Exhibit 1.1
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RCN CORPORATION
$[ ]
[ ]% Senior Discount Notes Due 2008
UNDERWRITING AGREEMENT
Dated as of June [ ], 1998
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RCN Corporation
$[ ]
[ ] Senior Discount Notes due 2008
UNDERWRITING AGREEMENT
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New York, New York
June [ ], 1998
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
Salomon Brothers Inc
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation
NationsBanc ▇▇▇▇▇▇▇▇▇▇ Securities LLC
▇/▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Ladies and Gentlemen:
RCN Corporation, a Delaware corporation (the "Company"), confirms
its agreements with ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated ("▇▇▇▇▇▇▇
▇▇▇▇▇") and each of the other Underwriters named in Schedule A hereto
(collectively, the "Underwriters", which term shall also include any underwriter
substituted as hereinafter provided in Section 10 hereof), for whom ▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ Brothers Inc, ▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities Corporation
and NationsBanc ▇▇▇▇▇▇▇▇▇▇ Securities LLC are acting as representatives (in such
capacity, the "Representatives"), with respect to the issue and sale by the
Company (the "Offering") and the purchase by the Underwriters, acting severally
and not jointly, of the respective principal amounts set forth in Schedule A of
$[ ] aggregate principal amount at maturity of the Company's (the
"Securities"). The Securities are to be issued pursuant to an indenture dated as
of June [ ], 1998 (the "Indenture") between the Company and The Chase
Manhattan Bank, as trustee (the "Trustee").
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The Company understands that the Underwriters propose to make a
public offering of the Securities as soon as the Representatives deem advisable
after this Agreement has been executed and delivered and the Indenture has been
qualified under the Trust Indenture Act of 1939, as amended (the "1939 Act").
The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-1 (No. 333-55673) covering
the registration of the Securities under the Securities Act of 1933, as amended
(the "Act"), including the related preliminary prospectus or prospectuses.
Promptly after execution and delivery of this Agreement, the Company will
prepare and file a prospectus in accordance with the provisions of Rule 430A
("Rule 430A") of the rules and regulations of the Commission under the Act (the
"1933 Act Regulations") and paragraph (b) of Rule 424 ("Rule 424(b)") of the
1933 Act Regulations. The information included in such prospectus that was
omitted from such registration statement at the time it became effective but
that is deemed to be part of such registration statement at the time it became
effective pursuant to paragraph (b) of Rule 430A is referred to as "Rule 430A
Information." Each prospectus used before such registration statement became
effective, and any prospectus that omitted the Rule 430A Information that was
used after such effectiveness and prior to the execution and delivery of this
Agreement, is herein called a "preliminary prospectus," and the preliminary
prospectus dated June 4, 1998, is herein called the "Preliminary Prospectus."
Such registration statement, including the exhibits thereto and schedules
thereto at the time it became effective and including the Rule 430A Information
is herein called the "Registration Statement." Any registration statement filed
pursuant to Rule 462(b) of the 1933 Act Regulations is herein referred to as the
"Rule 462(b) Registration Statement," and after such filing the term
"Registration Statement" shall include the Rule 462(b) Registration Statement.
The final prospectus in the form first furnished to the Underwriters for use in
connection with the offering of the Securities is herein called the
"Prospectus." For purposes of this Agreement, all references to the Registration
Statement, any preliminary prospectus, 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 ("▇▇▇▇▇").
This agreement (this "Agreement" or the "Underwriting Agreement"),
the Securities and the Indenture are referred to collectively as the "Operative
Documents."
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SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company. The Company
represents and warrants to each Underwriter as of the date hereof, as of the
Closing Time (as defined in Section 2(b) hereof, and agrees with each
Underwriter as follows:
(i) Each of the Registration Statement and any Rule 462(b)
Registration Statement has become effective under the Act and no stop
order suspending the effectiveness of the Registration Statement or any
Rule 462(b) Registration Statement has been issued under the 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 the Closing Time, the Registration Statement, the
Rule 462(b) Registration Statement and any amendments and supplements
thereto complied and will comply in all material respects with the
requirements of the Act and the 1933 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 such
amendment or supplement was 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
Prospectus made in reliance upon and in conformity with information
furnished to the Company in writing by any Underwriter through ▇▇▇▇▇▇▇
▇▇▇▇▇ expressly for use in the Registration Statement or Prospectus.
The Prospectus, when filed pursuant to Rule 424(b) under the
Act, will comply in all material respects with the 1933 Act Regulations
and the Prospectus delivered
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to the Underwriters for use in connection with this offering was
substantially identical to the electronically transmitted copies thereof
filed with the Commission pursuant to ▇▇▇▇▇, except to the extent
permitted by Regulation S-T.
(ii) The only Restricted Affiliates (as defined in the Indenture) as
of the date hereof are those listed on Schedule C hereto. Each of the
Company, each "significant subsidiary" (as defined in Section 210.1-02 of
Regulation S-X) of the Company (each a "Subsidiary" and collectively, the
"Subsidiaries") and the Restricted Affiliates has been duly organized and
is validly existing and in good standing under the laws of its
jurisdiction of organization, with all requisite power and authority under
such laws, and all necessary authorizations, approvals, orders, licenses,
certificates and permits of and from regulatory or governmental officials,
bodies and tribunals, (a) to own, lease and operate their respective
properties and to conduct their respective businesses as now conducted and
as described in the Prospectus and (b), in the case of the Company, to
enter into, deliver, incur and perform its obligations under the Operative
Documents, except, in the case of the foregoing subclause (a) for
authorizations, approvals, orders, leases, certificates and permits, the
failure of which to possess could not reasonably be expected to have a
Material Adverse Effect (as defined below); and are all duly qualified to
do business and in good standing in all other jurisdictions where the
ownership or leasing of their respective properties or the conduct of
their respective businesses requires such qualification, except where the
failure to be so qualified could not reasonably be expected to have a
material adverse effect (i) on the business, condition (financial or
otherwise), results of operations, business affairs or business prospects
of the Company, the Subsidiaries and the Restricted Affiliates taken as a
whole or (ii) on the ability of the Company to perform any of its
obligations under the Operative Documents or to consummate any of the
transactions contemplated hereby or thereby (a "Material Adverse Effect").
(iii) The Securities have been duly authorized by the Company, and the
Company has all requisite corporate power and authority to execute, issue
and deliver the Securities, and to incur and perform its obligations
provided for therein.
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(iv) The Securities, when executed, authenticated and issued in
accordance with the terms of the Indenture (assuming the due
authorization, execution and delivery of the Indenture by the Trustee) and
when delivered against payment of the purchase price therefor as provided
in this 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 the terms thereof; subject, in the case of
each of the foregoing, to (a) applicable bankruptcy, insolvency,
reorganization, moratorium and similar laws affecting creditors' rights
and remedies generally, (b) general principles of equity (regardless of
whether enforcement is sought in a proceeding in equity or at law) and (c)
the discretion of the court before which any proceeding therefor may be
brought (clauses (a), (b) and (c) being referred to herein as the
"Enforceability Limitations").
