EXHIBIT 4.6
EXECUTION COPY
MJD COMMUNICATIONS, INC.
$200,000,000
$125,000,000 9-1/2% Senior Subordinated Notes due 2008
$75,000,000 Floating Rate Callable Securities
due 2008
PURCHASE AGREEMENT
New York, New York
April 30, 1998
To: SALOMON BROTHERS INC
BT ▇▇▇▇. BROWN INCORPORATED
NATIONSBANC ▇▇▇▇▇▇▇▇▇▇ SECURITIES LLC
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ SECURITIES CORPORATION
In care of:
Salomon Brothers Inc
Seven World Trade Center
New York, New York 10048
Ladies and Gentlemen:
MJD Communications, Inc., a Delaware corporation (the "Company"),
proposes to issue and sell to you (the "Purchasers"), $125,000,000 aggregate
principal amount of its 9-1/2% Senior Subordinated Notes due 2008 (the "Fixed
Rate Notes") and $75,000,000 aggregate principal amount of its Floating Rate
Callable Securities due 2008 (the "Floating Rate Notes" and, together with the
Fixed Rate Notes, the "Securities"). The Securities are to be issued under an
indenture (the "Indenture") dated as of May 5, 1998, between the Company and
United States Trust Company of New York, as trustee (the "Trustee").
The sale of the Securities to you will be made without registration of
the Securities under the Securities Act of 1933, as amended (the "Securities
Act"), in reliance upon the exemption from the registration requirements of the
Securities Act provided by Section 4(2) thereof. You have advised the Company
that you will make an offering of the Securities purchased by you hereunder in
accordance with Section 4 hereof as soon as you deem advisable after the
execution and delivery of this Agreement.
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In connection with the sale of the Securities, the Company has
prepared a preliminary offering memorandum, dated April 14, 1998 (the
"Preliminary Memorandum"), and a final offering memorandum, dated April 30, 1998
(the "Final Memorandum"). Each of the Preliminary Memorandum and the Final
Memorandum sets forth certain information concerning the Company and the
Securities. The Company hereby confirms that it has authorized the use of the
Preliminary Memorandum and the Final Memorandum, and any amendment or supplement
thereto, in connection with the offer and sale of the Securities by the
Purchasers. Unless stated to the contrary, all references herein to the Final
Memorandum are to the Final Memorandum at the Execution Time (as defined below)
and are not meant to include any amendment or supplement thereto subsequent to
the Execution Time.
The holders of the Securities will be entitled to the benefits of the
Registration Agreement dated the date hereof, between the Company and the
Purchasers (the "Registration Agreement").
Capitalized terms used herein without definition have the respective
meanings assigned to them in the Final Memorandum.
1. Representations and Warranties. The Company represents and
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warrants to, and agrees with, the Purchasers as set forth below in this Section
1.
(a) The Preliminary Memorandum, at the date thereof, did not contain
any untrue statement of a material fact or omit to state any material fact
(other than pricing terms and other financial terms for the Securities
intentionally left blank) necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading. The
Final Memorandum, at the date hereof, does not, and at the Closing Date (as
defined below) will not (and any amendment or supplement thereto, at the
date thereof and at the Closing Date, will not), contain any untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that no
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representation or warranty is made as to the information contained in or
omitted from the Preliminary Memorandum or the Final Memorandum, or any
amendment or supplement thereto, in reliance upon and
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in conformity with information furnished in writing to the Company by or on
behalf of the Purchasers specifically for inclusion therein, it being
understood that the only such information is that described in Section 8(b)
hereof.
(b) The Company has not taken nor will it take, directly or
indirectly, any action prohibited by Regulation M under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), in connection with
the offering of the Securities.
(c) None of the Company, any of its Affiliates (as defined in Rule
501(b) of Regulation D under the Securities Act ("Regulation D")) or any
person acting on its or their behalf has (i) sold, offered for sale,
solicited offers to buy or otherwise negotiated in respect of, any security
(as defined in the Securities Act) that is or will be integrated with the
Securities in a manner that would require the registration of the
Securities under the Securities Act or (ii) engaged in any form of general
solicitation or general advertising (within the meaning of Regulation D) in
connection with any offer or sale of the Securities in the United States.
(d) The Securities satisfy the eligibility requirements of Rule
144A(d)(3) under the Securities Act.
(e) None of the Company, any of its Affiliates or any person acting
on its or their behalf has engaged in any directed selling efforts with
respect to the Securities, and each of them has complied with the offering
restrictions requirement of Regulation S ("Regulation S") under the
Securities Act. Terms used in this paragraph have the meanings given to
them by Regulation S.
(f) The Company is not an "investment company" within the meaning of
the Investment Company Act of 1940, as amended (the "Investment Company
Act"), without taking account of any exemption arising out of the number of
holders of the Company's securities.
(g) The Company has full corporate power and authority to enter into
this Agreement, the Registration Agreement, the Indenture and the
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Securities and to perform the transactions contemplated hereby and thereby
(the "Transactions"). This Agreement and the Registration Agreement have
been duly authorized, executed and delivered by the Company. The execution
and delivery of the Indenture has been duly authorized by the Company, and
the Indenture, when duly executed and delivered by the parties thereto,
will constitute a valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium and similar laws
affecting creditors' rights and remedies generally and to general
principles of equity (regardless of whether enforcement is sought in a
proceeding at law or in equity).
(h) The Securities have been duly authorized for issuance and sale by
the Company to the Purchasers, and when duly executed, authenticated,
issued and delivered in accordance with the Indenture and paid for in
accordance with the terms of this Agreement, the Securities will constitute
valid and binding obligations of the Company enforceable against the
Company in accordance with their terms and entitled to the benefits of the
Indenture, subject to applicable bankruptcy, insolvency, reorganization,
moratorium and similar laws affecting creditors' rights and remedies
generally and to general principles of equity (regardless of whether
enforcement is sought in a proceeding at law or in equity).
