EXHIBIT 99.1
Clear Channel Communications, Inc.
Underwriting Agreement
New York, New York
January 6, 2003
To the Representatives
named in Schedule I
hereto of the Under-
writers named in
Schedule II hereto
Ladies and Gentlemen:
Clear Channel Communications, Inc. a Texas corporation (the "Company"), proposes
to sell to the underwriters named in Schedule II hereto (the "Underwriters"),
for whom you (the "Representatives") are acting as representatives, the
principal amount of its securities identified in Schedule I hereto of the
Company, to be issued under an indenture dated as of October 1, 1997, between
the Company and The Bank of New York, as trustee (the "Trustee"), as amended by
the Eleventh Supplemental Indenture anticipated to be dated as of January 9,
2003 (as so amended, the "Indenture") (said principal amount to be issued and
sold by the Company being hereinafter called the "Underwritten Securities"). The
Company also proposes to grant to the Underwriters an option to purchase up to
the additional principal amount of its securities identified on Schedule II (the
"Option Securities"; the Option Securities, together with the Underwritten
Securities, being hereinafter called the "Securities"). If the firm or firms
listed in Schedule II hereto include only the firm or firms listed in Schedule I
hereto, then the terms "Underwriters" and "Representatives", as used herein,
shall each be deemed to refer to such firm or firms. To the extent there are no
additional Underwriters listed on Schedule I other than you, the term
Representatives as used herein shall mean you, as Underwriters, and the terms
Representatives and Underwriters shall mean either the singular or plural as the
context requires. Any reference herein to the Registration Statement, the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus, shall
except as specified therein, be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S 3 which were
filed under the Exchange Act on or before the Effective Date of the Registration
Statement or the issue date of the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus, as the case may be; and any reference herein
to the terms "amend", "amendment" or "supplement" with respect to the
Registration Statement, the Basic Prospectus, any Preliminary Final Prospectus
or the Final Prospectus shall be deemed to refer to and include the filing of
any document under the Exchange Act after the Effective Date of the Registration
Statement or the issue date of the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus, as
the case may be, deemed to be incorporated therein by reference. The use of the
neuter in this Agreement shall include the feminine and masculine wherever
appropriate.
1. Representations and Warranties. The Company represents and warrants to, and
agrees with, each Underwriter as set forth below in this Section 1. Certain
terms used in this Section 1 are defined in Section 16 hereof.
(a) The Company meets the requirements for the use of Form S 3 under the
Act and has filed with the Commission a registration statement (the file number
of which is set forth in Schedule I hereto) on such Form, including a basic
prospectus, for registration under the Act of the offering and sale of the
Securities. The Company may have filed one or more amendments thereto, including
a Preliminary Final Prospectus, each of which has previously been furnished to
you. The Company will next file with the Commission one of the following: (x) a
final prospectus supplement relating to the Securities in accordance with Rules
430A and 424(b), (y) prior to the Effective Date of such registration statement,
an amendment to such registration statement, including the form of final
prospectus supplement, or (z) a final prospectus in accordance with Rules 415
and 424(b). In the case of clause (x), the Company has included in such
registration statement, as amended at the Effective Date, all information (other
than Rule 430A Information) required by the Act and the rules thereunder to be
included in such registration statement and the Final Prospectus. As filed, such
final prospectus supplement or such amendment and form of final prospectus
supplement shall contain all Rule 430A Information, together with all other such
required information, and, except to the extent the Representatives shall agree
in writing to a modification, shall be in all substantive respects in the form
furnished to you prior to the Execution Time or, to the extent not completed at
the Execution Time, shall contain only such specific additional information and
other changes (beyond that contained in the Basic Prospectus and any Preliminary
Final Prospectus) as the Company has advised you, prior to the Execution Time,
will be included or made therein.
(b) On the Effective Date, the Registration Statement did or will, and when
the Final Prospectus is first filed (if required) in accordance with Rule 424(b)
and on the Closing Date (as defined herein), and on any date on which Option
Securities sold in respect of the Underwriters' over-allotment option are
purchased, if such date is not the Closing Date (a "Settlement Date"), the Final
Prospectus (and any supplement thereto) will, comply in all material respects
with the applicable requirements of the Act, the Exchange Act and The Trust
Indenture Act and the respective rules thereunder; on the Effective Date and at
the Execution Time, the Registration Statement did not or will not contain any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary in order to make the statements therein not
misleading; on the Effective Date and on the Closing Date and any Settlement
Date the Indenture did or will comply in all material respects with the
requirements of the Trust Indenture Act and the rules thereunder; and, on the
Effective Date, the Final Prospectus, if not filed pursuant to Rule 424(b), will
not, and on the date of any filing pursuant to Rule 424(b) and on the Closing
Date and any Settlement Date, the Final Prospectus (together with any supplement
thereto) will not, include any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading; provided,
however, that the Company makes no representations or warranties as to (i) that
part of the Registration Statement which shall constitute the Statement of
Eligibility and Qualification (Form T-1) under the Trust Indenture Act of the
Trustee or (ii) the information contained in or omitted from the Registration
Statement or the Final Prospectus (or any supplement thereto) in reliance upon
and in conformity with information furnished herein or in writing to the Company
by or on behalf of any Underwriter through the Representatives specifically for
inclusion in the Registration Statement or the Final Prospectus (or any
supplement thereto), it being understood that the information referred to in
this clause (b)(ii) shall be limited to the information described in Section
7(b) hereof.
(c) The Company has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of Texas, with
corporate power and authority to own its properties and conduct its business as
described in the Final Prospectus; each of the subsidiaries of the Company as
listed on Schedule III hereto (collectively, the "Subsidiaries") has been duly
organized and is validly existing in good standing under the laws of the
jurisdiction of its organization, with power and authority to own or lease its
properties and conduct its business as described in the Final Prospectus; the
Company and each of the Subsidiaries are duly qualified to transact business in
all jurisdictions in which the conduct of their business requires such
qualification and a failure to qualify would have a material adverse effect upon
the business or financial condition of the Company and the Subsidiaries taken as
a whole; except as set forth on Schedule III hereto, or as described in the
Final Prospectus, the outstanding shares of capital stock of each of the
Subsidiaries owned by the Company or a Subsidiary have been duly authorized and
validly issued, are fully paid and nonassessable and are owned by the Company or
another subsidiary free and clear of all liens, encumbrances and security
interests and no options, warrants or other rights to purchase, agreements or
other obligations to issue or other rights to convert any obligations into
shares of capital stock or ownership interests in the Subsidiaries are
outstanding.
(d) The authorized shares of Common Stock of the Company have been duly
authorized. The outstanding shares of Common Stock of the Company have been duly
authorized and are validly issued, fully-paid and non-assessable.
(e) This Agreement has been duly authorized, executed and delivered by the
Company and is a legal, valid and binding obligation of the Company enforceable
against the Company in accordance with its terms.
