▇▇▇ COMMUNICATIONS, INC.
(a Delaware corporation)
$800,000,000 7 3/4% Notes due 2010
$200,000,000 Floating Rate MOPPRSSM/CHEERSSM
PURCHASE AGREEMENT
November 2, 2000
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
"MandatOry Par Put Remarketed SecuritiesSM" and "MOPPRSSM are service marks
owned by ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., Inc.
"CHase ExtendiblE Remarketable SecuritiesSM" and "MOPPRSSM" are service marks of
The Chase Manhattan Corporation.
NYLIB1/732150/6
iii
Table of Contents
SECTION 1. Representations and Warranties.....................................2
(a)Representations and Warranties by the Company......................2
(i) Compliance with Registration Requirements.................3
(ii) Incorporated Documents....................................3
(iii) Independent Accountants...................................4
(iv) Financial Statements......................................4
(v) No Material Adverse Change in Business....................4
(vi) Good Standing of the Company..............................5
(vii) Good Standing of Subsidiaries.............................5
(viii) Capitalization............................................5
(ix) Authorization of Agreement................................5
(x) Authorization of Remarketing Agreements...................5
(xi) Authorization of Remarketing Reset Agreement..............6
(xii) Authorization of the Indenture............................6
(xiii) Authorization of the Interest Calculation Agreement.......6
(xiv) Authorization of Securities...............................6
(xv) Description of the Securities, the Remarketing Agreements,
the Remarketing Reset Agreement, the Indenture and the
Interest Calculation Agreement............................6
(xvi) Absence of Defaults and Conflicts.........................7
(xvii) Absence of Labor Dispute..................................7
(xviii) Absence of Proceedings....................................8
(xix) Accuracy of Exhibits......................................8
(xx) Possession of Intellectual Property.......................8
(xxi) Absence of Further Requirements...........................8
(xxii) Possession of Licenses and Permits........................8
(xxiii) Title to Property.........................................9
(xxiv) Investment Company Act....................................9
(xxv) Environmental Laws........................................9
(b)Officer's Certificates............................................10
SECTION 2. Sale and Delivery to Underwriters; Closing........................10
(a)Securities........................................................10
(b)Payment...........................................................10
(c)Denominations; Registration.......................................10
SECTION 3. Covenants of the Company..........................................11
(a)Compliance with Securities Regulations and Commission Requests....11
(b)Filing of Amendments..............................................11
(c)Delivery of Registration Statements...............................11
(d)Delivery of Prospectus............................................11
(e)Continued Compliance with Securities Laws.........................12
(f)Blue Sky Qualifications...........................................12
(g)Rule 158..........................................................12
i
(h)Use of Proceeds...................................................13
(i)Restriction on Sale of Securities.................................13
(j)Reporting Requirements............................................13
SECTION 4. Payment of Expenses...............................................13
(a)Expenses. .......................................................13
(b)Termination of Agreement..........................................13
SECTION 5. Conditions of Underwriters' Obligations...........................13
(a)Effectiveness of Registration Statement...........................14
(b)Opinion of Counsel for Company....................................14
(c)Opinion of Counsel for Underwriters...............................14
(d)Officers' Certificate.............................................14
(e)Accountant's Comfort Letters......................................14
(f)Bring-down Comfort Letter.........................................15
(g)Maintenance of Rating.............................................15
(h)Additional Documents..............................................15
(i)Termination of Agreement..........................................15
SECTION 6. Indemnification...................................................15
(a)Indemnification of Underwriters...................................15
(b)Indemnification of Company, Directors and Officers................15
(c)Actions against Parties; Notification.............................17
(d)Settlement without Consent if Failure to Reimburse................17
SECTION 7. Contribution......................................................18
SECTION 8. Representations, Warranties and Agreements to Survive Delivery....19
SECTION 9. Termination of Agreement..........................................19
(a)Termination; General..............................................19
(b)Liabilities.......................................................19
SECTION 10. Default by One of the Underwriters................................20
SECTION 11. Notices...........................................................20
SECTION 12. Parties...........................................................20
SECTION 13. Governing Law and Time............................................21
SECTION 14. Effect of Headings. ..............................................21
SECTION 15. Counterparts......................................................21
ii
SCHEDULES
Schedule A - List of Underwriters...............................Sch A-1
Schedule B-2 - Pricing Information--Notes.....................Sch B-1-1
Schedule B-2 - Pricing Information-MOPPRS/CHEERS..............Sch B-2-1
Schedule C - List of Subsidiaries...............................Sch C-1
EXHIBITS
Exhibit A - Form of Opinion of Company's Counsel....................A-1
iii
COX COMMUNICATIONS, INC.
(a Delaware corporation)
$800,000,000 7 3/4% Notes due 2010
$200,000,000 Floating Rate MOPPRSS M/CHEERS*
PURCHASE AGREEMENT
November 2, 2000
Chase Securities Inc.
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
Bank of America Securities LLC
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
ABN AMRO Incorporated
BNY Capital Markets, Inc.
SunTrust Equitable Securities Corporation
Wachovia Securities, Inc.
The ▇▇▇▇▇▇▇▇ Capital Group, L.P.
c/o Chase Securities Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
and
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
North Tower
2 World Financial Center
New York, New York 10281-1209
Ladies and Gentlemen:
Cox Communications, Inc., a Delaware corporation (the "Company"),
confirms its agreement with Chase Securities Inc. ("Chase"), ▇▇▇▇▇▇▇ ▇▇▇▇▇ &
Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated ("▇▇▇▇▇▇▇ ▇▇▇▇▇"), Bank
of America Securities LLC, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., ABN AMRO Incorporated, BNY
Capital Markets, Inc., SunTrust Equitable Securities Corporation, Wachovia
Securities, Inc. and The ▇▇▇▇▇▇▇▇ Capital Group, L.P. (collectively, the
"Underwriters," which term shall also include any underwriter substituted as
hereinafter provided in Section 10 hereof) for whom Chase and ▇▇▇▇▇▇▇ ▇▇▇▇▇ are
acting as representatives (in such capacity, the "Representatives"), with
respect to the issue and sale by the Company and the purchase by the
Underwriters, acting severally and not jointly, of the respective principal
amounts set forth in Schedule A hereto opposite the name of such Underwriter of
(i) $800,000,000 aggregate principal amount of the Company's 7 3/4% Notes due
2010 (the "Notes") and (ii) $200,000,000 aggregate principal amount of the
Company's Floating Rate MOPPRS/CHEERS (the "MOPPRS/CHEERS" and, together with
the Notes, the "Securities"). The Securities are to be issued pursuant to an
indenture, dated as of June 27, 1995 (the "Indenture"), between the Company and
The Bank of New York, as trustee (the "Trustee").
