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EXHIBIT 1.1
CLEAR CHANNEL COMMUNICATIONS, INC.
Debt Securities
Subscription Agreement
July 3, 2000
ABN AMRO Bank N.V.
Deutsche Bank AG London
Barclays Bank PLC
Credit Suisse First Boston (Europe) Limited
Xxxxxxx Xxxxx International
Salomon Brothers International Limited
Westdeutsche Landesbank Girozentrale
c/o ABN AMRO Bank N.V.
000 Xxxxxxxxxxx
Xxxxxx XX0X 0XX
Xxxxxx Xxxxxxx
Ladies and Gentlemen:
Clear Channel Communications, Inc., a Texas corporation (the
"Company"), proposes to issue and sell to the managers named in Schedule II
hereto (the "Managers" which term shall also include any manager substituted as
herein provided), for whom you are acting as representatives (the
"Representatives"), the principal amount of its debt securities identified in
Schedule I hereto (the "Securities"), to be issued under the Indenture, dated as
of October 1, 1997, as supplemented by the Seventh Supplemental Indenture to be
dated on or about July 7, 2000 (as so supplemented, the "Indenture"), in each
case, among the Company and The Bank of New York, as debt trustee (the
"Trustee"). If the firm or firms listed in Schedule II hereto include only the
firm or firms listed in Schedule I hereto, then the terms "Managers" and
"Representatives," as used herein shall each be deemed to refer to such firm or
firms.
The Company understands that the Managers propose to make an offering
of the Securities on the terms and in the manner set forth herein and agrees
that the Managers may resell, subject to the conditions set forth herein, all or
a portion of the
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Securities to purchasers ("Subsequent Purchasers") at any time after the date of
this Agreement. The Securities are to be offered and sold through the Managers
without being registered under the Securities Act of 1933, as amended, and the
rules and regulations of the Securities and Exchange Commission (the
"Commission") thereunder (collectively the "Securities Act"), in reliance upon
exemptions therefrom. Pursuant to the terms of the Securities and the Indenture,
investors that acquire Securities may only resell or otherwise transfer such
Securities if such Securities are hereafter registered under the Securities Act
or if an exemption from the registration requirements of the Securities Act is
available (including the exemption afforded by Rule 144A ("Rule 144A") or
Regulation S ("Regulation S") of the rules and regulations promulgated under the
Securities Act by the Commission).
The Company has prepared and will deliver to the Managers, on the date
hereof, copies of a final offering memorandum dated July 3, 2000 (the "Offering
Memorandum") used or to be used by the Managers in connection with their
solicitation of purchases of, or offering of, the Securities. The Company has
previously delivered to the Managers copies of a preliminary offering memorandum
dated June 15, 2000 (the "Preliminary Offering Memorandum").
All references in this Agreement to financial statements and schedules
and other information which is "contained," "included" or "stated" in the
Offering Memorandum (or other references of like import) shall be deemed to mean
and include all such financial statements and schedules and other information
which is incorporated by reference in the Offering Memorandum; and all
references in this Agreement to amendments or supplements to the Offering
Memorandum shall be deemed to mean and include the filing of any document under
the Securities Exchange Act of 1934 as amended, and the rules and regulations of
the Commission thereunder (the "Exchange Act") which is incorporated by
reference in the Offering Memorandum.
The holders of the Securities identified in Schedule I will be entitled
to the benefits of the registration rights agreement (the "Registration Rights
Agreement"), to be dated as of the Closing Date (as defined below) among the
Company and the Managers, pursuant to which the Company will agree to file, as
soon as practicable after the Closing Date but in any event within 150 days of
the Closing Date, a registration statement with the Commission registering the
Exchange Securities (as defined in the Registration Rights Agreement) under the
Securities Act.
The Company hereby agrees with the Managers as follows:
1. The Company agrees to issue and sell the Securities to the several
Managers as hereinafter provided, and each Manager, on the basis of the
representations and warranties herein contained, but subject to the conditions
hereinafter stated, agrees to
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purchase, severally and not jointly, from the Company the respective principal
amount of Securities set forth opposite such Manager's name in Schedule II
hereto at the purchase price of 99.077% of the principal amount thereof (which
shall equal the issue price of each Security of 99.627%, less a selling
concession of 0.30% and a combined management and underwriting commission of
0.25% of the principal amount of the Securities which may be divided among you
in such proportions as you may determine which is to be payable to the Managers
in connection with the offering and sale of the Securities) (the "Purchase
Price"), plus accrued interest, if any, from the date specified in Schedule I
hereto to the date of payment and delivery.
