Exhibit 10.223
XXXXXX COMMUNICATIONS CORPORATION
$493,782,880
12 1/4% Senior Subordinated Discount Notes Due 2009
Purchase Agreement
New York, New York
January 7, 2002
Xxxxxxx Xxxxx Xxxxxx Inc.
UBS Warburg LLC
Bear, Xxxxxxx & Co. Inc.
Credit Suisse First Boston Corporation
As Representatives of the Initial Purchasers
c/o Xxxxxxx Xxxxx Xxxxxx Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Xxxxxx 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, $493,782,880
principal amount at maturity of its 12 1/4 % Senior Subordinated Discount Notes
Due 2009 (the "Notes" and, together with the Guarantees (as defined below), the
"Securities"). The Securities are to be issued under an indenture (the
"Indenture"), dated as of January 14, 2002, among the Company, the Guarantors
(as defined below) and The Bank of New York, as trustee (the "Trustee"). The
Securities have the benefit of a registration rights agreement (the
"Registration Rights Agreement"), dated as of January 14, 2002, among the
Company, the Guarantors and the Initial Purchasers, pursuant to which the
Company and the Guarantors have agreed to register the Securities under the Act
subject to the terms and conditions therein specified. The Securities will be
unconditionally guaranteed (the "Guarantees") on an unsecured senior
subordinated basis by each of the Company's direct and indirect domestic
subsidiaries set forth on the signature page hereto (the "Guarantors"). To the
extent there are 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
17 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 31, 2001 (as amended
or supplemented at the Execution Time, the "Preliminary Memorandum"), and a
final offering memorandum, dated January 7, 2002 (as amended or supplemented at
the Closing Date, the "Final Memorandum"). Each of the Preliminary Memorandum
and the Final Memorandum sets forth certain information concerning the Company,
the Guarantors and the Securities. The Company 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 Company and the
Guarantors, 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 Company and the Guarantors 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 Company, the Guarantors, any of its or their
Affiliates or any person acting on its or their behalf 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.
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(c) None of the Company, the Guarantors, any of its or their
Affiliates or any person acting on its or their behalf 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.
(d) The Securities satisfy the eligibility requirements of
Rule 144A(d)(3) under the Act.
(e) None of the Company, the Guarantors, any of its or their
Affiliates or any person acting on its or their behalf 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) The Company is not, 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 will not 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) Neither the Company nor any of the Guarantors 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) Neither the Company nor any Guarantor 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 Company and the Guarantors 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
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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 I(1) 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 of capital stock of the
Guarantors are owned by the Company either directly or through other
wholly owned Guarantors free and clear of any perfected security
interest or any other security interests, claims, liens or
encumbrances, except as disclosed 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," "Exchange Offer; Registration Rights" and
"Important Federal Income Tax Considerations" fairly summarize the
matters therein described.
(n) This Agreement has been duly authorized, executed and
delivered by the Company and each Guarantor; the Indenture has been
duly authorized and, assuming due authorization, execution and delivery
thereof by the Trustee, when executed and delivered by the Company and
each Guarantor, will constitute a legal, valid and binding instrument
enforceable against the Company and each Guarantor 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 and will
constitute the legal, valid and binding obligations of the Company and
each Guarantor 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 the
Registration Rights Agreement has been duly authorized and, when
executed and delivered by the Company and each Guarantor, will
constitute the legal, valid, binding and enforceable agreement of the
Company and
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each Guarantor (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).
(o) No consent, approval, authorization, filing with or order
of any court or governmental agency or body is required in connection
with the transactions contemplated herein or in the Indenture or the
Registration Rights Agreement, except such as will be obtained under
the Act and the Trust Indenture Act and 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 herein and in the Final Memorandum and the
Registration Rights Agreement.
(p) Neither the execution and delivery of the Indenture, this
Agreement or the Registration Rights Agreement, the issue and sale of
the Securities, nor the consummation of any other of the transactions
herein or therein contemplated or the consummation of the transactions
described under "Use of Proceeds" in the Final Memorandum (including,
without limitation, the exchange of the Company's 12 1/2% Cumulative
Exchangeable Preferred Stock for 12 1/2% Exchange Debentures and the
subsequent refinancing of such debentures), nor the fulfillment of the
terms hereof or thereof will conflict with, result in a breach or
violation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of its subsidiaries pursuant
to, (i) the charter (including any certificates of designation) or
by-laws 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 caption "Selected Consolidated Financial and
Other Data" in the Final Memorandum fairly present, on the basis stated
in the Final Memorandum, the information included therein.
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(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 best
knowledge of the Company, threatened that (i) could reasonably be
expected to have a material adverse effect on the performance of this
Agreement, the Indenture or the Registration Rights Agreement, or the
consummation of any of the transactions contemplated hereby or thereby;
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.
(t) Neither the Company nor any subsidiary is in violation or
default of (i) any provision of its charter (including any certificates
of designation) or bylaws; (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, who have certified certain
financial statements of the Company and its consolidated subsidiaries
and delivered their report with respect to the audited consolidated
financial statements and schedules included in the Final Memorandum,
are 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 Company and the Guarantors of the Securities.
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(w) The Company and each of the Guarantors has filed all
foreign, federal, state and local tax returns that are required to be
filed or has 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 has
paid all taxes required to be paid by it and any other assessment, fine
or penalty levied against it, to the extent that any of the foregoing
is 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).
(x) No labor problem or dispute with the employees of the
Company or any of its subsidiaries exists or is threatened or imminent,
and the Company is not 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
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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, 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 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, 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
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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 foreign, federal, state and local 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 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),
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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 have 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 rights of
third parties 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 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.
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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 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 the Company'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 the Company'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.
(kk) The execution, delivery and performance of this
Agreement, the Registration Rights Agreement and the Indenture and the
issuance, sale and delivery of the Securities pursuant to this
Agreement and the execution and delivery of the Securities (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.
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(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 24 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 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 the Communications Act and the published rules
and regulations of the FCC 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.
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.
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 59.632% of the principal
amount at maturity thereof, the principal amount at maturity 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 10:00 A.M., New York City time, on January 14, 2002,
or at such time on such later date (not later than January 18, 2002) as the
Representatives shall designate, 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
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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. Each Initial Purchaser,
severally and not jointly, represents and warrants to and agrees with the
Company and the Guarantors that:
(a) It has not offered or sold, and will not offer or sell,
any Securities except to those it reasonably believes to be qualified
institutional buyers (as defined in Rule 144A under the Act) and that,
in connection with each such sale, 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.
