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EXHIBIT 1.1
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XXXXXXXX COMMUNICATIONS GROUP, INC.
(a Delaware corporation)
[ ]% Senior Notes due 200_
PURCHASE AGREEMENT
Dated: [ ], 1999
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TABLE OF CONTENTS
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PURCHASE AGREEMENT
SECTION 1. Representations and Warranties by the Company.....................................2
(a) Compliance with Registration Requirements.....................................2
(b) Good Standing of the Company and Significant
Subsidiaries..................................................................3
(c) Capitalization................................................................4
(d) Authorization of the Notes....................................................4
(e) Authorization of the Indenture................................................4
(f) Description of the Notes and the Indenture....................................4
(g) Authorization of Agreement....................................................5
(h) Absence of Defaults and Conflicts.............................................5
(i) Registration Rights...........................................................5
(j) No Material Adverse Change in Business........................................6
(k) Financial Statements..........................................................6
(l) Independent Accountants.......................................................6
(m) Title to Property.............................................................6
(n) Insurance.....................................................................7
(o) Possession of Intellectual Property...........................................7
(p) Absence of Proceedings........................................................7
(q) Absence of Further Requirements...............................................7
(r) Absence of Further Required Disclosure........................................7
(s) Employee Benefits Matters.....................................................7
(t) Possession of Licenses and Permits............................................8
(u) Absence of Further Transactions...............................................8
(v) Accurate Books and Records....................................................8
(w) Compliance with Agreements and Law............................................9
(x) Environmental Laws............................................................9
(y) Investment Company Act.......................................................10
(z) Transactions.................................................................10
SECTION 2. Sale and Delivery to Underwriters; Closing.......................................10
(a) Notes........................................................................10
(b) Payment......................................................................10
(c) Denominations; Registration..................................................11
SECTION 3. Covenants of the Company.........................................................11
(a) Compliance with Securities Regulations and Commission
Requests.....................................................................11
(b) Filing of Amendments.........................................................12
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(c) Delivery of Registration Statements..........................................12
(d) Delivery of Prospectuses.....................................................12
(e) Continued Compliance with Securities Laws....................................12
(f) Blue Sky Qualifications......................................................13
(g) Rule 158.....................................................................13
(h) Use of Proceeds..............................................................13
(i) Restriction on Sale of Securities............................................13
SECTION 4. Payment of Expenses..............................................................14
(a) Expenses.........................................................................14
(b) Termination of Agreement.....................................................14
SECTION 5. Conditions of Underwriters' Obligations..........................................15
(a) Effectiveness of Registration Statement......................................15
(b) Opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx..............................15
(c) Opinion of Xxxxxxx xxx Xxxxx.................................................19
(d) Opinion of Counsel for Underwriters..........................................21
(e) Officers' Certificate........................................................22
(f) Accountant's Comfort Letter..................................................23
(g) Bring-down Comfort Letter....................................................23
(h) Maintenance of Rating........................................................23
(i) Additional Documents.........................................................24
(j) Termination of Agreement.....................................................24
SECTION 6. Indemnification..................................................................24
(a) Indemnification of Underwriters..............................................24
(b) Indemnification of Company, Directors, Officers and
Employees....................................................................26
(c) Actions against Parties; Notification........................................26
SECTION 7. Contribution.....................................................................28
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery..............................................................................29
SECTION 9. Termination of Agreement.........................................................29
(a) Termination; General.........................................................29
(b) Liabilities..................................................................30
SECTION 10. Default by One or More of the Underwriters......................................30
SECTION 11. Notices.........................................................................31
SECTION 12. Parties.........................................................................31
SECTION 13. Governing Law and Time..........................................................31
SECTION 14. Effect of Headings..............................................................31
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XXXXXXXX COMMUNICATIONS GROUP, INC.
(a Delaware corporation)
$[ ]
[ ]% Senior Notes due 200_
PURCHASE AGREEMENT
[ ], 1999
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxxx Brothers Inc.
Xxxxxxx Xxxxx Xxxxxx Inc.
as Representatives of the several Underwriters
x/x Xxxxxxx Xxxxx & Xx.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
Xxxxxxxx Communications Group, Inc., a Delaware corporation (the
"COMPANY"), confirms its agreement with Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated ("XXXXXXX XXXXX") and each of the other
Underwriters named in Schedule A hereto (collectively, the "UNDERWRITERS",
which term shall also include any underwriter substituted as hereinafter
provided in Section 10 hereof), for whom Xxxxxxx Xxxxx, Xxxxxx Brothers Inc.
and Xxxxxxx Xxxxx Barney Inc. are acting as representatives (in such capacity,
the "REPRESENTATIVES"), with respect to the issue and sale by the Company and
the purchase by the Underwriters, acting severally and not jointly, of the
respective principal amounts set forth in said Schedule A of $[ ]
aggregate principal amount of the Company's [ ]% Senior Notes due 200_ (the
"NOTES").
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The Notes are to be issued pursuant to an indenture dated as of [ ], 1999 (the
"INDENTURE") between the Company and [ ], as trustee (the "TRUSTEE").
The Company understands that the Underwriters propose to make a public
offering of the Notes as soon as the Representatives deem advisable after this
Agreement has been executed and delivered and the Indenture has been qualified
under the Trust Indenture Act of 1939, as amended (the "1939 ACT").
It is understood that as of the Closing Date (as defined below), the
Company will consummate a series of transactions pursuant to which (i) the
Company will sell and issue [ ] shares of the Company's Class A Common Stock,
par value $0.01 per share (the "COMMON STOCK," and together with the [ ] shares
of the Company's Common Stock subject to an option granted to certain
underwriters pursuant to the Equity Underwriting Agreement (as defined below),
the "STOCK") pursuant to an underwriting agreement (the "EQUITY UNDERWRITING
AGREEMENT") of even date herewith, (ii) the Company will have issued a $[ ]
million intercompany note to The Xxxxxxxx Companies, Inc. and (iii) the Company
will have entered into a strategic alliance (the "STRATEGIC ALLIANCE") with SBC
Communications Inc. ("SBC") and in connection therewith will sell shares of the
Common Stock to SBC pursuant to a Securities Purchase Agreement dated February
8, 1999 ( the "SECURITIES PURCHASE AGREEMENT") (all such transactions, as more
fully described in the Prospectus (as defined below), shall collectively be
referred to herein as the "TRANSACTIONS"). The Transactions shall be deemed to
take place simultaneously on the Closing Date and are contingent upon the
consummation of one another.
SECTION 1. Representations and Warranties by the Company. The Company
represents, warrants and agrees that:
(a) Compliance with Registration Requirements. A registration
statement on Form S-1 with respect to the Notes has (i) been prepared by the
Company in conformity in all material respects with the requirements of the
Securities Act of 1933, as amended (the "1933 ACT"), and the rules and
regulations (the "1933 ACT RULES AND REGULATIONS") of the Securities and
Exchange Commission (the "COMMISSION") thereunder, (ii) been filed with the
Commission under the 1933 Act and (iii) become effective under the 1933 Act.
Copies of such registration statement and each of the amendments thereto have
been delivered by the Company to you. As used in this Agreement, "EFFECTIVE
TIME" means the date and the time as of which such registration statement, or
the most recent post-effective amendment thereto, if any, was declared
effective by the Commission; "EFFECTIVE DATE" means the date of the Effective
Time; "PRELIMINARY PROSPECTUS" means each prospectus included in such
registration statement, or
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amendments thereof, before it became effective under the 1933 Act and any
prospectus filed with the Commission by the Company with the consent of the
Representatives pursuant to Rule 424(a) of the 1933 Act Rules and Regulations;
"REGISTRATION STATEMENT" means such registration statement, as amended at the
Effective Time, including all information contained in the final prospectus, if
any, filed with the Commission pursuant to Rule 424(b) of the 1933 Act Rules and
Regulations and deemed to be a part of the registration statement as of the
Effective Time pursuant to Rule 430A of the 1933 Act Rules and Regulations
("RULE 430A"); and "PROSPECTUS" means the prospectus used to confirm sales of
the Notes. If the Company has filed an abbreviated registration statement to
register additional Notes pursuant to Rule 462(b) under the 1933 Act (the "RULE
462 REGISTRATION STATEMENT"), then any reference herein to the term
"REGISTRATION STATEMENT" shall be deemed to include such Rule 462 Registration
Statement. To the best of the Company's knowledge, the Commission has not issued
any order preventing or suspending the use of any Preliminary Prospectus.
