GENERAL COMMUNICATION, INC.
__% Senior Notes Due 2007
Underwriting Agreement
New York, New York
July __ , 1997
Salomon Brothers Inc
▇▇▇▇▇▇▇▇ & Co. Inc.
NationsBanc Capital Markets, Inc.
TD Securities (USA) Inc.,
As Representatives of the several Underwriters,
c/o Salomon Brothers Inc
Seven World Trade Center
New York, New York 10048
Ladies and Gentlemen:
GCI, Inc., an Alaska corporation (the "Company") and a wholly owned
subsidiary of General Communication, Inc., proposes to sell to the underwriters
named in Schedule I hereto (the "Underwriters"), for whom you (the
"Representatives") are acting as representatives, $150,000,000 principal amount
of its ____% Senior Notes Due 2007 (the "Securities"), to be issued under an
indenture (the "Indenture") to be dated as of July __, 1997, between the Company
and The Bank of New York, as trustee (the "Trustee").
1. REPRESENTATIONS AND WARRANTIES. The Company represents and
warrants to, and agrees with, each Underwriter as set forth below in this
Section 1. Certain terms used in this Section 1 are defined in paragraph (g)
hereof.
(a) The Company meets the requirements for use of Form S-1 under the
Securities Act of 1933, as amended (the "Act") and has filed with the
Securities and Exchange Commission (the "Commission") a registration
statement (file number 333-28005) on Form S-1, including a related
preliminary prospectus, for the registration under the Act, of the offering
and sale of the Securities. The Company may have filed one or more
amendments thereto, including the related preliminary prospectus, each of
which has previously been furnished to you. The Company will next file
with the Commission either: (A) prior to effectiveness of such registration
statement, a further amendment to such regis-
tration statement (including the form of final prospectus) or (B) after
effectiveness of such registration statement, a final prospectus in
accordance with Rules 430A and 424(b)(1) or (4). In the case of clause
(B), the Company has included in such registration statement, as amended
at the Effective Date, all information (other than Rule 430A Information)
required by the Act and the rules thereunder to be included in the
Prospectus with respect to the Securities and the offering thereof. As
filed, such amendment and form of final prospectus, or such final
prospectus, shall contain all Rule 430A Information, together with all
other such required information, with respect to the Securities and the
offering thereof and, except to the extent the Representatives shall
agree in writing to a modification, shall be in all substantive respects
in the form furnished to you prior to the Execution Time or, to the
extent not completed at the Execution Time, shall contain only such
specific additional information and other changes (beyond that contained
in the latest Preliminary Prospectus) as the Company has advised you,
prior to the Execution Time, will be included or made therein. Upon your
request, the Company also will file with the Commission a Rule 462(b)
Registration Statement in accordance with Rule 462(b).
(b) On the Effective Date, the Registration Statement did or will,
and when the Prospectus is first filed (if required) in accordance with
Rule 424(b) and on the Closing Date (as defined herein), the Prospectus
(and any supplements thereto) will, comply in all material respects with
the applicable requirements of the Act, the Securities Exchange Act of 1934
(the "Exchange Act") and the Trust Indenture Act of 1939 (the "Trust
Indenture Act") and the respective rules and regulations thereunder; on the
Effective Date, the Registration Statement did not or will not contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the statements
therein not misleading; on the Effective Date and on the Closing Date the
Indenture did or will comply in all material respects with the requirements
of the Trust Indenture Act and the rules thereunder; and, on the Effective
Date, the Prospectus, if not filed pursuant to Rule 424(b), did not or will
not, and on the date of any filing pursuant to Rule 424(b) and on the
Closing Date, the Prospectus (together with any supplement thereto) will
not, include any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements
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therein, in the light of the circumstances under which they were made, not
misleading; PROVIDED, HOWEVER, that the Company makes no representations or
warranties as to (i) that part of the Registration Statement which shall
constitute the Statement of Eligibility and Qualification (Form T-1) under
the Trust Indenture Act of the Trustee or (ii) the information contained in
or omitted from the Registration Statement or the Prospectus (or any
supplement thereto) in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of any Underwriter
through the Representatives specifically for inclusion in the Registration
Statement or the Prospectus (or any supplement thereto).
