EXHIBIT 1.1
EXECUTION COPY
Xxx Communications, Inc.
4.625% Notes due 0000
Xxxxxxxxxxxx Xxxxxxxxx
Xxx Xxxx, Xxx Xxxx
May 20, 2003
Citigroup Global Markets Inc.
Xxxxxxx Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Wachovia Securities, Inc.
As Representatives of the
Several Underwriters
c/o Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
Xxx Communications, Inc., a corporation organized under the laws of
Delaware (the "Company"), proposes to sell to the several underwriters named in
Schedule II hereto (the "Underwriters"), for whom you (the "Representatives")
are acting as representatives, the principal amount of its securities identified
in Schedule I hereto (the "Securities"), to be issued under an indenture (the
"Indenture") dated as of June 27, 1995, between the Company and The Bank of New
York, as trustee (the "Trustee"). Any reference herein to any Registration
Statement, any Base Prospectus, any Preliminary Final Prospectus or the Final
Prospectus shall be deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3, which were filed under the
Exchange Act on or before the Effective Date of the applicable Registration
Statement or the issue date of the applicable Base Prospectus, any Preliminary
Final Prospectus or the Final Prospectus, as the case may be; any reference
herein to the terms "amend", "amendment" or "supplement" with respect to any
Registration Statement, any Base Prospectus, any Preliminary Final Prospectus or
the Final Prospectus shall be deemed to refer to and include the filing of any
document under the Exchange Act after the Effective Date of the applicable
Registration Statement or the issue date of the applicable Base Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, as the case may be, deemed
to be incorporated therein by reference; and all references herein to financial
statements and schedules and other information which is "contained", "included"
or "stated" in any Registration Statement, any Base Prospectus,
any Preliminary Final Prospectus or the Final Prospectus (or other references of
like import) shall be deemed to mean and include all such financial statements
and schedules and other information which is incorporated by reference in the
applicable Registration Statement, the applicable Base Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, as the case may be.
Certain terms used herein are defined in Section 17 hereof.
1. Representations and Warranties. The Company
represents and warrants to, and agrees with, each Underwriter as set forth below
in this Section 1.
(a) Compliance with Registration Requirements. (i) The
Company meets the requirements for use of Form S-3 under the Act and
has prepared and filed with the Commission registration statements (the
file numbers of which are set forth in Schedule I hereto) on Form S-3,
including related base prospectuses, for registration under the Act of
the offering and sale of the Securities. The Company may have filed one
or more amendments thereto, including a Preliminary Final Prospectus,
each of which has previously been furnished to you. The Company will
next file with the Commission one of the following: (1) after the
Effective Dates of such registration statement, a final prospectus
supplement relating to the Securities in accordance with Rules 430A and
424(b), (2) prior to the Effective Dates of such registration
statements, an amendment to such registration statement (including the
form of final prospectus supplement) or (3) a final prospectus in
accordance with Rules 415 and 424(b). In the case of clause (1), the
Company has included in such registration statements, as amended at the
Effective Dates, all information (other than Rule 430A Information)
required by the Act and the rules thereunder to be included in such
registration statements and the Final Prospectus. As filed, such final
prospectus supplement or such amendment and form of final prospectus
supplement shall contain all Rule 430A Information, together with all
other such required information, and, except to the extent the
Representatives shall agree in writing to a modification, shall be in
all substantive respects in the form furnished to you prior to the
Execution Time or, to the extent not completed at the Execution Time,
shall contain only such specific additional information and other
changes (beyond that contained in the Base Prospectuses and any
Preliminary Final Prospectus) as the Company has advised you, prior to
the Execution Time, will be included or made therein.
(ii) On the Effective Dates, the Registration Statements
did or will, and when the Final Prospectus is first filed (if required)
in accordance with Rule 424(b) and on the Closing Date (as defined
herein), the Final Prospectus (and any supplement thereto) will, comply
in all material respects with the applicable requirements of the Act,
the Exchange Act and the Trust Indenture Act and the respective rules
thereunder; on the Effective Dates and at the Execution Time, the
Registration Statements did not or will not contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the
statements therein not misleading; on the Effective Dates and on the
Closing Date, the Indenture did or will comply in all material respects
with the applicable requirements of the Trust Indenture Act and the
rules
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thereunder; and, on the Effective Dates, the Final Prospectus, if not
filed pursuant to Rule 424(b), will not, and on the date of any filing
pursuant to Rule 424(b) and on the Closing Date, the Final Prospectus
(together with any supplement thereto) will not, include any untrue
statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that the Company makes no representations or warranties as to
(i) that part of each of the Registration Statements which shall
constitute the Statement of Eligibility and Qualification (Form T-1)
under the Trust Indenture Act of the Trustee or (ii) the information
contained in or omitted from the Registration Statements or the Final
Prospectus (or any supplement thereto) in reliance upon and in
conformity with information furnished in writing to the Company by or
on behalf of any Underwriter through the Representatives specifically
for inclusion in the Registration Statement or the Final Prospectus (or
any supplement thereto).
Each Preliminary Final Prospectus and the Base Prospectuses
filed as part of the Registration Statements as originally filed or as
part of any amendment thereto, or filed pursuant to Rule 424 under the
Act, complied when so filed in all material respects with the Act, and
each Preliminary Final Prospectus and the Final Prospectus delivered to
the Underwriters for use in connection with this offering was identical
in all material respects to the electronically transmitted copies
thereof filed with the Commission pursuant to its Electronic Data
Gathering, Analysis and Retrieval system, except to the extent
permitted by Regulation S-T.
(b) Incorporated Documents. The documents incorporated or
deemed to be incorporated by reference in the Registration Statements
and the Final Prospectus, when they became effective or at the time
they were or hereafter are filed with the Commission, complied and will
comply in all material respects with the requirements of the Act and
the Exchange Act, as applicable, and, when read together with the other
information in the Final Prospectus, at the time the Registration
Statement became effective, at the time the Final Prospectus was issued
and the Closing Date, did not and will not contain an untrue statement
of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading.
(c) Independent Accountants. The accountants who
certified the financial statements and supporting schedules of the
Company and its subsidiaries and delivered their report with respect to
the audited consolidated financial statements and schedules, if any,
included in the Final Prospectus and the Registration Statements are
independent public accountants with respect to the Company and its
subsidiaries within the meaning of Regulation S-X under the Act.