(v) The Company has all requisite corporate power and authority to
execute and deliver this Agreement and the Indenture and perform its
obligations provided for therein. This Agreement has been, and, as of the
Closing Date, the Indenture will have been, duly authorized, executed and
delivered by the Company, and upon such execution by the Company (assuming
the due authorization, execution and delivery by parties thereto other
than the Company) and, as of the Closing Date, the Indenture will
constitute, the valid and binding obligation of the Company, enforceable
against the Company in accordance with the terms hereof or thereof,
subject only to the Enforceability Limitations. The Indenture has been
duly qualified under the 1939 Act.
(vi) No consent, waiver, authorization, approval, license,
qualification or order of, or filing or registration with, any court or
governmental or regulatory agency or body, is required for the issue and
sale of the Securities, the performance by the Company of its obligations
under the Operative Documents, or for the consummation of any of the
transactions contemplated hereby or thereby, including, without
limitation, the issuance and sale of the Securities hereunder, except,
such as have been obtained under the Act and such as may be required under
the blue sky laws of any jurisdiction in connection with the purchase and
distribution of the Securities by the Underwriters in the manner
contemplated in this Agreement and in the Prospectus.
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(vii) The issuance, sale and delivery of the Securities, the
execution, delivery and performance by the Company of this Agreement and
the consummation by the Company of the transactions contemplated hereby
and in the Prospectus and the compliance by the Company with the terms of
the foregoing do not, and, at the Closing Time, will not conflict with or
constitute or result in a breach or violation by the Company or any of the
Subsidiaries or the Restricted Affiliates of (A) any of the terms or
provisions of, or constitute a default (or an event which, with notice or
lapse of time or both, would constitute a default) by any of the Company,
the Subsidiaries or the Restricted Affiliates or give rise to any right to
accelerate the maturity or require the prepayment of any indebtedness
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company, the Subsidiaries
or the Restricted Affiliates under any contract, indenture, mortgage, deed
of trust, loan agreement, note, lease, license, franchise agreement,
authorization, permit, certificate or other agreement or document to which
any of the Company, the Subsidiaries or the Restricted Affiliates is a
party or by which any of them may be bound, or to which any of them or any
of their respective assets or businesses is subject (collectively,
"Contracts") (and the Company has no knowledge of any conflict, breach or
violation of such terms or provisions or of any such default, in any such
case, which has occurred or will so result), (B) the articles of
incorporation, by-laws or similar organizational documents (each, an
"Organizational Document") of each of the Company, the Subsidiaries and
the Restricted Affiliates or (C) any law, statute, rule or regulation, or
any judgment, decree or order, in any such case, of any domestic or
foreign court or governmental or regulatory agency or other body having
jurisdiction over the Company or any of the Subsidiaries or the Restricted
Affiliates or any of their respective properties or assets.
(viii) The Securities and the Indenture will each conform in all
material respects to the descriptions thereof in the Prospectus.
(ix) The audited and unaudited consolidated financial statements of
the Company included in the Prospectus, including the notes thereto,
present fairly in all material respects the financial position of the
Company and its consolidated subsidiaries at the dates indicated, and the
statement of operations, stockholders' equity and cash
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flows of the Company and its consolidated subsidiaries for the periods
have been prepared in conformity with United States generally accepted
accounting principles ("GAAP") applied on a consistent basis throughout
the periods involved. Coopers & ▇▇▇▇▇▇▇ L.L.P., which has examined certain
of such financial statements as set forth in its report included in the
Prospectus, is an independent public accounting firm with respect to the
Company and its Subsidiaries within the meaning of Regulation S-X under
the Act. The audited and unaudited consolidated financial statements
included in the Prospectus of Erols Internet, Inc. ("Erols"), including
the notes thereto, present fairly in all material respects the financial
position of Erols and its consolidated subsidiaries, at the dates
indicated, and the statement of operations, stockholders' equity and cash
flows of Erols and its consolidated subsidiaries for the periods have been
prepared in conformity with United States GAAP applied on a consistent
basis throughout the periods involved. The selected financial data and the
summary financial information included in the Prospectus present fairly in
all material respects the information shown therein and have been compiled
on a basis consistent with that of the financial statements included in
the Prospectus. Ernst & Young LLP, which has examined certain of such
financial statements as set forth in its report included in the
Prospectus, is an independent public accounting firm with respect to Erols
and its subsidiaries within the meaning of Regulation S-X under the Act.
The pro forma financial information relating to the Company and its
Subsidiaries and the related notes thereto included in the Prospectus
present fairly in all material respects the information shown therein,
have been prepared in all material respects in accordance with the
Commission's rules and guidelines with respect to pro forma financial
adjustments and have been properly computed 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.
(x) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, except as otherwise
specifically stated therein, there has been no (A) material adverse change
in the business, condition (financial or otherwise), results of
operations, business affairs or business prospects of the Company, the
Subsidiaries and the Restricted Affiliates taken as a whole, whether or
not arising in the ordinary
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course of business (a "Material Adverse Change"), (B) transaction entered
into by any of the Company, the Subsidiaries or the Restricted Affiliates,
other than in the ordinary course of business, that is material to the
Company, the Subsidiaries and the Restricted Affiliates, taken as a whole
or (C) dividend or distribution of any kind declared, paid or made by the
Company on its capital stock.
(xi) The Company has the authorized, issued and outstanding
capitalization set forth in the Prospectus under the column "Actual" under
the caption "Capitalization;" all of the outstanding capital stock of the
Company has been duly authorized and validly issued, is fully paid and
nonassessable and was not issued in violation of any preemptive or similar
rights (whether provided contractually or pursuant to any Organizational
Document). Except as set forth in the Prospectus, the Company does not
own, directly or indirectly, any material amount of shares, or any other
material amount of equity or long-term debt securities or have any
material equity interest in any firm, partnership, joint venture or other
entity. Except as set forth in the Prospectus, no holder of any securities
of the Company is entitled to have such securities under the Registration
Statement or otherwise registered by the Company under the Act. All of the
outstanding capital stock or other ownership interests of each of the
Subsidiaries and the Restricted Affiliates has been duly authorized and
validly issued, is fully paid and nonassessable and was not issued in
violation of any preemptive or similar rights (whether provided
contractually or pursuant to any Organizational Document).
(xii) None of the Company, the Subsidiaries or the Restricted
Affiliates is (A) in violation of its respective Organizational Documents,
(B) in default (or, with notice or lapse of time or both, would be in
default) in the performance or observance of any obligation, agreement,
covenant or condition contained in any Contract or (C) in violation of any
law, statute, judgment, decree, order, rule or regulation of any domestic
or foreign court with jurisdiction over the Company, the Subsidiaries or
the Restricted Affiliates or any of their respective assets or properties,
or other governmental or regulatory authority, agency or other body, other
than, in the case of clause (B) or (C), such defaults or violations which
could not, individually or in the aggregate, reasonably be expected to
have or result in a Material Adverse Effect; and any
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real property and buildings held under lease by the Company, the
Subsidiaries or the Restricted Affiliates are held by the Company or such
Subsidiary or Restricted Affiliate, as the case may be, under valid,
subsisting and enforceable leases with such exceptions which could not,
individually or in the aggregate, reasonably be expected to have or result
in a Material Adverse Effect.
