Exhibit 1.1
Frontier Corporation
Underwriting Agreement
New York, New York
To the Representatives
named in Schedule I
hereto of the Under-
writers named in
Schedule II hereto
Ladies and Gentlemen:
Frontier Corporation, a New York corporation (the "Company"), proposes to
sell to the underwriters named in Schedule II hereto (the "Underwriters"), for
whom you (the "Representatives"), are acting as representatives, the principal
amount of its securities identified in Schedule I hereto (the "Securities"), to
be issued under an indenture dated as of May 21, 1997 between the Company and
The Chase Manhattan Bank, as trustee (the "Trustee"), as supplemented by the
supplemental indenture dated as of December 8, 1997 among the Company and the
Trustee (as so supplemented, the "Indenture").
1. Representations and Warranties. The Company represents and warrants
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to, and agrees with, each Underwriter as set forth below in this Section 1.
Certain terms used in this Section 1 are defined in paragraph (d) hereof.
(a) The Company meets the requirements for the use of Form S-3 under the
Securities Act of 1933 (the "Act") and has filed with the Securities and
Exchange Commission (the "Commission") a registration statement (the file number
of which is set forth in Schedule I hereto) on such Form, including a basic
prospectus, for registration under the Act of the offering and sale of the
Securities. The Company may have filed one or more amendments thereto, and may
have used a Preliminary Final Prospectus, each of which has previously been
furnished to you. Such registration statement, as so amended, has become
effective. The offering of the Securities is a Delayed Offering and, although
the Basic Prospectus may not include all the information with respect to the
Securities and the offering thereof required by the Act and the rules thereunder
to be included in the Final Prospectus, the Basic Prospectus includes all such
information required by the Act and the rules thereunder to be included therein
as of the Execution Time. The Company will next file with the Commission
pursuant to Rules 415 and 424(b)(2) or (5) a final supplement to the form of
prospectus included in such registration statement relating to the Securities
and the offering thereof. As filed, such final prospectus supplement shall
include all required information with respect to the Securities and the offering
thereof and, except to the extent the Representatives shall agree in writing to
a modification, shall be in all substantive respects in the form furnished to
you prior to the Execution Time or, to the extent not completed at the Execution
Time, shall contain only such specific additional information and other changes
(beyond that contained in the Basic Prospectus and any Preliminary Final
Prospectus) as the Company has advised you, prior to the Execution Time, will be
included or made therein.
(b) On the Effective Date and at the Execution Time, the Registration
Statement did or will, and when the Final Prospectus is first filed (if
required) in accordance with Rule 424(b) and on the Closing Date, the Final
Prospectus (and any supplement thereto) will, comply in all material respects
with the applicable requirements of the Act, the Securities Exchange Act of 1934
(the "Exchange Act") and the Trust Indenture Act of 1939 (the "Trust Indenture
Act") and the respective rules thereunder; on the Effective Date and at the
Execution Time, the Registration Statement did not or will not contain any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary in order to make the statements therein not
misleading; on the Effective Date and at the Execution Time and on the Closing
Date the Indenture did or will comply in all material respects with the
requirements of the Trust Indenture Act and the rules thereunder; and on the
date of any filing pursuant to Rule 424(b) and on the Closing Date, the Final
Prospectus (together with any supplement thereto) will not include any untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading; provided, however, that the Company makes no
representations or warranties as to (i) that part of the Registration Statement
which shall constitute the Statement of Eligibility and Qualification (Form T-1)
under the Trust Indenture Act of the Trustee or (ii) the information contained
in or omitted from the Registration Statement or the Final Prospectus (or any
supplement thereto) in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of any Underwriter through
the Representatives specifically for inclusion in the Registration Statement or
the Final Prospectus (or any supplement thereto).
(c) The financial statements, and the related notes thereto, included or
incorporated by reference in the Registration Statement and the Final Prospectus
present fairly the consolidated financial position of the Company and its
consolidated subsidiaries as of the dates indicated and the results of their
operations and the changes in their consolidated cash flows for the periods
specified; said financial statements have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis, except
as set forth therein, and the supporting schedules included or incorporated by
reference in the Registration Statement present fairly the information required
to be stated therein;
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(d) The terms which follow, when used in this Agreement, shall have the
meanings indicated. The term "the Effective Date"shall mean each date that the
Registration Statement and any post-effective amendment or amendments thereto
became or become effective. "Execution Time"shall mean the date and time that
this Agreement is executed and delivered by the parties hereto. "Basic
Prospectus"shall mean the basic prospectus referred to in the first sentence of
paragraph (a) above contained in the Registration Statement at the Effective
Date or, if such basic prospectus has been amended after the Effective Date, the
basic prospectus as most recently amended and filed pursuant to Rule 424(b).
"Preliminary Final Prospectus"shall mean any preliminary prospectus supplement
to the Basic Prospectus which describes the Securities and the offering thereof
and is used prior to the filing of the Final Prospectus, together with the Basic
Prospectus. "Final Prospectus"shall mean the prospectus supplement relating to
the Securities that is first filed pursuant to Rule 424(b) after the Execution
Time, together with the Basic Prospectus. "Registration Statement"shall mean
the registration statement referred to in the first sentence of paragraph (a)
above, including incorporated documents, exhibits and financial statements, as
amended at the Execution Time and, in the event any post-effective amendment
thereto becomes effective prior to the Closing Date (as hereinafter defined),
shall also mean such registration statement as so amended. Such term shall
include any Rule 430A Information deemed to be included therein at the Effective
Date as provided by Rule 430A. "Rule 415", "Rule 424", "Rule 430A"and
"Regulation S-K"refer to such rules or regulation under the Act. "Rule 430A
Information"means information with respect to the Securities and the offering
thereof permitted to be omitted from the Registration Statement when it becomes
effective pursuant to Rule 430A. Any reference herein to the Registration
Statement, the Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus, shall be deemed to refer to and include the documents incorporated
by reference therein pursuant to Item 12 of Form S-3 which were filed under the
Exchange Act on or before the Effective Date of the Registration Statement or
the issue date of the Basic Prospectus, any Preliminary Final Prospectus or the
Final Prospectus, as the case may be; and any reference herein to the terms
"amend", "amendment"or "supplement"with respect to the Registration Statement,
the Basic Prospectus, any Preliminary Final Prospectus or the Final Prospectus,
shall be deemed to refer to and include the filing of any document under the
Exchange Act after the Effective Date of the Registration Statement or the issue
date of the Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus, as the case may be, deemed to be incorporated therein by reference.
A "Delayed Offering" shall mean an offering of securities pursuant to Rule 415
which does not commence promptly after the effective date of a registration
statement, with the result that only information required pursuant to Rule 415
need be included in such registration statement at the effective date thereof
with respect to the securities so offered.
2. Purchase and Sale. Subject to the terms and conditions and in
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reliance upon the representations and warranties herein set forth, the Company
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Company, at the
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purchase price set forth in Schedule I hereto, the principal amount of the
Securities set forth opposite such Underwriter's name in Schedule II hereto.
