Exhibit 1.1
CSC HOLDINGS, INC.
(a Delaware corporation)
7 1/4% Senior Notes due 2008
7 5/8% Senior Debentures due 2018
PURCHASE AGREEMENT
Dated: July 16, 1998
CSC HOLDINGS, INC.
(a Delaware corporation)
$500,000,000
7 1/4% Senior Notes due 2008
and
$500,000,000
7 5/8% Senior Debentures due 2018
PURCHASE AGREEMENT
July 16, 1998
To the Underwriters named in Schedule I
Ladies and Gentlemen:
CSC Holdings, Inc., a Delaware corporation (the "Company"),
proposes to issue and sell to the underwriters named in Schedule I certain
of its debt securities specified in Schedule II (the "Offered Securities")
on the terms and conditions stated herein and in Schedule II. The Offered
Securities will be issued pursuant to an indenture dated as of July 1, 1998
(the "Indenture"), which Indenture, for all purposes hereof, shall include
the Officers' Certificate (as defined in the Indenture) establishing the
form and terms of the Offered Securities pursuant to Section 301 of the
Indenture, between the Company and The Bank of New York, as trustee (the
"Trustee") As used herein, unless the context otherwise requires, the term
"Underwriters" shall mean the firms named as Underwriters in Schedule I,
and the term "you" shall mean the Underwriters. The Offered Securities and
the Indenture are more fully described in the Prospectus and the Prospectus
Supplement referred to below.
The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 (Registration
No. 333-57407), including a prospectus, relating to certain of its
securities (including the Offered Securities) and the offering thereof from
time to time in accordance with Rule 415 under the Securities Act of 1933,
as amended (the "1933 Act"). Such registration statement has been declared
effective by the Commission. As provided in Section 3(a) hereof, a
prospectus supplement reflecting the terms of the Offered Securities, the
terms of the offering thereof and the other matters set forth therein has
been prepared and will be filed pursuant to Rule 424 under the 1933 Act.
Such prospectus supplement, in the form first filed after the date hereof
pursuant to Rule 424(b), is herein referred to as the "Prospectus
Supplement". Such registration
statement, as amended at the date hereof, including the exhibits thereto
and the documents incorporated by reference therein pursuant to Item 12 of
Form S-3 under the 1933 Act, is herein called the "Registration Statement".
Any registration statement filed pursuant to Rule 462(b) under the 1933 Act
is herein referred to as the "Rule 462(b) Registration Statement" and,
after such filing, the term "Registration Statement" shall include the Rule
462(b) Registration Statement. The basic prospectus included or
incorporated by reference in the Registration Statement relating to all
offerings of securities under the Registration Statement, as supplemented
by the Prospectus Supplement, is herein called the "Prospectus", except
that, if such basic prospectus is amended or supplemented on or prior to
the date on which the Prospectus Supplement is first filed pursuant to
Rule 424, the term "Prospectus" shall refer to the basic prospectus as so
amended or supplemented and as supplemented by the Prospectus Supplement,
in either case including the documents filed by the Company with the
Commission pursuant to the Securities Exchange Act of 1934, as amended (the
"1934 Act"), that are incorporated by reference therein pursuant to Item 12
of Form S-3 under the 1933 Act. For purposes of this Agreement, all
references to the Registration Statement, any preliminary prospectus, the
Prospectus or any amendment or supplement to any of the foregoing shall be
deemed to include the copy filed with the Commission pursuant to its
Electronic Data Gathering, Analysis and Retrieval System ("XXXXX").
Section 1. Representations and Warranties. (a) The Company
represents and warrants to and agrees with each of the Underwriters that:
(i) The Company meets the requirements for use of Form S-3 under
the 1933 Act and on the original effective date of the Registration
Statement and on the effective date of the most recent post-effective
amendment thereto or the Rule 462(b) Registration Statement, if any,
the Registration Statement and the Rule 462(b) Registration Statement,
and any amendments or supplements thereto, complied in all material
respects with the requirements of the 1933 Act and the rules and
regulations of the Commission thereunder (the "1933 Act Regulations"),
the Trust Indenture Act of 1939, as amended (the "1939 Act"), and the
rules and regulations of the Commission under the 1939 Act (the "1939
Act Regulations") and did 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; on
the date hereof and at the Closing Time (as defined below), (A) the
Registration Statement and any amendments and supplements thereto,
comply and will comply in all material respects with the requirements
of the 1933 Act, the 1933 Act Regulations, the 1939 Act and the 1939
Act Regulations, (B) neither the Registration Statement nor any
amendment or supplement thereto includes or will include an untrue
statement of a material fact or omits or will omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading and (C) neither the Prospectus nor
any amendment or supplement thereto includes or will include an untrue
statement of a
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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 does not apply to statements or omissions
made in reliance upon and in conformity with information furnished in
writing by you to the Company expressly for use in the Registration
Statement or the Prospectus. At the Closing Time, the Indenture will
comply in all material respects with the requirements of the 1939 Act
and the 1939 Act Regulations and will be duly qualified under the 1939
Act. Each preliminary prospectus and the 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 XXXXX, except to the extent
permitted by Regulation S-T.
(ii) The documents incorporated by reference in the Prospectus
pursuant to Item 12 of Form S-3 under the 1933 Act, at the time they
were filed with the Commission, complied in all material respects with
the requirements of the 1934 Act, and the rules and regulations of the
Commission thereunder (the "1934 Act Regulations"), and, when read
together and with the other information in the Prospectus, do not and
will not, on the date hereof and at all times subsequent thereto up to
the Closing Time, include an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(iii) KPMG Peat Marwick LLP, who are reporting upon the
audited financial statements and schedules included or incorporated by
reference in the Registration Statement, are independent accountants
as required by the 1933 Act and the 1933 Act Regulations.
(iv) The consolidated historical financial statements included or
incorporated by reference in the Registration Statement present fairly
the consolidated financial position of the Company and its
subsidiaries as of the dates indicated and the consolidated results of
operations and changes in financial position of the Company and its
subsidiaries for the periods specified. Such financial statements
have been prepared in conformity with generally accepted accounting
principles applied on a consistent basis throughout the periods
involved. The financial statement schedules, if any, included in the
Registration Statement present fairly the information required to be
stated therein. The selected financial data included in the
Prospectus present fairly the information shown therein and have been
compiled on a basis consistent with that of the audited consolidated
financial statements included or incorporated by reference in the
Registration Statement. The pro forma financial statements and other
pro forma financial information included in the Prospectus present
fairly the information shown therein, have been prepared in accordance
with the Commission's rules and guidelines
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with respect to pro forma financial statements, have been properly
compiled on the pro forma bases described therein, and, in the opinion
of the Company, the assumptions used in the preparation thereof are
reasonable and the adjustments used therein are appropriate to give
effect to the transactions or circumstances referred to therein.
(v) The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware
with power and authority (corporate and other) under such laws to own,
lease and operate its properties and conduct its business as described
in the Prospectus; and the Company is duly qualified to transact
business as a foreign corporation and is in good standing in each
other jurisdiction in which it owns or leases property of a nature, or
transacts business of a type, that would make such qualification
necessary, except to the extent that the failure to so qualify or be
in good standing would not have a material adverse effect on the
Company and its subsidiaries, considered as one enterprise.
(vi) The subsidiaries of the Company set forth on Schedule III
are, as of the date hereof, all of the "Restricted Subsidiaries", as
such term is defined in the indenture, dated as of December 1, 1997,
for the Company's 7 7/8% Senior Debentures due 2018 and the Bank
Credit Agreement (as such term is defined in the Indenture). The
subsidiaries of the Company set forth on Schedule IV are "Unrestricted
Subsidiaries", as such term is defined in the Indenture (the
Restricted Subsidiaries and the Unrestricted Subsidiaries are
hereinafter referred to collectively as the "Subsidiaries"). The
Subsidiaries on Schedules III and IV with an asterisk by their names
are the only subsidiaries of the Company which had at December 31,
1997 assets in excess of 10% of the consolidated assets of the Company
and its subsidiaries as at that date or had, in the aggregate, for the
fiscal year then ended revenues or operating cash flow in excess of
10% of consolidated revenues or consolidated operating cash flow of
the Company and its subsidiaries for such period (such Subsidiaries
are referred to herein as the "Material Subsidiaries"). In making
this determination, any subsidiary acquired after December 31, 1997
shall be deemed to have been acquired as of such date.
(vii) Each Material Subsidiary that is a corporation is duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation with power and authority (corporate
and other) under such laws to own, lease and operate its properties
and conduct its business; and each such Material Subsidiary is duly
qualified to transact business as a foreign corporation and is in good
standing in each other jurisdiction in which it owns or leases
property of a nature, or transacts business of a type, that would make
such qualification necessary, except to the extent that the failure to
so qualify or be in good standing would not have a material adverse
effect on the Company and its subsidiaries, considered as one
enterprise. All of the outstanding
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shares of capital stock of each Material Subsidiary have been duly
authorized and validly issued and are fully paid and nonassessable
and, except as disclosed on Schedule III or IV to this Agreement or as
disclosed or contemplated by the Prospectus, are owned by the Company,
directly or through one or more subsidiaries, free and clear of any
pledge, lien, security interest, charge, claim, equity or encumbrance
of any kind.
