Exhibit 1.1
Xxx Radio, Inc.
6.625% Senior Notes due 2006
Underwriting Agreement
New York, New York
February 12, 2001
To the Representatives named in Schedule I hereto of the Under- writers named in
Schedule II hereto
Ladies and Gentlemen:
Xxx Radio, Inc., a corporation organized under the laws of
Delaware (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 (the "Securities"), to be issued under an indenture (the
"Indenture") dated as of May 26, 1998, as amended by the First Supplemental
Indenture dated as of February 1, 1999, between the Company and The Bank of New
York, as trustee (the "Trustee"). Any reference herein to the Registration
Statement, the Base Prospectus, any Preliminary Final 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 Final Prospectus or the
Final Prospectus, as the case may be; any reference herein to the terms "amend",
"amendment" or "supplement" with respect to the Registration Statement, the Base
Prospectus, any Preliminary Final 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 Final Prospectus or the Final Prospectus, as
the case may be, deemed to be incorporated therein by reference; and all
references herein to financial statements and schedules and other information
which is "contained", "included" or "stated" in the Registration Statement, the
Base Prospectus, any Preliminary Final Prospectus or the Final Prospectus (or
other references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
by reference in the Registration Statement, the Base Prospectus, any
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Preliminary Final Prospectus or the Final Prospectus, as the case may be.
Certain terms used herein are defined in Section 17 hereof.
1. Representations and Warranties. The Company represents and warrants
to, and agrees with, each Underwriter as set forth below in this
Section 1.
(a) Compliance with Registration Requirements. (i) The Company meets the
requirements for use of Form S-3 under the Act and has prepared and
filed with the Commission a registration statement (the file number of
which is set forth in Schedule I hereto) on Form S-3, including a
related base prospectus, for registration under the Act of the
offering and sale of the Securities. The Company may have filed one or
more amendments thereto, including a Preliminary Final Prospectus,
each of which has previously been furnished to you. The Company will
next file with the Commission one of the following: (1) after the
Effective Date of such registration statement, a final prospectus
supplement relating to the Securities in accordance with Rules 430A
and 424(b), (2) prior to the Effective Date of such registration
statement, an amendment to such registration statement (including the
form of final prospectus supplement) or (3) a final prospectus in
accordance with Rules 415 and 424(b). In the case of clause (1), the
Company has included in such registration statement, as amended at the
Effective Date, all information (other than Rule 430A Information)
required by the Act and the rules thereunder to be included in such
registration statement and the Final Prospectus. As filed, such final
prospectus supplement or such amendment and form of final prospectus
supplement shall contain all Rule 430A Information, together with all
other such required information, 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 Final 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).
(ii) On the Effective Date, the Registration Statement did or will, and
when the Final Prospectus is first filed (if required) 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 the Effective Date and at the Execution Time, the
Registration Statement did not or 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 applicable requirements of the Trust Indenture Act and the
rules thereunder; and, on the Effective Date, the Final Prospectus, if
not filed pursuant to Rule 424(b), will not, 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
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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).
(b) Incorporated Documents. The documents incorporated or deemed to be
incorporated by reference in the Registration Statement and the Final
Prospectus, when they became effective or at the time they were or
hereafter are filed with the Commission, complied and will comply in
all material respects with the requirements of the Act and the
Exchange Act, as applicable, and, when read together with the other
information in the Final Prospectus, at the time the Registration
Statement became effective, at the time the Final Prospectus was
issued and the Closing Date, did not 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.
(c) Independent Accountants. The accountants who certified the financial
statements and supporting schedules of the Company and its
subsidiaries, and of Xxxxxx Broadcasting, Inc. ("Xxxxxx"), included in
the Registration Statement and the Final Prospectus are independent
public accountants with respect to the Company and its subsidiaries as
required by the Act.
(d) Financial Statements. The financial statements of the Company included
in the Registration Statement and the Final Prospectus, together with
the related schedule and notes, present fairly the financial position
of the Company and its consolidated subsidiaries at the dates
indicated and the statement of operations, stockholders' equity and
cash flows of the Company and its consolidated subsidiaries for the
periods specified; said financial statements have been prepared in
conformity with generally accepted accounting principles ("GAAP")
applied on a consistent basis throughout the periods involved. The
financial statements of Xxxxxx included in the Registration Statement
and the Final Prospectus, together with the related schedules and
notes, present fairly the financial position of Xxxxxx at the dates
indicated and the statement of operations, stockholders' equity and
cash flows of Xxxxxx for the periods specified; said financial
statements have been prepared in accordance with GAAP applied on a
consistent basis throughout the periods involved. The supporting
schedules, if any, included in the Registration Statement and the
Final Prospectus present fairly in accordance with GAAP the
information required to be stated therein. The pro forma financial
statements of the Company and its consolidated subsidiaries and the
related notes thereto included in the Registration Statement and the
Final Prospectus present fairly the information shown therein, have
been prepared in accordance with the Commission's rules and guidelines
with respect to pro forma financial statements and have been properly
compiled on the bases described therein, and the assumptions used in
the preparation thereof are reasonable and the adjustments used
therein are appropriate to give effect to the transactions and
circumstances referred to therein.
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(e) No Material Adverse Change in Business. Since the respective dates as
of which information is given in the Registration Statement and the
Final Prospectus, except as otherwise stated therein, (A) there has
been no material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects
of the Company and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business (a "Material
Adverse Effect"), (B) there have been no transactions entered into by
the Company or any of its subsidiaries, other than those in the
ordinary course of business, which are material with respect to the
Company and its subsidiaries considered as one enterprise and (C)
there has been no dividend or distribution of any kind declared, paid
or made by the Company on any class of its capital stock.
(f) Good Standing of the Company. The Company has been duly organized and
is validly existing as a corporation in good standing under the laws
of the State of Delaware and has corporate power and authority to own,
lease and operate its properties and to conduct its business as
described in the Final Prospectus and to enter into and perform its
obligations under this Agreement; and the Company is duly qualified as
a foreign corporation to transact business and is in good standing in
each other jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure so to qualify or to be
in good standing would not result in a Material Adverse Effect.