3. Delivery and Payment. Delivery of and payment for the Securities
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shall be made on the date and at the time specified in Schedule I hereto (or
such later date not later than three business days after such specified date as
the Representatives shall designate), which date and time may be postponed by
agreement between the Representatives and the Company or as provided in Section
8 hereof (such date and time of delivery and payment for the Securities being
herein called the "Closing Date"). Delivery of the Securities shall be made to
the Representatives for the respective accounts of the several Underwriters
against payment by the several Underwriters through the Representatives of the
purchase price thereof to or upon the order of the Company by wire transfer of
same-day funds. Delivery of the Securities shall be made at such location as
the Representatives shall reasonably designate at least one business day in
advance of the Closing Date and payment for the Securities shall be made at the
office specified in Schedule I hereto. Certificates for the Securities shall be
registered in such names and in such denominations as the Representatives may
request not less than three full business days in advance of the Closing Date.
The Company agrees to have the Securities available for inspection,
checking and packaging by the Representatives in New York, New York, not later
than 1:00 PM on the business day prior to the Closing Date.
4. Agreements. The Company agrees with each of the Underwriters that:
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(a) The Company will use its best efforts to cause the Registration
Statement, if not effective at the Execution Time, and any amendment
thereto, to become effective. Prior to the termination of the offering of
the Securities, the Company will not file any amendment of the Registration
Statement or supplement (including the Final Prospectus or any Preliminary
Final Prospectus) to the Basic Prospectus unless the Company has furnished
you a copy for your review prior to filing and will not file any such
proposed amendment or supplement to which you reasonably object. Subject to
the foregoing sentence, the Company will cause the Final Prospectus,
properly completed, and any supplement thereto to be filed with the
Commission pursuant to the applicable paragraph of Rule 424(b) within the
time period prescribed and will provide evidence satisfactory to the
Representatives of such timely filing. The Company will promptly advise the
Representatives (i) when the Registration Statement, if not effective at
the Execution Time, and any amendment thereto, shall have become effective,
(ii) when the Final Prospectus, and any supplement thereto, shall have been
filed with the Commission pursuant to Rule 424(b), (iii) when, prior to
termination of the offering of the Securities, any amendment to the
Registration Statement shall have been filed or become effective, (iv) of
any request by the Commission for any amendment of the Registration
Statement or supplement to the Final Prospectus or for any additional
information, (v) of the issuance by the Commission of any stop order
suspending the effectiveness of the
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Registration Statement or the institution or threatening of any proceeding
for that purpose and (vi) of the receipt by the Company of any notification
with respect to the suspension of the qualification of the Securities for
sale in any jurisdiction or the initiation or threatening of any proceeding
for such purpose. The Company will use its best efforts to prevent the
issuance of any such stop order and, if issued, to obtain as soon as
possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event occurs as a result of
which the Final Prospectus as then supplemented would include any untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein in the light of the circumstances under
which they were made not misleading, or if it shall be necessary to amend
the Registration Statement or supplement the Final Prospectus to comply
with the Act or the Exchange Act or the respective rules thereunder, the
Company promptly will prepare and file with the Commission, subject to the
second sentence of paragraph (a) of this Section 4, an amendment or
supplement which will correct such statement or omission or effect such
compliance.
(c) As soon as practicable, the Company will make generally
available to its security holders and to the Representatives an earnings
statement or statements of the Company and its subsidiaries which will
satisfy the provisions of Section 11(a) of the Act and Rule 158 under the
Act.
(d) The Company will furnish to the Representatives and counsel for
the Underwriters, without charge, copies of the Registration Statement
(including exhibits thereto) and, so long as delivery of a prospectus by an
Underwriter or dealer may be required by the Act, as many copies of any
Preliminary Final Prospectus and the Final Prospectus and any supplement
thereto as the Representatives may reasonably request. The Company will pay
the expenses of printing or other production of all documents relating to
the offering.
(e) Whether or not the transactions contemplated in this Agreement
are consummated or this Agreement is terminated, the Company will pay or
cause to be paid all costs and expenses incident to the performance of its
obligations hereunder, including without limiting the generality of the
foregoing, all costs and expenses (i) incident to the preparation,
issuance, execution, authentication and delivery of the Securities,
including any expenses of the Trustee, (ii) incident to the preparation,
printing and filing under the Securities Act of the Registration Statement,
the Final Prospectus and any Preliminary Final Prospectus (including in
each case all exhibits, amendments and supplements thereto), (iii) incurred
in connection with the registration or qualification and determination of
eligibility for investment of the Securities under the laws of such
jurisdictions as the Underwriters may designate (including fees of counsel
for the Underwriters and their disbursements),(iv) related to any filing
with the National
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Association of Securities Dealers, Inc., (v) in connection with the
printing (including word processing and duplication costs) and delivery of
this Agreement, the Indenture, Blue Sky Memorandum and any Legal Investment
Survey and the furnishing to Underwriters and dealers of copies of the
Registration Statement and the Final Prospectus, including mailing and
shipping, as herein provided, (vi) payable to rating agencies in connection
with the rating of the Securities, (vii) any expenses incurred by the
Company in connection with any "road show" presentation to potential
investors (if any) and (viii) the cost and charges of any transfer agent.
Subject to Section 6, the Company will not be required to pay any out-of-
pocket expenses of the Underwriters (including fees and disbursements of
counsel for Underwriters) in connection with the purchase and sale of the
Securities.
(f) Until the date set forth on Schedule I hereto, the Company will
not, without the consent of the Representatives, offer, sell or contract to
sell, or announce the offering of, any debt securities issued or guaranteed
by the Company other than the Securities.
5. Conditions to the Obligations of the Underwriters. The obligations of
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the Underwriters to purchase the Securities shall be subject to the accuracy of
the representations and warranties on the part of the Company contained herein
as of the Execution Time and the Closing Date, to the accuracy of the statements
of the Company made in any certificates pursuant to the provisions hereof, to
the performance by the Company of its obligations hereunder and to the following
additional conditions:
(a) If the Registration Statement has not become effective prior to
the Execution Time, unless the Representatives agree in writing to a later
time, the Registration Statement will become effective not later than (i)
6:00 PM New York City time, on the date of determination of the public
offering price, if such determination occurred at or prior to 3:00 PM New
York City time on such date or (ii) 12:00 Noon on the business day
following the day on which the public offering price was determined, if
such determination occurred after 3:00 PM New York City time on such date;
if filing of the Final Prospectus, or any supplement thereto, is required
pursuant to Rule 424(b), the Final Prospectus, and any such supplement,
shall have been filed in the manner and within the time period required by
Rule 424(b); and no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted or threatened.
(b) The Company shall have furnished to the Representatives the
opinion of Xxxxxx X. XxXxx, counsel for the Company, dated the Closing
Date,substantially in the form attached hereto as Exhibit A.