(viii) Each of the Material Subsidiaries in which the Company
or a subsidiary of the Company is a limited or general partner
(hereinafter called the "Partnerships") has been duly formed and is
validly existing as a limited or general partnership, as the case may
be, under the laws of its jurisdiction of organization, with full
power and authority to own, lease and operate properties and conduct
its business; all necessary filings with respect to the formation of
the Partnerships as limited or general partnerships (as the case may
be) have been made under such laws; and each of the Partnerships is
duly qualified to transact business and is in good standing in each
other jurisdiction in which it owns or leases property of a nature, or
transacts business of a type, that would make such qualification
necessary, except to the extent that the failure to so qualify or be
in good standing would not have a material adverse effect on the
Company and its subsidiaries, considered as one enterprise.
(ix) The Company had at March 31, 1998 a duly authorized and
outstanding capitalization as set forth in the Prospectus under the
caption "Capitalization"; the Offered Securities conform in all
material respects to the description thereof contained in the
Prospectus and such description conforms in all material respects to
the rights set forth in the instruments defining the same.
(x) The Offered Securities have been duly authorized by the
Company. When executed, authenticated, issued and delivered in the
manner provided for in the Indenture and sold and paid for as provided
herein, the Offered Securities will constitute valid and binding
obligations of the Company entitled to the benefits of the Indenture
and enforceable against the Company in accordance with their terms,
subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and general principles of
equity (regardless of whether enforcement is considered in a
proceeding in equity or at law).
(xi) All of the outstanding shares of capital stock of the
Company have been duly authorized and validly issued and are fully
paid and nonassessable; and none of the outstanding shares of capital
stock of the Company was issued in violation of the preemptive rights
of any stockholder of the Company.
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(xii) This Agreement has been duly authorized, executed and
delivered by the Company.
(xiii) The Indenture has been duly authorized by the Company.
The Indenture as executed is or will be substantially in the form
filed as an exhibit to the Registration Statement. The Indenture,
when duly executed and delivered by the Company and the Trustee, will
constitute a valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and general principles of equity
(regardless of whether enforcement is considered in a proceeding in
equity or at law); and the form of Indenture conforms in all material
respects to the description thereof contained in the Prospectus.
(xiv) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as
otherwise stated therein or contemplated thereby, there has not been
(A) any material loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
order or decree and there has not been any change in the capital stock
or long-term debt of the Company or any of its Subsidiaries or any
change which the Company has reasonable cause to believe will involve
any material adverse change, or any development involving a
prospective material adverse change, in or affecting the financial
position, stockholders' equity or results of operations of the Company
and its subsidiaries, considered as one enterprise, or (B) any
transaction entered into by the Company or any subsidiary, other than
in the ordinary course of business, that is material to the Company
and its subsidiaries, considered as one enterprise, or (C) any
dividend or distribution of any kind declared, paid or made by the
Company on its capital stock.
(xv) Neither the Company nor any Subsidiary is in default in the
performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other agreement or instrument to which it is
a party or by which it may be bound or to which any of its properties
may be subject, except for such defaults that would not have a
material adverse effect on the financial position, stockholders'
equity or results of operations of the Company and its subsidiaries,
considered as one enterprise. The execution and delivery of the
Indenture and this Agreement (collectively, the "Operative Documents")
by the Company, the issuance and delivery of the Offered Securities,
the consummation by the Company of the transactions contemplated by
the Operative Documents, the compliance by the Company with the terms
of the Operative Documents have been duly authorized by all necessary
corporate action on the part of the Company and do not and
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will not result in any violation of the charter or by-laws of the
Company or any Subsidiary, and do not and will not conflict with, or
result in a breach of any of the terms or provisions of, or constitute
a default under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or
any Subsidiary under, (A) any contract, indenture, mortgage, loan
agreement, note, lease or other agreement or instrument to which the
Company or any Subsidiary is a party or by which it may be bound or to
which any of its properties may be subject (except for such conflicts,
breaches or defaults or liens, charges or encumbrances that would not
have a material adverse effect on the financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, considered as one enterprise) or (B) any existing
applicable law, rule, regulation, judgment, order or decree of any
government, governmental instrumentality or court, domestic or
foreign, having jurisdiction over the Company or any Subsidiary or any
of its properties (except for such conflicts, breaches or defaults or
liens, charges or encumbrances that would not have a material adverse
effect on the financial position, stockholders' equity or results of
operations of the Company and its subsidiaries, considered as one
enterprise) or (C) any material agreement or other material instrument
(including any franchise agreement, license, permit or other
governmental authorization granted by the Federal Communications
Commission (hereinafter called the "FCC"), The New York State
Commission on Cable Television, the Massachusetts Cable Television
Commission or any other governing body having jurisdiction over cable
television operations) binding upon the Company or any of its
Subsidiaries (except for such conflicts, breaches or defaults or
liens, charges or encumbrances that would not have a material adverse
effect on the financial position, stockholders' equity or results of
operations of the Company and its subsidiaries, considered as one
enterprise).
(xvi) The statements in the Prospectus Supplement under "Risk
Factors" and "Description of Securities," the statements in the basic
prospectus under "Description of Debt Securities" and "Risk Factors"
and the statements in the Company's annual report on Form 10-K for the
year ended December 31, 1997 (the "1997 Form 10-K"), which is
incorporated by reference in the Prospectus, under "Business --
Competition Cable Television" and "Business -- Regulation -- Cable
Television" and in the Registration Statement in Item 15, and the
statements cross-referenced therein, insofar as such statements
constitute a summary of the legal matters, documents or proceedings
referred to therein, with respect to such legal matters, documents and
proceedings, do not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary in order to make the statements therein not misleading.
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(xvii) Except as disclosed in the Prospectus, no
authorization, approval, consent or license of any government,
governmental instrumentality or court, domestic or foreign (other than
under the 1933 Act, the 1939 Act and the securities or blue sky laws
of the various states) is required (A) for the valid authorization,
issuance, sale and delivery of the Offered Securities in the United
States, or (B) for the execution, delivery or performance by the
Company of this Agreement or the Indenture, except for any such
consent, approval, authorization, order or registration the failure of
which to obtain or make or the absence of which would result in no
material adverse effect on the Company and its subsidiaries,
considered as one enterprise.
(xviii) Except as disclosed in the Prospectus, there is no
action, suit or proceeding before or by any government, governmental
instrumentality or court, domestic or foreign, now pending or, to the
best of the Company's knowledge, threatened against or affecting the
Company or any Subsidiary that is required to be disclosed in the
Prospectus or that the Company has reasonable cause to believe will
result in any material adverse change in the consolidated financial
position, stockholders' equity or results of operations of the Company
and its subsidiaries, considered as one enterprise, or that will
materially and adversely affect the properties or assets of the
Company and its subsidiaries, considered as one enterprise, or that
the Company has reasonable cause to believe will materially adversely
affect the consummation of the transactions contemplated in this
Agreement.
(xix) There are no contracts or documents of a character
required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement
that are not described and filed as required.
(xx) The Company and the Subsidiaries each has good and
marketable title to all material properties and assets described in
the Prospectus as owned by it, free and clear of all liens, charges,
encumbrances or restrictions, except such as (A) are described in the
Prospectus or (B) are neither material in amount nor materially
significant in relation to the business of the Company and its
subsidiaries, considered as one enterprise; and any material real
property and buildings under lease by the Company and the Subsidiaries
are held by them under valid, subsisting and enforceable leases with
such exceptions as do not interfere, to an extent material to the
Company and its subsidiaries, considered as one enterprise, with the
use made and proposed to be made of such property and buildings by the
Company and the Subsidiaries.
(xxi) Except as disclosed in the Prospectus, the Company and
the Subsidiaries each owns, possesses or has obtained all material
agreements, governmental licenses, permits, certificates, consents,
orders, approvals and other material authorizations (including,
without limitation, all material governmental authorizations and
agreements
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with public utilities and microwave transmission companies and pole
access and rental agreements) necessary to own or lease, as the case
may be, and to operate its properties and to carry on its business as
presently conducted, and neither the Company nor any Subsidiary has
received any notice of proceedings relating to revocation or
modification of any such licenses, permits, certificates, consents,
orders, approvals or authorizations.
(xxii) To the best knowledge of the Company and except as
disclosed in the Prospectus, no labor problem exists with its
employees or with employees of the Subsidiaries that could reasonably
be expected to materially and adversely affect the financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, considered as one enterprise.
