EXHIBIT 1.1
NEXTLINK COMMUNICATIONS, INC.
__% SENIOR NOTES DUE 2007
UNDERWRITING AGREEMENT
----------------------
New York, New York, USA
September __, 1997
Salomon Brothers Inc
▇▇▇▇▇▇▇ Lynch, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
Bear, ▇▇▇▇▇▇▇ & Co. Inc.
Toronto Dominion Securities (USA) Inc.
c/o Salomon Brothers Inc
Seven World Financial Center
New York, New York 10048
United States of America
Ladies and Gentlemen:
NEXTLINK Communications, Inc., a corporation organized under the laws of
the State of Washington (the "Company"), confirms its agreement with the
underwriters named in Schedule A hereto (the "Underwriters") with respect to
the issue and sale by the Company and the purchase by the Underwriters,
acting severally and not jointly, of an aggregate of $400,000,000 principal
amount of the Notes specified above (the "Securities").
SECTION 1. REPRESENTATIONS AND WARRANTIES.
(a) REPRESENTATIONS AND WARRANTIES BY THE COMPANY. The Company
represents and warrants to each of the Underwriters as of the date hereof and
as of the Closing Time referred to in Section 2(c) hereof, and agrees with
each of the Underwriters as follows:
(i) Effectiveness of Registration Statement. A registration
statement on Form S-1 (File No. 333-32003) (the "Initial Registration
Statement") in respect of the Securities has been filed with the Securities
and Exchange Commission (the "Commission"); the Initial Registration
Statement and any post-effective amendment thereto, each in the form
heretofore delivered to the Underwriters have been declared effective by the
Commission in such form; other than a registration
statement, if any, increasing the size of the offering (a "Rule 462(b)
Registration Statement") filed pursuant to Rule 462(b) under the Securities
Act of 1933, as amended (the "1933 Act") which became effective upon filing,
no other document with respect to the Initial Registration Statement has
heretofore been filed with the Commission; and no stop order suspending the
effectiveness of the Initial Registration Statement, any post-effective
amendment thereto or the Rule 462(b) Registration Statement, if any, has been
issued and no proceeding for that purpose has been initiated or threatened by
the Commission (any preliminary prospectus included in the Initial
Registration Statement or filed with the Commission pursuant to Rule 424(a)
of the rules and regulations of the Commission under the 1933 Act, is
hereinafter called a "Preliminary Prospectus"; the various parts of the
Initial Registration Statement and the Rule 462(b) Registration Statement, if
any, including all exhibits thereto but excluding Form T-1 and including the
information contained in the form of final Prospectus filed with the
Commission pursuant to Rule 424(b) under the 1933 Act in accordance with
Section 3(a) hereof and deemed by virtue of Rule 430A under the 1933 Act to
be part of the Initial Registration Statement at the time it was declared
effective, or such part of the Rule 462(b) Registration Statement, if any, at
the time it became effective (each such part of a registration statement as
amended at the time such part became effective), are hereinafter collectively
called the "Registration Statement"; and such final Prospectus, in the form
first filed pursuant to Rule 424(b) under the 1933 Act, is hereinafter called
the "Prospectus").
(ii) Compliance of Preliminary Prospectus with the
Requirements of the 1933 Act. No order preventing or suspending the use of
any Preliminary Prospectus has been issued by the Commission, and each
Preliminary Prospectus, at the time of filing thereof, conformed in all
material respects to the requirements of the 1933 Act and the Trust Indenture
Act of 1939, as amended (the "Trust Indenture Act"), and the rules and
regulations of the Commission thereunder, 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, in the light of
the circumstances under which they were made, not misleading; PROVIDED,
HOWEVER, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter through
Salomon Brothers expressly for use therein or by the Selling Shareholder
expressly for use in the preparation of the answers therein to items 7 and
11(1) of Form S-1.
(iii) Compliance of Registration Statement and Prospectus with
the Requirements of the 1933 Act. The Registration Statement conforms, and
the Prospectus and any further amendments or supplements to the Registration
Statement or the Prospectus will conform, in all material respects to the
requirements of the 1933 Act and the Trust Indenture Act and the rules and
regulations of the Commission thereunder and do not and will not, as of the
applicable effective date as to the Registration Statement and any amendment
thereto, and as of the applicable filing date as to the Prospectus and any
amendment or supplement thereto, 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; PROVIDED, HOWEVER,
that this representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information furnished
in writing to the Company by an Underwriter through Salomon Brothers
expressly for use therein or by the Selling Shareholder expressly for use in
the preparation of the answers therein to items 7 and 11(1) of Form S-1.
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(iv) Independent Accountants. The accountants who certified
the financial statements included in the Prospectus are independent certified
public accountants with respect to the Company and its subsidiaries within
the meaning of Regulation S-X under the 1933 Act.
(v) Financial Statements. The financial statements, together
with the related notes, included in the Prospectus present fairly the
financial position of the Company and its consolidated subsidiaries at the
dates indicated and the statement of operations, shareholders' equity and
cash flows of the Company and its consolidated subsidiaries for the periods
specified; said financial statements have been prepared in conformity with
generally accepted accounting principles ("GAAP") applied on a consistent
basis throughout the periods involved. The selected financial data and the
summary financial information included in the Prospectus present fairly the
information shown therein and have been compiled on a basis consistent with
that of the audited financial statements included in the Prospectus.
(vi) No Material Adverse Change in Business. Since the
respective dates as of which information is given in the Prospectus, except
as otherwise stated therein, (1) there has been no material adverse change in
the condition, financial or otherwise, or in the earnings, business affairs
or business prospects of the Company and its subsidiaries considered as one
enterprise (a "Material Adverse Effect"), whether or not arising in the
ordinary course of business, (2) there have been no transactions entered into
by the Company or any of its subsidiaries, other than those in the ordinary
course of business, which are material with respect to the Company and its
subsidiaries considered as one enterprise and (3) there has been no dividend
or distribution of any kind declared, paid or made by the Company on any
class of its capital stock.
(vii) Good Standing of the Company. The Company has been duly
organized and is validly existing as a corporation under the laws of the
State of Washington and has power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectus and to
enter into and perform its obligations under this Agreement; and the Company
is duly qualified as a foreign corporation to transact business and is in
good standing in each other jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure so to qualify or to be in good
standing would not result in a Material Adverse Effect.
(viii) Good Standing of Designated Subsidiaries. Each
"significant subsidiary" of the Company (as such term is defined in Rule 1-02
of Regulation S-X) and NEXTLINK Pennsylvania, L.P. and NEXTLINK Ohio, L.L.C.
(each a "Designated Subsidiary" and, collectively, the "Designated
Subsidiaries") has been duly organized and is validly existing and in good
standing, where applicable, as a corporation, limited liability company or
limited partnership, as the case may be, under the laws of the jurisdiction
of its formation, has power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectus and is
duly qualified as a foreign corporation, limited liability company or limited
partnership, as the case may be, to transact business and is in good standing
in each jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of business,
except where the failure so to qualify or to be in good standing would not
result in a Material Adverse Effect; except as otherwise disclosed in the
Prospectus, all of the issued and outstanding capital stock or other equity
interest of each Designated Subsidiary has been duly authorized and validly
issued, is fully paid and non-assessable and 99% thereof is owned by the
Company, directly or through
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subsidiaries, free and clear of any security interest, mortgage, pledge,
lien, encumbrance, claim or equity; none of the outstanding shares of capital
stock or other equity interest of the Designated Subsidiaries was issued in
violation of any preemptive or similar rights arising by operation of law, or
under the constituting or operative document or agreement of any Designated
Subsidiary or under any agreement to which the Company or any Designated
Subsidiary is a party.
(ix) Capitalization. The authorized, issued and outstanding
capital stock of the Company is as set forth in the Prospectus as of the
dates indicated therein. The shares of issued and outstanding capital stock
of the Company have been duly authorized and validly issued and are fully
paid and non-assessable; and none of the outstanding shares of capital stock
of the Company was issued in violation of the preemptive or other similar
rights of any securityholder of the Company, as applicable.
(x) Authorization of Underwriting Agreements. This Agreement
has been duly authorized, executed and delivered by the Company.