(b) 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.
5. AGREEMENTS. The Company and each Guarantor 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
13
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 Initial Purchasers 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 the Company 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.
(e) The Company and the Guarantors will not, and will not
permit any of its or their Affiliates to, resell any Securities that
have been acquired by any of them.
(f) None of the Company, the Guarantors, any of its or their
Affiliates, or any person acting on its or their behalf 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 Company, the Guarantors, any of its or their
Affiliates or any person acting on its or their behalf 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 and the Guarantors will, during any period in which the Company
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) under the
Act. This covenant is intended to be for the benefit of the holders,
and the prospective purchasers designated by such holders, from time to
time of such restricted securities.
14
(i) None of the Company, the Guarantors, any of its or their
Affiliates or any person acting on its or their behalf will engage in
any directed selling efforts with respect to the Securities, and each
of them will comply with the offering restrictions requirement of
Regulation S. Terms used in this paragraph have the meanings given to
them by Regulation S.
(j) The Company will cooperate with the Representatives and
use its best efforts to permit the Securities to be eligible for
clearance and settlement through The Depository Trust Company.
(k) Neither the Company nor any Guarantor will take, directly
or indirectly, any action designed to or which has constituted or which
might reasonably be expected to cause or result, under the Exchange Act
or otherwise, in stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the
Securities.
(l) The Company agrees to pay the costs and expenses relating
to the following matters: (i) the preparation of the Indenture and the
Registration Rights Agreement, the issuance of the Securities and the
fees of the Trustee; (ii) the preparation, printing or reproduction of
the Preliminary Memorandum and Final Memorandum and each amendment or
supplement to either of them; (iii) the printing (or reproduction) and
delivery (including postage, air freight charges and charges for
counting and packaging) of such copies of the Preliminary Memorandum
and Final Memorandum, and all amendments or supplements to either of
them, as may, in each case, be reasonably requested for use in
connection with the offering and sale of the Securities; (iv) the
preparation, printing, authentication, issuance and delivery of
certificates for the Securities, including any stamp or transfer taxes
in connection with the original issuance and sale of the Securities;
(v) the printing (or reproduction) and delivery of this Agreement, any
blue sky memorandum and all other agreements or documents printed (or
reproduced) and delivered in connection with the offering of the
Securities; (vi) any registration or qualification of the Securities
for offer and sale under the securities or blue sky laws of the several
states (including filing fees and the reasonable fees and expenses of
counsel for the Initial Purchasers relating to such registration and
qualification); (vii) admitting the Securities for trading in the
PORTAL Market; (viii) the transportation and other expenses incurred by
or on behalf of Company representatives in connection with
presentations to prospective purchasers of the Securities; (ix) the
fees and expenses of the Company's accountants and the fees and
expenses of counsel (including local and special counsel) for the
Company; and (x) all other costs and expenses incident to the
performance by the Company of its obligations hereunder.
15
6. CONDITIONS TO THE OBLIGATIONS OF THE INITIAL PURCHASERS.
The obligations of the Initial Purchasers to purchase the Securities shall be
subject to the accuracy of the representations and warranties on the part of the
Company and the Guarantors contained herein at the Execution Time, the Closing
Date and any settlement date pursuant to Section 3 hereof, to the accuracy of
the statements of the Company and the Guarantors made in any certificates
pursuant to the provisions hereof, to the performance by the Company and the
Guarantors of its or their obligations hereunder and to the following additional
conditions:
(a) The Company shall have requested and caused Holland &
Knight LLP, counsel for the Company and the Guarantors, to furnish to
the Representatives its opinion, dated the Closing Date and addressed
to the Representatives, to the effect that:
(i) the Company and each Guarantor which is a
Florida, New York or Delaware corporation or limited liability
company has been duly incorporated or organized and is validly
existing as a corporation or limited liability company in good
standing under the laws of the jurisdiction in which it is
chartered or organized, with full corporate or limited
liability company 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;
(ii) all the outstanding shares of capital stock of
the Company and, to our knowledge, each Guarantor which is a
corporation, have been duly authorized and validly issued and
are fully paid and nonassessable, and, except as otherwise set
forth in the Final Memorandum, all outstanding shares of
capital stock of each such Guarantor are owned by the Company
either directly or through wholly owned subsidiaries free and
clear of any perfected security interest;
(iii) the Indenture has been duly authorized, executed
and delivered, and constitutes a legal, valid and binding
instrument enforceable against the Company and the Guarantors
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 issuance of the Securities has 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 under this Agreement, will constitute legal, valid,
binding and enforceable obligations of the Company and the
Guarantors entitled to the benefits of the Indenture (subject,
as to the enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency,
16
moratorium or other laws affecting creditors' rights generally
from time to time in effect and to general principles of
equity); the Registration Rights Agreement has been duly
authorized, executed and delivered and constitutes the legal,
valid, binding and enforceable agreement of the Company and
the Guarantors (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); and
the statements set forth under the headings "Description of
the Notes" and "Exchange Offer; Registration Rights" in the
Final Memorandum, insofar as such statements purport to
summarize certain provisions of the Securities, the Indenture
and the Registration Rights Agreement, are accurate;
(iv) other than as described in the Final Memorandum,
to the knowledge of such counsel, there is no pending or
threatened 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 that would be required to be disclosed in a
registration statement filed under the Act; and the statements
in the Final Memorandum under the heading "Business--Legal
Proceedings," "Description of Material Indebtedness and
Preferred Stock," "Description of the Notes," "Exchange Offer;
Registration Rights" and "Important Federal Income Tax
Considerations" accurately summarize the matters therein
described;
(v) such counsel has no reason to believe that at
the Execution Time and on the Closing Date the Final
Memorandum contained or contains any untrue statement of a
material fact or omitted or omits to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading (in
each case, other than the financial statements and other
financial information contained therein, as to which such
counsel need express no opinion);
(vi) this Agreement has been duly authorized,
executed and delivered by the Company;
(vii) the Company and each Guarantor has all requisite
corporate or limited liability company power and authority,
has taken all requisite corporate or limited liability company
action, and has received and is in compliance with all
governmental, judicial and other authorizations, approvals and
orders necessary to enter into and perform this Agreement, the
Indenture, the Registration Rights Agreement and the
Securities, and no consent, approval, authorization, filing
with or order of any court or governmental agency or body is
required in
17
connection with the transactions contemplated herein or in the
Indenture and the Registration Rights Agreement, except such
as may be required under the Act and the Trust Indenture Act
and such as may be required under the blue sky or securities
laws of any jurisdiction in connection with the purchase and
sale of the Securities by the Initial Purchasers in the manner
contemplated in this Agreement and the Final Memorandum and
the Registration Rights Agreement and such other approvals
(specified in such opinion) as have been obtained;
(viii) neither the execution and delivery of the
Indenture, this Agreement or the Registration Rights
Agreement, the issue and sale of the Securities, nor the
consummation of any other of the transactions herein or
therein contemplated or the consummation of the transactions
described under "Use of Proceeds" (including, without
