Exhibit 10.02
ADELPHIA COMMUNICATIONS CORPORATION
$100,000,000 7 1/2% Senior Notes due 2004
$300,000,000 7 3/4% Senior Notes due 2009
PURCHASE AGREEMENT
January 6, 1999
XXXXXXX XXXXX XXXXXX INC.
CREDIT SUISSE FIRST BOSTON CORPORATION
XXXXXXX, XXXXX & CO.
XXXXXX BROTHERS INC.
NATIONSBANC XXXXXXXXXX SECURITIES LLC
c/o Xxxxxxx Xxxxx Xxxxxx Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Adelphia Communications Corporation, a Delaware corporation
(the "Company"), proposes, upon the terms and conditions set forth herein, to
issue and sell to you as the initial purchasers (the "Initial Purchasers"),
$100,000,000 in aggregate principal amount of its 7 1/2% Senior Notes due 2004
(the "2004 Notes") and $300,000,000 in aggregate principal amount of its 7 3/4
Senior Notes due 2009 (the "2009 Notes") (the 2004 Notes and the 2009 Notes
being referred to collectively as the "Senior Notes"). The Senior Notes will (i)
have the terms and provisions which are summarized in the Offering Memorandum
(as defined herein), (ii) be in the forms specified by the Initial Purchasers
pursuant to Section 3 hereof, and (iii) be issued pursuant to the provisions of
an Indenture, to be dated as of January 13, 1999 (the "Indenture"), between the
Company and Bank of Montreal Trust Company, as trustee (the "Trustee"). Initial
Purchasers shall mean either the singular or plural as the context requires. The
use of the neuter in this Agreement shall include the feminine and masculine
wherever appropriate.
The Company wishes to confirm as follows its agreement with
you the Initial Purchasers in connection with the purchase and resale of the
Senior Notes.
1. Offering Memorandum. The Senior Notes will be offered and
sold to the Initial Purchasers without registration under the Securities Act of
1933, as amended (the "Act"), in reliance on an exemption pursuant to Section
4(2) under the Act. The Company has prepared an offering memorandum, dated
January 6, 1999, which incorporates by reference the Company's Annual Report on
Form 10-K for the fiscal year ended March 31, 1998 which incorporates, in Items
7 and 8 to such Form 10-K, portions of the Form 10-K for the fiscal year ended
December 31, 1997 of Olympus Communications, L.P. and Olympus Capital
Corporation, as amended by the Company's Form 10-K/A for the fiscal year ended
March 31, 1998; the Company's quarterly reports on Form 10-Q for the quarters
ended June 30, 1998 and September 30, 1998; Forms 8-K for events dated June 29,
1998, July 2, 1998, August 3, 1998, August 18, 1998, September 10, 1998 and
November 9, 1998; and the definitive Proxy Statement dated September 11, 1998
(the "Offering Memorandum"), setting forth information regarding the Company,
the Senior Notes and the Exchange Notes (as defined herein). Any references
herein to the Offering Memorandum shall be deemed to include all amendments and
supplements thereto, if any. The Company hereby confirms that they have
authorized the use of the Offering Memorandum in connection with the offering
and resale of the Senior Notes by the Initial Purchasers.
The Company understands that the Initial Purchasers propose to
make offers (the "Exempt Resales") of the Senior Notes purchased by the Initial
Purchasers hereunder only on the terms set forth in the Offering Memorandum, and
Section 2 hereof, as soon as the Initial Purchasers deem advisable after this
Agreement has been executed and delivered, solely to (i) persons whom the
Initial Purchasers reasonably believe to be "qualified institutional buyers" as
defined in Rule 144A under the Act ("QIBs"), and (ii) to persons other than U.S.
persons in offshore transactions meeting the requirements of Rule 903 of
Regulation S under the Act ("Regulation S") (such persons also being referred to
herein as the "Eligible Purchasers").
It is understood and acknowledged that upon original issuance
thereof, and until such time as the same is no longer required under the
applicable requirements of the Act, the Senior Notes (and all securities issued
in exchange therefor, in substitution thereof) shall bear the following:
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT"), AND, ACCORDINGLY, MAY NOT
BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE
ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH
BELOW. BY ITS ACQUISITION HEREOF, THE HOLDER AGREES THAT (1)
IT WILL NOT PRIOR TO THE DATE (THE "RESALE RESTRICTION
TERMINATION DATE") THAT IS TWO YEARS AFTER THE LATER OF THE
ORIGINAL ISSUANCE OF THIS NOTE AND THE LAST DATE ON WHICH THE
COMPANY, OR ANY AFFILIATE OF THE COMPANY, WAS THE OWNER OF
THIS NOTE (OR ANY PREDECESSOR OF THIS NOTE), RESELL OR
OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO THE COMPANY OR ANY
SUBSIDIARY THEREOF, (B) INSIDE THE UNITED STATES TO A
QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A
UNDER THE ACT, (C) INSIDE THE UNITED STATES TO AN ACCREDITED
INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES (OR HAS
FURNISHED ON ITS BEHALF BY A U.S. BROKER-DEALER) TO THE
TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND
AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS
NOTE (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE
TRUSTEE), (D) OUTSIDE THE UNITED STATES IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE ACT, (E)
PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE
144 UNDER THE ACT (IF AVAILABLE) OR (F) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND (2) WILL
GIVE TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND, IN CONNECTION WITH
ANY TRANSFER OF THIS NOTE PRIOR TO THE RESALE RESTRICTION
TERMINATION DATE. IF THE PROPOSED TRANSFEREE IS AN ACCREDITED
INVESTOR, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, WILL BE
REQUIRED TO FURNISH TO THE TRUSTEE AND THE COMPANY SUCH
CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS EITHER
OF THEM MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER
IS BEING MADE PURSUANT TO AN EXEMPTION FROM OR IN A
TRANSACTION NOT SUBJECT TO THE REGISTRATION REQUIREMENTS OF
THE ACT, AS USED HEREIN. THE TERMS "OFFSHORE TRANSACTION,"
"UNITED STATES" and "U.S. PERSON" HAVE THE MEANINGS GIVEN TO
THEM BY REGULATION S UNDER THE ACT.
It is also understood and acknowledged that holders
(including subsequent transferees) of the Senior Notes will have the
registration rights set forth in the registration rights agreement (the
"Registration Rights Agreement"), to be dated the Closing Date, in substantially
the form of Exhibit A hereto, for so long as such Senior Notes constitute
"Transfer Restricted Securities" (as defined in the Registration Rights
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 relating to the Company's 7 1/2% Senior Notes due 2004 and 7 3/4% Senior
Notes due 2009 (collectively, the "Exchange Notes") to be offered in exchange
for the Senior Notes (the "Registered Exchange Offer") and (ii) under certain
circumstances, a shelf registration statement pursuant to Rule 415 under the Act
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. As
used herein, the Senior Notes and the Exchange Notes are hereinafter referred to
collectively as the "Notes." This Agreement, the Indenture, the Notes and the
Registration Rights Agreement are hereinafter referred to collectively as the
"Operative Documents."
2. Agreements to Sell, Purchase and Resell. (a) The Company
hereby agrees, on the basis of the representations, warranties and agreements of
the Initial Purchasers contained herein and subject to all the terms and
conditions set forth herein, to issue and sell to the Initial Purchasers and,
upon the basis of the representations, warranties and agreements of the Company
herein contained and subject to all the terms and conditions set forth herein,
the Initial Purchasers agree to purchase from the Company, all of the 2004 Notes
and 2009 Notes, at a purchase price of 98.400% and 98.637%, respectively, of the
principal amount thereof. The Company shall not be obligated to deliver any of
the Senior Notes to be delivered hereunder except upon payment for all of the
Senior Notes to be purchased as provided herein.
(b) Each of the Initial Purchasers hereby represent and
warrant to the Company that it will offer the Senior Notes for sale upon the
terms and conditions set forth in this Agreement and in the Offering Memorandum.
Each of the Initial Purchasers severally hereby represents and warrants to, and
agrees with, the Company that it (i) is either a QIB or other institutional
"accredited investor," as defined in Rule 501(a)(1), (2), (3) or (7) under the
Act (each, an "Accredited Institution") in either case 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) is
purchasing the Senior Notes pursuant to a private sale exempt from registration
under the Act; (iii) in connection with the Exempt Resales, will solicit offers
to buy the Senior Notes only from, and will offer to sell the Senior Notes only
to, the Eligible Purchasers in accordance with this Agreement and on the terms
contemplated by the Offering Memorandum; and (iv) will not offer or sell the
Senior Notes, nor has it offered or sold the Senior Notes by, or otherwise
engaged in, any form of general solicitation or general advertising (within the
meaning of Regulation D; including, but not limited to, advertisements,
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) in connection with the offering of the Senior Notes. The Initial
Purchasers have advised the Company that the Initial Purchasers will initially
offer the 2004 Notes and 2009 Notes to Eligible Purchasers at a price of
100.000% and 100.000%, respectively, of the principal amount thereof, plus
accrued interest, if any, from the date of issuance of the Senior Notes. Such
price may be changed by the Initial Purchasers at any time thereafter without
notice.
