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EXHIBIT 1.1
EXECUTION COPY
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INTERMEDIA COMMUNICATIONS INC.
$300,000,000
9 1/2% Senior Notes due 2009
Senior Note Purchase Agreement
February 19, 1999
BEAR, XXXXXXX & CO. INC.
XXXXXXX XXXXX & CO.
XXXXXXX XXXXX BARNEY
NATIONSBANC XXXXXXXXXX SECURITIES LLC
WARBURG DILLON READ LLC
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INTERMEDIA COMMUNICATIONS INC.
$300,000,000
9 1/2% Senior Notes Due 2009
SENIOR NOTE PURCHASE AGREEMENT
February 19, 1998
New York, New York
BEAR, XXXXXXX & CO. INC.
XXXXXXX XXXXX & CO.
XXXXXXX XXXXX XXXXXX
NATIONSBANC XXXXXXXXXX SECURITIES LLC
WARBURG DILLON READ LLC
c/o Bear, Xxxxxxx & Co. Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies & Gentlemen:
Intermedia Communications Inc., a Delaware corporation (the
"Company"), proposes to issue and sell to Bear, Xxxxxxx & Co. Inc., Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, Xxxxxxx Xxxxx Barney Inc.,
NationsBanc Xxxxxxxxxx Securities LLC and Warburg Dillon Read LLC (each, an
"Initial Purchaser" and collectively, the "Initial Purchasers") $300,000,000
aggregate principal amount of 9 1/2% Senior Notes due 2009 subject to the terms
and conditions set forth herein, which will be issued pursuant to an indenture
(the "Indenture"), to be dated the Closing Date (as defined below), between the
Company and SunTrust Bank, Central Florida, National Association, as trustee
(the "Trustee").
1. Issuance of Senior Notes. The Company proposes to,
upon the terms and subject to the conditions set forth herein, issue and sell to
the Initial Purchasers $300,000,000 aggregate principal amount of 9 1/2% Senior
Notes due 2009 (the "Senior Notes"). The Senior Notes are more fully described
in the Offering Memorandum referred to below. For purposes of this Purchase
Agreement (this "Agreement"), the term "Subsidiaries" shall mean the entities
listed on Schedules 1 and 2 hereto. The Subsidiaries listed on Schedule 2 are in
the process of being merged with and into the Company. Capitalized terms used
but not otherwise defined herein shall have the meanings given to such terms in
the Indenture.
The proceeds to the Company from the sale to the Initial
Purchasers of the Senior Notes will be used to fund up to 80% of the cost of the
acquisition or construction of Telecommunications Related Assets (as described
in the Offering Memorandum) and, subject to certain conditions, may be used to
pay interest on the Senior Notes.
Upon original issuance thereof, and until such time as the
same is no longer required under the applicable requirements of the Securities
Act of 1933, as amended (the "Act"), the Senior Notes shall bear the following
legend:
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"THE SECURITY (OR ITS PREDECESSORS) EVIDENCED HEREBY
HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT
OF 1933 (THE "SECURITIES ACT"), AND THE SECURITY EVIDENCED
HEREBY OR ANY INTEREST OR PARTICIPATION HEREIN MAY NOT BE
OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR
UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO,
REGISTRATION. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE
HEREOF AGREES (A) TO OFFER, SELL, PLEDGE OR OTHERWISE TRANSFER
THIS SECURITY ONLY (1) TO THE COMPANY, (2) PURSUANT TO A
REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER
THE SECURITIES ACT, (3) TO A PERSON IT REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (4)
PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR
OUTSIDE THE UNITED STATES IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 904 UNDER THE SECURITIES ACT, (5) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE
501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE
SECURITIES ACT OR (6) PURSUANT TO ANY OTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS UNDER THE
SECURITIES ACT (AND IN THE CASE OF A TRANSFER PURSUANT TO
CLAUSE (5) OR (6), BASED ON AN OPINION OF COUNSEL IF THE
COMPANY SO REQUESTS), SUBJECT IN EACH OF THE FOREGOING CASES
TO APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES OR ANY OTHER APPLICABLE JURISDICTION AND (B) THAT IT
WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY
PURCHASER FROM IT OF THE SECURITY EVIDENCED HEREBY OF THE
RESALE RESTRICTIONS SET FORTH IN (A) ABOVE."
2. Offering. The Senior Notes will be offered and sold
to the Initial Purchasers pursuant to an exemption from the registration
requirements under the Act. The Company has prepared a preliminary offering
memorandum, dated February 8, 1999 (the "Preliminary Offering Memorandum"), and
a final offering memorandum, dated February 19, 1999 the "Offering Memorandum"),
relating to the Company and the Senior Notes.
The Initial Purchasers have advised the Company that the
Initial Purchasers will make offers (the "Exempt Resales") of the Senior Notes
on the terms set forth in the Offering Memorandum, as amended or supplemented,
solely to persons whom any of the Initial Purchasers reasonably believe to be
"qualified institutional buyers," as defined in Rule 144A under the Act
("QIBs"). Such QIBs shall be referred to herein as the "Eligible Purchasers."
The Initial Purchasers will offer the Senior Notes to such Eligible Purchasers
initially at a purchase price of 99.551% of the principal amount of such Senior
Notes. Such price may be changed at any time without notice.
Holders (including subsequent transferees) of the Senior Notes
will have the registration rights set forth in the registration rights agreement
relating thereto (the "Registration Rights
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Agreement"), to be dated the Closing Date, for so long as such Senior Notes
constitute "Transfer Restricted Securities" (as defined in such agreement).
Pursuant to the Registration Rights Agreement, the Company will agree to file
with the Securities and Exchange Commission (the "Commission"), under the
circumstances set forth therein, (i) a registration statement under the Act (the
"Exchange Offer Registration Statement") with respect to an offer to exchange
(the "Exchange Offer") the Senior Notes for a new issue of 9 1/2% Senior Notes
due 2009 (the "Exchange Notes") to be offered in exchange for the Senior Notes
and/or (ii) a shelf registration statement pursuant to Rule 415 under the Act
(the "Shelf Registration Statement") relating to the resale by certain holders
of the Senior Notes, and to use its best efforts to cause such Registration
Statements to be declared effective and consummate the Exchange Offer. This
Agreement, the Senior Notes, the Indenture, and the Registration Rights
Agreement are hereinafter sometimes referred to collectively as the "Operative
Documents."
3. Purchase, Sale and Delivery.
(a) On the basis of the representations,
warranties and covenants contained in this Agreement, and subject to its terms
and conditions, the Company agrees to issue and sell to each Initial Purchaser,
and each Initial Purchaser agrees severally and not jointly to purchase from the
Company, that amount of Senior Notes set forth opposite its name on Schedule 3
hereto. The purchase price for the Senior Notes shall be 97.750% of the
principal amount thereof.
(b) Delivery to the Initial Purchasers of, and
payment by the Initial Purchasers for, the Senior Notes shall be made at the
offices of Xxxxxx & Xxxxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, or such other
location as may be mutually acceptable. Such delivery and payment shall be made
at 9:00 a.m. New York time, on February 24, 1999 or at such other time as shall
be agreed upon by the Initial Purchasers and the Company. The time and date of
such delivery and payment are herein called the "Closing Date."
(c) One or more Senior Notes in global form,
(the "Global Securities"), registered in the name of Cede & Co. (the "Global
Security Holder"), as nominee of the Depository Trust Company ("DTC"), having an
aggregate principal amount corresponding to the aggregate principal amount of
the Senior Notes sold shall be delivered by the Company to the Initial
Purchasers (or as the Initial Purchasers direct), against payment by the Initial
Purchasers of the purchase price therefor, by wire transfer of immediately
available funds to an account specified by the Company or as the Company may
direct in writing, provided that the Company shall give at least two business
days' prior written notice to the Initial Purchasers of the information required
to effect such wire transfers. The Global Securities shall be made available to
the Initial Purchasers for inspection not later than 9:30 a.m., New York City
time, on the business day immediately preceding the Closing Date.
4. Agreements of the Company. The Company covenants and
agrees with each of the Initial Purchasers as follows:
(a) To advise the Initial Purchasers promptly
and, if requested by the Initial Purchasers, confirm such advice in writing, (i)
of the issuance by any state securities commission of any stop order suspending
the qualification or exemption from qualification of any Senior Notes for
offering or sale in any jurisdiction, or the initiation of any proceeding for
such purpose by any state securities commission or other regulatory authority
and (ii) of the happening of any event that, in the reasonable opinion of either
counsel to the Company or counsel to the Initial Purchasers, makes any statement
of a material fact made in the Preliminary Offering Memorandum or the
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Offering Memorandum untrue or that requires the making of any additions to or
changes in the Preliminary Offering Memorandum or the Offering Memorandum in
order to make the statements therein, in the light of the circumstances under
which they are made, not misleading. The Company shall use its best efforts to
prevent the issuance of any stop order or order suspending the qualification or
exemption of any Senior Notes under any state securities or Blue Sky laws and,
if at any time any state securities commission or other regulatory authority
shall issue an order suspending the qualification or exemption of any Senior
Notes under any state securities or Blue Sky laws, the Company shall use its
best efforts to obtain the withdrawal or lifting of such order at the earliest
possible time.
(b) To furnish the Initial Purchasers and those
persons identified by the Initial Purchasers to the Company, without charge, as
many copies of the Preliminary Offering Memorandum and the Offering Memorandum,
and any amendments or supplements thereto, as the Initial Purchasers may
reasonably request. The Company consents to the use of the Preliminary Offering
Memorandum and the Offering Memorandum, and any amendments and supplements
thereto required pursuant hereto, by the Initial Purchasers in connection with
Exempt Resales.
(c) Not to amend or supplement the Preliminary
Offering Memorandum or the Offering Memorandum prior to the Closing Date unless
the Initial Purchasers shall previously have been advised thereof and shall not
have objected thereto within a reasonable time after being furnished a copy
thereof. The Company shall promptly prepare, upon the Initial Purchasers'
request, any amendment or supplement to the Preliminary Offering Memorandum or
the Offering Memorandum that may be necessary or advisable in connection with
Exempt Resales.