The Registration Statement conforms in all material respects, and the
Prospectus and any further amendments or supplements to the Registration
Statement or the Prospectus will, when they become effective or are filed with
the Commission, as the case may be, conform in all material respects to the
requirements of the 1933 Act and the 1933 Act Rules and Regulations as well as
with the 1939 Act and the rules and regulations of the Commission under the
1939 Act (the "1939 ACT REGULATIONS") and do not and will not, as of the
applicable effective date (as to the Registration Statement and any amendment
thereto) and as of the applicable filing date (as to the Prospectus and any
amendment or supplement thereto) contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading; provided that no representation or
warranty is made as to information contained in or omitted from the
Registration Statement or the Prospectus in reliance upon and in conformity
with written information furnished to the Company through the Representatives
by or on behalf of any Underwriter specifically for inclusion therein.
(b) Good Standing of the Company and Significant Subsidiaries. The
Company and each of its significant subsidiaries (as defined in Rule 1-02 of
Regulation S-X under the 0000 Xxx) (each, a "SIGNIFICANT SUBSIDIARY" and
collectively, "SIGNIFICANT SUBSIDIARIES"), which are listed on Schedule C
hereto, have been duly incorporated and are validly existing as corporations in
good standing under the laws of their respective jurisdictions of
incorporation, are duly qualified to do business and are in good standing as
foreign corporations in each jurisdiction in which their respective ownership
or lease of property or the conduct of their respective businesses requires
such qualification, except where failure to have such qualifications would not,
singly or in the aggregate, have a material
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adverse effect on the consolidated financial position, results of operation,
business or prospects of the Company and its subsidiaries, taken as a whole,
and have all power and authority necessary to own or hold their respective
properties and to conduct the businesses in which they are engaged.
(c) Capitalization. The Company has an authorized capitalization as
set forth in the Prospectus and all of the issued shares of capital stock of
the Company have been duly authorized and validly issued, are fully paid and
non-assessable and conform to the description thereof contained in the
Prospectus; and all of the issued shares of capital stock of each Significant
Subsidiary have been duly authorized and validly issued and are fully paid and
non-assessable and (except for directors' qualifying shares) are owned directly
or indirectly by the Company, free and clear of all liens, encumbrances,
equities or claims.
(d) Authorization of the Notes. The Notes have been duly authorized
and, at the Closing Time (defined below), will have been duly executed by the
Company and, when authenticated and issued in the manner provided for in the
Indenture and delivered to the Trustee against payment of the purchase price
therefor as provided in this Agreement, will constitute valid and binding
obligations of the Company, enforceable against the Company in accordance with
their terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar laws affecting enforcement of
creditors' rights generally or except as enforcement thereof is subject to
general principles of equity (regardless of whether enforcement is considered
in a proceeding in equity or at law), and will be in the form contemplated by,
and entitled to the benefits of, the Indenture.
(e) Authorization of the Indenture. The Indenture has been duly
authorized by the Company and duly qualified under the 1939 Act and, when duly
executed and delivered by the Company and the Trustee, will constitute a valid
and binding agreement of the Company, enforceable against the Company in
accordance with its terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or similar laws affecting
enforcement of creditors' rights generally and except as enforcement thereof is
subject to general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law).
(f) Description of the Notes and the Indenture. The Notes and the
Indenture will conform in all material respects to the respective statements
relating thereto contained in the Prospectus and will be in substantially the
respective forms filed as exhibits to the Registration Statement.
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(g) Authorization of Agreement. This Agreement has been duly
authorized, executed and delivered by the Company.
(h) Absence of Defaults and Conflicts. The execution, delivery and
performance of this Agreement, the Indenture, the Notes and each of the other
documents to be entered into in connection with the Transactions by the Company
and the consummation of the transactions contemplated hereby and thereby will
not conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the Company or
any of its Significant Subsidiaries is a party or by which the Company or any
of its Significant Subsidiaries is bound or to which any of the property or
assets of the Company or any of its Significant Subsidiaries is subject, other
than such conflicts, agreements, breaches, violations or defaults which, singly
or in the aggregate, would not have a material adverse effect on the
consolidated financial position, results of operations, business or prospects
of the Company and its subsidiaries, taken as a whole, nor will such actions
result in any violation of the provisions of the charter or by-laws of the
Company or any of its Significant Subsidiaries or any statute or any order,
rule or regulation known to the Company of any court or governmental agency or
body having jurisdiction over the Company or any of its Significant
Subsidiaries or any of their properties or assets; and except for the
registration of the Stock and the Notes under the 1933 Act and such consents,
approvals, authorizations, registrations or qualifications as may be required
under the Securities Exchange Act of 1934, as amended (the "1934 ACT"), the
1933 Act, the 1939 Act, applicable state securities laws and securities laws of
foreign jurisdictions in connection with the purchase and distribution of the
Notes by the Underwriters and the purchase and distribution of the Stock by the
underwriters named in the Equity Underwriting Agreement, no consent, approval,
authorization or order of, or filing or registration with, any such court or
governmental agency or body is required for the execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby.
(i) Registration Rights. Except as described in the Prospectus, there
are no contracts, agreements or understandings between the Company and any
person granting such person the right to require the Company to file a
registration statement under the 1933 Act with respect to any securities of the
Company owned or to be owned by such person or to require the Company to
include any securities of the Company in the securities registered pursuant to
the Registration Statement.
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(j) No Material Adverse Change in Business. Neither the Company nor
any of its Significant Subsidiaries has sustained, since the respective dates
as of which information is given in the Prospectus, any loss or interference
with its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental
action, order or decree that has resulted in, or is reasonably likely to result
in, a material adverse change in the consolidated financial position, results
of operations, business or prospects of the Company and its subsidiaries, taken
as a whole, otherwise than as set forth or contemplated in the Prospectus; and,
since such date, there has not 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, or any development involving a prospective material adverse
change, in or affecting the consolidated financial position, results of
operations, business or prospects of the Company and its subsidiaries, taken as
a whole, otherwise than as set forth or contemplated in the Prospectus.
(k) Financial Statements. The financial statements (including the
related notes and supporting schedules) filed as part of the Registration
Statement or included in the Prospectus present fairly, in all material
respects, the financial condition and results of operations of the entities
purported to be shown thereby, at the dates and for the periods indicated, and
have been prepared in conformity with generally accepted accounting principles
applied on a consistent basis throughout the periods involved, except as may be
indicated in the notes thereto.
(l) Independent Accountants. Ernst & Young, who have certified certain
financial statements of the Company, whose report appears in the Prospectus and
who have delivered one of the initial letters referred to in Section 5(f)
hereof, are independent public accountants as required by the 1933 Act and the
1933 Act Rules and Regulations; and Deloitte & Touche, whose report appears in
the Prospectus and who have delivered one of the initial letters referred to in
Section 5(f) hereof, were independent accountants as required by the 1933 Act
and the 1933 Act Rules and Regulations during the periods covered by the
financial statements on which they reported.
(m) Title to Property. The Company and each of its Significant
Subsidiaries have good title to all real property and good title to all
personal property owned by them, in each case free and clear of all liens,
encumbrances and defects, except such as are described in the Prospectus or
such as do not materially affect the value of such property and do not
materially interfere with the conduct of business of the Company and its
subsidiaries, taken as a whole; and all assets held under lease by the Company
and its Significant Subsidiaries are held by them under valid, subsisting and
enforceable leases, with such exceptions as are not
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material and do not interfere with the conduct of business of the Company and
its subsidiaries, taken as a whole.
(n) Insurance. The Company and each of its Significant Subsidiaries
carry, or are covered by, insurance in such amounts and covering such risks as
the Company believes is adequate for the conduct of their respective businesses
and the value of their respective properties and as the Company believes is
customary for companies engaged in similar businesses in similar industries.
(o) Possession of Intellectual Property. The Company and each of its
Significant Subsidiaries own or possess, or can acquire on reasonable terms,
adequate rights to use all material patents, patent applications, trademarks,
service marks, trade names, copyrights and licenses necessary for the conduct
of their respective businesses and have no reason to believe that the conduct
of their respective businesses will conflict with, and have not received any
notice of any claim of conflict with, any such rights of others which, singly
or in the aggregate, in the judgment of the Company, is reasonably likely to
result in any material adverse change in the consolidated financial position,
results of operations, business or prospects of the Company and its
subsidiaries, taken as a whole.
