Clear Channel Communications, Inc. Form of Underwriting Agreement (Note: Modifications will be made for other types of securities as appropriate)
EXHIBIT 1.2
Clear Channel Communications, Inc.
Form of Underwriting Agreement
(Note: Modifications will be made
for other types of securities
as appropriate)
for other types of securities
as appropriate)
To the Representatives
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New York, New York | |
named in Schedule I
|
[Date] | |
hereto of the Under- |
||
writers named in |
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Schedule II hereto |
Ladies and Gentlemen:
Clear Channel Communications, Inc., a Texas corporation (the “Company”), proposes to sell to
the several underwriters named in Schedule II hereto (the “Underwriters”), for whom you (the
“Representatives”) are acting as representatives, the principal amount of its securities identified
in Schedule I hereto, to be issued under an indenture dated as of October 1, 1997, between the
Company and The Bank of New York, as trustee (the “Trustee”), as amended by the [
]
Supplemental Indenture dated as of [
] (as so amended, the “Indenture”) (said principal
amount to be issued and sold by the Company being hereinafter called the “Securities”). If the
firm or firms listed in Schedule II hereto include only the firm or firms listed in Schedule I
hereto, then the terms “Underwriters” and “Representatives”, as used herein, shall each be deemed
to refer to such firm or firms. To the extent there are no additional Underwriters listed on
Schedule I other than you, the term Representatives as used herein shall mean you, as Underwriters,
and the terms Representatives and Underwriters shall mean either the singular or plural as the
context requires. Any reference herein to the Registration Statement, the Base Prospectus, any
Preliminary Prospectus or the Final Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to Item 12 of Form S-3 which were filed under
the Exchange Act on or before the Effective Date of the Registration Statement or the issue date of
the Base Prospectus, any Preliminary Prospectus or the Final Prospectus, as the case may be; and
any reference herein to the terms “amend”, “amendment” or “supplement” with respect to the
Registration Statement, the Base Prospectus, any Preliminary Prospectus or the Final Prospectus
shall be deemed to refer to and include the filing of any document under the Exchange Act after the
Effective Date of the Registration Statement or the issue date of the Base Prospectus, any
Preliminary Prospectus or the Final Prospectus, as the case may be, deemed to be incorporated
therein by reference. The use of the neuter in this Agreement shall include the feminine and
masculine wherever appropriate.
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1. Representations and Warranties. The Company represents and
warrants to, and agrees with, each Underwriter as set forth below in this Section
1. Certain terms used in this Section 1 are defined in Section 17 hereof.
(a) The Company meets the requirements for the use of Form S-3 under the Act and has
filed with the Commission a registration statement (the file number of which is set forth
in Schedule I hereto) on such Form, including a related Base Prospectus, for registration
under the Act of the offering and sale of the Securities. Such Registration Statement,
including any amendments thereto filed prior to the Execution Time, has become effective.
The Company may have filed with the Commission, as part of an amendment to the Registration
Statement or pursuant to Rule 424(b), one or more preliminary prospectus supplements
relating to the Securities, each of which has previously been furnished to you. The
Company will file with the Commission a final prospectus supplement relating to the
Securities in accordance with Rule 424(b). As filed, such final prospectus supplement
shall contain all information required by the Act and the rules thereunder, and, except to
the extent the Representatives shall agree in writing to a modification, shall be in all
substantive respects in the form furnished to you prior to the Execution Time or, to the
extent not completed at the Execution Time, shall contain only such specific additional
information and other changes (beyond that contained in the Base Prospectus and any
Preliminary Prospectus) as the Company has advised you, prior to the Execution Time, will
be included or made therein. The Registration Statement, at the Execution Time, meets the
requirements set forth in Rule 415(a)(1)(x).
(b) On each Effective Date, the Registration Statement did or will, and when the Final
Prospectus is first filed in accordance with Rule 424(b) and on the Closing Date (as
defined herein), the Final Prospectus (and any supplement thereto) will, comply in all
material respects with the applicable requirements of the Act, the Exchange Act and the
Trust Indenture Act and the respective rules thereunder; on each Effective Date and at the
Execution Time, the Registration Statement did not and will not contain any untrue
statement of a material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein not misleading; on the
Effective Date and on the Closing Date the Indenture did or will comply in all material
respects with the requirements of the Trust Indenture Act and the rules thereunder; and on
the date of any filing pursuant to Rule 424(b) and on the Closing Date, the Final
Prospectus (together with any supplement thereto) will not, include any untrue statement of
a material fact or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading;
provided, however, that the Company makes no representations or warranties
as to (i) that part of the Registration Statement which shall constitute the Statement of
Eligibility and Qualification (Form T-1) under the Trust Indenture Act of the Trustee or
(ii) the information contained in or omitted from the Registration Statement or the Final
Prospectus (or any supplement thereto) in reliance upon and in conformity with information
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furnished in writing to the Company by or on behalf of any Underwriter through the
Representatives specifically for inclusion in the Registration Statement or the Final
Prospectus (or any supplement thereto), it being understood and agreed that the only such
information furnished by or on behalf of any Underwriters consists of the information
described as such in Section 7(b) hereof.
(c) (i) The Disclosure Package and the final term sheet prepared and filed pursuant to
Section 4(b) hereto, when taken together as a whole, and (ii) each electronic roadshow when
taken together as a whole with the Disclosure Package, and the final term sheet prepared
and filed pursuant to Section 4(b) hereto, do not contain any untrue statement of a
material fact or omit to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading. The
preceding sentence does not apply to statements in or omissions from the Disclosure Package
based upon and in conformity with written information furnished to the Company by any
Underwriter through the Representatives specifically for use therein, it being understood
and agreed that the only such information furnished by or on behalf of any Underwriter
consists of the information described as such in Section 7(b) hereof.