2. The Company understands that the several Managers intend (i) to make
an offering of their respective portions of the Securities and (ii) initially to
offer the Securities upon the terms set forth in the Offering Memorandum. In
connection with the offering and sale of the Securities, ABN AMRO Bank N.V. or
its affiliates may over-allot or effect transactions which stabilize or maintain
the market price of the Securities at levels above those which might otherwise
prevail in the open market. Such transactions may be effected in the
over-the-counter markets or otherwise. Such stabilizing, if commenced, may be
discontinued at any time.
3. Payment of the Purchase Price for the Securities shall be made by
wire transfer in immediately available funds to the account or accounts
specified by the Company to the Representatives (which account information shall
be provided no later than noon on the Business Day prior to the Closing Date (as
defined below)) at 9:00 A.M., London time, on July 7, 2000 at the offices of
Cravath, Swaine & Xxxxx, 00 Xxxx Xxxxxxx Xxxxxx, Xxxxxx XX0X 0XX (or at such
other time and place on the same or such other date, not later than the fifth
Business Day (as defined below) thereafter, as you and the Company may agree in
writing). As used herein, the term "Business Day" means any day on which the
Trans-European Automated Real-Time Gross Settlement Express Transfer (TARGET)
System is open and such day is not a day on which banks or foreign exchange
markets are permitted or required to be closed in London. The time and date of
such payment and delivery with respect to the Securities are referred to herein
as the "Closing Date".
Payment of the Purchase Price for the Securities shall be made (against
delivery in the case of (i)) to (i) the common depositary for Xxxxxx Guaranty
Trust Company of New York, Brussels office, as operator of the Euroclear System
("Euroclear") and Clearstream Banking, societe anonyme, Luxembourg
("Clearstream, Luxembourg") and (ii) the nominee of The Depository Trust Company
for the respective accounts of the several Managers of global notes (the "Global
Notes") representing the Securities, with any transfer taxes payable in
connection with the transfer to the Managers of the Securities duly paid by the
Company.
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4. The Company represents and warrants to each Manager that:
(a) assuming the Managers offer the Securities in the manner described
herein, the Company has not, directly or indirectly, solicited any offer to
buy or offered to sell, and each will not, directly or indirectly, solicit
any offer to buy or offer to sell, in the United States or to any United
States citizen or resident, any security which is or would be integrated
with the sale of the Securities in a manner that would require the
Securities to be registered under the Securities Act;
(b) the Preliminary Offering Memorandum as of its date did not contain,
and the Offering Memorandum at the Closing Date will not contain 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; provided, that this
representation, warranty and agreement shall not apply to statements in or
omissions from the Preliminary Offering Memorandum and the Offering
Memorandum made in reliance upon and in conformity with information
furnished to the Company in writing by or on behalf of any Manager with
respect to that Manager through ABN AMRO Bank N.V. or Deutsche Bank AG
London expressly for use in the Preliminary Offering Memorandum or the
Offering Memorandum, as the case may be;
(c) the documents incorporated by reference in the Preliminary Offering
Memorandum and in the Offering Memorandum, or portions thereof, to the
extent only a portion of a document is incorporated by reference in the
Preliminary Offering Memorandum or in the Offering Memorandum, when they
became effective or were filed with the Commission, as the case may be,
conformed in all material respects to the requirements of the Securities Act
or the Exchange Act, as applicable, and none of such documents contained an
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading; and any further documents so filed and incorporated by reference
in the Preliminary Offering Memorandum or in the Offering Memorandum, when
such documents become effective or are filed with the Commission, as the
case may be, will conform in all material respects to the requirements of
the Securities Act or the Exchange Act, as applicable, and 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,
in the light of the circumstances under which they were made, not
misleading;
(d) 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
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the Offering Memorandum; 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 Offering
Memorandum; 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
materially 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 Offering Memorandum, 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;
(e) 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;
(f) 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;
(g) the Registration Rights Agreement and the Indenture, upon due
execution by or on behalf of the Company, will constitute legal, valid and
binding obligations of the Company enforceable against the Company in
accordance with their respective terms;
(h) the Securities, upon due execution by the Company, authentication
by the Trustee in accordance with the provisions of the Indenture and
delivery to and payment for by the Managers pursuant to this Agreement, will
constitute legal, valid and binding obligations of the Company enforceable
against the Company in accordance with their terms, and will constitute
direct, unsecured obligations of the Company and will rank the same as all
other unsecured and unsubordinated debt of the Company;
(i) the information set forth under the caption "Capitalization" in the
Offering Memorandum is true and correct. The Securities conform in all
material respects with the statements concerning them in the Offering
Memorandum;
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(j) the Commission has not issued an order preventing or suspending the
proposed offering of the Securities nor instituted proceedings for that
purpose;
(k) the consolidated financial statements of the Company and its
subsidiaries, together with related notes and schedules incorporated by
reference in the Offering Memorandum 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 Offering Memorandum 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
Offering Memorandum 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;
