Exhibit (h)
FORM OF UNDERWRITING AGREEMENT
EQUITY SECURITIES TRUST II
8,514,206 Equity Trust Securities*
(Representing Beneficial Interests in a Contract Relating to
Shares of Rainbow Media Group Class A Common Stock, $.01 par value,
of Cablevision Systems Corporation)
Underwriting Agreement
New York, New York
December [ ], 2001
BANC OF AMERICA SECURITIES LLC
XXXXXXX XXXXX XXXXXX INC.
BEAR, XXXXXXX & CO. INC.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
c/o Xxxxxxx Xxxxx Barney Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Equity Securities Trust II, a statutory business trust organized under the
State of Delaware Business Trust Act, 12 Del.C. Section 3801 et seq. (the
"Delaware Act"), (such trust and the trustees thereof acting in their
capacities as such being referred to herein as the "Trust"), proposes to issue
and to sell to the several underwriters named in Schedule I hereto (the
"Underwriters") an aggregate of 8,514,206 Equity Trust Securities representing
shares of beneficial interest in the Trust (the "Underwritten Equity Trust
Securities"). In addition, the Underwriters will have an option to purchase up
to 1,277,130 Equity Trust Securities (the "Option Equity Trust Securities" and,
together with the Underwritten Equity Trust Securities, the "Equity Trust
Securities") to cover over-allotments, if any. The Option Equity Trust
Securities and the Underwritten Equity Trust Securities, together with the [ ]
Equity Trust Securities of the Trust subscribed for by Xxxxxxx Xxxxx Xxxxxx
Inc. ("Xxxxxxx Xxxxx Barney") pursuant to the Subscription Agreement, dated as
of November 14, 2001, between Xxxxxxx Xxxxx Xxxxxx and the Trust (the
"Subscription Equity Trust Securities"), are referred to herein as the
"Securities." The Securities are to be issued under an Amended and Restated
Declaration of Trust, dated as of December [ ], 2001 (the
---------------
* Plus an option to purchase from the Trust up to 1,277,130 additional
Equity Trust Securities to cover over-allotments.
"Trust Agreement"), among the initial trustee and initial sponsor of the Trust,
the trustees of the Trust (the "Trustees") and Xxxxxxx Xxxxx Barney, as sponsor.
The Trust has entered into forward purchase contracts (the "Contracts")
with AT&T Broadband CSC II, Inc., a Delaware corporation and AT&T Broadband CSC
Holdings Inc., a Delaware corporation ("Counterparties"), pursuant to which
Counterparties have agreed to sell, and the Trust has agreed to purchase, the
number of shares (the "Shares") of Rainbow Media Group Class A Common Stock,
par value $.01 per share (the "Rainbow Media Group Class A Common Stock"), of
Cablevision Systems Corporation, a Delaware corporation (the "Company"),
specified therein on December [ ], 2004 (the "Exchange Date") (subject to
Counterparties' right to extend and accelerate the Exchange Date and to deliver
cash with a value equivalent thereto, or other property, as provided in the
Contracts). Counterparties' obligations under the Contracts will be secured by
a pledge of collateral under collateral agreements (the "Collateral
Agreements"), each among a Counterparty, the Trust and The Bank of New York
("BoNY"), as collateral agent (in such capacity, the "Collateral Agent").
In connection with the foregoing, the Company has filed with the
Commission a registration statement, including a basic prospectus, with respect
to 8,514,206 Shares in respect of the Underwritten Equity Trust Securities,
plus an additional 1,277,130 Shares in respect of the Option Equity Trust
Securities, for delivery by Counterparties pursuant to the Securities, which
registration statement is referred to in Section 2(a) of this Agreement.
The term Underwriters shall mean either the singular or plural as the
context requires. The use of the neuter in this Agreement shall include the
feminine and masculine wherever appropriate. Certain terms used herein are
defined in Section 23 hereof.
1. Representations and Warranties of the Trust. The Trust represents and
warrants to, and agrees with, each Underwriter as set forth below in
this Section 1.
(a) The Trust meets the requirements for use of Form N-2 under the
Act and has prepared and filed with the Commission (a) a notification on Form
N-8A (the "Notification") of registration of the Trust as an investment company
under the Investment Company Act and (b) a registration statement on Form N-2
(file numbers 333-72494 and 811-10565), including a related preliminary
prospectus, for the registration of the offering and sale of the Equity Trust
Securities under the Act. The Trust may have filed one or more amendments
thereto, including the related preliminary prospectus, each of which has
previously been furnished to you. The Trust will next file with the Commission
one of the following: either (1) prior to the Trust Effective Date of such
registration statement, a further amendment to such registration statement
(including the form of final prospectus); or (2) after the Trust Effective Date
of such registration statement, a final prospectus in accordance with Rules 430A
and 497(h). In the case of clause (2), the Trust has included in such
registration statement, as amended at the Trust Effective Date, all information
(other than Rule 430A Information) required by the Act and the rules thereunder
to be included in such registration statement and the Trust Prospectus. As
filed, such amendment and form of final prospectus, or such final prospectus,
shall contain all Rule 430A Information, together with all other such required
information, and, except to the extent the Underwriters shall agree in writing
to a modification, shall be in all substantive respects in the form furnished to
you prior to
2
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 latest Preliminary Trust Prospectus) as the Trust has advised
you, prior to the Execution Time, will be included or made therein.
(b) On the Trust Effective Date, the Trust Registration Statement and the
Notification did or will, and when the Trust Prospectus is first filed (if
required) in accordance with Rule 497(h) and on the Closing Date (as defined
herein) and on any date on which Option Equity Trust Securities are purchased,
if such date is not the Closing Date (a "Settlement Date"), the Trust Prospectus
(and any supplements thereto) will comply in all material respects with the
applicable requirements of the Act, the Exchange Act and Investment Company Act,
and the respective rules thereunder; on the Trust Effective Date and at the
Execution Time, the Trust 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; and, on the Trust Effective Date, the Trust Prospectus, if not filed
pursuant to Rule 497(h), did not or will not, and on the date of any filing
pursuant to Rule 497(h) and on the Closing Date and any Settlement Date, the
Trust 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.
(c) No stop order suspending the effectiveness of the Trust Registration
Statement is in effect, no order preventing or suspending the use of any
Preliminary Trust Prospectus has been issued by the Commission, no notice or
order under Section 8(e) of the Investment Company Act has been issued, and no
proceedings for any such purpose are pending before or threatened by the
Commission.
(d) The Trust has been duly created, is validly existing as a business
trust under the Delaware Act, has the power and authority to own or lease, as
the case may be, and to operate its properties and conduct its business as
described in the Trust Prospectus and to enter into and perform its obligations
under this Agreement, the Trust Agreement and each of the Fundamental Agreements
(as defined below) and is duly qualified to do business and is in good standing
under the laws of each jurisdiction in which it owns or leases properties or
conducts any business so as to require such qualification other than where the
failure to be so qualified would not have a material adverse effect on the Trust
or its assets. The Trust has no subsidiaries.
(e) The Trust is registered with the Commission as a non-diversified,
closed-end management investment company under the Investment Company Act and no
order of suspension or revocation of such registration has been issued or
proceedings therefor initiated or, to the knowledge of the Trust, threatened by
the Commission. No person is serving or acting as an officer or trustee of the
Trust except in accordance with the provisions of the Investment Company Act.
(f) This Agreement has been duly authorized, executed and delivered by the
Trust.
3
(g) Each of the Contracts, the Collateral Agreements, the Administration
Agreement between BoNY and the Trust (the "Administration Agreement"), the
Custodian Agreement between BoNY and the Trust (the "Custodian Agreement"), the
Paying Agent Agreement between BoNY and the Trust (the "Paying Agent Agreement")
and the Fund Indemnity Agreement between Xxxxxxx Xxxxx Xxxxxx and the Trust (the
"Fund Indemnity Agreement") (the Contracts, the Collateral Agreements, the
Administration Agreement, the Custodian Agreement, the Paying Agent Agreement
and the Fund Indemnity Agreement are referred to herein, collectively, as the
"Fundamental Agreements") has been duly authorized, executed and delivered by
the Trust and, assuming due authorization, execution and delivery by the other
parties thereto, is a valid and binding agreement of the Trust, enforceable
against the Trust in accordance with its terms except as such enforceability may
be limited by applicable bankruptcy, insolvency and similar laws affecting
creditors' rights generally and by general equitable principles.
(h) The execution and delivery by the Trust of, and the performance by the
Trust of its obligations under, this Agreement and each Fundamental Agreement
(including the issue and sale by the Trust of the Equity Trust Securities as
contemplated by this Agreement) do not and will not, whether with or without the
giving of notice or passage of time or both, conflict with or constitute a
breach or violation of, or default under, or give the holder of any indebtedness
of the Trust the right to require the repurchase, redemption or repayment of all
or a portion of such indebtedness under, or result in the creation or imposition
of any lien, charge or encumbrance upon any property or assets of the Trust
pursuant to, any contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease or other agreement or instrument to which the Trust is a
party or by which it may be bound, or to which any of the property or assets of
the Trust is subject, nor will such action result in any violation of the
provisions of the Trust Agreement or any applicable law, statute, rule,
regulation, judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over the
Trust or any of its assets or properties; and no consent, approval,
authorization, order of, or qualification or filing with, any governmental body
or agency, self-regulatory organization or court or other tribunal, whether
foreign or domestic, is required for the execution and delivery by the Trust of
this Agreement or the Fundamental Agreements or the performance by the Trust of
its obligations hereunder and thereunder, except for the filing of a Certificate
of Trust and the filing of a Restated Certificate of Trust with the office of
the Secretary of State of the State of Delaware (which filings have been duly
made) and such as have been obtained and as may be required by the securities or
Blue Sky laws of the various states and foreign jurisdictions in connection with
the offer and sale of the Equity Trust Securities by the Underwriters.
(i) The Equity Trust Securities, the Trust Agreement and the Fundamental
Agreements conform in all material respects to the descriptions thereof
contained in the Trust Prospectus.
(j) The Trust Agreement and the Fundamental Agreements comply with all
applicable provisions of the Act, the Exchange Act and the Investment Company
Act, and all approvals of such documents required under the Investment Company
Act by the holders of the Securities and the Trustees have been obtained and are
in full force and effect.
4
(k) On the Closing Date, the Fundamental Agreements will be in full force
and effect and the Trust will not be in default thereunder and, to the knowledge
of the Trust, no event will have occurred which with the passage of time or the
giving of notice or both would constitute a default thereunder. The Trust is not
currently in breach of, or in default under, the Trust Agreement or any other
written agreement or instrument to which it or its property is bound or
affected.
(l) All of the outstanding Securities have been duly authorized and are
validly issued, fully paid and nonassessable undivided beneficial interests in
the assets of the Trust, and the form of certificate used to evidence the
Securities is in due and proper form and complies with all provisions of
applicable law.
(m) The Equity Trust Securities have been duly authorized by the Trust for
issuance to the Underwriters pursuant to this Agreement and, when issued and
delivered by the Trust in accordance with the terms of this Agreement and the
Trust Agreement against payment of the purchase price therefor as provided
herein, will be validly issued, fully paid and nonassessable undivided
beneficial interests in the assets of the Trust, and the issuance of such Equity
Trust Securities will not be subject to any preemptive or similar rights. No
person has rights to the registration of any securities because of the filing of
the Trust Registration Statement, and no holder of the Securities will be
subject to personal liability by reason of being such a holder.
(n) The Equity Trust Securities have been approved for listing on the New
York Stock Exchange (the "NYSE"), subject to official notice of issuance. The
Trust's Registration Statement on Form 8-A under the Exchange Act is effective.
(o) There has not occurred any material adverse change, or any development
involving a prospective material adverse change, in the condition, financial or
otherwise, of the Trust, or in the investment objectives, investment policies,
liabilities, business, prospects or operations of the Trust from that set forth
in the Trust Prospectus (exclusive of any supplements thereto subsequent to the
date of this Agreement) and there have been no transactions entered into by the
Trust which are material to the Trust other than those in the ordinary course of
its business or as described in the Trust Prospectus (exclusive of any
supplements thereto subsequent to the date of this Agreement).
(p) There are no legal or governmental proceedings pending or, to the
knowledge of the Trust, threatened against or affecting the Trust that are
required to be described in the Trust Registration Statement or the Trust
Prospectus and are not so described or any statutes, regulations, contracts or
other documents that are required to be described in the Trust Registration
Statement or the Trust Prospectus or to be filed as exhibits to the Trust
Registration Statement that are not described or filed as required.
(q) The Trust has all necessary consents, authorizations, approvals, orders
(including exemptive orders), certificates and permits of and from, and has made
all declarations and filings with, all governmental authorities, self-regulatory
organizations and courts and other tribunals, whether foreign or domestic, to
own and use its assets and to conduct its business in
5
the manner described in the Trust Prospectus, except to the extent that the
failure to obtain or file the foregoing would not have a material adverse effect
on the Trust and except such as may be required by the securities or Blue Sky
laws of the various states in connection with the offer and sale of the Equity
Trust Securities.