(d) If, after the date hereof and prior to
consummation of any Exempt Resale, any event shall occur as a result of which,
in the judgment of the Company or in the reasonable opinion of either counsel to
the Company or counsel to the Initial Purchasers, it becomes necessary or
advisable to amend or supplement the Preliminary Offering Memorandum or Offering
Memorandum in order to make the statements therein, in the light of the
circumstances when such Offering Memorandum is delivered to an Eligible
Purchaser which is a prospective purchaser, not misleading, or if it is
necessary or advisable to amend or supplement the Preliminary Offering
Memorandum or Offering Memorandum to comply with applicable law, (i) notify the
Initial Purchasers and (ii) forthwith to prepare an appropriate amendment or
supplement to such Offering Memorandum so that the statements therein as so
amended or supplemented will not, in the light of the circumstances when it is
so delivered, be misleading, or so that such Offering Memorandum will comply
with applicable law.
(e) To cooperate with the Initial Purchasers and
counsel to the Initial Purchasers in connection with the qualification or
registration of the Senior Notes under the securities or Blue Sky laws of such
jurisdictions as the Initial Purchasers may reasonably request and to continue
such qualification in effect so long as required for the Exempt Resales;
provided, however, that the Company shall not be required in connection
therewith to register or qualify as a foreign corporation where it is not now so
qualified or to take any action that would subject it to service of process in
suits or taxation, in each case, other than as to matters and transactions
relating to the Preliminary Offering Memorandum, the Offering Memorandum or
Exempt Resales, in any jurisdiction where it is not now so subject.
(f) Whether or not the transactions contemplated
by this Agreement are consummated or this Agreement becomes effective or is
terminated, to pay all costs, expenses, fees and taxes incident to the
performance of the obligations of the Company hereunder, including in connection
with: (i) the preparation, printing, filing and distribution of the Preliminary
Offering Memorandum and the Offering Memorandum (including, without limitation,
financial statements) and all amendments and supplements thereto required
pursuant hereto, (ii) the preparation (including, without limitation,
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duplication costs) and delivery of all preliminary and final Blue Sky memoranda
prepared and delivered in connection herewith and with the Exempt Resales, (iii)
the issuance, transfer and delivery by the Company of the Senior Notes to the
Initial Purchasers, (iv) the qualification or registration of the Senior Notes
for offer and sale under the securities or Blue Sky laws of the several states
(including, without limitation, the cost of printing and mailing a preliminary
and final Blue Sky Memorandum and the reasonable fees and disbursements of
counsel to the Initial Purchasers relating thereto), (v) furnishing such copies
of the Preliminary Offering Memorandum and the Offering Memorandum, and all
amendments and supplements thereto, as may be requested for use in connection
with Exempt Resales, (vi) the preparation of certificates for the Senior Notes
(including, without limitation, printing and engraving thereof), (vii) the fees,
disbursements and expenses of the Company's counsel and accountants, (viii) all
expenses and listing fees in connection with the application for quotation of
the Senior Notes in the National Association of Securities Dealers, Inc.
("NASD") Automated Quotation System - PORTAL ("PORTAL"), (ix) all fees and
expenses (including fees and expenses of counsel to the Company) of the Company
in connection with the approval of the Senior Notes by DTC for "book-entry"
transfer, (x) rating the Senior Notes by rating agencies, (xi) the reasonable
fees and expenses of the Trustee and its counsel in connection with the
Indenture and the Senior Notes, (xii) the performance by the Company of its
other obligations under this Agreement and the other Operative Documents and
(ix) "roadshow" travel and other expenses incurred in connection with the
marketing and sale of the Senior Notes (other than out-of-pocket expenses
incurred by the Initial Purchasers for travel, meals and lodgings).
(g) To use the proceeds from the sale of the
Senior Notes in the manner described in the Offering Memorandum under the
caption "Use of Proceeds."
(h) Not to voluntarily claim, and to resist
actively any attempts to claim, the benefit of any usury laws against the
holders of any Senior Notes.
(i) To do and perform all things required to be
done and performed under this Agreement by it prior to or after the Closing Date
and to satisfy all conditions precedent on its part to the delivery of the
Senior Notes.
(j) Not to sell, offer for sale or solicit
offers to buy or otherwise negotiate in respect of any security (as defined in
the Act) that would be integrated with the sale of the Senior Notes in a manner
that would require the registration under the Act of the sale to the Initial
Purchasers or the Eligible Purchasers of the Senior Notes or to take any other
action that would result in the Exempt Resales not being exempt from
registration under the Act.
(k) For so long as any of the Senior Notes
remain outstanding and during any period in which the Company is not subject to
Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), to make available to any QIB or beneficial owner of Senior
Notes in connection with any sale thereof and any prospective purchaser of such
Senior Notes from such QIB or beneficial owner, the information required by Rule
144A(d)(4) under the Act.
(l) In accordance with the terms of the
Registration Rights Agreement, to cause the Exchange Offer to be made in the
appropriate form to permit registered Senior Notes to be offered in exchange for
the Senior Notes and to comply with all applicable federal and state securities
laws in connection with the Exchange Offer.
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(m) To comply with all of its agreements set
forth in the Registration Rights Agreement and all agreements set forth in the
representation letters of the Company to DTC relating to the approval of the
Senior Notes by DTC for "book-entry" transfer.
(n) To use its best efforts to effect the
inclusion of the Senior Notes in PORTAL and to obtain approval of the Senior
Notes by DTC for "book-entry" transfer.
(o) During a period of five years following the
Closing Date, to deliver without charge to each of the Initial Purchasers, as
they may reasonably request, promptly upon their becoming available, copies of
(i) all reports or other publicly available information that the Company shall
mail or otherwise make available to its stockholders and (ii) all reports,
financial statements and proxy or information statements filed by the Company
with the Commission or any national securities exchange and such other publicly
available information concerning the Company or its Subsidiaries, including
without limitation, press releases.
(p) Prior to the Closing Date, to furnish to
each of the Initial Purchasers, as soon as they have been prepared in the
ordinary course by the Company, copies of any consolidated financial statements
or any unaudited interim financial statements of the Company for any period
subsequent to the periods covered by the financial statements appearing in the
Offering Memorandum.
(q) Neither the Company nor any of its
subsidiaries will take, directly or indirectly, any action designed to, or that
might reasonably be expected to, cause or result in stabilization or
manipulation of the price of any security of the Company to facilitate the sale
or resale of the Senior Notes. Except as permitted by the Act, the Company will
not distribute any preliminary offering memorandum, offering memorandum or other
offering material in connection with the offering and sale of the Senior Notes.
(r) To comply with the agreements in the
Indenture, the Registration Rights Agreement, and any other Operative Document.
(s) Not to engage in any directed selling
efforts with respect to the Senior Notes within the meaning of Regulation S, and
that the Company and each person acting on behalf of the Company has complied
and will comply with the offering restrictions requirement of Regulation S.
5. Representations and Warranties.
(a) The Company represents and warrants to each
of the Initial Purchasers that:
(i) The Preliminary Offering Memorandum
and the Offering Memorandum have been prepared in connection with the Exempt
Resales. The Preliminary Offering Memorandum and the Offering Memorandum do not,
and any supplement or amendment to them will not, contain any untrue statement
of a material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made, not misleading, except that the representations and warranties contained
in this paragraph shall not apply to statements in or omissions from the
Preliminary Offering Memorandum and the Offering Memorandum (or any supplement
or amendment thereto) made in reliance upon and in conformity with information
relating to the Initial Purchasers furnished to the Company in writing by the
Initial Purchasers expressly for use therein. No stop order preventing the use
of the Preliminary Offering Memorandum or the
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Offering Memorandum, or any amendment or supplement thereto, or any order
asserting that any of the transactions contemplated by this Agreement are
subject to the registration requirements of the Act, has been issued.
(ii) When the Senior Notes are issued
and delivered pursuant to this Agreement, no Senior Notes will be of the same
class (within the meaning of Rule 144A under the Act) as securities of the
Company that are listed on a national securities exchange registered under
Section 6 of the Exchange Act or that are quoted in a United States automated
inter-dealer quotation system.
(iii) Each of the Company and the
Subsidiaries listed on Schedule 1 (A) has been duly organized and is validly
existing as a corporation in good standing under the laws of its respective
jurisdiction of incorporation, (B) has all requisite corporate power and
authority to carry on its business as it is currently being conducted and as
described in the Offering Memorandum and to own, lease and operate its
properties, and (C) is duly qualified and in good standing as a foreign
corporation authorized to do business in each jurisdiction in which the nature
of its business or its ownership or leasing of property requires such
qualification except, with respect to clauses (A) (as it relates to good
standing) and (C), where the failure to be so qualified or in good standing does
not and could not reasonably be expected to (x) individually or in the
aggregate, result in a material adverse effect on the properties, business,
results of operations, condition (financial or otherwise), affairs or prospects
of the Company and the Subsidiaries, taken as a whole, (y) interfere with or
adversely affect the issuance or marketability of the Senior Notes pursuant
hereto or (z) in any manner draw into question the validity of this Agreement or
any other Operative Document or the transactions described in the Offering
Memorandum under the caption "Use of Proceeds" (any of the events set forth in
clauses (x), (y) or (z), a "Material Adverse Effect").
(iv) Each of the Subsidiaries listed on
Schedule 2 (A) has been duly organized and is validly existing as a corporation
in good standing under the laws of its respective jurisdiction of incorporation,
(B) has all requisite corporate power and authority to carry on its business as
it is currently being conducted and as described in the Offering Memorandum and
to own, lease and operate its properties, and (C) is duly qualified and in good
standing as a foreign corporation authorized to do business in each jurisdiction
in which the nature of its business or its ownership or leasing of property
requires such qualification except, with respect to clauses (A) and (C), where
the failure to be validly existing, qualified or in good standing does not and
could not reasonably be expected to individually or in the aggregate, result in
a Material Adverse Effect.
(v) The Company has no direct or
indirect subsidiaries as of the Closing Date other than the Subsidiaries. No
Subsidiary listed on Schedule 2 hereto is material to the business and
operations of the Company or is a "significant subsidiary" as defined in Article
1, Rule 1-02 of Regulation S-X, promulgated pursuant to the Act, as such
Regulation is in effect on the date hereof.
