
Security Agreement.
(p) Neither the execution and delivery of the Indenture, this
Agreement or any Security Document, the issue and sale of the
Securities, nor the consummation of any of the Transactions, nor
the
fulfillment of the terms hereof or thereof will conflict with,
or
result in a breach or violation or imposition of any lien, charge
or
encumbrance (other than the liens created by the Security
Documents)
upon any property or assets of the Company or any of its
subsidiaries
pursuant to, (i) the charter (including any certificates of
designation), by-laws or other organizational documents of the
Company
or any of its subsidiaries; (ii) the terms of any indenture,
contract,
lease, mortgage, deed of trust, note agreement, loan agreement or
other
agreement, obligation, condition, covenant or instrument to which
the
Company or any of its subsidiaries is a party or bound or to which
its
or their property is subject; or (iii) any statute, law, rule,
regulation, judgment, order or decree applicable to the Company or
any
of its subsidiaries of any court, regulatory body,
administrative
agency, governmental body, arbitrator or other authority having
jurisdiction over the Company or any of its subsidiaries or any of
its
or their properties.
(q) The consolidated historical financial statements and
schedules of the Company and its consolidated subsidiaries included
in
the Final Memorandum present fairly in all material respects
the
financial condition, results of operations and cash flows of
the
Company as of the dates and for the periods indicated, comply as
to
form with the applicable accounting requirements of the Act and
have
been prepared in conformity with generally accepted accounting
principles applied on a consistent basis throughout the periods
involved (except as otherwise noted therein); the selected
financial
data set forth under the captions "Summary Consolidated Financial
and
Other Data" and "Selected Consolidated Financial and Other Data" in
the
Final Memorandum fairly present, on the basis stated in the
Final
Memorandum, the information included therein.
(r) Except as set forth in the Final Memorandum, no action,
suit or proceeding by or before any court or governmental
agency,
authority or body or any arbitrator involving the Company or any of
its
subsidiaries or its or their property is pending or, to the
knowledge
of the Issuers, threatened that (i) could reasonably be expected
to
have a material adverse effect on the performance of this
Agreement,
the Indenture or the Security Documents, or the consummation of
the
Transactions; or (ii) could reasonably be expected to have a
material
adverse effect on the condition (financial or otherwise),
prospects,
earnings, business or properties of the Company and its
subsidiaries,
taken as a whole, whether or not arising from transactions in
the
ordinary course of business.
(s) Each of the Company and its subsidiaries owns or leases
all such properties as are used in the conduct of its operations
as
presently conducted, except where the failure to own or lease
such
properties would not reasonably be expected to have a material
adverse
effect on the condition (financial or otherwise), prospects,
earnings,
business or properties of the Company and its subsidiaries, taken
as a
whole.
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(t) Neither the Company nor any subsidiary is in violation or
default of (i) any provision of its charter (including any
certificates
of designation), bylaws or other organizational documents; (ii)
the
terms of any indenture, contract, lease, mortgage, deed of trust,
note
agreement, loan agreement or other agreement, obligation,
condition,
covenant or instrument to which it is a party or bound or to which
its
property is subject; or (iii) any statute, law, rule,
regulation,
judgment, order or decree applicable to the Company or any of
its
subsidiaries of any court, regulatory body, administrative
agency,
governmental body, arbitrator or other authority having
jurisdiction
over the Company or such subsidiary or any of its properties,
as
applicable, except in the case of each of clauses (ii) and (iii)
for
such violations or defaults which would not reasonably be expected
to
have a material adverse effect on the condition (financial or
otherwise), prospects, earnings, business or properties of the
Company
and its subsidiaries, taken as a whole.
(u) PricewaterhouseCoopers LLP and Ernst & Young LLP, who
have
each certified certain financial statements of the Company and
its
consolidated subsidiaries and delivered their respective reports
with
respect to the audited consolidated financial statements included
in
the Final Memorandum, are, in the case of Ernst & Young LLP,
and were
prior to March 27, 2003, in the case of PricewaterhouseCoopers
LLP,
independent public accountants with respect to the Company within
the
meaning of the Act and the applicable published rules and
regulations
thereunder.
(v) There are no stamp or other issuance or transfer taxes or
duties or other similar fees or charges required to be paid in
connection with the execution and delivery of this Agreement or
the
issuance or sale by the Issuers of the Securities.