(r) There are no material restrictions, limitations or regulations
with respect to the ability of the Trust to invest its assets as described in
the Trust Prospectus, other than as described therein.
(s) The Trust has good title to all properties owned by it, in each
case, free and clear of all mortgages, pledges, liens, security interests,
claims, restrictions or encumbrances of any kind except such as (a) are
described in the Trust Prospectus or (b) do not, singly or in the aggregate,
materially affect the value of such property and do not interfere with the use
made and proposed to be made of such property by the Trust.
(t) There are no legal or governmental proceedings pending to which
the Trust is a party or of which any property of the Trust is the subject which,
if determined adversely to the Trust, would individually or in the aggregate
have a material adverse effect on the current or future financial position or
results of operations of the Trust; and, to the best of the Trust's knowledge,
no such proceedings are threatened or contemplated by governmental authorities
or threatened by others.
(u) The statement of assets, liabilities and capital included in the
Trust Registration Statement and the Trust Prospectus, together with the notes
thereto, present fairly the financial position of the Trust at the date
indicated, and such financial statement has been prepared in conformity with
generally accepted accounting principles in the United States of America.
(v) The accountants who certified the financial statements and
supporting schedules included in the Trust Registration Statement are
independent public accountants as required by the Act and the rules and
regulations of the Commission thereunder.
(w) The Trust has not taken and will not take, directly or
indirectly, any action designed to or which has constituted or which might
reasonably be expected to cause or result, under the Exchange Act or otherwise,
in stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Equity Trust Securities or the Shares.
2. Representations and Warranties of the Company. The Company represents
and warrants to, and agrees with, each Underwriter as set forth below in this
Section 2:
(a) The Company meets the requirements for use of Form S-3 under the
Act. The Company Registration Statement and any Rule 462(b) Company Registration
Statement has become effective under the Act. At the respective times the
Company Registration Statement, any Rule 462(b) Company Registration Statement
and any post-effective amendments thereto become effective (the "Company
Effective Date") and on each Settlement Date, (A) the Company Registration
Statement and any amendments and supplements thereto, comply and will
6
comply in all material respects with the requirements of the Act, (B) neither
the Company Registration Statement nor any amendment or supplement thereto
includes or will include an untrue statement of a material fact or omits or will
omit to state any material fact required to be stated therein or necessary to
make the statements therein not misleading and (C) neither the Company
Prospectus nor any amendment or supplement thereto includes or will include an
untrue statement of a material fact or omits or will 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 this representation and warranty does not apply to statements or omissions
made in reliance upon and in conformity with information furnished to the
Company in writing (i) by any Underwriter expressly for use in the Company
Registration Statement or the Company Prospectus, (ii) by or on behalf of the
Counterparties or AT&T Corp., a New York corporation ("AT&T") expressly for use
in the Company Registration Statement or the Company Prospectus or (iii) by or
on behalf of the Trust expressly for use in the Company Registration Statement
or the Company Prospectus. The Company makes no representations or warranties as
to the Trust Registration Statement or the Trust Prospectus.
(b) The documents incorporated or deemed to be incorporated by reference in
the Company Prospectus pursuant to Item 12 of Form S-3 under the Act, at the
time they were or hereafter are filed with the Commission, complied and will
comply in all material respects with the requirements of the Exchange Act and,
when read together and with the other information in the Company Prospectus, at
the time the Company Registration Statement became effective and at all times
subsequent thereto up to the Closing Date and any Settlement Date, did not and
will not include an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
(c) KPMG LLP, who are reporting upon the audited financial statements and
schedules included or incorporated by reference in the Company Registration
Statement, are independent accountants as required by the Act.
(d) This Agreement has been duly authorized, executed and delivered by the
Company.
(e) The consolidated historical financial statements of the Company and
its subsidiaries included or incorporated by reference in the Company
Registration Statement and the Company Prospectus present fairly the
consolidated financial position of the Company and its subsidiaries as of the
dates indicated and the consolidated results of operations and changes in
financial position of the Company and its subsidiaries for the periods
specified. Such financial statements have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis
throughout the periods involved. The financial statement schedules, if any,
included in the Company Registration Statement present fairly the information
required to be stated therein. The selected financial data included in the
Company Prospectus present fairly the information shown therein and have been
compiled on a basis consistent with that of the audited consolidated financial
statements included or incorporated by reference in the Company Registration
Statement.
7
(f) The Company is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware with power and authority
(corporate and other) under such laws to own, lease and operate its properties
and conduct its business as described in the Company Prospectus; and the Company
is duly qualified to transact business as a foreign corporation and is in good
standing in each other jurisdiction in which it owns or leases property of a
nature, or transacts business of a type, that would make such qualification
necessary, except to the extent that the failure to so qualify or be in good
standing would not have a material adverse effect on the Company and its
subsidiaries, considered as one enterprise.
(g) The subsidiaries of the Company set forth on Schedule II are, as of the
date hereof, all of the "Restricted Subsidiaries", as such term is defined in
the indenture dated March 22, 2001, between CSC Holdings, Inc. (a wholly-owned
subsidiary of the Company) and the Bank of New York, Trustee. The subsidiaries
of the Company set forth on Schedule III are "Unrestricted Subsidiaries", as
such term is defined in such indenture (the restricted subsidiaries and the
unrestricted subsidiaries are hereinafter referred to collectively as the
"Subsidiaries"). The Subsidiaries on Schedules II and III with an asterisk by
their names, together with CSC Holdings, Inc., are the only subsidiaries of the
Company which had at December 31, 2000 assets in excess of 10% of the
consolidated assets of the Company and its subsidiaries as at that date or had,
in the aggregate, for the fiscal year then ended revenues or operating cash flow
in excess of 10% of consolidated revenues or consolidated operating cash flow of
the Company and its subsidiaries for such period (such Subsidiaries are referred
to herein as the "Material Subsidiaries"). In making this determination, any
subsidiary acquired after December 31, 2000 shall be deemed to have been
acquired as of such date.
(h) Each Material Subsidiary that is a corporation is duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
incorporation with power and authority (corporate and other) under such laws to
own, lease and operate its properties and conduct its business; and each such
Material Subsidiary is duly qualified to transact business as a foreign
corporation and is in good standing in each other jurisdiction in which it owns
or leases property of a nature, or transacts business of a type, that would make
such qualification necessary, except to the extent that the failure to be so
qualified or in good standing would not have a material adverse effect on the
Company and its subsidiaries, considered as one enterprise. All of the
outstanding shares of capital stock of each Material Subsidiary that is a
corporation have been duly authorized and validly issued and are fully paid and
nonassessable and, except as disclosed on Schedule II or III to this Agreement
or as disclosed or contemplated by the Company Registration Statement, are owned
by the Company, directly or through one or more subsidiaries, free and clear of
any pledge, lien, security interest, mortgage, charge, claim, equity or
encumbrance of any kind.
(i) Each of the Material Subsidiaries in which the Company or a subsidiary
of the Company is a limited or general partner (hereinafter called the
"Partnerships") has been duly formed and is validly existing as a limited or
general partnership, as the case may be, under the laws of its jurisdiction of
organization, with full power and authority to own, lease and operate properties
and conduct its business; all necessary filings with respect to the formation of
the Partnerships as limited or general partnerships (as the case may be) have
been made under such laws; and each of the Partnerships is duly qualified to
transact business and is in good standing in
8
each other jurisdiction in which it owns or leases property of a nature, or
transacts business of a type, that would make such qualification necessary,
except to the extent that the failure to be so qualified or in good standing
would not have a material adverse effect on the Company and its subsidiaries,
considered as one enterprise.
(j) The Company had, at September 30, 2001, a duly authorized and
outstanding capitalization as set forth in the Company Prospectus under the
caption "Capitalization"; the Shares conform in all material respects to the
description thereof contained in the Company Prospectus and such description
conforms in all material respects to the rights set forth in the instruments
defining the same.
(k) All of the outstanding shares of capital stock of the Company,
including the Shares, have been duly authorized and validly issued and are fully
paid and non-assessable; and none of the outstanding shares of capital stock of
the Company, including the Shares, was issued in violation of the preemptive
rights of any stockholder of the Company.
(l) Since the respective dates as of which information is given in the
Company Registration Statement and the Company Prospectus, except as otherwise
stated therein or contemplated thereby, there has not been (A) 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 and there has not been any change in the
capital stock or long-term debt of the Company or any of its Subsidiaries or any
change which the Company has reasonable cause to believe will involve any
material adverse change, or any development involving a prospective material
adverse change, in or affecting the financial position, stockholders' equity or
results of operations of the Company and its subsidiaries, considered as one
enterprise, or (B) any transaction entered into by the Company or any
Subsidiary, other than in the ordinary course of business, that is material to
the Company and its subsidiaries, considered as one enterprise, or (C) any
dividend or distribution of any kind declared, paid or made by the Company on
its capital stock.
(m) Neither the Company nor any Subsidiary is in default in the
performance or observance of any obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, loan agreement, note, lease or
other agreement or instrument to which it is a party or by which it may be
bound or to which any of its properties may be subject, except for such
defaults that would not have a material adverse effect on the financial
position, stockholders' equity or results of operations of the Company and its
subsidiaries, considered as one enterprise. The execution and delivery of this
Agreement and the compliance by the Company with its obligations hereunder at
the Closing Date and any Settlement Date shall have been duly authorized by all
necessary corporate action on the part of the Company and do not and will not
result in any violation of the charter or by-laws of the Company or any
Subsidiary, and do not and will not conflict with, or result in a breach of any
of the terms or provisions of, or constitute a default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any Subsidiary under:
(i) any contract, indenture, mortgage, loan agreement, note, lease or
other agreement or instrument to which the Company or any Subsidiary
is a party or by which it may be
9
bound or to which any of its properties may be subject (except for such
conflicts, breaches or defaults or liens, charges or encumbrances that
would not have a material adverse effect on the financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, considered as one enterprise); or
(ii) any existing applicable law, rule, regulation, judgment, order or
decree of any government, governmental instrumentality or court, domestic
or foreign, having jurisdiction over the Company or any Subsidiary or any
of its properties (except for such conflicts, breaches or defaults or
liens, charges or encumbrances that would not have a material adverse
effect on the financial position, stockholders' equity or results of
operations of the Company and its subsidiaries, considered as one
enterprise); or
(iii) any material agreement or other material instrument (including any
franchise agreement, license, permit or other governmental authorization
granted by the Federal Communications Commission (hereinafter called the
"FCC"), The New York State Public Service Commission on Cable Television or
any other governing body having jurisdiction over the Company's cable
television operations) binding upon the Company or any of its Subsidiaries
(except for such conflicts, breaches or defaults or liens, charges or
encumbrances that would not have a material adverse effect on the financial
position, stockholders' equity or results of operations of the Company and
its subsidiaries, considered as one enterprise).
(n) The statements in the Company Prospectus under "Risk Factors" and
"Description of Capital Stock", the statements in the Company's annual report on
Form 10-K, as supplemented and amended by the Company's Form 10-K/As, for the
year ended December 31, 2000 (the "2000 Form 10-K"), which is incorporated by
reference in the Company Prospectus, under "Business -- Competition -- Cable
Television", "Business -- Regulation -- Cable Television" and "Business --
Regulation -- Programming and Entertainment", and in the Company Registration
Statement in Item 15, and the statements cross-referenced therein, insofar as
such statements constitute a summary of the legal matters, documents or
proceedings referred to therein, with respect to such legal matters, documents
and proceedings, do not contain any untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary in order to
make the statements therein not misleading.
(o) Except as disclosed in the Company Prospectus, no authorization,
approval, consent or license of any government, governmental instrumentality or
court, domestic or foreign (other than under the Act and the securities or the
blue sky laws of the various states) is required for the execution, delivery or
performance of this Agreement by the Company, except for any consent, approval,
authorization, order or registration the failure of which to obtain or make or
the absence of which would result in no material adverse effect on the Company
and its subsidiaries, considered as one enterprise.
(p) Except as disclosed in the Company Prospectus, there is no
action, suit or proceeding before or by any government, governmental
instrumentality or court, domestic or foreign, now pending or, to the best of
the Company's knowledge, threatened against or affecting the Company or any
Subsidiary that the Company has reasonable cause to believe will result in
10
any material adverse change in the consolidated financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, considered as one enterprise, or that will materially and
adversely affect the properties or assets of the Company and its subsidiaries,
considered as one enterprise, or that the Company has reasonable cause to
believe will materially adversely affect the consummation of the transactions
contemplated in this Agreement.
(q) There are no contracts or documents of a character required to be
described in the Company Registration Statement, the Company Prospectus or the
documents incorporated by reference therein or to be filed as exhibits to the
Company Registration Statement that are not described and filed as required.