(vi) All of the outstanding shares of
capital stock of the Company have been duly authorized, validly issued, and are
fully paid and nonassessable and were not issued in violation of any preemptive
or similar rights. As of the dates specified in the Offering Memorandum under
the caption "Capitalization," on a combined basis, after giving effect to the
issuance and sale of the Senior Notes pursuant hereto and to the events stated
therein, the Company had an authorized and outstanding consolidated
capitalization as set forth therein.
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(vii) All of the outstanding capital
stock of, or other ownership interests in, the Subsidiaries is owned by the
Company, free and clear of any security interest, claim, lien, limitation on
voting rights or encumbrance. Except as disclosed in the Offering Memorandum
there are not currently, and will not be as a result of the Offering, any
outstanding subscriptions, rights, warrants, calls, commitments of sale or
options to acquire or instruments convertible into or exchangeable for, any
capital stock or other equity interest of the Company or any Subsidiary (other
than options issued pursuant to the Company's stock option plans, the 153,500
warrants each to purchase 4.38 shares of Common Stock, a warrant to purchase
200,000 shares of Common Stock, the 7% Series D Junior Convertible Preferred
Stock (the "Series D Preferred Stock"), the 7% Series E Junior Convertible
Preferred Stock (the "Series E Preferred Stock") and the 7% Series F Junior
Convertible Preferred Stock (the "Series F Preferred Stock"), and noting that at
present rights trade with the Common Stock).
(viii) The Company has all requisite
corporate power and authority to execute, deliver and perform its obligations
under this Agreement, the Indenture, the Registration Rights Agreement, and the
other Operative Documents and to consummate the transactions contemplated hereby
and thereby, including, without limitation, the corporate power and authority to
issue, sell and deliver the Senior Notes as provided herein and therein.
(ix) This Agreement has been duly and
validly authorized, executed and delivered by the Company and is the legal,
valid and binding agreement of the Company, enforceable against the Company in
accordance with its terms, except insofar as indemnification and contribution
provisions may be limited by applicable law or equitable principles and subject
to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization or
similar laws affecting the rights of creditors generally and subject to general
principles of equity.
(x) The Indenture has been duly and
validly authorized by the Company and, when duly executed and delivered by the
Company, will be the legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, subject to
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization or
similar laws affecting the rights of creditors generally and subject to general
principles of equity. The Offering Memorandum contains a fair summary of the
terms of the Indenture.
(xi) The Senior Notes have been duly and
validly authorized by the Company, and have been duly and validly authorized for
issuance and sale to the Initial Purchasers by the Company pursuant to this
Agreement and, when issued and authenticated in accordance with the terms of the
Indenture and delivered against payment therefor in accordance with the terms
hereof and thereof, will be the legal, valid and binding obligations of the
Company, enforceable against the Company in accordance with their terms and
entitled to the benefits of the Indenture, subject to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization or similar laws affecting the
rights of creditors generally and subject to general principles of equity. The
Offering Memorandum contains a fair summary of the terms of the Senior Notes.
(xii) The Exchange Notes have been duly
and validly authorized for issuance by the Company and, when issued and
authenticated in accordance with the terms of the Exchange Offer and the
Indenture, will be the legal, valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms and entitled to
the benefits of the Indenture, subject to applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization or similar laws affecting the rights of
creditors generally and subject to general principles of equity. The Offering
Memorandum contains a fair summary of the terms of the Exchange Notes.
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(xiii) The Registration Rights Agreement
has been duly and validly authorized by the Company and, when duly executed and
delivered by the Company, will be the legal, valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms, subject
to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization or
similar laws affecting the rights of creditors generally and subject to general
principles of equity. The Offering Memorandum contains a fair summary of the
terms of the Registration Rights Agreement.
(xiv) None of the Company or any
Subsidiary is and, after giving effect to the Offering, will not be (A) in
violation of its charter or bylaws, (B) in default in the performance of any
bond, debenture, note, indenture, mortgage, deed of trust or other agreement or
instrument to which it is a party or by which it is bound or to which any of its
properties is subject, or (C) in violation of any local, state or Federal law,
statute, ordinance, rule, regulation, requirement, judgment or court decree
(including, without limitation, the Communications Act and the rules and
regulations of the FCC and environmental laws, statutes, ordinances, rules,
regulations, judgments or court decrees) applicable to the Company or any
Subsidiary or any of their assets or properties (whether owned or leased) other
than, in the case of clauses (B) and (C), any default or violation that (i)
could not reasonably be expected to have a Material Adverse Effect or (2) which
is disclosed in the Offering Memorandum. There exists no condition that, with
notice, the passage of time or otherwise, would constitute a default under any
such document or instrument, except as disclosed in the Offering Memorandum.
(xv) None of (A) the execution, delivery
or performance by the Company of this Agreement and the other Operative
Documents, (B) the issuance and sale of the Senior Notes and (C) the
consummation by the Company and the Subsidiaries of the transactions described
in the Offering Memorandum under the caption "Use of Proceeds" violate, conflict
with or constitute a breach of any of the terms or provisions of, or a default
under (or an event that with notice or the lapse of time, or both, would
constitute a default), or require consent under, or result in the imposition of
a lien or encumbrance on any properties of the Company or any Subsidiary, or an
acceleration of any indebtedness of the Company or any Subsidiary pursuant to,
(i) the charter or bylaws of the Company or any Subsidiary, (ii) any bond,
debenture, note, indenture, mortgage, deed of trust or other agreement or
instrument to which the Company or any Subsidiary is a party or by which any of
them or their property is or may be bound, (iii) any statute, rule or regulation
applicable to the Company or any Subsidiary or any of their respective assets or
properties or (iv) any judgment, order or decree of any court or governmental
agency or authority having jurisdiction over the Company or any Subsidiary or
any of their assets or properties, except in the case of clauses (ii), (iii) and
(iv) for such violations conflicts, breaches, defaults, consents, impositions of
liens or accelerations that (x) would not, singly or in the aggregate, have a
Material Adverse Effect or (y) are disclosed in the Offering Memorandum. Other
than as described in the Offering Memorandum, no consent, approval,
authorization or order of, or filing, registration, qualification, license or
permit of or with, (A) any court or governmental agency, body or administrative
agency (including, without limitation, the FCC) or (B) any other person is
required for (1) the execution, delivery and performance by the Company of this
Agreement and the other Operative Documents, (2) the issuance and sale of the
Senior Notes and the transactions contemplated hereby and thereby, except (x)
such as have been obtained and made (or, in the case of the Registration Rights
Agreement, will be obtained and made) under the Act, the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act") and state securities or Blue Sky
laws and regulations or such as may be required by the NASD or (y) where the
failure to obtain any such consent, approval, authorization or order of, or
filing registration, qualification, license or permit would not reasonably be
expected to result in a Material Adverse Effect.
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(xvi) There is (i) no action, suit or
proceeding before or by any court, arbitrator or governmental agency, body or
official, domestic or foreign, now pending or, to the best knowledge of the
Company or any Subsidiary, threatened or contemplated to which the Company or
any Subsidiary is a party or to which the business or property of the Company or
any Subsidiary is subject, (ii) no statute, rule, regulation or order that has
been enacted, adopted or issued by any governmental agency or that has been
proposed by any governmental body or (iii) no injunction, restraining order or
order of any nature by a federal or state court or foreign court of competent
jurisdiction to which the Company or any Subsidiary is or may be subject or to
which the business, assets, or property of the Company or any Subsidiary are or
may be subject, that, in the case of clauses (i), (ii) and (iii) above, (w) is
required to be disclosed in the Preliminary Offering Memorandum and the Offering
Memorandum and that is not so disclosed, or (x) could reasonably be expected to,
individually or in the aggregate, result in a Material Adverse Effect.
(xvii) No action has been taken and no
statute, rule, regulation or order has been enacted, adopted or issued by any
governmental agency that prevents the issuance of the Senior Notes or prevents
or suspends the use of the Offering Memorandum; no injunction, restraining order
or order of any nature by a federal or state court of competent jurisdiction has
been issued that prevents the issuance of the Senior Notes or prevents or
suspends the sale of the Senior Notes in any jurisdiction referred to in Section
4(e) hereof; and every request of any securities authority or agency of any
jurisdiction for additional information has been complied with in all material
respects.
(xviii) Except as set forth in the Offering
Memorandum, there is (i) no significant unfair labor practice complaint pending
against the Company or any Subsidiary nor, to the best knowledge of the Company,
threatened against any of them, before the National Labor Relations Board, any
state or local labor relations board or any foreign labor relations board, and
no significant grievance or significant arbitration proceeding arising out of or
under any collective bargaining agreement is so pending against the Company or
any Subsidiary nor, to the best knowledge of the Company, threatened against any
of them, (ii) no significant strike, labor dispute, slowdown or stoppage pending
against the Company or any Subsidiary nor, to the best knowledge of the Company,
threatened against the Company or any Subsidiary and (iii) to the best knowledge
of the Company, no union representation question existing with respect to the
employees of the Company or any Subsidiary that, in the case of clauses (i),
(ii) or (iii), could reasonably be expected to result in a Material Adverse
Effect. To the best knowledge of the Company, no collective bargaining
organizing activities are taking place with respect to the Company or any
Subsidiary. None of the Company or any Subsidiary has violated (A) any federal,
state or local law or foreign law relating to discrimination in hiring,
promotion or pay of employees (except as set forth in the Offering Memorandum),
(B) any applicable wage or hour laws or (C) any provision of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), or the rules and
regulations thereunder, which in the case of clause (A), (B) or (C) above could
reasonably be expected to result in a Material Adverse Effect.
(xix) None of the Company or any
Subsidiary has violated any environmental, safety or similar law or regulation
applicable to it or its business or property relating to the protection of human
health and safety, the environment or hazardous or toxic substances or wastes,
pollutants or contaminants ("Environmental Laws"), lacks any permit, license or
other approval required of it under applicable Environmental Laws or is
violating any term or condition of such permit, license or approval, which could
reasonably be expected to, either individually or in the aggregate, have a
Material Adverse Effect.