(g) Good Standing of Subsidiaries. Each "significant subsidiary" of the
Company (as such term is defined in Rule 1-02 of Regulation S-X) (each
a "Subsidiary" and, collectively, the "Subsidiaries") has been duly
organized and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, has corporate
or other power and authority to own, lease and operate its properties
and to conduct its business as described in the Final Prospectus and
is duly qualified as a foreign corporation to transact business and is
in good standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or
the conduct of business, except where the failure so to qualify or to
be in good standing would not result in a Material Adverse Effect;
except as otherwise disclosed in the Registration Statement, all of
the issued and outstanding capital stock of each such Subsidiary is
owned by the Company, directly or through subsidiaries, has been duly
authorized and validly issued, is fully paid and non-assessable and is
owned free and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity; and none of the outstanding shares of
capital stock of any Subsidiary was issued in violation of the
preemptive or similar rights of any securityholder or such Subsidiary.
The only subsidiaries of the Company are (a) the subsidiaries listed
on Schedule III hereto and (b) certain other subsidiaries which,
considered in the aggregate as a single subsidiary, do not constitute
a "significant subsidiary" as defined in Rule 1-02 of Regulation S-X.
(h) Capitalization. The shares of outstanding capital stock of the Company
have been duly authorized and validly issued and are fully paid and
non-assessable; and none of the outstanding shares of capital stock of
the Company was issued in violation of the preemptive or other similar
rights of any securityholder of the Company.
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(i) Authorization of Agreement. This Agreement has been duly authorized,
executed and delivered by the Company.
(j) Authorization of the Indenture. The Indenture has been duly
authorized, executed and delivered by the Company and, assuming due
authorization, execution and delivery by the Trustee, constitutes a
valid and binding agreement of the Company, enforceable against the
Company in accordance with its terms, except as the enforcement
thereof may be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar laws affecting enforcement of
creditors' rights generally and except as enforcement thereof is
subject to general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law). The
Indenture has been duly qualified under the Trust Indenture Act.
(k) Authorization of Securities. The Securities have been duly authorized
by the Company for issuance and sale and, on the Closing Date, will
have been duly executed by the Company and, when authenticated, issued
and delivered in the manner provided for in the Indenture and
delivered against payment of the purchase price therefor as provided
in this Agreement, will constitute valid and binding obligations of
the Company, enforceable against the Company in accordance with their
terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or similar laws
affecting enforcement of creditors' rights generally and except as
enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in
equity or at law). The Securities will be in the form contemplated by,
and each registered holder thereof will be entitled to the benefits
of, the Indenture.
(l) Description of the Securities and the Indenture. The Securities and
the Indenture, as of the date hereof and as of the Closing Date,
conform and will conform, as applicable, in all material respects to
the respective statements relating thereto contained in the Final
Prospectus, and the Indenture is in the form filed or incorporated by
reference, as the case may be, as an exhibit to the Registration
Statement.
(m) Absence of Defaults and Conflicts. Neither the Company nor any of its
subsidiaries is in violation of its charter or by-laws or other
constitutive documents or in default in the performance or observance
of any obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which it or any of
them may be bound, or to which any of the property or assets of the
Company or any of its subsidiaries is subject (collectively,
"Agreements and Instruments") except for such defaults that would not
result in a Material Adverse Effect; and the execution, delivery and
performance by the Company of this Agreement, the Indenture and the
Securities and the consummation of the transactions contemplated in
this Agreement and in the Registration Statement (including the
issuance and sale of the Securities and the use of the proceeds from
the sale of the Securities as described in the Final Prospectus under
the caption "Use of Proceeds") and compliance by the Company with its
obligations under this Agreement, the Indenture and the Securities do
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not and will not, whether with or without the giving of notice or
passage of time or both, conflict with or constitute a breach of, or
default or Repayment Event (as defined below) under, or result in the
creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of its subsidiaries pursuant
to, the Agreements and Instruments (except for such conflicts,
breaches or defaults or liens, charges or encumbrances that would not
result in a Material Adverse Effect), nor will such action result in
any violation of the provisions of the charter or by-laws or other
constitutive documents of the Company or any of its subsidiaries or
any applicable law, statute, rule, regulation, judgment, order, writ
or decree of any government, government instrumentality or court,
domestic or foreign, having jurisdiction over the Company or any of
its subsidiaries or any of their assets, properties or operations. As
used herein, a "Repayment Event" means any event or condition which
gives the holder of any note, debenture or other evidence of
indebtedness (or any person acting on such holder's behalf) the right
to require the repurchase, redemption or repayment of all or a portion
of such indebtedness by the Company or any of its subsidiaries.
(n) Absence of Labor Dispute. No labor dispute with the employees of the
Company or any of its subsidiaries exists or, to the knowledge of the
Company, is imminent which, individually or in the aggregate, may
reasonably be expected to result in a Material Adverse Effect.
(o) Absence of Proceedings. There is no action, suit, proceeding, inquiry
or investigation before or brought by any court or governmental agency
or body, domestic or foreign, now pending, or, to the knowledge of the
Company, threatened, against or affecting the Company or any of its
subsidiaries, which is required to be disclosed in the Registration
Statement (other than as disclosed therein), or which, individually or
in the aggregate, might reasonably be expected to result in a Material
Adverse Effect, or which, individually or in the aggregate, might
reasonably be expected to materially and adversely affect the
properties or assets thereof or the consummation of the transactions
contemplated in this Agreement or the performance by the Company of
its obligations hereunder or thereunder; the aggregate of all pending
legal or governmental proceedings to which the Company or any of its
subsidiaries is a party or of which any of their respective property
or assets is the subject which are not described in the Registration
Statement, including ordinary routine litigation incidental to the
business, could not reasonably be expected to result in a Material
Adverse Effect.
(p) Accuracy of Exhibits. There are no contracts or documents which are
required to be described in the Registration Statement, the Final
Prospectus or the documents incorporated by reference therein or to be
filed as exhibits thereto which have not been so described and filed as
required.
