UNDERWRITING AGREEMENT
February __, 1998
TABLE OF CONTENTS
Page
SECTION 1. Representations and Warranties . . . . . . . . . . . . . 4
SECTION 2. Sale and Delivery to Underwriters;
Closing . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 3. Covenants of the Company . . . . . . . . . . . . . . . . 20
SECTION 4. Payment of Expenses . . . . . . . . . . . . . . . . . . 24
SECTION 5. Conditions of Underwriters'
Obligations . . . . . . . . . . . . . . . . . . . . . 25
SECTION 6. Indemnification . . . . . . . . . . . . . . . . . . . . 30
SECTION 7. Contribution . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 9. Termination . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 10. Default by One or More of the
Underwriters . . . . . . . . . . . . . . . . . . . . 36
SECTION 11. Notices . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 12. Parties . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 13. Governing Law And Time . . . . . . . . . . . . . . . . . 38
SECTION 14. Effect of Headings . . . . . . . . . . . . . . . . . . . 38
PRELIMINARY DRAFT
ALIANT COMMUNICATIONS INC.
(a Nebraska corporation)
UNDERWRITING AGREEMENT
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
Aliant Communications Inc., a Nebraska corporation (the
"Company"), proposes to issue and sell up to $[ ] aggregate initial
public offering price of its senior debt securities (the "Debt
Securities"), from time to time, in or pursuant to one or more offerings
on terms to be determined at the time of sale.
The Debt Securities will be issued in one or more series under
an indenture, dated as of (the "Indenture"), between the Company
and , as trustee (the "Trustee"). Each series of Debt Securities
may vary as to title, aggregate principal amount, rank, interest rate or
formula and timing of payments thereof, stated maturity date, redemption
and/or repayment provisions, sinking fund requirements and any other
variable terms established by or pursuant to the Indenture.
Whenever the Company determines to make an offering of Debt
Securities through Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated ("Xxxxxxx Xxxxx"), or through an underwriting syndicate
managed by Xxxxxxx Xxxxx, the Company will enter into an agreement (each,
a "Terms Agreement") providing for the sale of such Debt Securities to,
and the purchase and offering thereof by, Xxxxxxx Xxxxx and such other
underwriters, if any, selected by Xxxxxxx Xxxxx (the "Underwriters", which
term shall include Xxxxxxx Xxxxx, whether acting as sole Underwriter or as
a member of an underwriting syndicate, as well as any Underwriter
substituted pursuant to Section 10 hereof). The Terms Agreement relating
to the offering of Debt Securities shall specify the aggregate principal
amount of Debt Securities to be initially issued (the "Initial
Underwritten Debt Securities"), the name of each Underwriter participating
in such offering (subject to substitution as provided in Section 10
hereof) and the name of any Underwriter other xxxx Xxxxxxx Xxxxx acting as
co-manager in connection with such offering, the aggregate principal
amount of Initial Underwritten Debt Securities which each such Underwriter
severally agrees to purchase, whether such offering is on a fixed or
variable price basis and, if on a fixed price basis, the initial offering
price, the price at which the Initial Underwritten Debt Securities are to
be purchased by the Underwriters, the form, time, date and place of
delivery and payment of the Initial Underwritten Debt Securities and any
other material variable terms of the Initial Underwritten Debt Securities.
In addition, if applicable, such Terms Agreement shall specify whether the
Company has agreed to grant to the Underwriters an option to purchase
additional Debt Securities to cover over-allotments, if any, and the
number or aggregate principal amount, as the case may be, of Debt
Securities subject to such option (the "Option Underwritten Debt
Securities"). As used herein, the term "Underwritten Debt Securities"
shall include the Initial Underwritten Debt Securities and all or any
portion of any Option Underwritten Debt Securities. The Terms Agreement,
which shall be substantially in the form of Exhibit A hereto, may take the
form of an exchange of any standard form of written telecommunication
between the Company and Xxxxxxx Xxxxx, acting for itself and, if
applicable, as representative of any other Underwriters. Each offering of
Underwritten Debt Securities through Xxxxxxx Xxxxx as sole Underwriter or
through an underwriting syndicate managed by Xxxxxxx Xxxxx will be
governed by this Underwriting Agreement, as supplemented by the applicable
Terms Agreement.
The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (No.
333- ) for the registration of the Debt Securities under the
Securities Act of 1933, as amended (the "1933 Act"), and the offering
thereof from time to time in accordance with Rule 415 of the rules and
regulations of the Commission under the 1933 Act (the "1933 Act
Regulations"), and the Company has filed such post-effective amendments
thereto as may be required prior to the execution of the applicable Terms
Agreement. Such registration statement (as so amended, if applicable) has
been declared effective by the Commission and the Indenture has been duly
qualified under the Trust Indenture Act of 1939, as amended (the "1939
Act"). Such registration statement (as so amended, if applicable),
including the information, if any, deemed to be a part thereof pursuant to
Rule 430A(b) of the 1933 Act Regulations (the "Rule 430A Information") or
Rule 434(d) of the 1933 Act Regulations (the "Rule 434 Information"), is
referred to herein as the "Registration Statement"; and the final
prospectus and the final prospectus supplement relating to the offering of
the Underwritten Debt Securities, in the form first furnished to the
Underwriters by the Company for use in connection with the offering of the
Underwritten Debt Securities, are collectively referred to herein as the
"Prospectus"; provided, however, that all references to the "Registration
Statement" and the "Prospectus" shall also be deemed to include all
documents incorporated therein by reference pursuant to the Securities
Exchange Act of 1934, as amended (the "1934 Act"), prior to the execution
of the applicable Terms Agreement; provided, further, that if the Company
files a registration statement with the Commission pursuant to Rule 462(b)
of the 1933 Act Regulations (the "Rule 462 Registration Statement"), then,
after such filing, all references to "Registration Statement" shall also
be deemed to include the Rule 462 Registration Statement; and provided,
further, that if the Company elects to rely upon Rule 434 of the 1933 Act
Regulations, then all references to "Prospectus" shall also be deemed to
include the final or preliminary prospectus and the applicable term sheet
or abbreviated term sheet (the "Term Sheet"), as the case may be, in the
form first furnished to the Underwriters by the Company in reliance upon
Rule 434 of the 1933 Act Regulations, and all references in this
Underwriting Agreement to the date of the Prospectus shall mean the date
of the Term Sheet. A "preliminary prospectus" shall be deemed to refer to
any prospectus used before the registration statement became effective and
any prospectus that omitted, as applicable, the Rule 430A Information, the
Rule 434 Information or other information to be included upon pricing in a
form of prospectus filed with the Commission pursuant to Rule 424(b) of
the 1933 Act Regulations, that was used after such effectiveness and prior
to the execution and delivery of the applicable Terms Agreement. For
purposes of this Underwriting Agreement, all references to the
Registration Statement, Prospectus, Term Sheet or preliminary prospectus
or to any amendment or supplement to any of the foregoing shall be deemed
to include any copy filed with the Commission pursuant to its Electronic
Data Gathering, Analysis and Retrieval system ("XXXXX").