(b) Any certificate signed by any officer of the Company or
any Subsidiary and delivered to you or to counsel for the Underwriters in
connection with the offering of the Offered Securities shall be deemed a
representation and warranty by the Company to each Underwriter as to the
matters covered thereby.
Section 2. Purchase, Sale and Delivery to the Underwriters;
Closing. (a) On the basis of the representations and warranties herein
contained, and subject to the terms and conditions herein set forth, the
Company agrees to sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from the Company, at the purchase
price to the Underwriters set forth in Schedule II, the principal amount of
Offered Securities set forth opposite the name of such Underwriter in
Schedule I, plus any additional principal amount of Offered Securities
which you may become obligated to purchase pursuant to Section 10 hereof.
(b) Payment of the purchase price for the Offered Securities
shall be made by wire transfer of same day federal funds and delivery of
the Offered Securities shall be made at the offices of Shearman & Sterling,
000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place in
The City of New York, at 10:00 A.M. on July 21, 1998 or at such other time
not more than ten full Business Days thereafter as shall be agreed upon by
the Company and you, or as shall otherwise be provided in Section 10 (such
date and time of payment and delivery being herein called the "Closing
Time"). Payment shall be made to the Company in the manner specified in
Schedule II hereto, against delivery of the Offered Securities to you for
the respective accounts of the several Underwriters. Except as otherwise
provided in Schedule II hereto, the Offered Securities shall be in such
denominations ($1,000 or an integral multiple thereof) and registered in
such names as you may request in writing at least two full business days
before the Closing Time.
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Section 3. Certain Covenants of the Company. The Company
covenants with each Underwriter as follows:
(a) Immediately following the execution of this Agreement, the
Company will prepare a Prospectus Supplement that complies with the
1933 Act and the 1933 Act Regulations and that sets forth the
principal amount of the Offered Securities and their material terms,
the name of each Underwriter participating in the offering and the
principal amount of the Offered Securities that each severally has
agreed to purchase, the name of each Underwriter, if any, acting as
representative of the Underwriters in connection with the offering,
the price at which the Offered Securities are to be purchased by the
Underwriters from the Company, any initial public offering price, any
selling concession and reallowance and any delayed delivery
arrangements, and such other information as you and the Company deem
appropriate in connection with the offering of the Offered Securities.
The Company will promptly transmit copies of the Prospectus Supplement
to the Commission for filing pursuant to Rule 424 under the 1933 Act
and will furnish to the Underwriters as many copies of any preliminary
prospectus supplement and the Prospectus as you shall reasonably
request.
(b) During the period when the Prospectus is required by the
1933 Act to be delivered in connection with sales of the Offered
Securities, the Company will, subject to Section 3(c) hereof, file
promptly all documents required to be filed with the Commission
pursuant to Section 13 or 14 of the 1934 Act subsequent to the time
the Registration Statement becomes effective.
(c) During the period when the Prospectus is required by the
1933 Act to be delivered in connection with sales of the Offered
Securities, the Company will inform you of its intention to file any
amendment to the Registration Statement, any supplement to the
Prospectus or any document that would as a result thereof be
incorporated by reference in the Prospectus; will furnish you with
copies of any such amendment, supplement or other document a
reasonable time in advance of filing; and will not file any such
amendment, supplement or other document in a form to which you shall
reasonably object.
(d) During the period when the Prospectus is required by the
1933 Act to be delivered in connection with sales of the Offered
Securities, the Company will notify you immediately, and confirm the
notice in writing (with respect to clause (i), upon request), (i) of
the effectiveness of any amendment to the Registration Statement,
(ii) of the receipt of any comments from the Commission with respect
to the Registration Statement, the Prospectus or the Prospectus
Supplement, (iii) of any request by the Commission to amend the
Registration Statement or any supplement to the Prospectus or for
additional information relating thereto and (iv) of the issuance by
the
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Commission of any stop order suspending the effectiveness of the
Registration Statement, of the suspension of the qualification of the
Offered Securities for offering or sale in any jurisdiction, or of the
institution or to the Company's knowledge, the threatening of any
proceedings for any of such purposes. The Company will use every
reasonable effort to prevent the issuance of any such stop order or of
any order preventing or suspending such use and, if any such order is
issued, to obtain the lifting thereof at the earliest possible moment.
(e) The Company has furnished or will furnish to you for the
managing Underwriters as many copies as you have reasonably requested
of each of the Registration Statement (as originally filed) and of all
amendments thereto, whether filed before or after the Registration
Statement became effective, and as many copies of all exhibits and
documents filed therewith, including documents incorporated by
reference into the Prospectus pursuant to Item 12 of Form S-3 under
the 1933 Act (through the end of the period when the Prospectus is
required by the 1933 Act to be delivered in connection with sales of
the Offered Securities) and copies of all consents and certificates of
experts, as you may reasonably request. The Prospectus and any
amendments or supplements thereto furnished to the Underwriters will
be identical in all material respects to the electronically
transmitted copies thereof filed with the Commission pursuant to
XXXXX, except to the extent permitted by Regulation S-T.
(f) The Company will use its reasonable best efforts, in
cooperation with the Underwriters, to qualify the Offered Securities
for offering and sale under the applicable securities laws of such
states and other jurisdictions as you may designate, and to maintain
such qualifications in effect for a period of not less than one year
from the date hereof; provided, however, that the Company shall not be
obligated to file any general consent to service of process or to
qualify as a foreign corporation or as a dealer in securities in any
jurisdiction in which it is not so qualified or to subject itself to
taxation in respect of doing business in any jurisdiction in which it
is not otherwise so subject. The Company will file such statements
and reports as may be required by the laws of each jurisdiction in
which the Offered Securities have been qualified as above provided.
The Company will also supply you with such information as is necessary
for the determination of the legality of the Offered Securities for
investment under the laws of such jurisdictions as you may reasonably
request.
(g) The Company will make generally available to its security
holders as soon as practicable, but not later than 45 days after the
close of the period covered thereby (90 calendar days in the case the
period corresponds to the fiscal year of the Company), an earnings
statement of the Company (in form complying with the provisions of
Rule 158 of the 1933 Act Regulations) covering a period of 12 months
beginning after the effective date of the Registration Statement and
covering a period of
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12 months beginning after the effective date of any post-effective
amendment to the Registration Statement but not later than the first
day of the Company's fiscal quarter next following such effective
date.
(h) The Company will comply to the best of its ability with the
1933 Act and the 1933 Act Regulations, the 1934 Act and the 1934 Act
Regulations and the 1939 Act and the 1939 Act Regulations. If at any
time when the Prospectus is required by the 1933 Act to be delivered
in connection with sales of the Offered Securities any event shall
occur or condition exist as a result of which it is necessary to amend
the Registration Statement or amend or supplement the Prospectus in
order that the Prospectus will not include an untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements therein not misleading in the light of the
circumstances existing at the time it is delivered to a purchaser, or
if it shall be necessary at any such time to amend the Registration
Statement or amend or supplement the Prospectus in order to comply
with the requirements of the 1933 Act or the 1933 Act Regulations, the
Company will promptly prepare and file with the Commission, subject to
Section 3(c) hereof, such amendment or supplement as may be necessary
to correct such untrue statement or omission or to make the
Registration Statement or the Prospectus comply with such
requirements.
(i) The Company will use the net proceeds received by it
from the sale of the Offered Securities in the manner specified
in the Prospectus under the caption "Use of Proceeds".
(j) For a period of three years after the Closing Time, the
Company will furnish to you copies of all annual reports, quarterly
reports and current reports filed with the Commission on Forms 10-K,
10-Q and 8-K, or such other similar forms as may be designated by the
Commission, and such other documents, reports and information as shall
be furnished by the Company to its securityholders generally.
(k) The Company will not be or become, at any time prior to the
expiration of three years after the Closing Time, an open-end
investment trust, unit investment trust or face-amount certificate
company that is or is required to be registered under Section 8 of the
Investment Company Act of 1940, as amended (the "Investment Company
Act").
Section 4. Payment of Expenses. The Company will pay and bear
all costs and expenses incident to the performance of its obligations under
this Agreement, including (a) the preparation, printing and filing of the
Registration Statement (including financial statements and exhibits), as
originally filed and as amended, any preliminary prospectus supplements and
the Prospectus and any amendments or supplements thereto, and the cost of
furnishing copies
12
thereof to the Underwriters, (b) the preparation, printing and distribution
of this Agreement, the Indenture and Offered Securities, (c) the delivery
of the Offered Securities to the Underwriters, (d) the fees and
disbursements of the Company's counsel and accountants, (e) the
qualification of the Offered Securities under the applicable securities
laws in accordance with Section 3(f) hereof and any filing for review of
the offering with the National Association of Securities Dealers, Inc.,
including filing fees and fees and disbursements of counsel for the
Underwriters in connection therewith, (f) any fees charged by rating
agencies for rating the Offered Securities and (g) the fees and expenses of
the Trustee, including the fees and disbursements of counsel for the
Trustee, in connection with the Indenture and the Offered Securities.