(d) (i) At the earliest time after the filing of the Registration Statement that the
Company or another offering participant made a bona fide offer (within the meaning of Rule
164(h)(2)) of the Securities and (ii) as of the Execution Time (with such date being used
as the determination date for purposes of this clause (ii)), the Company was not and is not
an Ineligible Issuer (as defined in Rule 405), without taking account of any determination
by the Commission pursuant to Rule 405 that it is not necessary that the Company be
considered an Ineligible Issuer.
(e) Each Issuer Free Writing Prospectus and the final term sheet prepared and filed
pursuant to Section 4(b) hereto does not include any information that conflicts with the
information contained in the Registration Statement, including any document incorporated
therein and any prospectus supplement deemed to be a part thereof that has not been
superseded or modified. The foregoing sentence does not apply to statements in or
omissions from any Issuer Free Writing Prospectus based upon and in conformity with written
information furnished to the Company by any Underwriter through the Representatives
specifically for use therein, it being understood and agreed that the only such information
furnished by or on behalf of any Underwriter consists of the information described as such
in Section 7(b) hereof.
(f) The Company has been duly organized and is validly existing as a corporation in
good standing under the laws of the State of Texas, with corporate power and authority to
own its properties and conduct its business as described in the Disclosure Package and
Final Prospectus; each of the subsidiaries of the Company as listed on Schedule III hereto
(collectively, the “Subsidiaries”) has been duly organized and is validly existing in good
standing under the laws of the jurisdiction of its organization, with power and authority
to own or lease its
3
properties and conduct its business as described in the Disclosure Package and the
Final Prospectus; the Company and each of the Subsidiaries are duly qualified to transact
business in all jurisdictions in which the conduct of their business requires such
qualification and a failure to qualify would have a material adverse effect upon the
business or financial condition of the Company and the Subsidiaries taken as a whole;
except as described in the Disclosure Package and the Final Prospectus, the outstanding
shares of capital stock of each of the Subsidiaries owned by the Company or a Subsidiary
have been duly authorized and validly issued, are fully paid and nonassessable and are
owned by the Company or another subsidiary free and clear of all liens, encumbrances and
security interests and no options, warrants or other rights to purchase, agreements or
other obligations to issue or other rights to convert any obligations into shares of
capital stock or ownership interests in the Subsidiaries are outstanding.
(g) The authorized shares of Common Stock of the Company have been duly authorized.
The outstanding shares of Common Stock of the Company have been duly authorized and are
validly issued, fully-paid and non-assessable.
(h) This Agreement has been duly authorized, executed and delivered by the Company and
is a legal, valid and binding obligation of the Company enforceable against the Company in
accordance with its terms.
(i) The Indenture and the Securities conform in all material respects with the
statements concerning them in the Disclosure Package and the Final Prospectus.
(j) The Commission has not issued an order preventing or suspending the use of any
Base Prospectus, Preliminary Prospectus or Final Prospectus relating to the proposed
offering of the Securities nor instituted proceedings for that purpose.
(k) The consolidated financial statements of the Company and its subsidiaries,
together with related notes and schedules incorporated by reference in the Disclosure
Package and the Final Prospectus present fairly the financial position and the results of
operations of the Company and its subsidiaries consolidated, at the indicated dates and for
the indicated periods. Such financial statements have been prepared in accordance with
generally accepted principles of accounting, consistently applied throughout the periods
involved, and all adjustments necessary for a fair presentation of results for such periods
have been made. The selected and summary financial and statistical data included in the
Disclosure Package and the Final Prospectus present fairly the information shown therein
and have been compiled on a basis consistent with the financial statements incorporated by
reference therein and the books and records of the Company. The pro forma financial
information, if any, included in the Disclosure Package and the Final Prospectus presents
fairly the information shown therein, have been properly compiled on the pro forma bases
described therein, and, in the opinion of the Company, the assumptions used in the
preparation thereof are reasonable and
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the adjustments used therein are appropriate to give effect to the transactions or
circumstances referred to therein.
(l) Except for those license renewal applications of the Company or its subsidiaries
currently pending before the Federal Communications Commission (the “FCC”), or as set forth
in the Disclosure Package and the Final Prospectus, there is no action or proceeding
pending or, to the knowledge of the Company, threatened against the Company or any of the
Subsidiaries before any court or administrative agency which could reasonably be likely to
result in any material adverse change in the earnings, business, management, properties,
assets, rights, operations, condition (financial or otherwise) of the Company and of the
Subsidiaries (taken as a whole).
(m) The Company and the Subsidiaries have good and marketable title to all of the
properties and assets reflected in the financial statements herein above described (or as
described in the Disclosure Package and the Final Prospectus) subject to no material lien,
mortgage, pledge, charge or encumbrance of any kind, except those reflected in such
financial statements or as described in the Disclosure Package and the Final Prospectus.
The Company and the Subsidiaries occupy their leased properties under valid leases with
such exceptions as are not material to the Company and the subsidiaries taken as a whole
and do not materially interfere with the use made and proposed to be made of such
properties by the Company and the Subsidiaries.
(n) The Company and the Subsidiaries have filed all Federal, State and foreign income
tax returns which have been required to be filed and have paid all taxes indicated by said
returns and all assessments received by them or any of them to the extent that such taxes
have become due and are not being contested in good faith. The Company has no knowledge of
any tax deficiency that has been or might be asserted against the Company that would have a
material adverse effect on the Company and its subsidiaries taken as a whole.