(r) The Company and the Subsidiaries each has good and marketable
title to all material properties and assets described in the Company Prospectus
as owned by it, free and clear of all liens, charges, encumbrances or
restrictions, except such as (A) are described in the Company Prospectus or (B)
are neither material in amount nor materially significant in relation to the
business of the Company and its subsidiaries, considered as one enterprise; and
any material real property and buildings under lease by the Company and the
Subsidiaries are held by them under valid, subsisting and enforceable leases
with such exceptions as do not interfere, to an extent material to the Company
and its subsidiaries, considered as one enterprise, with the use made and
proposed to be made of such property and buildings by the Company and the
Subsidiaries.
(s) Except as disclosed in the Company Prospectus, the Company and
the Subsidiaries each owns, possesses or has obtained all material agreements,
governmental licenses, permits, certificates, consents, orders, approvals and
other material authorizations (including, without limitation, all material
governmental authorizations and agreements with public utilities and microwave
transmission companies and pole access and rental agreements) necessary to own
or lease, as the case may be, and to operate its properties and to carry on its
business as presently conducted; and neither the Company nor any Subsidiary has
received any notice of proceedings relating to revocation or modification of any
such licenses, permits, certificates, consents, orders, approvals or
authorizations.
(t) To the best knowledge of the Company and except as disclosed in
the Company Prospectus, no labor problem exists with its employees or with
employees of the Subsidiaries that could reasonably be expected to materially
and adversely affect the financial position, stockholders' equity or results of
operations of the Company and its subsidiaries, considered as one enterprise.
3. Representations and Warranties of Counterparties. Each Counterparty
(with respect to itself and AT&T) and AT&T (with respect to each Counterparty
and itself) represents and warrants to, and agrees with, each Underwriter, the
Company and the Trust that:
(a) Such Counterparty has been duly organized, is validly existing as
a corporation in good standing under the laws of the jurisdiction in which it is
chartered or organized, with full power and authority to own its property.
11
(b) Such Counterparty has full legal right, capacity, power and authority
to enter into and perform its obligations under this Agreement, the Contract and
Collateral Agreement to which it is a party and the letter agreement between
Counterparties and Xxxxxxx Xxxxx Xxxxxx relating to expenses of the Trust (the
"Reimbursement Agreement").
(c) This Agreement has been duly authorized, executed and delivered by such
Counterparty. The Contract and the Collateral Agreement to which it is a party
and the Reimbursement Agreement have been duly authorized, executed and
delivered by such Counterparty and, assuming due authorization, execution and
delivery by the other parties thereto, are valid and binding agreements of such
Counterparty, enforceable against it in accordance with their terms except as
such enforceability may be limited by applicable bankruptcy, insolvency and
similar laws affecting creditors' rights generally and by general equitable
principles.
(d) The execution and delivery by such Counterparty and AT&T of this
Agreement, the execution and delivery by such Counterparty of the Contract and
Collateral Agreement to which it is a party and the Reimbursement Agreement, the
performance by such Counterparty of its obligations hereunder and thereunder and
the consummation of the transactions herein and therein contemplated (including,
without limitation, (i) the pledge by such Counterparty to the Trust of a
security interest in the Shares pursuant to its respective Collateral Agreement,
(ii) following an Acceleration Event (as defined in the Contracts), any action
by the Collateral Agent to foreclose on the Shares and deliver the Shares to the
Trust, and any action by the Trust to distribute the Shares to the holders of
the Equity Trust Securities pursuant to the terms of the Trust Agreement and the
Collateral Agreements, and (iii) if the Counterparties do not elect the Cash
Delivery Option or elect the Cash Delivery Option but fail thereafter to deliver
cash as required by the Contracts, any action by the Collateral Agent to deliver
the Shares to the Trust or by the Trust to distribute the Shares to the holders
of the Equity Trust Securities pursuant to the terms of the Trust Agreement and
the Collateral Agreements) do not and will not, whether with or without the
giving of notice or passage of time or both, conflict with, result in a breach
or violation of, or default under, any contract, indenture, mortgage, deed of
trust, loan or credit agreement, note or other agreement or instrument to which
such Counterparty or AT&T is a party or by which it may be bound (including,
without limitation the Stockholders Agreement dated March 4, 1998, as amended to
the date hereof (as so amended, the "Stockholders Agreement")), nor will such
actions result in any violation of the provisions of the certificate of
incorporation or by-laws of such Counterparty or AT&T or any law, order, rule or
regulation applicable to such Counterparty or AT&T of any court, federal or
state regulatory body, administrative agency or other governmental body having
jurisdiction over such Counterparty or AT&T or its properties. Upon the
occurrence of any of the events listed in clauses (ii) and (iii) in the
preceding sentence, the Shares referred to in such clauses will be free and
clear of any restriction imposed on the Shares by the Stockholders Agreement.
Amounts received by such Counterparty under the Contract to which it is a party
at the Closing Date and, if any Option Equity Trust Securities are purchased, at
the time of delivery thereof pursuant to Section 4(b), will not be used by such
Counterparty for the purpose, whether immediate,
12
incidental or ultimate, of buying or carrying a margin stock, as such terms are
defined in Regulation U promulgated by the Board of Governors of the Federal
Reserve System.
(e) Such Counterparty is not and, after giving effect to the transactions
contemplated in the Contract and the Collateral Agreement to which it is a party
and the offering and sale of the Equity Trust Securities contemplated by this
Agreement, will not be an "investment company" or an entity "controlled" by an
"investment company" as such terms are defined in the Investment Company Act.
(f) Such Counterparty and AT&T is now and on the Exchange Date will be the
beneficial owner of the Shares to be sold under the Contract to which it is a
party free and clear of all liens, encumbrances, equities and claims, except for
those created pursuant to the Collateral Agreement to which it is a party, and,
assuming that the Trust acquires its interest in such Shares in exchange for the
Firm Purchase Price and the Additional Purchase Price (as defined in the
Collateral Agreements) in accordance with the terms of the Contract to which it
is a party without notice of any adverse claim (within the meaning of Section
8-105 of the New York Uniform Commercial Code ("UCC")), on the Exchange Date the
Trust will have acquired either the Shares free of any adverse claim (within the
meaning of Section 8-102(a)(1) of the UCC) or a security entitlement (within the
meaning of Section 8-102(a)(17) of the UCC) to such Shares, in accordance with
the terms of the Contract to which such Counterparty is a party. Such
Counterparty has the full right, power and authority, and all authorization and
approvals required by law, to pledge and assign the Shares to be pledged and
assigned by such Counterparty pursuant to the Collateral Agreement to which it
is a party. The sale, transfer and delivery of any Shares to be delivered by
such Counterparty pursuant to the Contract to which it is a party is not, and at
the time of delivery of such Shares will not be, subject to any right of first
refusal or similar rights of any person pursuant to any contract to which such
Counterparty or any shareholder of such Counterparty is a party or by which any
of them is bound.
(g) At the respective times the Company Registration Statement, any
Company Rule 462(b) Registration Statement become effective, at the Closing Time
(and, if any are purchased on a date other than the Closing Date, at Settlement
Date, (A) neither the Company Registration Statement nor any amendment or
supplement thereto includes or will include an untrue statement of a material
fact or omits or will omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading and (B)
neither the Company Prospectus nor any amendment or supplement thereto includes
or will include an untrue statement of a material fact or omits or will 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 this representation and warranty applies only to statements or
omissions relating to such Counterparty or AT&T furnished to the Company in
writing by or on behalf of such Counterparty or AT&T expressly for use in the
Company Registration Statement or Company Prospectus.
13
(h) Such Counterparty hereby repeats and confirms as if set forth in
full herein each of the representations, warranties, guarantees and
agreements made by it in the Contract and the Collateral Agreement to which
it is a party and agrees that the representations, warranties, guarantees
and agreements therein and herein are made hereby for the benefit of, and
may be relied upon by, (i) the Underwriters, Shearman & Sterling and
Cleary, Gottlieb, Xxxxx & Xxxxxxxx, counsel to the Underwriters and (ii)
the Company and Xxxxxxxx & Xxxxxxxx, counsel to the Company.
(i) Neither such Counterparty nor AT&T has taken or will take,
directly or indirectly, any action which is designed to or which has
constituted or which might reasonably be expected to cause or result, under
the Exchange Act or otherwise, in stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale of
the Shares or the Equity Trust Securities.
(j) No consent, approval, license, authorization, order or validation
of, and no filing, recording, or registration with, any court or
governmental authority, agency or body is required for the compliance by
such Counterparty with all of the provisions of this Agreement, the
Contract and the Collateral Agreement to which it is a party and the
Reimbursement Agreement, except such as have been obtained under the Act
and such as may be required under the blue sky laws in connection with the
purchase and distribution of the Equity Trust Securities by the
Underwriters and the distribution of the Shares pursuant to the terms of
the Equity Trust Securities in the manner contemplated herein and in the
Trust Prospectus and the Company Prospectus.
(k) Such Counterparty is an indirectly, wholly-owned subsidiary of
AT&T.
Any certificate signed by such Counterparty or any director or officer
thereof, as the case may be, and delivered to the Underwriters or counsel for
the Underwriters in connection with the offering of the Equity Trust Securities
shall be deemed a representation and warranty by such Counterparty (and not of
such officer in his individual capacity), as to matters covered thereby, to
each Underwriter.
4. Purchase and Sale.
(a) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Trust agrees to sell to
each Underwriter, and each Underwriter agrees, severally and not jointly, to
purchase from the Trust, at a purchase price of $[ ] per Equity Trust
Security, the amount of the Underwritten Equity Trust Securities set forth
opposite such Underwriter's name in Schedule I hereto.
(b) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Trust hereby grants an
option to the several Underwriters to purchase, severally and not jointly, up to
1,277,130 Option Equity Trust Securities at the same purchase price per Equity
Trust Security as the Underwriters shall pay for the Underwritten Equity Trust
Securities. The option may be exercised only to cover over-allotments in the
sale of the Underwritten Equity Trust Securities by the Underwriters. The option
may be exercised in
14
whole or in part at any time (but not more than once) on or before the 30th day
after the date of the Trust Prospectus upon written or facsimile notice by the
Underwriters to the Trust setting forth the number of Option Equity Trust
Securities as to which the several Underwriters are exercising the option and
the Settlement Date. Delivery of certificates for the Option Equity Trust
Securities by the Trust, and payment therefor to the Trust, shall be made as
provided in Section 5 hereof. The number of shares of the Option Equity Trust
Securities to be purchased by each Underwriter shall be the same percentage of
the total number of Option Equity Trust Securities to be purchased by the
several Underwriters as such Underwriter is purchasing of the Underwritten
Equity Trust Securities, subject to such adjustments as you in your absolute
discretion shall make to eliminate any fractional Equity Trust Securities.
(c) As compensation to the Underwriters for their commitment
hereunder, and in view of the fact that the proceeds of the sale of the Equity
Trust Securities will be used by the Trust as specified in the Contracts, the
Counterparties agree to pay to Xxxxxxx Xxxxx Barney, at the time of each
delivery of Equity Trust Securities pursuant to Section 5, an amount equal to
$[ ] per Equity Trust Security being delivered at such time, plus $[ ] per
Equity Trust Security for each Subscription Equity Trust Securities owned by
Xxxxxxx Xxxxx Xxxxxx after giving effect to the subdivision of the Subscription
Equity Trust Securities provided for in the Subscription Agreement.
5. Delivery and Payment. Delivery of and payment for the Underwritten
Equity Trust Securities and the Option Equity Trust Securities (if the option
provided for in Section 4(b) hereof shall have been exercised on or before the
first Business Day prior to the Closing Date) shall be made at 10:00 A.M., New
York City time, on December [ ], 2001, or at such time on such later date not
later than five Business Days after the foregoing date as the Underwriters shall
designate, which date and time may be postponed by agreement among the
Underwriters, the Trust and Counterparties or as provided in Section 13 hereof
(such date and time of delivery and payment for the Equity Trust Securities
herein called the "Closing Date"). Delivery of the Equity Trust Securities shall
be made to the respective accounts of the several Underwriters against payment
by the several Underwriters of the purchase price thereof to or upon the order
of the Trust by wire transfer payable in immediately available same-day funds to
an account specified by the Trust in writing at least two Business Days in
advance of the Closing Date. Delivery of the Equity Trust Securities shall be
made through the facilities of the Depository Trust Company unless the
Underwriters shall otherwise instruct.
The Trust agrees to have the Equity Trust Securities available for
inspection and checking by the Underwriters in New York, New York, not later
than 1:00 P.M. on the Business Day prior to the Closing Date.
If the option provided for in Section 4(b) hereof is exercised after the
first Business Day prior to the Closing Date, the Trust will deliver the Option
Equity Trust Securities (at the expense of the Trust) to the Underwriters on the
date specified by the Underwriters (which shall be within three Business Days
after exercise of said option) for the respective accounts of the several
Underwriters, against payment by the several Underwriters of the purchase price
thereof to or upon the order of the Trust by wire transfer payable in
immediately available same-day funds to an account specified by the Trust in
writing at least two Business Days in advance of
15
such Settlement Date. If settlement for the Option Equity Trust Securities
occurs after the Closing Date, the Trust, the Company and Counterparties will
deliver to the Underwriters on the Settlement Date for the Option Equity Trust
Securities, and the obligation of the Underwriters to purchase the Option Equity
Trust Securities shall be conditioned upon receipt of, supplemental opinions,
certificates and letters confirming as of such date the opinions, certificates
and letters delivered on the Closing Date pursuant to Section 10 hereof.