The Initial Purchasers understand that the Company and, for
purposes of the opinions to be delivered to the Initial Purchasers pursuant to
Sections 7(d) and 7(h) hereof, counsel to the Company and counsel to the Initial
Purchasers, will rely upon the accuracy and truth of the foregoing
representations, warranties and agreements and the Initial Purchasers hereby
consent to such reliance.
3. Delivery of the Notes and Payment Therefor. Delivery to the
Initial Purchasers of and payment for the Senior Notes shall be made at the
office of Xxxxxx & Xxxxxxx, 000 Xxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx
00000 at 9:00 A.M., New York City time, on January 13, 1999 (the "Closing
Date"). The place of closing for the Senior Notes and the Closing Date may be
varied by agreement between the Initial Purchasers and the Company.
The Senior Notes will be delivered to the Initial Purchasers
against payment of the purchase price therefor in immediately available funds.
The Senior Notes will be evidenced by two or more global securities in
definitive form (the "Global Notes") and will be registered in the name of Cede
& Co. as nominee of The Depository Trust Company ("DTC"). The Senior Notes to be
delivered to the Initial Purchasers shall be made available to the Initial
Purchasers in New York City for inspection and packaging not later than 9:30
A.M., New York City time, on the business day next preceding the Closing Date.
4. Agreements of the Company. The Company agrees with the
Initial Purchasers as follows:
(a) The Company will furnish to the Initial Purchasers,
without charge, such number of copies of the Offering Memorandum as the Initial
Purchasers may reasonably request.
(b) The Company will not make any amendment or supplement to
the Offering Memorandum of which the Initial Purchasers shall not previously
have been advised or to which the Initial Purchasers shall reasonably object
after being so advised, including by way of filing any document with the
Commission that would be incorporated therein by reference.
(c) The Company consents to the use of the Offering Memorandum
in accordance with the securities or Blue Sky laws of the jurisdictions in which
the Senior Notes are offered by the Initial Purchasers and by dealers to whom
Senior Notes may be sold, in connection with the offering and sale of the Senior
Notes.
(d) If, at any time prior to completion of the distribution of
the Senior Notes by the Initial Purchasers to Eligible Purchasers, any event
shall occur that in the judgment of the Company, or in the opinion of counsel
for the Initial Purchasers, should be set forth in the Offering Memorandum in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading, or if it is necessary to supplement or
amend the Offering Memorandum in order to comply with any law, the Company will
forthwith prepare an appropriate supplement or amendment thereto, and will
expeditiously furnish to the Initial Purchasers and dealers a reasonable number
of copies thereof.
(e) The Company will cooperate with the Initial Purchasers and
with their counsel in connection with the qualification of the Senior Notes for
offering and sale by the Initial Purchasers and by dealers under the securities
or Blue Sky laws of such jurisdictions as the Initial Purchasers may designate
and will file such consents to service of process or other documents necessary
or appropriate in order to effect such qualification; provided, that in no event
shall the Company be obligated to qualify to do business in any jurisdiction
where it is not now so qualified or to take any action which would subject it to
service of process in suits, other than those arising out of the offering or
sale of the Senior Notes, in any jurisdiction where it is not now so subject.
(f) So long as any of the Notes are outstanding, the Company
will furnish to the Initial Purchasers (i) as soon as available, a copy of each
report of the Company mailed to stockholders generally or filed with any stock
exchange or regulatory body and (ii) from time to time such other information
concerning the Company as the Initial Purchasers may reasonably request.
(g) If this Agreement shall terminate or shall be terminated
after execution and delivery pursuant to any provisions hereof (otherwise than
by notice given by the Initial Purchasers terminating this Agreement pursuant to
Section 10 hereof) or if this Agreement shall be terminated by the Initial
Purchasers because of any failure or refusal on the part of the Company to
comply with the terms or fulfill any of the conditions of this Agreement, the
Company agrees to reimburse the Initial Purchasers for all out-of-pocket
expenses (including reasonable fees and expenses of their counsel) reasonably
incurred by it in connection herewith, but without any further obligation on the
part of the Company for loss of profits or otherwise.
(h) The Company will apply the net proceeds from the sale of
the Senior Notes to be sold by it hereunder substantially in accordance with the
description set forth in the Offering Memorandum under the caption "Use of
Proceeds."
(i) Except as stated in this Agreement and in the Offering
Memorandum, the Company has not taken, and will not 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 the Senior Notes to
facilitate the sale or resale of the Senior Notes. Except as permitted by the
Act, the Company will not distribute any offering material in connection with
the Exempt Resales.
(j) The Company will use its best efforts to permit the Notes
to be designated Private Offerings, Resales and Trading through Automated
Linkages ("PORTAL") Market securities in accordance with the rules and
regulations adopted by the National Association of Securities Dealers, Inc.
relating to trading in the PORTAL Market and to permit the Notes to be eligible
for clearance and settlement through DTC, the Euroclear System and Cedel Bank,
Societe Anonyme.
(k) From and after the Closing Date, so long as any of the
Notes are outstanding and are "restricted securities" within the meaning of the
Rule 144(a)(3) under the Act or, if earlier, until three years after the Closing
Date, 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"),
the Company will furnish to holders of the Notes and prospective purchasers of
Notes designated by such holders, upon request of such holders or such
prospective purchasers, the information (the "Additional Company Information")
required to be delivered pursuant to Rule 144A(d)(4) under the Act to permit
compliance with Rule 144A in connection with resales of the Notes.
(l) The Company has complied and will comply with all
provisions of Florida Statutes Section 517.075 relating to issuers doing
business with Cuba.
(m) The Company agrees 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.
(n) The Company agrees to comply with all the terms and
conditions of the Registration Rights Agreement and all agreements set forth in
the representation letters of the Company to DTC relating to the approval of the
Notes by DTC for "book entry" transfer.
(o) The Company agrees to cause the Exchange Offer to be made
in the appropriate form, as contemplated by the Registration Rights Agreement,
to permit registration of the Exchange 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 Registered Exchange Offer.
(p) The Company agrees that prior to any registration of the
Senior Notes pursuant to the Registration Rights Agreement, or at such earlier
time as may be required, the Indenture shall be qualified under the Trust
Indenture Act of 1939 (the "1939 Act") and any necessary supplemental indentures
will be entered into in connection therewith.
(q) The Company will not voluntarily claim, and will resist
actively all attempts to claim, the benefit of any usury laws against holders of
the Notes.
(r) The Company will do and perform all things required or
necessary to be done and performed under this Agreement by it prior to the
Closing Date, and to satisfy all conditions precedent to the Initial Purchasers'
obligations hereunder to purchase the Senior Notes.