The Company will enter into a Remarketing Agreement, dated the date of
the Closing Time (as defined herein), with ▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "▇▇▇▇▇▇▇ ▇▇▇▇▇
Remarketing Agreement"), pursuant to which ▇▇▇▇▇▇▇ ▇▇▇▇▇ will act as remarketing
dealer (in such capacity, a "Remarketing Dealer") with respect to the
remarketing of a portion of the MOPPRS/CHEERS as provided therein.
The Company will also enter into a Remarketing Agreement, dated the
date of the Closing Time, with Chase (the "Chase Remarketing Agreement" and
together with the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Remarketing Agreement, the "Remarketing
Agreements"), pursuant to which ▇▇▇▇▇▇▇ ▇▇▇▇▇ will act as a Remarketing Dealer
with respect to the remarketing of a portion of the MOPPRS/CHEERS as provided
therein.
The Company will enter into a Remarketing Reset Agreement, dated the
date of the Closing Time, with ▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Remarketing Reset
Agreement"), pursuant to which ▇▇▇▇▇▇▇ ▇▇▇▇▇ will act as remarketing reset agent
(in such capacity, the "Remarketing Reset Agent") with respect to the
remarketing of the MOPPRS/CHEERS as provided therein.
In connection with each remarketing of the MOPPRS/CHEERS pursuant to
the Remarketing Reset Agreement, the Company will enter into a Remarketing
Agency Agreement with the Remarketing Reset Agent (the "Remarketing Agency
Agreement").
In addition, with respect to the MOPPRS/CHEERS, the Company will enter
into a Calculation Agency Agreement (the "Calculation Agency Agreement"), dated
the date of the Closing Time, with The Bank of New York, as calculation agent
(the "Calculation Agent").
The Remarketing Agreements, the Remarketing Reset Agreement, the
Remarketing Agency Agreement and the Calculation Agency Agreement are
collectively referred to as the "Remarketing Related Agreements."
2
The Company understands that the Underwriters propose to make a public
offering of the Securities as soon as the Underwriters deem advisable after this
Agreement has been executed and delivered.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (Nos. 333-82575, ▇▇▇-▇▇▇▇▇-▇▇
and 333-82575-02) and pre-effective amendment nos. 1, 2 and 3 thereto for the
registration of certain securities, including the Securities, under the
Securities Act of 1933, as amended (the "1933 Act"), including the related
prospectus, and the offering thereof from time to time in accordance with Rule
415 of the rules and regulations of the Commission under the 1933 Act (the "1933
Act Regulations"). Such registration statement has been declared effective by
the Commission, and the Indenture has been duly qualified under the Trust
Indenture Act of 1939, as amended (the "1939 Act"). Such registration statement,
including the exhibits and schedules thereto, if any, in the form in which it
became effective, is herein called the "Registration Statement"; and the final
base prospectus contained in the Registration Statement and the final prospectus
supplement relating to the offering of the Securities, in the form first
furnished to the Underwriters by the Company for use in connection with the
offering of the Securities, are collectively referred to herein as the
"Prospectus"; provided, however, that all references to the "Registration
Statement" and the "Prospectus" shall also be deemed to include all documents
incorporated therein by reference pursuant to the Securities Exchange Act of
1934, as amended (the "1934 Act"), prior to the execution and delivery of this
Agreement; and provided, further, that if the Company files a registration
statement with the Commission pursuant to Section 462(b) of the 1933 Act
Regulations (the "Rule 462(b) Registration Statement"), then after such filing,
all references to "Registration Statement" shall also be deemed to include the
Rule 462(b) Registration Statement. For purposes of this Agreement, all
references to the Registration Statement, the Prospectus or any amendment or
supplement to any of the foregoing shall be deemed to include the copy filed
with the Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval system ("▇▇▇▇▇").
All references in this Agreement to financial statements and schedules
and other information which is "contained," "included" or "stated" in the
Registration Statement, any preliminary prospectus or the Prospectus (or other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
by reference in the Registration Statement or the Prospectus, as the case may
be; and all references in this Agreement to amendments or supplements to the
Registration Statement or the Prospectus shall be deemed to mean and include the
filing of any document under the 1934 Act which is incorporated by reference in
the Registration Statement or the Prospectus, as the case may be.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company. The Company represents and
warrants to the Underwriters as of the date hereof and as of the Closing Time
(as defined in Section 2(b) hereof) (in each case, a "Representation Date"), and
agrees with the Underwriters, as follows:
3
(i) Compliance with Registration Requirements. The Company meets the
requirements for use of Form S-3 under the 1933 Act. Each of the
Registration Statement and any Rule 462(b) Registration Statement has
become effective under the 1933 Act and no stop order suspending the
effectiveness of the Registration Statement or any Rule 462(b)
Registration Statement has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are pending or, to
the knowledge of the Company, are contemplated by the Commission, and
any request on the part of the Commission for additional information
has been complied with.
At the respective times the Registration Statement, any Rule
462(b) Registration Statement and any post-effective amendments thereto
became effective and at each Representation Date, the Registration
Statement, the Rule 462(b) Registration Statement and any amendments
thereto complied and will comply in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations and the 1939
Act and the rules and regulations of the Commission under the 1939 Act
(the "1939 Act Regulations"), and did not and will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading. Neither the Prospectus nor any amendments or
supplements thereto, at the time the Prospectus or any amendments or
supplements thereto were issued and at the Closing Time, included or
will include an untrue statement of a material fact or omitted or will
omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading. The representations and warranties in this subsection
shall not apply to statements in or omissions from the Registration
Statement (or any amendment thereto) or the Prospectus (or any
amendment or supplement thereto) made in reliance upon and in
conformity with information furnished to the Company in writing by any
Underwriter expressly for use in the Registration Statement (or such
amendment thereto) or the Prospectus (or such amendment or supplement
thereto).
The prospectus filed as part of the Registration Statement as
originally filed or as part of any amendment thereto, or filed pursuant
to Rule 424 under the 1933 Act, complied when so filed in all material
respects with the 1933 Act Regulations and the Prospectus delivered to
the Underwriters for use in connection with this offering was identical
in all material respects to the electronically transmitted copies
thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the
extent permitted by Regulation S-T.
(ii) Incorporated Documents. The documents incorporated or deemed to be
incorporated by reference in the Registration Statement and the
Prospectus, when they became effective or at the time they were or
hereafter are filed with the Commission, complied and will comply in
all material respects with the requirements of the 1933 Act and the
1933 Act Regulations or the 1934 Act and the rules and regulations of
the Commission thereunder (the "1934 Act Regulations"), as applicable,
and, when read together with the other information in the Prospectus,
at the time the Registration Statement became effective, at the time
the Prospectus was issued and at Closing Time, did not and will not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading.