(c) The Company shall have furnished to the Representative the
opinion of Jaffe, Raitt, Heuer & Xxxxx, special counsel to the Company,
dated the Closing Date, substantially in the form attached hereto as
Exhibit B.
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(d) The Representatives shall have received from Xxxxx Xxxx &
Xxxxxxxx, counsel for the Underwriters, such opinion or opinions, dated the
Closing Date, with respect to the issuance and sale of the Securities, the
Indenture, the Remarketing Agreement, the Registration Statement, the Final
Prospectus (together with any supplement thereto) and other related matters
as the Representatives may reasonably require, and the Company shall have
furnished to such counsel such documents as they request for the purpose of
enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Chairman of the Board or the
President and the principal financial or accounting officer of the Company,
dated the Closing Date, to the effect that the signer of such certificate
has carefully examined the Registration Statement, the Final Prospectus,
any supplement to the Final Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as of
the Closing Date with the same effect as if made on the Closing Date
and the Company has complied with all the agreements and satisfied
all the conditions on its part to be performed or satisfied at or
prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the Company's knowledge,
threatened; and
(iii) since the date of the most recent financial statements
included in the Final Prospectus (exclusive of any supplement
thereto), there has been no material adverse change in the condition
(financial or other), earnings, business, properties or prospects of
the Company and its subsidiaries, whether or not arising from
transactions in the ordinary course of business, except as set forth
in or contemplated in the Final Prospectus (exclusive of any
supplement thereto).
(f) At the Closing Date, PricewaterhouseCoopers LLP shall have
furnished to the Representatives a letter or letters (which may refer to
letters previously delivered to one or more of the Representatives), dated
as of the Closing Date, in form and substance satisfactory to the
Representatives, confirming that they are independent accountants within
the meaning of the Act and the Exchange Act and the respective applicable
published rules and regulations thereunder and stating in effect that:
(i) in their opinion the audited consolidated financial
statements and financial statement schedule incorporated by
reference in the Registration Statement and the Final Prospectus and
reported on by them comply in form in all material respects with the
applicable accounting requirements of the Act
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and the Exchange Act and the related published rules and regulations
thereunder with respect to the Registration Statement;
(ii) on the basis of procedures (but not an audit in accordance
with generally accepted auditing standards) consisting of:
(a) reading the minutes of meetings of the stockholders, the
Board of Directors and the audit and executive committees of the
Board of Directors of the Company and its consolidated subsidiaries
since December 31, 1997 as set forth in the minute books through a
specified date not more than five business days prior to the date of
delivery of such letter;
(b) performing the procedures specified by the American
Institute of Certified Public Accounts for a review of interim
financial information as described in SAS No. 71, Interim Financial
Information, on the unaudited condensed interim financial statements
of the Company and its consolidated subsidiaries incorporated by
reference in the Registration Statement and Final Prospectus and
reading the unaudited interim financial data for the period from the
date of the latest balance sheet incorporated by reference in the
Registration Statement and Final Prospectus to the date of the
latest available interim financial data; and
(c) making inquiries of certain officials of the Company who
have responsibility for financial and accounting matters regarding
the specific items for which representations are requested below;
nothing has come to their attention as a result of the foregoing
procedures that caused them to believe that:
(1) any unaudited condensed interim financial
statements included or incorporated in the Registration
Statement and the Final Prospectus do not comply in form in
all material respects with applicable accounting
requirements and with the published rules and regulations of
the Commission with respect to financial statements included
or incorporated in quarterly reports on Form 10-Q under the
Exchange Act; and said unaudited condensed interim financial
statements are not in conformity with generally accepted
accounting principles applied on a basis substantially
consistent with that of the audited financial statements
included or incorporated in the Registration Statement and
the Final Prospectus;
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(2) with respect to the period subsequent to the date
of the most recent unaudited condensed interim financial
statements (other than any capsule information), audited or
unaudited, included or incorporated in the Registration
Statement and the Final Prospectus, there were any changes,
at a specified date not more than three business days prior
to the date of the letter, in the long-term debt of the
Company and its subsidiaries or capital stock of the Company
or decreases in the shareowners' equity of the Company or
decreases in working capital of the Company and its
subsidiaries consolidated as compared with the amounts shown
on the most recent consolidated balance sheet included or
incorporated in the Registration Statement and the Final
Prospectus, or for the period from the date of the most
recent unaudited condensed interim financial statements
included or incorporated in the Registration Statement and
the Final Prospectus to such specified date not more than
three business days prior to the date of the letter there
were any decreases, as compared with the corresponding
period in the preceding year, in revenues, operating income
or in total or per share amounts of net income of the
Company and its subsidiaries, except in all instances for
changes or decreases which the Registration Statement
discloses have occurred or may occur, or as set forth in
such letter, in which case the letter shall be accompanied
by an explanation by the Company as to the significance
thereof unless said explanation is not deemed necessary by
the Representatives; or
(3) the amounts included in any unaudited
"capsule" information included or incorporated in the
Registration Statement and the Final Prospectus do not agree
with the amounts set forth in the unaudited financial
statements for the same periods or were not determined on a
basis substantially consistent with that of the
corresponding amounts in the audited financial statements
included or incorporated in the Registration Statement and
the Final Prospectus; and
(iii) they have performed certain other specified procedures as
a result of which they determined that certain information of an
accounting, financial or statistical nature (which is limited to
accounting, financial or statistical information derived from the
general accounting records of the Company and its subsidiaries) set
forth in the Registration Statement and the Final Prospectus and in
Exhibit 12 to the Registration Statement, including the information
included or incorporated in Items 1, 2, 6, 7, 7A, 8, 11 and 14 of
the Company's Annual Report on Form 10-K, incorporated in the
Registration Statement and the Prospectus, and
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the information included in the "Management's Discussion and
Analysis of Financial Condition and Results of Operations" included
or incorporated in the Company's Quarterly Reports on Form 10-Q,
incorporated in the Registration Statement and the Final Prospectus,
agrees with the accounting records of the Company and its
subsidiaries, excluding any questions of legal interpretation.
References to the Final Prospectus in this paragraph (f) include any
supplement thereto at the date of the letter.
In addition, except as provided in Schedule I hereto, at the Execution
Time, PricewaterhouseCoopers LLP shall have furnished to the Representatives a
letter or letters, dated as of the Execution Time, in form and substance
satisfactory to the Representatives, to the effect set forth above.
(g) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Registration Statement (exclusive of any
amendment thereof) and the Final Prospectus (exclusive of any supplement
thereto), there shall not have been (i) any change or decrease specified in
the letter or letters referred to in paragraph (f) of this Section 5 or
(ii) any change, or any development involving a prospective change, in or
affecting the business or properties of the Company and its subsidiaries
the effect of which, in any case referred to in clause (i) or (ii) above,
is, in the judgment of the Representatives, so material and adverse as to
make it impractical or inadvisable to proceed with the offering or the
delivery of the Securities as contemplated by the Registration Statement
(exclusive of any amendment thereof) and the Final Prospectus (exclusive of
any supplement thereto).