(w) The Issuers have filed all foreign, federal, state and
local tax returns that are required to be filed or have
requested
extensions thereof, except in any case in which the failure so to
file
would not have a material adverse effect on the condition
(financial or
otherwise), prospects, earnings, business or properties of the
Company
and its subsidiaries, taken as a whole, whether or not arising
from
transactions in the ordinary course of business, except as set
forth in
or contemplated in the Final Memorandum (exclusive of any amendment
or
supplement thereto) and have paid all taxes required to be paid by
them
and any other assessment, fine or penalty levied against any of
them,
to the extent that any of the foregoing are due and payable, except
for
any such assessment, fine or penalty that is currently being
contested
in good faith or as
would not have a material adverse effect on the
condition (financial or otherwise), prospects, earnings, business
or
properties of the Company and its subsidiaries, taken as a
whole,
whether or not arising from transactions in the ordinary course
of
business, except as set forth in or contemplated in the Final
Memorandum (exclusive of any amendment or supplement thereto).
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(x) No labor problem or dispute with the employees of the
Company or any of its subsidiaries exists or is threatened or
imminent,
and no Issuer is aware of any existing or imminent labor
disturbance by
the employees of any of its or its subsidiaries' principal
suppliers,
contractors or customers, that could have a material adverse effect
on
the condition (financial or otherwise), prospects, earnings,
business
or properties of the Company and its subsidiaries, taken as a
whole,
whether or not arising from transactions in the ordinary course
of
business, except as set forth in or contemplated in the Final
Memorandum (exclusive of any amendment or supplement thereto).
(y) The
Company and each of its subsidiaries are insured by
insurers of recognized financial responsibility against such losses
and
risks and in such amounts as are prudent and customary in the
businesses in which they are engaged; all policies of insurance
and
fidelity or surety bonds insuring the Company or any of its
subsidiaries or their respective businesses, assets, employees,
officers and directors are in full force and effect; the Company
and
its subsidiaries are in compliance with the terms of such policies
and
instruments in all material respects; and there are no claims by
the
Company or any of its subsidiaries under any such policy or
instrument
as to which any insurance company is denying liability or
defending
under a reservation of rights clause, where the failure of the
Company
or such subsidiary to prevail on such claim would reasonably be
expected to have a material adverse effect on the condition
(financial
or otherwise), prospects, earnings, business or properties of
the
Company and its subsidiaries, taken as a whole; and neither the
Company
nor any such subsidiary has any reason to believe that it will not
be
able to renew its existing insurance coverage as and when such
coverage
expires or to obtain similar coverage from similar insurers as may
be
necessary to continue its business at a cost that would not have
a
material adverse effect on the condition (financial or
otherwise),
prospects, earnings, business or properties of the Company and
its
subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, as to each of
the
foregoing clauses of this sentence except as set forth in or
contemplated in the Final Memorandum (exclusive of any amendment
or
supplement thereto).
(z) No subsidiary of the Company is currently prohibited,
directly or indirectly, from paying any dividends to the Company,
from
making any other distribution on such subsidiary's capital stock,
from
repaying to the Company any loans or advances to such subsidiary
from
the Company or from transferring any of such subsidiary's property
or
assets to the Company or any other subsidiary of the Company,
except as
described in or contemplated by the Final Memorandum (exclusive of
any
amendment or supplement thereto).
(aa) The Company and its subsidiaries possess all licenses,
certificates, franchises, permits and other authorizations
("Licenses")
issued by the appropriate federal, state, local or foreign
regulatory
authorities, including, without limitation, Licenses from the
United
States Federal Communications Commission (the "FCC"), necessary to
own
their respective properties and to conduct their respective
businesses
in all material respects, and neither the Company nor any such
subsidiary has received any notice of proceedings relating to
the
revocation or modification of any such License which, singly or in
the
aggregate, if the subject of an unfavorable decision,
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ruling or finding, would have a material adverse effect on the
condition (financial or otherwise), prospects, earnings, business
or
properties of the Company and its subsidiaries, taken as a
whole,
whether or not arising from transactions in the ordinary course
of
business, except as set forth in or contemplated in the Final
Memorandum (exclusive of any amendment or supplement thereto);
the
Company and each of its subsidiaries have fulfilled and performed
in
all material respects all of their respective obligations with
respect
to such Licenses and no event has occurred that allows, or after
notice
or lapse of time would allow, revocation or termination thereof
or
results in any other material impairment of the rights of the
holders
of any such License, except as individually or in the aggregate
could
not
reasonably be expected to have a material adverse effect on the
condition (financial or otherwise), prospects, earnings, business
or
properties of the Company and its subsidiaries, taken as a
whole,
whether or not arising from transactions in the ordinary course
of
business; and except as described in the Final Memorandum
(exclusive of
any amendment or supplement thereto), none of such Licenses
contains
any restriction that is materially burdensome to the Company or any
of
its subsidiaries, taken as a whole. There are no license renewal
or
rate or tariff proceedings existing, pending or, to the best
knowledge
of the Company, threatened that could reasonably be expected to
have a
material adverse effect on the condition (financial or
otherwise),
prospects, earnings, business or properties of the Company and
its
subsidiaries, taken as a whole.
