Exhibt 1.02
ADELPHIA COMMUNICATIONS CORPORATION
$350,000,000
7-7/8% Senior Notes due 2009
UNDERWRITING AGREEMENT
April 23, 1999
CHASE SECURITIES INC.
XXXXXXX XXXXX XXXXXX INC.
SCOTIA CAPITAL MARKETS (USA) INC.
TD SECURITIES (USA) INC.
BARCLAYS CAPITAL, INC.
FLEET SECURITIES, INC.
XXXXXXX XXXXX Securities Inc.
PNC CAPITAL MARKETS, INC.
c/o Chase Securities Inc.
000 Xxxx Xxxxxx, 0xx xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Adelphia Communications Corporation, a Delaware corporation
(the "Company"), may issue and sell from time to time a series of its debt
securities registered under the registration statement referred to in Section
1(a) hereof. The Company proposes to sell to Chase Securities Inc. ("CSI") and
Xxxxxxx Xxxxx Xxxxxx Inc., Scotia Capital Markets (USA) Inc., TD Securities
(USA) Inc., PNC Capital Markets, Inc., Barclays Capital, Inc., Fleet Securities,
Inc. and Xxxxxxx Xxxxx (together with CSI, the "Underwriters") $350,000,000 in
aggregate principal amount of its 7-7/8% Senior Notes due 2009 (collectively,
the "Securities" and, individually, a "Security"). The Securities will be issued
pursuant to an Indenture to be dated as of April 28, 1999 (the "Base Indenture")
as supplemented by a First Supplemental Indenture (the "Supplemental Indenture"
and, together with the Base Indenture, the "Indenture") between the Company and
Bank of Montreal Trust Company, as trustee (the "Trustee"). The form of the
Supplemental Indenture will be filed on Form 8-K and incorporated by reference
as an exhibit to the registration statement referred to below. The Company
recently announced the following pending acquisitions: Olympus Communications,
L.P., FrontierVision Partners, L.P., Xxxxxx Communications Corp. and Century
Communications Corp. (collectively, the "Acquired Companies"). With respect to
the representations, warranties and agreements made by the Company in this
Agreement concerning the Acquired Companies, such representations, warranties
and agreements shall be limited to the knowledge of the Company in all cases.
1. Representations, Warranties and Agreements of the Company.
The Company represents and warrants to, and agrees with, the several
Underwriters on and as of the date hereof and the Closing Date (as defined in
Section 3) that:
(a) A registration statement (No. 333-74219), including a
prospectus, with respect to the Securities have been prepared by the
Company in conformity with the requirements of the Securities Act of
1933, as amended (the "Securities Act"), and the rules and regulations
(the "Rules and Regulations") of the Securities and Exchange Commission
(the "Commission") thereunder and have become effective. Copies of such
registration statement have been delivered by the Company to you as the
Underwriters. As used in this Agreement, (i) "Registration Statement"
means each such registration statement, as amended and supplemented to
the date hereof; (ii) "Preliminary Prospectus" means each prospectus
(including all documents incorporated therein by reference or deemed to
be incorporated by reference therein) included in the Registration
Statement, or amendments or supplements thereof, before it became
effective under the Securities Act, including any prospectus filed with
the Commission pursuant to Rule 424(a) of the Rules and Regulations;
(iii) "Basic Prospectus" means the prospectus included in the
Registration Statement; and (iv) "Prospectus" means the Basic
Prospectus, together with any prospectus amendment or supplement
(including in each case all documents incorporated therein by reference
(the "Incorporated Documents")) specifically relating to the
Securities, as filed with the Commission pursuant to paragraph (b) of
Rule 424 of the Rules and Regulations. The Commission has not issued
any order preventing or suspending the use of any Prospectus, and no
proceedings for such purposes have been instituted or are pending or,
to the knowledge of the Company, are contemplated by the Commission,
and any request on the part of the Commission for additional
information has been complied with.
(b) The Registration Statement and the Prospectus contain, and
(in the case of any amendment or supplement to any such document, or
any material incorporated by reference in any such document, filed with
the Commission after the date as of which this representation is being
made) will contain at all times during the period specified in
Paragraph 4(c) hereof, all statements which are required by the
Securities Act, the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"), and the rules and regulations of the Commission
under such Acts; the Indenture, with any amendments and supplements
thereto will conform, with the requirements of the Trust Indenture Act
and the rules and regulations of the Commission thereunder; and the
Registration Statement, the Prospectus and the Incorporated Documents
do not, and (in the case of any amendment or supplement to any such
document, or any material incorporated by reference in any such
document, filed with the Commission after the date as of which this
representation is being made) will not, at any time during the period
specified in Paragraph 4(c) hereof, contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading;
provided that the Company makes no representation or warranty as to
information contained in or omitted from any Registration Statement or
any Prospectus in reliance and based upon information furnished to the
Company by or on behalf of any Underwriter, or as to any statements in
or omissions from the Statement of Eligibility of the Trustee under the
Indenture.
(c) Neither the Company nor any of the Acquired Companies has
sustained since December 31, 1998 any material loss or interference
with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or court
or governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus; and, since the respective dates as of
which information is given in the Prospectus, there has not been any
reduction in the consolidated stockholders' equity or change in the
capital stock, as applicable (other than reductions in the ordinary
course of business consistent with prior periods), material increase in
the total amount of short-term debt (excluding trade payables) or
long-term debt of the Company or any of its material subsidiaries (the
"Subsidiaries", which term shall be deemed to include all of the
Acquired Companies and each of their material subsidiaries for purposes
of this Section 1) or any material adverse change, or any development
involving a prospective material adverse change, in or affecting the
general affairs, management, financial position, partners' equity,
shareholders' equity or results of operations of the Company and its
subsidiaries or any of the Acquired Companies and their subsidiaries,
otherwise than as set forth or contemplated in the Prospectus;
(d) Each of the Company and its Subsidiaries has good and
marketable title in fee simple to all real property and good and
marketable title to all personal property owned by them, in each case
free and clear of all liens, encumbrances and defects except such as
are described in the Prospectus or such as do not affect the value of
such property and do not interfere with the use made and proposed to be
made of such property by the Company and its Subsidiaries; and any real
property and buildings held under lease by the Company and its
Subsidiaries are held by them under valid, subsisting and enforceable
leases with such exceptions as are not material and do not interfere
with the use made and proposed to be made of such property and
buildings by the Company and its Subsidiaries; except in any case that
would not have a material adverse effect on the business, general
affairs, management, financial position, partners equity or
shareholders' equity (other than reductions in the ordinary course of
business consistent with prior periods), results of operations or
prospects of the Company and its Subsidiaries, taken as a whole a
"Material Adverse Effect;"
(e) (i) Each of the Subsidiaries that are partnerships has
been duly formed and is validly existing as a partnership in good
standing under the laws of its state of formation, with full power and
authority (partnership and other) to own its properties and conduct its
business as described in the Prospectus, and has been duly qualified as
a foreign partnership for the transaction of business and is in good
standing under the laws of each other jurisdiction in which it owns or
leases properties or conducts any business so as to require such
qualification, or is subject to no material liability or disability by
reason of the failure to be so qualified in any such jurisdiction
except where the failure to so qualify would not have a Material
Adverse Effect; and (ii) each of the Company and the Subsidiaries that
are corporations has been duly incorporated and is validly existing as
a corporation in good standing under the laws of its state of
incorporation, with full power and authority (corporate and other) to
own its properties and conduct its business as described in the
Prospectus, and has been duly qualified as a foreign corporation for
the transaction of business and is in good standing under the laws of
each other jurisdiction in which it owns or leases properties or
conducts any business so as to require such qualification, or is
subject to no material liability or disability by reason of the failure
to be so qualified in any such jurisdiction except where the failure to
so qualify would not have a Material Adverse Effect;
(f) Each of the Company and its Subsidiaries has the ownership
or authorized capitalizations, as the case may be, as set forth in the
Prospectus, and all of the partnership interests of the Subsidiaries
that are partnerships and all of the issued shares of capital stock of
its Subsidiaries that are corporations have been duly and validly
authorized and issued and with respect to shares of capital stock are
fully paid and non-assessable; and all of the partnership interests of
the Subsidiaries disclosed in the Prospectus as being owned directly or
indirectly by the Company and all of the issued shares of capital stock
of the Subsidiaries that are corporations disclosed in the Prospectus
as being owned directly or indirectly by the Company have been duly and
validly authorized and issued are fully paid and non-assessable and are
owned directly or indirectly by the Company free and clear of all
liens, encumbrances, equities or claims (other than liens to secure
indebtedness under credit facilities disclosed in the Prospectus); and
ownership of the various interests and shares of the Company and its
Subsidiaries is as described in the Prospectus;
(g) The Securities have been duly authorized and, when issued
and delivered pursuant to this Agreement, will have been duly executed,
authenticated, issued and delivered and will constitute valid and
legally binding obligations of the Company entitled to the benefits
provided by the Indenture under which they are to be issued, which will
be substantially in the form previously delivered to the Underwriters;
the Indenture has been duly authorized by the Company and, when
executed and delivered by the Company and the Trustee, the Indenture
will constitute a valid and legally binding instrument, enforceable in
accordance with its terms against the Company, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other laws
of general applicability relating to or affecting creditors' rights and
to general equity principles; and the Securities and the Indenture will
conform to the descriptions thereof in the Prospectus and will be in
substantially the form previously delivered to the Underwriters;
(h) None of the transactions contemplated by this Agreement
(including, without limitation, the use of the proceeds from the sale
of the Securities) will violate or result in a violation of Section 7
of the Exchange Act, or any regulation promulgated thereunder,
including, without limitation, Regulations U and X of the Board of
Governors of the Federal Reserve System;
(i) Prior to the date hereof, none of the Company or any of
their affiliates (other than the Underwriters or any person acting on
their behalf as to which the Company makes no representation) has
taken, directly or indirectly, any action which is designed to or which
has constituted or which might have been expected to cause or result in
stabilization or manipulation of the price of any security of the
Company in connection with the offering of the Securities;
(j) The issue and sale of the Securities and the compliance by
the Company with all of the provisions of the Securities, the Indenture
and this Agreement and the consummation of the transactions herein and
therein contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default
under, any material indenture, mortgage, deed of trust, sale/leaseback