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(xx) Each of the Company and the
Subsidiaries has (i) good and marketable title to all of the properties and
assets described in the Offering Memorandum as owned by it, free and clear of
all liens, charges, encumbrances and restrictions, except such as are described
in the Offering Memorandum or as would not have a Material Adverse Effect, (ii)
peaceful and undisturbed possession under all material leases to which it is a
party as lessee, (iii) all licenses, certificates, permits, authorizations,
approvals, franchises and other rights from, and has made all declarations and
filings with, all federal, state and local authorities (including, without
limitation, the FCC), all self-regulatory authorities and all courts and other
tribunals (each an "Authorization") necessary to engage in the business
conducted by it in the manner described in the Offering Memorandum, except as
described in the Offering Memorandum or where failure to hold such
Authorizations would not, individually or in the aggregate, have a Material
Adverse Effect and (iv) no reason to believe that any governmental body or
agency is considering limiting, suspending or revoking any such Authorization.
Except where the failure to be in full force and effect would not have a
Material Adverse Effect, all such Authorizations are valid and in full force and
effect, and each of the Company and the Subsidiaries is in compliance in all
material respects with the terms and conditions of all such Authorizations and
with the rules and regulations of the regulatory authorities having jurisdiction
with respect thereto. All material leases to which the Company and any
Subsidiary is a party are valid and binding, and no default by the Company or
any Subsidiary has occurred and is continuing thereunder and, to the best
knowledge of the Company and the Subsidiaries, no material defaults by the
landlord are existing under any such lease that could reasonably be expected to
result in a Material Adverse Effect.
(xxi) Each of the Company and the
Subsidiaries owns, possesses or has the right to employ all patents, patent
rights, licenses (including all FCC, state, local or other jurisdictional
regulatory licenses), inventions, copyrights, know-how (including trade secrets
and other unpatented and/or unpatentable proprietary or confidential
information, software, systems or procedures), trademarks, service marks and
trade names, inventions, computer programs, technical data and information
(collectively, the "Intellectual Property") presently employed by it or its
subsidiaries in connection with the businesses now operated by it or which are
proposed to be operated by it or its subsidiaries free and clear of and without
violating any right, claimed right, charge, encumbrance, pledge, security
interest, restriction or lien of any kind of any other person and none of the
Company or any Subsidiary has received any notice of infringement of or conflict
with asserted rights of others with respect to any of the foregoing, except as
could not reasonably be expected to have a Material Adverse Effect. The use of
the Intellectual Property in connection with the business and operations of the
Company and the Subsidiaries does not infringe on the rights of any person,
except as could not reasonably be expected to have a Material Adverse Effect.
(xxii) None of the Company or any
Subsidiary or, to the best knowledge of the Company, any of their respective
officers, directors, partners, employees, agents or affiliates or any other
person acting on behalf of the Company or any Subsidiary has, directly or
indirectly, given or agreed to give any money, gift or similar benefit (other
than legal price concessions to customers in the ordinary course of business) to
any customer, supplier, employee or agent of a customer or supplier, official or
employee of any governmental agency (domestic or foreign), instrumentality of
any government (domestic or foreign) or any political party or candidate for
office (domestic or foreign) or other person who was, is or may be in a position
to help or hinder the business of the Company and any Subsidiary (or assist the
Company or any Subsidiary in connection with any actual or proposed
transaction), which (i) might subject the Company or any Subsidiary, or any
other individual or entity, to any damage or penalty in any civil, criminal or
governmental litigation or proceeding (domestic or foreign), (ii) if not given
in the past, might have had a material adverse effect on
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the assets, business or operations of the Company or any Subsidiary or (iii) if
not continued in the future, might have a Material Adverse Effect.
(xxiii) All material tax returns required
to be filed by the Company and each of the Subsidiaries in all jurisdictions
have been so filed. All taxes, including withholding taxes, penalties and
interest, assessments, fees and other charges due or claimed to be due from such
entities or that are due and payable have been paid, other than those being
contested in good faith and for which adequate reserves have been provided or
those currently payable without penalty or interest. To the knowledge of the
Company, there are no material proposed additional tax assessments against the
Company, the assets or property of the Company or any Subsidiary.
(xxiv) None of the Company or any
Subsidiary is (i) an "investment company" or a company "controlled" by an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended (the "Investment Company Act"), or (ii) a "holding company" or a
"subsidiary company" or an "affiliate" of a holding company within the meaning
of the Public Utility Holding Company Act of 1935, as amended.
(xxv) Except as disclosed in the Offering
Memorandum, there are no holders of securities of the Company or any Subsidiary
who, by reason of the execution by the Company of this Agreement or any other
Operative Document to which it is a party or the consummation by the Company of
the transactions contemplated hereby and thereby, have the right to request or
demand that the Company or any Subsidiary registers under the Act or analogous
foreign laws and regulations securities held by them.
(xxvi) Each of the Company and the
Subsidiaries maintains a system of internal accounting controls sufficient to
provide reasonable assurance that: (i) transactions are executed in accordance
with management's general or specific authorizations; (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to maintain
accountability for assets; (iii) access to assets is permitted only in
accordance with management's general or specific authorization and (iv) the
recorded accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect thereto.
(xxvii) Each of the Company and the
Subsidiaries maintains insurance covering its properties, operations, personnel
and businesses. Such insurance insures against such losses and risks as are
adequate in accordance with customary industry practice to protect the Company
and the Subsidiaries and their respective businesses. None of the Company or any
Subsidiary has received notice from any insurer or agent of such insurer that
substantial capital improvements or other expenditures will have to be made in
order to continue such insurance. All such insurance is outstanding and duly in
force on the date hereof, subject only to changes made in the ordinary course of
business, consistent with past practice, which do not, singly or in the
aggregate, materially alter the coverage thereunder or the risks covered
thereby.
(xxviii) None of the Company or any
Subsidiary has (i) taken, directly or indirectly, any action designed to, or
that might reasonably be expected to, cause or result in stabilization or
manipulation of the price of any security of the Company to facilitate the sale
or resale of the Senior Notes or (ii) other than to the Initial Purchasers in
connection with the transactions contemplated hereby, since the date of the
Preliminary Offering Memorandum (A) sold, bid for, purchased or paid any person
any compensation for soliciting purchases of, the Senior Notes or (B) paid
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or agreed to pay to any person any compensation for soliciting another to
purchase any other securities of the Company.
(xxix) No registration under the Act of
the Senior Notes is required for the sale thereof to the Initial Purchasers as
contemplated hereby or for the Exempt Resales assuming (i) that the purchasers
who buy the Senior Notes in the Exempt Resales are Eligible Purchasers and (ii)
the accuracy of the Initial Purchasers' representations regarding the absence of
general solicitation in connection with the sale of Senior Notes to the Initial
Purchasers and the Exempt Resales contained herein. No form of general
solicitation or general advertising was used by the Company or any of its
representatives (other than the Initial Purchasers, as to which the Company
makes no representation or warranty) in connection with the offer and sale of
any of the Senior Notes in connection with Exempt Resales, including, but not
limited to, articles, notices or other communications published in any
newspaper, magazine, or similar medium or broadcast over television or radio, or
any seminar or meeting whose attendees have been invited by any general
solicitation or general advertising.
(xxx) Set forth on Schedule 4 hereto is a
list of each employee pension plan with respect to which the Company, or any
corporation considered an affiliate of the Company within the meaning of Section
407(d)(7) of ERISA (an "ERISA Affiliate"), is a party in interest or
disqualified person. The execution and delivery of this Agreement, the other
Operative Documents and the sale of the Senior Notes to be purchased by the
Eligible Purchasers will not involve any prohibited transaction within the
meaning of Section 406 of ERISA or Section 4975 of the Internal Revenue Code of
1986. The representation made by the Company in the preceding sentence is made
in reliance upon, and subject to the accuracy of and compliance with, the
representations and covenants made or deemed made by the Eligible Purchasers as
set forth in the Offering Memorandum under the caption "Notice to Investors."
(xxxi) Each of the Preliminary Offering
Memorandum and the Offering Memorandum, as of its date, and each amendment or
supplement thereto, as of its date, contains the information specified in, and
meets the requirements of, Rule 144A(d)(4) under the Act.
(xxxii) Subsequent to the respective dates
as of which information is given in the Offering Memorandum and up to the
Closing Date, except as set forth in the Offering Memorandum, (i) none of the
Company or any Subsidiary has incurred any liabilities or obligations, direct or
contingent, that are material, individually or in the aggregate, to the Company
and the Subsidiaries taken as a whole, nor entered into any transaction not in
the ordinary course of business, (ii) none of the Company or any Subsidiary has
incurred any liabilities or obligations, direct or contingent, that will be
material to the Company and the Subsidiaries taken as a whole, (iii) there has
not been, singly or in the aggregate, any change or development that could
reasonably be expected to result in a Material Adverse Effect and (iv) there has
been no dividend or distribution of any kind declared, paid or made by the
Company or any Subsidiary on any class of its capital stock, except for
dividends paid in respect of the Series B Redeemable Exchangeable Preferred
Stock due 2009 (the "Series B Preferred Stock") the Series D Preferred Stock,
the Series E Preferred Stock or the Series F Preferred Stock.
(xxxiii) None of the execution, delivery and
performance of this Agreement, the issuance and sale of the Senior Notes, the
application of the proceeds from the issuance and sale of the Senior Notes and
the consummation of the transactions contemplated thereby as set forth in the
Offering Memorandum will violate Regulations T, U or X promulgated by the Board
of Governors of the Federal Reserve System or analogous foreign laws and
regulations.