(bb) 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.
(cc) The Company and its subsidiaries are (i) in compliance
with any and all applicable federal, state, local and foreign laws
and
regulations relating to the protection of human health and safety,
the
environment or hazardous or toxic substances or wastes, pollutants
or
contaminants ("Environmental Laws"); (ii) have received and are
in
compliance with all permits, licenses or other approvals required
of
them under applicable Environmental Laws to conduct their
respective
businesses; and (iii) have not received notice of any actual or
potential liability for the investigation or remediation of any
disposal or release of hazardous or toxic substances or wastes,
pollutants or contaminants, except where such non-compliance
with
Environmental Laws, failure to receive required permits, licenses
or
other approvals, or liability would not, individually or in the
aggregate, have a material adverse effect on the condition
(financial
or otherwise), prospects, earnings, business or properties of
the
Company and its subsidiaries, taken as a whole, whether or not
arising
from transactions in the ordinary course of business, except as
set
forth in or contemplated in the Final Memorandum (exclusive of
any
amendment or supplement
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thereto); except as set forth in the Final Memorandum, neither
the
Company nor any of its subsidiaries has been named as a
"potentially
responsible party" under the Comprehensive Environmental
Response,
Compensation, and Liability Act of 1980, as amended.
(dd) The Company has reasonably concluded that the costs and
liabilities associated with the effect of Environmental Laws on
the
business, operations and properties of the Company and its
subsidiaries
(including, without limitation, any capital or operating
expenditures
required for clean-up, closure of properties or compliance with
Environmental Laws, or any permit, license or approval under
Environmental Laws, any related constraints on operating
activities
imposed by
Environmental Laws and any potential liabilities to third
parties under Environmental Laws) would not, singly or in the
aggregate, have a material adverse effect on the condition
(financial
or otherwise), prospects, earnings, business or properties of
the
Company and its subsidiaries, taken as a whole, whether or not
arising
from transactions in the ordinary course of business, except as
set
forth in or contemplated in the Final Memorandum (exclusive of
any
amendment or supplement thereto).
(ee) Each of the Company and its subsidiaries has fulfilled
its obligations, if any, under the minimum funding standards of
Section
302 of the United States Employee Retirement Income Security Act
of
1974, as amended ("ERISA"), and the regulations and published
interpretations thereunder with respect to each "plan" (as defined
in
Section 3(3) of ERISA and such regulations and published
interpretations) in which employees of the Company and its
subsidiaries
are eligible to participate and each such plan is in compliance in
all
material respects with the presently applicable provisions of ERISA
and
such regulations and published interpretations; the Company and
its
subsidiaries have not incurred any unpaid liability to the
Pension
Benefit Guaranty Corporation (other than for the payment of
premiums in
the ordinary course) or to any such plan under Title IV of
ERISA.
(ff) Each of the relationships and transactions specified in
Item 404 of Regulation S-K that would have been required to be
described in a prospectus if this offering had been registered
under
the Act has been so described in the Final Memorandum (exclusive of
any
amendment or supplement thereto).
(gg) The Company and its subsidiaries own, possess, license or
have other rights to use, on reasonable terms, all patents,
patent
applications, trade and service marks, trade and service mark
registrations, trade names, copyrights, licenses, inventions,
trade
secrets, technology, know-how and other intellectual property
necessary
for and material to the conduct of the Company's business as
described
in the Final Memorandum (collectively, the "Intellectual
Property").