limitation, the exchange of the Company's 12 1/2% Cumulative
Exchangeable Preferred Stock for 12 1/2% Exchange Debentures
and the subsequent refinancing of such debentures) in the
Final Memorandum, nor the fulfillment of the terms hereof or
thereof will conflict with or result in a breach or violation
of or imposition of any lien, charge or encumbrance upon any
property or asset of the Company or its subsidiaries pursuant
to, (i) the charter (including any certificates of
designation) or by-laws of the Company or 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 respective property is subject and which
has been filed as an exhibit to any Company filing under the
Act or the Exchange Act, except that such counsel need express
no opinion as to contracts, agreements and other instruments
relating to broadcast station purchases and sales which are
dated prior to June 1, 1999; or (iii) any statute, law, rule,
regulation, or, to such counsel's knowledge, any 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, any of its subsidiaries
or any of their respective properties;
(ix) assuming the accuracy of the representations and
warranties and compliance with the agreements contained
herein, no registration of the Securities under the Act, and
no qualification of an indenture under the Trust Indenture
Act, are required for the offer and sale by the Initial
Purchasers of the Securities in the manner contemplated by
this Agreement; the Indenture is in appropriate form for
qualification under the Trust Indenture Act;
18
(x) the Company is not 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,
will not be an "investment company" as defined in the
Investment Company Act without taking account of any exemption
arising out of the number of holders of the Company's
securities;
(xi) Based upon a review of the FCC files, (a) the
Company and its subsidiaries hold the FCC Licenses with
respect to each of the stations set forth in the table under
"Business--Distribution" in the Final Memorandum (except as
otherwise disclosed therein) and (b) each of the FCC Licenses
authorizes television broadcast station construction or
operation by the holder thereof using the broadcast channel
assignment and serving the community of license that is
identified in such table;
(xii) To such counsel's knowledge, based upon the
review of the publicly available records of the FCC and
inquiry to officers of the Company, 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 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;
(xiii) To such counsel's knowledge based upon the
review of the publicly available files of the FCC and inquiry
to officers of the Company, other than as disclosed 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) except as
set forth in the FCC authorizations for the FCC licenses or
imposed by the generally applicable rules, regulations and
policies of the FCC, 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;
(xiv) The issuance, sale and delivery of the
Securities pursuant to this Agreement and the execution and
delivery of the Securities (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;
19
(xv) 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 24 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 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," "Risk 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 the Communications Act and the
published rules and regulations of the FCC promulgated
thereunder, have been reviewed by such counsel and are
accurate in all material respects;
(xvi) The execution, delivery and performance of this
Agreement by the Company and the Guarantors (A) do not require
any consent or authorization from the FCC, and (B) do not
violate the Communications Act and the rules and regulations
promulgated thereunder;
(xvii) 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;
and
(xviii) Based upon the facts, assumptions and additional
considerations described in such opinion, in a properly
briefed and argued proceeding, a court construing the terms of
the certificates of designation of the Company's 13 1/4%
Cumulative Junior Exchangeable Preferred Stock (the "13 1/4%
Preferred Stock") and 8% Series B Convertible Exchangeable
Preferred Stock (the "Series B Preferred Stock") should
conclude that the amortization of original issue discount on
the Notes, as reflected from time to time on the Company's
consolidated balance sheets prepared in accordance with GAAP,
does not constitute an "incurrence" of "Indebtedness" under
paragraph (l)(i) of the certificate of designation of the 13
1/4% Preferred Stock or paragraph (l)(i) of the certificate of
designation of the Series B Preferred Stock.
In rendering such opinion, such counsel may rely (A) as to
matters involving the application of laws of any jurisdiction other
than the jurisdiction of incorporation
20
of the Company, the State of Delaware, the State of Florida, the State
of New York or the Federal laws of the United States, to the extent
they deem proper and specified in such opinion, upon the opinion of
other counsel of good standing whom they believe to be reliable and who
are satisfactory to counsel for the Initial Purchasers; and (B) as to
matters of fact, to the extent they deem proper, on certificates of
responsible officers of the Company and public officials. References to
the Final Memorandum in this Section 6(a) include any amendment or
supplement thereto at the Closing Date.
(b) The Company shall have requested and caused Xxxxxxx X.
Xxxxxxxx, Esq., Executive Vice President and Chief Legal Officer of the
Company, to furnish to the Representatives his opinion, dated the
Closing Date and addressed to the Representatives, to the effect that:
(i) the Company and each Guarantor which is a New
York corporation or limited liability company has been duly
incorporated or organized and is validly existing as a
corporation or limited liability company in good standing
under the laws of the jurisdiction in which it is chartered or
organized, with full corporate or limited liability company
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;
(ii) all the outstanding shares of capital stock of
the Company and each Guarantor have been duly authorized and
validly issued and are fully paid and nonassessable, and,
except as otherwise set forth in the Final Memorandum, all
outstanding shares of capital stock of the Guarantor are owned
by the Company either directly or through wholly owned
subsidiaries free and clear of any perfected security interest
and, to the knowledge of such counsel, after due inquiry, any
other security interests, claims, liens or encumbrances;
(iii) the Indenture has been duly authorized, executed
and delivered, and constitutes a legal, valid and binding
instrument enforceable against the Company 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
issuance of the Securities has 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 under this
Agreement, will constitute legal, valid, binding and
enforceable obligations of the Company entitled to the
benefits of the Indenture (subject, as to the enforcement of
remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium or other laws affecting
21
creditors' rights generally from time to time in effect and to
general principles of equity); the Registration Rights
Agreement has been duly authorized, executed and delivered and
constitutes the legal, valid, binding and enforceable
agreement of the Company (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);
(iv) neither the execution and delivery of the
Indenture, this Agreement or the Registration Rights
Agreement, the issue and sale of the Securities, nor the
consummation of any other of the transactions herein or
therein contemplated or the consummation of the transactions
described under "Use of Proceeds" (including, without
limitation, the exchange of the Company's 12 1/2% Cumulative
Exchangeable Preferred Stock for 12 1/2% Exchange Debentures
and the subsequent refinancing of such debentures) in the
Final Memorandum, nor the fulfillment of the terms hereof or
thereof will conflict with or result in a breach or violation
of or imposition of any lien, charge or encumbrance upon any
property or asset of the Company or its subsidiaries pursuant
to, (i) the charter (including any certificates of
designation) or by-laws of the Company or 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 known
to such counsel, after due inquiry, to which the Company or
any of its subsidiaries is a party or bound or to which its
respective 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, any of
its subsidiaries or any of their respective properties;
(v) except as disclosed in the Final Memorandum,
there is no pending or, to the knowledge of such counsel,
threatened 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 that would be required to be disclosed in a
registration statement filed under the Act;
(vi) such counsel has no reason to believe that at
the Execution Time and on the Closing Date the Final
Memorandum contained or contains any untrue statement of a
material fact or omitted or omits to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading (in
each case, other than the
22
financial statements and other financial information contained
therein, as to which such counsel need express no opinion).