(f) The Indenture and the Securities conform in all material respects with
the statements concerning them in the Final Prospectus.
(g) The Commission has not issued an order preventing or suspending the use
of any Basic Prospectus, Preliminary Final Prospectus or Final Prospectus
relating to the proposed offering of the Securities nor instituted proceedings
for that purpose.
(h) The consolidated financial statements of the Company and the
subsidiaries, together with related notes and schedules incorporated by
reference in the Final Prospectus present fairly the financial position and the
results of operations of the Company and its subsidiaries consolidated, at the
indicated dates and for the indicated periods. Such financial statements have
been prepared in accordance with generally accepted principles of accounting,
consistently
applied throughout the periods involved, and all adjustments necessary for a
fair presentation of results for such periods have been made. The selected and
summary financial and statistical data included in the Final Prospectus present
fairly the information shown therein and have been compiled on a basis
consistent with the financial statements incorporated by reference therein and
the books and records of the Company. The pro forma financial information
included in the Final Prospectus present fairly the information shown therein,
have been properly compiled on the pro forma bases described therein, and, in
the opinion of the Company, the assumptions used in the preparation thereof are
reasonable and the adjustments used therein are appropriate to give effect to
the transactions or circumstances referred to therein.
(i) Except for those license renewal applications of the Company or its
subsidiaries currently pending before the Federal Communications Commission (the
"FCC"), or as set forth in the Final Prospectus or on Schedule III, there is no
action or proceeding pending or, to the knowledge of the Company, threatened
against the Company or any of the Subsidiaries before any court or
administrative agency which could reasonably be likely to result in any material
adverse change in the earnings, business, management, properties, assets,
rights, operations, condition (financial or otherwise) of the Company and of the
Subsidiaries (taken as a whole).
(j) The Company and the Subsidiaries have good and marketable title to all
of the properties and assets reflected in the financial statements herein above
described (or as described in the Final Prospectus) subject to no material lien,
mortgage, pledge, charge or encumbrance of any kind, except those reflected in
such financial statements or as described in the Final Prospectus or set forth
on Schedule III. The Company and the Subsidiaries occupy their leased properties
under valid leases with such exceptions as are not material to the Company and
the subsidiaries taken as a whole and do not materially interfere with the use
made and proposed to be made of such properties by the Company and the
Subsidiaries.
(k) The Company and the Subsidiaries have filed all Federal, State and
foreign income tax returns which have been required to be filed and have paid
all taxes indicated by said returns and all assessments received by them or any
of them to the extent that such taxes have become due and are not being
contested in good faith. The Company has no knowledge of any tax deficiency that
has been or might be asserted against the Company that would have a material
adverse effect on the Company and its subsidiaries taken as a whole.
(l) Since the last date as of which information is given in the Final
Prospectus, as it may be amended or supplemented, there has not been any
material adverse change or any development involving a prospective material
adverse change in or affecting the earnings, business, management, properties,
assets, rights, operations, condition (financial or otherwise) or business
prospects of the Company and its subsidiaries (taken as a whole), whether or not
occurring in the ordinary course of business, other than general economic and
industry conditions, changes in the ordinary course of business and changes or
transactions described or contemplated in the Final Prospectus, and there has
not been any material definitive agreement entered into by the Company or the
Subsidiaries, other than transactions in the ordinary course of business and
changes and transactions contemplated by the Final Prospectus, as it may be
amended or supplemented. None of the Company or the Subsidiaries have any
material contingent
obligations which are not disclosed in the Final Prospectus, as it may be
amended or supplemented.
(m) Neither the Company nor any of the Subsidiaries is or with the giving
of notice or lapse of time or both, will be in default under its certificate or
articles of incorporation, by laws or partnership agreements or any agreement,
lease, contract, indenture or other instrument or obligation to which it is a
party or by which it, or any of its properties, is bound and which default is of
material significance in respect of the business or financial condition of the
Company and its subsidiaries (taken as a whole). The execution and delivery of
this Agreement and the consummation of the transactions herein contemplated and
the fulfillment of the terms hereof will not conflict with or result in a breach
of any of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust or other material agreement or instrument to
which the Company or any Subsidiary is a party, or of the certificate or
articles of incorporation, by laws or partnership agreement of the Company or
any order, rule or regulation applicable to the Company or any Subsidiary, or of
any court or of any regulatory body or administrative agency or other
governmental body having jurisdiction, except in all cases a conflict, breach or
default which would not have a materially adverse effect on the business or
financial condition of the Company and the subsidiaries (taken as a whole).
(n) Each approval, consent, order, authorization, designation, declaration
or filing by or with any regulatory, administrative or other governmental body
necessary in connection with the execution and delivery by the Company of this
Agreement and the consummation of the transactions herein contemplated (except
such additional steps as may be required by the National Association of
Securities Dealers, Inc. ("NASD") or the New York Stock Exchange ("NYSE") or as
may be necessary to qualify the Securities for public offering by the
Underwriters under State securities or Blue Sky laws) has been obtained or made
and is in full force and effect.
(o) The Company and each of the Subsidiaries hold all material licenses,
certificates and permits from governmental authorities, including without
limitation, the FCC, which are necessary to the conduct of their businesses; and
neither the Company nor any of the Subsidiaries has received notice of any
infringement of any material patents, patent rights, trade names, trademarks or
copyrights, which infringement is material to the business of the Company and
the Subsidiaries (taken as a whole).
(p) Ernst & Young LLP, who has certified certain of the financial
statements incorporated by reference in the Final Prospectus, is to the
knowledge of the Company an independent public accounting firm as required by
the Act and the Rules and Regulations.
(q) To the Company's knowledge, there are no affiliations or associations
between any member of the National Association of Securities Dealers and any of
the Company's officers, directors or 5% or greater security holders except as
otherwise disclosed in writing to Credit Suisse First Boston Corporation and
X.X. Xxxxxx Securities Inc. or set forth in Schedule III.
(r) Neither the Company nor any Subsidiary is an "investment company"
within the meaning of such term under the Investment Company Act of 1940 and the
rules and regulations of the Commission thereunder.
(s) The Company maintains a system of internal accounting controls
sufficient to provide reasonable assurances that (i) transactions are executed
in accordance with management's general or specific authorization; (ii)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to
maintain accountability for assets; (iii) access to assets is permitted only in
accordance with management's general or specific authorization; and (iv) the
recorded accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(t) The Company and each of its Subsidiaries carry, or are covered by,
insurance, including self insurance, in such amounts and covering such risks as
is adequate for the conduct of their respective businesses and the value of
their respective properties and as is customary for companies engaged in similar
industries.
