Exhibit 1.1
▇▇▇ COMMUNICATIONS, INC.
(a Delaware corporation)
$500,000,000 6 3/4% Notes due 2011
PURCHASE AGREEMENT
March 6, 2001
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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....................4
(vii) Good Standing of Subsidiaries...................5
(viii) Capitalization..................................5
(ix) Authorization of Agreement......................5
(x) Authorization of the Indenture..................5
(xi) Authorization of Securities.....................5
(xii) Description of the Securities and the Indenture.6
(xiii) Absence of Defaults and Conflicts...............6
(xiv) Absence of Labor Dispute........................7
(xv) Absence of Proceedings..........................7
(xvi) Accuracy of Exhibits............................7
(xvii) Possession of Intellectual Property.............7
(xviii) Absence of Further Requirements.................7
(xix) Possession of Licenses and Permits..............8
(xx) Title to Property...............................8
(xxi) Investment Company Act..........................8
(xxii) Environmental Laws..............................8
(b) Officer's Certificates...................................9
SECTION 2. Sale and Delivery to Underwriters; Closing...............9
(a) Securities...............................................9
(b) Payment..................................................9
(c) Denominations; Registration.............................10
SECTION 3. Covenants of the Company................................10
(a) Compliance with Securities Regulations and Commission
Requests.............................10
(b) Filing of Amendments....................................10
(c) Delivery of Registration Statements.....................10
(d) Delivery of Prospectus..................................11
(e) Continued Compliance with Securities Laws...............11
(f) Blue Sky Qualifications.................................11
(g) Rule 158................................................12
(h) Use of Proceeds.........................................12
(i) Restriction on Sale of Securities.......................12
(j) Reporting Requirements..................................12
SECTION 4. Payment of Expenses.....................................12
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(a) Expenses. .............................................12
(b) Termination of Agreement................................12
SECTION 5. Conditions of Underwriters' Obligations.................13
(a) Effectiveness of Registration Statement.................13
(b) Opinion of Counsel for Company..........................13
(c) Opinion of Counsel for Underwriters.....................13
(d) Officers' Certificate...................................13
(e) Accountants' Comfort Letters............................14
(f) Bring-down Comfort Letter...............................14
(g) Maintenance of Rating...................................14
(h) Additional Documents....................................14
(i) Termination of Agreement................................14
SECTION 6. Indemnification.........................................15
(a) Indemnification of Underwriters.........................15
(b) Indemnification of Company, Directors and Officers......16
(c) Actions against Parties; Notification...................16
(d) Settlement without Consent if Failure to Reimburse......17
SECTION 7. Contribution............................................17
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery.................................................18
SECTION 9. Termination of Agreement................................18
(a) Termination; General....................................18
(b) Liabilities.............................................19
SECTION 10. Default by One of the Underwriters......................19
SECTION 11. Notices.................................................19
SECTION 12. Parties.................................................20
SECTION 13. Governing Law and Time..................................20
SECTION 14. Effect of Headings. ....................................20
SECTION 15. Counterparts............................................20
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SCHEDULES
Schedule A - List of Underwriters.................................Sch A
Schedule B - Pricing Information..................................Sch B
Schedule C - List of Subsidiaries.................................Sch C
EXHIBITS
Exhibit A - Form of Opinion of Company's Counsel....................A-1
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▇▇▇ COMMUNICATIONS, INC.
(a Delaware corporation)
$500,000,000 6 3/4% Notes due 2011
PURCHASE AGREEMENT
March 6, ▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ Securities LLC
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
Banc One Capital Markets, Inc.
Mizuho International plc
SunTrust Equitable Securities Corporation
Wachovia Securities, Inc.
c/o Banc of America Securities LLC
Banc of America Corporate Center
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
and
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
▇▇▇ Communications, Inc., a Delaware corporation (the "Company"),
confirms its agreement with Banc of America Securities LLC ("Banc of America"),
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated ("▇▇▇▇▇▇▇ ▇▇▇▇▇"), Banc One
Capital Markets, Inc., Mizuho International plc, SunTrust Equitable Securities
Corporation and Wachovia Securities, Inc. (collectively, the "Underwriters,"
which term shall also include any underwriter substituted as hereinafter
provided in Section 10 hereof) for whom Banc of America 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
$500,000,000 aggregate principal amount of the Company's 6 3/4% Notes due 2011
(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 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 (No. 333-54450) 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:
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(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.