In rendering such opinion, such counsel may limit his opinion
to matters involving the application of laws of the State of New York
and the Federal laws of the United States (excluding the Communications
Act and federal securities laws) and may rely as to matters of fact, to
the extent he deems proper, on certificates of responsible officers of
the Company and public officials. References to the Final Memorandum in
this Section 6(b) include any amendment or supplement thereto at the
Closing Date.
(c) The Representatives shall have received from Xxxxxx Xxxxxx
& Xxxxxxx, counsel for the Initial Purchasers, such opinion or
opinions, dated the Closing Date and addressed to the Representatives,
with respect to the issuance and sale of the Securities, the Indenture,
the Registration Rights Agreement, the Final Memorandum (as amended or
supplemented at the Closing Date) and other related matters as the
Representatives may reasonably require, and the Company shall have
furnished to such counsel such documents as they request for the
purpose of enabling them to pass upon such matters.
(d) The Company and each Guarantor shall have furnished to the
Representatives a certificate of the Company and each Guarantor, signed
by the Chairman of the Board or the President and the principal
financial or accounting officer of the Company and each Guarantor,
dated the Closing Date, to the effect that the signers of such
certificate have carefully examined the Final Memorandum, any amendment
or supplement to the Final Memorandum and this Agreement and that:
(i) the representations and warranties of the
Company and the Guarantors in this Agreement are true and
correct in all material respects on and as of the Closing Date
with the same effect as if made on the Closing Date, and the
Company has complied with all the agreements and satisfied all
the conditions on its part to be performed or satisfied
hereunder at or prior to the Closing Date; and
(ii) since the date of the most recent financial
statements included in the Final Memorandum (exclusive of any
amendment or supplement thereto), there has been no material
adverse change in 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 by the Final Memorandum
(exclusive of any amendment or supplement thereto).
23
(e) At the Execution Time and at the Closing Date, the Company
shall have requested and caused PricewaterhouseCoopers LLP to furnish
to the Representatives letters, dated respectively as of the Execution
Time and as of the Closing Date, in form and substance satisfactory to
the Representatives, confirming that they are independent accountants
within the meaning of the Act and the Exchange Act and the applicable
rules and regulations thereunder, that they have performed a review of
the unaudited interim financial information of the Company for the
nine-month period ended September 30, 2001 and as at September 30,
2001, and stating in effect that:
(i) in their opinion the audited financial
statements and financial statement schedules included or
incorporated in the Final Memorandum and reported on by them
comply as to form in all material respects with the applicable
accounting requirements of the Exchange Act and the related
published rules and regulations thereunder;
(ii) on the basis of a reading of the latest
unaudited financial statements made available by the Company
and its subsidiaries; their limited review in accordance with
the standards established under Statement on Auditing
Standards No. 71, of the unaudited interim financial
information for the nine-month period ended September 30,
2001, and as at September 30, 2001; carrying out certain
specified procedures (but not an examination in accordance
with generally accepted auditing standards) which would not
necessarily reveal matters of significance with respect to the
comments set forth in such letter; a reading of the minutes of
the meetings of the stockholders, directors and the audit
committee of the Company and the Subsidiaries; and inquiries
of certain officials of the Company who have responsibility
for financial and accounting matters of the Company and its
subsidiaries as to transactions and events subsequent to
December 31, 2000, nothing came to their attention which
caused them to believe that:
(1) any unaudited financial statements
included or incorporated in the Final Memorandum do
not comply in form in all material respects with
applicable accounting requirements and with the
published rules and regulations of the Commission
with respect to financial statements included or
incorporated in quarterly reports on Form 10-Q under
the Exchange Act; and said unaudited financial
statements are not in conformity with generally
accepted accounting principles applied on a basis
substantially consistent with that of the audited
financial statements included or incorporated in the
Final Memorandum; or
24
(2) with respect to the period subsequent to
September 30, 2001, there were any changes, at
November 30, 2001, in the senior subordinated notes
and bank financing and mandatorily redeemable
preferred stock or decreases in the stockholders'
equity (deficit) of the Company as compared with the
amounts shown on the September 30, 2001 consolidated
balance sheet included in the Final Memorandum, or
for the period from October 1, 2001 to November 30,
2001 there were any decreases, as compared with
September 30, 2001 in net revenues or increases in
net loss, except in all instances for changes or
decreases set forth in such letter, in which case the
letter shall be accompanied by an explanation by the
Company as to the significance thereof unless said
explanation is not deemed necessary by the
Representatives; or
(iii) they have performed certain other specified
procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature
(which is limited to accounting, financial or statistical
information derived from the general accounting records of the
Company and its subsidiaries) set forth in the Final
Memorandum, including the information set forth under the
captions "Summary Consolidated Financial and Other Data" and
"Selected Consolidated Financial and Other Data" in the Final
Memorandum and the information included in "Management's
Discussion and Analysis of Financial Condition and Results of
Operations" in the Final Memorandum agrees with the accounting
records of the Company and its subsidiaries, excluding any
questions of legal interpretation.
PricewaterhouseCoopers LLP shall have reviewed unaudited
interim financial information of the Company for the quarters ending
September 30, 2000 and September 30, 2001 in accordance with Statement
on Auditing Standards No. 71.
References to the Final Memorandum in this Section 6(e)
include any amendment or supplement thereto at the date of the
applicable letter.