(c) The Company and its subsidiaries (all of which are listed in
Schedule II attached hereto) (individually, a "Subsidiary" and
collectively, the "Subsidiaries") have in effect all the communications
regulatory licenses, permits, franchises, authorizations, registrations,
certifications, consents and approvals ("Communications Licenses")
necessary, including from the Federal Communications Commission ("FCC") and
the Alaska Public Utilities Commission ("APUC"), for the Company and its
Subsidiaries to conduct their respective businesses as presently conducted
or proposed to be conducted, except for Communications Licenses as to which
the failure to obtain, individually or in the aggregate, would not have a
material adverse effect on the Company and its Subsidiaries, taken as a
whole. The Communications Licenses obtained by the Company or its
Subsidiaries have been duly and validly issued, are in full force and
effect and such Communications Licenses are not subject to any restrictions
or conditions which, individually or in the aggregate, would have a
material adverse effect on the Company and its Subsidiaries, taken as a
whole. No proceedings to revoke, refuse to renew, modify or restrict such
Communications Licenses are pending or, to the best of the Company's
knowledge, threatened.
(d) The Company and its Subsidiaries are not in violation of any
applicable statute, law, ordinance, rule, regulation, policy, franchise or
any judgment, injunction, order or decree ("Governmental Laws") of any
court or governmental authority, including, but not limited to, the FCC or
of the communications regulatory authority of the State of Alaska or of any
other jurisdiction (domestic or foreign) in which the Company or its
Subsidiaries conduct business having jurisdiction over the Company or the
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Subsidiaries, or over their respective properties except for violations
which would not, individually or in the aggregate, have a material adverse
effect on the Company and its Subsidiaries, taken as a whole. The Company
and its Subsidiaries have not received any notice of any violation of any
Governmental Laws (including, without limitation, the Communication Act of
1934, as amended, and the FCC's rules).
(e) There is no outstanding adverse judgment, injunction, decree or
order that has been issued by any court or governmental authority,
including, but not limited to, the FCC or the APUC, against the Company or
any of its Subsidiaries or any action, proceeding or investigation pending
before or, to the best of the Company's knowledge, threatened by any court
or governmental authority, including, but not limited to, the FCC or the
APUC against the Company or any of its Subsidiaries which would,
individually or in the aggregate, have a material adverse effect on the
Company and its Subsidiaries, taken as a whole.
(f) No consent, approval, authorization, license or order of, or
filing, registration or qualification with, any court or governmental
agency or body, domestic or foreign, is required, including, without
limitation, under the Federal Communications Act of 1934, as amended, the
Cable Communications Policy Act of 1984, the Cable Television Consumer
Protection and Competition Act of 1992 and the Telecommunications Act of
1996 (collectively, the "Telecommunications Acts") or any order, rule,
regulation or policy of the FCC or the APUC for the performance by the
Company of its obligations under this Agreement or for the consummation of
the transactions contemplated herein, 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 and such other approvals as have been
obtained.
(g) The terms which follow, when used in this Agreement, shall have
the meanings indicated. The term "the Effective Date" shall mean each date
that the Registration Statement and any post-effective amendment or
amendments thereto and any Rule 462(b) Registration Statement became or
become effective and each date after the date hereof on which a document
incorporated by reference in the Registration Statement is filed.
"Execution Time" shall
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mean the date and time that this Agreement is executed and delivered by the
parties hereto. "Preliminary Prospectus" shall mean any preliminary
prospectus referred to in paragraph (a) above and any preliminary
prospectus included in the Registration Statement at the Effective Date
that omits Rule 430A Information. "Prospectus" shall mean the prospectus
relating to the Securities that is first filed pursuant to Rule 424(b)
after the Execution Time or, if no filing pursuant to Rule 424(b) is
required, shall mean the form of final prospectus relating to the
Securities included in the Registration Statement at the Effective Date.