5. Representations and Warranties of the Company. The Company
represents and warrants to the Initial Purchasers that:
(a) The Offering Memorandum has been prepared in connection
with the offering of the Senior Notes. The Offering Memorandum and any
amendments or supplements thereto did not and will not, as of their
respective dates, contain an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in writing
to the Company by the Initial Purchasers through Xxxxxxx Xxxxx Xxxxxx
Inc. concerning the Initial Purchasers expressly for use therein (the
"Initial Purchasers Information"). The Offering Memorandum, as of its
date, contains all the information specified in, and meeting the
requirements of, Rule 144A(d)(4) under the Act;
(b) The Company has not sustained since September 30, 1998 any
material loss or interference with its business from fire, explosion,
flood or other calamity, whether or not covered by insurance, or from
any labor dispute or court or governmental action, order or decree,
otherwise than as set forth or contemplated in the Offering Memorandum;
and, since the respective dates as of which information is given in the
Offering Memorandum, there has not been any reduction in the
consolidated stockholders' equity or change in the capital stock, as
applicable (other than reductions in the ordinary course of business
consistent with prior periods), material increase in the total amount
of short-term debt (excluding trade payables) and long-term debt of the
Company or any of its material subsidiaries (the "Subsidiaries") or any
material adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs,
management, financial position, partners' equity, shareholders' equity
or results of operations of the Company and its Subsidiaries, otherwise
than as set forth or contemplated in the Offering Memorandum;
(c) Each of the Company and its Subsidiaries has good and
marketable title in fee simple to all real property and good and
marketable title to all personal property owned by them, in each case
free and clear of all liens, encumbrances and defects except such as
are described in the Offering Memorandum or such as do not affect the
value of such property and do not interfere with the use made and
proposed to be made of such property by the Company and its
Subsidiaries; and any real property and buildings held under lease by
the Company and its Subsidiaries are held by them under valid,
subsisting and enforceable leases with such exceptions as are not
material and do not interfere with the use made and proposed to be made
of such property and buildings by the Company and its Subsidiaries;
except in any case that would not have a material adverse effect on the
business, general affairs, management, financial position, partners
equity or shareholders' equity (other than reductions in the ordinary
course of business consistent with prior periods), results of
operations or prospects of the Company and its Subsidiaries, taken as a
whole a "Material Adverse Effect;"
(d) (i) Each of the Subsidiaries that are partnerships has
been duly formed and is validly existing as a partnership in good
standing under the laws of its state of formation, with full power and
authority (partnership and other) to own its properties and conduct its
business as described in the Offering Memorandum, and has been duly
qualified as a foreign partnership for the transaction of business and
is in good standing under the laws of each other jurisdiction in which
it owns or leases properties or conducts any business so as to require
such qualification, or is subject to no material liability or
disability by reason of the failure to be so qualified in any such
jurisdiction except where the failure to so qualify would not have a
Material Adverse Effect; and (ii) each of the Company and the
Subsidiaries that are corporations has been duly incorporated and is
validly existing as a corporation in good standing under the laws of
its state of incorporation, with full power and authority (corporate
and other) to own its properties and conduct its business as described
in the Offering Memorandum, and has been duly qualified as a foreign
corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases
properties or conducts any business so as to require such
qualification, or is subject to no material liability or disability by
reason of the failure to be so qualified in any such jurisdiction
except where the failure to so qualify would not have a Material
Adverse Effect;
(e) Each of the Company and its Subsidiaries has the ownership
or authorized capitalizations, as the case may be, as set forth in the
Offering Memorandum, and all of the partnership interests of the
Subsidiaries that are partnerships and all of the issued shares of
capital stock of its Subsidiaries that are corporations have been duly
and validly authorized and issued and with respect to shares of capital
stock are fully paid and non-assessable; and all of the partnership
interests of the Subsidiaries disclosed in the Offering Memorandum as
being owned directly or indirectly by the Company and all of the issued
shares of capital stock of the Subsidiaries that are corporations
disclosed in the Offering Memorandum as being owned directly or
indirectly by the Company have been duly and validly authorized and
issued are fully paid and non-assessable and are owned directly or
indirectly by the Company free and clear of all liens, encumbrances,
equities or claims (other than liens to secure indebtedness under
credit facilities disclosed in the Offering Memorandum); and ownership
of the various interests and shares of the Company and its Subsidiaries
is as described in the Offering Memorandum;
(f) The Notes have been duly authorized and, when issued and
delivered pursuant to this Agreement, will have been duly executed,
authenticated, issued and delivered and will constitute valid and
legally binding obligations of the Company entitled to the benefits
provided by the Indenture under which they are to be issued, which will
be substantially in the form previously delivered to the Initial
Purchasers; the Indenture has been duly authorized by the Company and,
when executed and delivered by the Company and the Trustee, the
Indenture will constitute a valid and legally binding instrument,
enforceable in accordance with its terms against the Company, subject,
as to enforcement, to bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting creditors'
rights and to general equity principles; and the Notes and the
Indenture will conform to the descriptions thereof in the Offering
Memorandum and will be in substantially the form previously delivered
to the Initial Purchasers;
(g) None of the transactions contemplated by this Agreement
(including, without limitation, the use of the proceeds from the sale
of the Senior Notes) will violate or result in a violation of Section 7
of the Exchange Act, or any regulation promulgated thereunder,
including, without limitation, Regulations U and X of the Board of
Governors of the Federal Reserve System;
(h) Prior to the date hereof, none of the Company or any of
their affiliates (other than the Initial Purchasers or any person
acting on their behalf as to which the Company makes no representation)
has taken, directly or indirectly, any action which is designed to or
which has constituted or which might have been expected to cause or
result in stabilization or manipulation of the price of any security of
the Company in connection with the offering of the Senior Notes;
(i) The Registration Rights Agreement has been duly authorized
by the Company and, when executed and delivered by the Company and the
Initial Purchasers, will constitute a valid and legally binding
instrument, enforceable against the Company in accordance with its
terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles; and the
Registration Rights Agreement will conform to the description thereof
in the Offering Memorandum and will be in substantially the form
previously delivered to the Initial Purchasers;
(j) The issue and sale of the Notes and the compliance by the
Company with all of the provisions of the Notes, the Indenture, the
Registration Rights Agreement and this Agreement and the consummation
of the transactions herein and therein contemplated will not conflict
with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any material indenture,
mortgage, deed of trust, sale/leaseback agreement, loan agreement or
other similar financing agreement or instrument or other agreement or
instrument (including, without limitation, any license or franchise
granted to the Company or one of its Subsidiaries by a local
franchising governmental body) to which the Company or any of its
Subsidiaries is a party or by which the Company or any of its
Subsidiaries is bound or has rights under or to which any of the
property or assets of the Company or any of its Subsidiaries is
subject, nor will such action result in any violation of the provisions
of the certificate of incorporation or bylaws of the Company or its
Subsidiaries that are corporations or the certificates of limited
partnership or the partnership agreements of its Subsidiaries that are
partnerships or any statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the
Company or any of its Subsidiaries or any of their properties; and no
consent, approval, authorization, order, registration or qualification
of or with any such court or governmental agency or body is required
for the issue and sale of the Notes or the consummation by the Company
of the transactions contemplated by this Agreement, the Indenture or
the Registration Rights Agreement, other than (i) such consents,
approvals, authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection with the
purchase and distribution of the Senior Notes by the Initial
Purchasers, (ii) the filing of a registration statement by the Company
with the Commission pursuant to the Act pursuant to the Registration
Rights Agreement, and (iii) such other consents, approvals,
authorizations, registrations or qualifications as may be required
under the Act, state or foreign securities or Blue Sky laws in
connection with the exchange, offer or resale registration contemplated
in the Offering Memorandum and described in the Registration Rights
Agreement in connection with the purchase and resale of the Senior
Notes by the Initial Purchasers;
(k) None of the Company or its Subsidiaries is in violation of
its certificate of incorporation or bylaws, as the case may be, or in
default in the performance or observance of any material obligation,
agreement, covenant or condition contained in any indenture, mortgage,
deed of trust, sale/leaseback agreement, loan agreement or other
similar financing agreement or instrument or other agreement or
instrument (including, without limitation, any license or franchise
granted to the Company or a subsidiary by a local franchising
governmental body) to which the Company or a subsidiary is a party or
by which it or any of its properties may be bound, except for such
defaults as would not have individually or in the aggregate a Material
Adverse Effect;
(l) The statements set forth in the Offering Memorandum under
the caption "Description of the Notes," insofar as they purport to
constitute a summary of the terms of the Notes, and incorporated by
reference in the Offering Memorandum from the Form 10-K and Forms 10-Q
(each as defined in the Offering Memorandum) under the captions
"Business" and "Management's Discussion and Analysis of Financial
Condition and Results of Operations," as applicable, insofar as they
purport to describe the provisions of the laws and documents referred
to therein, are accurate, complete and fair in all material respects;
(m) When the Senior Notes are issued and delivered pursuant to
this Agreement, the Senior Notes will not be of the same class (within
the meaning of Rule 144A under the Act) as securities of the Company
which are listed on a national securities exchange registered under
Section 6 of the Exchange Act or quoted in a U.S. automated
inter-dealer quotation system;
(n) None of the Company or its Subsidiaries is or, after
giving effect to the offering and sale of the Notes, will be an
"investment company," or an entity "controlled" by an "investment
company," as such terms are defined in the United States Investment
Company Act of 1940, as amended (the "Investment Company Act");
(o) None of the Company or any person acting on its or their
behalf (other than the Initial Purchasers, as to which the Company
makes no representation or warranty) has offered or sold the Senior
Notes by means of any general solicitation or general advertising
within the meaning of Rule 502(c) under the Act;
(p) None of the Company nor any person acting on its or their
behalf has engaged in any directed selling efforts with respect to the
Notes, and each of them has complied with the offering restrictions
requirement of Regulation S. Terms used in this paragraph have the
meanings given to them by Regulation S.
