Clear Channel Communications, Inc.
Underwriting Agreement
New York, New York
March 14, 2006
To the Representatives named in
Schedule I hereto of the Under-
writers named in 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
Twentieth Supplemental Indenture dated as of March 21, 2006 (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.
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
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 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 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 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) Ernst & Young LLP, 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 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.
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 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 5, 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.
(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 Banc of America Securities LLC, 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.
(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 0000 Xxx.
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 Akin Gump Xxxxxxx Xxxxx & Xxxx LLP, 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 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).
(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 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 4 p.m. on March 14, 2006 (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 Xxxxx Xxxx & Fielding LLP, 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 Cravath, Swaine &
Xxxxx LLP, 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, 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, Ernst & Young LLP
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.
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 Cravath, Swaine & Xxxxx LLP, counsel for the Underwriters, at
Worldwide Plaza, 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, xx 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 Banc
of America Securities LLC 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 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 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. 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 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 cancelation 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 Banc of America Securities LLC, 00 Xxxx 00xx Xxxxxx,
XX0-000-00-00, Xxx Xxxx, XX 00000, attention: High Grade Debt Capital Markets
Transaction Management/Legal or, if sent to the Company, will be mailed or
delivered to 000 Xxxx Xxxxx Xxxx, Xxx Xxxxxxx, Xxxxx 00000 attention: Xxxxxxx
Xxxx, President.
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 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 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.
"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.
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: /S/ XXXXX XXXXXXX
------------------------------------
Name. Xxxxx Xxxxxxx
Title: Senior Vice President
and Treasurer
The foregoing Agreement is hereby
confirmed and accepted as of the date
specified in Schedule I hereto.
Banc of America Securities LLC
By: /S/ XXXX XXXXX
---------------------------------
Name: Xxxx Xxxxx
Title: Principal
Wachovia Capital Markets, LLC
By: /S/ XXX XXXXXXXXXX
---------------------------------
Name: Xxx Xxxxxxxxxx
Title: Managing Director
For themselves and the other several
Underwriters, if any, named in
Schedule II to the foregoing
Agreement.
SCHEDULE I
Underwriting Agreement dated March 14, 2006
Registration Statement No. 333-111070
Representatives:
Banc of America Securities LLC
Wachovia Capital Markets, LLC
Underwriters:
Banc of America Securities LLC
Wachovia Capital Markets, LLC
Barclays Capital Inc.
Credit Suisse First Boston LLC
X.X. Xxxxxx Securities Inc.
Xxxxxx Xxxxxxx & Co. Incorporated
Deutsche Bank Securities Inc.
SMBC Securities, Inc.
SunTrust Capital Markets, Inc.
UBS Securities LLC
Title, Purchase Price and Description of Securities:
Title: $500,000,000 of 6.25% Senior Notes due 2011 (the "notes")
Principal Amount of Securities: $500,000,000
Purchase Price (include accrued interest or amortization, if any):
$497,520,000 for the $500,000,000 aggregate principal amount of the notes.
Sinking fund provisions: None
Redemption provisions:
The notes are redeemable by the Company. The notes will be redeemable as a
whole at any time or in part from time to time, at the option of the Company, at
a
redemption price equal to the greater of (i)100% of the principal amount of such
notes being redeemed or (ii) the sum of the present values of the remaining
scheduled payments of principal and interest on the notes being redeemed from
the redemption date to March 15, 2011 discounted to the redemption date on a
semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at
the Treasury Rate (as defined below) plus 25 basis points, plus, in either case,
any interest accrued but not paid to the date of redemption. Notice of any
redemption will be mailed at least 30 days but no more than 60 days before the
redemption date to each holder of the notes to be redeemed. Unless the Company
defaults in payment of the redemption price, on and after the redemption date
interest will cease to accrue on the notes or portions thereof called for
redemption. The notes will not be subject to any sinking fund provision.