agreement, loan agreement or other similar financing agreement or
instrument or other agreement or instrument (including, without
limitation, any license or franchise granted to the Company or one of
its Subsidiaries by a local franchising governmental body) to which the
Company or any of its Subsidiaries is a party or by which the Company
or any of its Subsidiaries is bound or has rights under or to which any
of the property or assets of the Company or any of its Subsidiaries is
subject, nor will such action result in any violation of the provisions
of the certificate of incorporation or bylaws of the Company or its
Subsidiaries that are corporations or the certificates of limited
partnership or the partnership agreements of its Subsidiaries that are
partnerships or any statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the
Company or any of its Subsidiaries or any of their properties; and no
consent, approval, authorization, order, registration or qualification
of or with any such court or governmental agency or body is required
for the issue and sale of the Securities or the consummation by the
Company of the transactions contemplated by this Agreement or the
Indenture, other than such consents, approvals, authorizations,
registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase and
distribution of the Securities by the Underwriters;
(k) None of the Company or its Subsidiaries is in violation of
its certificate of incorporation or bylaws, as the case may be, or in
default in the performance or observance of any material obligation,
agreement, covenant or condition contained in any indenture, mortgage,
deed of trust, sale/leaseback agreement, loan agreement or other
similar financing agreement or instrument or other agreement or
instrument (including, without limitation, any license or franchise
granted to the Company or a subsidiary by a local franchising
governmental body) to which the Company or a subsidiary is a party or
by which it or any of its properties may be bound, except for such
defaults as would not have individually or in the aggregate a Material
Adverse Effect;
(l) The statements set forth in the Prospectus under the
caption "Description of the Notes," insofar as they purport to
constitute a summary of the terms of the Securities, and incorporated
by reference in the Prospectus from the Form 10-K and Forms 10-Q (each
as defined in the Prospectus) under the captions "Business" and
"Management's Discussion and Analysis of Financial Condition and
Results of Operations," as applicable, insofar as they purport to
describe the provisions of the laws and documents referred to therein,
are accurate, complete and fair in all material respects;
(m) None of the Company or its Subsidiaries is or, after
giving effect to the offering and sale of the Securities, will be an
"investment company," or an entity "controlled" by an "investment
company," as such terms are defined in the United States Investment
Company Act of 1940, as amended (the "Investment Company Act");
(n) None of the Company, its Subsidiaries or any of their
affiliates does business with the government of Cuba or with any person
or affiliate located in Cuba within the meaning of Section 517.075,
Florida Statutes;
(o) Other than as set forth in the Prospectus (including those
matters referred to therein relating to general rulemakings and similar
matters relating generally to the cable television industry), there are
no legal or governmental proceedings pending to which the Company or
any of its Subsidiaries is a party or of which any property of the
Company or any of its Subsidiaries is the subject which, if determined
adversely to the Company or any of its Subsidiaries, would individually
or in the aggregate have a Material Adverse Effect and, to the best of
the Company's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or by others; and except with
respect to general rulemakings and similar matters relating generally
to the cable television industry, during the time the Systems (as
defined below) have been owned by the Company or a subsidiary (i) there
has been no adverse judgment, order, or decree issued by the United
States Federal Communications Commission (the "FCC") relating to any of
the Systems that has not been disclosed in the Prospectus that would be
required to be disclosed in a public offering registered under the
Securities Act; (ii) there are no actions, suits, proceedings,
inquiries or investigations by the FCC pending or threatened in writing
against or affecting the Company, any of its Subsidiaries or any
System; and (iii) to the Company's knowledge, after due inquiry, there
is no reasonable basis for any such action, suit, proceeding or
investigation;
(p) Each of Deloitte & Touche LLP, who has reported on the
financial statements of the Company and some of the Acquired Companies,
and KPMG LLP, who has reported on the financial statements of some of
the Acquired Companies, is an independent public accountant as required
by the Securities Act and the rules and regulations of the Commission
thereunder;
(q) This Agreement has been duly authorized, executed and
delivered by the Company;
(r) Except for matters covered by paragraph (v) below or with
respect to matters that would not individually or in the aggregate have
a Material Adverse Effect, (i) the Company and its Subsidiaries have
made all filings, recordings and registrations with, and possess all
validations or exemptions, approvals, orders, authorizations, consents,
licenses, certificates and permits from, the FCC, applicable public
utilities and other federal, state and local regulatory or governmental
bodies and authorities or any subdivision thereof, including, without
limitation, cable television franchises, pole attachment agreements,
and cable antenna relay service, broadcast auxiliary, earth station,
business radio, microwave or special safety radio service licenses
issued by the FCC (collectively, the "Authorizations") necessary or
appropriate to own, operate and construct the cable communication
systems owned by them (the "Systems") or otherwise for the operation of
their businesses and are not in violation thereof; (ii) all such
Authorizations are in full force and effect, and no event has occurred
that permits, or after notice or lapse of time could permit, the
revocation, termination or modification of any Authorization which is
necessary or appropriate to own, operate and construct the Systems or
otherwise for the operation of any such business; (iii) none of the
Company or any of its Subsidiaries is in violation of any duty or
obligation required by the United States Communications Act of 1934, as
amended (the "Communications Act"), or any FCC rule or regulation
applicable to the operation of any portion of any of the Systems; (iv)
none of the Company or any of its Subsidiaries is in violation of any
duty or obligation required by state or local laws, or local rules or
regulations applicable to the operation of any portion of any of the
Systems; (v) there is not pending or, to the best knowledge of the
Company or any of its Subsidiaries, threatened, any action by the FCC
or state or local regulatory authority to modify, revoke, cancel,
suspend or refuse to renew any Authorization; (vi) other than as
described in the Prospectus, there is not now issued or outstanding or,
to the best knowledge of the Company or any of its Subsidiaries,
threatened, any notice of any hearing, material violation or material
complaint against the Company or any of its Subsidiaries with respect
to the operation of any portion of the Systems and none of the Company
or its Subsidiaries has any knowledge that any person intends to
contest renewal of any material Authorization;
(s) (i) (A) The Company and its Subsidiaries have entered
into, or have rights under, all required programming agreements
(including, without limitation, all non-broadcast affiliation
agreements under which the Company and its Subsidiaries are accorded
retransmission rights relating to programming that the Systems provide
to their customers) that are material to the conduct of their business
as described in the Prospectus; and (B) all such material agreements
are in full force and effect and none of the Company, any of its
Subsidiaries or any of its affiliates has received any written notice
of revocation or material modifications of such material agreements;
and (ii)(A) either the Company or its Subsidiaries has entered into
agreements with the television stations that have notified the Company
or its Subsidiaries that such station's respective consent is required
to carry such stations on the Systems or has ceased carrying such
stations; (B) all such agreements grant the Company or one of its
Subsidiaries retransmission consent in exchange for various non-cash
consideration; and (C) all such agreements are in full force and effect
and are not subject to revocation (except in the case of material
breach by the Company or its Subsidiaries) or material modifications,
and no event has occurred that permits, or after notice or lapse of
time could permit, the revocation, termination or material modification
of any such agreement, except where the failure of such agreements to
be in full force and effect or such revocation would not, in either
case, individually or in the aggregate have a Material Adverse Effect;
(t) Except for matters that would not individually or in the
aggregate have a Material Adverse Effect, (i) all registration
statements and all other documents (including but not limited to annual
reports) required by the FCC in connection with the operation of the
Systems have been filed with the FCC; (ii) all frequencies within the
restricted aeronautical and navigational bands (i.e., 108-136 MHz and
225-400 MHz) which are currently being used in connection with the
operation of the Systems have been authorized for such use by the FCC;
(iii) each of the Systems subject to Equal Employment Opportunity
Commission ("EEOC") compliance certification by the FCC has been
certified by the FCC for annual EEOC compliance during the time such
Systems have been owned by the Company or its Subsidiaries; and (iv)
all towers associated with the Systems are in compliance with the rules
and regulations of the United States Federal Aviation Administration;
(u) Except for matters that would not individually or in the
aggregate have a Material Adverse Effect, none of the Company or any of
its Subsidiaries is in breach or violation of, or in default under, any
of the terms, conditions or provisions of the Communications Act or the
rules, regulations or policies of the FCC thereunder;
(v) (i) Except for matters that would not individually or in
the aggregate have a Material Adverse Effect, all statements of
accounts and any other filings that are required under Section 111 of
the United States Copyright Act of 1976, as amended, in connection with
the retransmission of any broadcast television and radio signals on the
Systems have been timely filed with the United States Copyright Office
and indicated royalty payments have been made for each System for each
accounting period during which such Systems have been owned by the
Company or its Subsidiaries; (ii) none of the Company, any of its
Subsidiaries or any System has received any inquiry or request from the
United States Copyright Office or from any other party challenging or
questioning any such statements of account or royalty payments; and
(iii) no claim of copyright infringement has been made or threatened in
writing against the Company, any of its Subsidiaries or any System;
(w) Neither the execution and delivery of this Agreement or
the Indenture, nor the consummation of the transactions contemplated
hereby and thereby or by the Prospectus under "Use of Proceeds," nor
compliance with the terms, conditions and provisions thereof by the
Company, will conflict with the Communications Act or the rules,
regulations or policies of the FCC thereunder, or will cause any
suspension, revocation, impairment, forfeiture, nonrenewal or
termination of any material license, permit, franchise, certificate,
consent, authorization, designation, declaration, filing, registration
or qualification;
(x) Neither the execution and delivery of this Agreement or
the Indenture, nor the execution, delivery, offer, issuance and sale of
the Securities, nor compliance with the terms, conditions and
provisions thereof by the Company, requires any license, permit,
franchise, certificate, consent, authorization, designation,
declaration, filing, registration or qualification by or with the FCC;
and
(y) The representations and warranties of the Company in the
Company's Class A Common Stock Underwriting Agreement, dated as of
April 23, 1999, are true and correct in all material respects as of the
date hereof and the Closing Date.
