EXHIBIT 1.1
UNDERWRITING AGREEMENT
(Debt Securities)
[________________]
Comcast Corporation
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Dear Sirs:
We (the "Manager") are acting on behalf of the underwriter or underwriters
(including ourselves) named below (such underwriter or underwriters being herein
called the "Underwriters"), and we understand that Comcast Corporation, a
Pennsylvania corporation (the "Company"), proposes to issue and sell $[ ]
aggregate principal amount of [ ]% Notes Due [ ] (the "Offered Securities"). The
Offered Securities are to be issued pursuant to the provisions of the [specify
the indenture] and guaranteed on an unsecured and [unsubordinated]
[subordinated] basis by Comcast Cable Communications, Inc., Comcast Cable
Communications Holdings, Inc., Comcast Cable Holdings, LLC and Comcast MO Group,
Inc. (the "Cable Guarantors").
Subject to the terms and conditions set forth or incorporated by reference
herein, the Company hereby agrees to sell and the Underwriters agree to
purchase, severally and not jointly, the aggregate principal amount of the
Offered Securities set forth below opposite their names at a purchase price of [
], plus accrued interest, if any, from to the date of payment and delivery (the
"Purchase Price").
Number of
Offered Securities
Underwriter To Be Purchased
----------- ------------------
[Insert syndicate list]
------------------
Total..................................
==================
The Underwriters will pay for the Offered Securities upon delivery thereof
at the offices of Xxxxx Xxxx & Xxxxxxxx, 0000 Xx Xxxxxx Xxxx, Xxxxx Xxxx,
Xxxxxxxxxx at 10:00 a.m. (New York time) on __________, ____, or at such other
time, not later than 5:00 p.m. (New York time) on ,__________, _____ as shall be
designated in writing by the Underwriters and the Company. The time and date of
such payment and delivery are hereinafter referred to as the Closing Date.
The Offered Securities shall have the terms set forth in the Prospectus
dated December [ ], 2002 and the Prospectus Supplement dated ______, ____,
including the following:
Terms of Offered Securities
Maturity Date:
Interest Rate:
Redemption Provisions:
Interest Payment Dates: [ ], commencing [ ] (Interest accrues
from [ ])
Form and Denomination:
Ranking:
Conversion Provisions:
Other Terms:
Capitalized terms used above and not defined herein shall have the meanings
set forth in the Prospectus and Prospectus Supplement referred to above.
Except as set forth below, all provisions contained in the document
entitled Comcast Corporation Underwriting Agreement Standard Provisions (Debt
Securities, Warrants, Purchase Contracts, Units and Guarantees) dated December [
], 2002, (the "Standard Provisions"), a copy of which is attached hereto, are
herein incorporated by reference in their entirety and shall be deemed to be a
part of this Agreement to the same extent as if such provisions had been set
forth in full herein, except that (i) if any term defined in such document is
otherwise defined herein, the definition set forth herein shall control, (ii)
all references in such document to a type of security that is not an Offered
Security shall not be deemed to be a part of this Agreement and (iii) all
references in such document to a type of agreement that has not been entered
into in connection with the transactions contemplated hereby shall not be deemed
to be a part of this Agreement.
2
Please confirm your agreement by having an authorized officer sign a copy
of this Agreement in the space set forth below.
Very truly yours,
[Name of Lead Managers]
On behalf of themselves and the other
Underwriters named herein
By [ ]
-----------------------------
By:
-------------------------------
Name:
Title:
Accepted:
COMCAST CORPORATION
By:
--------------------------------------
Name:
Title:
COMCAST CABLE COMMUNICATIONS, INC.
By:
--------------------------------------
Name:
Title:
COMCAST CABLE COMMUNICATIONS HOLDINGS, INC.
By:
--------------------------------------
Name:
Title:
COMCAST CABLE HOLDINGS, LLC
By:
--------------------------------------
Name:
Title:
COMCAST MO GROUP, INC.
By:
--------------------------------------
Name:
Title:
3
UNDERWRITING AGREEMENT
(Warrants)
-------------------- --, ----
Comcast Corporation
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Dear Sirs:
We (the "Manager") are acting on behalf of the underwriter or underwriters
(including ourselves) named below (such underwriter or underwriters being herein
called the "Underwriters"), and we understand that Comcast Corporation, a
Pennsylvania corporation (the "Company"), proposes to issue and sell [number and
title of warrants] Warrants (the "Offered [Company] Securities"). The Offered
[Company] Securities are to be issued pursuant to the provisions of a Warrant
Agreement (the "Warrant Agreement") dated as of [_________, ____] between the
Company and [name of Warrant Agent], as Warrant Agent.
[It is understood that substantially contemporaneously with the closing of
the sale of the Offered Company Securities to the Underwriters contemplated
hereby, [Comcast Cable Communications, Inc.,] [Comcast Cable Communications
Holdings, Inc.,] [Comcast Cable Holdings, LLC and] [Comcast MO Group, Inc.]
(collectively, the "Cable Guarantors") and [ ], as Guarantee Trustee, shall
enter into a Guarantee Agreement in substantially the form of the Form of the
Guarantee Agreement attached as Exhibit 4.18 of the Registration Statement
referred to below (the "Additional Guarantee") for the benefit of the holders
from time to time of the Offered Company Securities. The Offered Company
Securities and the Additional Guarantee are hereinafter collectively referred to
as the "Offered Securities."]
Subject to the terms and conditions set forth or incorporated by reference
herein, the Company hereby agrees to sell and the Underwriters agree to
purchase, severally and not jointly, the aggregate number of Offered [Company]
Securities set forth below opposite their names at a purchase price of $_____
per Offered Company Security, (the "Purchase Price").
Number of
Offered [Company] Securities
Underwriter To Be Purchased
----------- -----------------------------
[Insert syndicate list]
---------------
Total.........................................
===============
The Underwriters will pay for the Offered [Company] Securities upon
delivery thereof at the offices of Xxxxx Xxxx & Xxxxxxxx, 0000 Xx Xxxxxx Xxxx,
Xxxxx Xxxx, XX at 10:00 a.m. (New York time) on __________, ____, or at such
other time, not later than 5:00 p.m. (New York time) on __________, ____, as
shall be designated in writing by the Underwriters and the Company. The time and
date of such payment and delivery are hereinafter referred to as the Closing
Date.