(d) Financial Statements. The financial statements of the
Company included in the Registration Statements and the Final
Prospectus, together with the related schedules and notes, present
fairly the financial position of the Company and its consolidated
subsidiaries at the dates indicated and the statement of operations,
stockholders' equity and cash flows of the Company and its consolidated
subsidiaries for the periods specified; said financial statements
comply as to form with the applicable accounting requirements of the
Act and have been prepared in conformity with generally accepted
accounting principles ("GAAP") applied on a consistent basis throughout
the
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periods involved. The supporting schedules, if any, included in the
Registration Statements and the Final Prospectus comply as to form with
the applicable accounting requirements of the Act and present fairly in
accordance with GAAP the information required to be stated therein. The
selected financial data included in the Registration Statements and the
Final Prospectus present fairly the information shown therein and have
been compiled on a basis consistent with that of the audited financial
statements included in the Registration Statements and the Final
Prospectus.
(e) No Material Adverse Change in Business. Since the
respective dates as of which information is given in the Registration
Statements and the Final Prospectus, except as otherwise stated
therein, (A) there has been no material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs
or business prospects of the Company and its subsidiaries considered as
one enterprise, whether or not arising in the ordinary course of
business (a "Material Adverse Effect"), (B) there have been no
transactions entered into by the Company or any of its subsidiaries,
other than those in the ordinary course of business, which are material
with respect to the Company and its subsidiaries considered as one
enterprise and (C) there has been no dividend or distribution of any
kind declared, paid or made by the Company on any class of its capital
stock.
(f) Good Standing of the Company. The Company has been
duly organized and is validly existing as a corporation in good
standing under the laws of the State of Delaware and has corporate
power and authority to own, lease and operate its properties and to
conduct its business as described in the Final Prospectus and to enter
into and perform its obligations under this Agreement; and the Company
is duly qualified as a foreign corporation to transact business and is
in good standing in each other jurisdiction in which such qualification
is required, whether by reason of the ownership or leasing of property
or the conduct of business, except where the failure so to qualify or
to be in good standing would not result in a Material Adverse Effect.
(g) Good Standing of Subsidiaries. Each "significant
subsidiary" of the Company (as such term is defined in Rule 1-02 of
Regulation S-X) (each a "Subsidiary" and, collectively, the
"Subsidiaries") has been duly organized and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has corporate or other power and authority to own, lease
and operate its properties and to conduct its business as described in
the Final Prospectus and is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in which
such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the
failure so to qualify or to be in good standing would not result in a
Material Adverse Effect; except as otherwise disclosed in the Final
Prospectus, all of the issued and outstanding capital stock of each
such Subsidiary is owned by the Company, directly or through
subsidiaries, has been duly authorized and validly issued, is fully
paid and non-assessable and is owned free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity; and
none of the outstanding shares of capital stock of any Subsidiary was
issued in violation of the preemptive or similar rights of any
securityholder of such Subsidiary. The only subsidiaries of the Company
are (a) the subsidiaries listed on Schedule III hereto and
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(b) certain other subsidiaries which, considered in the aggregate as a
single subsidiary, do not constitute a "significant subsidiary" as
defined in Rule 1-02 of Regulation S-X.
(h) Capitalization. The shares of outstanding capital
stock of the Company have been duly authorized and validly issued and
are fully paid and non-assessable; and none of the outstanding shares
of capital stock of the Company was issued in violation of the
preemptive or other similar rights of any securityholder of the
Company.
(i) Authorization of Agreement. This Agreement has been
duly authorized, executed and delivered by the Company.
(j) Authorization of the Indenture. The Indenture has
been duly authorized, executed and delivered by the Company and,
assuming due authorization, execution and delivery by the Trustee,
constitutes a valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar laws affecting
enforcement of creditors' rights generally and except as enforcement
thereof is subject to general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity or at law).
The Indenture has been duly qualified under the Trust Indenture Act.
(k) Authorization of Securities. The Securities have been
duly authorized by the Company for issuance and sale and, on the
Closing Date, will have been duly executed by the Company and, when
authenticated, issued and delivered in the manner provided for in the
Indenture and delivered against payment of the purchase price therefor
as provided in this Agreement, will constitute valid and binding
obligations of the Company, enforceable against the Company in
accordance with their terms, except as the enforcement thereof may be
limited by bankruptcy, insolvency (including, without limitation, all
laws relating to fraudulent transfers), reorganization, moratorium or
similar laws affecting enforcement of creditors' rights generally and
except as enforcement thereof is subject to general principles of
equity (regardless of whether enforcement is considered in a proceeding
in equity or at law). The Securities will be in the form contemplated
by, and each registered holder thereof will be entitled to the benefits
of, the Indenture.
(l) Description of the Securities and the Indenture. The
Securities and the Indenture, as of the date hereof and as of the
Closing Date, conform and will conform, as applicable, in all material
respects to the respective statements relating thereto contained in the
Final Prospectus, and the Indenture is in the form filed or
incorporated by reference, as the case may be, as an exhibit to each of
the Registration Statements.
(m) Absence of Defaults and Conflicts. Neither the
Company nor any of its subsidiaries is in violation of its charter or
by-laws or other constitutive documents or in default in the
performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, deed of
trust, loan or credit agreement, note, lease or other agreement or
instrument to which the Company or any of its subsidiaries is a party
or by which it or any of them may be bound, or to which any of
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the property or assets of the Company or any of its subsidiaries is
subject (collectively, "Agreements and Instruments") except for such
defaults that would not result in a Material Adverse Effect; and the
execution, delivery and performance by the Company of this Agreement,
the Indenture and the Securities and the consummation of the
transactions contemplated in this Agreement and in the Registration
Statements (including the issuance and sale of the Securities and the
use of the proceeds from the sale of the Securities as described in the
Final Prospectus under the caption "Use of Proceeds") and compliance by
the Company with its obligations under this Agreement, the Indenture
and the Securities do not and will not, whether with or without the
giving of notice or passage of time or both, conflict with or
constitute a breach of, or default or Repayment Event (as defined
below) under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or any
of its subsidiaries pursuant to, the Agreements and Instruments (except
for such conflicts, breaches or defaults or liens, charges or
encumbrances that would not result in a Material Adverse Effect), nor
will such action result in any violation of the provisions of the
charter or by-laws or other constitutive documents of the Company or
any of its subsidiaries or any applicable law, statute, rule,
regulation, judgment, order, writ or decree of any government,
government instrumentality or court, domestic or foreign, having
jurisdiction over the Company or any of its subsidiaries or any of
their assets, properties or operations. As used herein, a "Repayment
Event" means any event or condition which gives the holder of any note,
debenture or other evidence of indebtedness (or any person acting on
such holder's behalf) the right to require the repurchase, redemption
or repayment of all or a portion of such indebtedness by the Company or
any of its subsidiaries.
