Exhibit 4.3
FRONTIERVISION HOLDINGS, L.P.
FRONTIERVISION HOLDINGS CAPITAL CORPORATION
$237,650,000
11 7/8% Senior Discount Notes due 2007
Purchase Agreement
September 16, 1997
X.X. Xxxxxx Securities Inc.
Chase Securities Inc.
CIBC Wood Gundy Securities Corp.
First Union Capital Markets Corp.
c/o X.X. Xxxxxx Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
FrontierVision Holdings, L.P., a Delaware limited partnership (the
"Company"), and FrontierVision Holdings Capital Corporation, a Delaware
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corporation and a wholly owned subsidiary of the Company ("Capital" and,
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together with the Company, the "Issuers"), propose to issue and sell to J.P.
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Xxxxxx Securities Inc., Chase Securities Inc., CIBC Wood Gundy Securities Corp.
and First Union Capital Markets Corp. (the "Initial Purchasers") $237,650,000
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aggregate principal amount at maturity of their 11 7/8% Senior Discount Notes
due 2007 (the "Securities"). The Securities will be issued pursuant to the
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provisions of an Indenture (the "Indenture") to be dated as of September 19,
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1997 between the Issuers and U.S. Bank National Association (d/b/a Colorado
National Bank), as Trustee (the "Trustee").
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The offering and sale of the Securities to the Initial Purchasers will
be made without registration under the Securities Act of 1933, as amended (the
"Securities Act"), in reliance upon the exemption therefrom provided by Section
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4(2) of the Securities Act. Holders of Securities will have the benefits of a
Registration Rights Agreement to be dated as of September 19, 1997 among the
Issuers and the Initial Purchasers,
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substantially in the form attached hereto as Exhibit A (the "Registration Rights
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Agreement"). This Agreement, the Indenture, the Securities and the Registration
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Rights Agreement are collectively referred to herein as the "Offering
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Agreements."
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The Issuers hereby agree with the Initial Purchasers as follows:
1. The Issuers agree to issue and sell the Securities to the Initial
Purchasers as hereinafter provided, and each Initial Purchaser, upon the basis
of the representations and warranties herein contained, but subject to the
conditions hereinafter stated, agrees to purchase, severally and not jointly,
from the Issuers the respective principal amount at maturity of Securities set
forth opposite such Initial Purchaser's name in Schedule I hereto at a price
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(the "Purchase Price") equal to 60.909% of their principal amount at maturity.
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2. The Issuers understand that the Initial Purchasers intend (i) to
offer privately their respective portions of the Securities as soon after this
Agreement has become effective as in the judgment of the Initial Purchasers is
advisable and (ii) initially to offer the Securities upon the terms set forth in
the Offering Memorandum (as defined below).
The Issuers confirm that they have authorized the Initial Purchasers,
subject to the restrictions set forth below, to distribute copies of the
Offering Memorandum in connection with the offering of the Securities. Each
Initial Purchaser hereby makes to the Issuers the following representations and
agreements:
(a) it is a qualified institutional buyer within the meaning of Rule
144A under the Securities Act;
(b) (A) it will not solicit offers for, or offer to sell, the
Securities by any form of general solicitation or general advertising (as
those terms are used in Regulation D under the Securities Act) and (B) it
will solicit offers for the Securities only from, and will offer the
Securities only to, (1) persons whom it reasonably believes to be
"qualified institutional buyers" within the meaning of Rule 144A under the
Securities Act or (2) upon the terms and conditions set forth in Annex I to
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this Agreement; and
(c) it will deliver a copy of the Offering Memorandum to each person
who acquires Securities from it.
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3. Payment for the Securities shall be made by wire transfer in
immediately available funds, to the account specified by the Company to the
Initial Purchasers no later than noon on the Business Day (as defined below)
prior to the Closing Date (as defined below), on September 19, 1997, or at such
other time on the same or such other date as the Initial Purchasers and the
Issuers may agree upon in writing. The time and date of such payment are
referred to herein as the "Closing Date." As used herein, the term "Business
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Day" means any day other than a day on which banks are permitted or required to
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be closed in New York City.
Payment for the Securities shall be made against delivery to the
nominee of The Depository Trust Company for the account of the Initial
Purchasers of one or more global notes representing the Securities
(collectively, the "Global Note"), with any transfer taxes payable in connection
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with the transfer to the Initial Purchasers paid by the Company. The Global Note
will be made available for inspection by the Initial Purchasers at the office of
X.X. Xxxxxx Securities Inc. at the address set forth above, or at such other
location as the Company and the Initial Purchasers agree, not later than 1:00
P.M., New York City time, on the Business Day prior to the Closing Date.
4. The Issuers, jointly and severally, represent and warrant to each
Initial Purchaser as follows:
(a) A preliminary offering memorandum, dated September 2, 1997 (the
"Preliminary Offering Memorandum"), and an offering memorandum, dated
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September 16, 1997 (the "Offering Memorandum"), have been prepared in
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connection with the offering of the Securities. The Preliminary Offering
Memorandum or the Offering Memorandum and any amendments or supplements
thereto did not and will not, as of their respective dates or as of the
Closing Date, contain an untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
provided, however, that the foregoing shall not apply to statements or
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omissions in the Preliminary Offering Memorandum, the Offering Memorandum
or any amendment or supplement thereto made in reliance upon and in
conformity with information relating to any Initial Purchaser furnished to
the Company in writing by such Initial Purchaser expressly for use therein.
(b) The financial statements, and the related notes thereto, included
in the Offering Memorandum present
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fairly the financial position of (i) Operating Partners, (ii) the General
Partner (as defined herein), (iii) United Cable Vision, Inc. (selected
assets acquired by Operating Partners), (iv) Ashland and Defiance Clusters,
(v) C4 Media Cable Southeast, Limited Partnership, (vi) American Cable
Entertainment of Kentucky-Indiana, Inc., (vii) Triax Southeast Associates,
L.P., (viii) A-R Cable Services-ME, Inc., (ix) New Hampshire/Vermont
Systems (selected assets acquired from TCI Communications, Inc.) and (x)
Cox Central Ohio Cluster (the entities specified in clauses (iii) through
(x), collectively, the "Other Entities") as of the dates indicated and the
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results of operations of the Company and each of the Other Entities and the
changes in their cash flows for the periods specified; said financial
statements have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis. The pro forma
financial statements, and the related notes thereto, and other pro forma
financial information included in the Offering Memorandum have been
prepared in accordance with the applicable requirements of the Securities
Act with respect to pro forma financial statements and are based upon good
faith estimates and assumptions believed by the Issuers to be reasonable.
(c) Since the respective dates as of which information is given in the
Offering Memorandum, there has not been any change in the equity interests
or long-term debt of the Company or any of the Subsidiaries (as defined
below), or any material adverse change, or any development involving a
prospective material adverse change, in or affecting the general affairs,
business, prospects, management, financial position, partners' equity or
results of operations of the Company and the Subsidiaries, taken as a
whole, otherwise than as set forth or contemplated in the Offering
Memorandum (a "Material Adverse Change" or a "Prospective Material Adverse
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Change," respectively). Except as set forth or contemplated in the Offering
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Memorandum, neither the Company nor any of the Subsidiaries has entered
into any transaction or agreement (whether or not in the ordinary course of
business) material to the Company and the Subsidiaries taken as a whole.
(d) Each of the Issuers has been duly organized or incorporated, as
the case may be, and is validly existing as a limited partnership or
corporation, as the case may be, in good standing under the laws of the
State of Delaware, with corporate or partnership power, as the case may be,
and authority and all necessary material authoriza-
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tions, approvals, orders, licenses, certificates and permits of and from
regulatory or governmental officials, bodies and tribunals to (i) own its
properties and conduct its business in all material respects as described
in the Offering Memorandum; and (ii) enter into, deliver, incur and perform
its obligations under the Offering Agreements; and each of the Issuers has
been duly qualified as a foreign limited partnership or foreign
corporation, as the case may be, for the transaction of business and is in
good standing under the laws of each other jurisdiction in which it owns or
leases properties or conducts any business so as to require such
qualification, other than where the failure to be so qualified or in good
standing, singly or in the aggregate with all other such failures, would
not have a material adverse effect on the general affairs, business,
prospects, management, financial position, partners' equity or results of
operations of the Company and the Subsidiaries, taken as a whole (a
"Material Adverse Effect").