The Offered Securities shall have the terms set forth in the Prospectus
dated December [ ], 2002, and the Prospectus Supplement dated [__________,
____], including the following:
Terms of Offered [Company] Securities
Designation of the Series of Warrants: [Call] [Put] Warrants
Warrant Property:
Aggregate Number of Warrants:
Price to Public:
Warrant Exercise Price:
Dates upon which Warrants may be exercised:
Expiration Date:
Form:
Currency in which exercise payments shall be made:
Minimum number of Warrants exercisable by any holder on any day:
Maximum number of Warrants exercisable on any day:
Formula for determining Cash Settlement Value:
Exchange Rate (or method of calculation):
Exchange on which Warrants are to be listed:
Other Terms:
Capitalized terms used above and not defined herein shall have the meanings
set forth in the Prospectus and Prospectus Supplement referred to above.
Except as set forth below, all provisions contained in the document
entitled Comcast Corporation Underwriting Agreement Standard Provisions (Debt
Securities, Warrants, Purchase Contracts, Units and Guarantees) dated December
__, 2002, (the "Standard Provisions"), a copy of which is attached hereto, are
herein incorporated by reference in their entirety and shall be
2
deemed to be a part of this Agreement to the same extent as if such provisions
had been set forth in full herein, except that (i) if any term defined in such
document is otherwise defined herein, the definition set forth herein shall
control, (ii) all references in such document to a type of security that is not
an Offered Security shall not be deemed to be a part of this Agreement and (iii)
all references in such document to a type of agreement that has not been entered
into in connection with the transactions contemplated hereby shall not be deemed
to be a part of this Agreement.
3
Please confirm your agreement by having an authorized officer sign a copy
of this Agreement in the space set forth below.
Very truly yours,
[Name of Lead Managers]
On behalf of themselves and the other
Underwriters named herein
By [ ]
--------------------------------
By:
----------------------------------
Name:
Title:
Accepted:
COMCAST CORPORATION
By:
--------------------------------------
Name:
Title:
[COMCAST CABLE COMMUNICATIONS, INC.]
By:
--------------------------------------
Name:
Title:
[COMCAST CABLE COMMUNICATIONS HOLDINGS, INC.]
By:
--------------------------------------
Name:
Title:
[COMCAST CABLE HOLDINGS, LLC]
By:
--------------------------------------
Name:
Title:
[COMCAST MO GROUP, INC.]
By:
--------------------------------------
Name:
Title:
4
UNDERWRITING AGREEMENT
(Prepaid Purchase Contracts)
[ ]
Comcast Corporation
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Dear Sirs:
We (the "Manager") are acting on behalf of the underwriter or underwriters
(including ourselves) named below (such underwriter or underwriters being herein
called the "Underwriters"), and we understand that Comcast Corporation, a
Pennsylvania corporation (the "Company"), proposes to issue and sell [number and
title of purchase contracts] Purchase Contracts (the "Offered Securities"). The
Offered Securities are to be issued pursuant to the provisions of the [Senior
Indenture] [Subordinated Indenture] and guaranteed on a[n] [unsubordinated]
[subordinated] basis by Comcast Cable Communications, Inc., Comcast Cable
Communications Holdings, Inc., Comcast Cable Holdings, LLC and Comcast MO Group,
Inc.
Subject to the terms and conditions set forth or incorporated by reference
herein, the Company hereby agrees to sell and the Underwriters agree to
purchase, severally and not jointly, the aggregate number of Offered Securities
set forth below opposite their names at a purchase price of per Offered
Security, (the "Purchase Price").
Number of
Offered Company Securities
Underwriter To Be Purchased
[Insert syndicate list]
---------------------------
Total.........................................
===========================
The Underwriters will pay for the Offered Securities upon delivery thereof
at the offices of Xxxxx Xxxx & Xxxxxxxx, 0000 Xx Xxxxxx Xxxx, Xxxxx Xxxx, XX at
10:00 a.m. (New York time) on __________, ____, or at such other time, not later
than 5:00 p.m. (New York time) on __________, ____, as shall be designated in
writing by the Underwriters and the Company. The time and date of such payment
and delivery are hereinafter referred to as the Closing Date.
The Offered Securities shall have the terms set forth in the Prospectus
dated December [ ], 2002, and the Prospectus Supplement dated __________, ____,
including the following:
Terms of Offered Securities
Designation of the Series of Purchase Contracts: [Purchase][Sale]
Purchase Contracts
Purchase Contract Property:
Aggregate Number of Purchase Contracts:
Price to Public:
Settlement Date:
[Purchase/Sale] Price of Purchase Contract Property
Form:
Other Terms:
Capitalized terms used above and not defined herein shall have the meanings
set forth in the Prospectus and Prospectus Supplement referred to above.
Except as set forth below, all provisions contained in the document
entitled Comcast Corporation Underwriting Agreement Standard Provisions (Debt
Securities, Warrants, Purchase Contracts, Units and Guarantees) dated December [
], 2002 (the "Standard Provisions"), a copy of which is attached hereto, are
herein incorporated by reference in their entirety and shall be deemed to be a
part of this Agreement to the same extent as if such provisions had been set
forth in full herein, except that (i) if any term defined in such document is
otherwise defined herein, the definition set forth herein shall control, (ii)
all references in such document to a type of security that is not an Offered
Security shall not be deemed to be a part of this Agreement and (iii) all
references in such document to a type of agreement that has not been entered
into in connection with the transactions contemplated hereby shall not be deemed
to be a part of this Agreement.
Please confirm your agreement by having an authorized officer sign a copy
of this Agreement in the space set forth below.
Very truly yours,
[Name of Lead Managers]
On behalf of themselves and the other
Underwriters named herein
By [ ]
-------------------------------
By:
---------------------------------
Name:
Title:
Accepted:
COMCAST CORPORATION
By:
--------------------------------------
Name:
Title:
COMCAST CABLE COMMUNICATIONS, INC.
By:
--------------------------------------
Name:
Title:
COMCAST CABLE COMMUNICATIONS HOLDINGS, INC.
By:
--------------------------------------
Name:
Title:
COMCAST CABLE HOLDINGS, LLC
By:
--------------------------------------
Name:
Title:
COMCAST MO GROUP, INC.