(q) Possession of Intellectual Property. Except as disclosed in the Final
Prospectus, the Company and its subsidiaries own or possess, or can
acquire on reasonable terms, adequate patents, patent rights,
licenses, inventions, copyrights, know-how (including trade secrets
and other patented and/or unpatentable proprietary or confidential
information, systems or procedures), trademarks, service marks, trade
names or other intellectual property (collectively, "Intellectual
Property") necessary to carry on the business now operated by them,
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other than those the absence of which would not have a Material
Adverse Effect, and neither the Company nor any of its subsidiaries
has received any notice or is otherwise aware of any infringement of
or conflict with asserted rights of others with respect to any
Intellectual Property or of any facts or circumstances which would
render any Intellectual Property invalid or inadequate to protect the
interest of the Company or any of its subsidiaries therein, and which
infringement or conflict (if the subject of any unfavorable decision,
ruling or finding) or invalidity or inadequacy, singly or in the
aggregate, would result in a Material Adverse Effect.
(r) Absence of Further Requirements. No filing with, or authorization,
approval, consent, license, order, registration, qualification or
decree of, any court or governmental authority or agency is necessary
or required for the performance by the Company of its obligations
hereunder, in connection with the offering, issuance or sale of the
Securities under this Agreement or the consummation of the
transactions contemplated by this Agreement or for the due execution,
delivery or performance of the Indenture by the Company, except such
as have been already obtained or as may be required under the Act or
state securities laws, the laws of a foreign jurisdiction or the
by-laws and rules of the National Association of Securities Dealers,
Inc.
(s) Possession of Licenses and Permits. The Company and its subsidiaries
possess such permits, licenses, approvals, consents and other
authorizations (collectively, "Governmental Licenses") issued by the
appropriate federal, state, local or foreign regulatory agencies or
bodies necessary to conduct the business now operated by them, other
than those the absence of which would not have a Material Adverse
Effect; the Company and its subsidiaries are in compliance with the
terms and conditions of all such Governmental Licenses, except where
the failure so to comply would not, singly or in the aggregate, have a
Material Adverse Effect; all of the Governmental Licenses are valid
and in full force and effect, except when the invalidity of such
Governmental Licenses or the failure of such Governmental Licenses to
be in full force and effect would not have a Material Adverse Effect;
and neither the Company nor any of its subsidiaries has received any
notice of proceedings relating to the revocation or modification of
any such Governmental Licenses which, singly or in the aggregate, if
the subject of an unfavorable decision, ruling or finding, would
result in a Material Adverse Effect.
(t) Title to Property. The Company and its subsidiaries have good and
marketable title to all material real property owned by the Company
and its subsidiaries and good title to all other properties owned by
them, in each case, free and clear of all mortgages, pledges, liens,
security interests, claims, restrictions or encumbrances of any kind
except such as (a) are described in the Final Prospectus or (b) do
not, singly or in the aggregate, materially affect the value of such
property and do not interfere with the use made and proposed to be
made of such property by the Company or any of its subsidiaries; and
all of the leases and subleases material to the business of the
Company and its subsidiaries, considered as one enterprise, and under
which the Company or any of its subsidiaries holds properties
described in the Final Prospectus, are in full force and effect, and
neither the Company nor any subsidiary has any notice of any material
claim of any sort that has been asserted by anyone adverse to the
rights of the Company or any subsidiary under any of the leases or
subleases mentioned above, or any material claim affecting or
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questioning the rights of the Company or such subsidiary to the
continued possession of the leased or subleased premises under any
such lease or sublease.
(u) Investment Company Act. The Company is not, and upon the issuance and
sale of the Securities as herein contemplated and the application of
the net proceeds therefrom as described in the Final Prospectus will
not be, an "investment company" as such term is defined in the
Investment Company Act of 1940, as amended (the "Investment Company
Act").
(v) Environmental Laws. Except as described in the Registration Statement
and except as would not, singly or in the aggregate, result in a
Material Adverse Effect, (A) neither the Company nor any of its
subsidiaries is in violation of any federal, state, local or foreign
statute, law, rule, regulation, ordinance, code, policy or rule of
common law or any judicial or administrative interpretation thereof,
including any judicial or administrative order, consent, decree or
judgment, relating to pollution or protection of human health, the
environment (including, without limitation, ambient air, surface
water, groundwater, land surface or subsurface strata) or wildlife,
including, without limitation, laws and regulations relating to the
release or threatened release of chemicals, pollutants, contaminants,
wastes, toxic substances, hazardous substances, petroleum or petroleum
products (collectively, "Hazardous Materials") or to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport
or handling of Hazardous Materials (collectively, "Environmental
Laws"), (B) the Company and its subsidiaries have all permits,
authorizations and approvals required under any applicable
Environmental Laws and are each in compliance with their requirements,
(C) there are no pending or, to the Company's knowledge, threatened
administrative, regulatory or judicial actions, suits, demands, demand
letters, claims, liens, notices of noncompliance or violation,
investigation or proceedings relating to any Environmental Law against
the Company or any of its subsidiaries and (D) there are no events or
circumstances that might reasonably be expected to form the basis of
an order for clean-up or remediation, or an action, suit or proceeding
by any private party or governmental body or agency, against or
affecting the Company or any of its subsidiaries relating to Hazardous
Materials or any Environmental Laws.
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 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 from the Company, at the
purchase price set forth in Schedule I hereto the principal amount of
the Securities set forth opposite such Underwriter's name in Schedule
II hereto.
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 or
at such time on such later date not more than three Business Days
after the foregoing date as the Representatives shall designate, which
date and time may be postponed by agreement between the
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Representatives and the Company or as provided in Section 9 hereof
(such date and time of delivery and payment for the Securities being
herein called the "Closing Date"). Delivery of the Securities shall be
made to the Representatives for the respective accounts of the several
Underwriters against payment by the several Underwriters through the
Representatives of the purchase price thereof to or upon the order of
the Company by wire transfer payable in same-day funds to 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. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Securities for sale to the public as
set forth in the Final Prospectus.
5. Agreements. The Company agrees with the several Underwriters that:
(a) The Company will use its best efforts to cause the Registration
Statement, if not effective at the Execution Time, and any amendment
thereof, to become effective. 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 Final 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.