(o) Since the last date as of which information is given in the Disclosure Package and
the Final Prospectus, as it may be amended or supplemented, there has not been any material
adverse change or any development involving a prospective material adverse change in or
affecting the earnings, business, management, properties, assets, rights, operations,
condition (financial or otherwise) or business prospects of the Company and its
subsidiaries (taken as a whole), whether or not occurring in the ordinary course of
business, other than general economic and industry conditions, changes in the ordinary
course of business and changes or transactions described or contemplated in the Disclosure
Package and the Final Prospectus, and there has not been any material definitive agreement
entered into by the Company or the Subsidiaries, other than transactions in the ordinary
course of business and changes and transactions contemplated by the Disclosure Package and
the Final Prospectus, as it may be amended or supplemented. None of the Company or the
Subsidiaries have any
5
material contingent obligations which are not disclosed in the Disclosure Package and
the Final Prospectus, as it may be amended or supplemented.
(p) Neither the Company nor any of the Subsidiaries is or with the giving of notice or
lapse of time or both, will be in default under its certificate or articles of
incorporation, by-laws or partnership agreements or any agreement, lease, contract,
indenture or other instrument or obligation to which it is a party or by which it, or any
of its properties, is bound and which default is of material significance in respect of the
business or financial condition of the Company and its subsidiaries (taken as a whole).
The execution and delivery of this Agreement and the consummation of the transactions
herein contemplated and the fulfillment of the terms hereof will not conflict with or
result in a breach of any of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust or other material agreement or instrument to which the
Company or any Subsidiary is a party, or of the certificate or articles of incorporation or
by-laws of the Company or any order, rule or regulation applicable to the Company or any
Subsidiary, or of any court or of any regulatory body or administrative agency or other
governmental body having jurisdiction, except in all cases a conflict, breach or default
which would not have a materially adverse effect on the business or financial condition of
the Company and the subsidiaries (taken as a whole).
(q) Each approval, consent, order, authorization, designation, declaration or filing
by or with any regulatory, administrative or other governmental body necessary in
connection with the execution and delivery by the Company of this Agreement and the
consummation of the transactions herein contemplated (except such additional steps as may
be required by the National Association of Securities Dealers, Inc. (“NASD”) or the New
York Stock Exchange (“NYSE”) or as may be necessary to qualify the Securities for public
offering by the Underwriters under State securities or Blue Sky laws) has been obtained or
made and is in full force and effect.
(r) The Company and each of the Subsidiaries hold all material licenses, certificates
and permits from governmental authorities, including without limitation, the FCC, which are
necessary to the conduct of their businesses; and neither the Company nor any of the
Subsidiaries has received notice of any infringement of any material patents, patent
rights, trade names, trademarks or copyrights, which infringement is material to the
business of the Company and the Subsidiaries (taken as a whole).
(s) [
], who has certified certain of the financial statements incorporated
by reference in the Disclosure Package and the Final Prospectus, is to the knowledge of the
Company an independent registered public accounting firm as required by the Act and the
Rules and Regulations.
(t) To the Company’s knowledge, there are no affiliations or associations between any
member of the NASD and any of the Company’s officers, directors
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or 5% or greater security holders except as otherwise disclosed in writing to the
Representatives.
(u) Neither the Company nor any Subsidiary is an “investment company” within the
meaning of such term under the Investment Company Act of 1940, as amended (the “1940 Act”)
and the rules and regulations of the Commission thereunder.
(v) The Company maintains a system of internal accounting controls sufficient to
provide reasonable assurances that (i) transactions are executed in accordance with
management’s general or specific authorization; (ii) transactions are recorded as necessary
to permit preparation of financial statements in conformity with generally accepted
accounting principles and to maintain accountability for assets; (iii) access to assets is
permitted only in accordance with management’s general or specific authorization; and (iv)
the recorded accountability for assets is compared with existing assets at reasonable
intervals and appropriate action is taken with respect to any differences. The Company’s
internal controls over financial reporting are effective, and the Company is not aware of
any material weakness or its internal control over financial reporting. The Company
maintains “disclosure controls and procedures” (as such term is defined in Rule 13a-15(e)
under the Exchange Act), and such disclosure controls and procedures are effective.
(w) The Company and each of its Subsidiaries carry, or are covered by, insurance,
including self insurance, in such amounts and covering such risks as is adequate for the
conduct of their respective businesses and the value of their respective properties and as
is customary for companies engaged in similar industries.
(x) The Company is in compliance in all material respects with all presently
applicable provisions of the Employee Retirement Income Security Act of 1974, as amended,
including the regulations and published interpretations thereunder (“ERISA”); no
“reportable event” (as defined in ERISA) for which the Company would have any liability has
occurred and is continuing; the Company has not incurred and does not expect to incur
liability under (i) Title IV of ERISA with respect to termination of, or withdrawal from,
any “pension plan” or (ii) Sections 412 or 4971 of the Internal Revenue Code of 1986, as
amended, including the regulations and published interpretations thereunder (the “Code”);
and each “pension plan” for which the Company would have any liability that is intended to
be qualified under Section 401(a) of the Code is so qualified in all material respects and
nothing has occurred, whether by action or by failure to act, which would cause the loss of
such qualification and where any such noncompliance, “reportable event,” liability or
nonqualification, alone or in the aggregate, would not have a material adverse effect on
the Company and its subsidiaries taken as a whole.
7
Any certificate signed by any officer of the Company and delivered to the Representatives or
counsel for the Underwriters in connection with the offering of the Securities shall be deemed
solely to be a representation and warranty by the Company, as to matters covered thereby, to each
Underwriter.
2. Purchase and Sale. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Company
agrees to sell to each Underwriter, and each Underwriter agrees, severally and not
jointly, to purchase at the purchase price set forth on Schedule I, the principal
amount of Securities set forth opposite such Underwriter’s name in Schedule II.