By:
--------------------------------------
Name:
Title:
UNDERWRITING AGREEMENT
(Units)
---------- --, ----
Comcast Corporation
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Dear Sirs:
We (the "Manager") are acting on behalf of the underwriter or underwriters
(including ourselves) named below (such underwriter or underwriters being herein
called the "Underwriters"), and we understand that Comcast Corporation, a
Pennsylvania corporation (the "Company"), proposes to issue and sell [number and
title of units] Units (the "Offered [Company] Securities") consisting of [$____
aggregate principal amount of __% Notes Due ____ ] [number and title of
Warrants] [number and title of Purchase Contracts]. The Offered [Company]
Securities are to be issued pursuant to the provisions of a Unit Agreement (the
"Unit Agreement") dated as of [______, ___] among the Company,
[_________________], as Agent, and the holders from time to time of the Units.
[The Debt Securities included in the Offered [Company] Securities will be issued
pursuant to the [specify the indenture].] [The Warrants included in the Offered
[Company] Securities will be issued pursuant to the [specify the warrant
agreement.]] [The Purchase Contracts included in the Offered [Company]
Securities will be issued pursuant to the Unit Agreement.]
[It is understood that substantially contemporaneously with the closing of
the sale of the Offered Company Securities to the Underwriters contemplated
hereby, [Comcast Cable Communications, Inc.,] [Comcast Cable Communications
Holdings, Inc.,] [Comcast Cable Holdings, LLC and] [Comcast MO Group, Inc.]
(collectively, the "Cable Guarantors") and [ ], as Guarantee Trustee, shall
enter into a Guarantee Agreement in substantially the form of the Form of the
Guarantee Agreement attached as Exhibit 4.18 of the Registration Statement
referred to below (the "Additional Guarantee") for the benefit of the holders
from time to time of the Offered Company Securities. The Offered Company
Securities and the Additional Guarantee are hereinafter collectively referred to
as the "Offered Securities."]
Subject to the terms and conditions set forth or incorporated by reference
herein, the Company hereby agrees to sell and the Underwriters agree to
purchase, severally and not jointly, the aggregate number of Offered [Company]
Securities set forth below opposite their names at a purchase price of
$__________, plus accrued interest, if any, from [________, ____] to the date of
payment and delivery (the "Purchase Price").
Number of
Offered [Company] Securities
Underwriter To Be Purchased
----------- ----------------------------
[Insert syndicate list]
------------------
Total..........................................
------------------
The Underwriters will pay for the Offered [Company] Securities upon
delivery thereof at the offices of Xxxxx Xxxx & Xxxxxxxx, 0000 Xx Xxxxxx Xxxx,
Xxxxx Xxxx, XX at 10:00 a.m. (New York time) on __________, ___, or at such
other time, not later than 5:00 p.m. (New York time) on __________, ___, as
shall be designated in writing by the Underwriters and the Company. The time and
date of such payment and delivery are hereinafter referred to as the Closing
Date.
The Offered Securities shall have the terms set forth in the Prospectus
dated December [ ], 2002, and the Prospectus Supplement dated [__________,
____], including the following:
Terms of Debt Securities
Maturity Date:
Interest Rate:
Redemption Provisions:
Interest Payment Dates: _________________,
commencing __________ (Interest accrues from __________)
Form and Denomination:
Ranking:
Other Terms:
Terms of Warrants
Designation of the Series of Warrants: [Call] [Put] Warrants
Warrant Property:
Aggregate Number of Warrants:
Warrant Exercise Price:
Dates upon which Warrants may be exercised:
Expiration Date:
Currency in which exercise payments shall be made:
[Maximum number of Warrants exercisable on any day:]
Formula for determining Cash Settlement Value:
Exchange Rate (or method of calculation):
Other Terms:
Terms of Purchase Contracts
Designation of the Series of Purchase Contracts: [Purchase][Sale]
Purchase Contracts
Purchase Contract Property:
Aggregate Number of Purchase Contracts:
Price to Public:
Settlement Date:
[Purchase/Sale] Price of Purchase Contract Property
Form:
Other Terms:
Capitalized terms used above and not defined herein shall have the meanings
set forth in the Prospectus and Prospectus Supplement referred to above.
Except as set forth below, all provisions contained in the document
entitled Comcast Corporation Underwriting Agreement Standard Provisions (Debt
Securities, Warrants, Purchase Contracts, Units and Guarantees) dated December [
], 2002, (the "Standard Provisions"), a copy of which is attached hereto, are
herein incorporated by reference in their entirety and shall be deemed to be a
part of this Agreement to the same extent as if such provisions had been set
forth in full herein, except that (i) if any term defined in such document is
otherwise defined herein, the definition set forth herein shall control, (ii)
all references in such document to a type of security that is not an Offered
Security shall not be deemed to be a part of this Agreement and (iii) all
references in such document to a type of agreement that has not been entered
into in connection with the transactions contemplated hereby shall not be deemed
to be a part of this Agreement.
3
Please confirm your agreement by having an authorized officer sign a copy
of this Agreement in the space set forth below.
Very truly yours,
[Name of Lead Managers]
On behalf of themselves and the other
Underwriters named herein
By [ ]
-------------------------------
By:
---------------------------------
Name:
Title:
Accepted:
COMCAST CORPORATION
By:
--------------------------------------
Name:
Title:
[COMCAST CABLE COMMUNICATIONS, INC.]
By:
--------------------------------------
Name:
Title:
[COMCAST CABLE COMMUNICATIONS HOLDINGS, INC.]
By:
--------------------------------------
Name:
Title:
[COMCAST CABLE HOLDINGS, LLC]
By:
--------------------------------------
Name:
Title:
[COMCAST MO GROUP, INC.]
By:
--------------------------------------
Name:
Title:
4
COMCAST CORPORATION
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
(DEBT SECURITIES, WARRANTS, PURCHASE CONTRACTS, UNITS AND GUARANTEES)
December [ ], 2002
From time to time, Comcast Corporation, a Pennsylvania corporation (the
"Company"), may, alone or together with Comcast Cable Communications, Inc.,
Comcast Cable Communications Holdings, Inc., Comcast Cable Holdings, LLC and
Comcast MO Group, Inc. (collectively, the "Cable Guarantors"), enter into one
or more underwriting agreements that provide for the sale of designated
securities to the several underwriters named therein. The standard provisions
set forth herein may be incorporated by reference in any such underwriting
agreement (an "Underwriting Agreement"). The Underwriting Agreement, including
the provisions incorporated therein by reference, is herein referred to as this
Agreement. Terms defined in the Underwriting Agreement are used herein as
therein defined.