(n) Absence of Labor Dispute. No labor dispute with the
employees of the Company or any of its subsidiaries exists or, to the
knowledge of the Company, is imminent which, individually or in the
aggregate, may reasonably be expected to result in a Material Adverse
Effect.
(o) Absence of Proceedings. There is no action, suit,
proceeding, inquiry or investigation before or brought by any court or
governmental agency or body, domestic or foreign, now pending, or, to
the knowledge of the Company, threatened, against or affecting the
Company or any of its subsidiaries, which is required to be disclosed
in the Registration Statements (other than as disclosed therein), or
which, individually or in the aggregate, might reasonably be expected
to result in a Material Adverse Effect, or which, individually or in
the aggregate, might reasonably be expected to materially and adversely
affect the properties or assets thereof or the consummation of the
transactions contemplated in this Agreement or the performance by the
Company of its obligations hereunder; the aggregate of all pending
legal or governmental proceedings to which the Company or any of its
subsidiaries is a party or of which any of their respective property or
assets is the subject which are not described in the Registration
Statements, including ordinary routine litigation incidental to the
business, could not reasonably be expected to result in a Material
Adverse Effect.
(p) Accuracy of Exhibits. There are no contracts or
documents which are required to be described in the Registration
Statements, the Final Prospectus or the
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documents incorporated by reference therein or to be filed as exhibits
thereto which have not been so described and filed as required.
(q) Possession of Intellectual Property. Except as
disclosed in the Final Prospectus, the Company and its subsidiaries own
or possess, or can acquire on reasonable terms, adequate patents,
patent rights, licenses, inventions, copyrights, know-how (including
trade secrets and other patented and/or unpatentable proprietary or
confidential information, systems or procedures), trademarks, service
marks, trade names or other intellectual property (collectively,
"Intellectual Property") necessary to carry on the business now
operated by them, other than those the absence of which would not have
a Material Adverse Effect, and neither the Company nor any of its
subsidiaries has received any notice or is otherwise aware of any
infringement of or conflict with asserted rights of others with respect
to any Intellectual Property or of any facts or circumstances which
would render any Intellectual Property invalid or inadequate to protect
the interest of the Company or any of its subsidiaries therein, and
which infringement or conflict (if the subject of any unfavorable
decision, ruling or finding) or invalidity or inadequacy, singly or in
the aggregate, would result in a Material Adverse Effect.
(r) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or
agency is necessary or required for the performance by the Company of
its obligations hereunder, in connection with the offering, issuance or
sale of the Securities under this Agreement or the consummation of the
transactions contemplated by this Agreement or for the due execution,
delivery or performance of the Indenture by the Company, except such as
have been already obtained or as may be required under the Act or state
securities laws, the laws of a foreign jurisdiction or the by-laws and
rules of the National Association of Securities Dealers, Inc.
(s) Possession of Licenses and Permits. The Company and
its subsidiaries possess such permits, licenses, approvals, consents
and other authorizations (collectively, "Governmental Licenses") issued
by the appropriate federal, state, local or foreign regulatory agencies
or bodies necessary to conduct the business now operated by them, other
than those the absence of which would not have a Material Adverse
Effect; the Company and its subsidiaries are in compliance with the
terms and conditions of all such Governmental Licenses, except where
the failure so to comply would not, singly or in the aggregate, have a
Material Adverse Effect; all of the Governmental Licenses are valid and
in full force and effect, except when the invalidity of such
Governmental Licenses or the failure of such Governmental Licenses to
be in full force and effect would not have a Material Adverse Effect;
and neither the Company nor any of its subsidiaries has received any
notice of proceedings relating to the revocation or modification of any
such Governmental Licenses which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would result in
a Material Adverse Effect.
(t) Title to Property. The Company and its subsidiaries
have good and marketable title to all material real property owned by
the Company and its subsidiaries and good title to all other properties
owned by them, in each case, free and clear of all mortgages, pledges,
liens, security interests, claims, restrictions or encumbrances of any
kind except such as (a) are described in the Final Prospectus or (b) do
not, singly or in the
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aggregate, materially affect the value of such property and do not
interfere with the use made and proposed to be made of such property by
the Company or any of its subsidiaries; and all of the leases and
subleases material to the business of the Company and its subsidiaries,
considered as one enterprise, and under which the Company or any of its
subsidiaries holds properties described in the Final Prospectus, are in
full force and effect, and neither the Company nor any subsidiary has
any notice of any material claim of any sort that has been asserted by
anyone adverse to the rights of the Company or any subsidiary under any
of the leases or subleases mentioned above, or any material claim
affecting or questioning the rights of the Company or such subsidiary
to the continued possession of the leased or subleased premises under
any such lease or sublease.
(u) Investment Company Act. The Company is not, and upon
the issuance and sale of the Securities as herein contemplated and the
application of the net proceeds therefrom as described in the Final
Prospectus will not be, an "investment company" as such term is defined
in the Investment Company Act of 1940, as amended (the "Investment
Company Act").
(v) Environmental Laws. Except as described in the
Registration Statements and except as would not, singly or in the
aggregate, result in a Material Adverse Effect, (A) neither the Company
nor any of its subsidiaries is in violation of any federal, state,
local or foreign statute, law, rule, regulation, ordinance, code,
policy or rule of common law or any judicial or administrative
interpretation thereof, including any judicial or administrative order,
consent, decree or judgment, relating to pollution or protection of
human health, the environment (including, without limitation, ambient
air, surface water, groundwater, land surface or subsurface strata) or
wildlife, including, without limitation, laws and regulations relating
to the release or threatened release of chemicals, pollutants,
contaminants, wastes, toxic substances, hazardous substances, petroleum
or petroleum products (collectively, "Hazardous Materials") or to the
manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of Hazardous Materials (collectively,
"Environmental Laws"), (B) the Company and its subsidiaries have all
permits, authorizations and approvals required under any applicable
Environmental Laws and are each in compliance with their requirements,
(C) there are no pending or, to the Company's knowledge, threatened
administrative, regulatory or judicial actions, suits, demands, demand
letters, claims, liens, notices of noncompliance or violation,
investigation or proceedings relating to any Environmental Law against
the Company or any of its subsidiaries and (D) there are no events or
circumstances that might reasonably be expected to form the basis of an
order for clean-up or remediation, or an action, suit or proceeding by
any private party or governmental body or agency, against or affecting
the Company or any of its subsidiaries relating to Hazardous Materials
or any Environmental Laws.
Any certificate signed by any officer of the Company and
delivered to the Representatives or counsel for the Underwriters in connection
with the offering of the Securities shall be deemed a representation and
warranty by the Company, as to matters covered thereby, to each Underwriter.