(h) Subsequent to the Execution Time, there shall not have been any
decrease in the ratings of any of the Company's debt securities by any
"nationally recognized statistical rating organization"(as defined for
purposes of Rule 436(g) under the Act) or any notice given of any intended
or potential decrease in any such rating or of a possible change in any
such rating that does not indicate the direction of the possible change.
(i) The Company shall have delivered to X.X. Xxxxxx Securities Inc.
the Remarketing Agreement, duly executed by an authorized officer of the
Company.
(j) Prior to the Closing Date, the Company shall have furnished to
the Representatives such further information, certificates and documents as
the Representatives may reasonably request.
If any of the conditions specified in this Section 5 shall not have been
fulfilled in all material respects when and as provided in this Agreement, or if
any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and counsel for the
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Underwriters, this Agreement and all obligations of the Underwriters hereunder
may be canceled at, or at any time prior to, the Closing Date by the
Representatives. Notice of such cancellation shall be given to the Company in
writing or by telephone or telecopy confirmed in writing.
6. Reimbursement of Underwriters' Expenses. If the sale of the
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Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 5 hereof is not satisfied,
because of any termination pursuant to Section 9 hereof or because of any
refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof, in each case other than by
reason of a default by any of the Underwriters, the Company will reimburse the
Underwriters severally upon demand for all out-of-pocket expenses (including
reasonable fees and disbursements of counsel) that shall have been incurred by
them in connection with the proposed purchase and sale of the Securities.
7. Indemnification and Contribution. (a) The Company agrees to
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indemnify and hold harmless each Underwriter, the directors, officers, employees
and agents of each Underwriter and each person who controls any Underwriter
within the meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they or any
of them may become subject under the Act, the Exchange Act or other Federal or
state statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the registration statement for the registration of
the Securities as originally filed or in any amendment thereof, or in the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus, or in any
amendment thereof or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
agrees to reimburse each such indemnified party, as incurred, for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that (i) the Company will not be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon any such
untrue statement or alleged untrue statement or omission or alleged omission
made therein in reliance upon and in conformity with written information
furnished to the Company by or on behalf of any Underwriter through the
Representatives specifically for inclusion therein, and (ii) such indemnity with
respect to any Preliminary Final Prospectus shall not inure to the benefit of
any Underwriter from whom the person asserting such loss, claim, damage or
liability purchased the Securities which are the subject thereof if such person
did not receive a copy of the Final Prospectus (or the Final Prospectus as
supplemented) at or prior to the confirmation of the sale of such Securities to
such person (other than as a result of the Company's breach of its obligations
under Section 4) in any case where such delivery is required by the Act and the
untrue statement or omission of a material fact contained in such Preliminary
Final Prospectus was corrected in the Final Prospectus (or the Final Prospectus
as supplemented). This indemnity agreement will be in addition to any liability
which the Company may otherwise have.
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(b) Each Underwriter severally agrees to indemnify and hold harmless the
Company, each of its directors, each of its officers who signs the Registration
Statement, and each person who controls the Company within the meaning of either
the Act or the Exchange Act, to the same extent as the foregoing indemnity from
the Company to each Underwriter, but only with reference to written information
relating to such Underwriter furnished to the Company by or on behalf of such
Underwriter through the Representatives specifically for inclusion in the
documents referred to in the foregoing indemnity. This indemnity agreement will
be in addition to any liability which any Underwriter may otherwise have. The
Company acknowledges that the statements set forth in the last paragraph of the
cover page and under the heading "Underwriting" in the Preliminary Final
Prospectus or the Final Prospectus, constitute the only information furnished in
writing by or on behalf of any of the Underwriters for inclusion in the
documents referred to in the foregoing indemnity, and you, as the
Representatives, confirm that such statements are correct.
(c) Promptly after receipt by an indemnified party under this Section 7 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 7, notify the indemnifying party in writing of the commencement thereof;
but the failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the material
prejudice of substantial rights and defenses of the indemnifying party and (ii)
will not, in any event, relieve the indemnifying party from any obligations to
any indemnified party other than the indemnification obligation provided in
paragraph (a) or (b) above. The indemnifying party shall be entitled to appoint
counsel of the indemnifying party's choice at the indemnifying party's expense
to represent the indemnified party in any action for which indemnification is
sought (in which case the indemnifying party shall not thereafter be responsible
for the fees and expenses of any separate counsel retained by the indemnified
party or parties except as set forth below); provided, however, that such
counsel shall be reasonably satisfactory to the indemnified party.
Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall have
the right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses of such
separate counsel if (i) the use of counsel chosen by the indemnifying party to
represent the indemnified party would present such counsel with a conflict of
interest, (ii) the actual or potential defendants in, or targets of, any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, (iii) the
indemnifying party shall not have employed counsel reasonably satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time after notice of the institution of such action or (iv) the indemnifying
party shall authorize the indemnified party to employ separate counsel at the
expense of the indemnifying party. An indemnifying party will not, without the
prior written consent of the indemnified parties (which shall not be
unreasonably withheld, delayed, or conditioned), settle or compromise or consent
to the entry of any judgment
12
with respect to any pending or threatened claim, action, suit or proceeding in
respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified parties are actual or potential parties to such
claim or action) unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability arising out
of such claim, action, suit or proceeding and does not include any statement as
to or admission of fault, culpability or failure to act by or on behalf of such
indemnified party.
(d) In the event that the indemnity provided in paragraph (a) or (b) of
this Section 7 is unavailable to or insufficient to hold harmless an indemnified
party for any reason, the Company and the Underwriters agree to contribute to
the aggregate losses, claims, damages and liabilities (including legal or other
expenses reasonably incurred in connection with investigating or defending same)
(collectively "Losses") to which the Company and one or more of the
Underwriters may be subject in such proportion as is appropriate to reflect the
relative benefits received by the Company and by the Underwriters from the
offering of the Securities; provided, however, that in no case shall any
Underwriter (except as may be provided in any agreement among underwriters
relating to the offering of the Securities) be responsible for any amount in
excess of the underwriting discount or commission applicable to the Securities
purchased by such Underwriter hereunder. If the allocation provided by the
immediately preceding sentence is unavailable for any reason, the Company and
the Underwriters shall contribute in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of the
Company and of the Underwriters in connection with the statements or omissions
which resulted in such Losses as well as any other relevant equitable
considerations. Benefits received by the Company shall be deemed to be equal to
the total net proceeds from the offering (before deducting expenses), and
benefits received by the Underwriters shall be deemed to be equal to the total
underwriting discounts and commissions, in each case as set forth under the
caption "Underwriting" in the Final Prospectus. Relative fault shall be
determined by reference to whether any alleged untrue statement or omission
relates to information provided by the Company or 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 were determined by
pro rata allocation or any other method of allocation which does not take
account of the equitable considerations referred to above. Notwithstanding the
provisions of this paragraph (d), no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 7, each person who controls an
Underwriter within the meaning of either the Act or the Exchange Act and each
director, officer, employee and agent of an Underwriter shall have the same
rights to contribution as such Underwriter, and each person who controls the
Company within the meaning of either the Act or the Exchange Act, each officer
of the Company who shall have signed the Registration Statement and each
director of the Company shall have the same rights to contribution as the
Company, subject in each case to the applicable terms and conditions of this
paragraph (d). The Underwriters' respective obligations to contribute pursuant
to this Section 7 are several in proportion to their respective underwriting
commitments and not joint.
