EXHIBIT 1.3
Crown Castle International Corp.
___% Senior Notes Due 2011 and
___% Senior Discount Notes Due 2011
Underwriting Agreement
----------------------
.......................,1999
Xxxxxxx, Xxxxx & Co.,
Xxxxxxx Xxxxx Xxxxxx Inc.,
Xxxxxx Brothers Inc.,
Credit Suisse First Boston Corporation
BancBoston Xxxxxxxxx Xxxxxxxx
McDonald Investments Inc., A KeyCorp Company
As representatives (the "Representatives") of the several Underwriters
named in Schedule I hereto,
c/x Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Crown Castle International Corp., a Delaware corporation (the "Company"),
proposes, subject to the terms and conditions stated herein, to issue and sell
to the Underwriters named in Schedule I hereto (the "Underwriters") an aggregate
of $150,000,000 principal amount of the __ % Senior Notes Due 2011 (the "Senior
Notes") and of $300,000,000 initial accreted value ($______ principal amount at
maturity) of the __% Senior Discount Notes due 2011 (the "Senior Discount
Notes" and, together with the Senior Notes, the "Securities").
The Company and the Underwriters, in accordance with the requirements of
Rule 2720 ("Rule 2720") of the National Association of Securities Dealers, Inc.
(the "NASD") and subject to the terms and conditions stated herein, also hereby
confirm the engagement of the services of Xxxxxx Brothers Inc. (the "Independent
Underwriter") as a "qualified independent underwriter" within the meaning of
Section (b)(15) of Rule 2720 in connection with the offering and sale of the
Securities.
1. The Company represents and warrants to, and agrees with, each of the
Underwriters and the Independent Underwriter that:
(i) A registration statement on Form S-1 (File No. 333-74553) (as
amended by each pre-effective amendment thereto, the "Initial Registration
Statement") in respect of the Securities has been filed with the Securities
and Exchange Commission (the "Commission"); the Initial Registration
Statement and any post-effective amendment thereto, (each in the form
heretofore delivered to you excluding exhibits thereto) for each of the
other Underwriters, have been declared effective by the Commission in such
form; other than a registration statement, if any, increasing the size of
the offering (a "Rule 462(b) Registration Statement"), filed pursuant to
Rule 462(b) under the Securities Act of 1933, as amended (the "Act"), which
became effective upon filing, no other document with respect to the Initial
Registration Statement has heretofore been filed with the Commission; and
no stop order suspending the effectiveness of the Initial Registration
Statement, any post-effective amendment thereto or
the Rule 462(b) Registration Statement, if any, has been issued and no
proceeding for that purpose has been initiated or threatened by the
Commission (any preliminary prospectus included in the Initial Registration
Statement or filed with the Commission pursuant to Rule 424(a) of the rules
and regulations of the Commission under the Act is hereinafter called a
"Preliminary Prospectus"); the various parts of the Initial Registration
Statement and the Rule 462(b) Registration Statement, if any, including all
exhibits thereto and including the information contained in the form of
final prospectus filed with the Commission pursuant to Rule 424(b) under
the Act in accordance with Section 6(a) hereof and deemed by virtue of Rule
430A under the Act to be part of the Initial Registration Statement at the
time it was declared effective, each as amended at the time such part of
the Initial Registration Statement became effective or such part of the
Rule 462(b) Registration Statement, if any, became or hereafter becomes
effective, are hereinafter collectively called the "Registration
Statement"; and such final prospectus, in the form first filed pursuant to
Rule 424(b) under the Act, is hereinafter called the "Prospectus";
(ii) No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and each Preliminary
Prospectus, at the time of filing thereof, conformed in all material
respects to the requirements of the Act and the rules and regulations of
the Commission thereunder, and did not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter through
Xxxxxxx, Xxxxx & Co. or by the Independent Underwriter expressly for use
therein;
(iii) The Registration Statement conforms, and the Prospectus and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of
the Act and the rules and regulations of the Commission thereunder and do
not and will not, as of the applicable effective date as to the
Registration Statement and any amendment thereto and as of the applicable
filing date as to the Prospectus and any amendment or supplement thereto,
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the Company
by an Underwriter through Xxxxxxx, Xxxxx & Co. or by the Independent
Underwriter expressly for use therein;
(iv) Neither the Company nor any of its subsidiaries has sustained since
the date of the latest audited financial statements included in the
Prospectus any material loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or
from any labor dispute or court or governmental action, order or decree,
otherwise than as set forth or contemplated in the Prospectus; and, since
the respective dates as of which information is given in the Registration
Statement and the Prospectus, there has not been any change in the capital
stock or long-term debt of the Company or any of its subsidiaries or any
material adverse change, or any development involving a prospective
material adverse change, except such as are described in the Prospectus or
such as would not be reasonably expected, in the aggregate, to result in a
material adverse effect on the condition (financial or other), business,
prospects, properties or results of operations of the
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Borrower and its "significant subsidiaries" as defined in Rule 405 of the
rules and regulations of the Commission promulgated under the Act, taken as
a whole ("Material Adverse Effect");
(v) The Company and its subsidiaries have good and indefeasible title to
all real property and good and marketable title to all personal property
owned by them, in each case free and clear of all liens, encumbrances and
defects except such as are described in the Prospectus; and any real
property and buildings held under lease by the Company and its subsidiaries
are held by them under valid, subsisting and enforceable leases with such
exceptions as would not be reasonably expected, in the aggregate, to result
in a Material Adverse Effect;
(vi) The Company is a corporation duly incorporated and validly existing
and in good standing under the laws of the State of Delaware with all
requisite corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectus, and
is duly registered and qualified to conduct its business and is in good
standing in each jurisdiction or place where the nature of its properties
or the conduct of its business requires such registration or qualification,
except where the failure so to register or qualify or to be in good
standing would not have a Material Adverse Effect; and each subsidiary of
the Company has been duly incorporated and is validly existing as a
corporation (or in the case of Crown Atlantic Holding Company LLC, as a
limited liability company) in good standing under the laws of its
jurisdiction of incorporation;
(vii) None of the subsidiaries of the Company (other than Crown
Communication, Inc. ("CCI"), Castle Transmission Services (Holdings) Ltd.