(xiii) Except as described in the Prospectus, each of the Company, the
Subsidiaries and the Restricted Affiliates has obtained all consents,
approvals, orders, certificates, licenses, permits, franchises and other
authorizations, in each case material to the operations of the Company
(collectively, the "Licenses") of and from, and has made all declarations
and filings with, all governmental and regulatory authorities, all
self-regulatory organizations and all courts and other tribunals necessary
to own, lease, license and use its properties and assets and to conduct
its businesses in the manner described in the Prospectus. None of the
Company, the Subsidiaries or the Restricted Affiliates has received any
notice of proceedings relating to the revocation or modification of, or
denial of any application for, any License which, if the subject of any
unfavorable decision, ruling or finding, could, singly or in the
aggregate, reasonably be expected to have or result in a Material Adverse
Effect; the Company, each of the Subsidiaries and each of the Restricted
Affiliates have fulfilled and performed all of their obligations with
respect to all Licenses possessed by any of them, except where the failure
to so fulfill and perform could not, singly or in the aggregate,
reasonably be expected to have or result in a Material Adverse Effect; and
no event has occurred which allows, or after notice or lapse of time, or
both, would allow, revocation or termination thereof or result in any
other material impairment of the rights of the holder of any such License,
except where such revocation or termination could not, singly or in the
aggregate, reasonably be expected to have or result in a Material Adverse
Effect; and the Licenses referred to above place no restrictions on the
Company, any of the Subsidiaries or any of the Restricted Affiliates that
are not described in the Prospectus, except where such restrictions could
not, singly or in the aggregate, reasonably be expected to have or result
in a Material Adverse Effect.
(xiv) Except as described in the Prospectus, there is no legal action,
suit, proceeding inquiry or investigation
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before or by any court or governmental body or agency, domestic or
foreign, now pending or, to the best knowledge of the Company, threatened
against the Company, any of the Subsidiaries or any of the Restricted
Affiliates or affecting the Company, any of the Subsidiaries or any of the
Restricted Affiliates or any of their respective properties which would be
required to be disclosed in a registration statement filed under the Act
which could, individually or in the aggregate, reasonably be expected to
have or result in a Material Adverse Effect. Except as set forth in the
Prospectus, none of the Company, any of the Subsidiaries or any of the
Restricted Affiliates has received any notice or claim of any material
default (or event, condition or omission which with notice or lapse of
time or both would result in a default) under any of its respective
Contracts or has knowledge of any material breach of any of such Contracts
by the other party or parties thereto, in each case which would,
individually or in the aggregate have a Material Adverse Effect.
(xv) Each of the Company, the Subsidiaries and the Restricted
Affiliates has filed all necessary federal, state and foreign income and
franchise tax returns, and has paid all taxes shown as due thereon; and
there is no tax deficiency that has been asserted against any of the
Company, the Subsidiaries or any Restricted Affiliate.
(xvi) Each of the Company, the Subsidiaries and the Restricted
Affiliates has good and marketable title to all real and personal property
described in the Prospectus as being owned by it and good and marketable
title to a leasehold estate in the real and personal property described in
the Prospectus as being leased by it, free and clear of all liens,
charges, encumbrances or restrictions, except to the extent the failure to
have such title or the existence of such liens, charges, encumbrances or
restrictions could not, individually or in the aggregate, reasonably be
expected to have or result in a Material Adverse Effect.
(xvii) The Company is not and, after giving effect to the offering and
sale of the Securities and the application of the 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.
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(xviii) No strike, labor problem, dispute, slowdown, work stoppage or
disturbance with the employees of the Company, any of the Subsidiaries or
any of the Restricted Affiliates exists or, to the best knowledge of the
Company, is threatened which could, individually or in the aggregate,
reasonably be expected to have or result in a Material Adverse Effect.
(xix) There are no contracts or documents which are required to be
described in the Registration Statement or the Prospectus or to be filed
as exhibits thereto which have not been so described or filed as required.
(xx) The Company has insurance in such amounts and covering such
risks and liabilities as are in accordance with normal industry practice.
(xxi) Except as disclosed in the Prospectus, none of the Company, any
Subsidiary or any of the Restricted Affiliates has any material profit
sharing, deferred compensation, stock option, stock purchase, phantom
stock or similar plans, including agreements evidencing rights to purchase
securities or to share in the profits of the Company, any Subsidiary or
any Restricted Affiliate.
(xxii) The Company is, and as of the Closing Time will be, Solvent. As
used herein, the term "Solvent" means, with respect to the Company on a
particular date, that on such date (A) the fair market value of the assets
of the Company exceeds its respective liabilities (including without
limitation, stated liabilities and identified contingent liabilities), (B)
the present fair salable value of the assets of the Company will exceed
its respective probable liabilities on its debts (including without
limitation, stated liabilities and identified contingent liabilities), (C)
the fair market value of the Company's total assets exceeds its total
liabilities, including identified contingent liabilities, by an amount at
least equal to the total par value of its common stock both immediately
prior to and after the Offering, (D) the Company is and will be able to
pay its debts (including without limitation, stated liabilities and
identified contingent liabilities) as such debts mature and (E) the
Company will not have unreasonably small capital with which to conduct its
present and anticipated business.
(xxiii) Except as described in the Prospectus or as would not,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect (A) each of the Company, the Subsidiaries and the
Restricted Affiliates is in compliance with and not subject to any known
liability under applicable Environmental Laws (as defined below), (B) each
of the Company, the Subsidiaries and the Restricted Affiliates has made
all filings and provided all notices required under any applicable
Environmental Law, and has, and is in compliance with, all Permits
required under any applicable Environmental Laws, and each of them is in
full force and effect, (C) there is no civil, criminal or administrative
action, suit, demand, claim, hearing, notice of violation or, to the best
knowledge of the Company, investigation, proceeding, notice or demand
letter or request for information pending or threatened against the
Company, any of the Subsidiaries or any of the Restricted Affiliates under
any Environmental Law, (D) no lien, charge, encumbrance or restriction has
been recorded under any Environmental Law with respect to any assets,
facility or property owned, operated, leased or controlled by the Company,
any Subsidiary or any Restricted Affiliate, (E) none of the Company, any
Subsidiary or any Restricted Affiliate has received notice that it has
been identified as a potentially responsible party under the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended
("CERCLA"), or any comparable state law, (F) no property or facility of
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the Company, any Subsidiary or any Restricted Affiliate is (i) listed or,
to the best knowledge of the Company proposed for listing on the National
Priorities List under CERCLA or is (ii) listed in the Comprehensive
Environmental Response, Compensation, Liability Information System List
promulgated pursuant to CERCLA, or on any comparable list maintained by
any state or local governmental authority.
For purposes of this Agreement, "Environmental Laws" means the common law and
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all applicable federal, provincial, state and local laws or regulations, codes,
orders, decrees, judgments or injunctions issued, promulgated, approved or
entered thereunder, relating to pollution or protection of public or employee
health and safety or the environment, including, without limitation, laws
relating to (i) emissions, discharges, releases or threatened releases of
hazardous materials into the environment (including, without limitation, ambient
air, surface water, ground water, land surface or subsurface strata), (ii) the
manufacture, processing, distribution, use, generation, treatment, storage,
disposal, transport or handling of hazardous materials, and (iii) underground
and above ground storage tanks and related piping, and emissions, discharges,
releases or threatened releases therefrom.