(l) except for those license renewal applications of the Company or its
subsidiaries currently pending before the Federal Communications Commission
(the "FCC"), or as set forth in the Offering Memorandum or in Schedule III
hereto, there is no action or proceeding pending or, to the knowledge of the
Company, threatened against the Company or any of the Subsidiaries before
any court or administrative agency which could reasonably be likely to
result in any material adverse change in the earnings, business, management,
properties, assets, rights, operations, condition (financial or otherwise)
of the Company and of the Subsidiaries (taken as a whole);
(m) the Company and the Subsidiaries have good and marketable title to
all of the properties and assets reflected in the financial statements
herein above described (or as described in the Offering Memorandum) 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
Offering Memorandum 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 its 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 its Subsidiaries;
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(n) the Company and the Subsidiaries have filed all Federal, State and
foreign income tax returns which have been required to be filed and have
paid all taxes indicated by said returns and all assessments received by
them or any of them to the extent that such taxes have become due and are
not being contested in good faith. Except as set forth in Schedule III, the
Company has no knowledge of any material tax deficiency that has been or
might be asserted against the Company;
(o) since the last date as of which information is given in the
Offering Memorandum, 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 Offering Memorandum 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 Offering Memorandum, 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 Offering Memorandum,
as it may be amended or supplemented;
(p) no event has occurred which is or would (with the passage of time,
the giving of notice or the making of any determination) become an Event of
Default (as described in the Offering Memorandum) under the Securities;
(q) 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 agreement
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
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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);
(r) all payments by the Company in respect of the Securities may be
made without withholding or deduction for or on account of any taxes,
duties, assessments or charges of whatever nature imposed or levied by or on
behalf of the United States or any political subdivision thereof or any
authority therein or thereof having power to tax, unless such withholding or
deduction is required by law, in which event, the Company shall pay such
additional amounts as will result in the receipt by the holders of the
Securities of such amounts as would have been received by them if no such
withholding or deduction had been required, as provided in the Indenture;
(s) 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., the Luxembourg Stock
Exchange or the New York Stock Exchange or may be necessary to qualify the
Securities for a public offering by the Managers under State securities or
Blue Sky laws) has been obtained or made and is in full force and effect;
(t) 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);
(u) Ernst & Young LLP and PricewaterhouseCoopers LLP, both of whom have
certified certain of the financial statements incorporated by reference in
the Offering Memorandum, are to the knowledge of the Company independent
public accountants as required by the Securities Act;
(v) to the Company's knowledge, there are no affiliations or
associations between any member of the National Association of Securities
Dealers and any of
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the Company's officers, directors or 5% or greater security holders or set
forth in Schedule III;
(w) 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;
(x) 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;
(y) 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; and
(z) except as set forth in Schedule III, 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 except in each case as set forth in Schedule III or 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.
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Any certificate signed by any officer of the Company delivered to the
Managers or to counsel for the Managers in connection with the offering of the
Securities shall be deemed solely to be a representation and warranty by the
Company to each Manager as to the matters covered thereby.
5. Each of the Managers acknowledges that the Securities have not been
and will not be registered under the Securities Act and may not be offered or
sold within the United States or to, or for the account or benefit of, U.S.
persons except in accordance with Regulation S or pursuant to an exemption from
the registration requirements under the Securities Act. Terms used in this
paragraph have the meanings given to them by Regulation S.
Each Manager represents and warrants that it has not offered or sold,
and will not offer or sell, any Securities except (i) to those persons it
reasonably believes to be qualified institutional buyers (as defined in Rule
144A under the Act) and that, in connection with each such sale, it has taken or
will take reasonable steps to ensure that the purchaser of such Securities is
aware that such sale is being made in reliance on Rule 144A or (ii) in "offshore
transactions" (as defined in Regulation S) in accordance with the restrictions
set forth in the Offering Memorandum.
Each Manager represents and warrants that it has offered and sold the
Securities and agrees that it will offer and sell the Securities (i) as part of
their distribution at any time and (ii) otherwise, until 40 days after the later
of the commencement of the offering and the Closing Date, only in accordance
with Rule 903 of Regulation S. Accordingly, neither it, its affiliates nor any
persons acting on its or their behalf have engaged or will engage in any
directed selling efforts with respect to the Securities, and it and they have
complied and will comply with the offering restrictions requirement of
Regulation S. Each Manager agrees that, at or prior to confirmation of the sale
of Securities, it will have sent to each distributor, dealer or person receiving
a selling concession, fee or other remuneration that purchases Securities from
it during the restricted period a confirmation or notice to substantially the
following effect:
"The Securities covered hereby have not been registered under the U.S.