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(xxxiv) To the best knowledge of the
Company, each of the accountants who have certified or will certify the
financial statements included or to be included as part of the Offering
Memorandum are independent accountants. The historical financial statements of
the Company and its Subsidiaries comply as to form in all material respects with
the requirements applicable to registration statements on Form S-1 under the Act
and present fairly in all material respects the financial position and results
of operations of the Company and its Subsidiaries at the respective dates and
for the respective periods indicated. Such financial statements have been
prepared in accordance with generally accepted accounting principles applied on
a consistent basis throughout the periods presented. The pro forma financial
statements included in the Offering Memorandum have been prepared on a basis
consistent with such historical statements, except for the pro forma adjustments
specified therein, and give effect to assumptions made on a reasonable basis and
present fairly in all material respects the historical and proposed transactions
contemplated by this Agreement and the other Operative Documents; and such pro
forma financial statements comply as to form in all material respects with the
requirements applicable to pro forma financial statements included in
registration statements on Form S-1 under the Act. The other financial and
statistical information and data included in the Offering Memorandum, historical
and pro forma, are accurately presented in all material respects and prepared on
a basis consistent with the financial statements, historical and pro forma,
included in the Offering Memorandum and the books and records of the Company and
its Subsidiaries, as applicable.
(xxxv) The Company does not intend to, nor
does it believe that it will, incur debts beyond its ability to pay such debts
as they mature. The present fair saleable value of the assets of the Company on
a consolidated basis exceeds the amount that will be required to be paid on or
in respect of the existing debts and other liabilities (including contingent
liabilities) of the Company on a consolidated basis as they become absolute and
matured. The assets of the Company on a consolidated basis do not constitute
unreasonably small capital to carry out the business of the Company and the
Subsidiaries, taken as a whole, as conducted or as proposed to be conducted.
Upon the issuance of the Senior Notes, the present fair saleable value of the
assets of the Company on a consolidated basis will exceed the amount that will
be required to be paid on or in respect of the existing debts and other
liabilities (including contingent liabilities) of the Company on a consolidated
basis as they become absolute and matured. Upon the issuance of the Senior
Notes, the assets of the Company on a consolidated basis will not constitute
unreasonably small capital to carry out its businesses as now conducted,
including the capital needs of the Company on a consolidated basis, taking into
account the projected capital requirements and capital availability.
(xxxvi) Except pursuant to this Agreement,
there are no contracts, agreements or understandings between the Company and its
Subsidiaries and any other person that would give rise to a valid claim against
the Company or any Initial Purchaser for a brokerage commission, finder's fee or
like payment in connection with the issuance, purchase and sale of the Senior
Notes.
(xxxvii) Each certificate signed by any
officer of the Company and delivered to the Initial Purchasers or counsel for
the Initial Purchasers shall be deemed to be a representation and warranty by
the Company to the Initial Purchasers as to the matters covered thereby.
(xxxviii) Each of the Company and the
Subsidiaries have implemented Year 2000 compliance programs designed to ensure
that each respective company's computer systems and applications will function
properly beyond 1999. The Company believes that adequate resources have been
allocated for this purpose and expects the Company's and the Subsidiaries' Year
2000 date conversion programs to be completed on a timely basis.
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(xxxix) The Company acknowledges that each
Initial Purchaser and, for purposes of the opinions to be delivered to the
Initial Purchasers pursuant to Section 8 hereof, counsel to the Company and
counsel to the Initial Purchasers will rely upon the accuracy and truth of the
foregoing representations and hereby consents to such reliance.
(b) Each Initial Purchaser severally and not
jointly represents, warrants and covenants to the Company and agrees that:
(i) Such Initial Purchaser is a QIB,
with such knowledge and experience in financial and business matters as are
necessary in order to evaluate the merits and risks of an investment in the
Senior Notes.
(ii) Such Initial Purchaser (A) is not
acquiring the Senior Notes with a view to any distribution thereof that would
violate the Act or the securities laws of any state of the United States or any
other applicable jurisdiction and (B) will be reoffering and reselling the
Senior Notes only to QIBs in reliance on the exemption from the registration
requirements of the Act provided by Rule 144A.
(iii) No form of general solicitation or
general advertising has been or will be used by any Initial Purchaser or any of
their representatives in connection with the offer and sale of any of the Senior
Notes, including, but not limited to, articles, notices or other communications
published in any newspaper, magazine, or similar medium or broadcast over
television or radio, or any seminar or meeting whose attendees have been invited
by any general solicitation or general advertising.
(iv) Each Initial Purchaser agrees that,
in connection with the Exempt Resales, it will solicit offers to buy the Senior
Notes only from, and will offer to sell the Senior Notes only to, Eligible
Purchasers. Each Initial Purchaser further agrees that (A) it will offer to sell
the Senior Notes only to, and will solicit offers to buy the Senior Notes only
from, QIBs who in purchasing such Senior Notes will be deemed to have
represented and agreed that they are purchasing the Senior Notes for their own
accounts or accounts with respect to which they exercise sole investment
discretion and that they or such accounts are QIBs, (B) such Eligible Purchasers
will acknowledge and agree that such Senior Notes will not have been registered
under the Act and may be resold, pledged or otherwise transferred only (i) to
the Company, (ii) pursuant to a registration statement that has been declared
effective under the Act, (iii) to a person it reasonably believes is a QIB in a
transaction meeting the requirements of Rule 144A under the Act, (iv) to an
institutional "accredited investor" (as defined in Rule 501(a) (1), (2), (3) or
(7) of Regulation D under the Act that, prior to such transfer, furnishes to the
trustee a signed letter containing certain representations and agreements
relating to the transfer of the Senior Notes (the form of which letter can be
obtained from the Trustee) or (v) pursuant to any other available exemption from
the registration requirements of the Act (and based on an opinion of counsel if
the Company so requests), subject in each of the foregoing cases to the
applicable state securities laws of any State of the United States or any other
applicable jurisdiction and (C) the holder will, and each subsequent holder is
required to, notify any purchaser of the security evidenced thereby of the
resale restrictions set forth in (B) above. Accordingly, each Initial Purchaser
agrees that neither it, its affiliates nor any persons acting on its behalf has
engaged or will engage in any directed selling efforts within the meaning of
Rule 902 of Regulation S with respect to the Senior Notes and it, its affiliates
and all persons acting on its or their behalf have complied and will comply with
the offering restrictions requirements of Regulation S.
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(v) Each Initial Purchaser understands
that the Company and, for purposes of the opinions to be delivered to the
Initial Purchasers pursuant to Section 8 hereof, counsel to the Company and
counsel to the Initial Purchasers will rely upon the accuracy and truth of the
foregoing representations and hereby consents to such reliance.
6. Indemnification.
(a) The Company agrees to indemnify and hold
harmless (i) each Initial Purchaser, (ii) each person, if any, who controls any
Initial Purchaser within the meaning of Section 15 of the Act or Section 20(a)
of the Exchange Act and (iii) the respective officers, directors, partners,
employees, representatives and agents of any Initial Purchaser or any
controlling person to the fullest extent lawful, from and against any and all
losses, liabilities, claims, damages and expenses whatsoever (including, but not
limited to, attorneys' fees and any and all expenses whatsoever incurred in
investigating, preparing or defending against any investigation or litigation,
commenced or threatened, or any claim whatsoever, and any and all amounts paid
in settlement of any claim or litigation), joint or several, to which they or
any of them may become subject under the Act, the Exchange Act or otherwise,
insofar as such losses, liabilities, claims, damages or expenses (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in the Preliminary Offering
Memorandum or the Offering Memorandum, or in any supplement thereto or amendment
thereof, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that the Company will not be liable in
any such case to the extent, but only to the extent, that (i) any such loss,
liability, claim, damage or expense arises out of or is based upon any such
untrue statement or alleged untrue statement or omission or alleged omission
made therein in reliance upon and in conformity with written information
furnished to the Company by or on behalf of the Initial Purchasers expressly for
use therein and (ii) the foregoing indemnity with respect to any untrue
statement contained in or omitted from a preliminary offering memorandum shall
not inure to the benefit of any Initial Purchaser (or any person controlling
such Initial Purchaser), from whom the person asserting any such loss,
liability, claim, damage or expense purchased any of the Senior Notes which are
the subject thereof if it is finally judicially determined that such loss,
liability, claim, damage or expense resulted solely from the fact that the
Initial Purchaser sold Senior Notes to a person to whom there was not sent or
given, at or prior to the written confirmation of such sale, a copy of the
Offering Memorandum, as amended or supplemented, and (x) the Company shall have
previously and timely furnished sufficient copies of the Offering Memorandum, as
so amended or supplemented, to such Initial Purchaser in accordance with this
Agreement and (y) the Offering Memorandum, as so amended or supplemented, would
have corrected such untrue statement or omission of a material fact. This
indemnity agreement will be in addition to any liability which the Company may
otherwise have, including under this Agreement.
(b) Each Initial Purchaser, severally and not
jointly, agrees to indemnify and hold harmless the Company and each person, if
any, who controls the Company within the meaning of Section 15 of the Act or
Section 20(a) of the Exchange Act, against any losses, liabilities, claims,
damages and expenses whatsoever (including, but not limited to, attorneys' fees
and any and all expenses whatsoever incurred in investigating, preparing or
defending against any investigation or litigation, commenced or threatened, or
any claim whatsoever and any and all amounts paid in settlement of any claim or
litigation), joint or several, to which they or any of them may become subject
under the Act, the Exchange Act or otherwise, insofar as such losses,
liabilities, claims, damages or expenses (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the Preliminary Offering Memorandum or the Offering
Memorandum, or in
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any amendment thereof or supplement thereto, or arise out of or are based upon
the omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, in each case to the
extent, but only to the extent, that any such loss, liability, claim, damage or
expense arises out of or is based upon any untrue statement or alleged untrue
statement or omission or alleged omission made therein in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
any Initial Purchaser expressly for use therein; provided, however, that in no
case shall any Initial Purchaser be liable or responsible for any amount in
excess of the discounts and commissions received by such Initial Purchaser, as
set forth on the cover page of the Offering Memorandum. This indemnity will be
in addition to any liability which any Initial Purchaser may otherwise have,
including under this Agreement.