2. Purchase of the Securities. (a) On the basis of the
representations, warranties and agreements contained herein, and subject to the
terms and conditions set forth herein, the Company agrees to issue and sell to
each of the Underwriters, severally and not jointly, and each of the
Underwriters, severally and not jointly, agrees to purchase from the Company,
the principal amount of Securities set forth opposite the name of such
Underwriter on Schedule 1 hereto at a purchase price equal to 98.5% of the
principal amount thereof.
The Company shall not be obligated to deliver any of the
Securities except upon payment for all of the Securities to be purchased as
provided herein. The Company acknowledges and agrees that the Underwriters may
sell Securities to any affiliate of an Underwriter and that any such affiliate
may sell Securities purchased by it to an Underwriter.
3. Delivery of and Payment for the Securities. (a) Delivery of
and payment for the Securities shall be made at the offices of Xxxxxx &
Xxxxxxx, New York, New York, or at such other place as shall be agreed
upon by the Underwriters and the Company, at 10:00 A.M., New York City
time, on April 28, 1999, or at such other time or date, not later than
seven full business days thereafter, as shall be agreed upon by the
Underwriters and the Company (such date and time of payment and
delivery being referred to herein as the "Closing Date").
(b) On the Closing Date, payment of the purchase price for the
Securities shall be made to the Company by certified or official bank
check or checks drawn in New York Clearing House funds or similar
next-day funds, or by such other means as the parties hereto shall
agree prior to the Closing Date, against delivery to the Underwriters
of the certificates evidencing the Securities. Time shall be of the
essence, and delivery at the time and place specified pursuant to this
Agreement is a further condition of the obligations of the Underwriters
hereunder. Upon delivery, the Securities shall be in global form,
registered in such names and in such denominations as CSI on behalf of
the Underwriters shall have requested in writing not less than two full
business days prior to the Closing Date. The Company agrees to make one
or more global certificates evidencing the Securities available for
inspection by CSI on behalf of the Underwriters in New York, New York
at least 24 hours prior to the Closing Date.
4. Further Agreements of the Company. The Company agrees with
each of the several Underwriters:
(a) To furnish promptly to the Underwriters and to counsel for
the Underwriters a conformed copy of each Registration Statement as
originally filed and each amendment or supplement thereto filed prior
to the date hereof or relating to or covering the Securities, and a
copy of each Prospectus filed with the Commission, including all
documents incorporated therein by reference and all consents and
exhibits filed therewith and to file with the Commission pursuant to
Rule 424 a prospectus supplement, in form and substance satisfactory to
CSI and its counsel, relating to the offering contemplated hereby no
later than the close of business on April 26, 1999;
(b) To deliver promptly to the Underwriters such reasonable
number of the following documents as the Underwriters may request: (i)
conformed copies of the Registration Statement (excluding exhibits
other than the computation of the ratio of earnings to fixed charges,
the Indenture and this Agreement), (ii) the Prospectus and (iii) any
documents incorporated by reference in the Prospectus;
(c) During such period following the date hereof as, in the
opinion of counsel for the Underwriters, the Prospectus is required by
law to be delivered, to comply with the Securities Act, the Exchange
Act, the Trust Indenture Act and the rules and regulations under each
thereof, so as to permit the completion of the distribution of the
Securities as contemplated in this Agreement and in the Prospectus. If
at any time when a prospectus is required by the Securities Act to be
delivered in connection with sales of the Securities, any event shall
occur or condition shall exist as a result of which it is necessary, in
the reasonable opinion of counsel for the Underwriters or for the
Company, to amend the Registration Statement or amend or supplement the
Prospectus in order that the Prospectus will not include any untrue
statements of a material fact or omit to state a material fact
necessary in order to make the statements therein not misleading in the
light of the circumstances existing at the time it is delivered to a
purchaser, or if it shall be necessary, in the opinion of such counsel,
at any such time to amend the Registration Statement or amend or
supplement the Prospectus in order to comply with the requirements of
the Securities Act or the Rules and Regulations, the Company will
promptly prepare and file with the Commission, subject to paragraph (d)
below, such amendment or supplement as may be necessary to correct such
statement or omission or to make the Registration Statement or the
Prospectus comply with such requirements, and the Company will furnish
to the Underwriters such number of copies of such amendment or
supplement as the Underwriters may reasonably request;
(d) Prior to filing with the Commission during the period
referred to in (c) above (i) any amendment to the Registration
Statement, (ii) the Prospectus or any amendment thereto, (iii) the
prospectus supplement utilized in connection with this offering or any
amendment or supplement thereto, or (iv) any document incorporated by
reference in any of the foregoing or any amendment or supplement to
such incorporated document, to furnish a copy thereof to the
Underwriters and to counsel for the Underwriters and not to file any
document that shall have been disapproved by the Underwriters;
(e) To advise the Underwriters promptly (i) when any
post-effective amendment to the Registration Statement relating to or
covering the Securities becomes effective or any supplement to the
Prospectus shall have been filed, (ii) of any comments from the
Commission or any request or proposed request by the Commission for an
amendment or supplement to the Registration Statement (insofar as the
amendment or supplement relates to or covers the Securities), to the
Prospectus, to any document incorporated by reference in any of the
foregoing or for any additional information, (iii) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or any order directed to the Prospectus or any
document incorporated therein by reference or the initiation or threat
of any stop order proceeding or of any challenge to the accuracy or
adequacy of any document incorporated by reference in any Prospectus,
(iv) of receipt by the Company of any notification with respect to the
suspension of the qualification of the Securities for sale in any
jurisdiction or the initiation or threat of any proceeding for that
purpose and (v) of the happening of any event which makes untrue any
statement of a material fact made in the Registration Statement or the
Prospectus or which requires the making of a change in the Registration
Statement or the Prospectus in order to make any material statement
therein not misleading;
(f) If, during the period referred to in (c) above, the
Commission shall issue a stop order suspending the effectiveness of the
Registration Statement, to make every reasonable effort to obtain the
lifting of that order at the earliest possible time;
(g) to file promptly all reports and any definitive proxy or
information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act subsequent to the date of the Prospectus and for so long
as the delivery of a Prospectus is required in connection with the
offering and sale of the Securities;
(h) as soon as practicable to make generally available to the
Company's security holders and to deliver to the Underwriters an
earning statement of the Company and its Subsidiaries (which need not
be audited) complying with Section 11(a) of the Securities Act and the
Rules and Regulations (including, at the option of the Company, Rule
158);
(i) for so long as the Securities are outstanding, to furnish
to the Underwriters copies of any annual reports, quarterly reports and
current reports filed by the Company 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 the Trustee or to the holders of the
Securities pursuant to the Indenture or the Exchange Act or any rule or
regulation of the Commission thereunder;
(j) to promptly take from time to time such actions as the
Underwriters may reasonably request to qualify the Securities for
offering and sale under the securities or Blue Sky laws of such
jurisdictions as the Underwriters may designate and to continue such
qualifications in effect for so long as required for the resale of the
Securities; and to arrange for the determination of the eligibility for
investment of the Securities under the laws of such jurisdictions as
the Underwriters may reasonably request; provided that the Company and
its Subsidiaries shall not be obligated to qualify as foreign
corporations in any jurisdiction in which they are not so qualified or
to file a general consent to service of process in any jurisdiction;
(k) not to, for so long as the Securities are outstanding, be
or become, or be or become owned by, an open-end investment company,
unit investment trust or face-amount certificate company that is or is
required to be registered under Section 8 of the Investment Company
Act, and to not be or become, or be or become owned by, a closed-end
investment company required to be registered, but not registered
thereunder;
(l) in connection with the offering of the Securities, until
CSI on behalf of the Underwriters shall have notified the Company of