("CTSH"), Castle Transmission International, Ltd. ("CTI"), Crown Castle
Investment Corp. ("CC Investment"), Crown Castle Investment Corp. (II) ("CC
Investment II"), CCA Investment Corp. ("CCAIC"), Crown Atlantic Holding
Company LLC ("Crown Atlantic Holdings"), Crown Atlantic Holding Sub LLC
("Crown Atlantic Sub") and Crown Atlantic Company LLC ("Crown Atlantic")
(collectively, the "Significant Subsidiaries")) is a "significant
subsidiary," as such term is defined in Rule 405 of the rules and
regulations under the Act;
(viii) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company
have been duly and validly authorized and issued, are fully paid and non-
assessable and conform to the description of the stock contained in the
Prospectus; and all of the issued shares of capital stock of each
subsidiary of the Company have been duly and validly authorized and issued,
are fully paid and non-assessable and (except for directors' qualifying
shares and except as set forth in the Prospectus) are owned directly or
indirectly by the Company, free and clear of all liens, encumbrances,
equities or claims, except as set forth in the Prospectus;
(ix) The Securities have been duly and validly authorized and, when
issued and delivered against payment therefor as provided herein, will be
duly and validly executed, authenticated, issued and delivered and will
constitute valid and legally binding obligations of the Company and will be
entitled to the benefits provided by the respective Indentures to be dated
as of ________, 1999 (the "Indentures") between the Company and United
States Trust Company of New York, as Trustee (the "Trustee"), under which
they are to be issued, each of which is substantially in the form filed as
an exhibit to the Registration Statement, each of the Indentures has been
duly authorized and duly qualified under the Trust Indenture Act and, when
executed and delivered by the Company and the Trustee, will constitute a
valid and legally binding instrument, enforceable in accordance with its
terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability
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relating to or affecting creditor's rights and to general equity
principles; and the Securities and the Indentures will conform to the
description thereof in the Prospectus;
(x) The issue and sale of the Securities hereunder and the compliance by
the Company with all of the provisions of this Agreement and the
consummation of the transactions herein contemplated will not conflict with
or result in a breach or violation of any of the terms or provisions of, or
(with the giving of notice or the lapse of time or both) constitute a
default under, (A) any indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its subsidiaries
is bound or to which any of the property or assets of the Company or any of
its subsidiaries is subject, (B) the provisions of the charter, by-laws or
other constitutive documents of the Company or any of its subsidiaries or
(C) any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or any of
its subsidiaries or any of their properties or assets except in the cases
of clause (A) or (C), such breaches, violations or defaults that in the
aggregate would not have a Material Adverse Effect; and no consent,
approval, authorization, order, registration or qualification of or with
any such court or governmental agency or body is required for the issue and
sale of the Securities or the consummation by the Company of the
transactions contemplated by this Agreement, except (A) the registration
under the Act of the Securities and (B) such consents, approvals,
authorizations, registrations or qualifications as (1) may be required
under the Exchange Act and applicable state or foreign securities laws in
connection with the purchase and distribution of the Securities by the
Underwriters, (2) as may have already been obtained or made and (3) the
failure to obtain or make would not, individually or in the aggregate, have
a Material Adverse Effect;
(xi) Neither the Company nor any of its subsidiaries (A) is in violation
of its charter, by-laws or other constitutive documents, (B) is in default
in any material respect, and no event has occurred which, with notice or
lapse of time or both, would constitute such a default, in the due
performance or observance of any term, covenant or condition contained in
any material indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which it is a party or by which it is bound or
to which any of its properties or assets is subject or (C) is in violation
in any material respect of any law, ordinance, governmental rule,
regulation or court decree to which it or its property or assets may be
subject or has failed to obtain any material license, permit, certificate,
franchise or other governmental authorization or permit necessary to the
ownership of its property or to the conduct of its business, except for, in
the cases of clause (B) or (C), such defaults, violations or failures to
obtain that in the aggregate would not have a Material Adverse Effect;
(xii) The statements set forth in the Prospectus under the caption
"Description of the Notes", insofar as they purport to constitute a summary
of the terms of the Securities, under the caption "Certain US Income Tax
Considerations for Non-U.S. Holders" and under the caption "Underwriting",
insofar as they purport to describe the provisions of the laws and
documents referred to therein, are accurate, complete and fair;
(xiii) Other than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or any of
its subsidiaries is the subject which, if determined adversely to the
Company or any of its subsidiaries, would individually or in the aggregate
have a Material Adverse Effect; and, to the best of the Company's
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
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(xiv) The Company is not and, after giving effect to the offering and
sale of the Securities, will not be an "investment company", as such term
is defined in the Investment Company Act of 1940, as amended (the
"Investment Company Act");
(xv) Neither the Company nor any of its affiliates does business with
the government of Cuba or with any person or affiliate located in Cuba
within the meaning of Section 517.075, Florida Statutes;
(xvi) KPMG LLP, who have certified certain financial statements of the
Company and its subsidiaries and of certain other business operations to be
acquired by the Company and its subsidiaries, are independent public
accountants as required by the Act and the rules and regulations of the
Commission thereunder;
(xvii) The Company has reviewed its operations and that of its
subsidiaries and any third parties with which the Company or any of its
subsidiaries has a material relationship to evaluate the extent to which
the business or operations of the Company or any of its subsidiaries will
be affected by the Year 2000 Problem. As a result of such review, the
Company has no reason to believe, and does not believe, that the Year 2000
Problem will have a material adverse effect on the general affairs,
management, the current or future consolidated financial position, business
prospects, stockholders' equity or results of operations of the Company and
its subsidiaries or result in any material loss or interference with the
Company's business or operations. The "Year 2000 Problem" as used herein
means any significant risk that computer hardware or software used in the
receipt, transmission, processing, manipulation, storage, retrieval,
retransmission or other utilization of data or in the operation of
mechanical or electrical systems of any kind will not, in the case of dates
or time periods occurring after December 31, 1999, function at least as
effectively as in the case of dates or time periods occurring prior to
January 1, 2000;
(xviii) This Agreement has been duly authorized, executed and delivered
by the Company and, assuming due authorization, execution and delivery by
the Underwriters, constitutes the valid and binding agreement of the
Company, enforceable against the Company in accordance with its terms
(subject to applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer and other similar laws affecting creditors' rights
generally from time to time in effect and to general principles of equity,
including, without limitation, concepts of materiality, reasonableness,
good faith and fair dealing, regardless of whether in a proceeding in
equity or at law);
(xix) Except as described in the Prospectus, there are no contracts,
agreements or understandings between the Company or any of its subsidiaries
and any person (other than Xxxxxx X. Xxxxx) granting such person the right
to require the Company or any of its subsidiaries to file a registration
statement under the Securities Act with respect to any securities of the
Company and its subsidiaries owned or to be owned by such person or to
require the Company or any of its subsidiaries to include such securities
in the securities registered pursuant to the Registration Statement or in
any securities being registered pursuant to any other registration
statement filed by the Company or any of its subsidiaries under the
Securities Act;
(xx) The consolidated historical and pro forma financial statements,
together with the related notes thereto filed as part of the Registration
Statement or included in the Prospectus comply as to form in all material
respects with the requirements of Regulation S-X under the Act applicable
to registration statements on Form S-1 under the Act. Such historical
financial statements fairly present the financial position of the Company
at the respective dates
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indicated and the results of operations and cash flows for the respective
periods indicated, in each case in accordance with generally accepted
accounting principles ("GAAP") consistently applied throughout such
periods. Such pro forma financial statements have been prepared on a basis
consistent with such historical statements, except for the pro forma
adjustments specified therein, and give effect to assumptions made on a
reasonable basis and in good faith and present fairly the pro forma
position, results of operations and the other information purported to be
shown therein at the respective dates or the respective periods therein
specified. The other financial and statistical information and data filed
as part of the Registration Statement or included in the Prospectus,
historical and pro forma, are, in all material respects, fairly presented
and prepared on a basis consistent with such financial statements and the
books and records of the Company;
(xxi) The Company and each of the Significant Subsidiaries has such
permits, licenses, franchises, certificates of need and other approvals or
authorizations of any governmental or regulatory authority ("Permits"),
including, without limitation, any permits required by the Federal
Communications Commission ("FCC"), the Federal Aviation Administration
("FAA") or the Office of Telecommunications ("OFTEL"), as are necessary
under applicable law to own their respective properties and to conduct
their respective businesses in the manner described in the Prospectus,
except to the extent that the failure to have such Permits would not have a
Material Adverse Effect. The Company and the Significant Subsidiaries have
fulfilled and performed, in all material respects, all their respective
obligations with respect to the Permits, and no event has occurred which
allows, or after notice or lapse of time would allow, revocation or
termination thereof or results in any other material impairment of the
