Exhibit 1.1 - Underwriting Agreement
UNDERWRITING AGREEMENT
MEDIA GENERAL, INC.
(a Virginia corporation)
AND THE GUARANTORS NAMED HEREIN
Senior Debt Securities
Dated August 23, 2001
Table of Contents
Page
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Section 1. Representations and Warranties................................................................. 3
(a) Representations and Warranties by the Company.................................................. 3
(b) Officers' Certificates......................................................................... 11
Section 2. Sale and Delivery to Underwriters; Closing..................................................... 12
(a) Underwritten Securities........................................................................ 12
(b) Option Underwritten Securities................................................................. 12
(c) Payment........................................................................................ 12
(d) Denominations; Registration.................................................................... 13
Section 3. Covenants of the Company and the Initial Guarantors............................................ 13
(a) Compliance with Securities Regulations and Commission Requests................................. 13
(b) Filing of Amendments........................................................................... 14
(c) Delivery of Registration Statements............................................................ 14
(d) Delivery of Prospectuses....................................................................... 14
(e) Continued Compliance with Securities Laws...................................................... 14
(f) Blue Sky Qualifications........................................................................ 15
(g) Earnings Statement............................................................................. 15
(h) Use of Proceeds................................................................................ 15
(i) Listing........................................................................................ 15
(j) Restriction on Sale of Securities.............................................................. 15
(k) Reporting Requirements......................................................................... 15
Section 4. Payment of Expenses............................................................................ 16
(a) Expenses....................................................................................... 16
(b) Termination of Agreement....................................................................... 16
Section 5. Conditions of Underwriters' Obligations........................................................ 16
(a) Effectiveness of Registration Statement........................................................ 17
(b) Opinion of General Counsel of the Company...................................................... 17
(c) Opinion of Counsel for Company................................................................. 17
(d) Opinion of Special Counsel for Company......................................................... 17
(e) Opinion of Counsel for Underwriters............................................................ 17
(f) Officers' Certificate.......................................................................... 17
(g) Accountant's Comfort Letter.................................................................... 18
(h) Bring-down Comfort Letter...................................................................... 18
(i) Ratings........................................................................................ 18
(j) Approval of Listing............................................................................ 18
(k) No Objection................................................................................... 18
(l) Lock-up Agreements............................................................................. 19
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(m) Over-Allotment Option.......................................................................... 19
(n) Additional Documents........................................................................... 19
(o) Termination of Terms Agreement................................................................. 20
Section 6. Indemnification................................................................................ 20
(a) Indemnification of Underwriters................................................................ 20
(b) Indemnification of Company, Directors and Officers............................................. 21
(c) Actions against Parties; Notification.......................................................... 21
(d) Settlement without Consent if Failure to Reimburse............................................. 22
Section 7. Contribution................................................................................... 22
Section 8. Representations, Warranties and Agreements to Survive Delivery................................. 24
Section 9. Termination.................................................................................... 24
(a) Underwriting Agreement......................................................................... 24
(b) Terms Agreement................................................................................ 24
(c) Liabilities.................................................................................... 24
Section 10. Default by One or More of the Underwriters..................................................... 24
Section 11. Notices........................................................................................ 25
Section 12. Parties........................................................................................ 25
Section 13. GOVERNING LAW AND TIME......................................................................... 26
Section 14. Effect of Headings............................................................................. 26
Section 15. Counterparts................................................................................... 26
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SCHEDULES
Schedule A - List of Subsidiaries........................................................... Sch A-1
EXHIBITS
Exhibit A - Terms Agreement................................................................. A-1
Exhibit B - Form of Opinion of General Counsel of the Company............................... B-1
Exhibit C - Form of Opinion of Company's Counsel............................................ C-1
Exhibit D - Form of Opinion of Company's Special Counsel.................................... D-1
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MEDIA GENERAL, INC.
(a Virginia corporation)
AND THE GUARANTORS NAMED HEREIN
Senior Debt Securities
UNDERWRITING AGREEMENT
August 23, 0000
Xxxx xx Xxxxxxx Securities LLC
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Ladies and Gentlemen:
Media General, Inc., a Virginia corporation (the "Company"), proposes to
issue and sell up to $600,000,000 aggregate principal amount of senior debt
securities (the "Debt Securities"), from time to time, in or pursuant to one or
more offerings on terms to be determined at the time of sale. The Debt
Securities will be issued in one or more series as senior indebtedness under an
indenture, dated as of August 1, 2001 (as modified, supplemented or amended from
time to time, the "Indenture"), among the Company, as issuer, the Initial
Guarantors (as defined below), as guarantors, and SunTrust Bank, as trustee (the
"Trustee"), and, subject to the terms of the Indenture, will be fully and
unconditionally guaranteed as to payment of principal, premium (if any) and
interest (the "Guarantees," and together with the Debt Securities, the
"Securities") by Media General Financial Services, Inc., a Virginia corporation,
Media General Communications, Inc., a Delaware corporation, MG Broadcasting of
Birmingham Holdings, LLC, an Alabama limited liability company, Media General
Operations, Inc., a Delaware corporation, The Tribune Company Holdings, Inc., a
Delaware corporation, Media General Broadcasting of South Carolina Holdings,
Inc., a Delaware corporation, MG Broadcasting of Birmingham II, LLC, an Alabama
limited liability company, Professional Communications Systems, Inc., a Florida
corporation, NES II, Inc., a Virginia corporation and Virginia Paper
Manufacturing Corp., a Georgia corporation (collectively, the "Initial
Guarantors" and, together with each subsidiary of the Company that pursuant to
the terms of the Indenture referred to below hereafter guarantees the Company's
obligations under such Indenture, the "Guarantors").
Each series of Debt Securities may vary, as applicable, as to title,
aggregate principal amount, rank, interest rate or formula and timing of
payments thereof, stated maturity date, redemption and/or repayment provisions,
sinking fund requirements and any other variable terms established by or
pursuant to the Indenture.
Whenever the Company determines to make an offering of Securities through
Banc of America Securities LLC ("Banc of America"), or through an underwriting
syndicate managed by Banc of America, the Company and, if applicable, the
Guarantors will enter into an agreement (each, a "Terms Agreement") providing
for the sale of such Securities to, and the purchase and offering thereof by,
Banc of America and such other underwriters, if any, selected by Banc of America
(the "Underwriters", which term shall include Banc of America, whether acting as
sole Underwriter or as a member of an underwriting syndicate, as well as any
Underwriter substituted pursuant to Section 10 hereof). The Terms Agreement
relating to the offering of Securities shall specify the aggregate principal
amount of Securities to be initially issued (the "Initial Underwritten
Securities"), the name of each Underwriter participating in such offering
(subject to substitution as provided in Section 10 hereof) and the name of any
Underwriter other than Banc of America acting as co-manager in connection with
such offering, the aggregate principal amount of Initial Underwritten Securities
which each such Underwriter severally agrees to purchase, whether such offering
is on a fixed or variable price basis and, if on a fixed price basis, the
initial offering price, the price at which the Initial Underwritten Securities
are to be purchased by the Underwriters, the form, time, date and place of
delivery and payment of the Initial Underwritten Securities and any other
material variable terms of the Initial Underwritten Securities. In addition, if
applicable, such Terms Agreement shall specify whether the Company has agreed to
grant to the Underwriters an option to purchase additional Securities to cover
over-allotments, if any, and the aggregate principal amount of Securities
subject to such option (the "Option Underwritten Securities"). As used herein,
the term "Underwritten Securities" shall include the Initial Underwritten
Securities and all or any portion of any Option Underwritten Securities. The
Terms Agreement, which shall be substantially in the form of Exhibit A hereto,
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may take the form of an exchange of any standard form of written
telecommunication between the Company and Banc of America, acting for itself
and, if applicable, as representative of any other Underwriters. Each offering
of Underwritten Securities through Banc of America as sole Underwriter or
through an underwriting syndicate managed by Banc of America will be governed by
this Underwriting Agreement, as supplemented by the applicable Terms Agreement.
The Company and the Initial Guarantors have filed with the Securities and
Exchange Commission (the "Commission") (i) a registration statement on Form S-3
(No. 333-65292) and (ii) a registration statement on Form S-3 (No. 333-67612),
which, in accordance with Rule 429, constitutes post-effective amendment No. 1
to registration statement No. 333-65292, for the registration of the Securities
under the Securities Act of 1933, as amended (the "1933 Act"), and the offering
thereof from time to time in accordance with Rule 415 of the rules and
regulations of the Commission under the 1933 Act (the "1933 Act Regulations").
Such registration statements have been declared effective by the Commission and
the Indenture has been duly qualified under the Trust Indenture Act of 1939, as
amended (the "1939 Act"), and the Company and the Initial Guarantors have or
will have filed such post-effective amendments thereto as may be required prior
to the execution of the applicable Terms Agreement and each such post-effective
amendment has been declared effective by the Commission. Such registration
statement (as so amended, if applicable), including the information, if any,
deemed to be a part thereof pursuant to Rule 430A(b) of the 1933 Act Regulations
(the "Rule 430A Information") or Rule 434(d) of the 1933 Act Regulations (the
"Rule 434 Information"), is referred to herein as the "Registration Statement";
and the final prospectus and the final prospectus supplement relating to the
offering of the Underwritten Securities, in the forms first furnished to the
Underwriters by the Company for use in connection with the offering of the
Underwritten Securities, are collectively referred to
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herein as the "Prospectus"; provided, however, that all references to the
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"Registration Statement" and the "Prospectus" shall also be deemed to include
all documents incorporated therein by reference pursuant to the Securities
Exchange Act of 1934, as amended (the "1934 Act"), prior to the execution of the
applicable Terms Agreement; provided, further, that if the Company and the
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Initial Guarantors file a registration statement with the Commission pursuant to
Rule 462(b) of the 1933 Act Regulations (the "Rule 462(b) Registration
Statement"), then, after such filing, all references to "Registration Statement"
shall also be deemed to include the Rule 462(b) Registration Statement; and
provided, further, that if the Company elects to rely upon Rule 434 of the 1933
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Act Regulations, then all references to "Prospectus" shall also be deemed to
include the final or preliminary prospectus and the applicable term sheet or
abbreviated term sheet (the "Term Sheet"), as the case may be, in the forms
first furnished to the Underwriters by the Company in reliance upon Rule 434 of
the 1933 Act Regulations, and all references to the date of the Prospectus shall
mean the date of the Term Sheet. A "preliminary prospectus" shall be deemed to
refer to (i) the preliminary prospectus, dated August 13, 2001, filed by the
Company with the Commission pursuant to Rule 424(b) of the 1933 Act Regulations
on August 15, 2001, (ii) any prospectus used before the Registration Statement
became effective and (iii) any prospectus that omitted, as applicable, the Rule
430A Information, the Rule 434 Information or other information to be included
upon pricing in a form of prospectus filed with the Commission pursuant to Rule
424(b) of the 1933 Act Regulations and was used after such effectiveness and
prior to the initial delivery of the Prospectus to the Underwriters by the
Company. For purposes of this Underwriting Agreement, all references to the
Registration Statement, Prospectus, Term Sheet or preliminary prospectus or to
any amendment or supplement to any of the foregoing shall be deemed to include
any copy filed with the Commission pursuant to its Electronic Data Gathering,
Analysis and Retrieval system ("XXXXX").