13
8. Default by an Underwriter. If any one or more Underwriters shall fail
-------------------------
to purchase and pay for any of the Securities agreed to be purchased by such
Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Securities set
forth opposite their names in Schedule II hereto bears to the aggregate amount
of Securities set forth opposite the names of all the remaining Underwriters)
the Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase; provided, however, that in the event that the aggregate
amount of Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase shall exceed 10% of the aggregate amount of Securities set
forth in Schedule II hereto, the remaining Underwriters shall have the right to
purchase all, but shall not be under any obligation to purchase any, of the
Securities, and if such nondefaulting Underwriters do not purchase all the
Securities, this Agreement will terminate without liability to any nondefaulting
Underwriter or the Company. In the event of a default by any Underwriter as set
forth in this Section 8, the Closing Date shall be postponed for such period,
not exceeding seven days, as the Representatives shall determine in order that
the required changes in the Registration Statement and the Final Prospectus or
in any other documents or arrangements may be effected. Nothing contained in
this Agreement shall relieve any defaulting Underwriter of its liability, if
any, to the Company and any nondefaulting Underwriter for damages occasioned by
its default hereunder.
9. Termination. This Agreement shall be subject to termination in the
-----------
absolute discretion of the Representatives, by notice given to the Company prior
to delivery of and payment for the Securities, if prior to such time (i) trading
in the Company's common stock shall have been suspended by the Commission or the
New York Stock Exchange or trading in securities generally on the New York Stock
Exchange shall have been suspended or limited or minimum prices shall have been
established on such Exchange, (ii) a banking moratorium shall have been declared
either by Federal or New York State authorities or (iii) there shall have
occurred any outbreak or escalation of hostilities, declaration by the United
States of a national emergency or war or other calamity or crisis the effect of
which on financial markets is such as to make it, in the judgment of the
Representatives, impracticable or inadvisable to proceed with the offering or
delivery of the securities as contemplated by the Final Prospectus (exclusive of
any supplement thereto).
10. Representations and Indemnities to Survive. The respective agreements,
-------------------------------------------
representations, warranties, indemnities and other statements of the Company or
its officers and of the Underwriters set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any investigation
made by or on behalf of any Underwriter or the Company or any of the officers,
directors or controlling persons referred to in Section 7 hereof, and will
survive delivery of and payment for the Securities. The provisions of Sections
6 and 7 hereof shall survive the termination or cancellation of this Agreement.
14
11. Notices. All communications hereunder will be in writing and
-------
effective only on receipt, and, if sent to the Representatives, will be mailed,
delivered or telecopied and confirmed to them, at the address specified in
Schedule I hereto; or, if sent to the Company, will be mailed, delivered or
telecopied and confirmed to it at 000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxx,
00000-0000, attention - Senior Vice President - General Counsel.
12. Successors. This Agreement will inure to the benefit of and be
----------
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 7 hereof, and no
other person will have any right or obligation hereunder.
13. Applicable Law. This Agreement will be governed by and construed in
--------------
accordance with the laws of the State of New York.
15
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicate hereof, whereupon this
letter and your acceptance shall represent a binding agreement among the Company
and the several Underwriters.
Very truly yours,
Frontier Corporation
By: /s/ Xxxxxx Xxxx
_____________________________
Name: Xxxxxx Xxxx
Title: Treasurer
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
X.X. Xxxxxx Securities Inc.
Credit Suisse First Boston Corporation
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
By: X. X. Xxxxxx Securities Inc.
By: /s/ Xxxx Xxxxxxx
________________________
Name: Xxxx Xxxxxxx
Title: Vice President
For themselves and the other
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement.
16
SCHEDULE I
Underwriting Agreement dated September 16, 1998
Registration Statement No. 33-64307
Representatives: c/o X.X. Xxxxxx Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopy: (212) 648- 5151
Attn: Xxxxxxxx Xxxxxx
Title, Purchase Price and Description of Securities:
Title: 6% Dealer remarketable securities/sm/ ("Drs./sm/") due October 15,
2013
Principal amount: $200,000,000
Purchase price to Underwriters: $198,528,000, representing 99.264% of the
principal amount being purchased, plus accrued interest, if any, from
September 21, 1998.
Sinking fund provisions: The Securities will not be subject to any sinking
fund.
Redemption provisions: Not redeemable prior to October 15, 2003. After such
date, the Securities will be redeemable, in whole or in part, at the option
of the Company, at the price specified in the Prospectus.
Remarketing Agreement: The Company and X.X. Xxxxxx Securities Inc., as
remarketing dealer (the "Remarketing Dealer") shall execute and deliver a
Remarketing Agreement on or prior to the Closing Date. In consideration
therefor, the Remarketing Dealer shall pay the Company on the Closing Date
an amount equal to 4.530% of the principal amount of the Drs.
Closing Date, Time and Location: September 21, 1998, 10:00 AM, New York City
time, at the offices of Xxxxx Xxxx & Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000.
Type of Offering: Delayed Offering
Date referred to in Section 4(e) after which the Company may offer or sell debt
securities issued or guaranteed by the Company, other than the Securities
without the consent of the Representatives: the first business day occurring on
or after the tenth business day after the Closing Date.
1
SCHEDULE II
Principal Amount
of Securities to
Underwriters be Purchased
----------------
X.X. Xxxxxx Securities Inc. $100,000,000
Credit Suisse First Boston Corporation 50,000,000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated 50,000,000
------------
Total $200,000,000
2
Exhibit "A"
September 21, 1998
X.X. Xxxxxx Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Credit Suisse First Boston Corporation
00 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
World Financial Center
Xxxxx Xxxxx
Xxx Xxxx, XX 00000-0000
Re: Underwriting Agreement (the "Agreement"), dated September 16,
1998, among Frontier Corporation (the "Company"), X.X. Xxxxxx
Securities Inc., Credit Suisse First Boston Corporation, and Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Dear Sirs/Madams:
I am Senior Vice President and General Counsel of the Company and am
delivering this opinion to you pursuant to Section 5(b) of the Agreement. All
terms in this letter that are capitalized and have not been defined in this
letter shall have the meanings ascribed in the Agreement. For purposes of this
letter, I have examined and relied upon executed copies of the Agreement, copies
of the other documents or agreements delivered pursuant to the Agreement
(including the Remarketing Agreement), copies of the Indenture, the Officer's
Certificate delivered in connection with the Indenture establishing the terms of
the Securities, the global certificate for the Securities, and copies of the
Registration Statement, the Basic Prospectus, the Preliminary Final Prospectus
and the Final Prospectus. I have also examined and relied upon copies of the
bylaws, minute books, and other organizational documents for the Company and
Frontier Telephone of Rochester, Inc. ("FTR"), Frontier Communications Services
Inc. ("FCS) and Frontier Communications International Inc. ("FCI", and together
with FTR and FCS, the "Significant Subsidiaries").