All references in this Underwriting Agreement to financial
statements and schedules and other information which is "contained,"
"included" or "stated" (or other references of like import) in the
Registration Statement, Prospectus or preliminary prospectus shall be
deemed to mean and include all such financial statements and schedules and
other information which is incorporated by reference in the Registration
Statement, Prospectus or preliminary prospectus, as the case may be; and
all references in this Underwriting Agreement to amendments or supplements
to the Registration Statement, Prospectus or preliminary prospectus shall
be deemed to mean and include the filing of any document under the 1934
Act which is incorporated by reference in the Registration Statement,
Prospectus or preliminary prospectus, as the case may be.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company. The Company
represents and warrants to Xxxxxxx Xxxxx, as of the date hereof, and to
each Underwriter named in the applicable Terms Agreement, as of the date
thereof, as of the Closing Time (as defined below) and, if applicable, as
of each Date of Delivery (as defined below) (in each case, a
"Representation Date"), as follows:
(1) Compliance with Registration Requirements. The
Company meets the requirements for use of Form S-3 under the
1933 Act. Each of the Registration Statement and any Rule
462(b) Registration Statement has become effective under the
1933 Act and no stop order suspending the effectiveness of the
Registration Statement or any Rule 462(b) Registration Statement
has been issued under the 1933 Act and no proceedings for that
purpose have been instituted or are pending or, to the knowledge
of the Company, are contemplated by the Commission, and any
request on the part of the Commission for additional information
has been complied with. In addition, the Indenture has been
duly qualified under the 1939 Act.
At the respective times the Registration Statement, any Rule
462(b) Registration Statement and any post-effective amendments
thereto (including the filing of the Company's most recent Annual
Report on Form 10-K with the Commission (the "Annual Report on Form
10-K")) became effective and at each Representation Date, the
Registration Statement, any Rule 462(b) Registration Statement and
any amendments and supplements thereto complied and will comply in
all material respects with the requirements of the 1933 Act and the
1933 Act Regulations and the 1939 Act and the rules and regulations
of the Commission under the 1939 Act (the "1939 Act Regulations") and
did not and will not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading. At the date
of the Prospectus, at the Closing Time and at each Date of Delivery,
if any, the Prospectus and any amendments and supplements thereto did
not and will not include an untrue statement of a material fact or
omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading. If the Company elects to rely upon
Rule 434 of the 1933 Act Regulations, the Company will comply with
the requirements of Rule 434. Notwithstanding the foregoing, the
representations and warranties in this subsection shall not apply to
statements in or omissions from the Registration Statement or the
Prospectus made in reliance upon and in conformity with information
furnished to the Company in writing by any Underwriter through
Xxxxxxx Xxxxx expressly for use in the Registration Statement or the
Prospectus.
Each preliminary prospectus and prospectus filed as part of the
Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the 1933 Act,
complied when so filed in all material respects with the 1933 Act
Regulations and each preliminary prospectus and the Prospectus
delivered to the Underwriters for use in connection with the offering
of Underwritten Debt Securities will, at the time of such delivery,
be identical to any electronically transmitted copies thereof filed
with the Commission pursuant to XXXXX, except to the extent permitted
by Regulation S-T.
(2) Incorporated Documents. The documents incorporated or
deemed to be incorporated by reference in the Registration
Statement and the Prospectus, when they became effective or at
the time they were or hereafter are filed with the Commission,
complied and will comply in all material respects with the
requirements of the 1934 Act and the rules and regulations of
the Commission thereunder (the "1934 Act Regulations") and, when
read together with the other information in the Prospectus, at
the date of the Prospectus, at the Closing Time and at each Date
of Delivery, if any, did not and will not include an untrue
statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(3) Independent Accountants. The accountants who
certified the financial statements and any supporting schedules
thereto included in the Registration Statement and the
Prospectus are independent public accountants as required by the
1933 Act and the 1933 Act Regulations.
(4) Financial Statements. The financial statements of the
Company included in the Registration Statement and the
Prospectus, together with the related schedules and notes, as
well as those financial statements, schedules and notes of any
other entity included therein, present fairly the financial
position of the Company and its consolidated subsidiaries, or
such other entity, as the case may be, at the dates indicated
and the statement of operations, stockholders' equity and cash
flows of the Company and its consolidated subsidiaries, or such
other entity, as the case may be, for the periods specified.
Such financial statements have been prepared in conformity with
generally accepted accounting principles ("GAAP") applied on a
consistent basis throughout the periods involved. The
supporting schedules, if any, included in the Registration
Statement and the Prospectus present fairly in accordance with
GAAP the information required to be stated therein. The
selected financial data and the summary financial information
included in the Prospectus present fairly the information shown
therein and have been compiled on a basis consistent with that
of the audited financial statements included in the Registration
Statement and the Prospectus. In addition, any pro forma
financial statements of the Company and its subsidiaries and the
related notes thereto included in the Registration Statement and
the Prospectus present fairly the information shown therein,
have been prepared in accordance with the Commission's rules and
guidelines with respect to pro forma financial statements and
have been properly compiled on the bases described therein, and
the assumptions used in the preparation thereof are reasonable
and the adjustments used therein are appropriate to give effect
to the transactions and circumstances referred to therein.
(5) No Material Adverse Change in Business. Since the
respective dates as of which information is given in the
Registration Statement and the Prospectus, except as otherwise
stated therein, (A) there has been no material adverse change in
the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business (a "Material Adverse
Effect"), (B) there have been no transactions entered into by
the Company or any of its subsidiaries, other than those arising
in the ordinary course of business, which are material with
respect to the Company and its subsidiaries considered as one
enterprise and (C) except for regular dividends on the Company's
common stock or preferred stock, in amounts per share that are
consistent with past practice or the applicable charter document
or supplement thereto, respectively, there has been no dividend
or distribution of any kind declared, paid or made by the
Company on any class of its capital stock.
(6) Good Standing of the Company. The Company has been
duly organized and is validly existing as a corporation in good
standing under the laws of the State of Nebraska and has
corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under,
or as contemplated under, this Underwriting Agreement and the
applicable Terms Agreement. The Company is duly qualified as a
foreign corporation to transact business and is in good standing
in each other jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure to
so qualify or be in good standing would not result in a Material
Adverse Effect.
(7) Good Standing of Subsidiaries. Each "significant
subsidiary" of the Company (as such term is defined in Rule 1-02
of Regulation S-X promulgated under the 1933 Act, each a
"Subsidiary" and collectively, the "Subsidiaries"), has been
duly organized and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its
incorporation, has corporate power and authority to own, lease
and operate its properties and to conduct its business as
described in the Prospectus and is duly qualified as a foreign
corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify or be in good
standing would not result in a Material Adverse Effect. Except
as otherwise stated in the Registration Statement and the
Prospectus, all of the issued and outstanding capital stock of
each Subsidiary has been duly authorized and is validly issued,
fully paid and nonassessable and is owned by the Company,
directly or through subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity.
None of the outstanding shares of capital stock of any
Subsidiary was issued in violation of preemptive or other
similar rights of any securityholder of such Subsidiary.
(8) Capitalization. If the Prospectus contains a
"Capitalization" section, the authorized, issued and outstanding
shares of capital stock of the Company is as set forth in the
column entitled "Actual" under such section (except for
subsequent issuances thereof, if any, contemplated under this
Underwriting Agreement, pursuant to reservations, agreements or
employee benefit plans referred to in the Prospectus or pursuant
to the exercise of convertible securities or options referred to
in the Prospectus). Such shares of capital stock have been duly
authorized and validly issued by the Company and are fully paid
and nonassessable, and none of such shares of capital stock was
issued in violation of preemptive or other similar rights of any
securityholder of the Company.
(9) Authorization of this Underwriting Agreement and Terms
Agreement. This Underwriting Agreement has been, and the
applicable Terms Agreement as of the date thereof will have
been, duly authorized, executed and delivered by the Company.