rights of the holder of any such Permit, subject in each case to such
qualification as may be set forth in the Prospectus and except to the
extent that any such revocation or termination would not have a Material
Adverse Effect. Except as described in the Prospectus, none of the Permits
contains any restriction that has not previously been satisfied and that is
materially burdensome to the Company or any of the Significant
Subsidiaries;
(xxii) For each existing tower of the Company not yet registered with
the FCC where registration will be required, the FCC's grant of an
application for registration of such tower will not have a significant
environmental effect as defined under Section 1.1307(a) of the FCC's rules;
(xxiii) The consummation of the transactions contemplated by this
Agreement shall not cause any third party to have any rights of first
refusal with respect to the acquisition of towers under any agreement filed
as an exhibit to, or incorporated by reference in, the Registration
Statement (the "Material Agreements") that has not already been described
in the Prospectus as to which the Company and any of the Significant
Subsidiaries or any of their property or assets may be subject;
(xxiv) The Company and each of the Significant Subsidiaries owns or
possesses all patents, trademarks, trademark registration, service marks,
service mark registrations, trade names, copyrights, licenses, inventions,
trade secrets and rights described in the Prospectus as being owned by any
of them or necessary for the conduct of their respective businesses, and
neither the Company nor any of the Significant Subsidiaries is aware of any
claim to the contrary or any challenge by any other person to the rights of
the Company or any of the Significant Subsidiaries with respect to such
rights that, if determined adversely to the Company or any such Significant
Subsidiary, would in the aggregate have a Material Adverse Effect;
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(xxv) The descriptions in the Prospectus of all agreements, contracts,
indentures, leases or other instruments are accurate in all material
respects and fairly present the information purported to be described
therein;
(xxvi) Neither the Company nor any of its subsidiaries is involved in
any strike, job action or labor dispute with any group of employees, and,
to the knowledge of the Company and the Subsidiaries, no such action or
dispute is threatened;
(xxvii) The Company and each of its subsidiaries are in compliance in
all material respects with all presently applicable provisions of the
Employee Retirement Income Security Act of 1974, as amended, including the
regulations and published interpretations thereunder ("ERISA"); no
"reportable event" (as defined in ERISA) has occurred with respect to any
"pension plan" (as defined in ERISA) for which the Company would have any
liability; the Company has not incurred and does not expect to incur
liability under (i) Title IV of ERISA with respect to termination of, or
withdrawal from, any "pension plan" or (ii) Sections 412 or 4971 of the
Internal Revenue Code of 1986, as amended, including the regulations and
published interpretations thereunder (the "Code"); and each "pension plan"
for which the Company would have any liability that is intended to be
qualified under Section 401(a) of the Code is so qualified in all material
respects and nothing has occurred, whether by action or by failure to act,
which would cause the loss of such qualification;
(xxviii) The Company and each of its subsidiaries have filed all
federal, state and local income and franchise tax returns required to be
filed through the date hereof and have paid all taxes due thereon, and no
tax deficiency has been determined adversely to the Company or any of its
subsidiaries nor does the Company or any of its subsidiaries have any
knowledge of any tax deficiency which, if determined adversely to the
Company or any of its subsidiaries, would have a Material Adverse Effect;
(xxix) Since the date as of which information is given in the
Prospectus through the date hereof, and except as may otherwise be
disclosed in the Registration Statement, the Company has not (i) issued or
granted any securities, (ii) incurred any liability or obligation, direct
or contingent, or entered into any transaction, in each case not in the
ordinary course of business which is material to the Company and its
subsidiaries taken as a whole or (iii) declared or paid any dividend on its
capital stock (excluding payment in lieu of fractional shares upon
conversion of certain senior preferred convertible stock of the Company);
(xxx) The Company (i) makes and keeps accurate books and records and
(ii) maintains a system of internal accounting controls sufficient to
provide reasonable assurance that (A) transactions are executed in
accordance with management's authorization, (B) transactions are recorded
as necessary to permit preparation of its financial statements in
conformity with GAAP and to maintain accountability for assets, (C) access
to its assets is permitted only in accordance with management's general or
specific authorization and (D) the reported accountability for its assets
is compared with existing assets at reasonable intervals and appropriate
action is taken with respect to any differences;
(xxxi) Neither the Company nor any of its subsidiaries, nor any
director, officer, agent, employee or other person associated with or
acting on behalf of the Company or any of its subsidiaries, has used any
corporate funds for any unlawful contribution, gift, entertainment or other
unlawful expense relating to political activity; made any direct or
indirect unlawful payment to any foreign or domestic government official or
employee from corporate funds; violated or is in violation of any provision
of the Foreign Corrupt Practices Act of 1977; or made any bribe, rebate,
payoff, influence payment, kickback or other unlawful payment;
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(xxxii) There has been no storage, disposal, generation, manufacture,
refinement, transportation, handling or treatment of toxic wastes, medical
wastes, hazardous wastes or hazardous substances by the Company or any of
its subsidiaries (or, to the knowledge of the Company, any of their
predecessors in interest) at, upon or from any of the property now or
previously owned or leased by the Company or any of its subsidiaries in
violation of any applicable law, ordinance, rule, regulation, order,
judgment, decree or permit or which would require remedial action under any
applicable law, ordinance, rule, regulation, order, judgment, decree or
permit, except for any violation or remedial action which would not have,
or could not be reasonably likely to have, singularly or in the aggregate,
a Material Adverse Effect; there has been no material spill, discharge,
leak, emission, injection, escape, dumping or release of any kind onto such
property or into the environment surrounding such property of any toxic
wastes, medical wastes, solid wastes, hazardous wastes or hazardous
substances due to or caused by the Company or any of its subsidiaries or
with respect to which the Company or any of its subsidiaries has knowledge,
except for any such spill, discharge, leak, emission, injection, escape,
dumping or release which would not have or would not be reasonably likely
to have, singularly or in the aggregate, a Material Adverse Effect; and the
terms "hazardous wastes," "toxic wastes," "hazardous substances" and
"medical wastes" shall have the meanings specified in any applicable local,
state, federal and foreign laws or regulations with respect to
environmental protection; and
(xxxiii) The Company and each of the Significant Subsidiaries carry, or
are covered by, insurance in such amounts and covering such risks as is
adequate for the conduct of its businesses and the value of its properties
and as is customary for companies engaged in similar businesses in similar
industries.
2. Subject to the terms and conditions herein set forth, the Company
agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Company, at
a purchase price of ....% of the initial accreted value thereof, plus accreted
value, if any, from . . . . . . . . . . . . . , 1999 to the Time of Delivery
hereunder, the principal amount of Securities set forth opposite the name of
such Underwriter in Schedule I hereto.
The Company shall not be obligated to deliver any of the Securities to
be delivered at the Time of Delivery except upon payment for all the Securities
to be purchased at the Time of Delivery as provided herein.
3. Upon the authorization by the Representatives of the release of the
Securities, the several Underwriters propose to offer the Securities for sale
upon the terms and conditions set forth in the Prospectus.
4. (a) The Company hereby confirms its engagement of the services of the
Independent Underwriter as, and the Independent Underwriter hereby confirms its
agreement with the Company to render services as, a "qualified independent
underwriter" within the meaning of Section (b)(15) of Rule 2720 with respect to
the offering and sale of the Securities.
(b) The Independent Underwriter hereby represents and warrants to, and
agrees with, the Company and the Underwriters that with respect to the offering
and sale of the Securities as described in the Prospectus:
(i) The Independent Underwriter constitutes a "qualified independent
underwriter" within the meaning of Section (b)(15) of Rule 2720;
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(ii) The Independent Underwriter has participated in the preparation of
the Registration Statement and the Prospectus and has exercised the usual
standards of "due diligence" in respect thereto;
(iii) The Independent Underwriter has undertaken the legal
responsibilities and liabilities of an underwriter under the Act
specifically including those inherent in Section 11 thereof;
(iv) Based upon (A) a review of the Company, including an examination
of the Registration Statement, information regarding the earnings, assets,
capital structure and growth rate of the Company and other pertinent
financial and statistical data, (B) inquiries of and conferences with the
management of the Company and its counsel and independent public
accountants regarding the business and operations of the Company, (C)
consideration of the prospects for the industry in which the Company
competes, estimates of the business potential of the Company, assessments
of its management, the general condition of the securities markets, market
prices of the capital stock and debt securities of, and financial and
operating data concerning, companies believed by the Independent
Underwriter to be comparable to the Company with debt securities of
maturity and seniority similar to the Securities and the demand for
securities of comparable companies similar to the Securities, and (D) such
other studies, analyses and investigations as the Independent Underwriter
has deemed appropriate, and assuming that the offering and sale of the
Securities is made as contemplated herein and in the Prospectus, the
Independent Underwriter recommends, as of the date of the execution and
delivery of this Agreement, that the yield on the Securities be not less
than ...% (corresponding to an initial public offering price of ...%),
which minimum yield should in no way be considered or relied upon as an
indication of the value of the Securities; and
(v) Subject to the provisions of Section 8 hereof, the Independent
Underwriter will furnish to the Underwriters at the Time of Delivery a
letter, dated the Time of Delivery, in form and substance satisfactory to
the Underwriters, to the effect of clauses (i) through (iv) above.