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(e) The Company has, and, as of the Closing Date, will have, the
capitalization set forth in the Offering Memorandum under the caption
"Capitalization" under the subheading "Actual". Except as set forth in the
Offering Memorandum, all of the outstanding equity interests of the Company
have been duly authorized and validly issued and are not subject to any
preemptive or similar rights; and, except as described in or expressly
contemplated by the Offering Memorandum, there are no outstanding rights
(including, without limitation, preemptive rights), warrants or options to
acquire, or instruments convertible into or exchangeable for, any equity
interests in the Company or any of the Subsidiaries, or any contract,
commitment, agreement, understanding or arrangement of any kind to which
the Company or any of the Subsidiaries is a party relating to the issuance
of any equity interests of the Company or of any such Subsidiary, any such
convertible or exchangeable securities or any such rights, warrants or
options.
(f) Each of the subsidiaries of the Company (the "Subsidiaries") that
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is a corporation has been duly incorporated and is validly existing as a
corporation under the laws of its jurisdiction of incorporation, with
corporate power and authority to own and lease its properties and conduct
its business as described in the Offering Memorandum, and has been duly
qualified as a foreign corporation for the transaction of business and is
in good standing
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under the laws of each other jurisdiction in which it owns or leases
properties, or conducts any business, so as to require such qualification,
other than where the failure to be so qualified or in good standing would
not have a Material Adverse Effect. Each Subsidiary that is a limited
partnership has been duly formed and is validly existing as a limited
partnership in good standing under the laws of the state of its
organization, with partnership power and authority to own and lease its
properties and conduct its business as described in the Offering
Memorandum, and has been duly qualified as a foreign limited partnership
for the transaction of business and is in good standing under the laws of
each other jurisdiction in which it owns or leases properties, or conducts
any business, so as to require such qualification, other than where the
failure to be so qualified or in good standing would not have a Material
Adverse Effect. All of the issued equity interests of each Subsidiary have
been duly authorized and validly issued and, as to shares of capital stock
of any Subsidiary that is a corporation, are fully paid and non-assessable,
and (except as otherwise set forth in the Offering Memorandum) will be
owned, as of the Closing Date, by the Company, directly or indirectly, free
and clear of all material liens, encumbrances, security interests or
claims, except for the pledge of such stock pursuant to the Senior Credit
Facility (as defined in the Offering Memorandum) as described in the
Offering Memorandum.
(g) The general partner of the Company is FrontierVision Partners,
L.P., a Delaware limited partnership (the "General Partner"), which has
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been duly organized and is validly existing as a limited partnership in
good standing under the laws of the State of Delaware with full partnership
power and authority to own its properties and to conduct its business as
described in the Offering Memorandum, and has been duly qualified as a
foreign limited partnership for the transaction of business and is in good
standing under the laws of each other jurisdiction in which it owns or
leases property or conducts any business so as to require such
qualification other than where the failure to be so qualified or in good
standing would not reasonably be expected to have a Material Adverse
Effect.
(h) The general partner of the General Partner is FVP GP, L.P., a
Delaware limited partnership ("FVPGP"), which has been duly organized and
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is validly existing as a limited partnership in good standing under the
laws of the
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State of Delaware with full partnership power and authority to own its
properties and to conduct its business as described in the Offering
Memorandum, and has been duly qualified as a foreign limited partnership
for the transaction of business and is in good standing under the laws of
each other jurisdiction in which it owns or leases property or conducts any
business so as to require such qualification other than where the failure
to be so qualified or in good standing would not reasonably be expected to
have a Material Adverse Effect.
(i) The general partner of FVPGP is FrontierVision Inc., a Delaware
corporation ("FV Inc."), which has been duly incorporated and is validly
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existing as a corporation in good standing under the laws of the State of
Delaware with full corporate power and authority to own its properties and
to conduct its business as described in the Offering Memorandum, and has
been duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each other jurisdiction
in which it owns or leases property or conducts any business so as to
require such qualification other than where the failure to be so qualified
or in good standing would not reasonably be expected to have a Material
Adverse Effect.
(j) This Agreement has been duly authorized, executed and delivered by
the Issuers.
(k) The Registration Rights Agreement has been duly authorized,
executed and delivered by the Issuers and constitutes a valid and legally
binding agreement of the Issuers, enforceable in accordance with its terms
except (a) the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium (whether general or specific),
fraudulent conveyance or similar laws relating to or affecting the
enforcement of creditors' rights generally, (b) the enforceability thereof
may be subject to the application of general principles of equity
(regardless of whether enforcement is sought in a proceeding in equity or
at law) and (c) no representation is made herein concerning the
enforceability of (i) waivers of notice or of any other constitutional,
statutory or common law rights, including, without limitation, waiver of
stay, extension or usury laws, (ii) indemnification provisions to the
extent such provisions are deemed to violate public policy or federal or
state securities laws, and (iii) submissions to the personal jurisdiction
of any particular court.
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(l) The Securities and the Exchange Securities (as defined in the
Registration Rights Agreement) have been duly authorized by each of the
Issuers, and, when issued and delivered pursuant to this Agreement or the
Registration Rights Agreement, as the case may be, and duly authenticated
by the Trustee, will have been duly executed, authenticated, issued and
delivered and will constitute valid and binding obligations of each of the
Issuers, entitled to the benefits provided by the Indenture, except (a) the
enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium (whether general or specific), fraudulent
conveyance or similar laws relating to or affecting the enforcement of
creditors' rights generally, (b) the enforceability thereof may be subject
to the application of general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law) and (c) no
representation is made herein concerning the enforceability of (i) waivers
of notice or of any other constitutional, statutory or common law rights,
including, without limitation, waiver of stay, extension or usury laws,
(ii) indemnification provisions to the extent such provisions are deemed to
violate public policy or federal or state securities laws, and (iii)
submissions to the personal jurisdiction of any particular court; the
Indenture has been duly authorized by each of the Issuers and, when
executed and delivered by the Issuers and the Trustee (assuming due
authorization, execution and delivery by the Trustee), the Indenture will
constitute a valid and binding instrument; and the Securities and the
Indenture will conform in all material respects to the descriptions thereof
in the Offering Memorandum.
(m) Neither the Company nor any of the Subsidiaries is, or with the
giving of notice or lapse of time or both would be, in violation of or in
default under its respective Certificate of Limited Partnership, Limited
Partnership Agreement, Certificate of Incorporation or By-Laws (each an
"Organizational Document"), as the case may be, or any indenture, mortgage,
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deed of trust, loan agreement or other agreement or instrument to which any
of them is a party or by which any of them or any of their respective
properties is bound, except for violations and defaults which would not
reasonably be expected to have a Material Adverse Effect; the issue and
sale of the Securities and the performance by each of the Issuers of all of
its obligations under the Offering Agreements and the consummation of the
transactions herein and therein contemplated will
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not conflict with or result in a breach of any of the terms or provisions
of, or constitute a default (including any default resulting after notice
or lapse of time or both) under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which the Company or any
of the Subsidiaries is a party or by which any of them is bound or to which
any of the property or assets of any of them is subject, nor will any such
action result in any violation of the provisions of any of their respective
Organizational Documents or any applicable law or statute or any order,
rule or regulation of any court or governmental agency or body having
jurisdiction over any of them or any of their respective properties,
including, without limitation, any law, statute, rule or regulation or any
judgment, decree or order applicable to the cable television industry in
general, except for conflicts, breaches, defaults and violations which
would not reasonably be expected to have a Material Adverse Effect; and no
consent, approval, authorization, order, license, registration or
qualification of or with any such court or governmental agency or body,
including, without limitation, under the Communications Act of 1934, as
amended (the "Communications Act"), the Cable Communications Policy Act of
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1984 (the "1984 Cable Act"), the Cable Television Consumer Protection and
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Competition Act of 1992 (the "1992 Cable Act"), the Telecommunications Ac
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of 1996 (the "1996 Telecom Act" and, together with the 1984 Cable Act and
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the 1992 Cable Act, the "Cable Acts") or any order, rule or regulation of
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the Federal Communications Commission ("FCC"), is required for the issue
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and sale of the Securities, the execution and delivery by each of the
Issuers of, and the performance by each of the Issuers of its obligations
under, the Offering Agreements or the consummation by each of the Issuers
of the transactions contemplated by the Offering Agreements, except (i)
such consents, approvals, authorizations, orders, licenses, registrations
or qualifications as have been obtained and are in full force and effect
under the Communications Act, the Cable Acts or any order, rule or
regulation of the FCC and such as may be required under state securities or
Blue Sky laws in connection with the purchase and resale of the Securities
by the Initial Purchasers, (ii) in the case of performance of the
Registration Rights Agreement, such as may be required under the Securities
Act and the Trust Indenture Act or (iii) where the failure to obtain such
consents, approvals, authorizations, orders, licenses, registrations or
qualifications would not reasonably be expected to have a Material Adverse
Effect.