4
(iii) Independent Accountants. The accountants who certified the financial
statements and supporting schedules of the Company and its
subsidiaries, of ▇▇▇ Communications PCS, L.P. ("PCS") and its
subsidiaries and of TCA Cable TV, Inc. ("TCA") and its subsidiaries
included in the Registration Statement and the Prospectus are
independent public accountants with respect to the Company and its
subsidiaries as required by the 1933 Act and the 1933 Act Regulations.
(iv) Financial Statements. The financial statements of the Company included
in the Registration Statement and the Prospectus, together with the related
schedules and notes, present fairly the financial position of the Company and
its consolidated subsidiaries at the dates indicated and the statement of
operations, stockholders' equity and cash flows of the Company and its
consolidated subsidiaries for the periods specified; said financial statements
have been prepared in conformity with generally accepted accounting principles
("GAAP") applied on a consistent basis throughout the periods involved. The
financial statements of PCS included in the Registration Statement and the
Prospectus, together with the related schedules and notes, present fairly the
financial position of PCS and its consolidated subsidiaries at the dates
indicated and the statement of operations, stockholders' equity and cash flows
of PCS and its consolidated subsidiaries for the periods specified; said
financial statements have been prepared in conformity with GAAP applied on a
consistent basis throughout the periods involved. The financial statements of
TCA included in the Registration Statement and the Prospectus, together with the
related schedules and notes, present fairly the financial position of TCA and
its consolidated subsidiaries at the date indicated and the statement of
operations, stockholders' equity and cash flows of TCA and its subsidiaries for
the period specified; said financial statements have been prepared in conformity
with GAAP. The supporting schedules, if any, included in the Registration
Statement and the Prospectus present fairly in accordance with GAAP the
information required to be stated therein. The pro forma financial statements of
the Company and its consolidated subsidiaries and the related notes thereto
included in the Registration Statement and the Prospectus present fairly the
information shown therein, have been prepared in accordance with the
Commission's rules and guidelines with respect to pro forma financial statements
and have been properly compiled on the bases described therein, and the
assumptions used in the preparation thereof are reasonable and the adjustments
used therein are appropriate to give effect to the transactions and
circumstances referred to therein.
(v) No Material Adverse Change in Business. Since the respective dates as
of which information is given in the Registration Statement and the Prospectus,
except as otherwise stated therein, (A) there has been no material adverse
change in the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries considered as
one enterprise, whether or not arising in the ordinary course of business (a
"Material Adverse Effect"), (B) there have been no transactions entered into by
the Company or any of its subsidiaries, other than those in the ordinary course
of business, which are material with respect to the Company and its subsidiaries
considered as one enterprise and (C) there has been no dividend or distribution
of any kind declared, paid or made by the Company on any class of its capital
stock.
5
(vi) Good Standing of the Company. The Company has been duly organized and
is validly existing as a corporation in good standing under the laws of the
State of Delaware and has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
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.
(vii) Good Standing of Subsidiaries. Each "significant subsidiary" of the
Company (as such term is defined in Rule 1-02 of Regulation S-X) (each a
"Subsidiary" and, collectively, the "Subsidiaries") has been duly organized and
is validly existing as a corporation or limited liability company in good
standing under the laws of the jurisdiction of its incorporation or
organization, as the case may be, has corporate or other 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 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 Registration Statement, all of the issued and
outstanding capital stock of each such Subsidiary owned by the Company, directly
or through subsidiaries, has been duly authorized and validly issued, is fully
paid and non-assessable and is owned free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity; and none of the
outstanding shares of capital stock of any Subsidiary was issued in violation of
the preemptive or similar rights of any securityholder or such Subsidiary. The
only subsidiaries of the Company are (a) the subsidiaries listed on Schedule C
hereto and (b) certain other subsidiaries which, considered in the aggregate as
a single Subsidiary, do not constitute a "significant subsidiary" as defined in
Rule 1-02 of Regulation S-X.
(viii) Capitalization. The shares of outstanding capital stock of the
Company have been duly authorized and validly issued and are fully paid and
non-assessable; and none of the outstanding shares of capital stock of the
Company was issued in violation of the preemptive or other similar rights of any
securityholder of the Company.
(ix) Authorization of Agreement. This Agreement has been duly authorized,
executed and delivered by the Company.
(x) Authorization of Remarketing Agreements and the Remarketing Reset
Agreement. Each of the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Remarketing Agreement, the Chase
Remarketing Agreement and the Remarketing Reset Agreement has been duly
authorized, and when executed and delivered by the Company (assuming due
authorization, execution and delivery by ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇,
respectively) will constitute a valid and binding agreement of the Company,
enforceable against the Company in accordance with its respective terms, except
as the enforcement thereof may be limited by bankruptcy, insolvency (including,
without limitation, all laws relating to fraudulent
6
transfers), reorganization, moratorium or similar laws affecting enforcement of
creditors' rights generally and except as enforcement thereof is subject to
general principles of equity (regardless of whether enforcement is considered in
a proceeding in equity or at law); and subject to the limitations on rights to
indemnity or contribution or both by Federal or state securities laws or the
public policies underlying such laws.
(xi) Authorization of Calculation Agency Agreement. The Calculation Agency
Agreement has been duly authorized, and when executed and delivered by the
Company (assuming due authorization, execution and delivery by the Calculation
Agent) will constitute a valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms, except as the enforcement
thereof may be limited by bankruptcy, insolvency (including, without limitation,
all laws relating to fraudulent transfers), reorganization, moratorium or
similar laws affecting enforcement of creditors' rights generally and except as
enforcement thereof is subject to general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity or at law).
(xii) Authorization of Remarketing Agency Agreement. The Remarketing Agency
Agreement has been duly authorized, and if executed and delivered by the Company
(assuming due authorization, execution and delivery by ▇▇▇▇▇▇▇ ▇▇▇▇▇) will
constitute a valid and binding agreement of the Company, enforceable against the
Company in accordance with its terms, except as the enforcement thereof may be
limited by bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization, moratorium or similar laws
affecting enforcement of creditors' rights generally and except as enforcement
thereof is subject to general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law).
(xiii) Authorization of the Indenture. The Indenture has been duly
authorized, executed and delivered by the Company and, assuming due
authorization, execution and delivery by the Trustee, constitutes a valid and
binding agreement of the Company, enforceable against the Company in accordance
with its terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar laws affecting enforcement of
creditors' rights generally and except as enforcement thereof is subject to
general principles of equity (regardless of whether enforcement is considered in
a proceeding in equity or at law). The Indenture has been duly qualified under
the 1939 Act.