(p) Absence of Proceedings. Except as described in the Prospectus,
there are no legal or governmental proceedings pending to which the Company or
any of its Significant Subsidiaries is a party or of which any property or
assets of the Company or any of its Significant Subsidiaries is the subject
which, if determined adversely to the Company or any of its Significant
Subsidiaries, might have a material adverse effect on the consolidated
financial position, results of operations, business or prospects of the Company
and its subsidiaries, taken as a whole; and to the best of the Company's
knowledge, no such proceedings are threatened or contemplated by governmental
authorities or threatened by others.
(q) Absence of Further Requirements. There are no contracts or other
documents which are required to be described in the Prospectus or filed as
exhibits to the Registration Statement by the 1933 Act or by the 1933 Act Rules
and Regulations which have not been described in the Prospectus or filed as
exhibits to the Registration Statement.
(r) Absence of Further Required Disclosure. No business or related
party transaction exists which is required by Item 404 of Regulation S-K to be
described in the Prospectus which is not so described.
(s) Employee Benefits Matters. 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
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and published interpretations thereunder ("ERISA"); no "REPORTABLE EVENT" (as
defined in ERISA) has occurred with respect to any "PENSION PLAN" (as defined
in ERISA) for which the Company would have any liability; 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.
(t) Possession of Licenses and Permits. The Company has filed all
material federal, state and local income and franchise tax returns required to
be filed through the date hereof and has paid all taxes due thereon, other than
those filings or payments being contested in good faith, and the Company has
not received notice that any tax deficiency has been determined adversely to
the Company or any of its Significant Subsidiaries which has had or is
reasonably likely to have a material adverse effect on the consolidated
financial position, results of operations, business or prospects of the Company
and its subsidiaries, taken as a whole.
(u) Absence of Further Transactions. Since the date as of which
information is given in the Prospectus through the date hereof, and except as
may otherwise be disclosed in the Prospectus or with respect to the subsequent
issuance of shares of Common Stock, if any, pursuant to employee or director
benefit plans, the Company has not (i) issued or granted any securities, (ii)
incurred any liability or obligation, direct or contingent, other than
liabilities and obligations which were incurred in the ordinary course of
business, (iii) entered into any transaction not in the ordinary course of
business, except, in case of (ii) and (iii), for such liabilities, obligations
or transactions that have not had or are not reasonably expected to have, a
material adverse effect on the consolidated financial conditions, results of
operations, business or prospects of the Company and its subsidiaries, taken as
a whole or (iv) declared or paid any dividend on its capital stock.
(v) Accurate Books and Records. The Company (i) makes and keeps
accurate books and records and (ii) maintains internal accounting controls
which provide reasonable assurance that (A) transactions are executed in
accordance with management's authorization, (B) transactions are recorded as
necessary to permit preparation of its financial statements and to maintain
accountability for its assets, (C) access to its assets is permitted only in
accordance with management's
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authorization and (D) the reported accountability for its assets is compared
with existing assets at reasonable intervals.
(w) Compliance with Agreements and Law. Neither the Company nor any of
its Significant Subsidiaries (i) is in violation of its charter or by-laws,
(ii) is in default in any material respect, and no event has occurred which,
with notice or lapse of time or both, would constitute such a default, in the
due performance or observance of any term, covenant or condition contained in
any material indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which it is a party or by which it is bound or to
which any of its properties or assets is subject or (iii) is in violation in
any material respect of any law, ordinance, governmental rule, regulation or
court decree to which it or its property or assets may be subject or has failed
to obtain any material license, permit, certificate, franchise or other
governmental authorization or permit necessary to the ownership of its property
or to the conduct of its business except, in case of (ii) and (iii), for such
defaults, violations, or failures to obtain such authorizations or permits that
have not had or are not reasonably expected to have, a material adverse effect
on the consolidated financial condition, results or operations, business or
prospects of the Company and its subsidiaries, taken as a whole.
(x) Environmental Laws. There has been no storage, disposal,
generation, manufacture, refinement, transportation, handling or treatment of
toxic wastes, medical wastes, hazardous wastes or hazardous substances by the
Company or any of its Significant Subsidiaries (or, to the knowledge of the
Company, any of their predecessors in interest) at, upon or from any of the
property now or previously owned or leased by the Company or its Significant
Subsidiaries in violation of any applicable law, ordinance, rule, regulation,
order, judgment, decree or permit or which would require remedial action under
any applicable law, ordinance, rule, regulation, order, judgment, decree or
permit, except for any violation or remedial action which would not have, or
could not be reasonably likely to have, singularly or in the aggregate with all
such violations and remedial actions, a material adverse effect on the
consolidated financial position, results of operations, business or prospects
of the Company and its subsidiaries, taken as a whole; there has been no
material spill, discharge, leak, emission, injection, escape, dumping or
release of any kind onto such property or into the environment surrounding such
property of any toxic wastes, medical wastes, solid wastes, hazardous wastes or
hazardous substances due to or caused by the Company or any of its Significant
Subsidiaries or with respect to which the Company or any of its Significant
Subsidiaries have knowledge, except for any such spill, discharge, leak,
emission, injection, escape, dumping or release which would not have or would
not be reasonably likely to have, singularly or in the aggregate with all such
spills, discharges, leaks, emissions, injections, escapes, dumpings and
releases, a material adverse effect on the consolidated financial
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position, results of operations, business or prospects of the Company and its
subsidiaries, taken as a whole; and the terms "HAZARDOUS WASTES", "TOXIC
WASTES", "HAZARDOUS SUBSTANCES" and "MEDICAL WASTES" shall have the meanings
specified in any applicable local, state, federal and foreign laws or
regulations with respect to environmental protection.
(y) Investment Company Act. Neither the Company nor any subsidiary is,
or, as of the Closing Date after giving effect to the Transactions and the
application of the net proceeds therefrom as described in the Prospectus, will
be, an "investment company" as defined in the Investment Company Act of 1940,
as amended.
(z) Transactions. On or prior to the Closing Date, each of the
documents to be entered into in connection with the Transactions (other than
this Agreement) will have been duly authorized, executed and delivered by the
Company in substantially the form previously provided to the Underwriters and
will conform to the descriptions thereof in the Prospectus.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Notes. On the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the Company
agrees to sell to each Underwriter, severally and not jointly, and each
Underwriter, severally and not jointly, agrees to purchase from the Company, at
the price set forth in Schedule B, the aggregate principal amount of Notes set
forth in Schedule A opposite the name of such Underwriter, plus any additional
principal amount of Notes which such Underwriter may become obligated to
purchase pursuant to the provisions of Section 10 hereof.
(b) Payment. Payment of the purchase price for, and delivery of
certificates for, the Notes shall be made at the offices of Xxxxx Xxxx &
Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other
place as shall be agreed upon by the Representatives and the Company, at 10:00
A.M. (Eastern time) on the fourth full business day after the date hereof
(unless postponed in accordance with the provisions of Section 10), or such
other time as shall be agreed upon by the Representatives and the Company (such
time and date of payment and delivery being herein called "CLOSING TIME").
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery
to the Representatives for the respective accounts of the Underwriters of
certificates for the Notes to be purchased by them. It is understood that each
Underwriter has authorized the Representatives, for its account, to accept
delivery of, receipt for,
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and make payment of the purchase price for, the Notes which it has agreed to
purchase. Xxxxxxx Xxxxx, individually and not as representative of the
Underwriters, may (but shall not be obligated to) make payment of the purchase
price for the Notes to be purchased by any Underwriter whose funds have not
been received by the Closing Time, but such payment shall not relieve such
Underwriter from its obligations hereunder.
(c) Denominations; Registration. Certificates for the Notes shall be
in such denominations ($1,000 or integral multiples thereof) and registered in
such names as the Representatives may request in writing at least one full
business day before the Closing Time. The Notes, which may be in temporary
form, will be made available for examination and packaging by the
Representatives in the City of New York not later than 10:00 A.M. (Eastern
time) on the business day prior to the Closing Time.
SECTION 3. Covenants of the Company. The Company covenants with each
Underwriter as follows:
(a) Compliance with Securities Regulations and Commission Requests.