(u) The Company is in compliance in all material respects with all
presently applicable provisions of the Employee Retirement Income Security Act
of 1974, as amended, including the regulations and published interpretations
thereunder ("ERISA"); no "reportable event" (as defined in ERISA) for which the
Company would have any liability has occurred and is continuing; the Company has
not incurred and does not expect to incur liability under (i) Title IV of ERISA
with respect to termination of, or withdrawal from, any "pension plan" or (ii)
Sections 412 or 4971 of the Internal Revenue Code of 1986, as amended, including
the regulations and published interpretations thereunder (the "Code"); and each
"pension plan" for which the Company would have any liability that is intended
to be qualified under Section 401(a) of the Code is so qualified in all material
respects and nothing has occurred, whether by action or by failure to act, which
would cause the loss of such qualification and where any such noncompliance,
"reportable event," liability or nonqualification, alone or in the aggregate,
would not have a material adverse effect on the Company and its subsidiaries
taken as a whole.
Any certificate signed by any officer of the Company and delivered to the
Representatives or counsel for the Underwriters in connection with the offering
of the Securities shall be deemed solely to be a representation and warranty by
the Company, as to matters covered thereby, to each Underwriter.
2. Purchase and Sale.
(a) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company agrees to sell to
each Underwriter, and each Underwriter agrees, severally and not jointly, to
purchase at the purchase price set forth on Schedule I, the principal amount of
Underwritten Securities set forth opposite such Underwriter's name in Schedule
II.
(b) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company hereby grants an
option to the several Underwriters to purchase, severally and not jointly, up to
the principal amount of Option Securities set forth on Schedule I or II at the
same purchase price per share as the Underwriters shall pay for the Underwritten
Securities. Said option may be exercised only to cover over-allotments in the
sale of the Underwritten Securities by the Underwriters. Said option may be
exercised in whole or in part at any time (but not more than once) on or before
the 30th day after the date of the Final Prospectus upon written or telegraphic
notice by the Representatives to the Company setting forth the principal amount
of the Option Securities as to which the several Underwriters are exercising the
option and the Settlement Date. Delivery of Option Securities, and payment
therefor, shall be made as provided in Section 3 hereof. The principal amount of
the Option Securities to be purchased by each Underwriter shall be the same
percentage of the total principal amount of the Option Securities to be
purchased by the several Underwriters as such Underwriter is purchasing of the
Underwritten Securities, subject to such adjustments as you in your absolute
discretion shall make.
3. Delivery and Payment. Delivery of and payment for the Underwritten Securities
and the Option Securities (if the option provided for in Section 2(b) hereof
shall have been exercised on or before the third Business Day prior to the
Closing Date) shall be made on the date and at the time specified in Schedule I
hereto (or at such time on such later date not more than three Business Days
after the foregoing date as the Representatives shall designate), which date and
time may be postponed by agreement among the Representatives and the Company or
as provided in Section 8 hereof (such date and time of delivery and payment for
the Securities being herein called the "Closing Date"). Delivery of the
Securities shall be made to the Representatives for the respective accounts of
the several Underwriters against payment by the several Underwriters through the
Representatives of the respective aggregate purchase prices of the Securities
being sold by the Company to or upon the order of the Company by wire transfer
payable in same-day funds to an account specified by the Company. Delivery of
the Underwritten Securities and the Option Securities shall be made through the
facilities of The Depository Trust Company unless the Representatives shall
otherwise instruct.
If the option provided for in Section 2(b) hereof is exercised after the third
Business Day prior to the Closing Date, the Company will deliver the Option
Securities (at the expense of the Company) to the Representatives on the date
specified by the Representatives (which shall be within three Business Days
after exercise of said option) for the respective accounts of the several
Underwriters, against payment by the several Underwriters through the
Representatives of the purchase price thereof to or upon the order of the
Company by wire transfer payable in same day funds to an account specified by
the Company. If settlement for the Option Securities occurs after the Closing
Date, the Company will deliver the Option Securities to the Representatives on
the Settlement Date for the Option Securities, and the obligation of the
Underwriters to purchase the Option Securities shall be conditioned upon receipt
of, supplemental opinions, certificates and letters confirming as of such date
the opinions, certificates and letters delivered on the Closing Date pursuant to
Section 5 hereof.
4. Agreements. The Company agrees with the several Underwriters that:
(a) The Company will use its reasonable best efforts to cause the
Registration Statement, if not effective at the Execution Time, and any
amendment thereto, to become effective. Prior to the termination of the offering
of the Securities, the Company will not file any amendment of the Registration
Statement or supplement (including the Final Prospectus or any Preliminary Final
Prospectus) to the Basic Prospectus or any Rule 462(b) Registration Statement
unless the Company has furnished you a copy for your review prior to filing and
will not file any such proposed amendment or supplement to which you reasonably
object in writing. Subject to the foregoing sentence, the Company will cause the
Final Prospectus, properly completed, and any supplement thereto to be filed
with the Commission pursuant to the applicable paragraph of Rule 424(b) within
the time period prescribed and will provide evidence satisfactory to the
Representatives of such timely filing. The Company will promptly advise the
Representatives (i) when the Registration Statement, if not effective at the
Execution Time, shall have become effective, (ii) when the Final Prospectus, and
any supplement thereto, shall have been filed with the Commission pursuant to
Rule 424(b) or when any Rule 462(b) Registration Statement shall have been filed
with the Commission, (iii) when, prior to termination of the offering of the
Securities, any amendment to the Registration Statement shall have been filed or
become effective, (iv) of any request by the Commission or its staff for any
amendment of the Registration Statement, or any Rule 462(b) Registration
Statement, or for any supplement to the Final Prospectus or of any additional
information, (v) of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose and (vi) of the receipt by the
Company of any notification with respect to the suspension of the qualification
of the Securities for sale in any jurisdiction or the initiation or threatening
of any proceeding for such purpose. The Company will use its reasonable efforts
to prevent the issuance of any such stop order or the suspension of any such
qualification and, if issued, to obtain as soon as possible the withdrawal
thereof.
(b) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event occurs as a result of which
the Final Prospectus as then supplemented would include any untrue statement of
a material fact or omit to state any material fact necessary to make the
statements therein in the light of the circumstances under which they were made
not misleading, or if it shall be necessary to amend the Registration Statement
or supplement the Final Prospectus to comply with the Act or the Exchange Act or
the respective rules thereunder, the Company promptly will (i) prepare and file
with the Commission, subject to the second sentence of paragraph (a) of this
Section 4, an amendment or supplement or, if appropriate, a filing under the
Exchange Act, which will correct such statement or omission or effect such
compliance and (ii) supply any supplemented Final Prospectus to you in such
quantities as you may reasonably request.
(c) As soon as practicable, the Company will make generally available to
its security holders and to the Representatives an earnings statement or
statements of the Company and its subsidiaries which will satisfy the provisions
of Section 11(a) of the Act and Rule 158 under the Act.
