1
Execution Version
EXHIBIT 1.1
NATG HOLDINGS, LLC
ORIUS CAPITAL CORP.
$150,000,000
12 3/4% Senior Subordinated Notes due 2010
PURCHASE AGREEMENT
February 4, 2000
Deutsche Bank Securities Inc.
Banc of America Securities LLC
c/o Deutsche Bank Securities Inc.
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Each of NATG Holdings, LLC, a Delaware limited liability
company ("NATG LLC"), and Orius Capital Corp., a Delaware corporation ("Orius
Capital" and together with NATG LLC, the "Issuers"), Orius Corp., a Florida
corporation ("Parent"), and the other guarantors party hereto (the "Subsidiary
Guarantors" and together with the Issuers, the "Subsidiaries") each hereby
confirms its agreement with you, as set forth below.
1. The Securities. Subject to the terms and conditions herein
contained, the Issuers propose to issue and sell to the several purchasers named
in Schedule 1 hereto (the "Initial Purchasers") $150,000,000 aggregate principal
amount of their 12 3/4% Senior Subordinated Notes due 2010 (the "Notes"). The
Notes are to be issued under an indenture (the "Indenture") to be dated as of
February 9, 2000 by and among Parent, the Issuers, the Subsidiary Guarantors and
United States Trust Company of New York, as trustee (the "Trustee").
The Notes will be guaranteed (the "Guarantees"), jointly and
severally, by Parent and the Subsidiary Guarantors (together, the "Guarantors"),
on a senior subordinated basis.
The Notes will be offered and sold to the Initial Purchasers
without being registered under the Securities Act of 1933, as amended (the
"Act"), in reliance on exemptions therefrom.
In connection with the sale of the Notes, Parent and the
Subsidiaries have prepared a preliminary offering memorandum dated January 17,
2000 (the "Preliminary Memorandum") and will prepare a final offering memorandum
dated February 4, 2000 (the "Final Memorandum"; the Preliminary Memorandum and
the Final Memorandum each herein being referred to as a "Memorandum") each
setting forth or including a description of the terms of the Notes, the terms of
the offering of the Notes, a description of Parent and the Subsidiaries
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and any material developments relating to Parent and the Subsidiaries occurring
after the date of the most recent historical financial statements included
therein.
Parent and the Subsidiaries understand that the Initial
Purchasers propose to make an offering of the Notes only on the terms and in the
manner set forth in the Memorandum and Section 8 hereof as soon as the Initial
Purchasers deem advisable after this Agreement has been executed and delivered,
to persons in the United States whom the Initial Purchasers reasonably believe
to be qualified institutional buyers ("Qualified Institutional Buyers" or
"QIBs") as defined in Rule 144A under the Act, as such rule may be amended from
time to time ("Rule 144A"), and outside the United States to certain persons in
reliance on Regulation S under the Act.
The Initial Purchasers and their direct and indirect
transferees will be entitled to the benefits of the Registration Rights
Agreement, substantially in the form attached hereto as Exhibit A (the
"Registration Rights Agreement"), to be dated the Closing Date (as defined in
Section 3 hereof) pursuant to which Parent and the Subsidiaries will agree,
among other things, to file a registration statement (the "Registration
Statement") with the Securities and Exchange Commission (the "Commission")
registering the Notes or the Exchange Notes (as defined in the Registration
Rights Agreement) under the Act.
2. Representations and Warranties. Parent and the Subsidiaries
represent and warrant, jointly and severally to, and agree with, each Initial
Purchaser on and as of the date hereof and the Closing Date that:
(a) Neither the Preliminary Memorandum as of the date thereof
nor the Final Memorandum nor any amendment or supplement thereto as of
the date thereof and, with respect to the Final Memorandum, at all
times subsequent from the date thereof up to the Closing Date,
contained or contains any untrue statement of a material fact or
omitted or omits to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, except that the representations and
warranties set forth in this Section 2(a) do not apply to statements or
omissions made in reliance upon and in conformity with information
relating to any Initial Purchaser furnished to the Issuers in writing
by Deutsche Bank Securities Inc. ("DB") expressly for use in the
Preliminary Memorandum or the Final Memorandum or any amendment or
supplement thereto, which information is set forth in Section 12
hereof.
(b) As of the Closing Date, Parent will have the authorized,
issued and outstanding capitalization set forth in the Final
Memorandum, assuming the exercise of certain call options as described
therein; all of the outstanding capital stock (which term, for the
purposes of this Agreement, shall be deemed to include common stock,
preferred stock, limited liability company membership interests,
limited partnership interests, general partnership interests and all
other similar equity interests) of Parent and the Subsidiaries has
been, and as of the Closing Date will be, duly authorized and validly
issued, fully paid and nonassessable and not issued in violation of any
preemptive or
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similar rights; Parent owns all of the capital stock of
NATG LLC; NATG LLC owns, directly or indirectly all of the capital
stock of Orius Capital and each Subsidiary Guarantor; each Subsidiary
is listed on Schedule 2 hereto; all of the outstanding shares of
capital stock of Parent and of each Subsidiary will be free and clear
of all of all liens, encumbrances, equities and claims or restrictions
on transferability or voting (other than (i) those imposed by the Act
and the securities or "Blue Sky" laws of certain jurisdictions, (ii)
those securing the obligations of Parent and the Subsidiaries under the
Credit Agreement, dated as of December 15, 1999 (the "Senior Secured
Credit Agreement") among Parent, NATG LLC, LISN, LLC, Bankers Trust
Company as Agent, and the lenders from time to time party thereto, and
(iii) such other liens, encumbrances, equities and claims as could not
reasonably be expected to have a material adverse effect on the general
affairs, management, existing business, condition (financial or
otherwise), prospects or results of operations of the Parent and the
Subsidiaries, taken as a whole (a "Material Adverse Effect")); except
as set forth in the Final Memorandum, there are no (i) options,
warrants or other rights to purchase from Parent or any Subsidiary,
(ii) agreements or other obligations of Parent or any Subsidiary to
issue or (iii) other rights to convert any obligation into, or exchange
any securities for, capital stock of Parent or any of the Subsidiaries.
Except for the Subsidiaries, the Company does not own, directly or
indirectly, any capital stock or any other equity or long-term debt
securities or have any equity interest in any firm, partnership, joint
venture or other entity; provided, that LISN, Inc. owns a 49% equity
interest in LB Price Communications, Inc., a Maryland corporation, and
a 49% equity interest in DLS ▇▇▇▇▇▇▇ Corp., an Ohio corporation.
(c) Each of Parent and each Subsidiary has been duly
incorporated or otherwise organized, is validly existing and is in good
standing as a corporation, limited liability company or limited
partnership, as the case may be, under the laws of its jurisdiction of
organization, with all requisite corporate or other organizational
power and authority to own its properties and carry on its business as
now conducted and as proposed to be conducted, and as described in the
Final Memorandum; Parent and each Subsidiary is duly qualified to do
business in good standing as a foreign corporation, foreign limited
liability company or foreign limited partnership, as the case may be,
in every jurisdiction where the ownership or leasing of its existing
properties and assets or the conduct of its existing business requires
such qualification, except where the failure to be so qualified could
not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
(d) Each of the Issuers has all requisite corporate or other
organizational power and authority to execute, deliver and perform its
obligations under the Notes, the Exchange Notes and the Private
Exchange Notes (as defined in the Registration Rights Agreement). The
Notes, when issued, will be in the form contemplated by the Indenture.
The Notes, the Exchange Notes and the Private Exchange
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Notes will have each been duly and validly authorized by the Issuers
and, when executed by the Issuers and authenticated by the Trustee in
accordance with the provisions of the Indenture and, in the case of the
Notes, when delivered to and paid for by the Initial Purchasers in
accordance with the terms of this Agreement, and in the case of the
Exchange Notes and the Private Exchange Notes, when delivered to and
exchanged for the Notes in accordance with the terms of the
Registration Rights Agreement, will constitute valid and legally
binding obligations of each of the Issuers, entitled to the benefits of
the Indenture and enforceable against each of the Issuers in accordance
with their terms, except that the enforcement thereof may be subject to
(i) bankruptcy, insolvency, reorganization, fraudulent conveyance or
transfer, or other similar laws now or hereafter in effect relating to
creditors' rights generally, and (ii) general principles of equity and
the discretion of the court before which any proceeding therefore may
be brought (regardless of whether such enforcement is considered in a
proceeding in equity or at law).