the completion of the distribution of the Securities, not to, and to
cause its affiliated purchasers (as defined in Regulation M under the
Exchange Act) not to, either alone or with one or more other persons,
bid for or purchase, for any account in which it or any of its
affiliated purchasers has a beneficial interest, any Securities, or
attempt to induce any person to purchase any Securities; and not to,
and to cause its affiliated purchasers not to, make bids or purchase
for the purpose of creating actual, or apparent, active trading in or
of raising the price of the Securities;
(m) in connection with the offering of the Securities, to make
its officers, employees, independent accountants and legal counsel
reasonably available upon request by the Underwriters and to cooperate
with the Underwriters and Underwriters' counsel with their due
diligence review through the Closing Date;
(n) to furnish to each of the Underwriters on the date hereof
a copy of each of the independent accountants' reports included in
Registration Statement signed by the accountants rendering such
reports;
(o) to do and perform all things required to be done and
performed by it under this Agreement that are within its control prior
to or after the Closing Date, and to use its best efforts to satisfy
all conditions precedent on its part to the delivery of the Securities;
(p) to not take any action prior to the execution and delivery
of the Indenture which, if taken after such execution and delivery,
would have violated any of the covenants contained in the Indenture;
(q) to not take any action prior to the Closing Date which
would require the Prospectus to be amended or supplemented pursuant to
Section 4(c); and
(r) to apply the net proceeds from the sale of the Securities
as set forth in the Prospectus under the heading "Use of Proceeds".
5. Conditions of Underwriters' Obligations. The respective
obligations of the several Underwriters hereunder are subject to the accuracy,
on and as of the date hereof and the Closing Date, of the representations and
warranties of the Company contained herein, to the accuracy of the statements of
the Company and its officers made in any certificates delivered pursuant hereto,
to the performance by the Company of its obligations hereunder, and to each of
the following additional terms and conditions:
(a) The Prospectus and supplement referred to in Section 4(a)
of this Agreement shall have been timely filed with the Commission in
accordance with Section 4(a) of this Agreement. Prior to the Closing
Date, no stop order suspending the effectiveness of the Registration
Statement or any part thereof shall have been issued and no proceeding
for that purpose shall have been initiated or threatened by the
Commission; and any request of the Commission for inclusion of
additional information in the Registration Statement or the Prospectus
or otherwise shall have been complied with to the reasonable
satisfaction of the Underwriters.
(b) The Prospectus (and any amendments or supplements thereto)
shall have been printed and copies distributed to the Underwriters as
promptly as practicable on or following the date of this Agreement or
at such other date and time as to which the Underwriters may agree.
(c) None of the Underwriters shall have discovered and
disclosed to the Company on or prior to the Closing Date that the
Prospectus or any amendment or supplement thereto contains an untrue
statement of a fact which, in the opinion of counsel for the
Underwriters, is material or omits to state any fact which, in the
opinion of such counsel, is material and is required to be stated
therein or is necessary to make the statements therein not misleading.
(d) All corporate proceedings and other legal matters incident
to the authorization, form and validity of each of this Agreement, the
Indenture and the Securities (collectively, the "Transaction
Documents") and the Prospectus, and all other legal matters relating to
the Transaction Documents and the transactions contemplated thereby,
shall be satisfactory in all material respects to the Underwriters, and
the Company shall have furnished to the Underwriters all documents and
information that they or their counsel may reasonably request to enable
them to pass upon such matters.
(e) The Underwriters shall have received on the Closing Date
an opinion of Xxxxxxxx Xxxxxxxxx Professional Corporation, counsel for
the Company, dated the Closing Date and addressed to the Underwriters,
to the effect that:
(i) The Company has been duly incorporated
and is validly existing as a corporation in good standing
under the laws of the state of its formation with full
corporate power and authority to own its properties and
conduct its business as described in the Prospectus;
(ii) This Agreement has been duly
authorized, executed and delivered by the Company;
(iii) The Securities have been duly
authorized and, when issued and delivered pursuant to this
Agreement, will have been duly executed, authenticated, issued
and delivered and will constitute valid and legally binding
obligations of the Company entitled to the benefits provided
by the Indenture and enforceable against the Company in
accordance with its terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization, moratorium and other
laws of general applicability relating to or affecting
creditors' rights and to general equity principles and further
except that (a) rights to contribution or indemnification may
be limited by the laws, rules or regulations of any
governmental authority or agency thereof or by public policy,
and (b) waivers as to usury, stay or extension laws may be
unenforceable; and the Securities and the Indenture conform in
all material respects to the descriptions thereof in the
Prospectus;
(iv) The Indenture has been duly authorized,
executed and delivered by the Company and duly qualified under
the Trust Indenture Act, assuming that the Indenture is a
valid and binding agreement of the Trustee, constitutes a
valid and legally binding instrument, enforceable in
accordance with its terms against the Company, subject, as to
enforcement, to bankruptcy, insolvency, reorganization,
moratorium and other laws of general applicability relating to
or affecting creditors' rights and to general equity
principles and further except that (a) rights to contribution
or indemnification may be limited by the laws, rules or
regulations of any governmental authority or agency thereof or
by public policy, and (b) waivers as to usury, stay or
extension laws may be unenforceable;
(v) The Registration Statement has become
effective under the Securities Act and the Prospectus
(including the prospectus supplement contemplated by Section
4(a) hereof) was filed pursuant to Rule 424(b) of the Rules
and Regulations and, to our knowledge, no stop order
suspending the effectiveness of the Registration Statement has
been issued or proceeding for that purpose has been instituted
or threatened by the Commission;
(vi) The Registration Statement and the
Prospectus comply as to form in all material respects with the
requirements for registration statements on Form S-3 under the
Securities Act, the Trust Indenture Act and the rules and
regulations of the Commission thereunder;
(vii) The issue and sale of the Securities
and the compliance by the Company with all of the provisions
of the Securities, the Indenture and this Agreement and the
consummation of the transactions herein and therein
contemplated will not contravene the provisions of the
certificate of incorporation and bylaws of the Company, or to
the best of our knowledge, any order, rule or regulation of
any court or governmental agency or body having jurisdiction
over the Company;
(viii) The statements set forth in the
Prospectus under the caption "Description of the Notes,"
insofar as they purport to constitute a summary of the terms
of the Securities, are accurate in all material respects, and
the statements in the Prospectus under the heading "Certain
United States Tax Considerations to Non-United States
Holders," insofar as they purport to constitute a summary of
laws, governmental rules or regulations or documents, are
accurate in all material respects;
(ix) The Company is not an "investment
company" or an entity "controlled" by an "investment company,"
as such terms are defined in the Investment Company Act; and
In addition, such counsel shall also state that such counsel
has participated in conferences with officers and representatives of the Company
and its subsidiaries, representatives of the independent public accountants for
the Company and the Underwriters at which the contents of the Registration
Statement and the Prospectus (including the Incorporated Documents) and related
matters were discussed and, although such counsel is not passing upon and does
not assume any responsibility for and has not verified the accuracy,
completeness or fairness of the statements contained in the Registration
Statement and the Prospectus, and has not made any independent check or
verification thereof, on the basis of the foregoing (relying as to materiality
to the extent such counsel deemed appropriate upon facts provided by officers
and other representatives of the Company), no facts have come to the attention
of such counsel that lead such counsel to believe that the Registration
Statement, as of the date it was declared effective, or the Prospectus, as of
its date or as of the Closing Date, in each case including the Incorporated
Documents, contained or contains any untrue statement of material fact or
omitted or omits to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading (it being understood that such counsel need express no belief or
opinion with respect to the financial statements and other financial and
statistical data included therein).