Securities Act of 1933, as amended (the "Securities Act"), and may not
be offered and sold within the United States or to, or for the account
or benefit of, U.S. persons (i) as part of their distribution at any
time or (ii) otherwise until 40 days after the later of the
commencement of the offering and the Closing Date, except in either
case, in accordance with Regulation S under the Securities Act. Terms
used above have the meanings given to them by Regulation S."
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Any Manager, with the prior written consent of ABN AMRO Bank N.V. and
Deutsche Bank AG London, may directly or through its agents or affiliates
arrange for the resale of the Securities in the United States to qualified
institutional buyers or to purchasers who such Manager reasonably believes is a
qualified institutional buyer pursuant to Rule 144A.
Each Manager further represents and warrants and agrees with the
Company that:
(i) it has not offered or sold and will not offer or sell any
Securities to persons in the United Kingdom prior to the expiry of the
period six months from the Closing Date except to persons whose ordinary
activities involve them in acquiring, holding, managing or disposing of
investments (as principal or agent) for the purposes of their business or
otherwise in circumstances which have not resulted and will not result in an
offer to the public in the United Kingdom within the meaning of the Public
Offers of Securities Regulations 1995;
(ii) it has complied and will comply with all applicable provisions of
the Financial Services Act of 1986 with respect to anything done by it in
relation to the Securities in, from or otherwise involving the United
Kingdom; and
(iii) it has only issued or passed on and will only issue or pass on in
the United Kingdom any document received by it in connection with the issue
of the Securities to a person who is of a kind described in Article 11(3) of
the Financial Services Act of 1986(Investment Advertisements) (Exemption)
Order 1996 (as amended) or is a person to whom such document may otherwise
lawfully be issued or passed on.
6. The Company covenants and agrees with each of the several Managers
as follows:
(a) to furnish each of the Managers as many copies of the Offering
Memorandum (including all amendments and supplements thereto) and documents
incorporated by reference therein as you may reasonably request so long as
delivery of an Offering Memorandum by a Manager or dealer may be required by
law or prior to the completion of the distribution of the Securities;
(b) from the date hereof and prior to the Closing Date, to furnish you
a copy of any proposed amendment or supplement to the Offering Memorandum,
for your review, and not to effect any such proposed amendment or supplement
to which you reasonably and timely object;
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(c) to file promptly, subject to the provisions of paragraph (b) above,
all reports and any definitive proxy or information statements required to
be filed by the Company with the Commission pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act during the period mentioned in
paragraph (d) below;
(d) the Company will comply with the Securities Act and the Exchange
Act so as to permit the completion of the distribution of the Securities
contemplated in this Agreement and in the Offering Memorandum;
(e) if, during such period after the first date of the offering of the
Securities as in the opinion of counsel for the Managers an offering
memorandum relating to the Securities is required by law to be delivered in
connection with sales of the Securities by a Manager or dealer, or at any
time prior to the completion of the distribution of the Securities (in the
reasonable view of ABN AMRO Bank N.V. and Deutsche Bank AG London), any
event shall occur as a result of which it is necessary to amend or
supplement the Offering Memorandum in order to make the statements therein,
in the light of the circumstances existing when the Offering Memorandum is
delivered to a purchaser (or, in the case of certain jurisdictions where the
Offering Memorandum is not required to be delivered to a purchaser, when the
Securities are sold), not misleading, or if it is necessary to amend or
supplement the Offering Memorandum to comply with law, forthwith to prepare
and furnish, at the expense of the Company, to the Managers to which
Securities may have been sold by you on behalf of the Managers, such
amendments or supplements to the Offering Memorandum as may be necessary so
that the statements in the Offering Memorandum as so amended or supplemented
will not, in light of the circumstances existing when the Offering
Memorandum is delivered to a purchaser (or, in the case of certain
jurisdictions where the Offering Memorandum is not required to be delivered
to a purchaser, when the Securities are sold), be misleading or so that the
Offering Memorandum will comply with law;
(f) to use the net proceeds received by the Company from the sale of
the Securities pursuant to this Agreement in the manner specified in the