(d) The Company will furnish to the Representatives and counsel for the
Underwriters, without charge, copies of the Registration Statement (including
exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or
dealer may be required by the Act, as many copies
of any Preliminary Final Prospectus and the Final Prospectus and any supplement
thereto as the Representatives may reasonably request. The Company will pay the
expenses of printing or other production of all documents relating to the
offering.
(e) The Company will arrange, if necessary, for the qualification of the
Securities for sale under the laws of such jurisdictions as the Representatives
may designate, will maintain such qualifications in effect so long as required
for the distribution of the Securities and will pay any fee of the National
Association of Securities Dealers, Inc., in connection with its review of the
offering, provided that the Company will not be required to file a consent to
service of process in any state in which it is not qualified or for which
consent has not been given.
(f) The Company shall not invest, or otherwise use the proceeds received by
the Company from its sale of the Securities in such a manner as would require
the Company or any of the Subsidiaries to register as an investment company
under the Investment Company Act of 1940, as amended (the "1940 Act").
5. Conditions to the Obligations of the Underwriters. The obligations of the
Underwriters to purchase the Underwritten Securities and the Option Securities,
as the case may be, shall be subject to the accuracy of the representations and
warranties on the part of the Company contained herein as of the Execution Time,
the Closing Date and any Settlement Date pursuant to Section 3 hereof, to the
accuracy of the statements of the Company made in any certificates pursuant to
the provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the
Execution Time, unless the Representatives agree in writing to a later time, the
Registration Statement will become effective not later than (i) 6:00 PM New York
City time, on the date of determination of the public offering price, if such
determination occurred at or prior to 3:00 PM New York City time on such date or
(ii) 9:30 AM on the Business Day following the day on which the public offering
price was determined, if such determination occurred after 3:00 PM New York City
time on such date; if filing of the Final Prospectus, or any supplement thereto,
is required pursuant to Rule 424(b), the Final Prospectus, and any such
supplement, shall have been filed in the manner and within the time period
required by Rule 424(b); and no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted or threatened.
(b) The Company shall have furnished to the Representatives the opinion of
Akin Gump Xxxxxxx Xxxxx & Xxxx LLP, counsel for the Company, dated the Closing
Date, to the effect that:
(i) The Company is validly existing as a corporation in good standing
under the laws of the State of Texas, with corporate power and authority to own
or lease its properties and conduct its business as described in the Final
Prospectus; the outstanding shares of capital stock of each of the Subsidiaries
have been duly authorized and validly issued, are fully paid and non-assessable
and, to the best of such counsel's knowledge, except (A) as reflected in the
Company's financial statements, (B) as described in the Registration Statement
or (C) as set forth on Schedule III hereto or as disclosed in such counsel's
opinion are owned by the Company or a
Subsidiary; and, to such counsel's knowledge, except as noted in (A), (B) and
(C) above, the outstanding shares of capital stock of each of the Subsidiaries
are owned free and clear of all liens, encumbrances and security interests and
no options, warrants or other rights to purchase, agreements or other
obligations to issue, or other rights to convert any obligations into any shares
of capital stock or of ownership interests in the Subsidiaries are outstanding.
(ii) The Indenture and the Securities conform in all material respects
to the descriptions thereof contained in the Final Prospectus; and, to the
knowledge of such counsel, no preemptive rights of stockholders exist with
respect to any of the Securities of the issue and sale thereof.
(iii) Except as described in the Final Prospectus, to the knowledge of
such counsel, no holder of any securities of the Company or any other person has
the right, contractual or otherwise, which has not been satisfied or effectively
waived, to cause the Company to sell or otherwise issue to them, or to permit
them to underwrite the sale of, any of the Securities or the right to have any
Common Stock or other securities of the Company included in the Registration
Statement or the right, as a result of the filing of the Registration Statement,
to require registration under the Act of any shares of Common Stock or other
securities of the Company.
(iv) the Indenture has been duly authorized, executed and delivered,
has been duly qualified under the Trust Indenture Act, and constitutes a legal,
valid and binding instrument enforceable against the Company in accordance with
its terms and the Securities have been duly authorized and, when executed and
authenticated in accordance with the provisions of the Indenture and delivered
to and paid for by the Underwriters pursuant to this Agreement, will constitute
legal, valid and binding obligations of the Company entitled to the benefits of
the Indenture (subject, in respect to both the Indenture and the Securities, as
to enforcement of remedies, to applicable bankruptcy, reorganization,
insolvency, fraudulent conveyance, moratorium or other laws affecting creditors'
rights generally from time to time in effect);
(v) The Registration Statement has become effective under the Act and,
to the knowledge of such counsel, no stop order proceedings with respect thereto
have been instituted or are pending or threatened under the Act.
(vi) The Registration Statement, the Final Prospectus and each
amendment or supplement thereto and documents incorporated by reference therein
(each as amended to date) comply as to form in all material respects with the
requirements of the Act or the Exchange Act, as applicable and the applicable
rules and regulations thereunder (except that such counsel need express no
opinion as to the statistical information contained in the Final Prospectus or
financial statements, schedules and other financial information incorporated by
reference therein).
(vii) The statements under the captions "Business" and "Description of
the Notes" in the Final Prospectus, insofar as such statements constitute a
summary of documents referred to therein or matters of law, are accurate
summaries and fairly and correctly present the information called for with
respect to such documents and matters in all material respects.
(viii) To such counsel's knowledge, there are no contracts or
documents required to be filed as exhibits to the Registration Statement or
described in the Registration Statement or the
Final Prospectus (excluding any document incorporated therein by reference)
which are not so filed or described as required, and such contracts and
documents as are summarized in the Registration Statement or the Final
Prospectus (excluding any document incorporated therein by reference) are fairly
summarized in all material respects.
(ix) Except as set forth on Schedule III, to such counsel's knowledge,
there are no material legal proceedings pending or threatened against the
Company or any of the Subsidiaries which is of a character required to be
disclosed in the Final Prospectus and which has not been properly disclosed
therein.
(x) Neither the execution and delivery of the Indenture, the issue and
sale of the Securities nor the execution and delivery of this Agreement and the
consummation of the transactions herein contemplated conflict with or result in
a breach of any of the terms or provisions of, or constitute a default under,
(a) the Articles of Incorporation or (b) By-laws of the Company, or (c) to such
counsel's knowledge, any agreement or instrument to which the Company or any of
the Subsidiaries is a party or by which the Company or any of the Subsidiaries
may be bound (other than licenses or permits granted by the FCC, on which such
counsel need not express any opinion), or (d) will contravene any law, rule or
regulation of the United States or the State of Texas or the General Corporation
Law of the State of Delaware, or, to such counsel's knowledge, any order or
decree of any court or governmental agency or instrumentality, except, with
respect to clause (c) above, a conflict, breach or default which would not have
a materially adverse effect on the business or financial condition of the
Company and its subsidiaries taken as a whole.
(xi) This Agreement has been duly authorized, executed and delivered
by the Company.