(i) The execution, delivery and performance of this Agreement, the
Registration Agreement, the Indenture and the Securities by the Company and
the consummation of the Transactions will not conflict with or result in a
breach or violation of any of the terms and provisions of, or constitute a
default under, (i) the articles of incorporation, by-laws or other
organizational documents of the Company or any of its Subsidiaries (as
defined below), (ii) any material statute, rule or regulation applicable to
the Company or any Subsidiary or any order of any governmental agency or
body or any court having jurisdiction over the Company or any Subsidiary or
any of their respective properties, except for any such breach, violation
or default that individually and in the aggregate could not reasonably be
expected to have a material adverse effect on the business, condition
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(financial or otherwise) or results of operations of the Company and its
subsidiaries, taken as a whole, or on the consummation of the Transactions
(any such event, a "Material Adverse Effect"), (iii) any agreement or
instrument relating to borrowed money to which the Company or any
Subsidiary is a party or by which the Company or any Subsidiary is bound or
to which any of their respective properties is subject, including the
Credit Agreement dated March 30, 1998, among the Company, NationsBank of
Texas, N.A., Bankers Trust Company and the lenders party thereto (the
"Credit Agreement"), except for such breach, violation, or default that
individually and in the aggregate could not reasonably be expected to have
a Material Adverse Effect or (iv) any other material agreement or
instrument to which the Company or any Subsidiary is a party or by which
the Company or any Subsidiary is bound or to which any of their respective
properties is subject, except for such breach, violation, or default that
individually and in the aggregate could not reasonably be expected to have
a Material Adverse Effect. No consent, approval, authorization or other
order of any court, regulatory body, administrative agency or other
governmental body that has not already been obtained is required for the
execution and delivery of this Agreement, the Registration Agreement, the
Indenture or the Securities or for the consummation of the Transactions,
except such as may be required under the blue sky or securities laws of any
jurisdiction in connection with the purchase and sale of the Securities by
the Purchasers and except such as may be required under the Securities Act
with respect to the Registration Agreement and the transactions
contemplated thereunder and except for such consents, approvals,
authorizations or orders that, if not obtained, individually and in the
aggregate could not reasonably be expected to have a Material Adverse
Effect. The term "Subsidiary" means each person of which a majority of the
voting equity securities or other interests is owned, directly or
indirectly, by the Company.
(j) The Company has not paid or agreed to pay to any person any
compensation for soliciting another to purchase any securities of the
Company (except as contemplated by this Agreement).
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(k) No registration of the Securities under the Securities Act is
required in connection with the sale of the Securities to the Purchasers as
contemplated by this Agreement and the Final Memorandum or in connection
with the initial resale of the Securities by the Purchasers in accordance
with Section 4 of this Agreement, and prior to the commencement of the
Exchange Offer (as defined in the Registration Agreement) or the
effectiveness of the Shelf Registration Statement (as defined in the
Registration Agreement), the Indenture is not required to be qualified
under the Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act"), in each case assuming (i) that the purchasers who buy such
Securities in the initial resale thereof are qualified institutional buyers
within the meaning of Rule 144A under the Securities Act or are purchasing
pursuant to Regulation S under the Securities Act as set forth in the Final
Memorandum, (ii) the accuracy of the Purchasers' representations in Section
4 and those of the Company contained in this Agreement regarding the
absence of a general solicitation in connection with the sale of such
Securities to the Purchasers and the initial resale thereof and (iii) the
accuracy of the representations made by each person who purchases
Securities in the initial resale as set forth in the Final Memorandum.
2. Purchase and Sale. Subject to the terms and conditions and in
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reliance upon the representations and warranties herein set forth, the Company
agrees to sell to the Purchasers, and the Purchasers agree to purchase from the
Company, severally and not jointly, (i) in the case of the Fixed Rate Notes, at
a purchase price of 97.0% of the principal amount thereof and (ii) in the case
of the Floating Rate Notes, at a purchase price of 97.0% of the principal amount
thereof, in each case plus accrued interest, if any, from May 5, 1998, to the
Closing Date, the principal amount of Securities set forth opposite each
Purchaser's name in Schedule I hereto.
3. Delivery and Payment. Delivery of and payment for the Securities
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shall be made at 10:00 AM, New York City time, on May 5, 1998, or such later
date as the Purchasers and the Company may agree or as provided in Section 9
hereof (such date and time of delivery and payment for the Securities being
herein called the "Closing Date"). Delivery of the Securities shall be made to
the Purchasers
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against payment by the Purchasers of the purchase price thereof to or upon the
order of the Company by wire transfer in Federal (same day) funds to a U.S.
dollar account in the United States previously designated by the Company or such
other manner of payment as may be designated by the Company and agreed to by the
Purchasers not less than two business days prior to the Closing Date. Delivery
of the Securities shall be made at the office of Cravath, Swaine & ▇▇▇▇▇
("Counsel for the Purchasers"), ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇.
Certificates for the Securities shall be registered in such names and in such
denominations as the Purchasers may request not less than two full business days
in advance of the Closing Date.
The Company agrees to have the Securities available for inspection,
checking and packaging by the Purchasers in New York, New York, not later than
1:00 PM on the business day prior to the Closing Date.
4. Offering of Securities. Each Purchaser severally and not jointly
----------------------
(i) acknowledges that the Securities have not been registered under the
Securities Act and may not be offered or sold except pursuant to an exemption
from, or in a transaction not subject to, the registration requirements of the
Securities Act or pursuant to an effective registration statement under the
Securities Act and (ii) represents and warrants to and agrees with the Company
that:
(a) It has not offered or sold, and will not offer or sell, any
Securities except (i) to those it reasonably believes to be qualified
institutional buyers (as defined in Rule 144A under the Securities Act) and
that, in connection with each such sale, it has taken or will take
reasonable steps to ensure that the purchaser of such Securities is aware
that such sale is being made in reliance on Rule 144A or (ii) pursuant to
Regulation S.
(b) Neither it nor any person acting on its behalf has made or will
make offers or sales of the Securities in the United States by means of any
form of general solicitation or general advertising (within the meaning of
Regulation D) in the United States, except pursuant to a registered public
offering, whether an exchange offer or shelf registration, as provided in
the Registration Agreement.