"Registration Statement" shall mean the registration statement referred to
in paragraph (a) above, including incorporated documents, exhibits and
financial statements, as amended at the Execution Time (or, if not
effective at the Execution Time, in the form in which it shall become
effective) and, in the event any post-effective amendment thereto or any
Rule 462(b) Registration Statement becomes effective prior to the Closing
Date, shall also mean such registration statement as so amended or such
Rule 462(b) Registration Statement, as the case may be. Such term shall
include any Rule 430A Information deemed to be included therein at the
Effective Date as provided by Rule 430A. "Rule 415," "Rule 424," "Rule
430A," "Rule 462" and "Regulation S-K" refer to such rules or regulation
under the Act. "Rule 430A Information" means information with respect to
the Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
Any reference herein to the Registration Statement, a Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to Item 12 of Form S-1
which were filed under the Exchange Act on or before the Effective Date of
the Registration Statement or the issue date of such Preliminary Prospectus
or the Prospectus, as the case may be; and any reference herein to the
terms "amend", "amendment" or "supplement" with respect to the Registration
Statement, any Preliminary Prospectus or the Prospectus shall be deemed to
refer to and include the filing of any document under the Exchange Act
after the Effective Date of the Registration Statement, or the issue date
of any Preliminary Prospectus or the Prospectus, as the case may be, deemed
to be incorporated therein by reference. "Rule 462(b) Registration
Statement" shall mean a registration statement and any amendments thereto
filed pursuant to Rule 462(b) relating to the
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offering covered by the initial registration statement (file number
333-28005).
2. PURCHASE AND SALE. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Company
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Company, at a purchase price of ______% of the
principal amount thereof, plus accrued interest, if any, on the Securities from
July ___, 1997, to the Closing Date, the principal amount of the Securities set
forth opposite such Underwriter's name in Schedule I hereto.
3. DELIVERY AND PAYMENT. The Representatives and the Company agree
that the delivery of and payment for the Securities shall take place five
business days following the date of this Agreement. Delivery of and payment for
the Securities shall be made at 10:00 AM, New York City time, on July __, 1997,
or such later date (not later than ____________, 1997) as the Representatives
shall designate, which date and time may be postponed by agreement among the
Representatives and the Company or as provided in Section 9 hereof (such date
and time of delivery and payment for the Securities being herein called the
"Closing Date"). Delivery of the Securities shall be made to the
Representatives for the respective accounts of the several Underwriters against
payment by the several Underwriters through the Representatives of the purchase
price thereof to or upon the order of the Company by certified or official bank
check or checks drawn on or by a New York Clearing House bank and payable in
next day funds. Delivery of the Securities shall be made at such location as
the Representatives shall reasonably designate at least one business day in
advance of the Closing Date and payment for the Securities shall be made at the
office of Paul, Hastings, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇. Certificates for the Securities shall be registered in such names and in
such denominations as the Representatives may request not less than two full
business days in advance of the Closing Date.
The Company agrees to have the Securities available for inspection,
checking and packaging by the Representatives in New York, New York, not later
than 1:00 PM on the business day prior to the Closing Date.
4. OFFERING BY UNDERWRITERS. It is understood that the several
Underwriters propose to offer the Securities for sale to the public as set forth
in the Prospectus.