(c) Promptly after receipt by an indemnified
party under subsection (a) or (b) above of notice of the commencement of any
action, such indemnified party shall, if a claim in respect thereof is to be
made against the indemnifying party under such subsection, notify each party
against whom indemnification is to be sought in writing of the commencement
thereof (but the failure so to notify an indemnifying party shall not relieve it
from any liability which it may have under this Section 6 except to the extent
that it has been prejudiced in any material respect by such failure or from any
liability which it may otherwise have). In case any such action is brought
against any indemnified party, and it notifies an indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein, and to the extent it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof with counsel reasonably
satisfactory to such indemnified party. Notwithstanding the foregoing, the
indemnified party or parties shall have the right to employ its or their own
counsel in any such case, but the fees and expenses of such counsel shall be at
the expense of such indemnified party or parties unless (i) the employment of
such counsel shall have been authorized in writing by the indemnifying parties
in connection with the defense of such action, (ii) the indemnifying parties
shall not have employed counsel to take charge of the defense of such action
within a reasonable time after notice of commencement of the action, or (iii)
such indemnified party or parties shall have reasonably concluded that there may
be defenses available to it or them which are different from or additional to
those available to one or all of the indemnifying parties (in which case the
indemnifying party or parties shall not have the right to direct the defense of
such action on behalf of the indemnified party or parties), in any of which
events such fees and expenses of counsel shall be borne by the indemnifying
parties; provided, however, that the indemnifying party under subsection (a) or
(b) above, shall only be liable for the legal expenses of one counsel (in
addition to any local counsel) for all indemnified parties in each jurisdiction
in which any claim or action is brought. Anything in this subsection to the
contrary notwithstanding, an indemnifying party shall not be liable for any
settlement of any claim or action effected without its prior written consent;
provided, however, that such consent was not unreasonably withheld.
7. Contribution. In order to provide for contribution in
circumstances in which the indemnification provided for in Section 6 is for any
reason held to be unavailable from the Company or is insufficient to hold
harmless a party indemnified thereunder, the Company and the Initial Purchasers
shall contribute to the aggregate losses, claims, damages, liabilities and
expenses of the nature contemplated by such indemnification provision (including
any investigation, legal and other expenses incurred in connection with, and any
amount paid in settlement of, any action, suit or proceeding or any claims
asserted, but after deducting in the case of losses, claims, damages,
liabilities and expenses suffered by the Company, any contribution received by
the Company from persons, other than the Initial Purchasers, who may also be
liable for contribution, including persons who control the Company within
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the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act) to
which the Company and any Initial Purchaser may be subject, in such proportion
as is appropriate to reflect the relative benefits received by the Company and
the Initial Purchasers from the offering of the Senior Notes or, if such
allocation is not permitted by applicable law or indemnification is not
available as a result of the indemnifying party not having received notice as
provided in Section 6, in such proportion as is appropriate to reflect not only
the relative benefits referred to above but also the relative fault of the
Company and the Initial Purchasers in connection with the statements or
omissions which resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable considerations. The relative
benefits received by the Company and the Initial Purchasers shall be deemed to
be in the same proportion as (x) the total proceeds from the offering of Senior
Notes (net of discounts but before deducting expenses) received by the Company
and (y) the discounts received by the Initial Purchasers, respectively. The
relative fault of the Company and of the Initial Purchasers shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company or the Initial
Purchasers and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The Company
and the Initial Purchasers agree that it would not be just and equitable if
contribution pursuant to this Section 7 were determined by pro rata allocation
or by any other method of allocation which does not take into account the
equitable considerations referred to above. Notwithstanding the provisions of
this Section 7, (i) in no case shall any Initial Purchaser be required to
contribute any amount in excess of the amount by which the discount applicable
to the Senior Notes purchased by such Initial Purchaser pursuant to this
Agreement exceeds the amount of any damages which such Initial Purchaser has
otherwise been required to pay by reason of any untrue or alleged untrue
statement or omission or alleged omission and (ii) no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 7, (A) each person,
if any, who controls any Initial Purchaser within the meaning of Section 15 of
the Act or Section 20(a) of the Exchange Act and (B) the respective officers,
directors, partners, employees, representatives and agents of any Initial
Purchaser or any controlling person shall have the same rights to contribution
as such Initial Purchaser, and each person, if any, who controls the Company
within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act
shall have the same rights to contribution as the Company, subject in each case
to clauses (i) and (ii) of this Section 7. Any party entitled to contribution
will, promptly after receipt of notice of commencement of any action, suit or
proceeding against such party in respect of which a claim for contribution may
be made against another party or parties under this Section 7, notify such party
or parties from whom contribution may be sought, but the failure to so notify
such party or parties shall not relieve the party or parties from whom
contribution may be sought from any obligation it or they may have under this
Section 7 or otherwise. No party shall be liable for contribution with respect
to any action or claim settled without its prior written consent; provided,
however, that such written consent was not unreasonably withheld.
8. Conditions of Initial Purchasers' Obligations. The
several obligations of the Initial Purchasers to purchase and pay for the Senior
Notes, as provided herein, shall be subject to the satisfaction of the following
conditions:
(a) All of the representations and warranties of
the Company contained in this Agreement shall be true and correct on the date
hereof and on the Closing Date with the same force and effect as if made on and
as of the date hereof and the Closing Date, respectively. The Company shall have
performed or complied with all of the agreements herein contained and required
to be performed or complied with by it at or prior to the Closing Date.
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20
(b) The Offering Memorandum shall have been
printed and copies distributed to the Initial Purchasers not later than 10:00
a.m., New York City time, on the day following the date of this Agreement or at
such later date and time as to which the Initial Purchasers may agree, and no
stop order suspending the qualification or exemption from qualification of the
Senior Notes in any jurisdiction referred to in Section 4(e) shall have been
issued and no proceeding for that purpose shall have been commenced or shall be
pending or threatened.
(c) No action shall have been taken and no
statute, rule, regulation or order shall have been enacted, adopted or issued by
any governmental agency which would, as of the Closing Date, prevent the
issuance of the Senior Notes; no action, suit or proceeding shall have been
commenced and be pending against or affecting or, to the best knowledge of the
Company, threatened against, the Company or the Subsidiaries before any court or
arbitrator or any governmental body, agency or official that (1) could
reasonably be expected to result in a Material Adverse Effect or (2) has not
been disclosed in the Offering Memorandum; and no stop order shall have been
issued preventing the use of the Offering Memorandum, or any amendment or
supplement thereto, or which could reasonably be expected to have a Material
Adverse Effect.
(d) Since the dates as of which information is
given in the Offering Memorandum and except as contemplated by the Offering
Memorandum, (i) there shall not have been any material adverse change, or any
development that is reasonably likely to result in a material adverse change, in
the capital stock or the long-term debt, or material increase in the short-term
debt, of the Company or the Subsidiaries from that set forth in the Offering
Memorandum, (ii) no dividend or distribution of any kind shall have been
declared, paid or made by the Company or any Subsidiary on any class of its
capital stock, except for dividends paid in respect of the Series B Preferred
Stock, the Series D Preferred Stock, the Series E Preferred Stock or the Series
F Preferred Stock, (iii) neither the Company nor any Subsidiary shall have
incurred any liabilities or obligations, direct or contingent, that are
material, individually or in the aggregate, to the Company and the Subsidiaries,
taken as a whole, and that are required to be disclosed on a balance sheet or
notes thereto in accordance with generally accepted accounting principles and
are not disclosed on the latest balance sheet or notes thereto included in the
Offering Memorandum. Since the date hereof and since the dates as of which
information is given in the Offering Memorandum, there shall not have occurred
any Material Adverse Effect.
(e) The Initial Purchasers shall have received a
certificate, dated the Closing Date, signed on behalf of the Company by (i)
Xxxxx X. Xxxxxx, Chairman of the Board, President and Chief Executive Officer
and (ii) Xxxxxx X. Xxxxxxx, Senior Vice President and Chief Financial Officer,
in form and substance reasonably satisfactory to the Initial Purchasers,
confirming, as of the Closing Date, the matters set forth in paragraphs (a),
(b), (c) and (d) of this Section 8 and that, as of the Closing Date, the
obligations of the Company to be performed hereunder on or prior thereto have
been duly performed in all material respects.
(f) The Initial Purchasers shall have received
on the Closing Date an opinion, dated the Closing Date, in form and substance
satisfactory to the Initial Purchasers and counsel to the Initial Purchasers, of
Kronish, Lieb, Weiner & Xxxxxxx LLP, counsel for the Company, to the effect set
forth in Exhibit A hereto.
(g) The Initial Purchasers shall have received
on the Closing Date an opinion, dated the Closing Date, in form and substance
satisfactory to the Initial Purchasers and counsel to the Initial Purchasers, of
Xxxxxx, Xxxx & Xxxxxx, special regulatory counsel to the Company, to the effect
set forth in Exhibit B hereto.
19
21
(h) The Initial Purchasers shall have received
an opinion, dated the Closing Date, in form and substance reasonably
satisfactory to the Initial Purchasers, of Xxxxxx & Xxxxxxx, counsel to the
Initial Purchasers, covering such matters as are customarily covered in such
opinions.
(i) At the time this Agreement is executed and
at the Closing Date the Initial Purchasers shall have received from Ernst &
Young LLP, independent public accountants for the Company and its Subsidiaries,
dated as of the date of this Agreement and as of the Closing Date, customary
comfort letters addressed to the Initial Purchasers and in form and substance
satisfactory to the Initial Purchasers and counsel to the Initial Purchasers
with respect to the financial statements and certain financial information of
the Company and its Subsidiaries contained in the Offering Memorandum.
(j) Xxxxxx & Xxxxxxx shall have been furnished with
such documents, in addition to those set forth above, as they may reasonably
require for the purpose of enabling them to review or pass upon the matters
referred to in this Section 8 and in order to evidence the accuracy,
completeness or satisfaction in all material respects of any of the
representations, warranties or conditions herein contained.
(k) Prior to the Closing Date, the Company and
the Subsidiaries shall have furnished to the Initial Purchasers such further
information, certificates and documents as the Initial Purchasers may reasonably
request.
(l) The Company and the Trustee shall have
entered into the Indenture and the Initial Purchasers shall have received
counterparts, conformed as executed, thereof.
(m) The Company shall have entered into the
Registration Rights Agreement and the Initial Purchasers shall have received
counterparts, conformed as executed, thereof.
All opinions, certificates, letters and other documents
required by this Section 8 to be delivered by the Company will be in compliance
with the provisions hereof only if they are reasonably satisfactory in form and
substance to the Initial Purchasers. The Company will furnish the Initial
Purchasers with such conformed copies of such opinions, certificates, letters
and other documents as it shall reasonably request.