(10) Authorization of Debt Securities. The Underwritten
Debt Securities have been, or as of the date of such Terms
Agreement will have been, duly authorized by the Company for
issuance and sale pursuant to this Underwriting Agreement and
such Terms Agreement. Such Underwritten Debt Securities, when
issued and authenticated in the manner provided for in the
Indenture and delivered against payment of the consideration
therefor specified in such Terms Agreement, will constitute
valid and legally 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, reorganization, moratorium or other similar laws
relating to or affecting creditors' rights generally or by
general equitable principles, and except further as enforcement
thereof may be limited by (A) requirements that a claim with
respect to any Debt Securities denominated other than in U.S.
dollars (or a foreign or composite currency judgment in respect
of such claim) be converted into U.S. dollars at a rate of
exchange prevailing on a date determined pursuant to applicable
law or (B) governmental authority to limit, delay or prohibit
the making of payments outside the United States. Such
Underwritten Debt Securities will be in the form contemplated
by, and each registered holder thereof is entitled to the
benefits of, the Indenture.
(11) Authorization of the Indenture. The Indenture has
been, or prior to the issuance of the Debt Securities thereunder
will have been, duly authorized, executed and delivered by the
Company and, upon such authorization, execution and delivery,
will constitute a valid and legally 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, reorganization, moratorium or other
similar laws relating to or affecting creditors' rights
generally or by general equitable principles.
(12) Descriptions of the Underwritten Debt Securities and
the Indenture. The Underwritten Debt Securities being sold
pursuant to the applicable Terms Agreement and the Indenture as
of the date of the Prospectus when issued and delivered in
accordance with the terms of the related Underwritten Debt
Securities, will conform in all material respects to the
statements relating thereto contained in the Prospectus and will
be in substantially the form filed or incorporated by reference,
as the case may be, as an exhibit to the Registration Statement.
(13) Absence of Defaults and Conflicts. Neither the
Company nor any of its subsidiaries is in violation of its
charter or by-laws or in default in the performance or
observance of any obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, deed of trust,
loan or credit agreement, note, lease or other agreement or
instrument to which the Company or any of its subsidiaries is a
party or by which it or any of them may be bound, or to which
any of the property or assets of the Company or any of its
subsidiaries is subject (collectively, "Agreements and
Instruments"), except for such defaults that would not result in
a Material Adverse Effect. The execution, delivery and
performance of this Underwriting Agreement, the applicable Terms
Agreement and the Indenture and any other agreement or
instrument entered into or issued or to be entered into or
issued by the Company in connection with the transactions
contemplated hereby or thereby or in the Registration Statement
and the Prospectus and the consummation of the transactions
contemplated herein and in the Registration Statement and the
Prospectus (including the issuance and sale of the Underwritten
Debt Securities and the use of the proceeds from the sale of the
Underwritten Debt Securities as described under the caption "Use
of Proceeds") and compliance by the Company with its obligations
hereunder and thereunder have been duly authorized by all
necessary corporate action and do not and will not, whether with
or without the giving of notice or passage of time or both,
conflict with or constitute a breach of, or default or Repayment
Event (as defined below) under, or result in the creation or
imposition of any lien, charge or encumbrance upon any assets,
properties or operations of the Company or any of its
subsidiaries pursuant to, any Agreements and Instruments (except
for such conflicts, breaches, defaults, events or liens, charges
or encumbrances that would not result in a Material Adverse
Effect) nor will such action result in any violation of the
provisions of the charter or by-laws of the Company or any of
its subsidiaries or any applicable law, statute, rule,
regulation, judgment, order, writ or decree of any government,
government instrumentality or court, domestic or foreign, having
jurisdiction over the Company or any of its subsidiaries or any
of their assets, properties or operations. As used herein, a
"Repayment Event" means any event or condition which gives the
holder of any note, debenture or other evidence of indebtedness
(or any person acting on such holder's behalf) the right to
require the repurchase, redemption or repayment of all or a
portion of such indebtedness by the Company or any of its
subsidiaries.
(14) Absence of Labor Dispute. No labor dispute with the
employees of the Company or any of its subsidiaries exists or,
to the knowledge of the Company, is imminent, and the Company is
not aware of any existing or imminent labor disturbance by the
employees of any of its or any subsidiary's principal suppliers,
manufacturers, customers or contractors, which, in either case,
may reasonably be expected to result in a Material Adverse
Effect.
(15) Absence of Proceedings. There is not pending or
threatened any action, suit, proceeding, inquiry or
investigation before or brought by any court or governmental
agency or body, domestic or foreign, including but not limited
to the Federal Communications Commission ("FCC") or the Nebraska
Public Service Commission ("NPSC") now pending, or to the
knowledge of the Company threatened, against or affecting the
Company or any of its subsidiaries which is required to be
disclosed in the Registration Statement and the Prospectus
(other than as stated therein), or which might reasonably be
expected to result in a Material Adverse Effect, or which might
reasonably be expected to materially and adversely affect the
assets, properties or operations thereof or the consummation of
the transactions contemplated under this Underwriting Agreement,
the applicable Terms Agreement or the Indenture or the
performance by the Company of its obligations hereunder and
thereunder. The aggregate of all pending legal or governmental
proceedings to which the Company or any of its subsidiaries is a
party or of which any of their respective assets, properties or
operations is the subject which are not described in the
Registration Statement and the Prospectus, including ordinary
routine litigation incidental to the business, could not
reasonably be expected to result in a Material Adverse Effect.
(16) Accuracy of Exhibits. There are no contracts or
documents which are required to be described in the Registration
Statement, the Prospectus or the documents incorporated by
reference therein or to be filed as exhibits thereto which have
not been so described and filed as required.
(17) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order registration,
qualification or decree of, any court or governmental authority
or agency, domestic or foreign, is necessary or required for the
performance by the Company of its obligations under this
Underwriting Agreement or the applicable Terms Agreement or in
connection with the transactions contemplated under this
Underwriting Agreement, such Terms Agreement or the Indenture,
except such as have been already obtained or as may be required
under state securities laws.
(18) Possession of Intellectual Property. The Company and
its subsidiaries own or possess, or can acquire on reasonable
terms, adequate patents, patent rights, licenses, inventions,
copyrights, know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential
information, systems or procedures), trademarks, service marks,
trade names or other intellectual property (collectively,
"Intellectual Property") necessary to carry on the business now
operated by them, and neither the Company nor any of its
subsidiaries has received any notice or is otherwise aware of
any infringement of or conflict with asserted rights of others
with respect to any Intellectual Property or of any facts or
circumstances which would render any Intellectual Property
invalid or inadequate to protect the interest of the Company or
any of its subsidiaries therein, and which infringement or
conflict (if the subject of any unfavorable decision, ruling or
finding) or invalidity or inadequacy, singly or in the
aggregate, would result in a Material Adverse Effect.
(19) Possession of Licenses and Permits. The Company and
its subsidiaries possess such permits, licenses, approvals,
consents and other authorizations (collectively, "Governmental
Licenses") issued by the appropriate Federal, state, local or
foreign regulatory agencies or bodies, including but not limited
to the FCC and NPSC, necessary to conduct the business now
operated by them. The Company and its subsidiaries are in
compliance with the terms and conditions of all such
Governmental Licenses, except where the failure so to comply
would not, singly or in the aggregate, result in a Material
Adverse Effect. All of the Governmental Licenses are valid and
in full force and effect, except where the invalidity of such
Governmental Licenses or the failure of such Governmental
Licenses to be in full force and effect would not result in a
Material Adverse Effect. Neither the Company nor any of its
subsidiaries has received any notice of proceedings relating to
the revocation or modification of any such Governmental Licenses
which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would result in a
Material Adverse Effect.