(xxiv) Except as described in the Prospectus, none of the Company, any
of the Subsidiaries or any of the Restricted Affiliates has incurred any
liability for any prohibited transaction or funding deficiency or any
complete or partial withdrawal liability with respect to any pension,
profit sharing or other plan which is subject to the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), to which the Company,
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the Subsidiaries or the Material Subsidiaries makes or ever has made a
contribution and in which any employee of the Company, any such Subsidiary
or any such Restricted Affiliate is or has ever been a participant, which,
individually in the aggregate, could reasonably be expected to have or
result in a Material Adverse Effect. With respect to such plans, each of
the Company, the Subsidiaries and the Restricted Affiliates is in
compliance in all respects with all applicable provisions of ERISA, except
where the failure to so comply could not, individually or in the
aggregate, reasonably be expected to have or a result in a Material
Adverse Effect.
(b) Any certificate signed by any officer of the Company and
delivered to the Representatives or to counsel for
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the Underwriters pursuant to the terms of this Agreement shall be deemed a
representation and warranty by the Company to the Representatives as to the
matters covered thereby.
SECTION 2. Sale and Delivery to Underwriters; Closing. (a)
Securities. On the basis of the representations and warranties herein contained
and subject to the terms and conditions herein set forth, the Company agrees to
sell to each Underwriter, severally and not jointly, and each Underwriter,
severally and not jointly, agrees to purchase from the Company at a price set
forth in Schedule B, the aggregate principal amount at maturity 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 Section 10.
(b) Payment. Payment of the purchase price for, and delivery of
certificates for, the Securities shall be made at the offices of ▇▇▇▇▇▇ ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, 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 (fourth, if the pricing occurs after 4:30 P.M.
(Eastern time) on any given day) business day after the date hereof (unless
postponed in accordance with the provisions of Section 10), 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 Representatives for the respective accounts of the Underwriters of
certificates for the Securities to be purchased by them. It is understood that
each Underwriter has authorized the Representatives, for its account, to accept
delivery of, receipt for, and make payment of the purchase price for, the
Securities, if any, which it has 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, if any, to be
purchased by any Underwriter whose funds have not been received by the Closing
Time, but such payment shall not relieve such Underwriter from its obligations
hereunder.
(c) Denominations; Registration. Certificates for the Securities
shall be in such denominations ($1,000 or integral multiples thereof) and
registered in such names as the
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Representatives 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 Representatives 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 each
Underwriter as follows:
(a) Compliance with Securities Regulations and Commission
Requests. The Company, subject to Section 3(b), will comply with the
requirements of Rule 430A and, prior to the completion of the distribution
of the Securities by the Underwriters, will notify the Representatives
immediately (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 make every
reasonable effort 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. Prior to the completion of the
distribution of the Securities by the Underwriters, the Company will give
the Representatives 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, will furnish the Representatives with copies of any
such
-14-
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 Representatives or counsel for the Underwriters shall reasonably
object.
(c) Delivery of Registration Statements. The Company has
furnished or will deliver to the Representatives and counsel for the
Underwriters, without charge, signed copies (or duplicates thereof) of the
Registration Statement as originally filed and of each amendment thereto
(including exhibits filed therewith or incorporated by reference therein)
and signed copies (or duplicates thereof) of all consents and certificates
of experts, and will also deliver to the Representatives, without charge,
a conformed copy of the Registration Statement as originally filed and of
each amendment thereto (without exhibits) for each of the Underwriters.
The copies of the Registration Statement and each amendment thereto
furnished to the Underwriters will be substantially identical to the
electronically transmitted copies thereof filed with the Commission
pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(d) Delivery of Prospectuses. The Company has delivered to
each Underwriter, without charge, as many copies of each preliminary
prospectus as such Underwriter reasonably requested, and the Company
hereby consents to the use of such copies for purposes permitted by the
Act. The Company will furnish to each Underwriter, without charge, during
the period when the Prospectus is required to be delivered under the Act
or the Securities Exchange Act of 1934 (the "Exchange Act"), such number
of copies of the Prospectus (as amended or supplemented) as such
Underwriter may reasonably request. The Prospectus and any amendments or
supplements thereto furnished to the Underwriters will be identical 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 Act and the 1933 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 after the first date of
the public offering of the Common Stock and prior to the expiration of
nine months after the date of the Prospectus, a prospectus is required by
the Act to be delivered in connection with sales of the Securities, and
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 for the
-15-
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 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 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 such number of copies of
such amendment or supplement as the Underwriters may reasonably request,
and in case any Underwriter is required to deliver a prospectus in
connection with sales of any of the Common Stock at any time after nine
months or more after the date of the Prospectus, upon the request of such
Underwriter but at the expense of such Underwriter, to prepare and deliver
to such Underwriter as many copies as such Underwriter may request of an
amended or supplemented Prospectus complying with Section 10(a)(3) of the
Act.
(f) Blue Sky Qualifications. The Company will use its 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 (domestic or foreign) as the Representatives may
designate and to maintain such qualifications in effect for a period of
not less than one year from the later of the effective date of the
Registration Statement and any Rule 462(b) Registration Statement;
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 effective date of the
Registration Statement and any Rule 462(b) Registration Statement.
(g) Rule 158. The Company will timely file such reports
pursuant to the Exchange 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 Act.
-16-
(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 90
days from the date of the Prospectus, the Company will not, without the
prior written consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇ directly or indirectly, issue,
sell, offer or contract to sell, grant any option for the sale of or
otherwise transfer or dispose of any debt securities of the Company.
(j) Reporting Requirements. The Company, during the period
when the Prospectus is required to be delivered under the Act or the
Exchange Act, will file all documents required to be filed with the
Commission pursuant to the Exchange Act within the time periods required
by the Exchange Act and the rules and regulations of the Commission
thereunder.
SECTION 4. Payment of Expenses. (a) Whether or not any sale of the
Securities is consummated, the Company agrees to pay and bear all costs and
expenses incident to the performance of all of its obligations under this
Agreement, including (i) the preparation and printing of the Registration
Statement and any amendments or supplements thereto and the cost of furnishing
copies thereof to the Underwriters, (ii) the preparation, issuance, printing and
delivery of certificates for the Securities, (iii) the fees and disbursements of
the Company's counsel and accountants, (iv) the qualification of the Securities
under the applicable state securities or "blue sky" laws in accordance with the
provisions of Section 3(f) hereof, including filing fees and up to $10,000 in
respect of fees and disbursements of counsel to the Representatives in
connection therewith and in connection with the preparation of any survey of
state securities or "blue sky" laws or legal investment memoranda, (v) the
printing and delivery to the Underwriters of copies of each preliminary
prospectus and of the Prospectus and any amendments or supplements thereto, (vi)
the fees and expenses of the Trustee and any transfer agent or registrar for the
Securities, (vii) the filing fees incident to, and the reasonable fees and
disbursements of counsel to the Underwriters in connection with, the review by
the National Association of Securities Dealers, Inc. (the "NASD") of the terms
of the sale of the Securities and (viii) all expenses (including travel
expenses) of the Company in connection with any meetings with prospective
investors in the Securities.
