UNDERWRITING AGREEMENT
October 29, 2001
Belo Corp.
X.X. Xxx 000000
Xxxxxx, Xxxxx 00000-0000
Ladies and Gentlemen:
We (the "Manager") are acting on behalf of the underwriter or
underwriters (including ourselves) named below (such underwriter or underwriters
being herein called the "Underwriters"), and we understand that Belo Corp., a
Delaware corporation (the "Company"), proposes to issue and sell $350,000,000.00
aggregate initial offering price of 8.00% Senior Notes due 2008 (the "Debt
Securities"). The Debt Securities are sometimes referred to herein as the
"Offered Securities". The Debt Securities will be issued pursuant to the
provisions of an Indenture dated as of June 1, 1997 (the "Indenture") between
the Company and The Chase Manhattan Bank, as trustee (the "Trustee").
Subject to the terms and conditions set forth or incorporated
by reference herein, the Company hereby agrees to sell to the several
Underwriters, and each Underwriter agrees, severally and not jointly, to
purchase from the Company, the respective principal amounts of Debt Securities
set forth below opposite their names at a purchase price of 99.375% of the
principal amount of Debt Securities, plus accrued interest, if any, from
November 1, 2001, to the date of payment and delivery:
Name Principal Amount of Debt Securities
---- -----------------------------------
Banc of America Securities LLC $113,750,000
X.X. Xxxxxx Securities Inc. 113,750,000
Fleet Securities, Inc. 35,000,000
BNP Paribas Securities Corp. 24,500,000
BNY Capital Markets, Inc. 21,000,000
Mizuho International plc 21,000,000
SunTrust Equitable Securities Corporation 21,000,000
------------
Total $350,000,000
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The Underwriters will pay for the Debt Securities upon
delivery thereof at Cravath, Swaine & Xxxxx, 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, at 10:00 a.m. (
New York time) on November 1, 2001 or at such other
time, not later than 5:00 p.m. (
New York time) on November 1, 2001 as shall be
designated by the Manager. The time and date of such payment and delivery are
hereinafter referred to as the "Closing Date".
The Debt Securities shall have the terms set forth in the
Prospectus dated June 3, 1997, and the Prospectus Supplement dated October 29,
2001, including the following:
Terms of Debt Securities:
Maturity Date: November 1, 2008
Interest Rate: 8.00%
Redemption Provisions: The Offered Securities are redeemable
in whole or in part at the option of
the Company on a make-whole basis as
described in the Company's Prospectus
Supplement dated October 29, 2001.
Interest Payment Dates: Each May 1 and
November 1 commencing
May 1, 2002
Form and Denomination: Book-entry only form represented by one or more
global securities deposited with DTC or its
designated custodian issuable in denominations
of $1,000 and integral multiples thereof.
All provisions contained in the document entitled A.H.
Belo
Corporation
Underwriting Agreement Standard Provisions (Debt Securities and
Warrants to Purchase Debt Securities) dated June 10, 1997 (the "Standard
Provisions"), a copy of which is attached hereto, are herein incorporated by
reference in their entirety and shall be deemed to be a part of this Agreement
to the same extent as if such provisions had been set forth in full herein,
except that (i) if any term defined in such document is otherwise defined
herein, the definition set forth herein shall control, (ii) all references in
such document to a type of security that is not an Offered Security shall not be
deemed to be a part of this Agreement, (iii) if the Offered Securities do not
include Debt Warrants, then all references in such document to Debt Warrant
Securities shall not be deemed to be a part of this Agreement, (iv) all
references in such document to a type of agreement that has not been entered
into in connection with the transactions contemplated hereby shall not be deemed
to be a part of this Agreement and (v) the following portions of the Standard
Provisions are amended as noted:
a) All references in the Standard Provisions to the "Company"
are to
Belo Corp., a Delaware Corporation;
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b) Section 5(a) of the Standard Terms shall be deleted in its
entirety and replaced with the following:
(a) On the Closing Date, the Underwriters shall have
received an opinion from Xxxxxx, Xxxx & Xxxxxxxx LLP,
counsel to the Company dated as of the Closing Date
and in form and substance satisfactory to counsel for
the Underwriters to the effect set forth in Schedule
A to this Agreement;
c) The references in Section 5(b) of the Standard Provisions
to "Xxxxxxx X. XxXxxxxx" shall be deleted and replaced with "Xxx X.
Xxxx."
d) The references in Section 5(c) and 6(g) of the Standard
Provisions to "Xxxxxx, Xxxx & Xxxxxxxx LLP" shall be deleted and
replaced with "Cravath, Swaine & Xxxxx".
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Please confirm your agreement by having an authorized officer
sign a copy of this Agreement in the space set forth below.
Very truly yours,
JPMorgan Securities Inc., acting
severally on behalf of itself and the
several Underwriters named herein,
by /s/ XXXXXX XXXXXXXXXX
-------------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: Vice President
Accepted:
BELO CORP.,
by /s/ XXXXXX X. XXXXXX
---------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President, Assistant
Secretary and Treasurer
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SCHEDULE A
Form of Opinion of Xxxxxx, Xxxx & Xxxxxxxx LLP
1. The Company is a validly existing corporation in good standing under
the laws of the State of Delaware, and has all requisite corporate power and
authority to execute, deliver and perform its obligations under the
Underwriting
Agreement and the Indenture, to conduct its business as described in the
Registration Statement and to issue, sell and deliver the Securities.
2. The execution and delivery by the Company of the
Underwriting
Agreement, the Indenture and the Securities and the performance of its
obligations thereunder have been duly authorized by all necessary corporate
action. The
Underwriting Agreement and the Indenture has been duly executed and
delivered by the Company.
3. The Indenture constitutes a legal, valid and binding obligation of
the Company enforceable against it in accordance with its terms.
4. The Securities, when executed and authenticated in accordance with
the provisions of the Indenture and delivered to and paid for by the
Underwriters in accordance with the terms of the
Underwriting Agreement, will be
legal, valid and binding obligations of the Company enforceable against the
Company in accordance with their terms, and will be entitled to the benefits of
the Indenture.
5. The issuance of the Securities and the execution, delivery and
performance by the Company of the
Underwriting Agreement, the Indenture and the
Securities do not and will not violate (A) the charter or bylaws of the Company
or (B) based solely upon review of the orders, judgments or decrees identified
to us in the Officers' Certificate as constituting all orders, judgments or
decrees binding on the Company, which are listed in part I of Schedule A
thereto, any order, judgment or decree of any court or other agency of
government binding on the Company.
6. The issuance of the Securities and the execution, delivery and
performance by the Company of the
Underwriting Agreement, the Indenture and the
Securities do not and will not violate, or require any filing with or approval
of any governmental authority or regulatory body of the State of
New York or the
United States of America under, any law or regulation of the State of
New York
or the United States of America applicable to the Company, that, in our
experience, is generally applicable to transactions in the nature of those
contemplated by the
6
Underwriting Agreement, the Indenture and the Securities, or the Delaware
General Corporation Law, except for such filings or approvals as already have
been made or obtained under the Securities Act and the Trust Indenture Act.
Other than the last clause of the preceding sentence, we are expressing no
opinion in this paragraph regarding the federal or any state securities laws
(including the blue sky laws of the various states and/or foreign jurisdictions,
as to which we render no opinion).
7. Insofar as the statements in the Prospectus purport to describe
specific provisions of the Securities and the Indenture, such statements present
in all material respects an accurate summary of such provisions.