(c) The Independent Underwriter hereby agrees with the Company and the
Underwriters that, as part of its services hereunder, in the event of any
amendment or supplement to the Prospectus, the Independent Underwriter will
render services as a "qualified independent underwriter" within the meaning of
Section (b)(15) of Rule 2720 with respect to the offering and sale of the
Securities as described in the Prospectus as so amended or supplemented that are
substantially the same as those services being rendered with respect to the
offering and sale of the Securities as described in the Prospectus (including
those described in subsection (b) above).
(d) The Company, the Underwriters and the Independent Underwriter agree to
comply in all material respects with all of the requirements of Rule 2720
applicable to them in connection with the offering and sale of the Securities.
The Company agrees to cooperate with the Underwriters and the Independent
Underwriter to enable the Underwriters to comply with Rule 2720 and the
Independent Underwriter to perform the services contemplated by this Agreement.
(e) As compensation for the services of the Independent Underwriter
hereunder, the Company agrees to pay the Independent Underwriter $ .... at the
Time of Delivery. In addition, the Company agrees promptly to reimburse the
Independent Underwriter for all out of pocket expenses, including fees and
disbursements of counsel, reasonably incurred in connection with this Agreement
and the services to be rendered hereunder.
5. The Securities to be purchased by each Underwriter hereunder, in
definitive form, and in such authorized denominations and registered in such
names as Xxxxxxx, Xxxxx & Co. may request
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upon at least forty-eight hours' prior notice to the Company, shall be delivered
by or on behalf of the Company to Xxxxxxx, Xxxxx & Co., through the facilities
of The Depository Trust Company ("DTC"), for the account of such Underwriter,
against payment by or on behalf of such Underwriter of the purchase price
therefor by wire transfer of Federal (same-day) funds to the account specified
by the Company to Xxxxxxx, Xxxxx & Co. at least forty-eight hours in advance.
The Company will cause the certificates representing the Securities to be made
available for checking and packaging at least twenty-four hours prior to the
Time of Delivery (as defined below) at the office of DTC or its designated
custodian (the "Designated Office"). The Securities to be purchased by each
Underwriter hereunder will be represented by one or more definitive global
Securities in book-entry form which will be deposited by or on behalf of the
Company with The Depository Trust Company ("DTC") or its designated custodian.
The Company will deliver the Securities to Xxxxxxx, Xxxxx & Co., for the account
of each Underwriter, against payment by or on behalf of such Underwriter of the
purchase price therefor by wire transfer of Federal (same-day) funds to the
account specified by the Company to Xxxxxxx, Xxxxx & Co. at least forty-eight
hours in advance, by causing DTC to credit the Securities to the account of
Xxxxxxx, Xxxxx & Co. at DTC. The time and date of such delivery and payment
shall be 9:30 a.m., New York City time, on ....................., 1999 or such
other time and date as the Representatives and the Company may agree upon in
writing. Such time and date are herein called the "Time of Delivery".
(b) The documents to be delivered at the Time of Delivery by or on behalf
of the parties hereto pursuant to Section 8 hereof, including the cross-receipt
for the Securities and any additional documents requested by the Underwriters
pursuant to Section 8 hereof, will be delivered at the offices of Xxxxxx &
Xxxxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Closing Location"),
and the Securities will be delivered at the Designated Office, all at the Time
of Delivery. A meeting will be held at the Closing Location at 4:00 p.m., New
York City time, on the New York Business Day next preceding the Time of
Delivery, at which meeting the final drafts of the documents to be delivered
pursuant to the preceding sentence will be available for review by the parties
hereto. For the purposes of this Section 5, "New York Business Day" shall mean
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in New York are generally authorized or obligated by law or
executive order to close.
6. The Company agrees with each of the Underwriters and with the
Independent Underwriter:
(a) To prepare the Prospectus in a form approved by you and to file such
Prospectus pursuant to Rule 424(b) under the Act not later than the
Commission's close of business on the second business day following the
execution and delivery of this Agreement, or, if applicable, such earlier
time as may be required by Rule 430A(a)(3) under the Act; to make no
further amendment or any supplement to the Registration Statement or
Prospectus which shall be disapproved by the Representatives promptly after
reasonable notice thereof; to advise the Representatives and the
Independent Underwriter, promptly after it receives notice thereof, of the
time when the Registration Statement, or any amendment thereto, has been
filed or becomes effective or any supplement to the Prospectus or any
amended Prospectus has been filed and to furnish the Representatives and
the Independent Underwriter with copies thereof; to advise the
Representatives and the Independent Underwriter, promptly after it receives
notice thereof, of the issuance by the Commission of any stop order or of
any order preventing or suspending the use of any Preliminary Prospectus or
prospectus, of the suspension of the qualification of the Securities for
offering or sale in any jurisdiction, of the initiation or threatening of
any proceeding for any such purpose, or of any request by the Commission
for the amending or supplementing of the Registration Statement or
Prospectus or for additional information; and, in the event of the issuance
of any stop order or of any order
10
preventing or suspending the use of any Preliminary Prospectus or
prospectus or suspending any such qualification, to promptly use its best
efforts to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify the Securities for
offering and sale under the securities laws of such jurisdictions as the
Representatives may request and to comply with such laws so as to permit
the continuance of sales and dealings therein in such jurisdictions for as
long as may be necessary to complete the distribution of the Securities,
provided that in connection therewith the Company shall not be required to
qualify as a foreign corporation or to file a general consent to service of
process in any jurisdiction;
(c) Prior to 10:00 a.m., New York City time, on the New York Business
Day next succeeding the date of this Agreement and from time to time, to
furnish the Underwriters and the Independent Underwriter with copies of the
Prospectus in New York City in such quantities as the Representatives and
the Independent Underwriter may reasonably request, and, if the delivery of
a prospectus is required at any time prior to the expiration of nine months
after the time of issue of the Prospectus in connection with the offering
or sale of the Securities and if at such time any event shall have occurred
as a result of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in light
of the circumstances under which they were made when such Prospectus is
delivered, not misleading, or, if for any other reason it shall be
necessary during such same period to amend or supplement the Prospectus in
order to comply with the Act or the Trust Indenture Act, to notify the
Representatives and upon the request of the Representatives to prepare and
furnish without charge to each Underwriter and to any dealer in securities
as many copies as the Underwriters may from time to time reasonably request
of an amended Prospectus or a supplement to the Prospectus which will
correct such statement or omission or effect such compliance; and in case
any Underwriter is required to deliver a prospectus in connection with
sales of any of the Securities at any time nine months or more after the
time of issue of the Prospectus, upon request of the Representatives but at
the expense of such Underwriter, to prepare and deliver to such Underwriter
as many copies as the Representatives may request of an amended or
supplemented Prospectus complying with Section 10(a)(3) of the Act;
(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)
under the Act), an earnings statement of the Company and its subsidiaries
(which need not be audited) complying with Section 11(a) of the Act and the
rules and regulations of the Commission thereunder (including, at the
option of the Company, Rule 158);
(e) During the period beginning from the date hereof and continuing to
and including the later of the Time of Delivery and such earlier time as
you may notify the Company, not to offer, sell, contract to sell or
otherwise dispose of, except as provided hereunder any securities of the
Company that are substantially similar to the Securities;
(f) During a period of three years from the effective date of the
Registration Statement, to furnish to the Representatives copies of all
reports or other communications (financial or other) furnished to
shareholders, and to deliver to the Representatives (i) as soon as they are
available, (A) copies of any reports and financial statements furnished to
or filed with the Commission or any national securities exchange on which
the Securities or any class of
11
securities of the Company is listed and (B) the documents specified in
Section 4.03 of the Indentures as in effect at the Time of Delivery;
(g) To use the net proceeds received by it from the sale of the
Securities pursuant to this Agreement in the manner specified in the
Prospectus under the caption "Use of Proceeds"; and
(h) If the Company elects to rely upon Rule 462(b), the Company shall
file a Rule 462(b) Registration Statement with the Commission in compliance
with Rule 462(b) by 10:00 P.M., Washington, D.C. time, on the date of this
Agreement, and the Company shall at the time of filing either pay to the
Commission the filing fee for the Rule 462(b) Registration Statement or
give irrevocable instructions for the payment of such fee pursuant to Rule
111(b) under the Act.