3. Delivery and Payment. Delivery of and payment for the Securities
shall be made on the date and at the time specified in Schedule I hereto, which
date and time may be postponed by agreement among the Representatives and the
Company or as provided in Section 8 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 Underwriters against payment by the several Underwriters through the
Representatives of the respective aggregate purchase prices of the Securities being
sold by the Company to or upon the order of the Company by wire transfer payable in
same-day funds to an 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. Agreements. The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, the Company will not
file any amendment of the Registration Statement or supplement (including the Final
Prospectus or any Preliminary Prospectus) to the Base Prospectus or any Rule 462(b)
Registration Statement unless the Company has furnished you a copy for your review prior to
filing and will not file any such proposed amendment or supplement to which you reasonably
object in writing. Subject to the foregoing sentence, the Company will cause the Final
Prospectus, properly completed, and any supplement thereto to be filed with the Commission
pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and
will provide evidence satisfactory to the Representatives of such timely filing. The
Company will promptly advise the Representatives (i) when the Registration Statement, if
not effective at the Execution Time, shall have become effective, (ii) when the Final
Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant
to Rule 424(b) or when any Rule 462(b) Registration Statement shall have been filed with
the Commission, (iii) when, prior to termination of the offering of the Securities, any
amendment to the Registration Statement shall have been filed or become effective, (iv) of
any
8
request by the Commission or its staff for any amendment of the Registration
Statement, or any Rule 462(b) Registration Statement, or for any supplement to the Final
Prospectus or of any additional information, (v) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose and (vi) 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. The Company will use its reasonable efforts to prevent the issuance of any such
stop order or the suspension of any such qualification and, if issued, to obtain as soon as
possible the withdrawal thereof.
(b) The Company will prepare a final term sheet, containing solely a description of
final terms of the Securities and the offering thereof, in a form approved by you and to
file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If, at any time prior to the filing of a final prospectus pursuant to Rule 424(b),
any event occurs as a result of which the Disclosure Package 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 at such
time not misleading, the Company will (i) notify promptly the Representatives so that any
use of the Disclosure Package may cease until it is amended or supplemented; (ii) amend or
supplement the Disclosure Package to correct such statement or omission; and (iii) supply
any amendment or supplement to you in such quantities as you may reasonably request.
(d) If, at any time when the Final Prospectus relating to the Securities is required
to be delivered under the Act (including in circumstances where such requirement may be
satisfied pursuant to Rule 172), any event occurs as a result of which the Final Prospectus
as then 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 at such time not misleading, or if it shall be
necessary to amend the Registration Statement, file a new Registration Statement or
supplement the Final Prospectus to comply with the Act or the Exchange Act or the
respective rules thereunder, including in connection with use or delivery of the Final
Prospectus, the Company promptly will (i) notify the Representatives of such event, (ii)
prepare and file with the Commission, subject to the second sentence of paragraph (a) of
this Section 4, an amendment or supplement or new registration statement which will correct
such statement or omission or effect such compliance, (iii) use its best efforts to have
any amendment to the Registration Statement or new registration statement declared
effective as soon as practicable in order to avoid any disruption in use of the Final
Prospectus and (iv) supply any supplemented Final Prospectus to you in such quantities as
you may reasonably request.
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(e) The Company agrees that, unless it has obtained or will obtain the prior written
consent of the Representatives, and each Underwriter, severally and not jointly, agrees
with the Company that, unless it has obtained or will obtain, as the case may be, the prior
written consent of the Company, it has not made and will not make any offer relating to the
Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise
constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the
Company with the Commission or retained by the Company under Rule 433, other than the
information contained in the final term sheet prepared and filed pursuant to Section 4(b)
hereto; provided that the prior written consent of the parties hereto shall be deemed to
have been given in respect of the Free Writing Prospectuses included in Schedule IV hereto.
Any such free writing prospectus consented to by the Representatives or the Company is
hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that
(x) it has treated and will treat, as the case may be, each Permitted Free Writing
Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as
the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted
Free Writing Prospectus, including in respect of timely filing with the Commission,
legending and record keeping. The Company will not, without the prior written consent of
[
], offer, sell, contract to sell, pledge, or otherwise dispose of, (or enter
into any transaction which is designed to, or might reasonably be expected to, result in
the disposition (whether by actual disposition or effective economic disposition due to
cash settlement or otherwise) by the Company or any affiliate of the Company or any person
in privity with the Company or any affiliate of the Company) directly or indirectly,
including the filing (or participation in the filing) of a registration statement with the
Commission in respect of, or establish or increase a put equivalent position or liquidate
or decrease a call equivalent position within the meaning of Section 16 of the Exchange
Act, any debt securities issued or guaranteed by the Company (other than the Securities) or
publicly announce an intention to effect any such transaction, until the Business Day set
forth on Schedule I hereto.
(f) As soon as practicable, the Company will make generally available to its security
holders and to the Representatives an earnings statement or statements of the Company and
its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158
under the Act.
(g) The Company will furnish to the Representatives and counsel for the Underwriters,
without charge, copies of the Registration Statement (including exhibits thereto) and, so
long as delivery of a prospectus by an Underwriter or dealer may be required by the Act
(including in circumstances where such requirement may be satisfied pursuant to Rule 172),
as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free
Writing Prospectus and any supplement thereto as the Representatives may reasonably
request. The Company will pay the expenses of printing or other production of all
documents relating to the offering.
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(h) The Company will arrange, if necessary, for the qualification of the Securities
for sale under the laws of such jurisdictions as the Representatives may designate, will
maintain such qualifications in effect so long as required for the distribution of the
Securities and will pay any fee of the National Association of Securities Dealers, Inc., in
connection with its review of the offering, provided that the Company will not be required
to file a consent to service of process in any state in which it is not qualified or for
which consent has not been given.
(i) The Company shall not invest, or otherwise use the proceeds received by the
Company from its sale of the Securities in such a manner as would require the Company or
any of the Subsidiaries to register as an investment company under the ▇▇▇▇ ▇▇▇.