(f) Subsequent to the Execution Time or, if earlier, the dates
as of which information is given in the Final Memorandum (exclusive of
any amendment or supplement thereto), there shall not have been (i) any
change, decrease or increase specified in the letter or letters
referred to in paragraph (e) of this Section 6; or (ii) any change, or
any development involving a prospective change, in or affecting 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
effect of which, in any
25
case referred to in clause (i) or (ii) above, is, in the sole judgment
of the Representatives, so material and adverse as to make it
impractical or inadvisable to market the Securities as contemplated by
the Final Memorandum (exclusive of any amendment or supplement
thereto).
(g) The Securities shall have been designated as
PORTAL-eligible securities in accordance with the rules and regulations
of the NASD, and the Securities shall be eligible for clearance and
settlement through The Depositary Trust Company.
(h) Subsequent to the Execution Time, there shall not have
been any decrease in the rating of any of the Company's debt securities
by any "nationally recognized statistical rating organization" (as
defined for purposes of Rule 436(g) under the Act) or any notice given
of any intended or potential decrease in any such rating or of a
possible change in any such rating that does not indicate the direction
of the possible change.
(i) Simultaneously with the Closing, the Company shall have
(i) exchanged its 12 1/2% Cumulative Exchangeable Preferred Stock for
its 12 1/2% Exchange Debentures and (ii) the Company shall have
irrevocably deposited with the paying agent for the Exchange Indenture
prior to or simultaneously with the Closing the funds necessary to pay
the redemption price of and accrued interest on the 12 1/2% Exchange
Debentures.
(j) Prior to the Closing Date, the Company shall have
furnished to the Representatives such further information, certificates
and documents as the Representatives may reasonably request.
If any of the conditions specified in this Section 6 shall not
have been satisfied in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance, as contemplated by the provisions of this
Agreement, to the Representatives and counsel for the Initial Purchasers, this
Agreement and all obligations of the Initial Purchasers hereunder may be
cancelled at, or at any time prior to, the Closing Date by the Representatives.
Notice of such cancellation shall be given to the Company in writing or by
telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 6 will
be delivered at the office of counsel for the Initial Purchasers, c/o Xxxxxx
Xxxxxx & Xxxxxxx, 00 Xxxx Xxxxxx, Xxx Xxxx, XX 00000, on the Closing Date.
26
7. REIMBURSEMENT OF EXPENSES. If the sale of the Securities
provided for herein is not consummated because any condition to the obligations
of the Initial Purchasers set forth in Section 6 hereof is not satisfied,
because of any termination pursuant to Section 10 hereof or because of any
refusal, inability or failure on the part of the Company or any Guarantor to
perform any agreement herein or comply with any provision hereof other than by
reason of a default by any of the Initial Purchasers, the Company will reimburse
the Initial Purchasers severally through Xxxxxxx Xxxxx Xxxxxx on demand for all
out-of-pocket expenses (including reasonable fees and disbursements of counsel)
that shall have been incurred by them in connection with the proposed purchase
and sale of the Securities.
8. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company and the Guarantors, jointly and severally,
agree to indemnify and hold harmless each Initial Purchaser, the directors,
officers, employees and agents of each Initial Purchaser and each person who
controls any Initial Purchaser within the meaning of either the Act or the
Exchange Act against any and all losses, claims, damages or liabilities, joint
or several, to which they or any of them may become subject under the Act, the
Exchange Act or other Federal or state statutory law or regulation, at common
law or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in the Preliminary
Memorandum, the Final Memorandum (or in any supplement or amendment thereto) or
any information provided by the Company or any Guarantor to any holder or
prospective purchaser of Securities pursuant to Section 5(h), or in any
amendment thereof or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and agrees to
reimburse each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; PROVIDED, HOWEVER,
that the Company and the Guarantors will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon any such untrue statement or alleged untrue statement or omission or
alleged omission made in the Preliminary Memorandum or the Final Memorandum, or
in any amendment thereof or supplement thereto, in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
any Initial Purchasers through the Representatives specifically for inclusion
therein. This indemnity agreement will be in addition to any liability which the
Company and the Guarantors may otherwise have.
(b) Each Initial Purchaser severally and not jointly agrees to
indemnify and hold harmless the Company, the Guarantors, each of its or their
directors, each of its or their officers, and each person who controls the
Company or any Guarantor within the meaning of
27
either the Act or the Exchange Act, to the same extent as the foregoing
indemnity from the Company and the Guarantors to each Initial Purchaser, but
only with reference to written information relating to such Initial Purchaser
furnished to the Company and the Guarantors by or on behalf of such Initial
Purchaser through the Representatives specifically for inclusion in the
Preliminary Memorandum or the Final Memorandum (or in any amendment or
supplement thereto). This indemnity agreement will be in addition to any
liability which any Initial Purchaser may otherwise have. The Company and the
Guarantors acknowledge that the statements set forth in the last paragraph of
the cover page regarding the delivery of the Securities and, under the heading
"Plan of Distribution," the paragraph related to over-allotment, covering and
stabilization transactions in the Preliminary Memorandum and the Final
Memorandum, constitute the only information furnished in writing by or on behalf
of the Initial Purchasers for inclusion in the Preliminary Memorandum or the
Final Memorandum (or in any amendment or supplement thereto).