7. The Company covenants and agrees with the several Underwriters and the
Independent Underwriter that the Company will pay or cause to be paid the
following: (i) the fees, disbursements and expenses of the Company's counsel and
accountants in connection with the registration of the Securities under the Act
and all other expenses in connection with the preparation, printing and filing
of the Registration Statement, any Preliminary Prospectus and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters, the Independent Underwriter and dealers; (ii) the
cost of printing or producing any Agreement Among Underwriters, this Agreement,
the Indentures, the Blue Sky and Legal Investment Memoranda, closing documents
(including any compilations thereof) and any other documents in connection with
the offering, purchase, sale and delivery of the Securities; (iii) all expenses
in connection with the qualification of the Securities for offering and sale
under state securities laws as provided in Section 6(b) hereof, including the
fees and disbursements of counsel for the Underwriters (not in excess, in the
aggregate, of $7,500) in connection with such qualification and in connection
with the Blue Sky and legal investment surveys; (iv) any fees charged by
securities rating services for rating the Securities; (v) the filing fees
incident to any required review by the National Association of Securities
Dealers, Inc. of the terms of the sale of the Securities; (vi) the cost of
preparing the Securities; (vii) the fees and expenses of the Trustee and any
agent of the Trustee and the fees and disbursements of counsel for the Trustee
in connection with the Indentures and the Securities; and (ix) all other costs
and expenses incident to the performance of its obligations hereunder which are
not otherwise specifically provided for in this Section. It is understood,
however, except as provided in this Section, and Sections 10 and 13 hereof, the
Underwriters will pay all of their own costs and expenses, including the fees of
their counsel, transfer taxes on resale of any of the Securities by them, and
any advertising expenses connected with any offers they may make.
8. The respective obligations of the Underwriters and the Independent
Underwriter hereunder shall be subject, in the sole discretion of the
Representatives or the Independent Underwriter, as the case may be, to the
condition that all representations and warranties of the Company herein are, at
and as of the Time of Delivery, true and correct, the condition that the Company
shall have performed all of its obligations hereunder theretofore to be
performed, the condition (in the case of the Underwriters) that the Independent
Underwriter shall have furnished to the Underwriters the letter referred to in
clause (v) of Section 4(b) hereof and the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to
Rule 424(b) within the applicable time period prescribed for such filing by
the rules and regulations under the Act and in accordance with Section 6
(a) hereof; if the Company has elected to rely upon Rule 462(b), the Rule
462(b) Registration Statement shall have become effective by 10:00 P.M.,
Washington, D.C. time, on the date of this Agreement; no stop order
suspending the
12
effectiveness of the Registration Statement or any part thereof shall have
been issued and no proceeding for that purpose shall have been initiated or
threatened by the Commission; and all requests for additional information
on the part of the Commission shall have been complied with to the
reasonable satisfaction of the Representatives or the Independent
Underwriter, as the case may be;
(b) Xxxxxx & Xxxxxxx, counsel for the Underwriters, shall have furnished
to the Representatives or the Independent Underwriter, as the case may be,
such written opinion or opinions (a draft of which is attached as Xxxxx
XX(a) hereto), dated the Time of Delivery, with respect to the matters
covered in paragraphs (i), (ii), (v), (vi), (vii), (viii) and (ix) and the
paragraph following clause (xii) of subsection (c) below as well as such
other related matters as the Representatives or the Independent
Underwriter, as the case may be, may reasonably request, and such counsel
shall have received such papers and information as they may reasonably
request to enable them to pass upon such matters;
(c) Xxxxxxx, Xxxxxx & Xxxxx, counsel for the Company, shall have
furnished to the Representatives or the Independent Underwriter, as the
case may be, their written opinion (a draft of which is attached as Xxxxx
XX(b) hereto), dated the Time of Delivery, in form and substance
satisfactory to the Representatives or the Independent Underwriter, as the
case may be, to the effect that:
(i) Each of the Company, CCI, CC Investment, CC Investment II,
CCAIC, Crown Atlantic Holdings, Crown Atlantic Sub and Crown Atlantic is
a corporation validly existing and in good standing under the laws of
the state of its incorporation or formation (which opinion may be based
solely on a certificate of the Secretary of State of such state), and
has all requisite corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus. Each of the Company, CCI, CC Investment, CC Investment II,
CCAIC, Crown Atlantic Holdings, Crown Atlantic Sub and Crown Atlantic is
duly registered and qualified to conduct its business and is in good
standing (which opinion may be based solely on a certificate of the
Secretary of State of such state), in each jurisdiction or place where,
based on a certificate of an officer of the Company, the nature of its
properties or the conduct of its business requires such registration or
qualification, except where the failure so to register or qualify or to
be in good standing would not have a Material Adverse Effect;
(ii) The Company has an authorized capitalization as set forth in
the Prospectus, and all of the issued shares of capital stock of the
Company (including the Shares being delivered at such Time of Delivery);
and the shares conform to the description of the Stock contained in the
Prospectus;
(iii) To the knowledge of such counsel, there are no agreements,
contracts, indentures, leases or other instruments to which the Company
or any of the Significant Subsidiaries is a party or to which any of
their respective properties or assets is subject that are required to be
described in, or filed as exhibits to, the Registration Statement and
the Prospectus that have not been so described or filed;
(iv) The Registration Statement was declared effective under the
Securities Act as of the date and time specified in such opinion, the
Prospectus was filed with the Commission pursuant to the subparagraph of
Rule 424(b) of the Rules and Regulations specified in such opinion on
the date specified therein and no stop order suspending the
effectiveness of the Registration Statement has been issued and, to the
knowledge of
13
such counsel, no proceeding for that purpose is pending or threatened by
the Commission;
(v) Each of the Indentures has been duly and validly authorized,
executed and delivered by the Company and, assuming due authorization,
execution and delivery by the Trustee, will constitute the valid and
binding agreement of the Company, enforceable against the Company in
accordance with its terms (subject to applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer and other similar laws
affecting creditors' rights generally from time to time in effect and to
general principles of equity, including, without limitation, concepts of
materiality, reasonableness, good faith and fair dealing, regardless of
whether in a proceeding in equity or at law); and each of the Indentures
is duly qualified under the Trust Indenture Act;
(vi) The Securities have been duly and validly authorized by the
Company and when duly executed by the Company in accordance with the
terms of the respective Indenture and, assuming due authentication of
the Securities by the Trustee, upon delivery to the Underwriters against
payment therefor in accordance with the terms hereof, will have been
validly issued and delivered, and will constitute valid and binding
obligations of the Company entitled to the benefits of the respective
Indenture, enforceable against the Company in accordance with their
terms (subject to applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer and other similar laws affecting
creditors' rights generally from time to time in effect and to general
principles of equity, including, without limitation, concepts of
materiality, reasonableness, good faith and fair dealing, regardless of
whether in a proceeding in equity or at law); and the Securities and the
Indentures conform to the descriptions thereof in the Prospectus;
(vii) The Registration Statement and the Prospectus and any further
amendments and supplements thereto made by the Company prior to such
Time of Delivery (other than the financial statements and related
schedules therein, as to which such counsel need express no opinion)
comply as to form in all material respects with the requirements of the
Securities Act and the rules and regulations thereunder;
(viii) The statements contained (A) in the Prospectus under the
captions "Description of the Notes", "Underwriting" and "Certain United
States Federal Tax Consequences to Non-United States Holders" and (B) in
the Registration Statement in Items 14 and 15, in each case insofar as
they are descriptions of contracts, agreements or other legal documents,
or refer to statements of law or legal conclusions, are accurate in all
material respects and present fairly the information purported to be
described therein;
(ix) This Agreement has each been duly and validly authorized,
executed and delivered by the Company;
(x) None of the issuance, offer or sale of Securities, the
execution, delivery or performance by the Company of this Agreement or
compliance by the Company with the provisions hereof (i) requires any
consent, approval, authorization or other order of, or registration or
filing with, any court, regulatory body, administrative agency or other
governmental body, agency or official, or conflicts or will conflict
with or constitutes or will constitute a breach of, or a default under,
the certificate of incorporation or by-laws or other organizational
documents of the Company or (ii) conflicts or will conflict with or
constitutes or will constitute a breach of, or a default under, any
Material Agreement or violates or will violate any law, rule or
regulation of the United States, or the State of New
14
York or the General Corporation Law of the State of Delaware, or, to
such counsel's knowledge, any order or decree of any court or government
agency or instrumentality or will result in the creation or imposition
of any Lien upon any property or assets of the Company, CCI, CC
Investment, CC Investment II, CCAIC, Crown Atlantic Holdings, Crown
Atlantic Sub or Crown Atlantic pursuant to the terms of any agreement or
instrument to which any of them is a party or by which any of them may
be bound or under any to which any of their respective property or
assets is subject, except in each case such breaches, conflicts or
defaults that, individually or in the aggregate, would not have a
Material Adverse Effect. For purposes of the foregoing opinion, such
counsel may assume that any agreements referred to in clause (ii) above