9. Initial Purchasers' Information. The Company and the
Initial Purchasers severally acknowledge that the statements with respect to the
offering of the Senior Notes set forth in the last two sentences of the second
paragraph and the sixth and seventh paragraphs under the caption "Plan of
Distribution" in such Offering Memorandum constitute the only information
furnished in writing by the Initial Purchasers expressly for use in the Offering
Memorandum.
10. Survival of Representations and Agreements. All
representations and warranties, covenants and agreements of the Initial
Purchasers and the Company contained in this Agreement, including the agreements
contained in Sections 4(f) and 11(d), the indemnity agreements contained in
Section 6 and the contribution agreements contained in Section 7, shall remain
operative and in full force and effect regardless of any investigation made by
or on behalf of the Initial Purchasers or any controlling person thereof or by
or on behalf of the Company or any controlling person thereof, and shall survive
delivery of and payment for the Senior Notes to and by the Initial Purchasers.
The representations contained in Section 5 and the agreements contained in
Sections 4(f), 6, 7 and 11(d) shall survive the termination of this Agreement,
including any termination pursuant to Section 11.
20
22
11. Effective Date of Agreement; Termination.
(a) This Agreement shall become effective upon
execution and delivery of a counterpart hereof by each of the parties hereto.
(b) The Initial Purchasers shall have the right
to terminate this Agreement at any time prior to the Closing Date by notice to
the Company from the Initial Purchasers, without liability (other than with
respect to Sections 6 and 7) on the Initial Purchasers' part to the Company if,
on or prior to such date, (i) the Company shall have failed, refused or been
unable to perform in any material respect any agreement on its part to be
performed hereunder, (ii) any other condition to the obligations of the Initial
Purchasers hereunder as provided in Section 8 is not fulfilled when and as
required in any material respect, (iii) in the reasonable judgment of the
Initial Purchasers any material adverse change shall have occurred, since the
respective dates as of which information is given in the Offering Memorandum, in
the condition (financial or otherwise), business, properties, assets,
liabilities, prospects, net worth, results of operations or cash flows of the
Company and the Subsidiaries taken as a whole, other than as set forth in the
Offering Memorandum, or (iv)(A) any domestic or international event or act or
occurrence has materially disrupted, or, in the opinion of the Initial
Purchasers, will in the immediate future materially disrupt, the market for the
Company's securities or for securities in general; or (B) trading in securities
generally on the New York or American Stock Exchanges shall have been suspended
or materially limited, or minimum or maximum prices for trading shall have been
established, or maximum ranges for prices for securities shall have been
required, on such exchange, or by such exchange or other regulatory body or
governmental authority having jurisdiction; or (C) a banking moratorium shall
have been declared by Federal or state authorities, or a moratorium in foreign
exchange trading by major international banks or persons shall have been
declared; or (D) there is an outbreak or escalation of armed hostilities
involving the United States on or after the date hereof, or if there has been a
declaration by the United States of a national emergency or war, the effect of
which shall be, in the Initial Purchasers' judgment, to make it inadvisable or
impracticable to proceed with the offering or delivery of the Senior Notes on
the terms and in the manner contemplated in the Offering Memorandum; or (E)
there shall have been such a material adverse change in general economic,
political or financial conditions or if the effect of international conditions
on the financial markets in the United States shall be such as, in the Initial
Purchasers' judgment, makes it inadvisable or impracticable to proceed with the
delivery of the Senior Notes as contemplated hereby.
(c) Any notice of termination pursuant to this
Section 11 shall be by telephone, telex, telephonic facsimile, or telegraph,
confirmed in writing by letter.
(d) If this Agreement shall be terminated
pursuant to any of the provisions hereof (otherwise than pursuant to any of
clauses (iii) or (iv) of Section 11(b), in which case each party will be
responsible for its own expenses), or if the sale of the Senior Notes provided
for herein is not consummated because any condition to the obligations of the
Initial Purchasers set forth herein is not satisfied or because of any refusal,
inability or failure on the part of the Company to perform any agreement herein
or comply with any provision hereof, the Company will, subject to demand by the
Initial Purchasers, reimburse the Initial Purchasers for all out-of-pocket
expenses (including the reasonable fees and expenses of Initial Purchasers'
counsel), incurred by the Initial Purchasers in connection herewith.
12. Notice. All communications hereunder, except as may
be otherwise specifically provided herein, shall be in writing and, if sent to
the Initial Purchasers shall be mailed, delivered, or telexed, telegraphed or
telecopied and confirmed in writing to the Initial Purchasers, x/x Xxxx, Xxxxxxx
&
00
00
Xx. Xxx., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate
Finance Department, telecopy number: (000) 000-0000, and if sent to the Company,
shall be mailed, delivered or telexed, telegraphed or telecopied and confirmed
in writing to Intermedia Communications Inc., 0000 Xxxxx Xxxx Xxxxx, Xxxxx,
Xxxxxxx 00000, Attention: Chief Financial Officer, telecopy number: (813)
744-2470, with a copy to Kronish, Lieb, Weiner & Xxxxxxx LLP, 1114 Avenue of the
Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx X. Xxxxxxxxx;
provided, however, that any notice pursuant to Section 7 shall be mailed,
delivered or telexed, telegraphed or telecopied and confirmed in writing.
13. Parties. This Agreement shall inure solely to the
benefit of, and shall be binding upon, the Initial Purchasers and the Company
and the controlling persons and agents referred to in Sections 6 and 7, and
their respective successors and assigns, and no other person shall have or be
construed to have any legal or equitable right, remedy or claim under or in
respect of or by virtue of this Agreement or any provision herein contained. The
term "successors and assigns" shall not include a purchaser, in its capacity as
such, of Senior Notes from the Initial Purchasers.
14. Construction. This Agreement shall be construed in
accordance with the internal laws of the State of New York. TIME IS OF THE
ESSENCE IN THIS AGREEMENT.
15. Captions. The captions included in this Agreement are
included solely for convenience of reference and are not to be considered a part
of this Agreement.
16. Counterparts. This Agreement may be executed in
various counterparts which together shall constitute one and the same
instrument.
[Signature pages to follow]
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If the foregoing correctly sets forth the understanding among
the Initial Purchasers and the Company, please so indicate in the space provided
below for that purpose, whereupon this letter shall constitute a binding
agreement between us.
Very truly yours,
Intermedia Communications Inc.
By:
--------------------------------------
Name:
Title:
Accepted and agreed to as of
the date first above written:
BEAR, XXXXXXX & CO. INC.
By:
-------------------------------
Name:
Title:
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By:
-------------------------------
Name:
Title:
XXXXXXX XXXXX BARNEY INC.
By:
-------------------------------
Name:
Title:
25
NATIONSBANC XXXXXXXXXX SECURITIES LLC
By:
-------------------------------
Name:
Title:
WARBURG DILLON READ LLC
By:
-------------------------------
Name:
Title:
26
SCHEDULE 1
Intermedia Communications Inc., a Virginia corporation
Intermedia Licensing Company
Intermedia Capital Inc.
DIGEX Incorporated
Shared Technologies Xxxxxxxxx, Inc.
Shared Technologies Xxxxxxxxx Telecom, Inc.
Shared Technologies Xxxxxxxxx Communications Corp.
Access Network Services, Inc.
STF Canada Inc.
Access Virginia, Inc.
Netwave Systems, Inc.
Express Communications, Inc.
National Telecommunications of Florida, Inc.
NTC, Inc.
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SCHEDULE 2
Long Distance Savers of the Metroplex, Inc.
LDS of Tulsa (Limited Partnership)
S-2
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SCHEDULE 3
Amount of
Senior
Notes to
Initial Purchaser be Purchased
----------------- --------------
Bear, Xxxxxxx & Co. Inc. $180,000,000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx 60,000,000
Incorporated
Xxxxxxx Xxxxx Barney Inc. 30,000,000
NationsBanc Xxxxxxxxxx Securities LLC 15,000,000
Warburg Dillon Read LLC 15,000,000
------------
Total $300,000,000
S-3
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SCHEDULE 4
1. Intermedia Communications Inc. 401(k) Profit Sharing Plan
S-4
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EXHIBIT A
Form of Opinion of Kronish, Lieb, Weiner & Xxxxxxx LLP
1. Each of the Company and the Subsidiaries is duly
organized and validly existing as a corporation in good standing under the laws
of its jurisdiction of incorporation, and has all requisite corporate power and
authority to carry on its business as it is being conducted and as described in
the Offering Memorandum and to own, lease and operate its properties, and is
duly qualified and in good standing as a foreign corporation authorized to do
business in each jurisdiction in which the nature of its business or its
ownership or leasing of property requires such qualification, except where the
failure to be so qualified or in good standing would not, singly or in the
aggregate, have a Material Adverse Effect.
2. All of the outstanding shares of capital stock of the
Company have been duly authorized, validly issued, and are fully paid and
nonassessable and were not issued in violation of any preemptive or similar
rights under the Delaware General Corporation Law. The authorized, issued and
outstanding capital stock of the Company conforms in all respects to the
description thereof set forth in the Offering Memorandum.
3. All of the issued and outstanding capital stock of,
or other ownership interests in, the Company's Subsidiaries have been duly
authorized and validly issued, are fully paid and non-assessable and were not
issued in violation of or subject to any preemptive or similar rights under the
Delaware General Corporation Law or known to us, after reasonable inquiry, and,
are owned by the Company of record and, to our knowledge, after reasonable
inquiry, free and clear of any security interest, claim, lien, limitation on
voting rights or encumbrance. There are not, to our knowledge, currently, and
will not be following the Offering, any outstanding subscriptions, rights,
warrants, calls, commitments of sale or options to acquire or instruments
convertible into or exchangeable for, any capital stock or other equity interest
of the Company or any Subsidiary (other than options issued pursuant to the
Company's stock option plans, the 153,500 warrants each to purchase 4.38 shares
of Common Stock, a warrant to purchase 200,000 shares of Common Stock, the
Series D Preferred Stock, the Series E Preferred Stock and the Series F
Preferred Stock, and noting that at present rights trade with the Common Stock).