(xi) Authorization and Description of the Securities and the
Indenture. The Securities have been duly authorized for issuance and sale to
the Underwriters pursuant to this Agreement and, when issued and delivered by
the Company pursuant to this Agreement against payment of the consideration
set forth herein, will have been duly executed, authenticated, issued and
delivered and will constitute valid and legally binding obligations of the
Company entitled to the benefits provided by the indenture to be dated as of
____________________, 1997 (the "Indenture") between the Company and United
States Trust Company of New York, as Trustee (the "Trustee"), under which
they are to be issued, which will be substantially in the form filed as an
exhibit to the Registration Statement; the Indenture has been duly authorized
and duly qualified under the Trust Indenture Act and, when executed and
delivered by the Company and the Trustee, will constitute a valid and legally
binding instrument, enforceable in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting creditors' rights and to
general equity principles; and the Securities and the Indenture will conform
in all material respects to the descriptions thereof in the Prospectus and
will be in substantially the form previously delivered to the Underwriters.
(xii) Absence of Defaults and Conflicts. Neither the Company
nor any of its subsidiaries is in violation of its constituting or operative
document or agreement or in default in the performance or observance of any
material obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, deed of trust, loan or credit agreement, note,
lease or other agreement or instrument to which the Company or any of its
subsidiaries is a party, or by which or any of them may be bound, or to which
any of the property or assets of the Company or any of its subsidiaries is
subject (collectively, "Agreements and Instruments") except for such defaults
that would not result in a Material Adverse Effect; the issue and sale of the
Securities, the execution, delivery and performance of this Agreement, the
Indenture, the Securities and any other agreement or instrument entered into
or issued or to be entered into or issued by the Company in connection with
the transactions contemplated hereby, thereby or in the Prospectus and the
consummation of the transactions contemplated herein, therein and in the
Prospectus (including the issuance and sale of the Securities by the Company
hereunder), the compliance by the Company with its obligations hereunder and
under the Indenture and the Securities have been duly authorized by all
necessary
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action and do not and will not, whether with or without the giving of notice
or passage of time or both, conflict with or constitute a breach of, or
default or a Repayment Event (as defined below) under, or result in the
creation or imposition of any lien, charge or encumbrance upon any property
or assets of the Company or any of its subsidiaries pursuant to, the
Agreements and Instruments except for such conflicts, breaches or defaults or
liens, charges or encumbrances that, singly or in the aggregate, would not
result in a Material Adverse Effect, nor will such action result in any
violation of the provisions of the constituting or operative document or
agreement of the Company or any of its subsidiaries or any applicable law,
statute, rule, regulation, judgment, order, writ or decree of any government,
government instrumentality or court, domestic or foreign, having jurisdiction
over the Company or any of its subsidiaries or any of their assets or
properties. As used herein, a "Repayment Event" means any event or condition
which gives the holder of any material note, debenture or other evidence of
indebtedness (or any person acting on such holder's behalf) the right to
require to repurchase, redemption or repayment of all or a portion of such
indebtedness by the Company or any of its subsidiaries.
(xiii) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration, qualification
or decree of, any court or governmental authority or agency is necessary or
required for the performance by the Company of its obligations hereunder, in
connection with the offering, issuance or sale of the Securities hereunder or
the consummation of the actions contemplated by this Agreement or the
Indenture, except the registration under the 1933 Act of the Securities, such
as have been obtained under the Trust Indenture Act and such consents,
approvals, authorizations, registrations or qualifications as may be required
under state securities or Blue Sky laws in connection with the purchase and
distribution of the Securities by the Underwriters.
(xiv) Possession of Licenses and Permits. Except as set forth
in or contemplated by the Prospectus with respect to systems under
development and the offering of dial tone service, each of the Company and
its Designated Subsidiaries has all material certificates, consents,
exemptions, orders, permits, licenses, authorizations, franchises or other
material approvals (each, an "Authorization") of and from, and has made all
material declarations and filings with, all Federal, state, local and other
governmental authorities, all self-regulatory organizations and all courts
and other tribunals, necessary or appropriate for the Company and its
Designated Subsidiaries to own, lease, license, use and construct its
properties and assets and to conduct its business in the manner described in
the Prospectus, except to the extent that the failure to obtain any such
Authorizations or make any such declaration or filing would not, singly or in
the aggregate, result in a Material Adverse Effect. Except as set forth in
or contemplated by the Prospectus, all such Authorizations are in full force
and effect with respect to the Company and its Designated Subsidiaries; to
the best knowledge of the Company, no event has occurred that permits, or
after notice or lapse of time could permit, the revocation, termination or
modification of any such Authorization; the Company and its Designated
Subsidiaries are in compliance in all material respects with the terms and
conditions of all such Authorizations and with the rules and regulations of
the regulatory authorities and governing bodies having jurisdiction with
respect thereto; and, except as set forth in the Prospectus, the Company has
no knowledge that any person is contesting or intends to contest the granting
of any material Authorization; and neither the execution and delivery of this
Agreement, the Indenture or the Securities, nor the consummation of the
transactions contemplated hereby and thereby nor compliance with the terms,
conditions and provisions hereof and thereof by the Company or any of
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its Designated Subsidiaries will cause any suspension, revocation,
impairment, forfeiture, nonrenewal or termination of any Authorization.
(xv) Absence of Labor Dispute. No labor dispute with the
employees of the Company or any of its subsidiaries exists or, to the
knowledge of the Company, is imminent, and the Company is not aware of any
existing labor disturbance by the employees of any of its or any of its
subsidiaries' principal suppliers, manufacturers, customers or contractors,
which, in either case, would reasonably be expected to result in a Material
Adverse Effect.
(xvi) Absence of Proceedings. Except as disclosed in the
Prospectus, there is no action, suit, proceeding, inquiry or investigation
before or by any court or governmental agency or body, domestic or foreign,
now pending or, to the knowledge of the Company, threatened against or
affecting the Company or any of its subsidiaries which could reasonably be
expected to result in a Material Adverse Effect, or which might reasonably be
expected to materially and adversely affect the properties or assets of the
Company or any of its subsidiaries or the consummation of this Agreement or
the performance by the Company of its obligations hereunder. The aggregate
of all pending legal or governmental proceedings to which the Company or any
subsidiary thereof is a party or of which any of their respective property or
assets is the subject which are not described in the Prospectus, including
ordinary routine litigation incidental to the business, could not reasonably
be expected to result in a Material Adverse Effect.
(xvii) Possession of Intellectual Property. The Company
and its subsidiaries own or possess, or can acquire on reasonable terms,
adequate patents, patent rights, licenses, inventions, copyrights, know-how
(including trade secrets and other unpatented and/or unpatentable proprietary
or confidential information, systems or procedures), trademarks, service
marks, trade names or other intellectual property (collectively,
"Intellectual Property") necessary to carry on the business now operated by
them, and except as otherwise described in the Prospectus neither the Company
nor any of its subsidiaries has received any notice or is otherwise aware of
any infringement of or conflict with asserted rights of others with respect
to any Intellectual Property or of any facts or circumstances which would
render any Intellectual Property invalid or inadequate to protect the
interest of the Company or any of its subsidiaries therein, and which
infringement or conflict (if the subject of any unfavorable decision, ruling
or finding) or invalidity or inadequacy, singly or in the aggregate, would
result in a Material Adverse Effect.
(xviii) Title to Property. The Company and its subsidiaries
have good and marketable title to all real property owned by them and good
title to all other properties owned by them, in each case, free and clear of
all mortgages, pledges, liens, security interests, claims, restrictions or
encumbrances of any kind except such as (a) are described in the Prospectus
or (b) do not, singly or in the aggregate, materially affect the value of
such property and do not interfere with the use made and proposed to be made
of such property by the Company or any of its subsidiaries; and all of the
leases and subleases material to the business of the Company and its
subsidiaries, considered as one enterprise, and under which the Company or
any of its subsidiaries holds properties described in the Prospectus, are in
full force and effect, and neither the Company nor any of its subsidiaries
has any notice of any material claim of any sort that has been asserted by
anyone adverse to the rights of the Company or any of its subsidiaries under
any of the leases or subleases mentioned above, or affecting or questioning
the rights of the Company or any subsidiary thereof to the continued
possession of the leased or subleased premises under any such lease or
sublease.