(20) Title to Property. The Company and its subsidiaries
have good and marketable title to all real property owned by the
Company and its subsidiaries and good title to all other
properties owned by them, in each case, free and clear of all
mortgages, pledges, liens, security interests, claims,
restrictions or encumbrances of any kind, except (A) as
otherwise stated in the Registration Statement and the
Prospectus or (B) those which do not, singly or in the
aggregate, materially affect the value of such property and do
not interfere with the use made and proposed to be made of such
property by the Company or any of its subsidiaries. All of the
leases and subleases material to the business of the Company and
its subsidiaries considered as one enterprise, and under which
the Company or any of its subsidiaries holds properties
described in the Prospectus, are in full force and effect, and
neither the Company nor any of its subsidiaries has received any
notice of any material claim of any sort that has been asserted
by anyone adverse to the rights of the Company or any of its
subsidiaries under any of the leases or subleases mentioned
above, or affecting or questioning the rights of the Company or
such subsidiary of the continued possession of the leased or
subleased premises under any such lease or sublease.
(21) Commodity Exchange Act. The Underwritten Debt
Securities being sold pursuant to the applicable Terms
Agreement, upon issuance, will be excluded or exempted under, or
beyond the purview of, the Commodity Exchange Act, as amended
(the "Commodity Exchange Act"), and the rules and regulations of
the Commodity Futures Trading Commission under the Commodity
Exchange Act (the "Commodity Exchange Act Regulations").
(22) Investment Company Act. The Company is not, and upon
the issuance and sale of the Underwritten Debt Securities as
herein contemplated and the application of the net proceeds
therefrom as described in the Prospectus will not be, an
"investment company" within the meaning of the Investment
Company Act of 1940, as amended (the "1940 Act").
(23) Environmental Laws. Except as otherwise stated in the
Registration Statement and the Prospectus and except as would
not, singly or in the aggregate, result in a Material Adverse
Effect, (A) neither the Company nor any of its subsidiaries is
in violation of any Federal, state, local or foreign statute,
law, rule, regulation, ordinance, code, policy or rule of common
law or any judicial or administrative interpretation thereof
including any judicial or administrative order, consent, decree
or judgment, relating to pollution or protection of human
health, the environment (including, without limitation, ambient
air, surface water, groundwater, land surface or subsurface
strata) or wildlife, including, without limitation, laws and
regulations relating to the release or threatened release of
chemicals, pollutants, contaminants, wastes, toxic substances,
hazardous substances, petroleum or petroleum products
(collectively, "Hazardous Materials") or to the manufacture,
processing, distribution, use, treatment, storage, disposal,
transport or handling of Hazardous Materials (collectively,
"Environmental Laws"), (B) the Company and its subsidiaries have
all permits, authorizations and approvals required under any
applicable Environmental Laws and are each in compliance with
their requirements, (C) there are no pending or threatened
administrative, regulatory or judicial actions, suits, demands,
demand letters, claims, liens, notices of noncompliance or
violation, investigation or proceedings relating to any
Environmental Law against the Company or any of its subsidiaries
and (D) there are no events or circumstances that might
reasonably be expected to form the basis of an order for clean-
up or remediation, or an action, suit or proceeding by any
private party or governmental body or agency, against or
affecting the Company or any of its subsidiaries relating to
Hazardous Materials or any Environmental Laws.
(b) Officers' Certificates. Any certificate signed by any
officer of the Company or any of its subsidiaries and delivered to any
Underwriter or to counsel for the Underwriters in connection with the
offering of the Underwritten Debt Securities shall be deemed a
representation and warranty by the Company to each Underwriter as to the
matters covered thereby on the date of such certificate and, unless
subsequently amended or supplemented, at each Representation Date
subsequent thereto.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Underwritten Debt Securities. The several commitments of
the Underwriters to purchase the Underwritten Debt Securities pursuant to
the applicable Terms Agreement shall be deemed to have been made on the
basis of the representations and warranties herein contained and shall be
subject to the terms and conditions herein set forth.
(b) Option Underwritten Debt Securities. In addition, subject
to the terms and conditions herein set forth, the Company may grant, if so
provided in the applicable Terms Agreement, an option to the Underwriters,
severally and not jointly, to purchase up to the aggregate principal
amount, of the Option Underwritten Debt Securities set forth therein at a
price per Option Underwritten Debt Security equal to the price per Initial
Underwritten Debt Security. Such option, if granted, will expire 30 days
after the date of such Terms Agreement, and may be exercised in whole or
in part from time to time only for the purpose of covering over-allotments
which may be made in connection with the offering and distribution of the
Initial Underwritten Debt Securities upon notice by Xxxxxxx Xxxxx to the
Company setting forth the aggregate principal amount of Option
Underwritten Debt Securities as to which the several Underwriters are then
exercising the option and the time, date and place of payment and delivery
for such Option Underwritten Debt Securities. Any such time and date of
payment and delivery (each, a "Date of Delivery") shall be determined by
Xxxxxxx Xxxxx, but shall not be later than seven full business days after
the exercise of said option, nor in any event prior to the Closing Time,
unless otherwise agreed upon by Xxxxxxx Xxxxx and the Company. If the
option is exercised as to all or any portion of the Option Underwritten
Debt Securities, each of the Underwriters, severally and not jointly, will
purchase that proportion of the aggregate principal amount of Option
Underwritten Debt Securities then being purchased which the aggregate
principal amount of Initial Underwritten Debt Securities each such
Underwriter has severally agreed to purchase as set forth in such Terms
Agreement bears to the total number or aggregate principal amount of
Initial Underwritten Debt Securities, subject to such adjustments as
Xxxxxxx Xxxxx in its discretion shall make to eliminate any sales or
purchases of a fractional aggregate principal amount of Option
Underwritten Debt Securities.
(c) Payment. Payment of the purchase price for, and delivery
of, the Initial Underwritten Debt Securities shall be made at the offices
of Skadden, Arps, Slate, Xxxxxxx & Xxxx (Illinois), 000 Xxxx Xxxxxx Xxxxx,
Xxxxx 0000, Xxxxxxx, XX 00000, or at such other place as shall be agreed
upon by Xxxxxxx Xxxxx and the Company, at 9:00 A.M. (Central time) on the
third (fourth, if the pricing occurs after 3:30 P.M. Central time) on any
given day business day after the date of the applicable Terms Agreement
(unless postponed in accordance with the provisions of Section 10 hereof),
or such other time not later than 10 business days after such date as
shall be agreed upon by Xxxxxxx Xxxxx and the Company (such time and date
of payment and delivery being herein called "Closing Time"). In addition,
in the event that the Underwriters have exercised their option, if any, to
purchase any or all of the Option Underwritten Debt Securities, payment of
the purchase price for, and delivery of such Option Underwritten Debt
Securities, shall be made at the above-mentioned offices of Skadden, Arps,
Slate, Xxxxxxx & Xxxx (Illinois), or at such other place as shall be
agreed upon by Xxxxxxx Xxxxx and the Company, on the relevant Date of
Delivery as specified in the notice from Xxxxxxx Xxxxx to the Company.
Payment shall be made to the Company by wire transfer of
immediately available funds to a bank account designated by the Company,
against delivery to Xxxxxxx Xxxxx for the respective accounts of the
Underwriters of the Underwritten Debt Securities to be purchased by them.
It is understood that each Underwriter has authorized Xxxxxxx Xxxxx, for
its account, to accept delivery of, receipt for, and make payment of the
purchase price for, the Underwritten Debt Securities which it has
severally 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 Underwritten Debt Securities to
be purchased by any Underwriter whose funds have not been received by the
Closing Time or the relevant Date of Delivery, as the case may be, but
such payment shall not relieve such Underwriter from its obligations
hereunder.
(d) Denominations; Registration. The Underwritten Debt
Securities, or certificates for the Underwritten Debt Securities, as
applicable, shall be in such denominations and registered in such names as
Xxxxxxx Xxxxx may request in writing at least one full business day prior
to the Closing Time or the relevant Date of Delivery, as the case may be.