2. Purchase and Sale. Subject to the terms and
conditions and in reliance upon the representations and warranties herein set
forth, the Company agrees to sell to each
8
Underwriter, and each Underwriter agrees, severally and not jointly, to
purchase from the Company, at the purchase price set forth in Schedule I hereto
the principal amount of the Securities set forth opposite such Underwriter's
name in Schedule II hereto.
3. Delivery and Payment. Delivery of and payment for the
Securities shall be made on the date and at the time specified in Schedule I
hereto or at such time on such later date not more than three Business Days
after the foregoing date as the Representatives shall designate, which date and
time may be postponed by agreement between the Representatives and the Company
or as provided in Section 9 hereof (such date and time of delivery and payment
for the Securities being herein called the "Closing Date"). Delivery of the
Securities shall be made to the Representatives for the respective accounts of
the several Underwriters against payment by the several Underwriters through the
Representatives of the purchase price thereof to or upon the order of the
Company by wire transfer payable in same-day funds to an account specified by
the Company. Delivery of the Securities shall be made through the facilities of
The Depository Trust Company unless the Representatives shall otherwise
instruct.
4. Offering by Underwriters. It is understood that the
several Underwriters propose to offer the Securities for sale to the public as
set forth in the Final Prospectus.
5. Agreements. The Company agrees with the several
Underwriters that:
(a) The Company will use its best efforts to cause the
Registration Statements, if not effective at the Execution Time, and
any amendment thereof, to become effective. Prior to the termination of
the offering of the Securities, the Company will not file any amendment
of the Registration Statements or supplement (including the Final
Prospectus or any Preliminary Final Prospectus) to the Base
Prospectuses or any Rule 462(b) Registration Statement unless the
Company has furnished you a copy for your review prior to filing and
will not file any such proposed amendment or supplement to which you
reasonably object. Subject to the foregoing sentence, if any of the
Registration Statements has become or becomes effective pursuant to
Rule 430A, or filing of the Final Prospectus is otherwise required
under Rule 424(b), the Company will cause the Final Prospectus,
properly completed, and any supplement thereto to be filed with the
Commission pursuant to the applicable paragraph of Rule 424(b) within
the time period prescribed and will provide evidence satisfactory to
the Representatives of such timely filing. The Company will promptly
advise the Representatives (1) when the Registration Statements, if not
effective at the Execution Time, shall have become effective, (2) when
the Final Prospectus, and any supplement thereto, shall have been filed
(if required) with the Commission pursuant to Rule 424(b) or when any
Rule 462(b) Registration Statement shall have been filed with the
Commission, (3) when, prior to termination of the offering of the
Securities, any amendment to the Registration Statements shall have
been filed or become effective, (4) of any request by the Commission or
its staff for any amendment of any of the Registration Statements, or
any Rule 462(b) Registration Statement, or for any supplement to the
Final Prospectus or for any additional information, (5) of the issuance
by the Commission of any stop order suspending the effectiveness of any
of the Registration Statements or the institution or threatening of any
proceeding for that purpose and (6) of the receipt by the Company of
any notification with respect to the suspension of the qualification of
the Securities for sale in any jurisdiction within the United States or
the institution or threatening of any proceeding for such purpose. The
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Company will use its best efforts to prevent the issuance of any such
stop order or the suspension of any such qualification and, if issued,
to obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any event occurs
as a result of which the Final Prospectus as then supplemented would
include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein in the light of
the circumstances under which they were made not misleading, or if it
shall be necessary to amend the Registration Statements or supplement
the Final Prospectus to comply with the Act or the Exchange Act, the
Company promptly will (1) notify the Representatives of such event, (2)
prepare and file with the Commission, subject to the second sentence of
paragraph (a) of this Section 5, an amendment or supplement which will
correct such statement or omission or effect such compliance and (3)
supply any supplemented Final Prospectus to you in such quantities as
you may reasonably request.
(c) The Company will timely file such reports pursuant to
the Exchange Act in order to make generally available to its security
holders and to the Representatives an earnings statement or statements
of the Company and its subsidiaries which will satisfy the provisions
of Section 11(a) of the Act and Rule 158 under the Act.
(d) The Company will furnish to the Representatives and
counsel for the Underwriters, without charge, so long as delivery of a
prospectus by an Underwriter or dealer may be required by the Act, as
many copies of any Preliminary Final Prospectus and the Final
Prospectus and any supplement thereto as the Representatives may
reasonably request. The Company will pay the expenses of printing or
other production of all documents relating to the offering.
(e) The Company will arrange, if necessary, for the
qualification of the Securities for sale under the laws of such
jurisdictions within the United States as the Representatives may
designate, will maintain such qualifications in effect so long as
required for the distribution of the Securities and will pay any fee of
the National Association of Securities Dealers, Inc., in connection
with its review of the offering; 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 that would
subject it to service of process in suits, other than those arising out
of the offering or sale of the Securities, in any jurisdiction where it
is not now so subject.
(f) The Company will not, without the prior written
consent of the Representatives, offer, sell, contract to sell, pledge,
or otherwise dispose of, (or enter into any transaction which is
designed to, or might reasonably be expected to, result in the
disposition (whether by actual disposition or effective economic
disposition due to cash settlement or otherwise) by the Company or any
affiliate of the Company or any person in privity with the Company or
any affiliate of the Company) directly or indirectly, including the
filing (or participation in the filing) of a registration statement
with the Commission in respect of, or establish or increase a put
equivalent position or liquidate or decrease a call equivalent position
within the meaning of Section 16 of the Exchange Act, any debt
securities substantially similar to the Securities issued or guaranteed
by the
10
Company (other than the Securities) or publicly announce an intention
to effect any such transaction, until the Business Day set forth on
Schedule I hereto.
(g) The Company will not take, directly or indirectly,
any action designed to or that would constitute or that might
reasonably be expected to cause or result in, under the Exchange Act or
otherwise, stabilization (other than through the Underwriters) or
manipulation of the price of any security of the Company to facilitate
the sale or resale of the Securities.