(q) Except for (i) the issuance of $150,000,000 aggregate
principal amount of the Company's Series B 8-3/8% Senior Notes due 2008
in exchange for previously issued and outstanding Series A 8-3/8%
Senior Notes due 2008, (ii) the issuance of $150,000,000 aggregate
principal amount of the Company's Series A 8-1/8% Senior Notes due
2003, (iii) the issuance of $150,000,000 aggregate principal amount of
the Company's Series B 8-1/8% Senior Notes due 2003 in exchange for
previously issued and outstanding Series A 8-1/8% Senior Notes due 2003
and (iv) the issuance of $150,000,000 aggregate principal amount of the
Company's Series A 8-3/8% Senior Notes due 2008, within the preceding
six months, none of the Company or any other person acting on behalf of
the Company (other than the Initial Purchasers, as to which the Company
makes no representation or warranty) has offered or sold to any person
any Notes, or any securities of the same or a similar class as the
Notes, other than Senior Notes offered or sold to the Initial
Purchasers hereunder. The Company will take reasonable precautions
designed to insure that any offer or sale, direct or indirect, in the
United States or to any U.S. person (as defined in Rule 902 under the
Act) of any Notes or any substantially similar security issued by the
Company, within six months subsequent to the date on which the
distribution of the Notes has been completed (as notified by the
Initial Purchasers), is made under restrictions and other circumstances
reasonably designed not to affect the status of the offer and sale of
the Notes in the United States and to U.S. persons contemplated by this
Agreement as transactions exempt from the registration provisions of
the Act;
(r) None of the Company or any of their affiliates does
business with the government of Cuba or with any person or affiliate
located in Cuba within the meaning of Section 517.075, Florida
Statutes;
(s) Other than as set forth in the Offering Memorandum
(including those matters referred to therein relating to general
rulemakings and similar matters relating generally to the cable
television industry), there are no legal or governmental proceedings
pending to which the Company or any of its Subsidiaries is a party or
of which any property of the Company or any of its Subsidiaries is the
subject which, if determined adversely to the Company or any of its
Subsidiaries, would individually or in the aggregate have a Material
Adverse Effect and, to the best of the Company's knowledge, no such
proceedings are threatened or contemplated by governmental authorities
or by others; and except with respect to general rulemakings and
similar matters relating generally to the cable television industry,
during the time the Systems (as defined below) have been owned by the
Company or a subsidiary (i) there has been no adverse judgment, order,
or decree issued by the United States Federal Communications Commission
(the "FCC") relating to any of the Systems that has not been disclosed
in the Offering Memorandum that would be required to be disclosed in a
public offering registered under the Act; (ii) there are no actions,
suits, proceedings, inquiries or investigations by the FCC pending or
threatened in writing against or affecting the Company, any of its
Subsidiaries or any System; and (iii) to the Company's knowledge, after
due inquiry, there is no reasonable basis for any such action, suit,
proceeding or investigation;
(t) Deloitte & Touche LLP, who have reported on the financial
statements of the Company, is an independent public accountant as
required by the Act and the rules and regulations of the Commission
thereunder;
(u) This Agreement has been duly authorized, executed and
delivered by the Company;
(v) Except for matters covered by paragraph (x) below or with
respect to matters that would not individually or in the aggregate have
a Material Adverse Effect, (i) the Company and its Subsidiaries have
made all filings, recordings and registrations with, and possess all
validations or exemptions, approvals, orders, authorizations, consents,
licenses, certificates and permits from, the FCC, applicable public
utilities and other federal, state and local regulatory or governmental
bodies and authorities or any subdivision thereof, including, without
limitation, cable television franchises, pole attachment agreements,
and cable antenna relay service, broadcast auxiliary, earth station,
business radio, microwave or special safety radio service licenses
issued by the FCC (collectively, the "Authorizations") necessary or
appropriate to own, operate and construct the cable communication
systems owned by them (the "Systems") or otherwise for the operation of
their businesses and are not in violation thereof; (ii) all such
Authorizations are in full force and effect, and no event has occurred
that permits, or after notice or lapse of time could permit, the
revocation, termination or modification of any Authorization which is
necessary or appropriate to own, operate and construct the Systems or
otherwise for the operation of any such business; (iii) none of the
Company or any of its Subsidiaries is in violation of any duty or
obligation required by the United States Communications Act of 1934, as
amended (the "Communications Act"), or any FCC rule or regulation
applicable to the operation of any portion of any of the Systems; (iv)
none of the Company or any of its Subsidiaries is in violation of any
duty or obligation required by state or local laws, or local rules or
regulations applicable to the operation of any portion of any of the
Systems; (v) there is not pending or, to the best knowledge of the
Company or any of its Subsidiaries, threatened, any action by the FCC
or state or local regulatory authority to modify, revoke, cancel,
suspend or refuse to renew any Authorization; (vi) other than as
described in the Offering Memorandum, there is not now issued or
outstanding or, to the best knowledge of the Company or any of its
Subsidiaries, threatened, any notice of any hearing, material violation
or material complaint against the Company or any of its Subsidiaries
with respect to the operation of any portion of the Systems and none of
the Company or its Subsidiaries has any knowledge that any person
intends to contest renewal of any material Authorization;
(w) (i) (A) The Company and its Subsidiaries have entered
into, or have rights under, all required programming agreements
(including, without limitation, all non-broadcast affiliation
agreements under which the Company and its Subsidiaries are accorded
retransmission rights relating to programming that the Systems provide
to their customers) that are material to the conduct of their business
as described in the Offering Memorandum; and (B) all such material
agreements are in full force and effect and none of the Company, any of
its Subsidiaries or any of its affiliates has received any written
notice of revocation or material modifications of such material
agreements; and (ii)(A) either the Company or its Subsidiaries has
entered into agreements with the television stations that have notified
the Company or its Subsidiaries that such station's respective consent
is required to carry such stations on the Systems or has ceased
carrying such stations; (B) all such agreements grant the Company or
one of its Subsidiaries retransmission consent in exchange for various
non-cash consideration; and (C) all such agreements are in full force
and effect and are not subject to revocation (except in the case of
material breach by the Company or its Subsidiaries) or material
modifications, and no event has occurred that permits, or after notice
or lapse of time could permit, the revocation, termination or material
modification of any such agreement, except where the failure of such
agreements to be in full force and effect or such revocation would not,
in either case, individually or in the aggregate have a Material
Adverse Effect;
(x) Except for matters that would not individually or in the
aggregate have a Material Adverse Effect, (i) all registration
statements and all other documents (including but not limited to annual
reports) required by the FCC in connection with the operation of the
Systems have been filed with the FCC; (ii) all frequencies within the
restricted aeronautical and navigational bands (i.e., 108-136 MHz and
225-400 MHz) which are currently being used in connection with the
operation of the Systems have been authorized for such use by the FCC;
(iii) each of the Systems subject to Equal Employment Opportunity
Commission ("EEOC") compliance certification by the FCC has been
certified by the FCC for annual EEOC compliance during the time such
Systems have been owned by the Company or its Subsidiaries; and (iv)
all towers associated with the Systems are in compliance with the rules
and regulations of the United States Federal Aviation Administration;
(y) Except for matters that would not individually or in the
aggregate have a Material Adverse Effect, none of the Company or any of
its Subsidiaries is in breach or violation of, or in default under, any
of the terms, conditions or provisions of the Communications Act or the
rules, regulations or policies of the FCC thereunder;
(z) (i) Except for matters that would not individually or in
the aggregate have a Material Adverse Effect, all statements of
accounts and any other filings that are required under Section 111 of
the United States Copyright Act of 1976, as amended, in connection with
the retransmission of any broadcast television and radio signals on the
Systems have been timely filed with the United States Copyright Office
and indicated royalty payments have been made for each System for each
accounting period during which such Systems have been owned by the
Company or its Subsidiaries; (ii) none of the Company, any of its
Subsidiaries or any System has received any inquiry or request from the
United States Copyright Office or from any other party challenging or
questioning any such statements of account or royalty payments; and
(iii) no claim of copyright infringement has been made or threatened in
writing against the Company, any of its Subsidiaries or any System;
(aa) Neither the execution and delivery of this Agreement, the
Indenture or the Registration Rights Agreement, nor the consummation of
the transactions contemplated hereby and thereby or by the Offering
Memorandum under "Use of Proceeds," nor compliance with the terms,
conditions and provisions thereof by the Company, will conflict with
the Communications Act or the rules, regulations or policies of the FCC
thereunder, or will cause any suspension, revocation, impairment,
forfeiture, nonrenewal or termination of any material license, permit,
franchise, certificate, consent, authorization, designation,
declaration, filing, registration or qualification; and
(bb) Neither the execution and delivery of this Agreement, the
Indenture or the Registration Rights Agreement, nor the execution,
delivery, offer, issuance and sale of the Notes, nor compliance with
the terms, conditions and provisions thereof by the Company, requires
any license, permit, franchise, certificate, consent, authorization,
designation, declaration, filing, registration or qualification by or
with the FCC.
6. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless each Initial Purchaser, the directors, officers,
employees and agents of each Initial Purchaser and each person who controls any
Initial Purchaser within the meaning of either the Act or the Exchange Act
against any and all losses, claims, damages or liabilities, joint or several, to
which they or any of them may become subject under the Act, the Exchange Act or
other Federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Offering Memorandum (or in any
supplement or amendment thereto) or any information provided by the Company to
any holder or prospective purchaser of Securities pursuant to Section 4(k), or
in any amendment thereof or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading, and agrees to
reimburse each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made in
the Offering Memorandum, or in any amendment thereof or supplement thereto, in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of any Initial Purchaser through Xxxxxxx Xxxxx Xxxxxx
Inc. specifically for inclusion therein. This indemnity agreement will be in
addition to any liability which the Company may otherwise have.
(b) Each Initial Purchaser severally and not jointly agrees to
indemnify and hold harmless the Company, each of its directors, each of its
officers, and each person who controls the Company within the meaning of either
the Act or the Exchange Act, to the same extent as the foregoing indemnity from
the Company to each Initial Purchaser, but only with reference to written
information relating to such Initial Purchaser furnished to the Company by or on
behalf of such Initial Purchaser through Xxxxxxx Xxxxx Xxxxxx Inc. specifically
for inclusion in the Offering Memorandum (or in any amendment or supplement
thereto). This indemnity agreement will be in addition to any liability which
any Initial Purchaser may otherwise have. The Company acknowledges that the
statements set forth in the last paragraph of the cover page of the Offering
Memorandum and the last paragraph on the inside cover page of the Offering
Memorandum constitute the only information furnished in writing by or on behalf
of the Initial Purchasers for inclusion in the Offering Memorandum (or in any
amendment or supplement thereto).
(c) Promptly after receipt by an indemnified party under this
Section 6 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 6, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party (i)
will not relieve it from liability under paragraph (a) or (b) above unless and
to the extent it did not otherwise learn of such action and such failure results
in the forfeiture by the indemnifying party of substantial rights and defenses;
and (ii) will not, in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the indemnification obligation
provided in paragraph (a) or (b) above. The indemnifying party shall be entitled
to appoint counsel of the indemnifying party's choice at the indemnifying
party's expense to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be satisfactory to the indemnified
party. Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall have
the right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses of such
separate counsel if (i) the use of counsel chosen by the indemnifying party to
represent the indemnified party would present such counsel with a conflict of
interest; (ii) the actual or potential defendants in, or targets of, any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party; (iii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of the institution of such action; or (iv) the indemnifying party
shall authorize the indemnified party to employ separate counsel at the expense
of the indemnifying party. An indemnifying party will not, without the prior
written consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement, compromise or
consent includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a)
or (b) of this Section 6 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company and the Initial Purchasers agree
to contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection with
investigating or defending same) (collectively "Losses") to which the Company
and one or more of the Initial Purchasers may be subject in such proportion as
is appropriate to reflect the relative benefits received by the Company on the
one hand and by the Initial Purchasers on the other from the offering of the
Securities; provided, however, that in no case shall any Initial Purchaser
(except as may be provided in any agreement among the Initial Purchasers
relating to the offering of the Securities) be responsible for any amount in
excess of the purchase discount or commission applicable to the Securities
purchased by such Initial Purchaser hereunder. If the allocation provided by the
immediately preceding sentence is unavailable for any reason, the Company and
the Initial Purchasers shall contribute in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of the
Company on the one hand and of the Initial Purchasers on the other in connection
with the statements or omissions which resulted in such Losses, as well as any
other relevant equitable considerations. Benefits received by the Company shall
be deemed to be equal to the total net proceeds from the offering (before
deducting expenses) received by it, and benefits received by the Initial
Purchasers shall be deemed to be equal to the total purchase discounts and
commissions in each case set forth on the cover of the Offering Memorandum.
Relative fault shall be determined by reference to, among other things, whether
any untrue or any alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information provided by the
Company on the one hand or the Initial Purchasers on the other, the intent of
the parties and their relative knowledge, information and opportunity to correct
or prevent such untrue statement or omission. The Company and the Initial
Purchasers agree that it would not be just and equitable if contribution were
determined by pro rata allocation or any other method of allocation which does
not take account of the equitable considerations referred to above.
Notwithstanding the provisions of this paragraph (d), no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 6, each person who
controls an Initial Purchaser within the meaning of either the Act or the
Exchange Act and each director, officer, employee and agent of an Initial
Purchaser shall have the same rights to contribution as such Initial Purchaser,
and each person who controls the Company within the meaning of either the Act or
the Exchange Act and each officer and director of the Company shall have the
same rights to contribution as the Company, subject in each case to the
applicable terms and conditions of this paragraph (d).
7. Conditions of the Initial Purchasers' Obligation. The
obligation of the Initial Purchasers to purchase the Senior Notes hereunder is
subject to the following conditions:
(a) At the time of execution of this Agreement and on the
Closing Date, no order or decree preventing the use of the Offering Memorandum,
or any order asserting that the transactions contemplated by this Agreement are
subject to the registration requirements of the Act shall have been issued and
no proceedings for that purpose shall have been commenced or shall be pending
or, to the knowledge of the Company, be contemplated. No stop order suspending
the sale of the Senior Notes in any jurisdiction designated by the Initial
Purchasers shall have been issued and no proceedings for that purpose shall have
been commenced or shall be pending or, to the knowledge of the Company, shall be
contemplated.
(b) Subsequent to the date as of which information is given in
the Offering Memorandum, except as otherwise stated in the Offering Memorandum,
there shall not have occurred (i) any change, or any development involving a
prospective change, in or affecting the condition (financial or other),
business, properties, net worth, or results of operations of the Company or its
Subsidiaries not contemplated by the Offering Memorandum, which in the opinion
of the Initial Purchasers, would materially adversely affect the market for the
Senior Notes, or (ii) any event or development relating to or involving the
Company, any of its Subsidiaries or any officer or director of the Company or
any of its Subsidiaries which makes any statement made in the Offering
Memorandum untrue or which, in the opinion of the Company and its counsel or the
Initial Purchasers and their counsel, requires the making of any addition to or
change in the Offering Memorandum in order to state a material fact required by
any law to be stated therein or necessary in order to make the statements
therein not misleading, if amending or supplementing the Offering Memorandum to
reflect such event or development would, in the opinion of the Initial
Purchasers, materially adversely affect the market for the Senior Notes.
(c) The Offering Memorandum shall have been printed and copies
thereof distributed to the Initial Purchasers in such quantities as shall have
been previously specified by the Initial Purchasers not later than 5:00 P.M.,
New York City time, on January 7, 1999, or at such later date and time as the
Initial Purchasers may approve in writing.