Offering Memorandum under "Use of Proceeds";
(g) so long as the Securities are outstanding, to furnish to you upon
request copies of all reports or other communications (financial or other)
furnished to holders of Securities and copies of any reports and financial
statements furnished to or filed with the Commission or any national
securities exchange;
(h) other than the offer and sale of the Securities hereunder, the
Company agrees that they will not and will cause their respective affiliates
not to make any
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offer or sale of securities of the Company of any class if, as a result of
the doctrine of "integration" referred to in Rule 502 of Regulation D under
the Securities Act, such offer or sale could be deemed to render invalid
(for the purpose of (i) the sale of the Securities by the Company to the
Managers, (ii) the resale of the Securities by the Managers to Subsequent
Purchasers or (iii) the resale of the Securities by such Subsequent
Purchasers to others) the exemption from the registration requirements of
the Securities Act provided by Section 4(2) thereof or by Rule 144A or by
Regulation S thereunder or otherwise;
(i) the Company agrees that, in order to render the Securities eligible
for resale pursuant to Rule 144A, while any of the Securities remain
outstanding, it will make available, upon request, to any holder of
Securities or prospective purchasers of Securities the information specified
in Rule 144A(d)(4) for so long as such information is required to be
furnished by Rule 144A, unless the Company furnishes information to the
Commission pursuant to Section 13 or 15(d) of the Exchange Act (such
information, whether made available to holders or prospective purchasers or
furnished to the Commission, is hereinafter referred to as "Additional
Information");
(j) until the expiration of two years after the original issuance of
the Securities, the Company will not, and will cause their respective
"affiliates" (as such term is defined in Rule 144(a)(1) under the Securities
Act) not to, resell any Securities which are "restricted securities" (as
such term is defined under Rule 144(a)(3) under the Securities Act) that
have been reacquired by any of them and shall immediately upon any purchase
of any such Securities submit such Securities to the Trustee for
cancellation;
(k) the Company shall take all reasonable action necessary to enable
Standard & Poor's Corporation and Xxxxx'x Investors Service, Inc. to provide
their respective credit ratings of the Securities;
(l) the Company will use all reasonable efforts in cooperation with the
Managers to permit the Securities to be eligible for clearance and
settlement through Euroclear, Clearstream, Luxembourg and DTC;
(m) each certificate for a Security to be sold under Rule 144A will
bear the legend contained in "Notices to Investors" in the Offering
Memorandum for the time period and upon the other terms stated in the
Offering Memorandum;
(n) during the period beginning on the date hereof and continuing to
and including the Business Day following the Closing Date, not to offer,
sell, contract to sell or otherwise dispose of any debt securities of or
guaranteed by the
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Company which are substantially similar to the Securities without prior
written consent of the Representatives;
(o) the Company shall use all reasonable efforts to procure the listing
of the Securities on the Luxembourg Stock Exchange and to maintain such
listing until none of the Securities are outstanding; provided, however,
that, if it is impractical or unduly burdensome to maintain such listing,
the Company shall use all reasonable efforts to procure and maintain as
aforesaid a listing of or quotation of the Securities on such other
securities or stock exchange or exchanges as it may (with the approval of
ABN AMRO Bank N.V. and Deutsche Bank AG London) decide; and
(p) whether or not the transactions contemplated in this Agreement are
consummated or this Agreement is terminated, to pay or cause to be paid all
costs and expenses incident to the performance of its obligations hereunder,
including without limiting the generality of the foregoing, all costs and
expenses (i) incident to the preparation, issuance, execution,
authentication and delivery of the Securities, including any expenses of the
Trustee, (ii) incident to the preparation, printing, filing and distribution
of the Offering Memorandum (including all exhibits, amendments and
supplements thereto), (iii) in connection with the listing of the Securities
on any securities or stock exchange, (iv) in connection with the printing
(including word processing and duplication costs) and delivery of this
Agreement, the Indenture, the Registration Rights Agreement and the
furnishing to the Managers and dealers of copies of the Offering Memorandum,
including mailing and shipping, as herein provided and (v) payable to rating
agencies in connection with the rating of the Securities, it being
understood that the Company shall not be responsible for the fees and
expenses of counsel to the Managers.