(xii) No approval, consent, order, authorization, designation,
declaration or filing by or with any regulatory, administrative or other
governmental body having jurisdiction over the Company is necessary in
connection with the execution and delivery of this Agreement and the
consummation of the transactions herein contemplated (other than as may be
required by the NASD or NYSE or as required by State securities and Blue Sky
laws as to which such counsel need express no opinion) except such as have been
obtained or made, specifying the same.
(xiii) The Company is not, and will not become, as a result of the
consummation of the transactions contemplated by this Agreement, and application
of the net proceeds therefor as described in the Final Prospectus, required to
register as an investment company under the 1940 Act.
In rendering such opinion, such counsel may rely (A) as to matters governed by
the laws of states other than Texas or Federal laws on local counsel in such
jurisdictions, provided that in each case such counsel shall state that they
believe that they and the Underwriters are justified in relying on such other
counsel and (B) as to matters of fact, on certificates of responsible officers
of the Company and certificates or other written statements of officers or
departments of various jurisdictions having custody of documents respecting the
corporate existence or good standing of the Company and any Subsidiary. In
addition to the matters set forth above, such opinion shall also include a
statement to the effect that nothing has come to the attention of such counsel
which leads them to believe that the Registration Statement, as of the time it
became effective under the Act, the Final Prospectus or any amendment or
supplement thereto, on the date it was filed pursuant to Rule 424(b) and the
Registration Statement and the Final Prospectus, or any amendment or supplement
thereto, as of the Closing Date or any Settlement Date, as the case may be,
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading (except that such counsel need express no view as to matters
pertaining to the statistical information contained in the Final Prospectus or
financial statements, schedules and other financial information contained or
incorporated by reference in the Final Prospectus). With respect to such
statement, such counsel may state that their belief is based upon the procedures
set forth therein, but is without independent check and verification.
(c) The Underwriters shall have received on the Closing Date or any
Settlement Date, as the case may be, the opinion of Wiley, Rein & Fielding,
special FCC counsel to the Company, dated the Closing Date or any Settlement
Date, as the case may be, addressed to the Underwriters as is reasonably
acceptable to the Underwriters.
(d) The Representatives shall have received from Cravath, Swaine & Xxxxx,
counsel for the Underwriters, such opinion or opinions, dated the Closing Date
or any Settlement Date, as the case may be, with respect to the issuance and
sale of the Securities, the Registration Statement, the Final Prospectus
(together with any supplement thereto) and other related matters as the
Representatives may reasonably require, and the Company shall have furnished to
such counsel such documents as they request for the purpose of enabling them to
pass upon such matters.
(e) The Company shall have furnished to the Representatives a certificate
of the Company, signed by the Chief Executive Officer or the President and the
principal financial or accounting officer of the Company, in their capacity as
such, dated the Closing Date or any Settlement Date, as the case may be, to the
effect that the signers of such certificate have carefully examined the
Registration Statement, the Final Prospectus, any supplements to the Final
Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as of the Closing
Date or any Settlement Date, as the case may be, with the same effect as if made
on the Closing Date or any Settlement Date, as the case may be, and the Company
has complied with all the agreements and satisfied all the conditions on its
part to be performed or satisfied at or prior to the Closing Date or any
Settlement Date, as the case may be;
(ii) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or, to the Company's knowledge, threatened; and
(iii) since the date of the most recent financial statements included
in the Final Prospectus (exclusive of any supplement thereto), there has been no
material adverse change in the condition (financial or otherwise), prospects,
business or properties of the Company and its
subsidiaries, taken as a whole, whether or not arising from transactions in the
ordinary course of business, except as set forth in or contemplated in the Final
Prospectus (exclusive of any supplement thereto).
(f) At the Execution Time and at the Closing Date or any Settlement Date,
as the case may be, Ernst & Young LLP shall have furnished to the
Representatives letters dated as of the Execution Time and the Closing Date or
any Settlement Date, as the case may be, in form and substance satisfactory to
the Representatives.
(g) Except as agreed to by Credit Suisse First Boston Corporation and X.X.
Xxxxxx Securities Inc., subsequent to the Execution Time, there shall not have
been any decrease in the rating of any of the Company's debt securities by any
"nationally recognized statistical rating organization" (as defined for purpose
of Rule 436(g) under the Act) or any notice given of any intended or potential
decrease in any such rating or of a possible change in any such rating that does
not indicate the direction of the possible change.
(h) Prior to the Closing Date or any Settlement Date, as the case may be,
the Company shall have furnished to the Representatives such further
information, certificates and documents as the Representatives may reasonably
request.
If any of the conditions specified in this Section 5 shall not have been
fulfilled in all material respects when and as provided in this Agreement, or if
any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and counsel for the Underwriters, this
Agreement and all obligations of the Underwriters hereunder may be canceled at,
or at any time prior to, the Closing Date or any Settlement Date, as the case
may be, by the Representatives. Notice of such cancellation shall be given to
the Company in writing or by telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 5 shall be delivered at
the office of Cravath, Swaine & Xxxxx, counsel for the Underwriters, at
Worldwide Plaza, 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, xx the Closing Date.
6. Reimbursement of Underwriters' Expenses. If the sale of the Securities
provided for herein is not consummated because any condition to the obligations
of the Underwriters set forth in Section 5 hereof is not satisfied, because of
any termination pursuant to Section 9 hereof or because of any refusal,
inability or failure on the part of the Company to perform any agreement herein
or comply with any provision hereof other than by reason of a default by any of
the Underwriters, the Company will reimburse the Underwriters severally through
Credit Suisse First Boston Corporation and X.X. Xxxxxx Securities Inc. on demand
for all reasonable out-of-pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been incurred by them in connection
with the proposed purchase and sale of the Securities, but the Company shall not
be liable in any event to any of the Underwriters for damages on account of loss
of anticipated profits from the sale of the Securities.
7. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each Underwriter, the
directors, officers, employees and agents of each Underwriter and each person
who controls any Underwriter within the meaning of either the Act or the
Exchange Act against any and all losses, claims, damages or liabilities, joint
or several, to which they or any of them may become subject under the Act, the
Exchange Act or other Federal or state statutory law or regulation, at common
law or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in the Registration
Statement for the registration of the Securities as originally filed or in any
amendment thereof, or in the Basic Prospectus, any Preliminary Final Prospectus
or the Final Prospectus, or in any amendment thereof or supplement thereto, or
arise out of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading, and agrees to reimburse each such indemnified
party, as reasonably incurred, for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that with respect to any
untrue statement or omission of material fact made in any Preliminary Final
Prospectus, the indemnity agreement contained in this Section 7(a) shall not
inure to the benefit of any Underwriter from whom the person asserting any such
loss, claim, damage or liability purchased the securities concerned, to the
extent that any such loss, claim, damage or liability of such Underwriter occurs
under the circumstance where (w) the Company had previously furnished copies of
the Final Prospectus to the Representatives, (x) delivery of the Final
Prospectus was required by the Act to be made to such person, (y) the untrue
statement or alleged untrue statement or omission or alleged omission of a
material fact contained in the Preliminary Final Prospectus was corrected in the
Final Prospectus and (z) there was not sent or given to such person, at or prior
to the written confirmation of the sale of such securities to such person, a
copy of the Final Prospectus. This indemnity agreement will be in addition to
any liability which the Company may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold harmless the
Company, each of its directors, each of its officers who signs the Registration
Statement, and each person who controls the Company within the meaning of either
the Act or the Exchange Act, to the same extent as the foregoing indemnity from
the Company to each Underwriter, but only with reference to written information
relating to such Underwriter furnished to the Company by or on behalf of such
Underwriter through the Representatives specifically for inclusion in the
documents referred to in the foregoing indemnity. This indemnity agreement will
be in addition to any liability which any Underwriter may otherwise have. The
Company acknowledges that the statements set forth under the heading
"Underwriting" relating to concessions and reallowances and to stabilization, in
any Preliminary Final Prospectus or the Final Prospectus, constitute the only
information furnished in writing by or on behalf of the several Underwriters for
inclusion in the documents referred to in the foregoing indemnity.
(c) Promptly after receipt by an indemnified party under this Section 7 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 7, notify the indemnifying party in writing of the commencement thereof;
but the failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the prejudice by the
indemnifying party of substantial rights and defenses and (ii) will not, in any
event, relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided in paragraph (a) or (b)
above. The indemnifying party shall be entitled to appoint counsel of the
indemnifying party's choice at the indemnifying party's expense to represent the
indemnified party in any action for which indemnification is sought (in which
case the indemnifying party shall not thereafter be responsible for the fees and
expenses of any separate counsel retained by the indemnified party or parties
except as set forth below); provided, however, that such counsel shall be
reasonably satisfactory to the indemnified party. Notwithstanding the
indemnifying party's election to appoint counsel to represent the indemnified
party in an action, the indemnified parties shall have the right to employ one
separate counsel (and, if reasonably necessary, one additional local counsel),
and the indemnifying party shall bear the reasonable fees, costs and expenses of
such separate counsel if (i) the use of counsel chosen by the indemnifying party
to represent the indemnified party would present such counsel with a conflict of
interest, (ii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of the institution of such action or, (iii) the
indemnifying party shall authorize the indemnified party to employ separate
counsel at the expense of the indemnifying party. An indemnifying party will
not, without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any pending
or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b) of
this Section 7 is unavailable to or insufficient to hold harmless an indemnified
party for any reason, the Company and the Underwriters agree to contribute to
the aggregate losses, claims, damages and liabilities (including legal or other
expenses reasonably incurred in connection with investigating or defending same)
(collectively "Losses") to which the Company and one or more of the Underwriters
may be subject in such proportion as is appropriate to reflect the relative
benefits received by the Company and by the Underwriters from the offering of
the Securities; provided, however, that in no case shall any Underwriter (except
as may be provided in any agreement among underwriters relating to the offering
of the Securities) be responsible for any amount in excess of the underwriting
discount or commission applicable to the Securities purchased by such
Underwriter hereunder. If the allocation provided by the immediately preceding
sentence is unavailable for any reason, the Company and the Underwriters shall
contribute in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company and of the
Underwriters in connection with the statements or omissions which resulted in
such Losses as well as any other relevant equitable considerations. Benefits
received by the Company shall be deemed to be equal to the total net proceeds
from the offering (before deducting expenses), and benefits received by the
Underwriters shall be deemed to be equal to the total underwriting discounts and
commissions, in each case as set forth on the cover page of the Final
Prospectus. Relative fault shall be determined by reference to, among other
things, whether any untrue or any alleged untrue statement of a material fact or
the omission or alleged omission to state a material fact relates to information
provided by the Company on the one hand
or the Underwriters on the other, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The Company and the Underwriters agree that it
would not be just and equitable if contribution were determined by pro rata
allocation or any other method of allocation which does not take account of the
equitable considerations referred to above. Notwithstanding the provisions of
this paragraph (d), no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. For purposes of
this Section 7, each person who controls an Underwriter within the meaning of
either the Act or the Exchange Act and each director, officer, employee and
agent of an Underwriter shall have the same rights to contribution as such
Underwriter, and each person who controls the Company within the meaning of
either the Act or the Exchange Act, each officer of the Company who shall have
signed the Registration Statement and each director of the Company shall have
the same rights to contribution as the Company, subject in each case to the
applicable terms and conditions of this paragraph (d).
8. Default by an Underwriter. If any one or more Underwriters shall fail to
purchase and pay for any of the Securities agreed to be purchased by such
Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay within 24 hours for (in the respective proportions which the amount of
Securities set forth opposite their names in Schedule II hereto bears to the
aggregate amount of Securities set forth opposite the names of all the remaining
Underwriters) the Securities which the defaulting Underwriter or Underwriters
agreed but failed to purchase; provided, however, that in the event that the
aggregate amount of Securities which the defaulting Underwriter or Underwriters
agreed but failed to purchase shall exceed 10% of the aggregate amount of
Securities set forth in Schedule II hereto, the remaining Underwriters shall
have the right to purchase within 24 hours all, but shall not be under any
obligation to purchase any, of the Securities, and if such nondefaulting
Underwriters do not purchase all the Securities, this Agreement will terminate
without liability to any nondefaulting Underwriter or the Company. In the event
of a default by any Underwriter as set forth in this Section 8, the Closing Date
shall be postponed for such period, not exceeding five Business Days, as the
Representatives shall determine in order that the required changes in the
Registration Statement and the Final Prospectus or in any other documents or
arrangements may be effected. Nothing contained in this Agreement shall relieve
any defaulting Underwriter of its liability, if any, to the Company and any
nondefaulting Underwriter for damages occasioned by its default hereunder.
9. Termination. This Agreement may be terminated by you by notice to the Company
as follows:
(a) at any time after the Execution Time and prior to the Closing Date if
any of the following has occurred: (i) any material adverse change or any
development involving a prospective material adverse change in or affecting the
condition, financial or otherwise, of the Company and its subsidiaries taken as
a whole or the earnings, business affairs, management or business prospects of
the Company and its Subsidiaries taken as a whole, whether or not arising in the
ordinary course of business, (ii) any outbreak or escalation of hostilities or
other national or international calamity or crisis or change in economic or
political conditions if the effect of
such outbreak, escalation, calamity, crisis or change on the financial markets
of the United States would, in your reasonable judgment, make the offering or
delivery of the Securities impracticable, (iii) suspension of trading in
securities on the NYSE or limitation on prices (other than limitations on hours
or numbers of days of trading) for securities on the NYSE, (iv) the enactment,
publication, decree or other promulgation of any federal or state statute,
regulation, rule or order of any court or other governmental authority which in
your reasonable opinion materially and adversely affects or will materially or
adversely affect the business or operations of the Company and the Subsidiaries
taken as a whole, (v) declaration of a banking moratorium by either federal or
New York State authorities, (vi) a material disruption in commercial banking or
securities settlement or clearance services in the United States, if the effect
of such disruption is so material or adverse that it makes the offering or
delivery of the Securities on the terms and in the manner contemplated in the
Final Prospectus impracticable or (vii) the taking of any action by any federal,
state or local government or agency in respect of its monetary or fiscal affairs
which in your reasonable opinion has a material adverse effect on the securities
markets in the United States; or
(b) as provided in Sections 5 and 8 of this Agreement.