(xiv) Authorization of Securities. The Securities have been duly authorized
by the Company for issuance and sale and, at the Closing Time, will have been
duly executed by the Company and, when authenticated, issued and delivered in
the manner provided for in the Indenture and delivered against payment of the
purchase price therefor as provided in this Agreement, will constitute valid and
binding obligations of the Company, enforceable against the Company in
accordance with their terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or similar
7
laws affecting enforcement of creditors' rights generally and except
as enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in
equity or at law). The Securities will be in the form contemplated by,
and each registered holder thereof will be entitled to the benefits
of, the Indenture.
(xv) Description of the Securities, the Indenture and the Remarketing
Related Agreements. The Securities, the Indenture and the Remarketing
Related Agreements, as of each Representation Date, conform and will
conform, as applicable, in all material respects to the respective
statements relating thereto contained in the Prospectus, and the
Securities and the Indenture will be in substantially the respective
forms filed or incorporated by reference, as the case may be, as
exhibits to the Registration Statement.
(xvi) Absence of Defaults and Conflicts. Neither the Company nor any
of its subsidiaries is in violation of its charter or by-laws or other
constitutive documents or in default in the performance or observance
of any obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which it or any of
them may be bound, or to which any of the property or assets of the
Company or any of its subsidiaries is subject (collectively,
"Agreements and Instruments") except for such defaults that would not
result in a Material Adverse Effect; and the execution, delivery and
performance by the Company of this Agreement, the Indenture, the
Remarketing Related Agreements and the Securities and the consummation
of the transactions contemplated in this Agreement and in the
Registration Statement (including the issuance and sale of the
Securities and the use of the proceeds from the sale of the Securities
as described in the Prospectus under the caption "Use of Proceeds")
and compliance by the Company with its obligations under this
Agreement, the Indenture, the Remarketing Related Agreements and the
Securities do not and will not, whether with or without the giving of
notice or passage of time or both, conflict with or constitute a
breach of, or default or Repayment Event (as defined below) under, or
result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any of its
subsidiaries pursuant to, the Agreements and Instruments (except for
such conflicts, breaches or defaults or liens, charges or encumbrances
that would not result in a Material Adverse Effect), nor will such
action result in any violation of the provisions of the charter or
by-laws or other constitutive documents of the Company or any of its
subsidiaries or any applicable law, statute, rule, regulation,
judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction
over the Company or any of its subsidiaries or any of their assets,
properties or operations. As used herein, a "Repayment Event" means
any event or condition which gives the holder of any note, debenture
or other evidence of indebtedness (or any person acting on such
holder's behalf) the right to require the repurchase, redemption or
repayment of all or a portion of such indebtedness by the Company or
any of its subsidiaries.
(xvii) 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
8
imminent which, individually or in the aggregate, may reasonably be
expected to result in a Material Adverse Effect.
(xviii) Absence of Proceedings. There is no action, suit, proceeding,
inquiry or investigation before or brought by any court or
governmental agency or body, domestic or foreign, now pending, or, to
the knowledge of the Company, threatened, against or affecting the
Company or any of its subsidiaries, which is required to be disclosed
in the Registration Statement (other than as disclosed therein), or
which, individually or in the aggregate, might reasonably be expected
to result in a Material Adverse Effect, or which, individually or in
the aggregate, might reasonably be expected to materially and
adversely affect the properties or assets thereof or the consummation
of the transactions contemplated in this Agreement or the Remarketing
Related Agreements or the performance by the Company of its
obligations hereunder or thereunder; the aggregate of all pending
legal or governmental proceedings to which the Company or any of its
subsidiaries is a party or of which any of their respective property
or assets is the subject which are not described in the Registration
Statement, including ordinary routine litigation incidental to the
business, could not reasonably be expected to result in a Material
Adverse Effect.
(xix) Accuracy of Exhibits. There are no contracts or documents which are
required to be described in the Registration Statement, the Prospectus
or the documents incorporated by reference therein or to be filed as
exhibits thereto which have not been so described and filed as
required.
(xx) Possession of Intellectual Property. Except as disclosed in the
Prospectus, the Company and its subsidiaries own or possess, or can
acquire on reasonable terms, adequate patents, patent rights,
licenses, inventions, copyrights, know-how (including trade secrets
and other 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,
other than those the absence of which would not have a Material
Adverse Effect, and neither the Company nor any of its subsidiaries
has received any notice or is otherwise aware of any infringement of
or conflict with asserted rights of others with respect to any
Intellectual Property or of any facts or circumstances which would
render any Intellectual Property invalid or inadequate to protect the
interest of the Company or any of its subsidiaries therein, and which
infringement or conflict (if the subject of any unfavorable decision,
ruling or finding) or invalidity or inadequacy, singly or in the
aggregate, would result in a Material Adverse Effect.
(xxi) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or
agency is necessary or required for the performance by the Company of
its obligations hereunder, in connection with the offering, issuance
or sale of the Securities under this Agreement or the consummation of
the transactions contemplated by this Agreement or for the due
execution, delivery or performance of the Indenture and the
Remarketing Related Agreements by the Company, except such as have
been already obtained or as may be required under the 1933 Act or the
1933 Act
9
Regulations or state securities laws, the laws of a foreign
jurisdiction or the by-laws and rules of the NASD and except for the
qualification of the Indenture under the 1939 Act.
(xxii) Possession of Licenses and Permits. The Company and its subsidiaries
possess such permits, licenses, approvals, consents and other
authorizations (collectively, "Governmental Licenses") issued by the
appropriate federal, state, local or foreign regulatory agencies or
bodies necessary to conduct the business now operated by them other
than those the absence of which would not have a Material Adverse
Effect; the Company and its subsidiaries are in compliance with the
terms and conditions of all such Governmental Licenses, except where
the failure so to comply would not, singly or in the aggregate, have a
Material Adverse Effect; all of the Governmental Licenses are valid
and in full force and effect, except when the invalidity of such
Governmental Licenses or the failure of such Governmental Licenses to
be in full force and effect would not have a Material Adverse Effect;
and neither the Company nor any of its subsidiaries has received any
notice of proceedings relating to the revocation or modification of
any such Governmental Licenses which, singly or in the aggregate, if
the subject of an unfavorable decision, ruling or finding, would
result in a Material Adverse Effect.