Subject to the foregoing sentence, if the Registration Statement has
become or becomes effective pursuant to Rule 430A, or filing of the
Final Prospectus is otherwise required under Rule 424(b), 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
(1) when the Registration Statement, if not effective at the Execution
Time, shall have become effective, (2) when the Final Prospectus, and
any supplement thereto, shall have been filed (if required) with the
Commission pursuant to Rule 424(b) or when any Rule 462(b)
Registration Statement shall have been filed with the Commission, (3)
when, prior to termination of the offering of the Securities, any
amendment to the Registration Statement shall have been filed or
become effective, (4) 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 for any additional information, (5) 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 (6) 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 within the United
States or the institution or threatening of any proceeding for such
purpose. The Company will use its best 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) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, 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
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circumstances under which they were made not misleading, or if it
shall be necessary to amend the Registration Statement or supplement
the Final Prospectus to comply with the Act or the Exchange Act, the
Company promptly will (1) notify the Representatives of such event,
(2) prepare and file with the Commission, subject to the second
sentence of paragraph (a) of this Section 5, an amendment or
supplement which will correct such statement or omission or effect
such compliance and (3) supply any supplemented Final Prospectus to
you in such quantities as you may reasonably request.
(c) The Company will timely file such reports pursuant to the Exchange Act
in order to 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.
(d) The Company will furnish to the Representatives and counsel for the
Underwriters, without charge, so long as delivery of a prospectus by an
Underwriter or dealer may be required by the Act, as many copies of
each Preliminary Final Prospectus and the Final 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.
(e) The Company will arrange, if necessary, for the qualification of the
Securities for sale under the laws of such jurisdictions within the
United States 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 in no event shall the Company be obligated to
qualify to do business in any jurisdiction where it is not now so
qualified or to take any action that would subject it to service of
process in suits, other than those arising out of the offering or sale
of the Securities, in any jurisdiction where it is not now so subject.
(f) The Company will not, without the prior written consent of Xxxxxxx
Xxxxx Xxxxxx Inc., 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
substantially similar to the 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.
(g) The Company will not take, directly or indirectly, any action designed
to or that would constitute or that might reasonably be expected to
cause or result in, under the Exchange Act or otherwise, stabilization
(other than through the Underwriters) or manipulation of the price of
any security of the Company to facilitate the sale or resale of the
Securities.
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6. 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, 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) If the Registration Statement has not become effective prior to the
Execution Time, unless the Representatives agree in writing to a later
time, the Registration Statement will become effective not later than
(i) 6:00 PM New York City time, on the date of determination of the
public offering price, if such determination occurred at or prior to
3:00 PM New York City time on such date or (ii) 9:30 AM on the
Business Day following the day on which the public offering price was
determined, if such determination occurred after 3:00 PM New York City
time on such date; if filing of the Final Prospectus, or any
supplement thereto, is required pursuant to Rule 424(b), the Final
Prospectus, and any such supplement, will be filed in the manner and
within the time period required by Rule 424(b); and no stop order
suspending the effectiveness of the Registration Statement shall have
been issued and no proceedings for that purpose shall have been
instituted or threatened.
(b) The Company shall have requested and caused Dow, Xxxxxx & Xxxxxxxxx,
PLLC, counsel for the Company, to have furnished to the Representatives
their opinion, dated the Closing Date and addressed to the
Representatives, to the effect that:
(i) The Company is an existing corporation in good standing under the
laws of the State of Delaware, has the corporate power and
authority to own its properties and to conduct its business as
described in the Final Prospectus and to enter into and perform
its obligations under each of this Agreement, the Indenture and
the Securities (collectively, the "Operative Agreements") and,
based solely on a review of certificates from the appropriate
governmental authorities in each jurisdiction listed in such
opinion, is duly qualified to transact business and is in good
standing in each jurisdiction specified in such opinion;
(ii) Each Subsidiary of the Company is an existing corporation in
good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own
its property and to conduct its business as described in the
Final Prospectus and, to such counsel's knowledge, based
solely on a review of a certificate of an officer of the
Company, is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of
its business or its ownership or leasing of property as
described in the Final Prospectus requires such
qualification, except to the extent that the failure to be
so qualified or be in good standing would not result in a
Material Adverse Effect;
(iii)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
(subject, as to enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium or other
laws affecting creditors' rights generally from time to time
12
in effect and to general principles of equity, including,
without limitation, concepts of materiality, reasonableness,
good faith and fair dealing, regardless of whether
considered in a proceeding in equity or at law); 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;
(iv) Other than as set forth in the Final Prospectus, to such
counsel's knowledge there is not pending or threatened in
writing any action, suit, proceeding, inquiry or
investigation, governmental or otherwise, to which the
Company or any subsidiary is a party which might reasonably
be expected to have a Material Adverse Effect, or that seeks
to restrain, enjoin, prevent the consummation of, or
otherwise challenge the issuance or sale of the Securities
pursuant to this Agreement or the application of the
proceeds therefrom;
(v) The Registration Statement has become effective under the
Act; any required filing of the Base Prospectus, any
Preliminary Final Prospectus and the Final Prospectus, and
any supplements thereto, pursuant to Rule 424(b) has been
made in the manner and within the time period required by
Rule 424(b); to the knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement
has been issued, no proceedings for that purpose have been
instituted or threatened, and the Registration Statement and
the Final Prospectus (other than the financial statements