(d) The Initial Purchasers shall have received on the Closing
Date an opinion of Xxxxxxxx Xxxxxxxxx Professional Corporation, counsel for the
Company, dated the Closing Date and addressed to the Initial Purchasers, to the
effect that:
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws of
the state of its formation with full corporate power and authority to
own its properties and conduct its business as described in the
Offering Memorandum;
(ii) This Agreement has been duly authorized,
executed and delivered by the Company;
(iii) The Registration Rights Agreement has been duly
authorized, executed and delivered by the Company;
(iv) The Notes have been duly authorized and, when
issued and delivered pursuant to this Agreement, will have been duly
executed, authenticated, issued and delivered and will constitute valid
and legally binding obligations of the Company entitled to the benefits
provided by the Indenture and enforceable against the Company in
accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization, moratorium and other laws of general
applicability relating to or affecting creditors' rights and to general
equity principles and further except that (a) rights to contribution or
indemnification may be limited by the laws, rules or regulations of any
governmental authority or agency thereof or by public policy, and (b)
waivers as to usury, stay or extension laws may be unenforceable; and
the Notes and the Indenture conform in all material respects to the
descriptions thereof in the Offering Memorandum;
(v) The Indenture has been duly authorized, executed
and delivered by the Company and will constitute a valid and legally
binding instrument, enforceable in accordance with its terms against
the Company, subject, as to enforcement, to bankruptcy, insolvency,
reorganization, moratorium and other laws of general applicability
relating to or affecting creditors' rights and to general equity
principles and further except that (a) rights to contribution or
indemnification may be limited by the laws, rules or regulations of any
governmental authority or agency thereof or by public policy, and (b)
waivers as to usury, stay or extension laws may be unenforceable;
(vi) The Registration Rights Agreement has been duly
authorized by the Company and, when executed and delivered by the
parties thereto, will constitute a valid and legally binding
instrument, enforceable in accordance with its terms against the
Company, subject, as to enforcement, to bankruptcy, insolvency,
reorganization, moratorium and other laws of general applicability
relating to or affecting creditors' rights, to general equity
principles and further except that (a) rights to contribution or
indemnification may be limited by the laws, rules or regulations of any
governmental authority or agency thereof or by public policy and (b)
waivers as to usury, stay or extension laws may be unenforceable; and
the Registration Rights Agreement will conform in all material respects
to the description thereof in the Offering Memorandum;
(vii) The issue and sale of the Notes and the
compliance by the Company with all of the provisions of the Notes, the
Indenture, the Registration Rights Agreement and this Agreement and the
consummation of the transactions herein and therein contemplated will
not contravene the provisions of the certificate of incorporation and
bylaws of the Company, or to the best of our knowledge, any order, rule
or regulation of any court or governmental agency or body having
jurisdiction over the Company;
(viii) The statements set forth in the Offering
Memorandum under the caption "Description of the Notes," insofar as
they purport to constitute a summary of the terms of the Notes, are
accurate in all material respects, and the statements in the Offering
Memorandum under the heading "Certain United States Federal Tax
Considerations for Non-United States Holders," insofar as they purport
to constitute a summary of laws, governmental rules or regulations or
documents, are accurate in all material respects;
(ix) No registration of the Senior Notes under the
Act, and no qualification of an indenture under the 1939 Act with
respect thereto, is required for the offer, sale and initial resale of
the Senior Notes by the Initial Purchasers in the manner contemplated
by this Agreement; and
(x) The Company is not an "investment company" or an
entity "controlled" by an "investment company," as such terms are
defined in the Investment Company Act.
In addition, such counsel shall also state that such counsel
has participated in conferences with officers and representatives of the
Company, representatives of the independent public accountants for the Company
and the Initial Purchasers at which the contents of the Offering Memorandum and
related matters were discussed and, although such counsel is not passing upon
and does not assume any responsibility for and has not verified the accuracy,
completeness or fairness of the statements contained in the Offering Memorandum,
and has not made any independent check or verification thereof, on the basis of
the foregoing (relying as to materiality to the extent such counsel deemed
appropriate upon facts provided by officers and other representatives of the
Company), no facts have come to the attention of such counsel that lead such
counsel to believe that the Offering Memorandum, as of its date or as of the
Closing Date, contained or contains any untrue statement of material fact or
omitted or omits to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading (it being understood that such counsel need express no belief or
opinion with respect to the financial statements and other financial and
statistical data included therein).
The opinion of such counsel may be limited to the laws of the
State of New York, the General Corporation Law of the State of Delaware and the
federal laws of the United States.
(e) The Initial Purchasers shall have received on the Closing
Date an opinion of Xxxxxxx X. Xxxxxx, Esq., General Counsel of the Company,
dated the Closing Date and addressed to the Initial Purchasers to the effect
that:
(i) Except as set forth in the Offering Memorandum,
each of the Company and its Subsidiaries has all of the licenses,
permits, franchises and authorizations, if any, required by the
relevant governmental authorities of each of New York, Virginia,
Pennsylvania, Ohio, New Jersey, Massachusetts, New Hampshire, Vermont,
Michigan and Connecticut and/or its political subdivisions for the
provision of cable television service (as such counsel understands
service to be provided which may be based on a certificate of an
officer of the Company, provided that such counsel shall state that
they believe that both the Initial Purchasers and he are justified in
relying on such certificate), where the failure to obtain or hold such
license, permit, franchise or authorization would have a Material
Adverse Effect;
(ii) To the best of such counsel's knowledge after
due inquiry, each of the Company and its Subsidiaries has made all
filings, reports, applications and submissions required by the laws and
ordinances relating to cable services of each of New York, Virginia,
Pennsylvania, Ohio, New Jersey, Massachusetts, New Hampshire, Vermont,
Michigan and Connecticut, and the ordinances of the state's political
subdivisions relating thereto, and the rules and regulations
promulgated therewith;
(iii) Each of the Company and its Subsidiaries has
the consents, approvals, authorizations, licenses, certificates,
permits, or orders of any governmental authorities of the each of New
York, Virginia, Pennsylvania, Ohio, New Jersey, Massachusetts, New
Hampshire, Vermont, Michigan and Connecticut, and its political
subdivisions, if any, required for the consummations of the
transactions contemplated in the Purchase Agreement where the failure
to obtain the consents, approvals, authorizations, licenses,
certificates, permits or orders would have a Material Adverse Effect;
(iv) There are no actions, suits or proceedings
pending or, to the best of such counsel's knowledge, threatened by or
before any court or governmental body each of New York, Virginia,
Pennsylvania, Ohio, New Jersey, Massachusetts, New Hampshire, Vermont,
Michigan and Connecticut, against or affecting any of the Company or
its Subsidiaries, or the business of the Company and its Subsidiaries;
(v) The statements in the Offering Memorandum under
the headings "Risk Factors Regulation in the Telecommunications
Industry" and "Risk Factors - Competition," insofar as they relate to
the Company and its Subsidiaries operations each of New York, Virginia,
Pennsylvania, Ohio, New Jersey, Massachusetts, New Hampshire, Vermont,
Michigan and Connecticut, and purport to describe the provisions of the
laws and documents referred to therein, are accurate, complete and fair
in all material respects; and
(vi) Neither the execution and delivery of the
Purchase Agreement nor the offering of the Senior Notes contemplated
thereby will conflict with or result in a violation of any order or
regulation of each of New York, Virginia, Pennsylvania, Ohio, New
Jersey, Massachusetts, New Hampshire, Vermont, Michigan and
Connecticut, or its political subdivisions applicable to the Company
and its Subsidiaries, the conflict with or the violation of which would
have a material adverse effect on the Company and its Subsidiaries.
(f) The Initial Purchasers shall have received on the Closing
Date an opinion of Xxxxx X. Xxxxxx, Deputy General Counsel to the Company, dated
the Closing Date and addressed to the Initial Purchasers, to the effect that:
(i) None of the Company or its Subsidiaries is in
violation of its certificate of incorporation, by-laws, certificate of
limited partnership or partnership agreement, as applicable, or in
default in the performance or observance of any material obligation,
covenant or condition contained in any partnership agreement,
indenture, mortgage, deed of trust, loan agreement, lease or other
agreement or instrument to which it is a party or by which it or any of
its properties may be bound;
(ii) Each of the Company and its Subsidiaries has
been duly qualified as a foreign corporation or partnership, as the
case may be, for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases
properties or conducts any business so as to require such
qualification, or is subject to no material liability or disability by
reason of the failure to be so qualified in any such jurisdiction,
except where the failure to so qualify would not have a Material
Adverse Effect (such counsel being entitled to rely in respect of the
opinion in this clause upon opinions of local counsel and in respect of
matters of fact upon certificates of officers of the Company, provided
that such counsel shall state that he believes that both the Initial
Purchasers and he are justified in relying upon such opinions and
certificates);
(iii) Each subsidiary of the Company is owned
directly or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims (other than liens to secure
indebtedness under credit facilities disclosed in the Offering
Memorandum) (such counsel being entitled to rely in respect of the
opinion in this clause upon opinions of local counsel and in respect of
matters of fact upon certificates of officers of the Company or its
Subsidiaries, provided that such counsel shall state that he believes
that both the Initial Purchasers and he are justified in relying upon
such opinions and certificates);
(iv) To the best of such counsel's knowledge and
other than as set forth in the Offering Memorandum, there are no legal
or governmental proceedings pending to which the Company or any of its
Subsidiaries is a party or of which any property of the Company or any
of its Subsidiaries is the subject which, if determined adversely to
the Company or any of its Subsidiaries, would individually or in the
aggregate have a material adverse effect on the current or future
consolidated financial position, shareholder's equity, partners'
equity, or results of operations of the Company and its Subsidiaries;
and, to the best of such counsel's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened by
others;
(v) The issue and sale of the Notes and the
compliance by the Company with all of the provisions of the Notes, the
Indenture, the Registration Rights Agreement and this Agreement and the
consummation of the transactions herein and therein contemplated will
not, to the best of my knowledge after due inquiry, conflict with or
result in a breach or violation of any of the terms or provisions of,
or constitute a default under any material indenture, mortgage, deed of
trust, sale/leaseback transaction, loan agreement or other similar
financing agreement, or instrument or other agreement or instrument
(including, without limitation, any license or franchise granted to the
Company or a Subsidiary by a local franchising governmental body) to
which the Company or any of its Subsidiaries is a party or by which the
Company or any of its Subsidiaries is bound or to which any of the
property or assets of the Company or any of its Subsidiaries is
subject, nor will such actions result in any violation of the
provisions of the certificate of incorporation, by-laws, the
certificate of limited partnership or the partnership agreements of the
Company and its Subsidiaries, as appropriate, or any statute or any
order, rule or regulation of any court or governmental agency or body
having jurisdiction over the Company or any of its Subsidiaries or any
of their properties; and
(vi) No consent, approval, authorization, order,
registration or qualification of or with any such court or governmental
agency or body is required for the issue and sale of the Senior Notes
or the consummation by the Company of the transactions contemplated by
this Agreement, the Indenture or the Registration Rights Agreement,
except such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue Sky
laws in connection with the purchase and resale of the Senior Notes by
the Initial Purchasers.