(e) Each of Parent and each Subsidiary has all requisite
corporate or other organizational power and authority to execute,
deliver and perform its obligations under the Indenture. When executed
by Parent and each Subsidiary, the Indenture will meet the requirements
as of the date hereof for qualification under the Trust Indenture Act
of 1939, as amended (the "TIA"). The Indenture has been duly and
validly authorized by Parent and each Subsidiary and, when executed and
delivered by Parent and each Subsidiary (assuming the due
authorization, execution and delivery by the Trustee), will constitute
a valid and legally binding agreement of each of Parent and each
Subsidiary, enforceable against Parent and each Subsidiary in
accordance with its terms, except that the enforcement thereof may be
subject to (i) bankruptcy, insolvency, reorganization, fraudulent
conveyance or transfer, or other similar laws now or hereafter in
effect relating to creditors' rights generally and (ii) general
principles of equity and the discretion of the court before which any
proceeding therefor may be brought (regardless of whether such
enforcement is considered in a proceeding in equity or at law).
(f) Each of Parent and each Subsidiary has all requisite
corporate or other organizational power and authority to execute,
deliver and perform its obligations under the Registration Rights
Agreement. The Registration Rights Agreement has been duly and validly
authorized by Parent and each Subsidiary and, when executed and
delivered by Parent and each Subsidiary (assuming the due
authorization, execution and delivery by the other parties thereto),
will constitute a valid and legally binding agreement of Parent and
each Subsidiary, enforceable against Parent and each Subsidiary in
accordance with its terms, except that the enforcement thereof may be
subject to (i) bankruptcy, insolvency, reorganization, fraudulent
conveyance or transfer, or other similar laws now or hereafter in
effect relating to creditors' rights generally and (ii) general
principles of equity and the discretion of the court before which any
proceeding therefor may be brought (regardless of whether such
enforcement is considered in a proceeding in equity or at law).
(g) Each of Parent and each Subsidiary has all requisite
corporate or other organizational power and authority to execute,
deliver and perform its obligations under this Agreement and to
consummate the transactions contemplated hereby. This Agreement and the
consummation by Parent and each Subsidiary of the transactions
contemplated hereby have been duly and validly authorized by Parent and
each
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Subsidiary This Agreement has been duly and validly executed and
delivered by Parent and each Subsidiary.
(h) Each Guarantor has all requisite corporate power and
authority to execute, deliver and perform its obligations under its
Guarantee, and its guarantees of the Exchange Notes and the Private
Exchange Notes. Each such Guarantee and each such guarantee of the
Exchange Notes and Private Exchange Notes has been and validly
authorized and when executed and delivered by the applicable Guarantor
will constitute a valid and legally binding agreement of such Guarantor
enforceable against such Guarantor in accordance with its terms, except
that the enforcement thereof may be subject to (i) bankruptcy,
insolvency, reorganization, fraudulent conveyance or transfer, or other
similar laws now or hereafter in effect relating to creditors' rights
generally and (ii) general principles of equity and the discretion of
the court before which any proceeding therefor may be brought
(regardless of whether such enforcement is considered in a proceeding
in equity or at law).
(i) No consent, approval, authorization or order of any court
or governmental agency or body, or third party is required for the
performance of this Agreement, the Registration Rights Agreement or the
Indenture by Parent or any Subsidiary or the consummation by Parent or
any Subsidiary of the transactions contemplated hereby, thereby or by
the Final Memorandum except (i) such as have been obtained, (ii) such
as may be required under (A) state securities or "Blue Sky" laws in
connection with the purchase and resale of the Notes by the Initial
Purchasers, (B) the Act with respect to the registration of the
Exchange Notes and the Private Exchange Notes pursuant to the
Registration Rights Agreement, or (C) the Trust Indenture Act of 1939,
as amended (the "TIA"), with respect to the registration of the
Exchange Notes and the Private Exchange Notes pursuant to the
Registration Rights Agreement, and (iii) such that could not,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect. None of Parent or any Subsidiary is (i) in
violation of its certificate of incorporation or bylaws (or similar
organizational document), (ii) in breach or violation of any statute,
judgment, decree, order, rule or regulation applicable to any of them
or any of their respective properties, business or assets, except for
any such breach or violation which could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect, or
(iii) in breach of or in default under (nor has any event occurred
which, with notice or passage of time or both, would constitute a
default under) or in violation of any of the terms or provisions of any
indenture, mortgage, deed of trust, loan agreement, note, lease,
license, franchise agreement, permit, certificate, contract or other
agreement or instrument to which any of them is a party or to which any
of them or their respective properties, business or assets is subject
(collectively, "Contracts") except where such breach, default or
violation could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
(j) The execution, delivery and performance by Parent and each
Subsidiary of this Agreement, the Indenture and the Registration Rights
Agreement and the consummation by Parent and each Subsidiary of the
transactions contemplated hereby and thereby
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(including, without limitation, the issuance and sale of the Notes to
the Initial Purchasers) will not conflict with or constitute or result
in a breach of or a default under (or an event which with notice or
passage of time or both would constitute a default under) or violation
of any of (i) the terms or provisions of any Contract, except for any
such conflict, breach, violation, default or event which could not,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect, (ii) the certificate of incorporation or
bylaws (or similar organizational document) of Parent or any
Subsidiary, or (iii) (assuming compliance with all applicable state
securities or "Blue Sky" laws and assuming the accuracy of the
representations and warranties of the Initial Purchasers in Section 8
hereof) any statute, judgment, decree, order, rule or regulation
applicable to Parent or any Subsidiary or any of their respective
properties or assets, except for any such conflict, breach or violation
which could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
(k) The audited financial statements, together with all
related notes and schedules, of each of (1) North American Tel-Com
Group, Inc. and subsidiaries, (2) Channel Communications, Inc. f/k/a
Kenya Corp., (3) U.S. Cable, Inc., (4) CATV Subscriber Services, Inc.
and its subsidiary, (5) DAS-CO of Idaho, Inc., (6) ▇▇▇▇▇▇ Underground
Cable, Inc., (7) Network Cabling Services, Inc., (8) Copenhagen
Utilities and Construction, Inc., (9) Texel Corporation, (10), LISN,
Inc. and (11) ARION, Inc., included in the Final Memorandum present
fairly in all material respects the financial position, results of
operations and cash flows of such companies at the dates and for the
periods to which they relate and have been prepared in accordance with
generally accepted accounting principles applied on a consistent basis,
except as otherwise stated therein. The unaudited interim financial
statements of each of (1) Orius Corp. and subsidiaries (formerly North
American Tel-Com Group, Inc. and subsidiaries), (2) Network Cabling
Services, Inc. and (3) Texel Corporation, included in the Final
Memorandum present fairly in all material respects the financial
position, results of operations and cash flows of such companies at the
dates and for the periods to which they relate and have been prepared
in accordance with generally accepted accounting principles applied on
a consistent basis, except as otherwise stated therein. The summary and
selected financial and statistical data in the Final Memorandum present
fairly in all material respects the information shown therein and have
been prepared and compiled on a basis consistent with the audited
financial statements included therein, except as otherwise stated
therein. Each of Pricewaterhouse Coopers LLP, ▇▇▇▇▇▇▇▇, Young &
Associates, LLC, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇, L.L.P. and BDO ▇▇▇▇▇▇▇, LLP is
an independent public accounting firm within the meaning of the Act and
the rules and regulations promulgated thereunder. The historical
financial statements (including the related notes) contained in the
Final Memorandum comply in all material respects with the requirements
applicable to a registration statement on Form S-1 under the Act.
(l) The pro forma financial statements (including the notes
thereto) included in the Preliminary Memorandum and the Final
Memorandum (i) comply as to form in all material respects with the
applicable requirements of Regulation S-X promulgated under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), (ii)
have been
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prepared in accordance with the Commission's rules and guidelines with
respect to pro forma financial statements, (iii) have been properly
computed on the bases described therein; and (iv) except as disclosed
in the Preliminary Memorandum and the Final Memorandum, have been
prepared on a basis consistent with the historical financial statements
contained in the Preliminary Memorandum and the Final Memorandum; the
assumptions used in the preparation of the pro forma financial data and
other pro forma financial information included in the Preliminary
Memorandum and the Final Memorandum are reasonable and the adjustments
used therein are appropriate to give effect to the transactions or
circumstances referred to therein.
(m) There is not pending or, to the knowledge of Parent or any
Subsidiary, threatened any action, suit, proceeding, inquiry or
investigation to which any of Parent or any Subsidiary is a party, or
to which the property or assets of any of Parent or any Subsidiary are
subject, before or brought by any court, arbitrator or governmental
agency or body which, if determined adversely to Parent or any
Subsidiary could, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect or which seeks to restrain,
enjoin, prevent the consummation of or otherwise challenge the issuance
or sale of the Notes to be sold hereunder, the issuance of the
Guarantees, the use of any Memorandum in any jurisdiction, or the
consummation of the other transactions described in the Final
Memorandum.