If this Agreement is terminated by you in accordance with the
provisions of Section 5 or 9(a)(i), the Company shall reimburse the
Underwriters for all their reasonable out-of-pocket expenses, including the
reasonable fees and disbursements of counsel for the Underwriters.
Section 5. Conditions of Underwriters' Obligations. Except as
otherwise provided in Schedule II, the obligations of the several
Underwriters to purchase and pay for the Offered Securities that they have
respectively agreed to purchase hereunder are subject to the accuracy of
the representations and warranties of the Company contained herein or in
certificates of any officer of the Company or any Subsidiary delivered
pursuant to the provisions hereof, to the performance by the Company of its
obligations hereunder, and to the following further conditions:
(a) At the Closing Time, no stop order suspending the
effectiveness of the Registration Statement shall have been issued
under the 1933 Act and no proceedings for that purpose shall have been
instituted or shall be pending or, to the knowledge of the Company,
shall be contemplated by the Commission, and any request on the part
of the Commission for additional information shall have been complied
with to the reasonable satisfaction of counsel for the Underwriters.
(b) At the Closing Time, you shall have received a signed
opinion of Xxxxxxxx & Xxxxxxxx, counsel for the Company, dated as of
the Closing Time, in form and substance satisfactory to counsel for
the Underwriters, to the effect that:
(i) The Company has been duly incorporated and is an
existing corporation in good standing under the laws of the State
of Delaware.
(ii) The Indenture has been duly authorized, executed and
delivered by the Company and duly qualified under the 1939 Act;
the Offered Securities have been duly authorized, executed,
authenticated, issued and delivered; and
13
the Indenture and the Offered Securities constitute valid and
legally binding obligations of the Company enforceable in
accordance with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws
of general applicability relating to or affecting creditors'
rights and to general equity principles.
(iii) The execution and delivery by the Company of the
Indenture and this Agreement, the issuance of the Offered
Securities in accordance with the Indenture and the sale of the
Offered Securities by the Company to you pursuant to this
Agreement do not, and the performance by the Company of its
obligations under the Indenture and this Agreement will not,
violate the Company's Certificate of Incorporation or By-Laws.
(iv) All regulatory consents, authorizations, approvals and
filings required to be obtained or made by the Company under the
Federal laws of the United States, the laws of the State of New
York and the General Corporation Law of the State of Delaware for
the issuance, sale and delivery of the Offered Securities by the
Company to the Underwriters have been obtained or made.
(v) This Agreement has been duly authorized, executed and
delivered by the Company.
Such counsel shall also furnish you with a letter to the effect
that as counsel to the Company, they reviewed the Registration
Statement and the Prospectus, participated in discussions with
representatives of the Underwriters and of the Company and its
accountants and advised the Company as to the requirements of the 1933
Act and the applicable rules and regulations thereunder; between the
date of the Prospectus Supplement and the Closing Time, such counsel
participated in further discussions with representatives of the
Underwriters and of the Company and its accountants in which the
contents of certain portions of the Prospectus and related matters
were discussed and reviewed certain documents filed by the Company
with the Commission, certificates of certain officers of the Company,
opinions addressed to the Underwriters from Xxxxxx X. Xxxxx, Esq. and
Xxxxx, Xxxxx, Xxxx, Xxxxxx, Xxxxxxx and Xxxxx, P.C. and a letter from
the Company's independent accountants; on the basis of the information
that such counsel gained in the course of the performance of the
services referred to above, considered in the light of such counsel's
understanding of the applicable law (including the requirements of
Form S-3 and the character of the prospectus contemplated thereby) and
the experience such counsel have gained through their practice under
the 1933 Act, they confirm to you that, in such counsel's opinion,
each part of the Registration Statement, when such part became
effective, and the Prospectus, and each amendment or supplement
thereto, as of their respective effective
14
or issue dates appeared on their face to be appropriately responsive
in all material respects to the requirements of the 1933 Act, the 1939
Act, and the applicable rules and regulations of the Commission
thereunder; further, nothing that came to such counsel's attention in
the course of such review has caused such counsel to believe that any
part of the Registration Statement, when such part became effective,
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 Prospectus as of the
date of the Prospectus Supplement contained any untrue statement of a
material fact or omitted to state any material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading; also, nothing that came to
the attention of such counsel in the course of the procedures
described in the second clause of this paragraph has caused such
counsel to believe that the Prospectus, as supplemented by the
Prospectus Supplement, as of the Closing Time, contained any untrue
statement of a material fact or omitted to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; such counsel
shall state that the limitations inherent in the independent
verification of factual matters and the character of determinations
involved in the registration process are such that such counsel does
not assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration Statement or
the Prospectus except for those made under the captions "Description
of Debt Securities", "Description of Securities" and "Underwriting" in
the Prospectus insofar as they relate to provisions of documents
therein described; also, such counsel need express no opinion or
belief as to the financial statements or other financial data
contained in the Registration Statement or the Prospectus, or as to
the description of statutes, regulations, proceedings or other matters
referred to in Section 5(d) hereof or as to the statement of
eligibility of the Trustee under the Indenture under which the Offered
Securities are being issued. Finally, such counsel shall assume that
any Rule 462(b) Registration Statement was filed with the Commission
prior to the time that any confirmations of the sale of any of the
Offered Securities were sent or given to investors.
In rendering such opinion, such counsel may state that they
express no opinion as to the laws of any jurisdiction other than the
Federal laws of the United States, the laws of the State of New York
and the General Corporation Law of the State of Delaware, and no
opinion as to any federal or state laws relating to communications and
telecommunications, including laws which regulate individuals,
companies or businesses because such entities provide communications
or telecommunications services, including the provision of cable
television services or telephone services. Such counsel may also
state that, insofar as such opinion involves factual matters, they
have relied, to the extent they deem proper, upon certificates of
officers of the Company and the Subsidiaries and certificates of
public officials.
15
(c) At the Closing Time you shall have received a signed opinion
of Xxxxxx X. Xxxxx, Esq., Executive Vice President, Secretary and
General Counsel for the Company, in form and substance satisfactory to
counsel to the Underwriters, to the effect that:
(i) The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Delaware with corporate power and authority under such laws to
own, lease and operate its properties and conduct its business as
described in the Prospectus.
(ii) The Company is duly qualified to transact business as
a foreign corporation and is in good standing in each other
jurisdiction in which it owns or leases property of a nature, or
transacts business of a type, that would make such qualification
necessary, except where the failure to be so qualified would not
have a material adverse effect on the Company and its
subsidiaries, considered as one enterprise.
(iii) Each Material Subsidiary that is a corporation is
duly incorporated, validly existing and in good standing under
the laws of the jurisdiction of its incorporation, with corporate
power and authority under such laws to own, lease and operate its
properties and conduct its business. Each Material Subsidiary
that is a partnership is duly organized under the laws of the
jurisdiction of its organization.
(iv) All of the outstanding shares of capital stock of each
Material Subsidiary have been duly authorized and validly issued
and are fully paid and nonassessable; except as set forth on
Schedules III and IV to this Agreement or as disclosed in or as
contemplated by the Prospectus, all of such shares are owned by
the Company, directly or through one or more subsidiaries, free
and clear of any material pledge, lien, security interest,
charge, claim, equity or encumbrance of any kind; no holder
thereof is subject to personal liability under the certificate of
incorporation or by-laws of the respective Material Subsidiary or
the corporation law of the jurisdiction in which such Material
Subsidiary is organized by reason of being such a holder and none
of such shares was issued in violation of the preemptive rights
of any stockholder of such Material Subsidiary under the
certificate of incorporation or by-laws of such Material
Subsidiary or the corporation law of the jurisdiction in which
such Material Subsidiary is organized.
(v) To such counsel's knowledge, there are no legal or
governmental proceedings pending or threatened to which the
Company or any of its
16
subsidiaries is or may be a party, or of which any of their
properties are or may be the subject, of a character which are
required to be disclosed in the Registration Statement, the
Prospectus, the 1997 Form 10-K or any Form 10-Q of the Company,
other than those disclosed therein.
(vi) The documents incorporated by reference in the
Prospectus or any further amendment or supplement thereto made by
the Company prior to the Closing Time (other than the financial
statements and related schedules therein and any untrue statement
or omission of a material fact contained therein which was
corrected in the Prospectus, as to which such counsel need
express no opinion), when they became effective or were filed
with the Commission, as the case may be, complied as to form in
all material respects with the requirements of the Exchange Act
and the rules and regulations of the Commission thereunder; and
he has no reason to believe that such documents, read together,
as of the date of the Prospectus Supplement or as of the Closing
Time, contained or contain an untrue statement of a material fact
or omitted or omits 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.