7. The several obligations of the Managers hereunder shall be subject
to the following conditions:
(a) the representations and warranties of the Company contained herein
are true and correct on and as of the Closing Date as if made on and as of
the Closing Date and the Company shall have complied with all agreements and
all conditions on their part to be performed or satisfied hereunder at or
prior to the Closing Date;
(b) unless otherwise agreed by the Representatives, subsequent to the
execution and delivery of this Agreement and prior to the Closing Date,
other than as may have existed on the date hereof, there shall not have
occurred any downgrading, nor shall any notice have been given of (i) any
downgrading, (ii) any intended or potential downgrading or (iii) any review
or possible change that does not indicate an improvement, in the rating
accorded any securities of or
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guaranteed by the Company by any "nationally recognized statistical rating
organization", as such term is defined for purposes of Rule 436(g)(2) under
the Securities Act;
(c) since the respective dates as of which information is given in the
Offering Memorandum there shall not have been any material change in the
capital stock or long-term debt of the Company or any of its subsidiaries,
or 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) otherwise than as
set forth or contemplated in the Offering Memorandum, the effect of which in
the judgment of the Representatives makes it impracticable or inadvisable to
proceed with the offering or the delivery of the Securities on the terms and
in the manner contemplated in the Offering Memorandum;
(d) the Representatives shall have received on and as of the Closing
Date a certificate of a managing director or an executive officer of the
Company with specific knowledge about the Company's financial matters,
satisfactory to you to the effect set forth in subsections (a) and (c) of
this Section;
(e) the Company shall have furnished to you a written opinion of Akin,
Gump, Strauss, Xxxxx & Xxxx, L.L.P., dated the Closing Date, in form and
substance satisfactory to you;
(f) on the date hereof and on the Closing Date, Ernst & Young LLP and
PricewaterhouseCoopers LLP shall have furnished to you letters, dated such
dates, in form and substance satisfactory to you, containing statements and
information of the type customarily included in accountants "comfort
letters" to the Managers with respect to the financial statements and
certain financial information contained or incorporated by reference in the
Offering Memorandum;
(g) you shall have received on and as of the Closing Date an opinion of
Cravath, Swaine & Xxxxx, U.S. counsel to the Managers, with respect to the
validity of this Agreement, the Indenture, the Securities, the Registration
Rights Agreement, the Offering Memorandum and other related matters as the
Representatives may reasonably request, and such counsel shall have received
such papers and information as they may reasonably request to enable them to
pass upon such matters;
(h) on the Closing Date, the Securities shall have been approved for
listing on the Luxembourg Stock Exchange, subject only to official notice of
issuance;
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(i) the Company shall have duly authorized, executed and delivered the
Registration Rights Agreement and the Indenture to the Managers in a form
and substance reasonably satisfactory to the Representatives and counsel to
the Managers; and
(j) on or prior to the Closing Date, the Company shall have furnished
to the Representatives such further certificates and documents as the
Representatives shall reasonably request.
8. (a) The Company agrees to indemnify and hold harmless each Manager
and each person, if any, who controls any Manager within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act, from and
against (i) any and all losses, claims, damages, liabilities and expenses
(including, without limitation, the reasonable legal fees and other expenses
incurred in connection with any suit, action or proceeding or any claim
asserted) arising out of or based upon any untrue statement or alleged untrue
statement of a material fact contained in the Preliminary Offering Memorandum or
the Offering Memorandum (as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto), or arising out of or based
upon any omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
(ii) any and all losses, claims, damages, liabilities 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 of any claim whatsoever arising out of or
based upon any such untrue statement or omission, or any such alleged untrue
statement or omission; provided that any such settlement is effected with the
written consent of the Company; and (iii) any and all expenses whatsoever, as
incurred (including the fees and disbursements of counsel chosen by ABN AMRO
Bank N.V. and Deutsche Bank AG London to the extent permitted by law),
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 arising out of or 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 clauses (i)
or (ii) above; except insofar as such losses, claims, damages, liabilities or
expenses are arising out of or based upon any untrue statement or omission or
alleged untrue statement or omission made in reliance upon and in conformity
with information relating to any Manager furnished to the Company in writing by
any Manager through ABN AMRO Bank N.V. and Deutsche Bank AG London expressly for
use therein; provided, however, that with respect to any untrue statement or
omission of material fact made in any Preliminary Offering Memorandum, the
indemnity agreement contained in this Section 8(a) shall not inure to the
benefit of any Manager from whom the person asserting any such loss, claim,
damage or liability purchased the securities concerned, to the extent that any
such loss, claim,
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damage or liability of such Manager occurs under the circumstance where (w) the
Company had previously furnished copies of the Final Offering Memorandum to the
Representatives, (x) delivery of the Final Offering Memorandum was required 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
Offering Memorandum was corrected in the Final Offering Memorandum 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 Offering
Memorandum. This indemnity agreement will be in addition to any liability which
the Company may otherwise have.
(b) Each Manager agrees, severally and not jointly, to indemnify and
hold harmless the Company and its directors and officers and each person who
controls the Company within the meaning of Section 15 of the Securities Act and
Section 20 of the Exchange Act, to the same extent as the indemnity from the
Company to each Manager set forth in clauses (i), (ii) and (iii) of paragraph
(a) of this Section 8, but only with respect to untrue statements or omissions,
or alleged untrue statements or omissions, made in the Preliminary Offering
Memorandum or the Offering Memorandum in reliance upon and in conformity with
written information furnished to the Company by any Manager relating to any
Manager through ABN AMRO Bank N.V. and Deutsche Bank AG London expressly for use
in the Preliminary Offering Memorandum or the Offering Memorandum, as the case
may be.
(c) Promptly after receipt by an indemnified party under this Section 8
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 8, notify the indemnifying party in writing of the commencement thereof;
but the failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the 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
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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.