(xxiii) Title to Property. The Company and its subsidiaries have good and
marketable title to all material real property owned by the Company
and its subsidiaries and good title to all other properties owned by
them, in each case, free and clear of all mortgages, pledges, liens,
security interests, claims, restrictions or encumbrances of any kind
except such as (a) are described in the 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 subsidiary has any notice of any material claim of
any sort that has been asserted by anyone adverse to the rights of the
Company or any subsidiary under any of the leases or subleases
mentioned above, or affecting or questioning the rights of the Company
or such subsidiary to the continued possession of the leased or
subleased premises under any such lease or sublease.
(xxiv) 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" as such term is defined in the Investment
Company Act of 1940, as amended (the "1940 Act").
(xxv)Environmental Laws. Except as described in the Registration Statement
and except as would not, singly or in the aggregate, result in a
Material Adverse Effect, (A) neither the Company nor any of its
subsidiaries is in violation of any federal, state, local or foreign
statute, law, rule, regulation, ordinance, code, policy or rule of
common law or any judicial or administrative interpretation thereof,
including any judicial or administrative order, consent, decree or
judgment, relating to pollution or protection of human health, the
environment (including, without limitation, ambient air, surface
water, groundwater, land surface or subsurface strata) or wildlife,
including, without limitation,
10
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 threatened administrative, regulatory or judicial actions, suits,
demands, demand letters, claims, liens, notices of noncompliance or
violation, investigation or proceedings relating to any Environmental
Law against the Company or any of its subsidiaries and (D) there are
no events or circumstances that might reasonably be expected to form
the basis of an order for clean-up or remediation, or an action, suit
or proceeding by any private party or governmental body or agency,
against or affecting the Company or any of its subsidiaries relating
to Hazardous Materials or any Environmental Laws.
(b) Officer's Certificates. Any certificate signed by any officer of the Company
delivered to the Underwriters or to counsel for the Underwriters in connection
with the offering of the Securities shall be deemed a representation and
warranty by the Company to the Underwriters as to the matters covered thereby.
SECTION 2. Sale and Delivery to Underwriter; Closing.
(a) Securities. On the basis of the representations, warranties and agreements
herein contained and subject to the terms and conditions herein set forth, the
Company agrees to sell to the Underwriters, and the Underwriters agree to
purchase from the Company, at the price per Security set forth in Schedules B-1
and B-2, the aggregate principal amount of Securities set forth in Schedule A
opposite the name of such Underwriter, plus any additional principal amount of
Securities which such Underwriter may become obligated to purchase pursuant to
the provisions of Section 10 hereof.
(b) Payment. Payment of the purchase price for, and delivery of certificates
for, the Securities shall be made at the offices of Brown & Wood LLP, or at such
other place as shall be agreed upon by the Underwriters and the Company, at 9:00
A.M. (Eastern time) on the third business day after the date hereof, or such
other time not later than ten business days after such date as shall be agreed
upon by the Underwriters and the Company (such time and date of payment and
delivery being herein called "Closing Time").
11
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery to
the Underwriters of certificates for the Securities to be purchased by them. It
is understood that each Underwriter has authorized ▇▇▇▇▇▇▇ ▇▇▇▇▇, for its
account, to accept delivery of, receipt for, and make payment of the purchase
price for, the Securities which it has severally agreed to purchase. ▇▇▇▇▇▇▇
▇▇▇▇▇, individually and not as representative of the Underwriters, may (but
shall not be obligated to) make payment of the purchase price for the Securities
to be purchased by any Underwriter whose funds have not been received by the
Closing Time, but such payment shall not relieve such Underwriter from its
obligations hereunder.
(c) Denominations; Registration. Certificates for the Securities shall be in
such denominations and registered in such names as the Underwriters may request
in writing at least one full business day before the Closing Time. The
Securities will be made available for examination and packaging by the
Underwriters in The City of New York not later than 10:00 A.M. (Eastern time) on
the business day prior to the Closing Time.
SECTION 3. Covenants of the Company. The Company covenants with the
Underwriters as follows:
(a) Compliance with Securities Regulations and Commission Requests.
Subject to Section 3(b), the Company will notify the Underwriters
immediately, and confirm the notice in writing, (i) when any
post-effective amendment to the Registration Statement shall
become effective, or any supplement to the Prospectus or any
amended Prospectus shall have been filed, (ii) of the receipt of
any comments from the Commission, (iii) of any request by the
Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or for additional
information and (iv) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration
Statement or of any order preventing or suspending the use of any
preliminary prospectus, or of the suspension of the qualification
of the Securities for offering or sale in any jurisdiction, or of
the initiation or threatening of any proceedings for any of such
purposes. The Company will promptly effect the filings necessary
pursuant to Rule 424(b) and will take such steps as it deems
necessary to ascertain promptly whether the form of prospectus
transmitted for filing under Rule 424(b) was received for filing
by the Commission and, in the event that it was not, it will
promptly file such prospectus. The Company will use its
reasonable best efforts to prevent the issuance of any stop order
and, if any stop order is issued, to obtain the lifting thereof
at the earliest possible moment.
(b) Filing of Amendments. The Company will give the Underwriters
notice of its intention to file or prepare any amendment to the
Registration Statement (including any filing under Rule 462(b))
or any amendment, supplement or revision to either the prospectus
included in the Registration Statement at the time it became
effective or to the Prospectus, whether pursuant to the 1933 Act,
the 1934 Act or otherwise, will furnish the Underwriters with
copies of any such documents a reasonable amount of time prior to
such proposed filing or use, as the case may be, and will not
file or use any such document to which the Underwriters or
counsel for the Underwriters shall object in writing within three
business days of receipt.
(c) Delivery of Registration Statements. The Company has furnished or
will deliver to the Underwriters and counsel for the
Underwriters, without charge, signed copies of the Registration
Statement as originally filed and of each amendment thereto
(including exhibits filed therewith or incorporated by reference
therein and documents incorporated or deemed to be incorporated
by reference therein) and signed copies of all consents and
certificates of experts, and will also deliver to the
Underwriters, without charge, a conformed copy of the
Registration Statement as originally filed and of each amendment
thereto (without exhibits). The copies of the Registration
Statement and each amendment thereto furnished to the
Underwriters will be identical in all material respects
12
to the electronically transmitted copies thereof filed with the
Commission pursuant to ▇▇▇▇▇, except to the extent permitted by
Regulation S-T.