The Company proposes to issue from time to time (a) its senior debt
securities ("Senior Debt Securities"), (b) its subordinated debt securities
("Subordinated Debt Securities" and with the Senior Debt Securities, the "Debt
Securities"), (c) warrants ("Warrants") and (d) purchase contracts ("Purchase
Contracts") requiring the holders thereof to purchase or sell (i) securities of
an entity unaffiliated with the Company, a basket of such securities, an index
or indices of such securities or any combination of the above, (ii) currencies
or composite currencies or (iii) commodities. Debt Securities, Purchase
Contracts and Warrants or any combination thereof may be offered in the form of
Units ("Units"). As used herein, the term "Debt Securities" includes prepaid
Purchase Contracts. The Debt Securities are to be guaranteed (the "Cable
Guarantees") on an unsecured basis by the Cable Guarantors. The Warrants,
Purchase Contracts and Units may be guaranteed on an unsecured basis by the
Cable Guarantors to the extent described in the Prospectus (as defined below)
pursuant to a Guarantee Agreement to be dated as of a date specified in the
Underwriting Agreement and executed and delivered by the Cable Guarantors and [
], as trustee (the "Guarantee Trustee") for the benefit of the holders from
time to time of the Offered Company Securities (the "Additional Guarantee").
The Company and the Cable Guarantors have filed with the Securities and
Exchange Commission (the "Commission") a registration statement including a
prospectus relating to the Debt Securities, Warrants, Purchase Contracts,
Units, Cable Guarantees and Additional Guarantees (collectively, the
"Securities") and have filed with, or transmitted for filing to, or shall
promptly after the date of the Underwriting Agreement file with or transmit for
filing to, the Commission a prospectus supplement (the "Prospectus Supplement")
pursuant to Rule 424 under the Securities Act of 1933, as amended (the
"Securities Act"), specifically relating to the Securities offered pursuant to
this Agreement (the "Offered Company Securities" and the "Offered Guarantees,"
if any, and, together, the "Offered Securities"). The term Registration
Statement means the registration statement as amended to the date of the
Underwriting Agreement including any additional registration statement filed by
the Company pursuant to Rule 462(b). The term Basic Prospectus means the
prospectus included in the Registration Statement. The term Prospectus means
the Basic Prospectus together with the Prospectus Supplement. The term
preliminary prospectus means a preliminary prospectus supplement specifically
relating to the Offered Securities, together with the Basic Prospectus. As used
herein, the terms "Basic Prospectus," "Prospectus" and "preliminary prospectus"
shall include in each case the documents, if any, incorporated by reference
therein. The terms "supplement," "amendment" and "amend" as used herein shall
include all documents deemed to be incorporated by reference in the Prospectus
that are filed subsequent to the date of the Basic Prospectus by the Company
with the Commission pursuant to the Securities Exchange Act of 1934, as amended
(the "Exchange Act"). For purposes of this Agreement, "Issuers" means the
Company and includes the Cable Guarantors if Cable Guarantees or an Additional
Guarantee are offered pursuant to this Agreement.
1. Representations and Warranties. The Issuers, jointly and severally,
represent and warrant to each of the Underwriters as of the date of the
Underwriting Agreement that (i) each document filed or to be filed pursuant to
the Exchange Act and incorporated by reference in the Prospectus complied or
will comply when so filed in all material respects with the Exchange Act and
the rules and regulations of the Commission thereunder and (ii) the
Registration Statement and Prospectus comply in all material respects with the
Securities Act and the rules and regulations of the Commission thereunder and
do not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading, except that the foregoing representations and
warranties do not apply to (a) that part of the Registration Statement which
shall constitute the Statement of Eligibility of the Trustee on Form T-1 (the
"Form T-1") and (b) statements or omissions in the Registration Statement or
the Prospectus or any amendment or supplement thereto based upon information
furnished to the Issuers in writing by any Underwriter through the Manager
expressly for use therein.
2. Public Offering. The Issuers are advised by the Manager that the
Underwriters propose to make a public offering of their respective portions of
the Offered Securities as soon after this Agreement has been entered into as in
the Manager's judgment is advisable. The terms of the public offering of the
Offered Securities are set forth in the Prospectus.
3. Purchase and Delivery. Except as otherwise provided in this Section 3,
payment for the Offered Securities shall be made to the Company in Federal or
other funds immediately available in New York City at the time and place set
forth in the Underwriting Agreement, upon delivery to the Manager for the
respective accounts of the several Underwriters of the Offered Securities
registered in such names and in such denominations as the Manager shall request
in writing not less than one full business day prior to the date of delivery,
with any transfer taxes payable in connection with the transfer of the Offered
Securities to the Underwriters duly paid.
2
4. Conditions to Closing. The several obligations of the Underwriters
hereunder are subject to the following conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement shall be in effect, and no proceedings for
such purpose shall be pending before or threatened by the Commission,
and there shall have been no material adverse change in the
condition, business or operations of the Company and its
subsidiaries, as a whole, from that set forth in the Prospectus; and
the Manager shall have received, on the Closing Date, a certificate,
dated the Closing Date and signed by an executive officer of the
Company, to the foregoing effect. Such certificate will also provide
that the representations and warranties of the Company contained
herein are true and correct as of the Closing Date. The officer
making such certificate may rely upon the best of his knowledge as to
proceedings threatened.