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(iii) Independent Accountants. The accountants who certified the
financial statements and supporting schedules of the Company 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 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.
(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
4
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 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.
(xi) 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
5
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 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.
(xii) Description of the Securities and the Indenture. The Securities
and the Indenture, 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 will be in
substantially the respective forms filed or incorporated by reference, as
the case may be, as exhibits to the Registration Statement.
(xiii) 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 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 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.
6
(xiv) Absence of Labor Dispute. No labor dispute with the employees of
the Company or any of its subsidiaries exists or, to the knowledge of the
Company, is imminent which, individually or in the aggregate, may
reasonably be expected to result in a Material Adverse Effect.
(xv) 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 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.
(xvi) 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.
(xvii) 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.
(xviii) 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 by the Company, except such as have been
already obtained or as may be required under the 1933 Act or the 1933 Act
7
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.
(xix) 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.
(xx) 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.
(xxi) Investment Company Act. The Company is not, and upon the
issuance and sale of the Securities as herein contemplated and the
application of the net proceeds therefrom as described in the Prospectus
will not be, an "investment company" as such term is defined in the
Investment Company Act of 1940, as amended (the "1940 Act").
(xxii) 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
8
or subsurface strata) or wildlife, including, without limitation, laws and
regulations relating to the release or threatened release of chemicals,
pollutants, contaminants, wastes, toxic substances, hazardous substances,
petroleum or petroleum products (collectively, "Hazardous Materials") or to
the manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of Hazardous Materials (collectively,
"Environmental Laws"), (B) the Company and its subsidiaries have all
permits, authorizations and approvals required under any applicable
Environmental Laws and are each in compliance with their requirements, (C)
there are no pending or 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 Schedule B, 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 ▇▇▇▇▇ &
Wood LLP, or at such other place as shall be agreed upon by the
Representatives 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
Representatives and the Company (such time and date of payment and delivery
being herein called "Closing Time").
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.
9
(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
10
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 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.
11
(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 Banc of America 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 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
12
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.
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 ▇▇▇▇▇ & 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
13
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 issued and no proceedings for that
purpose have been instituted or are pending or are contemplated by the
Commission.
(e) Accountants' 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 as of a recent date, 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.
14
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).
15
For purposes of the second proviso to the immediately 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 Representatives,
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 to or an admission of fault, culpability or
a failure to act by or on behalf of any indemnified party.
16
(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
17
party 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 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 ▇▇▇▇ ▇▇▇) 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 Representatives 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 Representatives, 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
18
American Stock Exchange or the New York Stock Exchange or in the 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 Banc of America 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 Banc of America 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 Banc of America 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 Banc of America Securities LLC, Banc of
America Corporate Center, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇, attention of ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, and to ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ &
▇▇▇▇▇ Incorporated, North Tower, 2 World Financial Center, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, attention of ▇▇▇▇ ▇▇▇▇▇▇▇▇, Director; and notices to the Company shall be
directed to it at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, attention of
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇.
19
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.
20
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/ ▇▇▇▇ ▇. Major
---------------------------------
Name: ▇▇▇▇ ▇. Major
Title: Treasurer
CONFIRMED AND ACCEPTED, as of the date first above written:
as Representatives of the several Underwriters,
BANC OF AMERICA SECURITIES LLC
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇ III
----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇ III
Title: Associate
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title:Authorized Signatory
SCHEDULE A
Principal Amount
of 6 3/4% Notes
Underwriter due 2011
----------- --------
Banc of America Securities LLC.......................................................... $187,500,000
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ $187,500,000
Incorporated.......................................................