All references in this Underwriting Agreement to financial statements and
schedules and other information which is "contained," "included" or "stated" (or
other references of like import) in the Registration Statement, Prospectus or
preliminary prospectus 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, Prospectus or preliminary prospectus,
as the case may be, prior to the execution of the applicable Terms Agreement;
and all references in this Underwriting Agreement to amendments or supplements
to the Registration Statement, Prospectus or preliminary prospectus shall be
deemed to include the filing of any document under the 1934 Act which is
incorporated by reference in the Registration Statement, Prospectus or
preliminary prospectus, as the case may be, after the execution of the
applicable Terms Agreement. All references in this Underwriting Agreement to
certain factual matters which are qualified as being limited "to the Company's
knowledge" (or other references of like import) shall mean the information known
to the Chief Executive Officer, Chief Operating Officer, Chief Financial
Officer, General Counsel, President of Publishing Division, President of
Broadcast Division or President of Interactive Media Division of the Company.
SECTION 1. Representations and Warranties.
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(a) Representations and Warranties by the Company. Each Initial Guarantor,
as to itself, and the Company, as to itself and its Subsidiaries (as defined
below), represents and warrants to Banc of America, as of the date hereof, and
to each Underwriter named in the applicable Terms Agreement, as of the date
thereof, as of the Closing Time (as defined below)
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and, if applicable, as of each Date of Delivery (as defined below) (in each
case, a "Representation Date"), as follows:
(1) Compliance with Registration Requirements. The Company and each
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of the Initial Guarantors meet the requirements for use of Form S-3 under
the 1933 Act. The Registration Statement (including any Rule 462(b)
Registration Statement) has become effective under the 1933 Act and no stop
order suspending the effectiveness of the Registration Statement (or such
Rule 462(b) Registration Statement) has been issued under the 1933 Act and
no proceedings for that purpose have been instituted or are pending or, to
the knowledge of the Company and the Initial Guarantors, are contemplated
by the Commission, and any request on the part of the Commission for
additional information has been complied with. In addition, the Indenture
has been duly qualified under the 1939 Act.
At the respective times the Registration Statement (including any Rule
462(b) Registration Statement) and any post-effective amendments thereto
(including the filing of the Company's most recent Annual Report on Form
10-K with the Commission (the "Annual Report on Form 10-K")) became
effective and at each Representation Date, the Registration Statement
(including any Rule 462(b) Registration Statement) and any amendments
thereto complied and will comply in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations and the 1939 Act
and the rules and regulations of the Commission under the 1939 Act (the
"1939 Act Regulations") and 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. At the date of the Prospectus, at the Closing Time and at each
Date of Delivery, if any, neither the Prospectus nor any amendments and
supplements thereto included or will include an untrue statement of a
material fact or omitted or will 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. If the Company elects to rely
upon Rule 434 of the 1933 Act Regulations, the Company will comply with the
requirements of Rule 434. Notwithstanding the foregoing, the
representations and warranties in this subsection shall not apply to the
Statement of Eligibility of the Trustee on Form T-1 or statements in or
omissions from the Registration Statement or the Prospectus made in
reliance upon and in conformity with information furnished to the Company
or an Initial Guarantor in writing by any Underwriter through Banc of
America expressly for use in the Registration Statement or the Prospectus;
and the foregoing representations and warranties are given on the basis
that any statement contained in an Incorporated Document shall be deemed
not to be contained in the Registration Statement or Prospectus if the
statement has been modified or superseded by any statement in a
subsequently filed Incorporated Document or in the Registration Statement
or Prospectus or in any amendment or supplement thereto.
Each preliminary prospectus and prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the 1933 Act, complied when so
filed in all material respects with the 1933 Act Regulations and each
preliminary prospectus and the Prospectus delivered to the Underwriters for
use in connection with the offering of Underwritten Securities will,
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at the time of such delivery, be identical to any electronically
transmitted copies thereof filed with the Commission pursuant to XXXXX,
except to the extent permitted by Regulation S-T.
(2) Incorporated Documents. The documents incorporated or deemed to
----------------------
be incorporated by reference in the Registration Statement and the
Prospectus, 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 1934 Act and the rules and regulations of the
Commission thereunder (the "1934 Act Regulations") and, when read together
with the other information in the Prospectus, at the date of the
Prospectus, at the Closing Time and at each Date of Delivery, if any, did
not and will not include an 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.
(3) Independent Accountants. Ernst & Young LLP have examined certain
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of the Company's financial statements and supporting schedules thereto
included in the Registration Statement and the Prospectus are independent
public accountants as required by the 1933 Act and the 1933 Act
Regulations.
(4) Financial Statements. The financial statements of the Company
--------------------
included in the Registration Statement and the Prospectus, together with
the related schedules and notes, as well as those financial statements,
schedules and notes of any other entity included therein, present fairly
the financial position of the Company and its consolidated subsidiaries, or
such other entity, as the case may be, at the dates indicated and the
statement of operations, stockholders' equity and cash flows of the Company
and its consolidated subsidiaries, or such other entity, as the case may
be, for the periods specified. Such financial statements have been
prepared in conformity with generally accepted accounting principles
("GAAP") applied on a consistent basis throughout the periods involved.
The supporting schedules, if any, included in the Registration Statement
and the Prospectus present fairly in accordance with GAAP the information
required to be stated therein. The selected financial data and the summary
financial information, if any, included in the Prospectus present fairly
the information shown therein and have been compiled on a basis consistent
with that of the audited financial statements included in the Registration
Statement and the Prospectus. In addition, any pro forma financial
statements of the Company and its subsidiaries and the related notes
thereto included in the Registration Statement and the 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.
(5) No Material Adverse Change in Business. Since the respective
--------------------------------------
dates as of which information is given in the Registration Statement and
the 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
5
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 arising in the ordinary course of business,
which are material with respect to the Company and its subsidiaries
considered as one enterprise and (C) except for regular dividends on the
Company's common stock or preferred stock, in amounts per share that are
consistent with past practice, including dividend increases, or the
applicable charter document or supplement thereto, respectively, there has
been no dividend or distribution of any kind declared, paid or made by the
Company on any class of its capital stock.
(6) Good Standing of the Company. The Company has been duly organized
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and is validly existing as a corporation in good standing under the laws of
the Commonwealth of Virginia and has corporate power and authority to own,
lease and operate its properties and to conduct its business as described
in the Prospectus and to enter into and perform its obligations under, or
as contemplated under, this Underwriting Agreement and the applicable Terms
Agreement. 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 to
so qualify or be in good standing could not reasonably be expected to
result in a Material Adverse Effect.
(7) Good Standing of Subsidiaries. Each of the subsidiaries listed on
-----------------------------
Schedule A hereto (each, a "Subsidiary" and, collectively, the
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"Subsidiaries") has been duly organized, is validly existing and is in good
standing under the laws of the jurisdiction of its incorporation or
organization, has corporate or limited liability company power, as
applicable, and authority to own, lease and operate its properties and to
conduct its business as described in the Prospectus and is duly qualified
as a foreign corporation or limited liability company, as applicable, 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 to
so qualify or be in good standing could not reasonably be expected to
result in a Material Adverse Effect. Except as otherwise stated in the
Registration Statement and the Prospectus, all of the issued and
outstanding capital stock or other equity interests of each Subsidiary has
been duly authorized and is validly issued, fully paid and non-assessable
and is owned by the Company, directly or through subsidiaries, free and
clear of any security interest, mortgage, pledge, lien, encumbrance, claim
or equity. None of the outstanding shares of capital stock or other equity
interests of any Subsidiary was issued in violation of preemptive or other
similar rights of any securityholder of such Subsidiary. The only
subsidiaries of the Company are (a) the Subsidiaries and (b) certain other
subsidiaries which, individually or in the aggregate, are "minor" within
the meaning of Rule 3-10 of Regulation S-X promulgated under the 1933 Act.
Each Subsidiary of the Company is an Initial Guarantor.
(8) Capitalization. If the Prospectus contains a "Capitalization"
--------------
section, the authorized, issued and outstanding shares of capital stock of
the Company is as set forth in the column entitled "Actual" under such
section (except for subsequent issuances thereof, if any, contemplated
under this Underwriting Agreement, pursuant to reservations, agreements or
employee benefit plans referred to in the Prospectus or
6
pursuant to the exercise of convertible securities or options referred to
in the Prospectus). Such shares of capital stock have been duly authorized
and validly issued by the Company and are fully paid and non-assessable,
and none of such shares of capital stock was issued in violation of
preemptive or other similar rights of any securityholder of the Company.
(9) Authorization of this Underwriting Agreement and Terms Agreement.
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This Underwriting Agreement has been, and the applicable Terms Agreement as
of the date thereof will have been, duly authorized, executed and delivered
by the Company.
(10) Authorization of the Debt Securities. The Debt Securities have
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been, or as of the date of such Terms Agreement will have been, duly
authorized by the Company for issuance and sale pursuant to this
Underwriting Agreement and such Terms Agreement. Such Debt Securities,
when issued and authenticated in the manner provided for in the Indenture
and delivered against payment of the consideration therefor specified in
such Terms 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 other similar laws affecting the enforcement
of creditors' rights generally or by general equitable principles
(regardless of whether enforcement is considered in a proceeding in equity
or at law), and except further as enforcement thereof may be limited by
requirements that a claim with respect to any Debt Securities payable in a
foreign or composite currency (or a foreign or composite currency judgment
in respect of such claim) be converted into U.S. dollars at a rate of
exchange prevailing on a date determined pursuant to applicable law or by
governmental authority to limit, delay or prohibit the making of payments
outside the United States. Such Debt Securities will be in the form
contemplated by, and each registered holder thereof is entitled to the
benefits of, the Indenture.
(11) Authorization of Guarantees. The Guarantees have been, or as of
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the date of such Terms Agreement will have been, duly authorized by the
Guarantors; the Guarantees, when the Debt Securities are issued and
delivered in the manner provided for in the Indenture, will constitute
valid and binding obligations of the Guarantors, enforceable against the
Guarantors 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 other similar laws affecting the enforcement of creditors'
rights generally or by general equitable principles (regardless of whether
enforcement is considered in a proceeding in equity or at law), and except
further as enforcement thereof may be limited by requirements that a claim
with respect to any Guarantee payable in a foreign or composite currency
(or a foreign or composite currency judgment in respect of such claim) be
converted into U.S. dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law or by governmental authority to
limit, delay or prohibit the making of payments outside the United States.
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(12) Authorization of the Indenture. The Indenture has been, or prior
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to the issuance of the Underwritten Securities thereunder will have been,
duly authorized, executed and delivered by the Company and each Initial
Guarantor and, upon such authorization, execution and delivery, will
constitute a valid and binding agreement of the Company and each such
Initial Guarantor, enforceable against the Company and each such Initial
Guarantor 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
other similar laws affecting the enforcement of creditors' rights generally
or by general equitable principles (regardless of whether enforcement is
considered in a proceeding in equity or at law).