(n) Each of Parent and each Subsidiary owns or possesses
adequate licenses or other rights to use all material patents,
trademarks, service marks, trade names, copyrights and know-how
necessary to conduct the businesses now or proposed to be operated by
it as described in the Final Memorandum, except as could not reasonably
be expected to have a Material Adverse Effect, and none of Parent or
the Subsidiaries has received any notice of infringement of or conflict
with (or knows of any such infringement of or conflict with) asserted
rights of others with respect to any patents, trademarks, service
marks, trade names, copyrights or know-how which, if such assertion of
infringement or conflict were sustained, could, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.
(o) Parent and each Subsidiary possesses all licenses,
permits, certificates, consents, orders, approvals and other
authorizations from, and has made all declarations and filings with,
all federal, state, local and other governmental authorities, all
self-regulatory organizations and all courts and other tribunals,
presently required or necessary to own or lease, as the case may be,
and to operate its respective properties and to carry on its respective
businesses as now or proposed to be conducted as set forth in the Final
Memorandum (collectively, the "Permits"), except as could not
reasonably be expected to have a Material Adverse Effect; Parent and
each Subsidiary has fulfilled and performed all of its obligations with
respect to such Permits and no event has occurred which allows, or
after notice or lapse of time would allow, revocation or termination
thereof or results in any other material impairment of the rights of
the holder of any such Permit, except where the failure to perform such
obligation could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect; and none of
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Parent or the Subsidiaries has received any written notice of any
proceeding relating to revocation or modification of any such Permit,
except where such revocation or modification could not, individually or
in the aggregate, reasonably be expected to have a Material Adverse
Effect.
(p) Since the date of the most recent financial statements
appearing in the Final Memorandum, except as described or contemplated
in the Final Memorandum, (i) none of Parent or the Subsidiaries has
incurred any liabilities or obligations, direct or contingent, or
entered into or agreed to enter into any transactions or contracts
(written or oral) not in the ordinary course of business which
liabilities, obligations, transactions or contracts would, individually
or in the aggregate, be material to the general affairs, management,
business, condition (financial or otherwise), prospects or results of
operations of Parent and the Subsidiaries, taken as a whole (a
"Material Change"), (ii) none of Parent or any Subsidiary has purchased
any of its outstanding capital stock, nor declared, paid or otherwise
made any dividend or distribution of any kind on its capital stock
(other than with respect to a Subsidiary, the purchase of, or dividend
or distribution on, capital stock owned by NATG LLC), and (iii) there
shall not have been any change in the capital stock, or long-term
indebtedness of Parent or any Subsidiary which would, individually or
in the aggregate, constitute a Material Change.
(q) Each of Parent and each Subsidiary has filed all necessary
federal, state, local and foreign income and franchise tax returns,
except where the failure to file such returns could not, individually
or in the aggregate, reasonably be expected to have a Material Adverse
Effect, and has paid all taxes shown as due thereon; other than tax
deficiencies which Parent or any Subsidiary is contesting in good faith
and for which Parent or such Subsidiary has provided adequate reserves,
there is no tax deficiency that has been asserted against any of Parent
or any Subsidiary that could, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
(r) Neither Parent nor any Subsidiary owns any "margin
securities" as that term is defined in Regulation U of the Board of
Governors of the Federal Reserve System (the "Federal Reserve Board"),
and none of the proceeds of the sale of the Notes will be used,
directly or indirectly, for the purpose of purchasing or carrying any
margin security, for the purpose of reducing or retiring any
indebtedness which was originally incurred to purchase or carry any
margin security or for any other purpose which might cause any of the
Notes to be considered a "purpose credit" within the meanings of
Regulation T, U or X of the Federal Reserve Board. Without limiting the
foregoing, none of Parent, the Subsidiaries or any agent acting on
behalf of any of them has taken or will take any action that might
cause this Agreement or the sale of the Notes to violate Regulation T,
U or X of the Federal Reserve Board, in each case as in effect, or as
the same may hereafter be in effect, on the Closing Date.
(s) The statistical and market-related data included in the
Final Memorandum are based on or derived from sources which Parent and
the Subsidiaries believe to be reliable and accurate.
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(t) Each of Parent and each Subsidiary has good and marketable
title to all real property and good title to all personal property
described in the Final Memorandum as being owned by it and good and
marketable title to a leasehold estate in the real and personal
property described in the Final Memorandum as being leased by it free
and clear of all liens, charges, encumbrances or restrictions (other
than those arising in connection with the Senior Secured Credit
Agreement), 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 a
Material Adverse Effect. All leases, contracts and agreements to which
any of Parent or any Subsidiary is a party or by which any of them is
bound are valid and enforceable against Parent or such Subsidiary, and,
to the knowledge of Parent and each Subsidiary, are valid and
enforceable against the other party or parties thereto and are in full
force and effect with only such exceptions as could not, individually
or in the aggregate, reasonably be expected to have a Material Adverse
Effect.
(u) There are no legal or governmental proceedings involving
Parent or any Subsidiary or any of their respective properties or
assets known to any of them which would be required to be described in
a prospectus pursuant to the Act that are not described in the Final
Memorandum, and to the knowledge of Parent and the Subsidiaries no such
proceedings are threatened or contemplated by governmental authorities
or threatened by others, nor are there any material contracts or other
documents which would be required to be described in a prospectus
pursuant to the Act that are not described in the Final Memorandum.
(v) Except as could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect (A) each of
Parent and each Subsidiary is in compliance with applicable
Environmental Laws (as defined below), (B) each of Parent and each
Subsidiary 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, investigation, proceeding, notice or demand letter or
request for information pending or, to the knowledge of Parent or any
Subsidiary, threatened against Parent or any Subsidiary 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 Parent or
the Subsidiaries, (E) none of Parent or the Subsidiaries 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 and (F) no property or facility of Parent or the Subsidiaries is
(i) listed or proposed for listing on the National Priorities List
under CERCLA or (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.
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For purposes of this Agreement, "Environmental Laws" means the
common law and all applicable federal, 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, law 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.
(w) There is no strike, labor dispute, slowdown or work
stoppage by the employees of Parent or any Subsidiary which is pending
or, to the knowledge of Parent or any Subsidiary, threatened.
(x) Each of Parent and each Subsidiary carries insurance in
such amounts and covering such risks as it deems reasonable for the
conduct of its business and the value of its properties.
(y) None of Parent or the Subsidiaries has any liability for
any prohibited transaction (within the meaning of Section 4975(c) of
the Code or Part 4 of Title I of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA")) (or an accumulated funding
deficiency within the meaning of Section 412 of the Code or Section 302
of ERISA) or any complete or partial withdrawal liability (within the
meaning of Section 4201 of ERISA) with respect to any pension, profit
sharing or other plan which is subject to ERISA, to which Parent or any
Subsidiary makes or ever has made a contribution and in which any
employee of Parent or any Subsidiary is or has ever been a participant.
With respect to such plans, each of Parent and each Subsidiary is in
compliance in all respects with all applicable provisions of ERISA, or,
if not in compliance, any such failure or failures to comply could not,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
(z) Parent and each Subsidiary (i) makes and keeps books and
records that are accurate in all material respects and (ii) maintains
internal accounting controls which provide reasonable assurance that
(A) transactions are executed in accordance with management's
authorization, (B) transactions are recorded as necessary to permit
preparation of its financial statements and to maintain accountability
for its assets, (C) access to its assets is permitted only in
accordance with management's authorization and (D) the reported
accountability for its assets is compared with existing assets at
reasonable intervals.
(aa) None of Parent or the Subsidiaries is an "investment
company", or a company "controlled by" an investment company or
"promoter" or "principal underwriter" for an "investment company," as
such terms are defined in the Investment
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Company Act of 1940, as amended, and the rules and regulations
thereunder, or a "holding company" or a "subsidiary" of a holding
company or an "affiliate" thereof within the meaning of the Public
Utility Holding Company Act of 1935, as amended.
(bb) The Notes, the Indenture (including the Guarantees) and
the Registration Rights Agreement will conform in all material respects
to the descriptions thereof in the Final Memorandum.
(cc) No holder of securities of Parent or the Subsidiaries
will be entitled to have such securities registered under the
registration statements required to be filed pursuant to the
Registration Rights Agreement other than as expressly permitted
thereby.
(dd) Immediately after the consummation of the transactions
contemplated by this Agreement, the fair value and present fair
saleable value of the assets of each of Parent and the Subsidiaries
(each on a consolidated basis) will exceed the sum of its stated
liabilities and identified contingent liabilities; none of Parent or
any of the Subsidiaries (each on a consolidated basis) is, nor will
Parent or any of the Subsidiaries (each on a consolidated basis) be,
immediately after giving effect to the execution, delivery and
performance of this Agreement, and the consummation of the transactions
contemplated hereby, (i) left with unreasonably small capital with
which to carry on its business as it is currently or proposed to be
conducted, (ii) unable to pay its debts (contingent or otherwise) as
they mature or otherwise become due or (iii) otherwise insolvent.