"Treasury Rate" means, with respect to any redemption date for the notes,
(i) the yield, under the heading which represents the average for the
immediately preceding week, appearing in the most recently published statistical
release designated "H.15(519)" or any successor publication which is published
weekly by the Board of Governors of the Federal Reserve System and which
establishes yields on actively traded United States Treasury securities adjusted
to constant maturity under the caption "Treasury Constant Maturities," for the
maturity corresponding to the Comparable Treasury Issue (if no maturity is
within three months before or after the maturity date, yields for the two
published maturities most closely corresponding to the Comparable Treasury Issue
shall be determined and the Treasury Rate shall be interpolated or extrapolated
from such yields on a straight line basis, rounding to the nearest month), or
(ii) if such release referred to in clause (i) (or any successor release) is not
published during the week preceding the calculation date or does not contain the
yields referred to above, the rate per year equal to the semiannual equivalent
yield maturity of the Comparable Treasury Issue, calculated using a price for
the Comparable Treasury Issue (expressed as a percentage of its principal
amount) equal to the Comparable Treasury Price for such redemption date. The
Treasury Rate shall be calculated on the third Business Day preceding the
redemption date.
"Comparable Treasury Issue" means the United States Treasury security
selected by an "Independent Investment Banker" as having a maturity comparable
to the remaining term of the notes to be redeemed that would be utilized, at the
time of selection and in accordance with customary financial practice, in
pricing new issues of corporate debt securities of comparable maturity to the
remaining term of such notes.
"Independent Investment Banker" means, with respect to any redemption date
for the notes, Banc of America Securities LLC and its successors or, if such
firm or any successor to such firm, as the case may be, is unwilling or unable
to select the Comparable Treasury Issue, an independent banking institution of
national standing appointed by the Trustee after consultation with the Company.
"Comparable Treasury Price" means, with respect to any redemption date for
the notes, (i) the average of four Reference Treasury Dealer Quotations (as
defined below) for the redemption date, after excluding the highest and lowest
such Reference Treasury
Dealer Quotations, or (ii) if the Trustee obtains fewer than four such Reference
Treasury Dealer Quotations, the average of all such quotations obtained.
"Reference Treasury Dealer" means Banc of America Securities LLC and three
other primary U.S. Government securities dealers in the United States (each, a
"Primary Treasury Dealer") appointed by the Trustee in consultation with the
Company. If any of the foregoing shall cease to be a Primary Treasury Dealer,
the Company shall substitute therefor another Primary Treasury Dealer.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any redemption date, the average, as determined by
the Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m. on the
third Business Day preceding such redemption date.
Other provisions : None
Closing Date, Time and Location: March 21, 2006 at 10:00 a.m. at Cravath,
Swaine & Xxxxx LLP, Worldwide Plaza, 000 Xxxxxx Xxx., Xxx Xxxx, XX 00000
Type of Offering: Non-delayed
Overallotment Option: None
SCHEDULE II
Principal Amount
Underwriters of Notes
------------ ----------------
Banc of America Securities LLC .............................. $125,000,000
Wachovia Capital Markets, LLC ............................... $125,000,000
Barclays Capital Inc. ....................................... $ 45,000,000
Credit Suisse First Boston LLC .............................. $ 45,000,000
X.X. Xxxxxx Securities Inc. ................................. $ 45,000,000
Xxxxxx Xxxxxxx & Co. Incorporated ........................... $ 45,000,000
Deutsche Bank Securities Inc. ............................... $ 17,500,000
SMBC Securities, Inc. ....................................... $ 17,500,000
SunTrust Capital Markets, Inc. .............................. $ 17,500,000
UBS Securities LLC .......................................... $ 17,500,000
------------
Total..................................................... $500,000,000
============
The Company has not granted the Underwriters an option to purchase any
additional principal amount of the above referenced securities.
SCHEDULE III
DISCLOSURE ITEMS
1. Material Subsidiaries
A. Clear Channel Outdoor Holdings, Inc.
B. Clear Channel Broadcasting, Inc.
C. Clear Channel Broadcasting Licenses, Inc.
D. Clear Channel Holdings, Inc.
E. Jacor Communications Company
F. AMFM Operating Inc.
X. Xxxx Media Group, Inc.
SCHEDULE IV
Schedule of Free Writing Prospectuses included in the Disclosure Package
NONE