(13) Description of the Underwritten Securities. The Underwritten
------------------------------------------
Securities being sold pursuant to the applicable Terms Agreement, as of the
Representation Date, when issued and delivered in accordance with the terms
of the related Underwritten Securities, will conform in all material
respects to the statements relating thereto contained in the Prospectus and
will be in substantially the form filed or incorporated by reference, as
the case may be, as an exhibit to the Registration Statement.
(14) Description of the Indenture. The Indenture, as of the
----------------------------
Representative Date, will conform in all material respects to the
statements relating thereto contained in the Prospectus and will be in
substantially the form filed or incorporated by reference, as the case may
be, as an exhibit to the Registration Statement.
(15) Absence of Defaults and Conflicts. Neither the Company nor any
---------------------------------
of its Subsidiaries is in violation of its charter or by-laws 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 assets, properties or
operations of the Company or any of its Subsidiaries is subject
(collectively, "Agreements and Instruments"), except for such defaults that
could not reasonably be expected to result in a Material Adverse Effect.
The execution, delivery and performance of this Underwriting Agreement, the
applicable Terms Agreement and the Indenture and any other agreement or
instrument entered into or issued or to be entered into or issued by the
Company and each Initial Guarantor in connection with the transactions
contemplated hereby or thereby or in the Registration Statement and the
Prospectus and the consummation of the transactions contemplated herein and
in the Registration Statement and the Prospectus (including the issuance
and sale of the Underwritten Securities and the use of the proceeds from
the sale of the Underwritten Securities as described under the caption "Use
of Proceeds" in the Prospectus relating to such Underwritten Securities)
and compliance by the Company and each Initial Guarantor with its
obligations hereunder and thereunder have been duly authorized by all
necessary corporate action and do 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 assets, properties or operations of the Company or any
of its Subsidiaries pursuant to, any Agreements and Instruments, nor will
such action result in any violation of the provisions
8
of the charter or by-laws 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.
(16) 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, and the Company is not aware of any existing or
imminent labor disturbance by the employees of any of its or any of its
subsidiaries' principal suppliers, manufacturers, customers or contractors,
which, in either case, may reasonably be expected to result in a Material
Adverse Effect.
(17) 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 and the Prospectus (other than as stated therein), or which might
reasonably be expected to result in a Material Adverse Effect, or which
might reasonably be expected to materially and adversely affect the
consummation of the transactions contemplated under the Prospectus, this
Underwriting Agreement, the applicable Terms Agreement or the Indenture or
the performance by the Company and the Initial Guarantors of their
respective obligations hereunder and 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 assets,
properties or operations is the subject which are not described in the
Registration Statement and the Prospectus, including ordinary routine
litigation incidental to the business, could not reasonably be expected to
result in a Material Adverse Effect.
(18) Accuracy of Exhibits. There are no franchises, contracts or
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other documents which are required to be described in the Registration
Statement, the 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.
(19) 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,
domestic or foreign, is necessary or required for the due authorization,
execution and delivery by the Company and the Initial Guarantors of this
Underwriting Agreement or the applicable Terms Agreement or for the
performance by the Company and the Initial Guarantors of the transactions
contemplated under the Prospectus, this Underwriting Agreement, such Terms
Agreement or Indenture, except such as have been already made, obtained or
rendered, as applicable or as may be required under state securities or
blue sky laws.
9
(20) Possession of Intellectual Property. 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 unpatented 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, except where the failure to own, possess or acquire,
singly or in the aggregate, could not reasonably be expected to result in a
Material Adverse Effect. 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, could not reasonably
be expected to result in a Material Adverse Effect.
(21) 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, except where the
non-possession of such Governmental Licenses could not reasonably be
expected to result in 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 could not,
singly or in the aggregate, reasonably be expected to result in a Material
Adverse Effect. All of the Governmental Licenses are valid and in full
force and effect, except where the invalidity of such Governmental Licenses
or the failure of such Governmental Licenses to be in full force and effect
could not reasonably be expected to result in a Material Adverse Effect.
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.
(22) Possession of Federal Communications Commission Licenses. The
--------------------------------------------------------
Company and its Subsidiaries hold all Federal Communications Commission
("FCC") licenses, permits and other authorizations ("FCC Licenses")
necessary for the conduct of the business of the Company and its
Subsidiaries, except where the non-possession of such FCC Licenses could
not reasonably be expected to result in a Material Adverse Effect. The FCC
Licenses are in full force and effect in accordance with their terms and
unimpaired by any act or omission of the Company, its Subsidiaries, or its
officers, directors, employees or agents, except where the failure of FCC
Licenses to be in full force and effect could not reasonably be expected to
result in a Material Adverse Effect. There is not now pending, or to the
knowledge of the Company or its Subsidiaries threatened, any action by or
before the FCC to revoke, cancel, rescind, adversely modify or refuse to
renew in the ordinary course any of the FCC Licenses, or any investigation,
order to show cause, notice of violation, notice of apparent liability, or
a forfeiture or material complaint by or before the FCC against the Company
or its Subsidiaries, which
10
could reasonably be expected to have a Material Adverse Effect. All
reports, forms, statements and applications required to be filed by the
Company and its Subsidiaries with the FCC have been timely filed and are
complete and accurate in all material respects, except where the failure to
so file could not reasonably be expected to result in a Material Adverse
Effect. The operations of the Company and its Subsidiaries are operating in
accordance with the FCC Licenses, and in compliance with the Communications
Act of 1934, as amended, and the rules, regulations and published policies
of the FCC (collectively, the "Communications Laws"), except where the
failure so to operate or so to comply could not reasonably be expected to
result in a Material Adverse Effect. The operations of the Company and its
Subsidiaries, including, but not limited to, its use and operation of its
existing tower sites, conforms in all material respects to the standards
adopted by the FCC in Guidelines Evaluating the Environmental Effects of
Radio Frequency Radiation, Report and Order, IT Docket 93-62 (August 1,
1996) (FCC 96-326), as modified on reconsideration, Second Memorandum
Opinion and Order, FCC 97-303 (released August 23, 1997).
(23) 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 material 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 (A) as otherwise stated in the Registration Statement and the
Prospectus or (B) those which do not, singly or in the aggregate,
materially affect the value of the property of the Company and its
subsidiaries in the aggregate and do not interfere with the use made and
proposed to be made of the property of the Company and its Subsidiaries in
the aggregate by the Company or any of its Subsidiaries. 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 Prospectus, are in full
force and effect, and neither the Company nor any of its Subsidiaries has
received any notice of any material claim of any sort that has been
asserted by anyone adverse to the rights of the Company or any of its
Subsidiaries under any of the leases or subleases mentioned above, or
affecting or questioning the rights of the Company or such Subsidiary of
the continued possession of the leased or subleased premises under any such
lease or sublease, except where the failure of such leases or subleases to
be in full force and effect and any such claim, if the subject of an
unfavorable decision, ruling or finding, could not, singly or in the
aggregate, reasonably be expected to result in a Material Adverse Effect.
(24) Investment Company Act. Neither the Company nor any of the
----------------------
Initial Guarantors are, and upon the issuance and sale of the Underwritten
Securities as herein contemplated and the application of the net proceeds
therefrom as described in the Prospectus will be, an "investment company"
within the meaning of the Investment Company Act of 1940, as amended (the
"1940 Act").
(25) Environmental Laws. Except as otherwise stated in the
------------------
Registration Statement and the Prospectus and except as could not, singly
or in the aggregate, reasonably be expected to 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,
11
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) neither the Company nor any of its Subsidiaries fails to
possess any permit, authorization or approval required under any applicable
Environmental Laws or to be 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) to the Company's knowledge,
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.
(b) Officers' Certificates. Any certificate signed by any officer of the
Company, any Initial Guarantor or any of their respective subsidiaries and
delivered to any Underwriter or to counsel for the Underwriters in connection
with the offering of the Underwritten Securities shall be deemed a
representation and warranty by the Company or such Initial Guarantor to each
Underwriter as to the matters covered thereby on the date of such certificate.
SECTION 2. Sale and Delivery to Underwriters; Closing.
------------------------------------------
(a) Underwritten Securities. The several commitments of the Underwriters to
purchase the Underwritten Securities pursuant to the applicable Terms Agreement
shall be deemed to have been made on the basis of the representations,
warranties and agreements herein contained and shall be subject to the terms and
conditions herein set forth.
(b) Option Underwritten Securities. Subject to the terms and conditions
herein set forth, the Company may grant, if so provided in the applicable Terms
Agreement, an option to the Underwriters, severally and not jointly, to purchase
up to the aggregate principal amount of the Option Underwritten Securities set
forth therein at a price equal to the percentage of the aggregate principal
amount of the Initial Underwritten Securities representing the purchase price,
plus accrued interest or amortized original issue discount, as the case may be,
from the original issue date of the Initial Underwritten Securities. Such
option, if granted, will expire 30 days after the date of such Terms Agreement,
and may be exercised in whole or in part from time to time only for the purpose
of covering over-allotments which may be made in connection with the offering
and distribution of the Initial Underwritten Securities upon notice by Banc of
America to the Company setting forth the number or aggregate principal amount,
as the case may be, of Option Underwritten Securities as to which the several
Underwriters are then exercising the option and the time, date and place of
payment and delivery for such Option Underwritten
12
Securities. Any such time and date of payment and delivery (each, a "Date of
Delivery") shall be determined by Banc of America, but shall not be later than
seven full business days after the exercise of said option, nor in any event
prior to the Closing Time, unless otherwise agreed upon by Banc of America and
the Company. If the option is exercised as to all or any portion of the Option
Underwritten Securities, each of the Underwriters, severally and not jointly,
will purchase that proportion of the total aggregate principal amount of Option
Underwritten Securities then being purchased which the number or aggregate
principal amount, as the case may be, of Initial Underwritten Securities each
such Underwriter has severally agreed to purchase as set forth in such Terms
Agreement bears to the total aggregate principal amount of Initial Underwritten
Securities, subject to such adjustments as Banc of America in its discretion
shall make to eliminate any sales or purchases of a fractional aggregate
principal amount of Option Underwritten Securities.
(c) Payment. Payment of the purchase price for, and delivery of, the
Initial Underwritten Securities shall be made at the offices of McGuireWoods
LLP, One Xxxxx Center, 000 Xxxx Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx 00000, or at
such other place as shall be agreed upon by Banc of America and the Company, at
9:00 A.M. (Eastern time) on the third business day after the date of the
applicable Terms Agreement (unless postponed in accordance with the provisions
of Section 10 hereof), or such other time not later than ten business days after
such date as shall be agreed upon by Banc of America and the Company (such time
and date of payment and delivery being herein called the "Closing Time"). In
addition, in the event that the Underwriters have exercised their option, if
any, to purchase any or all of the Option Underwritten Securities, payment of
the purchase price for, and delivery of such Option Underwritten Securities,
shall be made at the above-mentioned offices of McGuireWoods LLP, or at such
other place as shall be agreed upon by Banc of America and the Company, on the
relevant Date of Delivery as specified in the notice from Banc of America to the
Company.