In addition, such counsel shall also state that such counsel
has participated in conferences with officers and representatives of the
Company, representatives of the independent public accountants for the Company
and the Initial Purchasers at which the contents of the Offering Memorandum and
related matters were discussed and, although such counsel is not passing upon
and does not assume any responsibility for and has not verified the accuracy,
completeness or fairness of the statements contained in the Offering Memorandum,
and has not made any independent check or verification thereof, on the basis of
the foregoing (relying as to materiality to the extent such counsel deemed
appropriate upon facts provided by officers and other representatives of the
Company), no facts have come to the attention of such counsel that lead such
counsel to believe that the Offering Memorandum, as of its date or as of the
Closing Date, contained or contains any untrue statement of material fact or
omitted or omits to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading (it being understood that such counsel need express no belief or
opinion with respect to the financial statements and other financial and
statistical data included therein).
(g) The Initial Purchasers shall have received on the Closing
Date an opinion of Xxxxxxxxxx & Xxxxx, P.C., special regulatory counsel for the
Company and its Subsidiaries, dated the Closing Date, and addressed to the
Initial Purchasers to the effect that:
(i) The communities listed in Section A of Attachment
1 to the opinion have been registered with the FCC in connection with
the operation of the Systems. The filing of a registration statement
constitutes initial FCC authorization for the commencement of cable
television operations in the community registered.
(ii) The Subsidiaries hold certain FCC licenses, as
that term is defined below ("FCC Licenses"). All FCC Licenses and
receive-only earth station registrations held by the Subsidiaries in
connection with the operation of the Cable Systems are listed on
Attachment 1 to the Opinion. To the best of our knowledge, all such FCC
Licenses have been validly issued or assigned to the present licensee
and are currently in full force and effect. We have no knowledge of any
event which would allow, or after notice or lapse of time which would
allow, revocation or termination of any FCC License held by the
Subsidiaries or would result in any other material impairment of the
rights of the holder of such license. To the best of our knowledge, no
other FCC Licenses are required in connection with the operation of the
Cable Systems by the Subsidiaries in the manner we have advised they
are presently being operated. For the purposes of this opinion, an FCC
License is defined as an authorization, or renewal thereof, issued by
the FCC authorizing the transmission of radio energy through the
airways.
(iii) Other than proceedings affecting the cable
television industry generally, there is no action, suit or proceeding
pending before or, to the best of our knowledge, threatened by the FCC
which is reasonably likely to have a materially adverse impact upon the
cable television operations of the Company and its Subsidiaries taken
as a whole.
(iv) To the best of our knowledge after due inquiry,
the Company and the Subsidiaries have filed all current and routine
filings, reports, applications and submissions required under the
Communications Act, as amended, and under the rules and regulations of
the FCC.
(v) The Subsidiaries hold all authorizations and/or
have filed all notifications required by the FCC in connection with
their operation on all frequencies in the 108-137 MHz and 225-400 MHz
bands which we have been advised are currently being utilized on the
Cable Systems. The geographic and technical parameters with respect to
the authorized use of these frequencies are listed on Attachment 1
hereto.
(vi) The employment units covered by the Cable
Systems and operated by the Subsidiaries have been certified, where
required, by the FCC for compliance with equal employment opportunity
requirements in each of calendar years 1992 through 1996 in which such
Cable Systems have been owned and operated by the Company or the
Subsidiaries. Employment certification records for the years prior to
1992 have been purged from the FCC's database and are therefore outside
the scope of this opinion.
(vii) Statements of Account required by Section 111
of the Copyright Act of 1976, as amended have been filed, together with
royalty payments accompanying said Statements of Account, with the U.S.
Copyright Office for the Cable Systems covering each of the accounting
periods beginning with January 1 through June 30, 1994 accounting
period and ending with the July 1 through December 31, 1996 accounting
period during which such Cable Systems have been operated by the
Subsidiaries. We have not received the information or calculations
contained in these Statements, and express no opinion with respect to
the accuracy thereof. To the best of our knowledge, there are no
currently outstanding inquiries received from the U.S. Copyright Office
or any other party which question the copyright filings or payments
made by the Company or the Subsidiaries with respect to the Cable
Systems. It is possible that there may be matters pending before the
U.S. Copyright Office relating to the Cable Systems, the Company or the
Subsidiaries of which we do not have knowledge because such matters
have not yet been incorporated into the available public files of the
U.S. Copyright Office. However, we are not aware of the pending or
threatened claim, action or demand for copyright infringement or for
non-payment of royalties with respect to the Statements of Account or
related royalty payments filed by the Company and the Subsidiaries for
the Cable Systems.
(viii) The Company has obtained all consents,
approvals and authorizations of the FCC, if any, required for the
consummation of the transactions of the transactions contemplated in
the Purchase Agreement where the failure to obtain the consents,
approval, authorizations, licenses, certificates, permits or orders
would reasonably be expected to have a materially adverse impact on the
Company or the Subsidiaries.
(ix) Neither the execution and delivery of the
Purchase Agreement nor the offering of the Senior Notes contemplated
thereby will conflict with or result in a violation of any order or
regulation of the FCC applicable to the Company and the Subsidiaries,
the conflict with or the violation of which would reasonably be
expected to have a materially adverse impact on the Company or the
Subsidiaries. However, we call your attention to the following.
(x) Under the Act as now in effect, the sale or other
disposition of certain pledged collateral and the exercise of certain
other rights and remedies conferred upon you by any agreement or by
applicable law might constitute an assignment of an FCC licensee, or
transfer of control of an FCC license, requiring for its consummation
the prior consent of the FCC granted upon an appropriate application
thereof.
(xi) Under the Act as now in effect, and as now
interpreted by the FCC, no valid security interest may be granted in an
FCC license. To the extent that the Purchase Agreement and/or related
financing documents purport to grant to you a security interest in any
FCC licenses, such security interest may not be legally enforceable.
(xii) In the course of our representation of the
Company and its Subsidiaries, no matters have come to our attention,
other than matters affecting the cable television industry generally,
which would reasonable be expected to have a materially adverse impact
upon the cable television operations of the Company and the
Subsidiaries taken as a whole.
(xiii) In our opinion, the Statements in the Offering
Memorandum under the headings "Risk Factors - Regulation in the
Telecommunications Industry" and "Risk Factors - Competition," insofar
as the purport to describe the provisions of the law referred to
therein, are accurate, complete and fair in all material respects.
(h) The Initial Purchasers shall have received on the Closing
date an opinion, of Xxxxxx & Xxxxxxx, counsel for the Initial Purchasers, dated
the Closing Date, and addressed to the Initial Purchasers, with respect to such
matters as the Initial Purchasers may reasonably request, and such counsel shall
have received such certificates, documents and information as they may
reasonably request to enable them to pass upon such matters.
(i) The Initial Purchasers shall have received letters
addressed to the Initial Purchasers, and dated the date hereof and the Closing
Date from Deloitte & Touche LLP, independent certified public accountants,
substantially in the forms heretofore approved by the Initial Purchasers and
their counsel.
(j) There shall not have been any decrease in stockholders'
equity of the Company nor any material increase in the short-term or long-term
debt of the Company (other than in the ordinary course of business) from that
set forth or specifically contemplated in the Offering Memorandum; (ii) the
Company and its Subsidiaries shall not have any liabilities or obligations,
direct or contingent (whether or not in the ordinary course of business), that
are material to the Company and it subsidiaries, taken as a whole, other than
those reflected in the Offering Memorandum; and (iii) all the representations
and warranties of the Company contained in this Agreement shall be true and
correct in all material respects on and as of the date hereof and on and as of
the Closing Date as if made on and as of the Closing Date, and the Initial
Purchasers shall have received a certificate, dated the Closing Date and signed
by the Chief Executive Officer and the Chief Financial Officer of the Company
(or such other officers as are acceptable to the Initial Purchasers), to the
effect set forth in this Section 7(j) and in Section 7(k) hereof.