8. The Indenture has been duly qualified under the Trust Indenture Act.
9. The Registration Statement has been declared effective under the
Securities Act and, to our knowledge, no stop order suspending the effectiveness
of the Registration Statement has been issued under the Securities Act and no
proceedings for that purpose have been instituted or are pending or threatened
by the Commission.
10. In each case including the exhibits attached to the Company's
Current Report on Form 8-K filed with the Commission on June 10, 1997 and to the
Company's Current Report on Form 8-K filed with the Commission on the date
hereof, but otherwise excluding the Incorporated Documents, the Registration
Statement, as of its effective date, and the Prospectus, as of its issue date
(in each case other than the financial statements, supporting schedules and
other financial or accounting data included therein or omitted therefrom, and
the Form T-1, as to which we express no opinion) complied as to form in all
material respects with the requirements of the Securities Act and the
regulations promulgated thereunder.
We have participated in conferences with officers and other
representatives of the Company, representatives of the independent auditors of
the Company and your representatives and their counsel at which the contents of
the Registration Statement and the Prospectus and related matters were
discussed. Because the purpose of our professional engagement was not to
establish or confirm factual matters and because the scope of our examination of
the affairs of the Company did not permit us to verify the accuracy,
completeness or fairness of the statements set forth in the Registration
Statement or the Prospectus, we are not passing upon and do not assume any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Prospectus except to the extent
set forth in paragraph 7 above. On the basis of the foregoing, no facts have
come to our attention that lead us to believe that the Registration Statement
(except for the financial statements, notes thereto, financial statement
schedules or other financial, statistical or accounting data included or
incorporated by reference therein or omitted therein or information derived
therefrom, as to which we express no such belief), at the time it became
effective (which, for the purposes of this paragraph, shall have the meaning set
forth in Rule 158(c) of the rules and regulations of the Commission under the
Securities Act), contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein, or necessary to make the
statements therein not misleading or that the Prospectus (except for the
financial statements, notes thereto, financial statement schedules or other
financial, statistical or accounting data included or incorporated by reference
therein or omitted therein or information derived therefrom as to which we
express no such belief), as of
7
the date of the Prospectus Supplement or as of the date hereof, contained an
untrue statement of a material fact or omitted or omits 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 (it being understood
that we make no statement and express no belief with respect to that part of the
Registration Statement that constitutes the Form T-1).
A. H.
BELO CORPORATION
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
(DEBT SECURITIES AND WARRANTS
TO PURCHASE DEBT SECURITIES)
June 10, 1997
From time to time, A. H.
Belo Corporation, a Delaware
corporation (the "Company"), may enter into one or more underwriting agreements
that provide for the sale of designated securities to the several underwriters
named therein. The standard provisions set forth herein may be incorporated by
reference in any such underwriting agreement (an "Underwriting Agreement"). The
Underwriting Agreement, including the provisions incorporated therein by
reference, is herein sometimes referred to as "this Agreement." Terms defined in
the Underwriting Agreement are used herein as therein defined.
The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement, including a prospectus,
relating to the Debt Securities and Debt Warrants and has filed with, or
transmitted for filing to, or shall promptly hereafter file with or transmit for
filing to, the Commission a prospectus supplement (the "Prospectus Supplement")
specifically relating to the Offered Securities and the Debt Warrant Securities
pursuant to Rule 424 under the Securities Act of 1933, as amended (the
"Securities Act"). The term "Registration Statement" means the registration
statement, as amended to the date of this Agreement, including the exhibits
thereto and any documents incorporated by reference therein. The term "Basic
Prospectus" means the prospectus included in the Registration Statement. The
term "Prospectus" means the Basic Prospectus together with the Prospectus
Supplement. The term "preliminary prospectus" means a preliminary prospectus
supplement specifically relating to the Offered Securities and the Debt Warrant
Securities, together with the Basic Prospectus. As used herein, the terms "Basic
Prospectus," "Prospectus" and "preliminary prospectus" shall include, in each
case, the documents, if any, incorporated by reference therein. The terms
"supplement," "amendment" and "amend" as used herein shall include all documents
deemed to be incorporated by reference in the Prospectus that are filed
subsequent to the date of the Basic Prospectus by the Company with the
Commission pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act").
The term "Contract Securities" means the Offered Securities to
be purchased pursuant to the delayed delivery contracts substantially in the
form of Schedule I hereto, with such changes therein as the Company may approve
(the "Delayed Delivery Contracts"). The term "Underwriters' Securities" means
the Offered Securities other than Contract Securities.
1. REPRESENTATIONS AND WARRANTIES.
(a) The Company represents and warrants to each Underwriter as
follows:
(i) The Registration Statement has been filed with,
and in the form delivered to such Underwriter, has been
declared effective by the Commission; no other document with
respect to the Registration Statement has been filed or
transmitted for filing with the Commission; and no stop order
suspending the effectiveness of the Registration Statement has
been issued and no proceeding for that purpose has been
initiated or threatened by the Commission;
(ii) Documents, financial statements and schedules
incorporated by reference in the Registration Statement or
Prospectus, when they became effective or were filed with the
Commission, as the case may be, conformed in all material
respects to the requirements of the Securities Act or the
Exchange Act, as applicable, and the rules and regulations of
the Commission thereunder, and none of such documents
contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or
necessary to make the statements therein not misleading; and
any further documents so filed and incorporated by reference
in the Prospectus, or any amendment or supplement thereto,
when such documents become effective or are filed with the
Commission, as the case may be, will conform in all material
respects to the requirements of the Securities Act or the
Exchange Act, as applicable, and the rules and regulations of
the Commission thereunder and will not 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; provided, however, that
this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in
conformity with information furnished in writing to the
Company by any Underwriter expressly for use in the
Prospectus;
(iii) The Registration Statement and the Prospectus,
in each case as amended or supplemented, conform, and any
further amendments or supplements to the Registration
Statement or Prospectus will conform, in all material
respects, to the requirements of the Securities Act and the
Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act"), and the rules and regulations of the Commission
thereunder and do not and will not, as amended or
supplemented, 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;
provided, however, that this representation and warranty shall
not apply to any statements or omissions made in reliance upon
and in conformity
2
with information furnished in writing to the Company by any
Underwriter expressly for use in the Prospectus or the
information contained in the Statement of Eligibility and
Qualification of the Trustee under the Trust Indenture Act
filed as an exhibit to a Current Report on Form 8-K dated June
10, 1997 and incorporated into the Registration Statement by
reference (the "Form T-1"); there is no contract or document
of a character required to be described in the Registration
Statement or the Prospectus or to be filed as an exhibit to
the Registration Statement which is not described or filed as
required;
(iv) The Company and its subsidiaries considered as a
whole have not sustained since the date of the latest audited
financial statements included or incorporated by reference in
the Prospectus any material loss or interference with its
business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute
or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Prospectus; and,
since the respective dates as of which information is given in
the Registration Statement and the Prospectus, there has not
been any material adverse change, or any development involving
a prospective material adverse change, in or affecting the
general affairs, management, financial position or results of