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5. AGREEMENTS. The Company agrees with the several Underwriters
that:
(a) The Company will use its reasonable best efforts to cause the
Registration Statement, if not effective at the Execution Time, and any
amendment thereof, to become effective. Prior to the termination of the
offering of the Securities, the Company will not file any amendment of the
Registration Statement, supplement to the Prospectus or any Rule 462(b)
Registration Statement without your prior consent. Subject to the
foregoing sentence, if the Registration Statement has become or becomes
effective pursuant to Rule 430A, or filing of the Prospectus is otherwise
required under Rule 424(b), the Company will cause the Prospectus, properly
completed, and any supplement thereto to be filed with the Commission
pursuant to the applicable paragraph of Rule 424(b) within the time period
prescribed and will provide evidence satisfactory to the Representatives of
such timely filing. Upon your request, the Company will cause the Rule
462(b) Registration Statement, completed in compliance with the Act and the
applicable rules and regulations thereunder, to be filed with the
Commission pursuant to Rule 462(b) and will provide evidence satisfactory
to the Representatives of such filing. The Company will promptly advise
the Representatives (A) when the Registration Statement, if not effective
at the Execution Time, and any amendment thereto, shall have become
effective, (B) when the Prospectus, and any supplement thereto, or any Rule
462(b) Registration Statement, shall have been filed (if required) with the
Commission pursuant to Rule 424(b), (C) when, prior to termination of the
offering of the Securities, any amendment to the Registration Statement
shall have been filed or become effective, (D) of any request by the
Commission for any amendment of the Registration Statement, or any Rule
462(b) Registration Statement, or supplement to the Prospectus or for any
additional information, (E) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose and (F) of
the receipt by the Company of any notification with respect to the
suspension of the qualification of the Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose. The Company will use its reasonable best efforts to prevent the
issuance of any such stop order and, if issued, to obtain as soon as
possible the withdrawal thereof.
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(b) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event occurs as a result of
which the Prospectus as then supplemented would include any untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, or if it shall be necessary to amend
the Registration Statement or supplement the Prospectus to comply with the
Act or the Exchange Act or the respective rules and regulations thereunder,
the Company promptly will (i) prepare and file with the Commission, subject
to the second sentence of paragraph (a) of this Section 5, an amendment or
supplement which will correct such statement or omission or effect such
compliance and (ii) supply any amended or supplemented Prospectus to you in
such quantities as you may reasonably request.
(c) As soon as practicable, the Company will make generally available
to its security holders and to the Representatives an earnings statement or
statements of the Company and its subsidiaries which will satisfy the
provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) The Company will furnish to each of the Representatives and
counsel for the Underwriters, without charge, signed copies of the
Registration Statement (including exhibits thereto) and to each other
Underwriter a copy of the Registration Statement (without exhibits thereto)
and, so long as delivery of a prospectus by an Underwriter or dealer may be
required by the Act or otherwise required, as many copies of each
Preliminary Prospectus and the Prospectus and any supplement thereto as the
Representatives may reasonably request. The Company will pay the expenses
of printing or other production of all documents relating to the offering.
(e) The Company will arrange in cooperation with the Representatives
for the qualification of the Securities for sale under the laws of such
jurisdictions as the Representatives may designate, will maintain such
qualifications in effect so long as required for the distribution of the
Securities, will arrange for the determination of the legality of the
Securities for purchase by institutional investors and will pay the fee of
the
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National Association of Securities Dealers, Inc., in connection with its
review of the offering.
(f) The Company will not, for a period of 180 days following the
Execution Time, without the prior written consent of Salomon Brothers Inc,
offer, sell or contract to sell, or otherwise dispose of, directly or
indirectly, or announce the offering of, any debt securities, or securities
convertible into or exchangeable or exercisable for debt securities, issued
or guaranteed by the Company (other than the Securities).
(g) The Company confirms as of the date hereof that it is in
compliance with all provisions of Section 517.075, Florida Statutes,
relating to issuers doing business with the Government of Cuba or with any
person or affiliate located in Cuba, and the Company further agrees that if
it commences engaging in business with the government of Cuba or with any
person or affiliate located in Cuba after the date the Registration
Statement becomes or has become effective with the Commission or with the
Florida Department of Banking and Finance (the "Department"), whichever
date is later, or if the information reported in the Prospectus, if any,
concerning the Company's business with Cuba or with any person or affiliate
located in Cuba changes in any material way, the Company will provide the
Department notice of such business or change, as appropriate, in a form
acceptable to the Department.
6. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS. The
obligations of the Underwriters to purchase the Securities shall be subject to
the accuracy of the representations and warranties on the part of the Company
contained herein as of the Execution Time and the Closing Date, to the accuracy
of the statements of the Company made in any certificates pursuant to the
provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to
the Execution Time, unless the Representatives agree in writing to a later
time, the Registration Statement will become effective not later than (i)
5:30 PM, New York City time, on the date of determination of the public
offering price, if such determination occurred at or prior to 3:00 PM, New
York City time, on such date or (ii) 12:00 noon on the business day
following the day on which the public offering price was
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determined, if such determination occurred after 3:00 PM, New York City
time, on such date; if filing of the Prospectus, or any supplement thereto,
is required pursuant to the applicable paragraph of Rule 424(b), the
Prospectus, and any such supplement, will be filed in the manner and within
the time period required by Rule 424(b); and no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have furnished to the Representatives the
opinion of ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, corporate counsel
for the Company, dated the Closing Date, to the effect that:
(i) each of the Company and each of its Subsidiaries has been
duly incorporated and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation, with
full corporate power and authority to own its properties and conduct
its business as described in the Prospectus, and is duly qualified to
transact business as a foreign corporation and is in good standing
under the laws of each jurisdiction which requires such qualification
wherein it owns or leases material properties or conducts material
business;
(ii) all the outstanding shares of capital stock of each
Subsidiary have been duly and validly authorized and issued and are
fully paid and nonassessable, and, except as otherwise set forth in
the Prospectus, all outstanding shares of capital stock of the
Subsidiaries are owned by the Company either directly or through
wholly owned Subsidiaries, free and clear of any perfected security
interest and, to the knowledge of such counsel, after due inquiry, any
other security interests, claims, liens or encumbrances;
(iii) the Company's authorized equity capitalization is as set
forth in the Prospectus; and the Securities conform to the description
thereof contained in the Prospectus;
(iv) the Indenture has been duly authorized, executed and
delivered, has been duly qualified under the Trust Indenture Act, and
constitutes a legal, valid and binding instrument enforceable against
the Company
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in accordance with its terms (subject, as to enforcement of remedies,
to applicable bankruptcy, reorganization, insolvency, moratorium or
other similar laws affecting creditors' rights generally from time to
time in effect); and the Securities have been duly authorized and,
when executed and authenticated in accordance with the provisions of
the Indenture and delivered to and paid for by the Underwriters
pursuant to this Agreement, will constitute legal, valid and binding
obligations of the Company entitled to the benefits of the Indenture;
(v) to the best knowledge of such counsel, there are no pending or
threatened actions, suits or proceedings before any court or
governmental agency, authority or body or any arbitrator involving the
Company or any of its Subsidiaries of a character required to be
disclosed in the Registration Statement or the Prospectus which are
not adequately disclosed therein, and there are no franchises,
contracts or other documents of a character required to be described
in the Registration Statement or Prospectus, or to be filed as
exhibits, which are not described or filed as required; and the
statements included or incorporated in the Prospectus describing any
legal proceedings, regulatory matters, statutes, material contracts or
agreements relating to the Company fairly summarize such matters;
(vi) this Agreement has been duly authorized, executed and
delivered by the Company;
(vii) no consent, approval, authorization, license or order of, or
filing, registration or qualification with, any court or governmental
agency or body, domestic or foreign, is required, including, without
limitation, under the Telecommunications Acts or any order, rule,
regulation or policy of the FCC or the APUC, for the performance by
the Company of its obligations under this Agreement or for the
consummation of the transactions contemplated herein, 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 and such other
approvals (specified in such opinion) as have been obtained;
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(viii) neither the execution and delivery of the Indenture, the
issue and sale of the Securities, nor the consummation of any other of
the transactions herein contemplated nor the fulfillment of the terms
hereof will conflict with, result in a breach or violation of, or
constitute a default under any law or any Governmental Laws or the
certificate of incorporation or by-laws of the Company or the terms of
any indenture or other agreement or instrument known to such counsel
and to which the Company or any of its Subsidiaries is a party or
bound or any judgment, injunction, order or decree known to such
counsel to be applicable to the Company or any of its Subsidiaries of
any court, regulatory body, administrative agency, governmental body
or arbitrator;
(ix) except as set forth in the Registration Statement under the
section entitled "Certain Transactions--Registration Rights
Agreements," no holders of securities of the Company have rights to
the registration of such securities under the Registration Statement;
(x) the execution and delivery of this Agreement and the
issuance and sale of Securities by the Company, and the performance by
the Company of its obligations under this Agreement and the
Securities, do not violate the Telecommunications Acts or any rules,
regulations or policies thereunder binding on the Company or its
Subsidiaries or any order, writ, judgment, injunction, decree or award
of the FCC binding on the Company or its Subsidiaries; and
(xi) the Company and its Subsidiaries are not, nor with the
passage of time or the giving of notice or both would be, to the best
knowledge of such counsel, in violation of any Governmental Laws of
any court or any governmental authority, excluding the FCC or the
APUC, relating to the Company or its Subsidiaries or to any properties
of the Company or its Subsidiaries. The Company and its Subsidiaries
have not received any notice of any violation of any Governmental
Laws.