If the indemnification provided for in paragraphs (a) and (b) of this
Section 8 is unavailable to an Indemnified Person or insufficient in respect of
any losses, claims, damages, liabilities or expenses referred to therein, then
each Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Managers on the other
hand from the offering of the Securities or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company on the one hand and the
Managers on the other hand in connection with the statements or omissions that
resulted in such losses, claims, damages, liabilities or expenses, as well as
any other relevant equitable considerations. The relative benefits received by
the Company on the one hand and the Managers on the other hand shall be deemed
to be in the same respective proportions as the net proceeds from the offering
of such Securities (net of underwriting discounts and commissions but before
deducting expenses) received by the Company and the total underwriting discounts
and the commissions received by the Managers bear to the aggregate offering
price of the Securities. The relative fault of the Company on the one hand and
the Managers on the other shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Managers and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company and the Managers agree that it would not be just and
equitable if contribution pursuant to this Section 8 were determined by pro rata
allocation (even if the Managers were treated as one entity for such purpose) or
by any other method of allocation that does not take account of the equitable
considerations referred to in the
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immediately preceding paragraph. The amount paid or payable by an Indemnified
Person as a result of the losses, claims, damages and liabilities referred to in
the immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such Indemnified Person in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 8, in no event
shall a Manager be required to contribute any amount in excess of the amount by
which the total fees and commissions received by it in respect of the Securities
purchased by it exceeds the amount of any damages that such Manager has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Managers' obligations to contribute pursuant
to this Section 8 are several in proportion to the respective principal amount
of the Securities set forth opposite their names in Schedule II hereto, and not
joint.
The remedies provided for in this Section 8 are not exclusive and shall
not limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
The indemnity and contribution agreements contained in this Section 8
and the representations and warranties of the Company set forth in this
Agreement shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on behalf
of any Manager or any person controlling any Manager or by or on behalf of the
Company or their respective officers or directors or any other person
controlling the Company and (iii) acceptance of and payment for any of the
Securities.
9. Notwithstanding anything herein contained, this Agreement may be
terminated in the absolute discretion of the Representatives, by notice given to
the Company, if after the execution and delivery of this Agreement and prior to
the Closing Date (i) trading generally shall have been suspended or materially
limited on or by, as the case may be, the New York Stock Exchange (other than
limitations on hours or the number of days trading) or (ii) trading of any
securities of or guaranteed by the Company shall have been suspended on any
exchange or in any over-the-counter market or (iii) a general moratorium on
commercial banking activities in London shall have been declared by appropriate
authorities or a general moratorium on commercial banking activities in New York
shall have been declared by either Federal or New York State authorities or (iv)
there shall have occurred any outbreak or escalation of hostilities or any
change in financial markets or any calamity or crisis that, in the judgment of
ABN AMRO Bank N.V. and Deutsche Bank AG London, is material and adverse and
which, in the judgment of ABN AMRO Bank N.V. and Deutsche Bank AG London, makes
it impracticable to
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offer and deliver the Securities or (v) there has been in the opinion of ABN
AMRO Bank N.V. and Deutsche Bank AG London such a change in the national or
international financial, political or economic conditions or currency exchange
rates or exchange controls as would in their view be likely to materially and
adversely affect the financial markets.
If this Agreement is terminated, such termination shall be without
liability of any party to any other party except as provided in Section 11
hereof, and provided further that Sections 4 and 8 shall survive such
termination and remain in full force and effect.
10. If, on the Closing Date, any one or more of the Managers shall fail
or refuse to purchase Securities which it or they have agreed to purchase under
this Agreement, and the aggregate principal amount of Securities which such
defaulting Manager or Managers agreed but failed or refused to purchase is not
more than one-tenth of the aggregate principal amount of the Securities, the
other Managers shall be obligated severally in the proportions that the
principal amount of Securities set forth opposite their respective names in
Schedule II hereto bears to the aggregate principal amount of Securities set
forth opposite the names of all such non-defaulting Managers, or in such other
proportions as the Representatives may specify, to purchase the Securities which
such defaulting Manager or Managers agreed but failed or refused to purchase on
such date; provided that in no event shall the principal amount of Securities
that any Manager has agreed to purchase pursuant to Section 1 be increased
pursuant to this Section 9 by an amount in excess of one-tenth of such principal
amount of Securities without the written consent of such Manager. If, on the
Closing Date, any Manager or Managers shall fail or refuse to purchase
Securities and the aggregate principal amount of Securities with respect to
which such default occurs is more than one-tenth of the aggregate principal
amount of Securities to be purchased, and arrangements satisfactory to you and
the Company for the purchase of such Securities are not made within 24 hours
after such default, this Agreement shall terminate without liability on the part
of any non-defaulting Manager or the Company. In any such case either you or the
Company shall have the right to postpone the Closing Date, but in no event for
longer than seven days, in order that the required changes, if any, in the
Offering Memorandum or in any other documents or arrangements may be effected.