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery to
Banc of America for the respective accounts of the Underwriters of the
Underwritten Securities to be purchased by them. It is understood that each
Underwriter has authorized Banc of America, for its account, to accept delivery
of, receipt for, and make payment of the purchase price for, the Underwritten
Securities which it has severally agreed to purchase. Banc of America,
individually and not as representative of the Underwriters, may (but shall not
be obligated to) make payment of the purchase price for the Underwritten
Securities to be purchased by any Underwriter whose funds have not been received
by the Closing Time or the relevant Date of Delivery, as the case may be, but
such payment shall not relieve such Underwriter from its obligations hereunder.
(d) Denominations; Registration. The Underwritten Securities or
certificates for the Underwritten Securities, as applicable, shall be in such
denominations and registered in such names as Banc of America may request in
writing at least two full business days prior to the Closing Time or the
relevant Date of Delivery, as the case may be. The Underwritten Securities or
certificates for the Underwritten Securities, as applicable, will be made
available for examination and packaging by Banc of America in The City of New
York, or at such other place as shall be agreed upon by Banc of America and the
Company, not later than 10:00 A.M. (Eastern time) on the business day prior to
the Closing Time or the relevant Date of Delivery, as the case may be.
13
SECTION 3. Covenants of the Company and the Initial Guarantors. The
---------------------------------------------------
Company and each of the Initial Guarantors covenant with Banc of America and
with each Underwriter participating in the offering of Underwritten Securities,
as follows:
(a) Compliance with Securities Regulations and Commission Requests. The
Company, subject to Section 3(b), will comply with the requirements of Rule 430A
of the 1933 Act Regulations and/or Rule 434 of the 1933 Act Regulations, if and
as applicable, and will notify the Representative(s) promptly, and confirm the
notice in writing, of (i) the effectiveness of any post-effective amendment to
the Registration Statement or the filing of any supplement or amendment to the
Prospectus, (ii) the receipt of any comments from the Commission, (iii) any
request by the Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or for additional information, and
(iv) the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing or
suspending the use of any preliminary prospectus, or of the suspension of the
qualification of the Underwritten Securities for offering or sale in any
jurisdiction, or of the initiation or threatening of any proceedings for any of
such purposes. The Company will promptly effect the filings necessary pursuant
to Rule 424 and will take such steps as it deems necessary to ascertain promptly
whether any Prospectus transmitted for filing under Rule 424 was received for
filing by the Commission and, in the event that it was not, it will promptly
file the Prospectus. The Company will use commercially reasonable efforts to
prevent the issuance of any stop order and, if any stop order is issued, to
obtain the lifting thereof as soon as practicable.
(b) Filing of Amendments. The Company will give Banc of America notice of
its intention to file or prepare any amendment to the Registration Statement
(including any filing under Rule 462(b) of the 1933 Act Regulations), any Term
Sheet or any amendment, supplement or revision to either the prospectus included
in the Registration Statement at the time it became effective or to the
Prospectus, whether pursuant to the 1933 Act, the 1934 Act or otherwise, will
furnish Banc of America with copies of any such documents a reasonable amount of
time prior to such proposed filing or use, as the case may be, and will not file
or use any such document to which Banc of America or counsel for the
Underwriters shall reasonably object.
(c) Delivery of Registration Statements. The Company has furnished or will
deliver to Banc of America and counsel for the Underwriters, without charge,
signed or conformed copies of the Registration Statement as originally filed and
of each amendment thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated or deemed to be incorporated by
reference therein) and signed or conformed copies of all consents and
certificates of experts, and will also deliver to Banc of America, without
charge, a conformed copy of the Registration Statement as originally filed and
of each amendment thereto (without exhibits) for each of the Underwriters.
Copies of the Registration Statement and each amendment thereto furnished to the
Underwriters will be identical to the electronically transmitted copies thereof
filed with the Commission pursuant to XXXXX, except to the extent permitted by
Regulation S-T.
(d) Delivery of Prospectuses. The Company will deliver to each Underwriter,
without charge, as many copies of each preliminary prospectus as such
Underwriter may reasonably request, and the Company hereby consents to the use
of such copies for purposes
14
permitted by the 1933 Act. The Company will furnish to each Underwriter, without
charge, during the period when the Prospectus is required to be delivered under
the 1933 Act or the 1934 Act, such number of copies of the Prospectus as such
Underwriter may reasonably request. The Prospectus and any amendments or
supplements thereto furnished to the Underwriters will be identical to the
electronically transmitted copies thereof filed with the Commission pursuant to
XXXXX, except to the extent permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. Each of the Company and
Initial Guarantors will comply with the 1933 Act and the 1933 Act Regulations
and the 1934 Act and the 1934 Act Regulations so as to permit the completion of
the distribution of the Underwritten Securities as contemplated in this
Underwriting Agreement and the applicable Terms Agreement and in the
Registration Statement and the Prospectus. If at any time when the Prospectus
is required by the 1933 Act or the 1934 Act to be delivered in connection with
sales of the Securities, any event shall occur or condition shall exist as a
result of which it is necessary, in the reasonable opinion of counsel for the
Underwriters or for the Company and the Initial Guarantors, to amend the
Registration Statement in order that the Registration Statement 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
or to amend or supplement the Prospectus in order that the Prospectus will not
include an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein not misleading in the light of
the circumstances existing at the time it is delivered to a purchaser, or if it
shall be necessary, in the opinion of such counsel, at any such time to amend
the Registration Statement or amend or supplement the Prospectus in order to
comply with the requirements of the 1933 Act or the 1933 Act Regulations, the
Company and the Initial Guarantors will promptly prepare and file with the
Commission, subject to Section 3(b), such amendment or supplement as may be
necessary to correct such statement or omission or to make the Registration
Statement or the Prospectus comply with such requirements, and the Company and
the Initial Guarantors will furnish to the Underwriters, without charge, such
number of copies of such amendment or supplement as the Underwriters may
reasonably request.
(f) Blue Sky Qualifications. The Company and the Initial Guarantors will
use commercially reasonable efforts, in cooperation with the Underwriters, to
qualify the Underwritten Securities for offering and sale under the applicable
securities laws of such states and other jurisdictions (domestic or foreign) as
Banc of America may designate and to maintain such qualifications in effect as
long as may be necessary to complete the distribution of the Underwritten
Securities, up to one year from the date of the applicable Terms Agreement;
provided, however, that neither the Company nor the Initial Guarantors shall be
obligated to file any general consent to service of process or to qualify as a
foreign corporation or as a dealer in securities in any jurisdiction in which it
is not so qualified or to subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so subject. In each
jurisdiction in which the Underwritten Securities have been so qualified, the
Company and the Initial Guarantors will file such statements and reports as may
be required by the laws of such jurisdiction to continue such qualification in
effect for a period of not less than one year from the date of such Terms
Agreement.
(g) Earnings Statement. The Company will timely file such reports pursuant
to the 1934 Act as are necessary in order to make generally available to its
securityholders as soon as
15
practicable an earnings statement for the purposes of, and to provide the
benefits contemplated by, the last paragraph of Section 11(a) of the 1933 Act.
(h) Use of Proceeds. The Company will use the net proceeds received by it
from the sale of the Underwritten Securities in the manner specified in the
Prospectus under "Use of Proceeds."
(i) Listing. The Company will use commercially reasonable efforts to effect
the listing of the Underwritten Securities, prior to the Closing Time, on any
national securities exchange or quotation system if and as specified in the
applicable Terms Agreement.
(j) Restriction on Sale of Securities. Between the date of the applicable
Terms Agreement and the Closing Time or such other date specified in such Terms
Agreement, the Company will not, without the prior written consent of Banc of
America, directly or indirectly, issue, sell, offer or contract to sell, grant
any option for the sale of, or otherwise dispose of, the securities specified in
such Terms Agreement.
(k) Reporting Requirements. The Company and the Initial Guarantors, during
the period when the Prospectus is required to be delivered under the 1933 Act or
the 1934 Act, will file all documents required to be filed with the Commission
pursuant to the 1934 Act within the time periods required by the 1934 Act and
the 1934 Act Regulations.
SECTION 4. Payment of Expenses.
-------------------
(a) Expenses. The Company and the Initial Guarantors will pay all expenses
incident to the performance of their obligations under this Underwriting
Agreement or the applicable Terms Agreement, including (i) the preparation,
printing and filing of the Registration Statement (including financial
statements and exhibits) as originally filed and of each amendment thereto, (ii)
the preparation, printing and delivery to the Underwriters of this Underwriting
Agreement, any Terms Agreement, any Agreement among Underwriters, the Indenture
and such other documents as may be required in connection with the offering,
purchase, sale, issuance or delivery of the Underwritten Securities, (iii) the
preparation, issuance and delivery of the Underwritten Securities, any
certificates for the Underwritten Securities, as applicable, to the
Underwriters, including any transfer taxes and any stamp or other duties payable
upon the sale, issuance or delivery of the Underwritten Securities to the
Underwriters, (iv) the fees and disbursements of the Company's counsel,
accountants and other advisors or agents (including transfer agents and
registrars), as well as the fees and disbursements of the Trustee and its
counsel, (v) the qualification of the Underwritten Securities under state
securities laws in accordance with the provisions of Section 3(f) hereof,
including filing fees and the reasonable fees and disbursements of counsel for
the Underwriters in connection therewith and in connection with the preparation,
printing and delivery of the Blue Sky and Legal Investment Survey, and any
amendment thereto, (vi) the printing and delivery to the Underwriters of copies
of each preliminary prospectus, any Term Sheet, and the Prospectus and any
amendments or supplements thereto, (vii) the fees charged by nationally
recognized statistical rating organizations for the rating of the Underwritten
Securities, (viii) the fees and expenses incurred with respect to the listing of
the Underwritten Securities, if applicable, (ix) the filing fees incident to,
and the reasonable fees and disbursements of counsel to the Underwriters in
16
connection with, the review, if any, by the National Association of Securities
Dealers, Inc. (the "NASD") of the terms of the sale of the Underwritten
Securities, and (x) the fees and expenses of any Underwriter acting in the
capacity of a "qualified independent underwriter" (as defined in Rule 2720 of
the Conduct Rules of the NASD), if applicable. It is understood, however, that
except as provided in this Section 4, and in Sections 5(o), 6 or 7 hereof, the
Underwriters will be responsible for all of their own costs and expenses,
including the fees of their counsel, any transfer taxes on the Underwritten
Securities upon resale by them and all other expenses incurred by them in
connection with any offering of the Underwritten Securities made by the
Underwriters.
(b) Termination of Agreement. If the applicable Terms Agreement is
terminated by Banc of America in accordance with the provisions of Section 5 or
Section 9(b)(i) hereof, the Company shall reimburse the Underwriters for all of
their out-of-pocket expenses reasonably incurred by the Underwriters in
connection with preparations for the purchase, sale and delivery of the
Underwritten Securities pursuant to the applicable Terms Agreement, including
the reasonable fees and disbursements of counsel for the Underwriters.