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(n) Other than as set forth or contemplated in the Offering Memorandum
(including those matters referred to therein relating to general
rulemakings and similar matters relating generally to the cable television
industry, in each case on a national, regional, state or county basis),
there are no legal or governmental investigations, actions, suits or
proceedings pending or, to the best knowledge of each of the Issuers,
threatened against or affecting the Company or any of the Subsidiaries or
any of their respective properties or to which the Company or any of the
Subsidiaries is or may be a party or to which any property of the Company
or any of the Subsidiaries is or may be subject which, if determined
adversely to the Company or any of the Subsidiaries, would individually or
in the aggregate have, or would reasonably be expected to have, a Material
Adverse Effect, and, to the best of each of the Issuers' knowledge, no such
proceedings are threatened by governmental authorities or by others; and
there are no statutes, regulations, contracts or other documents that would
be required to be described in a registration statement or prospectus filed
with the Commission with respect to a public offering of the Securities
which are not described in the Offering Memorandum.
(o) KPMG Peat Marwick LLP, who have certified certain financial
statements of Operating Partners, the General Partner, A-R Cable Services
-ME, Inc., and the New Hampshire/Vermont Systems, Piaker & Xxxxx, P.C., who
have certified certain financial statements of United Video Cablevision,
Inc., Deloitte & Touche LLP, who have certified certain financial
statements of Ashland and Defiance Clusters, American Cable Entertainment
of Kentucky-Indiana, Inc. and Cox Central Ohio Cluster, Xxxxxxxx, Rogers,
Xxxxx & Co., P.C., who have certified certain financial statements of C4
Media Cable Southeast Limited Partnership, and Xxxxxx Xxxxxxxx LLP, who
have certified certain financial statements of Triax Southeast Associates,
L.P., respectively, are each independent public accountants as required by
the Securities Act.
(p) Each of the Company and the Subsidiaries has good and marketable
title in fee simple to all material items of real property owned by it and
good and marketable title to all material items of personal property owned
by it, in each case free and clear of all liens, encumbrances and defects,
except such as are described or referred to in the Offering Memorandum or
such liens, encumbrances or defects as do not materially affect the value
of such
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property and do not interfere with the use made or proposed to be made of
such property by the Company or any of the Subsidiaries in such a manner as
would reasonably be expected to result in a Material Adverse Effect; and
any real property and buildings held under lease by the Company or any of
the Subsidiaries are held by the Company or such Subsidiary under valid,
existing and enforceable leases with such exceptions as are not material
and do not interfere with the use made or proposed to be made of such
property and buildings by the Company or any of the Subsidiaries in such a
manner as would reasonably be expected to result in a Material Adverse
Effect.
(q) No relationship, direct or indirect, exists between or among the
Company or any of the Subsidiaries, on the one hand, and the directors,
officers, stockholders, holders of units of partnership interest, customers
or suppliers of the Company or any of the Subsidiaries, on the other hand,
which would be required by the Securities Act to be described in a
registration statement or prospectus filed with the Commission with respect
to a public offering of the Securities which is not described in the
Offering Memorandum.
(r) Neither of the Issuers is nor, after giving effect to the offering
and sale of the Securities, will be an "investment company" or entity
"controlled" by an "investment company," as such terms are defined in the
Investment Company Act of 1940, as amended (the "Investment Company Act").
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(s) [Intentionally Omitted]
(t) Each of the Company and the Subsidiaries owns or possesses, or can
acquire on reasonable terms, adequate licenses, trademarks, service marks,
trade names, copyrights and know-how (including trade secrets and other
proprietary or confidential information, systems or procedures)
(collectively, "intellectual property") necessary to conduct the business
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of the Existing Systems (as such term is defined in the Offering
Memorandum) now or proposed to be operated by it as described in the
Offering Memorandum, except where the failure to own, possess or have the
ability to acquire any such intellectual property would not, individually
or in the aggregate, be reasonably expected to have a Material Adverse
Effect; and, except as disclosed in the Offering Memorandum, neither the
Company nor any of the Subsidiaries has received any notice of in-
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fringement of or conflict with (and neither knows of any such infringement
of or conflict with) asserted rights of others with respect to any of such
intellectual property which, if any such assertions of infringement or
conflict were sustained, individually or in the aggregate, would reasonably
be expected to have a Material Adverse Effect.
(u) Each of the Company and the Subsidiaries owns, possesses or has
obtained, or can acquire on reasonable terms, all franchises, licenses,
permits, certificates, consents, orders, approvals and other authorizations
(collectively, "Permits") from, and has made all declarations and filings
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(collectively, "Filings") with, all federal, state, local and other
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governmental authorities including the FCC, and all courts and other
tribunals (collectively, the "Governmental Authorities") required to own or
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lease, as the case may be, and to operate the Existing Systems and to carry
on the business of the Existing Systems in the manner and to the full
extent now operated or proposed to be operated as described in the Offering
Memorandum, except where the failure to obtain such Permits or make such
Filings, individually or in the aggregate, would not reasonably be expected
to have a Material Adverse Effect; such Permits contain no materially
burdensome restrictions not customarily imposed by Governmental Authorities
on cable television systems of the same class and type as those owned by
the Company and the Subsidiaries other than such as would not have a
Material Adverse Effect; the execution and delivery by each of the Issuers
of, and the performance by each of the Issuers of its obligations under,
the Offering Agreements, the consummation of the transactions contemplated
hereby and thereby, and the operation of the Existing Systems in the manner
and to the full extent now operated or proposed to be operated as described
in the Offering Memorandum, did not or will not result in a violation of
the Communications Act, the Cable Acts or any order, rule or regulation of
the FCC or any other Governmental Authority except for violations that,
individually or in the aggregate, would not reasonably be expected to have
a Material Adverse Effect; the business and operations of the Company and
the Subsidiaries comply in all respects with the Communications Act, the
Cable Acts and all published orders, rules and regulations of the FCC
except for any such non-compliance as would not reasonably be expected to
have a Material Adverse Effect, and to the best of each of the Issuers'
knowledge, no event has occurred which permits, or with notice or lapse of
time or both would permit, the
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revocation or non-renewal of any Permits or Filings, or which might
result in any other material impairment of the rights of the Company or any
of the Subsidiaries in the Permits except for any such revocation,
non-renewal or impairment which would not reasonably be expected to have a
Material Adverse Effect; and, other than matters described in the Offering
Memorandum and except as to any other matters relating generally to the
cable television industry (in each case on a national, regional, state or
county basis), there is no proceeding pending or, to each of the Issuers'
best knowledge, threatened before the FCC or any other Governmental
Authority that has or would be reasonably expected to have a Material
Adverse Effect; and each of the Company and the Subsidiaries is in
compliance with all laws and regulations relating to the conduct of its
business as conducted as of the date hereof, except for any such
non-compliance as would not reasonably be expected to have a Material
Adverse Effect.
(v) The statistical and market-related data included in the Offering
Memorandum are based on or derived from sources which the Issuers believe
to be reliable and accurate.
(w) To the best knowledge of each of the Issuers, there are no
existing or threatened labor disputes with the employees of the Company or
any of the Subsidiaries which are reasonably likely to have a Material
Adverse Effect.
(x) Each of the Company and the Subsidiaries (i) is in compliance with
any and all applicable foreign, federal, state and local laws and
regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("Environmental Laws"), (ii) has received all permits,
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licenses or other approvals required of it under applicable Environmental
Laws to conduct its respective businesses and (iii) is in compliance with
all terms and conditions of any such permit, license or approval, except
where such non-compliance with Environmental Laws or failure to receive
required permits, licenses or other approvals would not, singly or in the
aggregate, reasonably be expected to have a Material Adverse Effect.