that are governed by laws other than the laws of the State of New York,
are governed by and would be interpreted in accordance with the laws of
the State of New York;
(xi) The Company is not and, upon sale of the Securities to be
issued and sold thereby in accordance herewith and the application of
the net proceeds to the Company of such sale as described in the
Prospectus under the caption "Use of Proceeds," will not be an
"investment company" within the meaning of the Investment Company Act of
1940, as amended; and
(xii) Neither the Company nor any of its subsidiaries is in
violation of its Certificate of Incorporation or By-laws or in default
in the performance or observance of any material obligation, agreement,
covenant or condition contained in any indenture, mortgage, deed of
trust, loan agreement, lease or other agreement or instrument to which
it is a party or by which it or any of its properties may be bound;
In addition, such counsel shall also state that such counsel has
participated in conferences with officers of the Company and with the
independent public accountants for the Company, concerning the preparation
of the Registration Statement and the Prospectus, and, although such
counsel has made certain inquiries and investigations in connection with
the preparation of the Registration Statement and the Prospectus, it is not
passing upon and does not assume any responsibility for the accuracy or
completeness of the statements contained in the Registration Statement and
the Prospectus, and has not made any independent check or verification
thereof, except insofar as such statements relate to such counsel and to
clause (vii) above, and on the basis of the foregoing such counsel's work
in connection with this matter did not disclose any information that gave
such counsel reason to believe that the Registration Statement and the
Prospectus, as of its date or as of the Closing Date, included or includes
an untrue statement of a material fact or omitted or omits to state a
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading (it being
understood that such counsel need express no belief or opinion with respect
to the financial statements and other financial data included therein);
The opinion of such counsel may be limited to the laws of the State of
New York, the General Corporation Law of the State of Delaware and the
Federal laws of the United States;
(d) X. Xxxxx Xxxx, general counsel to the Company, shall have furnished
to the Representatives or the Independent Underwriter, as the case may be,
his written opinion, (a draft of which is attached as Xxxxx XX(c) hereto),
dated such Time of Delivery, in form and substance reasonably satisfactory
to the Representatives or the Independent Underwriter, as the case may be,
to the effect that:
(i) All of the issued shares of capital stock of the Company and
each Subsidiary of the Company other than CTSH and CTI have been duly
and validly authorized and
15
issued and are fully paid, non-assessable and (except for directors'
qualifying shares) are owned directly or indirectly by the Company, free
and clear of all liens, encumbrances, equities or claims, except as set
forth in the Registration Statement (including the exhibits thereto)
with respect to shares subject to liens under the Company's revolving
credit facility with KeyBank National Association and PNC Bank, National
Association;
(ii) To knowledge of such counsel, there are no legal or
governmental proceedings pending or threatened against the Company or
any of its Subsidiaries (other than CTSH and CTI), or to which any of
their respective properties is subject, that are not disclosed in the
Prospectus and which are reasonably likely to have a Material Adverse
Effect or to materially affect the issuance of the shares of capital
stock or the consummation of the transactions contemplated by this
Agreement; and
(iii) To the knowledge of such counsel, except as described in the
Prospectus there are no contracts, agreements or understandings between
the Company or any of its Subsidiaries (other than CTSH and CTI) and any
person granting such person the right to require the Company or any of
such Subsidiaries to file a registration statement under the Act with
respect to any securities of the Company owned or to be owned by such
person or to require the Company or any of such Subsidiaries to include
such securities in the securities registered pursuant to the
Registration Statement or in any securities being registered pursuant to
any other registration statement filed by the Company or any of such
Subsidiaries under the Act;
The opinion of such counsel may be limited to the laws of the State of
Texas, the General Corporation Law of the State of Delaware and the Federal
laws of the United States;
(e) Xxxxxx Xxxx, English counsel for CTSH and CTI, shall have furnished
to the Representatives or the Independent Underwriter, as the case may be,
their written opinion (a draft of which is attached as Xxxxx XX(d) hereto),
dated such Time of Delivery, in form and substance reasonably to the
Representatives or the Independent Underwriter, as the case may be, to the
effect that:
(i) CTI was duly incorporated on 9 May 1996 under the Companies Act
1985 as a private limited company; CTSH was duly incorporated on 27
August 1996 as a private limited company; a certificate of good standing
in respect of each of the Companies issued by the Companies Registration
Office on a date within three business days of the date of this opinion
is attached;
(ii) by a Certificate of Incorporation on Change of Name issued on
21 March 1997 CTI changed its name to "Castle Transmission International
Ltd."; by a Certificate of Incorporation on Change of Name issued on 25
February 1997, CTSH changed its name to "Castle Transmission Services
(Holdings) Ltd."; and
(iii) CTI is empowered by its Memorandum of Association to conduct
its business as described in the Registration Statement and the
Prospectus;
(f) On the date of the Prospectus at a time prior to the execution of
this Agreement, at 9:30 a.m., New York City time, on the effective date of
any post-effective amendment to the Registration Statement filed subsequent
to the date of this Agreement and also at the Time of Delivery, KPMG L.L.P.
shall have furnished to the Representatives a letter or letters, dated the
respective dates of delivery thereof, in form and substance satisfactory to
the Representatives to the effect set forth in Annex I hereto (the executed
copy of the letter delivered prior to the execution of this Agreement is
attached as Annex I(a) hereto and a draft of the form of letter
16
to be delivered on the effective date of any post-effective amendment to
the Registration Statement and as of each Time of Delivery is attached as
Annex I(b) hereto);
(g)(i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements
included in the Prospectus any loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action, order
or decree, otherwise than as set forth or contemplated in the Prospectus,
and (ii) since the respective dates as of which information is given in the
Prospectus there shall not have been any change in the capital stock or
long-term debt of the Company or any of its subsidiaries or any change, or
any development involving a prospective change, in or affecting the general
affairs, management, financial position, shareholders' equity or results of
operations of the Company and its subsidiaries, otherwise than as set forth
or contemplated in the Prospectus, the effect of which, in any such case
described in clause (i) or (ii), is in the judgment of the Representatives
so material and adverse as to make it impracticable or inadvisable to
proceed with the public offering or the delivery of the Securities on the
terms and in the manner contemplated in the Prospectus;
(h) On or after the date hereof (i) no downgrading shall have occurred
in the rating accorded the Company's debt securities by any "nationally
recognized statistical rating organization", as that term is defined by the
Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such
organization shall have publicly announced that it has under surveillance
or review, with possible negative implications, its rating of any of the
Company's debt securities;
(i) On or after the date hereof there shall not have occurred any of the
following: (i) a suspension or material limitation in trading in securities
generally on the New York Stock Exchange or on NASDAQ; (ii) a suspension or
material limitation in trading in the Company's securities on NASDAQ; (iii)
a general moratorium on commercial banking activities declared by either
Federal or New York State authorities; or (iv) the outbreak or escalation
of hostilities involving the United States or the declaration by the United
States of a national emergency or war, if the effect of any such event
specified in this clause (iv) in the judgment of the Representatives makes
it impracticable or inadvisable to proceed with the public offering or the
delivery of the Securities on the terms and in the manner contemplated in
the Prospectus; or (v) the occurrence of any material adverse change in the
existing financial, political or economic conditions in the United States
or elsewhere which, in the judgment of the Representatives, would
materially and adversely affect the financial markets or the market for the
Securities and other debt securities;
(j) The Company shall have complied with the provisions of Section 6(c)
hereof with respect to the furnishing of prospectuses on the New York
Business Day next succeeding the date of this Agreement;
(k) The Company shall have furnished or caused to be furnished to the
Representatives and the Independent Underwriter at the Time of Delivery
certificates of officers of the Company satisfactory to the Representatives
and the Independent Underwriter as to the accuracy of the representations
and warranties of the Company herein at and as of such Time of Delivery, as
to the performance by the Company of all of its obligations hereunder to be
performed at or prior to such Time of Delivery, as to the matters set forth
in subsections (a) and (g) of this Section and as to such other matters as
the Representatives and the Independent Underwriter may reasonably request;
17
(l) The Company shall have furnished to the Representatives a
certificate, in form and substance reasonably acceptable to counsel to the
Representatives, dated the First Time of Delivery, of its Chief Financial
Officer with respect to certain tower data of the Company set forth in the
Prospectus; and
(m) The closing of the public offering and sale of the Company's common
stock pursuant to that certain U.S. underwriting agreement between the
Company, the selling stockholders named therein, and Xxxxxxx, Xxxxx & Co.,
Xxxxxxx Xxxxx Xxxxxx Inc., Xxxxxx Brothers Inc., Credit Suisse First Boston
Corporation and Xxxx Xxxxx Xxxx Xxxxxx Incorporated and the closing under
that certain international underwriting agreement between the Company, the
selling stockholders named therein, and Xxxxxxx Xxxxx International,
Xxxxxxx Xxxxx Xxxxxx Inc., Xxxxxx Brothers International (Europe), Credit
Suisse First Boston (Europe) Ltd. and Xxxx Xxxxx Limited shall have
occurred concurrently with the closing hereunder on the Time of Delivery.