-17-
(b) If the sale of the Securities provided for herein is not
consummated because any condition to the obligations of the Underwriters set
forth in Section 5 hereof is not satisfied, because this Agreement is terminated
pursuant to Section 9(a)(i) or Section 11 hereof or because of any failure,
refusal or inability on the part of the Company to perform all obligations and
satisfy all conditions on its part to be performed or satisfied hereunder other
than by reason of a default by an Underwriter in payment for the Securities at
the Closing Time, the Company agrees to reimburse the Underwriters promptly upon
demand for all reasonable out-of-pocket expenses (including reasonable fees and
disbursements of their counsel) that shall have been incurred by them in
connection with the proposed purchase and sale of the Securities.
SECTION 5. Conditions of the Underwriters' Obligations. The
obligations of the several Underwriters to purchase and pay for the Securities
are subject to the continued accuracy, as of the Closing Time, of the
representations and warranties of the Company herein contained, to the accuracy
of the statements of the Company and officers of the Company made in any
certificate pursuant to the provisions hereof, to the performance by the Company
of its obligations hereunder, and to the following further conditions:
(a) The Registration Statement, including any Rule 462(b)
Registration Statement, has become effective and at the Closing Time no
stop order suspending the effectiveness of the Registration Statement
shall have been issued under the 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 the Rule 430A Information 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) At the Closing Time, the Representatives shall have received the
opinion of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel to the Company, dated as of the
Closing Time, in substantially the form set forth below and otherwise
reasonably satisfactory to the Representatives and counsel for the
Representatives, to the effect that:
-18-
(1) The Company has the requisite corporate power and
authority to execute, deliver and perform its obligations under the
Operative Documents;
(2) No consent, waiver, approval, authorization, license,
qualification or order of or filing or registration with any court
or governmental or regulatory agency or body is required for the
execution and delivery by the Company of this Agreement, the
Indenture or for the issue and sale of the Securities, or the
performance by the Company of its obligations under the Operative
Documents, or for the consummation of any of the transactions
contemplated hereby or thereby, except such as have been obtained
under the Act and such as may be required under the blue sky laws of
any jurisdiction in connection with the purchase and distribution of
the Securities by the Underwriters in the manner contemplated in
this Agreement and in the Prospectus;
(3) The issuance, sale and delivery of the Securities and
performance by the Company of this Agreement and the Indenture
(assuming due authorization and execution by each party other than
the Company), and the consummation by the Company of the
transactions contemplated hereby or thereby and the compliance by
the Company with the terms of the foregoing do not, and, at the
Closing Time, will not, conflict with or constitute or result in a
breach or violation by the Company, any of the "significant
subsidiaries" (as defined in Section 210.1-02 of Regulation S-X) of
the Company (each, a "Significant Subsidiary") or any of the
Restricted Affiliates of (A) any provision of the Certificate of
Incorporation or By-laws of the Company, or (B) any law, statute,
rule, or regulation or any order, decree or judgment known to such
counsel to be applicable to the Company, any Significant Subsidiary
or any Restricted Affiliate, of any court or governmental or
regulatory agency or body or arbitrator known to such counsel to
have jurisdiction over the Company, any of the Subsidiaries or any
of the Restricted Affiliates or any of their respective properties
or assets;
(4) The Underwriting Agreement has been duly authorized,
executed and delivered by the Company;
-19-
(5) The statements in the Prospectus under the headings
"Description of the Notes" insofar as such statements purport to
summarize certain provisions of the Notes and the Indenture provide
a fair summary of such provisions of such agreements and
instruments;
(6) The statements in the Prospectus under the caption
"Certain U.S. Federal Income Tax Considerations" fairly and
accurately summarize the material United States federal tax
consequences of owning the Notes;
(7) The Indenture has been duly authorized, executed and
delivered by the Company and (assuming due authorization and
execution by the Trustee) constitutes a valid and binding agreement
of the Company, enforceable against the Company in accordance with
its terms, except as such enforceability may be limited by the
Enforceability Limitations;
(8) Each of the Securities, when executed and authenticated in
accordance with the provisions of the Indenture and delivered and
paid for in accordance with the terms of this Agreement, will be
entitled to the benefits of the Indenture and will be valid and
binding obligations of the Company, enforceable in accordance with
its terms except as the enforceability thereof may be limited by the
Enforceability Limitations;
(9) The Company is not and, after giving effect to the
offering and sale of the Securities and the application of the
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;
(10) The Registration Statement, including any Rule 462(b)
Registration Statement, has been declared effective under the Act;
any 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 the best of our knowledge, no stop order suspending
the effectiveness of the Registration Statement or any Rule 462(b)
Registration Statement has been issued under the Act and no
proceedings for that purpose have been instituted or are pending or
threatened by the Commission; and
-20-
(11) The Registration Statement, including any Rule 462(b)
Registration Statement and the Rule 430A Information, the Prospectus
and each amendment or supplement to the Registration Statement and
Prospectus as of their respective effective or issue dates (other
than the financial statements and supporting schedules included
therein or omitted therefrom, as to which such counsel need express
no opinion) complied as to form in all material respects with the
requirements of the Act and the 1933 Act Regulations.
In addition such counsel shall state that such counsel has
participated in conferences with representatives of the Underwriters,
officers and other representatives of the Company and representatives of
the independent certified accountants of the Company, at which conferences
the contents of the Registration Statement and the Prospectus and the
business and affairs of the Company and the Subsidiaries were discussed,
and although such counsel has not verified and does not pass upon or
assume any responsibility for the accuracy, completeness or fairness of
the statements contained in the Registration Statement (except and only to
the extent set forth in clauses (5) and (6) above), on the basis of the
foregoing, no facts have come to the attention of such counsel which lead
such counsel to believe that the Registration Statement or any amendment
thereto, at the time such Registration Statement or any such amendment
became effective, 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 or any amendment or supplement thereto at the time the
Prospectus was issued, at the time any such amended or supplemented
prospectus was issued or at the Closing Time, included or includes 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 (it
being understood that such counsel need not express any comment with
respect to the financial statements, including the notes thereto and
supporting schedules, or any other financial data set forth or referred to
in the Registration Statement or Prospectus).
In rendering such opinions, such counsel (A) need not express any
opinion with regard to the application of laws of any jurisdiction other
than the Federal law of the United States, the General Corporation Law of
the State of
-21-
Delaware and the laws of the State of New York and (B) may rely, as to
matters of fact, to the extent they deem proper on representations or
certificates of responsible officers of the Company and certificates of
public officials.
(c) At the Closing Time, the Representatives shall have
received the opinion of ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, assistant general counsel for the
Company, dated as of the Closing Time, in the form set forth below and
otherwise reasonably satisfactory to the Representatives and counsel for
the Representatives, to the effect that:
(1) The Company has been duly incorporated and is validly
existing under the laws of the State of Delaware, with corporate
power and authority to own, lease and operate its assets and
properties and conduct its business as described in the Prospectus
and to enter into and perform its obligations under this Agreement;
the Company is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the
failure so to qualify or to be in good standing would not result in
a Material Adverse Effect;
(2) The authorized, issued and outstanding capital stock of
the Company is as set forth in the Prospectus under the column
"Actual" under the caption "Capitalization"; the shares of issued
and outstanding capital stock of the Company have been duly
authorized and validly issued and are fully paid and non-assessable;
and none of the outstanding shares of capital stock of the Company
was issued in violation of the preemptive or other similar rights of
any securityholder of the Company.