(ee) None of Parent, the Subsidiaries or any of their
respective Affiliates (as defined in Rule 501(b) of Regulation D under
the Act) has directly, or through any agent, (i) sold, offered for
sale, solicited offers to buy or otherwise negotiated in respect of,
any "security" (as defined in the Act) which is or could be integrated
with the sale of the Notes in a manner that would require the
registration under the Act of the Notes or (ii) engaged in any form of
general solicitation or general advertising (as those terms are used in
Regulation D under the Act) in connection with the offering of the
Notes or in any manner involving a public offering within the meaning
of Section 4(2) of the Act. No securities of the same class as the
Notes have been issued and sold by any of the Issuers within the
six-month period immediately prior to the date hereof.
(ff) Assuming the accuracy of the representations, warranties
and covenants of the Initial Purchasers in Section 8 hereof, it is not
necessary in connection with the offer, sale and delivery of the Notes
to the Initial Purchasers in the manner contemplated by this Agreement
to register any of the Notes under the Act or to qualify the Indenture
under the TIA.
(gg) No securities of Parent or any of the Subsidiaries are of
the same class (within the meaning of Rule 144A as promulgated under
the Act ("Rule 144A")) as the Notes and listed on a national securities
exchange registered under Section 6 of the Exchange Act, or quoted in a
U.S. automated inter-dealer quotation system.
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(hh) None of Parent or the Subsidiaries has taken, nor will
any of them take, directly or indirectly, any action designed to, or
that might be reasonably expected to, cause or result in stabilization
or manipulation of the price of the Notes in violation of the Act or
the Exchange Act (including, without limitation, Regulation M under the
Exchange Act).
(ii) None of Parent or the Subsidiaries, or any person acting
on any of their behalf (other than the Initial Purchasers or persons
acting on their behalf) has engaged in any directed selling efforts (as
that term is defined in Regulation S) with respect to the Notes;
Parent, the Subsidiaries and their respective Affiliates and any person
acting on any of their behalf (other than the Initial Purchasers or any
Affiliate of the Initial Purchasers) have complied with the offering
restrictions requirement of Regulation S.
(jj) Each of the Preliminary Memorandum and the Final
Memorandum, as of its respective date, contains all of the information
that, if requested by a prospective purchaser of the Notes, would be
required to be provided to such prospective purchaser pursuant to Rule
144A(d)(4) under the Act.
(kk) None of Parent or the Subsidiaries nor, to Parent's and
any Subsidiary's knowledge, any officer or director purporting to act
on behalf of any of Parent or any of the Subsidiaries has at any time
violated or is in violation of any provision of the Foreign Corrupt
Practices Act of 1977.
(ll) No forward-looking statement (within the meaning of
Section 27A of the Act and Section 21E of the Exchange Act) contained
in the Preliminary Memorandum or the Final Memorandum has been made or
reaffirmed without a reasonable basis or has been disclosed other than
in good faith.
(mm) All material computer software, firmware or hardware
(whether special or general purpose or other similar or related items
of automated, computerized or software systems) that are used in the
business of Parent or the Subsidiaries are capable of accurately
processing, calculating, manipulating, storing and exchanging date/time
data from, into, and between the twentieth and twenty-first centuries,
including, without limitation, the years 1999 and 2000 and any leap
year calculations, except where the failure could not reasonably be
expected to have a Material Adverse Effect. Parent and the Subsidiaries
have experienced no Material Adverse Effect as a result of the
changeover to the year 2000.
(nn) None of Parent or the Subsidiaries is a party to any
contract, agreement or understanding with any person other than this
agreement that would give rise to a valid claim against the Issuers or
the Initial Purchasers for a brokerage commission, finder's fee or like
payment solely as a result of the offering and sale of the Notes.
(oo) The Notes satisfy the eligibility requirements of Rule
144A(d)(3) under the Act.
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3. Purchase, Sale and Delivery of the Notes. On the basis of
the representations, warranties, agreements and covenants herein contained and
subject to the terms and conditions herein set forth, the Issuers agree to issue
and sell to the Initial Purchasers, and each Initial Purchaser, acting severally
and not jointly, agrees to purchase from the Issuers the principal amount of
Notes set forth opposite its name on Schedule 1 hereto at 97% of their principal
amount. One or more certificates in definitive form for the Notes that each
Initial Purchaser has agreed to purchase hereunder, and in such denomination or
denominations and registered in such name or names as each Initial Purchaser
requests upon notice to the Issuers, at least 36 hours prior to the Closing Date
shall be delivered by or on behalf of the Issuers to the Initial Purchasers,
against payment by or on behalf of the Initial Purchasers of the purchase price
therefor by wire transfer (same day funds) to such account or accounts as the
Issuers shall specify prior to the Closing Date, or by such means as the parties
hereto shall agree prior to the Closing Date. Such delivery of and payment for
the Notes shall be made at the offices of White & Case LLP, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ at 10:00 A.M., New York time, on February 9,
2000, or at such other place, time or date as the Initial Purchasers, on the one
hand, and the Issuers, on the other hand, may agree upon, such time and date of
delivery against payment being herein referred to as the "Closing Date." The
Issuers will make such certificate or certificates for the Notes available for
inspection and packaging by each Initial Purchaser at the offices of DB in New
York, New York, or at such other place as the Initial Purchasers may designate,
at least 24 hours prior to the Closing Date.
4. Offering by the Initial Purchasers. The Initial Purchasers
propose to make an offering of the Notes at the price and upon the terms set
forth in the Final Memorandum, as soon as practicable after this Agreement is
entered into and as in the judgment of the Initial Purchasers is advisable.
5. Covenants of the Company. Parent and each of the
Subsidiaries, jointly and severally, covenant and agree with each Initial
Purchaser that:
(a) Parent and the Subsidiaries will not amend or supplement
the Final Memorandum or any amendment or supplement thereto of which
each Initial Purchaser shall not previously have been advised and
furnished a copy for a reasonable period of time prior to the proposed
amendment or supplement and as to which each Initial Purchaser shall
not have consented, which consent shall not be unreasonably withheld.
(b) Parent and the Subsidiaries will promptly, upon the
written request of the Initial Purchasers or counsel for the Initial
Purchasers, make any amendments or supplements to the Preliminary
Memorandum or the Final Memorandum that may be necessary or advisable
in connection with the resale of the Notes by the Initial Purchasers;
provided, that Parent shall have consented to such amendment or
supplement, such consent not to be unreasonably withheld.
(c) Parent and the Subsidiaries will cooperate with each
Initial Purchaser in arranging for the qualification of the Notes for
offering and sale under the securities or "Blue Sky" laws of such
jurisdictions as such Initial Purchaser may reasonably designate
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and will continue such qualifications in effect for as long as may be
necessary to complete the distribution of the Notes; provided, however,
that in connection therewith, Parent and the Subsidiaries shall not be
required to qualify as foreign corporations or to execute general
consents to service of process in any jurisdiction or subject
themselves to taxation in excess of a nominal dollar amount in any such
jurisdiction where they are not then so subject.
(d) If, at any time prior to the completion of the
distribution by the Initial Purchasers of the Notes or the Private
Exchange Notes, any event occurs or information becomes known as a
result of which the Final Memorandum as then amended or supplemented
would include any untrue statement of a material fact, or omit to state
a material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading, or if
for any other reason it is necessary to amend or supplement the Final
Memorandum to comply with applicable law, Parent and the Subsidiaries
will promptly notify each Initial Purchaser thereof and will prepare,
at the expense of Parent and the Subsidiaries, an amendment or
supplement to the Final Memorandum that corrects such statement or
omission or effects such compliance.
(e) Parent and the Subsidiaries will, without charge, provide
to each Initial Purchaser and to counsel for the Initial Purchasers as
many copies of the Preliminary Memorandum and the Final Memorandum or
any amendment or supplement thereto as the Initial Purchasers may
reasonably request; provided, that if such request is made after the
original printing of the Final Memorandum or any amendment or
supplement thereto, such copies need not be reprinted at the expense of
Parent and the Subsidiaries.
(f) Parent and the Subsidiaries will apply the net proceeds
from the sale of the Notes as set forth under the caption "Use of
Proceeds" in the Final Memorandum.
(g) Until the date that no Notes are outstanding under the
Indenture, Parent and the Subsidiaries will furnish to each Initial
Purchaser, upon its written request, copies of all reports and other
communications (financial or otherwise) furnished by Parent or any
Subsidiary to the Trustee, or the holders of the Notes in such number
of copies as may be reasonably requested by each Initial Purchaser and,
as soon as available, copies of any reports or financial statements
furnished to or filed by Parent or any Subsidiary with the Commission
or any national securities exchange on which any class of securities of
the Parent or any Subsidiary may be listed in such number of copies as
may be reasonably requested by the Initial Purchasers.