9. The Independent Underwriter hereby consents to the references to it as
set forth under the caption "Underwriting" in the Prospectus and in any
amendment or supplement thereto made in accordance with Section 6(a) hereof.
10. (a) The Company will indemnify and hold harmless each Underwriter and
the Independent Underwriter against any losses, claims, damages or liabilities,
joint or several, to which such Underwriter or the Independent Underwriter, as
the case may be, may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, the Registration
Statement or the Prospectus, or any amendment 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 will reimburse each Underwriter or the Independent
Underwriter, as the case may be, for any legal or other expenses reasonably
incurred by such Underwriter or the Independent Underwriter, as the case may be,
in connection with investigating or defending any such action or claim as such
expenses are incurred; provided, however, that the Company shall 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 an untrue statement or alleged untrue statement
or omission or alleged omission made in any Preliminary Prospectus, the
Registration Statement or the Prospectus or any such amendment or supplement in
reliance upon and in conformity with written information furnished to the
Company by any Underwriter through Xxxxxxx, Xxxxx & Co. or the Independent
Underwriter expressly for use therein or constitutes a reference to the
independent Underwriter consented to by it pursuant to Section 9 hereof.
(b) Each Underwriter will indemnify and hold harmless the Company and the
Independent Underwriter, as the case may be, against any losses, claims, damages
or liabilities to which the Company may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in any Preliminary Prospectus, the
Registration Statement or the Prospectus, or any amendment 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, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or omission
or alleged omission was made in any Preliminary Prospectus, the Registration
Statement or the Prospectus or any such amendment or supplement in reliance upon
and in conformity with written information furnished to the Company by such
Underwriter through Xxxxxxx, Xxxxx & Co. expressly for use therein; and will
18
reimburse the Company or the Independent Underwriter, as the case may be, for
any legal or other expenses reasonably incurred by the Company or the
Independent Underwriter, as the case may be, in connection with investigating or
defending any such action or claim as such expenses are incurred.
(c) The Independent Underwriter will indemnify and hold harmless the
Company and each Underwriter against any losses, claims, damages or liabilities
to which the Company or such Underwriter, as the case may be, may become
subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement or the Prospectus, or any
amendment 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, in each case
to the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in any Preliminary
Prospectus, the Registration Statement or the Prospectus or any such amendment
or supplement in reliance upon and in conformity with written information
furnished to the Company by the Independent Underwriter expressly for use
therein or constitutes a reference to the Independent Underwriter consented to
by it pursuant to Section 9 hereof; and will reimburse the Company or each
Underwriter, as the case may be, for any legal or other expenses reasonably
incurred by the Company or each Underwriter, as the case may be, in connection
with investigating or defending any such action or claim as such expenses are
incurred.
(d) Promptly after receipt by an indemnified party under subsection (a),
(b) or (c) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party shall
not be liable to such indemnified party under such subsection for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof other
than reasonable costs of investigation. No indemnifying party shall, without
the written consent of the indemnified party, effect the settlement or
compromise of, or consent to the entry of any judgment with respect to, any
pending or threatened action or claim in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified party is an
actual or potential party to such action or claim) unless such settlement,
compromise or judgment (i) includes an unconditional release of the indemnified
party from all liability arising out of such action 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.
(e) If the indemnification provided for in this Section 10 is unavailable
to or insufficient to hold harmless an indemnified party under subsection (a),
(b) or (c) above in respect of any losses, claims, damages or liabilities (or
actions in respect thereof) referred to therein, then each indemnifying party
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions in respect
thereof) in such proportion as is appropriate to reflect the relative benefits
received by each party to this agreement from the offering of the
19
Securities. If, however, the allocation provided by the immediately preceding
sentence is not permitted by applicable law or if the indemnified party failed
to give the notice required under subsection (d) above, then each indemnifying
party shall contribute to such amount paid or payable by such indemnified party
in such proportion as is appropriate to reflect not only such relative benefits
but also the relative fault of each party to this agreement in connection with
the statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company, the
Underwriters and the Independent Underwriter shall be deemed to be in the same
proportion as the total net proceeds from the sale of the Securities (before
deducting expenses) received by the Company in the offering, the total
underwriting discount and commissions payable to the Underwriters as set forth
in the table on the cover page of the Prospectus and the fee payable to the
Independent Underwriter pursuant to the first sentence of Section 4(e) hereof,
respectively, bear to the sum of the total proceeds from the sale of the
Securities (before deducting expenses) in the offering and the fee payable to
the Independent Underwriter pursuant to the first sentence of Section 4(e)
hereof. The relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company on the one hand or either the Underwriters or the
Independent Underwriter on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company, the Underwriters and the Independent
Underwriter agree that it would not be just and equitable if contribution
pursuant to this subsection (e) were determined by pro rata allocation (even if
the Underwriters and the Independent Underwriter 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 subsection (e). The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to above
in this subsection (e) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
subsection (e), no Underwriter nor the Independent Underwriter shall be required
to contribute any amount in excess of the amount by which the total price at
which the Securities underwritten by it and distributed to the public were
offered to the public, and the Independent Underwriter shall not be required to
contribute any amount in excess of the amount by which the total price at which
the Securities underwritten by the Underwriters and distributed to the public
were offered to the public, exceeds the amount of any damages which such
Underwriter or the Independent Underwriter, as the case may be, has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this subsection (e) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(f) The obligations of the Company under this Section 10 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter or the Independent Underwriter within the meaning of the Act; the
obligations of the Underwriters under this Section 10 shall be in addition to
any liability which the respective Underwriters may otherwise have and shall
extend, upon the same terms and conditions, to each officer and director of the
Company (including any person who, with his or her consent, is named in the
Registration Statement as about to become a director of the Company) and to each
person, if any, who controls the Company or the Independent Underwriter within
the meaning of the Act; and the obligations of the Independent Underwriter under
this Section 10 shall be in
20
addition to any liability which the Independent Underwriter may otherwise have
and shall extend, upon the same terms and conditions, to each officer and
director of the Company (including any person who, with his or her consent, is
named in the Registration Statement as about to become a director of the
Company) and to each person, if any, who controls the Company or any Underwriter
within the meaning of the Act.