(3) Each of the Subsidiaries and each of the Restricted
Affiliates has been duly organized and is validly existing in good
standing under the laws of the jurisdiction of its organization, has
the requisite power and authority to own, lease and operate its
properties and to conduct its business as described in the
Prospectus and is duly qualified to transact business and is in good
standing in each jurisdiction in which such qualification is
required,
-22-
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 individually or in the aggregate would not result
in a Material Adverse Effect; all of the issued and outstanding
capital stock or other ownership interests of each of the
Subsidiaries and each of the Restricted Affiliates has been duly
authorized and validly issued, is fully paid and non-assessable and,
to such counsel's knowledge and information, except as set forth in
the Prospectus, is owned by the Company directly, free and clear of
any security interest, mortgage, pledge, lien, encumbrance, claim or
equity;
(4) The issuance, sale and delivery of the Securities, the
execution, delivery and performance by the Company of this Agreement
and the Indenture (assuming due authorization and execution by each
party other than the Company) and the consummation by the Company of
the transactions contemplated hereby or thereby and the compliance
by the Company with the terms of the foregoing do not, and, at the
Closing Time, will not, conflict with or constitute or result in a
breach or violation by the Company, any of the Subsidiaries or any
of the Restricted Affiliates of (A) any provision of the Certificate
of Incorporation or By-laws of the Company, or (B) any of the terms
or provisions of, or constitute a default (or an event which, with
notice or lapse of time or both, would constitute a default) by the
Company, or give rise to any right to accelerate the maturity or
require the prepayment of any indebtedness under, or result in the
creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company, any Subsidiary or any Restricted
Affiliate under any material Contract known to such counsel, except
where any such conflict, breach, violation or default would not
result in a Material Adverse Effect;
(5) To the knowledge of such counsel, other than as described
in the Prospectus, no legal, regulatory or governmental proceedings
are pending to which the Company, any of the Subsidiaries or any of
the Restricted Affiliates is a party or to which the property or
assets of the Company, any of the Subsidiaries or any of the
Restricted Affiliates are subject which, individually or in the
aggregate, could reasonably be expected to have a Material Ad-
-23-
verse Effect or which, individually or in the aggregate, could have
a material adverse effect on the power or ability of the Company to
perform its obligations under the Operative Documents or to
consummate the transactions contemplated hereby or thereby or by the
Prospectus and to the knowledge of such counsel, no such material
proceedings have been threatened against the Company, any of the
Subsidiaries or any of the Restricted Affiliates or with respect to
any of their respective assets or properties;
(6) None of the Company, the Subsidiaries or the Restricted
Affiliates is in violation of its respective Organizational
Documents; to the knowledge of such counsel, no default by the
Company, any of the Subsidiaries or any of the Restricted Affiliates
exists in the due performance or observance of any material
obligation, agreement, covenant or condition contained in any
Contract; and to the knowledge of such counsel, none of the Company,
the Subsidiaries or any of the Restricted Affiliates is in breach or
violation of any law, statute, rule or regulation, or any judgment,
decree or order or governmental or regulatory agency or other body
having jurisdiction over the Company, any of the Subsidiaries or any
of the Restricted Affiliates or any of their respective properties
or assets except, in each case, violations, defaults or breaches
that individually or in the aggregate would not have a Material
Adverse Effect.
In addition such counsel shall state that such counsel has
participated in conferences with representatives of the Underwriters,
officers and other representatives of the Company and representatives of
the independent certified accountants of the Company, at which conferences
the contents of the Registration Statement and the Prospectus and the
business and affairs of the Company and the Subsidiaries were discussed,
and although such counsel has not verified and does not pass upon or
assume any responsibility for the accuracy, completeness or fairness of
the statements contained in the Registration Statement (except and only to
the extent set forth in clause (5) above), on the basis of the foregoing,
no facts have come to the attention of such counsel which lead such
counsel to believe that the Registration Statement or any amendment
thereto (except for financial statements and schedules and other
-24-
financial data included therein or omitted therefrom, as to which such
counsel need not express any statement), at the time such Registration
Statement or any such amendment became effective, 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 or any amendment or supplement thereto
at the time the Prospectus was issued, at the time any such amended or
supplemented prospectus was issued or at the Closing Time, included or
includes 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 (it being understood that such counsel need not express any
comment with respect to the financial statements, including the notes
thereto and supporting schedules, or any other financial data set forth or
referred to in the Registration Statement or Prospectus).
In rendering such opinions, such counsel (A) need not express any
opinion with regard to the application of laws of any jurisdiction other
than the Federal law of the United States, the General Corporation Law of
the State of Delaware and the laws of the State of New York and (B) may
rely, as to matters of fact, to the extent they deem proper on
representations or certificates of responsible officers of the Company and
certificates of public officials.
(d) At the Closing Time, the Representatives shall have received the
opinion of ▇▇▇▇▇▇▇ & Berlin, regulatory counsel to the Company, dated as
of the Closing Time, in the form set forth below and otherwise reasonably
satisfactory to the Representatives and counsel for the Underwriters, to
the effect that:
(i) the issuance, sale and delivery of the Securities, the
execution, delivery and performance by the Company of this Agreement
and the Indenture (assuming due authorization and execution by each
party other than the Company) and the consummation by the Company of
the transactions contemplated hereby or thereby and the compliance
by the Company with the terms of the foregoing do not, and, at the
Closing Time, will not, conflict with or constitute or result in a
breach or violation by the Company, any of the Subsidiaries or any
of the Restricted Affiliates of
-25-
the Communications Act of 1934, as amended, (the "Communications
Act"), the Telecommunications Act of 1996 (the "1996 Act"), the
Cable Communications Policy Act of 1984 (the "1984 Act") or the
Cable Television Consumer Protection Act of 1992 (the "1992 Act"
and, together with the Communications Act, the 1996 Act and the 1984
Act and rules and regulations promulgated thereunder, the
"Communications Laws") or any order, decree or judgment known to
such counsel to be applicable to the Company, any Subsidiary or any
Restricted Affiliate, of any court or governmental or regulatory
agency or body or arbitrator dealing with telecommunications
carriers (the "Communications Authorities") known to such counsel to
have jurisdiction over the Company, any of the Subsidiaries or any
of the Restricted Affiliates or any of their respective properties
or assets;
(ii) no consent, waiver, approval, authorization, license,
qualification or order of or filing or registration with any
Communications Authority is required for the execution and delivery
by the Company of this Agreement and the Indenture or for the issue
and sale of the Notes, or the performance by the Company of its
obligations under the Operative Documents, or for the consummation
of any of the transactions contemplated hereby;
(iii) the Company, the Subsidiaries and the Restricted
Affiliates are the holders of the Licenses listed on a schedule to
such opinion (the "Regulatory Licenses") issued by the
Communications Authorities, all of which are validly issued and in
full force and effect, with no material restrictions or
qualifications other than as described in the Prospectus, and such
Regulatory Licenses constitute the only Licenses necessary for the
Company, the Subsidiaries and the Restricted Affiliates to own their
properties and to conduct their businesses in the manner and to the
extent now operated or proposed to be operated in the Prospectus;
(iv) other than matters described in the Prospectus, such
counsel does not know of any proceedings threatened, pending or
contemplated before any Communications Authority against or
involving the properties, businesses or franchises of the Company,
the Subsidiaries and the Restricted Affiliates which
-26-
could reasonably be expected to have a Material Adverse Effect; and
(v) the statements in the Prospectus under the captions "Risk
Factors -- Regulation" and "Business -- Regulation" insofar as such
statements constitute summaries of the legal matters, documents or
proceedings referred to therein, fairly summarize the matters
referred to therein and such counsel does not believe that such
statements, as of the date of the Prospectus and at the Closing
Time, contained an untrue statement of a material fact or omitted to
state a material fact necessary to make the statements therein not
misleading.