(h) None of the Issuers or any of their affiliates has sold,
offered for sale or solicited, or will sell, offer for sale or solicit
offers to buy or otherwise negotiate in respect of any "security" (as
defined in the Act) which could be integrated with the sale of the
Notes in a manner which would require the registration under the Act of
the Notes.
(i) None of Parent, the Subsidiaries or any of their
Affiliates will engage in any form of "general solicitation" or
"general advertising" (as those terms are used in Regulation D under
the Act) in connection with the offering of the Notes or in any
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manner involving a public offering of the Notes within the meaning of
Section 4(2) of the Act.
(j) For so long as any of the Notes remain outstanding, Parent
and the Subsidiaries will make available, upon request, to any seller
of such Notes the information specified in Rule 144A(d)(4) under the
Act.
(k) Parent and the Subsidiaries will use their respective
reasonable best efforts to permit (i) the Notes to be designated PORTAL
securities in accordance with the rules and regulations adopted by the
NASD relating to trading in the NASD's Portal Market (the "Portal
Market") and (ii) the Notes to be eligible for clearance and settlement
through The Depository Trust Company.
(l) None of the Issuers or any of their affiliates nor any
person acting on its or their behalf will engage, in any directed
selling efforts (as that term is defined in Regulation S) with respect
to the Notes, and the Issuers will comply, and will cause their
affiliates and each person acting on its or their behalf to comply,
with the offering restrictions requirements of Regulation S.
(m) Parent and each Subsidiary agrees that for a period of 180
days from the date of the Final Memorandum, it will not offer for sale,
sell, contract to sell or otherwise dispose of, directly or indirectly,
or file a registration statement for, or announce any offer, sale,
contract for sale of or other disposition of any debt securities issued
or guaranteed by Parent or any of the Subsidiaries (other than the
Notes) without the prior written consent of the Initial Purchasers.
(n) During the period from the Closing date until two years
after the Closing Date, without the prior written consent of the
Initial Purchasers, each of Parent and each Subsidiary agrees not to
resell, and to use its reasonable best efforts to prevent any of its
Affiliates from reselling, any of the Notes that have been reacquired
by them, except for Notes purchased by the Issuers or any of their
Affiliates and resold in a transaction registered under the Act.
(o) In connection with the offering of the Notes, until DB on
behalf of the Initial Purchasers shall have notified the Issuers of the
completion of the resale of the Notes, each Issuer agrees not to, and
to cause its affiliated purchasers (as defined in Regulation M under
the Exchange Act) not to, either alone or with one or more other
persons, bid for or purchase, for any account in which it or any of its
affiliated purchasers has a beneficial interest, any Notes, or attempt
to induce any person to purchase any Notes; and not to, and to cause
its affiliated purchasers not to, make bids or purchase for the purpose
of creating actual, or apparent active trading in or of raising the
price of the Notes.
(p) Prior to the Closing Date, Parent and the Subsidiaries
agree not to issue any press release or other communication directly or
indirectly or hold any press conference with respect to Parent or the
Subsidiaries, their condition, financial or otherwise, or earnings,
business affairs or business prospects (except for routine oral
marketing
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communications in the ordinary course of business and consistent with
the past practices of Parent and the Subsidiaries and of which the
Initial Purchasers are notified), without the prior written consent of
the Initial Purchasers, unless in the judgment of the Issuers and
their counsel, and after notification to the Initial Purchasers, such
press release or communication is required by law.
6. Expenses. Parent and the Subsidiaries, jointly and
severally, agree to pay all costs and expenses incident to the performance of
their obligations under this Agreement, whether or not the transactions
contemplated herein are consummated or this Agreement is terminated pursuant to
Section 11 hereof, including all costs and expenses incident to (i) the costs of
printing the Memorandum and any amendment or supplement thereto, and preparing
any "Blue Sky" memoranda, (ii) all arrangements relating to the delivery to each
Initial Purchaser of copies of the Memorandum and any amendment or supplement
thereto, (iii) the fees and disbursements of counsel, accountants and any other
experts or advisors retained by Parent or any Subsidiary, (iv) preparation
(including printing), issuance and delivery to each Initial Purchaser of the
Notes, (v) the qualification of the Notes under state securities and "Blue Sky"
laws, including filing fees and reasonable fees and disbursements of counsel for
the Initial Purchasers relating thereto, (vi) costs and expenses in connection
with any the "roadshow" and any other meetings with prospective investors in the
Notes, (vii) fees and expenses of the Trustee including reasonable fees and
expenses of counsel, (viii) all expenses and listing fees incurred in connection
with the application for quotation of the Notes on the PORTAL Market and (ix)
any fees charged by investment rating agencies for the rating of the Notes. If
the sale of the Notes provided for herein is not consummated because any
condition to the obligations of any Initial Purchaser set forth in Section 7
hereof is not satisfied, because this Agreement is terminated or because of any
failure, refusal or inability on the part of any of Parent and the Subsidiaries
to perform all obligations and satisfy all conditions on their part to be
performed or satisfied hereunder (other than solely by reason of a default by
the Initial Purchasers of their obligations hereunder after all conditions
hereunder have been satisfied in accordance herewith), the Parent and the
Subsidiaries jointly and severally agree to promptly reimburse each Initial
Purchaser upon demand for all out-of-pocket expenses (including all reasonable
fees, disbursements and charges of White & Case LLP, counsel for the Initial
Purchasers) that shall have been reasonably incurred by each Initial Purchaser
in connection with the proposed purchase and sale of the Notes. Except as
provided in this Section 6, the Initial Purchasers shall be responsible for
their own fees and expenses, including the fees and expenses of their counsel.
7. Conditions of the Initial Purchaser's Obligations. The
obligation of each Initial Purchaser to purchase and pay for the Notes shall be
subject to the satisfaction or waiver of the following conditions on or prior to
the Closing Date:
(a) The Final Memorandum (and any amendments or supplements
thereto) shall have been printed and copies distributed to the Initial
Purchasers as promptly as practicable on or following the date of this
Agreement or at such other date and time as to which the Initial
Purchasers may agree; and no stop order suspending the sale of the
Notes in any jurisdiction shall have been issued and no proceedings for
the purpose shall have been commenced or shall be pending or
threatened.
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(b) None of the Initial Purchasers shall have discovered and
disclosed to Parent or any Subsidiary on or prior to the Closing Date
that the Final Memorandum or any amendment or supplement thereto
contains an untrue statement of a fact which, in the opinion of counsel
for the Initial Purchasers, is material or omits to state any fact
which, in the opinion of such counsel is material and is required to be
stated therein or is necessary to make the statements therein not
misleading.
(c) All corporate proceedings and other legal matters incident
to the authorization, form and validity of the Final Memorandum and the
transactions contemplated thereby, shall be satisfactory in all
material respects to the Initial Purchasers, and Parent and the
Subsidiaries shall have furnished to the Initial Purchasers all
documents and information that they or their counsel may reasonably
request to enable them to pass upon such matters.
(d) On the Closing Date, the Initial Purchasers shall have
received an opinion, dated as of the Closing Date and addressed to the
Initial Purchasers, of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, counsel for Parent and the
Subsidiaries, substantially in the form annexed hereto as Exhibit A.
(e) On the Closing Date, the Initial Purchasers shall have
received the opinion, in form and substance satisfactory to the Initial
Purchasers, dated as of the Closing Date and addressed to the Initial
Purchasers, of White & Case LLP, counsel for the Initial Purchasers,
with respect to certain legal matters relating to this Agreement and
such other related matters as the Initial Purchasers may reasonably
require. In rendering such opinion, White & Case LLP shall have
received and may rely upon such certificates and other documents and
information as it may reasonably request to pass upon such matters.
(f) The Initial Purchasers shall have received from
PricewaterhouseCoopers LLP (auditors of Orius Corp., U.S. Cable , Inc.,
CATV Subscriber Services, Inc., DAS-Co of Idaho, Inc., Copenhagen
Utilities and Construction Inc., Texel Corporation, LISN, Inc. and
Arion, Inc.), ▇▇▇▇▇▇▇▇, Young & Associates, LLC (auditors of Channel
Communications, Inc.), ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇, LLP (auditors of ▇▇▇▇▇▇
Underground Cable, Inc.) and BDO ▇▇▇▇▇▇▇, LLP (auditors of Network
Cabling Services, Inc.), all independent public accountants, comfort
letters dated the date hereof and the Closing Date, in form and
substance satisfactory to counsel for the Initial Purchasers.