(y) Each employee benefit plan, within the meaning of Section 3(3) of
the Employee Retirement Income Security Act of 1974, as amended ("ERISA"),
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that is maintained, ad-
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ministered or contributed to by the Company or any of the Subsidiaries or
any of their affiliates for employees or former employees of the Company or
any of the Subsidiaries and their affiliates has been maintained in
compliance in all material respects with its terms and the requirements of
any applicable statutes, orders, rules and regulations, including but not
limited to ERISA and the Internal Revenue Code of 1986, as amended (the
"Code"); no prohibited transaction, within the meaning of Section 406 of
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ERISA or Section 4975 of the Code, has occurred with respect to any such
plan excluding transactions effected pursuant to a statutory or
administrative exemption; and for each such plan which is subject to the
funding rules of Section 412 of the Code or Section 302 of ERISA no
"accumulated funding deficiency" as defined in Section 412 of the Code has
been incurred, whether or not waived, and the present value of all benefits
accrued under such plan determined using reasonable actuarial assumptions
does not materially exceed the fair market value of the assets of such plan
(excluding for these purposes accrued but unpaid contributions).
(z) [Intentionally Omitted]
(aa) Neither of the Issuers and, to the knowledge of the Issuers, no
affiliate (as defined in Rule 501(b) of Regulation D under the Securities
Act ("Regulation D")) (other than an Initial Purchaser) thereof has
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directly, or through any agent, sold, offered for sale, solicited offers to
buy or otherwise negotiated in respect of, any security (as defined in the
Securities Act) which is or will be integrated with the sale of the
Securities in a manner that would require the registration under the
Securities Act of the offering contemplated by the Offering Memorandum.
(bb) Neither of the Issuers and, to the knowledge of the Issuers, no
person acting on behalf of either of them has offered or sold the
Securities by means of any general solicitation or general advertising
within the meaning of Rule 502(c) under the Securities Act or, with respect
to Securities sold outside the United States to non-U.S. persons (as
defined in Rule 902 under the Securities Act), by means of any directed
selling efforts within the meaning of Rule 902 under the Securities Act,
and the Issuers and all persons acting on their behalf have complied with
and will implement the "offering restriction" within the meaning of such
Rule 902.
-15-
(cc) Assuming, and subject to, the accuracy of, and compliance with,
the representations and agreements of the Initial Purchasers made herein,
including, without limitation, pursuant to Annex I, it is not necessary in
connection with the offer, sale and delivery of the Securities in the
manner contemplated by this Agreement to register the Securities under the
Securities Act or to qualify an indenture under the Trust Indenture Act.
(dd) The Securities satisfy the requirements set forth in Rule
144A(d)(3) under the Securities Act.
5. The Issuers, jointly and severally, covenant and agree with each of
the Initial Purchasers as follows:
(a) before distributing any amendment or supplement to the Offering
Memorandum, to furnish to the Initial Purchasers a copy of the proposed
amendment or supplement for review and not to distribute any such proposed
amendment or supplement to which the Initial Purchasers reasonably object;
(b) if, at any time prior to the completion of the Offering (as
defined in the Offering Memorandum), any event shall occur as a result of
which it is necessary to amend or supplement the Offering Memorandum in
order that the Offering Memorandum does not contain an untrue statement of
a material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances when the Offering
Memorandum is delivered to a purchaser, not misleading, or if it is
necessary to amend or supplement the Offering Memorandum to comply with
law, forthwith to prepare and furnish, at the expense of the Company, to
the Initial Purchasers and to the dealers (whose names and addresses the
Initial Purchasers will furnish to the Company) to which Securities may
have been sold by the Initial Purchasers and to any other dealers upon
request, such amendments or supplements to the Offering Memorandum as may
be necessary so that the Offering Memorandum as so amended or supplemented
will not contain an untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of the
circumstances when the Offering Memorandum is delivered to a purchaser, not
misleading or so that the Offering Memorandum will comply with law;
(c) the Issuers will cooperate with the Initial Purchasers and their
counsel in connection with the registra-
-16-
tion or qualification of the Securities for offering and sale by the
Initial Purchasers and by dealers under the securities or Blue Sky laws of
such jurisdictions as the Initial Purchasers may reasonably request and
will file such consents to service of process or other documents necessary
or appropriate in order to effect such registration or qualification;
provided that in no event shall any Issuer be obligated to qualify to do
--------
business as a foreign limited partnership or corporation, as the case may
be, or as a securities dealer in any jurisdiction where it is not now so
qualified or to take any action that would subject it to taxation or
service of process in suits, other than those specifically arising out of
the offering or sale of the Securities, in any jurisdiction where it is not
now so subject;
(d) for five years from the Closing Date, to furnish to the Initial
Purchasers copies of all reports or other communications (financial or
other) furnished to holders of Securities, and copies of any reports and
financial statements furnished to or filed with the Commission or any
national securities exchange;
(e) during the period beginning on the date hereof and continuing to
and including the Business Day following the Closing Date, not to offer,
sell, contract to sell, or otherwise dispose of any debt securities of or
guaranteed by the Company or any of the Subsidiaries which are
substantially similar to the Securities;
(f) to use the net proceeds received by the Company from the sale of
the Securities pursuant to this Agreement in the manner specified in the
Offering Memorandum under the caption "Use of Proceeds";
(g) to use their best efforts to cause such Securities to be eligible
for the PORTAL trading system ("PORTAL") of the National Association of
Securities Dealers, Inc.;
(h) during the period of two years after the Closing Date, the Company
will not, and will not permit any of its "affiliates" (as defined in Rule
144 under the Securities Act) (other than any of the Initial Purchasers)
to, resell any of the Securities which constitute "restricted securities"
under Rule 144 that have been reacquired by any of them;
-17-
(i) whether or not the transactions contemplated by this Agreement are
consummated or this Agreement is terminated, to pay or cause to be paid all
costs and expenses incident to the performance of their obligations
hereunder, including without limiting the generality of the foregoing, all
costs and expenses (i) incident to the preparation, issuance, execution,
authentication and delivery of the Securities, including any expenses of
the Trustee, (ii) incident to the preparation, printing and distribution of
the Preliminary Offering Memorandum and the Offering Memorandum (including
in each case all exhibits, amendments and supplements thereto), (iii)
incurred in connection with the registration or qualification and
determination of eligibility for investment of the Securities under the
laws of such jurisdictions as the Initial Purchasers may designate
(including reasonable fees of counsel for the Initial Purchasers and their
disbursements), (iv) in connection with the listing of the Securities on
any securities exchange or inclusion of the Securities on PORTAL, (v) in
connection with the printing (including word processing and duplication
costs) and delivery of the Preliminary and Supplemental Blue Sky Memoranda
and any Legal Investment Survey and the furnishing to the Initial
Purchasers and dealers of copies of the Preliminary Offering Memorandum and
Offering Memorandum (and any amendments and supplements thereto), including
mailing and shipping, as herein provided, (vi) payable to rating agencies
in connection with the rating of the Securities, and (vii) incurred by the
Issuers in connection with a "road show" presentation to potential
investors; provided, however, that except as provided in this Section 5 or
-------- -------
otherwise provided in Section 7 or 10 hereof, the Initial Purchasers will
pay all of their own costs and expenses, including, without limitation, the
fees of their counsel;
(j) to take all reasonable action that is appropriate or necessary to
assure that offerings of other securities will not be integrated for
purposes of the Securities Act with the offering contemplated hereby;
(k) not to solicit any offer to buy or offer to sell Securities by
means of any form of general solicitation or general advertising within the
meaning of Rule 502(c) of Regulation D under the Securities Act;
(l) while the Securities remain outstanding and are "restricted
securities" within the meaning of Rule
-18-
144(a)(3) under the Securities Act, to, during any period in which they are
not subject to Section 13 or 15(d) under the Exchange Act, make available
to the Initial Purchasers and any holder of Securities in connection with
any sale thereof and any prospective purchaser of Securities, in each case
upon request, the information specified in, and meeting the requirements
of, Rule 144A(d)(4) ("Rule 144A(d)(4) Information") under the Securities
---------------------------
Act (or any successor thereto); and
(m) not to take any action prohibited by Regulation M under the
Exchange Act in connection with the distribution of the Securities
contemplated hereby.