Banc One Capital Markets, Inc. ......................................................... $31,250,000
Mizuho International plc................................................................ $31,250,000
SunTrust Equitable Securities Corporation............................................... $31,250,000
Wachovia Securities Inc. ............................................................... $31,250,000
Total.................................................................... $500,000,000
Sch A-1
SCHEDULE B
▇▇▇ COMMUNICATIONS, INC.
$500,000,000 6 3/4% Notes due 2011
1. The initial public offering price of the above-referenced securities shall
be 99.675% 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 99.025% of the principal amount thereof.
3. The interest rate on the above-referenced securities shall be 6 3/4% per
annum.
Sch B-2-1
SCHEDULE C
List of Subsidiaries
▇▇▇ Communications Las Vegas, Inc.
Cox Classic Cable, Inc.
CoxCom, Inc.
▇▇▇ Communications BTP Holdings, Inc.
CCI PCS, Inc.
Sch C-1
EXHIBIT A
FORM OF OPINION OF DOW, ▇▇▇▇▇▇ &ALBERTSON, PLLC,
TO BE DELIVERED PURSUANT TO SECTION 5(a)
Banc of America Securities LLC
Merrill, Lynch, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
Banc One Capital Markets, Inc.
Mizuho International plc
SunTrust Equitable Securities Corporation
Wachovia Securities, Inc.
c/o: Banc of America Securities LLC
Banc of America Corporate Center
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇; and
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
This opinion is being delivered to you pursuant to Section 5(b) of the
Purchase Agreement, dated March 6, 2001 (the "Purchase Agreement"), among you
and ▇▇▇ Communications, Inc., a Delaware corporation (the "Company"), providing
for the issuance and sale to you on this date of $500,000,000 aggregate
principal amount of the Company's 6 3/4% Notes due 2011 (the "Notes"). We have
served as special counsel to the Company in connection with the issuance and
sale of the Notes. Capitalized terms used herein that are not otherwise defined
herein shall have the same meanings as in the Purchase Agreement.
In this connection, we have examined the Registration Statement on Form
S-3 (File No. 333-54450) filed by the Company with the Securities and Exchange
Commission (the "Commission") for the registration of, among other things, the
Notes. Such registration statement (as so amended), in the form in which it
became effective and including the documents incorporated or deemed to be
incorporated by reference therein pursuant to Item 12 of Form S-3, is
hereinafter called the "Registration Statement." We have also examined copies of
the Company's Prospectus dated February 2, 2001 (the "Base Prospectus") and the
Prospectus Supplement to the Base Prospectus dated March 6, 2001 relating to the
Notes (the "Prospectus Supplement"). The term "Prospectus" means the Base
Prospectus and Prospectus Supplement in the forms filed with the Commission
pursuant to Rule 424(b)(5) under the 1933 Act, including the documents
incorporated or deemed to be incorporated by reference pursuant to Item 12 of
Form S-3 under the ▇▇▇▇ ▇▇▇. We have also examined originals or copies,
certified or otherwise identified to our satisfaction, of all such agreements,
certificates of public officials, including certificates of various governmental
authorities, certificates of officers or representatives of the Company and
A-1
others, and such other documents, certificates and corporate, partnership or
other records, in each case, as we have deemed necessary or appropriate as a
basis for the opinions set forth herein. In our examination we have assumed the
genuineness of all signatures, the legal capacity of natural persons, the
authenticity of all documents submitted to us as originals, the conformity to
original documents of all documents submitted to us as certified or photostatic
or facsimile copies (and the authenticity of the originals of such documents)
and the due, binding and valid authorization, execution and delivery pursuant to
lawful power and legal right of applicable instruments and documents on behalf
of persons and entities other than the Company. As to any facts relevant to the
opinions expressed herein, we have relied upon (i) representations of the
Company in the Purchase Agreement, (ii) statements and representations of
officers and other representatives of the Company and others, and (iii) the
accuracy and completeness of all records, documents and reports of the Company
or any of its subsidiaries made available to us. Where in this opinion the
phrase "to our knowledge", "of which we are aware", "known to us" or like
language is used with respect to any statement, it shall mean that none of the
lawyers in this firm who have given substantive legal attention to the
representation of the Company in connection with the issuance and sale of the
Notes pursuant to the Purchase Agreement has actual knowledge that the statement
is false. Such term does not include any knowledge of other lawyers or any
constructive or imputed notice of any items of information.