6. Offering by the Underwriters. It is understood that the several
Underwriters propose to offer the Equity Trust Securities for sale to the public
as set forth in the Trust Prospectus.
7. Agreements of the Trust. The Trust agrees with the several
Underwriters that:
(a) The Trust will use its best efforts to cause the Trust
Registration Statement, if not effective at the Execution Time, and any
amendment thereof, to become effective. Prior to the termination of the
offering of the Equity Trust Securities, the Trust will not file any
amendment of the Trust Registration Statement or supplement to the Trust
Prospectus or any Rule 462(b) Trust Registration Statement unless the Trust
has furnished you a copy for your review prior to filing and will not file
any such proposed amendment or supplement to which you object. Subject to
the foregoing sentence, if the Trust Registration Statement has become or
becomes effective pursuant to Rule 430A, or filing of the Trust Prospectus
is otherwise required under Rule 424(b), the Trust will cause the Trust
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
Underwriters of such timely filing. The Trust will promptly advise the
Underwriters (1) when the Trust Registration Statement, if not effective at
the Execution Time, shall have become effective, (2) when the Trust
Prospectus, and any supplement thereto, shall have been filed (if required)
with the Commission pursuant to Rule 424(b) or when any Rule 462(b) Trust
Registration Statement shall have been filed with the Commission, (3) when,
prior to termination of the offering of the Equity Trust Securities, any
amendment to the Trust Registration Statement or any Rule 462(b) Trust
Registration Statement, shall have been filed or become effective, (4) of
any request by the Commission or its staff for any amendment of the Trust
Registration Statement, or any Rule 462(b) Trust Registration Statement, or
for any supplement to the Trust Prospectus or for any additional
information, (5) of the issuance by the Commission of any stop order
suspending the effectiveness of the Trust Registration Statement or the
institution or threatening of any proceeding for that purpose and (6) of
the receipt by the Trust of any notification with respect to the suspension
of the qualification of the Equity Trust Securities for sale in any
jurisdiction or the institution or threatening of any proceeding for such
purpose. The Trust will use its best efforts to prevent the issuance of any
such stop order or the suspension of any such qualification and, if issued,
to obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Equity Trust
Securities is required to be delivered under the Act, any event occurs as a
result of which the Trust Prospectus as then supplemented would include any
untrue statement of a material fact or
16
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 Trust Registration Statement or
supplement the Trust Prospectus to comply with the Act or the Exchange Act
or the respective rules thereunder, the Trust promptly will (1) notify the
Underwriters of any such event, (2) prepare and file with the Commission,
subject to the second sentence of paragraph (a) of this Section 7, an
amendment or supplement which will correct such statement or omission or
effect such compliance and (3) supply any supplemental Trust Prospectus to
you in such quantities as you may reasonably request.
(c) The Trust will furnish to the Underwriters and counsel for the
Underwriters, without charge, signed copies of the Trust Registration
Statement (including exhibits thereto) and to each other Underwriter a copy
of the Trust Registration Statement (without exhibits thereto). The Trust
will furnish to the Underwriters and counsel for the Underwriters, without
charge, copies of the Trust Registration Statement (including exhibits
thereto). The Trust will furnish to the Underwriters not later than (i)
12:00 P.M., New York City time, on the Business Day immediately following
the date of determination of the public offering price of the Equity Trust
Securities, if such determination occurred at or prior to 12:00 noon, New
York City time, on such date or (ii) 9:00 A.M., New York City time, on the
second Business Day immediately following the date on which the public
offering price was determined, if such determination occurred after 12:00
noon, New York City time, on such date, as many copies of each Preliminary
Trust Prospectus, the Trust Prospectus and any supplement thereto as the
Underwriters may reasonably request; further, so long as delivery of a
prospectus by an Underwriter or any dealer may be required by the Act, as
many copies of each Preliminary Trust Prospectus and the Trust Prospectus
and any supplement thereto as the Underwriters may reasonably request.
(d) The Trust will arrange, if necessary, for the qualification of the
Equity Trust Securities and the Shares for sale under the laws of such
jurisdictions as the Underwriters may designate, will maintain such
qualifications in effect so long as required for the distribution of the
Equity Trust Securities and will pay any fee of the National Association of
Securities Dealers, Inc. (the "NASD"), in connection with its review, if
any, of the Trust Registration Statement and the offering of the Equity
Trust Securities.
8. Agreements of the Company. The Company agrees with the several
Underwriters that:
(a) The Company will use its best efforts to cause the Company
Registration Statement, if not effective at the Execution Time, and any
amendment thereof, to become effective. Subject to Section 8(c), if filing
of the Company Prospectus is required under Rule 424(b), the Company will
cause the Company 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. The Company
will promptly advise the Underwriters when the Company Registration
Statement, if not effective at the Execution Time, shall have become
effective. The Company has furnished or will furnish
17
to the Underwriters as many copies of any preliminary prospectus and the
Company Prospectus as the Underwriters reasonably request.
(b) During the period when the Company Prospectus is required by the
Act to be delivered in connection with the sales of the Equity Trust
Securities, the Company will, subject to Section 8(c), file promptly all
documents required to be filed with the Commission pursuant to Section 13
or 14 of the Exchange Act subsequent to the time the Company Registration
Statement becomes effective.
(c) During the period when the Company Prospectus is required by the
Act to be delivered in connection with sales of the Equity Trust
Securities, the Company will inform the Underwriters of its intention to
file any amendment to the Company Registration Statement, any supplement to
the Company Prospectus or any document that would as a result thereof be
incorporated by reference in the Company Prospectus; will furnish the
Underwriters with copies of any such amendment, supplement or other
document a reasonable time in advance of filing, and will not file any such
amendment, supplement or other document in a form to which the Underwriters
shall reasonably object.
(d) During the period when the Company Prospectus is required by the
Act to be delivered in connection with sales of the Equity Trust
Securities, the Company will notify the Underwriters immediately, and
confirm the notice in writing (with respect to clause (i), upon request),
(i) of the effectiveness of any amendment to the Company Registration
Statement, (ii) of the receipt of any comments from the Commission with
respect to the Company Registration Statement or the Company Prospectus,
(iii) of any request by the Commission to amend the Company Registration
Statement or any supplement to the Company Prospectus or for additional
information relating thereto and (iv) of the issuance by the Commission of
any stop order suspending the effectiveness of the Company Registration
Statement, of the suspension of the qualification of the Shares for
offering or sale in any jurisdiction, or of the institution or to the
Company's knowledge, the threatening of any proceedings for any of such
purposes. The Company will use every reasonable effort to prevent the
issuance of any such stop order or of any order preventing or suspending
such use and, if any such order is issued, to obtain the lifting thereof at
the earliest possible moment.
(e) The Company has furnished or will furnish to the Underwriters one
copy of the originally executed Company Registration Statement (as
originally filed) and of each amendment thereto (including exhibits filed
therewith or incorporated by reference therein and documents incorporated
or deemed to be incorporated by reference therein) and a copy of all
originally executed consents and certificates of experts, and has furnished
or will furnish to each of the Underwriters as many conformed copies of the
Company Registration Statement as originally filed and of each amendment
thereto (including documents incorporated or deemed to be incorporated by
reference into the Company Prospectus but without exhibits) as the
Underwriters may reasonably request.
18
(f) The Company will use its reasonable best efforts, in cooperation
with the Trust and the Underwriters, to qualify the Shares for offering and
sale under the applicable securities laws of such states and other
jurisdictions as the Underwriters may designate and to maintain such
qualifications in effect for a period of not less than one year from the
date hereof; provided, however, that the Company shall not be obligated to
file any general consent to service of process or to qualify as a foreign
corporation or as a dealer in securities in any jurisdiction in which it is
not so qualified or to subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so subject. The
Company will file such statements and reports as may be required by the
laws of each jurisdiction in which the Shares have been qualified as above
provided.
(g) The Company will make generally available to its security holders
as soon as practicable, but not later than 45 days after the close of the
period covered thereby (90 calendar days in the case the period corresponds
to the fiscal year of the Company), an earnings statement of the Company
(in the form complying with the provisions of Rule 158 under the Act),
covering a period of 12 months beginning after the effective date of the
Registration Statement and covering a period of 12 months beginning after
the effective date of any post-effective amendment to the Company
Registration Statement but not later than the first day of the Company's
fiscal quarter next following such effective date.
(h) The Company will use its reasonable best efforts to comply with
the Act and the Exchange Act. If at any time when the Company Prospectus is
required by the Act to be delivered in connection with sales of the Equity
Trust Securities any event shall occur or condition exist as a result of
which it is necessary to amend the Company Registration Statement or amend
or supplement the Company Prospectus in order that the Company Prospectus
will not include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein not
misleading in the light of the circumstances existing at the time it is
delivered to a purchaser, or if it shall be necessary at any such time to
amend the Company Registration Statement or amend or supplement the Company
Prospectus in order to comply with the requirements of the Act, the Company
will promptly prepare and file with the Commission, subject to Section
8(d), such amendment or supplement as may be necessary to correct such
untrue statement or omission or to make the Company Registration Statement
or the Prospectus comply with such requirements.
(i) For a period of three years after the Closing Date, the Company
will furnish to the Underwriters copies of all annual reports, quarterly
reports and current reports filed with the Commission on Forms 10-K, 10-Q
and 8-K, or such other similar forms as may be designated by the
Commission, and such other documents, reports and information as shall be
furnished by the Company to its stockholders generally.
(j) The Company will not be or become, at any time prior to the
expiration of three years after the Closing Date, an open-end investment
trust, unit investment trust or face-amount certificate company that is or
is required to be registered under Section 8 of the Investment Company Act
of 1940, as amended.
19
(k) The Company will not, without the prior written consent of
the Underwriters, offer, sell, contract to sell or otherwise dispose of
any Shares (except for shares issuable upon conversion of securities or
exercise of warrants and options outstanding as of the date of the
Company Prospectus or pursuant to employee benefit plans) or warrants,
rights or options convertible into or exercisable or exchangeable for
Shares (except for the rights or options pursuant to employee benefits
plans existing on the date of the Company Prospectus) at any time for a
period of 90 days after the date of the Company Prospectus.
9. Agreements of Counterparties. Each Counterparty agrees with each of
the Underwriters that:
(a) Each of the Underwriters is requesting and each of such
Counterparty and AT&T and its other subsidiaries will comply with
the last paragraph of Section 3 of the Stockholders Agreement, as
in effect on the date hereof. The foregoing sentence shall not apply
to the Shares to be sold hereunder.
(b) Such Counterparty will not take any action designed to or
which has constituted or which might reasonably be expected to cause or
result, under the Exchange Act or otherwise, in stabilization or
manipulation of the price of any security of the Company to facilitate
the sale or resale of the Equity Trust Securities or the Shares.
(c) Such Counterparty will advise you promptly, and if
requested by you, will confirm such advice in writing, so long as
delivery of a prospectus relating to the Shares (including with respect
to the offering and sale of the Equity Trust Securities) by an
Underwriter or dealer may be required under the Act, of any change in
the information furnished to the Company in writing by or on behalf of
such Counterparty or AT&T in the Company Registration Statement or the
Company Prospectus relating to such Counterparty or AT&T.
10. Conditions to the Obligations of the Underwriters. The obligations
of the Underwriters to purchase the Underwritten Equity Trust Securities and the
Option Equity Trust Securities, as the case may be, shall be subject to the
accuracy of the representations and warranties on the part of the Trust, the
Company and Counterparty contained herein as of the Execution Time, the Closing
Date and any Settlement Date pursuant to Section 4(b) hereof, to the accuracy of
the statements of the Trust, the Company and Counterparty made in any
certificates pursuant to the provisions hereof, to the performance by each of
the Trust, the Company and Counterparty of their respective obligations
hereunder and to the following additional conditions:
(a) If the Trust Registration Statement or the Company
Registration Statement has not become effective prior to the Execution
Time, unless the Underwriters agree in writing to a later time, such
Trust Registration Statement or Company Registration Statement will
become effective not later than (i) 6:00 P.M. New York City time on the
date of determination of the public offering price of the Equity Trust
Securities, if such determination occurred at or prior to 3:00 P.M. New
York City time on such date or (ii) 9:30 A.M. New York City time on the
Business Day following the day on which the
20
public offering price of the Equity Trust Securities was determined, if such
determination occurred after 3:00 P.M. New York City time on such date; if
filing of the Trust Prospectus or the Company Prospectus, or any supplement
thereto, is required pursuant to Rule 497(h) or Rule 424(b), such Trust
Prospectus or Company Prospectus, and any such supplement, will be filed in the
manner and within the time period required by such Rule; and no stop order
suspending the effectiveness of the Trust Registration Statement or the Company
Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted or threatened.