(b) The Manager shall have received on the Closing Date an
opinion of Xxxxxx X. Block, Esquire, Senior Vice President of the
Company, dated the Closing Date, to the effect that:
(i) the Company has been duly incorporated, is validly
existing as a corporation subsisting under the laws of the
Commonwealth of Pennsylvania and is duly qualified to transact
business and is in good standing in each jurisdiction in which
the conduct of its business or its ownership or leasing of
property requires such qualification (except where the failure
to so qualify would not have a material adverse effect upon the
business or financial condition of the Company and its
subsidiaries, as a whole);
(ii) each of the Senior Indenture dated as of [ ] (the
"Senior Indenture") among the Company, the Cable Guarantors and
The Bank of New York, as trustee, and the Subordinated Indenture
dated as of [ ] (the "Subordinated Indenture") among the Company
and the Cable Guarantors and The Bank of New York, as trustee
has been duly authorized, executed and delivered by the Company;
(iii) the Warrant Agreement, if any, has been duly
authorized, executed and delivered by the Company;
(iv) the Unit Agreement, if any, has been duly authorized,
executed and delivered by the Company;
(v) the Offered Company Securities have been duly
authorized by the Company;
(vi) this Agreement has been duly authorized, executed and
delivered by the Company;
(vii) except as rights to indemnity and contribution under
this Agreement may be limited under applicable law, the
execution and delivery by each Issuer of, and the performance by
each Issuer of its obligations under, this Agreement, the Senior
Indenture, the Subordinated Indenture, the Offered Securities,
the Warrant Agreement, the Unit Agreement and the Additional
Guarantee, if any, will not contravene any provision of
applicable law of the
3
United States (except with respect to laws relating specifically
to the cable communications industry, as to which such counsel
is not called upon to express any opinion), Pennsylvania, or, to
the best knowledge of such counsel, of any other state or
jurisdiction of the United States or of any foreign jurisdiction
(in which foreign jurisdiction the Company or any specified
subsidiary does business which is material to the Company and
its subsidiaries, as a whole), or the articles of incorporation
or by-laws of the Company or, to the best knowledge of such
counsel, any agreement or other instrument binding upon such
Issuer, and, except for the orders of the Commission making the
Registration Statement effective and the Senior Indenture and
the Subordinated Indenture qualified under the Trust Indenture
Act of 1939, as amended (the "Trust Indenture Act") (which have
been obtained) and such permits or similar authorizations
required under the securities or Blue Sky laws of certain states
or foreign jurisdictions (as to which such counsel is not called
upon to express any opinion), no consent, approval or
authorization of any governmental body or agency of the United
States (except with respect to consents, approvals and
authorizations relating specifically to the cable communications
industry, as to which such counsel is not called upon to express
any opinion), Pennsylvania, or, to the best knowledge of such
counsel, of any other state or jurisdiction of the United States
or of any foreign jurisdiction is required for the performance
by any Issuer of its obligations under this Agreement, the
Senior Indenture, the Subordinated Indenture, the Offered
Securities, the Warrant Agreement, the Unit Agreement and the
Additional Guarantee, if any;
(viii) subject to such qualification as may be set forth in
the Prospectus, the Company and its subsidiaries have, and are
in material compliance with, such franchises, and to the best
knowledge of such counsel after reasonable investigation, such
licenses and authorizations, as are necessary to own their cable
communications properties and to conduct their cable
communications business in the manner described in the
Prospectus, except where the failure to have, or comply with,
such franchises, licenses and authorizations would not have a
material adverse effect on the business or financial condition
of the Company and its subsidiaries, as a whole, and such
franchises, licenses and authorizations contain no materially
burdensome restrictions not adequately described in the
Prospectus, which restrictions would have a material adverse
effect on the business or financial condition of the Company and
its subsidiaries, as a whole;
(ix) the statements (A) in Item 3 of the Company's most
recent Annual Report on Form 10-K incorporated by reference in
the Prospectus, (B) in Part II, Item 1 under the caption "Legal
Proceedings" of the Company's most recent Quarterly Report on
Form 10-Q incorporated by reference in the Prospectus and (C) in
the Registration Statement in Item 15, insofar as such
statements constitute a summary of the legal matters, documents
or proceedings referred to therein, fairly present the
information called for with respect to such legal matters,
documents and proceedings;
4
(x) such counsel does not know of any legal or governmental
proceeding pending or threatened to which the Company or any of
its subsidiaries is a party or to which any of the properties of
the Company or any of its subsidiaries is subject which is
required to be described in the Registration Statement or the
Prospectus and is not so described or of any contract or other
document which is required to be described in the Registration
Statement or the Prospectus or to be filed as an exhibit to the
Registration Statement which is not described or filed as
required;
(xi) the securities into which the Offered Company
Securities are convertible, initially reserved for issuance upon
conversion of the Offered Company Securities (the "Underlying
Securities") have been duly authorized and reserved for
issuance; and
(xii) when the Underlying Securities are issued upon
conversion of the Offered Company Securities in accordance with
the terms of the Offered Company Securities, such Underlying
Securities will be validly issued, fully paid and non-assessable
and will not be subject to any preemptive or other right to
subscribe for or purchase such Underlying Securities.
Such counsel shall also state that no facts have come to his attention
that lead him to believe (1) that the Registration Statement or any amendments
thereto (except for the financial statements and other financial or statistical
data included or incorporated by reference therein or omitted therefrom and the
Form T-1, as to which such counsel is not called upon to express any belief),
on the date on which it became effective or the date of filing of the most
recent subsequent Annual Report on Form 10-K, contained an untrue statement of
a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; (2) that
the Prospectus, as amended or supplemented, if applicable (except for the
financial statements and other financial or statistical data included or
incorporated by reference therein or omitted therefrom, as to which such
counsel is not called upon to express any belief), at the date of the
Underwriting Agreement or at the Closing Date, contained or contains an untrue
statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they are made, not misleading; or (3) that the
documents incorporated by reference in the Prospectus (except for the financial
statements and other financial or statistical data included or incorporated by
reference therein or omitted therefrom, as to which such counsel is not called
upon to express any belief), as of the dates they were filed with the
Commission, contained an untrue statement of a material fact or omitted to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they are made, not misleading.
With respect to the preceding paragraph, such counsel may state that his
opinion and belief is based upon his participation in the preparation of the
Registration Statement, Prospectus (as amended or supplemented) and the
documents incorporated therein by reference and review and discussion of the
contents thereof, but is without independent check or verification except as
specified.
5
In expressing his opinion as to questions of the law of jurisdictions
other than the Commonwealth of Pennsylvania and the United States, such counsel
may rely to the extent reasonable on such counsel as may be reasonably
acceptable to counsel to the Underwriters. In addition, such counsel may
reasonably rely as to questions of fact on certificates of responsible officers
of the Company.