The opinion of such counsel may be limited to the laws of the
State of New York, the General Corporation Law of the State of Delaware and the
federal laws of the United States.
(f) The Underwriters shall have received on the Closing Date
an opinion of Xxxxxxx X. Xxxxxx, Esq., General Counsel to the Company,
dated the Closing Date and addressed to the Underwriters, to the effect
that:
(i) Except as set forth in the Prospectus,
each of the Company and its subsidiaries has all of the
licenses, permits, franchises and authorizations, if any,
required by the relevant governmental authorities of each of
New York, Virginia, Pennsylvania, Ohio, New Jersey,
Massachusetts, New Hampshire, Vermont, Michigan and
Connecticut and/or its political subdivisions for the
provision of cable television service (as such counsel
understands service to be provided which may be based on a
certificate of an officer of the Company, provided that such
counsel shall state that they believe that both the
Underwriters and he are justified in relying on such
certificate), where the failure to obtain or hold such
license, permit, franchise or authorization would have a
Material Adverse Effect;
(ii) To the best of such counsel's knowledge
after due inquiry, each of the Company and its subsidiaries
has made all filings, reports, applications and submissions
required by the laws and ordinances relating to cable services
of each of New York, Virginia, Pennsylvania, Ohio, New Jersey,
Massachusetts, New Hampshire, Vermont, Michigan and
Connecticut, and the ordinances of the state's political
subdivisions relating thereto, and the rules and regulations
promulgated therewith;
(iii) Each of the Company and its
subsidiaries has the consents, approvals, authorizations,
licenses, certificates, permits, or orders of any governmental
authorities of the each of New York, Virginia, Pennsylvania,
Ohio, New Jersey, Massachusetts, New Hampshire, Vermont,
Michigan and Connecticut, and its political subdivisions, if
any, required for the consummations of the transactions
contemplated in the Underwriting Agreement where the failure
to obtain the consents, approvals, authorizations, licenses,
certificates, permits or orders would have a Material Adverse
Effect;
(iv) There are no actions, suits or
proceedings pending or, to the best of such counsel's
knowledge, threatened by or before any court or governmental
body each of New York, Virginia, Pennsylvania, Ohio, New
Jersey, Massachusetts, New Hampshire, Vermont, Michigan and
Connecticut, against or affecting any of the Company or its
subsidiaries, or the business of the Company and its
subsidiaries;
(v) The statements in the Prospectus under
the headings "Risk Factors - We are Subject to Extensive
Regulation" and "Risk Factors - Competition," insofar as they
relate to the Company and its subsidiaries operations each of
New York, Virginia, Pennsylvania, Ohio, New Jersey,
Massachusetts, New Hampshire, Vermont, Michigan and
Connecticut, and purport to describe the provisions of the
laws and documents referred to therein, are accurate, complete
and fair in all material respects; and
(vi) Neither the execution and delivery of
the Underwriting Agreement nor the offering of the Securities
contemplated thereby will conflict with or result in a
violation of any order or regulation of each of New York,
Virginia, Pennsylvania, Ohio, New Jersey, Massachusetts, New
Hampshire, Vermont, Michigan and Connecticut, or its political
subdivisions applicable to the Company and its subsidiaries,
the conflict with or the violation of which would have a
material adverse effect on the Company and its subsidiaries.
(g) The Underwriters shall have received on the Closing Date
an opinion of Xxxxx X. Xxxxxx, Deputy General Counsel to the Company,
dated the Closing Date and addressed to the Underwriters, to the effect
that:
(i) None of the Company or its subsidiaries
is in violation of its certificate of incorporation, by-laws,
certificate of limited partnership or partnership agreement,
as applicable, or in default in the performance or observance
of any material obligation, covenant or condition contained in
any partnership agreement, indenture, mortgage, deed of trust,
loan agreement, lease or other agreement or instrument to
which it is a party or by which it or any of its properties
may be bound;
(ii) Each of the Company and its
subsidiaries has been duly qualified as a foreign corporation
or partnership, as the case may be, for the transaction of
business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties or conducts
any business so as to require such qualification, or is
subject to no material liability or disability by reason of
the failure to be so qualified in any such jurisdiction,
except where the failure to so qualify would not have a
Material Adverse Effect (such counsel being entitled to rely
in respect of the opinion in this clause upon opinions of
local counsel and in respect of matters of fact upon
certificates of officers of the Company, provided that such
counsel shall state that he believes that both the
Underwriters and he are justified in relying upon such
opinions and certificates);
(iii) Each subsidiary of the Company is
owned directly or indirectly by the Company, free and clear of
all liens, encumbrances, equities or claims (other than liens
to secure indebtedness under credit facilities disclosed in
the Prospectus) (such counsel being entitled to rely in
respect of the opinion in this clause upon opinions of local
counsel and in respect of matters of fact upon certificates of
officers of the Company or its subsidiaries, provided that
such counsel shall state that he believes that both the
Underwriters and he are justified in relying upon such
opinions and certificates);
(iv) To the best of such counsel's knowledge
and other than as set forth in the Prospectus, there are no
legal or governmental proceedings pending to which the Company
or any of its subsidiaries is a party or of which any property
of the Company or any of its subsidiaries is the subject
which, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a
material adverse effect on the current or future consolidated
financial position, shareholder's equity, partners' equity, or
results of operations of the Company and its subsidiaries;
and, to the best of such counsel's knowledge, no such
proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(v) The issue and sale of the Securities and
the compliance by the Company with all of the provisions of
the Securities, the Indenture and this Agreement and the
consummation of the transactions herein and therein
contemplated will not, to the best of my knowledge after due
inquiry, conflict with or result in a breach or violation of
any of the terms or provisions of, or constitute a default
under any material indenture, mortgage, deed of trust,
sale/leaseback transaction, loan agreement or other similar
financing agreement, or instrument or other agreement or
instrument (including, without limitation, any license or
franchise granted to the Company or a subsidiary by a local
franchising governmental body) to which the Company or any of
its subsidiaries is a party or by which the Company or any of
its subsidiaries is bound or to which any of the property or
assets of the Company or any of its subsidiaries is subject,
nor will such actions result in any violation of the
provisions of the certificate of incorporation, by-laws, the
certificate of limited partnership or the partnership
agreements of the Company and its subsidiaries, as
appropriate, or any statute or any order, rule or regulation
of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or
any of their properties; and
(vi) No consent, approval, authorization,
order, registration or qualification of or with any such court
or governmental agency or body is required for the issue and
sale of the Securities or the consummation by the Company of
the transactions contemplated by this Agreement or the
Indenture, except such consents, approvals, authorizations,
registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase
and resale of the Securities by the Underwriters.
In addition, such counsel shall also state that such counsel
has participated in conferences with officers and representatives of the Company
and its subsidiaries, representatives of the independent public accountants for
the Company and the Underwriters at which the contents of the Registration
Statement and the Prospectus (including the Incorporated Documents) and related
matters were discussed and, although such counsel is not passing upon and does
not assume any responsibility for and has not verified the accuracy,
completeness or fairness of the statements contained in the Registration
Statement and the Prospectus, and has not made any independent check or
verification thereof, on the basis of the foregoing (relying as to materiality
to the extent such counsel deemed appropriate upon facts provided by officers
and other representatives of the Company), no facts have come to the attention
of such counsel that lead such counsel to believe that the Registration
Statement, as of the date it was declared effective, or the Prospectus, as of
its date or as of the Closing Date, in each case including the Incorporated
Documents, contained or contains any untrue statement of material fact or
omitted or omits to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading (it being understood that such counsel need express no belief or
opinion with respect to the financial statements and other financial and
statistical data included therein).
(h) The Underwriters shall have received on the Closing Date
an opinion of Xxxxxxxxxx & Xxxxx, P.C., special regulatory counsel for
the Company and its subsidiaries, dated the Closing Date, and addressed
to the Underwriters to the effect that:
(i) The communities listed in Section A of
Attachment 1 to the opinion have been registered with the FCC
in connection with the operation of the Systems. The filing of
a registration statement constitutes initial FCC authorization
for the commencement of cable television operations in the
community registered.
(ii) The subsidiaries hold certain FCC
licenses, as that term is defined below ("FCC Licenses"). All
FCC Licenses and receive-only earth station registrations held
by the subsidiaries in connection with the operation of the
Cable Systems are listed on Attachment 1 to the Opinion. To
the best of our knowledge, all such FCC Licenses have been
validly issued or assigned to the present licensee and are
currently in full force and effect. We have no knowledge of
any event which would allow, or after notice or lapse of time
which would allow, revocation or termination of any FCC
License held by the subsidiaries or would result in any other
material impairment of the rights of the holder of such
license. To the best of our knowledge, no other FCC Licenses
are required in connection with the operation of the Cable
Systems by the subsidiaries in the manner we have advised they
are presently being operated. For the purposes of this
opinion, an FCC License is defined as an authorization, or
renewal thereof, issued by the FCC authorizing the
transmission of radio energy through the airways.