6. Conditions to the Obligations of the Underwriters.
The obligations of the Underwriters to purchase the Securities shall be subject
to the accuracy of the representations and warranties on the part of the Company
contained herein as of the Execution Time and the Closing Date, to the accuracy
of the statements of the Company made in any certificates pursuant to the
provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
(a) If the Registration Statements have not become
effective prior to the Execution Time, unless the Representatives agree
in writing to a later time, the Registration Statements will become
effective not later than (i) 6:00 PM New York City time, on the date of
determination of the public offering price, if such determination
occurred at or prior to 3:00 PM New York City time on such date or (ii)
9:30 AM on the Business Day following the day on which the public
offering price was determined, if such determination occurred after
3:00 PM New York City time on such date; if filing of the Final
Prospectus, or any supplement thereto, is required pursuant to Rule
424(b), the Final Prospectus, and any such supplement, will be filed in
the manner and within the time period required by Rule 424(b); and no
stop order(s) suspending the effectiveness of the Registration
Statements shall have been issued and no proceedings for that purpose
shall have been instituted or threatened.
(b) The Company shall have requested and caused Dow,
Xxxxxx & Xxxxxxxxx, PLLC, counsel for the Company, or the Senior Vice
President, Legal & Regulatory Affairs of the Company to have furnished
to the Representatives their respective opinions, dated the Closing
Date and addressed to the Representatives, to the effect that:
(i) The Company is existing as a corporation in
good standing under the laws of the State of Delaware, has the
corporate power and authority to own its properties and to
conduct its business as described in the Final Prospectus and
to enter into and perform its obligations under each of this
Agreement, the Indenture and the Securities (collectively, the
"Operative Agreements") and, based solely on a review of
certificates from the appropriate governmental authorities in
Georgia, is duly qualified to transact business and is in good
standing in Georgia;
(ii) Each Subsidiary of the Company is an
existing corporation in good standing under the laws of the
jurisdiction of its incorporation and has the corporate power
and authority to own its property and to conduct its business
as described in the Final Prospectus;
11
(iii) The Indenture has been duly authorized,
executed and delivered, has been duly qualified under the
Trust Indenture Act, and constitutes a legal, valid and
binding instrument enforceable against the Company in
accordance with its terms (subject, as to enforcement of
remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium or other laws affecting creditors'
rights generally from time to time in effect and to general
principles of equity, including, without limitation, concepts
of materiality, reasonableness, good faith and fair dealing,
regardless of whether considered in a proceeding in equity or
at law); and the Securities have been duly authorized and,
when executed and authenticated in accordance with the
provisions of the Indenture and delivered to and paid for by
the Underwriters pursuant to this Agreement, will constitute
legal, valid and binding obligations of the Company entitled
to the benefits of the Indenture;
(iv) Other than as set forth in the Final
Prospectus, to such counsel's knowledge there is not pending
or threatened in writing any action, suit, proceeding, inquiry
or investigation, governmental or otherwise, to which the
Company or any subsidiary is a party which might reasonably be
expected to have a Material Adverse Effect, or that seeks to
restrain, enjoin, prevent the consummation of, or otherwise
challenge the issuance or sale of the Securities pursuant to
this Agreement or the application of the proceeds therefrom;
(v) The Registration Statements have become
effective under the Act; any required filing of the Base
Prospectuses and the Final Prospectus pursuant to Rule 424(b)
has been made in the manner and within the time period
required by Rule 424(b); to the knowledge of such counsel, no
stop order(s) suspending the effectiveness of the Registration
Statements has been issued, no proceedings for that purpose
have been instituted or threatened, and the Registration
Statements and the Final Prospectus (other than the financial
statements and schedules and other financial information and
statistical data included or incorporated by reference therein
or omitted therefrom and the Form T-1, as to which such
counsel need express no opinion) comply as to form in all
material respects with the applicable requirements of the Act,
the Exchange Act and the Trust Indenture Act and the
respective rules thereunder; and such counsel has no reason to
believe that on the Effective Dates or the dates that each of
the Registration Statements was last deemed amended the
Registration Statements contained any untrue statement of a
material fact or omitted to state any material fact required
to be stated therein or necessary to make the statements
therein not misleading or that the Final Prospectus as of its
date and on the Closing Date included or includes any untrue
statement of a material fact or omitted or omits to state a
material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading (in each case, other than the financial statements
and schedules and other financial information and statistical
data included or incorporated by reference therein or omitted
therefrom and the Form T-1, as to which such counsel need
express no opinion);
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(vi) This Agreement has been duly authorized,
executed and delivered by the Company;
(vii) The information (A) included or incorporated
by reference in the Final Prospectus under the captions
"Description of Notes," "Description of the Debt Securities"
and "Certain United States Federal Tax Considerations," (B) in
each of the Registration Statements under Item 15, and (C) in
the Company's Form 10-K for the year ended December 31, 2002
under the caption "Business--Competition" and "--Legislation
and Regulation" to the extent that it constitutes matters of
U.S. Federal laws, rules and regulations referred to therein,
legal conclusions or summaries of the provisions of the
Company's certificate of incorporation and by-laws or the
Operative Agreements referred to therein has been reviewed by
such counsel and accurately describes in all material respects
the matters referred to therein;
(viii) The statements in the Company's Form 10-K
for the year ended December 31, 2002 under the caption "Legal
Proceedings," to the extent that such statements constitute
summaries of legal proceedings, have been reviewed by such
counsel and, to such counsel's knowledge, accurately describe
such legal proceedings in all respects material to the
business of the Company as described in the Final Prospectus;
provided, however, that such counsel may state that it has not
been retained to represent the Company or any subsidiary or
affiliate of the Company in connection with any such legal
proceedings;
(ix) To such counsel's knowledge, no consent,
approval, authorization or order of, or qualification with,
any governmental agency or body is required under the laws of
the United States, the laws of the State of New York and the
Delaware General Corporation Law (collectively, "Applicable
Law") for the execution and delivery by the Company of the
Operative Agreements, or the consummation by the Company (as
if consummation occurred on the date of such opinion) of the
transactions contemplated thereby, except as has already been
acquired or as may be required under state securities or "Blue
Sky" laws;
(x) The issuance of the Securities and the
execution, delivery and performance (as if such performance
occurred on the date of such opinion) by the Company of the
Operative Agreements and consummation (as if consummation
occurred on the date of such opinion) of the transactions
contemplated therein do not, whether with or without the
giving of notice or lapse of time or both, conflict with or
constitute a breach of, or default or Repayment Event (as
defined in Section 1(m) of this Agreement) under, or result in
the creation or imposition of any lien, charge or encumbrance
upon any property or assets of the Company or any Subsidiary
pursuant to, any Agreements and Instruments (except for such
conflicts, breaches or defaults or liens, charges or
encumbrances that the Company has advised such counsel would
not, individually or in the aggregate, have a Material Adverse
Effect), nor will such action result in any violation of the
provisions of the certificate of incorporation or by-laws or
other constitutive documents of the Company or any Subsidiary,
or, to such counsel's knowledge, any Applicable Law or to such
counsel's knowledge, any judgment, order, writ or
13
decree of any government, government instrumentality or court,
domestic or foreign, having jurisdiction over the Company or
any Subsidiary and specifically applicable to the Company and
any Subsidiary;
(xi) To such counsel's knowledge and other than
as set forth in the Prospectus, the Company is not, nor with
the giving of notice or lapse of time or both would the
Company be, in violation of any judgment, injunction, order or
decree of the FCC other than those that the Company has
advised such counsel, would not, individually or in the
aggregate, have a Material Adverse Effect and other than
judgments, injunctions, orders or decrees of the FCC generally
applicable to the cable television industry;
(xii) The execution, delivery and performance (as
if such performance occurred on the date of such opinion) by
the Company of this Agreement does not violate the
Communications Act or any rules or the regulations thereunder
binding on the Company or its Subsidiaries or any order, writ,
judgment, injunction, decree or award of the FCC binding on
the Company or its Subsidiaries of which such counsel has
knowledge; and
(xiii) The Company is not and, after giving effect
to the offering and sale of the Securities and the application
of the proceeds thereof as described in the Final Prospectus,
will not be an "investment company" as defined in the
Investment Company Act.