SECTION 5. Conditions of Underwriters' Obligations. The obligations of
---------------------------------------
the Underwriters to purchase and pay for the Underwritten Securities pursuant to
the applicable Terms Agreement are subject to the accuracy of the
representations and warranties of the Company and the Initial Guarantors
contained in Section 1 hereof and in certificates of any officer of the Company,
any of the Initial Guarantors or any of their respective subsidiaries delivered
pursuant to the provisions hereof, to the performance by the Company and the
Initial Guarantors of its covenants and other obligations hereunder, and to the
following further conditions:
(a) Effectiveness of Registration Statement. The Registration Statement,
including any Rule 462(b) Registration Statement, has become effective under the
1933 Act and no stop order suspending the effectiveness of the Registration
Statement shall have been issued under the 1933 Act and no proceedings for that
purpose shall have been instituted or be pending or threatened by the
Commission, and any request on the part of the Commission for additional
information shall have been complied with to the reasonable satisfaction of
counsel to the Underwriters. A prospectus containing information relating to
the description of the Underwritten Securities, the specific method of
distribution and similar matters shall have been filed with the Commission in
accordance with Rule 424(b)(1), (2), (3), (4) or (5), as applicable (or any
required post-effective amendment providing such information shall have been
filed and declared effective in accordance with the requirements of Rule 430A),
or, if the Company has elected to rely upon Rule 434 of the 1933 Act
Regulations, a Term Sheet including the Rule 434 Information shall have been
filed with the Commission in accordance with Rule 424(b)(7).
(b) Opinion of General Counsel of the Company. At the Closing Time, the
Underwriters shall have received the favorable opinion, dated as of the Closing
Time, of, Xxxxxx Xxxxxxx, General Counsel of the Company, in form and substance
satisfactory to the Underwriters, together with signed or reproduced copies of
such letter for each of the other Underwriters, substantially to the effect set
forth in Exhibit B hereto and to such further effect as counsel to the
---------
Underwriters may reasonably request.
17
(c) Opinion of Counsel for Company. At the Closing Time, the Underwriters
shall have received the favorable opinion, dated as of the Closing Time, of
McGuireWoods LLP, counsel for the Company, in form and substance satisfactory to
the Underwriters, together with signed or reproduced copies of such letter for
each of the other Underwriters, substantially to the effect set forth in Exhibit
-------
C hereto and to such further effect as counsel to the Underwriters may
-
reasonably request.
(d) Opinion of Special Counsel for Company. At the Closing Time, the
Underwriters shall have received the favorable opinion, dated as of the Closing
Time, of Dow, Xxxxxx & Xxxxxxxxx, PLLC, special counsel for the Company, in form
and substance satisfactory to the Underwriters, together with signed or
reproduced copies of such letter for each of the other Underwriters,
substantially to the effect set forth in Exhibit D hereto and to such further
---------
effect as counsel to the Underwriters may reasonably request.
(e) Opinion of Counsel for Underwriters. At the Closing Time, the
Underwriters shall have received an opinion, dated as of the Closing Time, of
Sidley Xxxxxx Xxxxx & Xxxx LLP, counsel for the Underwriters, together with
signed or reproduced copies of such letter for each of the other Underwriters,
in form and substance reasonably satisfactory to the Underwriters.
(f) Officers' Certificate. At the Closing Time, there shall not have been,
since the date of the applicable Terms Agreement or since the respective dates
as of which information is given in the Prospectus, 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 in the ordinary course of business, and the
Underwriters shall have received a certificate of the Chief Executive Officer,
President, Chief Financial Officer or a Vice President of the Company and of
each Initial Guarantor and of the chief financial officer or chief accounting
officer of the Company and of each Initial Guarantor, dated as of the Closing
Time, to the effect that (i) there has been no such material adverse change,
(ii) the representations and warranties in Section 1(a) are true and correct
with the same force and effect as though expressly made at and as of the Closing
Time, (iii) the Company or such Initial Guarantor, as the case may be, has
complied with all agreements and satisfied all conditions on its part to be
performed or satisfied at or prior to the Closing Time, and (iv) no stop order
suspending the effectiveness of the Registration Statement has been issued and
no proceedings for that purpose have been instituted, are pending or, to the
best of such officer's knowledge, are threatened by the Commission.
(g) Accountant's Comfort Letter. At the time of the execution of the
applicable Terms Agreement, the Underwriters shall have received from Ernst &
Young LLP a letter dated such date, in form and substance satisfactory to the
Underwriters, together with signed or reproduced copies of such letter for each
of the other Underwriters, containing statements and information of the type
ordinarily included in accountants' "comfort letters" to underwriters with
respect to the financial statements and certain financial information contained
in the Registration Statement and the Prospectus.
(h) Bring-down Comfort Letter. At the Closing Time, the Underwriters shall
have received from Ernst & Young LLP a letter, dated as of the Closing Time, to
the effect that they
18
reaffirm the statements made in the letter furnished pursuant to subsection (g)
of this Section 5, except that the specified date referred to shall be a date
not more than three business days prior to the Closing Time.
(i) Ratings. At the Closing Time and at any relevant Date of Delivery, the
Underwritten Securities shall have the ratings accorded by any "nationally
recognized statistical rating organization", as defined by the Commission for
purposes of Rule 436(g)(2) of the 1933 Act Regulations, if and as specified in
the applicable Terms Agreement, and the Company shall have delivered to the
Underwriters a letter, dated as of such date, from each such rating
organization, or other evidence satisfactory to the Underwriters, confirming
that the Underwritten Securities have such ratings. Since the time of execution
of such Terms Agreement, there shall not have occurred a downgrading in, or
withdrawal of, the rating assigned to the Underwritten Securities or any of the
Company's other securities by any such rating organization, and no such rating
organization shall have publicly announced that it has under surveillance or
review its rating of the Underwritten Securities or any of the Company's other
securities.
(j) Approval of Listing. At the Closing Time, the Underwritten Securities
shall have been approved for listing, subject only to official notice of
issuance, if and as specified in the applicable Terms Agreement.
(k) No Objection. If the Registration Statement or an offering of
Underwritten Securities has been filed with the NASD for review, the NASD shall
not have raised any objection with respect to the fairness and reasonableness of
the underwriting terms and arrangements.
(l) Lock-up Agreements. On the date of the applicable Terms Agreement, the
Underwriters shall have received, in form and substance satisfactory to it, each
lock-up agreement, if any, specified in such Terms Agreement as being required
to be delivered by the persons listed therein.
(m) Over-Allotment Option. In the event that the Underwriters are granted
an over-allotment option by the Company in the applicable Terms Agreement and
the Underwriters exercise their option to purchase all or any portion of the
Option Underwritten Securities, the representations and warranties of the
Company contained herein and the statements in any certificates furnished by the
Company or any of its subsidiaries hereunder shall be true and correct as of
each Date of Delivery, and, at the relevant Date of Delivery, the Underwriters
shall have received:
(1) A certificate, dated such Date of Delivery, of the Chief Executive
Officer, President, Chief Financial Officer or a Vice President of the
Company and the chief financial officer or chief accounting officer of the
Company, confirming that the certificate delivered at the Closing Time
pursuant to Section 5(f) hereof remains true and correct as of such Date of
Delivery.
(2) The favorable opinions of Xxxxxx Xxxxxxx, General Counsel of the
Company, McGuireWoods LLP, counsel for the Company, and Dow, Xxxxxx &
19
Xxxxxxxxx, PLLC, special counsel for the Company, each in form and
substance satisfactory to the Underwriters, dated such Date of Delivery,
relating to the Option Underwritten Securities and otherwise to the same
effect as the opinions required by Sections 5(b), 5(c) and 5(d) hereof.
(3) The favorable opinion of Sidley Xxxxxx Xxxxx & Xxxx LLP, counsel
for the Underwriters, dated such Date of Delivery, relating to the Option
Underwritten Securities and otherwise to the same effect as the opinion
required by Section 5(e) hereof.
(4) A letter from Ernst & Young LLP, in form and substance
satisfactory to the Underwriters and dated such Date of Delivery,
substantially in the same form and substance as the letter furnished to the
Underwriters pursuant to Section 5(g) hereof, except that the "specified
date" on the letter furnished pursuant to this paragraph shall be a date
not more than three business days prior to such Date of Delivery.
(5) Since the time of execution of such Terms Agreement, there shall
not have occurred a downgrading in, or withdrawal of, the rating assigned
to the Underwritten Securities or any of the Company's other securities by
any such rating organization, and no such rating organization shall have
publicly announced that it has under surveillance or review its rating of
the Underwritten Securities or any of the Company's other securities.
(n) Additional Documents. At the Closing Time and at each Date of
Delivery, counsel for the Underwriters shall have been furnished with such
documents and opinions as they may reasonably require for the purpose of
enabling them to pass upon the issuance and sale of the Underwritten Securities
as herein contemplated, or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the conditions,
herein contained; and all proceedings taken by the Company or the Initial
Guarantors in connection with the issuance and sale of the Underwritten
Securities as herein contemplated shall be satisfactory in form and substance to
the Underwriters and counsel for the Underwriters.
(o) Termination of Terms Agreement. If any condition specified in this
Section 5 shall not have been fulfilled when and as required to be fulfilled,
the applicable Terms Agreement or, with respect to the Underwriters' exercise of
any applicable over-allotment option for the purchase of Option Underwritten
Securities on a Date of Delivery after the Closing Time, the obligations of the
Underwriters to purchase the Option Underwritten Securities on such Date of
Delivery may be terminated by Banc of America by notice to the Company at any
time at or prior to the Closing Time or such Date of Delivery, as applicable,
and such termination shall be without liability of any party to any other party
except as provided in Section 4 and except that Sections 1, 6, 7 and 8 shall
survive any such termination and remain in full force and effect.
SECTION 6. Indemnification.