(iii) Other than proceedings affecting the
cable television industry generally, there is no action, suit
or proceeding pending before or, to the best of our knowledge,
threatened by the FCC which is reasonably likely to have a
materially adverse impact upon the cable television operations
of the Company and its subsidiaries taken as a whole.
(iv) To the best of our knowledge after due
inquiry, the Company and the subsidiaries have filed all
current and routine filings, reports, applications and
submissions required under the Communications Act, as amended,
and under the rules and regulations of the FCC.
(v) The subsidiaries hold all authorizations
and/or have filed all notifications required by the FCC in
connection with their operation on all frequencies in the
108-137 MHz and 225-400 MHz bands which we have been advised
are currently being utilized on the Cable Systems. The
geographic and technical parameters with respect to the
authorized use of these frequencies are listed on Attachment 1
hereto.
(vi) The employment units covered by the
Cable Systems and operated by the subsidiaries have been
certified, where required, by the FCC for compliance with
equal employment opportunity requirements in each of calendar
years 1992 through 1996 in which such Cable Systems have been
owned and operated by the Company or the subsidiaries.
Employment certification records for the years prior to 1992
have been purged from the FCC's database and are therefore
outside the scope of this opinion.
(vii) Statements of Account required by
Section 111 of the Copyright Act of 1976, as amended have been
filed, together with royalty payments accompanying said
Statements of Account, with the U.S. Copyright Office for the
Cable Systems covering each of the accounting periods
beginning with January 1 through June 30, 1994 accounting
period and ending with the July 1 through December 31, 1996
accounting period during which such Cable Systems have been
operated by the subsidiaries. We have not received the
information or calculations contained in these Statements, and
express no opinion with respect to the accuracy thereof. To
the best of our knowledge, there are no currently outstanding
inquiries received from the U.S. Copyright Office or any other
party which question the copyright filings or payments made by
the Company or the subsidiaries with respect to the Cable
Systems. It is possible that there may be matters pending
before the U.S. Copyright Office relating to the Cable
Systems, the Company or the subsidiaries of which we do not
have knowledge because such matters have not yet been
incorporated into the available public files of the U.S.
Copyright Office. However, we are not aware of the pending or
threatened claim, action or demand for copyright infringement
or for non-payment of royalties with respect to the Statements
of Account or related royalty payments filed by the Company
and the subsidiaries for the Cable Systems.
(viii) The Company has obtained all
consents, approvals and authorizations of the FCC, if any,
required for the consummation of the transactions of the
transactions contemplated in the Underwriting Agreement where
the failure to obtain the consents, approval, authorizations,
licenses, certificates, permits or orders would reasonably be
expected to have a materially adverse impact on the Company or
the subsidiaries.
(ix) Neither the execution and delivery of
the Underwriting Agreement nor the offering of the Securities
contemplated thereby will conflict with or result in a
violation of any order or regulation of the FCC applicable to
the Company and the subsidiaries, the conflict with or the
violation of which would reasonably be expected to have a
materially adverse impact on the Company or the subsidiaries.
However, we call your attention to the following.
(x) Under the Securities Act as now in
effect, the sale or other disposition of certain pledged
collateral and the exercise of certain other rights and
remedies conferred upon you by any agreement or by applicable
law might constitute an assignment of an FCC licensee, or
transfer of control of an FCC license, requiring for its
consummation the prior consent of the FCC granted upon an
appropriate application thereof.
(xi) Under the Securities Act as now in
effect, and as now interpreted by the FCC, no valid security
interest may be granted in an FCC license. To the extent that
the Underwriting Agreement and/or related financing documents
purport to grant to you a security interest in any FCC
licenses, such security interest may not be legally
enforceable.
(xii) In the course of our representation of
the Company and its subsidiaries, no matters have come to our
attention, other than matters affecting the cable television
industry generally, which would reasonable be expected to have
a materially adverse impact upon the cable television
operations of the Company and the subsidiaries taken as a
whole.
(xiii) In our opinion, the Statements in the
Prospectus under the headings "Risk Factors - We are Subject
to Extensive Regulation" and "Risk Factors Competition,"
insofar as the purport to describe the provisions of the law
referred to therein, are accurate, complete and fair in all
material respects.
(i) The Underwriters shall have received from Xxxxxx &
Xxxxxxx, counsel for the Underwriters, such opinion or opinions, dated
the Closing Date, with respect to such matters as the Underwriters may
reasonably require, and the Company shall have furnished to such
counsel such documents and information as they request for the purpose
of enabling them to pass upon such matters.
(j) The Company shall have furnished to the Underwriters a
letter from each of Deloitte & Touche LLP and KPMG LLP, addressed to
the Underwriters and dated the Closing Date covering the matters
previously requested by Xxxxxx & Xxxxxxx, in form and substance
satisfactory to CSI and their counsel in their sole discretion.
(k) The Company shall have furnished to the Underwriters a
certificate, dated the Closing Date, of its chief executive officer and
its chief financial officer stating that (A) such officers have
carefully examined the Registration Statement and the Prospectus, (B)
in their opinion, the Registration Statement and the Prospectus did not
include any untrue statement of a material fact and did not 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, and no event has occurred
which should have been set forth in a supplement or amendment to the
Registration Statement and the Prospectus so that the Registration
Statement and the Prospectus (as so amended or supplemented) would not
include any untrue statement of a material fact and would not 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 and (C) as of the Closing
Date, the representations and warranties of the Company in this
Agreement are true and correct in all material respects, the Company
has complied with all agreements and satisfied all conditions on its
part to be performed or satisfied hereunder on or prior to the Closing
Date, no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or, to the best of such officer's knowledge, are
contemplated by the Commission, and subsequent to the date of the most
recent financial statements contained in the Registration Statement and
the Prospectus, there has been no material adverse change in the
financial position or results of operation of the Company or any of its
subsidiaries, or any change, or any development including a prospective
change, in or affecting the condition (financial or otherwise), results
of operations, business or prospects of the Company and its
subsidiaries taken as a whole, except as set forth in the Prospectus.
(l) The Indenture shall have been duly executed and delivered
by the Company and the Trustee, and the Securities shall have been duly
executed and delivered by the Company and duly authenticated by the
Trustee.
(m) If any event shall have occurred that requires the Company
under Section 4(d) to prepare an amendment or supplement to the
Prospectus, such amendment or supplement shall have been prepared, the
Underwriters shall have been given a reasonable opportunity to comment
thereon, and copies thereof shall have been delivered to the
Underwriters reasonably in advance of the Closing Date.
(n) Subsequent to the execution and delivery of this Agreement
or, if earlier, the dates as of which information is given in the
Registration Statement (exclusive of any amendment thereto) and the
Prospectus (exclusive of any supplement thereto), there shall not have
been any change in the capital stock or long-term debt or any change,
or any development involving a prospective change, in or affecting the
condition (financial or otherwise), results of operations, business or
prospects of the Company and its subsidiaries taken as a whole, the
effect of which, in any such case described above, is, in the judgment
of the Underwriters, so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering of the
Securities on the terms and in the manner contemplated by this
Agreement and the Prospectus (exclusive of any supplement thereto).
(o) No action shall have been taken and no statute, rule,
regulation or order shall have been enacted, adopted or issued by any
governmental agency or body which would, as of the Closing Date,
prevent the issuance or sale of the Securities; and no injunction,
restraining order or order of any other nature by any federal or state
court of competent jurisdiction shall have been issued as of the
Closing Date which would prevent the issuance or sale of the
Securities.
(p) Subsequent to the execution and delivery of this Agreement
(i) no downgrading shall have occurred in the rating accorded the
Securities or any of the Company's other debt securities or preferred
stock by any "nationally recognized statistical rating organization",
as such term is defined by the Commission for purposes of Rule
436(g)(2) of the Rules and Regulations and (ii) no such organization
shall have publicly announced that it has under surveillance or review
(other than an announcement with positive implications of a possible
upgrading), its rating of the Securities or any of the Company's other
debt securities or preferred stock.