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(xix) Tax Returns. The Company and its subsidiaries have
filed all federal, state, foreign and, to the extent material, local tax
returns that are required to be filed or have duly requested extensions
thereof and have paid all taxes required to be paid by any of them and any
related assessments, fines or penalties, except for any such tax, assessment,
fine or penalty that is being contested in good faith and by appropriate
proceedings; and adequate charges, accruals and reserves have been provided
for in the financial statements referred to in Section 1(a)(v) above in
respect of all federal, state, local and foreign taxes for all periods as to
which the tax liability of the Company or any of its subsidiaries has not
been finally determined or remains open to examination by applicable taxing
authorities.
(xx) Environmental Laws. Except as described in the
Prospectus and except such matters as would not, singly or in the aggregate,
result in a Material Adverse Effect, (A) neither the Company nor any of its
subsidiaries is in violation of any federal, state, local or foreign statute,
law, rule, regulation, ordinance, code, policy or rule of common law or any
judicial or administrative interpretation thereof, including any judicial or
administrative order, consent, decree or judgment, relating to pollution or
protection of human health, the environment (including, without limitation,
ambient air, surface water, groundwater, land surface or subsurface strata)
or wildlife, including, without limitation, laws and regulations relating to
the release or threatened release of chemicals, pollutants, contaminants,
wastes, toxic substances, hazardous substances, petroleum or petroleum
products (collectively, "Hazardous Materials") or to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport or
handling of Hazardous Materials (collectively, "Environmental Laws"), (B) the
Company and its subsidiaries have all permits, authorizations and approvals
required under any applicable Environmental Laws and are each in compliance
with their requirements, (C) there are no pending or, to the Company's
knowledge, threatened administrative, regulatory or judicial actions, suits,
demands, demand letters, claims, liens, notices of noncompliance or
violation, investigation or proceedings relating to any Environmental Law
against the Company or any of its subsidiaries and (D) there are no events or
circumstances that would reasonably be expected to form the basis of an order
for clean-up or remediation, or an action, suit or proceeding by any private
party or governmental body or agency, against or affecting the Company or any
of its subsidiaries relating to Hazardous Materials or Environmental Laws.
(xxi) Investment Company Act. The Company is not, and upon
the issuance and sale of the Securities as herein contemplated and the
application of the net proceeds therefrom as described in the Prospectus will
not be, an "investment company" or an entity "controlled" by an "investment
company" as such terms are defined in the Investment Company Act of 1940, as
amended (the "1940 Act").
(xxii) Certain Disclosures in Prospectus. The statements
set forth in the Prospectus under the caption "Description of Notes", insofar
as they purport to constitute a summary of the terms of the Securities, and
under the captions "Business Regulatory Overview" and "Underwriting", insofar
as they purport to describe the provisions of the laws and documents referred
to therein, are accurate and complete in all material respects; and the
statements set forth in the Prospectus under the caption "Certain United
States Federal Income Tax Consequences", insofar as such statements purport
to summarize certain United States federal income and estate tax consequences
of the ownership and dispensation of the Securities by certain U.S. Holders
and non-U.S. Holders (as such terms are defined in the Prospectus) of the
Securities, provide a fair summary of such consequences under current law.
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(xxiii) Cuba. Neither the Company nor any of its
affiliates does business with the government of Cuba or with any person or
affiliate located in Cuba within the meaning of Section 517.075, Florida
Statutes.
(xxiv) No Manipulation or Stabilization. Neither the
Company nor, to its knowledge, any of its officers, directors or affiliates
has taken and will take, directly or indirectly, any action which is designed
to or which has constituted or which might reasonably be expected to cause or
result in stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities.
(b) OFFICER'S CERTIFICATES. Any certificate signed by any officer
of the Company or any of its subsidiaries delivered to the Underwriters or to
counsel for the Underwriters shall be deemed a representation and warranty by
the Company to each Underwriter as to the matters covered thereby.
SECTION 2. SALE AND DELIVERY TO UNDERWRITERS; CLOSING.
(a) SECURITIES. On the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth,
the Company agrees to issue and sell to each Underwriter, severally and not
jointly, and each Underwriter, severally and not jointly, agrees to purchase
from the Company, at a purchase price of ___.___ % of the principal amount
thereof, plus accrued interest, if any, from _______, 1997, the principal
amount of Securities set forth in Schedule A opposite the name of such
Underwriter.
(a) TERMS AND CONDITIONS OF SALE. Upon the authorization by ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ on behalf of the Underwriters of the release of the Securities, the
several Underwriters propose to offer the Securities for sale upon the terms
and conditions set forth in the Prospectus.
(c) CLOSING AND PAYMENT. (i) The Securities to be purchased by each
Underwriter hereunder, in definitive form, and in such authorized
denominations and registered in such names as ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ may request
upon at least forty-eight hours' prior notice to the Company shall be
delivered by or on behalf of the Company to the Underwriters, through the
facilities of the Depository Trust Company ("DTC") (unless the Underwriters
shall otherwise instruct) for the account of such Underwriter, against
payment by or on behalf of such Underwriter of the purchase price therefor by
wire transfer or certified or official bank check or checks, payable to the
order of the Company in immediately available (same day) funds. The Company
will cause the certificates representing the Securities to be made available
for checking and packaging at least twenty-four hours prior to the Closing
Time (as defined below) with respect thereto at the offices of DTC or its
designated custodian (the "Designated Office"). The time and date of such
delivery and payment shall be 10:00 a.m. on _______ _, 1997 or such other
time and date as Salomon Brothers and the Company may agree upon in writing,
such time and date for delivery of the Securities is herein "Closing Time".
(ii) The documents to be delivered at the Closing Time by or on
behalf of the parties hereto pursuant to Section 5 hereof, including the
cross receipt for the Securities and any additional documents requested by
the Underwriters pursuant to Section 5(k) hereof, will be delivered at the
offices of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
(the "Closing Location"), and the Securities will be delivered at the
Designated Office, all at the Closing Time. A meeting will be held at the
Closing Location at 2:00 p.m. on the New York Business Day next preceding the
Closing Time, at which meeting the final drafts of the documents to be
delivered pursuant to the preceding sentence will be available for
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review by the parties hereto. For the purposes of this Section 2 and Section
3(a)(iii) below, "New York Business Day" shall mean each Monday, Tuesday,
Wednesday, Thursday and Friday which is not a day on which banking
institutions in New York are generally authorized or obligated by law or
executive order to close.
(iii) It is understood and agreed that the closing of the sale of the
Securities hereunder is conditioned upon the concurrent closing, or the
closing prior to the Closing Time hereunder, of the sale of the Company's
Class A Common Stock (the "Equity Offering") pursuant to the Underwriting
Agreement (U.S. Version) and the Underwriting Agreement (International
Version) each among the Company and the Underwriters named therein and each
of even date herewith (together the "Equity Underwriting Agreements").
SECTION 3. COVENANTS.
(a) COVENANTS OF THE COMPANY. The Company covenants with each
Underwriter as follows:
(i) Preparation of Prospectus; Notices. To prepare the Prospectus
in a form approved by the Underwriters and to file such Prospectus, properly
completed, and any supplement thereto, pursuant to Rule 424(b) under the 1933
Act not later than the Commission's close of business on the second business
day following the execution and delivery of this Agreement, or, if
applicable, such earlier time as may be required by Rule 430A(a)(3) under the
1933 Act, and to provide evidence satisfactory to the Underwriters of such
timely filing; to use its best efforts to cause the Registration Statement,
if not effective at the time of execution of this Agreement, to become
effective; prior to termination of the offering of the Securities, to make or
file no further amendment or any supplement to the Registration Statement or
Prospectus which shall be disapproved by the Underwriters promptly after
reasonable notice thereof; to advise the Underwriters, promptly after it
receives notice thereof, of the time when the Registration Statement or any
amendment thereto has been filed or becomes effective or the Prospectus or
any supplement thereto or any amended Prospectus has been filed and to
furnish the Underwriters with copies thereof; to advise the Underwriters,
promptly after it receives notice thereof, of the issuance by the Commission
of any stop order or of any order preventing or suspending the use of any
Preliminary Prospectus or Prospectus, of the suspension of the qualification
of the Securities for offering or sale in any jurisdiction, of the initiation
or threatening of any proceeding for any such purpose, or of any request by
the Commission for the amending or supplementing of the Registration
Statement or Prospectus or for additional information; and, in the event of
the issuance of any stop order or of any order preventing or suspending the
use of any Preliminary Prospectus or Prospectus or suspending any such
qualification, promptly to use its best efforts to obtain the withdrawal of
such order.