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5. Agreements. The Company agrees with the Purchasers that:
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(a) The Company will furnish to the Purchasers, without charge, as
many copies of the Final Memorandum and any supplements or amendments
thereof or thereto as the Purchasers may reasonably request. The Company
will pay the expenses of printing or other production of all documents
relating to the Offering.
(b) The Company will not amend or supplement the Final Memorandum
without prior consent of the Purchasers, which consent will not be
unreasonably withheld.
(c) If at any time prior to the completion of the sale of the
Securities by the Purchasers, any event occurs as a result of which the
Final Memorandum, as then amended or supplemented, would include any untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, or if it shall be necessary to amend
or supplement the Final Memorandum to comply with any applicable law, the
Company promptly will notify the Purchasers of the same and, subject to
paragraph (b) of this Section 5, will prepare and provide to the Purchasers
pursuant to paragraph (a) of this Section 5 an amendment or supplement that
will correct such statement or omission or effect such compliance.
(d) The Company will cooperate with the Purchasers in arranging for
the qualification of the Securities for sale under the laws of such
jurisdictions as the Purchasers may designate and will maintain such
qualifications in effect so long as required for the sale of the
Securities, provided that in no event shall the Company be obligated to (i)
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qualify to do business in any jurisdiction where it is not now so
qualified, (ii) take any action that would subject it to service of process
in suits (other than those suits arising out of the offering or sale of the
Securities) in any jurisdiction where it is not now so subject or (iii)
subject itself to taxation in excess of a nominal dollar amount in any such
jurisdiction where it is not then so subject. The Company promptly will
advise the Purchasers of the
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receipt by it of any notification with respect to the suspension of the
qualification of the Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose.
(e) The Company will not, and will not permit any of its Affiliates
under the Company's control to, resell any Securities that have been
acquired by any of them.
(f) None of the Company, any of its Affiliates, or any person acting
on its or their behalf will, directly or indirectly, make offers or sales
of any security, or solicit offers to buy any security, under circumstances
that would require the registration of the Securities under the Securities
Act, except pursuant to a registered public offering, whether an exchange
offer or shelf registration, as provided in the Registration Agreement..
(g) None of the Company, any of its Affiliates or any person acting
on its or their behalf will engage in any form of general solicitation or
general advertising (within the meaning of Regulation D) in connection with
any offer or sale of the Securities in the United States, except pursuant
to a registered public offering, whether an exchange offer or shelf
registration, as provided in the Registration Agreement.
(h) So long as any of the Securities are "restricted securities"
within the meaning of Rule 144(a)(3) under the Securities Act, the Company
will, during any period in which it is not subject to or in compliance with
Section 13 or 15(d) of the Exchange Act, provide to each holder of such
restricted securities and to each prospective purchaser (as designated by
such holder) of such restricted securities, upon the request of such holder
or prospective purchaser, any information required to be provided by Rule
144A(d)(4) under the Securities Act.
(i) None of the Company, any of its Affiliates or any person acting
on its or their behalf will engage in any directed selling efforts with
respect to the Securities except pursuant to a registered public offering
as provided in the Registration Agreement and each of them will comply with
the offering restrictions requirement of Regulation S. Terms used in this
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paragraph have the meanings given to them by Regulation S.
(j) The Company will cooperate with the Purchasers and use its
commercially reasonable efforts to permit the Securities to be eligible for
clearance and settlement through The Depository Trust Company.
(k) The Company hereby agrees to permit the Securities to be
designated Portal eligible securities, will pay the requisite fees related
thereto and has been advised by The Portal Market that the Securities have
or will be designated Portal eligible securities in accordance with the
rules and regulations of the National Association of Securities Dealers,
Inc.
(l) The Company will not, until 180 days following the Closing Date,
without the prior written consent of Salomon Brothers Inc, offer, sell or
contract to sell, or otherwise dispose of, directly or indirectly, or
announce the offering of, or file a registration statement for, any debt
securities issued or guaranteed by the Company (other than (i) the
Securities and (ii) pursuant to a registered public offering as provided in
the Registration Agreement). The Company will not at any time offer, sell,
contract to sell or otherwise dispose of, directly or indirectly, any
securities under circumstances where such offer, sale, contract or
disposition would cause the exemption afforded by Section 4(2) of the
Securities Act or the safe harbor of Regulation S thereunder to cease to be
applicable to the offer and sale of the Securities as contemplated by this
Agreement and the Final Memorandum.
(n) The Company will apply the net proceeds from the sale of the
Securities sold by it substantially in accordance with its statements under
the caption "Use of Proceeds" in the Final Memorandum.
6. Conditions to the Obligations of the Purchasers. The obligations
-----------------------------------------------
of the Purchasers to purchase the Securities shall be subject to the accuracy of
the representations and warranties on the part of the Company contained herein
at the date and time that this Agreement is executed and delivered by the
parties hereto (the "Execution Time") and the Closing Date, to the accuracy of
the statements of the Company made in any certificates pursuant
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to the provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
(a) The Company shall have furnished to the Purchasers the opinion of
▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the
Closing Date, to the effect that:
(i) each of the Company and its Subsidiaries has been duly
incorporated and is in good standing as a corporation under the laws
of the respective jurisdiction in which it is chartered or organized,
with full corporate power and authority to own its properties and
conduct its business as described in the Final Memorandum, and, based
on certificates from applicable government officials, is duly
qualified to do business as a foreign corporation and is in good
standing under the laws of each jurisdiction that requires such
qualification wherein it owns or leases material properties or
conducts material business, other than such jurisdictions where
failure to be so qualified could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect;
(ii) all the outstanding shares of capital stock of the Company
and each of its Subsidiaries have been duly and validly authorized and
issued and are fully paid and nonassessable, and, except as otherwise
set forth in the Final Memorandum, and based solely on a review of the
stock ledgers of the Company and its Subsidiaries, all outstanding
shares of capital stock of any Subsidiary of the Company are owned by
the Company either directly or through wholly owned Subsidiaries free
and clear of any perfected security interest and, to the best of such
counsel's knowledge, any other security interests, claims or
encumbrances;
(iii) the Company's authorized equity capitalization is as set
forth in the Final Memorandum;
(iv) the information contained in the Final Memorandum under
the headings "Risk Factors--Regulation", "Regulation", "Certain U.S.