4. When the Senior Notes are issued and delivered
pursuant to this Agreement, no Senior Notes will be of the same class (within
the meaning of Rule 144A under the Act) as securities of the Company that are
listed on a national securities exchange registered under Section 6 of the
Exchange Act or that are quoted in a United States automated inter-dealer
quotation system.
5. The Company has all requisite corporate power and
authority to execute, deliver and perform its obligations under this Agreement,
the Indenture, the Registration Rights Agreement, and the other Operative
Documents, as applicable, and to consummate the transactions contemplated
thereby, including, without limitation, the corporate power and authority to
issue, sell and deliver the Senior Notes as provided herein and therein.
6. This Agreement has been duly and validly authorized,
executed and delivered by the Company and, assuming due execution by the other
parties hereto, is the legally valid and binding agreement of the Company.
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7. Each of the Indenture and the Registration Rights
Agreement has been duly and validly authorized, executed and delivered by the
Company, and, assuming due execution by the other parties thereto, is the legal,
valid and binding obligation of the Company, enforceable against the Company in
accordance with its terms, except that we express no opinion as to the validity
or enforceability of rights of indemnity or contribution, or both and except as
such enforceability may be limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization or similar laws affecting the rights of creditors
generally and subject to general principles of equity.
8. The Senior Notes have been duly and validly
authorized for issuance and sale to the Initial Purchasers by the Company
pursuant to this Agreement and, when issued and authenticated in accordance with
the terms of the Indenture and delivered against payment therefor in accordance
with the terms of this Agreement and the Indenture, assuming due execution by
the other parties thereto, will be the legal, valid and binding obligations of
the Company, enforceable against the Company in accordance with their terms and
entitled to the benefits of the Indenture, except that we express no opinion as
to the validity or enforceability of rights of indemnity or contribution, or
both, and except as such enforceability may be limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization or similar laws affecting the
rights of creditors generally and subject to general principles of equity.
9. The Exchange Notes have been duly and validly
authorized for issuance by the Company and, when issued and authenticated in
accordance with the terms of the Indenture, assuming due execution by the other
parties thereto, will be the legal, valid and binding obligations of the
Company, enforceable against the Company in accordance with their terms and
entitled to the benefits of the Indenture, except that we express no opinion as
to the validity or enforceability of rights of indemnity or contribution, or
both, and except as such enforceability may be limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization or similar laws affecting the
rights of creditors generally and subject to general principles of equity.
10. The Offering Memorandum contains a fair summary of
each of the Senior Notes, the Indenture, and the Registration Rights Agreement.
11. No registration under the Act of the Senior Notes is
required for the sale of the Senior Notes to the Initial Purchasers as
contemplated by this Agreement or for the Exempt Resales assuming (i) that the
Initial Purchasers are Qualified Institutional Buyers, as defined in Rule 144A
under the Act ("QIB"), (ii) that the purchasers who buy the Senior Notes in the
Exempt Resales are Eligible Purchasers, (iii) the accuracy of the Initial
Purchasers' representations regarding the absence of general solicitation in
connection with the sale of Senior Notes to the Initial Purchasers and the
Exempt Resales contained in this Agreement and (iv) the accuracy of the
Company's representations in Sections 5(a)(ii), (xxviii), (xxix) (other than
with respect to the first sentence) and (xxxi) of this Agreement.
12. The Offering Memorandum, as of its date (except for
the financial statements, including the notes thereto, and supporting schedules
and other financial, statistical and accounting data included therein or omitted
therefrom, as to which no opinion need be expressed), and each amendment or
supplement thereto, as of its date, contains all the information specified in,
and meets the requirements of, Rule 144A(d)(4) under the Act.
13. Prior to the effectiveness of the Exchange Offer
Registration Statement or the Shelf Registration Statement, the Indenture is not
required to be qualified under the Trust Indenture Act.
X-0
00
00. None of (A) the execution, delivery or performance by
the Company of this Agreement and the other Operative Documents, (B) the
issuance and sale of the Senior Notes or (C) the consummation by the Company and
the Subsidiaries of the transactions described in the Offering Memorandum under
the caption "Use of Proceeds" violates, conflicts with or constitutes a breach
of any of the terms or provisions of, or a default under (or an event that with
notice or the lapse of time, or both, would constitute a default), or requires
consent under, or will result in the imposition of a lien or encumbrance on any
properties of the Company or any Subsidiary, or an acceleration of any
indebtedness of the Company or any Subsidiary pursuant to, (i) the charter or
bylaws of the Company or any Subsidiary, (ii) any bond, debenture, note,
indenture, mortgage, deed of trust or other agreement or instrument to which the
Company or any Subsidiary is a party or by which any of them or their property
is or may be bound identified to such counsel as material (assuming all of such
agreements are governed by New York law), (iii) any judgment, order or decree of
any court or governmental agency or authority having jurisdiction over the
Company or any Subsidiary or any of their assets or properties known to such
counsel, except that we express no opinion as to the matters addressed by the
opinion of Xxxxxx, Xxxx & Xxxxxx LLP, and except in the case of clauses (ii) and
(iii) for such violations, conflicts, breaches, defaults, consents, impositions
of liens or accelerations that (x) would not, singly or in the aggregate, have a
Material Adverse Effect or (y) are disclosed in the Offering Memorandum.
Assuming compliance with applicable state securities and Blue Sky laws, as to
which such counsel need express no opinion, and except for the filing of a
registration statement under the Act and qualification of the Indenture under
the Trust Indenture Act of 1939, as amended, in connection with the Registration
Rights Agreement, no consent, approval, authorization or order of, or filing,
registration, qualification, license or permit of or with, any court or
governmental agency, body or administrative agency is required for (1) the
execution, delivery and performance by the Company of this Agreement and the
other Operative Documents, (2) the issuance and sale of the Senior Notes or (3)
consummation by the Company and the Subsidiaries of the transactions described
in the Offering Memorandum under the caption "Use of Proceeds," except (i) such
as have been obtained and made or have been disclosed in the Offering
Memorandum, (ii) where the failure to obtain such consents or waivers would not,
singly or in the aggregate, have a Material Adverse Effect, and (iii) we express
no opinion as to the matters addressed by the opinion of Xxxxxx, Xxxx & Xxxxxx
LLP. To the best of such counsel's knowledge, after reasonable inquiry, no
consents or waivers from any other person are required for the execution,
delivery and performance by the Company of this Agreement and the other
Operative Documents, the issuance and sale of the Senior Notes, other than such
consents and waivers as have been obtained or are being applied for, except that
we express no opinion as to the matters addressed by the opinion of Xxxxxx, Xxxx
& Xxxxxx LLP.
15. None of the Company or any Subsidiary is (i) an
"investment company" or a company "controlled" by an "investment company" within
the meaning of the Investment Company Act of 1940, as amended, or (ii) a
"holding company" or a "subsidiary company" or an "affiliate" of a holding
company within the meaning of the Public Utility Holding Company Act of 1935, as
amended.
16. Except as set forth in this Agreement or in the
Registration Rights Agreement, to such counsel's knowledge, after reasonable
inquiry there are no holders of any securities of the Company who, by reason of
the execution by the Company of this Agreement or any other Operative Document
to which it is a party or the consummation by the Company of the transactions
contemplated thereby, have the right to request or demand that the Company
register under the Act securities held by them.
17. None of the execution, delivery and performance of
this Agreement, the issuance and sale of the Senior Notes, the application of
the proceeds from the issuance and sale of the Senior
A-3
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Notes and the consummation of the transactions contemplated thereby as set forth
in the Offering Memorandum, will violate Regulations T, U or X promulgated by
the Board of Governors of the Federal Reserve System.
18. To the knowledge of such counsel, after reasonable
inquiry, no search of courts having been made, there is (i) no action, suit,
investigation or proceeding before or by any court, arbitrator or governmental
agency, body or official, domestic or foreign, now pending, or threatened or
contemplated to which any of the Company or any Subsidiary is or may be a party
or to which the business or property of any of the Company or any Subsidiary is
or may be subject, (ii) no statute, rule, regulation or order that has been
enacted, adopted or issued by any governmental agency or that has been proposed
by any governmental body, or (iii) no injunction, restraining order or order of
any nature by a federal or state court of competent jurisdiction to which any of
the Company or any Subsidiary is or may be subject has been issued that, in the
case of clauses (i), (ii) and (iii) above, (w) is required to be disclosed in
the Preliminary Offering Memorandum and the Offering Memorandum and that is not
so disclosed or, (x) could reasonably be expected to have, either individually
or in the aggregate, a Material Adverse Effect, except as disclosed in the
Offering Memorandum; or (y) might interfere with, adversely affect or in any
manner question the validity of the issuance and sale of the Senior Notes or any
of the other transactions contemplated by this Agreement or any of the other
Operative Documents, except that such counsel shall express no opinion as to the
matters addressed in the opinion of Xxxxxx, Xxxx & Xxxxxx LLP.
19. The statements contained in the Offering Memorandum
under the caption "Certain Federal Income Tax Consequences" are a fair and
accurate summary of the matters discussed herein.
We have participated in conferences with officers and other
representatives of the Company, representatives of the independent certified
public accountants of the Company and the Initial Purchasers and their
representatives at which the contents of the Preliminary Offering Memorandum and
the Offering Memorandum and related matters were discussed and, although we have
not undertaken to investigate or verify independently, and do not assume any
responsibility for, the accuracy, completeness or fairness of the statements
contained in the Preliminary Offering Memorandum or the Offering Memorandum
(except as indicated above), on the basis of the foregoing, no facts have come
to our attention which led us to believe that the Preliminary Offering
Memorandum or the Offering Memorandum, as of its date or the Closing Date,
contained an untrue statement of a material fact or omitted to state any fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading
(except as to financial statements and related notes, the financial statement
schedules and other financial and statistical data included therein).
For purposes of this opinion, Subsidiaries means the
subsidiaries of the Company listed on Schedule 1 to this Agreement.
A-4
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EXHIBIT B
Form of Opinion of Xxxxxx, Xxxx & Xxxxxx
B-1