5. Conditions to the Obligations of the Underwriters. The obligations
of the Underwriters to purchase the Securities shall be subject to the accuracy of
the representations and warranties on the part of the Company contained herein as
of the Execution Time and the Closing Date pursuant to Section 3 hereof, to the
accuracy of the statements of the Company made in any certificates pursuant to the
provisions hereof, to the performance by the Company of its obligations hereunder
and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner
and within the time period required by Rule 424(b); the final term sheet contemplated by
Section 4(b) hereto and any other material required to be filed by the Company pursuant to
Rule 433(d) under the Act, shall have been filed with the Commission within the applicable
time periods prescribed for such filings by Rule 433; and no stop order suspending the
effectiveness of the Registration Statement or any notice objecting to its use shall have
been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have furnished to the Representatives the opinion of
[
], counsel for the Company, dated the Closing Date, to the effect that:
(i) The Company is validly existing as a corporation in good standing under
the laws of the State of Texas, with corporate power and authority to own or lease
its properties and conduct its business as described in the Disclosure Package and
the Final Prospectus; and the outstanding shares of capital stock of each of the
Subsidiaries have been duly authorized and validly issued, are fully paid and
non-assessable; and, to such counsel’s knowledge, except (A) as reflected in the
Company’s financial statements, (B) as described in the Registration Statement or
(C) as disclosed in such counsel’s opinion, (x) the outstanding shares of capital
stock of each of the Subsidiaries are owned by the Company or its subsidiary free
and clear of all liens, encumbrances and security interests and (y) no options,
warrants or other rights to purchase, agreements or
11
other obligations to issue, or other rights to convert any obligations into
any shares of capital stock or of ownership interests in the Subsidiaries are
outstanding.
(ii) The Indenture and the Securities conform in all material respects to the
descriptions thereof contained in the Disclosure Package and the Final Prospectus.
(iii) Except as described in the Disclosure Package and the Final Prospectus,
to the knowledge of such counsel, no holder of any securities of the Company or any
other person has the right, contractual or otherwise, which has not been satisfied
or effectively waived, to cause the Company to sell or otherwise issue to them, or
to permit them to underwrite the sale of, any of the Securities or the right to
have any Common Stock or other securities of the Company included in the
Registration Statement or the right, as a result of the filing of the Registration
Statement, to require registration under the Act of any shares of Common Stock or
other securities of the Company.
(iv) the Indenture has been duly authorized, executed and delivered, has been
duly qualified under the Trust Indenture Act, and constitutes a legal, valid and
binding instrument enforceable against the Company in accordance with its terms and
the Securities have been duly authorized and, when executed and authenticated in
accordance with the provisions of the Indenture and delivered to and paid for by
the Underwriters pursuant to this Agreement, will constitute legal, valid and
binding obligations of the Company entitled to the benefits of the Indenture
(subject, in respect to both the Indenture and the Securities, as to enforcement of
remedies, to applicable bankruptcy, reorganization, insolvency, fraudulent
conveyance or transfer, moratorium or other laws affecting creditors’ rights
generally from time to time in effect);
(v) The Registration Statement has become effective under the Act and, to the
knowledge of such counsel, no stop order proceedings with respect thereto have been
instituted or are pending or threatened under the Act.
(vi) The Registration Statement, the Final Prospectus and each amendment or
supplement thereto and documents incorporated by reference therein (each as amended
to date) comply as to form in all material respects with the requirements of the
Act or the Exchange Act, as applicable and the applicable rules and regulations
thereunder (except that such counsel need express no opinion as to the statistical
information contained in the Final Prospectus or financial statements, schedules
and other financial information incorporated by reference therein).
12
(vii) The statements under the captions “Business” and “Description of the
Notes” in the Disclosure Package and the Final Prospectus, insofar as such
statements constitute a summary of documents referred to therein or matters of law,
are accurate summaries and fairly and accurately present the information called for
with respect to such documents and matters in all material respects.
(viii) To such counsel’s knowledge, there are no contracts or documents
required to be filed as exhibits to the Registration Statement or described in the
Registration Statement or the Disclosure Package and the Final Prospectus
(excluding any document incorporated therein by reference) which are not so filed
or described as required, and such contracts and documents as are summarized in the
Registration Statement or the Disclosure Package and the Final Prospectus
(excluding any document incorporated therein by reference) are fairly summarized in
all material respects.
(ix) To such counsel’s knowledge, there are no material legal proceedings
pending or threatened against the Company or any of the Subsidiaries which are of a
character required to be disclosed in the Disclosure Package and the Final
Prospectus and which has not been properly disclosed therein.
(x) The execution and delivery of the Indenture, the issuance and sale of the
Securities and the execution and delivery of this Agreement and the consummation of
the transactions herein contemplated do not and will not conflict with or result in
a breach of any of the terms or provisions of, or constitute a default under, (a)
the Articles of Incorporation or (b) By-laws of the Company, or (c) to such
counsel’s knowledge, any agreement or instrument filed as an exhibit to the
Company’s most recent annual report on Form 10-K or any subsequent quarterly report
of the Company on Form 10-Q (other than licenses or permits granted by the FCC, on
which such counsel need not express any opinion), or (d) will not contravene any
law, rule or regulation of the United States or the State of Texas or the General
Corporation Law of the State of Delaware, or, to such counsel’s knowledge, any
order or decree of any court or governmental agency or instrumentality, except,
with respect to clause (c) above, a conflict, breach or default which would not
have a materially adverse effect on the business or financial condition of the
Company and its subsidiaries taken as a whole.
(xi) This Agreement has been duly authorized, executed and delivered by the
Company.
(xii) No approval, consent, order, authorization, designation, declaration or
filing by or with any regulatory, administrative or other governmental body having
jurisdiction over the Company is necessary in
13
connection with the execution and delivery of this Agreement and the
consummation of the transactions herein contemplated (other than as may be required
by the NASD or NYSE or as required by State securities and Blue Sky laws as to
which such counsel need express no opinion) except such as have been obtained or
made, specifying the same.