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 8, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party (i)
will not relieve it from liability under paragraph (a) or (b) above unless and
to the extent it did not otherwise learn of such action and such failure results
in the forfeiture by the indemnifying party of substantial rights and defenses;
and (ii) will not, in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the indemnification obligation
provided in paragraph (a) or (b) above. The indemnifying party shall be entitled
to appoint counsel of the indemnifying party's choice at the indemnifying
party's expense to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate counsel
(except for local counsel) retained by the indemnified party or parties except
as set forth below); PROVIDED, HOWEVER, that such counsel shall be satisfactory
to the indemnified party. Notwithstanding the indemnifying party's election to
appoint counsel to represent the indemnified party in an action, the indemnified
party shall have the right to employ separate counsel (including local counsel),
and the indemnifying party shall bear the reasonable fees, costs and expenses of
such separate counsel if (i) the use of counsel chosen by the indemnifying party
to represent the indemnified party would present such counsel with a conflict of
interest; (ii) the actual or potential defendants in, or targets of, any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party; (iii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of the institution of such action; or (iv) the indemnifying party
shall authorize the indemnified party to
28
employ separate counsel at the expense of the indemnifying party. An
indemnifying party will not, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a)
or (b) of this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company, the Guarantors and the Initial
Purchasers agree to contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in connection
with investigating or defending same) (collectively "Losses") to which the
Company or any Guarantor, and one or more of the Initial Purchasers may be
subject in such proportion as is appropriate to reflect the relative benefits
received by the Company and the Guarantors on the one hand and by the Initial
Purchasers on the other from the offering of the Securities; PROVIDED, HOWEVER,
that in no case shall any Initial Purchaser (except as may be provided in any
agreement among the Initial Purchasers relating to the offering of the
Securities) be responsible for any amount in excess of the purchase discount or
commission applicable to the Securities purchased by such Initial Purchaser
hereunder. If the allocation provided by the immediately preceding sentence is
unavailable for any reason, the Company, the Guarantors and the Initial
Purchasers shall contribute in such proportion as is appropriate to reflect not
only such relative benefits but also the relative fault of the Company and the
Guarantors on the one hand and of the Initial Purchasers on the other in
connection with the statements or omissions which resulted in such Losses, as
well as any other relevant equitable considerations. Benefits received by the
Company and the Guarantors shall be deemed to be equal to the total net proceeds
from the offering (before deducting expenses) received by the Company, and
benefits received by the Initial Purchasers shall be deemed to be equal to the
total purchase discounts and commissions in each case set forth on the cover of
the Final Memorandum. Relative fault shall be determined by reference to, among
other things, whether any untrue or any alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information provided by the Company or a Guarantor on the one hand or the
Initial Purchasers on the other, the intent of the parties and their relative
knowledge, information and opportunity to correct or prevent such untrue
statement or omission. The Company, the Guarantors and the Initial Purchasers
agree that it would not be just and equitable if contribution were determined by
pro rata allocation or any other method of allocation which does not take
account of the equitable considerations referred to above. Notwithstanding the
provisions of this paragraph (d), no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of
29
this Section 8, each person who controls an Initial Purchaser within the meaning
of either the Act or the Exchange Act and each director, officer, employee and
agent of an Initial Purchaser shall have the same rights to contribution as such
Initial Purchaser, and each person who controls the Company or a Guarantor
within the meaning of either the Act or the Exchange Act and each officer and
director of the Company and any Guarantor shall have the same rights to
contribution as the Company and the Guarantors, subject in each case to the
applicable terms and conditions of this paragraph (d).
9. DEFAULT BY AN INITIAL PURCHASER. If any one or more Initial
Purchasers shall fail to purchase and pay for any of the Securities agreed to be
purchased by such Initial Purchaser hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Initial Purchasers shall be obligated severally to take
up and pay for (in the respective proportions which the amount of Securities set
forth opposite their names in Schedule I hereto bears to the aggregate amount of
Securities set forth opposite the names of all the remaining Initial Purchasers)
the Securities which the defaulting Initial Purchaser or Initial Purchasers
agreed but failed to purchase; PROVIDED, HOWEVER, that in the event that the
aggregate amount of Securities which the defaulting Initial Purchaser or Initial
Purchasers agreed but failed to purchase shall exceed 10% of the aggregate
amount of Securities set forth in Schedule I hereto, the remaining Initial
Purchasers shall have the right to purchase all, but shall not be under any
obligation to purchase any, of the Securities, and if such nondefaulting Initial
Purchasers do not purchase all the Securities, this Agreement will terminate
without liability to any nondefaulting Initial Purchaser, the Company or the
Guarantors. In the event of a default by any Initial Purchaser as set forth in
this Section 9, the Closing Date shall be postponed for such period, not
exceeding five Business Days, as the Representatives shall determine in order
that the required changes in the Final Memorandum or in any other documents or
arrangements may be effected. Nothing contained in this Agreement shall relieve
any defaulting Initial Purchaser of its liability, if any, to the Company, the
Guarantors or any nondefaulting Initial Purchaser for damages occasioned by its
default hereunder.
10. TERMINATION. This Agreement shall be subject to
termination in the absolute discretion of the Representatives, by notice given
to the Company prior to delivery of and payment for the Securities, if at any
time prior to such time (i) trading in the Company's Common Stock shall have
been suspended by the Commission or the American Stock Exchange or trading in
securities generally on the New York Stock Exchange or the American Stock
Exchange shall have been suspended or limited or minimum prices shall have been
established on either of such Exchanges; (ii) a banking moratorium shall have
been declared either by Federal or New York State authorities; or (iii) there
shall have occurred any outbreak or escalation of hostilities, declaration by
the United States of a national emergency or war or other calamity or crisis the
effect of which on financial markets is such as to make it, in the
30
sole judgment of the Representatives, impracticable or inadvisable to proceed
with the offering or delivery of the Securities as contemplated by the Final
Memorandum (exclusive of any amendment or supplement thereto).
11. REPRESENTATIONS AND INDEMNITIES TO SURVIVE. The respective
agreements, representations, warranties, indemnities and other statements of the
Company, the Guarantors or its or their officers and of the Initial Purchasers
set forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation made by or on behalf of the Initial
Purchasers, the Company, the Guarantors or any of the officers, directors or
controlling persons referred to in Section 8 hereof, and will survive delivery
of and payment for the Securities. The provisions of Sections 7 and 8 hereof
shall survive the termination or cancellation of this Agreement.
12. NOTICES. All communications hereunder will be in writing
and effective only on receipt, and, if sent to the Representatives, will be
mailed, delivered or telefaxed to the Xxxxxxx Xxxxx Xxxxxx General Counsel (fax
no.: (000) 000-0000) and confirmed to the General Counsel, Xxxxxxx Xxxxx Xxxxxx
at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: General Counsel;
or, if sent to the Company or any Guarantor, will be mailed, delivered or
telefaxed to the General Counsel (fax no.: (000) 000-0000) and confirmed to the
General Counsel, Xxxxxx Communications Corporation, at 000 Xxxxxxxxxx Xxxx Xxxx,
Xxxx Xxxx Xxxxx, Xxxxxxx 00000.
13. SUCCESSORS. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 8 hereof,
and, except as expressly set forth in Section 5(h) hereof, no other person will
have any right or obligation hereunder.
14. APPLICABLE LAW. This Agreement will be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed within the State of New York.
15. COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same instrument.
16. HEADINGS. The section headings used herein are for
convenience only and shall not affect the construction hereof.
17. DEFINITIONS. The terms which follow, when used in this
Agreement, shall have the meanings indicated.
31
"Act" shall mean the Securities Act of 1933, as amended, and
the rules and regulations of the Commission promulgated thereunder.