This Agreement also may be terminated by you, by notice to the Company, as to
any obligation of the Underwriters to purchase the Option Securities, upon the
occurrence at any time prior to a Settlement Date of any of the events described
in subparagraph (b) above or as provided in Sections 5 and 8 of this Agreement.
10. Representations and Indemnities to Survive. The respective agreements,
representations, warranties, indemnities and other statements of the Company or
its officers, and of the Underwriters set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any investigation
made by or on behalf of any Underwriter or the Company or any of the officers,
directors or controlling persons referred to in Section 7 hereof, and will
survive delivery of and payment for the Securities. The provisions of Sections 6
and 7 hereof shall survive the termination or cancellation of this Agreement.
11. Notices. All communications hereunder will be in writing and effective only
on receipt, and, if sent to the Representatives, will be mailed or delivered to
Credit Suisse First Boston Corporation, Eleven Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxx
Xxxx, XX 00000 and X.X. Xxxxxx Securities Inc., 000 Xxxx Xxxxxx, Xxxxx Xxxxx,
Xxx Xxxx, XX 00000, attention: Legal Department, attention of the general
counsel or, if sent to the Company, will be mailed or delivered to 000 Xxxx
Xxxxx Xxxx, Xxx Xxxxxxx, Xxxxx, 00000 attention: Xxxxxxx Xxxx, Executive Vice
President.
12. Successors. This Agreement will inure to the benefit of and be binding upon
the parties hereto and their respective successors and the officers and
directors and controlling persons referred to in Section 7 hereof, and no other
person will have any right or obligation hereunder. The term "successors" shall
not include any purchaser of the Securities merely because of such purchase.
13. Applicable Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York.
14. Counterparts. This Agreement may be signed in one or more counterparts, each
of which shall constitute an original and all of which together shall constitute
one and the same agreement.
15. Headings. The Section headings used herein are for convenience only and
shall not affect the construction hereof.
16. Definitions. The terms which follow, when used in this Agreement, shall have
the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended.
"Basic Prospectus" shall mean the prospectus referred to in paragraph 1(a)
above contained in the Registration Statement at the Effective Date including
any Preliminary Final Prospectus.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in New York City or Dallas, Texas.
"Commission" means the Securities and Exchange Commission.
"Effective Date" shall mean each date and time that the Registration
Statement, any post-effective amendment or amendments thereto and any Rule
462(b) Registration Statement became or become effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto.
"Final Prospectus" shall mean the prospectus supplement relating to the
Securities that is first filed pursuant to Rule 424(b) after the Execution Time
together with the Basic Prospectus.
"Preliminary Final Prospectus" shall mean any preliminary prospectus
supplement to the Basic Prospectus which describes the Securities and the
offering thereof and is used prior to filing of the Final Prospectus.
"Registration Statement" shall mean the registration statement referred to
in paragraph 1(a) above, including exhibits and financial statements, as amended
at the Execution Time (or, if not effective at the Execution Time, in the form
in which it shall become effective) and, in the event any post-effective
amendment thereto or any Rule 462(b) Registration Statement becomes effective
prior to the Closing Date (as hereinafter defined), shall also mean such
registration statement as so amended or such Rule 462(b) Registration Statement,
as the case may be. Such
term shall include any Rule 430A Information deemed to be included therein at
the Effective Date as provided by Rule 430A.
"Rule 415", "Rule 424", "Rule 430A" and "Rule 462" refer to such rules
under the Act.
"Rule 430A Information" shall mean information with respect to the
Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
"Rule 462(b) Registration Statement" shall mean a registration statement
and any amendments thereto filed pursuant to Rule 462(b) relating to the
offering covered by the initial registration statement.
"Rules and Regulations" means the rules and regulations of the Commission.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1934, as
amended.
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicate hereof, whereupon this
letter and your acceptance shall represent a binding agreement among the Company
and the several Underwriters.
Very truly yours,
Clear Channel Communications, Inc.
By: /s/ XXXXXXX X. XXXX
----------------------------------
Name: Xxxxxxx X. Xxxx
Title: Senior Vice President-Finance
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
Credit Suisse First Boston Corporation
X. X. Xxxxxx Securities Inc.
Banc of America Securities LLC
Barclays Capital Inc.
Fleet Securities, Inc.
UBS Warburg LLC
BNY Capital Markets, Inc.
Deutsche Bank Securities Inc.
Xxxxxxx Xxxxx Barney Inc.
SunTrust Capital Markets, Inc.
By: Credit Suisse First Boston Corporation
By: /s/ XXXXXXX X. XXXXX
--------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Managing Director
By: X.X. Xxxxxx Securities Inc.
By: /s/ XXXX XXXXXXX
--------------------------------------
Name: Xxxx Xxxxxxx
Title: Vice President
For themselves and the other
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement.
SCHEDULE I
Underwriting Agreement dated January 6, 2003
Registration Statement No. 333 76942
Representatives:
Credit Suisse First Boston Corporation
X.X. Xxxxxx Securities Inc.
Underwriters:
Credit Suisse First Boston Corporation
X. X. Xxxxxx Securities Inc.
Banc of America Securities LLC
Barclays Capital Inc.
Fleet Securities, Inc.
UBS Warburg LLC
BNY Capital Markets, Inc.
Deutsche Bank Securities Inc.
Xxxxxxx Xxxxx Barney Inc.
SunTrust Capital Markets, Inc.
Title, Purchase Price and Description of Securities:
Title: $300,000,000 4 5/8% Senior Notes due 2008 (the "2008 notes")
$500,000,000 5 3/4% Senior Notes due 2013 (the "2013 notes")
(collectively "the notes")
Principal Amount of Underwritten Securities: $800,000,000
Purchase Price (include accrued interest or amortization, if any): $298,044,000
for the $300,000,000 aggregate principal amount of the 2008 notes and
$493,470,000 for the $500,000,000 aggregate principal amount of the 2013 notes
Sinking fund provisions: None
Redemption provisions:
The 2008 notes and the 2013 notes are redeemable by the Company. The notes will
be redeemable as a whole at any time or in part from time to time, at the option
of the Company, at a redemption price equal to the greater of (i) 100% of the
principal amount of such notes or (ii)
the sum of the present values of the remaining scheduled payments of principal
and interest thereon from the redemption date to January 15, 2008 for the 2008
notes and January 15, 2013 for the 2013 notes, discounted to the redemption date
on a semiannual basis (assuming a 360 day year consisting of twelve 30 day
months) at the Treasury Rate plus 25 basis points in the case of the 2008 notes
and 30 basis points in the case of the 2013 notes plus, in either case, any
interest accrued but not paid to the date of redemption. Notice of any
redemption will be mailed at least 30 days but no more than 60 days before the
redemption date to each holder of the notes to be redeemed. Unless the Company
defaults in payment of the redemption price, on and after the redemption date
interest will cease to accrue on the notes or portions thereof called for
redemption. The notes will not be subject to any sinking fund provision.