The Underwritten Debt Securities, or certificates for the Underwritten
Debt Securities, as applicable, will be made available for examination and
packaging by Xxxxxxx Xxxxx in The City of New York not later than 10:00
A.M. (Eastern time) on the business day prior to the Closing Time or the
relevant Date of Delivery, as the case may be.
SECTION 3. Covenants of the Company. The Company covenants
with Xxxxxxx Xxxxx and with each Underwriter participating in the offering
of Underwritten Debt Securities, as follows:
(a) Compliance with Securities Regulations and Commission
Requests. The Company, subject to Section 3(b), will comply with the
requirements of Rule 430A of the 1933 Act Regulations and/or Rule 434 of
the 1933 Act Regulations, if and as applicable, and will notify the
Representative(s) immediately, and confirm the notice in writing, of (i)
the effectiveness of any post-effective amendment to the Registration
Statement or the filing of any supplement or amendment to the Prospectus,
(ii) the receipt of any comments from the Commission, (iii) any request by
the Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or for additional information,
and (iv) the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing or
suspending the use of any preliminary prospectus, or of the suspension of
the qualification of the Underwritten Debt Securities for offering or sale
in any jurisdiction, or of the initiation or threatening of any
proceedings for any of such purposes. The Company will promptly effect
the filings necessary pursuant to Rule 424 and will take such steps as it
deems necessary to ascertain promptly whether the Prospectus transmitted
for filing under Rule 424 was received for filing by the Commission and,
in the event that it was not, it will promptly file the Prospectus. The
Company will make every reasonable effort to prevent the issuance of any
stop order and, if any stop order is issued, to obtain the lifting thereof
at the earliest possible moment.
(b) Filing of Amendments. The Company will give Xxxxxxx Xxxxx
notice of its intention to file or prepare any amendment to the
Registration Statement (including any filing under Rule 462(b) of the 1933
Act Regulations), any Term Sheet or any amendment, supplement or revision
to either the prospectus included in the Registration Statement at the
time it became effective or to the Prospectus, whether pursuant to the
1933 Act, the 1934 Act or otherwise, will xxxxxxx Xxxxxxx Xxxxx with
copies of any such documents a reasonable amount of time prior to such
proposed filing or use, as the case may be, and will not file or use any
such document to which Xxxxxxx Xxxxx or counsel for the Underwriters shall
object.
(c) Delivery of Registration Statements. The Company has
furnished or will deliver to Xxxxxxx Xxxxx and counsel for the
Underwriters, without charge, signed copies of the Registration Statement
as originally filed and of each amendment thereto (including exhibits
filed therewith or incorporated by reference therein and documents
incorporated or deemed to be incorporated by reference therein) and signed
copies of all consents and certificates of experts, and will also deliver
to Xxxxxxx Xxxxx, without charge, a conformed copy of the Registration
Statement as originally filed and of each amendment thereto (without
exhibits) for each of the Underwriters. Copies of the Registration
Statement and each amendment thereto furnished to the Underwriters will be
identical to any electronically transmitted copies thereof filed with the
Commission pursuant to XXXXX, except to the extent permitted by Regulation
S-T.
(d) Delivery of Prospectuses. The Company will deliver to each
Underwriter, without charge, as many copies of each preliminary prospectus
as such Underwriter may reasonably request, and the Company hereby
consents to the use of such copies for purposes permitted by the 1933 Act.
The Company will furnish to each Underwriter, without charge, during the
period when the Prospectus is required to be delivered under the 1933 Act
or the 1934 Act, such number of copies of the Prospectus as such
Underwriter may reasonably request. The Prospectus and any amendments or
supplements thereto furnished to the Underwriters will be identical to any
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 Act Regulations and the 1934
Act and the 1934 Act Regulations so as to permit the completion of the
distribution of the Underwritten Debt Securities as contemplated in this
Underwriting Agreement and the applicable Terms Agreement and in the
Registration Statement and the Prospectus. If at any time when the
Prospectus is required by the 1933 Act or the 1934 Act to be delivered in
connection with sales of the Debt Securities, 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 in order that the Registration Statement will not
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading or to amend or supplement the Prospectus in order
that the Prospectus will not include an untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements therein not misleading in the light of the circumstances
existing at the time it is delivered to a purchaser, or if it shall be
necessary, in the opinion of such counsel, at any such time to amend the
Registration Statement or amend or supplement the Prospectus in order to
comply with the requirements of the 1933 Act or the 1933 Act Regulations,
the Company 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, without charge, 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 Underwritten
Debt Securities for offering and sale under the applicable securities laws
of such states and other jurisdictions (domestic or foreign) as Xxxxxxx
Xxxxx may designate and to maintain such qualifications in effect for a
period of not less than one year from the date of the applicable Terms
Agreement; 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. In
each jurisdiction in which the Underwritten Debt Securities have been so
qualified, the Company will file such statements and reports as may be
required by the laws of such jurisdiction to continue such qualification
in effect for a period of not less than one year from the date of such
Terms Agreement.
(g) Earnings Statement. The Company will timely file such
reports pursuant to the 1934 Act as are necessary in order to make
generally available to its securityholders as soon as practicable an
earnings statement for the purposes of, and to provide the benefits
contemplated by, the last paragraph of Section II(a) of the 1933 Act.
(h) Use of Proceeds. The Company will use the net proceeds
received by it from the sale of the Underwritten Debt Securities in the
manner specified in the Prospectus under "Use of Proceeds."
(i) Listing. The Company will use its best efforts to effect
the listing of the Underwritten Debt Securities, prior to the Closing
Time, on any national securities exchange or quotation system if and as
specified in the applicable Terms Agreement.
(j) Restriction on Sale of Debt Securities. Between the date
of the applicable Terms Agreement and the Closing Time or such other date
specified in such Terms Agreement, the Company will not, without the prior
written consent of Xxxxxxx Xxxxx, directly or indirectly, issue, sell,
offer to sell, grant any option for the sale of, or otherwise dispose of,
the securities specified in such Terms Agreement.
(k) Reporting Requirements. The Company, during the period
when the Prospectus is required to be delivered under the 1933 Act or the
1934 Act, will file all documents required to be filed with the Commission
pursuant to the 1934 Act within the time periods required by the 1934 Act
and the 1934 Act Regulations.
SECTION 4. Payment of Expenses.
(a) Expenses. The Company will pay all expenses incident to
the performance of its obligations under this Underwriting Agreement or
the applicable Terms Agreement, including (i) the preparation, printing
and filing of the Registration Statement (including financial statements
and exhibits) as originally filed and of each amendment thereto, (ii) the
preparation, printing and delivery to the Underwriters of this
Underwriting Agreement, any Terms Agreement, any Agreement among
Underwriters, the Indenture, and such other documents as may be required
in connection with the offering, purchase, sale, issuance or delivery of
the Underwritten Debt Securities, (iii) the preparation, issuance and
delivery of the Underwritten Debt Securities, any certificates for the
Underwritten Debt Securities to the Underwriters, including any transfer
taxes and any stamp or other duties payable upon the sale, issuance or
delivery of the Underwritten Debt Securities to the Underwriters, (iv) the
fees and disbursements of the Company's counsel, accountants and other
advisors or agents (including transfer agents and registrars), as well as
the fees and disbursements of the Trustees, and their respective counsel,
(v) the qualification of the Underwritten Debt Securities under state
securities laws in accordance with the provisions of Section 3(f) hereof,
including filing fees and the reasonable fees and disbursements of counsel
for the Underwriters in connection therewith and in connection with the
preparation, printing and delivery of the Blue Sky Survey and any Legal
Investment Survey, and any amendment thereto, (vi) the printing and
delivery to the Underwriters of copies of each preliminary prospectus, any
Term Sheet, and the Prospectus and any amendments or supplements thereto,
(vii) the fees charged by nationally recognized statistical rating
organizations for the rating of the Underwritten Debt Securities, (viii)
the fees and expenses incurred with respect to the listing of the
Underwritten Debt Securities, (ix) the filing fees incident to, and the
reasonable fees and disbursements of counsel to the Underwriters in
connection with, the review, if any, by the National Association of
Securities Dealers, Inc. (the "NASD") of the terms of the sale of the
Underwritten Debt Securities, and (x) the fees and expenses of any
Underwriter acting in the capacity of a "qualified independent
underwriter" (as defined in Section 20) of Schedule E of the by-laws of
the NASD), if applicable.