(b) The Underwriters shall have received the opinion of Xxxxxxxx, Xxxxxx &
Finger, special Delaware counsel for the Trust, dated the Closing Date and
addressed to the Underwriters, with respect to such matters as the Underwriters
may reasonably request.
(c) The Company Registration Statement, including any Rule 462(b) Company
Registration Statement, has become effective and at the Closing Date, no stop
order suspending the effectiveness of the Company Registration Statement shall
have been issued under the Act and no proceedings for that purpose shall have
been instituted or shall be pending or, to the knowledge of the Company, shall
be contemplated by the Commission, and any request on the part of the Commission
for additional information shall have been complied with to the reasonable
satisfaction of counsel for the Underwriters.
(d) The Underwriters shall have received a signed opinion of Xxxxxxxx &
Xxxxxxxx, counsel for the Company, dated as of the Closing Date, in form and
substance satisfactory to counsel for the Underwriters, to the effect that:
(i) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware.
(ii) The Shares have been duly authorized and validly issued and are
fully paid and non-accessable.
(iii) The execution and delivery of this Agreement by the Company, and
the compliance by the Company with the terms of this Agreement do not and
will not result in any violation of the Certificate of Incorporation or
By-laws of the Company, in each case as in effect as of such Closing Date.
(iv) This Agreement has been duly authorized, executed and delivered
by the Company.
Such counsel shall also furnish the Underwriters with a letter to the effect
that as counsel to the Company, they reviewed the Company Registration Statement
and the Company Prospectus, participated in discussions with representatives of
the Underwriters and those of the Company and its accountants and advised the
Company as to the requirements of the Act and the applicable rules and
regulations thereunder; between the date of the Company Prospectus and the
Closing
21
Date, such counsel participated in further discussions with representatives of
the Underwriters and those of the Company and its accountants in which the
contents of certain portions of the Company Prospectus and related matters were
discussed and reviewed, reviewed certain documents filed by the Company with the
Commission, certificates of certain officers of the Company and the
Counterparties, an opinion addressed to the Underwriters from Xxxxxx X. Xxxxx,
Esq., Vice Chairman, General Counsel and Secretary for the Company, and a letter
from the Company's independent accountants; on the basis of the information that
such counsel gained in the course of the performance of the services referred to
above, considered in the light of such counsel's understanding of the applicable
law (including the requirements of Form S-3 and the character of the prospectus
contemplated thereby) and the experience such counsel have gained through their
practice under the Act, they confirm to the Underwriters that, in such counsel's
opinion, the Company Registration Statement, as of its effective date, and the
Company Prospectus, as of the date of the Company Prospectus (and any amendment
to the Company Registration Statement or supplement to the Company Prospectus,
as of its respective effective or issue date), appeared on their face to be
appropriately responsive in all material respects to the requirements of the Act
and the applicable rules and regulations of the Commission thereunder; further,
nothing that came to such counsel's attention in the course of such review has
caused such counsel to believe that the Company Registration Statement, as of
its effective date, contained any untrue statement of a material fact or omitted
to state any material fact required to be stated therein or necessary to make
the statements therein not misleading or that the Company Prospectus, as of the
date of the Company Prospectus, contained any untrue statement of a material
fact or omitted to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; also, nothing that came to the attention of such counsel
in the course of the procedures described in the second clause of this paragraph
has caused such counsel to believe that the Company Prospectus, as of the
Closing Date, contained any untrue statement of a material fact or omitted to
state any material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading; such
counsel shall state that the limitations inherent in the independent
verification of factual matters and the character of determinations involved in
the registration process are such that such counsel does not assume any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Company Registration Statement or the Company Prospectus except
for those made under the captions "Description of Rainbow Media Group Class A
Common Stock" and "Plan of Distribution" in the Company Prospectus insofar as
they relate to provisions of documents therein described; also, such counsel
need express no opinion or belief as to the financial statements or other
financial data contained in the Company Registration Statement or the Company
Prospectus or as to the description of statutes, regulations, proceedings or
matters referred to in Section 10(f) hereof.
In rendering such opinion, such counsel may state that they express no opinion
as to the laws of any jurisdiction other than the federal laws of the United
States, the laws of the State of New York and the General Corporation Law of
the State of Delaware, and no opinion as to federal or state laws relating to
communications and telecommunications, including laws which regulate
individuals, companies or businesses because such entities provide
communications or telecommunications services, including the provision of cable
television services or telephone services. Such counsel may also state that they
have relied as to ceratin matters on information
22
obtained from public officials, officers of the Company and other sources
believed by them to be responsible.
(e) The Underwriters shall have received a signed opinion of Xxxxxx X.
Xxxxx, Esq., Vice Chairman, General Counsel and Secretary for the Company, dated
as of the Closing Date, in form and substance satisfactory to counsel to the
Underwriters, to the effect that:
(i) The Company is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware with corporate
power and authority under such laws to own, lease and operate its
properties and conduct its business as described in the Company Prospectus.
(ii) The Company is duly qualified to transact business as a foreign
corporation and is in good standing in each other jurisdiction in which it
owns or leases property of a nature, or transacts business of a type, that
would make such qualification necessary, except where the failure to be so
qualified would not have a material adverse effect on the Company and its
subsidiaries, considered as one enterprise.
(iii) Each Material Subsidiary that is a corporation is duly
incorporated, validly existing and in good standing under the laws of the
jurisdiction of its incorporation, with corporate power and authority under
such laws to own, lease and operate its properties and conduct its
business. Each Material Subsidiary that is a partnership is duly organized
under the laws of the jurisdiction of its organization.
(iv) The number of authorized shares of capital stock of the Company
is as set forth in the Company Prospectus under the heading
"Capitalization".
(v) All of the outstanding shares of capital stock of each Material
Subsidiary that is a corporation have been duly authorized and validly
issued and are fully paid and nonassessable; except as set forth on
Schedules II and III to this Agreement or as disclosed in or as
contemplated by the Company Prospectus, all of such shares are owned by the
Company, directly or through one or more subsidiaries, free and clear of
any material pledge, lien, security interest, charge, claim, equity or
encumbrance of any kind; no holder thereof is subject to personal liability
under the certificate of incorporation or by-laws of the respective
Material Subsidiary or the corporation law of the jurisdiction in which
such Material Subsidiary is organized by reason of being such a holder and
none of such shares was issued in violation of the preemptive rights of any
stockholder of such Material Subsidiary under the certificate of
incorporation or by-laws of such Material Subsidiary or the corporation law
of the jurisdiction in which such Material Subsidiary is organized.
(vi) To such counsel's knowledge, there are no legal or governmental
proceedings pending or threatened to which the Company or any of its
23
subsidiaries is or may be a party, or of which any of their properties are or
may be the subject, of a character which are required to be disclosed in the
Company Registration Statement, the Company Prospectus, the 2000 Form 10-K or
any Form 10-Q of the Company, other than those disclosed therein or in any
amendments thereto.
(vii) The documents incorporated by reference in the Company Prospectus
or any further amendment or supplement thereto made by the Company prior to the
Closing Date (other than the financial statements and related schedules therein
and any untrue statement or omission of a material fact contained therein which
was corrected in the Company Prospectus, as to which such counsel need express
no opinion), when they become effective or were filed with the Commission, as
the case may be, complied as to form in all material respects with the
requirements of the Exchange Act and the rules and regulations of the Commission
thereunder; and he has no reason to believe that such documents, considered
together, as of the date of the Company Prospectus or as of the Closing Date,
contained or contain an untrue statement of a material fact or omitted 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.
(viii) Such counsel does not know of any contracts or documents of a
character required to be described or referred to in the Company Registration
Statement or the Company Prospectus or to be filed as exhibits to the Company
Registration Statement that are not described, referred to or filed as required.
(ix) To the knowledge of such counsel, no default exists in the
performance or observance of any material obligation, agreement, covenant or
condition contained in any contract, indenture, loan agreement, note, lease or
other agreement or instrument that is described or referred to in the Company
Registration Statement or the Company Prospectus or filed as an exhibit to the
Company Registration Statement or any subsequent Form 10-Q of the Company, which
default would have a material adverse effect on the financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, considered as one enterprise.
(x) The execution and delivery by the Company of this Agreement and the
compliance by the Company with its obligations under this Agreement, will not
conflict with the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument (including any franchise agreement, license, permit or other
governmental authorization granted by the FCC, The New York State Public Service
Commission on Cable Television or any other federal or New York State governing
body having jurisdiction over the Company's cable television operations) known
to such counsel to which the Company or any Subsidiary is a party or by which
the Company or any Subsidiary is bound or to which any of the
24
property or assets of the Company or any Subsidiary is subject, which
conflict, breach, violation or default would have a material adverse
effect on the financial position, stockholders' equity or results of
operations of the Company and its subsidiaries, taken as a whole, nor
will such action result in any violation of the provisions of the
Certificate of Incorporation or By-laws of the Company or any federal,
New York or Delaware General Corporation Law statute or any order,
rule or regulation known to such counsel of any federal, New York or
Delaware court or governmental agency or body having jurisdiction over
the Company or any Subsidiary or any of their properties, which
violation in each case would have a material adverse effect on the
financial position, stockholders' equity or results of operations of
the Company and its subsidiaries, taken as a whole; and no consent,
approval, authorization, order, registration or qualification of or
with any such court or governmental agency or body is required for the
consummation by the Company of the transactions contemplated by this
Agreement, except with respect to such consents, approvals,
authorizations, registrations or qualifications as may be required
under state or foreign securities laws in connection with the purchase
and distribution of the Equity Trust Securities by the Underwriters or
the distribution of Shares pursuant to the terms of the Equity Trust
Securities.
(xi) All of the outstanding shares of capital stock of the
Company have been duly authorized and validly issued and are fully
paid and non-assessable; and none of the outstanding shares of capital
stock of the Company was issued in violation of the preemptive rights
of any stockholder of the Company under the Company's Certificate of
Incorporation or By-laws or the Delaware General Corporation Law.
In rendering such opinion, such counsel may state that he expresses no opinion
as to any matters governed by any jurisdiction other than the federal laws of
the United States (other than federal communications laws, as to which such
counsel need express no opinion), the laws of the State of New York and General
Corporation Law of the State of Delaware. In giving such opinion, such counsel
may rely, as to all matters governed by the laws of any other jurisdiction, upon
opinions of other counsel, who shall be counsel satisfactory to counsel for the
Underwriters, in which case the opinion shall state that he believes the
Underwriters and he are entitled to so rely. Such counsel may also state that,
insofar as such opinion involves factual matters, he has relied upon
certificates of officers of the Company and the Subsidiaries and certificates of
public officials.
(f) The Underwriters shall have received a signed opinion of Mintz, Levin,
Cohn, Ferris, Glovsky and Popeo, P.C., as special communications counsel to the
Company, dated as of the Closing Date, in form and substance satisfactory to
counsel to the Underwriters, to the effect that:
(i) The approvals, if any, required to be obtained from the FCC
to consummate the transactions contemplated by this Agreement have
been obtained and are in full force and effect.
25
(ii) Such counsel does not know of any federal communications
and copyright statutes that are principally directed to the regulation
of cable properties applicable to the Company that are not described
in the Company Prospectus but would be material and relevant to the
business of the Company, and the descriptions in the Company
Prospectus of such statutes therein described are accurate and fairly
summarize the information shown.
(iii) The information in the Company Registration Statement and
Company Prospectus under the captions "Risk Factors -- Our business is
subject to extensive government regulations and changes in current or
future laws or regulations could restrict our ability to operate our
business as we currently do", "Risk Factors -- Recent FCC and
Congressional issues may effect our business", "Risk Factors -- The
Rainbow Media Group's business is limited indirectly by regulatory
restraints" and "Risk Factors -- Our financial performance may be
harmed by the significant and credible risk of competition in our
cable television business" and in the 2000 Form 10-K under the
captions "Business -- Competition -- Cable Television", "Business --
Regulation -- Cable Television" and "Business -- Regulation --
Programming and Entertainment", to the extent that such sections
describe statutes, regulations and governmental proceedings or matters
involving federal communications and copyright law and policy and the
impact thereof on the business in which the Company and its
subsidiaries are engaged, has been reviewed by them and fairly
represents the communications and copyright law described therein
applicable to the Company and its subsidiaries as disclosed in the
Company Prospectus and material and relevant to the business of the
Company and its subsidiaries.
In giving such opinion, such counsel may rely, as to all matters governed
by the laws of jurisdictions other than the law of the District of Columbia,
the federal law of the United States and the corporate law of the State of
Delaware, upon opinions of other counsel, who shall be counsel satisfactory to
counsel for the Underwriters, in which case the opinion shall state that they
believe the Underwriters and they are entitled to so rely. Such counsel may
also state that, insofar as such opinion involves factual matters, they have
relied, to the extent they deem proper, upon certificates of officers of the
Company and the Subsidiaries and certificates of public officials.