(vii) Such counsel does not know of any contracts or
documents of a character required to be described or referred to
in the Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement that are not described,
referred to or filed as required.
(viii) To the knowledge of such counsel, no default
exists in the performance or observance of any material
obligation, agreement, covenant or condition contained in any
contract, indenture, loan agreement, note, lease or other
agreement or instrument that is described or referred to in the
Registration Statement or the Prospectus or filed as an exhibit
to the Registration Statement or any subsequent Form 10-Q of the
Company, which default would have a material adverse effect on
the financial position, stockholders' equity or results of
operations of the Company and its subsidiaries, considered as one
enterprise.
(ix) The execution and delivery of this Agreement and the
Indenture by the Company, the issuance and delivery of the
Offered Securities, the consummation by the Company of the
transactions contemplated in this Agreement and compliance by the
Company with the terms of this Agreement and the Indenture will
not conflict with the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument (including any
franchise agreement, license, permit or other governmental
authorization granted by the FCC, The State of New York
17
Commission on Cable Television, or any other Federal or New York
State governing body having jurisdiction over cable television
operations) known to such counsel to which the Company or any
Subsidiary is a party or by which the Company or any Subsidiary
is bound or to which any of the property or assets of the Company
or any Subsidiary is subject, which conflict, breach, violation
or default would have a material adverse effect on the financial
position, stockholders' equity or results of operations of the
Company and its subsidiaries, taken as a whole, nor will such
action result in any violation of the provisions of the
Certificate of Incorporation or By-laws of the Company or any
Federal, New York or Delaware General Corporation Law statute or
any order, rule or regulation known to such counsel of any
Federal, New York or Delaware court or governmental agency or
body having jurisdiction over the Company or any Subsidiary or
any of their properties, which violation in each case would have
a material adverse effect on the financial position,
stockholders' equity or results of operations of the Company and
its subsidiaries, taken as a whole; and no consent, approval,
authorization, order, registration or qualification of or with
any such court or governmental agency or body is required for the
issue and sale of the Offered Securities or the consummation by
the Company of the transactions contemplated by this Agreement,
except with respect to such consents, approvals, authorizations,
registrations or qualifications as may be required under state or
foreign securities laws in connection with the purchase and
distribution of the Offered Securities by the Underwriters.
In rendering such opinion, such counsel may state that he
expresses no opinion as to the laws of any jurisdiction other than the
Federal laws of the United States (other than federal communications
laws, as to which such counsel need express no opinion), the laws of
the State of New York and the General Corporation Law of the State of
Delaware. In giving such opinion, such counsel may rely, as to all
matters governed by the laws of any other jurisdiction, upon opinions
of other counsel, who shall be counsel satisfactory to counsel for the
Underwriters, in which case the opinion shall state that he believes
you and he are entitled to so rely. Such counsel may also state that,
insofar as such opinion involves factual matters, he has relied, to
the extent he deems proper, upon certificates of officers of the
Company and the Subsidiaries and certificates of public officials.
(d) At the Closing Time you shall have received a signed opinion
of Xxxxx, Xxxxx, Xxxx, Xxxxxx, Xxxxxxx and Xxxxx, P.C., as special
communications counsel to the Company, in form and substance
satisfactory to counsel to the Underwriters, to the effect that:
18
(i) The approvals, if any, required to be obtained from the
FCC to consummate the transactions contemplated by this Agreement
have been obtained and are in full force and effect.
(ii) Such counsel does not know of any federal
communications and copyright statutes that are principally
directed to the regulation of cable properties applicable to the
Company that are not described in the Prospectus but would be
material and relevant to the business of the Company, and the
descriptions in the Prospectus of such statutes therein described
are accurate and fairly summarize such statutes.
(iii) The information in the Prospectus Supplement under
the captions "Risk Factors -- Risks Related to Regulation", "Risk
Factors -- Risk of Competition" and "Risk Factors -- Competition
from Telephone Companies" and in the 1997 Form 10-K under the
captions "Business -- Competition -- Cable Television" and
"Business -- Regulation -- Cable Television", to the extent that
such sections describe statutes, regulations and governmental
proceedings or matters involving federal communications and
copyright law and policy and the impact thereof on the business
in which the Company and its subsidiaries are engaged, has been
reviewed by them and fairly represents the federal communications
and copyright law described therein applicable to the Company and
its subsidiaries as disclosed in the Prospectus and material and
relevant to the business of the Company and its subsidiaries.
In giving such opinion, such counsel may rely, as to all matters
governed by the laws of jurisdictions other than the law of the
District of Columbia, the federal law of the United States and the
corporate law of the State of Delaware, upon opinions of other
counsel, who shall be counsel satisfactory to counsel for the
Underwriters, in which case the opinion shall state that they believe
you and they are entitled to so rely. Such counsel may also state
that, insofar as such opinion involves factual matters, they have
relied, to the extent they deem proper, upon certificates of officers
of the Company and the Subsidiaries and certificates of public
officials. Such counsel may strictly confine such opinion to matters
involving the Federal Communications Act of 1934, as amended (the
"Communications Act"), the rules and regulations of the FCC, and those
provisions of the federal copyright law that are principally directed
to the regulation of cable properties. Such counsel may also limit
such opinion to the state of the law as it exists under the
Communications Act, the rules and regulations of the FCC, and federal
copyright law as of the date thereof.
(e) At the Closing Time, you shall have received the favorable
opinion of Xxxxxxxx & Xxxxxxxx, counsel for the Underwriters, dated as
of the Closing Time, to
19
the effect that the opinions delivered pursuant to Sections 5(b), 5(c)
and 5(d) appear on their face to be appropriately responsive to the
requirements of this Agreement except, specifying the same, to the
extent waived by you, and with respect to the incorporation and legal
existence of the Company, the Offered Securities, this Agreement, the
Indenture, the Registration Statement, the Prospectus, the documents
incorporated by reference therein and such other related matters as
you may require. In rendering such opinion, such counsel may state
that they express no opinion as to the laws of any jurisdiction other
than the Federal laws of the United States, the laws of the State of
New York and the General Corporation Law of the State of Delaware, and
no opinion as to any federal or state laws relating to communications
and telecommunications, including laws which regulate individuals,
companies or businesses because such entities provide communications
or telecommunications services, including the provision of cable
television services or telephone services. Such counsel may also
state that, insofar as such opinion involves factual matters, they
have relied, to the extent they deem proper, upon certificates of
officers of the Company and the Subsidiaries and certificates of
public officials.
(f) At the Closing Time, (i) the Registration Statement and the
Prospectus as they may then be amended or supplemented, shall contain
all statements that are required to be stated therein under the 1933
Act and the 1933 Act Regulations and in all material respects shall
conform to the requirements of the 1933 Act and the 1933 Act
Regulations and the 1939 Act and the 1939 Act Regulations, and neither
the Registration Statement nor the Prospectus, as they may then be
amended or supplemented, shall contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading,
(ii) there shall not have been, since the respective dates as of which
information is given in the Registration Statement, any material
adverse change or any development involving a prospective material
adverse change in or affecting the financial position, stockholders'
deficiency or results of operations of the Company and its
subsidiaries, considered as one enterprise, (iii) the Company shall
have complied with all agreements and satisfied all conditions on its
part to be performed or satisfied at or prior to the Closing Time and
(iv) the other representations and warranties of the Company set forth
in Section 1(a) shall be accurate as though expressly made at and as
of the Closing Time. At the Closing Time, you shall have received a
certificate of the President, a Vice Chairman or a Vice President, and
the Treasurer or Controller, of the Company, dated as of the Closing
Time, to such effect.
(g) You shall have received the letter specified in Sections 1
and 2 of Exhibit A at the date hereof and the letter specified in
Section 3 of Exhibit A at the Closing Time.
20
(h) Unless otherwise specified in Schedule II hereto, on or
after the date hereof (i) no downgrading shall have occurred in the
rating accorded the Company's debt securities by any "nationally
recognized statistical rating organization," as that term is defined
by the Commission for purposes of Rule 436(g)(2) under the 1933 Act
and (ii) no such organization shall have publicly announced that it
has under surveillance or review, with possible negative implications,
its rating of any of the Company's debt securities.
(i) At the Closing Time, counsel for the Underwriters shall have
been furnished with all such documents, certificates and opinions as
they may reasonably request for the purpose of enabling them to pass
upon the issuance and sale of the Offered Securities as herein
contemplated and the matters referred to in Section 5(e) and in order
to evidence the accuracy and completeness of any of the
representations, warranties or statements of the Company, the
performance of any of the covenants of the Company, or the fulfillment
of any of the conditions herein contained.