Federal
12
Tax Considerations", and the third paragraph under the heading
"Business--Industry Overview", fairly summarizes the matters therein
described;
(v) the Indenture conforms as to form in all material respects
with the requirements of the Trust Indenture Act and the rules and
regulations of the Commission applicable to an indenture that is
qualified thereunder;
(vi) no consent, approval, authorization or order of, or filing
or registration with (collectively, the "consents"), any court or
governmental agency or body (other than the Federal Communications
Commission (the "FCC") or any state public utility or similar
commission (each such commission a "PUC"), as to which such counsel
will express no opinion) is required for the execution, delivery and
performance of this Agreement, the Indenture, the Registration
Agreement and the Securities or for the consummation of the
Transactions, except for such consents that, if not obtained,
individually and in the aggregate could not reasonably be expected to
have a Material Adverse Effect and except such as may be required
under the blue sky or securities laws of any jurisdiction in
connection with the purchase and sale of the Securities by the
Purchasers and such other approvals (specified in such opinion) as
have been obtained and except such as may be required under the
Securities Act with respect to the Registration Agreement and the
transactions contemplated thereunder;
(vii) none of the issue and sale of the Securities, the
execution and delivery of this Agreement, the Registration Agreement
or the Indenture, the fulfillment of the terms hereof or thereof or
the consummation of the Transactions will conflict with, result in a
breach or violation of, or constitute a default under any law or the
articles or by-laws of the Company or any Subsidiary or the terms of
the Credit Agreement or any indenture or other agreement or instrument
known to such counsel and to which the Company or any Subsidiary is a
party or bound or any judgment, order or decree known to such counsel
to be applicable to the Company or any Subsidiary of any
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court, regulatory body, administrative agency, governmental body or
arbitrator having jurisdiction over the Company or any Subsidiary,
except with respect to this subsection (vii), for any such conflict,
breach, violation or default (A) that individually and in the
aggregate could not reasonably be expected to have a Material Adverse
Effect or (B) arising under laws, rules or regulations promulgated by
the FCC or any PUC;
(viii) the Company has full corporate right, power and authority
to execute and deliver the Indenture, the Securities, the Registration
Agreement and this Agreement and to perform its respective obligations
hereunder and thereunder; and all corporate action required to be
taken for the due and proper authorization, execution and delivery of
the Indenture, the Securities, the Registration Agreement and this
Agreement and for the consummation of the Transactions has been duly
and validly taken;
(ix) this Agreement and the Registration Agreement have been
duly authorized, executed and delivered by the Company;
(x) the Indenture has been duly authorized, executed and
delivered by the Company and constitutes a legal, valid and binding
instrument enforceable against the Company in accordance with its
terms, subject to applicable bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium and similar laws affecting
creditors' rights and remedies generally and to general principles of
equity (regardless of whether enforcement is sought in a proceeding at
law or in equity); the Securities are in the form contemplated by the
Indenture and have been duly authorized and executed by the Company
and, when authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Purchasers pursuant to
this Agreement, will be duly and validly issued and outstanding and
will constitute legal, valid and binding obligations of the Company
entitled to the benefits of the Indenture and enforceable in
accordance with their terms, subject to applicable bankruptcy,
insolvency, reorganization, fraudulent conveyance,
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moratorium and similar laws affecting creditors' rights and remedies
generally and to general principles of equity (regardless of whether
enforcement is sought in a proceeding at law or in equity); and the
statements set forth under the heading "Description of Notes" in the
Final Memorandum, insofar as such statements purport to summarize the
provisions of the Securities and the Indenture, provide a fair summary
of such provisions;
(xi) to the best knowledge of such counsel, there is no pending
or threatened action, suit or proceeding before any court or
governmental agency, authority or body or any arbitrator involving the
Company or any of the Subsidiaries or to which any of the properties
of the Company or any of the Subsidiaries is subject that would be
required to be disclosed in the Final Memorandum if the Final
Memorandum were a prospectus included in a registration statement on
Form S-1 under the Securities Act, that is not adequately disclosed in
the Final Memorandum;
(xii) the Company is not, and after giving effect to the
offering and sale of the Securities and the application of the net
proceeds therefrom, will not be, an "investment company" within the
meaning of the Investment Company Act and the rules and regulations of
the Commission thereunder, without taking account of any exemption
arising out of the number of holders of the Company's securities; and
(xiii) assuming the accuracy of the representations and
warranties and compliance with the agreements contained herein, no
registration of the Securities under the Securities Act is required,
and no qualification of the Indenture under the Trust Indenture Act is
necessary, for the offer, sale and delivery of the Securities in the
manner contemplated by this Agreement.
Such counsel shall also state that they have no reason to believe that
at the Execution Time the Final Memorandum contained an untrue statement of
a material fact or omitted to state a material fact necessary in order to
make the statements therein, in the light of
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the circumstances under which they were made, not misleading or that the
Final Memorandum includes an untrue statement of a material fact or omits
to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading (provided that such counsel shall express no such belief
regarding the financial statements and the notes and schedules thereto and
other financial data contained in the Final Memorandum).
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the State
of New York, the State of Delaware or the United States, to the extent they
deem proper and specified in such opinion, upon the opinion of other
counsel of good standing whom they believe to be reliable and who are
reasonably satisfactory to Counsel for the Purchasers and (B) as to matters
of fact, to the extent they deem proper, on certificates of responsible
officers of the Company and public officials.
The opinion and letter of such counsel shall be rendered to the
Purchasers at the request of the Company and shall so state therein.
All references in this Section 6(a) to the Final Memorandum shall be
deemed to include any amendment or supplement thereto at the Closing Date.