Our opinions in numbered paragraphs (13) and (14) below (the "FCC
Opinions") are strictly limited to matters arising under the Communications Act
of 1934, as amended, and the published rules, regulations and policies of the
Federal Communications Commission (the "FCC") (collectively, the "Communications
Act") relating to the Company's business as set forth in the Prospectus. We do
not purport to express opinions in the FCC Opinions concerning any laws other
than the Communications Act. Except for a review of certain publicly available
records of the FCC as described below, we have not made any independent review
or investigation of the Company or any of its subsidiaries, their operations or
businesses or of the operations or businesses of any other person or entity in
connection with the FCC Opinions. In addition, we have not conducted an
inspection of the Company or any of its subsidiaries, their work product,
records or operations. Other than our review of the publicly available files for
the Company available to us at the FCC's Washington, D.C. offices on March 8,
2001, we have not undertaken any inquiry to determine the existence or absence
of any facts relevant to the FCC Opinions. We have not searched the docket files
of any court.
In connection with our rendering of this opinion, we have not been
retained or engaged to perform, nor have we performed, any independent
investigation with respect to any agreements to which the Company or any of its
subsidiaries may be subject (other than the agreements identified in Schedule 1
attached hereto (the "Identified Agreements")), nor have we made any
investigation as to the existence of facts, if any, which could cause the
Company or any present or proposed stockholder, officer, director, partner,
person or entity voting the stock of the Company, or other direct or indirect
principal of the Company, any of its subsidiaries, or any other person to be in
violation of any ownership restrictions arising under the Communications Act as
a result of any person's or entity's other ownership interests or positions.
While we have served as special counsel to the Company, our engagement has been
limited to matters as to which we have been consulted, and the Company may
employ other counsel from time to time, including its own internal counsel.
Accordingly, no inference as to our knowledge of the existence or absence of
such facts should be drawn from our serving as special counsel to the Company.
A-2
We are members of the Bar of the District of Columbia and do not
purport to be experts on, or generally familiar with, or certified to express
legal conclusions based upon, the laws of any other jurisdiction. As to matters
of law set forth below, our opinion is limited solely, to the extent applicable
hereto, to matters of law under the laws of the State of New York, the laws of
the United States and the Delaware General Corporation Law (collectively,
"Applicable Law"); however, the term "Applicable Law" is limited to those laws
and regulations that a lawyer exercising customary professional diligence would
reasonably recognize as being directly applicable to the issuance and sale of
the Notes by the Company pursuant to the Purchase Agreement, the Indenture,
dated as of June 27, 1995 (the "Indenture"), between the Company and The Bank of
New York, as trustee (the "Trustee"), and the Notes and does not include laws
and regulations of county, municipal and special political subdivisions, whether
state, regional, municipal or otherwise. The Indenture, the Purchase Agreement
and the Notes are collectively referred to herein as the "Operative Agreements."
We express no opinion as to conflicts of law rules, or the laws of any states or
jurisdictions other than as specified above.
Based upon the foregoing and subject to the other qualifications stated
herein, we are of the opinion that:
(1) The Company is an existing corporation in good standing under the
laws of the State of Delaware, has the corporate power and
authority to own its properties and to conduct its business as
described in the Prospectus and to enter into and perform (as if
such performance occurred on the date hereof) its obligations
under each of the Operative Agreements and, based solely on a
review of certificates of an officer of the Company and from
appropriate governmental authorities or telephonic confirmations
from representatives of such authorities in Georgia, is duly
qualified as a foreign corporation to transact business and is in
good standing in Georgia.
(2) Each subsidiary of the Company identified on Schedule 2 attached
hereto (each a "Subsidiary" and collectively the "Subsidiaries")
is an existing corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and
authority to own its property and to conduct its business as
described in the Prospectus and, to our knowledge, based solely
on a review of a certificate of an officer of the Company, is
duly qualified to transact business and is in good standing in
each jurisdiction in which the conduct of its business or its
ownership or leasing of property as described in the Prospectus
requires such qualification, except to the extent that the
failure to be so qualified or be in good standing would not
result in a Material Adverse Effect.