Except as set forth in the Final Memorandum, (a) there are no
conflicting rights of third parties with respect to any such
Intellectual Property; (b) there is no material infringement by
third
parties of any such Intellectual Property; (c) there is no pending
or,
to the Company's knowledge, threatened action, suit, proceeding
or
claim by others challenging the Company's rights in or to any
such
Intellectual Property, and the Company is unaware
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of any facts which would form a reasonable basis for any such
claim;
(d) there is no pending or, to the Company's knowledge,
threatened
action, suit, proceeding or claim by others challenging the
validity or
scope of any such Intellectual Property, and the Company is unaware
of
any facts which would form a reasonable basis for any such claim;
(e)
there is no pending or, to the Company's knowledge, threatened
action,
suit, proceeding or claim by others that the Company infringes
or
otherwise violates any patent, trademark, copyright, trade secret
or
other proprietary rights of others, and the Company is unaware of
any
other fact which would form a reasonable basis for any such claim;
(f)
there is no U.S. patent or published U.S. patent application
which
contains claims that dominate or may dominate any Intellectual
Property
described in the Final Memorandum as being owned by or licensed to
the
Company or that interferes with the issued or pending claims of
any
such Intellectual Property; and (g) there is no prior art of which
the
Company is aware that may render any U.S. patent held by the
Company
invalid or any U.S. patent application held by the Company
unpatentable
which has not been disclosed to the U.S. Patent and Trademark
Office.
(hh) Based upon a review of the FCC files, (a) the Company and
its subsidiaries hold the broadcast licenses issued by the FCC
with
respect to each of the stations set forth in the table under
"Business--Distribution" in the Final Memorandum (except for
stations
which the Offering Memorandum discloses are operated by the Company
or
its subsidiaries under time brokerage agreements with the
station
owners and except as otherwise disclosed therein) without which
the
station would not be permitted to broadcast its signal (the
"FCC
Licenses") and (b) each of the FCC Licenses authorizes
television
broadcast operations by the holder thereof using the broadcast
channel
assignment and serving the community of license that is identified
in
such table.
(ii) To each Issuer's knowledge, there is no order, judgment,
decree, notice of apparent liability, or order of forfeiture
outstanding, and no petition, objection, notice of apparent
liability,
order of forfeiture, investigation, complaint, or other
proceeding
pending before the FCC against the stations authorized by the
FCC
Licenses set forth in the table referred to in clause (hh) above
(the
"Stations") or the FCC Licenses that reasonably could be expected
to
result in the termination, revocation, suspension, or denial of
renewal
of any of the FCC Licenses, except for rule making and other
similar
proceedings generally applicable to the television broadcasting
industry or substantial segments thereof.
(jj) To each Issuer's knowledge, except as set forth in the
Final Memorandum, (a) there are no license renewal proceedings
(other
than applications for renewal filed in the ordinary course) pending
for
any of the FCC Licenses; and (b) none of the FCC Licenses is
subject to
any condition imposed by the FCC that reasonably could be expected
to
have a material adverse effect on the Company's ability to conduct
its
broadcast operations as described in the Final Memorandum, taken as
a
whole.
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<PAGE>
(kk) The execution, delivery and performance of this
Agreement, the Security Agreement and the Indenture and the
issuance,
sale and delivery of the Securities pursuant to this Agreement and
the
consummation of the other Transactions (A) do not require any
consent
or authorization from the FCC, and (B) do not constitute a
violation of
the
Communications Act or the published rules and regulations of
the
FCC promulgated thereunder.
(ll) The statements in the Final Memorandum under the captions
"Risk Factors--Risks Relating to Our Business-- We are required by
the
FCC to abandon the analog broadcast service of 23 of our full
power
stations occupying the 700 MHz spectrum and may suffer adverse
consequences if we are unable to secure alternative distribution
on
reasonable terms," "Risk Factors--Risks Relating to Our
Business--We
could be adversely affected by actions of the FCC, the Congress and
the
courts that could alter broadcast television ownership rules in a
way
that would materially affect our present operations or future
business
alternatives," "Risk Factors--Risks Relating to Our Industry--
Our
business is subject to extensive and changing regulation that
could
increase our costs, expose us to greater competition, or
otherwise
adversely affect the ownership and operation of our stations or
our
business strategies," "Risks Factors-- Risks Relating to Our
Industry--
We believe that the success of our television operations depends to
a
significant extent upon access to households served by cable
television
systems. If the law requiring cable system operators to carry
our
signal were to change, we might lose access to cable television
households, which could adversely affect our operations" and
"Business-- Federal Regulation of Broadcasting," insofar as
they
constitute summaries of laws and the published rules and
regulations
promulgated thereunder, fairly summarize the matters therein
described
and are accurate in all material respects.
(mm) There are no restrictions or limitations imposed by the
FCC on the ability of the Company to make cash payments in respect
of
the Securities in accordance with their terms.