operations of the Company and its subsidiaries considered as a
whole, otherwise than as set forth, incorporated by reference
or contemplated in the Prospectus;
(v) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Delaware and has been duly qualified as a
foreign corporation for the transaction of business and is in
good standing under the laws of each other jurisdiction in
which it owns or leases properties, or conducts any business
in an amount that is material to the business of the Company
and its subsidiaries considered as a whole so as to require
such qualification or is subject to no material liability or
disability by reason of the failure to be so qualified; each
subsidiary of the Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of its jurisdiction of incorporation and is duly
qualified as a foreign corporation for the transaction of
business and in good standing under the laws of each other
jurisdiction in which it owns or leases properties, or
conducts any business, so as to require such qualification, or
is subject to no material liability or disability by reason of
the failure to be so qualified; each of the Company and its
subsidiaries has the corporate power and authority, and has
all required material governmental licenses and permits
(including, without limitation, licenses under the
Communications Act of 1934, as amended (the "Communications
Act") and the rules and regulations of the Federal
Communications Commission ("FCC") thereunder), in full force
and effect, to own or lease its properties, as applicable, to
execute, deliver and perform its obligations under this
Agreement, the Delayed Delivery Contracts, the Indenture, the
Warrant Agreement and the Offered
3
Securities, and to conduct its business as presently conducted
and proposed to be conducted, as described in the Registration
Statement;
(vi) The Offered Securities and Debt Warrant
Securities have been duly authorized and, when executed,
authenticated, issued and delivered, and paid for (i) by the
Underwriters in accordance with the terms of the Underwriting
Agreement, in the case of Underwriters' Securities, or by
institutional investors in accordance with the terms of the
Delayed Delivery Contracts, in the case of the Contract
Securities and (ii) upon the exercise of Debt Warrants
pursuant to the Warrant Agreement, in the case of the Debt
Warrant Securities, will constitute valid and legally binding
obligations of the Company entitled to the benefits provided
by the Indenture and the Warrant Agreement; the Indenture has
been duly authorized, executed and delivered and duly
qualified under the Trust Indenture Act and constitutes a
valid and legally binding instrument, enforceable in
accordance with its terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting creditors'
rights and to general equity principles; the Indenture and
Warrant Agreement conform, and the Offered Securities conform,
in all material respects, to the descriptions thereof in the
Prospectus; this Agreement and the Delayed Delivery Contracts
have been duly authorized, executed and delivered and each
Delayed Delivery Contract constitutes a valid and legally
binding instrument, enforceable in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency,
reorganization, fraudulent transfer and other laws of general
applicability relating to or affecting creditors' rights and
to general equity principles; and the Warrant Agreement has
been duly authorized, executed and delivered and constitutes a
valid and legally binding instrument, enforceable in
accordance with its terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization, fraudulent transfer
and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles;
(vii) The issue and sale of the Offered Securities,
the compliance by the Company with the provisions of the
Offered Securities, Debt Warrant Securities, Indenture,
Warrant Agreement, Delayed Delivery Contracts and this
Agreement, and the consummation of the transactions herein and
therein contemplated will not conflict with or result in a
breach or violation of any of the terms or provisions of, or
constitute a default under, any material indenture, mortgage,
deed of trust, loan agreement or other material agreement or
instrument to which the Company or any of its subsidiaries is
a party or by which the Company or any of its subsidiaries is
bound or to which any of the property or assets of the Company
or any of its subsidiaries is subject, nor will such action
result in any violation of the provisions of the Certificate
of Incorporation, or By-Laws of the Company or any statute
(including, without limitation, the Communications Act and the
rules and regulations of the FCC thereunder) or any order,
rule or regulation of any court or governmental agency
(including, without limitation, the FCC) or body having
4
jurisdiction over the Company or any of its subsidiaries or
any of their properties; and no consent, approval,
authorization, order, registration or qualification of or with
any court or governmental agency (including, without
limitation, the FCC) or body is required for the solicitation
of offers to purchase Offered Securities, the issue and sale
of the Offered Securities or the consummation by the Company
of the other transactions contemplated by this Agreement, the
Indenture, Delayed Delivery Contracts, Offered Securities,
Debt Warrant Securities or Warrant Agreement, except such as
have been, or will have been prior to the Closing Date
obtained under the Securities Act or the Trust Indenture Act
and such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or
Blue Sky laws in connection with the solicitation by the
Underwriter(s) of offers to purchase Offered Securities from
the Company and with purchases of Offered Securities by any
Underwriter as principal, as the case may be, in each case in
the manner contemplated hereby;
(viii) Other than as set forth, incorporated by
reference or contemplated in the Prospectus, there are no
legal or governmental proceedings (including proceedings
before the FCC) pending to which the Company or any of its
subsidiaries is a party or to which any property of the
Company or any of its subsidiaries is subject which are
required to be described in such documents or which would
reasonably be expected, in the opinion of the Company,
individually or in the aggregate, to have a material adverse
effect on the consolidated financial position or results of
operations of the Company and its subsidiaries considered as a
whole, and, to the best of the Company's knowledge, no such
proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(ix) Immediately after any sale of the Offered
Securities by the Company under this Agreement, the aggregate
amount of Offered Securities which shall have been issued and
sold by the Company hereunder and of any other debt securities
and warrants for debt securities of the Company (other than
the Offered Securities) that shall have been issued and sold
pursuant to the Registration Statement will not exceed the
amount of debt securities and warrants registered for offer or
sale under the Registration Statement;
(x) To the best of the Company's knowledge, the
accountants who have audited and reported upon the financial
statements filed with the Commission as part of the
Registration Statement and the Prospectus are independent
accountants as required by the Securities Act; the financial
statements included in the Registration Statement or
Prospectus or incorporated therein by reference fairly present
the consolidated financial position and results of operations
of the Company and its subsidiaries at the respective dates
and for the respective periods to which they apply; such
financial statements have been prepared in accordance with
generally accepted accounting principles consistently applied,
except as set forth in the Registration Statement and
Prospectus;
5
(xi) The Company has complied with, and is and will
be in compliance with, the provisions of that certain Florida
act relating to disclosure of doing business with Cuba,
codified as Section 517.075 of the Florida statutes, and the
rules and regulations thereunder or is exempt therefrom; and
(xii) the Company is not an "investment company" or
an entity "controlled" by an "investment company," as such
terms are defined in the Investment Company Act of 1940, as
amended.
(b) Any certificate signed by any officer of the Company and
delivered to an Underwriter or to counsel for the Underwriters in
connection with an offering of Offered Securities shall be deemed a
representation and warranty by the Company to such Underwriter as to
the matters covered thereby on the date of such certificate.
2. DELAYED DELIVERY CONTRACTS. If the Prospectus provides for
sales of Offered Securities pursuant to Delayed Delivery Contracts, the Company
hereby authorizes the Underwriters to solicit offers to purchase Contract
Securities on the terms and subject to the conditions set forth in the
Prospectus pursuant to Delayed Delivery Contracts. Delayed Delivery Contracts
may be entered into only with institutional investors approved by the Company of
the types set forth in the Prospectus. On the Closing Date, the Company will pay
to the Manager as compensation for the accounts of the Underwriters the
commission set forth in the Underwriting Agreement in respect of the Contract
Securities. The Underwriters will not have any responsibility in respect of the
validity or the performance of any Delayed Delivery Contracts.