6. The several obligations of the Initial Purchasers hereunder to
purchase the Securities on the Closing Date are subject to the performance by
each of the Issuers of its obligations hereunder and to the following additional
conditions:
(a) The representations and warranties of the Issuers contained herein
shall be true and correct, in all material respects, on and as of the
Closing Date as if made on and as of the Closing Date and the Issuers shall
have complied, in all material respects, with all agreements and all
conditions on their part to be performed or satisfied hereunder at or prior
to the Closing Date.
(b) Subsequent to the execution and delivery of this Agreement and
prior to the Closing Date, there shall not have occurred any downgrading,
nor shall any notice have been given of (i) any downgrading, (ii) any
intended or potential downgrading or (iii) any review or possible change
that does not indicate an improvement, in the rating accorded any
securities of or guaranteed by the Company or any of the Subsidiaries by
any "nationally recognized statistical rating organization", as such term
is defined for purposes of Rule 436(g)(2) under the Securities Act.
(c) Since the respective dates as of which information is given in the
Offering Memorandum, there shall not have been any change in the equity
interests or long-term debt of the Company or any of the Subsidiaries or
any Material Adverse Change, or any development involving a Prospective
Material Adverse Change, otherwise than as set forth or contemplated in the
Offering Memorandum, the effect of which in the judgment of the Initial
Purchasers makes it impracticable or inadvisable to proceed with the
-19-
offering or the delivery of the Securities on the Closing Date on the
terms and in the manner contemplated in the Offering Memorandum.
(d) The Initial Purchasers shall have received on and as of the
Closing Date a certificate of two executive officers of each of the
Issuers, with specific knowledge about the Issuers' financial matters,
reasonably satisfactory to the Initial Purchasers to the effect set forth
in subsections (a) through (c) of this Section and to the further effect
that there has not occurred any Material Adverse Change, or any development
involving a Prospective Material Adverse Change.
(e) Xxx, Xxxxxx & Xxxxxxxxx, PLLC, counsel for the Issuers, shall have
furnished to the Initial Purchasers their written opinion, dated the
Closing Date, in form and substance reasonably satisfactory to the Initial
Purchasers, to the effect that:
(i) each of the Company and FrontierVision Operating Partners,
L.P. ("Operating Partners") has been duly organized and is validly
------------------
existing as a limited partnership in good standing under the laws of
the State of Delaware, with partnership power and authority to own its
properties and conduct its business as described in the Offering
Memorandum;
(ii) each of Capital, FrontierVision Capital Corporation and
FrontierVision Operating Partners Inc. has been duly incorporated and
is validy existing as a corporation in good standing under the laws of
the State of Delaware with corporate power and authority to own its
properties and conduct its business as described in the Offering
Memorandum;
(iii) based solely on a review of certificates from the
appropriate governmental authorities in each jurisdiction listed
below, Operating Partners has been duly qualified as a foreign limited
partnership for the transaction of business and is in good standing
under the laws of Colorado, Georgia, Indiana, Kentucky, Maine,
Maryland, Massachusetts, Michigan, New Hampshire, North Carolina,
Ohio, Pennsylvania, Tennessee, Virginia and West Virginia;
(iv) the General Partner has been duly organized and is validly
existing as a limited partnership in
-20-
good standing under the laws of the State of Delaware with full
partnership power and authority to own its properties and to conduct
its business as described in the Offering Memorandum, and, based
solely on a review of certificates from the appropriate governmental
authorities in such jurisdictions, has been duly qualified as a
foreign limited partnership for the transaction of business and is in
good standing under the laws of Colorado, Georgia, Maine, Maryland,
Massachusetts, Michigan, New Hampshire, North Carolina, Ohio,
Pennsylvania, Tennessee, Virginia and West Virginia;
(v) FVPGP has been duly organized and is validly existing as a
limited partnership in good standing under the laws of the State of
Delaware with full partnership power and authority to own its
properties and to conduct its business as described in the Offering
Memorandum, and, based solely on a review of certificates from the
appropriate governmental authorities in such jurisdictions, has been
duly qualified as a foreign limited partnership for the transaction of
business and is in good standing under the laws of Colorado, Georgia,
Maine, Maryland, Massachusetts, Michigan, New Hampshire, North
Carolina, Ohio, Pennsylvania, Tennessee, Virginia and West Virginia;
(vi) FV Inc. has been duly organized and is validly existing as
a corporation in good standing under the laws of the State of Delaware
with full corporate power and authority to own its properties and to
conduct its business as described in the Offering Memorandum, and,
based solely on a review of certificates from the appropriate
governmental authorities in such jurisdictions, has been duly
qualified as a foreign corporation for the transaction of business and
is in good standing under the laws of Colorado, Georgia, Maine,
Maryland, Michigan, New Hampshire, North Carolina, Ohio, Pennsylvania,
Tennessee, Virginia and West Virginia;
(vii) to such counsel's knowledge, based solely upon its review
of the publicly available records of the FCC and upon inquiry of
Operating Partners' management, and only with respect to the period
that the Existing Systems have been owned by Operating Partners, other
than as set forth or contemplated in the
-21-
Offering Memorandum (including those matters referred to therein
relating to general rulemakings and similar matters relating generally
to the cable television industry (in each case on a national,
regional, state or county basis)), there are no legal or governmental
investigations, actions, suits or proceedings pending or threatened
against or affecting specifically the Company or any of the
Subsidiaries or any of their respective properties or to which the
Company or any of the Subsidiaries is or may be a party or to which
any property of the Company or any of the Subsidiaries is or may be
subject which, if determined adversely to the Company or any of the
Subsidiaries, would individually or in the aggregate have, or
reasonably be expected to have, a Material Adverse Effect;
(viii) this Agreement and the Registration Rights Agreement have
been duly authorized, executed and delivered by each of the Issuers;
(ix) assuming due authorization, execution and delivery of the
Indenture by the Trustee, the Securities have been duly authorized,
executed and delivered by each of the Issuers and, when duly
authenticated in accordance with the terms of the Indenture and
delivered to and paid for by the Initial Purchasers in accordance with
the terms of this Agreement, will constitute valid and binding
obligations of each of the Issuers entitled to the benefits provided
by the Indenture, enforceable in accordance with the terms thereof
except (a) the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium (whether general or specific),
fraudulent conveyance or similar laws relating to or affecting the
enforcement of creditors' rights generally, (b) the enforceability
thereof may be subject to the application of general principles of
equity (regardless of whether enforcement is sought in a proceeding in
equity or at law) and (c) no opinion shall be expressed concerning the
enforceability of (i) waivers of notice or of any other
constitutional, statutory or common law rights, including, without
limitation, waiver of stay, extension or usury laws, (ii)
indemnification provisions to the extent such provisions are deemed to
violate public policy or federal or state securities laws, and (iii)
submis-
-22-
sion to the personal jurisdiction of any particular court;
(x) the Indenture has been duly authorized, executed and
delivered by each of the Issuers and (assuming the due authorization,
execution and delivery thereof by the Trustee) constitutes a valid and
binding instrument of each of the Issuers, enforceable against each of
the Issuers in accordance with its terms, except (a) the
enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium (whether general or specific), fraudulent
conveyance or other similar laws relating to or affecting creditors'
rights generally, (b) the enforceability thereof may be subject to the
application of general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law) and (c) no
opinion shall be expressed concerning the enforceability of (i)
waivers of notice or of any other constitutional, statutory or common
law rights, including, without limitation, waiver of stay, extension
or usury laws, (ii) indemnification provisions to the extent such
provisions are deemed to violate public policy or federal or state
securities laws, and (iii) submission to the personal jurisdiction of
any particular court;
(xi) the Securities, the Indenture and the Registration Rights
Agreement conform in all material respects to the descriptions thereof
in the Offering Memorandum under the caption "Description of the
Notes";
(xii) the execution and delivery of the Offering Agreements, the
issuance and sale of the Securities and the performance by each of the
Issuers of its obligations under the Securities and the Offering
Agreements and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach of any of
the terms or provisions of, or constitute a default (including any
default resulting after notice or lapse of time or both) under, any
indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument that has been filed as an exhibit to any registration
statement or periodic or current report filed by the Company or any of
the Subsidiaries with the Commission, nor will any such action result
in any xxxxx-