(3) The Purchase Agreement has been duly authorized, executed and
delivered by the Company.
(4) The Indenture has been duly qualified under the 1939 Act, and the
Indenture has been duly authorized, executed and delivered by the
A-3
Company and, assuming due authorization, execution and delivery
of the Indenture by the Trustee, the Indenture constitutes a
valid and binding agreement of the Company, enforceable against
the Company in accordance with its terms.
(5) The Notes are in the form contemplated by the Indenture, have
been duly authorized by the Company and, when issued and
authenticated by the Trustee in the manner provided for in the
Indenture (assuming the due authorization, execution and delivery
of the Indenture by the Trustee) and delivered against payment of
the consideration therefor specified in the Purchase Agreement,
will constitute valid and binding obligations of the Company,
entitled to the benefits of the Indenture and enforceable against
the Company in accordance with their terms.
(6) The Registration Statement and the Prospectus, excluding the
documents incorporated or deemed to be incorporated by reference
therein, and each amendment or supplement to the Registration
Statement and the Prospectus, excluding the documents
incorporated or deemed to be incorporated by reference therein,
as of their respective effective or issue dates (other than the
financial statements and schedules or other financial information
and statistical data included therein or omitted therefrom and
the Statement of Eligibility on Form T-1 (the "Form T-1"), as to
which we express no opinion) complied as to form in all material
respects with the requirements of the 1933 Act and the 1933 Act
Regulations.
(7) The 1933 Act and 1934 Act filings incorporated by reference in
the Prospectus (other than the financial statements and schedules
or other financial information and statistical data included
therein or omitted therefrom, as to which we express no opinion),
when they became effective or were filed with the Commission, as
the case may be, complied as to form in all material respects
with the requirements of the 1933 Act or the 1934 Act, as
applicable, and the rules and regulations of the Commission
thereunder.
(8) To our knowledge and other than as set forth in the Prospectus,
there is not pending or threatened in writing any action, suit,
proceeding, inquiry or investigation, governmental or otherwise,
to which the Company or any subsidiary is a party which might
reasonably be expected to have a Material Adverse Effect, or that
seeks to restrain, enjoin, prevent the consummation of, or
otherwise challenge the issuance or sale of the Notes pursuant to
the Purchase Agreement or the application of the proceeds
therefrom.
(9) The information included or incorporated by reference (A) in the
Prospectus under the captions "Description of the Notes,"
"Certain United States Income Tax Considerations" and
"Description of Debt Securities," (B) in the Registration
Statement under Items 14 and 15, and (C) in the Company's Form
10-K for the year ended December 31, 1999 under the captions
"Business--Competition" and "--Legislation and Regulation" to the
extent that it constitutes matters of U.S. Federal laws, rules
and regulations referred to therein, legal conclusions or
A-4
summaries of the provisions of the Company's certificate of
incorporation and by-laws or the Operative Agreements referred to
therein has been reviewed by us and accurately describes in all
material respects the matters referred to therein.
(10) The statements in the Company's Form 10-K for the year ended
December 31, 1999 under the caption "Legal Proceedings," to the
extent that such statements constitute summaries of legal
proceedings, have been reviewed by us and, to our knowledge,
accurately describe such legal proceedings in all respects
material to the business of the Company as described in the
Prospectus; provided, however, that we have not been retained to
represent the Company or any Subsidiary or affiliate of the
Company in connection with all such legal proceedings.
(11) To our knowledge, no consent, approval, authorization or order
of, or qualification with, any governmental agency or body is
required under Applicable Law for the execution and delivery by
the Company of the Operative Agreements, or the consummation by
the Company (as if consummation occurred on the date hereof) of
the transactions contemplated thereby, except as has already been
acquired or as may be required under state securities or "Blue
Sky" laws.