(q) Subsequent to the execution and delivery of this Agreement
there shall not have occurred any of the following: (i) trading in
securities generally on the New York Stock Exchange, the American Stock
Exchange or the over-the-counter market shall have been suspended or
limited, or minimum prices shall have been established on any such
exchange or market by the Commission, by any such exchange or by any
other regulatory body or governmental authority having jurisdiction, or
trading in any securities of the Company on any exchange or in the
over-the-counter market shall have been suspended or (ii) any
moratorium on commercial banking activities shall have been declared by
federal or New York state authorities or (iii) an outbreak or
escalation of hostilities or a declaration by the United States of a
national emergency or war or (iv) a material adverse change in general
economic, political or financial conditions (or the effect of
international conditions on the financial markets in the United States
shall be such) the effect of which, in the case of this clause (iv),
is, in the judgment of the Underwriters, so material and adverse as to
make it impracticable or inadvisable to proceed with the public
offering or the sale or the delivery of the Securities on the terms and
in the manner contemplated by this Agreement and in the Prospectus
(exclusive of any amendment or supplement thereto).
(r) The acquisition agreements relating to each of the
Acquired Companies are still in force and effect and no actions have
been taken to terminate any of such agreements.
All opinions, letters, evidence and certificates mentioned
above or elsewhere in this Agreement shall be deemed to be in compliance with
the provisions hereof only if they are in form and substance reasonably
satisfactory to counsel for the Underwriters.
6. Effectiveness and Termination. This Agreement shall become
effective upon the execution of this Agreement. The obligations of the
Underwriters hereunder may be terminated by the Underwriters, in their absolute
discretion, by notice given to and received by the Company prior to delivery of
and payment for the Securities if, prior to that time, any of the events
described in Section 5(n), (o), (p) or (q) shall have occurred and be
continuing.
7. Defaulting Underwriters. (a) If, on the Closing Date, any
Underwriter defaults in the performance of its obligations under this Agreement,
the non-defaulting Underwriters may make arrangements for the purchase of the
Securities which such defaulting Underwriter agreed but failed to purchase by
other persons satisfactory to the Company and the non-defaulting Underwriters,
but if no such arrangements are made within 36 hours after such default, this
Agreement shall terminate without liability on the part of the non-defaulting
Underwriters or the Company, except that the Company will continue to be liable
for the payment of expenses to the extent set forth in Sections 8 and 12 and
except that the provisions of Sections 9 and 10 shall not terminate and shall
remain in effect. As used in this Agreement, the term "Underwriters" includes,
for all purposes of this Agreement unless the context otherwise requires, any
party not listed in Schedule 1 hereto that, pursuant to this Section 7,
purchases Securities which a defaulting Underwriter agreed but failed to
purchase.
(b) Nothing contained herein shall relieve a defaulting
Underwriter of any liability it may have to the Company or any non-defaulting
Underwriter for damages caused by its default. If other persons are obligated or
agree to purchase the Securities of a defaulting Underwriter, either the
non-defaulting Underwriters or the Company may postpone the Closing Date for up
to seven full business days in order to effect any changes that in the opinion
of counsel for the Company or counsel for the Underwriters may be necessary in
the Registration Statement and the Prospectus or in any other document or
arrangement, and the Company agrees to promptly prepare any amendment or
supplement to the Registration Statement and the Prospectus that effects any
such changes.
8. Reimbursement of Underwriters' Expenses. If (a) the Company
shall fail to tender the Securities for delivery to the Underwriters for any
reason permitted under this Agreement or (b) the Underwriters shall decline to
purchase the Securities for any reason permitted under this Agreement, the
Company shall reimburse the Underwriters for such out-of-pocket expenses
(including reasonable fees and disbursements of counsel) as shall have been
reasonably incurred by the Underwriters in connection with this Agreement and
the proposed public offering and sale of the Securities, and upon demand the
Company shall pay the full amount thereof to the Underwriters. If this Agreement
is terminated pursuant to Section 7 by reason of the default of one or more of
the Underwriters, the Company shall not be obligated to reimburse any defaulting
Underwriter on account of such expenses.
9. Indemnification. (a) The Company shall indemnify and hold
harmless each Underwriter, its affiliates, their respective officers, directors,
employees, representatives and agents, and each person, if any, who controls any
Underwriter within the meaning of the Securities Act or the Exchange Act
(collectively referred to for purposes of this Section 9(a) and Section 10 as an
Underwriter), from and against any loss, claim, damage or liability, joint or
several, or any action in respect thereof (including, without limitation, any
loss, claim, damage, liability or action relating to purchases and sales of the
Securities), to which that Underwriter may become subject, whether commenced or
threatened, under the Securities Act, the Exchange Act, any other federal or
state statutory law or regulation, at common law or otherwise, insofar as such
loss, claim, damage, liability or action arises out of, or is based upon, (i)
any untrue statement or alleged untrue statement of a material fact contained in
any Preliminary Prospectus, the Registration Statement or the Prospectus or in
any amendment or supplement thereto or (ii) the omission or alleged omission to
state therein 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, and shall reimburse each Underwriter
promptly upon demand for any legal or other expenses reasonably incurred by that
Underwriter in connection with investigating or defending or preparing to defend
against or appearing as a third party witness in connection with any such loss,
claim, damage, liability or action as such expenses are incurred; provided,
however, that the Company shall not be liable in any such case to the extent
that any such loss, claim, damage, liability or action arises out of, or is
based upon, an untrue statement or alleged untrue statement in or omission or
alleged omission from any of such documents in reliance upon and in conformity
with any information contained in or omitted from the Registration Statement or
the Prospectus (or any supplement thereto) in reliance upon and in conformity
with written information furnished to the Company by or on behalf of any
Underwriter specifically for use therein (the "Underwriters' Information"); and
provided, further, that with respect to any such untrue statement in or omission
from any Preliminary Prospectus, the indemnity agreement contained in this
Section 9(a) shall not inure to the benefit of any such Underwriter to the
extent that the sale to the person asserting any such loss, claim, damage,
liability or action was an initial resale by such Underwriter and any such loss,
claim, damage, liability or action of or with respect to such Underwriter
results from the fact that both (A) to the extent required by applicable law, a
copy of the Prospectus was not sent or given to such person at or prior to the
written confirmation of the sale of such Securities to such person and (B) the
untrue statement in or omission from such Preliminary Prospectus was corrected
in the Prospectus unless, in either case, such failure to deliver the Prospectus
was a result of non-compliance by the Company with Section 4(a).
(b) Each Underwriter, severally and not jointly, shall
indemnify and hold harmless the Company, its affiliates, their respective
officers, directors, employees, representatives and agents, and each person, if
any, who controls the Company within the meaning of the Securities Act or the
Exchange Act (collectively referred to for purposes of this Section 9(b) and
Section 10 as the Company), from and against any loss, claim, damage or
liability, joint or several, or any action in respect thereof, to which the
Company may become subject, whether commenced or threatened, under the
Securities Act, the Exchange Act, any other federal or state statutory law or
regulation, at common law or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, (i) any untrue statement or
alleged untrue statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement or the Prospectus or in any amendment or
supplement thereto or (ii) the omission or alleged omission to state therein 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, but in each case only to the extent that the untrue
statement or alleged untrue statement or omission or alleged omission was made
in reliance upon and in conformity with any Underwriters' Information, and shall
reimburse the Company for any legal or other expenses reasonably incurred by the
Company in connection with investigating or defending or preparing to defend
against or appearing as a third party witness in connection with any such loss,
claim, damage, liability or action as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under this
Section 9 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party pursuant to Section 9(a) or 9(b), notify the indemnifying
party in writing of the claim or the commencement of that action; provided,
however, that the failure to notify the indemnifying party shall not relieve it
from any liability which it may have under this Section 9 except to the extent
that it has been materially prejudiced (through the forfeiture of substantive
rights or defenses) by such failure; and, provided, further, that the failure to
notify the indemnifying party shall not relieve it from any liability which it
may have to an indemnified party otherwise than under this Section 9. If any
such claim or action shall be brought against an indemnified party, and it shall
notify the indemnifying party thereof, the indemnifying party shall be entitled
to participate therein and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense thereof with
counsel reasonably satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 9 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, that an
indemnified party shall have the right to employ its own counsel in any such
action, but the fees, expenses and other charges of such counsel for the
indemnified party will be at the expense of such indemnified party unless (1)
the employment of counsel by the indemnified party has been authorized in
writing by the indemnifying party, (2) the indemnified party has reasonably
concluded (based upon advice of counsel to the indemnified party) that there may
be legal defenses available to it or other indemnified parties that are
different from or in addition to those available to the indemnifying party, (3)
a conflict or potential conflict exists (based upon advice of counsel to the
indemnified party) between the indemnified party and the indemnifying party (in
which case the indemnifying party will not have the right to direct the defense
of such action on behalf of the indemnified party) or (4) the indemnifying party
has not in fact employed counsel reasonably satisfactory to the indemnified
party to assume the defense of such action within a reasonable time after
receiving notice of the commencement of the action, in each of which cases the
reasonable fees, disbursements and other charges of counsel will be at the
expense of the indemnifying party or parties. It is understood that the
indemnifying party or parties shall not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the reasonable fees,
disbursements and other charges of more than one separate firm of attorneys (in
addition to any local counsel) at any one time for all such indemnified party or
parties. Each indemnified party, as a condition of the indemnity agreements
contained in Sections 9(a) and 9(b), shall use all reasonable efforts to
cooperate with the indemnifying party in the defense of any such action or
claim. No indemnifying party shall be liable for any settlement of any such
action effected without its written consent (which consent shall not be
unreasonably withheld), but if settled with its written consent or if there be a
final judgment for the plaintiff in any such action, the indemnifying party
agrees to indemnify and hold harmless any indemnified party from and against any
loss or liability by reason of such settlement or judgment. No indemnifying
party shall, without the prior written consent of the indemnified party (which
consent shall not be unreasonably withheld), effect any settlement of any
pending or threatened proceeding in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such proceeding.