(g) Counterparties shall have caused Xxxxx Xxxx & Xxxxxxxx, counsel
for Counterparties and AT&T, to have furnished to the Underwriters its
opinion dated the Closing Date and addressed to the Underwriters, to the
effect that:
(i) Each of the Counterparties and AT&T is duly incorporated
and is validly existing as a corporation in good standing under the
laws of the jurisdiction in which it is chartered or organized, with
full power to own its property;
(ii) This Agreement has been duly authorized, executed and
delivered by each Counterparty and AT&T; the Contracts, the
Collateral Agreements and
26
the Reimbursement Agreement have been duly authorized, executed and
delivered by Counterparties and assuming due authorization, execution
and delivery by the other parties thereto, constitute valid and
legally binding agreements of Counterparties; each Counterparty has
corporate power and authority to sell, transfer and deliver Shares in
connection with the offering of the Equity Trust Securities in the
manner provided in this Agreement and the Contracts;
(iii) Each Counterparty is not, and after giving effect to the
distribution of the Shares in connection with the offering of the
Equity Trust Securities and the application of the proceeds thereof,
will not be, an "investment company" as defined in the Investment
Company Act;
(iv) Each Collateral Agreement creates a valid security interest
in favor of the Collateral Agent (as defined therein) for the benefit
of the Trust in the Shares pledged thereunder as security for the
performance by the applicable Counterparty of its obligations under
its respective Contract and to secure the observance and performance
of the covenants and agreements of such Counterparty contained in its
respective Contract and Collateral Agreement;
(v) Each of (i) the execution and delivery by the
Counterparties and AT&T of this Agreement, their respective Contracts
and Collateral Agreements and the Reimbursement Agreement, the
performance by the Counterparties of their respective obligations
thereunder and the consummation of the transactions therein
contemplated, including the pledge by the Counterparties to the Trust
of a security interest in the Shares pursuant to the Collateral
Agreement, (ii) following an Acceleration Event (as defined in the
Contracts), any action by the Collateral Agent to foreclose on the
Shares and deliver the Shares to the Trust, and any action by the
Trust to distribute the Shares to the holders of the Equity Trust
Securities pursuant to the terms of the Trust Agreement, and (iii) if
the Counterparties do not elect the Cash Delivery Option or elect the
Cash Delivery Option but fail thereafter to deliver cash as required
by the Contracts, any action by the Collateral Agent to deliver the
Shares to the Trust or by the Trust to distribute the Shares to the
holders of the Equity Trust Securities pursuant to the terms of the
Trust Agreement and the Collateral Agreements, does not and will not,
whether with or without the giving of notice or passage of time or
both, conflict with, result in a breach or violation of the
Stockholders Agreement and upon the occurrence of the any of the
events listed in clauses (ii) and (iii) above, the Shares referred to
in such clauses will be free and clear of any restriction imposed on
the Shares by the Stockholders Agreement; and
(vi) no consent, approval, authorization, filing with or order
of any court or governmental agency or body is required for the
consummation by Counterparty of the transactions contemplated herein,
except such as may have been obtained under the Act and such as may be
required under the blue sky laws of any jurisdiction in connection
with the purchase and distribution of the Equity Trust Securities by
the Underwriters and the distribution of the Shares pursuant to
27
the terms of the Equity Trust Securities in the manner contemplated in
this Agreement and in the Trust Prospectus and the Company Prospectus;
(h) The Underwriters shall have received (i) from Cleary, Gottlieb, Xxxxx &
Xxxxxxxx, counsel for the Underwriters and the Trust, such opinion or opinions,
dated the Closing Date and addressed to the Underwriters, with respect to the
issuance and sale of the Equity Trust Securities, the Trust Registration
Statement, the Trust Prospectus (together with any supplement thereto), the
Fundamental Agreements and other related matters as the Underwriters may
reasonably require, and (ii) from Shearman & Sterling, counsel for the
Underwriters, a negative assurance letter dated the Closing Date and addressed
to the Underwriters, with respect to the Company Registration Statement, the
Company Prospectus (together with any supplement thereto) and other related
matters as the Underwriters may reasonably require, and the Company shall have
furnished to such counsel such documents as they reasonably request for the
purpose of enabling them to pass upon such matters.
(i) The Trust shall have furnished to the Underwriters a certificate of the
Trust, signed by the Managing Trustee and dated the Closing Date, to the effect
that:
(i) the representations and warranties of the Trust 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 Trust has complied in all material respects with all of the
agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to the Closing Date (such
certificate to set forth all known failures to comply with such
agreements or satisfy such conditions whether such known failures are
material or immaterial); and
(ii) no stop order suspending the effectiveness of the Trust
Registration Statement or the use of the Trust Prospectus has been
issued and to the Trust's knowledge after due inquiry, no proceedings
for that purpose have been instituted or, to the Trust's knowledge,
threatened.
(j) At the Closing Time, (i) the Company Registration Statement and the
Company Prospectus, as they may then be amended or supplemented, shall contain
all statements that are required to be stated therein under the Act and, in all
material respects, shall conform to the requirements of the Act and neither the
Company Registration Statement nor the Company Prospectus, as they may then be
amended or supplemented, shall 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, (ii) there shall not have been, since the
respective dates as of which information is given in the Company Registration
Statement, any material adverse change or any development involving a
prospective material adverse change in or affecting the financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, considered as one enterprise, (iii) the Company shall have
complied with all agreements and satisfied all conditions on its part to be
performed or satisfied at or prior to the Closing Time and (iv) the other
representations and warranties of the Company set forth
28
in Section 2 shall be accurate as though expressly made at and as of the Closing
Time. At the Closing Time, the Underwriters shall have received a certificate of
the Chief Executive Officer, the President, a Vice Chairman or a Vice President,
and the Treasurer or Controller, of the Company, dated as of the Closing Time,
to such effect.
(k) Each Counterparty shall have furnished to the Underwriters a
certificate, dated the Closing Date, to the effect that the representations and
warranties of such Counterparty in this Agreement are true and correct in all
material respects on and as of the Closing Date to the same effect as if made on
the Closing Date and such Counterparty has complied in all material respect with
all the agreements and satisfied in all material respect all the conditions on
its part to be performed or satisfied at or prior to the Closing Date (such
certificate to set forth all known failures to comply with such agreements or
satisfy such conditions whether such known failures are material or immaterial).
(l) The Underwriters shall have received from KPMG LLP (i) at the time of
execution of this Agreement, a letter dated the date hereof and delivered in
accordance with Statement on Auditing Standards No. 72, as amended, in form and
substance satisfactory to the Underwriters and (ii) at the Closing Date, a
letter, dated as of the Closing Date, to the effect that KPMG LLP reaffirms the
statements made in the letter furnished pursuant to Section 10(l)(i) hereof,
except that the specified date referred to shall be a date not more than five
business days prior to the Closing Date.
(m) The Equity Trust Securities shall have been approved for listing on the
NYSE, subject only to official notice of issuance.
(n) Subsequent to the Execution Time or, if earlier, the dates as of which
information is given in the Company Registration Statement (exclusive of any
amendment thereof) and the Company Prospectus (exclusive of any supplement
thereto), there shall not have been any change, or any development involving a
prospective change, in or affecting the condition (financial or otherwise),
earnings, business or properties of the Company and the Subsidiaries taken as a
whole, whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Company Prospectus
(exclusive of any supplement thereto) the effect of which is, in the judgment of
the Underwriters, so material and adverse as to make it impractical or
inadvisable to proceed with the offering or delivery of the Equity Trust
Securities as contemplated by the Trust Registration Statement and the Company
Registration Statement (in either case, exclusive of any amendment thereof) and
the Trust Prospectus and the Company Prospectus (in either case, exclusive of
any supplement thereto).
(o) the NASD shall not have raised any objection with respect to the
fairness and reasonableness of the underwriting terms and arrangements.
(p) Each Fundamental Agreement shall have been executed and delivered by
all parties thereto, and Counterparties shall have delivered to the Collateral
Agent the number of Shares required by the Collateral Agreement to be initially
pledged and
29
assigned by each Counterparty in accordance with the requirements of its
Collateral Agreement.
(q) Prior to the Closing Date, the Underwriters shall have received an
agreement substantially in the form of Exhibit A hereto signed by the
persons listed on Schedule IV hereto.
(r) Prior to the Closing Date, counsel for the Underwriters shall have
been furnished with all such documents, certificates and opinions as they
may reasonably request for the purpose of enabling them to pass upon the
sale of the Shares as herein contemplated and the matters referred to in
Section 10(h) and in order to evidence the accuracy and completeness of any
of the representations, warranties or statements of the Company, the Trust,
AT&T, and the Counterparties, the performance of any of the covenants of
the Company, the Trust, AT&T, and the Counterparties, or the fulfillment of
any of the conditions herein contained.
If any of the conditions specified in this Section 10 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 Underwriters and counsel for the 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 Underwriters. Notice of such
cancellation shall be given to the Trust, the Company and Counterparty in
writing or by telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 10 shall be
delivered to Shearman & Sterling, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, attention of Xxxxxxxx Xxxxxx, Esq., on the Closing Date.
11. Expenses. Counterparties will pay all expenses incident to the
performance by the Trust and their obligations under this Agreement and the
Contracts and Collateral Agreements, including (i) the preparation, printing and
filing of the Notification and the Trust Registration Statement (including
financial statements and exhibits) as originally filed and of each amendment
thereto, (ii) the preparation, printing and delivery of this Agreement, the
Trust Agreement, each of the Fundamental Agreements and such other documents as
may be required in connection with the offering, purchase, sale, issuance or
delivery of the Equity Trust Securities, (iii) the preparation, issuance and
delivery of the certificates for the Equity Trust Securities to the
Underwriters, (iv) the fees and disbursements of the Trust's counsel,
accountants and other advisors, (v) the fees and disbursements of
Counterparties' counsel and other advisors, (vi) the qualification of the Equity
Trust Securities under state securities laws in accordance with the provisions
of Section 7(d) hereof, including filing fees and the reasonable fees and
disbursements of the counsel for the Underwriters in connection therewith and in
connection with the preparation of the related blue sky survey and any
supplement thereto, (vii) the printing and delivery to the Underwriters of
copies of each Preliminary Trust Prospectus, the Trust Prospectus and any
amendments or supplements thereto, (viii) the fees and expenses of any transfer
agent or registrar for the Equity Trust Securities, (ix) the filing fees
incident to, and the
30
reasonable fees and disbursements of counsel to the Underwriters in connection
with, securing any required review by the NASD of the Trust Registration
Statement and the offering of the Equity Trust Securities in accordance with the
provisions of Section 7(d) hereof, (x) the fees and expenses incurred in
connection with the listing of the Equity Trust Securities on the NYSE and (xi)
the fees and expenses incurred in connection with the preparation and filing of
a registration statement under the Exchange Act relating to the Equity Trust
Securities. Counterparties will reimburse the Underwriters through Xxxxxxx Xxxxx
Barney on the Closing Date in immediately available funds for the Up-Front Fee
Amount and the Up-Front Expense Amount (each as defined in the Fund Expense
Agreement dated as of the Closing Date between Xxxxxxx Xxxxx Xxxxxx and BoNY)
and for the up-front fees of the trustees of the Trust paid by Xxxxxxx Xxxxx
Barney.
(b) Counterparties will pay all expenses incident to the performance by the
Company of its obligations under this Agreement, including (i) the preparation,
printing and filing of the Company Registration Statement (including financial
statements and exhibits) as originally filed and of each amendment thereto, (ii)
the preparation, issuance and delivery of the certificates for the Shares to the
Trust, (iii) the fees and disbursements of the Company's counsel, accountants
and other advisors, (iv) the qualification of the Shares under state securities
laws in accordance with the provisions of Section 8(e) hereof, including filing
fees and the reasonable fees and disbursements of counsel for the Underwriters
in connection therewith and in connection with the preparation of any related
blue sky survey and any supplement thereto, (v) the printing and delivery to the
Underwriters of copies of each Preliminary Company Prospectus, the Company
Prospectus and any amendments or supplements thereto, (vi) the fees and expenses
of any transfer agent or registrar for the Shares, (vii) the filing fees
incident to, and the reasonable fees and disbursements of counsel to the
Underwriters in connection with, securing any required review by the NASD of the
Company Registration Statement and the offering of the Shares in accordance with
the provisions of Section 8(e) hereof and (viii) the fees and expenses incurred
in connection with the approval of the Shares for trading on the New York Stock
Exchange.
(c) If the sale of the Equity Trust Securities provided for herein is not
consummated because any condition to the obligations of the Underwriters set
forth in Section 10 hereof is not satisfied, because of any refusal, inability
or failure on the part of the Company or Counterparties to perform any agreement
herein or comply with any provision hereof other than by reason of a default by
the Underwriters, Counterparties will reimburse the Underwriters through Xxxxxxx
Xxxxx Xxxxxx upon demand for all out-of-pocket expenses (including reasonable
fees and disbursements of counsel) that shall have been incurred by the
Underwriters in connection with the proposed purchase and sale of the Equity
Trust Securities.