(nn) The Issuers believe that the Issuers and their directors
or officers, in their capacities as such, are in compliance in
all
material respects with the applicable provisions of the Sarbanes
Oxley
Act of 2002 and the rules and regulations promulgated in
connection
therewith (the "Sarbanes Oxley Act"), including Section 402 related
to
loans and Sections 302 and 906 related to certifications.
(oo) The Issuers have
taken all actions necessary for the
Securities to be designated as Designated Senior Debt under each
class
of the Company's subordinated debt.
Any certificate signed by any officer of the Company and
delivered to the Representatives or counsel
for the Initial Purchasers in
connection with the offering of the
Securities shall be deemed a representation
and warranty by the Company, as to matters
covered thereby, to each Initial
Purchaser. Additionally, the
representations and warranties made by the Issuers
in the Security Agreement shall be deemed
to have been made to the Initial
Purchasers.
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<PAGE>
2. Purchase and Sale. Subject to the terms and conditions and
in reliance upon the representations and
warranties herein set forth, the
Company and the Guarantors agree to sell to
each Initial Purchaser, and each
Initial Purchaser agrees, severally and not
jointly, to purchase from the
Company and the Guarantors, at a purchase
price of 98.25% of the principal
amount thereof, plus accrued interest from
January 8, 2004 to the Closing Date,
the principal amount of Securities set
forth opposite such Initial Purchaser's
name in Schedule I hereto.
3. Delivery and Payment. Delivery of and payment for the
Securities shall be made at 9:00 A.M., New
York City time, on January 8, 2004,
which date and time may be postponed by
agreement between the Representatives
and the Company or as provided in Section 9
hereof (such date and time of
delivery and payment for the Securities
being herein called the "Closing Date").
Delivery of the Securities shall be made to
the Representatives for the
respective accounts of the several Initial
Purchasers against payment by the
several Initial Purchasers through the
Representatives of the purchase price
thereof to or upon the order of the Company
by wire transfer payable in same-day
funds to the account specified by the
Company. Delivery of the Securities shall
be made through the facilities of The
Depository Trust Company unless the
Representatives shall otherwise
instruct.
4. Offering by Initial Purchasers. (a) Each Initial Purchaser
acknowledges that the Securities have not
been and will not be registered under
the Act and may not be offered or sold
within the United States or to, or for
the account or benefit of, U.S. persons,
except pursuant to an exemption from,
or in a transaction not subject to, the
registration requirements of the Act.
(b) Each Initial Purchaser, severally and not jointly,
represents and warrants to and agrees with the Issuers that:
(i) it has not offered or sold, and will not offer or sell,
any Securities within the United States or to, or for the account
or
benefit of, U.S. persons (x) as part of its distribution at any
time or
(y) otherwise until 40 days after the later of the commencement of
the
offering and the date of closing of the offering except:
(A) to those it reasonably believes to be "qualified
institutional buyers" (as defined in Rule 144A under the Act)
or
(B) in accordance with Rule 903 of Regulation S;
(ii) neither it nor any person acting on its behalf has made
or will make offers or sales of the Securities in the United States
by
means of any form of general solicitation or general
advertising
(within the meaning of Regulation D) in the United States;
(iii) in connection with each sale pursuant to Section
4(b)(i)(A), it has taken or will take reasonable steps to ensure
that
the purchaser of such Securities is aware that such sale is being
made
in reliance on Rule 144A;
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<PAGE>
(iv) neither it, nor any of its Affiliates nor any person
acting on its or their behalf has engaged or will engage in any
directed selling efforts (within the meaning of Regulation S)
with
respect to the Securities;
(v) it has not entered and will not enter into any contractual
arrangement with any distributor (within the meaning of Regulation
S)
with respect to the distribution of the Securities, except with
its
affiliates or with the prior written consent of the Company;
(vi) it and its Affiliates have complied and will comply with
the offering restrictions requirement of Regulation S;
(vii) at or prior to the confirmation of a sale of the
Securities (other than a sale of Securities pursuant to Section
4(b)(i)(A) of this Agreement), it shall have sent to each
distributor,
dealer or person receiving a selling concession, fee or other
remuneration that purchases Securities from it during the
distribution
compliance period (within the meaning of Regulation S) 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 (the "Act") and may not be
offered or sold within the United States or to, or for the
account or benefit of, U.S. persons (i) as part of their
distribution at any time or (ii) otherwise until 40 days after
the later of the commencement of the offering and the date of
closing of the offering, except in either case in accordance
with Regulation S or Rule 144A under the Act. Terms used in
this paragraph have the meanings given to them by Regulation
S.