(xiii) The Company is not, and will not become, as a result of the
consummation of the transactions contemplated by this Agreement, and application of
the net proceeds therefor as described in the Final Prospectus, required to
register as an investment company under the 1940 Act.
In rendering such opinion, such counsel may rely (A) as to matters governed by the laws of
states other than Texas or Federal laws on local counsel in such jurisdictions, provided
that in each case such counsel shall state that they believe that they and the Underwriters
are justified in relying on such other counsel and (B) as to matters of fact, on
certificates of responsible officers of the Company and certificates or other written
statements of officers or departments of various jurisdictions having custody of documents
respecting the corporate existence or good standing of the Company and any Subsidiary. In
addition to the matters set forth above, such opinion shall also include a statement to the
effect that nothing has come to the attention of such counsel which leads them to believe
that the Registration Statement, as of the time it became effective under the Act, the
Disclosure Package as of [
] on [
] (which the Representatives have advised
such counsel is a time prior to the first sale of the Notes by the Underwriters), the Final
Prospectus or any amendment or supplement thereto, on the date it was filed pursuant to
Rule 424(b) and the Registration Statement and the Final Prospectus, or any amendment or
supplement thereto, as of the Closing Date, contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary to make the
statements therein not misleading (except that such counsel need express no view as to
matters pertaining to the statistical information contained in the Final Prospectus or
financial statements, schedules and other financial information contained or incorporated
by reference in the Final Prospectus). With respect to such statement, such counsel may
state that their belief is based upon the procedures set forth therein, but is without
independent check and verification.
(c) The Underwriters shall have received on the Closing Date the opinion of
[
], special FCC counsel to the Company, dated the Closing Date, addressed to the
Underwriters as is reasonably acceptable to the Underwriters.
(d) The Representatives shall have received from [
], counsel for the
Underwriters, such opinion or opinions, dated the Closing Date, with respect to the
issuance and sale of the Securities, the Registration Statement, the Disclosure Package and
the Final Prospectus (together with any supplement thereto) and other related matters as
the Representatives may reasonably require,
14
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.
(e) The Company shall have furnished to the Representatives a certificate of the
Company, signed by the Chief Executive Officer or the President and the principal financial
or accounting officer of the Company, in their capacity as such, dated the Closing Date, to
the effect that the signers of such certificate have carefully examined the Registration
Statement, the Final Prospectus, the Disclosure Package and any supplements or amendments
thereto, as well as each electronic roadshow used to offer the Securities, and this
Agreement and that:
(i) the representations and warranties of the Company 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 at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement
has been issued and no proceedings for that purpose have been instituted or, to the
Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the
Disclosure Package and the Final Prospectus (exclusive of any supplement thereto),
there has been no material adverse change in the condition (financial or
otherwise); prospects, 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 Disclosure Package and
the Final Prospectus (exclusive of any supplement thereto).
(f) At the Execution Time and at the Closing Date, [
] shall have furnished
to the Representatives letters dated as of the Execution Time and the Closing Date in form
and substance satisfactory to the Representatives.
(g) Except as agreed to by the Representatives, 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
purpose 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.
(h) 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.
15
If any of the conditions specified in this Section 5 shall not have been fulfilled 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 to the Representatives and counsel for the
Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled 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 5 shall be delivered at the office of
[
], counsel for the Underwriters, at [
], on the Closing Date.
6. Reimbursement of Underwriters’ Expenses. If the sale of the
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 5 hereof is not satisfied,
because of any termination pursuant to Section 9 hereof (other than a termination
under Section 9(b) resulting from a default by an Underwriter as provided in
Section 8 hereof) or because of any refusal, inability or failure on the part of
the Company to perform any agreement herein or comply with any provision hereof
other than by reason of a default by any of the Underwriters, the Company will
reimburse the Underwriters severally through [
] on demand for all
reasonable 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, but the Company shall not be liable in any
event to any of the Underwriters for damages on account of loss of anticipated
profits from the sale of the Securities.
7. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless each Underwriter, the directors, officers, employees
and agents of each Underwriter and each person who controls any Underwriter 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 Registration Statement for the registration of the Securities as originally
filed or in any amendment thereof, or in the Base Prospectus, any Preliminary
Prospectus or any other preliminary prospectus supplement relating to the
Securities, the Final Prospectus or any Issuer Free Writing Prospectus, or the
information contained in the final term sheet required to be prepared and filed
pursuant to Section 4(b) hereto, or in any amendment thereof or supplement thereto,
or arise out of
16
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 not
misleading, and agrees to reimburse each such indemnified party, as reasonably
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.
This indemnity agreement will be in addition to any liability which the Company may
otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold harmless the Company, each
of its directors, each of its officers who signs the Registration Statement, and each
person who controls the Company within the meaning of either the Act or the Exchange Act,
to the same extent as the foregoing indemnity from the Company to each Underwriter, but
only with reference to written information relating to such Underwriter furnished to the
Company by or on behalf of such Underwriter through the Representatives specifically for
inclusion in the documents referred to in the foregoing indemnity. This indemnity
agreement will be in addition to any liability which any Underwriter may otherwise have.
The Company acknowledges that the statements set forth under the heading “Underwriting” in
the fourth, seventh and eighth paragraphs (except for the statement made by the Company in
the third sentence of the eighth paragraph, as such statement relates to the Company) and
in the last two sentences of the tenth paragraph, in any Preliminary Prospectus or the
Final Prospectus, constitute the only information furnished in writing by or on behalf of
the several Underwriters for inclusion in the documents referred to in the foregoing
indemnity.