(c) The Manager shall have received on the Closing Date an opinion of
Xxxxx Xxxx & Xxxxxxxx, special counsel for the Company, dated the Closing
Date, to the effect that:
(i) each Cable Guarantor is a corporation or limited liability
company duly incorporated or duly organized, validly existing and in
good standing under the laws of the jurisdiction of its incorporation
or formation;
(ii) each of the Senior Indenture and the Subordinated Indenture
has been duly authorized, executed and delivered by each Cable
Guarantor and assuming each of the Senior Indenture and the
Subordinated Indenture has been duly authorized, executed and
delivered by the Company and duly executed and delivered by the
respective trustee thereto, each of the Senior Indenture and the
Subordinated Indenture is a valid and binding agreement of each
Issuer, enforceable against each Issuer in accordance with its terms
(subject, as to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, fraudulent transfer, moratorium or other
similar laws affecting creditors' rights generally from time to time
in effect and to general equity principles);
(iii) assuming the Warrant Agreement, if any, has been duly
authorized, executed and delivered by the Company and duly executed
and delivered by the Warrant Agent, the Warrant Agreement, if any, is
a valid and binding agreement of the Company, enforceable in
accordance with its terms (subject, as to enforcement of remedies, to
applicable bankruptcy, reorganization, insolvency, moratorium or
other similar laws affecting creditors' rights generally from time to
time in effect and to general equity principles);
(iv) assuming the Unit Agreement, if any, has been duly
authorized, executed and delivered by the Company and duly executed
and delivered by the Agent, the Unit Agreement, if any, is a valid
and binding agreement of the Company, enforceable in accordance with
its terms (subject, as to enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium or other similar
laws affecting creditors' rights generally from time to time in
effect and to general equity principles);
(v) the Additional Guarantee, if any, has been duly authorized,
executed and delivered by each Cable Guarantor and is a valid and
binding agreement of each Cable Guarantor, enforceable in accordance
with its terms (subject, as to enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, fraudulent transfer,
moratorium or other similar laws affecting
6
creditors' rights generally from time to time in effect and to
general equity principles);
(vi) the Cable Guarantees have been duly authorized, and,
assuming the Offered Company Securities have been authorized by the
Company, when the Offered Company Securities have been duly executed
and authenticated in accordance with the provisions of the relevant
Senior Indenture or Subordinated Indenture, will be valid and binding
obligations of the Cable Guarantors, enforceable against them in
accordance with their terms (subject, as to enforcement or remedies,
to applicable bankruptcy, reorganization, insolvency, fraudulent
transfer, moratorium or other similar laws affecting creditors'
rights generally from time to time in effect and to general equity
principles), and will be entitled to the benefits of the relevant
Senior Indenture or Subordinated Indenture.
(vii) this Agreement has been duly authorized, executed and
delivered by each Cable Guarantor party hereto;
(viii) each of the Senior Indenture and the Subordinated
Indenture has been duly qualified under the Trust Indenture Act;
(ix) except as rights to indemnity and contribution under this
Agreement may be limited under applicable law, the execution and
delivery by each Issuer of, and the performance by each Issuer of its
obligations under, this Agreement, the Senior Indenture, the
Subordinated Indenture, the Offered Securities, the Warrant
Agreement, the Unit Agreement and the Additional Guarantee, if any,
will not contravene any provision of applicable law of the United
States (except with respect to laws relating specifically to the
cable communications industry, as to which such counsel is not called
upon to express any opinion), or New York, or the articles of
incorporation or bylaws or equivalent organizational documents of any
Cable Guarantor and, except for the orders of the Commission making
the Registration Statement effective and the Senior Indenture and the
Subordinated Indenture qualified under the Trust Indenture Act (which
have been obtained) and such permits or similar authorizations
required under the securities or Blue Sky laws of certain states or
foreign jurisdictions (as to which such counsel is not called upon to
express any opinion), no consent, approval or authorization of any
governmental body or agency of the United States (except with respect
to consents, approvals and authorizations relating specifically to
the cable communications industry, as to which such counsel is not
called upon to express any opinion), or New York is required for the
performance by any Issuer of its obligations under this Agreement,
the Senior Indenture, the Subordinated Indenture, the Offered
Securities, the Warrant Agreement, the Unit Agreement and the
Additional Guarantee, if any, and
(x) the statements in the Prospectus Supplement under
"Description of [the Offered Securities]", "Certain U.S. Tax
Considerations" and
7
"Underwriting" and in the Basic Prospectus under "Description of [the
Offered Securities]", and "Plan of Distribution", insofar as such
statements constitute a summary of the legal matters or documents
referred to therein, fairly present the information called for with
respect to such legal matters and documents.
Such counsel shall also state that no facts have come to the attention of
such counsel that lead them to believe (1) that the Registration Statement and
the Prospectus and any supplements or amendments thereto or the documents
incorporated by reference in the Registration Statement and Prospectus (except
for financial statements and other financial or statistical data included or
incorporated by reference therein and the Form T- 1, as to which such counsel
is not called upon to express any belief) did not comply as to form in all
material respects with the Securities Act and the rules and regulations of the
Commission thereunder; (2) that the Registration Statement or any amendment
thereto (except for the financial statements and other financial or statistical
data included or incorporated by reference therein or omitted therefrom and the
Form T-1, as to which such counsel is not called upon to express any belief) at
the date of the Underwriting Agreement contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading; or (3) that the
Prospectus, as amended or supplemented, if applicable (except for the financial
statements and other financial or statistical data included or incorporated by
reference therein or omitted therefrom, as to which such counsel is not called
upon to express any belief), at the date of the Underwriting Agreement or at
the Closing Date, contained or contains an untrue statement of a material fact
or omitted or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they are
made, not misleading.
With respect to the preceding paragraph, Xxxxx Xxxx & Xxxxxxxx may state
that their opinion and belief is based upon their participation in the
preparation of the Registration Statement and Prospectus and any amendments or
supplements thereto (but not including documents incorporated therein by
reference) and review and discussion of the contents thereof (including
documents incorporated therein by reference), but is without independent check
or verification except as specified.
(d) The Manager shall have received on the Closing Date an opinion of
[ ], internal counsel for the Company, dated the Closing Date, to the
effect that:
(i) no approval of the Federal Communications Commission (the
"FCC") is required in connection with the issuance and sale of the
Offered Securities,
(ii) the execution and delivery of this Agreement, the Senior
Indenture, the Subordinated Indenture, the Warrant Agreement, the
Unit Agreement and the Additional Guarantee, if any, by each Issuer,
the fulfillment of the terms set forth herein and therein by each
Issuer and the consummation of the transactions contemplated hereby
and thereby by each Issuer do not violate any statute, regulation or
other law of the United States relating specifically to the cable
communications industry (except as otherwise explicitly set forth in
the Prospectus) or, to the knowledge of such counsel, any order,
judgment or decree
8
of any court or governmental body of the United States relating
specifically to the cable communications industry and applicable to
such Issuer or any subsidiary, and which violation would have a
material adverse effect on the business or financial condition of
such Issuer and its subsidiaries, as a whole,
(iii) the statements in the Company's most recent Annual Report
on Form 10-K incorporated by reference in the Registration Statement
and Prospectus [identify sections describing cable regulatory
matters] as updated by the Company's most recent Quarterly Reports on
Form 10-Q incorporated in the Registration Statement and Prospectus
and as updated by the Prospectus, insofar as they are, or refer to,
statements of federal law or legal conclusions, have been reviewed by
such counsel and present in all material respects the information
called for with respect to such statements of federal law or legal
conclusions, and
(iv) such counsel does not know of any proceeding pending before
the FCC to which the Company or any of its subsidiaries is a party or
involving the cable communications properties, licenses or
authorizations of the Company and its subsidiaries, or of any cable
communications law or regulation relevant thereto required to be
described in the Registration Statement or Prospectus pursuant to
Regulation S-K promulgated under the Securities Act, which is not
described as required.