The obligations of the Company and the Underwriters in this
Section 9 and in Section 10 are in addition to any other liability that the
Company or the Underwriters, as the case may be, may otherwise have, including
in respect of any breaches of representations, warranties and agreements made
herein by any such party.
10. Contribution. If the indemnification provided for in
Section 9 is unavailable or insufficient to hold harmless an indemnified party
under Section 9(a) or 9(b), then each indemnifying party shall, in lieu of
indemnifying such indemnified party, contribute to the amount paid or payable by
such indemnified party as a result of such loss, claim, damage or liability, or
action in respect thereof, (i) in such proportion as shall be appropriate to
reflect the relative benefits received by the Company on the one hand and the
Underwriters on the other from the offering of the Securities or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company on
the one hand and the Underwriters on the other with respect to the statements or
omissions that resulted in such loss, claim, damage or liability, or action in
respect thereof, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the Underwriters
on the other with respect to such offering shall be deemed to be in the same
proportion as the total net proceeds from the offering of the Securities
purchased under this Agreement (before deducting expenses) received by or on
behalf of the Company, on the one hand, and the total underwriting discounts and
commissions received by the Underwriters with respect to the Securities
purchased under this Agreement, on the other, bear to the total gross proceeds
from the sale of the Securities under this Agreement, in each case as set forth
in the table on the cover page of the Prospectus. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to the Company or information supplied by the Company on
the one hand or to any Underwriters' Information on the other, the intent of the
parties and their relative knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. The Company and the
Underwriters agree that it would not be just and equitable if contributions
pursuant to this Section 10 were to be determined by pro rata allocation (even
if the Underwriters were treated as one entity for such purpose) or by any other
method of allocation that does not take into account the equitable
considerations referred to herein. The amount paid or payable by an indemnified
party as a result of the loss, claim, damage or liability, or action in respect
thereof, referred to above in this Section 10 shall be deemed to include, for
purposes of this Section 10, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending or
preparing to defend any such action or claim. Notwithstanding the provisions of
this Section 10, no Underwriter shall be required to contribute any amount in
excess of the amount by which the total underwriting discounts and commissions
received by such Underwriter with respect to the Securities purchased by it
under this Agreement exceeds the amount of any damages which such Underwriter
has otherwise paid or become liable to pay by reason of any untrue or alleged
untrue statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations to contribute as
provided in this Section 10 are several in proportion to their respective
purchase obligations and not joint.
11. Persons Entitled to Benefit of Agreement. This Agreement
shall inure to the benefit of and be binding upon the Underwriters, the Company
and their respective successors. This Agreement and the terms and provisions
hereof are for the sole benefit of only those persons, except as provided in
Sections 9 and 10 with respect to affiliates, officers, directors, employees,
representatives, agents and controlling persons of the Company and the
Underwriters. Nothing in this Agreement is intended or shall be construed to
give any person, other than the persons referred to in this Section 11, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision contained herein.
12. Expenses. The Company agrees with the Underwriters to pay
(a) the costs incident to the authorization, issuance, sale, preparation and
delivery of the Securities and any taxes payable in that connection; (b) the
costs incident to the preparation, printing and filing under the Securities Act
of the Registration Statement and any amendments and exhibits thereto; (c) the
costs of printing and distributing the Registration Statement as originally
filed and each amendment thereto and any post-effective amendments thereof
(including, in each case, exhibits), any Preliminary Prospectus, the Prospectus
and any amendment or supplement thereto, all as provided in this Agreement; (d)
the costs of printing, reproducing and distributing the Indenture, this
Agreement and any underwriting and selling group documents; (e) the filing fees
incident to securing any required review by the National Association of
Securities Dealers, Inc. of the terms of sale of the Securities; (f) the fees
and expenses of the Company's counsel and independent accountants; (g) the fees
and expenses of preparing, printing and distributing Blue Sky Memoranda
(including related fees and expenses of counsel to the Underwriters); (h) any
fees charged by rating agencies for rating the Securities; (i) all fees and
expenses of the Trustee and any paying agent (including related fees and
expenses of any counsel to such parties); and (j) all other costs and expenses
incident to the performance of the obligations of the Company under this
Agreement; provided that, except as provided in this Section 12 and Section 8,
the Underwriters shall pay their own costs and expenses.
13. Survival. The respective indemnities, rights of
contribution, representations, warranties and agreements of the Company and the
Underwriters contained in this Agreement or made by or on behalf of the Company
or the Underwriters pursuant to this Agreement or any certificate delivered
pursuant hereto shall survive the delivery of and payment for the Securities and
shall remain in full force and effect, regardless of any termination or
cancellation of this Agreement or any investigation made by or on behalf of any
of them or any of their respective affiliates, officers, directors, employees,
representatives, agents or controlling persons.
14. Notices, etc.. All statements, requests, notices and
agreements hereunder shall be in writing, and:
(a) if to the Underwriters, shall be delivered or sent by mail
or telecopy transmission to Chase Securities Inc., 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Xxxxx Xxxxx (telecopier no.: (212)
270-0994); or
(b) if to the Company, shall be delivered or sent by mail or
telecopy transmission to the address of the Company set forth in the
Registration Statement, Attention: Chief Financial Officer (telecopier
no.: (000) 000-0000);
provided that any notice to an Underwriter pursuant to Section 9(c) shall also
be delivered or sent by mail to such Underwriter at its address set forth on the
signature page hereof. Any such statements, requests, notices or agreements
shall take effect at the time of receipt thereof. The Company shall be entitled
to act and rely upon any request, consent, notice or agreement given or made on
behalf of the Underwriters by CSI.
15. Definition of Terms. For purposes of this Agreement, (a)
the term "business day" means any day on which the New York Stock Exchange, Inc.
is open for trading and (b) the term "subsidiary" has the meaning set forth in
Rule 405 under the Securities Act.
16. Underwriters' Information. The parties hereto acknowledge
and agree that the Underwriters' Information consists solely of the following
information in any Preliminary Prospectus and the Prospectus: (i) the last
paragraph on the front cover page concerning the terms of the offering by the
Underwriters; and (ii) the statements concerning the Underwriters contained in
the Prospectus under the heading "Underwriting".
17. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
18. Counterparts. This Agreement may be executed in one or
more counterparts (which may include counterparts delivered by telecopier) and,
if executed in more than one counterpart, the executed counterparts shall each
be deemed to be an original, but all such counterparts shall together constitute
one and the same instrument.
19. Amendments. No amendment or waiver of any provision of
this Agreement, nor any consent or approval to any departure therefrom, shall in
any event be effective unless the same shall be in writing and signed by the
parties hereto.
20. Headings. The headings herein are inserted for convenience
of reference only and are not intended to be part of, or to affect the meaning
or interpretation of, this Agreement.
If the foregoing is in accordance with your understanding of
our agreement, kindly sign and return to us a counterpart hereof, whereupon this
instrument will become a binding agreement between the Company and the several
Underwriters in accordance with its terms.
Very truly yours,
ADELPHIA COMMUNICATIONS CORPORATION
By /s/ Xxxxx Xxxxx
Name: Xxxxx Xxxxx
Title: Vice-President
Accepted:
CHASE SECURITIES INC.,
on behalf of itself and the other
Underwriters listed on Schedule 1 hereto
By /s/ Xxxxxxxxxxx Xxxxxxxx
Authorized Signatory
Address for notices pursuant to Section 9(c):
0 Xxxxx Xxxxx, 00xx xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Legal Department
SCHEDULE 1
Principal
Amount
Underwriters of Securities
------------ -------------
Chase Securities Inc. $157,500,000
Xxxxxxx Xxxxx Xxxxxx Inc. 45,290,000
Scotia Capital Markets (USA) Inc. 45,290,000
TD Securities (USA) Inc. 45,290,000
Barclays Capital, Inc. 22,610,000
Fleet Securities, Inc. 11,340,000
Xxxxxxx Xxxxx Securities Inc. 11,340,000
PNC Capital Markets, Inc. 11,340,000
-----------
Total $350,000,000