(c) Promptly after receipt by an indemnified party under this Section 7 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 7, 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
prejudice 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 retained by the
indemnified party or parties except as set forth below); provided, however,
that such counsel shall be reasonably satisfactory to the indemnified party.
Notwithstanding the indemnifying party’s election to appoint counsel to represent the
indemnified party in an action, the indemnified parties shall have the right to employ one
separate counsel (and, if reasonably necessary, one additional local counsel), and the
indemnifying party
17
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 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, (iii) the
indemnifying party shall authorize the indemnified party to 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 7
is unavailable to or insufficient to hold harmless an indemnified party for any reason, the
Company and the Underwriters 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 and one or
more of the Underwriters may be subject in such proportion as is appropriate to reflect the
relative benefits received by the Company and by the Underwriters from the offering of the
Securities; provided, however, that in no case shall any Underwriter
(except as may be provided in any agreement among underwriters relating to the offering of
the Securities) be responsible for any amount in excess of the underwriting discount or
commission applicable to the Securities purchased by such Underwriter hereunder. If the
allocation provided by the immediately preceding sentence is unavailable for any reason,
the Company and the Underwriters shall contribute in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of the Company and of
the Underwriters 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 shall be deemed to be equal to the total net proceeds from the offering (before
deducting expenses), and benefits received by the Underwriters shall be deemed to be equal
to the total underwriting discounts and commissions, in each case as set forth on the cover
page of the Final Prospectus. 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 on the one hand or the Underwriters on the other, the intent of the parties and
their relative knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The Company and the Underwriters 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.
18
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 this Section 7, each person who controls an Underwriter within the meaning of
either the Act or the Exchange Act and each director, officer, employee and agent of an
Underwriter shall have the same rights to contribution as such Underwriter, and each person
who controls the Company within the meaning of either the Act or the Exchange Act, each
officer of the Company who shall have signed the Registration Statement and each director
of the Company shall have the same rights to contribution as the Company, subject in each
case to the applicable terms and conditions of this paragraph (d).
8. Default by an Underwriter. If any one or more Underwriters shall
fail to purchase and pay for any of the Securities agreed to be purchased by such
Underwriter or Underwriters hereunder and such failure to purchase shall constitute
a default in the performance of its or their obligations under this Agreement, the
remaining Underwriters shall be obligated severally to take up and pay within 24
hours for (in the respective proportions which the amount of Securities set forth
opposite their names in Schedule II hereto bears to the aggregate amount of
Securities set forth opposite the names of all the remaining Underwriters) the
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase; provided, however, that in the event that the aggregate
amount of Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase shall exceed 10% of the aggregate amount of Securities set forth
in Schedule II hereto, the remaining Underwriters shall have the right to purchase
within 24 hours all, but shall not be under any obligation to purchase any, of the
Securities, and if such nondefaulting Underwriters do not purchase all the
Securities, this Agreement will terminate without liability to any nondefaulting
Underwriter or the Company. In the event of a default by any Underwriter as set
forth in this Section 8, 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 Registration Statement and the Final Prospectus or in
any other documents or arrangements may be effected. Nothing contained in this
Agreement shall relieve any defaulting Underwriter of its liability, if any, to the
Company and any nondefaulting Underwriter for damages occasioned by its default
hereunder.
9. Termination. This Agreement may be terminated by you by notice to
the Company as follows:
(a) at any time after the Execution Time and prior to the Closing Date if any of the
following has occurred: (i) any material adverse change or any development involving a
prospective material adverse change in or affecting the
19
condition, financial or otherwise, of the Company and its subsidiaries taken as a
whole or the earnings, business affairs, management or business prospects of the Company
and its subsidiaries taken as a whole, whether or not arising in the ordinary course of
business, (ii) any outbreak or escalation of hostilities or other national or international
calamity or crisis or change in economic or political conditions, if the effect of such
outbreak, escalation, calamity, crisis or change on the financial markets of the United
States would, in your reasonable judgment, make the offering or delivery of the Securities
impracticable, (iii) suspension of trading in securities on the NYSE or limitation on
prices (other than limitations on hours or numbers of days of trading) for securities on
the NYSE, (iv) the enactment, publication, decree or other promulgation of any federal or
state statute, regulation, rule or order of any court or other governmental authority which
in your reasonable opinion materially and adversely affects or will materially or adversely
affect the business or operations of the Company and its subsidiaries taken as a whole, (v)
declaration of a banking moratorium by either federal or New York State authorities, (vi) a
material disruption in commercial banking or securities settlement or clearance services in
the United States, if the effect of such disruption is so material or adverse that it makes
the offering or delivery of the Securities on the terms and in the manner contemplated in
the Final Prospectus impraticable or (vii) the taking of any action by any federal, state
or local government or agency in respect of its monetary or fiscal affairs which in your
reasonable opinion has a material adverse effect on the securities markets in the United
States; or
(b) as provided in Sections 5 and 8 of this Agreement.
10. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers, and of the Underwriters set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or the Company or any of the
officers, directors or controlling persons referred to in Section 7 hereof, and
will survive delivery of and payment for the Securities. The provisions of
Sections 6 and 7 hereof shall survive the termination or cancellation of this
Agreement.
11. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representatives, will be mailed or
delivered to [
], attention: [
] or, if sent to the Company, will
be mailed or delivered to ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ attention:
[
].
12. 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 7 hereof, and no other
person will have any right or obligation
20
hereunder. The term “successors” shall not include any purchaser of the
Securities merely because of such purchase.
13. 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.