(b) The Company shall have furnished to the Purchasers the opinions
of the following local counsel, or such other counsel as shall be
reasonably acceptable to the Purchasers: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ L.L.C., special
Colorado counsel to Big ▇▇▇▇▇ Telecom, Inc., Columbine Telephone Company,
Inc. and Sunflower Telephone Company, Inc.; Meyer, Capel, Hirschfeld,
Muncy, ▇▇▇▇ & ▇▇▇▇▇▇, P.C., special Illinois counsel to C-R Communications,
Inc. and Odin Telephone Exchange, Inc.; ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, special Kansas
counsel to Bluestem Telephone Company and Sunflower Telephone Company,
Inc.; Preti, Flaherty, ▇▇▇▇▇▇▇▇ & Pachios, LLC, special Maine counsel to
▇▇▇▇▇▇ Telephone Company and Northland Telephone Company of Maine, Inc.;
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Branch, special New Hampshire counsel to Northland
Telephone Company of Maine, Inc.; ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇, special New York
counsel to Chautauqua & Erie
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Telephone Corporation and Taconic Telephone Corp.; ▇▇▇▇ & ▇▇▇▇▇▇▇, special
South Dakota counsel to Kadoka Telephone Co.; ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇,
Ltd., special Vermont counsel to STE/NE Acquisition Corp. d/b/a Northland
Telephone Company of Vermont and Lane, Powell, Spears & Lubersky LLP,
special Washington counsel to Ellensburg Telephone Company. The opinion of
each such counsel shall be dated as of the Closing Date and to the effect
that:
(i) no consent, approval, authorization or order of, or filing
or registration with, any court or governmental agency or body of the
State to which such local counsel's opinion relates including, without
limitation, the Public Utilities Commission of such State, is
necessary in connection with the issuance by the Company of the
Securities or for the consummation of the Transactions;
(ii) each Subsidiary of the Company to which such local
counsel's opinion relates (A) has complied with the laws of such State
relating to such Subsidiary's corporate power to own and operate the
properties that it owns and operates in such State and (B) is the
valid holder of all approvals, consents, orders, permissions,
authorizations, and licenses of, and has made all registrations and
filings with, the PUC of such State that are required for the conduct
of its business as a regulated provider of telecommunications services
in such State;
(iii) to the best knowledge of such counsel, there is no pending
or threatened action, suit, or proceeding before any court or
governmental agency, authority or body or any arbitrator involving any
of the Subsidiaries to which such counsel's opinion relates or any of
their respective properties that seeks, or could reasonably be
expected, to rescind, terminate, modify or suspend any approval,
consent, permission, authorization, order or license of or
registration with any governmental authority or regulatory body; and
(iv) neither the issuance by the Company of the Securities nor
the consummation of the
17
Transactions will violate any law, rule, regulation, policy,
order, procedure or judgment of any governmental authority
or regulatory body, including any PUC, of such State.
The opinion and letter of each such local counsel shall be
rendered to the Purchasers at the request of the Company and
shall so state therein.
(c) The Company shall have furnished to the Purchasers the
opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, special
communications counsel to the Company and its Subsidiaries, dated
the Closing Date, to the effect that:
(i) the issuance by the Company of the Securities and
the consummation of the Transactions will not violate the
Communications Act of 1934, as amended, or any rule,
regulation, policy, order or decision of the FCC (the
"FCC");
(ii) no approval, consent or authorization of or
filing with the FCC is required in connection with the
issuance of the Securities by the Company or the
consummation of the Transactions; and
The opinion and letter of such counsel shall be rendered to
the Purchasers at the request of the Company and shall so state
therein.
(d) The Purchasers shall have received from Counsel for the
Purchasers such opinion or opinions, dated the Closing Date, with
respect to the issuance and sale of the Securities, the Final
Memorandum (as amended or supplemented at the Closing Date) and
other related matters as the Purchasers may reasonably require,
and the Company shall have furnished to such counsel such
documents as they reasonably request for the purpose of enabling
them to pass upon such matters.
(e) The Company shall have furnished to the Purchasers a
certificate of the Company, signed by the Chief Executive Officer
and President and the Chief Financial Officer, dated the Closing
Date, to the effect that the signers of such certificate have
carefully examined the Final Memorandum, any amendment or
supplement to the Final Memorandum, this Agreement and the
Registration Agreement and that:
18
(i) the representations and warranties of the Company
in this Agreement are true and correct in all material
respects on and as of the Closing Date with the same effect
as if made on the Closing Date, and the Company has complied
with all the agreements and satisfied all the conditions on
its part to be performed or satisfied at or prior to the
Closing Date; and
(ii) since the date of the most recent financial
statements included in the Final Memorandum (exclusive of
any amendment or supplement thereto), there has not been,
and no development has occurred that could reasonably be
expected to result in, any material adverse change in the
condition (financial or otherwise), properties, business or
results of operations of the Company and its subsidiaries,
taken as a whole, whether or not arising from transactions
in the ordinary course of business, except as disclosed in
the Final Memorandum (exclusive of any amendment or
supplement thereto).