If any of the conditions specified in this Section 5 shall not
have been fulfilled when and as required by this Agreement to be
fulfilled, this Agreement may be terminated by you on notice to the
Company at any time at or prior to the Closing Time, and such
termination shall be without liability of any party to any other
party, except as provided in Section 4. Notwithstanding any such
termination, the provisions of Sections 6, 7 and 8 shall remain in
effect.
Section 6. Indemnification. (a) The Company agrees to
indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of Section 15 of the 1933 Act
as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of an untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), including all
documents incorporated therein by reference, or the omission or
alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading or
arising out of an untrue statement or alleged untrue statement of a
material fact included in any preliminary prospectus supplement or the
Prospectus (or any amendment or supplement thereto) or the omission or
alleged omission therefrom of a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or investigation or proceeding
by any governmental agency or body,
21
commenced or threatened, or of any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue
statement or omission, if such settlement is effected with the written
consent of the Company; and
(iii) against any and all expense whatsoever, as incurred
(including fees and disbursements of counsel chosen by you),
reasonably incurred in investigating, preparing or defending against
any litigation, or investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based
upon any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid
under subparagraph (i) or (ii) above;
provided, however, that this indemnity agreement does not apply to any
loss, liability, claim, damage or expense to the extent arising out of an
untrue statement or omission or alleged untrue statement or omission made
in reliance upon and in conformity with written information furnished to
the Company by any Underwriter through you expressly for use in the
Registration Statement (or any amendment thereto) or any preliminary
prospectus supplement or the Prospectus (or any amendment or supplement
thereto).
The foregoing indemnity with respect to any untrue statement contained
in or any omission from a preliminary prospectus supplement, shall not
inure to the benefit of any Underwriter (or any person controlling such
Underwriter) on account of any loss, claim, damage, liability or litigation
arising from the sale of Offered Securities to any person by such
Underwriter if such Underwriter failed to send or give a copy of the
Prospectus, as the same may be supplemented or amended, to such person
within the time required by the 1933 Act, and the untrue statement or
alleged untrue statement or omission or alleged omission of a material fact
in such preliminary prospectus supplement was corrected in the Prospectus,
unless such failure resulted from noncompliance by the Company with its
obligations hereunder to furnish the Underwriters with copies of the
Prospectus.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, its directors, each of its officers who signed the
Registration Statement and each person, if any, who controls the Company
within the meaning of Section 15 of the 1933 Act, against any and all loss,
liability, claim, damage and expense described in the indemnity agreement
in Section 6(a), as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto) or any preliminary
prospectus supplement or the Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with written information
furnished to the Company by such Underwriter through you expressly for use
in the Registration Statement (or any amendment or supplement thereto) or
such preliminary prospectus supplement or the Prospectus (or any amendment
or supplement thereto).
22
(c) Each indemnified party shall give prompt notice to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve it from any liability which it may have otherwise
than on account of this indemnity agreement. An indemnifying party may
participate at its own expense in the defense of such action; provided,
however, that counsel to the indemnifying party shall not (except with the
consent of the indemnified party) also be counsel to the indemnified party.
In no event shall the indemnifying party or parties be liable for the fees
and expenses of more than one counsel for all indemnified parties in
connection with any one action or separate but similar or related actions
in the same jurisdiction arising out of the same general allegations or
circumstances.
Section 7. Contribution. In order to provide for just and
equitable contribution in circumstances under which the indemnity provided
for in Section 6 is for any reason held to be unenforceable by the
indemnified parties although applicable in accordance with its terms, the
Company and the Underwriters shall contribute to the aggregate losses,
liabilities, claims, damages and expenses of the nature contemplated by
such indemnity incurred by the Company and one or more of the Underwriters,
as incurred, in such proportions that the Underwriters are responsible for
that portion represented by the percentage that the underwriting discount
hereunder with respect to the offering of the Offered Securities bears to
the initial public offering price of the Offered Securities, and the
Company is responsible for the balance; provided, however, that no person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f)
of the 1933 Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. For purposes of this
Section, each person, if any, who controls an Underwriter within the
meaning of Section 15 of the 1933 Act shall have the same rights to
contribution as such Underwriter, and each director of the Company, each
officer of the Company who signed the Registration Statement, and each
person, if any, who controls the Company within the meaning of Section 15
of the 1933 Act shall have the same rights to contribution as the Company.
The Underwriters' respective obligations to contribute pursuant
to this Section 7 are several in proportion to the principal amount of
Debentures set forth opposite their respective names in Schedule I attached
hereto and not joint.
Section 8. Agreements to Survive Delivery. The indemnities,
agreements and other statements of the Company or its officers set forth in
or made pursuant to this Agreement will remain operative and in full force
and effect regardless of any investigation made by or on behalf of the
Company, any Underwriter or person who controls the Company or any
Underwriter within the meaning of Section 15 of the 1933 Act and will
survive delivery of and payment for the Offered Securities.
23
Section 9. Termination of Agreement. (a) You may terminate
this Agreement, by notice to the Company, at any time at or prior to the
Closing Time (i) if there has been, since the respective dates as of which
information is given in the Registration Statement, any material adverse
change or any development involving a prospective material adverse change
in or affecting the financial position, stockholders' equity or results of
operations of the Company and its subsidiaries, considered as one
enterprise, or (ii) if there has occurred any outbreak or escalation of
hostilities or other calamity or crisis the effect of which on the
financial markets of the United States is such as to make it, in your
judgment, impracticable to market the Offered Securities or enforce
contracts for the sale of Offered Securities or (iii) if trading in any
securities of the Company has been suspended by the Commission, the
National Association of Securities Dealers, Inc. or the American Stock
Exchange, or if trading generally on either the American Stock Exchange or
the New York Stock Exchange or in the over-the-counter market has been
suspended, or minimum or maximum prices for trading have been fixed, or
maximum ranges for prices for securities have been required, by such
exchange or by order of the Commission, the National Association of
Securities Dealers, Inc. or any other governmental authority or (iv) if a
banking moratorium has been declared by either federal or New York
authorities.
(b) If this Agreement is terminated pursuant to this Section,
such termination shall be without liability of any party to any other
party, except to the extent provided in Section 4. Notwithstanding any
such termination, the provisions of Sections 6, 7 and 8 shall remain in
effect.
Section 10. Default by One or More of the Underwriters. If one
or more of the Underwriters shall fail at the Closing Time to purchase the
Offered Securities that it or they are obligated to purchase pursuant to
this Agreement (the "Defaulted Offered Securities"), you shall have the
right, within 24 hours thereafter, to make arrangements for one or more of
the non-defaulting Underwriters, or any other Underwriters, to purchase
all, but not less than all, of the Defaulted Offered Securities in such
amounts as may be agreed upon and upon the terms set forth in this
Agreement; if, however, you have not completed such arrangements within
such 24-hour period, then:
(a) if the aggregate principal amount of Defaulted Offered
Securities does not exceed 10% of the aggregate principal amount of
the Offered Securities to be purchased pursuant to this Agreement, the
non-defaulting Underwriters shall be obligated to purchase the full
amount thereof in the proportions that the principal amounts of
Offered Securities set forth opposite the names of such non-defaulting
Underwriters in Schedule I bear to the total aggregate principal
amount of Offered Securities set forth opposite the names of such
non-defaulting Underwriters, or
24
(b) if the aggregate principal amount of Defaulted Offered
Securities exceeds 10% of the aggregate principal amount of the
Offered Securities to be purchased pursuant to this Agreement, this
Agreement shall terminate without liability on the part of any
non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default that does not result in a
termination of this Agreement, either you or the Company shall have the
right to postpone the Closing Time for a period not exceeding seven days in
order to effect any required changes in the Registration Statement or
Prospectus or in any other documents or arrangements. As used herein, the
term "Underwriter" includes any person substituted for an Underwriter under
this Section 10.
Section 11. Notices. All notices and other communications under
this Agreement shall be in writing and shall be deemed to have been duly
given if delivered, mailed or transmitted by any standard form of
telecommunication. Notices to you shall be directed to Bear, Xxxxxxx & Co.
Inc., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, attention of Xxxxx X.
Xxxxxxx, Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, World
Financial Center, North Tower - 30th Floor, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, attention of Xxxxxx X. Xxxxxxxx, Xxxxxx Xxxxxxx & Co.
Incorporated, 1585 Broadway, New York, New York 10036, attention of
Xxxxxxxx Xxxxxx, Xxxxxxx Xxxxxxxx Inc, 0 Xxxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, attention of Xxxxx Xxxxxx and Xxxxxxx, Xxxxx & Co., 00 Xxx Xxxx
- 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, attention of Xxxxxx X. Xxxxxx; and
notices to the Company shall be directed to it at CSC Holdings, Inc., One
Media Crossways, Woodbury, New York 11797, attention of Xxxxxx X. Xxxxx,
Esq., Executive Vice President, General Counsel and Secretary, with a copy
to Xxxxxxxx & Xxxxxxxx, at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
attention of Xxxx X. Xxxx, Esq.