(12) The issuance of the Notes and the execution, delivery and
performance (as if such performance occurred on the date hereof)
by the Company of the Operative Agreements and consummation (as
if consummation occurred on the date hereof) of the transactions
contemplated therein do not, whether with or without the giving
of notice or lapse of time or both, conflict with or constitute a
breach of, or default or Repayment Event (as defined in Section
l(a)(xiii) of the Purchase Agreement) under, or result in the
creation or imposition of any lien, charge or encumbrance upon
any property or assets of the Company or any Subsidiary pursuant
to, any Identified Agreement (except for such conflicts,
breaches, defaults, Repayment Events or liens, charges or
encumbrances that the Company has advised us would not,
individually or in the aggregate, have a Material Adverse
Effect), nor will such action result in any violation of the
provisions of the certificate of incorporation or by-laws or
other constitutive documents of the Company or any Subsidiary,
or, to our knowledge, any Applicable Law or to our knowledge, any
judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having
jurisdiction over the Company or any Subsidiary and specifically
applicable to the Company and any Subsidiary.
(13) To our knowledge, the Company is not, nor with the giving of
notice or lapse of time or both would be, in violation of any
judgment, injunction, order or decree of the FCC, other than
those that the Company has advised us, would not, individually or
in the aggregate, have a Material Adverse Effect.
(14) The execution, delivery and performance (as if such performance
occurred on the date hereof) by the Company of the Purchase
Agreement do not violate the Communications Act or any rules or
the regulations thereunder binding on the Company or its
Subsidiaries or any order, writ, judgment, injunction, decree or
award of the FCC binding on the Company or its Subsidiaries of
which we have knowledge.
A-5
(15) The Company is not an "investment company" as such term is
defined in the 1940 Act.
We have been orally advised by the staff of the Commission that the
Registration Statement has been declared effective under the 1933 Act; the
required filing of the Prospectus pursuant to Rule 424(b) has been made in the
manner and within the time period required by Rule 424(b); and, to our
knowledge, no stop order suspending the effectiveness of the Registration
Statement has been issued under the 1933 Act and no proceedings for that purpose
have been instituted or are pending or threatened by the Commission.
In the course of the preparation of the Registration Statement and the
Prospectus (other than the documents incorporated or deemed to be incorporated
by reference therein), we participated in conferences with officers and
representatives of the Company, representatives of the independent certified
public accountants of the Company and representatives of the Underwriters and
their counsel at which conferences the contents of the Registration Statement
and the Prospectus and related matters were discussed. Although we are not
passing upon or assuming responsibility for the accuracy, completeness or
fairness of the statements contained or incorporated by reference in the
Registration Statement and the Prospectus and have not made any independent
investigation, check or verification of facts for the purpose of rendering this
opinion (except as described in paragraphs 9 and 10), on the basis of the
foregoing, we advise you that nothing has come to our attention that leads us to
believe that the Registration Statement (except for financial statements and
schedules or other financial information or statistical data included or
incorporated by reference therein or omitted therefrom and the Form T-1, as to
which we make no statement), as of the date the Registration Statement was
declared effective by the Commission or at the date of the Purchase Agreement,
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading or that the Prospectus (except for financial statements and
schedules or other financial information and statistical data included or
incorporated by reference therein or omitted therefrom, as to which we make no
statement), at the time the Prospectus was issued or at the date hereof,
contained or contains an untrue statement of a material fact or omitted or omits
to state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading.
The opinions set forth above are subject to the following additional
qualifications:
(i) The enforceability of agreements, documents and instruments is
subject to general principles of equity, including, without
limitation, concepts of materiality, reasonableness, good faith
and fair dealing, and the discretion of the court before which
any proceeding therefor may be brought, regardless of whether
enforcement is sought in a proceeding in equity or at law, and
bankruptcy, reorganization, insolvency, fraudulent conveyance or
transfer, moratorium (whether general or specific) and other laws
affecting creditors' rights or the relief of debtors generally.