The Company, subject to Section 3(b), will comply with the requirements of Rule
430A and will notify the Representatives immediately, and confirm the notice in
writing, (i) when any post-effective amendment to the Registration Statement
shall become effective, or any supplement to the Prospectus or any amended
Prospectus shall have been filed and (ii) of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration Statement or of
any order preventing or suspending the use of any preliminary prospectus, or of
the suspension of the qualification of the Notes for offering or sale in any
jurisdiction, or of the initiation or threatening of any proceedings for any of
such purposes. The Company will promptly effect the filings necessary, if any,
pursuant to Rule 424(b) and will take such steps as it deems necessary to
ascertain promptly whether the form of any such prospectus was received for
filing by the Commission and, in the event that it was not, it will promptly
file such prospectus. If any stop order is issued, the Company will make every
reasonable effort to obtain the lifting thereof.
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(b) Filing of Amendments. The Company will give the Representatives
notice of its intention to file or prepare any amendment to the Registration
Statement (including any filing under Rule 462(b)) or any amendment, supplement
or revision to either the prospectus included in the Registration Statement at
the time it became effective or to the Prospectus, will furnish the
Representatives with copies of any such documents and will obtain the consent
of the Representatives to the filing, which consent shall not be unreasonably
withheld.
(c) Delivery of Registration Statements. The Company has furnished or
will deliver to the Representatives and counsel for the Underwriters, without
charge, conformed copies of the Registration Statement as originally filed and
of each amendment thereto (including exhibits filed therewith), and will also
deliver to the Representatives, without charge, a conformed copy of the
Registration Statement as originally filed and of each amendment thereto
(without exhibits) for each of the Underwriters. The copies of the Registration
Statement and each amendment thereto furnished to the Underwriters will be
identical to the electronically transmitted copies thereof filed with the
Commission pursuant to the Electronic Data Gathering, Analysis and Retrieval
system ("XXXXX"), except to the extent permitted by Regulation S-T.
(d) Delivery of Prospectuses. The Company has delivered to each
Underwriter, without charge, as many copies of each preliminary prospectus as
such Underwriter reasonably requested, and the Company hereby consents to the
use of such copies for purposes permitted by the 1933 Act. The Company will
furnish to each Underwriter, without charge, during the period when the
Prospectus is required to be delivered under the 1933 Act or the Securities
Exchange Act of 1934 (the "1934 ACT"), such number of copies of the Prospectus
(as amended or supplemented) as such Underwriter may reasonably request. The
Prospectus and any amendments or supplements thereto furnished to the
Underwriters will be identical to the electronically transmitted copies thereof
filed with the Commission pursuant to XXXXX, except to the extent permitted by
Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company will comply
with the 1933 Act and the 1933 Rules and Regulations and the 1939 Act and the
1939 Act Regulations so as to permit the completion of the distribution of the
Notes as contemplated in this Agreement and in the Prospectus. If at any time
when a prospectus is required by the 1933 Act to be delivered in connection
with sales of the Notes, any event shall occur or condition shall exist as a
result of which it is necessary, in the opinion of counsel for the Underwriters
or for the Company, to amend the Registration Statement or amend or supplement
the Prospectus in order that the Prospectus will not include any untrue
statements of a
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material fact or omit to state a material fact necessary in order to make the
statements therein not misleading in the light of the circumstances existing at
the time they were made, or if it shall be necessary, in the opinion of such
counsel, at any such time to amend the Registration Statement or amend or
supplement the Prospectus in order to comply with the requirements of the 1933
Act or the 1933 Rules and Regulations, the Company will promptly prepare and
file with the Commission, subject to Section 3(b), such amendment or supplement
as may be necessary to correct such statement or omission or to make the
Registration Statement or the Prospectus comply with such requirements, and the
Company will furnish to the Underwriters such number of copies of such
amendment or supplement as the Underwriters may reasonably request.
(f) Blue Sky Qualifications. The Company will use its best efforts, in
cooperation with the Underwriters, to qualify the Notes for offering and sale
under the applicable securities laws of such states and other jurisdictions as
the Representatives may reasonably designate and to maintain such
qualifications in effect for such period of time that is necessary to complete
the distribution of the Notes; provided, however, that the Company shall not be
obligated to file any general consent to service of process or to qualify as a
foreign corporation or as a dealer in securities in any jurisdiction in which
it is not so qualified or to subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so subject.
(g) Rule 158. The Company will make generally available to its
securityholders as soon as practicable an earnings statement (which need not be
audited) for the purposes of, and to provide the benefits contemplated by, the
last paragraph of Section 11(a) of the 1933 Act.
(h) Use of Proceeds. The Company will use the net proceeds received by
it from the sale of the Notes in the manner specified in the Prospectus under
"USE OF PROCEEDS".
(i) Restriction on Sale of Securities. During a period of 180 days
from the date of the Prospectus, the Company will not, without the prior
written consent of Xxxxxxx Xxxxx on behalf of the Underwriters, directly or
indirectly, offer, pledge, sell, contract to sell, sell any option or contract
to purchase, purchase any option or contract to sell, grant any option, right
or warrant for the sale of, lend or otherwise dispose of or transfer, any debt
securities, or any securities convertible into or exercisable or exchangeable
for debt securities, or file a registration statement under the 1933 Act with
respect to the foregoing.
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SECTION 4. Payment of Expenses. (a) Expenses. The Company will pay all
expenses incident to (i) the preparation, printing and filing of the
Registration Statement (including financial statements and exhibits) as
originally filed and of each amendment thereto, (ii) the preparation, printing
and delivery to the Underwriters of this Agreement, any Agreement among
Underwriters, the Indenture and such other documents as may be required in
connection with the offering, purchase, sale, issuance or delivery of the
Notes, (iii) the preparation, issuance and delivery of the certificates for the
Notes to the Underwriters, (iv) the fees and disbursements of the Company's
counsel and accountants (v) the qualification of the Notes under securities
laws in accordance with the provisions of Section 3(f) hereof, including filing
fees and the reasonable fees (not in excess in the aggregate of $10,000) and
disbursements of counsel for the Underwriters in connection therewith and in
connection with the preparation of the Blue Sky Memorandum and any supplement
thereto, (vi) the printing and delivery to the Underwriters of copies of each
preliminary prospectus, the Prospectus and any amendments or supplements
thereto, (vii) the costs and expenses of the Company relating to investor
presentations on any "ROAD SHOW" undertaken in connection with the marketing of
the offering of the Notes, including, without limitation, expenses associated
with the production of road show slides and graphics, fees and expenses of any
consultants engaged in connection with the road show presentations with the
prior approval of the Company, travel and lodging expenses of the
representatives and officers of the Company and any such consultants, and the
cost of any aircraft chartered (with the approval of the Company) in connection
with the road show, (viii) the fees and expenses of the Trustee, including the
fees and disbursements of counsel for the Trustee in connection with the
Indenture and the Notes, (ix) any fees payable in connection with the rating of
the Notes, and (x) the filing fees incident to the review by the National
Association of Securities Dealers, Inc. (the "NASD") of the terms of the sale
of the Notes; provided that, except as provided in this Section 4, the
Underwriters shall pay their own costs and expenses, including the costs and
expenses of their counsel, any transfer taxes on the Notes which they may sell,
and the expenses of advertising the offering of the Notes made by the
Underwriters.
(b) Termination of Agreement. If this Agreement is terminated by the
Representatives in accordance with the provisions of Section 5 or Section
9(a)(i) hereof, the Company shall reimburse the Underwriters for all of their
reasonable out-of-pocket expenses, including the reasonable fees and
disbursements of counsel for the Underwriters. If this Agreement is terminated
pursuant to Section 10 by reason of the default of one or more of the
Underwriters, the Company shall not be obligated to reimburse any defaulting
Underwriter on account of those expenses.
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SECTION 5. Conditions of Underwriters' Obligations. The obligations of
the several Underwriters hereunder are subject to the accuracy of the
representations and warranties of the Company contained in Section 1 hereof, to
the performance by the Company of its covenants and other obligations
hereunder, and to the following further conditions:
(a) Effectiveness of Registration Statement. The Registration
Statement, including any Rule 462(b) Registration Statement, has become
effective and at Closing Time no stop order suspending the effectiveness of the
Registration Statement shall have been issued under the 1933 Act or proceedings
therefor initiated or threatened by the Commission, and any request on the part
of the Commission for additional information shall have been complied with. If
applicable, a prospectus containing the information required by Rule 430A shall
have been filed with the Commission in accordance with Rule 424(b), or a
post-effective amendment providing such information shall have been filed and
declared effective in accordance with the requirements of Rule 430A.