-23-
tion of the provisions of the Organizational Documents of the
Company or any of the Subsidiaries or the Communications Act, the
Cable Acts, any rule or regulation of the FCC or any other law or
statute customarily applicable to transactions of the type
contemplated by the Offering Agreements or, to such counsel's
knowledge, any other applicable law or statute or, to such counsel's
knowledge, any order, rule or regulation of any court or governmental
agency or body having jurisdiction over any of them or any of their
respective properties, including, without limitation, any federal law,
statute, rule or regulation, or to such counsel's knowledge, any
judgment, decree or order specifically and primarily applicable to the
cable television industry (as opposed to such items generally
applicable to other industries), except for conflicts, breaches,
defaults and violations which individually and in the aggregate would
not reasonably be expected to have a Material Adverse Effect;
(xiii) no consent, approval, authorization, order, license,
registration or qualification of or with any court or governmental
agency or body customarily required for transactions of the type
contemplated by the Offering Agreements, including, without
limitation, under the Communications Act, the Cable Acts or any order,
rule or regulation of the FCC, is required for the issuance and sale
of the Securities, the execution and delivery by each of the Issuers
of, and the performance by each of the Issuers of its obligations
under, the Offering Agreements or the consummation by each of the
Issuers of the transactions contemplated by the Offering Agreements,
except such consents, approvals, authorizations, orders, licenses,
registrations or qualifications (i) as have been obtained and are in
full force and effect under the Communications Act, the Cable Acts or
any order, rule or regulation of the FCC and such as may be required
under state securities or Blue Sky laws in connection with the
purchase and distribution of the Securities by the Initial Purchasers,
(ii) in the case of the performance of the Registration Rights
Agreement, such as may be required under the Securities Act or the
Trust Indenture Act or (iii) that may be required in the future due to
the operations or actions of the Company or any of the Subsidiaries,
-24-
the cable systems of Operating Partners or affiliated parties;
(xiv) the statements in the Offering Memorandum under the
captions "Risk Factors-- Regulation in the Cable Television Industry"
and "Legislation and Regulation," insofar as such statements summarize
applicable provisions of the Communications Act, the Cable Acts and
the published orders, rules and regulations of the FCC promulgated
thereunder, are accurate summarizies in all material respects of the
provisions purported to be summarized under such captions in the
Offering Memorandum, and the FCC statutes and regulations summarized
under such captions are the FCC statutes and regulations that are
material to the business of the Company and the Subsidiaries as
described in the Offering Memorandum;
(xv) neither of the Issuers is nor, after giving effect to the
offering and sale of the Securities, will be an "investment company"
or entity "controlled" by an "investment company", as such terms are
defined in the Investment Company Act;
(xvi) the statements made in the Offering Memorandum under the
caption "Certain Federal Income Tax Consequences," insofar as they
purport to constitute summaries of matters of United States federal
tax law and regulations or legal conclusions with respect thereto,
constitute accurate summaries of the matters described therein in all
material respects;
(xvii) no registration under the Securities Act of the Securities
is required in connection with the sale of the Securities to the
Initial Purchasers as contemplated by this Agreement and the Offering
Memorandum or in connection with the initial resale of the Securities
by the Initial Purchasers in accordance with Section 2 (including
Annex I) of this Agreement, and prior to the commencement of the
-------
Exchange Offer (as defined in the Registration Rights Agreement) or
the effectiveness of the Shelf Registration Statement (as defined in
the Registration Rights Agreement), the Indenture is not required to
be qualified under the Trust Indenture Act, in each case (i) assuming
that the purchasers who buy the Securities in the initial resales are
Qualified Institutional Buyers or non-U.S. Persons (as defined in
-25-
Rule 902 under the Act), and (ii) assuming, and subject to, the
accuracy of, and compliance with, the Initial Purchasers'
representations and agreements and those of the Issuers contained in
this Agreement (including, without limitation, pursuant to Annex I)
regarding the absence of a general solicitation in connection with the
sale of the Securities to the Initial Purchasers and the initial
resales thereof (it being understood that no opinion is expressed as
to any subsequent resale of any of the Securities); and
(xviii) nothing has come to such counsel's attention to lead such
counsel to believe that (except for the financial statements and other
financial information and statistical data included therein as to
which such counsel need express no belief) neither the Offering
Memorandum nor any amendment or supplement thereto made by the Issuers
prior to the Closing Date contained as of its date or contains as of
the Closing Date any untrue statement of a material fact or omitted as
of its date or omits as of the Closing Date 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.
In rendering such opinions, such counsel may rely as to matters of
fact, to the extent such counsel deems proper, on certificates of
responsible officers of the Issuers and certificates or other written
statements of public officials. With respect to the matters to be covered
in subparagraph (xviii) above, such counsel's opinion may state that their
opinion and belief expressed therein is based upon their participation in
conferences with officers and other representatives of the Issuers,
representatives of the independent certified public accountants of the
Issuers, and representatives and counsel of the Initial Purchasers, at
which conferences the contents of the Offering Memorandum and related
matters were discussed and that such counsel is not passing upon and does
not assume any responsibility for the accuracy, completeness or fairness of
the statements contained in the Offering Memorandum and has not made an
independent investigation, check or verification of facts for the purpose
of rendering their opinion.
-26-
The opinion of Dow, Xxxxxx & Xxxxxxxxx, PLLC described above shall be
rendered to the Initial Purchasers at the request of the Issuers and shall
so state therein.
(f) The Initial Purchasers shall have received on and as of the
Closing Date an opinion of Xxxxxx Xxxxxx & Xxxxxxx, counsel to the Initial
Purchasers, with respect to such matters as the Initial Purchasers may
reasonably request, and such counsel shall have received such papers and
information as they may reasonably request to enable them to pass upon such
matters.
(g) On the date of the issuance of the Offering Memorandum and also on
the Closing Date, each of KPMG Peat Marwick (Denver), KPMG Peat Marwick
(Jericho) and Deloitte & Touche (Atlanta) shall have furnished to the
Initial Purchasers letters, dated the respective dates of delivery thereof,
in form and substance satisfactory to the Initial Purchasers, containing
statements and information of the type customarily included in accountants'
"comfort letters" with respect to the financial statements and certain
financial information contained in the Offering Memorandum.
(h) The Issuers shall have executed and delivered the Registration
Rights Agreement.
(i) On the Closing Date, the Senior Credit Facility (as defined in the
Offering Memorandum) shall be in full force and effect with respect to
Operating Partners on the terms described in the Offering Memorandum and no
breach or violation of any of the material terms or provisions thereof or
Event of Default (as defined in the Senior Credit Facility) (or an event
which, with notice or lapse of time or both, would constitute an Event of
Default) thereunder shall exist.
(j) On or prior to the Closing Date, the Issuers shall have furnished
to the Initial Purchasers such further certificates and documents as the
Initial Purchasers shall reasonably request.
7. The Issuers, jointly and severally, agree to indemnify and hold
harmless each Initial Purchaser, and each person, if any, that controls any
Initial Purchaser within the meaning of either Section 15 of the Securities Act
or Section 20 of the Exchange Act, from and against any and all losses, claims,
damages and liabilities (including, without limitation,
-27-
the reasonable legal fees and other expenses incurred in connection
with any suit, action or proceeding or any claim asserted) caused by any untrue
statement or alleged untrue statement of a material fact contained in the
Preliminary Offering Memorandum, the Offering Memorandum or any amendment or
supplement thereto, or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with
information relating to any Initial Purchaser furnished to the Issuers in
writing by such Initial Purchaser expressly for use therein; provided, however,
-------- -------
that neither of the Issuers shall be liable to the Initial Purchasers or any
other person affiliated or associated therewith under the indemnification
provided for in this Section 7 to the extent that any such loss, claim, damage
or liability of such Initial Purchaser or other person results from the fact
that such Initial Purchaser sold Securities to a person or entity as to whom it
shall be established that there was not sent or given, at or prior to the
written confirmation of such sale, a copy of the Offering Memorandum or of the
Offering Memorandum as then amended or supplemented if the Company has
previously furnished copies thereof in sufficient quantity to the Initial
Purchasers, and the Offering Memorandum or the Offering Memorandum as then
amended or supplemented would have cured the defect giving rise to such loss,
claim, damage or liability.