In rendering such opinions, such counsel (A) need not express any
opinion with regard to the application of any laws other than the
Communications Laws and (B) may rely, as to matters of fact, to the extent
they deem proper on representations or certificates of responsible
officers of the Company and certificates of public officials.
(e) The Representatives shall have received the opinion, dated as of
the Closing Time, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the
Underwriters, with respect to certain matters set forth in clauses 5, 7
(assuming the due authorization, execution and delivery of the Indenture
by each party thereto), 8, 10 and 11 of subsection (b) of this Section 5.
In rendering such opinions, such counsel (A) need not express any
opinion with regard to the application of laws of any jurisdiction other
than the Federal laws of the United States, the General Corporation Law of
the State of Delaware and the laws of the State of New York and (B) may
rely, as to matters of fact, to the extent they deem proper on
representations or certificates of responsible officers of the Company and
certificates of public officials.
In addition, such counsel shall additionally state that such counsel
has participated in conferences with officers and other representatives of
the Company and representatives of the independent accountants for the
Company at which conferences the contents of the Prospectus and the
Registration Statement and related matters were discussed and, although
given the limitations inherent in the role of outside counsel and the
character of determina-
-27-
tions involved in the preparation of the Registration Statement, such
counsel is not passing upon and does not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement (except and only to the extent set forth in clause
(4) of subsection (b) of this Section 5) and has made no independent check
or verification thereof, on the basis of the foregoing, no facts have come
to the attention of such counsel which would lead such counsel to believe
that the Registration Statement or any amendment thereto, at the time such
Registration Statement or any such amendment became effective, 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 or any amendment or supplement
thereto at the time the Prospectus was issued, at the time any such
amended or supplemented prospectus was issued or at the Closing Time,
included or includes 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 (it being understood that such counsel need express no belief
with respect to the financial statements, including the notes thereto, or
any other financial or statistical data found in or derived from the
internal accounting and other records of the Company and its subsidiaries
set forth or referred to in the Registration Statement or Prospectus).
(f) The following conditions contained in clauses (i) and (ii) of
this subsection (f) shall have been satisfied at and as of the Closing
Time and the Company shall have furnished to the Representatives a
certificate, signed by the Chairman of the Board or the President and the
principal financial or accounting officer of the Company, dated as of the
Closing Time, to the effect that the signers of such certificate have
carefully examined the Registration Statement and Prospectus, any
amendment or supplement thereto, and this Agreement and that:
(i) the representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as of
the Closing Time with the same effect as if made at the Closing
Time;
(ii) since the date of the most recent financial statements
included in the Prospectus (exclusive of
-28-
any amendment or supplement thereto), there has been no Material
Adverse Change, whether or not arising in the ordinary course of
business. As used in this subparagraph, the term "Prospectus" means
the Prospectus in the form first used to confirm sales of the
Securities;
(iii) the Company has complied with all agreements and satisfied
all conditions on its part to be performed or satisfied at or prior
to the 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.
(g) On the date hereof and at the Closing Time, Coopers & ▇▇▇▇▇▇▇
L.L.P. shall have furnished to the Representatives a letter or letters,
dated respectively as of the date of this Agreement and as of the Closing
Time, in form and substance satisfactory to the Representatives,
confirming that they are independent certified public accountants within
the meaning of the Act and the applicable published rules and regulations
thereunder and containing statements and information of the type
ordinarily included in accountants' "comfort letters" to underwriters with
respect to financial statements of the Company and certain financial
information contained in the Registration Statement, in form and substance
satisfactory to counsel for the Underwriters.
(h) On the date hereof and at the Closing Time, Ernst & Young L.L.P.
shall have furnished to the Representatives a letter or letters, dated
respectively as of the date of this Agreement and as of the Closing Time,
in form and substance satisfactory to the Representatives, confirming that
they are independent certified public accountants within the meaning of
the Act and the applicable published rules and regulations thereunder and
containing statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect to financial
statements of Erols and certain financial information contained in the
Registration Statements, in form and substance satisfactory to counsel for
the Underwriters.
-29-
(i) Subsequent to the date hereof or, if earlier, the dates as of
which information is given in the Prospectus (exclusive of any amendment
or supplement thereto), there shall not have been any change, or any
development involving a prospective change, in or affecting the business
or properties of the Company, its Subsidiaries and the Restricted
Affiliates the effect of which is, in the sole judgment of the
Representatives, so material and adverse as to make it impractical or
inadvisable to proceed with the purchase and the delivery of the
Securities as contemplated by the Prospectus (exclusive of any amendment
or supplement thereto).
(j) At the Closing Time, counsel for the Underwriters shall have
been furnished with such information, certificates and documents as they
may reasonably require for the purpose of enabling them to pass upon the
issuance and sale of the Securities as contemplated herein and related
proceedings, 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 opinions and certificates mentioned
above or elsewhere in this Agreement shall be reasonably satisfactory in
form and substance to the Representatives and counsel for the
Underwriters.
(k) The Company and the Trustee shall have entered into the
Indenture.
If any condition specified in this Section 5 shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by the Representatives by notice to the Company, and such termination shall be
without liability of any party to any other party except as provided in Section
6. Notwithstanding any such termination, the provisions of Sections 8, 9, 13 and
16 shall remain in effect. Notice of such cancellation shall be given to the
Company in writing or by telephone, facsimile transmission or telegraph
confirmed in writing. The Company shall furnish to the Representatives such
conformed copies of such opinions, certificates, letters and documents in such
quantities as the Representatives and counsel for the Underwriters shall
reasonably request.
SECTION 6. Indemnification.
(a) The Company agrees to indemnify and hold harmless the
Underwriters, their respective affiliates, and each
-30-
person, if any, who controls any Underwriter or their respective affiliates
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act,
and their respective directors, officers, employees and agents, as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, joint or several, as incurred, arising out of any untrue
statement or alleged untrue statement of a material fact contained in
Registration Statement (or any amendment thereto) including the Rule 430A
Information, 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 any preliminary prospectus
or 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, joint or several, 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; provided that (subject
to Sections 6(e) below) any such settlement is effected with the written
consent of the Company; and
(iii) against any and all expenses whatsoever, as incurred (including
reasonable fees and disbursements of one counsel chosen by ▇▇▇▇▇▇▇ ▇▇▇▇▇
(in addition to any local counsel)), 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, 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
-31-
any Underwriter through ▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for use in the Registration
Statement (or any amendment), including the Rule 430A Information or any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto).