(d) The provisions of this Section 11 shall not supersede or otherwise
affect any agreement that the Company, on the one hand, and Counterparties or
AT&T Broadband LLC, on the other hand, may otherwise have for the allocation of
such expenses among themselves.
31
12. Indemnification. The Company agrees to indemnify and hold harmless the
Trust, each of the Trustees, each Underwriter and each person, if any, who
controls the Trust or any Underwriter within the meaning of Section 15 of the
act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of an untrue statement or alleged
untrue statement of a material fact contained in the Company Registration
Statement (or any amendment thereto), including all documents incorporated
therein by reference, or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to make the
statements therein not misleading or arising out of an untrue statement or
alleged untrue statement of a material fact included in any Preliminary
Company Prospectus or the Company Prospectus (or any amendment or
supplement thereto) or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, if such settlement is effected with
the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred (including
fees and disbursements of counsel chosen by the Underwriters), reasonably
incurred in investigating, preparing or defending against any litigation,
or investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or omission, to
the extent that any such expense is not paid under subparagraph (i) or (ii)
above;
provided, however, that this indemnity agreement does not apply to any loss,
liability, claim, damage or expense to the extent arising out of an untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by (i)
any Underwriter expressly for use in the Company Registration Statement (or any
amendment thereto), or any Preliminary Company Prospectus or the Company
Prospectus (or any amendment or supplement thereto), (ii) the Counterparties or
AT&T, or on behalf of the Counterparties or AT&T, expressly for use in the
Company Registration Statement (or any amendment thereto), or any Preliminary
Company Prospectus or the Company Prospectus (or any amendment or supplement
thereto) or (iii) the Trust, or on behalf of the Trust, expressly for use in the
Company Registration statement (or any amendment thereto), or any Preliminary
Company Prospectus or the Company Prospectus (or any amendment or supplement
thereto).
The foregoing indemnity with respect to any untrue statement contained in
or any omission from any Preliminary Company Prospectus, shall not inure to the
benefit of any
32
Underwriter (or any person controlling such Underwriter) on account of any loss,
claim, damage, liability or litigation arising from the sale of Equity Trust
Securities to any person by such Underwriter if such Underwriter failed to send
or give a copy of the Preliminary Company Prospectus, as the same may be
supplemented or amended, to such person within the time required by the Act, and
the untrue statement or alleged untrue statement or omission or alleged omission
of a material fact in such preliminary prospectus was corrected in the Company
Prospectus, unless such failure resulted from noncompliance by the Company with
its obligations hereunder to furnish the Underwriters with copies of the Company
Prospectus.
(b) The Counterparties severally agree to indemnify and hold harmless the
Trust, each of the Trustees, the Company, each Underwriter and each person, if
any, who controls the Trust or any Underwriter within the meaning of Section 15
of the Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of (A) an untrue statement or alleged
untrue statement of a material fact contained in the Trust Registration
Statement (or any amendment thereto), including all documents incorporated
therein by reference, or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to make the
statements therein not misleading; (B) an untrue statement or alleged
untrue statement of a material fact included in any Preliminary Trust
Prospectus or the Trust Prospectus (or any amendment or supplement
thereto), or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading and (C) an untrue
statement or alleged untrue statement of material fact contained in any
information furnished to the Company by or on behalf of the Trust, the
Counterparties or AT&T in the Company Registration Statement or the Company
Prospectus relating to the Trust, the Counterparties or AT&T or the
offering of the Equity Trust Securities, or the omission or alleged
omission therefrom of a material fact required to be stated in such
information or necessary to make the statements in such information (with
respect to the Company Prospectus, in light of the circumstances under
which they were made) not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, if any such settlement is effected
with the written consent of the Counterparties; and
(iii) against any and all expense whatsoever, as incurred (including
fees and disbursements of counsel chosen by the Underwriters), reasonably
incurred in investigating, preparing or defending against any litigation,
or investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any
33
such alleged untrue statement or omission, to the extent that any such
expense is not paid under subparagraph (i) or (ii) above;
The foregoing indemnity with respect to any untrue statement contained in
or any omission from Preliminary Trust Prospectus, shall not inure to the
benefit of any Underwriter (or any person controlling such Underwriter) on
account of any loss, claim, damage, liability or litigation arising from the
sale of Equity Trust Securities to any person by such Underwriter if such
Underwriter failed to send or give a copy of such Preliminary Trust Prospectus,
as the same may be supplemented or amended, to such person within the time
required by the Act, and the untrue statement or alleged untrue statement or
omission or alleged omission of a material fact in such preliminary prospectus
was corrected in the Trust Prospectus, unless such failure resulted from
noncompliance by the Trust with its obligations hereunder to furnish the
Underwriters with copies of the Trust Prospectus.
(c) Each Underwriter severally and not jointly agrees to indemnify and
hold harmless to the Company, each Counterparty, the directors of the Company,
officers of the Company who signed the Company Registration Statement, and each
person, if any, who controls the Company or the Counterparties within the
meaning of Section 15 of the Act, against any and all loss, liability, claim,
damage and expense described in the indemnity agreement in Section 12(a), as
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Company Registration Statement (or
any amendment thereto), any Preliminary Company Prospectus or in the Company
Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Company by such Underwriter
expressly for use in the Company Registration Statement (or any amendment
thereto), or such Preliminary Company Prospectus or the Company Prospectus (or
any amendment or supplement thereto).
(d) Each Underwriter severally and not jointly agrees to indemnify and
hold harmless the Counterparties, the directors, officers, employees and agents
of the Counterparties, and each person, if any, who controls the Counterparties
within the meaning of Section 15 of the Act, against any and all loss,
liability, claim, damage and expense described in the indemnity agreement in
Section 12(b), as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Trust
Registration Statement (or any amendment thereto), any Preliminary Trust
Prospectus or in the Trust Prospectus (or any amendment or supplement thereto)
in reliance upon and in conformity with written information furnished to the
Counterparties by such Underwriter expressly for use in the Trust Registration
Statement (or any amendment thereto), or such Preliminary Trust Prospectus or
the Trust Prospectus (or any amendment or supplement thereto).
(e) Each indemnified party shall give prompt notice to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve it from any liability which it may have otherwise than
on account of this indemnity agreement. An indemnifying party may participate at
its own expense in the defense of such action; provided, however, that counsel
to the indemnifying party shall not (except with the consent of the indemnified
party) also be counsel to the indemnified party. In no event shall the
indemnifying party or parties be liable for the fees
34
and expenses of more than one counsel for all indemnified parties in connection
with any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances.
(f) The provisions of this Section 12 shall not affect any agreement
between the Company, on the one hand, and the Counterparties, AT&T or AT&T
Broadband LLC, on the other hand, with respect to indemnification.
13. Contribution.
(a) In order to provide for just and equitable contribution in
circumstances under which the indemnity provided for in paragraph (a) or (c) of
Section 12 is for any reason held to be unenforceable by the indemnified parties
although applicable in accordance with its terms, the Company, the
Counterparties and the Underwriters shall contribute to the aggregate losses,
liabilities, claims, damages and expenses of the nature contemplated by such
indemnity incurred by the Company and one or more of the Underwriters, as
incurred, in such proportions that the Underwriters are responsible for that
portion represented by the percentage that the sales load hereunder with respect
to the offering of the Equity Trust Securities bears to the purchase price of
the Equity Trust Securities, and the Company, AT&T and the Counterparties are
responsible for the balance on a pro rata basis; provided, however, that 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.
(b) In order to provide for just and equitable contribution in
circumstances under which the indemnity provided for in paragraph (b) or (d) of
Section 12 is for any reason held to be unenforceable by the indemnified parties
although applicable in accordance with its terms, Counterparties and the
Underwriters shall contribute to the aggregate losses, liabilities, claims,
damages and expenses of the nature contemplated by such indemnity incurred by
the Counterparties and one or more of the Underwriters, as incurred, in such
proportions that the Underwriters are responsible for that portion represented
by the percentage that the sales load hereunder with respect to the offering of
the Equity Trust Securities bears to the purchase price of the Equity Trust
Securities, and the Counterparties are responsible for the balance on a pro rata
basis; provided, however, that 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.
(c) The contribution provisions contained in this Section 13 shall not
affect any agreement between the Company, on the one hand, and the
Counterparties, AT&T or AT&T Broadband LLC on the other hand, with respect to
contribution.
(d) For purposes of this Section, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the Act shall have the same
rights to contribution as such Underwriter, and each director or officer of the
Company or the Selling Stockholders and each person, if any, who controls the
Company or the Counterparties within the meaning of Section 15 of the Act shall
have the same rights to contribution as the Company and the Counterparties,
respectively.
35
14. Default by an Underwriter. If any one or more Underwriters shall fail
to purchase and pay for any of the Equity Trust 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 Equity Trust Securities set forth opposite their names in Schedule I hereto
bears to the aggregate amount of Equity Trust Securities set forth opposite the
names of all the remaining Underwriters) the Equity Trust Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase; provided,
however, that in the event that the aggregate amount of Equity Trust Securities
which the defaulting Underwriter or Underwriters agreed but failed to purchase
shall exceed 10% of the aggregate amount of Equity Trust Securities set forth in
Schedule I hereto, the remaining Underwriters shall have the right to purchase
all, but shall not be under any obligation to purchase any, of the Equity Trust
Securities, and if such nondefaulting Underwriters do not purchase all the
Equity Trust Securities, then the Company shall have 36 hours within which it
may, but it is not obligated, to find one or more substitute underwriters
satisfactory to the Underwriters to purchase such Securities upon the terms set
forth in this Agreement and if the Company is unable to find one or more such
underwriters that are satisfactory to the Underwriters, this Agreement will
terminate without liability to any nondefaulting Underwriter, the Company, or
Counterparty. In the event of a default by any Underwriter as set forth in this
Section 14, the Closing Date shall be postponed for such period, not exceeding
five Business Days, as the Underwriters shall determine in order that the
required changes in the Company Registration Statement, the Company Prospectus,
the Trust Registration Statement and the Trust 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, Counterparties and any nondefaulting Underwriter for damages occasioned
by its default hereunder.
15. Termination. The Underwriters may terminate this Agreement, by notice
to the Company and the Counterparties, at any time at or prior to the Closing
Time (i) if trading in securities of the Company or generally on the New York
Stock Exchange shall have been materially suspended or materially limited or
minimum prices shall have been established on such Exchange (which shall not
include trading suspensions or limitations resulting from the operation of
General Rules 80A and 80B of such Exchange, as amended or supplemented), or (ii)
a banking moratorium shall have been declared by either federal or New York
State authorities, or (iii) the United States shall have become engaged in
hostilities which have resulted in the declaration of war, or there shall have
occurred any other calamity or crisis, the effect of which (in either event) on
the financial markets of the United States is such as to make it, in the
reasonable judgment of the Underwriters, impracticable or inadvisable to proceed
with the offering or delivery of the Equity Trust Securities on the terms and in
the manner contemplated in the Trust Prospectus.
16. Representations and Indemnities to Survive. The respective agreements,
representations, warranties, indemnities and other statements of the Trust, the
Company, Counterparties or their respective officers, if applicable, 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, the Trust, the Company, AT&T, the
36
Counterparties or any of the officers, directors or controlling persons referred
to in Section 12 hereof, and will survive delivery of and payment for the Equity
Trust Securities. The provisions of Sections 11, 12, 13 and 18 hereof shall
survive the termination or cancellation of this Agreement.
17. Guarantee of AT&T. AT&T agrees to guarantee full payment and complete
performance of any and all obligations of the Counterparties under this
Agreement.
18. Notices. All communications hereunder will be in writing and effective
only on receipt, and, if sent to the Underwriters, will be mailed, delivered or
telefaxed to Xxxxxxx Xxxxx Barney Inc., General Counsel (fax no.: (212) 3695)
and confirmed to the General Counsel, care of Xxxxxxx Xxxxx Xxxxxx Inc., at 000
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, attention: Xxxxxx Xxxxxxxxxx; if
sent to the Trust, will be mailed, delivered, or telefaxed and confirmed to it
c/o Puglisi & Associates, 000 Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx 00000,
Attention: Xxxxxx X. Xxxxxxx; if sent to the Company, will be mailed, delivered
or telefaxed and confirmed to it at Cablevision Systems Corporation, 000 Xxxxxxx
Xxxxxx, Xxxxxxxx, Xxx Xxxx 00000, attention of Xxxxxx X. Xxxxx, Esq., Vice
Chairman, Secretary and General Counsel, with a copy to Xxxxxxxx & Xxxxxxxx, 000
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, attention of Xxxx X. Xxxx, Esq.; or if
sent to Counterparties or AT&T shall be directed to AT&T Corp., #000 Xxxxx Xxxxx
Xxxxxx, Xxxxxxx Xxxxx, XX 00000, attention of Xxxxxx Xxxxx.
19. 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 12 hereof, and no other
person will have any right or obligation hereunder.