(g) The representations and warranties of Parent and each
Subsidiary contained in this Agreement shall be true and correct on and
as of the date hereof and on and as of the Closing Date as if made on
and as of the Closing Date; the statements of Parent's or any
Subsidiary's officers made pursuant to any certificate delivered in
accordance with the provisions hereof shall be true and correct on and
as of the date made and on and as of the Closing Date; Parent and each
Subsidiary shall have performed in all material respects all covenants
and agreements and satisfied all conditions on their part to be
performed or satisfied hereunder at or prior to the Closing Date; and,
except as described in the Final Memorandum (exclusive of any amendment
or supplement thereto after the date hereof),
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subsequent to the date of the most recent financial statements in such
Final Memorandum, there shall have been no event or development that,
individually or in the aggregate, has had or could reasonably be
expected to have a Material Adverse Effect.
(h) On the Closing Date, the Initial Purchaser shall have
received copies of good standing certificates for Parent and each
Subsidiary from their respective states of organization.
(i) The sale of the Notes hereunder shall not be enjoined
(temporarily or permanently) on the Closing Date.
(j) Subsequent to the date of the most recent financial
statements in the Final Memorandum (exclusive of any amendment or
supplement thereto after the date hereof), the conduct of the business
and operations of Parent and the Subsidiaries shall not have been
interfered with by, fire, flood, hurricane, accident or other calamity
(whether or not insured) or from any strike, labor dispute, slow down
or work stoppage, or by any court or governmental action, order or
decree, and, except as otherwise stated therein, the properties of
Parent or any of the Subsidiaries shall not have sustained any loss or
damage (whether or not insured) as a result of any such occurrence,
except any such interference, loss or damage which could not,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
(k) There shall not have occurred any invalidation of Rule
144A under the Act by any court or any withdrawal or proposed
withdrawal of any rule or regulation under the Act or the Exchange Act
by the Commission or any amendment or proposed amendment thereof by the
Commission which in the judgment of the Initial Purchasers would
materially impair the ability of the Initial Purchasers to purchase,
hold or effect resales of the Notes contemplated hereby.
(l) The Initial Purchasers shall have received a certificate
from Parent and each Subsidiary, dated the Closing Date, signed by the
two executive officers (or one executive officer and one vice president
or assistant vice president) of each such entity and attested by the
secretary or assistant secretary of each such entity to the effect
that:
(i) Such executive officers have carefully examined
the Final Memorandum, and the Final Memorandum, as of its
date, did not include any untrue statement of a material fact
and did not omit to state a material fact required to be
stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they
were made, not misleading, and since the date of the Final
Memorandum, no event has occurred which should have been set
forth in a supplement or amendment to the Final Memorandum so
that the Final Memorandum (as so amended or supplemented)
would not include any untrue statement of a material fact and
would not omit to state a material fact required to be stated
therein or necessary in order to make the statements therein,
in light of the circumstances under which they were made, not
misleading.
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(ii) The representations and warranties of such
entity contained in this Agreement are true and correct as of
the Closing Date, and entity has performed in all material
respects all covenants and agreements and satisfied in all
material respects all conditions on its part to be performed
or satisfied hereunder at or prior to the Closing Date.
(iii) Since the date of the most recent financial
statements in the Final Memorandum (exclusive of any amendment
or supplement thereto after the date hereof), except as
described in the Final Memorandum, to their knowledge after
due inquiry, no event or development has occurred, no
information has become known nor does any condition exist
that, individually or in the aggregate, has had or could
reasonably be expected to have a Material Adverse Effect.
(iv) No proceeding is pending or contemplated for the
liquidation or dissolution of such entity or threatening its
existence.
Each such certificate shall also have attached copies of (i)
all resolutions of the Board of Directors of such entity authorizing
the transactions contemplated by this Agreement, including, without
limitation, approving the offering of the Notes, the execution,
performance and delivery of this Agreement, the Indenture and the
Registration Rights Agreements, (ii) the certificate of incorporation
and by-laws or analogous organizational documents of such entity, and
(iii) the names, offices and specimen signatures of each officer of
such entity that will execute any document delivered in connection with
the transactions contemplated by this Agreement. For the purposes of
the certificate contemplated by this Section 7(1), the following shall
be deemed to be "executive officers" of a particular entity: its
Chairman of the Board, Vice Chairman of the Board, President, Chief
Executive Officer, Chief Operating Officer, Chief Financial Officer or
Executive Vice President.
(m) On the Closing Date, the Initial Purchasers shall have
received the Registration Rights Agreement duly executed by Parent and
each Subsidiary and such agreement shall be in full force and effect at
all times from and after the Closing Date.
(n) The Indenture shall have been duly executed and delivered
by Parent, the Subsidiaries and the Trustee, and the Notes shall have
been duly executed and delivered by Parent and the Subsidiaries and
duly authenticated by the Trustee.
(o) The Notes shall have been approved by the NASD for trading
in the PORTAL Market.
On or before the Closing Date, the Initial Purchasers and counsel for
the Initial Purchasers shall have received such further documents, opinions,
certificates, letters and schedules or instruments relating to the business,
corporate, legal and financial affairs of Parent and the Subsidiaries as they
shall have heretofore reasonably requested from the Issuers.
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All such documents, opinions, certificates, letters, schedules or
instruments delivered pursuant to this Agreement will comply with the provisions
hereof only if they are reasonably satisfactory in all material respects to the
Initial Purchasers and counsel for the Initial Purchasers. The Issuers shall
furnish to the Initial Purchasers such conformed copies of such documents,
opinions, certificates, letters, schedules and instruments in such quantities as
the Initial Purchasers shall reasonably request.
8. Offering of Notes; Restrictions on Transfer. Each Initial
Purchaser agrees with the Issuers (as to itself only) that (i) it has not and
will not solicit offers for, or offer or sell, the Notes by any form of general
solicitation or general advertising (as those terms are used in Regulation D
under the Act) or in any manner involving a public offering within the meaning
of Section 4(2) of the Act; and (ii) it has and will solicit offers for the
Notes only from, and will offer the Notes only to (A) in the case of offers
inside the United States, persons whom such Initial Purchaser reasonably
believes to be QIBs or, if any such person is buying for one or more
institutional accounts for which such person is acting as fiduciary or agent,
only when such person has represented to such Initial Purchaser that each such
account is a QIB, to whom notice has been given that such sale or delivery is
being made in reliance on Rule 144A, and (B) in the case of offers outside the
United States, to persons other than U.S. persons ("foreign purchasers," which
term shall include dealers or other professional fiduciaries in the United
States acting on a discretionary basis for foreign beneficial owners (other than
an estate or trust)); provided, however, that, in the case of this clause (B),
in purchasing such Notes such persons are deemed to have represented and agreed
as provided under the caption "Notice to Investors" contained in the Final
Memorandum.
Each Initial Purchaser represents and warrants (as to itself
only) with respect to offers and sales outside the United States that (i) it has
and will comply with all applicable laws and regulations in each jurisdiction in
which it acquires, offers, sells or delivers Notes or has in its possession or
distributes any Memorandum or any such other material, in all cases at its own
expense; (ii) the Notes have not been and will not be offered or sold within the
United States or to, or for the account or benefit of, U.S. persons except in
accordance with Regulation S under the Act or pursuant to an exemption from the
registration requirements of the Act; (iii) (A) it has not offered or sold, and,
prior to the expiration of the period of six months from the Closing Date, will
not offer or sell any Notes to persons in the United Kingdom, except to those
persons whose ordinary activities involve them in acquiring, holding, managing
or disposing of investments (as principal or agent) for the purpose of their
businesses or otherwise in circumstances which have not resulted and will not
result in an offer to the public in the United Kingdom within the meaning of the
Public Offers of Securities Regulations 1995, (B) it has complied and will
comply with all applicable provisions of the Financial Services Act of 1986,
with respect to anything done by it in relation to the Notes in, from or
otherwise involving the United Kingdom, and (C) it has only issued or passed on
and will only issue or pass on in the United Kingdom any document received by it
in connection with the issue of the Notes to a person who is of a kind described
in Article 11(3) of the Financial Services ▇▇▇ ▇▇▇▇ (Investment Advertisements)
(Exemptions) Order 1996, as amended, or is a person to whom the document may
otherwise lawfully be issued or passed on; and (iv) it has offered the Notes and
will offer and sell the Notes (A) as part of its distribution at any time and
(B) otherwise until 40 days after
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the later of the commencement of the offering and the Closing Date, only in
accordance with Rule 903 of Regulation S and, accordingly, neither it nor any
persons acting on its behalf have engaged or will engage in any directed selling
efforts (within the meaning of Regulation S) with respect to the Notes, and any
such persons have complied and will comply with the offering restrictions
requirement of Regulation S.