"Affiliate" shall have the meaning specified in Rule 501(b) of
Regulation D.
"Business Day" shall mean any day other than a Saturday, a
Sunday or a legal holiday or a day on which banking institutions or trust
companies are authorized or obligated by law to close in The City of New York.
"Commission" shall mean the Securities and Exchange
Commission.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, and the rules and regulations of the Commission promulgated
thereunder.
"Execution Time" shall mean the date and time that this
Agreement is executed and delivered by the parties hereto.
"Investment Company Act" shall mean the Investment Company Act
of 1940, as amended, and the rules and regulations of the Commission promulgated
thereunder.
"NASD" shall mean the National Association of Securities
Dealers, Inc.
"Regulation D" shall mean Regulation D under the Act.
"Regulation S" shall mean Regulation S under the Act.
"Xxxxxxx Xxxxx Xxxxxx" shall mean Xxxxxxx Xxxxx Xxxxxx Inc.
"Trust Indenture Act" shall mean the Trust Indenture Act of
1939, as amended, and the rules and regulations of the Commission promulgated
thereunder.
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this Agreement and your acceptance shall represent a binding agreement
among the Company, the Guarantors and the several Initial Purchasers.
Very truly yours,
XXXXXX COMMUNICATIONS CORPORATION
By:
-------------------------------------
Name:
Title:
32
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
XXXXXXX XXXXX XXXXXX INC.
UBS WARBURG LLC
BEAR, XXXXXXX & CO. INC.
CREDIT SUISSE FIRST BOSTON CORPORATION
By: XXXXXXX XXXXX XXXXXX INC.
By:
----------------------------------------
Name:
Title:
SUBSIDIARY GUARANTORS:
BUD HITS, INC.
BUD SONGS, INC.
CAP COMMUNICATIONS LICENSE OF NEW LONDON, INC.
CAP COMMUNICATIONS OF NEW LONDON, INC.
CAP COMMUNICATIONS, INC.
CHANNEL 66 OF TAMPA, INC.
CLEARLAKE PRODUCTIONS, INC.
XXXXXX MEDIA CORPORATION OF FLORIDA
XXXXXX MEDIA CORPORATION OF SAN FRANCISCO, INC.
DP MEDIA, INC.
DP MEDIA LICENSE OF BATTLE CREEK, INC.
DP MEDIA LICENSE OF BOSTON, INC.
33
DP MEDIA LICENSE OF MARTINSBURG, INC.
DP MEDIA LICENSE OF MILWAUKEE, INC.
DP MEDIA LICENSE OF XXXXXXX XXXXXX, INC.
DP MEDIA OF BATTLE CREEK, INC.
DP MEDIA OF BOSTON, INC.
DP MEDIA OF MARTINSBURG, INC.
DP MEDIA OF MILWAUKEE, INC.
DP MEDIA OF XXXXXXX XXXXXX, INC.
DP MEDIA OF ST. LOUIS, INC.
FLAGLER PRODUCTIONS, INC.
HISPANIC BROADCASTING, INC.
IRON MOUNTAIN PRODUCTIONS, INC.
OCEAN STATE TELEVISION, LLC
PAX HITS PUBLISHING, INC.
PAX INTERNET, INC.
PAX NET TELEVISION PRODUCTIONS, INC.
PAX NET, INC.
XXXXXX AKRON LICENSE, INC.
XXXXXX ALBANY LICENSE, INC.
XXXXXX ALBUQUERQUE LICENSE, INC.
XXXXXX ATLANTA LICENSE, INC.
XXXXXX BIRMINGHAM LICENSE, INC.
XXXXXX BOSTON LICENSE, INC.
XXXXXX BOSTON-68 LICENSE, INC.
XXXXXX BUFFALO LICENSE, INC.
XXXXXX CEDAR RAPIDS LICENSE, INC.
XXXXXX CHARLESTON LICENSE, INC.
XXXXXX CHICAGO LICENSE, INC.
XXXXXX COMMUNICATIONS LICENSE COMPANY, LLC
XXXXXX COMMUNICATIONS LPTV, INC.
XXXXXX COMMUNICATIONS MANAGEMENT COMPANY, INC.
XXXXXX COMMUNICATIONS OF AKRON-23, INC.
XXXXXX COMMUNICATIONS OF ALBANY-55, INC.
34
XXXXXX COMMUNICATIONS OF ALBUQUERQUE-14, INC.
XXXXXX COMMUNICATIONS OF ATLANTA-14, INC.
XXXXXX COMMUNICATIONS OF BIRMINGHAM-44, INC.
XXXXXX COMMUNICATIONS OF BOSTON-46, INC.
XXXXXX COMMUNICATIONS OF BOSTON-60, INC.
XXXXXX COMMUNICATIONS OF BOSTON-68, INC.
XXXXXX COMMUNICATIONS OF BUFFALO-51, INC.
XXXXXX COMMUNICATIONS OF CEDAR RAPIDS-48, INC.
XXXXXX COMMUNICATIONS OF CHARLESTON-29, INC.
XXXXXX COMMUNICATIONS OF CHICAGO-38, INC.
XXXXXX COMMUNICATIONS OF DALLAS-68, INC.
XXXXXX COMMUNICATIONS OF XXXXXXXXX-67, INC.
XXXXXX COMMUNICATIONS OF DENVER-59, INC.
XXXXXX COMMUNICATIONS OF DES MOINES-39, INC.
XXXXXX COMMUNICATIONS OF DETROIT-31, INC.
XXXXXX COMMUNICATIONS OF FAYETTEVILLE-62, INC.
XXXXXX COMMUNICATIONS OF FRESNO-61, INC.
XXXXXX COMMUNICATIONS OF GREENSBORO-16, INC.
XXXXXX COMMUNICATIONS OF GREENVILLE-38, INC.
XXXXXX COMMUNICATIONS OF HONOLULU-66, INC.
35
XXXXXX COMMUNICATIONS OF HOUSTON-49, INC.
XXXXXX COMMUNICATIONS OF JACKSONVILLE-21, INC.
XXXXXX COMMUNICATIONS OF JACKSONVILLE-35, INC.
XXXXXX COMMUNICATIONS OF KANSAS CITY-50, INC.
XXXXXX COMMUNICATIONS OF KNOXVILLE-54, INC.
XXXXXX COMMUNICATIONS OF LEXINGTON-67, INC.
XXXXXX COMMUNICATIONS OF LOS ANGELES-30, INC.