(viii) it has not offered or sold and, prior to the date six
months after the date of issuance of the Securities, will not offer
or
sell any Securities to persons in the United Kingdom except to
persons
whose ordinary activities involve them in acquiring, holding,
managing
or disposing of investments (as principal or as agent) for the
purposes
of their businesses or otherwise in circumstances which have
not
resulted
and will not result in an offer to the public in the United
Kingdom within the meaning of the Public Offers of Securities
Regulations 1995;
(ix) it has complied and will comply with all applicable
provisions of the FSMA
with respect to anything done by it in relation
to the Securities in, from or otherwise involving the United
Kingdom;
(x) it has only communicated or caused to be communicated and
will only communicate or cause to be communicated any invitation
or
inducement to engage in investment activity (within the meaning
of
section 21 of the FSMA) received by it in connection with the issue
or
sale of any Securities, in circumstances in which section 21(1) of
the
FSMA does not apply to the Company;
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<PAGE>
(xi) it is a person whose ordinary activities involve it in
acquiring, holding, managing or disposing of investments (as
principal
or agent) for the purposes of its business and it has not offered
or
sold and will not offer or sell any Securities other than to
persons
whose ordinary activities involve them in acquiring, holding,
managing
or disposing of investments (as principal or agent) for the
purposes of
their businesses or who it is reasonable to expect will acquire,
hold,
manage or dispose of investments (as principal or agent) for
the
purposes of
their businesses where the issue of the Securities would
otherwise constitute a contravention of section 19 of the FSMA by
the
Company; and
(xii) it is an "accredited investor" (as defined in Rule
501(a) of Regulation
D).
5. Agreements. Each Issuer agrees with each Initial Purchaser
that:
(a) The Company will furnish to each Initial Purchaser and to
counsel for the Initial Purchasers, without charge, during the
period
referred to in paragraph (c) below, as many copies of the Final
Memorandum and any amendments and supplements thereto as they
may
reasonably request.
(b) The Company will not amend or supplement the Final
Memorandum without the prior written consent of the
Representatives.
(c) If at any time prior to the completion of the sale of the
Securities by the Initial Purchasers (as determined by the
Representatives), any event occurs as a result of which the
Final
Memorandum, as then amended or supplemented, would include any
untrue
statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if
it
should be necessary to amend or supplement the Final Memorandum
to
comply with applicable law, the Company promptly (i) will notify
the
Representatives of any such event; (ii) subject to the requirements
of
paragraph (b) of this Section 5, will prepare an amendment or
supplement that will correct such statement or omission or effect
such
compliance; and (iii) will supply any supplemented or amended
Final
Memorandum to the several Initial Purchasers and counsel for
the
Initial Purchasers without charge in such quantities as they
may
reasonably request.
(d) The Company will arrange, if necessary, for the
qualification of the Securities for sale by the Initial
Purchasers
under the laws of such jurisdictions as the Representatives may
designate and will maintain such qualifications in effect so long
as
required for the sale of the Securities; provided that in no
event
shall any Issuer be obligated to qualify to do business in any
jurisdiction where it is not now so qualified or to take any
action
that would subject it to service of process in suits, other than
those
arising out of the offering or sale of the Securities, in any
jurisdiction where it is not now so subject. The Company will
promptly
advise the Representatives of the receipt by the Company of any
notification with respect to the suspension of the qualification of
the
Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose.
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<PAGE>
(e) The Issuers will not, and will not permit any of their
Affiliates to, resell any Securities that have been acquired by any
of
them.
(f) None of the Issuers nor any of their Affiliates, nor any
person acting on behalf of any of them will, directly or
indirectly,
make offers or sales of any security, or solicit offers to buy
any
security, under circumstances that would require the registration
of
the Securities under the Act.
(g) None of the Issuers nor any of their Affiliates, nor any
person acting on behalf of any of them will engage in any form
of
general solicitation or general advertising (within the meaning
of
Regulation D) in connection with any offer or sale of the
Securities in
the United States.
(h) So long as any of the Securities are "restricted
securities" within the meaning of Rule 144(a)(3) under the Act,
the
Company will, during any period in which it is not subject to and
in
compliance with Section 13 or 15(d) of the Exchange Act or is
not
exempt from such reporting requirements pursuant to and in
compliance
with Rule 12g3-2(b) under the Exchange Act, provide to each holder
of
such restricted securities and to each prospective purchaser
(as
designated by such holder) of such restricted securities, upon
the
request of such holder or prospective purchaser, any
information
required to be provided by Rule 144A(d)(4)