and schedules and other financial information and
statistical data included or incorporated by reference
therein or omitted therefrom and the Form T-1, as to which
such counsel need express no opinion) comply as to form in
all material respects with the applicable requirements of
the Act, the Exchange Act and the Trust Indenture Act and
the respective rules thereunder; and such counsel has no
reason to believe that on the Effective Date or the date the
Registration Statement was last deemed amended the
Registration Statement contained any untrue statement of a
material fact or omitted to state any material fact required
to be stated therein or necessary to make the statements
therein not misleading or that the Final Prospectus as of
its date and on the Closing Date included or includes any
untrue statement of a material fact or omitted or omits to
state a material fact necessary to make the statements
therein, in the light of the circumstances under which they
were made, not misleading (in each case, other than the
financial statements and schedules and other financial
information and statistical data included or incorporated by
reference therein or omitted therefrom and the Form T-1, as
to which such counsel need express no opinion);
(vi) This Agreement has been duly authorized, executed and
delivered by the Company;
(vii)The information (A) included or incorporated by reference
in the Final Prospectus under the captions "Description of
Notes" and "Description of the Debt Securities," (B) in the
Registration Statement under Items 14 and 15, and (C) in the
13
Company's Form 10-K for the year ended December 31, 1999
under the caption "Business--Competition" and "--Legislation
and Regulation" to the extent that it constitutes matters of
U.S. Federal laws, rules and regulations referred to
therein, legal conclusions or summaries of the provisions of
the Company's certificate of incorporation and by-laws or
the Operative Agreements referred to therein has been
reviewed by such counsel and accurately describes in all
material respects the matters referred to therein;
(viii) The statements in the Company's Form 10-K for the year
ended December 31, 1999 under the caption "Legal
Proceedings," to the extent that such statements constitute
summaries of legal proceedings, have been reviewed by such
counsel and, to such counsel's knowledge, accurately
describe such legal proceedings in all respects material to
the business of the Company as described in the Final
Prospectus; provided, however, that such counsel may state
that it has not been retained to represent the Company or
any subsidiary or affiliate of the Company in connection
with any such legal proceedings;
(ix) To such counsel's knowledge, no consent, approval,
authorization or order of, or qualification with, any
governmental agency or body is required under the laws of the
United States, the laws of the State of New York and the
Delaware General Corporation Law (collectively, "Applicable
Law") for the execution and delivery by the Company of the
Operative Agreements, or the consummation by the Company (as
if consummation occurred on the date of such opinion) of the
transactions contemplated thereby, except as has already been
acquired or as may be required under state securities or "Blue
Sky" laws;
(x) The issuance of the Securities and the execution, delivery
and performance (as if such performance occurred on the date
of such opinion) by the Company of the Operative Agreements
and consummation (as if consummation occurred on the date of
such opinion) of the transactions contemplated therein do
not, whether with or without the giving of notice or lapse
of time or both, conflict with or constitute a breach of, or
default or Repayment Event (as defined in Section 1(p) of
this Agreement) under, or result in the creation or
imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any Subsidiary pursuant
to, any Agreements and Instruments (except for such
conflicts, breaches or defaults or liens, charges or
encumbrances that the Company has advised such counsel would
not, individually or in the aggregate, have a Material
Adverse Effect), nor will such action result in any
violation of the provisions of the certificate of
incorporation or by-laws or other constitutive documents of
the Company or any Subsidiary, or, to such counsel's
knowledge, any Applicable Law or to such counsel's
knowledge, any judgment, order, writ or decree of any
government, government instrumentality or court, domestic or
foreign, having jurisdiction over the Company or any
Subsidiary and specifically applicable to the Company and
any Subsidiary;
(xi) To such counsel's knowledge, the Company is not, nor with
the giving of notice or lapse of time or both would the
Company be, in violation of any judgment, injunction, order
or decree of the FCC other than those that the Company has
14
advised such counsel, would not, individually or in the
aggregate, have a Material Adverse Effect;
(xii)The execution, delivery and performance (as if such
performance occurred on the date of such opinion) by the
Company of this Agreement does not violate the
Communications Act or any rules or the regulations
thereunder binding on the Company or its Subsidiaries or any
order, writ, judgment, injunction, decree or award of the
FCC binding on the Company or its Subsidiaries of which such
counsel has knowledge; and
(xiii) The Company is not and, after giving effect to the
offering and sale of the Securities and the application of
the proceeds thereof as described in the Final Prospectus,
will not be an "investment company" as defined in the
Investment Company Act.
In rendering such opinion, such counsel may rely (A) as to
matters involving the application of laws of any jurisdiction
other than the laws of the United States, the laws of the
State of New York and the Delaware General Corporation Law to
the extent they deem proper and specified in such opinion,
upon the opinion of other counsel of good standing whom they
believe to be reliable and who are satisfactory to counsel for
the Underwriters and (B) as to matters of fact, to the extent
they deem proper, on certificates of responsible officers of
the Company and public officials. References to the Final
Prospectus in this paragraph (b) include any supplements
thereto at the Closing Date.
(c) The Representatives shall have received from Shearman & Sterling, counsel
for the Underwriters, such opinion or opinions, dated the Closing Date and
addressed to the Representatives, with respect to the issuance and sale of
the Securities, the Indenture, the Registration Statement, 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.
(d) The Company shall have furnished to the Representatives a certificate of
the Company, signed by the Chairman of the Board or the President or any
Vice President, and the principal financial or accounting officer or the
treasurer of the Company, dated the Closing Date, to the effect that the
signers of such certificate have carefully examined the Registration
Statement, the Final Prospectus, any supplements to the Final Prospectus
and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement
are true and correct 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;
15
(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 or
incorporated by reference in the Final Prospectus (exclusive of any
supplement thereto), there has been no material adverse change in the
condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary
course of business, except as set forth in or contemplated in the
Final Prospectus (exclusive of any supplement thereto).