(b) Termination of Agreement. If the applicable Terms
Agreement is terminated by Xxxxxxx Xxxxx in accordance with the provisions
of Section 5 or Section 9(b)(i) hereof, the Company shall reimburse the
Underwriters for all of their out-of-pocket expenses, including the
reasonable fees and disbursements of counsel for the Underwriters.
SECTION 5. Conditions of Underwriters' Obligations. The
obligations of the Underwriters to purchase and pay for the Underwritten
Debt Securities pursuant to the applicable Terms Agreement are subject to
the accuracy of the representations and warranties of the Company
contained in Section 1 hereof or in certificates of any officer of the
Company or any of its subsidiaries delivered pursuant to the provisions
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 under the 1933 Act and no stop order suspending the
effectiveness of the Registration Statement shall have been issued under
the 1933 Act and no proceedings for that purpose shall have been initiated
or be pending or threatened by the Commission, and any request on the part
of the Commission for additional information shall have been complied with
to the reasonable satisfaction of counsel to the Underwriters. A
prospectus containing information relating to the description of the
Underwritten Debt Securities, the specific method of distribution and
similar matters shall have been filed with the Commission in accordance
with Rule 424(b)(1), (2), (3), (4) or (5), as applicable (or any required
post-effective amendment providing such information shall have been filed
and declared effective in accordance with the requirements of Rule 430A),
or, if the Company has elected to rely upon Rule 434 of the 1933 Act
Regulations, a Term Sheet including the Rule 434 Information shall have
been filed with the Commission in accordance with Rule 424(b)(7).
(b) Opinions of Counsel for Company. At Closing Time, Xxxxxxx
Xxxxx shall have received the favorable opinion, dated as of Closing Time,
of
(1) Xxxxx & Lardner, special counsel for the Company, in
form and substance satisfactory to counsel for the Underwriters,
together with signed or reproduced copies of such letter for
each of the other Underwriters, to the effect set forth in
Exhibit B hereto and to such further effect as counsel to the
Underwriters may reasonably request.
(2) Xxxxx & Xxxxxx, counsel for the Company, in form and
substance satisfactory to counsel for the Underwriters, together
with signed or reproduced copies of such letter for each of the
other Underwriters, to the effect set forth in Exhibit C hereto
and to such further effect as counsel to the Underwriters may
reasonably request.
(c) Opinion of Counsel for Underwriters. At Closing Time,
Xxxxxxx Xxxxx shall have received the favorable opinion, dated as of
Closing Time, of Skadden, Arps, Slate, Xxxxxxx & Xxxx (Illinois), counsel
for the Underwriters, together with signed or reproduced copies of such
letter for each of the other Underwriters, with respect to the matters set
forth in [ ], as applicable,
[ ] (solely as to the information in the Prospectus under "Description
of Debt Securities" or any caption purporting to describe any such Debt
Securities), and the penultimate paragraph of Exhibit B hereto. In giving
such opinion, such counsel may rely, as to all matters governed by the
laws of jurisdictions other than the law of the State of Illinois and the
Federal law of the United States, upon the opinions of counsel
satisfactory to Xxxxxxx Xxxxx. Such counsel may also state that, insofar
as such opinion involves factual matters, they have relied, to the extent
they deem proper, upon certificates of officers of the Company and its
subsidiaries and certificates of public officials.
(d) Officers' Certificate. At Closing Time, there shall not
have been, since the date of the applicable Terms Agreement or since the
respective dates as of which information is given in the Prospectus, any
material adverse change in the condition, financial or otherwise, or in
the earnings, business affairs or business prospects of the Company and
its subsidiaries considered as one enterprise, whether or not arising in
the ordinary course of business, and Xxxxxxx Xxxxx shall have received a
certificate of the President or a Vice President of the Company and of the
chief financial officer or chief accounting officer of the Company, dated
as of Closing Time, to the effect that (i) there has been no such material
adverse change, (ii) the representations and warranties in Section 1 are
true and correct with the same force and effect as though expressly made
at and as of the 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 the Closing Time, and (iv) no stop order
suspending the effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been initiated or threatened by
the Commission.
(e) Accountant's Comfort Letter. At the time of the execution
of the applicable Terms Agreement, Xxxxxxx Xxxxx shall have received from
KPMG Peat Marwick LLP a letter dated such date, in form and substance
satisfactory to Xxxxxxx Xxxxx, 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.
(f) Bring-down Comfort Letter. At Closing Time, Xxxxxxx Xxxxx
shall have received from KPMG Peat Marwick LLP a letter, dated as of
Closing Time, to the effect that they reaffirm the statements made in the
letter furnished pursuant to subsection (e) of this Section 5, except that
the specified date referred to shall be a date not more than three
business days prior to the Closing Time.
(g) Ratings. At Closing Time and at any relevant Date of
Delivery, the Underwritten Debt Securities shall have the ratings accorded
by any "nationally recognized statistical rating organization", as defined
by the Commission for purposes of Rule 436(g)(2) of the 1933 Act
Regulations, if and as specified in the applicable Terms Agreement, and
the Company shall have delivered to Xxxxxxx Xxxxx a letter, dated as of
such date, from each such rating organization, or other evidence
satisfactory to Xxxxxxx Xxxxx, confirming that the Underwritten Debt
Securities have such ratings. Since the time of execution of such Terms
Agreement, there shall not have occurred a downgrading in the rating
assigned to the Underwritten Debt Securities or any of the Company's other
securities by any such rating organization, and no such rating
organization shall have publicly announced that it has under surveillance
or review its rating of the Underwritten Debt Securities or any of the
Company's other securities.
(h) Approval of Listing. At Closing Time, the Underwritten
Debt Securities shall have been approved for listing, subject only to
official notice of issuance, if and as specified in the applicable Terms
Agreement.
(i) No Objection. If the Registration Statement or an offering
of Underwritten Debt Securities has been filed with the NASD for review,
the NASD shall not have raised any objection with respect to the fairness
and reasonableness of the underwriting terms and arrangements.
(j) Lock-up Agreements. On the date of the applicable Terms
Agreement, Xxxxxxx Xxxxx shall have received, in form and substance
satisfactory to it, each lock-up agreement, if any, specified in such
Terms Agreement as being required to be delivered by the persons listed
therein.