(ii) Qualifications of the Securities under State Securities Laws.
Promptly from time to time to take such action as the Underwriters may
reasonably request to qualify the Securities for offering and sale under the
securities laws of such jurisdictions as they may request and to comply with
such laws so as to permit the continuance of sales and dealings therein in
such jurisdictions for as long as may be necessary to complete the
distribution of the Securities, provided that in connection therewith the
Company shall not be required to qualify as a foreign corporation or to file
a general consent to service of process in any jurisdiction.
(iii) Copies of and Amendments to Prospectus and Supplements. Prior to
12:00 noon on the New York Business Day next succeeding the date of this
Agreement and from time to time, to furnish the
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Underwriters with copies of the Prospectus in New York City in such
quantities as the Underwriters may reasonably request, and, if the delivery
of a Prospectus is required at any time prior to the expiration of nine
months after the time of issue of the Prospectus in connection with the
offering or sale of the Securities and if at such time any event shall have
occurred as a result of which the Prospectus as then amended or supplemented
would include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made when such Prospectus is
delivered, not misleading, or, if for any other reason it shall be necessary
during such period to amend or supplement the Prospectus in order to comply
with the 1933 Act, to notify the Underwriters and upon their request to
prepare and furnish without charge to each Underwriter and to any dealer in
securities as many copies as the Underwriters may from time to time
reasonably request of an amended Prospectus or a supplement to the Prospectus
which will correct such statement or omission or effect such compliance, and
in case any Underwriter is required to deliver a Prospectus in connection
with sales of any of the Securities at any time nine months or more after the
time of issue of the Prospectus, upon the Underwriters' request but at the
expense of such Underwriter, to prepare and deliver to such Underwriter as
many copies as the Underwriters may request of an amended or supplemented
Prospectus complying with Section 10(a)(3) of the 1933 Act. The Company will
advise the Underwriters promptly of any proposal to amend or supplement the
Prospectus and will not effect such amendment or supplement without the
consent of the Underwriters. Neither the consent of the Underwriters, nor
the Underwriter's delivery of any such amendment or supplement, shall
constitute a waiver of any of the conditions set forth in Section 5 hereof.
(iv) Earning Statement. To make generally available to its
securityholders as soon as practicable, but in any event not later than the
30th day following the end of the fiscal quarter first occurring after the
first anniversary of the effective date of the Registration Statement (as
defined in Rule 158(c) under the 1933 Act), an earning statement of the
Company and its subsidiaries (which need not be audited) complying with
Section 11(a) of the 1933 Act and the rules and regulations thereunder
(including, at the option of the Company, Rule 158).
(v) Lock-Up. During the period beginning from the date hereof and
continuing to and including the date 180 days after the date of the
Prospectus, not to offer, sell, contract to sell or otherwise dispose of,
directly or indirectly, or announce an offering of, except as provided
hereunder any debt securities of the Company in an offering to the public (or
in a private offering where holders of the debt securities are granted rights
to have such debt securities registered under the Securities Act, or to
exchange such debt securities for other debt securities that are so
registered) without the prior written consent of Salomon Brothers.
(vi) Investment Company. Not to be or become, at any time prior
to the expiration of three years after the Closing Time, an open-end
investment company, unit investment trust, closed-end investment company or
face-amount certificate company that is or is required to be registered under
Section 8 of the 1940 Act.
(vii) Information to the Securityholders. To furnish to holders
of the Securities as soon as practicable after the end of each fiscal year an
annual report (including a balance sheet and statements of income,
shareholders' equity and cash flows of the Company and its consolidated
subsidiaries certified by independent public accountants) and, as soon as
practicable after the end of each of the first three quarters of each fiscal
year (beginning with the fiscal quarter ending after the effective date of
the Registration Statement), consolidated summary financial information of
the Company and its subsidiaries for such quarter in reasonable detail.
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(viii) Information to the Underwriters. During a period of five
years from the effective date of the Registration Statement, to furnish to
the Underwriters copies of all reports or other communications (financial or
other) furnished to shareholders, and to deliver to the Underwriters (i) as
soon as they are available, copies of any reports and financial statements
furnished to or filed with the Commission or any national securities exchange
on which any class of securities of the Company is listed; and (ii) such
additional information concerning the business and financial condition of the
Company as the Underwriters may from time to time reasonably request (such
financial statements to be on a consolidated basis to the extent the accounts
of the Company and its subsidiaries are consolidated in reports furnished to
its stockholders generally or to the Commission).
(ix) Use of Proceeds. To use the net proceeds received by it from
the sale of the Securities pursuant to this Agreement in the manner specified
in the Prospectus under "Use of Proceeds".
(x) Rule 462(b) Registration Statement. If the Company elects to
rely upon Rule 462(b), to file a Rule 462(b) Registration Statement with the
Commission in compliance with Rule 462(b) by 10:00 P.M., Washington, D.C.
time, on the date of this Agreement, and at the time of filing to either pay
to the Commission the filing fee for the Rule 462(b) Registration Statement
or give irrevocable instructions for the payment of such fee pursuant to Rule
111(b) under the 1933 Act.
SECTION 4. PAYMENT OF EXPENSES.
(a) EXPENSES. The Company covenants and agrees with the several
Underwriters that the Company will pay or cause to be paid the following: (i)
the fees, disbursements and expenses of the Comp any's counsel and
accountants in connection with the registration of the Securities under the
1933 Act and all other expenses in connection with the preparation, printing
and filing of the Registration Statement, any Preliminary Prospectus and the
Prospectus and amendments and supplements thereto and the mailing and
delivering of copies thereof to the Underwriters and dealers; (ii) the
cost of printing or reproducing any Agreement among Underwriters, this
Agreement, the Selling Agreement, the Indenture, the Blue Sky Memorandum,
closing documents (including any compilations thereof) and any other
documents in connection with the offering, purchase, sale and delivery of the
Securities; (iii) al l expenses in connection with the qualification of the
Securities for offering and sale under state securities laws as provided in
Section 3(b) hereof, including the fees and disbursements of counsel for the
Underwriters in connection with such qua lification and in connection with
the Blue Sky survey, (iv) any fees charged by securities rating services for
rating the Securities, (v) the filing fees incident to, and the fees and
disbursements of counsel for the Underwriters in connection with, securing
any required review by the National Association of Securities Dealers, Inc.
of the terms of the sale of the Securities; (vi) the cost of preparing the
Securities; (vii) the cost and charges of any transfer agent or registrar and
of DTC; (viii) the fees and expenses of the Trustee and any agent of the
Trustee and the fees and disbursements of counsel for the Trustee in
connection with the Indenture and the Securities, and (ix) all other costs
and expenses incident to the performance of its obligations hereunder which
are not otherwise specifically provided for in this Section. It is
understood, however, that, except as provided in this Section, and Sections
6, 7 and 10(d) hereof, the Underwriters will pay all of their own costs and
expenses, including the fees of their counsel, transfer taxes on resale of
any of the Securities by them, and any advertising expenses connected
with any offers they may make.
(b) TERMINATION OF AGREEMENT. If this Agreement is terminated by
the Underwriters in accordance with the provisions of Section 5 or Section
9(a)(i) hereof, the Company shall reimburse the
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Underwriters for all of their out-of-pocket expenses, including the
reasonable fees and disbursements of counsel for the Underwriters.
SECTION 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The obligations of
the several Underwriters hereunder, as to the Securities to be delivered at
the Closing Time, are subject to the accuracy, at and as of the Closing Time,
of the representations and warranties of the Company contained in Section 1
hereof or in certificates of any officer of the Company or any of its
subsidiaries delivered pursuant to the provisions hereof, to the performance
by each of the Company of its covenants and other obligations hereunder, and
to the following further conditions:
(a) FILING OF PROSPECTUS AND EFFECTIVENESS OF REGISTRATION STATEMENT.