XXXXXX COMMUNICATIONS OF LOUISVILLE-21, INC.
XXXXXX COMMUNICATIONS OF MEMPHIS-50, INC.
XXXXXX COMMUNICATIONS OF MIAMI-35, INC.
XXXXXX COMMUNICATIONS OF MINNEAPOLIS-41, INC.
XXXXXX COMMUNICATIONS OF MOBILE-61, INC.
XXXXXX COMMUNICATIONS OF NASHVILLE-28, INC.
XXXXXX COMMUNICATIONS OF NEW ORLEANS-49, INC.
XXXXXX COMMUNICATIONS OF NEW YORK-31, INC.
XXXXXX COMMUNICATIONS OF NORFOLK-49, INC.
XXXXXX COMMUNICATIONS OF OKLAHOMA CITY-62, INC.
XXXXXX COMMUNICATIONS OF ORLANDO-56, INC.
XXXXXX COMMUNICATIONS OF PHILADELPHIA-61, INC.
XXXXXX COMMUNICATIONS OF PHOENIX-13, INC.
36
XXXXXX COMMUNICATIONS OF PHOENIX-51, INC.
XXXXXX COMMUNICATIONS OF PITTSBURGH-40, INC.
XXXXXX COMMUNICATIONS OF PORTLAND-22, INC.
XXXXXX COMMUNICATIONS OF PORTLAND-23, INC.
XXXXXX COMMUNICATIONS OF PROVIDENCE-69, INC.
XXXXXX COMMUNICATIONS OF ROANOKE-38, INC.
XXXXXX COMMUNICATIONS OF SACRAMENTO-29, INC.
XXXXXX COMMUNICATIONS OF SALT LAKE CITY-30, INC.
XXXXXX COMMUNICATIONS OF SAN ANTONIO-26, INC.
XXXXXX COMMUNICATIONS OF SAN XXXX-65, INC.
XXXXXX COMMUNICATIONS OF SAN XXXX, INC.
XXXXXX COMMUNICATIONS OF SCRANTON-64, INC.
XXXXXX COMMUNICATIONS OF SEATTLE-33, INC.
XXXXXX COMMUNICATIONS OF SHREVEPORT-21, INC.
XXXXXX COMMUNICATIONS OF SPOKANE-34, INC.
XXXXXX COMMUNICATIONS OF ST. CROIX-15, INC.
XXXXXX COMMUNICATIONS OF SYRACUSE-56, INC.
XXXXXX COMMUNICATIONS OF TAMPA-66, INC.
XXXXXX COMMUNICATIONS OF TUCSON-46, INC.
XXXXXX COMMUNICATIONS OF TULSA-44, INC.
37
XXXXXX COMMUNICATIONS OF WASHINGTON-66, INC.
XXXXXX COMMUNICATIONS OF WAUSAU-46, INC.
XXXXXX COMMUNICATIONS OF WEST PALM BEACH-67, INC.
XXXXXX COMMUNICATIONS TELEVISION, INC.
XXXXXX XXXXXX LICENSE, INC.
XXXXXX XXXXXXXXX LICENSE, INC.
XXXXXX DENVER LICENSE, INC.
XXXXXX DES MOINES LICENSE, INC.
XXXXXX DETROIT LICENSE, INC.
XXXXXX DEVELOPMENT, INC.
XXXXXX FAYETTEVILLE LICENSE, INC.
XXXXXX FRESNO LICENSE, INC.
XXXXXX GREENSBORO LICENSE, INC.
XXXXXX GREENVILLE LICENSE, INC.
XXXXXX HAWAII LICENSE, INC.
XXXXXX HOUSTON LICENSE, INC.
XXXXXX JACKSONVILLE LICENSE, INC.
XXXXXX JAX LICENSE, INC.
XXXXXX KANSAS CITY LICENSE, INC.
XXXXXX KNOXVILLE LICENSE, INC.
XXXXXX LEXINGTON LICENSE, INC.
XXXXXX LOS ANGELES LICENSE, INC.
XXXXXX MERCHANDISING & LICENSING, INC.
XXXXXX MIAMI-35 LICENSE, INC.
XXXXXX MINNEAPOLIS LICENSE, INC.
XXXXXX MOBILE LICENSE, INC.
XXXXXX NEW YORK LICENSE, INC.
XXXXXX NORFOLK LICENSE, INC.
XXXXXX OKLAHOMA CITY LICENSE, INC.
XXXXXX XXXXXXX LICENSE, INC.
XXXXXX PHILADELPHIA LICENSE, INC.
XXXXXX PHOENIX LICENSE, INC.
XXXXXX PORTLAND LICENSE, INC.
XXXXXX PRODUCTIONS, INC.
XXXXXX ROANOKE LICENSE, INC.
38
XXXXXX SACRAMENTO LICENSE, INC.
XXXXXX SALEM LICENSE, INC.
XXXXXX SALT LAKE CITY LICENSE, INC.
XXXXXX SAN ANTONIO LICENSE, INC.
XXXXXX SAN XXXX LICENSE, INC.
XXXXXX SCRANTON LICENSE, INC.
XXXXXX SEATTLE LICENSE, INC.
XXXXXX SHREVEPORT LICENSE, INC.
XXXXXX SPOKANE LICENSE, INC.
XXXXXX SPORTS OF MIAMI, INC.
XXXXXX ST. CROIX LICENSE, INC.
XXXXXX SYRACUSE LICENSE, INC.
XXXXXX TAMPA-66 LICENSE, INC.
XXXXXX TELEVISION PRODUCTIONS, INC.
XXXXXX TELEVISION, INC.
XXXXXX TENNESSEE LICENSE, INC.
XXXXXX TULSA LICENSE, INC.
XXXXXX WASHINGTON LICENSE, INC.
XXXXXX WAUSAU LICENSE, INC.
PCC DIRECT, INC.
RDP COMMUNICATIONS LICENSE OF INDIANAPOLIS, INC.
RDP COMMUNICATIONS OF INDIANAPOLIS, INC.
RDP COMMUNICATIONS, INC.
TRAVEL CHANNEL ACQUISITION CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President and Assistant
Secretary of each of such
Xxxxxxxxxx Xxxxxxxxxx
39
AMERICA 51, L.P.
By: Xxxxxx Communications of Phoenix-51, Inc.,
its General Partner and Limited Partner
By: Xxxxxx Communications Television, Inc.,
its Limited Partner
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President and Assistant
Secretary of such General and
Limited Partners
40