(k) Over-Allotment Option In the event that the Underwriters
are granted an over-allotment option by the Company in the applicable
Terms Agreement and the Underwriters exercise their option to purchase all
or any portion of the Option Underwritten Debt Securities, the
representations and warranties of the Company contained herein and the
statements in any certificates furnished by the Company or any of its
subsidiaries hereunder shall be true and correct as of each Date of
Delivery, and, at the relevant Date of Delivery, Xxxxxxx Xxxxx shall have
received:
(i) a certificate, dated such Date of Delivery, of the
President or a Vice President of the Company and the chief
financial officer or chief accounting officer of the Company,
confirming that the certificate delivered at the Closing Time
pursuant to Section 5(d) hereof remains true and correct as of
such Date of Delivery;
(ii) the favorable opinion of Xxxxx & Lardner, special
counsel for the Company, in form and substance satisfactory to
counsel for the Underwriters, dated such Date of Delivery,
relating to the Option Underwritten Debt Securities and
otherwise to the same effect as the opinion required by Section
5(b)(1) hereof;
(iii) the favorable opinion of Xxxxx & Xxxxxx, counsel for
the Company, in form and substance satisfactory to counsel for
the Underwriters, dated such Date of Delivery, relating to the
Option Underwritten Debt Securities and otherwise to the same
effect as the opinion required by Section 5(b)(2) hereof;
(iv) the favorable opinion of Skadden, Arps, Slate, Xxxxxxx
& Xxxx (Illinois), counsel for the Underwriters, dated such Date
of Delivery, relating to the Option Underwritten Debt Securities
and otherwise to the same effect as the opinion required by
Section 5(c) hereof; and
(v) a letter from KPMG Peat Marwick LLP, in form and
substance satisfactory to Xxxxxxx Xxxxx and dated such Date of
Delivery, substantially in the same form and substance as the
letter furnished to Xxxxxxx Xxxxx pursuant to Section 5(f)
hereof, except that the "specified date" on the letter furnished
pursuant to this paragraph shall be a date not more than three
business days prior to such Date of Delivery.
(l) Additional Documents. At Closing Time and at each Date of
Delivery, counsel for the Underwriters shall have been furnished with such
documents and opinions as they may require for the purpose of enabling
them to pass upon the issuance and sale of the Underwritten Debt
Securities as herein contemplated, or in order to evidence the accuracy of
any of the representations or warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Company in
connection with the issuance and sale of the Underwritten Debt Securities
as herein contemplated shall be satisfactory in form and substance to
Xxxxxxx Xxxxx and counsel for the Underwriters.
(m) Termination of Terms Agreement. If any condition specified
in this Section 5 shall not have been fulfilled when and as required to be
fulfilled, the applicable Terms Agreement (or, with respect to the
Underwriters' exercise of any applicable overallotment option for the
purchase of Option Underwritten Debt Securities on a Date of Delivery
after the Closing Time, the obligations of the Underwriters to purchase
the Option Underwritten Debt Securities on such Date of Delivery) may be
terminated by Xxxxxxx Xxxxx by notice to the Company at any time at or
prior to the Closing Time (or such Date of Delivery, as applicable), and
such termination shall be without liability of any party to any other
party except as provided in Section 4 and except that Sections 1, 6, 7 and
8 shall survive any such termination and remain in full force and effect.
SECTION 6. Indemnification.
(a) Indemnification of Underwriters. The Company 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 Rule 430A Information and the Rule 434
Information deemed to be a part thereof, if applicable, or the
omission or alleged omission therefrom of a material fact
required to be stated therein or necessary to make the
statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact
included in any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto), or the omission or alleged
omission therefrom of a material fact necessary in order to make
the statements therein, in the light of the circumstances under
which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate
amount paid in settlement of any litigation, or any
investigation or proceeding by any governmental agency or body,
commenced or threatened, or of any claim whatsoever based upon
any such untrue statement or omission, or any such alleged
untrue statement or omission; provided that (subject to Section
6(d) below) any such settlement is effected with the written
consent of the Company; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by
Xxxxxxx Xxxxx), reasonably incurred in investigating, preparing
or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under
(i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any
loss, liability, claim, damage or expense to the extent arising out of any
untrue statement or omission or alleged untrue statement or omission made
in reliance upon and in conformity with written information furnished to
the Company by any Underwriter through Xxxxxxx Xxxxx expressly for use in
the Registration Statement (or any amendment thereto), including the Rule
430A Information and the Rule 434 Information deemed to be a part thereof,
if applicable, or any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto); provided, further, that the foregoing
indemnity with respect to any untrue statement contained in or any
omission from the preliminary prospectus shall not inure to the benefit of
any Underwriter(or any person controlling such Underwriter) from whom the
person asserting any such loss, liability, claim, damage or expense
purchased any of the Debt Securities that are the subject thereof if the
Company shall sustain the burden of proving that (i) the untrue statement
or omission contained in the preliminary prospectus (excluding documents
incorporated by reference) was corrected; (ii) such person was not sent or
given a copy of the Prospectus (excluding documents incorporated by
reference) which corrected the untrue statement or omission at or prior to
the written confirmation of the sale of such Debt Securities to such
person if required by applicable law; and (iii) the Company satisfied its
obligation pursuant to Section 3(d) of this Agreement to provide a
sufficient number of copies of the Prospectus to the Underwriters.
(b) Indemnification of Company, Directors and Officers. Each
Underwriter severally agrees to indemnify and hold harmless the Company,
its directors, each of its officers who signed the Registration Statement,
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 described in the indemnity
contained in subsection (a) of this Section, as incurred, but only with
respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement (or any amendment thereto),
including the Rule 430A Information and the Rule 434 Information deemed to
be a part thereof, if applicable, or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto) in reliance upon and
in conformity with written information furnished to the Company by such
Underwriter through 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).
(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.
In the case of parties indemnified pursuant to Section 6(a) above, counsel
to the indemnified parties shall be selected by Xxxxxxx Xxxxx, and, in the
case of parties indemnified pursuant to Section 6(b) above, counsel to the
indemnified parties shall be selected by the Company. An indemnifying
party may participate at its own expense in the defense of any such
action; provided, however, that counsel to the indemnifying party shall
not (except with the consent of the indemnified party) also be counsel to
the indemnified party. In no event shall the indemnifying parties be
liable for fees and expenses of more than one counsel (in addition to any
local counsel) separate from their own counsel for all indemnified parties
in connection with any one action or separate but similar or related
actions in the same jurisdiction arising out of the same general
allegations or circumstances. No indemnifying party shall, without the
prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any litigation, or
any investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or
Section 7 hereof (whether or not the indemnified parties are actual or
potential parties thereto), unless such settlement, compromise or consent
(i) includes an unconditional release of each indemnified party from all
liability arising out of such litigation, investigation, proceeding or
claim and (ii) does not include a statement as to or an admission of
fault, culpability or a failure to act by or on behalf of any indemnified
party.
(d) Settlement without Consent if Failure To Reimburse. If at
any time an indemnified party shall have requested an indemnifying party
to reimburse the indemnified party for fees and expenses of counsel
pursuant to this Agreement, such indemnifying party agrees that it shall
be liable for any settlement of the nature contemplated by Section
6(a)(ii) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of
the aforesaid request, (ii) such indemnifying party shall have received
notice of the terms of such settlement at least 30 days prior to such
settlement being entered into and (iii) such indemnifying party shall not
have reimbursed such indemnified party in accordance with such request
prior to the date of such settlement.