If the Company executes and delivers Delayed Delivery
Contracts with institutional investors, the aggregate amount of Offered
Securities to be purchased by the several Underwriters shall be reduced by the
aggregate amount of Contract Securities; such reduction shall be applied to the
commitment of each Underwriter pro rata in proportion to the amount of Offered
Securities set forth opposite such Underwriter's name in the Underwriting
Agreement, except to the extent that the Manager determines that such reduction
shall be applied in other proportions and so advises the Company; provided,
however, that the total amount of Offered Securities to be purchased by all
Underwriters shall be the aggregate amount set forth above, less the aggregate
amount of Contract Securities.
3. TERMS OF PUBLIC OFFERING. The Company is advised by the
Manager that the Underwriters propose to make a public offering of their
respective portions of the Underwriters' Securities as soon after this Agreement
has been entered into as in the Manager's judgment is advisable. The terms of
the public offering of the Underwriters' Securities are set forth in the
Prospectus.
4. PAYMENT AND DELIVERY. Except as otherwise provided in this
Section 4, payment for the Underwriters' Securities shall be made by wire
transfer of immediately available funds to such bank account or accounts as the
Company shall designate in writing not less than two full business days prior to
the Closing Date, upon delivery to the Manager, for the respective accounts of
the several Underwriters, of the Underwriters' Securities registered in such
names
6
and in such denominations as the Manager shall request in writing not less than
two full business days prior to the date of delivery, with any transfer taxes
payable in connection with the transfer of the Underwriters' Securities to the
Underwriters duly paid.
Delivery on the Closing Date of any Underwriters' Securities
that are (i) Debt Securities in bearer form shall be effected by delivery of a
single temporary global Debt Security without coupons (the "Global Debt
Security") evidencing the Offered Securities that are Debt Securities in bearer
form and (ii) Debt Warrants in bearer form shall be effected only by delivery of
a single permanent global Debt Warrant (the "Global Debt Warrant") evidencing
the Offered Securities that are Debt Warrants in bearer form, in each case to a
common depositary for Xxxxxx Guaranty Trust Company of
New York, Brussels
office, as operator of the Euro-clear System ("Euro-clear"), and for Centrale de
Livraison de Valeurs Mobilieres S.A. ("Cedel") for credit to the respective
accounts at Euro-clear or Cedel of each Underwriter or to such other accounts as
such Underwriter may direct. Any Global Debt Security or Global Debt Warrant
shall be delivered to the Manager not later than the Closing Date, against
payment of funds to the Company in the net amount due to the Company for such
Global Debt Security or Global Debt Warrant, as the case may be, by the method
and in the form set forth in the Underwriting Agreement. The Company shall cause
definitive Debt Securities in bearer form to be prepared and delivered in
exchange for such Global Debt Security in such manner and at such time as may be
provided in or pursuant to the Indenture; provided, however, that the Global
Debt Security shall be exchangeable for definitive Debt Securities in bearer
form only on or after the date specified for such purpose in the Prospectus.
Debt Warrants in bearer form shall be evidenced only by a Global Debt Warrant
until their expiration.
5. CONDITIONS TO THE UNDERWRITERS' OBLIGATIONS. The
obligations of any Underwriter pursuant to this Agreement will be subject at all
times to the accuracy, as of the applicable date when such representations are
made, of the representations and warranties on the part of the Company herein
and to the accuracy, as of the date effective, of any statements of the
Company's officers made in any certificate furnished pursuant to the provisions
hereof, to the performance and observance by the Company of all covenants and
agreements herein contained which are to be performed and observed by the
Company, and to the following additional conditions precedent:
(a) On the Closing Date, the Underwriters shall have received
an opinion from Xxxxx Xxxxxxx Rain Xxxxxxx (A Professional
Corporation), counsel to the Company, dated as of the Closing Date and
in form and substance satisfactory to counsel for the Underwriters to
the effect that:
(i) The Company is a corporation validly existing and
in good standing under the laws of its state of incorporation.
(ii) The Company has the requisite corporate power
and corporate authority to enter into and perform its
obligations under this Agreement, the Delayed Delivery
Contracts and the Indenture and the Warrant Agreement, to
borrow money as contemplated in this Agreement and the
Indenture, and to issue,
7
sell and deliver the Offered Securities and the Debt Warrant
Securities; the Company has the corporate power and corporate
authority to conduct its business as described in the
Registration Statement.
(iii) This Agreement has been duly authorized,
executed and delivered by the Company.
(iv) The Indenture has been duly authorized, executed
and delivered by the Company and (assuming due authorization,
execution and delivery by the Trustee) is a valid and binding
agreement of the Company, enforceable against the Company in
accordance with its terms, except that such enforceability may
be limited by (A) bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer or other similar laws now or
hereafter in effect relating to or affecting creditors' rights
generally, (B) general principles of equity (regardless of
whether enforcement is sought in a proceeding in equity or at
law) and (C) such other customary matters as shall be
satisfactory to the Underwriters.
(v) The Warrant Agreement has been duly authorized,
executed and delivered by the Company and (assuming due
authorization, execution and delivery by the warrant agent) is
a valid and binding agreement of the Company, enforceable in
accordance with its terms, except that such enforceability may
be limited by (A) bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer or other similar laws now or
hereafter in effect relating to or affecting creditors' rights
generally, (B) general principles of equity (regardless of
whether enforcement is sought in a proceeding in equity or at
law) and (C) such other customary matters as shall be
satisfactory to the Underwriters. Each Delayed Delivery
Contract has been duly authorized, executed and delivered by
the Company and (assuming due authorization, execution and
delivery by the institutional investor party thereto) is a
valid and binding agreement of the Company, enforceable in
accordance with its terms, except that such enforceability may
be limited by (A) bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer or other similar laws now or
hereafter in effect relating to or affecting creditors' rights
generally, (B) general principles of equity (regardless of
whether enforcement is sought in a proceeding in equity or at
law) and (C) such other customary matters as shall be
satisfactory to the Underwriters.
(vi) No consent or approval of any United States
governmental authority or other United States person or United
States entity is required in connection with the issuance or
sale of the Offered Securities or the Debt Warrant Securities
other than registration thereof under the Securities Act,
qualification of the Indenture under the Trust Indenture Act,
and such registrations or qualifications as may be necessary
under the securities or Blue Sky laws of the various United
States jurisdictions in which the Offered Securities are to be
offered or sold.
8
(vii) (A) The Debt Securities and the Debt Warrant
Securities, when executed by the Company and authenticated in
accordance with the terms of the Indenture (assuming the due
authorization, execution and delivery of the Indenture by the
Trustee) and issued to and paid for by the purchasers thereof
in accordance with the Underwriting Agreement or the Delayed
Delivery Contracts, as applicable, will be entitled to the
benefits of the Indenture and will be valid and binding
obligations of the Company enforceable against the Company in
accordance with their respective terms, except that such
enforceability may be limited by (I) bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer or other
similar laws now or hereafter in effect relating to or
affecting creditors' rights generally, (II) general principles
of equity (regardless of whether such enforcement is sought in
a proceeding in equity or at law) and (III) such other
customary matters as shall be satisfactory to the
Underwriters; and
(B) The Debt Warrants, when issued by the
Company will be valid and binding obligations of the Company
enforceable against the Company in accordance with their
respective terms, except that such enforceability may be
limited by (A) bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer or other similar laws now or
hereafter in effect relating to or affecting creditors' rights
generally, (B) general principles of equity (regardless of
whether such enforcement is sought in a proceeding in equity
or at law) and (C) such other customary matters as shall be
satisfactory to the Underwriters.