(e) The Company shall have requested and caused Deloitte & Touche LLP to have
furnished to the Representatives, at the Execution Time and at the Closing
Date, letters, (which may refer to letters previously delivered to one or
more of the Representatives), dated respectively as of the Execution Time
and as of the Closing Date, in form and substance satisfactory to the
Representatives, confirming that they are independent accountants within
the meaning of the Act and the Exchange Act and the respective applicable
rules and regulations adopted by the Commission thereunder and that they
have performed a review of the unaudited interim financial information of
the Company and its consolidated subsidiaries for the nine-month period
ended September 30, 2000, and as at September 30, 2000, in accordance with
Statement on Auditing Standards No. 71, and stating in effect, except as
provided in Schedule I hereto, that:
(i) in their opinion the audited consolidated financial statements and
financial statement schedule included or incorporated by reference in
the Registration Statement and the Final Prospectus and reported on by
them comply as to form in all material respects with the applicable
accounting requirements of the Act and the Exchange Act and the
related rules and regulations adopted by the Commission;
(ii) on the basis of a reading of the latest unaudited financial statements
made available by the Company and its subsidiaries; their limited
review, in accordance with standards established under Statement on
Auditing Standards No. 71, of the unaudited interim financial
information for the nine-month period ended September 30, 2000 and as
at September 30, 2000; carrying out certain specified procedures (but
not an examination in accordance with generally accepted auditing
standards) which would not necessarily reveal matters of significance
with respect to the comments set forth in such letter; a reading of
the minutes of the meetings of the stockholders, directors and related
committees of the Company and the Subsidiaries; and inquiries of
certain officials of the Company who have responsibility for financial
and accounting matters of the Company and its subsidiaries as to
transactions and events subsequent to December 31, 1999, nothing came
to their attention which caused them to believe that:
(1) any unaudited consolidated financial statements included or
incorporated by reference in the Registration Statement and the
Final Prospectus do not comply as to form in all material
16
respects with applicable accounting requirements of the Exchange
Act as it applies to quarterly reports on Form 10-Q and with the
related rules and regulations adopted by the Commission or any
material modifications should be made to said unaudited
consolidated financial statements for them to be in conformity
with generally accepted accounting principles applied on a basis
substantially consistent with that of the audited financial
statements included or incorporated by reference in the
Registration Statement and the Final Prospectus; and
(2) with respect to the period subsequent to September 30, 2000,
there was any change, at a specified date not more than three
business days prior to the date of the letter, in the capital
stock, increase in notes payable or decrease in consolidated net
current assets or shareholders' equity of the Company as compared
with the amounts shown on the September 30, 2000 unaudited
consolidated balance sheet included or incorporated by reference
in the Registration Statement and the Final Prospectus, or for
the period from October 1, 2000 to such specified date there were
any decreases, as compared with the corresponding period in the
preceding year, in consolidated revenues, broadcast cash flow (as
defined in the Registration Statement) or net income, except in
all instances for changes or decreases set forth in such letter,
in which case the letter shall be accompanied by an explanation
by the Company as to the significance thereof unless said
explanation is not deemed necessary by the Representatives;
(iii)they have performed certain other specified procedures as a result of
which they determined that certain information of an accounting,
financial or statistical nature (which is limited to accounting,
financial or statistical information derived from the general
accounting records of the Company and its subsidiaries) set forth in
the Registration Statement and the Final Prospectus and in Exhibit 12
to the Registration Statement, including the information set forth
under the captions "Selected Consolidated Financial Information and
other Data" and "Selected Unaudited Pro Forma Combined Financial
Information" in the Final Prospectus, the information included or
incorporated by reference in Items 1, 3, 6, 7, 7A, 8, 9 and 11 of the
Company's Annual Report on Form 10-K, incorporated by reference in the
Registration Statement and the Final Prospectus, and the information
included in the "Management's Discussion and Analysis of Financial
Condition and Results of Operations" included or incorporated by
reference in the Company's Quarterly Reports on Form 10-Q,
incorporated by reference in the Registration Statement and the Final
Prospectus, agrees with the accounting records of the Company and its
subsidiaries, excluding any questions of legal interpretation; and
(iv) On the basis of a reading of the unaudited pro forma financial
statements included or incorporated by reference in the Registration
Statement and the Final Prospectus (the "pro forma financial
17
statements"); carrying out certain specified procedures; inquiries of
certain officials of the Company who have responsibility for financial
and accounting matters; and proving the arithmetic accuracy of the
application of the pro forma adjustments to the historical amounts in
the pro forma financial statements, nothing came to their attention
which caused them to believe that the pro forma financial statements
do not comply as to form in all material respects with the applicable
accounting requirements of Rule 11-02 of Regulation S-X or that the
pro forma adjustments have not been properly applied to the historical
amounts in the compilation of such statements.
References to the Final Prospectus in this paragraph (e)
include any supplement thereto at the date of the letter.
(f) The Company shall have requested and caused Ernst & Young
LLP to have furnished to the Representatives, at the Execution Time and
at the Closing Date, letters (which may refer to letters previously
delivered to one or more of the Representatives), dated respectively as
of the Execution Time and as of the Closing Date, in form and substance
satisfactory to the Representatives, confirming that they are
independent accountants within the meaning of the Act and the Exchange
Act and the respective applicable rules and regulations adopted by the
Commission thereunder and stating to the effect that:
(i) in their opinion the audited financial statements and schedules
and summary of earnings of Xxxxxx included or incorporated by
reference in the Registration Statement and the Final Prospectus
and reported on by them comply as to form in all material
respects with the applicable accounting requirements of the Act
and the related rules and regulations adopted by the Commission;
(ii) on the basis of inquiries of officials of Xxxxxx who have
responsibility for financial and accounting matters and other
specified procedures, nothing came to their attention that caused
them to believe that:
(1) the unaudited financial and summary financial data included
in the pro forma financial statements filed on the August
30, 1999 Form 8-K do not comply as to form in all material
respects with the applicable accounting requirements of the
Act and the related rules and regulations adopted by the
Commission; or any material modifications should be made to
such unaudited financial and summary financial data for them
to be in conformity with generally accepted accounting
principles applied on a basis substantially consistent with
that of the audited financial statements included or
incorporated by reference in the Registration Statement and
the Final Prospectus;
(2) at the date of the latest available balance sheet read by
such accountants, or a subsequent specified date not more
than three business days prior to the date of the letter,
there was any change in the capital stock or any increase in
short-term indebtedness or long-term debt of Xxxxxx and its
18
consolidated subsidiaries or, at the date of the latest
available balance sheet read by such accountants, there was
any decrease in consolidated net assets, as compared with
amounts shown on the latest balance sheet included or
incorporated by reference in the Registration Statement and
the Final Prospectus; or
(3) for the period from the closing date of the latest income
statement included or incorporated by reference in the
Registration Statement and the Final Prospectus to the
closing date of the latest available income statement read
by such accountants there were any decreases, as compared
with the corresponding period of the previous year, in
consolidated net sales or consolidated net income,
except in all cases set forth in clauses (2)
and (3) above for changes, increases or decreases which the
Final Prospectus discloses have occurred or may occur or which
are described in such letter; and
(iii) they have performed certain other specified procedures as a result of
which they determined that certain information of an accounting,
financial or statistical nature (which is limited to accounting,
financial or statistical information derived from the general
accounting records of Xxxxxx and its subsidiaries) set forth in the
Registration Statement and the Final Prospectus agrees with the
accounting records of Xxxxxx and its subsidiaries, excluding any
questions of legal interpretation.