(b) Opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP. At Closing
Time, Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP shall have furnished to the
Representatives their written opinion, as counsel to the Company, addressed to
the Underwriters and dated the Closing Time, in form and substance reasonably
satisfactory to the Representatives, to the effect that:
(i) The Company has an authorized capitalization as set forth
in the Prospectus under the "Actual" column under the caption
"Capitalization", and all of the issued shares of capital stock of the
Company have been duly authorized and validly issued, are fully paid
and non-assessable and conform in all material respects to the
description thereof contained in the Prospectus; provided, however,
that in rendering the preceding opinion, counsel may rely on a review
of the Restated Certificate of Incorporation and By-Laws of the
Company, minutes of the Company's Board of Directors, and officer's
certificate regarding the outstanding capital stock and a certificate
of the transfer agent for the capital stock.
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(ii) At the time the Registration Statement became effective
the Registration Statement, and the Prospectus as of its date appeared
on their face to be appropriately responsive in all material respects
to the requirements of the 1933 Act and the 1933 Act Rules and
Regulations, except in each case counsel need express no opinion as to
the financial statements, schedules and other financial data included
therein or excluded therefrom or the exhibits to the Registration
Statement, including the Form T-1, and counsel need not assume any
responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement and the Prospectus
(other than as set forth in clause (iii) below).
(iii) The statements contained in the Prospectus under the
captions "Description of the Notes," insofar as they constitute
summaries of matters of law or summaries of provisions of the Notes,
fairly summarize such laws or such provisions in all material respects;
the statements contained in the Prospectus under the captions
"Regulation-General regulatory environment"; "-Federal regulation";
"-State regulation" (with the exception of the sentence "We are
currently authorized to provide intrastate services in 37 states.");
and "-Local regulation" (with the exception of the sentence "In some
municipalities where we have installed or anticipate constructing
networks, we are required to pay license or franchise fees based on a
percentage of gross revenue or on a per linear foot basis."), insofar
as they constitute summaries of matters of law, fairly summarize such
laws or such provisions in all material respects; and the statements
contained in the Prospectus under the caption "Important United States
Federal Tax Consequences of Our Common Stock to Non-U.S. Holders,"
insofar as they purport to constitute statements of law or legal
conclusions, have been reviewed by counsel and fairly present the
information disclosed therein in all material respects.
(iv) To the best of such counsel's knowledge based solely on
discussion with officers of the Company responsible for such matters
and review by counsel of documents furnished by them, there are no
contracts or other documents which are required to be described in the
Prospectus or filed as exhibits to the Registration Statement by the
1933 Act or by the 1933 Act Rules and Regulations which have not been
described or filed as exhibits to the Registration Statement.
(v) This Agreement has been duly authorized, executed and
delivered by the Company; and each of the other documents listed on
Schedule ____ to counsel's opinion as a "Transaction Document" has been
duly authorized, executed and delivered by the Company.
(vi) To the best of such counsel's knowledge the issue and
sale of the Notes by the Company pursuant to this Agreement and the
execution, delivery and compliance by the Company with all of the
provisions of this Agreement, the Indenture, the Notes and each of the
Transaction Documents and the consummation of the transactions
contemplated hereby and thereby will not conflict with or result in a
breach or violation of any of the terms or provisions of, or constitute
a default under, any Applicable Contract,
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except to the extent such conflict, breach, violation or default has
not had or would not reasonably be expected to have, a material adverse
change in the consolidated financial condition, results of operations,
business or prospects of the Company and its subsidiaries, taken as a
whole, nor will such actions result in any violation of the provisions
of the charter or by-laws of the Company or any of its Significant
Subsidiaries or any Applicable Law or Applicable Order; and, except for
the registration of the Stock and the Notes under the 1933 Act and such
consents, approvals, filings, authorizations, registrations or
qualifications as may be required under the 1934 Act and applicable
state securities laws, as to which counsel need express no opinion, in
connection with the purchase and distribution of the Notes by the
Underwriters and the purchase and distribution of the Stock by the
underwriters named in the Equity Underwriting Agreement, no
Governmental Approval is required for the execution, delivery and
performance of this Agreement, the Indenture, the Notes or any of the
Transaction Documents by the Company and the consummation of the
transactions contemplated hereby and thereby, except for such
Governmental Approvals, as have been obtained or made.
(vii) The Company is not an "investment company" as defined
in the Investment Company Act of 1940, as amended.
(viii) The Indenture has been duly authorized, executed and
delivered by the Company and (assuming the due authorization, execution
and delivery thereof by the Trustee) constitutes a valid and binding
agreement of the Company, enforceable against the Company in accordance
with its terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization, moratorium or
similar laws affecting enforcement of creditors' rights generally and
except as enforcement thereof is subject to general principles of
equity (regardless of whether enforcement is considered in a proceeding
in equity or at law) and the waiver contained in Section 3.24 of the
Indenture may be deemed unenforceable.
(ix) The issuance and sale of the Notes have been duly
authorized by the Company, and the Notes, when executed and
authenticated in accordance with the terms of the Indenture and
delivered to and paid for by the Underwriters in accordance with the
terms of the Purchase Agreement, will be valid and binding obligations
of the company entitled to the benefits of the Indenture and
enforceable against the Company in accordance with their terms, except
to the extent that (a) enforcement thereof may be limited by (i)
bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect relating to creditors' rights generally
and (ii) general principles of equity (regardless of whether
enforceability is considered in a proceeding at law or in equity) and
(b) the waiver contained in Section 3.24 of the Indenture may be deemed
unenforceable.
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(x) The Indenture has been duly qualified under the 0000
Xxx.
(xi) The Notes and the Indenture conform as to legal matters
in all material respects to the descriptions thereof contained in the
Prospectus.
The term "Applicable Contracts" means those agreements which are
specifically identified to counsel by the Company and listed on a Schedule to
counsel's opinion and "Applicable Laws" means the Delaware General Corporation
Law and those laws, rules and regulations of the State of New York and the
federal laws of the United States of America which, in counsel's experience, are
normally applicable to transactions of the type contemplated by this Agreement
but without counsel's having made any special investigation concerning any other
laws, rules or regulations; provided that the term "Applicable Laws" does not
include the securities or antifraud laws of any jurisdiction or the rules and
regulations of the National Association of Securities Dealers, Inc. The term
"Applicable Orders" means those orders or decrees of governmental authorities
specifically identified to counsel by the Company and listed on a Schedule to
counsel's opinion. The term "Transaction Documents" means those agreements which
are listed on Schedule ___ to counsel's opinion. The term "Governmental
Approvals" means any consent, approval, license, authorization or validation of,
or notice to, or filing, recording or registration with, any New York or federal
executive, legislative, judicial, administrative or regulatory body pursuant to
Applicable Laws.
In rendering the opinion set forth in clause (vi) with respect to
conflicts with, defaults under, and breaches or violations of, Applicable
Contracts, counsel need not express any opinion with respect to compliance with
any covenant, restriction or provision of any Applicable Contract that requires
satisfaction of a financial ratio or test or any aspect of the financial
condition, results of operations, business or prospects of the Company or any of
its subsidiaries.
We have been advised that the Registration Statement was declared
effective under the 1933 Act as of the date and time specified in such opinion,
the Prospectus was filed with the Commission pursuant to the subparagraph of
Rule 424(b) of the 1933 Act Rules and Regulations specified in such opinion on
the date specified therein and, to the knowledge of counsel, no stop order
suspending the effectiveness of the Registration Statement has been issued and,
to the knowledge of such counsel, no proceeding for that purpose is pending or
threatened by the Commission.