(viii) The Registration Statement has become
effective under the Securities Act and the Indenture has been
qualified under the Trust Indenture Act, and, to the best of
such counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been instituted or
are pending or contemplated.
(ix) The execution and delivery of this Agreement,
the Delayed Delivery Contracts, the Indenture and Warrant
Agreement by the Company, the issuance and sale of the Offered
Securities and Debt Warrant Securities and the fulfillment of
this Agreement, the Delayed Delivery Contracts, and the
Indenture and Warrant Agreement by the Company will not
conflict with or constitute a breach of or a default (with the
passage of time or otherwise) under (A) the Certificate of
Incorporation or By-laws of the Company, (B) any statute, law
or regulation to which the Company or any of its properties
may be subject or (C) any judgment, decree or order, known to
such counsel, of any court or governmental agency or authority
entered in any proceeding to which the Company was or is now a
party or by which it is bound; provided, that such counsel may
state that (I) the opinion set forth in clause (B) of this
paragraph (ix) is limited to those United States and Texas
statutes, laws or regulations currently in effect which, in
such counsel's experience, are normally applicable to
transactions of the type contemplated by this Agreement, and
(II) no opinion is
9
expressed as to the securities or Blue Sky laws of the various
jurisdictions in which the Offered Securities are to be
offered and (III) no opinion is expressed with respect to such
clause (B) with respect to the Offered Securities which are to
be indexed or linked to any foreign currency, composite
currency, commodity, equity index or similar index.
(x) The Registration Statement, as of the date it
became effective, and the Prospectus, as of the date of this
Agreement and the Closing Date, appear on their face to be
appropriately responsive in all material respects to the
requirements of the Securities Act, except that, in each case,
such counsel need not express an opinion as to (A) documents,
financial statements and schedules incorporated by reference
therein, (B) the financial statements and schedules and other
financial or statistical data included or incorporated by
reference therein or (C) the Form T-1.
(xi) The statements in (A) the Basic Prospectus under
the caption "Description of Debt Securities" and "Description
of Warrants" and (B) in the Prospectus Supplement under the
caption "Description of Offered Securities" insofar as they
purport to summarize certain provisions of documents and of
the legal matters specifically referred to therein, are in all
material respects accurate summaries of such provisions and
legal matters.
In rendering the opinions set forth above, such
counsel may state that (1) with respect to paragraphs (iv), (v) and
(vii), such enforcement may be limited by: (A) requirements that a
claim with respect to any Offered Securities denominated other than in
United States dollars (or a judgment denominated other than in United
States dollars in respect of such claim) be converted into United
States dollars at a rate of exchange prevailing on a date determined
pursuant to applicable law and (B) governmental authority to limit,
delay or prohibit the making of payments outside the United States or
in foreign currency or composite currency; and (2) with respect to
paragraphs (iv), (v), (vi) and (vii), no opinion is expressed thereto
with respect to any Offered Securities or Debt Warrant Securities that
are to be indexed or linked to any foreign currency or composite
currency, commodity, equity index or similar index.
In addition, such counsel shall state that they have
participated in conferences with officers and other representatives of
the Company, counsel employed by the Company, representatives of the
independent public accountants for the Company, representatives of the
Underwriters and counsel for the Underwriters, at which conferences the
contents of the Registration Statement and Prospectus and related
matters were discussed and, although such counsel is not passing upon,
and does not assume any responsibility for, the accuracy, completeness
or fairness of the statements contained in the Registration Statement
or the Prospectus and have not made any independent check or
verification thereof, on the basis of the foregoing, no facts have come
to such counsel's attention that lead them to believe that either the
Registration Statement (excluding
10
financial statements, schedules and other financial or statistical data
included or incorporated therein by reference) at the time such
Registration Statement became effective (which, for the purposes of
this paragraph, shall have the meaning set forth in Rule 158(c) of the
rules and regulations of the Commission under the Securities Act)
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, or the Prospectus (excluding
financial statements, schedules and other financial or statistical data
included or incorporated therein by reference), as of the date of this
Agreement and as of the Closing Date, contained an untrue statement of
a material fact or omitted to state a material fact necessary to make
the statements therein, in light of the circumstances under which they
were made, not misleading, except that such counsel need express no
opinion with respect to (A) financial statements, schedules and other
financial and statistical data incorporated in the Registration
Statement and Prospectus by reference or (B) the Form T-1.
(b) On the Closing Date, the Underwriters shall have received
an opinion from Xxxxxxx X. XxXxxxxx, Senior Vice President, General
Counsel and Secretary, dated as of the Closing Date and in form and
substance satisfactory to counsel for the Underwriters, to the effect
that:
(i) Except as set forth in the Prospectus, there is
not pending or, to the best of such counsel's knowledge, after
reasonable inquiry, threatened any action, suit or proceeding
against the Company or any of its subsidiaries before or by
any court or governmental agency or body, which is likely (to
the extent not covered by insurance) to have a material
adverse effect on the consolidated financial condition or
results of operations of the Company and its subsidiaries,
considered as a whole.
(ii) To the best of such counsel's knowledge, after
reasonable inquiry, there is no contract or document of a
character required to be described in the Registration
Statement or the Prospectus or to be filed as an exhibit to
the Registration Statement which is not described or filed as
required.
(iii) To the best of such counsel's knowledge, after
reasonable inquiry, the Company is not in violation of its
Certificate of Incorporation or By-laws.
(iv) To the best of such counsel's knowledge, after
reasonable inquiry, (A) the execution and delivery and (B) the
performance, of this Agreement, the Delayed Delivery
Contracts, the Indenture and Warrant Agreement will not
conflict with or constitute a breach of, or default (with the
passage of time or otherwise) under, any material contract,
indenture, mortgage, loan agreement, security, lease or other
instrument to which the Company is a party or by which it may
be bound, or to which any of the property or assets of the
Company or any of its subsidiaries is subject.
11
(v) Documents, financial statements and schedules
incorporated by reference in the Registration Statement, as of
the date it became effective, or the Prospectus, as of the
date of this Agreement and the Closing Date, comply as to form
in all material respects with the requirements of the
Securities Act, except that, in each case, such counsel need
not express an opinion as to (A) the financial statements,
schedules and other financial and statistical data included or
incorporated in the Registration Statement and Prospectus by
reference or (B) the Form T-1.
In addition, such counsel shall state that nothing
has come to such counsel's attention that leads him to believe that
either the Registration Statement at such time as it became effective
(which, for the purposes of this paragraph, shall have the meaning set
forth in Rule 158(c) of the rules and regulations of the Commission
under the Securities Act) contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, or the
Prospectus as of the date of this Agreement and as of the Closing Date
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading, except that such counsel need express no opinion
with respect to the financial statements, schedules and other financial
and statistical data included or incorporated by reference in the
Registration Statement or Prospectus or with respect to the Form T-1.
(c) On the Closing Date, the Underwriters shall have received
an opinion from Xxxxxx, Xxxx & Xxxxxxxx LLP, counsel to the
Underwriters, dated as of the Closing Date and in form and substance
satisfactory to the Underwriters.