References to the Final Prospectus in this
paragraph (f) include any supplement thereto at the date of
the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which
information is given in the Registration Statement (exclusive of any
amendment thereof) and the Final Prospectus (exclusive of any
supplement thereto), there shall not have been any material adverse
change in the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising from
transactions in the ordinary course of business.
(h) On the Closing Date the Securities shall be rated at least Baa2 by
Xxxxx'x Investors Service Inc. and BBB by Standard & Poor's Ratings
Service, and the Company shall have delivered to the Representatives a
letter, dated the Closing Date, from each such rating agency, or other
evidence satisfactory to the Representative, confirming that the
Securities have such ratings; and subsequent to the Execution Time,
there shall not have been any decrease in the rating of any of the
Company's other debt securities by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule
436(g) under the Act) or any notice given of any intended or potential
decrease in any such rating or of a possible change in any such rating
that does not indicate the direction of the possible change.
19
(i) Prior to the Closing Date, the Company shall have furnished to the
Representatives such further information, certificates and documents
as the Representatives may reasonably request.
If any of the conditions specified in this Section 6 shall not
have been 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 6 shall
be delivered at the office of Shearman & Sterling, counsel for the Underwriters,
at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000, on the Closing Date.
7. 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 6 hereof is not satisfied, because of
any termination pursuant to Section 10 hereof or because of any refusal,
inability or failure on the part of the Company 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
Xxxxxxx Xxxxx Xxxxxx Inc. on demand for all out-of-pocket expenses (including
reasonable fees and disbursements of counsel) that shall have been incurred by
them in connection with the proposed purchase and sale of the Securities.
8. Indemnification and Contribution. (a) The Company 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 or in any amendment thereof, or in
the Base Prospectus, any Preliminary Final Prospectus or the Final Prospectus,
or in any amendment or supplement to the Base Prospectus, any Preliminary Final
Prospectus or the Final Prospectus, 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 incurred, for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished to
the Company by or on behalf of any Underwriter through the Representatives
specifically for inclusion therein and provided, further, that as to any
Preliminary Final Prospectus, this indemnity agreement shall not inure to the
benefit of any Underwriter or any person controlling such Underwriter on account
20
of any loss, claim, damage, liability or action arising from the sale
of Securities to any person by such Underwriter if such Underwriter
failed to send or give a copy of the Final Prospectus, as the same may
be amended or supplemented, to that person and the untrue statement or
alleged untrue statement of a material fact or omission or alleged
omission to state a material fact in the Preliminary Final Prospectus
was corrected in said amended or supplemented Final Prospectus and the
delivery thereof was required by law and would have constituted a
complete defense to the claim of that person, unless such failure
resulted from non-compliance by the Company with Section 5(a) or (b).
For purposes of the second proviso to the immediately preceding
sentence, the term Final Prospectus shall not be deemed to include the
documents incorporated by reference therein, and no Underwriter shall
be obligated to send or give any document incorporated by reference in
a Preliminary Final Prospectus or the Final Prospectus to any person.
This indemnity agreement will be in addition to any liability which
the Company may otherwise have.
(b) Each Underwriter severally and not jointly 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.
(c) Promptly after receipt by an indemnified party under this Section 8 of
notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying
party under this Section 8, notify the indemnifying party in writing
of the commencement thereof; but the failure so to notify the
indemnifying party (i) will not relieve it from liability under
paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the
forfeiture by the indemnifying party of substantial rights and
defenses and (ii) will not, in any event, relieve the indemnifying
party from or otherwise affect 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
satisfactory to the indemnified party. Notwithstanding the
indemnifying party's election to appoint counsel to represent the
indemnified party in an action, the indemnified party shall have the
right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses
of such separate counsel if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present
such counsel with a conflict of interest, (ii) the actual or potential
defendants in, or targets of, any such action include both the
indemnified party and the indemnifying party and the indemnified party
shall have reasonably concluded that there may be legal defenses
available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, (iii)
the indemnifying party shall not have employed counsel satisfactory to
the indemnified party to represent the indemnified party within a
21
reasonable time after notice of the institution of such action or (iv)
the indemnifying party shall authorize in writing 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 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company and the Underwriters
severally 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 on the one hand and by the
Underwriters on the other 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 amount of the Securities purchased by such Underwriter hereunder
less any damages which the Underwriter has otherwise been required to
pay by reason of any untrue or alleged untrue statement or omission or
alleged untrue statement of a material fact. If the allocation
provided by the immediately preceding sentence is unavailable for any
reason, the Company and the Underwriters severally shall contribute in
such proportion as is appropriate to reflect not only such relative
benefits but also the relative fault of the Company on the one hand
and of the Underwriters on the other in connection with the statements
or omissions which resulted in such Losses as well as any other
relevant equitable considerations. Benefits received by the Company
shall be deemed to be equal to the total net proceeds from the
offering (before deducting expenses) received by it, 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 8, 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
22
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).
9. 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 for (in the respective
proportions which the principal amount of Securities set forth
opposite their names in Schedule II hereto bears to the aggregate
principal 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 principal amount of
Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase shall exceed 10% of the aggregate principal amount
of Securities set forth in Schedule II hereto, the remaining
Underwriters shall have the right to purchase 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 9, the Closing Date shall be
postponed for such period, not exceeding five Business Days, as the
Representatives shall determine in order that the required changes in
the 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.
10. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Representatives, by notice given to the
Company prior to delivery of and payment for the Securities, if at any
time prior to such time (i) trading in the Company's Common Stock
shall have been suspended by the Commission or the New York Stock
Exchange or trading in securities generally on the New York Stock
Exchange shall have been suspended or limited or minimum prices shall
have been established on such Exchange, (ii) a banking moratorium
shall have been declared either by Federal or New York State
authorities or (iii) there shall have occurred any material adverse
change in the financial markets in the United States or the
international financial markets, any outbreak of hostilities or
escalation thereof or other calamity or crisis or any change or
development involving a prospective change in national or
international political, financial or economic conditions, in each
case the effect of which is such as to make it, in the sole judgment
of the Representatives, impractical or inadvisable to proceed with the
offering or delivery of the Securities as contemplated by the Final
Prospectus (exclusive of any supplement thereto).