(k) The Company shall not have failed at or prior to the
Closing Date to have performed or complied in all material respects with any of
its agreements herein contained and required to be performed or complied with by
it hereunder at or prior to the Closing Date.
(l) There shall not have been any announcement by any
"nationally recognized statistical rating organization," as defined for purposes
of Rule 436(g) under the Act, that (i) it is downgrading its rating assigned to
any class of securities of the Company or any of its Subsidiaries, or (ii) it is
reviewing its ratings assigned to any class of securities of the Company or any
of its Subsidiaries with a view to possible downgrading, or with negative
implications, or direction not determined.
(m) The Senior Notes shall have been approved for trading in
the PORTAL Market.
(n) The Company shall have obtained, in writing, all consents
and waivers required under the terms of any of its material agreements necessary
to ensure that the transactions contemplated by this Agreement and the other
Operative Documents will not conflict with or constitute a breach of, or a
default under any of such agreements. The Company shall have furnished
photocopies of such waivers and consents, if any, to the Initial Purchasers.
(o) The Company shall have irrevocably notified the Trustee
for the Company's 9 1/2% Senior Pay-in-Kind Notes due 2004 (the "9 1/2% Notes")
that it is irrevocably calling for redemption at least $154.5 million in
aggregate principal amount of 9 1/2% Notes on a specified date (selected by the
Company and contained in such irrevocable notice to such Trustee) no more than
45 days after the Closing Date. The Company agrees to issue a press release
regarding the redemption of the 9 1/2% Notes as soon as practicable following
delivery of the irrevocable notice to such Trustee.
(p) The Company shall have furnished or caused to be furnished
to the Initial Purchasers such further certificates and documents as the Initial
Purchasers or its counsel shall have requested.
All such opinions, certificates, letters, consents, waivers
amendments and other documents will be in compliance with the provisions hereof
only if they are reasonably satisfactory in form and substance to the Initial
Purchasers and counsel for the Initial Purchasers. Any certificate or document
signed by any officer of the Company and delivered to the Initial Purchasers, or
to counsel for the Initial Purchasers, shall be deemed a representation and
warranty by the Company to the Initial Purchasers as to the statements made
therein.
8. Expenses. The Company agrees to pay the following costs,
expenses and fees and all other costs and expenses incident to the performance
by it of any of its obligations hereunder: (i) the preparation and reproduction
of the Offering Memorandum (including, without limitation, financial statements
thereto), and each amendment or supplement to any of them, this Agreement and
the Indenture; (ii) the printing (or reproduction) and delivery (including
postage, air freight charges and charges for counting and packaging) of such
copies of the Offering Memorandum, and all amendments or supplements to any of
them as may be reasonably requested for use in connection with the offering and
sale of the Senior Notes; (iii) the preparation, printing, authentication,
issuance and delivery of certificates for the Notes, including any stamp taxes
in connection with the original issuance and sale of the Notes; (iv) the
printing (or reproduction) and delivery of this Agreement, the Blue Sky
Memoranda and all other agreements or documents printed (or reproduced) and
delivered in connection with the offering of the Senior Notes; (v) the
application for quotation of the Notes on the PORTAL Market; (vi) the
qualification of the Senior Notes for offer and sale under the securities or
Blue Sky laws of the several states as provided in Section 4(e) hereof
(including the reasonable fees, expenses and disbursements of counsel for the
Initial Purchasers relating to the preparation, printing or reproduction, and
delivery of the Blue Sky Memoranda and such qualification); (vii) the
performance by the Company of its obligations under the Registration Rights
Agreement; (viii) fees and expenses of the Trustee and its counsel; (ix) the
transportation and other expenses, if any, incurred by or on behalf of the
Company representatives in connection with presentations to prospective
purchasers of the Senior Notes; and (x) the fees and expenses of the Company's
accountants and the fees and expenses of counsel (including local and special
counsel, if any) for the Company. The Company hereby agrees that they will pay
in full on the Closing Date the fees and expenses referred to in clause (vi) of
this Section 8 by delivering to counsel for the Initial Purchasers on such date
a check payable to such counsel in the requisite amount.
9. Effective Date of Agreement. This Agreement shall become
effective upon the execution and delivery hereof by all the parties hereto.
10. Termination of Agreement. This Agreement shall be subject
to termination in the absolute discretion of the Initial Purchasers, by notice
from Xxxxxxx Xxxxx Xxxxxx Inc. on behalf of itself and the other Initial
Purchasers given to the Company, prior to delivery of and payment for the Senior
Notes, if at any time prior to such time, (i) trading in the Company's Common
Stock shall have been suspended by the Commission or the Nasdaq National Market
or trading in securities generally on the New York Stock Exchange or the Nasdaq
National Market shall have been suspended or limited or minimum prices shall
have been established on such Exchange or the Nasdaq National Market; (ii) a
banking moratorium shall have been declared either by Federal or New York State
authorities; or (iii) there shall have occurred any outbreak or escalation of
hostilities, declaration by the United States of a national emergency or war or
other calamity or crisis the effect of which on financial markets is such as to
make it, in the sole judgment of the Initial Purchasers, impracticable or
inadvisable to proceed with the offering or delivery of the Senior Notes as
contemplated by the Offering Memorandum (exclusive of any amendment or
supplement thereto).
11. Miscellaneous. Except as otherwise provided in Sections 4,
9 and 10 hereof, notice given pursuant to any provision of this Agreement shall
be in writing and shall be delivered (i) if to the Company, at the office of the
Company at Main at Water Street, Coudersport, PA 16915, Attention: Chief
Financial Officer with a copy to Xxxxxxxx Xxxxxxxxx Professional Corporation, 0
Xxxxxx Xxxxxx, 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxxxx, XX 00000, Attention:
Xxxx X. Xxxxxxxxxxxx, Xx., or (ii) if to the Initial Purchasers, addressed to
Xxxxxxx Xxxxx Xxxxxx Inc., 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000, Attention:
General Counsel, with a copy to Xxxxxx & Xxxxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, XX
00000, Attention: Xxxxxx X. Xxxxxxx.
This Agreement has been and is made solely for the benefit of
the Initial Purchasers, the Company and their respective directors, officers and
the controlling persons referred to in Section 6 hereof and their respective
successors and assigns, to the extent provided herein, and no other person shall
acquire or have any right under or by virtue of this Agreement. Neither the term
"successor" nor the term "successors and assigns" as used in this Agreement
shall include a purchaser from the Initial Purchasers of any of the Senior Notes
in his status as such purchaser.
12. Applicable Law; Counterparts. This Agreement shall be
governed by and construed in accordance with the laws of the State of New York
applicable to contracts made and to be performed within the State of New York
and without regard to the conflicts of law principles thereof.
This Agreement may be signed in various counterparts which
together constitute one and the same instrument. If signed in counterparts, this
Agreement shall not become effective unless at least one counterpart hereof
shall have been executed and delivered on behalf of each party hereto.
(signature pages follow)
[PURCHASE AGREEMENT]
NY_DOCS\310095.6
[PURCHASE AGREEMENT]
Please confirm that the foregoing correctly sets forth the agreement
between the Company and the Initial Purchasers.
Very truly yours,
ADELPHIA COMMUNICATIONS CORPORATION
By: /s/ Xxxxxx X.Xxxxxxxx_____
Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President
Confirmed as of the date first above mentioned.
XXXXXXX XXXXX XXXXXX INC.
By: _/s/ Xxxx X. Xxxxxxxxx___
Name: Xxxx X. Xxxxxxxxx
Title: Director
CREDIT SUISSE FIRST BOSTON CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx____
Name: Xxxxxx X. Xxxxxxx
Title: Managing Director
XXXXXXX, XXXXX & CO.
By: _/s/ Xxxxxxx Xxxxx & Co.____
Name:
Title:
XXXXXX BROTHERS INC.
By: /s/ Xxxxxx Xxxxxxxxx___
Name: Xxxxxx Xxxxxxxxx
Title: Vice President
NATIONSBANC XXXXXXXXXX SECURITIES LLC
By: _/s/ Xxxxx X. Xxxxx___
Name: Xxxxx X. Xxxxx
Title: Principal
Exhibit A
Form of Registration Rights Agreement