In rendering such opinion, such counsel may rely (A) as to
matters involving the application of laws of any jurisdiction other than the
laws of the United States, the laws of the State of New York and the Delaware
General Corporation Law to the extent they deem proper and specified in such
opinion, upon the opinion of other counsel of good standing whom they believe to
be reliable and who are satisfactory to counsel for the Underwriters and (B) as
to matters of fact, to the extent they deem proper, on certificates of
responsible officers of the Company and public officials. References to the
Final Prospectus in this paragraph (b) include any supplements thereto at the
Closing Date.
(c) The Representatives shall have received from Shearman
& Sterling, counsel for the Underwriters, such opinion or opinions,
dated the Closing Date and addressed to the Representatives, with
respect to the issuance and sale of the Securities, the Indenture, the
Registration Statements, the Final Prospectus (together with any
supplement thereto) and other related matters as the Representatives
may reasonably require, and the Company shall have furnished to such
counsel such documents as they request for the purpose of enabling them
to pass upon such matters.
(d) The Company shall have furnished to the
Representatives a certificate of the Company, signed by the Chairman of
the Board, the President or any Executive or Senior Vice President or
the Treasurer, and the principal financial or accounting officer of the
Company, dated the Closing Date, to the effect that the signers of such
certificate have carefully examined the Registration Statements, the
Final Prospectus, any supplements to the Final Prospectus and this
Agreement and that:
14
(i) the representations and warranties of the
Company in this Agreement are true and correct on and as of
the Closing Date with the same effect as if made on the
Closing Date and the Company has complied with all the
agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to the Closing Date;
(ii) no stop order(s) suspending the
effectiveness of the Registration Statements has been issued
and no proceedings for that purpose have been instituted or,
to the Company's knowledge, threatened; and
(iii) since the date of the most recent financial
statements included or incorporated by reference in the Final
Prospectus (exclusive of any supplement thereto), there has
been no material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as
one enterprise, whether or not arising in the ordinary course
of business, except as set forth in or contemplated in the
Final Prospectus (exclusive of any supplement thereto).
(e) At the Execution Time and at the Closing Date, the
Company shall have requested and caused Deloitte & Touche LLP to
furnish to the Representatives letters (the letter delivered at the
Closing Date may refer to the letter previously delivered at the
Execution Time to the Representatives), dated respectively as of the
Execution Time and as of the Closing Date, in form and substance
satisfactory to the Representatives, containing statements and
information of the type ordinary included in accountants' "comfort
letters" to underwriters with respect to the financial statements and
certain financial information of the Company contained in the Final
Prospectus.
(f) Subsequent to the Execution Time or, if earlier, the
dates as of which information is given in the Registration Statements
(exclusive of any amendment thereof) and the Final Prospectus
(exclusive of any supplement thereto), there shall not have been any
material adverse change in the condition, financial or otherwise, or in
the earnings, business affairs or business prospects of the Company and
its subsidiaries considered as one enterprise, whether or not arising
from transactions in the ordinary course of business.
(g) On the Closing Date the Securities shall be rated at
least Baa2 by Xxxxx'x Investors Service Inc. and BBB by Standard &
Poor's Ratings Service, and the Company shall have delivered to the
Representatives a letter from each such rating agency, or other
evidence satisfactory to the Representative, confirming that the
Securities have such ratings; and subsequent to the Execution Time,
there shall not have been any decrease in the rating of any of the
Company's other debt securities by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule
436(g) under the Act) or any notice given of any intended or potential
decrease in any such rating or of a possible change in any such rating
that does not indicate the direction of the possible change.
(h) Prior to the Closing Date, the Company shall have
furnished to the Representatives such further information, certificates
and documents as the Representatives may reasonably request.
15
If any of the conditions specified in this Section 6 shall not
have been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Representatives and counsel for the
Underwriters, this Agreement and all obligations of the Underwriters hereunder
may be canceled at, or at any time prior to, the Closing Date by the
Representatives. Notice of such cancellation shall be given to the Company in
writing or by telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 6 shall
be delivered at the office of Shearman & Sterling, counsel for the Underwriters,
at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000, on the Closing Date.
7. Reimbursement of Underwriters' Expenses. If the sale
of the Securities provided for herein is not consummated because any condition
to the obligations of the Underwriters set forth in Section 6 hereof is not
satisfied, because of any termination pursuant to Section 10 hereof 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 other than by reason of a
default by any of the Underwriters, the Company will reimburse the Underwriters
on demand for all out-of-pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been incurred by them in connection
with the proposed purchase and sale of the Securities.
8. Indemnification and Contribution. (a) The Company
agrees to indemnify and hold harmless each Underwriter, the directors, officers,
employees and agents of each Underwriter and each person who controls any
Underwriter 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 Registration Statements or in the
Base Prospectuses, any Preliminary Final Prospectus or the Final Prospectus, or
in any amendment or supplement to the Base Prospectuses, any Preliminary Final
Prospectus or the Final Prospectus, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
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
therein in reliance upon and in conformity with written information furnished to
the Company by or on behalf of any Underwriter through the Representatives
specifically for inclusion therein and provided, further, that as to any
Preliminary Final Prospectus, this indemnity agreement shall not inure to the
benefit of any Underwriter or any person controlling such Underwriter on account
of any loss, claim, damage, liability or action arising from the sale of
Securities to any person by such Underwriter if such Underwriter failed to send
or give a copy of the Final Prospectus, as the same may be amended or
supplemented, to that person and the untrue statement or alleged untrue
statement of a material fact or omission or alleged omission to state a material
fact in the Preliminary Final Prospectus was corrected in said amended or
16
supplemented Final Prospectus and the delivery thereof was required by law and
would have constituted a complete defense to the claim of that person, unless
such failure resulted from non-compliance by the Company with Section 5(a) or
(b). For purposes of the second proviso to the immediately preceding sentence,
the term Final Prospectus shall not be deemed to include the documents
incorporated by reference therein, and no Underwriter shall be obligated to send
or give any document incorporated by reference in a Preliminary Final Prospectus
or the Final Prospectus to any person. This indemnity agreement will be in
addition to any liability which the Company may otherwise have.