11. 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,
employees, agents or controlling persons referred to in Section 8
hereof, and will survive delivery of and payment for the Securities.
The provisions of Sections 7 and 8 hereof shall survive the
termination or cancellation of this Agreement.
23
12. Notices. All communications hereunder will be in writing and effective
only on receipt, and, if sent to the Representatives, will be mailed,
delivered or telefaxed to Xxxxxxx Xxxxx Barney Inc., General Counsel
(fax no.: (000) 000-0000) and confirmed to the General Counsel,
Xxxxxxx Xxxxx Xxxxxx Inc., at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx, 00000, Attention: General Counsel; or, if sent to the Company,
will be mailed, delivered or telefaxed to (fax no.: (000) 000-0000)
and confirmed to it at Xxx Radio, Inc., 0000 Xxxx Xxxxx Xxxxx, X.X.
Xxxxxxx, Xxxxxxx, 00000, Attention: Xxxxxxx Xxxxxxxx.
13. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the
officers, directors, employees, agents and controlling persons
referred to in Section 8 hereof, and no other person will have any
right or obligation hereunder.
14. Applicable Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York applicable to
contracts made and to be performed within the State of New York.
15. Counterparts. This Agreement may be 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, and
the rules and regulations of the Commission promulgated thereunder.
"Base Prospectus" shall mean the prospectus referred to in
paragraph 1(a) above contained in the Registration Statement at the
Effective Date, as the same may have been amended 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.
"Commission" shall mean the Securities and Exchange
Commission.
"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, and the rules and regulations of the Commission promulgated
thereunder.
"Execution Time" shall mean the date and time that this
Agreement is executed and delivered by the parties hereto.
24
"Final Prospectus" shall mean the prospectus supplement
relating to the Securities that was first filed pursuant to Rule 424(b)
after the Execution Time, together with the Base Prospectus.
"Preliminary Final Prospectus" shall mean any preliminary
prospectus supplement to the Base Prospectus which describes the
Securities and the offering thereof and is used prior to 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, as amended by pre- or post-effective amendments at the
Execution Time (or, if not effective at the Execution Time, in the form
in which it shall become effective) and, in the event any Rule 462(b)
Registration Statement becomes effective prior to the Closing Date,
shall also mean such Rule 462(b) Registration Statement, as the case
may be. Such term shall include any Rule 430A Information deemed to be
included therein at the Effective Date as provided by Rule 430A.
"Rule 415", "Rule 424", "Rule 430A" and "Rule 462" refer to
such rules under the Act.
"Rule 430A Information" shall mean information with respect to
the Securities and the offering thereof permitted to be omitted from
the Registration Statement when it becomes effective pursuant to Rule
430A.
"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.
"Trust Indenture Act" shall mean the Trust Indenture Act of
1939, as amended, and the rules and regulations of the Commission
promulgated thereunder.
25
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,
Xxx Radio, Inc.
By: /s/ Xxxxxxx Xxxxxxxx
............................
Name: Xxxxxxx Xxxxxxxx
Title: Treasurer
The foregoing Agreement is hereby confirmed and accepted as of the date
specified in Schedule I hereto.
Xxxxxxx Xxxxx Barney Inc.
By: /s/ Xxxxxxxx X. Xxxxxxx
.............................................
Name: Xxxxxxxx X. Xxxxxxx
Title: Director
For itself and the other several Underwriters named in Schedule II to the
foregoing Agreement.
SCHEDULE I
Underwriting Agreement dated February 12, 2001
Registration Statement No. 333-35398
Representatives: Xxxxxxx Xxxxx Xxxxxx Inc.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
BNY Capital Markets, Inc.
Commerzbank Capital Markets Corp.
Dresdner Kleinwort Xxxxxx North America LLC.
First Union Securities, Inc.
Title, Purchase Price and Description of Securities:
Title: 6.625% Senior Notes due 2006
Principal amount: $250,000,000
Initial public offering price: 99.811% of the principal amount
thereof ($249,527,500), plus
accrued interest, if any, from
February 15, 2001
Purchase price: 99.211% of the principal amount
thereof ($248,027,500)
Sinking fund provisions: None
Interest rate: 6.625% per annum, payable August
15 and February 15 of each year,
commencing August 15, 2001
Stated Maturity Date: February 15, 2006
Redemption provision: The Company may redeem the notes at
any time, in whole or in part, on
at least 30 but not more than
60 calendar days' notice, at a
redemption price equal to the
greater of (i) 100% of the principal
amount of the notes to be redeemed
and (ii) the sum, as determined by
the quotation agent, of the present
values of the principal amount and
the remaining scheduled payments
of interest on such notes to be
redeemed (exclusive of interest
accrued to the date of redemption),
in each case discounted from their
respective scheduled payment dates
to the redemption date on a
semiannual basis (assuming a 360-day
year consisting of twelve 30-day
months) at the Treasury Rate plus
25 basis points, plus, in either
case, accrued interest thereon to
the date of redemption
Other provisions: N/A
2
Closing Date, Time and Location: February 15, 2001 at 10:00 a.m. at
Shearman & Sterling, 000 Xxxxxxxxx
Xxxxxx, Xxx Xxxx, XX 00000
Type of Offering: Non-delayed
Date referred to in Section 5(f) after which the
Company may offer or sell debt securities
issued or guaranteed by the Company without
the consent of the Representatives:
February 15, 2001
Modification of items to be covered by the letter
from Deloitte & Touche LLP delivered pursuant
to Section 6(e) at the Execution Time:
None
SCHEDULE II
Principal Amount
of Securities to
be Purchased
Underwriters
Xxxxxxx Xxxxx Xxxxxx Inc.................................................................. $ 100,000,000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated 75,000,000
BNY Capital Markets, Inc.................................................................. 18,750,000
Commerzbank Capital Markets Corp.......................................................... 18,750,000
Dresdner Kleinwort Xxxxxx North America LLC............................................... 18,750,000
First Union Securities, Inc............................................................... 18,750,000
Total............................................................................ $ 250,000,000
SCHEDULE III
List of Subsidiaries
CXR Holdings, Inc.
Cox Miami Merger Sub, Inc.