(f) At the Execution Time and at the Closing Date, KPMG
Peat Marwick LLP shall have furnished to the Purchasers a letter
or letters, dated respectively as of the Execution Time and as of
the Closing Date, in form and substance satisfactory to the
Purchasers, confirming that they are independent accountants
within the meaning of the Securities Act and the applicable rules
and regulations thereunder and Rule 101 of the Code of
Professional Conduct of the American Institute of Certified
Public Accountants (the "AICPA") and stating in effect that:
(i) in their opinion the audited financial statements
and financial statement schedules included in the Final
Memorandum and reported on by them, comply in form in all
material respects with the applicable accounting
requirements of the Securities Act and the related published
rules and regulations that would apply to the Final
Memorandum if the Final Memorandum were a prospectus
included in a registration statement on Form S-1 under the
Securities Act;
(ii) based upon the procedures detailed in such letter
with respect to the period subsequent
19
to the date of the latest audited financial statements
included in the Final Memorandum, including the reading of
the minutes and inquiries of certain officials of the
Company who have responsibility for the financial and
accounting matters and certain other limited procedures
requested by the Purchasers and described in detail in such
letter, nothing has come to their attention that causes them
to believe that:
(A) with respect to the period subsequent to
December 31, 1997, there were any changes, at a
specified date not more than five business days prior
to the date of such letter, in the total debt of the
Company and its subsidiaries or capital stock of the
Company or decreases in the stockholders' equity of the
Company or decreases in working capital of the Company
and its subsidiaries, as compared with the amounts
shown on the December 31, 1997, consolidated balance
sheet included in the Final Memorandum, or for the
period from January 1, 1998, to such specified date
there were any decreases, as compared with the
corresponding period in the preceding fiscal year, in
net sales, operating income, net income or EBITDA, as
defined in the Final Memorandum under "Selected
Financial Data", in each case on an actual basis and
pro forma for the 1997 Acquisitions, except in all
instances for changes set forth in such letter, in
which case the letter shall be accompanied by an
explanation by the Company as to the significance
thereof unless said explanation is not deemed necessary
by the Purchasers; or
(B) the information included under the headings
"Summary Consolidated Financial and Operating Data",
"Selected Consolidated Financial and Operating Data",
"Management's Discussion and Analysis of Financial
Condition and Results of Operations" and "Summary
Compensation Table" is not in conformity with the
disclosure requirements of Regulation S-K that would
apply to the Final Memorandum if the Final Memorandum
were a prospectus included in a registration
20
statement on Form S-1 under the Securities Act;
(iii) they have performed certain other specified
procedures as a result of which they deter mined that
certain information of an accounting, financial or
statistical nature (which is limited to accounting,
financial or statistical informa tion derived from the
general accounting records of the Company and its
subsidiaries) set forth in the Final Memorandum, including
the information set forth under the captions "Summary",
"Summary Consolidated Financial and Operating Data", "Risk
Factors", "Use of Proceeds", "Capitalization", "Selected
Consolidated Financial and Operating Data", "Management's
Discussion and Analysis of Financial Condition and Results
of Operations", "Business", "Summary Compensation Table",
"Security Ownership of Certain Beneficial Owners and
Management", "Certain Relationships and Related
Transactions", "Description of Notes" and "Legal Matters" in
the Final Memorandum, agrees with the accounting records of
the Company and its subsidiaries, excluding any questions of
legal interpretation; and
(iv) on the basis of a reading of the unaudited pro
forma financial statements included in the Final Memorandum
(the "pro forma financial statements"); carrying out certain
specified procedures; reading of minutes and inquiries of
certain officials of the Company and those other companies
included in the pro forma financial statements, which
officials have responsibility for financial and accounting
matters; and proving the arithmetic accuracy of the
application of such pro forma adjustments to the historical
amounts in the pro forma financial statements, nothing came
to their attention that caused them to believe that the pro
forma financial statements do not comply in form in all
material respects with the applicable accounting
requirements of Rule 11-02 of Regulation S-X or that the pro
forma adjustments have not been properly applied to the
historical amounts in the compilation of such statements.
21
All references in this Section 6(f) to the Final Memorandum
shall be deemed to include any amendment or supplement thereto at
the date of the letter.
(g) At the Execution Time, KPMG Peat Marwick LLP,
independent public accountants to Taconic Telephone Corp.; ▇▇▇▇
▇▇▇▇▇ LLP, independent public accountants to Ellensburg Telephone
Company; ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇, independent public
accountants to Utilities, Inc.; Ernst & Young LLP, independent
public accountants to Chautauqua & Erie Telephone Corporation and
▇▇▇▇▇▇▇▇ Associates, independent public accountants to Big ▇▇▇▇▇
Telecommunications, Inc., shall each have furnished to the
Purchasers a letter, dated as of the Execution Time and in form
and substance satisfactory to the Purchasers, confirming that
they are independent accountants within the meaning of the
Securities Act and the applicable rules and regulations
thereunder and Rule 101 of the Code of Professional Conduct of
the AICPA and stating in effect that in their opinion, the
audited financial statements and financial statement schedules
included in the Final Memorandum and reported on by them comply
in form in all material respects with the applicable accounting
requirements of the Securities Act and the related published
rules and regulations that would apply to the Final Memorandum if
the Final Memorandum were a prospectus included in a registration
statement on Form S-1 under the Securities Act.
(h) Subsequent to the Execution Time or, if earlier, the
dates as of which information is given in the Final Memorandum,
there shall not have been (i) any change or decrease specified in
the letter or letters referred to in paragraph (f) of this
Section 6 or (ii) any change, or any development involving a
prospective change, in or affecting the business or properties of
the Company and its Subsidiaries the effect of which, in any case
referred to in clause (i) or (ii) above, is, in the judgment of
the Purchasers, so material and adverse as to make it impractical
or inad visable to market the Securities as contemplated by the
Final Memorandum .
(i) Subsequent to the Execution Time, there shall not have
been (i) any decrease in the rating of the Securities by any
"nationally recognized statistical rating organization" (as
defined for purposes of
22
Rule 436(g) under the Securities Act) or (ii) any notice given of any
intended or potential decrease in any such rating or that such organization
has under surveillance or review (other than any such notice that relates
only to a possible upgrading) its rating of the Securities or any of the
Company's other debt securities.
(j) If the acquisition by the Company of Ellensburg Telephone Company
is consummated prior to the Closing Date, the Company shall have received
an additional equity contribution of $15 million, in the aggregate, from
▇▇▇▇▇ & Company ("▇▇▇▇▇") and Carousel Capital Partners, L.P. ("Carousel"
and, together with ▇▇▇▇▇, the "Equity Investors").
(k) Each of the Equity Investors shall have granted its consent to
the issuance by the Company of the Securities.
(l) Each of NationsBank of Texas, N.A. and Bankers Trust Company, as
agents under the Credit Agreement, shall have granted its consent to the
issuance by the Company of the Securities, and for the Company to
consummate each of the Transactions, including, without limitation, the
consummation of the Ellensburg Put Option as it is described in the Final
Memorandum and the Indenture.