20. Applicable Law. This agreement will be governed by and construed in
accordance with the laws of the State of New York applicable to contracts made
and to be performed within the State of New York.
21. Counterparts. This Agreement may be executed by any one or more of the
parties in any number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one and the same
agreement.
22. Headings. The section headings used herein are for convenience only and
shall not affect the construction hereof.
23. Definitions. The terms which follow, when used in this Agreement, shall
have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended, and the rules and
regulations of the Commission promulgated thereunder.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in New York City.
37
"Commission" shall mean the Securities and Exchange Commission.
"Company Prospectus" shall mean the prospectus relating to the Shares that
is used in connection with the offering and sale of the Equity Trust Securities
and that is first filed pursuant to Rule 424(b) after the Execution Time or, if
no filing pursuant to Rule 424(b) is required, shall mean the form of final
prospectus relating to the Shares that is used in connection with such offering
and sale and that is included in the Company Registration Statement at the
Company Effective Date.
"Company Registration Statement" shall mean the registration statement
referred to in Section 2(a) above including incorporated documents, exhibits
and financial statements, as amended at the Execution Time (or, if not
effective at the Execution Time, in the form in which it shall become
effective) and, in the event any post-effective amendment thereto or any Rule
462(b) Company Registration Statement becomes effective prior to the Closing
Date, shall also mean such registration statement as so amended or such Rule
462(b) Company Registration Statement, as the case may be.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the Commission promulgated thereunder.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto.
"Investment Company Act" shall mean the Investment Company Act of 1940, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"Organizational Documents" shall mean, in respect of any company,
corporation, trust, partnership, limited liability company, governmental agency
or other enterprise, as applicable, its founding act, charter, articles of
incorporation and by-laws, deed to trust, memorandum and articles of
association, statute, certificate of partnership, partnership agreement,
limited liability company agreement, or similar instrument.
"Preliminary Company Prospectus" shall mean any preliminary prospectus
relating to the Shares referred to in Section 2(a) and any preliminary
prospectus included in the Company Registration Statement at the Company
Effective Date that omits Rule 430A Information.
"Preliminary Trust Prospectus" shall mean any preliminary prospectus
referred to in Section 1(a) above and any preliminary prospectus included in
the Trust Registration Statement at the Trust Effective Date that omits Rule
430A Information.
"Rule 415," "Rule 424," "Rule 430A," "Rule 462," "Rule 497(h),"
"Regulation S-K" and "Regulation S-X" refer to such rules and regulations under
the Act.
"Rule 430A Information" shall mean information with respect to the Equity
Trust Securities, the Shares and the offering thereof permitted to be omitted
from the Trust Registration Statement (or, as used in Section 2 above, the
Company Registration Statement) when it becomes effective pursuant to Rule 430A.
38
"Rule 462(b) Company Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b) relating to
the offering covered by the initial registration statement referred to in
Section 2(a) above.
"Rule 462(b) Trust Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b) relating to
the offering covered by the initial registration statement referred to in
Section 1(a) above.
"Trust Effective Date" shall mean each date and time that the Trust
Registration Statement, any post-effective amendment or amendments thereto and
any Rule 462(b) Trust Registration Statement became or become effective.
"Trust Prospectus" shall mean the prospectus relating to the Equity Trust
Securities that is first filed pursuant to Rule 497(h) after the Execution Time
or, if no filing pursuant to Rule 497(h) is required, shall mean the form of
final prospectus relating to the Equity Trust Securities included in the Trust
Registration Statement at the Trust Effective Date.
"Trust Registration Statement" shall mean the registration statement
referred to in paragraph 1(a) above, including exhibits and financial
statements, as amended at the Execution Time (or, if not effective at the
Execution Time, in the form in which it shall become effective) and, in the
event any post-effective amendment thereto or any Rule 462(b) Trust Registration
Statement becomes effective prior to the Closing Date, shall also mean such
registration statement as so amended or such Rule 462(b) Trust Registration
Statement, as the case may be. Such term shall include any Rule 430A Information
deemed to be included therein at the Trust Effective Date as provided by Rule
430A.
As used herein, the terms "Trust Registration Statement," "Preliminary
Trust Prospectus" and "Trust Prospectus" shall not include the Company
Prospectus attached thereto.
As used herein, the terms "Company Registration Statement", "Preliminary
Company Prospectus", and "Company Prospectus" shall not include the Trust
Registration Statement, Preliminary Trust Prospectus or Trust Prospectus.
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
39
represent a binding agreement among the Trust, the Company, Counterparties and
the several Underwriters.
40
SCHEDULE I
Number of Underwritten
Equity Trust Securities to be
Purchased
Underwriters
Banc of America Securities LLC
Xxxxxxx Xxxxx Xxxxxx Inc.
Bear, Xxxxxxx & Co. Inc.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Total 8,514,206
---------
41
SCHEDULE II
RESTRICTED SUBSIDIARIES
(* - material subsidiary)
AC Productions West, Inc.
AC Productions, Inc.
ACEP LLC
American Catholic Enterprises At The Movies Productions East LLC
American Catholic Enterprises Chat Productions East LLC
American Catholic Enterprises Hub Productions East LLC
American Catholic Enterprises Masters Productions East LLC
American Catholic Enterprises News Productions East LLC
American Catholic Enterprises Productions East LLC
American Catholic Enterprises Studios Productions East LLC
American Catholic LLC
AMC II Holding Corporation(1)
AMC Productions, Inc.(1)
American Movie Classics Company(1)
American Movie Classics Holding Corporation(1)
American Pop, LLC
American Sports Classics, L.L.C.
BirdSight LLC
BirdSight Productions LLC
Bravo Acquisition Company LLC
Bravo Company
Bravo Holding Corporation
Bravo II Holding Corporation
Bravo Programming, Inc.
Cable Networks, Inc.
CSC Sterling Holdings, LLC
Foxwatch Productions, Inc.
Garden Programming, L.L.C.
IFC Entertainment LLC
IFC Films LLC
IFC Productions I L.L.C.
IFC Theatres, LLC
*Madison Square Garden, L.P.(2)
Madison Square Garden CT, LLC
Maximum Science LLC
Maximum Science Productions LLC
Metro Channel, L.L.C.
Metro Channel Holdings I, LLC
Metro Channel Holdings II, LLC
1
Metro Channel Productions, LLC
MSG Aircraft Leasing, LLC
MSG Boxing, LLC
MSG Eden Corporation
MSG Flight Operations, LLC
MSG/TJF Scarlet Productions, LLC
MuchMusic U.S.A. Venture
National Advertising Partners
National PSNA Holdings I, LLC
National PSNA Holdings II, LLC
National Sports Partners
News 00.xxx, Inc. (f/k/a Neighborhood News Holdings, Inc.)
News 12 Holding Corporation
News 12 II Holding Corporation
News 12 New Jersey L.L.C.
News 12 The Bronx, LLC
News 12 The Bronx Holding Corporation
Next Wave Films, L.L.C.
New England Sea Wolves, L.L.C.
New York Rangers Enterprises Company
New York Metro LLC
Prime SportsChannel Networks Associates
Radio City Networks LLC
Radio City Networks Holdings I, LLC
Radio City Networks Holdings II, LLC
Radio City Productions, L.L.C.
Radio City Trademarks, L.L.C.
Rainbow Advertising Holdings, LLC
Rainbow Advertising Sales Corporation
Rainbow CT Holdings, Inc.
Rainbow DBS Holdings, Inc.
Rainbow Films Holding LLC
Rainbow Garden Corp.
Rainbow Media Group, LLC
*Rainbow Media Holdings, Inc.
Rainbow MM Holdings Corporation
Rainbow MM Holdings II Corporation
Rainbow National Sports Holdings, LLC
Rainbow Network Communications
Rainbow News 12 Company
Rainbow NJ Holdings, Inc.
Rainbow NJ Holdings II, Inc.
*Rainbow Regional Holdings, LLC
Rainbow Regional Sports News Holdings, LLC
2
Rainbow Travel, Inc.
Rainbow Westchester Holdings, Inc.
RCE Humbug Productions LLC
RCE/4KE Productions LLC
Regional Chicago Holdings, LLC
Regional Cincinnati Holdings I, LLC
Regional Cincinnati Holdings II, LLC
* Regional MSG Holdings, LLC
Regional NE Holdings I, LLC
Regional NE Holdings II, LLC
Regional Ohio Holdings I, LLC
Regional Ohio Holdings II, LLC
Regional Pacific Holdings, LLC
* Regional Programming Partners
RNC Holding Corporation
RNC II Holding Corporation
RRH I, LLC
RRH II, LLC
SC Florida Holding Company, L.L.C.
Soccer/USA Partners, L.P.
SportsChannel America Soccer, Inc.
SportsChannel Associates(2)
SportsChannel Chicago Associates
SportsChannel Cincinnati Associates
SportsChannel Florida Associates
SportsChannel Florida Holding Company L.L.C.
SportsChannel New England Limited Partnership
SportsChannel Ohio Associates
SportsChannel Pacific Associates
SportsChannel Ventures, Inc.
Sterling Digital LLC
The 31st Street Company, L.L.C.
The Independent Film Channel LLC
WE: Women's Entertainment LLC (f/k/a Romance Classics, LLC)
WE: Women's Entertainment Productions, Inc. (f/k/a Romance Classics
Productions, Inc.)
WSN, LLC
3
SCHEDULE III
UNRESTRICTED SUBSIDIARIES
(*-material subsidiary)
0000 Xxxxxxx Xxxxxx Corporation
0000 Xxxxxxx Xxxxxxxx Corp.
000 Xxx Xxxxx Xxxx Corporation
1111 Xxxxxxx Corporation
0000 Xxxxx 000 Xxxx.
000 Xxxxx Xxxxxx Corporation
Cablevision Digital Development, LLC
Cablevision Electronics Investments, Inc.
Cablevision Lightpath - CT, Inc.
Cablevision Lightpath - MA, Inc.
Cablevision Lightpath - MI, Inc.
Cablevision Lightpath - NJ, Inc.
Cablevision Lightpath - NY, Inc.
Cablevision Lightpath - OH, Inc.
Cablevision NYI L.L.C.
Cablevision PCS Investment, Inc.
Cablevision PCS Management, Inc.
Cablevision Real Estate Corporation
Coram Route 112 Corporation
CCG Holdings, Inc.
CCC Cobble Hill Cinema Corp.
CCC Franklin Square Cinema Corp.
CSC @Security Holding, LLC
CSC At Home Holding Corporation
CSC Charter Holdings I, Inc.
CSC Charter Holdings II, Inc.
CSC Charter Holdings III, Inc.
CSC Investments, Inc.
CSC LF Holdings, LLC
CSC Metro Cinema LLC
CSC Nassau, Inc.
CSC Ohio Holdings I, Inc.
CSC Ohio Holdings II, Inc.
CSC Ohio Holdings III, Inc.
CSC Optimum Holdings, LLC
CSC T Holdings, Inc.
CSC T Holdings, I, Inc.
CSC T Holdings, II, Inc.
CSC T Holdings, III, Inc.
CSC T Holdings, IV, Inc.
CSC T Holdings, V, Inc.
1
CSC T Holdings VI, Inc.
CSC Technology, Inc. (f/k/a CSC Realty, Inc.)
CSC Transport, Inc.
CSC Transport II, Inc.
CSC Transport III, Inc.
CSC Transport IV, Inc.
Xxxxxxx Road Corporation
Knollwood Development Corp.
NCC LP Corp.
PVI Holding, LLC
The New York Interconnect L.L.C.
U.S. Cable Television Group, L.P.
-------------------------
(1) Shares of AMC Productions, Inc., We: Women's Entertainment Productions, Inc.
and partnership interests in American Movie Classics Company held by AMC II
Holding Corporation ("AMC II") and American Movie Classics Holding
Corporation ("AMCHC") are pledged to Toronto Dominion under the terms of a
Stock Pledge Agreement, dated as of April 2, 1997, between American Movie
Classics Holding Company and Toronto Dominion (Texas), Inc., as agent for
the Banks and a Partners Pledge Agreement, dated as of April 2, 1997, by and
between AMC II and AMCHC and Toronto Dominion (Texas), Inc.
(2) All of the capital stock, partnership interests or limited liability company
interests are pledged under the Credit Party Pledge Agreement, dated as of
June 6, 1997 to the Madison Square Garden, L.P. Credit Agreement.
2
SCHEDULE IV
PERSONS AND ENTITIES SUBJECT TO THE
LOCK-UP AGREEMENT
Xxxxxxx X. Xxxxx
Xxxxx X. Xxxxx
Xxxxxxx X. Xxxx
Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxxxxxx
Xxxxxx X. Xxxxxx
Xxxxxxxx Xxxxxxx
Xxxxxx X. Xxxxx
Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxxx
Xxxxxx Xxxxxxxx
Xxxxxxx Xxxx
Xxxxxxx X. Xxxxx
Xxxx Xxxxx
3
EXHIBIT A
[LOCK-UP AGREEMENT]
4