(b) Each Underwriter agrees, severally and not jointly, 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 Act or Section 20 of the Exchange Act
against any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a) of this Section 6, as incurred, but only
with respect untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement (or any amendment thereto),
including the Rule 430A Information or any preliminary prospectus 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
through ▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for use in the Registration Statement (or any
amendment thereto) or such preliminary prospectus or the Prospectus (or any
amendment or supplement thereto).
(c) 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, enclosing a
copy of all papers properly served on such indemnified party, 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) or (b) above, one counsel to the
indemnified parties shall be selected by ▇▇▇▇▇▇▇ ▇▇▇▇▇, and, in the case of
parties indemnified pursuant to Section 6(c) 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; provided, that counsel to
the indemnifying party shall not (except with the consent of the indemnified
party) also be counsel to the indemnified party. Notwithstanding the foregoing,
if it so elects within a reasonable time after receipt of such 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 (which ap-
-32-
proval shall not be unreasonably withheld), 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 incurred thereafter in
connection with such action. In no event shall the indemnifying parties be
liable for the fees and expenses of more than one counsel (in addition to 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
the offer and sale of any Securities 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.
(d) If at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel as to which such indemnified party is liable pursuant to Section 6(a),
(b) or (c), as the case may be, 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 45 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 30 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 re-
-33-
spect of any losses, liabilities, claims, damages or expenses referred to
therein, then each indemnifying party shall contribute to the aggregate amount
of such losses, liabilities, claims, damages and expenses incurred by such
indemnified party, (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 received by the Underwriters,
bear to the aggregate initial offering price of the Securities.
The relative fault of the Company on the one hand and the
Underwriters on the other hand shall be determined by reference to, among other
things, whether any such untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any gov-
-34-
ernmental 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 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 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the Act or Section 20 of the
Exchange 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 Act or Section 20 of the Exchange Act shall
have the same rights to contribution as the Company. The Underwriters'
respective obligations to contribute pursuant to this Section 7 are several in
proportion to the number of Securities set forth opposite their respective names
in Schedule A hereto and not joint.
SECTION 8. Representations, Warranties and Agreements To Survive
Delivery. All representations, warranties, indemnities, agreements and other
statements of the Company and its officers contained in or made pursuant to this
Agreement shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or controlling person, by
or on behalf of the Company, and shall survive delivery and payment for 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 the Closing Time
if (i) 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 and on
-35-
or prior to the Closing Time, any Material Adverse Change with respect to the
Company, the Subsidiaries and the Restricted Affiliates, taken as a whole and
whether or not arising in the ordinary course of business, or (ii) since the
date of this Agreement and on or prior to the Closing Time, (A) there has
occurred any outbreak of hostilities or escalation of existing hostilities or
other national or international 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 on the financial
securities markets of the United States 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, or (B) trading in any securities of
the Company has been suspended or limited by the Commission or trading generally
on the New York Stock Exchange, the American Stock Exchange or the
over-the-counter market has been suspended, or minimum or maximum prices for
trading have been fixed, or maximum ranges for prices for securities generally
have been required, by any such exchange or by order of the Commission, the NASD
or any other governmental authority or (C) a general banking moratorium has been
declared by either Federal or New York authorities. As used in this Section
9(a), the term "Prospectus" means the Prospectus in the form first used to
confirm sales of the Securities.
(b) If this Agreement is terminated pursuant to this Section 9, such
termination shall be without liability of any party to any other party except as
provided in Section 4 hereof, provided that Sections 1, 6, 7, and 8 shall
survive such termination and remain in full force and effect.
(c) This Agreement may also terminate pursuant to the provisions of
Section 5, with the effect stated in such Section.
SECTION 10. Default by One or More of the Underwriters. If one or
more of the Underwriters shall fail at the Closing Time to purchase the
Securities which it is obligated to purchase under this Agreement (the
"Defaulted Securities"), the other Representatives shall have the right, but not
the obligation, 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, the
Representatives shall not have completed such arrangements within such 24-hour
period, then:
-36-
(a) if the aggregate principal amount at maturity of Defaulted
Securities does not exceed 10% of the aggregate principal amount at
maturity of 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 aggregate principal amount at maturity of Defaulted
Securities exceeds 10% of the aggregate principal amount at maturity of
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 the Representatives or the Company shall
have the right to postpone Closing Time, for a period not exceeding seven days
in order to effect any required changes in the Registration Statement or
Prospectus or in any other documents or arrangements. As used herein, the term
"Underwriter" includes any person substituted for an Underwriter under this
Section 10.
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 the Representatives c/o Merrill ▇▇▇▇▇ & Co.,
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, North Tower, World Financial
Center, New York, New York 10281-1305, attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Vice
President; notices to the Company shall be directed to RCN Corporation, ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, attention: Chief Executive Officer, with a
copy to ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Esq.
SECTION 12. Information Supplied by the Underwriters. The statements
set forth in the last paragraph on the front cover page, in the last two
paragraphs on page [i] and in the fifth paragraph under the heading
"Underwriting" in the Prospectus (to the extent such statements relate to the
Underwriters) constitute the only information furnished by the Underwriters to
the Company for the purposes of Sections 1 and 6 hereof.
-37-
SECTION 13. Parties. This Agreement shall inure to the benefit of
and be binding upon the Underwriters, the Company and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Underwriters, their respective affiliates and the Company and its successors and
legal representatives and the controlling persons and officers, directors,
employees and agents referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under, by virtue
of 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 their respective affiliates and
the Company and its successors and legal representatives, and said controlling
persons and officers, directors, employees and agents and their heirs and legal
representatives, and said controlling persons and officers, directors, employees
and agents 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 14. Governing Law and Time. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
GIVING EFFECT TO ANY PROVISIONS RELATING TO CONFLICTS OF LAWS. Specified times
of day refer to New York time.
SECTION 15. Counterparts. This Agreement may be executed in one or
more counterparts and, when each party has executed a counterpart, all such
counterparts taken together shall constitute one and the same agreement.
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,
RCN CORPORATION
By:_______________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President
and Chief Financial
Officer
Confirmed and accepted as of
the date first above writ-
ten:
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
SALOMON BROTHERS INC
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ SECURITIES CORPORATION
NATIONSBANC ▇▇▇▇▇▇▇▇▇▇ SECURITIES LLC
By: ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
By: ________________________________
Name:
Title:
SCHEDULE A
Principal
Amount at Ma-
turity of
Name of Underwriter Securities
------------------- ----------
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated.............................
Salomon Brothers Inc...............................
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation
NationsBanc ▇▇▇▇▇▇▇▇▇▇ Securities, LLC.............
------------------
Total ................................. [ ]
SCHEDULE B
RCN CORPORATION
[ ]% Senior Discount Notes due 2008
1. The initial public offering price for the Securities shall be
[ ]% 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
Securities shall be [ ]% of the principal amount thereof.
3. The interest rate on the Securities shall be [ ]% per annum.
SCHEDULE C
Restricted Affiliates
---------------------
Starpower Communication LLC
RCN-BecoCom LLC