(e) The Manager shall have received on the Closing Date an opinion of
Xxxxxx Xxxxxx & Xxxxxxx, counsel for the Underwriters, dated the Closing
Date, covering the matters requested by and in form and substance
reasonably satisfactory to the Manager.
(f) The Manager shall have received on the Closing Date, a letter
dated the Closing Date, in each case in form and substance satisfactory to
the Manager, from (i)Deloitte & Touche LLP, independent public
accountants, 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 reviewed by
them contained in or incorporated by reference in the Registration
Statement and the Prospectus and (ii) each other firm of independent
accountants, if any, who audited or reviewed financial statements
contained in or incorporated by reference in the Registration Statement
and the Prospectus, containing statements and information of the type
ordinarily included in accountants' "comfort letters" to underwriters with
respect to such financial statements and financial information.
(g) The Manager shall have received on the date hereof or on the
Closing Date, as applicable, such additional documents as the Manager
shall have reasonably requested to confirm compliance with the conditions
to Closing listed herein.
5. Covenants of the Company. In further consideration of the agreements of
the Underwriters herein contained, the Issuers covenant as follows:
(a) To furnish to the Manager, without charge, a copy of the
Registration Statement and two signed copies of any post-effective
amendment thereto specifically
9
relating to the Offered Securities (including exhibits thereto and
documents incorporated therein by reference) and, during the period
mentioned in paragraph (c) below, as many copies of the Prospectus, any
documents incorporated therein by reference and any supplements and
amendments thereto as the Manager may reasonably request.
(b) Before amending or supplementing the Registration Statement or
the Prospectus, to furnish the Manager a copy of each such proposed
amendment or supplement.
(c) If, during such period after the first date of the public
offering of the Offered Securities during which in the opinion of counsel
to the Manager the Prospectus is required by law to be delivered in
connection with sales by an Underwriter or dealer, any event shall occur
as a result of which it is necessary to amend or supplement the Prospectus
in order to make the statements therein, in the light of the circumstances
existing at the time, not misleading, forthwith to prepare and furnish, at
its expense, to the Underwriters and to the dealers (whose names and
addresses the Manager will furnish to the Company) to which Offered
Securities may have been sold by the Manager on behalf of the Underwriters
and to any other dealers on request, either amendments or supplements to
the Prospectus so that the statements in the Prospectus as so amended or
supplemented will not, in the light of the circumstances existing at the
time, be misleading.
(d) To endeavor to qualify the Offered Securities for offer and sale
under the securities or Blue Sky laws of such U.S. jurisdictions as the
Manager shall reasonably request.
(e) To make generally available to the Company's security holders as
soon as practicable an earnings statement covering the twelve month period
beginning on the first day of the first fiscal quarter commencing after
the date hereof, which shall satisfy the provisions of Section 11(a) of
the Securities Act and the rules and regulations of the Commission
thereunder (which may be accomplished by making generally available the
Company's financial statements in the manner provided for by Rule 158 of
the Securities Act).
6. Indemnification and Contribution. The Issuers, jointly and severally,
agree to indemnify and hold harmless each Underwriter and each person, if any,
who controls each Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act from and against any and all
losses, claims, damages and liabilities caused by any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement or the Prospectus (as amended or supplemented) or any preliminary
prospectus, or caused by any omission or alleged omission to state therein a
material fact necessary to make the statements therein not misleading, except
insofar as such losses, claims, damages or liabilities are caused by any such
untrue statement or omission or alleged untrue statement or omission based upon
information furnished to any Issuer in writing by such Underwriter through the
Manager expressly for use therein; provided, however, that the foregoing
indemnity agreement with respect to any preliminary prospectus shall not inure
to the benefit of any Underwriter from whom the person asserting any such
losses, claims, damages or liabilities purchased Offered
10
Securities, or any person controlling any such Underwriter, if a copy of the
Prospectus (as then amended or supplemented) was not sent or given by or on
behalf of such Underwriter to such person, if required by law so to have been
delivered, at or prior to the written confirmation of the sale of the Offered
Securities to such person, and if the Prospectus (as so amended or supplemented
but without reference to documents incorporated by reference therein) would
have cured the defect giving rise to such loss, claim, damage or liability.
Each Underwriter agrees to indemnify and hold harmless each Issuer, their
respective directors and officers who sign the Registration Statement and each
person, if any, who controls an Issuer within the meaning of either Section 15
of the Securities Act or Section 20 of the Exchange Act to the same extent as
the foregoing indemnity from the Issuers to such Underwriter, but only with
reference to information relating to such Underwriter furnished to any Issuer
in writing by such Underwriter through the Manager expressly for use in the
Registration Statement, the Prospectus, any amendment or supplement thereto, or
any preliminary prospectus.
In case any proceeding (including any governmental investigation) shall be
instituted involving any person in respect of which indemnity may be sought
pursuant to either of the two preceding paragraphs, such person (hereinafter
called the "indemnified party") shall promptly notify the person against whom
such indemnity may be sought (hereinafter called the "indemnifying party") in
writing and the indemnifying party, upon request of the indemnified party,
shall retain counsel reasonably satisfactory to the indemnified party to
represent the indemnified party and any others the indemnifying party may
designate in such proceeding and shall pay the fees and disbursements of such
counsel related to such proceeding. In any such proceeding, any indemnified
party shall have the right to retain its own counsel, but the fees and expenses
of such counsel shall be at the expense of such indemnified party unless (i)
the indemnifying party and the indemnified party shall have mutually agreed to
the retention of such counsel or (ii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying party and the
indemnified party and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between them.