Section 12. Parties. The agreement herein set forth is made
solely for the benefit of the several Underwriters, the Company and, to the
extent expressed, any person who controls the Company or any of the
Underwriters within the meaning of Section 15 of the 1933 Act, and the
directors of the Company, its officers who have signed the Registration
Statement and their respective executors, administrators, successors and
assigns and, subject to the provisions of Section 10, no other person shall
acquire or have any right under or by virtue of this Agreement. The term
"successors and assigns" shall not include any purchaser, as such
purchaser, from any Underwriter of the Offered Securities. If there are
two or more Underwriters, all of their obligations hereunder are several
and not joint.
Section 13. Governing Law and Time. This Agreement shall be
governed by the laws of the State of New York. Specified times of the day
refer to New York City time.
25
Section 14. Captions. The captions included in this Agreement
are included solely for convenience of reference and are not considered to
be part of this Agreement.
Section 15. Counterparts. This Agreement may be executed in one
or more counterparts and when a counterpart has been executed by each
party, all such counterparts taken together shall constitute one and the
same agreement.
26
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon
this instrument will become a binding agreement between the Company and
each Underwriter in accordance with its terms.
Very truly yours,
CSC HOLDINGS, INC.
By________________________________
Name:
Title:
Confirmed and accepted as of
the date first above written:
BEAR, XXXXXXX & CO. INC.
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated
XXXXXXX, XXXXX & CO.
XXXXXXX XXXXXXXX INC
XXXXXX XXXXXXX & CO. INCORPORATED
c/x Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
By: Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx Incorporated
By_______________________________________
Name:
Title:
SCHEDULE I
7 1/4% Senior Notes
due 2008
7 5/8% Senior Debentures
due 2018
Underwriter Principal Xxxxxx
7 1/4% Senior 7 5/8% Senior
Notes Debentures
due 2008 due 2018
Bear, Xxxxxxx & Co. Inc. $150,000,000 $150,000,000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated 150,000,000 150,000,000
Xxxxxxx, Xxxxx & Co. 75,000,000 75,000,000
Salomon Brothers Inc. 75,000,000 75,000,000
Xxxxxx Xxxxxxx & Co. Incorporated 50,000,000 50,000,000
Total $500,000,000 $500,000,000
------------ ------------
------------ ------------
SCHEDULE II
CSC HOLDINGS, INC.
7 1/4% Senior Notes
due 2008
7 5/8% Senior Debentures
due 2018
Principal amount to be issued: Notes: $500,000,000
Debentures: $500,000,000
Interest rate: Notes: 7 1/4%
Debentures: 7 5/8%
Interest accrues from: Notes: July 21, 1998.
Debentures: July 21, 1998.
Date of maturity: Notes: July 15, 2008.
Debentures: July 15, 2018.
Redemption Provisions: Notes: None
Debentures: None
Sinking fund requirements: Notes: None
Debentures: None
Initial public offering price: Notes: 100% of the principal amount of the
Notes plus accrued interest from
July 21, 1998.
Debentures: 99.901% of the principal amount
of the Debentures plus accrued
interest from July 21, 1998.
Purchase price: 98.625% of the principal amount of the Notes plus accrued
interest from July 21, 1998; 98.401% of the principal amount of the
Debentures plus accrued interest from July 21, 1998.
Method of Payment: Payment shall be made to the Company in same day
federal funds by wire transfer.
Closing date, time and location: 10:00 A.M., July 21, 1998 at the offices
of Shearman & Sterling, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
Listing requirement: None.
SCHEDULE III
RESTRICTED SUBSIDIARIES
(* - material subsidiary)
3300 Lakeside Corporation
A-R Cable Investments, Inc.
A-R Cable Partners
A-R Cable Services - NY, Inc.
Arsenal MSub 2, Inc.
Arsenal MSub 7, Inc.
Cable Science Corporation
Cablevision Area 9 Corporation
Cablevision Fairfield Corporation
Cablevision Finance Corporation
Cablevision Finance Limited Partnership
Cablevision Lightpath, Inc.
Cablevision MFR, Inc. 1
Cablevision of Boston, Inc.
Cablevision of Brookline, Inc.
Cablevision of Brookline, L.P.
Cablevision of Cleveland G.P., Inc.
Cablevision of Cleveland L.P., Inc.
Cablevision of Cleveland, L.P.
Cablevision of Connecticut Corporation
Cablevision of Connecticut Limited Partnership
Cablevision of Framingham Holdings, Inc.
Cablevision of Framingham, Inc.
Cablevision of Geauga County
Cablevision of Xxxxxx County, Inc. 1
Cablevision of Michigan, Inc.
Cablevision of Monmouth, Inc. 1
Cablevision of Nashoba Holdings, Inc.
Cablevision of Nashoba, Inc.
Cablevision of New Jersey, Inc. 1
Cablevision of New York City - Master L.P.
Cablevision of New York City -Phase I L.P.
Cablevision of Newark1
Cablevision of Ohio, Ltd.
Cablevision of the Midwest Holding Co., Inc.
Cablevision of the Midwest, Inc.
Cablevision Systems Brookline Corporation
Cablevision Systems Dutchess Corporation
Cablevision Systems East Hampton Corporation
Cablevision Systems Great Neck Corporation
Cablevision Systems Huntington Corporation
Cablevision Systems Islip Corporation
Cablevision Systems Long Island Corporation
Cablevision Systems New York City Corporation
Cablevision Systems of Southern Connecticut Limited Partnership
Cablevision Systems Ohio Investment Corporation
Cablevision Systems Suffolk Corporation
Cablevision Systems Westchester Corporation
Communications Development Corporation
Complexicable of Cuyahoga Valley, Ltd.
CSC Acquisition - MA, Inc.
CSC Acquisition - NY, Inc.
CSC Acquisition Corporation
CSC Gateway Corporation1
Framingham Holdings, Inc.
NYC GP Corp.
NYC LP Corp. (f/k/a Zeuxis Corp.)
Ohio Cablevision Investors, Ltd.
Petra Cablevision Corporation
Samson Cablevision Corp.
Shamrock Cable Corporation
Shamrock Cleveland Cablevision, L.P.
Shamrock Cuyahoga County Cablevision Associates, L.P.
Shamrock Ohio Cablevision Associates, L.P.
Space Cable of Ohio, Ltd.
Space Cable of Strongsville, Ltd.
Suffolk Cable Corporation
Suffolk Cable of Shelter Island, Inc.
Suffolk Cable of Smithtown, Inc.
Telerama, Inc.
V Cable, Inc.
VC Holding, Inc.
WP Nashoba Cable, Inc.
----------------------------
1 All shares pledged under the Pledge Agreement, dated as of September
5, 1996, between Cablevision MFR, Inc. and Toronto-Dominion (Texas),
Inc. as Secured Agent.
III-2
SCHEDULE IV
UNRESTRICTED SUBSIDIARIES
(* - material subsidiary)
A-R Cable Services - ME, Inc. (f/k/a Xxxxx-Xxxxxxx Cable Services -
Maine, Inc.)
A-R Cable Services, Inc. (f/k/a Xxxxx-Xxxxxxx Co., Inc.)
Bootheel Video, Inc.
Paragould Cablevision, Inc.
AMC II Holding Corporation 1
AMC Productions, Inc. 2
American Movie Classics Company
American Movie Classics Holding Corporation 1
American Sports Classics, L.L.C. 1
Bravo Company1
Bravo Holding Corporation 1
Bravo Programming, Inc. 1
Cable Networks, Inc. 1
Cablevision Programming Incorporated
Cleveland Radio Holding, Inc.
CV Radio Associates, L.P.
Extra Help Holding Corporation1
Extra Help L.L.C. 1
Florida Holdings I, L.L.C.
Florida Holdings II, L.L.C.
Foxwatch Productions, Inc.
Garden Programming, L.L.C.
IFC Productions I L.L.C. 1
Independent Film Channel, division of Bravo Company
Madison Square Garden, L.P. 4
Metro Channel Holding Corporation
Metro Channel Holdings I, LLC
Metro Channel Holdings II, LLC
Metro Channel, L.L.C.
MSG Aircraft Leasing, LLC
MSG Flight Operations, LLC
MSG Eden Corp.
Muchmusic U.S.A. Venture
National Advertising Partners
National PSNA Holdings I LLC
National PSNA Holdings II LLC
National Sports Partners
Neighborhood News Holdings, Inc. 1
News 12 Holding Corporation1
News 12 New Jersey L.L.C.
News 12 The Bronx, L.L.C. 1
News 12 The Bronx Holding Corporation1
Next Wave Films, L.L.C. 1
New York CityHawks, L.L.C. 4
New York Rangers Enterprises Company4
Northern Ohio Interconnect
Prime SportsChannel Networks Associates
PS Holding Acquisition Corporation
R/L DBS Company, L.L.C.