"Treasury Rate" means, with respect to any redemption date for the notes, (i)
the yield, under the heading which represents the average for the immediately
preceding week, appearing in the most recently published statistical release
designated "H.15(519)" or any successor publication which is published weekly by
the Board of Governors of the Federal Reserve System and which establishes
yields on actively traded United States Treasury securities adjusted to constant
maturity under the caption "Treasury Constant Maturities," for the maturity
corresponding to the Comparable Treasury Issue (if no maturity is within three
months before or after the maturity date, yields for the two published
maturities most closely corresponding to the Comparable Treasury Issue shall be
determined and the Treasury Rate shall be interpolated or extrapolated from such
yields on a straight line basis, rounding to the nearest month) or (ii) if such
release (or any successor release) is not published during the week preceding
the calculation date or does not contain such yields, the rate per annum equal
to the semi annual equivalent yield maturity of the Comparable Treasury Issue,
calculated using a price for the Comparable Treasury Issue (expressed as a
percentage of its principal amount) equal to the Comparable Treasury Price for
such redemption date. The Treasury Rate shall be calculated on the third
Business Day preceding the redemption date.
"Comparable Treasury Issue" means the United States Treasury security selected
by an "Independent Investment Banker" as having a maturity comparable to the
remaining term of the Notes to be redeemed that would be utilized, at the time
of selection and in accordance with customary financial practice, in pricing new
issues of corporate debt securities of comparable maturity to the remaining term
of such notes.
"Independent Investment Banker" means one of the Reference Treasury Dealers
appointed by the Trustee after consultation with the Company.
"Comparable Treasury Price" means, with respect to any redemption date for the
notes, (i) the average of four Reference Treasury Dealer Quotations (as defined
below) for the redemption date, after excluding the highest and lowest such
Reference Treasury Dealer Quotations, or (ii) if the Trustee obtains fewer than
four such Reference Treasury Dealer Quotations, the average of all such
quotations.
"Reference Treasury Dealer" means each of Credit Suisse First Boston Corporation
and X.X. Xxxxxx Securities Inc. and two other primary U.S. Government securities
dealers in New York City (each, a "Primary Treasury Dealer") appointed by the
Trustee in consultation with the
Company; provided, however, that if any of the foregoing shall cease to be a
Primary Treasury Dealer, the Company shall substitute therefor another Primary
Treasury Dealer.
"Reference Treasury Dealer Quotations" means, with respect to each Reference
Treasury Dealer and any redemption date, the average, as determined by the
Trustee, of the bid (expressed in each case as a percentage of its principal
amount) quoted in writing to the Trustee by such Reference Treasury Dealer at
5:00 p.m. on the third Business Day preceding such redemption date.
Principal Amount of Option Securities: N/A
Other provisions: None
Closing Date, Time and Location: January 9, 2003 at 10:00 a.m. at Cravath,
Swaine & Xxxxx, Worldwide Plaza, 000 Xxxxxx Xxx., Xxx Xxxx, XX 00000
Type of Offering: Non-delayed
Overallotment Option: None
SCHEDULE II
PRINCIPAL AMOUNT OF PRINCIPAL AMOUNT OF
UNDERWRITERS 2008 NOTES 2013 NOTES
Credit Suisse First Boston Corporation $75,000,000 $125,000,000
X. X. Xxxxxx Securities Inc. 75,000,000 125,000,000
Banc of America Securities LLC 27,000,000 45,000,000
Barclays Capital Inc. 27,000,000 45,000,000
Fleet Securities, Inc. 27,000,000 45,000,000
UBS Warburg LLC 27,000,000 45,000,000
BNY Capital Markets, Inc. 10,500,000 17,500,000
Deutsche Bank Securities Inc. 10,500,000 17,500,000
Xxxxxxx Xxxxx Xxxxxx Inc. 10,500,000 17,500,000
SunTrust Capital Markets, Inc. 10,500,000 17,500,000
------------ ------------
Total $300,000,000 $500,000,000
============ ============
SCHEDULE III
DISCLOSURE ITEMS
1. Material Subsidiaries
A. Clear Channel Outdoor, Inc.
B. Clear Channel Broadcasting, Inc.
C. Clear Channel Broadcasting Licenses, Inc.
D. Clear Channel Holdings, Inc.
E. Jacor Communications Company
F. SFX Entertainment, Inc.
G. AMFM Operating Inc.
H. The Xxxxxxxx Group, Inc.
2. Liens, Encumbrances and other disclosure relating to the Company's
and its Subsidiary capital stock.
A. Under the Company's existing Amended and Restated Credit
Agreement, neither the Company nor its subsidiaries may
pledge any of the capital stock of the Subsidiaries.
B. In connection with the amendment of the Company's
existing credit facility and the adoption of the
Company's $3 billion credit facilities, the Company
pledged an intercompany note not to exceed amount
permitted under the Senior Indenture to AMFM Operating
Inc. or their respective subsidiaries relating to funds
advanced to such entities.
C. Under AMFM Operating Inc.'s public indebtedness, there
are restrictions and limitations on the sale of AMFM
Operating Inc.'s and its subsidiaries' capital stock..
3. NASD Affiliates
Xxxxxxxx X. Xxxxxxx, a director of the Company, is a senior
managing director of Bear, Xxxxxxx & Co., Inc., which is a member
of the NASD.
Xxxxxx X. Xxxxxx, Xx., a director of the Company, is a senior
managing director of Lazard Freres & Co., LLC, which is a member of
the NASD.
Xxxxx Xxxxx, a director of the Company, is an affiliate of Morgan,
Lewis, Xxxxxxx & Ahn, Inc., which is a member of the NASD.
4. SFX Entertainment, Inc. has certain earn out agreements not to
exceed 1% of the capital stock of SFX Entertainment.
5. The Company is among the defendants in a lawsuit filed on June 12,
2002 in the United States District Court for the Southern District
of Florida by Spanish Broadcasting System. The plaintiffs allege
that the company is in violation of Section One and Section Two of
the Xxxxxxx Antitrust Act as well as various claims such as unfair
trade practices and defamation, among other counts.