(d) The Underwriters shall have received a certificate signed
by an officer of the Company and dated the Closing Date, to the effect
that (i) the representations and warranties of the Company contained in
Section 1(a) hereof are true and correct in all material respects, (ii)
the Company has complied with all agreements and satisfied all
conditions required by this Agreement, the Delayed Delivery Contracts
or the Indenture and Warrant Agreement on its part to be performed or
satisfied at or prior to the date of such certificate, (iii) no stop
order suspending the effectiveness of the Registration Statement has
been issued and no proceedings for that purpose have been initiated or,
to the best of such officer's knowledge, threatened by the Commission,
and (iv) no event referred to in clause (v) of Section 8(a) hereof has
occurred. The certificate shall further state that, except as
contemplated in the Prospectus or reflected therein, at the Closing
Date, there shall not have been, since the date of the most recent
consolidated financial statements of the Company included or
incorporated by reference in the Prospectus (exclusive of any
amendments or supplements thereto or any such financial statements
contained in documents filed subsequent to the date of this Agreement),
any material adverse change in the consolidated financial condition or
results of operations of the Company and its subsidiaries, considered
as a whole.
12
(e) The Underwriters shall have received a letter from the
Company's independent certified public accountants, dated as of the
Closing Date and in form and substance reasonably satisfactory to the
Underwriters, containing statements and information of the type
customarily included in accountants' "comfort letters" to underwriters
with respect to the financial statements and other financial
information contained in or incorporated by reference into the
Prospectus.
(f) Counsel to the Underwriters shall have been furnished with
such documents and opinions as such counsel may reasonably require for
the purpose of enabling such counsel to pass upon the issuance and sale
of Offered Securities and Debt Warrant Securities, as herein
contemplated, and related proceedings, or in order to evidence the
accuracy and completeness of any of the representations and warranties
or the fulfillment of any of the conditions herein contained.
(g) This Agreement shall not have been terminated pursuant to
Section 8 or 9 hereof.
If any condition specified in this Section 5 shall
not have been fulfilled when and as required to be fulfilled, this
Agreement may be terminated by any of the Underwriters (as to itself
only) by notice to the Company at any time and any such termination
shall be without liability of any party to any other party, except that
the representations and warranties set forth in Section 1(a) hereof,
the covenants set forth in Section 6(e) hereof, the provisions of
Section 6(g) hereof, the indemnity and contribution agreements set
forth in Section 7 hereof, and the provisions of Section 11 hereof, all
shall remain in effect.
6. COVENANTS OF THE COMPANY. In further consideration of the
agreements of the Underwriters herein contained, the Company covenants with each
Underwriter as follows:
(a) To furnish the Manager, without charge, one signed copy of
the Registration Statement (including exhibits thereto) and for
delivery to each other Underwriter a conformed copy of the Registration
Statement (without exhibits thereto) and, during the period mentioned
in paragraph (c) below, as many copies of the Prospectus, any documents
incorporated by reference therein and any supplements and amendments
thereto or to the Registration Statement as the Manager may reasonably
request.
(b) Before amending or supplementing the Registration
Statement or the Prospectus with respect to the Offered Securities, to
furnish to the Manager a copy of each such proposed amendment or
supplement and not to file any such proposed amendment or supplement to
which the Manager reasonably objects.
(c) If, during such period after the first date of the public
offering of the Offered Securities as in the reasonable opinion of
counsel for the Underwriters the Prospectus is required by law to be
delivered in connection with sales by an Underwriter
13
or dealer, any event shall occur or condition exist as a result of
which it is necessary to amend or supplement the Prospectus in order to
make the statements therein, in the light of the circumstances when the
Prospectus is delivered to a purchaser, not misleading, or if, in the
reasonable opinion of counsel for the Underwriters, it is necessary to
amend or supplement the Prospectus to comply with applicable law,
forthwith to prepare, file with the Commission and furnish, at its own
expense, to the Underwriters and to the dealers (whose names and
addresses the Manager will furnish to the Company) to which Offered
Securities may have been sold by the Manager on behalf of the
Underwriters and to any other dealers upon request, either amendments
or supplements to the Prospectus so that the statements in the
Prospectus as so amended or supplemented will not, in the light of the
circumstances when the Prospectus is delivered to a purchaser, be
misleading or so that the Prospectus, as amended or supplemented, will
comply with law.
(d) To endeavor to qualify the Offered Securities for offer
and sale under the securities or Blue Sky laws of such jurisdictions as
the Manager shall reasonably request and to maintain such qualification
for as long as the Manager shall reasonably request.
(e) To make generally available to the Company's security
holders and to the Manager as soon as practicable an earning statement
covering a twelve month period beginning on the first day of the first
full fiscal quarter after the date of this Agreement, which earning
statement shall satisfy the provisions of Section 11(a) of the
Securities Act and the rules and regulations of the Commission
thereunder. If such fiscal quarter is the last fiscal quarter of the
Company's fiscal year, such earning statement shall be made available
not later than 90 days after the close of the period covered thereby
and in all other cases shall be made available not later than 45 days
after the close of the period covered thereby.
(f) During the period beginning on the date of the
Underwriting Agreement and continuing to and including the Closing
Date, not to offer, sell, contract to sell or otherwise dispose of any
debt securities of the Company or warrants to purchase debt securities
of the Company substantially similar to the Offered Securities (other
than (i) the Offered Securities and (ii) commercial paper issued in the
ordinary course of business), without the prior written consent of the
Manager.
(g) To pay all expenses incident to the performance of its
obligations under this Agreement, including: (i) the preparation and
filing of the Registration Statement and the Prospectus and all
amendments and supplements thereto; (ii) the preparation, filing and
printing of this Agreement, (iii) the preparation, printing, issuance
and delivery of the Offered Securities; (iv) the fees and disbursements
of the Company's counsel and accountants, of the Trustee and its
counsel, of any calculation agent or exchange rate agent and of The
Depository Trust Company; (v) the qualification of the Offered
Securities under securities or Blue Sky laws in accordance with the
provisions of Section 6(d) hereof, including filing fees and the
reasonable fees and disbursements of Xxxxxx, Xxxx & Xxxxxxxx LLP, as
counsel to the Underwriters, in connection therewith
14
and in connection with the preparation of any Blue Sky survey; (vi) the
printing and delivery to the Underwriters in quantities as hereinabove
stated of copies of the Registration Statement and all amendments
thereto and of any preliminary prospectus and the Prospectus and any
amendments or supplements thereto in connection with solicitations of
offers to purchase, or confirmations of sales of the Offered
Securities; (vii) any fees charged by rating agencies for the rating of
the Offered Securities; (viii) any advertising and other out-of-pocket
expenses of the Underwriters incurred with the prior written approval
of the Company; (ix) any filing fees and expenses, if any, incurred
with respect to any filing with the National Association of Securities
Dealers, Inc. made in connection the Offered Securities, and (x) any
expenses incurred by the Company in connection with a "road show"
presentation to potential investors.
7. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls an Underwriter within
the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act as follows:
(i) against any and all loss, liability, claim,
damage and expense whatsoever (including, subject to the
limitations set forth in subsection (c) below, the reasonable
fees and disbursements of counsel chosen by the Underwriters),
as incurred, insofar as such loss, liability, claim, damage or
expense arises out of any untrue statement or alleged untrue
statement of a material fact contained in the Registration
Statement or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to
make the statements therein not misleading, or arises out of
any untrue statement or alleged untrue statement of a material
fact contained in the Prospectus, or in any amendment or
supplement thereto, or the omission or alleged omission
therefrom of a material fact necessary in order to make the
statements therein, in light of the circumstances under which
they were made, not misleading;
(ii) against any and all loss, liability, claim,
damage and expense whatsoever (including, subject to the
limitations set forth in subsection (c) below, the reasonable
fees and disbursements of counsel chosen by the Underwriters),
as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or investigation or proceeding
by any governmental agency or body, commenced or threatened,
or of any claim whatsoever insofar as such loss, liability,
claim, damage or expense arises out of any such untrue
statement or omission, or any such alleged untrue statement or
omission, if such settlement is effected with the written
consent of the Company; and
(iii) against any and all expense whatsoever
(including, subject to the limitations set forth in subsection
(c) below, the reasonable fees and disbursements of counsel
chosen by the Underwriters), as incurred, reasonably incurred
in investigating, preparing or defending against any
litigation, or
15
investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever, based
upon any such untrue statement or omission, or any such
alleged untrue statement or omission;
provided, however, that this indemnity shall not apply to any loss,
liability, claim, damage or expense (A) to the extent arising out of or
based upon any untrue statement or omission or alleged untrue statement
or omission made in reliance upon the Form T-1 under the Trust
Indenture Act filed as an exhibit to the Registration Statement; or (B)
to the extent arising out of any untrue statement or omission or
alleged untrue statement or omission in the Prospectus if such untrue
statement or alleged untrue statement or omission or alleged omission
is corrected in all material respects in an amendment or supplement to
the Prospectus and if, having previously been furnished by or on behalf
of the Company with copies of the Prospectus, as so amended or
supplemented, such Underwriter thereafter failed to deliver such
Prospectus, as so amended or supplemented, prior to or concurrently
with the sale of any Offered Securities to the person asserting such
loss, liability, claim, damage or expense who purchased such Offered
Securities which are the subject thereof from such Underwriter; or (C)
as to which such Underwriter may be required to indemnify the Company
pursuant to the provisions of subsection (b) of this Section 7.
(b) Each Underwriter agrees to indemnify and hold harmless the
Company, its directors, each of its officers who signed the
Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act against any and all loss, liability,
claim, damage and expense described in the indemnity contained in
subsection (a) of this Section 7, as incurred, but only with respect to
untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement or the Prospectus in
reliance upon and in conformity with written information furnished to
the Company by such Underwriter expressly for use in the Registration
Statement or the Prospectus.
(c) In case any action, suit or proceeding (including any
governmental or regulatory investigation or proceeding) shall be
brought against any Underwriter or any person controlling such
Underwriter, based upon the Registration Statement or the Prospectus
and with respect to which indemnity may be sought against the Company
pursuant to this Section 7, such Underwriter or controlling person
shall promptly notify the Company in writing, and the Company shall
assume the defense thereof, including the employment of counsel (such
counsel to be reasonably acceptable to such Underwriter) and payment of
all expenses. Any such Underwriter or any such controlling person shall
have the right to employ separate counsel in any such action, suit or
proceeding and to participate in the defense thereof, but the fees and
expenses of such separate counsel shall be at the expense of such
Underwriter or such controlling person unless (A) the employment of
such counsel shall have been specifically authorized in writing by the
Company, (B) the Company shall have failed to assume the defense and
employ counsel or (C) the named parties to any such action, suit or
proceeding (including
16
any impleaded parties) shall include both such Underwriter or such
controlling person and the Company, and such Underwriter or such
controlling person shall have been advised by counsel that there may be
one or more legal defenses available to it which are different from, or
additional to, those available to the Company (in which case, if such
Underwriter or such controlling person notifies the Company in writing
that it elects to employ separate counsel at the expense of the
Company, the Company shall not have the right to assume the defense of
such action, suit or proceeding on behalf of such Underwriter or such
controlling person, it being understood, however, that the Company
shall not, in connection with any one such action or separate but
substantially similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances, be liable
for the reasonable fees and expenses of more than one separate firm of
attorneys (in addition to any local counsel) for all such Underwriters
and such controlling persons, which firm shall be designated in writing
by a majority of all such Underwriters, on behalf of all of such
Underwriters and such controlling persons).
(d) In case any action, suit or proceeding (including any
governmental or regulatory investigation or proceeding) shall be
brought against the Company, any of the Company's directors or
officers, or any person controlling the Company, with respect to which
indemnity may be sought against any Underwriter pursuant to this
Section 7, such Underwriter shall have the rights and duties given to
the Company by subsection (c) of this Section 7, and the Company, the
Company's directors and officers and any such controlling person shall
have the rights and duties given to the Underwriters by subsection (c)
of this Section 7.
(e) To the extent the indemnification provided for in
paragraphs (a) or (b) of this Section 7 is unavailable to an
indemnified party or insufficient in respect of any losses, claims,
damages or liabilities referred to therein, then each indemnifying
party under such paragraph, in lieu of indemnifying such indemnified
party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the
Underwriters on the other hand from the offering of the Offered
Securities or (ii) if the allocation provided by clause (i) above is
not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company on the one hand and of
the Underwriters on the other hand in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities,
as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and the Underwriters
on the other hand in connection with the offering of the Offered
Securities shall be deemed to be in the same respective proportions as
the net proceeds from the offering of such Offered Securities (before
deducting expenses) received by the Company and the total underwriting
discounts and commissions received by the Underwriters, in each case as
set forth in the table on the cover of the Prospectus Supplement, bear
to the aggregate public offering price of the Offered Securities. The
relative fault of the Company on the one hand and
17
the Underwriters on the other hand shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material
fact relates to information supplied by the Company or by the
Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission. The Underwriters' respective obligations to contribute
pursuant to this Section 7 are several in proportion to the respective
principal amounts of Offered Securities they have purchased hereunder,
and not joint.
(f) The Company and the Underwriters agree that it would not
be just or equitable if contribution pursuant to this Section 7 were
determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of
allocation that does not take account of the equitable considerations
referred to in paragraph (e) of this Section 7. The amount paid or
payable by an indemnified party as a result of the losses, claims,
damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any
such action or claim. Notwithstanding the provisions of this Section 7,
no Underwriter shall be required to contribute any amount in excess of
the amount by which the total price at which the Offered Securities
underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages that such Underwriter has
otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The remedies
provided for in this Section 7 are not exclusive and shall not limit
any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
(g) The indemnity and contribution provisions contained in
this Section 7 and the representations, warranties and other statements
of the Company contained in this Agreement shall remain operative and
in full force and effect regardless of (i) any termination of this
Agreement, (ii) any investigation made by or on behalf of any
Underwriter or any person controlling any Underwriter or the Company,
its officers or directors or any person controlling the Company and
(iii) acceptance of and payment for any of the Offered Securities.