(b) Each Underwriter severally and not jointly agrees to
indemnify and hold harmless the Company, each of its directors, each of its
officers who signs each of the Registration Statements, 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
Underwriter, but only with respect to written information relating to such
Underwriter furnished to the Company by or on behalf of such Underwriter through
the Representatives specifically for inclusion in the documents referred to in
the foregoing indemnity. This indemnity agreement will be in addition to any
liability which any Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under
this Section 8 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 8, 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 or
otherwise affect 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 in writing 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
17
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 8 is unavailable to or insufficient to hold harmless
an indemnified party for any reason, the Company and the Underwriters severally
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 Underwriters 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 Underwriters on the other from the offering of the Securities;
provided, however, that in no case shall any Underwriter (except as may be
provided in any agreement among underwriters relating to the offering of the
Securities) be responsible for any amount in excess of the amount of the
Securities purchased by such Underwriter hereunder less any damages which the
Underwriter has otherwise been required to pay by reason of any untrue or
alleged untrue statement or omission or alleged omission of a material fact. If
the allocation provided by the immediately preceding sentence is unavailable for
any reason, the Company and the Underwriters severally 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 Underwriters 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 Underwriters shall be deemed to be equal to the total underwriting discounts
and commissions, in each case as set forth on the cover page of the Final
Prospectus. 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 Underwriters on the other, the
intent of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission. The Company
and the Underwriters agree that it would not be just and equitable if
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 8, each person who
controls an Underwriter within the meaning of either the Act or the Exchange Act
and each director, officer, employee and agent of an Underwriter shall have the
same rights to contribution as such Underwriter, and each person who controls
the Company within the meaning of either the Act or the Exchange Act, each
officer of the Company who shall have signed the Registration Statements and
each 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).
9. Default by an Underwriter. If any one or more
Underwriters shall fail to purchase and pay for any of the Securities agreed to
be purchased by such Underwriter or
18
Underwriters hereunder and such failure to purchase shall constitute a default
in the performance of its or their obligations under this Agreement, the
remaining Underwriters shall be obligated severally to take up and pay for (in
the respective proportions which the principal amount of Securities set forth
opposite their names in Schedule II hereto bears to the aggregate principal
amount of Securities set forth opposite the names of all the remaining
Underwriters) the Securities which the defaulting Underwriter or Underwriters
agreed but failed to purchase; provided, however, that in the event that the
aggregate principal amount of Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase shall exceed 10% of the aggregate
principal amount of Securities set forth in Schedule II hereto, the remaining
Underwriters shall have the right to purchase all, but shall not be under any
obligation to purchase any, of the Securities, and if such nondefaulting
Underwriters do not purchase all the Securities, this Agreement will terminate
without liability to any nondefaulting Underwriter or the Company. In the event
of a default by any Underwriter as set forth in this Section 9, the Closing Date
shall be postponed for such period, not exceeding five Business Days, as the
Representatives shall determine in order that the required changes in the
Registration Statements and the Final Prospectus or in any other documents or
arrangements may be effected. Nothing contained in this Agreement shall relieve
any defaulting Underwriter of its liability, if any, to the Company and any
nondefaulting Underwriter for damages occasioned by its default hereunder.
10. Termination. This Agreement shall be subject to
termination in the absolute discretion of the Representatives, by notice given
to the Company prior to delivery of and payment for the Securities, if at any
time prior to such time (i) trading in any securities issued by the Company,
other than its 2% Exchangeable Subordinated Debentures due 2029, its 3%
Exchangeable Subordinated Debentures due 2030 and its Exchangeable Subordinated
Discount Debentures due 2020, shall have been suspended by the Commission or any
exchange or any over-the-counter market or trading in securities generally on
the New York Stock Exchange or any over-the-counter market shall have been
suspended or limited or minimum prices shall have been established on such
Exchange or a material disruption has occurred in commercial banking or
securities settlement or clearance services in the United States, (ii) a banking
moratorium shall have been declared either by Federal or New York State
authorities or (iii) there shall have occurred any material adverse change in
the financial markets in the United States or the international financial
markets, any outbreak of hostilities or escalation thereof or other calamity or
crisis or any change or development involving a prospective change in national
or international political, financial or economic conditions, in each case the
effect of which is such as to make it, in the sole judgment of the
Representatives, impractical or inadvisable to proceed with the offering or
delivery of the Securities as contemplated by the Final Prospectus (exclusive of
any supplement thereto).
11. Representations and Indemnities to Survive. The
respective agreements, representations, warranties, indemnities and other
statements of the Company or its officers and of the Underwriters set forth in
or made pursuant to this Agreement will remain in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or the
Company or any of the officers, directors, employees, agents or controlling
persons referred to in Section 8 hereof, and will survive delivery of and
payment for the Securities. The provisions of Sections 7 and 8 hereof shall
survive the termination or cancellation of this Agreement.
19
12. Notices. All communications hereunder will be in
writing and effective only on receipt, and, if sent to the Representatives, will
be mailed, delivered or telefaxed to Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated, Attention: Investment Banking, Global Media Group
(fax no.: (000) 000-0000) and confirmed to Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated at 0 Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Investment Banking, Global Media Group, to Citigroup
Global Markets Inc., Attention: General Counsel (fax no.: (000) 000-0000) and
confirmed to Citigroup Global Markets Inc. at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: General Counsel, and to Wachovia Securities, Inc.,
Attention: Debt Syndicate (fax no.: (000) 000-0000) and confirmed to Wachovia
Securities, Inc. at 000 Xxxxx Xxxxxxx Xxxxxx, XX-0, XX 0602, Xxxxxxxxx, XX
00000-0000, Attention: Debt Syndicate; or, if sent to the Company, will be
mailed, delivered or telefaxed and confirmed to Xxx Communications, Inc., 0000
Xxxx Xxxxx Xxxxx, X.X., Xxxxxxx, Xxxxxxx 00000, Attention: Xxxxx X. Xxxxx (fax
no.: (000) 000-0000), with a copy, Attention: General Counsel (fax no.: (404)
000-0000).