If the Registration Statement has not become effective prior to execution of
this Agreement, unless the Underwriters agree in writing to a later time, the
Registration Statement shall have become effective not later than (i) 6:00
p.m. on the date of determination of the public offering price, if such
determination occurred at or prior to 3:00 p.m. on such date or (ii) 9:30
a.m. on the business day following the day on which the public offering price
was determined, if such determination occurred after 3:00 p.m. on such date;
if filing is required pursuant to Rule 424(b), the Prospectus shall have been
filed with the Commission pursuant to such Rule within the applicab le time
period prescribed for such filing by the rules and regulations under the 1933
Act and in accordance with Section 3(a) her eof; no stop order suspending the
effectiveness of the Registration Statement or any part thereof shall have
been issued and no proceeding for that purpose shall have been initiated or
threatened by the Commission; and all requests for additional information on
the part of the Commission shall have been complied with to the Underwriters'
reasonable satisfaction.
(b) OPINION OF COUNSEL FOR COMPANY. At the Closing Time, the
Underwriters shall have received the favorable opinions, dated as of the
Closing Time, of ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, counsel for the Company, of ▇.
▇▇▇▇▇ ▇▇▇▇▇▇, Esq., Vice President, General Counsel and Secretary of the
Company, and of ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, special Washington counsel to the
Company, in form and substance satisfactory to counsel for the Underwriters,
to the effect set forth in Exhibits A-1, A-2 and A-3 hereto, respectively,
and to such further effect as counsel to the Underwriters may reasonably
request.
(c) OPINION OF COUNSEL FOR UNDERWRITERS. At the Closing Time, the
Underwriters shall have received the favorable opinion, dated as of the
Closing Time, of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Underwriters, with
respect to the incorporation of the Company, the Indenture, the validity of
the Securities being delivere d at the Closing Time, the Registration
Statement, the Prospectus and such other related matters as the Underwriters
may reasonably request. In giving such opinion such counsel may rely, as to
all matters governed by the laws of jurisdictions other than the law of the
State of New York and the federal law of the United States, upon the opinions
of counsel satisfactory to the Underwriters. 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
its subsidiaries and certificates of public officials.
(d) OFFICERS' CERTIFICATE. At such Closing Time, there shall not have
been, since the date hereof or since the date of the most recent financial
statements included in the Prospectus (exclusive of any supplement thereto),
any material adverse change in the condition, financial or otherwise, or in
the earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising from
transactions in the ordinary course of business except as set forth in the
Prospectus (exclusive of any suppleme nt thereto), and the Underwriters shall
have received certificates of the Chairman of the Board, the President or a
Vice President of the Company and of the chief financial or
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chief accounting officer of the Company, satisfactory to the Underwriters, to
the effect that, at and as of such Closing Time, (i) they have carefully
examined the Registration Statement, the Preliminary Prospectus, the
Prospectus and any supplements thereto and this Agreement, (ii) there has
been no such material adverse change, (iii) the representations and
warranties of the Company in Section 1 hereof are true and correct in all
material respects on and as of the Closing Time with the same force and
effect as though expressly made at and as of such Closing Time, (iv) the
Company has complied with all agreements and satisfied all conditions on its
part to be performed or satisfied at or prior to such Closing Time, and (v)
no stop order suspending the effectiveness of the Registration Statement has
been issued and no proceedings for that purpose have been instituted or, to
the Company's knowledge, threatened.
(e) ACCOUNTANT'S COMFORT LETTER. On the date of the Prospect us at a
time prior to the execution of this Agreement, and at 10:00 a.m. on the
effective date of any post-effective amendment to the Registration Statement
filed subsequent to the date of this Agreement, the Underwriters shall have
received from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP a letter or letters dated the respective
dates of delivery thereof, in form and substance satisfactory to the Unde
rwriters, containing statements and information of the type ordinarily
included in accountants' "comfort letters" to the Underwriters with respect
to the financial statements and certain financial information contained in
the Prospectus.
(f) BRING-DOWN COMFORT LETTER. At the Closing Time, the Underwriters
shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP a letter, dated as of the
Closing Time, to the effect that they reaffirm the statements made in the
letter furnished pursuant to subsection (e) of this Section 5, except that
the specified date referred to shall be a date not more than three business
days prior to such Closing Time.
(g) NO MATERIAL ADVERSE CHANGE IN BUSINESS. Since the respective dates
as of which information is given in the Prospect us, except as otherwise
stated therein, (1) there has been no Material Adverse Effect, whether or
not arising in the ordinary course of business, (2) there have been no
transactions entered into by the Company or any of its subsidiaries, other
than those in the ordinary course of business, which are material with res
pect to the Company and its subsidiaries considered as one enterprise (3)
there has been no dividend or distribution of any kind declared, paid or
made by the Company on any class of its capital stock and (4) there has been
no change or decrease specified in the letters referred to in Section 5(e)
and 5(f) above, t he effect of which, in any case referred to in clauses (1)
through (4) above, is, in the sole judgment of the Underwriters, so material
and adverse as to make it impractical or inadv isable to proceed with the
offering or delivery of the Securities as contemplated by the Registration
Statement (exclusive of any amendment thereof) and the Prospectus (exclusive
of any supplement thereto).
(h) MAINTENANCE OF RATING. On or after the date of this Agreement,
there shall not have occurred a downgrading in the rating assigned to the
Company's debt securities or preferred stock by any nationally recognized
securities rating agency, and no such securities rating agency 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 or
preferred stock.
(i) DELIVERY OF PROSPECTUSES. The Company shall have complied with the
provisions of Section 3(a)(iii) hereof with respect to the furnishing of
Prospectuses on the New York Business Day next succeeding the date of this
Agreement.
(j) ADEQUATE DISCLOSURE OF LITIGATION. There is no litigation or
governmental or other action, suit, claim, proceeding or investigation before
any court or any public, regulatory or governmental agency
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or body, pending or, to the best of the Company's knowledge, threatened
against the Company or any of its subsidiaries or any of their respective
officers (in their capacity as officers of the Company or such subsidiaries)
or any of the properties, assets, business or rights of the Company or such
subsidiaries which is of a character required to be disclosed in the
Registration Statement and Prospectus which is not disclosed therein.
(k) ADDITIONAL DOCUMENTS. At the Closing Time: (i) the Company shall
have furnished to the Underwriters such further information, certificates and
documents as the Underwriters may reasonably request; (ii) counsel for the
Underwriters shall have been furnished with such documents and opinions as
they may require for the purpose of enabling them to pass upon the issuance
and sale of the Securities as herein contemplated, or in order to evidence
the accuracy of any of the representations or warranties, or the fulfillment
of any of the conditions, herein contained; and (iii) all proceedings taken
by the Company in connection with the issuance and sale of the Securities as
herein contemplated shall be satisfactory in form and substance to the
Underwriters and counsel for the Underwriters.
(l) TERMINATION OF AGREEMENT. If any condition specified in this
Section shall not have been fulfilled when and as required to be fulfilled,
this Agreement may be terminated by the Underwriters by 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 and except that Sections 1, 6 and 7 shall survive any such
termination and remain in full force and effect.
(m) EQUITY OFFERING. The conditions to the Underwriters' obligations
set forth in Section 5 of the Equity Underwriting Agreements shall have been
satisfied and the closing for the Equity Offering shall have occurred
pursuant to the Equity Underwriting Agreements concurrently with, or prior
to, the Closing Time hereunder.
SECTION 6. INDEMNIFICATION.
(a) INDEMNIFICATION OF UNDERWRITERS. The Company agrees to indemnify
and hold harmless each Underwriter, the directors, officers, employees and
agents of each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act against any and all losses, liabilities (joint or several),
claims, damages and expenses whatsoever, to which they or any of them may
become subject under the 1933 Act, the 1934 Act or other Federal or state
statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or acti ons in respect thereof) arise
out of or are based upon any untr ue statement or alleged untrue statement of
a material fact contained in the registration statement for the registration
of the Securities as originally filed or in any amendment thereof, or in any
Preliminary Prospectus or Prospectus (or any amendmen t or supplement
thereto), or arise out of or are based upon the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary in
order to make the statements therein not misleading, and agrees to reimburse
each such indemnified party, as incurred, for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; PROVIDED, HOWEVER, that the
Company will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished
to the Company by or on behalf of any Underwriter through the Underwriters
specifically for inclusion therein. This indemnity agreement will be in
addition to any liability which the Company may otherwise have.