Radio City Productions, L.L.C.
Radio City Trademarks, L.L.C.
Rainbow Advertising Holdings, L.L.C. 1
Rainbow Advertising Sales Corporation1
Rainbow CT Holdings, Inc. 1
Rainbow DBS Holdings, Inc.
Rainbow Garden Corp.
Rainbow Media Holdings, Inc. 3
Rainbow Media Sports Holdings, Inc.
Rainbow MM Holdings Corporation
Rainbow National Sports Holdings, L.L.C.
Rainbow Network Communications1
Rainbow News 12 Company1
Rainbow NJ Holdings, Inc. 1
Rainbow Program Enterprises, L.P. 1
Rainbow Regional Holdings, L.L.C.
Rainbow Travel, Inc. 1
Rainbow Westchester Holdings, Inc. 1
Regional Chicago Holdings, L.L.C.
Regional Cincinnati Holdings I LLC
Regional Cincinnati Holdings II LLC
Regional Detroit Holdings, LLC
Regional MSG Holdings LLC
Regional NE Holdings I LLC
Regional NE Holdings II, L.L.C.
Regional Ohio Holdings I LLC
Regional Ohio Holdings II LLC
Regional Pacific Holdings LLC
Regional Programming Partners
RNC Holding Corporation 1
Romance Classics, division of American Movie Classics Company
SC America Holding Corporation
SC Florida Holding Company, L.L.C.
SC Florida Holding Corporation
SC Los Angeles Holding Corporation1
Soccer/USA Partners, X.X.
XX-2
SportsChannel America Associates1
SportsChannel America Soccer, Inc. 1
SportsChannel Associates 4
SportsChannel Chicago Associates
SportsChannel Cincinnati Associates
SportsChannel Florida Associates
SportsChannel Florida Holding Company L.L.C.
SportsChannel Los Angeles Associates1
SportsChannel Los Angeles Holding Corporation1
SportsChannel New England Limited Partnership1
SportsChannel Ohio Associates
SportsChannel Pacific Associates
SportsChannel Prism/Chicago Holding Partnership
SportsChannel Ventures, Inc.
The 31st Street Company, L.L.C. 4
The Story Channel L.L.C. 1
The Story Channel, Inc. 1
WKNR, Inc.
World Cinema, division of Bravo Company
1070 Jericho Turnpike Corp.
000 Xxx Xxxxx Xxxx Corporation
1111 Xxxxxxx Corporation
1144 Route 109 Corp.
Cablevision of Massachusetts, Inc.
Cablevision Electronics Investments, Inc.
Cablevision Lightpath - CT, Inc.
Cablevision Lightpath - MA, Inc.
Cablevision Lightpath - MI, Inc.
Cablevision Lightpath - NJ, Inc.
Cablevision Lightpath - NY, Inc.
Cablevision Lightpath - OH, Inc.
Cablevision PCS Investments, Inc.
Cablevision PCS Management, Inc.
Cablevision Real Estate Corporation
CSC At Home Holding Corporation
CSC Equipment, Inc.
CSC Investments Inc.
CSC Nassau, Inc.
CSC Technology, Inc. (f/k/a CSC Realty Inc.)
CSC Transport II, Inc.
CSC Transport, Inc.
ECC Holding Corporation
Missouri Cable Partners, L.P.
NCC LP Corp.
IV-3
Northcoast Communications, L.L.C.
U.S. Cable Television Group, L.P.
V Cable G.P., Inc.
V-C Mo. G.P., Inc.
----------------------------
1 All of the capital stock or partnership interests (as the case may be)
are pledged to Toronto-Dominion under the terms of a Borrower Pledge
Agreement, dated as of April 2, 1997, among Rainbow Media Holdings,
Inc., (RMHI) and Toronto-Dominion (Texas), Inc. as administrative
agent for the Banks.
2 All of the shares of AMC Production, Inc. are pledged to
Toronto-Dominion under the terms of a Stock Pledge Agreement, dated as
of April 2, 1997, between American Movie Classics Holding Company and
Toronto-Dominion (Texas), Inc., as agent for the Banks.
3 All of the shares of Class A and Class B Common Stock of Rainbow Media
Holdings, Inc. are pledged to Toronto-Dominion (Texas), Inc. under the
terms of the Stock Pledge Agreement, dated as of April 2, 1997,
between Cablevision Systems Corporation and Toronto-Dominion (Texas),
Inc., as administrative agent and the Banks.
4 All of the capital stock, partnership interests or limited liability
company interests are pledged under the Credit Party Pledge Agreement,
dated as of June 6, 1997, to the Madison Square Garden, L.P. Credit
Agreement.
IV-4
EXHIBIT A
July 16, 1998
MATTERS TO BE COVERED BY LETTER OR LETTERS OF INDEPENDENT
PUBLIC ACCOUNTANTS
KPMG Peat Marwick LLP shall have furnished to you the following
letter or letters (in each case in form and substance satisfactory to you):
(1) At the date hereof, a letter to the effect that:
(a) they are independent accountants with respect to the
Company and its subsidiaries within the meaning of the 1933 Act
and the applicable published 1933 Act Regulations;
(b) in their opinion, except as disclosed in the
Registration Statement, the audited consolidated financial
statements and the related financial statement schedules of the
Company and its subsidiaries included or incorporated by
reference in such annual report on Form 10-K comply as to form in
all material respects with the applicable accounting requirements
of the 1933 Act as it applies to registration statements on
Form S-3 and the related published 1933 Act Regulations and of
the 1934 Act as it applies to Form 10-K and the related published
1934 Act Regulations; and
(c) in addition to their examinations, inspections,
inquiries and other procedures referred to therein, they have
performed such other procedures, specified by you, not
constituting an audit, as they have agreed to perform and report
on with respect to certain amounts, percentages, numerical data
and other financial information in the Form 10-K and have
compared certain of such amounts, percentages, numerical data and
financial information with, and have found such items to be in
agreement with or derived from, the detailed accounting records
of the Company and its subsidiaries.
(2) At the date hereof, a letter with respect to each of the
Company's quarterly reports on Form 10-Q (each a "10-Q Letter") filed
prior to the date hereof and subsequent to the Company's most recently
filed annual report on Form 10-K, to the effect that:
(a) they reaffirm as of the date of such letter (and as
though made on the date of such letter) all statements made in
the 10-K Letter, except that the procedures specified therein
shall have been carried out to a specified date not more than
five days prior to the date of such 10-Q Letter;
(b) on the basis of procedures (but not an examination in
accordance with generally accepted auditing standards) consisting
of:
(i) a reading of minutes of all meetings of the
stockholders and directors of the Company and its
subsidiaries and the Pricing Committee of the Company's
Board of Directors and any subsidiary committees from the
date of the latest audited consolidated financial statements
to the specified date referred to in Section 2(a);
(ii) a reading of the unaudited condensed consolidated
financial statements of the Company and its subsidiaries
included or incorporated by reference in the quarterly
report on Form 10-Q dated the date of such 10-Q Letter;
(iii) inquiries of certain officials of the Company
and its subsidiaries; and
nothing came to their attention that caused them to believe that
the unaudited condensed consolidated financial statements
included or incorporated by reference in such quarterly report on
Form 10-Q do not comply as to form in all material respects with
the applicable accounting requirements of the 1934 Act as it
applies to Form 10-Q and the related published 1934 Act
Regulations or that any material modifications should be made to
the unaudited condensed consolidated financial statements
included or incorporated by reference in such quarterly report
for them to be in conformity with generally accepted accounting
principles, except as disclosed in the notes to such unaudited
condensed consolidated financial statements or as otherwise
described in such 10-Q Letter;
(c) in addition to their examinations, inspections,
inquiries and other procedures referred to therein, they have
performed such other procedures, specified by you, not
constituting an audit, as they have agreed to perform and report
on with respect to certain amounts, percentages, numerical data
and other financial information in the Form 10-Q and have
compared certain of such amounts, percentages, numerical data and
financial information with, and have found such items to be in
agreement with or derived from, the detailed accounting records
of the Company and its subsidiaries.
(3) At the Closing Time, a letter dated the Closing Time (the
"Closing Letter"), to the effect that:
(a) they reaffirm as of the date of the Closing Letter (and
as though made on the date of the Closing Letter) all statements
made in the 10-K Letter and in each 10-Q Letter, if any, except
that the procedures specified therein shall have
A-2
been carried out to a specified date not more than five days
prior to the date of the Closing Letter; and
(b) based on the procedures set forth in Section 2(b) (but
carried out to the specified date referred to in Section 3(a)),
nothing came to their attention that caused them to believe that,
from the date of the latest balance sheet of the Company and its
subsidiaries included or incorporated by reference in the
Prospectus to such specified date, there were any increases or
decreases in financial statement amounts specified by you as they
have agreed to perform.