14. No Fiduciary Duty. The Company acknowledges and agrees that: (i)
the purchase and sale of the Securities pursuant to this Agreement, including the
determination of the public offering price of the Securities and any related
discounts and commissions, is an arm’s-length commercial transaction between the
Company, on the one hand, and the several Representatives, on the other hand, and
the Company is capable of evaluating and understanding and understands and accepts
the terms, risks and conditions of the transactions contemplated by this Agreement;
(ii) in connection with each transaction contemplated hereby and the process
leading to such transaction each Representative is and has been acting solely as a
principal and is not the financial advisor, agent or fiduciary of the Company, or
affiliates, stockholders, creditors or employees or any other party; (iii) no
Representative has assumed or will assume an advisory, agency or fiduciary
responsibility in favor of the Company with respect to any of the transactions
contemplated hereby or the process leading thereto (irrespective of whether such
Representative has advised or is currently advising the Company on other matters)
and no Underwriter has any obligation to the Company with respect to any of the
transactions contemplated hereby or the process leading thereto (irrespective of
whether such Representative has advised or is currently advising the Company on
other matters) and no Underwriter has any obligation to the Company with respect to
the offering contemplated hereby except the obligations expressly set forth in this
Agreement; (iv) the several Representatives and their respective affiliates may be
engaged in a broad range of transactions that involve interests that differ from
those of the Company and that the several Representatives have no obligation to
disclose any of such interests by virtue of any advisory, agency or fiduciary
relationship, except to the extent that any such engagement materially adversely
impacts the ability of the several Representatives to perform their obligations
hereunder; and (v) the Representative have not provided any legal, accounting,
regulatory or tax advice with respect to the offering contemplated hereby and the
Company has consulted its own legal, accounting, regulatory and tax advisors to the
extent it deemed appropriate.
This Agreement supersedes all prior agreements and understandings (whether
written or oral) between the Company and the several Representatives, or any of
them, with respect to the subject matter hereof. The Company hereby waives and
releases, to the fullest extent
21
permitted by law, any claims that the Company may have against the several
Representatives with respect to any breach or alleged breach of agency or fiduciary
duty.
15. Counterparts. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which together
shall constitute one and the same agreement.
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.
“Act” shall mean the Securities Act of 1933, as amended.
“Base Prospectus” shall mean the base prospectus referred to in paragraph 1(a) above
contained in the Registration Statement at the Execution Time.
“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 New York City or Dallas, Texas.
“Commission” means the Securities and Exchange Commission.
“Disclosure Package” shall mean (i) the Base Prospectus, (ii) the Preliminary
Prospectus used most recently prior to the Execution Time, (iii) the Issuer Free Writing
Prospectuses, if any, identified in Schedule IV hereto, (iv) the final term sheet prepared
and filed pursuant to Section 4(b) hereto, if any, and (v) any other Free Writing
Prospectus that the parties hereto shall hereafter expressly agree in writing to treat as
part of the Disclosure Package.
“Effective Date” shall mean each date and time that the Registration Statement, any
post-effective amendment or amendments thereto and any Rule 462(b) Registration Statement
became or become effective.
“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.
“Execution Time” shall mean the date and time that this Agreement is executed and
delivered by the parties hereto.
“Final Prospectus” shall mean the prospectus supplement relating to the Securities
that is first filed pursuant to Rule 424(b) after the Execution Time together with the Base
Prospectus.
“Free Writing Prospectus” shall mean a free writing prospectus, as defined in Rule
405.
22
“Issuer Free Writing Prospectus” shall mean an issuer free writing prospectus, as
defined in Rule 433.
“Preliminary Prospectus” shall mean any preliminary prospectus supplement to the Base
Prospectus referred to in paragraph 1(a) above which is used prior to the filing of the
Final Prospectus, together with the Base Prospectus.
“Registration Statement” shall mean the registration statement referred to in
paragraph 1(a) above, including exhibits and financial statements and any prospectus
supplement relating to the Securities that is filed with the Commission pursuant to Rule
424(b) and deemed part of such registration statement pursuant to Rule 430B, as amended on
each Effective Date and, in the event any post-effective amendment thereto or any Rule
462(b) Registration Statement becomes effective prior to the Closing Date, shall also mean
such registration statement as so amended or such Rule 462(b) Registration Statement, as
the case may be.
“Rule 158”, “Rule 163”, “Rule 164”, “Rule 172”, “Rule 405”, “Rule 415”, “Rule 424”,
“Rule 430B” and “Rule 433” refer to such rules under the Act.
“Rule 462(b) Registration Statement” shall mean a registration statement and any
amendments thereto filed pursuant to Rule 462(b) relating to the offering covered by the
registration statement referred to in Section 1(a) hereof.
“Rules and Regulations” means the rules and regulations of the Commission.
“Trust Indenture Act” shall mean the Trust Indenture Act of 1939, as amended.
23
If the foregoing is in accordance with your understanding of our agreement, please sign and
return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall
represent a binding agreement among the Company and the several Underwriters.
| Very truly yours, | ||||||
| Clear Channel Communications, Inc. | ||||||
| By: | ||||||
| Print Name: | ||||||
| Print Title: | ||||||
24
| The foregoing Agreement is
hereby confirmed and accepted as of the date specified in Schedule I hereto. |
||||||
| [ ] | ||||||
By: |
||||||
| Print Name: | ||||||
| Print Title: | ||||||
| For themselves and the other
several Underwriters, if any, named in Schedule II to the foregoing Agreement. |
||||||
25
SCHEDULE I
Underwriting Agreement dated [
]
Registration Statement No. 333-[
]
Representatives:
[
]
Underwriters:
[
]
Title, Purchase Price and Description of Securities:
Title:
Principal Amount of Securities:
Purchase Price (include accrued interest or amortization, if any):
Sinking fund provisions:
Redemption provisions:
Other provisions:
Closing Date, Time and Location:
Type of Offering:
Overallotment Option:
SCHEDULE II
| Principal Amount | ||
| Underwriters | of Notes | |
SCHEDULE III
DISCLOSURE ITEMS
SCHEDULE IV
Schedule of Free Writing Prospectuses included in the Disclosure Package