In rendering such opinion, such counsel may state that its opinion is
limited to matters governed by the Federal laws of the United States of America,
to the extent specifically referred therein, the laws of the State of New York
and the General Corporation Law of the State of Delaware. Such opinion shall
also be to the effect that (x) such counsel has acted as special counsel to the
Company in connection with the preparation of the Registration Statement and (y)
based on the foregoing, no facts have come to the attention of such counsel
which lead them to believe that the Registration Statement (except for the
financial statements and financial schedules and other financial data included
therein and the Trustee's Statement of Eligibility on Form T-1, as to which such
counsel need express no belief) as of the Effective Date, contained any untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary in order to make the statements therein not
misleading, or that the Prospectus (except as stated above), as of its date and
as of the Closing Date contained or contains any untrue statement of a material
fact or omitted or omits to state a material fact required to be stated therein
or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. The foregoing opinion
and statement may be qualified by a statement to the effect that such counsel is
not passing upon and is not assuming any responsibility for the accuracy,
completeness, or fairness of the states contained in the Registration Statement
or the Prospectus and has not made any independent check or verification thereof
(other than as set forth in clause (iii) above).
(c) Opinion of Xxxxxxx xxx Xxxxx. At Closing Time, Xxxxxxx xxx Xxxxx,
Senior Vice President of Law of the Company, shall have furnished to the
Representatives his written opinion, addressed to the Underwriters and dated
the Closing Time, in form and substance reasonably satisfactory to the
Representatives, to the effect that:
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(i) The Company and each of its Significant Subsidiaries have
been duly incorporated and are validly existing as corporations in
good standing under the laws of their respective jurisdictions of
incorporation, are duly qualified to do business and are in good
standing as foreign corporations in each jurisdiction in which their
respective ownership or lease of property or the conduct of their
respective businesses requires such qualification, except to the
extent such failure to be qualified or in good standing would not have
a material adverse effect on the consolidated financial position,
results of operations, business or prospects of the Company and its
subsidiaries, taken as a whole, and have all corporate power and
authority necessary to own or hold their respective properties and
conduct the businesses in which they are engaged as described in or
contemplated by the Registration Statement.
(ii) To the best of such counsel's knowledge and other than
as set forth in the Prospectus, there are no legal or governmental
proceedings pending to which the Company or any of its Significant
Subsidiaries is a party or of which any property or assets of the
Company or any of its Significant Subsidiaries is the subject which,
if determined adversely to the Company or any of its Significant
Subsidiaries, could reasonably be expected to have a material adverse
effect on the consolidated financial position, results of operations,
business or prospects of the Company and its subsidiaries, taken as a
whole; and, to the best of such counsel's knowledge, no such
proceedings are threatened or pending by governmental authorities or
threatened by others.
(iii) Except as described in the Prospectus, to the best of
such counsel's knowledge, there are no contracts, agreements or
understandings between the Company and any person granting such person
the right to require the Company to file a registration statement
under the 1933 Act with respect to any securities of the Company owned
or to be owned by such person or to require the Company to include
such securities in the securities registered pursuant to the
Registration Statement.
(iv) The Company is in compliance in all material respects
with all presently applicable provisions of ERISA; no "reportable
event" (as defined in ERISA) has occurred with respect to any "PENSION
PLAN" (as defined in ERISA) for which the Company would have any
liability; 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 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
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all material respects and nothing has occurred, whether by action or
by failure to act, which would cause the loss of such qualification.
(v) There has been no storage, disposal, generation,
manufacture, refinement, transportation, handling or treatment of
toxic wastes, medical wastes, hazardous wastes or hazardous substances
by the Company or any of its Significant Subsidiaries (or, to the
knowledge of the Company, any of their predecessors in interest) at,
upon or from any of the property now or previously owned or leased
(but not including property on which the Company had or has easements
or similar rights) by the Company or its Significant Subsidiaries in
violation of any applicable law, ordinance, rule, regulation, order,
judgment, decree or permit or which would require remedial action
under any applicable law, ordinance, rule, regulation, order,
judgment, decree or permit, except for any violation or remedial
action which would not have, or could not be reasonably likely to
have, singularly or in the aggregate with all such violations and
remedial actions, a material adverse effect on the consolidated
financial position, results of operations, business or prospects of
the Company and its subsidiaries, taken as a whole; there has been no
material spill, discharge, leak, emission, injection, escape, dumping
or release of any kind onto such property or into the environment
surrounding such property of any toxic wastes, medical wastes, solid
wastes, hazardous wastes or hazardous substances due to or caused by
the Company or any of its Significant Subsidiaries or with respect to
which the Company or any of its Significant Subsidiaries have
knowledge, except for any such spill, discharge, leak, emission,
injection, escape, dumping or release which would not have or would
not be reasonably likely to have, singularly or in the aggregate with
all such spills, discharges, leaks, emissions, injections, escapes,
dumpings and releases, a material adverse effect on the consolidated
financial position, results of operations, business or prospects of
the Company and its subsidiaries, taken as a whole.
(vi) The statements contained in the Prospectus under the
captions "Regulation," "Relationships and Related Party Transactions,"
"Relationship Between our Company and Xxxxxxxx" and "Description of
Other Indebtedness and Other Financing Arrangements," insofar as they
constitute summaries of legal matters, documents, proceedings, federal
statutes, rules and regulations, fairly summarize such legal matters,
documents, proceedings, federal statutes, rules and regulations in all
material respects.
In rendering such opinion, such counsel may state that his opinion is
limited to matters governed by the Federal laws of the United States of
America, the laws of the [State of New York] and the General Corporation Law of
the State of Delaware.
(d) Opinion of Counsel for Underwriters. At Closing Time, the
Representatives shall have received from Xxxxx Xxxx & Xxxxxxxx, counsel for the
Underwriters (and the Company shall have furnished to such counsel such
documents as they reasonably request for the purpose of enabling them to pass
upon such matters) such opinion or opinions, dated the Closing Time, to the
effect that:
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(i) This Agreement has been duly authorized, executed and
delivered by the Company.
(ii) The Indenture has been duly authorized, executed and
delivered by the Company and (assuming the due authorization,
execution and delivery thereof by the Trustee) constitutes a valid and
binding agreement of the Company, enforceable against the Company in
accordance with its terms, except as the enforcement thereof may be
limited by bankruptcy, insolvency (including, without limitation, all
laws relating to fraudulent transfers), reorganization, moratorium or
similar laws affecting enforcement of creditors' rights generally and
except as enforcement thereof is subject to general principles of
equity (regardless of whether enforcement is considered in a
proceeding in equity or at law).
(iii) The Notes are in the form contemplated by the
Indenture, have been duly authorized by the Company and, assuming that
the Notes have been duly authenticated by the Trustee in the manner
described in its certificate delivered to you today (which fact such
counsel need not determine by an inspection of the Notes), the Notes
have been duly executed, issued and delivered by the Company and
constitute valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar laws affecting
enforcement of creditors' rights generally and except as enforcement
thereof is subject to general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity or at
law), and will be entitled to the benefits of the Indenture.
(iv) The Indenture has been duly qualified under the 1939
Act.
(v) The Notes and the Indenture conform as to legal matters
in all material respects to the descriptions thereof contained in the
Prospectus.
(vi) The statements contained in the Prospectus under the
captions "Description of the Notes" and "Underwriting," insofar as
such statements constitute summaries of legal matters, documents,
proceedings, federal statutes, rules and regulations, fairly summarize
in all material respects such legal matters, documents, proceedings,
federal statutes, rules and regulations.
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(vii) The Registration Statement was declared effective under
the 1933 Act as of the date and time specified in such opinion.
(viii) Nothing has come to such counsel's attention that
causes such counsel to believe that the Registration Statement and the
Prospectus and any further amendments or supplements thereto made by
the Company prior to such Delivery Date (except for the financial
statements and financial schedules and other financial data included
therein and the Trustee's Statement of Eligibility on Form T-1, as to
which such counsel need express no belief) do not comply as to form in
all material respects with the requirements of the 1933 Act and the
1933 Act Rules and Regulations.
In rendering such opinion, such counsel may state that its opinion is
limited to matters governed by the Federal laws of the United States of
America, the laws of the State of New York and the General Corporation Law of
the State of Delaware. Such opinion shall also be to the effect that (x) such
counsel has acted as counsel to the Underwriters in connection with the
preparation of the Registration Statement and (y) based on the foregoing, no
facts have come to the attention of such counsel which lead them to believe
that the Registration Statement (except for the financial statements and
financial schedules and other financial data included therein and the Trustee's
Statement of Eligibility on Form T-1, as to which such counsel need express no
belief) as of the Effective Date, contained any untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary in order to make the statements therein not misleading, or that the
Prospectus (except as stated above) contains any untrue statement of a material
fact or omits to state a material fact required to be stated therein or
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. The foregoing opinion
and statement may be qualified by a statement to the effect that such counsel
does not assume any responsibility for the accuracy, completeness or fairness
of the statements contained in the Registration Statement or the Prospectus
(other than as set forth in clause (vi) above).