Furthermore, the prior consent of the FCC may be required to the
extent that any action by the holders of any Note to enforce its
A-6
or their respective rights under the Notes would result in a
transfer of control or assignment of any authorization issued by
the FCC. We express no opinion as to whether any such consent
would be granted.
(ii) We express no opinion concerning the enforceability of (a)
waivers of notice or of any other constitutional, statutory or
common law rights, including, without limitation, waiver of stay,
extension or usury laws, and (b) indemnification or contribution
provisions to the extent such provisions are deemed to violate
federal or state securities laws.
(iii)We express no opinion as to any state or local laws, rules or
regulations relating to the regulation of telecommunications.
This opinion is furnished by us, as special counsel to the Company, in
connection with the closing of the above-referenced issuance and sale of the
Notes occurring today. The information set forth herein is as of the date
hereof. We assume no obligation to advise you of changes which may thereafter be
brought to our attention. Our opinion is based upon statutory laws and judicial
decisions in effect at the date hereof, and we do not opine with respect to any
law, regulation, rule or governmental policy which may be enacted or adopted
after the date hereof, nor assume any responsibility to advise you of future
changes in our opinion. This opinion is furnished to you solely for your benefit
in connection with such issuance and sale of the Notes occurring today and is
not to be used, circulated, quoted or otherwise referred to for any other
purpose, and may not be relied upon by any other person, without our express
prior written permission.
A-7
SCHEDULE 1
Identified Agreements
1. Indenture dated as of June 27, 1995 between ▇▇▇ Communications,
Inc. and The Bank of New York, as Trustee, relating to the 6 3/8%
Notes due 2000, 6 1/2% Notes due 2002, 6 7/8 Notes due 2005, 7
1/4% Debentures due 2015 and the 7 5/8% Debentures due 2025 of
▇▇▇ Communications, Inc.
2. Tax Allocation Agreement, dated as of February 1, 1995, by and
between ▇▇▇ Enterprises, Inc. and ▇▇▇ Communications, Inc.
3. Cox Executive Supplemental Plan of ▇▇▇ Enterprises, Inc.
4. ▇▇▇ Communications, Inc. Long-Term Incentive Plan.
5. ▇▇▇ Communications, Inc. Restricted Stock Plan for Non-Employee
Directors.
6. Five-Year Credit Agreement, dated as of September 26, 2000, by
and among ▇▇▇ Communications, Inc., The Chase Manhattan Bank, as
Administrative Agent, Chase Bank of Texas, National Association,
as Syndication Agent, The Bank of New York and Wachovia Bank,
N.A., as Co-Documentation Agents, and the other banks party
thereto.
7. 364-Day Credit Agreement, dated as of September 26, 2000, by and
among ▇▇▇ Communications, Inc., Bank of America National Trust
and Savings Association, as Syndication Agent, The Bank of New
York and Wachovia Bank, N.A., as Co -Documentation Agents, Chase
Bank of Texas, National Association, as Administrative Agent, and
the other banks party thereto.
8. First Supplemental Indenture, dated as of August 12, 1999,
between ▇▇▇ Communications, Inc. and The Bank of New York, as
Trustee, relating to the FELINE PRIDES of ▇▇▇ Communications,
Inc.
9. Second Supplemental Indenture, dated as of March 14, 2000,
between ▇▇▇ Communications, Inc. and The Bank of New York, as
Trustee, relating to the Premium PHONES of ▇▇▇ Communications,
Inc.
10. Third Supplemental Indenture, dated as of April 19, 2000, between
▇▇▇ Communications, Inc. and The Bank of New York, as Trustee,
relating to the Exchangeable Subordinated Discount Debentures of
▇▇▇ Communications, Inc.
11. Fourth Supplemental Indenture, dated as of February 23, 2001,
between ▇▇▇ Communications, Inc. and The Bank of New York, as
Trustee, relating to the Convertible Senior Notes due 2021.
A-8
SCHEDULE 2
List of CCI Subsidiaries
▇▇▇ Communications Las Vegas, Inc.
Cox Classic Cable, Inc.
CoxCom, Inc.
▇▇▇ Communications BTP Holdings, Inc.
CCI PCS, Inc.
B-1