In rendering this opinion, I have assumed the genuineness of all
signatures, the authenticity of all documents submitted to me as originals, and
the conformity to original documents of documents submitted to me as certified
or photostatic copies. I have also assumed that all parties to the Agreement
(other than the Company) and all parties to the Remarketing Agreement (other
than the Company) have all necessary power and authority to execute, deliver,
accept and perform such agreements, and that each such party has taken all
necessary action so as to cause such party to be bound by such agreements,
including under the terms of its governing documents and the laws of the
jurisdiction of its formation. To the extent that the obligations of the Company
under the Indenture may be dependent upon such matters, I assume for purposes of
this opinion that the Trustee is duly organized, validly existing and in good
standing under the laws of its jurisdiction of organization; that the Trustee is
duly qualified to engage in the
X.X. Xxxxxx Securities Inc.
Credit Suisse First Boston Corporation
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
September 21, 1998
Page 2
activities contemplated by the Indenture; that the Indenture has been duly
authorized, executed and delivered by the Trustee.
My review has been limited to examining the documents described above, the
Secretary's Composite Certificate delivered at the Closing (the "Secretary's
Certificate") and applicable New York and federal law. To the extent that any
opinion given herein relates to or is dependent upon factual information, or is
expressed in terms of my knowledge or awareness, I have relied solely upon the
assumptions stated above and the truth of the matters set forth in the
Secretary's Certificate. I have not undertaken to independently verify such
facts or information.
Based solely upon the foregoing, and subject to the qualifications and
limitations set forth herein, I am of the opinion that, as of the date hereof:
1. The Company and FTR have each been duly incorporated and are validly
existing as subsisting corporations under the laws of the State of New
York, with full corporate power and authority necessary to own or hold
their respective properties and conduct the businesses in which they
are engaged, as described in the Final Prospectus. FCS has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the State of Michigan, with full corporate power and
authority necessary to own or hold its properties and conduct the
businesses in which it is engaged, as described in the Final
Prospectus. FCI has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware,
with full corporate power and authority necessary to own or hold its
properties and conduct the businesses in which it is engaged, as
described in the Final Prospectus.
2. All of the outstanding shares of capital stock of each of the
Significant Subsidiaries (a) have been duly and validly authorized and
issued and are fully paid, non-assessable and, except as set forth in
the Final Prospectus, are owned directly or indirectly by the Company
free and clear of any perfected security interest, and (b) to my
knowledge, are free and clear of all other liens, encumbrances,
equities or claims.
3. The Company's authorized equity capitalization is as set forth in the
Final Prospectus and the Securities conform to the description thereof
contained in the Final Prospectus.
4. The Indenture has been duly authorized, executed, and delivered by the
Company and constitutes a valid and binding agreement on the part of
the Company, enforceable against the Company in accordance with its
terms, except to the extent that enforcement thereof may be limited by
(a) bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights generally and (b) general principles of equity
(regardless of whether enforceability is considered in a proceeding at
law or in equity).
5. The Indenture has been duly qualified under the Trust Indenture Act.
X.X. Xxxxxx Securities Inc.
Credit Suisse First Boston Corporation
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
September 21, 1998
Page 3
6. The Securities have been duly authorized, executed and delivered for
authentication by the Company and, when authenticated in accordance
with the provisions of the Indenture and delivered to and paid for by
the Underwriters pursuant to the Agreement, will constitute valid and
binding obligations of the Company entitled to the benefits of the
Indenture, except to the extent that enforcement thereof may be limited
by (a) bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights generally and (b) general principles of equity
(regardless of whether enforceability is considered in a proceeding at
law or in equity).
7. To my knowledge after due inquiry, (a) there is no pending or overtly
threatened action, suit or proceeding before any court or governmental
agency, authority or body or any arbitrator involving the Company or
any Subsidiary of a character required to be disclosed in the
Registration Statement which is not adequately disclosed in the Final
Prospectus, (b) there is no franchise, contract or other document
involving the Company or any Subsidiary of a character required to be
described in the Registration Statement or Final Prospectus, or to be
filed as an exhibit to the Registration Statement, which is not
described or filed as required by the Act, and (c) the statements
included or incorporated in the Final Prospectus describing any legal
proceedings or material contracts or agreements relating to the Company
fairly summarize such matters.
8. All Regulatory Licenses held by the Company or any Subsidiary have been
validly issued and are in full force and effect, with no material
restrictions or qualifications other than as described in the Final
Prospectus. The Regulatory Licenses are the only licenses necessary for
the Company and the Subsidiaries to own their properties and to conduct
their businesses in the manner and to the extent now operated as
described in the Final Prospectus, except to the extent that the
failure to have such license would not have a material adverse effect
on the Company and the Subsidiaries taken as a whole.
9. On the basis of an order, dated January 26, 1996, from the Commission,
the Registration Statement was declared effective under the Act. Any
required filing of the Basic Prospectus, the Preliminary Final
Prospectus and the Final Prospectus pursuant to Rule 424(b) promulgated
under the Act has been made in the manner and within the time period
required by Rule 424(b), and, to my knowledge, (a) no stop order
suspending the effectiveness of the Registration Statement has been
issued and (b) no proceeding for that purpose is pending or threatened
by the Commission.
10. The Registration Statement and the Final Prospectus (other than the
financial statements and other financial or statistical information
contained therein, as to which I express no opinion) comply as to form
in all material respects with the requirements of the Act, the Exchange
Act, the Trust Indenture Act, and the respective rules thereunder.
11. The Agreement has been duly authorized, executed and delivered by the
Company.
X.X. Xxxxxx Securities Inc.
Credit Suisse First Boston Corporation
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
September 21, 1998
Page 4
12. The Remarketing Agreement has been duly authorized, executed and
delivered by the Company and constitutes a valid and binding agreement
on the part of the Company, enforceable against the Company in
accordance with its terms, except to the extent that enforcement
thereof may be limited by (a) bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally and (b)
general principles of equity (regardless of whether enforceability is
considered in a proceeding at law or in equity) and except as rights to
indemnity and contribution thereunder may be limited by applicable law.
13. Neither the issue and sale of the Securities by the Company, nor the
consummation of any of the transactions contemplated in the Remarketing
Agreement or in the Agreement (including the execution, delivery and
performance of the Remarketing Agreement), nor the fulfillment of the
terms of the Agreement or the Remarketing Agreement, will conflict
with, result in a breach of, or constitute a default under, (a) the
charter or by-laws of the Company, (b) the material terms of any
indenture or other agreement or instrument known to me and to which the
Company or any Significant Subsidiary is a party or bound, or (c) any
order or decree known to me to be applicable to the Company or any
Significant Subsidiary of any court, regulatory body, administrative
agency, governmental body or arbitrator having jurisdiction over the
Company or any Significant Subsidiary.