Each Initial Purchaser agrees, severally and not jointly, to indemnify
and hold harmless each of the Issuers, its directors and executive officers and
each person that controls either of the Issuers within the meaning of Section 15
of the Securities Act and Section 20 of the Exchange Act, to the same extent as
the foregoing indemnity from the Issuers to each Initial Purchaser, but only
with reference to information relating to such Initial Purchaser furnished to
the Issuers in writing by such Initial Purchaser expressly for use in the
Preliminary Offering Memorandum, the Offering Memorandum or any amendment or
supplement thereto.
If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any person in respect of which indemnity may be sought pursuant to either of the
two preceding paragraphs, such person (the "Indemnified Person") shall promptly
------------------
notify the person against whom such indemnity may be sought (the "Indemnifying
------------
Person") in writing, and the Indemni-
------
-28-
fying Person, upon request of the Indemnified Person, shall retain counsel
reasonably satisfactory to the Indemnified Person to represent the Indemnified
Person and any others the Indemnifying Person may designate in such proceeding
and shall pay the reasonable fees and expenses of such counsel related to such
proceeding. In any such proceeding, any Indemnified Person shall have the right
to retain its own counsel, but the fees and expenses of such counsel shall be at
the expense of such Indemnified Person unless (i) the Indemnifying Person and
the Indemnified Person shall have mutually agreed to the contrary, (ii) the
Indemnifying Person has failed within a reasonable time to retain counsel
reasonably satisfactory to the Indemnified Person or (iii) the named parties in
any such proceeding (including any impleaded parties) include both the
Indemnifying Person and the Indemnified Person and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the Indemnifying Person
shall not, in connection with any proceeding or related proceeding in the same
jurisdiction, be liable for the fees and expenses of more than one separate firm
(in addition to any local counsel) for all Indemnified Persons, and that all
such fees and expenses shall be reimbursed as they are incurred. Any such
separate firm for the Initial Purchasers and such control persons of Initial
Purchasers shall be designated in writing by X.X. Xxxxxx Securities Inc. and any
such separate firm for the Issuers, their directors, their respective executive
officers and such control persons of either of the Issuers shall be designated
in writing by the Company. The Indemnifying Person shall not be liable for any
settlement of any proceeding effected without its written consent (not to be
unreasonably withheld or delayed), but if settled with such consent or if there
be a final judgment for the plaintiff, the Indemnifying Person agrees to
indemnify any Indemnified Person from and against any loss or liability by
reason of such settlement or judgment to the extent provided in this Section 7.
Notwithstanding the foregoing sentence, if at any time an Indemnified Person
shall have requested an Indemnifying Person to reimburse the Indemnified Person
for fees and expenses of counsel as contemplated by the third sentence of this
paragraph, the Indemnifying Person agrees that it shall be liable for any
settlement of any proceeding effected without its written consent if (i) such
settlement is entered into more than 30 days after receipt by such Indemnifying
Person of the aforesaid request and (ii) such Indemnifying Person shall not have
reimbursed Indemnified Person in accordance with said third sentence prior to
the date of such settlement to the extent it considers such request to be
reasonable or provided written notice to the Indemnified Person to substantiate
the
-29-
non-payment of the unpaid balance as reasonable. No Indemnifying Person shall,
without the prior written consent of the Indemnified Person (not to be
unreasonably withheld or delayed), effect any settlement of any pending or
threatened proceeding in respect of which any Indemnified Person is or could
have been a party and indemnity could have been sought hereunder by such
Indemnified Person, unless such settlement includes an unconditional written
release, in form and substance reasonably satisfactory to such Indemnified
Person, of such Indemnified Person from all liability on claims that are the
subject matter of such proceeding.
If the indemnification provided for in the first and second paragraphs
of this Section 7 is unavailable to an Indemnified Person in respect of any
losses, claims, damages or liabilities referred to therein, then each
Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Issuers on the one hand and the Initial Purchasers on
the other hand from the offering of the Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Issuers on the one
hand and the Initial Purchasers on the other hand in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Issuers on the one hand and the Initial
Purchasers on the other hand shall be deemed to be in the same respective
proportions as the net proceeds from the offering (before deducting expenses but
after deducting the discount to the Initial Purchasers) received by the Issuers
and the total discounts and commissions received by the Initial Purchasers, in
each case as set forth in the table on the cover of the Offering Memorandum,
bear to the aggregate offering price of the Securities. The relative fault of
the Issuers on the one hand and the Initial Purchasers on the other hand shall
be determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Issuers or by the Initial
Purchasers and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
-30-
The Issuers and the Initial Purchasers agree that it would not be just
and equitable if contribution pursuant to this Section 7 were determined by pro
rata allocation (even if the Initial Purchasers were treated as one entity for
such purpose) or by any other method of allocation that does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an Indemnified Person as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any reasonable legal or other expenses incurred by such Indemnified
Person in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, in no event shall an Initial
Purchaser be required to contribute any amount in excess of the amount by which
the total price at which the Securities purchased by it were offered in
connection with the initial resale of the Securities exceeds the amount of any
damages that such Initial Purchaser has otherwise been required to pay by reason
of such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Initial Purchasers'
obligations to contribute pursuant to this Section 7 are several in proportion
to the respective principal amount at maturity of Securities set forth opposite
their names in Schedule I hereto, and not joint.
----------
The remedies provided for in this Section 7 are not exclusive and
shall not limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
The indemnity and contribution agreements contained in this Section 7
and the representations and warranties of the Issuers set forth in this
Agreement shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on behalf
of any Initial Purchaser or any person controlling any Initial Purchaser or by
or on behalf of the Issuers, such Issuers' respective officers or directors or
any other person controlling either of the Issuers and (iii) acceptance of and
payment for any of the Securities.
8. Notwithstanding anything herein contained, this Agreement may be
terminated in the absolute discretion of the Initial Purchasers, by notice given
to the Issuers, if after
-31-
the execution and delivery of this Agreement and prior to the Closing Date (i)
trading generally shall have been suspended or materially limited on or by, as
the case may be, any of the New York Stock Exchange, the American Stock Exchange
or the National Association of Securities Dealers, Inc., (ii) trading of any
securities of or guaranteed by the Company or any of the Subsidiaries shall have
been suspended on any exchange or in any over-the-counter market, (iii) a
general moratorium on commercial banking activities in New York shall have been
declared by either Federal or New York State authorities, or (iv) there shall
have occurred any outbreak or escalation of hostilities or any change in
financial markets or any calamity or crisis that, in the judgment of the Initial
Purchasers, is material and adverse and which, in the judgment of the Initial
Purchasers, makes it impracticable to market the Securities on the terms and in
the manner contemplated in the Offering Memorandum.
9. This Agreement shall become effective upon the execution and
delivery hereof by the parties hereto.
If on the Closing Date, any one or more of the Initial Purchasers
shall fail or refuse to purchase Securities which it or they have agreed to
purchase hereunder, and the aggregate principal amount at maturity of Securities
which such defaulting Initial Purchaser or Initial Purchasers agreed but failed
or refused to purchase is not more than one-tenth of the aggregate principal
amount at maturity of Securities to be purchased on such date, the other Initial
Purchasers shall be obligated severally in the proportions that the principal
amount at maturity of Securities set forth opposite their respective names in
Schedule I bears to the aggregate principal amount at maturity of Securities set
----------
forth opposite the names of all such non-defaulting Initial Purchasers, or in
such other proportions as the Initial Purchasers may specify, to purchase the
Securities which such defaulting Initial Purchaser or Initial Purchasers agreed
but failed or refused to purchase on such date; provided, however, that in no
-------- -------
event shall the principal amount at maturity of Securities that any Initial
Purchaser has agreed to purchase pursuant to Section 1 be increased pursuant to
this Section 9 by an amount in excess of one-ninth of such principal amount at
maturity of Securities without the written consent of such Initial Purchaser. If
on the Closing Date, any Initial Purchaser or Initial Purchasers shall fail or
refuse to purchase Securities which it or they have agreed to purchase
hereunder, and the aggregate principal amount at maturity of Securities with
respect to which such default occurs is more than one-tenth of the aggregate
principal amount at maturity of Se-
-32-
curities to be purchased, and arrangements satisfactory to the Initial
Purchasers and the Issuers for the purchase of such Securities are not made
within 36 hours after such default, this Agreement shall terminate without
liability on the part of any non-defaulting Initial Purchaser or the Issuers. In
any such case either the Initial Purchasers or the Company shall have the right
to postpone the Closing Date, but in no event for longer than seven days, in
order that the required changes, if any, in the Offering Memorandum or in any
other documents or arrangements may be effected. Any action taken under this
paragraph shall not relieve any defaulting Initial Purchaser from liability in
respect of any default of such Initial Purchaser under this Agreement or the
offering contemplated hereunder.