(e) Officers' Certificate. At Closing Time, there shall not have been,
since the date hereof or since the respective dates as of which information is
given in the Prospectus, any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business, and the
Representatives shall have received a certificate of the Chairman of the Board,
its President, a Vice President or the chief financial officer of the Company,
dated the Closing Time, to the effect that (i) there has been no such material
adverse change, (ii) the representations and
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warranties in Section 1 hereof are true and correct with the same force and
effect as though expressly made at and as of Closing Time, (iii) the Company
has complied with all agreements and satisfied all conditions on its part to be
performed or satisfied at or prior to Closing Time and (iv) no stop order
suspending the effectiveness of the Registration Statement has been issued and
no proceedings for that purpose have been instituted or are pending or are
contemplated by the Commission.
(f) Accountant's Comfort Letter. At the time of the execution of this
Agreement, the Representatives shall have received from Ernst & Young and
Deloitte and Touche a letter or letters dated such date, in form and substance
satisfactory to the Representatives, together with signed or reproduced copies
of such letter for each of the other Underwriters containing statements and
information of the type ordinarily included in accountants' "COMFORT LETTERS"
to underwriters with respect to the financial statements and certain financial
information contained in the Registration Statement and the Prospectus.
(g) Bring-down Comfort Letter. At Closing Time, the Representatives
shall have received from Ernst & Young and Deloitte and Touche a letter or
letters, dated the Closing Time, to the effect that they reaffirm the
statements made in the letter furnished pursuant to subsection (f) of this
Section, except that the specified date referred to shall be a date not more
than three business days prior to Closing Time.
(h) Maintenance of Rating. At Closing Time, the Notes shall be rated at
least [ ] by Moody's Investor's Service Inc. and [ ] by Standard & Poor's
Ratings Group, a division of XxXxxx-Xxxx, Inc., and the Company shall have
delivered to the Representatives a letter dated the Closing Time, from each such
rating agency, or other evidence satisfactory to the Representatives, confirming
that the Notes have such ratings; and since the date of this Agreement, there
shall not have occurred a downgrading in the rating assigned to the Notes or any
of the Company's other debt securities by any "NATIONALLY RECOGNIZED STATISTICAL
RATING AGENCY", as that term is defined by the Commission for purposes of Rule
436(g)(2) under the 1933 Act, and no such organization shall have publicly
announced that it has under surveillance or review its rating of the Notes or
any of the Company's other debt securities.
(i) Additional Documents. At Closing Time, counsel for the
Underwriters shall have been furnished with such documents and opinions as they
may reasonably require for the purpose of enabling them to pass upon the
issuance and sale of the Notes as herein contemplated, or in order to evidence
the accuracy of any of the representations or warranties, or the fulfillment of
any of the conditions, herein contained; and all corporate proceedings taken by
the Company
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in connection with the issuance and sale of the Notes as herein contemplated
shall be satisfactory in form and substance to the Representatives and counsel
for the Underwriters.
(j) Termination of Agreement. If any condition specified in this
Section shall not have been fulfilled when and as required to be fulfilled,
this Agreement may be terminated by the Representatives by notice to the
Company at any time at or prior to Closing Time, and such termination shall be
without liability of any party to any other party except as provided in Section
4 and except that Sections 6 and 7 shall survive any such termination and
remain in full force and effect.
SECTION 6. Indemnification.
(a) Indemnification of Underwriters. The Company agrees to indemnify
and hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement
or alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), including the
information required by Rule 430A or the omission or alleged omission
therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading or arising out
of any untrue statement or alleged untrue statement of a material fact
included in any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto), or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; and
(ii) against any and all expense whatsoever, as incurred,
reasonably incurred in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, to the extent that any such
expense is not paid under (i) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter
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through Xxxxxxx Xxxxx expressly for use in the Registration Statement (or any
amendment thereto), including the information required by Rule 430A or any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto); and, provided further, that the Company will not be liable to any
Underwriter with respect to any Preliminary Prospectus to the extent the
Company shall sustain the burden of proving that any such loss, liability,
claim, damage or expense resulted from the fact that such Underwriter, in
contravention of a requirement of applicable law, sold Notes to a person to
whom such Underwriter failed to send or give, at or prior to the Closing Time,
a copy of the Prospectus, as then amended or supplemented, if: (i) the Company
has previously furnished copies thereof (sufficiently in advance of the Closing
Time to allow for distribution by the Closing Time) to the Underwriter and the
loss, liability, claim, damage or expense of such Underwriter resulted from an
untrue statement or omission of a material fact contained in or omitted from
the Preliminary Prospectus which was corrected in the Prospectus as, if
applicable, amended or supplemented prior to the Closing Time and such
Prospectus was required by law to be delivered at or prior to the written
confirmation of sale to such person and (ii) such failure to give or send such
Prospectus by the Closing Time to the party or parties asserting such loss,
liability, claim, damage or expense would have constituted the sole defense to
the claim asserted by such person. The foregoing indemnity agreement is in
addition to any liability which the Company may otherwise have to any
Underwriter or to any controlling person of that Underwriter.
(b) Indemnification of Company, Directors, Officers and Employees.
Each Underwriter severally agrees to indemnify and hold harmless the Company,
each of its directors, its officers and employees and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act against any and all loss, liability, claim, damage
and expense, joint and several, described in the indemnity contained in
subsection (a) of this
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Section, as incurred, but only with respect to untrue statements or omissions,
or alleged untrue statements or omissions, made in the Registration Statement
(or any amendment thereto), including the information required by Rule 430A or
any preliminary prospectus or the Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with written information furnished
to the Company by such Underwriter through Xxxxxxx Xxxxx expressly for use in
the Registration Statement (or any amendment thereto) or such preliminary
prospectus or the Prospectus (or any amendment or supplement thereto). The
foregoing indemnity agreement is in addition to any liability which any
Underwriter may otherwise have to the Company or any such director, officer,
employee or controlling person of the Company.
(c) Actions against Parties; Notification. Each indemnified party
shall give notice as promptly as reasonably practicable to each indemnifying
party of any action commenced against it in respect of which indemnity may be
sought hereunder, but failure to so notify an indemnifying party shall not
relieve such indemnifying party from any liability hereunder to the extent it
is not materially prejudiced as a result thereof and in any event shall not
relieve it from any liability which it may have otherwise than on account of
this indemnity agreement. If any such claim or action shall be brought against
an indemnified party, and it shall notify the indemnifying party thereof, the
indemnifying party may participate at its own expense in the defense of any
such action and, to the extent that it wishes, jointly with any other similarly
notified indemnifying party, assume the defense thereof with counsel reasonably
satisfactory to the indemnifying party. After notice from the indemnifying
party to the indemnified party of its election to assume the defense of such
claim or action, the indemnifying party shall not be liable to the indemnified
party under this Section 6 for any legal or other expenses subsequently
incurred by the indemnified party in connection with the defense thereof other
than the reasonable costs of investigation; provided, however, that the
Representatives shall have the right to employ counsel to represent jointly the
Representatives and those other Underwriters and their controlling persons who
may be subject to liability arising out of any claim in respect of which
indemnity may be sought by the Underwriters against the Company under this
Section 6 if: (i) the employment of such counsel has been expressly authorized
in writing by the Company, (ii) the Company has not assumed the defense of and
employed counsel reasonably satisfactory to the Representatives within a
reasonable time after notice of the commencement of such action or (iii) the
named parties to any such action or proceeding (including impleaded parties)
include both an indemnified party and the Company and such indemnified party
shall have been advised in writing by counsel that there may be one or more
legal defenses available to such indemnified party, which are different from or
additional to those available to the Company, and such counsel's representation
of such indemnified party and the Company in such action or proceeding would
give rise to a conflict of interest which would
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make it improper for such counsel to represent both the indemnified party and
the Company (in which case the Company shall not have the right to assume the
defense of such action or proceeding on behalf of such indemnified party). In
no event shall the indemnifying parties be liable for reasonable fees and
expenses of more than one counsel (in addition to any local counsel) separate
from their own counsel for all indemnified parties in connection with any one
action or separate but similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances. No indemnifying
party shall, without the prior written consent of the indemnified parties, which
consent shall not be unreasonably withheld, settle or compromise or consent to
the entry of any judgment with respect to any litigation, or any investigation
or proceeding by any governmental agency or body, commenced or threatened, or
any claim whatsoever in respect of which indemnification or contribution could
be sought under this Section 6 or Section 7 hereof (whether or not the
indemnified parties are actual or potential parties thereto), unless such
settlement, compromise or consent (i) includes an unconditional release of each
indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of any
indemnified party; and no indemnifying party shall be liable for any settlement
of any such action effected without its written consent (which consent shall not
be unreasonably withheld), but if settled with the consent of the indemnifying
party or if there is a final judgment of the plaintiff in any such action, the
indemnifying party agrees to indemnify and hold harmless any indemnified party
from and against any loss or liability by reason of such settlement or judgment.