14. No consent, approval, authorization or order of any court or
governmental agency or body is required for the consummation of the
transactions contemplated in the Agreement (including the execution,
delivery and performance of the Remarketing Agreement), except
registration of the Securities under the Act, qualification of the
Indenture under the Trust Indenture Act and such consents, approvals,
authorizations, registrations or qualifications as may be required
under the Exchange Act or applicable state or foreign securities laws
in connection with the purchase and distribution of the Securities by
the Underwriters.
15. To my knowledge after due inquiry, no holders of securities of the
Company have rights to the registration of such securities under the
Registration Statement.
Not having undertaken to determine independently the accuracy or
completeness of or to verify the information furnished with respect to matters
contained in the Registration Statement (which includes all documents
incorporated therein by reference), and recognizing that the character of the
determinations involved in the preparation of the Registration Statement is such
that I do not assume any responsibility for, or express any opinion on the
accuracy, completeness, or fairness of, statements contained in the Registration
Statement, except for those referred to in paragraphs 3 and 7 above, and nothing
has come to my attention therefrom which would lead me to believe that: (a) the
Registration Statement, on the Effective Date and at the Execution Time,
contained any 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 (b) on the date of the Final Prospectus or on the date
hereof, the Final Prospectus included or includes any untrue statement of a
material fact or omitted or omits to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
X.X. Xxxxxx Securities Inc.
Credit Suisse First Boston Corporation
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
September 21, 1998
Page 5
circumstances under which they were made, not misleading. Further, I have not
been called upon to examine, and I have not attempted to examine, the financial
and statistical data included in the Registration Statement, and I express no
opinion with respect thereto.
I do not purport to be an expert on or to express any opinion herein
concerning any laws other than laws of the State of New York, the laws of the
United States of America, and the General Corporation Law of the State of
Delaware, and I expressly decline to opine as to the laws of any other
jurisdiction. With respect to the opinions in paragraph 1 insofar as they
implicate Michigan law, I have relied solely upon the opinion of Jaffe, Raitt,
Heuer & Xxxxx, Professional Corporation, and have not made any independent
investigation of Michigan law. This opinion is only for the benefit of the
addressees and their successors, assigns and counsel and may not be relied upon
by any other person without my express written consent.
Very truly yours,
Xxxxxx X. XxXxx
Senior Vice President and General Counsel
Exhibit "B"
September 21, 1998
X.X. Xxxxxx Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Credit Suisse First Boston Corporation
00 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
World Financial Center
Xxxxx Xxxxx
Xxx Xxxx, XX 00000-0000
Re: Underwriting Agreement (the "Agreement"), dated September 16,
1998, among Frontier Corporation (the "Company"), X.X. Xxxxxx
Securities Inc., Credit Suisse First Boston Corporation, and Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Dear Sirs/Madames:
Pursuant to Section 5(c) of the Agreement, we are delivering this opinion.
All terms in this letter that are capitalized and have not been defined in this
letter shall have the meanings ascribed in the Agreement. We have acted as
special counsel to the Company in connection with the execution and delivery of
the Agreement, and in this capacity, we have examined and relied upon executed
copies of the Agreement, copies of the other documents or agreements delivered
pursuant to the Agreement, a copy of that certain Remarketing Agreement, dated
September 21, 1998, between the Company and X.X. Xxxxxx Securities Inc. (the
"Remarketing Agreement"), copies of the Indenture, the Officer's Certificate
delivered in connection with the Indenture establishing the terms of the
Securities, the global certificate for the Securities, and copies of the
Registration Statement, the Basic Prospectus, the Preliminary Final Prospectus
and the Final Prospectus. We have also examined and relied upon copies of the
bylaws, minutes of board of directors and shareholder meetings, and other
organizational documents for the Company, Frontier Telephone of Rochester, Inc.
("FTR"), Frontier Communications Services Inc. ("FCS"), and Frontier
Communications International Inc. ("FCI") provided to us by management of the
Company.
This opinion is governed by, and shall be interpreted in accordance with,
Part II of the Report of the Ad Hoc Committee of the Business Law Section of the
State Bar of Michigan on Standardized Legal Opinions in Business Transactions
dated August 1, 1991 (the "Michigan Report"), incorporated herein by reference.
A copy of Part II of the Michigan Report is attached hereto. Without limiting
the generality of the foregoing, the meaning of the terms and phrases used in
this opinion (other than those defined in the Agreement) is governed by and is
subject to such Part II except as otherwise expressly provided herein. However,
notwithstanding anything in the Michigan Report or anything else in this opinion
letter, (a) we have not relied on any information or assumption if we have
knowledge that such information or assumption is false or we have knowledge of
facts that would make such reliance unreasonable; (b) as used in this opinion
letter, "knowledge" includes the knowledge of the attorneys within the firm who
are principal contacts for the Company or have performed substantive work for
the Company or its subsidiaries within the past year, in addition to those
persons referred to in paragraph B(3)(c) of
X.X. Xxxxxx Securities Inc.
Credit Suisse First Boston Corporation
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
September 21, 1998
Page 2
the Michigan Report; and (c) paragraphs B(9)(a) and B(9)(e) of the Michigan
Report are not applicable to this opinion letter.
In our examination, we have assumed the genuineness of all signatures, the
authenticity of all documents submitted to us as originals, and the conformity
to original documents of documents submitted to us as certified or photostatic
copies. We have also assumed that all parties to the Agreement (other than the
Company) have all necessary power and authority to execute, deliver, accept and
perform such agreements, and that each such party has taken all necessary action
so as to cause such party to be bound by such agreements, including under the
terms of its governing documents and the laws of the jurisdiction of its
formation. To the extent that the obligations of the Company under the
Indenture may be dependent upon such matters, we assume for purposes of this
opinion that the Trustee is duly organized, validly existing and in good
standing under the laws of its jurisdiction of organization; that the Trustee is
duly qualified to engage in the activities contemplated by the Indenture; that
the Indenture has been duly authorized, executed and delivered by the Trustee
and constitutes the legally valid and binding obligation of the Trustee
enforceable against the Trustee in accordance with its terms; that the Trustee
is in compliance, with respect to acting as a trustee under the Indenture, with
all applicable laws and regulations; and that the Trustee has the requisite
organizational and legal power and authority to perform its obligations under
the Indenture.
Our review has been limited to examining the documents described above, the
Secretary's Composite Certificate delivered at the Closing (the "Secretary's
Certificate"), the opinion of Xxxxxx X. XxXxx, Vice President Legal and Planning
of the Company, and applicable Michigan, Delaware and federal law (other than
the Communications Act of 1934, as amended, the rules and regulations of the
Federal Communications Commission, and other federal telecommunications laws or
regulations). To the extent that any opinion given herein relates to or is
dependent upon factual information, or is expressed in terms of our knowledge or
awareness, we have relied solely upon the assumptions stated above and the truth
of the matters set forth in the Secretary's Certificate. We have not undertaken
to independently verify such facts or information.