---------------
(a) Indemnification of Underwriters. The Company and each Initial
Guarantor, jointly and severally, agree to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act as follows:
20
(1) against any and all losses, liabilities, claims, damages and
expenses whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), including the Rule 430A Information
and the Rule 434 Information deemed to be a part thereof, if applicable, 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 arising out of any untrue statement or alleged untrue
statement of a material fact included in any preliminary prospectus or the
Prospectus (or 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 the light of the circumstances under which they
were made, not misleading;
(2) against any and all losses, liabilities, claims, damages and
expenses whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any 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 that (subject to Section
6(d) below) any such settlement is effected with the written consent of the
Company; and
(3) against any and all expenses whatsoever, as incurred (including
the fees and disbursements of outside counsel chosen by Banc of America),
reasonably incurred in investigating, preparing or defending against any
litigation, or any 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, to the extent that any such expense is not paid under (i) or (ii)
above;
provided, however, that this indemnity agreement shall not apply to any loss,
-------- -------
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company or an
Initial Guarantor by any Underwriter through Banc of America expressly for use
in the Registration Statement (or any amendment thereto), including the Rule
430A Information and the Rule 434 Information deemed to be a part thereof, if
applicable, or any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto); and, provided further, that this indemnity agreement,
insofar as it relates to any preliminary Prospectus, shall not inure to the
benefit of any Underwriter (or to the benefit of any person who controls such
Underwriter) on account of any loss, liability, claim, damage or expense arising
out of the sale of any of the Underwritten Securities by such Underwriter to any
person if it shall be established that a copy of the Prospectus, excluding any
documents incorporated by reference (as supplemented or amended, if the Company
shall have made any supplements or amendments which have been furnished to the
Representative), shall not have been sent or given by or on behalf of such
Underwriter to such person at or prior to the written confirmation of the sale
of Underwritten Securities to such person in any case where such delivery is
required by the Securities Act and the Company satisfied its obligations
pursuant to Section 3(b) hereof, if the misstatement or omission leading to such
loss, claim, damage or liability was corrected in the Prospectus (excluding any
documents incorporated by reference) as amended or supplemented,
21
such correction would have cured the defect giving rise to such loss, liability,
claim, damage, or expense and such Prospectus was delivered to such Underwriter
a reasonable amount of time in advance of such Underwriter's delivery of the
written confirmation to such person.
(b) Indemnification of Company, Directors and Officers. Each Underwriter
severally agrees to indemnify and hold harmless the Company, each Initial
Guarantor, their respective directors each of their officers who signed the
Registration Statement, and each person, if any, who controls the Company or any
Initial Guarantor within the meaning of Section 15 of the 1933 Act or Section 20
of the 1934 Act against any and all losses, liabilities, claims, damages and
expenses described in the indemnity contained in subsection (a) of this Section,
as incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any
amendment thereto), including the Rule 430A Information and the Rule 434
Information deemed to be a part thereof, if applicable, or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with written information furnished to the
Company by such Underwriter through Banc of America expressly for use in the
Registration Statement (or any amendment thereto) or such preliminary prospectus
or the Prospectus (or any amendment or supplement thereto).
(c) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement.
The indemnifying party shall be entitled to appoint counsel of the
indemnifying party's choice at the indemnifying party's expense to represent the
indemnified party in any action for which indemnification is sought (in which
case the indemnifying party shall not thereafter be responsible for the fees and
expenses of any separate counsel retained by the indemnified party or parties
except as set forth below); provided, however, that such counsel shall be
-------- -------
reasonably satisfactory to the indemnified party. Notwithstanding the
indemnifying party's election to appoint counsel to represent the indemnified
party in an action, the indemnified 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 (and local
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 in
the reasonable judgment of the indemnified party, (ii) the defendants in 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 reasonably satisfactory to
the indemnified party to represent the indemnified party with in a reasonable
time after notice of the institution of such action or (iv) the indemnifying
party shall have authorized the indemnified party to employ separate counsel at
the expense of the indemnifying party.
22
In no event shall the indemnifying parties be liable for fees and expenses
of more than one counsel (in addition to any local counsel) separate from their
own counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or Section
7 hereof (whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(ii) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
SECTION 7. Contribution. If the indemnification provided for in Section 6
------------
hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company and the
Initial Guarantors, on the one hand, and the Underwriters, on the other hand,
from the offering of the Underwritten Securities pursuant to the applicable
Terms Agreement or (ii) if the allocation provided by clause (i) 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 and the Initial Guarantors, on the one hand, and the
Underwriters, on the other hand, in connection with the statements or omissions
which resulted in such losses, liabilities, claims, damages or expenses, as well
as any other relevant equitable considerations.
The relative benefits received by the Company and the Initial Guarantors,
on the one hand, and the Underwriters, on the other hand, in connection with the
offering of the Underwritten Securities pursuant to the applicable Terms
Agreement shall be deemed to be in the same respective proportions as the total
net proceeds from the offering of such Underwritten Securities (before deducting
expenses) received by the Company and the Initial Guarantors and the total
underwriting discount received by the Underwriters, in each case as set forth on
the cover of the Prospectus, or, if Rule 434 is used, the corresponding location
on the Term Sheet, bear to the aggregate initial public offering price of such
Underwritten Securities as set forth on such cover.
23
The relative fault of the Company and the Initial Guarantors, on the one
hand, and the Underwriters, on the other hand, shall be determined by reference
to, among other things, whether any such untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the Company, the Initial Guarantors or the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The Company, the Initial Guarantors and the Underwriters agree that it
would not be just and 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 which does not
take account of the equitable considerations referred to above in this Section
7. The aggregate amount of losses, liabilities, claims, damages and expenses
incurred by an indemnified party and referred to above in this Section 7 shall
be deemed to include any legal or other expenses reasonably incurred by such
indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
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 Underwritten Securities underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages which
such Underwriter has otherwise been required to pay by reason of any 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 0000 Xxx) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each director of the Company or any Initial Guarantor, each officer of the
Company or any Initial Guarantor who signed the Registration Statement, and each
person, if any, who controls the Company or any Initial Guarantor within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have
the same rights to contribution as the Company. The Underwriters' respective
obligations to contribute pursuant to this Section 7 are several in proportion
to the aggregate principal amount of Initial Underwritten Securities set forth
opposite their respective names in the applicable Terms Agreement, and not
joint.
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.
--------------------------------------------------------------
All representations, warranties and agreements contained in this Underwriting
Agreement or the applicable Terms Agreement or in certificates of officers of
the Company, any Initial Guarantor or any of their respective subsidiaries
submitted pursuant hereto or thereto shall remain operative and in full force
and effect, regardless of any investigation made by or on behalf of any
Underwriter or controlling person, or by or on behalf of the Company or any
Initial Guarantor, and shall survive delivery of and payment for the
Underwritten Securities.
24
SECTION 9. Termination.
-----------
(a) Underwriting Agreement. This Underwriting Agreement (excluding the
applicable Terms Agreement) may be terminated for any reason at any time by the
Company or by Banc of America upon the giving of prior written notice of such
termination to the other party hereto.
(b) Terms Agreement. Banc of America may terminate the applicable Terms
Agreement, by notice to the Company, at any time at or prior to the Closing Time
or any relevant Date of Delivery, if (i) there has been, since the time of
execution of such Terms Agreement or since the respective dates as of which
information is given in the Prospectus, 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 in the ordinary course of business, or (ii)
there has occurred any material adverse change in the financial markets in the
United States or, in the international financial markets, or 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 judgment of Banc of America, impracticable to market
the Underwritten Securities or to enforce contracts for the sale of the
Underwritten Securities, or (iii) trading in any securities of the Company has
been suspended or materially limited by the Commission, the New York Stock
Exchange or the American Stock Exchange, or if trading generally on the New York
Stock Exchange or the American Stock Exchange or in the Nasdaq National Market
has been suspended or materially limited, or minimum or maximum prices for
trading have been fixed, or maximum ranges for prices have been required, by
either of said exchanges or by such system or by order of the Commission, the
NASD or any other governmental authority, or (iv) a banking moratorium has been
declared by either Federal or New York authorities.
(c) Liabilities. If this Underwriting Agreement or the applicable Terms
Agreement is terminated pursuant to this Section 9, such termination shall be
without liability of any party to any other party except as provided in Section
4 hereof, and provided further that Sections 1, 6, 7 and 8 shall survive such
termination and remain in full force and effect.
SECTION 10. Default by One or More of the Underwriters. If one or more of
------------------------------------------
the Underwriters shall fail at the Closing Time or the relevant Date of
Delivery, as the case may be, to purchase the Underwritten Securities which it
or they are obligated to purchase under the applicable Terms Agreement (the
"Defaulted Securities"), then Banc of America shall have the right, within 24
hours thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth; if, however, Banc of America shall not have completed
such arrangements within such 24-hour period, then:
(a) if the number or aggregate principal amount, as the case may be, of
Defaulted Securities does not exceed 10% of the number or aggregate principal
amount, as the case may be, of Underwritten Securities to be purchased on such
date pursuant to such Terms Agreement, the non-defaulting Underwriters shall be
obligated, severally and not jointly, to purchase the full
25
amount thereof in the proportions that their respective underwriting obligations
under such Terms Agreement bear to the underwriting obligations of all non-
defaulting Underwriters, or
(b) if the number or aggregate principal amount, as the case may be, of
Defaulted Securities exceeds 10% of the number or aggregate principal amount, as
the case may be, of Underwritten Securities to be purchased on such date
pursuant to such Terms Agreement, such Terms Agreement (or, with respect to the
Underwriters' exercise of any applicable over-allotment option for the purchase
of Option Underwritten Securities on a Date of Delivery after the Closing Time,
the obligations of the Underwriters to purchase, and the Company to sell, such
Option Underwritten Securities on such Date of Delivery) shall terminate without
liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section 10 shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in (i) a termination
of the applicable Terms Agreement or (ii) in the case of a Date of Delivery
after the Closing Time, a termination of the obligations of the Underwriters and
the Company with respect to the related Option Underwritten Securities, as the
case may be, either Banc of America or the Company shall have the right to
postpone the Closing Time or the relevant Date of Delivery, as the case may be,
for a period not exceeding seven days in order to effect any required changes in
the Registration Statement or the Prospectus or in any other documents or
arrangements.
SECTION 11. Notices. All notices and other communications hereunder shall
-------
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to Banc of America at 000 Xxxxx Xxxxx Xxxxxx,
Xxxxxxxxx, Xxxxx Xxxxxxxx, 00000, attention of Xxxx X. XxXxxxxxx, and notices to
the Company shall be directed to it at 000 Xxxx Xxxxxxxx Xxxxxx, Xxxxxxxx, XX
00000, attention of Chief Financial Officer with a copy to General Counsel.
SECTION 12. Parties. This Underwriting Agreement and the applicable Terms
-------
Agreement shall each inure to the benefit of and be binding upon the Company,
the Initial Guarantors, Banc of America and, upon execution of such Terms
Agreement, any other Underwriters and their respective successors. Nothing
expressed or mentioned in this Underwriting Agreement or such Terms Agreement is
intended or shall be construed to give any person, firm or corporation, other
than the parties hereto and their respective successors and the controlling
persons and officers and directors referred to in Sections 6 and 7 and their
heirs and legal representatives, any legal or equitable right, remedy or claim
under or in respect of this Underwriting Agreement or such Terms Agreement or
any provision herein or therein contained. This Underwriting Agreement and such
Terms Agreement and all conditions and provisions hereof and thereof are
intended to be for the sole and exclusive benefit of the parties hereto and
thereto and their respective successors, and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Underwritten
Securities from any Underwriter shall be deemed to be a successor by reason
merely of such purchase.
26
SECTION 13. GOVERNING LAW AND TIME. THIS UNDERWRITING AGREEMENT AND ANY
----------------------
APPLICABLE TERMS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK. SPECIFIED TIMES OF DAY REFER TO NEW YORK
CITY TIME.
SECTION 14. Effect of Headings. The Article and Section headings herein
------------------
and the Table of Contents are for convenience only and shall not affect the
construction hereof.