11. (a) If any Underwriter shall default in its obligation to purchase the
Securities which it has agreed to purchase hereunder, the Representatives may in
their discretion arrange for the Representatives or another party or other
parties to purchase such Securities on the terms contained herein. If within
thirty-six hours after such default by any Underwriter the Representatives do
not arrange for the purchase of such Securities, then the Company shall be
entitled to a further period of thirty-six hours within which to procure another
party or other parties satisfactory to the Representatives to purchase such
Securities on such terms. In the event that, within the respective prescribed
periods, the Representatives notify the Company that they have so arranged for
the purchase of such Securities, or the Company notifies the Representatives
that it has so arranged for the purchase of such Securities, the Representatives
or the Company shall have the right to postpone the Time of Delivery for a
period of not more than seven days, in order to effect whatever changes may
thereby be made necessary in the Registration Statement or the Prospectus, or in
any other documents or arrangements, and the Company agrees to file promptly any
amendments to the Registration Statement or the Prospectus which in the opinion
of the Representatives may thereby be made necessary. The term "Underwriter" as
used in this Agreement shall include any person substituted under this Section
with like effect as if such person had originally been a party to this Agreement
with respect to such Securities.
(b) If, after giving effect to any arrangements for the purchase of the
Securities of a defaulting Underwriter or Underwriters by the Representatives
and the Company as provided in subsection (a) above, the aggregate principal
amount of such Securities which remains unpurchased does not exceed one-eleventh
of the aggregate principal amount of all the Securities, then the Company shall
have the right to require each non-defaulting Underwriter to purchase the
principal amount of Securities which such Underwriter agreed to purchase
hereunder and, in addition, to require each non-defaulting Underwriter to
purchase its pro rata share (based on the principal amount of Securities which
such Underwriter agreed to purchase hereunder) of the Securities of such
defaulting Underwriter or Underwriters for which such arrangements have not been
made; but nothing herein shall relieve a defaulting Underwriter from liability
for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Securities of a defaulting Underwriter or Underwriters by the Representatives
and the Company as provided in subsection (a) above, the aggregate principal
amount of Securities which remains unpurchased exceeds one-eleventh of the
aggregate principal amount of all the Securities, or if the Company shall not
exercise the right described in subsection (b) above to require non-defaulting
Underwriters to purchase Securities of a defaulting Underwriter or Underwriters,
then this Agreement shall thereupon terminate, without liability on the part of
any non-defaulting Underwriter, the Independent Underwriter or the Company,
except for the expenses to be borne by the Company and the Underwriters as
provided in Section 7 hereof and the indemnity and contribution agreements in
Section 10 hereof; but nothing herein shall relieve a defaulting Underwriter
from liability for its default.
12. The respective indemnities, agreements, representations, warranties
and other statements of the Company, the several Underwriters and the
Independent Underwriter, as set forth in this Agreement or made by or on behalf
of them, respectively, pursuant to this Agreement, shall remain in full force
and effect, regardless of any investigation (or any statement as to the results
thereof) made by or on behalf of any Underwriter, the Independent Underwriter or
any controlling
21
person of any Underwriter, the Independent Underwriter or the Company, or any
officer or director or controlling person of the Company, and shall survive
delivery of and payment for the Securities.
13. If this Agreement shall be terminated pursuant to Section 11 hereof,
the Company shall not then be under any liability to any Underwriter or the
Independent Underwriter except as provided in the second sentence of Section
4(e) hereof and in Sections 7 and 10 hereof; but, if for any other reason, the
Securities are not delivered by or on behalf of the Company as provided herein,
the Company will reimburse the Underwriters through the Representatives for all
out-of-pocket expenses approved in writing by the Representatives, including
fees and disbursements of counsel, reasonably incurred by the Underwriters in
making preparations for the purchase, sale and delivery of the Securities, but
the Company shall then be under no further liability to any Underwriter or the
Independent Underwriter except as provided in the second sentence of Section
4(e) hereof and in and Sections 7 and 10 hereof.
14. In all dealings hereunder, the Representatives shall act on behalf of
each of the Underwriters, and the parties hereto shall be entitled to act and
rely upon any statement, request, notice or agreement on behalf of any
Underwriter made or given by the Representatives jointly or by Xxxxxxx, Xxxxx &
Co. on behalf of the Representatives.
All statements, requests, notices, and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to the Representatives in care of Xxxxxxx, Xxxxx & Co.,
00 Xxx Xxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Registration
Department; if to the Independent Underwriter shall be delivered or sent by
mail, letter or facsimile transmission to the name and address of Independent
Underwriter; and if to the Company shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Company set forth in the
Registration Statement, Attention: Secretary; provided, however, that any notice
to an Underwriter pursuant to Section 10(d) hereof shall be delivered or sent by
mail, telex or facsimile transmission to such Underwriter at its address set
forth in its Underwriters' Questionnaire, or telex constituting such
Questionnaire, which address will be supplied to the Company by the
Representatives upon request. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof. The Company shall be
entitled to act and rely upon any request, consent, notice or agreement given or
made on behalf of the Underwriters by any of the Representatives.
15. This Agreement shall be binding upon, and inure solely to the benefit
of, the Underwriters, the Independent Underwriter, the Company and, to the
extent provided in Sections 10 and 12 hereof, the officers and directors of the
Company and each person who controls the Company, any Underwriter or the
Independent Underwriter, and their respective heirs, executors, administrators,
successors and assigns, and no other person shall acquire or have any right
under or by virtue of this Agreement. No purchaser of any of the Securities
from any Underwriter shall be deemed a successor or assign by reason merely of
such purchase.
16. Time shall be of the essence of this Agreement. As used herein, the
term "business day" shall mean any day on which the New York Stock Exchange,
Inc. is open for trading.
17. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York without giving effect to any provisions
relating to conflicts of law.
18. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such respective counterparts shall together constitute one and
the same instrument.
22
If the foregoing is in accordance with your understanding, please sign and
return to us 10 counterparts hereof, and upon the acceptance hereof by the
Representatives, on behalf of each of the Underwriters, this letter and such
acceptance hereof shall constitute a binding agreement among each of the
Underwriters and the Company. It is understood that the Representatives'
acceptance of this letter on behalf of each of the Underwriters is pursuant to
the authority set forth in a form of Agreement among Underwriters, the form of
which shall be submitted to the Company for examination, upon request, but
without warranty on the part of the Representatives as to the authority of the
signers thereof.
Very truly yours,
Crown Castle International Corp.
By:
--------------------------------
Name:
Title:
Accepted as of the date hereof:
Xxxxxxx, Xxxxx & Co.
By:
--------------------------------
(Xxxxxxx, Xxxxx & Co.)
On behalf of each of the Underwriters
Xxxxxx Brothers Inc.
By:
--------------------------------
Name:
Title:
23
SCHEDULE I
Principal Principal
Amount of Amount at
Senior Notes Maturity of
to be Senior Notes
Underwriter Purchased to be Purchased
----------- --------- ---------------
Xxxxxxx, Xxxxx & Co. $
Xxxxxxx Xxxxx Xxxxxx Inc.................................
Xxxxxx Brothers Inc......................................
Credit Suisse First Boston Corporation...................
BancBoston Xxxxxxxxx Xxxxxxxx............................
McDonald Investments Inc., A KeyCorp Company.............
----------------- ------------------
Total................................................ $150, 000,000 $
================= ==================
24
ANNEX I(a)
[Form of Comfort Letter delivered by KPMG LLP
pursuant to Section 8(f) of the Underwriting Agreement]
1
ANNEX I(b)
[Form of Comfort Letter to be delivered by KPMG LLP as of each
Time of Delivery pursuant to Section 8(f) of the Underwriting Agreement]
2
XXXXX XX(a)
[Form of Opinion of Xxxxxx & Xxxxxxx
pursuant to section 8(b) of the Underwriting Agreement]
3
XXXXX XX(b)
[Form of Opinion of Xxxxxxx, Swaine & Xxxxx
pursuant to section 8(c) of the Underwriting Agreement]
4
XXXXX XX(c)
[Form of Opinion of X. Xxxxx Xxxx, General Counsel
pursuant to section 8(d) of the Underwriting Agreement]
5
XXXXX XX(d)
[Form of Opinion of Xxxxxx Xxxx
pursuant to section 8(e) of the Underwriting Agreement]
6