-14-
(b) INDEMNIFICATION OF COMPANY, DIRECTORS AND OFFICERS. Each
Underwriter severally agrees to indemnify and hold harmless the Company, each
of its directors, each of its officers who sign the Registration Statement
(including any person who, with his or her consent, is named in the
Registration Statement as about to become a director of the Company) and each
person, if any, who controls the Company within the meaning of Section 15 of
the 1933 Act or Section 20 of the 1934 Act against any and all losses,
liabilities (joint or several), claims, damages and expenses described in the
indemnity contained in subsection (a) of this Section, as incurred, but only
with respect to written information furnished to the Company by such
Underwriter through Salomon Brothers specifically for inclusion in the
documents referred to in the foregoing indemnity. The Company acknowledges
that the statements set forth in the last paragraph of the cover page
regarding delivery of the Securities, the stabilization legend in block
capital letters on the reverse of the cover page and, under the heading
"Underwriting", (i) the sentences related to concessions and reallowances and
(ii) the paragraph related to stabiliz ation in the Preliminary Prospectus,
the Registration Statement or the Prospectus constitute the only information
furnished in writing by or on behalf of the several Underwriters for
inclusion in such Preliminary Prospectus, Registration Statement or
Prospectus.
(c) ACTIONS AGAINST PARTIES; NOTIFICATION. Each indemnified party
shall give written notice as promptly as reasonably practicable 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 (i) will not relieve it from liability under paragraph (a) or (b)
above unless and to the extent it did not otherwise learn of such action and
such failure results in the forfeiture by the indemnifying party of
substantial rights and defenses and (ii) will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party other than
the indemnification obligation provided in paragraph (a) or (b) above. The
indemnifying party shall be entitled to appoint counselof the indemnifying
party's choice at the indemnifying party's expense to represent the
indemnified party in any action for which indemnification is sought (in which
case the indemnifying party shall not thereafter be responsible for the fees
and expenses of any separate counsel retained by the indemnified party or
parties except as set forth below); PROVIDED, HOWEVER, that such counsel
shall be satisfactory to the indemnified party. Notwithstanding the
indemnifying party's election to appoint counsel to represent the indemnified
party in an action, the indemnified party shall have the right to employ
separate counsel (including local counsel), and the indemnifying party shall
bear the reasonable fees, costs and expenses of such separate counsel if (i)
the use of counsel chosen by the indemnifying party to represent the
indemnified party would present such counsel with a conflict of interest,
(ii) the actual or potential defendants in, or targets of, any such action
include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, (iii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of the institution of such action or (iv) the indemnifying party
sh all authorize the indemnified party to employ separate counsel at the
expense of the indemnifying party. No indemnifying party shall, without the
prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever in respect of which indemnification or
contribution could be sought under this Section 6 or Section 7 hereof
(whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising
out of such litigation, investigation, proceeding or claim and (ii) does not
include a statement as to or an admission of fault, culpability or a failure
to act by or on behalf of any indemnified party.
-15-
SECTION 7. CONTRIBUTION. If the indemnification provided for in
Section 6 hereof is for any reason unavailable to or insufficient to hold
harmless an indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate amount of such losses, liabilities, claims,
damages and expenses (including legal or other expenses reasonably incurred
in connection with investigating or defending same) incurred by such
indemnified party, as incurred, (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand and the
Underwriters on the other hand from the offering of the Securities pursuant
to this Agreement (provided that in no case shall any Underwriter (except as
may be provided in any agreement among underwriters relating to the offering
of the Securities) be responsible for any amount in excess of the
underwriting discount or commission applicable to the Securities purchased by
such Underwriter hereunder) or (ii) if the allocation provided by clause (i)
is unavailable for any reason, 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 Company on the one hand and of the
Underwriters on the other hand in connection with the statements or omissions
which resulted in such losses, liabilities, claims, damages or expenses, as
well as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the
Underwriters on the other hand in connection with the offering of the
Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the
Securities pursuant to this Agreement (before deducting expenses) received by
the Company and the total underwriting discount received by the Underwriters,
in each case as set forth on the cover page of the Prospectus, bear to the
aggregate initial offering price of the Securities.
The relative fault of the Company on the one hand and the Underwriters
on the other hand shall be determined by reference to, among other things,
whether any such untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriters and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Company and the Underwriters 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 Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of
the equitable considerations referred to above in this Section 7.
Notwithstanding the provisions of this Section 7, no Underwriter shall
be required to contribute any amount in excess of the amount by which the
total price at which the Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages which
such Underwriter has otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, 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 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter,
and each person, if any, who controls the Company within the meaning of
Section 15 of the
-16-
1933 Act or Section 20 of the 1934 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 number
of Securities set forth opposite their respective names in Schedule A hereto
and not joint.
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY. All representations, warranties and agreements contained in this
Agreement, or in certificates of officers of the Company submitted pursuant
hereto, shall remain operative and in full force and effect, regardless of
any investigation made by or on behalf of any Underwriter or controlling
person, or by or on behalf of the Company, and shall survive delivery of the
Securities to the Underwriters.
SECTION 9. TERMINATION OF AGREEMENT.
(a) TERMINATION; GENERAL. This Agreement shall be subject to
termination in the absolute discretion of the Underwriters, by notice given
to the Company prior to delivery of and payment for the Securities, if at any
time prior to such time (i) trading in the Company's Common Stock shall
have been suspended by the Commission or the NASDAQ or trading in securities
generally on the New York Stock Exchange or the NASDAQ shall have been
suspended or limited or minimum prices shall have been established on such
Exchange or NASDAQ, a banking moratorium shall have been declared either by
Federal or New York State authorities or there shall have occurred any
outbreak or escalation of hostilities, declaration by the United States of a
national emergency or war or other calamity or crisis the effect of which on
financial markets is such as to make it, in the sole judgment of the
Underwriters, impractical or inadvisable to proceed with the offering or
delivery of the Securities as contemplated by the Prospectus (exclusive of
any supplement thereto).
(b) LIABILITIES. If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any
other party except as provided in Section 4 hereof, and provided further that
Sections 1, 6 and 7 shall survive such termination and remain in full force
and effect.
SECTION 10. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS. If any one or
more of the Underwriters shall fail to purchase and pay for any of the
Securities agreed to be purchased by such Underwriter or Underwriters
hereunder and such failure to purchase shall constitute a default in the
performance of its or their obligations under this Agreement, the remaining
Underwriters shall be obligated severally to take up and pay for (in the
respective proportions which the amount of Securities set forth opposite
their names in Schedule A hereto bears to the aggregate amount of Securities
set forth opposite the names of all the remaining Underwriters) the
Securities which the defaulting Underwriter or Underwriters agreed but failed
to purchase; PROVIDED, HOWEVER, that in the event that the aggregate amount
of Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase shall exceed 10% of the aggregate amount of Securities set
forth in Schedule A hereto, the remaining Underwriters shall have the right
to purchase all, but shall not be under any obligation to purchase any, of
the Securities, and if such nondefaulting Underwriters do not purchase all of
the Securities, this Agreement will terminate without liability to any
nondefaulting Underwriter or the Company. In the event of a default by any
Underwriter as set forth in this Section 10, the Closing Time shall be
postponed for such period, not exceeding five Business Days, as the
Underwriters shall determine in order that the required changes in the
Registration Statement and the Prospectus or in any other documents or
arrangements may be effected. Nothing contained in this Agreement shall
relieve any defaulting Underwriter of its liability, if any, to the Company
and any nondefaulting Underwriter for damages occasioned by its default
hereunder.
-17-
SECTION 11. RELIANCE; NOTICES. In all dealings hereunder, the
Underwriters shall act on behalf of each of the Underwriters, and the parties
hereto shall be entitled to act and rely upon any statement, request, notice
or agreement on behalf of any Underwriter made or given by the Underwriters
jointly or by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ on their behalf.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex
or facsimile transmission to the Underwriters in care of Salomon Brothers Inc
General Counsel (fax no. (▇▇▇) ▇▇▇-▇▇▇▇) and confirmed to Salomon Brothers
Inc, Seven World Trade Center, New York, New York 10048, Attention: General
Counsel; and if to the Company shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Company set forth in the
Prospectus, Attention: General Counsel; PROVIDED, HOWEVER, that any notice to
an Underwriter pursuant to Section 6(c) hereof shall be delivered or sent by
mail, telex or facsimile transmission to such Underwriter at its address set
forth in its Underwriters' Questionnaire, or telex constituting such
Questionnaire, which address will be supplied to the Company by the
Underwriters upon request. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
SECTION 12. PARTIES. This Agreement shall inure to the benefit of and
be binding upon the Underwriters, the Company and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Underwriters, the Company and their respective successors and the controlling
persons and officers and directors referred to in Sections 6 and 7 and their
heirs and legal Underwriters, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision herein contained. This
Agreement and all conditions and provisions hereof are intended to be for the
sole and exclusive benefit of the Underwriters, the Company and their
respective successors, and said controlling persons and officers and
directors and their heirs and legal Underwriters, and for the benefit of no
other person, firm or corporation. No purchaser of Securities from any
Underwriter shall be deemed to be a successor by reason merely of such
purchase.