(m) Prior to the Closing Date, the Company shall have furnished to
the Purchasers such further information, certificates and documents as the
Purchasers may reasonably request.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Purchasers and Counsel for the Purchasers, this Agreement
and all obligations of the Purchasers hereunder may be canceled at, or at any
time prior to, the Closing Date by the Purchasers. Notice of such cancelation
shall be given to the Company in writing or by telephone confirmed in writing.
23
The documents required to be delivered by this Section 6 will be
delivered at the office of Counsel for the Purchasers, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇, on the Closing Date.
7. Reimbursement of Expenses. If the sale of the Securities provided
-------------------------
for herein is not consummated because any condition to the obligations of the
Purchasers set forth in Section 6 hereof is not satisfied or because of any
refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof, in each case other than by
reason of a default by the Purchasers, the Company will reimburse the Purchasers
upon demand for all out-of-pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been incurred by them in connection
with the proposed purchase and sale of the Securities.
8. Indemnification and Contribution. (a) The Company agrees to
--------------------------------
indemnify and hold harmless each Purchaser, each director, officer, employee and
agent of any Purchaser and each other person, if any, who controls any Purchaser
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act against any and all losses, claims, damages or liabilities, joint
or several, to which they or any of them may become subject under the Securities
Act, the Exchange Act or other Federal or state statutory law or regulation, at
common law or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in the
Preliminary Memorandum, the Final Memorandum or any information provided by the
Company to any holder or prospective purchaser of Securities pursuant to Section
5(h), or in any amendments thereof or supplements thereto, or arise out of or
are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, 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 in
the
24
Preliminary Memorandum or the Final Memorandum, or in any amendment thereof or
supplement thereto, in reliance upon and in conformity with written information
furnished to the Company by or on behalf of the Purchasers specifically for
inclusion therein, it being understood that the only such information is that
described in Section 8(b); and provided further, however, that with respect to
-------- ------- -------
any untrue statement or omission of a material fact made in any Preliminary
Memorandum, the indemnity agreement contained in this Section 8(a) shall not
inure to the benefit of any Purchaser from whom the person asserting any such
loss, claim, damage or liability purchased the Securities concerned in any
initial resale of the Securities by the Purchaser, to the extent that any such
loss, claim, damage or liability of such Purchaser occurs under the circumstance
where it shall have been determined by a court of competent jurisdiction by
final and nonappealable judgment that (i) the untrue statement or omission of a
material fact contained in the Preliminary Memorandum was corrected in the Final
Memorandum, (ii) the Company had previously furnished copies of the Final
Memorandum to the Purchasers and (iii) such loss, claim, damage or liability
results from the fact that there was not sent or given to such person at or
prior to the written confirmation of the sale of such Securities to such person,
a copy of the Final Memorandum. This indemnity agreement will be in addition to
any liability that the Company may otherwise have.
(b) Each Purchaser severally and not jointly agrees to indemnify and
hold harmless the Company, its directors and officers, and each other person, if
any, who controls the Company within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, to the same extent as the
foregoing indemnity from the Company to the Purchasers, but only with reference
to written information relating to the Purchasers furnished to the Company by or
on behalf of the Purchasers specifically for inclusion in the Preliminary
Memorandum or the Final Memorandum (or in any amendment thereof or supplement
thereto). This indemnity agreement will be in addition to any liability that the
Purchasers may otherwise have. The Company acknowledges that the statements set
forth in the last paragraph of the cover page and under the heading "Plan of
Distribution" in the Preliminary Memorandum and the Final Memorandum (or in any
amendment or supplement thereto) constitute the only information furnished in
writing by or on behalf of the Purchasers for inclusion in the Preliminary
25
Memorandum or the Final Memorandum (or in any amendment thereof or supplement
thereto).
(c) Promptly after receipt by an indemnified party under this Section
8 of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 8, notify the indemnifying party in writing of the commencement thereof;
but the failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless it did not otherwise learn of
such action and then only to the extent 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
counsel of the indemnifying party's choice at the indemnifying party's expense
to represent the indemnified party in any action for which indemnification is
sought (in which case the indemnifying party shall not thereafter be responsible
for the fees and expenses of any separate counsel retained by the indemnified
party or parties except as set forth below); provided, however, that such
-------- -------
counsel shall be reasonably 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 one separate counsel (in addition to one local counsel in
each jurisdiction), 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 that are different from or additional to those available to the
indemnifying party, (iii) the indemnifying party shall not have employed counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after notice of the institution of such action or
(iv) the indemnifying party shall authorize the indemnified party to employ
separate counsel at the expense of the indemnifying party. An indemnifying party
will not,
26
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any pending
or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b)
of this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company and the Purchasers (severally and
not jointly) agree to contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in connection
with investigating or defending same) (collectively "Losses") to which the
Company and the Purchasers may be subject in such proportion as is appropriate
to reflect the relative benefits received by the Company on the one hand and by
the Purchasers on the other from the offering of the Securities; provided,
--------
however, that in no case shall any Purchaser be responsible for any amount in
-------
excess of the purchase discount or commission applicable to the Securities
purchased by such Purchaser hereunder. If the allocation provided by the
immediately preceding sentence is unavailable for any reason, the Company and
the Purchasers (severally and not jointly) shall contribute in such proportion
as is appropriate to reflect not only such relative benefits but also the
relative fault of the Company on the one hand and of the Purchasers on the other
in connection with the statements or omissions that resulted in such Losses as
well as any other relevant equitable considerations. Benefits received by the
Company shall be deemed to be equal to the total net proceeds from the offering
of the Securities (before deducting expenses), and benefits received by the
Purchasers shall be deemed to be equal to purchase discounts and commissions, in
each case as set forth on the cover page of the Final Memorandum. Relative fault
shall be determined by reference to whether any alleged untrue statement or
omission relates to information provided by the Company or the Purchasers. The
Company and the Purchasers agree that it would not be just and equitable if
contribution were determined by pro rata allocation or any other method of
allocation that does not take account of the equitable considerations referred
to
27
above. Notwithstanding the provisions of this paragraph (d), no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this Section 8,
each person who controls a Purchaser within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act and each director, officer,
employee and agent of a Purchaser shall have the same rights to contribution as
such Purchaser, and each person who controls the Company within the meaning of
either the Securities Act or the Exchange Act and each officer and director of
the Company shall have the same rights to contribution as the Company, subject
in each case to the applicable terms and conditions of this paragraph (d).