13. Successors. This Agreement will inure to the benefit
of and be binding upon the parties hereto and their respective successors and
the officers, directors, employees, agents and controlling persons referred to
in Section 8 hereof, and no other person will have any right or obligation
hereunder.
14. Applicable Law. This Agreement will be governed by
and construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed within the State of New York.
15. Counterparts. This Agreement may be signed in one or
more counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
16. Headings. The section headings used herein are for
convenience only and shall not affect the construction hereof.
17. Definitions. The terms which follow, when used in
this Agreement, shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended, and
the rules and regulations of the Commission promulgated thereunder.
"Base Prospectuses" shall mean the prospectuses referred to in
paragraph 1(a) above contained in the Registration Statements at the
respective Effective Dates, as the same may have been amended at the
Execution Time.
"Business Day" shall mean any day other than a Saturday, a
Sunday or a legal holiday or a day on which banking institutions or
trust companies are authorized or obligated by law to close in New York
City.
"Commission" shall mean the Securities and Exchange
Commission.
"Effective Dates" shall mean each date and time that the
respective Registration
20
Statements, any post-effective amendment or amendments thereto and any
Rule 462(b) Registration Statements became or become effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, and the rules and regulations of the Commission promulgated
thereunder.
"Execution Time" shall mean the date and time that this
Agreement is executed and delivered by the parties hereto.
"Final Prospectus" shall mean the prospectus supplement
relating to the Securities that was first filed pursuant to Rule 424(b)
after the Execution Time, together with the Base Prospectus.
"Preliminary Final Prospectus" shall mean any preliminary
prospectus supplement to the Base Prospectus which describes the
Securities and the offering thereof and is used prior to filing of the
Final Prospectus, together with the Base Prospectus.
"Registration Statements" shall mean the registration
statements referred to in paragraph 1(a) above and identified on
Schedule I hereto, including respective exhibits and financial
statements, as amended by pre- or post-effective amendments at the
Execution Time (or, if not effective at the Execution Time, in the form
in which it shall become effective) and, in the event any Rule 462(b)
Registration Statement becomes effective prior to the Closing Date,
shall also mean such Rule 462(b) Registration Statement, as the case
may be. Such term shall include any Rule 430A Information deemed to be
included therein at the Effective Date as provided by Rule 430A.
"Rule 415", "Rule 424", "Rule 430A" and "Rule 462" refer to
such rules under the Act.
"Rule 430A Information" shall mean information with respect to
the Securities and the offering thereof permitted to be omitted from
any of the Registration Statements when it becomes effective pursuant
to Rule 430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b)
relating to the offering covered by the registration statements
referred to in Section 1(a) hereof.
"Trust Indenture Act" shall mean the Trust Indenture Act of
1939, as amended, and the rules and regulations of the Commission
promulgated thereunder.
21
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Company and the several Underwriters.
Very truly yours,
Xxx Communications, Inc.
By: /s/Xxxxx X. Xxxxx
---------------------------
Name: Xxxxx X. Xxxxx
Title: Treasurer
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
Citigroup Global Markets Inc.
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Managing Director
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
By: /s/ Xxxx Xxxxxx
-----------------------------------------
Name: Xxxx Xxxxxx
Title: Vice President, Investment Banking
Wachovia Securities, Inc.
By: /s/ Xxxxx Xxxxxx
-----------------------------------------
Name: Xxxxx Xxxxxx
Title: Managing Director
For itself and the other
several Underwriters
named in Schedule II to the
foregoing Agreement.
SCHEDULE I
Underwriting Agreement dated May 20, 2003
Registration Statement No. 333-65102
Representatives: Citigroup Global Markets Inc.
Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated
Wachovia Securities, Inc.
Title, Purchase Price and Description of Securities:
Title: 4.625% Notes due 2013
Principal amount: $600,000,000
Initial public offering price: 99.359% of the principal amount
thereof ($596,154,000), plus accrued
interest, if any, from May 27, 2003
Purchase price: 98.709% of the principal amount
thereof ($592,254,000)
Sinking fund provisions: None
Interest rate: 4.625% per annum, payable December 1
and June 1 of each year, commencing
December 1, 2003
Stated Maturity Date: June 1, 2013
Redemption provision: The Company may redeem the notes at
any time, in whole or in part, on at
least 30 but not more than 60
calendar days' notice, at a
redemption price equal to the
greater of (i) 100% of the principal
amount of the notes to be redeemed
and (ii) the sum, as determined by
the quotation agent, of the present
values of the principal amount and
the remaining scheduled payments of
interest on such notes to be
redeemed (exclusive of interest
accrued to the date of redemption),
in each case discounted from their
respective scheduled payment dates
to the redemption date on a
semiannual basis (assuming a 360-day
year consisting of twelve 30-day
months) at the treasury rate plus 25
basis points, plus, in either case,
accrued interest thereon to the date
of redemption
Other provisions: N/A
Closing Date, Time and Location: May 27, 2003 at 9:00 a.m. at
Shearman & Sterling, 000 Xxxxxxxxx
Xxxxxx, Xxx Xxxx, XX 00000
Type of Offering: Non-delayed
Date referred to in Section 5(f)
after which the Company may
offer or sell debt securities
issued or guaranteed by the
Company without the consent of
the Representatives: June 11, 2003
Modification of items to be
covered by the letter from
Deloitte & Touche LLP delivered
pursuant to Section 6(e) at the
Execution Time: None
2
SCHEDULE II
Principal Amount
of Securities to
Underwriters be Purchased
------------ ------------
Citigroup Global Markets Inc.................................................... $ 138,000,000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated........................................................ 138,000,000
Wachovia Securities, Inc........................................................ 138,000,000
Credit Suisse First Boston LLC.................................................. 34,800,000
Commerzbank Capital Markets Corp................................................ 34,800,000
Fleet Securities, Inc. ......................................................... 34,800,000
Xxxxxx Xxxxxxx & Co. Incorporated............................................... 34,800,000
Xxxxxx Brothers Inc............................................................. 34,800,000
The Xxxxxxxx Capital Group, L.P................................................. 12,000,000
Total.................................................................... $ 600,000,000
================
SCHEDULE III
List of Subsidiaries
Xxx Communications Las Vegas, Inc.
Cox Classic Cable, Inc.
CoxCom, Inc.
Xxx Communications BTP Holdings, Inc.
CCI PCS, Inc.