SECTION 13. TIME OF THE ESSENCE. Time shall be of the essence of
this Agreement. As used herein, the term "business day" shall mean any day
when the Commission's office in Washington, D.C. is open for business.
SECTION 14. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 15. EFFECT OF HEADINGS. The Section headings herein are for
convenience only and shall not affect the construction hereof.
SECTION 16. COUNTERPARTS. This Agreement may be executed by any one
of more of the parties hereto in any number of counterparts, each of which
shall be deemed to be an original, but all such counterparts shall together
constitute one and the same instrument.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, and
upon the acceptance hereof by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, on behalf of each of the
Underwriters, this letter and such acceptance hereof shall constitute a
binding agreement between each of the Underwriters and the Company. It is
understood that your acceptance of this letter on behalf of each
-18-
of the Underwriters is pursuant to the authority set forth in a form of
Agreement among Underwriters, the form of which shall be submitted to the
Company for examination upon request, but without warranty on your part as to
the authority of the signers thereof.
Very truly Yours,
NEXTLINK Communications, Inc.
By__________________________________
Name: ▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇.
Title: Vice President
CONFIRMED AND ACCEPTED,
as of the date first above written:
Salomon Brothers Inc
▇▇▇▇▇▇▇ Lynch, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
Bear, ▇▇▇▇▇▇▇ & Co. Inc.
Toronto Dominion Securities (USA) Inc.
By: Salomon Brothers Inc
By____________________________________
Name:
Title:
For themselves and on behalf of the
other Underwriters named in Schedule A hereto.
-19-
SCHEDULE A
Aggregate
Principal Amount
of
Notes to be
Underwriter Purchased
----------- ---------------
Salomon Brothers Inc.......................................... $
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated..................................... $
Bear, ▇▇▇▇▇▇▇ & Co. Inc....................................... $
Toronto Dominion Securities (USA)Inc......................... $-----------
Total.................................................... $400,000,000
------------
------------
Sch A-1
Exhibit A-1
FORM OF OPINION OF ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇
TO BE DELIVERED PURSUANT TO SECTION 5(b)
(i) The Company has been duly incorporated and is validly
existing as a corporation under the laws of the State of Washington.
(ii) The Company has power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under the
Underwriting Agreement.
(iii) The Company is duly qualified as a foreign
corporation to transact business and is in good standing in each jurisdiction
in which such qualification is required, whether by reason of the ownership
or leasing of property or the conduct of business, except where the failure
so to qualify or to be in good standing would not result in a Material
Adverse Effect.
(iv) The authorized, issued and outstanding capital stock
of the Company is as set forth in the Prospectus as of the dates indicated
therein; the shares of issued and outstanding capital stock of the Company
have been duly authorized and validly issued and are fully paid and
non-assessable; and none of the outstanding shares of capital stock of the
Company was issued in violation of the preemptive or other similar rights of
any securityholder of the Company.
(v) Each Designated Subsidiary has been duly formed and
is validly existing as a corporation, limited liability company or limited
partnership in good standing, as applicable, under the laws of the
jurisdiction of its formation, and has power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus; all of the issued and outstanding shares, membership interests or
partnership interests of each Designated Subsidiary has been duly authorized
and validly issued, is fully paid and non-assessable and, except as otherwise
set forth in the Prospectus in respect of the minority interests described
therein, is owned by the Company, directly or through subsidiaries, free and
clear of any security interest, mortgage, pledge, lien, encumbrance, claim or
equity.
(vi) The Underwriting Agreement has been duly authorized,
executed and delivered by the Company.
(vii) The Indenture has been duly authorized, executed and
delivered; and, assuming due execution by the Trustee, the Indenture
constitutes a valid and legally binding obligation of the Company enforceable
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 to general
equity principles.
(viii) The Securities have been duly authorized and executed
by the Company and authenticated, issued and delivered in accordance with the
Indenture and constitute valid and legally binding obligations of the Company
entitled to the benefits provided by the Indenture, subject, as to
enforcement, to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles. In rendering the opinion
set forth in this paragraph (viii), as to authentication we have relied
solely on a certificate of the Trustee as to the
A-1-1
authentication of the Securities by a duly authorized representative of the
Trustee and have assumed that the Securities so authenticated have been
delivered to you and paid for by you in accordance with the Underwriting
Agreement. The Securities and the Indenture conform in all material respects
to the descriptions thereof in the Prospectus;
(ix) The information in the Prospectus under the caption
"Description of the Notes", to the extent that it constitutes a summary of
the terms of the Securities, and under the captions "Business Regulatory
Overview" and "Underwriting", to the extent that it constitutes matters of
law, summaries of legal matters, or legal conclusions, has been reviewed by
us and is correct in all material respects.
(x) The statements set forth in the Prospectus under the
caption "Certain United States Federal Income Tax Consequences", insofar as
such statements purport to summarize certain United States federal income and
estate tax consequences of the ownership and dispensation of the Securities
by certain U.S. Holders and non-U.S. Holders (as such terms are defined
therein) of the Securities, provide a fair summary of such consequences
under current law.
(xi) All descriptions in the Prospectus of contracts and
other documents to which the Company or any of its subsidiaries are a party
are accurate in all material respects; to the best of our knowledge, there
are no franchises, contracts, indentures, mortgages, loan agreements, notes,
leases or other instruments that would be required to be described in the
Prospectus that are not described or referred to in the Prospectus other than
those described or referred to therein and the descriptions thereof or
references thereto are correct in all material respects.
(xii) Neither the Company nor any of its subsidiaries is in
violation of its charter or by-laws or other constituting or operative
document or agreement and, to the best of our knowledge, no default by the
Company or any of its subsidiaries exists in the due performance or
observance of any material obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, loan agreement, note, lease
or other agreement or instrument that is described or referred to in the
Prospectus.
(xiii) No filing with, or authorization, approval, consent,
license, order, registration, qualification or decree of, any court or
governmental authority or agency is necessary or required for the performance
by the Company of its obligations under the Underwriting Agreement or the
Indenture, in connection with the offering, issuance or sale of the
Securities hereunder or thereunder or the consummation of the actions
contemplated by the Underwriting Agreement or the Indenture, except such as
have been obtained under the 1933 Act and the Trust Indenture Act, and such
consents, approvals, authorizations, registrations or qualifications as may
be required under state securities or Blue Sky laws in connection with the
purchase and distribution of the Securities by the Underwriters.
(xiv) The issue and sale of the Securities, the execution,
delivery and performance of the Underwriting Agreement, the Indenture and
the Securities and any other agreement or instrument entered into or issued
or to be entered into or issued by the Company in connection with the
transactions contemplated hereby, thereby or in the Prospectus, and the
consummation of the transactions contemplated herein, therein and in the
Prospectus (including the issuance and sale of the Securities by the Company
hereunder), the compliance by the Company with its obligations hereunder and
thereunder have been duly authorized by all necessary action and do not and
will not, whether with or without the giving of notice or passage of time or
both, conflict with or constitute a breach of, or default or a Repayment
Event under, or
A-1-2
result in the creation or imposition of any lien, charge or encumbrance upon
any property or assets of the Company or any of its subsidiaries, pursuant to
any contract, indenture, mortgage, deed of trust, loan or credit agreement,
note, lease, or any other agreement or instrument known to such counsel to
which the Company or any of its subsidiaries is a party or by which it or any
of them may be bound, or to which any of the property or assets of the
Company or any subsidiaries thereof is subject, except for such conflicts,
breaches or defaults or liens, charges or encumbrances that, singly or in the
aggregate, would not result in a Material Adverse Effect, nor will such
action result in any violation of the provisions of the constituting or
operative document or agreement of the Company or any of its subsidiaries or
any applicable law, statute, rule, regulation, judgment, order, writ or
decree of any government, government instrumentality or court, domestic or
foreign, having jurisdiction over the Company or any of its subsidiaries or
any of their assets or properties.