Terms used in this Section 8 and not defined in this Agreement
have the meanings given to them in Regulation S.
9. Indemnification and Contribution. (a) Parent and the
Subsidiaries jointly and severally agree to indemnify and hold harmless each
Initial Purchaser and each person, if any, who controls any Initial Purchaser
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act
against any losses, claims, damages or liabilities to which any Initial
Purchaser or such controlling person may become subject under the Act, the
Exchange Act or otherwise, insofar as any such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon:
(i) any untrue statement or alleged untrue statement made by
Parent or any Subsidiary in Section 2 hereof;
(ii) any untrue statement or alleged untrue statement of any
material fact contained in any Memorandum or any amendment or
supplement thereto; or
(iii) the omission or alleged omission to state, in any
Memorandum or any amendment or supplement thereto, a material fact
required to be stated therein or necessary to make the statements
therein not misleading,
and will reimburse, as incurred, the Initial Purchasers and each such
controlling person for any legal or other expenses incurred by the Initial
Purchasers or such controlling person in connection with investigating,
defending against or appearing as a third-party witness in connection with any
such loss, claim, damage, liability or action; provided, however, Parent and the
Subsidiaries will not be liable in any such case to the extent that any such
loss, claim, damage, or liability arises out of or is based upon any untrue
statement or alleged untrue statement or omission or alleged omission made in
any Memorandum or any amendment or supplement thereto in reliance upon and in
conformity with written information concerning the Initial Purchasers furnished
to the Company by the Initial Purchasers through DB specifically for use
therein, which information is set forth in Section 12. The indemnity provided
for in this Section 9 will be in addition to any liability that parent or a
Subsidiary may otherwise have to the indemnified parties. None of Parent or any
Subsidiary shall be liable under this Section 9 for any settlement of any claim
or action effected without its prior written consent, which shall not be
unreasonably withheld.
(b) Each Initial Purchaser, severally and not jointly, agrees
to indemnify and hold harmless Parent and each Subsidiary, its directors, its
officers and each person, if any, who controls Parent or any Subsidiary within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act against
any losses, claims, damages or liabilities to which the Parent, a
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Subsidiary or any such director, officer or controlling person may become
subject under the Act, the Exchange Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon (i) any untrue statement or alleged untrue statement of any
material fact contained in any Memorandum or any amendment or supplement
thereto, or (ii) the omission or the alleged omission to state therein a
material fact required to be stated in any Memorandum or any amendment or
supplement thereto, or necessary to make the statements therein not misleading,
in each case to the extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information concerning such Initial
Purchaser, furnished to Parent and the Subsidiaries by the Initial Purchasers
through DB specifically for use therein which information is set forth in
Section 12; and subject to the limitation set forth immediately preceding this
clause, will reimburse, as incurred, any legal or other expenses incurred by
Parent, any Subsidiary or any such director, officer or controlling person in
connection with investigating or defending against or appearing as a third party
witness in connection with any such loss, claim, damage, liability or action in
respect thereof. The indemnity provided for in this Section 9 will be in
addition to any liability that the Initial Purchasers may otherwise have to the
indemnified parties. The Initial Purchasers shall not be liable under this
Section 9 for any settlement of any claim or action effected without their
consent, which shall not be unreasonably withheld. Parent and the Subsidiaries
shall not, without the prior written consent of the Initial Purchasers, effect
any settlement or compromise of any pending or threatened proceeding in respect
of which any Initial Purchaser is or could have been a party, or indemnity could
have been sought hereunder by any Initial Purchaser, unless such settlement (A)
includes an unconditional written release of the Initial Purchasers, in form and
substance reasonably satisfactory to the Initial Purchasers, from all liability
on claims that are the subject matter of such proceeding and (B) does not
include any statement as to an admission of fault, culpability or failure to act
by or on behalf of any Initial Purchaser.
(c) Promptly after receipt by an indemnified party under this
Section 9 of notice of the commencement of any action for which such indemnified
party is entitled to indemnification under this Section 9, such indemnified
party will, if a claim in respect thereof is to be made against the indemnifying
party under this Section 9, notify the indemnifying party of the commencement
thereof in writing; but the omission to so notify the indemnifying party (i)
will not relieve it from any liability under paragraph (a) or (b) above unless
and to the extent such failure results in the forfeiture by the indemnifying
party of substantial rights and defenses and (ii) will not, in any event,
relieve the indemnifying party from any obligations to any indemnified party
other than the indemnification obligation provided in paragraphs (a) and (b)
above. In case any such action is brought against any indemnified party, and it
notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein and, to the extent that it may
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel reasonably satisfactory to such indemnified
party; provided, however, that if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such counsel
with a conflict of interest, (ii) the defendants in any such action include both
the indemnified party and the indemnifying party and the indemnified party shall
have been advised by counsel that there may be one or more legal defenses
available to it and/or other indemnified parties that are different from or
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23
additional to those available to the indemnifying party, or (iii) the
indemnifying party shall not have employed counsel reasonably satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time after receipt by the indemnifying party of notice of the institution of
such action, then, in each such case, the indemnifying party shall not have the
right to direct the defense of such action on behalf of such indemnified party
or parties and such indemnified party or parties shall have the right to select
separate counsel to defend such action on behalf of such indemnified party or
parties. After notice from the indemnifying party to such indemnified party of
its election so to assume the defense thereof and approval by such indemnified
party of counsel appointed to defend such action, the indemnifying party will
not be liable to such indemnified party under this Section 9 for any legal or
other expenses, other than reasonable costs of investigation, subsequently
incurred by such indemnified party in connection with the defense thereof,
unless (i) the indemnified party shall have employed separate counsel in
accordance with the proviso to the immediately preceding sentence (it being
understood, however, that in connection with such action the indemnifying party
shall not be liable for the expenses of more than one separate counsel (in
addition to local counsel) in any one action or separate but substantially
similar actions in the same jurisdiction arising out of the same general
allegations or circumstances, designated by the Initial Purchasers in the case
of paragraph (a) of this Section 9 or Parent or a Subsidiary in the case of
paragraph (b) of this Section 9, representing the indemnified parties under such
paragraph (a) or paragraph (b), as the case may be, who are parties to such
action or actions) or (ii) the indemnifying party has authorized in writing the
employment of counsel for the indemnified party at the expense of the
indemnifying party. All fees and expenses reimbursed pursuant to this paragraph
(c) shall be reimbursed as they are incurred. After such notice from the
indemnifying party to such indemnified party, the indemnifying party will not be
liable for the costs and expenses of any settlement of such action effected by
such indemnified party without the prior written consent of the indemnifying
party (which consent shall not be unreasonably withheld), unless such
indemnified party waived in writing its rights under this Section 9, in which
case the indemnified party may effect such a settlement without such consent.
(d) In circumstances in which the indemnity agreement provided
for in the preceding paragraphs of this Section 9 is unavailable to, or
insufficient to hold harmless, an indemnified party in respect of any losses,
claims, damages or liabilities (or actions in respect thereof), each
indemnifying party, in order to provide for just and equitable contribution,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions in respect
thereof) in such proportion as is appropriate to reflect (i) the relative
benefits received by the indemnifying party or parties on the one hand and the
indemnified party on the other from the offering of the Notes or (ii) if the
allocation provided by the foregoing clause (i) is not permitted by applicable
law, not only such relative benefits but also the relative fault of the
indemnifying party or parties on the one hand and the indemnified party on the
other in connection with the statements or omissions or alleged statements or
omissions that resulted in such losses, claims, damages or liabilities (or
actions in respect thereof). The relative benefits received by Parent and the
Subsidiaries on the one hand and any Initial Purchaser on the other shall be
deemed to be in the same proportion as the total proceeds from the offering
(before deducting expenses) received by Parent and the Subsidiaries bear to the
total discounts and commissions received by such Initial Purchaser. The relative
fault
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of the parties shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by
Parent and the Subsidiaries on the one hand, or such Initial Purchaser on the
other, the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission or alleged
statement or omission, and any other equitable considerations appropriate in the
circumstances. Parent, the Subsidiaries and the Initial Purchasers agree that it
would not be equitable if the amount of such contribution were determined by pro
rata or per capita allocation or by any other method of allocation that does not
take into account the equitable considerations referred to in the first sentence
of this paragraph (d). Notwithstanding any other provision of this paragraph
(d), no Initial Purchaser shall be obligated to make contributions hereunder
that in the aggregate exceed the total discounts, commissions and other
compensation received by such Initial Purchaser under this Agreement, less the
aggregate amount of any damages that such Initial Purchaser has otherwise been
required to pay by reason of the untrue or alleged untrue statements or the
omissions or alleged omissions to state a material fact, and 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 paragraph (d), each person,
if any, who controls an Initial Purchaser 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 Initial Purchasers, and each director or officer of Parent
or a Subsidiary and each person, if any, who controls the Parent or any
Subsidiary within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, shall have the same rights to contribution as Parent or such
Subsidiary.