8. TERMINATION.
(a) The Manager may terminate this Agreement immediately upon
notice to the Company, at any time prior to the Closing Date if (i)
there has been, since the date of this Agreement or since the
respective dates as of which information is given in the Registration
Statement (exclusive of any amendments or supplements thereto or any
documents incorporated therein filed subsequent to the date of this
Agreement), any
18
material adverse change in the consolidated financial condition or
earnings of the Company and its subsidiaries, considered as one
enterprise, (ii) there has occurred any material adverse change in the
financial markets in the United States or any outbreak or escalation of
hostilities or other calamity or crisis, the effect of which is such as
to make it, in the reasonable judgment of such Underwriter,
impracticable to market the Offered Securities or to enforce contracts
for the sale of the Offered Securities, (iii) if trading in any
securities of the Company has been suspended (other than pursuant to a
request by the Company with respect to an announcement by the Company
of certain information not constituting a material adverse change,
since the date of this Agreement or the respective date as of which
information is given in the Registration Statement, in the consolidated
financial condition or earnings of the Company and its subsidiaries,
considered as one enterprise), the effect of which is such as to make
it, in the reasonable judgment of such Manager, impracticable to market
the Offered Securities or to enforce contracts for the sale of the
Offered Securities, (iv) if trading generally on the
New York Stock
Exchange has been suspended, or minimum or maximum prices for trading
have been fixed, or maximum ranges for prices for securities shall have
been required, by such exchange or by order of the Commission or any
other governmental authority, or if a banking moratorium has been
declared by either federal or
New York authorities or if a banking
moratorium has been declared by the relevant authorities in the country
or countries of origin of any foreign currency or currencies in which
the Offered Securities are denominated or payable or (v) after the date
hereof, the rating assigned by any nationally recognized securities
rating agency to any debt securities of the Company (including the
Offered Securities) shall have been lowered or any such rating agency
shall have publicly announced that it has placed any debt securities of
the Company on what is commonly termed a "watch list" with negative
implications.
(b) In the event of any such termination, no party will have
any liability to any other party hereto, except that if at the time of
termination (i) the Closing Date shall not yet have occurred or (ii)
the "Delivery Date" shall not have occurred under and as defined in any
Delayed Delivery Contract, (A) the covenants set forth in Section 6
hereof shall remain in effect until such Closing Date or Delivery Date,
as the case may be, and (B) the covenants set forth in paragraphs (e)
and (g) of Section 6 hereof and the indemnity and contribution
agreements set forth in Section 7 hereof, and the provisions of this
Section and Section 11 hereof shall remain in effect.
9. DEFAULTING UNDERWRITERS. If, on the Closing Date, any one
or more of the Underwriters shall fail or refuse to purchase Underwriters'
Securities that it has or they have agreed to purchase hereunder on such date,
and the aggregate amount of Underwriters' Securities which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase is not more
than one-tenth of the aggregate amount of the Underwriters' Securities to be
purchased on such date, the other Underwriters shall be obligated severally in
the proportions that the amount of Underwriters' Securities set forth opposite
their respective names in the Underwriting Agreement bears to the aggregate
amount of Underwriters' Securities set forth opposite the names of all such
non-defaulting Underwriters, or in such other proportions as the Manager may
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specify, to purchase the Underwriters' Securities which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase on such
date; provided that in no event shall the amount of Underwriters' Securities
that any Underwriter has agreed to purchase pursuant to this Agreement be
increased pursuant to this Section 9 by an amount in excess of one-ninth of such
amount of Underwriters' Securities without the written consent of such
Underwriter. If, on the Closing Date, any Underwriter or Underwriters shall fail
or refuse to purchase Underwriters' Securities and the aggregate amount of
Underwriters' Securities with respect to which such default occurs is more than
one-tenth of the aggregate amount of Underwriters' Securities to be purchased on
such date, and arrangements satisfactory to the Manager and the Company for the
purchase of such Underwriters' Securities are not made within 36 hours after
such default, this Agreement shall terminate without liability on the part of
any non-defaulting Underwriter or the Company. In any such case, either the
Manager or the Company shall have the right to postpone the Closing Date, but in
no event for longer than seven days, in order that the required changes, if any,
in the Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or
any of them (other than pursuant to Section 8(a)(ii), Section 8(a)(iv) or
Section 9), because of any failure or refusal on the part of the Company to
comply with the terms or to fulfill any of the conditions of this Agreement, or
if for any reason the Company shall be unable to perform its obligations under
this Agreement, the Company will reimburse the Underwriters or such Underwriters
as have so terminated this Agreement with respect to themselves, severally, for
all out-of-pocket expenses (including the fees and disbursements of their
counsel) reasonably incurred by such Underwriters in connection with this
Agreement or the offering contemplated hereunder.
10. COUNTERPARTS. This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
11. APPLICABLE LAW. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of
New York.
12. HEADINGS. The headings of the sections of this Agreement
have been inserted for convenience of reference only and shall not be deemed a
part of this Agreement.
20
DELAYED DELIVERY CONTRACT
, 199
------------- --
Dear Sirs and Mesdames:
The undersigned hereby agrees to purchase from A. H.
Belo
Corporation, a Delaware corporation (the "Company"), and the Company agrees to
sell to the undersigned the Company's securities described in Schedule A annexed
hereto (the "Securities"), offered by the Company's Prospectus dated June 3,
1997 and Prospectus Supplement dated ________________, 19__, receipt of copies
of which are hereby acknowledged, at a purchase price stated in Schedule A and
on the further terms and conditions set forth in this Agreement. The undersigned
does not contemplate selling Securities prior to making payment therefor.
The undersigned will purchase from the Company Securities in
the principal amount and numbers on the delivery dates set forth in Schedule A.
Each such date on which Securities are to be purchased hereunder is hereinafter
referred to as a "Delivery Date".
Payment for the Securities which the undersigned has agreed to
purchase on each Delivery Date shall be made at 10:00 A.M. (
New York time) on
the Delivery Date by wire transfer of immediately available funds to such bank
account or accounts as the Company shall designate in writing not less than two
full business days prior to the Delivery Date, upon delivery to the undersigned
of the Securities to be purchased by the undersigned on the Delivery Date, in
such denominations and registered in such names as the undersigned may designate
by written or telegraphic communication addressed to the Company not less than
two full business days prior to the Delivery Date.
The obligation of the undersigned to take delivery of and make
payment for the Securities on the Delivery Date shall be subject to the
conditions that (1) the purchase of Securities to be made by the undersigned
shall not at the time of delivery be prohibited under the laws of the
jurisdiction to which the undersigned is subject and (2) the Company shall have
sold, and delivery shall have taken place to the underwriters (the
"Underwriters") named in the Prospectus Supplement referred to above of, such
part of the Securities as is to be sold to them. Promptly after completion of
sale and delivery to the Underwriters, the Company will mail or deliver to the
undersigned, at its address set forth below, notice to such effect, accompanied
by a
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copy of the opinions of Xxxxx Xxxxxxx Rain Xxxxxxx and the Company's in-house
counsel delivered to the Underwriters in connection therewith.
Failure to take delivery of and make payment for Securities by
any purchaser under any other Delayed Delivery Contract shall not relieve the
undersigned of its obligations under this agreement.
This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors, but will not be
assignable by either party hereto without the written consent of the other.
If this Agreement is acceptable to the Company, it is
requested that the Company sign the form of acceptance below and mail or deliver
one of the counterparts hereof to the undersigned at its address set forth
below. This will become a binding agreement, as of the date first above written,
between the Company and the undersigned when such counterpart is so mailed or
delivered.
This Agreement shall be governed by and construed in
accordance with the internal laws of the State of
New York.
Yours very truly,
-----------------------------------------
(Purchaser)
By:
--------------------------------------
Name:
Title:
-----------------------------------------
-----------------------------------------
(Address)
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Accepted:
A. H.
BELO CORPORATION
By:
-------------------------------
Name:
Title:
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PURCHASER --- PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone and department of the representative of
the Purchaser with whom details of delivery on the Delivery Date may be
discussed is as follows: (Please print.)
Telephone No.
Name (Including Area Code) Department
----------------- --------------------- --------------------
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SCHEDULE A
Securities:
Principal Amounts or Numbers to be Purchased:
Purchase Price:
Delivery:
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