Any action taken under this paragraph shall not relieve any defaulting Manager
from liability in respect of any default of such Manager under this Agreement.
11. If this Agreement shall be terminated by the Managers, or any of
them pursuant to Section 9 or because of any failure or refusal on the part of
the Company to comply with the terms or to fulfill any of the conditions of this
Agreement, or if for any reason the Company shall be unable to perform its
obligations under this Agreement or any condition of the Managers' obligations
cannot be fulfilled, the Company agrees to
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reimburse the Managers or such Managers as have so terminated this Agreement
with respect to themselves, severally, for all out-of-pocket expenses (including
the fees and expenses of their counsel) reasonably incurred by such Managers in
connection with this Agreement or the offering of the Securities, but the
Company shall not be liable in any event to any of the Managers for damages on
account of loss of anticipated profits from the sale of the Securities.
12. This Agreement shall inure to the benefit of and be binding upon
the Company, the Managers and any Indemnified Persons referred to herein and
their respective successors and assigns. Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any other person, firm or
corporation any legal or equitable right, remedy or claim under or in respect of
this Agreement or any provision herein contained. No purchaser of Securities
from any Manager shall be deemed to be a successor or assign by reason merely of
such purchase.
13. Any action by the Managers hereunder may be taken by you jointly or
by ABN AMRO Bank N.V. and Deutsche Bank AG London alone on behalf of the
Managers, and any such action taken by you jointly or by ABN AMRO Bank N.V. and
Deutsche Bank AG London alone shall be binding upon the Managers. 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 Managers shall be given at the address set
forth in Schedule I hereto. Notices to the Company shall be given to Clear
Channel Communications, Inc., 000 Xxxx Xxxxx Xxxx, Xxx Xxxxxxx, XX 00000,
Attention Xxxxxxx Xxxx.
14. The Company (i) agrees that any legal suit, action or proceeding
brought by any party to enforce any rights under or with respect to this
Agreement or any other document or the transactions contemplated hereby or
thereby may be instituted in any state or federal court in The City of New York,
State of New York, U.S.A., (ii) irrevocably waives to the fullest extent
permitted by law any objection which it may now or hereafter have to the laying
of venue of any such suit, action or proceeding, (iii) irrevocably waives to the
fullest extent permitted by law any claim that and agrees not to claim or plead
in any court that any such action, suit or proceeding brought in such court has
been brought in an inconvenient forum and (iv) irrevocably submits to the
non-exclusive jurisdiction of any such court in any such suit, action or
proceeding or for recognition and enforcement of any judgment in respect
thereof.
15. If pursuant to a judgment or order being made or registered against
the Company, any payment under or in connection with this Agreement to a Manager
is made or satisfied in a currency (the "Judgment Currency") other than in euro
then, to the extent that the payment (when converted into euro at the rate of
exchange on the date of payment or, if it is not practicable for such Manager to
purchase euro with the Judgment
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Currency on the date of payment, at the rate of exchange as soon thereafter as
it is practicable for it to do so) actually received by such Manager falls short
of the amount due under the terms of this Agreement, the Company shall, to the
extent permitted by law, as a separate and independent obligation, indemnify and
hold harmless such Manager against the amount of such shortfall and such
indemnity shall continue in full force and effect notwithstanding any such
judgment or order as aforesaid. For the purpose of this Section, "rate of
exchange" means the rate at which the Manager is able on the relevant date to
purchase euro with the Judgment Currency and shall take into account any premium
and other costs of exchange.
16. This Agreement may be signed in counterparts, each of which shall
be an original and all of which together shall constitute one and the same
instrument.
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This Agreement shall be governed by and construed in accordance with the laws of
the State of New York, without giving effect to the conflicts of laws provisions
thereof.
Very truly yours,
CLEAR CHANNEL COMMUNICATIONS, INC.
By: /s/ XXXXXXX X. XXXX
---------------------------------
Xxxxxxx X. Xxxx
Senior Vice President -- Finance
Accepted: July 3, 2000
CONFIRMED AND ACCEPTED,
ABN AMRO Bank N.V.
Deutsche Bank AG London
Barclays Bank PLC
Credit Suisse First Boston (Europe) Limited
Xxxxxxx Xxxxx International
Salomon Brothers International Limited
Westdeutsche Landesbank Girozentrale
By: ABN AMRO Bank N.V.
By
-------------------------------
Authorized Signatory
By: Deutsche Bank AG London
By
-------------------------------
Authorized Signatory
By
-------------------------------
Authorized Signatory
For themselves and the other Managers
named in Schedule II hereto.
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