SECTION 15. Counterparts. This Agreement may be executed in one or more
------------
counterparts and, if executed in more than one counterpart, the executed
counterparts hereof shall constitute a single instrument.
27
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company a counterpart hereof, whereupon this
Underwriting Agreement, along with all counterparts, will become a binding
agreement among Banc of America, the Company and the Initial Guarantors in
accordance with its terms.
Very truly yours,
MEDIA GENERAL, INC.,
as Issuer
By: /s/ Xxxxxxxx X. Xxxxxx
Name: Xxxxxxxx X. Xxxxxx
Title: Vice Chairman and Chief Financial
Officer
MEDIA GENERAL FINANCIAL SERVICES, INC.,
as Guarantor
By: /s/ Xxxxxxxx X. Xxxxxx
Name: Xxxxxxxx X. Xxxxxx
Title: Treasurer
MEDIA GENERAL COMMUNICATIONS, INC.,
as Guarantor
By: /s/ Xxxxxxxx X. Xxxxxx
Name: Xxxxxxxx X. Xxxxxx
Title: Treasurer
MG BROADCASTING OF BIRMINGHAM HOLDINGS, LLC,
as Guarantor
By: /s/ Xxxxxxxx X. Xxxxxx
Name: Xxxxxxxx X. Xxxxxx
Title: Treasurer
MEDIA GENERAL OPERATIONS, INC.,
as Guarantor
By: /s/ Xxxxxxxx X. Xxxxxx
Name: Xxxxxxxx X. Xxxxxx
Title: Treasurer
28
THE TRIBUNE COMPANY HOLDINGS, INC.,
as Guarantor
By: /s/ Xxxxxxxx X. Xxxxxx
Name: Xxxxxxxx X. Xxxxxx
Title: Treasurer
MEDIA GENERAL BROADCASTING OF SOUTH
CAROLINA HOLDINGS, INC.,
as Guarantor
By: /s/ Xxxxxxxx X. Xxxxxx
Name: Xxxxxxxx X. Xxxxxx
Title: Treasurer
MG BROADCASTING OF BIRMINGHAM II, LLC,
as Guarantor
By: /s/ Xxxxxxxx X. Xxxxxx
Name: Xxxxxxxx X. Xxxxxx
Title: Treasurer
PROFESSIONAL COMMUNICATIONS SYSTEMS,
INC.,
as Guarantor
By: /s/ Xxxxxxxx X. Xxxxxx
Name: Xxxxxxxx X. Xxxxxx
Title: Treasurer
NES II, INC.,
as Guarantor
By: /s/ Xxxxxxxx X. Xxxxxx
Name: Xxxxxxxx X. Xxxxxx
Title: President and Treasurer
29
VIRGINIA PAPER MANUFACTURING CORP.,
as Guarantor
By: /s/ Xxxxxxxx X. Xxxxxx
Name: Xxxxxxxx X. Xxxxxx
Title: Treasurer
CONFIRMED AND ACCEPTED,
as of the date first above written:
BANC OF AMERICA SECURITIES LLC
By: /s/ Xxxx Xxxxx
Name: Xxxx Xxxxx
Title: Principal
30
SCHEDULE A
List of Subsidiaries
--------------------
Media General Financial Services, Inc.
Media General Broadcasting of Birmingham Holdings, LLC
Media General Communications, Inc.
Media General Operations, Inc.
The Tribune Company Holdings, Inc.
Media General Broadcasting of South Carolina Holdings, Inc.
Professional Communications Systems, Inc.
NES II, Inc.
Virginia Paper Manufacturing Corp.
MG Broadcasting of Birmingham II, LLC
Sch A-1
EXHIBIT A
MEDIA GENERAL, INC.
(a Virginia corporation)
AND THE GUARANTORS NAMED HEREIN
Senior Debt Securities
TERMS AGREEMENT
---------------
[Date]
To: Media General, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Ladies and Gentlemen:
We understand that Media General, Inc., a Virginia corporation (the
"Company"), proposes to issue and sell $ aggregate principal amount of
its senior debt securities (the "Debt Securities"). [Subject to the terms of the
Indenture, such securities will be fully and unconditionally guaranteed as to
payment of principal, premium (if any) and interest (the "Guarantees," and
together with the Debt Securities, the "[Initial] Underwritten Securities") by
the Initial Guarantors.] Subject to the terms and conditions set forth or
incorporated by reference herein, we [the underwriters named below (the
"Underwriters") offer to purchase [, severally and not jointly,] the principal
amount of Underwritten Securities [opposite their names set forth below] at the
purchase price set forth below [, and a proportionate share of Option
Underwritten Securities set forth below, to the extent any are purchased].
A-1
[Principal Amount]
Underwriter of [Initial] Underwritten Securities
----------- ------------------------------------
________________
Total [$]
===
The Underwritten Securities shall have the
following terms:
Title:
Rank:
Guaranteed:
Ratings:
Aggregate principal amount:
Denominations:
Currency of payment:
Interest rate or formula:
Interest payment dates:
Regular record dates:
Stated maturity date:
Redemption provisions:
Sinking fund requirements:
Defeasance provisions:
Conversion provisions:
Listing requirements:
Black-out provisions:
Fixed or Variable Price Offering: [Fixed]
[Variable] Price Offering
If Fixed Price Offering:_____ % of the principal amount, plus accrued
interest [amortized original issue discount], if any, from _______________.
Purchase price: ___% of principal amount, plus accrued interest [amortized
original issue discount], if any, from _________________.
Form:
Other terms and conditions:
Closing date and location:
All of the provisions contained in the document attached as Annex I hereto
entitled "Media General, Inc.-- Debt Securities--Underwriting Agreement" are
hereby incorporated by reference in their entirety herein and shall be deemed to
be a part of this Terms Agreement to the
A-2
same extent as if such provisions had been set forth in full herein. Terms
defined in such document are used herein as therein defined.
Please accept this offer no later than ____ o'clock P.M. (New York City
time) on ______________ by signing a copy of this Terms Agreement in the space
set forth below and returning the signed copy to us.
Very truly yours,
BANC OF AMERICA SECURITIES LLC
DRESDNER KLEINWORT XXXXXXXXXXX SECURITIES LLC
FLEET SECURITIES, INC.
MIZUHO INTERNATIONAL, PLC
SCOTIA CAPITAL (USA) INC.
SUNTRUST CAPITAL MARKETS, INC.
WACHOVIA SECURITIES, INC.
By: Banc of America Securities LLC
By: __________________________
Authorized Signatory
Acting on behalf of itself and the other named Underwriters.
Accepted:
MEDIA GENERAL, INC.,
as Issuer
By _______________________
Name:
Title:
MEDIA GENERAL FINANCIAL SERVICES, INC.,
as Guarantor
By: ______________________
Name:
Title:
MEDIA GENERAL COMMUNICATIONS, INC.,
as Guarantor
A-3
By: _______________________
Name:
Title:
MG BROADCASTING OF BIRMINGHAM HOLDINGS, LLC,
as Guarantor
By: _______________________
Name:
Title:
MEDIA GENERAL OPERATIONS, INC.,
as Guarantor
By: _______________________
Name:
Title:
THE TRIBUNE COMPANY HOLDINGS, INC.,
as Guarantor
By: _______________________
Name:
Title:
MEDIA GENERAL BROADCASTING
OF SOUTH CAROLINA HOLDINGS, INC.,
as Guarantor
By: _______________________
Name:
Title:
MG BROADCASTING OF BIRMINGHAM II, LLC,
as Guarantor
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By: ________________________
Name:
Title:
PROFESSIONAL COMMUNICATIONS SYSTEMS, INC.,
as Guarantor
By: ________________________
Name:
Title:
NES II, INC.,
as Guarantor
By: ________________________
Name:
Title:
VIRGINIA PAPER MANUFACTURING CORP.,
as Guarantor
By: ________________________
Name:
Title:
A-5
EXHIBIT B
FORM OF OPINION OF GENERAL COUNSEL
OF THE COMPANY
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
1. The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the Commonwealth of Virginia.
2. The Company has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under, or as
contemplated under, the Underwriting Agreement and the applicable Terms
Agreement.
3. The Company 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 to so qualify or
be in good standing would not result in a Material Adverse Effect.
4. Each "significant subsidiary" of the Company (as such term is defined
in Rule 1-02 of Regulation S-X promulgated under the 0000 Xxx) and each of the
Company's subsidiaries identified on Schedule B attached hereto (each a
"Subsidiary" and collectively the "Subsidiaries") has been duly incorporated and
is validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has corporate power and authority to own,
lease and operate its properties and to conduct its business as described in the
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 to so qualify or be in good
standing would not result in a Material Adverse Effect. Except as otherwise
described in the Prospectus, all of the issued and outstanding capital stock of
each Subsidiary has been duly authorized and is validly issued, fully paid and
non-assessable and, to the best of my knowledge, is owned by the Company,
directly or through subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity. None of the outstanding
shares of capital stock of any Subsidiary was issued in violation of preemptive
or other similar rights of any securityholder of such Subsidiary.
5. The authorized, issued and outstanding shares of capital stock of the
Company is as set forth in the column entitled "Actual" under the caption
"Capitalization" (except for subsequent issuances thereof, if any, contemplated
under the Underwriting Agreement, pursuant to reservations, agreements or
employee benefit plans referred to in the Prospectus or pursuant to the exercise
of convertible securities or options referred to in the Prospectus). Such shares
of capital stock have been duly authorized and validly issued by the Company and
are fully paid and non-assessable, and none of such shares of capital stock was
issued in violation of preemptive or other similar rights of any securityholder
of the Company.
B-1
6. The Underwriting Agreement and the applicable Terms Agreement have
been duly authorized, executed and delivered by the Company.
7. The information in the Company's Annual Report on Form 10-K for the
year ended December 31, 2000 under the caption "Legal Proceedings" to the extent
that it constitutes matters of law, summaries of legal matters or the Company's
charter, bylaws or legal proceedings, or legal conclusions, has been reviewed by
me and is correct in all material respects.
8. To the best of my knowledge, neither the Company nor any of its
subsidiaries is in violation of its charter or by-laws and no default by the
Company or any of its subsidiaries exists in the due performance or observance
of any material obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note, lease or other agreement or
instrument that is described or referred to in the Registration Statement or the
Prospectus or filed or incorporated by reference as an exhibit to the
Registration Statement.
9. The execution, delivery and performance of the Underwriting Agreement,
the applicable Terms Agreement and the Indenture and any other agreement or
instrument entered into or issued or to be entered into or issued by the Company
and the Initial Guarantors in connection with the transactions contemplated in
the Registration Statement and the Prospectus and the consummation of the
transactions contemplated in the Underwriting Agreement and such Terms Agreement
and in the Registration Statement and the Prospectus (including the issuance and
sale of the Underwritten Securities and the use of the proceeds from the sale of
the Underwritten Securities as described under the caption "Use of Proceeds")
and compliance by the Company and the Initial Guarantors with their respective
obligations thereunder do 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 under, or result in the creation or imposition of
any lien, charge or encumbrance upon any assets, properties or operations of the
Company or any of its subsidiaries pursuant to, any contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, lease or any other
agreement or instrument, known to me, 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 assets, properties or operations of the Company or any of its
subsidiaries is subject, nor will such action result in any violation of the
provisions of the charter or by-laws of the Company or any of its subsidiaries
or any applicable law, statute, rule, regulation, judgment, order, writ or
decree, known to me, 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.