9. Default by a Purchaser. If any one or more Purchasers shall fail
----------------------
to purchase and pay for any of the Securities agreed to be purchased by such
Purchaser hereunder and such failure to purchase shall constitute a default in
the performance of its or their obligations under this Agreement, the remaining
Purchasers shall be obligated severally to take up and pay for (in the
respective proportions that the principal amount of Fixed Rate Notes or Floating
Rate Notes, as the case may be, set forth opposite their names in Schedule I
hereto bears to the aggregate principal amount of Fixed Rate Notes or Floating
Rate Notes, as the case may be, set forth opposite the names of all the
remaining Purchaser(s)) the Securities that the defaulting Purchaser or
Purchasers agreed but failed to purchase; provided, however, that in the event
-------- -------
that the aggregate principal amount of Securities that the defaulting Purchaser
or Purchasers agreed but failed to purchase shall exceed 10% of the aggregate
principal amount of Securities set forth in Schedule I hereto, the remaining
Purchasers shall have the right to purchase all, but shall not be under any
obligation to purchase any, of the Securities, and if such non-defaulting
Purchasers do not purchase all the Securities, this Agreement will terminate
without liability to any non-defaulting Purchaser or the Company. In the event
of a default by any Purchaser as set forth in this Section 9, the Closing Date
shall be postponed for such period, not exceeding seven days, as the Purchasers
shall determine in order that the required changes in the Final Memorandum or in
any other documents or arrangements may be effected. Nothing contained in this
Agreement shall relieve any defaulting Purchaser of its liability, if any, to
the
28
Company or any non-defaulting Purchaser for damages occasioned by its default
hereunder.
10. Termination. This Agreement shall be subject to termination in
-----------
the absolute discretion of the Purchasers, by notice given to the Company prior
to delivery of and payment for the Securities, if prior to such time (i) trading
in securities on the New York Stock Exchange, the American Stock Exchange, or
the NASDAQ National Market shall have been suspended or limited or minimum
prices shall have been established on any such exchange or automated quotation
system, (ii) a banking moratorium shall have been declared either by Federal or
New York State authorities or (iii) 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 judgment of the Purchasers, impracticable
or inadvisable to proceed with the offering or delivery of the Securities as
contemplated by the Final Memorandum.
11. Representations and Indemnities to Survive. The respective
------------------------------------------
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Purchasers set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of the Purchasers, the Company or any of the
officers, directors, employees, agents or controlling persons referred to in
Section 8 hereof, and will survive delivery of and payment for the Securities.
The provisions of Sections 7 and 8 hereof shall survive the termination or
cancelation of this Agreement.
12. Notices. All communications hereunder will be in writing and
-------
effective only on receipt, and, if sent to the Purchasers, will be mailed,
delivered or sent by fax and confirmed to them, care of Salomon Brothers Inc, at
Seven World Trade Center, New York, New York, 10048, attention: General Counsel;
or, if sent to the Company, will be mailed, delivered or telegraphed and
confirmed to it at ▇▇▇▇▇▇▇▇ Place, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, with a copy to
▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇: ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇.
29
13. Successors. This Agreement will inure to the benefit of and be
----------
binding upon the parties hereto and their respective successors and the
officers, directors, employees, agents and controlling persons referred to in
Section 8 hereof, and no purchaser of the Securities from the Purchasers will be
deemed a successor because of such purchase and no other person will have any
right or obligation hereunder.
14. APPLICABLE LAW. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED
--------------
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO THE
CONFLICT OF LAW PROVISIONS THEREOF).
15. Business Day. For purposes of this Agreement, "business day"
------------
means each Monday, Tuesday, Wednesday, Thursday and Friday that is not a day on
which banking institutions in The City of New York, New York are authorized or
obligated by law, executive order or regulation to close.
16. Counterparts. This Agreement may be executed in one or more
------------
counterparts, each of which will be deemed to be an original, but all such
counterparts will together constitute one and the same instrument.
If the foregoing is in accordance with your under standing of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this Agreement and your acceptance shall represent a binding agreement between
the Company and the Purchasers.
Very truly yours,
MJD COMMUNICATIONS, INC.
by
___________________________________
Name:
Title:
30
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
SALOMON BROTHERS INC
BT ▇▇▇▇. BROWN INCORPORATED
NATIONSBANC ▇▇▇▇▇▇▇▇▇▇ SECURITIES LLC
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ SECURITIES CORPORATION
by SALOMON BROTHERS INC
by
______________________
Name:
Title:
SCHEDULE I
Principal Principal
Amount of Amount of
Fixed Rate Floating Rate
Notes to be Notes to be
Purchasers Purchased Purchased
---------- --------- ---------
Salomon Brothers Inc. . . . . . . . . . . $ $
BT ▇▇▇▇. ▇▇▇▇▇ Incorporated . . . . . . .
NationsBanc ▇▇▇▇▇▇▇▇▇▇
Securities LLC. . . . . . . . . . . . .
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇ Securities
Corporation . . . . . . . . . . . . . .
--------- ---------
Total . . . . . . . . . . . . $ $
========= =========
30
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
SALOMON BROTHERS INC
BT ▇▇▇▇. BROWN INCORPORATED
NATIONSBANC ▇▇▇▇▇▇▇▇▇▇ SECURITIES LLC
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ SECURITIES CORPORATION
by SALOMON BROTHERS INC
by
______________________
Name:
Title:
SCHEDULE I
Principal Principal
Amount of Amount of
Fixed Rate Floating Rate
Notes to be Notes to be
Purchasers Purchased Purchased
---------- --------- ---------
Salomon Brothers Inc........ $ $
BT Alex. Brown Incorporated
NationsBanc ▇▇▇▇▇▇▇▇▇▇
Securities LLC.............
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇ Securities
Corporation................
--------- ---------
Total................ $ $
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