(d) Delivery of Prospectus. The Company will furnish to the
Underwriters, without charge, during the period when the
Prospectus is required to be delivered under the 1933 Act or the
1934 Act, such number of copies of the Prospectus (as amended or
supplemented) as the Underwriters may reasonably request. The
Prospectus and any amendments or supplements thereto furnished to
the Underwriters will be identical in all material respects to
the electronically transmitted copies thereof filed with the
Commission pursuant to ▇▇▇▇▇, except to the extent permitted by
Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company will
comply with the 1933 Act and the 1933 Act Regulations, the 1934
Act and the 1934 Act Regulations and the 1939 Act and the 1939
Act Regulations so as to permit the completion of the
distribution of the Securities as contemplated in this Agreement
and in the Prospectus. If at any time when a prospectus is
required by the 1933 Act to be delivered in connection with sales
of the Securities any event shall occur or condition shall exist
as a result of which it is necessary, in the opinion of counsel
for the Underwriters or counsel for the Company, to amend the
Registration Statement or amend or supplement the Prospectus in
order that the Prospectus will not include any untrue statements
of a material fact or omit to state a material fact necessary in
order to make the statements therein not misleading in the light
of the circumstances existing at the time it is delivered to a
purchaser, or if it shall be necessary, in the opinion of any
such counsel, at any such time to amend the Registration
Statement or amend or supplement the Prospectus in order to
comply with the requirements of the 1933 Act or the 1933 Act
Regulations, the Company will promptly prepare and file with the
Commission, subject to Section 3(b), such amendment or supplement
as may be necessary to correct such statement or omission or to
make the Registration Statement or the Prospectus comply with
such requirements, and the Company will furnish to the
Underwriters, without charge, such number of copies of such
amendment or supplement as the Underwriters may reasonably
request.
(f) Blue Sky Qualifications. The Company will use its reasonable best
efforts, in cooperation with the Underwriters, to qualify the
Securities for offering and sale under the applicable securities
laws of such states and other jurisdictions as the Underwriters
may designate and to maintain such qualifications in effect for a
period of not less than one year from the date of this Agreement;
provided, however, that the Company shall not be obligated to
file any general consent to service of process or to qualify as a
foreign corporation or as a dealer in securities in any
jurisdiction in which it is not so qualified or to subject itself
to taxation in respect of doing business in any jurisdiction in
which it is not otherwise so subject. In each jurisdiction in
which the Securities have been so qualified, the Company will
file such statements and reports as may be required by the laws
of such jurisdiction to continue such qualification in effect for
a period of not less than one year from the date of this
Agreement. The Company will also supply the Underwriters with
such information as is necessary for the determination of the
legality of the Securities for investment under the laws of such
jurisdictions as the Underwriters may request.
13
(g) Rule 158. The Company will timely file such reports pursuant to
the 1934 Act as are necessary in order to make generally
available to its securityholders as soon as practicable an
earnings statement for the purposes of, and to provide the
benefits contemplated by, the last paragraph of Section 11(a) of
the 1933 Act.
(h) Use of Proceeds. The Company will use the net proceeds received
by it from the sale of the Securities in the manner specified in
the Prospectus under "Use of Proceeds."
(i) Restriction on Sale of Securities. During a period of 45 days
from the date of this Agreement, the Company will not, without
the prior written consent of Chase and ▇▇▇▇▇▇▇ ▇▇▇▇▇, directly or
indirectly, issue, sell, offer or agree to sell, grant any option
for the sale of, or otherwise dispose of, any other debt
securities of the Company or securities of the Company that are
convertible into, or exchangeable for, the Securities or such
other debt securities.
(j) Reporting Requirements. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act or the
1934 Act, will file all documents required to be filed with the
Commission pursuant to the 1934 Act within the time periods
required by the 1934 Act and the 1934 Act Regulations.
SECTION 4. Payment of Expenses.
(a) Expenses. The Company will pay all expenses incident to the
performance of its obligations under this Agreement, including
(i) the preparation, printing and filing of the Registration
Statement (including financial statements and exhibits) as
originally filed and of each amendment thereto, (ii) the
preparation, printing and delivery to the Underwriters of this
Agreement, the Indenture, the Remarketing Related Agreements and
such other documents as may be required in connection with the
offering, purchase, sale, issuance or delivery of the Securities,
(iii) the preparation, issuance and delivery of the Securities to
the Underwriters, (iv) the fees and disbursements of the
Company's counsel, accountants and other advisors, (v) the
qualification of the Securities under securities laws in
accordance with the provisions of Section 3(f) hereof, including
filing fees and the reasonable fees and disbursements of counsel
for the Underwriters in connection therewith and in connection
with the preparation of the Blue Sky Survey and any supplement
thereto, (vi) the printing and delivery to the Underwriters of
copies of the Prospectus and any amendments or supplements
thereto, (vii) the preparation, printing and delivery to the
Underwriters of copies of the Blue Sky Survey and any supplement
thereto, (viii) the fees and expenses of the Trustee, including
the fees and disbursements of counsel for the Trustee in
connection with the Indenture and the Securities and (ix) any
fees payable in connection with the rating of the Securities
(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
Underwriters for all of their out-of-pocket expenses, including
the reasonable fees and disbursements of counsel for the
Underwriters.
14
SECTION 5. Conditions of Underwriters' Obligations. The obligations of the
Underwriters to purchase and pay for the Securities pursuant to this Agreement
are subject to the accuracy of the representations and warranties of the Company
contained in Section 1 hereof or in certificates of any officer of the Company
or any subsidiary of the Company delivered pursuant to the provisions hereof, to
the performance by the Company of its covenants and other obligations hereunder,
and to the following further conditions:
(a) Effectiveness of Registration Statement. The Registration
Statement, including any Rule 462(b) Registration Statement, has
become effective and at Closing Time no stop order suspending the
effectiveness of the Registration Statement shall have been
issued under the 1933 Act or proceedings therefor initiated or
threatened by the Commission, and any request on the part of the
Commission for additional information shall have been complied
with to the reasonable satisfaction of counsel to the
Underwriters. A prospectus containing information relating to the
description of the Securities, the specific method of
distribution and similar matters shall have been filed with the
Commission in accordance with Rule 424(b) (or a post-effective
amendment providing such information shall have been filed and
declared effective in accordance with the requirements of Rule
430A).
(b) Opinion of Counsel for Company. At Closing Time, the Underwriters
shall have received the favorable opinion, dated as of Closing
Time, of Dow, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, PLLC, counsel for the Company,
in form and substance satisfactory to counsel for the
Underwriters, to the effect set forth in Exhibit A hereto.