10. To the best of my knowledge, there is not pending or threatened any
action, suit, proceeding, inquiry or investigation to which the Company or any
of its subsidiaries thereof is a party or to which the assets, properties or
operations of the Company or any of its subsidiaries thereof is subject, before
or by any court or governmental agency or body, domestic or foreign, which might
reasonably be expected to result in a Material Adverse Effect or which might
reasonably be expected to materially and adversely affect the assets, properties
or operations thereof or the consummation of the transactions contemplated under
the Underwriting Agreement, the applicable Terms Agreement or the Indenture or
the performance by the Company of its obligations thereunder.
B-2
11. All descriptions in the Prospectus of contracts and other documents to
which the Company or its subsidiaries are a party are accurate in all material
respects. To the best of my knowledge, there are no franchises, contracts,
indentures, mortgages, loan agreements, notes, leases or other instruments
required to be described or referred to in the Prospectus or to be filed as
exhibits to the Registration Statement other than those described or referred to
therein or filed or incorporated by reference as exhibits thereto, and the
descriptions thereof or references thereto are correct in all material respects.
12. To the best of my knowledge, there are no statutes or regulations that
are required to be described in the Prospectus that are not described as
required.
In rendering such opinion, such counsel may rely, as to matters of fact
(but not as to legal conclusions), to the extent he deems proper, on
certificates of responsible officers of the Company, the Initial Guarantors and
public officials. Such opinion shall not state that it is to be governed or
qualified by, or that it is otherwise subject to, any treatise, written policy
or other document relating to legal opinions, including, without limitation, the
Legal Opinion Accord of the ABA Section of Business Law (1991). The words
"Material Adverse Effect," as used in such opinion, shall mean a material
adverse change in the condition, financial or otherwise, or in the earnings or
business affairs of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business.
B-3
EXHIBIT C
FORM OF OPINION OF COMPANY'S COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(c)
1. The Debt Securities have been duly authorized by the Company for
issuance and sale pursuant to the Underwriting Agreement and the applicable
Terms Agreement. The Debt Securities, when issued and authenticated in the
manner provided for in the Indenture and delivered against payment of the
consideration therefor specified in such Terms 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 other similar laws
affecting the enforcement of creditors' rights generally or by general equitable
principles (regardless of whether enforcement is considered in a proceeding in
equity or at law); and except further as enforcement thereof may be limited by
requirements that a claim with respect to any Debt Securities payable in a
foreign or corporate currency (or a foreign or composite currency judgment in
respect of such claim) be converted into U.S. dollars at a rate of exchange
prevailing on a date determined pursuant to applicable law or by governmental
authority to limit, delay or prohibit the making of payments outside the United
States. The Debt Securities are in the form contemplated by, and each registered
holder thereof is entitled to the benefits of, the Indenture.
2. The Guarantees have been duly authorized by the Guarantors and, when
the Debt Securities are issued and authenticated in accordance with the terms of
the Indenture and delivered and paid for in accordance with the terms of the
Underwriting Agreement and applicable Terms Agreement, will constitute valid and
legally binding obligations of the Guarantors, enforceable against the
Guarantors 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 other similar
laws affecting the enforcement of creditors' rights generally or by general
equitable principles (regardless of whether enforcement is considered in a
proceeding in equity or at law); and except further as enforcement thereof may
be limited by requirements that a claim with respect to any Guarantee payable in
a foreign or corporate currency (or a foreign or composite currency judgment in
respect of such claim) be converted into U.S. dollars at a rate of exchange
prevailing on a date determined pursuant to applicable law or by governmental
authority to limit, delay or prohibit the making of payments outside the United
States.
3. The Indenture has been duly authorized, executed and delivered by the
Company and the Initial Guarantors and (assuming due authorization, execution
and delivery thereof by the Trustee) constitutes a valid and binding agreement
of the Company and the Initial Guarantors, enforceable against the Company and
the Initial Guarantors in accordance with its terms, except as enforcement
thereof may be limited by bankruptcy, insolvency (including, without limitation,
all laws relating to fraudulent transfers), reorganization, moratorium or other
similar laws
C-1
affecting the enforcement of creditors' rights generally or by general equitable
principles (regardless of whether enforcement is considered in a proceeding in
equity or at law).
4. The Underwritten Securities being sold pursuant to the applicable
Terms Agreement, conform and, when issued and delivered in accordance with the
terms of the related Underwritten Securities, will conform, in all material
respects to the statements relating thereto contained in the Prospectus and are
in substantially the form filed or incorporated by reference, as the case may
be, as an exhibit to the Registration Statement.
5. The Indenture conforms in all material respects to the statements
relating thereto contained in the Prospectus and is in substantially the form
filed or incorporated by reference, as the case may be, as an exhibit to the
Registration Statement.
6. The information in the Prospectus under "Description of Senior Debt
Securities" and "Description of Notes," and in the Registration Statement under
Item 15, to the extent that it constitutes matters of law, summaries of legal
matters or the Company's charter, bylaws or legal proceedings, or legal
conclusions, has been reviewed by us and is correct in all material respects.
7. The Registration Statement (including any Rule 462(b) Registration
Statement) has been declared effective under the 1933 Act. Any required filing
of the Prospectus pursuant to Rule 424(b) has been made in the manner and within
the time period required by Rule 424(b). To the best of our knowledge, no stop
order suspending the effectiveness of the Registration Statement (or such Rule
462(b) Registration Statement) has been issued under the 1933 Act and no
proceedings for that purpose have been initiated or are pending or threatened by
the Commission.
8. The Registration Statement (including any Rule 462(b) Registration
Statement) and the Prospectus, excluding the documents incorporated by reference
therein, and each amendment or supplement to the Registration Statement
(including any Rule 462(b) Registration Statement) and Prospectus, excluding the
documents incorporated by reference therein, as of their respective effective or
issue dates (other than the financial statements and supporting schedules
included therein or omitted therefrom and the Trustee's Statement of Eligibility
on Form T-1 (the "Form T-1"), as to which we express no opinion), complied as to
form in all material respects with the requirements of the 1933 Act and the 1933
Act Regulations.
9. The documents incorporated by reference in the Prospectus (other than
the financial statements and supporting schedules therein or omitted therefrom,
as to which we express no opinion), when they were filed with the Commission
complied as to form in all material respects with the requirements of the 1934
Act and the rules and regulations of the Commission thereunder.
10. No filing with, or authorization, approval, consent, license, order,
registration, qualification or decree of, any court or governmental authority or
agency, domestic or foreign, is necessary or required for the due authorization,
execution or delivery by the Company or the Initial Guarantors of the
Underwriting Agreement or the applicable Terms Agreement or for the performance
by the Company or the Initial Guarantors of the transactions contemplated under
the Prospectus, the Underwriting Agreement, such Terms Agreement or the
Indenture, other than
C-2
under the 1933 Act, the 1933 Act Regulations, the 1939 Act and the 1939 Act
Regulations, which have already been made, obtained or rendered, as applicable.
11. The Indenture has been duly qualified under the 1939 Act.
12. Neither the Company nor the Initial Guarantors are, and upon the
issuance and sale of the Underwritten Securities as herein contemplated and the
application of the net proceeds therefrom as described in the Prospectus will
be, an "investment company" within the meaning of the 1940 Act.
Nothing has come to our attention that would lead us to believe that the
Registration Statement (including any Rule 462(b) Registration Statement) or any
post-effective amendment thereto (except for financial statements and supporting
schedules and other financial data included therein or omitted therefrom and for
the Form T-1, as to which we make no statement), at the time the Registration
Statement (including any Rule 462(b) Registration Statement) or any post-
effective amendment thereto (including the filing of the Company's Annual Report
on Form 10-K with the Commission) became effective or at the date of the
applicable Terms Agreement, 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 or any
amendment or supplement thereto (except for financial statements and supporting
schedules and other financial data included therein or omitted therefrom, as to
which we make no statement), at the time the Prospectus was issued, at the time
any such amended or supplemented prospectus was issued or at the Closing Time,
included or includes 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.
In rendering such opinion, such counsel may rely, as to matters of fact
(but not as to legal conclusions), to the extent they deem proper, on
certificates of responsible officers of the Company, the Initial Guarantors and
public officials. Such opinion shall not state that it is to be governed or
qualified by, or that it is otherwise subject to, any treatise, written policy
or other document relating to legal opinions, including, without limitation, the
Legal Opinion Accord of the ABA Section of Business Law (1991).
C-3
EXHIBIT D
FORM OF OPINION OF SPECIAL COUNSEL
TO THE COMPANY
TO BE DELIVERED PURSUANT TO
SECTION 5(d)
1. Each of the FCC Licenses set forth in Schedule II hereto is held by
the subsidiary of the Company as set forth in Schedule II and has the expiration
date set forth in Schedule II.
2. To our knowledge, based upon our above-described review of the FCC's
publicly available files and publicly available databases and our above-
described inquiries to the FCC's Enforcement Bureau and the Office of Political
Programming and the Equal Employment Opportunity Branch of the FCC's Mass Media
Bureau, except for those proceedings generally affecting the television industry
and those matters identified in Schedule II hereto, there is no action, suit, or
other adverse proceeding pending before the FCC against the Company or any of
the subsidiaries of the Company listed on Schedule II with respect to the
Stations which, if determined adversely to the Company, reasonably could be
expected to result in the rescission, revocation, non-renewal or material
adverse modification of the FCC Licenses.
3. The execution, delivery and consummation on the date hereof by the
Company of the Transaction Documents to which the Company is a party with
respect to the issuance of the [Initial Underwritten Securities] on the date
hereof do not violate the Communications Laws, except that if any license issued
by the FCC to the Company or any subsidiary of the Company is assigned to
another entity or if control of such licensee is transferred to a party not
currently in control of the licensee, including any transfer or assignment that
may arise in connection with the exercise by the Indenture Trustee or otherwise
by or on behalf of the holders of the Debt Securities of rights under the
Transaction Documents upon the occurrence of an event of default, the prior
consent of the FCC may be required and FCC policy may require that control of
the assets used in the operation of the facilities authorized by such license or
the assets themselves be transferred along with such license. We express no
opinion as to the likelihood of obtaining any such consents or approvals of the
FCC.
4. The statements under the caption "About Media General -- Regulation of
Broadcasting" in the Prospectus Supplement and the statements under the caption
"Broadcast Business" under Item 1 of the Company's Annual Report on Form 10-K
for the year ended December 31, 2000 (as these two documents are described in
Schedule III hereto), to the extent such statements constitute a summary of the
Communications Laws referenced therein applicable to broadcast television
stations, or descriptions of legal proceedings thereunder, have been reviewed by
us and accurately describe in all material respects such Communications Laws and
legal proceedings.
D-1