SECTION 7. Contribution. If the indemnification provided for
in Section 6 hereof is for any reason unavailable to or insufficient to
hold harmless an indemnified party in respect of any losses, liabilities,
claims, damages or expenses referred to therein, then each indemnifying
party shall contribute to the aggregate amount of such losses,
liabilities, claims, damages and expenses incurred by such indemnified
party, as incurred, (i) in such proportion as is appropriate to reflect
the relative benefits received by the Company, on the one hand, and the
Underwriters, on the other hand, from the offering of the Underwritten
Debt Securities pursuant to the applicable Terms Agreement or (ii) if the
allocation provided by clause (i) is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of
the Company, 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 Underwritten Debt Securities pursuant to the applicable Terms
Agreement shall be deemed to be in the same respective proportions as the
total net proceeds from the offering of such Underwritten Debt Securities
(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, or, if Rule 434 is used, the
corresponding location on the Term Sheet bear to the aggregate initial
public offering price of such Underwritten Debt Securities 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 by
any governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue or alleged untrue statement or
omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter
shall be required to contribute any amount in excess of the amount by
which the total price at which the Underwritten Debt Securities
underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of any such untrue or alleged
untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the 0000 Xxx) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
For purposes of this Section 7, each person, if any, who
controls an Underwriter within the meaning of Section 15 of the 1933 Act
or Section 20 of the 1934 Act shall have the same rights to contribution
as such Underwriter, and each director of the Company, each officer of the
Company who signed the Registration Statement, 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 number or
aggregate principal amount, as the case may be, of Initial Underwritten
Debt Securities set forth opposite their respective names in the
applicable Terms Agreement, and not joint.
SECTION 8. Representations, Warranties and Agreements To
Survive Delivery. All representations, warranties and agreements
contained in this Underwriting Agreement or the applicable Terms Agreement
or in certificates of officers of the Company submitted pursuant hereto or
thereto shall remain operative and in full force and effect, regardless of
any investigation made by or on behalf of any Underwriter or controlling
person, or by or on behalf of the Company, and shall survive delivery of
and payment for the Underwritten Debt Securities.
SECTION 9. Termination.
(a) Underwriting Agreement. This Underwriting Agreement
(excluding the applicable Terms Agreement) may be terminated for any
reason at any time by the Company or by Xxxxxxx Xxxxx upon the giving of
30 days' prior written notice of such termination to the other party
hereto.
(b) Terms Agreement. Xxxxxxx Xxxxx may terminate the
applicable Terms Agreement, by notice to the Company, at any time at or
prior to the Closing Time or any relevant Date of Delivery, if (i) there
has been, since the time of execution of such Terms Agreement or since the
respective dates as of which information is given in the Prospectus, any
material adverse change in the condition, financial or otherwise, or in
the earnings, business affairs or business prospects of the Company and
its subsidiaries considered as one enterprise, whether or not arising in
the ordinary course of business, or (ii) there has occurred any material
adverse change in the financial markets in the United States or, if the
Underwritten Debt Securities include Debt Securities denominated or
payable in, or indexed to, one or more foreign or composite currencies, in
the currency exchange rates or exchange controls or the international
financial markets, or any outbreak of hostilities or escalation thereof or
other calamity or crisis or any change or development involving a
prospective change in national or international political, financial or
economic conditions, in each case the effect of which, in the reasonable
judgment of Xxxxxxx Xxxxx, would be likely to prejudice materially the
success of the offering and distribution of the Underwritten Debt
Securities or dealings in the Underwritten Debt Securities in the
secondary market, or (iii) trading in any securities of the Company has
been suspended or limited by the Commission or the Nasdaq National Market,
or if trading generally on the New York Stock Exchange or the American
Stock Exchange or in the Nasdaq National Market has been suspended or
limited, or minimum or maximum prices for trading have been fixed, or
maximum ranges for prices have been required, by either of said exchanges
or by such system or by order of the Commission, the NASD or any other
governmental authority, or (iv) a banking moratorium has been declared by
either Federal or New York authorities or, if the Underwritten Debt
Securities include Debt Securities denominated or payable in, or indexed
to, one or more foreign or composite currencies, by the relevant
authorities in the related foreign country or countries.
(c) Liabilities. If this Underwriting Agreement or the
applicable Terms Agreement is terminated pursuant to this Section 9, such
termination shall be without liability of any party to any other party
except as provided in Section 4 hereof, and provided further that Sections
1, 6, 7 and 8 shall survive such termination and remain in full force and
effect.
SECTION 10. Default by One or More of the Underwriters. If one
or more of the Underwriters shall fail at the Closing Time or the relevant
Date of Delivery, as the case may be, to purchase the Underwritten Debt
Securities which it or they are obligated to purchase under the applicable
Terms Agreement (the "Defaulted Debt Securities"), then Xxxxxxx Xxxxx
shall have the right, within 24 hours thereafter, to make arrangements for
one or more of the nondefaulting Underwriters, or any other underwriters,
to purchase all, but not less than all, of the Defaulted Debt Securities
in such amounts as may be agreed upon and upon the terms herein set forth;
if, however, Xxxxxxx Xxxxx shall not have completed such arrangements
within such 24-hour period, then:
(a) if the aggregate principal amount, of Defaulted Debt
Securities does not exceed 10% of the aggregate principal amount of
Underwritten Debt Securities to be purchased on such date pursuant to
such Terms Agreement, the nondefaulting Underwriters shall be
obligated, severally and not jointly, to purchase the full amount
thereof in the proportions that their respective underwriting
obligations under such Terms Agreement bear to the underwriting
obligations of all nondefaulting Underwriters, or
(b) if the aggregate principal amount of Defaulted Debt
Securities exceeds 10% of the aggregate principal amount of
Underwritten Debt Securities to be purchased on such date pursuant to
such Terms Agreement, such Terms Agreement (or, with respect to the
Underwriters' exercise of any applicable over-allotment option for
the purchase of Option Underwritten Debt Securities on a Date of
Delivery after the Closing Time, the obligations of the Underwriters
to purchase, and the Company to sell, such Option Underwritten Debt
Securities on such Date of Delivery) shall terminate without
liability on the part of any nondefaulting Underwriter.
No action taken pursuant to this Section 10 shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in (i) a
termination of the applicable Terms Agreement or (ii) in the case of a
Date of Delivery after the Closing Time, a termination of the obligations
of the Underwriters and the Company with respect to the related Option
Underwritten Debt Securities, as the case may be, either Xxxxxxx Xxxxx or
the Company shall have the right to postpone the Closing Time or the
relevant Date of Delivery, as the case may be, for a period not exceeding
seven days in order to effect any required changes in the Registration
Statement or the Prospectus or in any other documents or arrangements.
SECTION 11. Notices. All notices and other communications
hereunder shall be in writing and shall be deemed to have been duly given
if mailed or transmitted by any standard form of telecommunication.
Notices to the Underwriters shall be directed to Xxxxxxx Xxxxx at World
Financial Center, Xxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, attention of
; and notices to the Company shall be directed to it at 0000 X
Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, attention of .
SECTION 12. Parties. This Underwriting Agreement and the
applicable Terms Agreement shall each inure to the benefit of and be
binding upon the Company, Xxxxxxx Xxxxx and, upon execution of such Terms
Agreement, any other Underwriters and their respective successors.
Nothing expressed or mentioned in this Underwriting Agreement or such
Terms Agreement is intended or shall be construed to give any person, firm
or corporation, other than the Underwriters and the Company and their
respective successors and the controlling persons and officers and
directors referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Underwriting Agreement or such Terms Agreement or any
provision herein or therein contained. This Underwriting Agreement and
such Terms Agreement and all conditions and provisions hereof and thereof
are intended to be for the sole and exclusive benefit of the parties
hereto and thereto and their respective successors, and said controlling
persons and officers and directors and their heirs and legal
representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Underwritten Debt Securities from any
Underwriter shall be deemed to be a successor by reason merely of such
purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS UNDERWRITING
AGREEMENT AND ANY APPLICABLE TERMS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
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.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof,
whereupon this Underwriting Agreement, along with all counterparts, will
become a binding agreement between Xxxxxxx Xxxxx and the Company in
accordance with its terms.
Very truly yours,
ALIANT COMMUNICATIONS INC.
by:
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first
above written:
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
by:
Authorized Signatory