It is understood that the indemnifying party shall not, in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for the
reasonable fees and expenses of more than one separate firm (in addition to any
local counsel) for all such indemnified parties and that all such fees and
expenses shall be reimbursed as they are incurred. In the case of any such
separate firm for the Underwriters and such control persons of the
Underwriters, such firm shall be designated in writing by the Manager. In the
case of any such separate firm for the Issuers and such directors, officers and
controlling persons of the Issuers, such firm shall be designated in writing by
the Issuers. The indemnifying party shall not be liable for any settlement of
any proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify, to the extent provided in the two immediately
preceding paragraphs, the indemnified party from and against any loss or
liability by reason of such settlement or judgment. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
11
If the indemnification provided for in the second or third paragraph of
this Section 6 is unavailable to an indemnified party in respect of any losses,
claims, damages or liabilities for which indemnification is provided herein,
then the indemnifying party, in lieu of indemnifying such indemnified party,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (i) in such proportion as
is appropriate to reflect the relative benefits received by the Issuers on the
one hand and the Underwriters on the other from the offering of the Offered
Securities or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Issuers on the one hand and of the Underwriters on the
other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Issuers and the
Underwriters shall be deemed to be in the same respective proportions as the
net proceeds from the offering (before deducting expenses) received by the
Issuers bear to the total underwriting discounts and commissions received by
the Underwriters in respect thereof. The relative fault of the Issuers and the
Underwriters shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by
the Issuers or by the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
The Issuers and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 6 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 in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of
the losses, claims, damages and liabilities referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this Section 6, the Underwriters
shall not be required to contribute any amount in excess of the amount by which
the total price at which the Offered Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which the Underwriters have otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
The indemnity and contribution agreement contained in this Section 6 and
the representations and warranties of the Company contained in this Agreement
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf of
the Underwriters or any person controlling the Underwriters or by or on behalf
of the Issuers, their respective officers or directors or any other person
controlling an Issuer and (iii) acceptance of and payment for any of the
Offered Securities.
12
7. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Manager by notice given by the Manager to the
Issuers, if (a) after the execution and delivery of the Underwriting Agreement
and prior to the Closing Date (i) trading generally shall have been suspended
or materially limited on or by, as the case may be, the New York Stock
Exchange, the American Stock Exchange, or the National Association of
Securities Dealers, Inc., (ii) trading of any securities of the Company shall
have been suspended on the Nasdaq National Market, (iii) a general moratorium
on commercial banking activities in New York shall have been declared by either
Federal or New York State authorities, or (iv) there shall have occurred any
outbreak or escalation of hostilities or any change in financial markets or any
calamity or crisis that, in the judgment of the Manager, is material and
adverse and (b) in the case of any of the events specified in clauses (a)(i)
through (iv), such event, singly or together with any other such event, makes
it, in the judgment of the Manager, impracticable to market the Offered
Securities on the terms and in the manner contemplated in the Prospectus.
The Issuers will pay and bear all costs and expenses incident to the
performance of its obligations under this Agreement, including (a) the
preparation, printing and filing of the Registration Statement (including
financial statements and exhibits), as originally filed and as amended, the
preliminary prospectuses and the Prospectus and any amendments or supplements
thereto, and the cost of furnishing copies thereto to the Underwriters, (b) the
preparation, printing and distribution of this Agreement, the Senior Indenture,
the Subordinated Indenture, the Warrant Agreement, the Unit Agreement and the
Additional Guarantee, if any, and Blue Sky Memorandum, (c) the delivery of the
Offered Securities to the Underwriters, (d) the reasonable fees and
disbursements of the Issuers' counsel and accountants, (e) the qualification of
the Offered Securities under the applicable state securities or Blue Sky laws
in accordance with Section 5, including filing fees and reasonable fees and
disbursements of counsel for the Underwriters in connection therewith and in
connection with any Blue Sky survey and any legal investment survey, (f) all
fees payable to the National Association of Securities Dealers, Inc. in
connection with the review, if any, of the offering of the Securities, (g) any
fees charged by rating agencies for rating the Offered Securities and (h) the
fees and expenses of the Trustee, including the fees and disbursements of
counsel for the Trustee, in connection with the Senior Indenture, the
Subordinated Indenture and the Offered Securities. Except as specifically
provided elsewhere herein, the Underwriters will pay all of their own costs and
expenses, including without limitation the fees and expenses of their counsel
and the expenses of selling presentations.
If this Agreement shall be terminated by the Underwriters because of any
failure or refusal on the part of the Issuers to comply with the terms or to
fulfill any of the conditions of this Agreement, or if for any reason the
Issuers shall be unable to perform their obligations under this Agreement, the
Company will reimburse the Underwriters for all out-of-pocket expenses
(including the fees and disbursements of their counsel) reasonably incurred by
the Underwriters in connection with this Agreement or the offering contemplated
hereunder. This provision shall survive the termination or cancellation of this
Agreement.
8. Defaulting Underwriters. If on the Closing Date any one or more of the
Underwriters shall fail or refuse to purchase Offered Securities that it has or
they have agreed to purchase on such date, and the aggregate amount of Offered
Securities which such defaulting Underwriter or Underwriters agreed but failed
or refused to purchase is not more than one-tenth
13
of the aggregate amount of the Offered Securities to be purchased on such date,
the other Underwriters shall be obligated severally in the proportions that the
amount of Offered Securities set forth opposite their respective names bears to
the aggregate amount of Offered Securities set forth opposite the names of all
such non-defaulting Underwriters, or in such other proportions as the Manager
may specify, to purchase the Offered Securities which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase on such
date; provided that in no event shall the amount of Offered Securities that any
Underwriter has agreed to purchase pursuant to this Agreement be increased
pursuant to this Section 8 by an amount in excess of one-ninth of such amount
of Offered Securities without the written consent of such Underwriter. If on
the Closing Date any Underwriter or Underwriters shall fail or refuse to
purchase Offered Securities and the aggregate amount of Offered Securities with
respect to which such default occurs is more than one-tenth of the aggregate
amount of Offered Securities to be purchased on such date, and arrangements
satisfactory to the Manager and the Issuers for the purchase of such Offered
Securities are not made within 36 hours after such default, this Agreement
shall terminate without liability on the part of any non-defaulting Underwriter
or the Issuers. In any such case either the Manager or the Issuers shall have
the right to postpone the Closing Date but in no event for longer than seven
days, in order that the required changes, if any, in the Registration Statement
and in the Prospectus or in any other documents or arrangements may be
effected. Any action taken under this paragraph shall not relieve any
defaulting Underwriter from liability in respect of any default of such
Underwriter under this Agreement.
9. Counterparts. The Underwriting Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
10. Applicable Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York.
11. Headings. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
14