Based solely upon the foregoing, and subject to the qualifications and
limitations set forth herein, we are of the opinion that, as of the date hereof:
1. The Company and FTR have each been duly incorporated and, based upon a
certificate of subsistence received from the State of New York
Department of State, dated September ___, 1998 for each of the
Company and FTR, are validly existing as subsisting corporations under
the laws of the State of New York, with full corporate power and
authority necessary to own or hold their respective properties and
conduct the businesses in which they are engaged, as described in the
Final Prospectus. FCS has been duly incorporated and, based upon a
certificate of good standing received from the Michigan Department of
Consumer and Industry Services, dated September ___, 1998, is validly
existing as a corporation in good standing under the laws of the State
of Michigan, with full corporate power and authority necessary to own
or hold its properties and conduct the businesses in which it is
engaged, as described in the Final Prospectus. FCI has been duly
incorporated and, based upon a certificate of good standing received
from the Delaware Secretary of State, dated September ___, 1998, is
validly existing as a corporation in good standing under the laws of
the State of Delaware, with full corporate power and authority
necessary to own or hold its properties and conduct the businesses in
which it is engaged, as described in the Final
X.X. Xxxxxx Securities Inc.
Credit Suisse First Boston Corporation
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
September 21, 1998
Page 3
Prospectus. We express no opinion as to whether the Company, FTR, FCS,
or FCI is qualified to do business in any state other than their
respective states of incorporation.
2. The Indenture has been duly authorized, executed, and delivered by the
Company and constitutes a valid and binding agreement on the part of
the Company, enforceable against the Company in accordance with its
terms, except to the extent that enforcement thereof may be limited by
(a) bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights generally and (b) general principles of equity
(regardless of whether enforceability is considered in a proceeding at
law or in equity).
3. The Remarketing Agreement has been duly authorized, executed, and
delivered by the Company and constitutes a valid and binding agreement
on the part of the Company, enforceable against the Company in
accordance with its terms, except as rights to indemnity and
contribution thereunder may be limited by applicable law, and to the
extent that enforcement thereof may be limited by (a) bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors' rights
generally and (b) general principles of equity (regardless of whether
enforceability is considered in a proceeding at law or in equity).
4. The Indenture has been duly qualified under the Trust Indenture Act.
5. The Securities have been duly authorized, executed and delivered for
authentication by the Company and, when authenticated in accordance
with the provisions of the Indenture and delivered to and paid for by
the Underwriters pursuant to the Agreement, will constitute validly
issued and binding obligations of the Company entitled to the benefits
of the Indenture, except to the extent that enforcement thereof may be
limited by (a) bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights generally and (b) general
principles of equity (regardless of whether enforceability is
considered in a proceeding at law or in equity).
6. On the basis of an order, dated January 26, 1996, from the Commission,
the Registration Statement was declared effective under the Act. Any
required filing of the Basic Prospectus, any Preliminary Final
Prospectus and the Final Prospectus pursuant to Rule 424(b) promulgated
under the Act has been made in the manner and within the time period
required by Rule 424(b), and, to our knowledge, (a) no stop order
suspending the effectiveness of the Registration Statement has been
issued and (b) no proceeding for that purpose is pending or threatened
by the Commission.
7. The Registration Statement and the Final Prospectus (other than the
financial statements and other financial or statistical information
contained therein, as to which we express no opinion) comply as to form
in all material respects with the requirements of the Act, the Exchange
Act, the Trust Indenture Act, and the respective rules thereunder.
X.X. Xxxxxx Securities Inc.
Credit Suisse First Boston Corporation
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
September 21, 1998
Page 4
8. The Agreement has been duly authorized, executed, and delivered by the
Company.
9. Neither the issue and sale of the Securities by the Company, nor the
consummation of any of the transactions contemplated in the Remarketing
Agreement or in the Agreement (including the execution, delivery and
performance of the Remarketing Agreement), nor the fulfillment of the
terms of the Agreement or of the Remarketing Agreement, will conflict
with, result in a breach of, or constitute a default under, the charter
or by-laws of the Company.
10. No consent, approval, authorization or order of any court or
governmental agency or body is required for the consummation of the
transactions contemplated in the Agreement (including the execution,
delivery and performance of the Remarketing Agreement), except
registration of the Securities under the Act and such consents,
approvals, authorizations, registrations or qualifications as may be
required under the Exchange Act or applicable state or foreign
securities laws in connection with the purchase and distribution of the
Securities by the Underwriters.
11. The discussion in the Final Prospectus under the caption "Certain
United States Federal Income Tax Considerations" fairly summarizes the
material Federal income tax considerations discussed in it.
12. The statements in the Final Prospectus under the captions "Description
of the Drs." and "Description of Debt Securities", 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 or documents.
Not having undertaken to determine independently the accuracy or
completeness of or to verify the information furnished with respect to matters
contained in the Registration Statement (which includes all documents
incorporated therein by reference), and recognizing that the character of the
determinations involved in the preparation of the Registration Statement is such
that we do not assume any responsibility for, or express any opinion on the
accuracy, completeness, or fairness of, statements contained in the Registration
Statement, except for those referred to in paragraphs 11 and 12 above, and
solely on the basis of our participation in the preparation of the Registration
Statement, nothing has come to our attention therefrom which would lead us to
believe that: (a) the Registration Statement, on the Effective Date and at the
Execution Time, contained any 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 (b) on the date of the Final Prospectus or
on the date hereof, the Final Prospectus included or includes any untrue
statement of a material fact or omitted or omits to state a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading. Further,
we have not been called upon to examine, and we have not attempted to examine,
the financial and statistical data included in the Registration Statement, and
we express no opinion with respect thereto.
We are admitted to practice law only in the State of Michigan and do not
purport to be experts on or to express any opinion herein concerning any laws
other than laws of the State of Michigan, the General Corporation Law of the
State of Delaware and the laws of the United States of America, and we expressly
decline to opine as to the laws of any other jurisdiction. With respect to the
opinions in paragraphs 1, 2, 3, 5, and 8, insofar as they implicate New York
X.X. Xxxxxx Securities Inc.
Credit Suisse First Boston Corporation
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
September 21, 1998
Page 5
law, we have relied solely upon the opinion of Xxxxxx X. XxXxx, Senior Vice
President and General Counsel of the Company, and have not made any independent
investigation of New York law. In addition, we note that the Agreement and the
Indenture each provide that they are to be governed by the laws of a state other
than the State of Michigan. We have made no study of the laws, decisions and
other authorities of such state, and we express no opinion concerning the
validity, binding effect or enforceability of the Agreement or the Indenture
under the laws of such state. This opinion is only for the benefit of the
addressees and their successors, assigns and counsel and may not be relied upon
by any other person without our express written consent.
Very truly yours,
JAFFE, RAITT, HEUER & XXXXX
Professional Corporation
Xxxxxxx X. Xxxxxx
0579012.03