(c) Opinion of Counsel for Underwriters. At Closing Time, the
Underwriters shall have received the favorable opinion, dated as
of Closing Time, of Brown & Wood LLP, counsel for the
Underwriters, in form and substance satisfactory to the
Underwriters with respect to the issuance and sale of the
Securities and other related matters as the Underwriters may
reasonably require. Such counsel may 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 Closing Time, there shall not have
been, since the date hereof or since the respective dates as of
which information is given in the Prospectus, 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 in the ordinary course of business, and
the Underwriters shall have received a certificate of the
President or a Vice President of the Company and of the chief
financial officer, chief accounting officer or the Treasurer of
the Company, dated as of Closing Time, to the effect that (i)
there has been no such material adverse change, (ii) the
representations and warranties in Section 1(a) hereof are true
and correct with the same force and effect as though expressly
made at and as of Closing Time, (iii) the Company has complied
with all agreements and satisfied all conditions on its part to
be performed or satisfied at or prior to Closing Time and (iv) no
stop order suspending the effectiveness of the Registration
Statement has been
15
issued and no proceedings for that purpose have been instituted
or are pending or are contemplated by the Commission.
(e) Accountant's Comfort Letters. At the date hereof, the
Underwriters shall have received letters from Deloitte & Touche
LLP, in relation to the Company, and KPMG LLP, in relation to
TCA, each dated such date, in form and substance satisfactory to
the Underwriters, containing statements and information of the
type ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and certain
financial information contained in the Registration Statement and
the Prospectus.
(f) Bring-down Comfort Letter. At Closing Time, the Underwriters
shall have received from Deloitte & Touche LLP a letter, dated as
of Closing Time, to the effect that it reaffirms the statements
made in the letter furnished pursuant to subsection (e) of this
Section, except that the "specified date" referred to shall be a
date not more than three business days prior to Closing Time.
(g) Maintenance of Rating. At Closing Time the Securities shall be
rated at least Baa2 by ▇▇▇▇▇'▇ Investors Service Inc. and BBB by
Standard & Poor's Ratings Service, and the Company shall have
delivered to the Underwriters a letter, dated the Closing Time,
from each such rating agency, or other evidence satisfactory to
the Underwriters, confirming that the Securities have such
ratings; and since the date of this Agreement, there shall not
have occurred a downgrading in the rating assigned to the
Securities or any of the Company's other debt securities by any
"nationally recognized statistical rating agency," as that term
is defined by the Commission for purposes of Rule 436(g)(2) under
the 1933 Act, and no such organization shall have publicly
announced that it has under surveillance or review, with possible
negative implications, its rating of the Securities or any of the
Company's other debt securities.
(h) Additional Documents. At Closing Time 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 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.
(i) Termination of Agreement. If any condition specified in this
Section shall not have been fulfilled when and as required to be
fulfilled at the Closing Time, this Agreement may be terminated
by the Underwriters by notice to the Company at any time at or
prior to 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 6, 7 and 8 shall survive any
such termination and remain in full force and effect.
16
SECTION 6. Indemnification.
(a) Indemnification of Underwriters. The Company agrees to indemnify and hold
harmless each Underwriter and each person, if any, who controls any such
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), including the Rule
434 Information, if applicable, or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary
to make the statements therein not misleading or arising out of any
untrue statement or alleged untrue statement of a material fact
included in the Prospectus (or any amendment or supplement thereto), or
the omission or alleged omission therefrom of a material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission referred to
under (i) above; provided that (subject to Section 6(d) below) any such
settlement is effected with the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by the
Underwriters), reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, referred to under (i) above,
to the extent that any such expense is not paid under (i) or (ii)
above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by such
Underwriter expressly for use in the Registration Statement (or any amendment
thereto), or the Prospectus (or any amendment or supplement thereto) and
provided, further, that this indemnity agreement shall not inure to the benefit
of such Underwriter or any person controlling such Underwriter on account of any
loss, claim, damage, liability or action arising from the sale of Securities to
any person by such Underwriter if such Underwriter failed to send or give a copy
of an amendment or supplement to the Prospectus to that person and the untrue
statement or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact in the Prospectus was corrected in said
amendment or supplement and the delivery thereof was required by law and would
have constituted a complete defense to the claim of that person, unless such
failure resulted from non-compliance by the Company with Section 3(a) or (b).
For purposes of the second proviso to the immediately
17
preceding sentence, the term Prospectus shall not be deemed to include the
documents incorporated by reference therein, and no Underwriter shall be
obligated to send or give any supplement or amendment to any document
incorporated by reference in the Prospectus to any person.
(b) Indemnification of Company, Directors and Officers. Each Underwriter
severally agrees to indemnify and hold harmless the Company, its directors, each
of its officers who signed the Registration Statement and each person, if any,
who controls the Company within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act against any and all loss, liability, claim, damage
and expense described in the indemnity contained in subsection (a) of this
Section, as incurred, but only with respect to untrue statements or omissions,
or alleged untrue statements or omissions, made in the Registration Statement
(or any amendment thereto), or the Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with written information furnished
to the Company by such Underwriter expressly for use in the Registration
Statement (or any amendment thereto) or the Prospectus (or any amendment or
supplement thereto).
(c) Actions against Parties; Notification. Each indemnified party shall give
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 shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by the Underwriters, and,
in the case of parties indemnified pursuant to Section 6(b) above, counsel to
the indemnified parties shall be selected by the Company. An indemnifying party
may participate at its own expense in the defense of any such action. If it so
elects within a reasonable time after receipt of notice, an indemnifying party,
jointly with any other indemnifying parties receiving such notice, may assume
the defense of such action with counsel chosen by it and approved by the
indemnified parties defendant in such action, unless such indemnified parties
reasonably object to such assumption on the ground that there may be legal
defenses available to them which are different from or in addition to those
available to such indemnifying party. If an indemnifying party assumes the
defense of such action, the indemnifying parties shall not be liable for any
fees and expenses of counsel for the indemnified parties thereafter in
connection with such action. In no event shall the indemnifying parties be
liable for fees and expenses of more than one counsel (in addition to any local
counsel) separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related actions in the
same jurisdiction arising out of the same general allegations or circumstances.
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
18
to or an admission of fault, culpability or a failure to act by or on behalf of
any indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(ii) effected without its written consent if (i) such settlement is
entered into more than 90 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 45 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
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 the Company and the Underwriters shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
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 or (ii) if the allocation provided by clause (i) 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 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 or commission received by the Underwriters,
in each case as set forth on the cover of the Prospectus, bear to the aggregate
initial public offering price of the Securities as set forth on such cover.