10. Survival Clause. The respective representations,
warranties, agreements, covenants, indemnities and other statements of Parent or
any Subsidiary, their respective officers and any Initial Purchaser set forth in
this Agreement or made by or on behalf of them pursuant to this Agreement shall
remain in full force and effect, regardless of (i) any investigation made by or
on behalf of Parent or Subsidiary, any of their respective officers or
directors, any Initial Purchaser or any other person referred to in Section 9
hereof and (ii) delivery of and payment for the Notes. The respective
agreements, covenants, indemnities and other statements set forth in Sections 6,
9 and 15 hereof shall remain in full force and effect, regardless of any
termination or cancellation of this Agreement.
11. Termination. (a) This Agreement may be terminated in the
sole discretion of each Initial Purchaser by notice to Parent given prior to the
Closing Date in the event that the Parent or any Subsidiary shall have failed,
refused or been unable to perform in all material respects all obligations and
satisfy in all material respects all conditions on their respective parts to be
performed or satisfied hereunder at or prior thereto or, if at or prior to the
Closing Date:
(i) any of Parent or the Subsidiaries shall have sustained any
loss or interference with respect to its businesses or properties from
fire, flood, hurricane, accident or other calamity, whether or not
covered by insurance, or from any strike, labor dispute, slow down or
work stoppage or any legal or governmental proceeding, which loss or
interference, in the sole judgment of such Initial Purchaser, has had
or could reasonably be expected to have a Material Adverse Effect, or
there shall have been, in the
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25
sole judgment of such Initial Purchaser, any event or development that,
individually or in the aggregate, has had or could reasonably be
expected to have a Material Adverse Effect (including without
limitation a change in control of Parent or any of the Subsidiaries),
except in each case as described in the Memorandum (exclusive of any
amendment or supplement thereto);
(ii) trading in securities generally on the New York Stock
Exchange, American Stock Exchange or the NASDAQ National Market shall
have been suspended or minimum or maximum prices shall have been
established on any such exchange or market;
(iii) any securities of Parent or any Subsidiary shall have
been downgraded or placed on any "watch list" for possible downgrading
by any nationally recognized statistical ratings organization;
(iv) a banking moratorium shall have been declared by New York
or United States authorities; or
(v) there shall have been (A) an outbreak or escalation of
hostilities between the United States and any foreign power, or (B) an
outbreak or escalation of any other insurrection or armed conflict
involving the United States or any other national or international
calamity or emergency, or (C) any material change in the financial
markets of the United States which, in the case of (A), (B) or (C)
above and in the sole judgment of such Initial Purchaser, makes it
impracticable to proceed with the offering or the delivery of the Notes
as contemplated by the Final Memorandum.
(b) Termination of this Agreement pursuant to this Section 11
shall be without liability of any party to any other party except as provided in
Section 10 hereof.
12. Information Supplied by the Initial Purchasers. The
statements set forth in the second and third sentences of paragraph 3, the third
sentence of paragraph 6, and in paragraph 7 under the heading "Private
Placement" in the Memorandum (to the extent such statements relate to the
Initial Purchasers) constitute the only information furnished by the Initial
Purchasers to the Company for the purposes of Sections 2(a) and 9 hereof.
13. Notices. All communications hereunder shall be in writing
and, if sent to the Initial Purchasers, shall be mailed or delivered to Deutsche
Bank Securities Inc., ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
Corporate Finance Department; with a copy to White & Case LLP, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, Esq.; if sent to the
Parent or any Subsidiary, shall be mailed or delivered c/o Orius Corp., ▇▇▇▇
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attn: Chief Financial Officer,
with a copy to ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, or, in each case, to such other address as
may be specified by notice given in accordance with this Section 13.
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26
All such notices and communications shall be deemed to have
been duly given: when delivered by hand, if personally delivered; five business
days after being deposited in the mail, postage prepaid, if mailed; and one
business day after being timely delivered to a next-day air courier.
14. Successors. This Agreement shall inure to the benefit of
and be binding upon the Initial Purchasers, each of Parent, the Subsidiaries and
their respective successors and legal representatives, and nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any other
person any legal or equitable right, remedy or claim under or in respect of this
Agreement, or any provisions herein contained; this Agreement and all conditions
and provisions hereof being intended to be and being for the sole and exclusive
benefit of such persons and for the benefit of no other person except that (i)
the indemnities of Parent and the Subsidiaries contained in Section 9 of this
Agreement shall also be for the benefit of any person or persons who control any
Initial Purchaser within the meaning of Section 15 of the Act or Section 20 of
the Exchange Act and (ii) the indemnities of any Initial Purchaser contained in
Section 9 of this Agreement shall also be for the benefit of the directors of
Parent and the Subsidiaries and officers and any person or persons who control
any of Parent and the Subsidiaries within the meaning of Section 15 of the Act
or Section 20 of the Exchange Act. No purchaser of Notes from any Initial
Purchaser will be deemed a successor because of such purchase.
15. APPLICABLE LAW. THE VALIDITY AND INTERPRETATION OF THIS
AGREEMENT, AND THE TERMS AND CONDITIONS SET FORTH HEREIN, SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS MADE AND TO BE PERFORMED WHOLLY THEREIN, WITHOUT GIVING EFFECT TO ANY
PROVISIONS THEREOF RELATING TO CONFLICTS OF LAW.
16. Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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If the foregoing correctly sets forth our understanding, please indicate your
acceptance thereof in the space provided below for that purpose, whereupon this
letter shall constitute a binding agreement between Parent, the Subsidiaries and
the Initial Purchasers.
Very truly yours,
NATG HOLDINGS, LLC
By /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Secretary
ORIUS CAPITAL CORP.
By /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Secretary
GUARANTORS:
ORIUS CORP.
By /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Secretary
NORTH AMERICAN TEL-COM
GROUP, INC.
By /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Secretary
28
LISN COMPANY
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title:
LISN, INC.
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title:
ARION SUB, INC.
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title:
CATV SUBSCRIBER SERVICES, INC.
By /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Assistant Secretary
CABLEMASTERS, CORP.
By /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Assistant Secretary
29
CHANNEL COMMUNICATIONS, INC.
By /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Assistant Secretary
EXCEL CABLE CONSTRUCTION, INC.
By /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Assistant Secretary
MICH-COM CABLE SERVICES INCORPORATED
By /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Assistant Secretary
STATE WIDE CATV, INC.
By /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Assistant Secretary
U.S. CABLE, INC.
By /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Assistant Secretary
30
DAS-CO OF IDAHO, INC.
By /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Assistant Secretary
NETWORK CABLING SERVICES, INC.
By /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Assistant Secretary
▇▇▇▇▇▇ UNDERGROUND CABLE, INC.
By /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Assistant Secretary
COPENHAGEN UTILITIES &
CONSTRUCTION INC.
By /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Assistant Secretary
TEXEL CORPORATION
By /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Assistant Secretary
31
▇▇▇▇▇ ACQUISITION, L.P. (to be renamed
▇▇▇▇▇ Telecom Services, L.P.)
By: ▇▇▇▇▇▇ UNDERGROUND CABLE
INC., its general partner
By /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Assistant Secretary
▇▇▇▇▇ TELECOM HOLDINGS, INC.
By /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Assistant Secretary
32
The foregoing Agreement is
hereby confirmed and accepted
as of the date first above
written.
DEUTSCHE BANK SECURITIES INC.
BANC OF AMERICA SECURITIES LLC
By: DEUTSCHE BANK SECURITIES INC.
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director
33
SCHEDULE 1
Principal
Amount of
Initial Purchasers Notes
------------------ ------------
Deutsche Bank Securities Inc. $97,500,000
Banc of America Securities LLC $52,500,000
Total: $150,000,000
34
SCHEDULE 2
Subsidiaries
NATG Holdings, LLC
Orius Capital Corp.
LISN Company
LISN, Inc.
Arion Sub, Inc.
North American Tel-Com Group, Inc.
CATV Subscriber Services, Inc.
Cablemasters, Corp.
Channel Communications, Inc.
Excel Cable Construction, Inc.
Mich-Com Cable Services Incorporated
State Wide CATV, Inc.
U.S. Cable, Inc.
DAS-CO of Idaho, Inc.
Network Cabling Services, Inc.
▇▇▇▇▇▇ Underground Cable, Inc.
Copenhagen Utilities & Construction Inc.
Texel Corporation
▇▇▇▇▇ Acquisition, L.P. (to be renamed ▇▇▇▇▇ Telecom Services, L.P.)
▇▇▇▇▇ Telecom Holdings, Inc.
35
EXHIBIT A
Form of Opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