SECTION 7. Contribution. If the indemnification provided for in
Section 6 hereof is for any reason unavailable to or insufficient to hold
harmless an indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate
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amount of such losses, liabilities, claims, damages and expenses incurred by
such indemnified party, as incurred, (i) in such proportion as is appropriate
to reflect the relative benefits received by the Company on the one hand and
the Underwriters on the other hand from the offering of the Notes pursuant to
this Agreement or (ii) if the allocation provided by clause (i) is not
permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Company on the one hand and of the Underwriters on the
other hand in connection with the statements or omissions which resulted in
such losses, liabilities, claims, damages or expenses, as well as any other
relevant equitable considerations.
The relative benefits received by the Company on the one hand and the
Underwriters on the other hand in connection with the offering of the Notes
pursuant to this Agreement shall be deemed to be in the same respective
proportions as the total net proceeds from the offering of the Notes pursuant
to this Agreement (before deducting expenses) received by the Company and the
total underwriting discount received by the Underwriters, in each case as set
forth on the cover of the Prospectus, bear to the aggregate initial public
offering price of the Notes as set forth on such cover.
The relative fault of the Company on the one hand and the Underwriters
on the other hand shall be determined by reference to, among other things,
whether any such untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriters and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of
the equitable considerations referred to above in this Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding commenced by any governmental agency or body or any
claim whatsoever based upon any such untrue or alleged untrue statement or
omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall
be required to contribute any amount in excess of the amount by which the total
price at which the Notes underwritten by it and distributed to the public were
offered to
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the public exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of any such untrue or alleged untrue
statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the 0000 Xxx) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter,
and each director, officer and employee of the Company, and each person, if
any, who controls the Company within the meaning of Section 15 of the 1933 Act
or Section 20 of the 1934 Act shall have the same rights to contribution as the
Company. The Underwriters' respective obligations to contribute pursuant to
this Section 7 are several in proportion to the principal amount of Notes set
forth opposite their respective names in Schedule A hereto and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company or any of its
subsidiaries submitted pursuant hereto, shall remain operative and in full
force and effect, regardless of any investigation made by or on behalf of any
Underwriter or controlling person, or by or on behalf of the Company, and shall
survive delivery of the Notes to the Underwriters.
SECTION 9. Termination of Agreement.
(a) Termination; General. The Representatives may terminate this
Agreement, by notice to the Company, at any time at or prior to Closing Time
(i) if there has been, since the time of execution of this Agreement or since
the respective dates as of which information is given in the Prospectus, any
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) if there has occurred any material adverse
change in the financial markets in the United States or the international
financial markets, any outbreak of hostilities or escalation thereof or other
calamity or crisis or any change or development involving a prospective change
in national or international political, financial or economic conditions, in
each case the effect of which is such as to make it, in the judgment of the
Representatives, impracticable to market the Notes or to enforce contracts for
the sale of the Notes, or (iii) if trading in any securities of the Company has
been suspended or materially limited by the Commission, or if
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trading generally on the American Stock Exchange or the New York Stock Exchange
or in the Nasdaq National Market has been suspended or materially limited, or
minimum or maximum prices for trading have been fixed, or maximum ranges for
prices have been required, by any of said exchanges or by such system or by
order of the Commission, the National Association of Securities Dealers, Inc.
or any other governmental authority, or (iv) if a banking moratorium has been
declared by either Federal or New York authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof, and provided further that
Sections 6 and 7 shall survive such termination and remain in full force and
effect.
SECTION 10. Default by One or More of the Underwriters. If one or more
of the Underwriters shall fail at Closing Time to purchase the Notes which it
or they are obligated to purchase under this Agreement (the "DEFAULTED NOTES"),
then:
(a) if the number of Defaulted Notes does not exceed 10% of
the aggregate principal amount of the Notes to be purchased hereunder,
each of the non-defaulting Underwriters shall be obligated, severally
and not jointly, to purchase the full amount thereof in the
proportions that their respective underwriting obligations hereunder
bear to the underwriting obligations of all non-defaulting
Underwriters, or
(b) if the number of Defaulted Notes exceeds 10% of the
aggregate principal amount of the Notes to be purchased hereunder,
this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a
termination of this Agreement, either the Representatives or the Company shall
have the right to postpone Closing Time for a period not exceeding seven days
in order to effect any required changes in the Registration Statement or
Prospectus or in any other documents or arrangements. As used herein, the term
"UNDERWRITER" includes any person substituted for an Underwriter under this
Section 10.
SECTION 11. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
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Underwriters shall be directed to the Representatives at North Tower, World
Financial Center, New York, New York 10281-1201, attention of [ ]; and notices
to the Company shall be directed to it at the address of the Company set forth
in the Registration Statement, Attention: General Counsel (Fax: (918) 573-
4503).
SECTION 12. Parties. This Agreement shall each inure to the benefit of
and be binding upon the Underwriters and the Company and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Underwriters and the Company and their respective successors and the
controlling persons and officers, employees and directors referred to in
Sections 6 and 7 and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. This Agreement and all conditions and provisions
hereof are intended to be for the sole and exclusive benefit of the
Underwriters and the Company and their respective successors, and said
controlling persons and officers, employees and directors and their heirs and
legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Notes from any Underwriter shall be deemed to be a
successor by reason merely of such purchase.
SECTION 13. Governing Law and Time. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 14. Effect of Headings. The Article and Section headings
herein and the Table of Contents are for convenience only and shall not affect
the construction hereof.
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement between the Underwriters and the Company in accordance with its
terms.
Very truly yours,
XXXXXXXX COMMUNICATIONS
GROUP, INC.
By
----------------------------
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
XXXXXX BROTHERS INC.
XXXXXXX XXXXX XXXXXX INC.
For themselves and as Representatives of the other Underwriters named in
Schedule A hereto.
By: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By
---------------------------------
Authorized Signatory
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SCHEDULE A
Principal
Amount of
Name of Underwriter Notes
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated...........................................................
Xxxxxx Brothers Inc.............................................................
Xxxxxxx Xxxxx Xxxxxx Inc.
Banc of America Securities LLC..................................................
Chase Securities Inc............................................................
BNY Capital Markets, Inc........................................................
Xxxxxxx Xxxxx Securities Inc....................................................
Xxxxxxxxxxx Xxxxxxx Securities, Inc.............................................
ABN AMRO Incorporated...........................................................
BancBoston Xxxxxxxxx Xxxxxxxx Inc...............................................
CIBC World Markets Corp. .......................................................
Credit Lyonnais Securities (USA) Inc............................................
Credit Suisse First Boston Corporation..........................................
Deutsche Bank Securities Inc....................................................
RBC Dominion Securities Corporation.............................................
Total........................................................................... $[ ]
=========
Sch A-1
37
SCHEDULE B
XXXXXXXX COMMUNICATIONS GROUP, INC.
$[ ] of [ ]% Senior Notes due 200_
1. The initial public offering price of the Notes shall be __% of the
principal amount thereof, plus accrued interest, if any, from the date of
issuance.
2. The purchase price to be paid by the Underwriters for the Notes
shall be __% of the principal amount thereof.
3. The interest rate on the Notes shall be __% per annum.
Sch B-1
38
SCHEDULE C
Significant Subsidiaries
Sch C-1