(xv) The Company is not, and upon the issuance and sale of the
Securities and the application of the net proceeds therefrom will not be, an
"investment company" or an entity "controlled" by an "investment company," as
such terms are defined in the 1940 Act.
(xvi) The Registration Statement and the Prospectus and any
further amendments and supplements thereto made by the Company prior to each
Closing Time (other than the financial statements and related schedules
therein, as to which such counsel need express no opinion) comply as to form
in all material respects with the requirements of the 1933 Act and the rules
and regulations thereunder; although they do not assume any responsibility
for the accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus, except for those referred to in
subsection (ix) of this opinion, they have no reason to believe that, as of
its effective date, the Registration Statement or any further amendment
thereto made by the Company prior to such Closing Time (other than the
financial statements and related schedules therein, as to which such counsel
need express no opinion) contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary
to make the statements therein not misleading or that, as if its date, the
Prospectus or any further amendment or supplement thereto made by the Company
prior to such Closing Time (other than the financial statements and related
schedules therein, as to which such counsel need express no opinion)
contained an untrue statement of a material fact or omitted to state a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading or that, as of such
Closing Time, either the Registration Statement or the Prospectus or any
further amendment or supplement thereto made by the Company prior to such
Closing Time (other than the financial statements and related schedules
therein, as to which such counsel need express no opinion) contains an untrue
statement of a material fact or omits to state a material fact necessary to
make the statements therein, in the light of the circumstances under which
they were made, not misleading; and they do not know of any amendment to the
Registration Statement required to be filed or of any contracts or other
documents of a character required to be filed as an exhibit to the
Registration Statement or required to be described in the Registration
Statement or the Prospectus which are not filed or described as required.
In rendering such opinion, such counsel (A) may rely (i) as to matters
involving the application of the laws of the State of Washington, upon the
opinion of ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, special Washington counsel to the
Company (which opinion shall be dated and furnished to the Underwriters at
the Closing Time, shall be satisfactory in form and substance to counsel for
the Underwriters and shall expressly state that the Underwriters may rely on
such opinion as if it were addressed to them), provided that ▇▇▇▇▇▇▇ ▇▇▇▇ &
▇▇▇▇▇▇▇▇▇ shall state in their opinion that they believe that they and the
Underwriters are justified in relying upon such opinion, and (ii) as to
matters of fact (but not as to legal conclusions), to the extent they deem
proper, on certificates of responsible officers of the Company and public
officials and (B) may state that they
A-1-3
express no opinion as to the laws of any jurisdiction outside the United
States. Such opinion shall not state that it is to be governed or qualified
by, or that it is otherwise subject to, any treatise, written policy or other
document relating to legal opinions, including, without limitation, the Legal
Opinion Accord of the ABA Section of Business Law (1991).
A-1-4
Exhibit A-2
FORM OF OPINION OF ▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ESQ.
TO BE DELIVERED PURSUANT TO SECTION 5(b)
(i) There is not pending or, to the best of my knowledge, threatened
any action, suit, proceeding, inquiry or investigation, to which the Company
or any subsidiary thereof is a party, or to which the property of the Company
or any subsidiary thereof is subject, before or brought by any court or
governmental agency or body, which could reasonably be expected to result in
a Material Adverse Effect, or which might reasonably be expected to
materially and adversely affect the properties or assets thereof or the
consummation of the transactions contemplated in the Underwriting Agreement,
the Indenture or the Securities or the performance by the Company of its
obligations thereunder or the transactions contemplated by the Prospectus.
(ii) To the best of my knowledge and except as set forth in or
contemplated by the Prospectus with respect to systems under development, (a)
each of the Company and its Designated Subsidiaries has all Authorizations of
and from, and has made all declarations and filings with, all Federal, state,
local and other governmental authorities, all self-regulatory organizations
and all courts and other tribunals, which are necessary or appropriate for
the Company and its Designated Subsidiaries to own, lease, license, use and
construct its properties and assets and to conduct its business in the manner
described in the Prospectus, except to the extent that the failure to obtain
any such Authorizations or make any such declaration or filing would not,
singly or in the aggregate, reasonably be expected to result in a Material
Adverse Effect, (b) all such Authorizations are in full force and effect with
respect to the Company and its Designated Subsidiaries, (c) no event has
occurred that permits, or after notice or lapse of time could permit, the
revocation, termination or modification of any such Authorization and (d) the
Company and its Designated Subsidiaries are in compliance in all material
respects with the terms and conditions of all such Authorizations and with
the rules and regulations of the regulatory authorities and governing bodies
having jurisdiction with respect thereto.
(iii) To the best of my knowledge, neither the execution and
delivery of the Underwriting Agreement, the Indenture or the Securities, nor
the consummation by the Company of the transactions contemplated hereby or
thereby will cause any suspension, revocation, impairment, forfeiture,
nonrenewal or termination of any Authorization.
In rendering such opinion, such counsel (A) may rely (i) as to matters
involving the application of the laws of the State of Washington, upon the
opinion of ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, special Washington counsel to the
Company (which opinion shall be dated and furnished to the Underwriters at
the Closing Time, shall be satisfactory in form and substance to counsel for
the Underwriters and shall expressly state that the Underwriters may rely on
such opinion as if it were addressed to them), provided that ▇▇. ▇▇▇▇▇▇ shall
state in his opinion that he believes that he and the Underwriters are
justified in relying upon such opinion, and (ii) as to matters of fact (but
not as to legal conclusions), to the extent he deems proper, on certificates
of responsible officers of the Company and public officials and (B) may state
that he expresses no opinion as to the laws of any jurisdiction outside the
United States. Such opinion shall not state that it is to be governed or
qualified by, or that it is otherwise subject to, any treatise, written
policy or other document relating to legal opinions, including, without
limitation, the Legal Opinion Accord of the ABA Section of Business Law
(1991).
A-2-1
Exhibit A-3
FORM OF OPINION OF ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP
TO BE DELIVERED PURSUANT TO SECTION 5(b)
(i) The Company has been duly incorporated and is validly
existing as a corporation under the laws of the State of Washington.
(ii) Each of the Indenture and the Underwriting Agreement has
been duly authorized, executed and delivered by the Company under the laws of
the State of Washington.
(iii) The Securities have been duly authorized and executed by
the Company and issued and delivered in accordance with the Indenture by the
Company.
(iv) The issue and sale of the Securities, the execution,
delivery and performance of the Underwriting Agreement, the Indenture, the
Securities and any other agreement or instrument entered into or issued or to
be entered into or issued by the Company in connection with the transactions
contemplated thereby or in the Prospectus, and the consummation of the
transactions contemplated therein and in the Prospectus (including the
issuance and sale of the Securities by the Company under the Underwriting
Agreement and the use of the proceeds from the sale of the Securities as
described in the Prospectus under the caption "Use of Proceeds"), the
compliance by the Company with its obligations under the Underwriting
Agreement have been duly authorized by all necessary action and do not and
will not, whether with or without the giving of notice or passage of time or
both, conflict with, contravene or constitute a breach of the Company's
Articles of Incorporation or By-Laws.
(v) No filing with, or authorization, approval, consent,
license, order, registration, qualification or decree of, any court or
governmental authority or agency of the State of Washington is necessary or
required for the performance by the Company of its obligations under the
Underwriting Agreement or the Indenture, in connection with the offering,
issuance or sale of the Securities thereunder or the consummation of the
actions contemplated by the Underwriting Agreement or the Indenture, except
such consents, approvals, authorizations, registrations or qualifications as
may be required under federal law or securities or Blue Sky laws of the State
of Washington in connection with the purchase and distribution of the
Securities by the Underwriters.
In rendering such opinion, such counsel (A) may rely as to matters
of fact (but not as to legal conclusions), to the extent they deem proper, on
certificates of responsible officers of the Company and public officials and
(B) may state that they express no opinion as to the laws of any jurisdiction
other than the State of Washington. Such opinion shall not state that it is
to be governed or qualified by, or that it is otherwise subject to, any
treatise, written policy or other document relating to legal opinions,
including, without limitation, the Legal Opinion Accord of the ABA Section of
Business Law (1991).
A-3-1