10. If this Agreement shall be terminated by the Initial Purchasers,
or any of them, because of any failure or refusal on the part of either of the
Issuers to comply with the terms or to fulfill any of the conditions of this
Agreement, or if for any reason either of the Issuers shall be unable to perform
its obligations under this Agreement or any condition of the Initial Purchasers'
obligations cannot be fulfilled, the Issuers agree to reimburse the Initial
Purchasers or such Initial Purchasers as have so terminated this Agreement with
respect to themselves, severally, for all out-of-pocket expenses (including the
reasonable fees and expenses of their counsel) reasonably incurred by such
Initial Purchasers in connection with this Agreement or the offering
contemplated hereunder, but the Issuers shall then be under no further liability
to the Initial Purchasers except as provided in Section 5(i) and Section 7
hereof.
11. This Agreement shall inure to the benefit of and be binding upon
the Issuers, the Initial Purchasers, any controlling persons referred to herein
and their respective successors and assigns. Nothing expressed or mentioned in
this Agreement is intended or shall be construed to give any other person, firm
or corporation any legal or equitable right, remedy or claim under or in respect
of this Agreement or any provision herein contained. No purchaser of Securities
from any Initial Purchaser shall be deemed to be a successor by reason merely of
such purchase.
12. Any action by the Initial Purchasers hereunder may be taken by
X.X. Xxxxxx Securities Inc. alone on behalf of the Initial Purchasers, and any
such action taken by X.X. Xxxxxx Securities Inc. alone shall be binding upon the
Initial Purchasers. All notices and other communications hereunder
-33-
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the Initial
Purchasers shall be given to the Initial Purchasers c/o X.X. Xxxxxx Securities
Inc., 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (telecopy: 212/648-5121 or
212/648-5951); Attention: Syndicate Department. Notices to the Issuers shall be
given at c/o FrontierVision Holdings, L.P., 0000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx
X-000, Xxxxxx, XX 00000 (telecopy: (000) 000-0000); Attention: Xxxx X. Xxx,
Senior Vice President and Chief Financial Officer.
13. This Agreement may be signed in counterparts, each of which shall
be an original and all of which together shall constitute one and the same
instrument.
14. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York, without giving effect to the conflicts
of laws provisions thereof.
-34-
If the foregoing is in accordance with your understanding, please sign
and return four counterparts hereof.
Very truly yours,
FRONTIERVISION HOLDINGS, L.P.
By: FrontierVision Partners,
L.P., its general partner
By: FVP GP, L.P., its general
partner
By: FrontierVision Inc., its
general partner
By: /s/ Xxxxx X. XxXxxx
---------------------------------
Title: Vice President & Treasurer
FRONTIERVISION HOLDINGS CAPITAL
CORPORATION
By: /s/ Xxxxx X. XxXxxx
---------------------------------
Title: Vice President & Treasurer
Accepted: September 16, 1997
X.X. Xxxxxx Securities Inc.
Chase Securities Inc.
CIBC Wood Gundy Securities Corp.
First Union Capital Markets Corp.
By: X.X. Xxxxxx Securities Inc.
Acting on behalf of itself and
the several Initial Purchasers
listed in Schedule I hereto.
By: /s/ Xxxxxx Xxxxx
---------------------------------
Title: Vice President
ANNEX I
(A) The Securities have not been and will not be registered under the
Securities Act and may not be offered or sold within the United States or to, or
for the account or benefit of, U.S. persons except in accordance with Regulation
S under the Securities Act or pursuant to an exemption from the registration
requirements of the Securities Act. Each Initial Purchaser represents that it
has offered and sold the Securities and will offer and sell the Securities (i)
as part of their distribution at any time and (ii) otherwise until 40 days after
the later of the commencement of the offering and the Closing Date, only in
accordance with Rule 903 of Regulation S, Rule 144A or pursuant to paragraph B
of this Annex under the Securities Act. Accordingly, each Initial Purchaser
agrees that neither it, its affiliates nor any persons acting on its or their
behalf has engaged or will engage in any directed selling efforts with respect
to the Securities and it and they have complied and will comply with the
offering restrictions requirement of Regulation S. Each Initial Purchaser agrees
that, at or prior to confirmation of sale of Securities (other than a sale
pursuant to Rule 144A or paragraph B of this Annex), it will have sent to each
distributor, dealer or person receiving a selling concession, fee or other
remuneration that purchases Securities from it during the restricted period a
confirmation or notice to substantially the following effect:
"The Securities covered hereby have not been registered under the U.S.
Securities Act of 1933 (the "Securities Act") and may not be offered and
--------------
sold within the United States or to, or for the account or benefit of, U.S.
persons (i) as part of their distribution at any time or (ii) otherwise
until 40 days after the later of the commencement of the offering and the
closing date, except in either case in accordance with Regulation S (or
Rule 144A if available) under the Securities Act. Terms used above have the
meaning given to them by Regulation S."
Terms used in this paragraph have the meanings given to them by Regulation S.
Each Initial Purchaser further agrees that it has not entered and will
not enter into any contractual arrangement with respect to the distribution or
delivery of the Securities, except with its affiliates or with the prior written
consent of the Company.
(B) Notwithstanding the foregoing, Securities in registered form may
be offered, sold and delivered by the Ini-
tial Purchasers in the United States and to U.S. persons pursuant to Section 2
of this Agreement without delivery of the written statement required by
paragraph (A) above.
(C) Each Initial Purchaser further represents and agrees that (i) it
has not offered or sold, and will not offer or sell, in the United Kingdom by
means of any document, any Securities other than to persons whose ordinary
activities involve them in acquiring, holding, managing or disposing of
investments (as principal or agent) for the purposes of their business or which
it is reasonable to expect will so do, or in circumstances which do not
otherwise constitute an offer to the public within the meaning of the Public
Offers of Securities Regulations 1995 of Great Britain, (ii) it has complied,
and will comply, with all applicable provisions of the Financial Services Act
1986 and any regulation promulgated thereunder of Great Britain with respect to
anything done by it in relation to the Securities in, from or otherwise
involving the United Kingdom, and (iii) it has only issued or passed on, and
will only issue or pass on, in the United Kingdom, any document received by it
in connection with the issuance of the Securities to a person who is of a kind
described in Article 11(3) of the Financial Services Act 1986 (Investment
Advertisements) (Exemptions) Order 1995 of Great Britain or is a person to whom
the document may otherwise lawfully be issued or passed on.
(D) Each Initial Purchaser agrees that it will not offer, sell or
deliver any of the Securities in any jurisdiction outside the United States
except under circumstances that will result in compliance with the applicable
laws thereof, and that it will take at its own expense whatever action is
required to permit its purchase and resale of the Securities in such
jurisdictions. Each Initial Purchaser understands that no action has been taken
to permit a public offering in any jurisdiction outside the United States where
action would be required for such purposes. Each Initial Purchaser agrees not to
cause any advertisement of the Securities to be published in any newspaper or
periodical or posted in any public place and not to issue any circular relating
to the Securities.
-2-
SIGNATURES
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
FRONTIERVISION HOLDINGS, L.P.
By: FrontierVision Partners, L.P.,
its general partner
By: FVP GP, L.P.,
its general partner
By: FrontierVision Inc.,
its general partner
By:
---------------------------------------
Title:
FRONTIERVISION HOLDINGS CAPITAL
CORPORATION
By:
---------------------------------------
Title:
X.X. XXXXXX SECURITIES INC.
CHASE SECURITIES INC.
CIBC WOOD GUNDY SECURITIES CORP.
FIRST UNION CAPITAL MARKETS CORP.
By: X.X. Xxxxxx Securities Inc.
By:
---------------------------------------
Title:
SCHEDULE I
Principal Amount
at Maturity of
Securities to Be
Initial Purchaser Purchased
----------------- ----------------
X.X. Xxxxxx Securities Inc............................ $130,707,500
Chase Securities Inc.................................. 71,295,000
CIBC Wood Gundy Securities Corp....................... 23,765,000
First Union Capital Markets Corp...................... 11,882,500
------------
Total............................................ $237,650,000
===========