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 such Underwriter 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 or by any other method of allocation which does not take account of
the equitable considerations referred to above in this Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in
19
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
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 any 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 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 director of the Company, each officer of the Company who signed the
Registration Statement and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act 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 aggregate principal amounts 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 or any of its subsidiaries submitted
pursuant hereto, shall remain operative and in full force and effect, regardless
of any investigation made by or on behalf of the Underwriters 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. The Underwriters may terminate this Agreement, by
notice to the Company, at any time at or prior to Closing Time (i) if there has
been, since the time of execution of this Agreement or since the respective
dates as of which information is given in the Prospectus, 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 in the ordinary course of business, (ii)
if there has occurred any material adverse change in the financial markets in
the United States or the international financial markets, any outbreak of
hostilities or escalation thereof or other calamity or crisis or any change or
development involving a prospective change in national or international
political, financial or economic conditions, in each case the effect of which is
such as to make it, in the judgment of the Underwriters, impracticable to market
the Securities or to enforce contracts for the sale of the Securities, (iii) if
trading in any securities of the Company has been suspended or limited by the
Commission or the New York Stock Exchange, or if trading generally on the
American Stock Exchange or the New York Stock Exchange or in the
20
Nasdaq National Market has been suspended or limited, or minimum or maximum
prices for trading have been fixed, or maximum ranges for prices have been
required, by any of said exchanges or by such system or by order of the
Commission, the National Association of Securities Dealers, Inc. or any other
governmental authority or (iv) if a banking moratorium has been declared by
either federal or New York authorities.
(b) 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 6, 7 and 8
shall survive such termination and remain in full force and effect.
SECTION 10. Default by One of the Underwriters. If one or more of the
Underwriters shall fail at Closing Time to purchase the Securities which it or
they are obligated to purchase under this Agreement (the "Defaulted
Securities"), then Chase and ▇▇▇▇▇▇▇ ▇▇▇▇▇ shall have the right, within 24 hours
thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth; if, however, neither Chase nor ▇▇▇▇▇▇▇ ▇▇▇▇▇ shall have
completed such arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10%
of the aggregate principal amount of the Securities to be purchased
hereunder, each of the non-defaulting Underwriters shall be obligated,
severally and not jointly, to purchase the full amount thereof in the
proportions that their respective underwriting obligations hereunder
bear to the underwriting obligations of all non-defaulting
Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the
aggregate principal amount of the Securities to be purchased hereunder,
this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination
of this Agreement, either Chase and ▇▇▇▇▇▇▇ ▇▇▇▇▇ or the Company shall have the
right to postpone the Closing Time for a period not exceeding seven days in
order to effect any required changes in the Registration Statement or the
Prospectus or in any other documents or arrangements.
SECTION 11. Notices. All notices and other communications hereunder 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 Underwriters shall be
directed to Chase Securities Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, attention of ▇▇▇▇ ▇▇▇▇▇▇ (with a copy of any notice pursuant to
Section 6(c) to ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ of Legal Department) and to ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch,
▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, North Tower, 2 World Financial Center, New
York, New York 10281, attention of ▇▇▇▇ ▇▇▇▇▇▇▇▇, Director; and notices to the
Company shall be directed to it at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇, attention of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇.
21
SECTION 12. Parties. This Agreement shall inure to the benefit of and be binding
upon the Underwriters and 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 and 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
representatives, 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 and the Company and their respective
successors, and said controlling persons and officers and directors and their
heirs and legal representatives, 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. Governing Law and Time. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE
TO AGREEMENTS MADE AND TO BE PERFORMED WHOLLY IN SUCH STATE. SPECIFIED TIMES
OF DAY REFER TO NEW YORK CITY TIME.
SECTION 14. Effect of Headings. The Article and Section headings herein
and the Table of Contents are for convenience only and shall not affect the
construction hereof.
SECTION 15. Counterparts. This Agreement may be executed in one or
more counterparts and, if executed in more than one counterpart, the
executed counterparts hereof shall constitute a single instrument.
22
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
among the Underwriters and the Company in accordance with its terms.
Very truly yours,
▇▇▇ COMMUNICATIONS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President,
Finance and Administration and
Chief Financial Officer
CONFIRMED AND ACCEPTED, as of the date first above written:
as Representatives of the several Underwriters,
CHASE SECURITIES INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:Managing Director
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------------
Name:▇▇▇▇ ▇▇▇▇▇▇▇▇
Title:Authorized Signatory
Sch A-1
SCHEDULE A
Principal Amount Principal Amount
of 7 3/4% Notes of Floating Rate
Underwriter due 2010 MOPPRS/CHEERS
Chase Securities Inc.............................................. $288,000,000 $72,000,000
▇▇▇▇▇▇▇ Lynch, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ $288,000,000 $72,000,000
Incorporated.................................
Bank of America Securities LLC.................................... $ 52,000,000 $13,000,000
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.......................................... $ 52,000,000 $13,000,000
ABN AMRO Incorporated............................................. $ 24,000,000 $ 6,000,000
BNY Capital Markets, Inc.......................................... $ 24,000,000 $ 6,000,000
SunTrust Equitable Securities Corporation......................... $ 24,000,000 $ 6,000,000
Wachovia Securities, Inc.......................................... $ 24,000,000 $ 6,000,000
The ▇▇▇▇▇▇▇▇ Capital Group, L.P................................... $ 24,000,000 $ 6,000,000
Total.............................................. $800,000,000 $200,000,000
============= ===============
Sch A-1
Sch B-2-1
SCHEDULE B-1
▇▇▇ COMMUNICATIONS, INC.
$800,000,000 7 3/4% Notes due 2010
1. The initial public offering price of the above-referenced securities
shall be 99.715% of the principal amount thereof, plus accrued
interest, if any, from the date of issuance.
2. The purchase price to be paid by the Underwriters for the
above-referenced securities shall be 99.065% of the principal amount
thereof.
3. The interest rate on the above-referenced securities shall be 7 3/4% per
annum.
Sch B-2-1
SCHEDULE B-2
▇▇▇ COMMUNICATIONS, INC.
$200,000,000 Floating Rate MOPPRSSM/CHEERS*
1. The initial public offering price of the above-referenced
securities shall be at varying prices related to the prevailing
market prices at the time of the sale.
2. The purchase price to be paid by the Underwriters for the
above-referenced securities shall be 103.15% of the principal
amount thereof, plus accrued interest, if any, from November 7,
2000.
3. The interest rate on the above-referenced securities until the
Initial Mandatory Tender Date shall be 3-month LIBOR plus 0.70%
per annum.
4. The Initial Mandatory Tender Date shall be November 7, 2002.
5. The Base Rate shall be 5.742% per annum.
6. The Stated Maturity Date shall be November 7, 2012, subject to
extension as described in the Prospectus.
Sch B-2-1
SCHEDULE C
List of Subsidiaries
Cox Communications Hampton Roads, Inc.
Cox Communications Las Vegas, Inc.
Cox Classic Cable, Inc.
CoxCom, Inc.
Cox Communications BTP Holdings, Inc.
CCI PCS, Inc.
Sch C-1