In addition, such counsel shall state that nothing has come to its
attention that leads it to believe that the Registration Statement at the time
the Registration Statement became effective or on the Closing Date (other than
the financial
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statements and supporting notes and schedules and other financial and
statistical data contained therein, as to which such counsel need not comment)
contained any untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary in order to make the
statements therein not misleading, or that the Prospectuses at the time they
were delivered or on the Closing Date (other than the financial statements and
supporting notes and schedules and other financial and statistical data
contained therein, as to which such counsel need not comment) contain any untrue
statement of a material fact or 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.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the State of
Alaska [, Limited Partnership Law of the State of Delaware] or the United
States, to the extent such counsel deems proper and as specified in such
opinion, upon the opinion of other counsel of good standing whom such counsel
believes to be reliable and who are satisfactory to counsel for the Underwriters
and (B) as to matters of fact, to the extent deemed proper, on certificates of
responsible officers of the Company and public officials. References to the
Prospectus in this paragraph (b) include any supplements thereto at the Closing
Date.
(c) The Company shall have furnished to the Representatives the
opinion of ▇▇▇▇ ▇▇▇▇▇▇▇, counsel for the Company, dated the Closing Date,
to the effect that:
(i) the Company and its Subsidiaries have been granted and
presently hold all Communications Licenses necessary, including from
the FCC and the APUC, for the Company and its Subsidiaries to conduct
their respective businesses as presently conducted or proposed to be
conducted; to the best knowledge of such counsel such Communications
Licenses have been duly and validly issued, are in full force and
effect and are not subject to any restrictions or conditions which,
individually or in the aggregate, would have a material adverse effect
on the Company and its Subsidiaries, taken as a whole. No proceedings
to revoke, refuse to renew, modify or restrict such Communications
Licenses are pending or, to the best knowledge of such counsel,
threatened;
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(ii) there is no proceeding pending before the FCC or the APUC,
or, to the best knowledge of such counsel, any investigation or
proceeding pending or threatened by the FCC or the APUC against the
Company or its Subsidiaries which, if adversely determined,
individually or in the aggregate, could have a material adverse effect
on the Company and its Subsidiaries taken as a whole; and
(iii) the Company and its Subsidiaries are not, nor with the
passage of time or the giving of notice or both would be, to the best
knowledge of such counsel, in violation of any Governmental Laws of
any court or any governmental authority, including, but not limited
to, the FCC or the APUC relating to the Company or its Subsidiaries or
to any properties of the Company or its Subsidiaries. The Company and
its Subsidiaries have not received any notice of any violation of any
Governmental Laws.
(d) The Company shall have furnished to the Representatives the
opinion of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.C., special counsel for the Company, dated
the Closing Date, to the effect that:
(i) each of the Company and each of its Subsidiaries has been
duly incorporated and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation, with
full corporate power and authority to own its properties and conduct
its business as described in the Prospectus;
(ii) the Company's authorized equity capitalization is as set
forth in the Prospectus; and the Securities conform to the description
thereof contained in the Prospectus;
(iii) the Indenture has been duly authorized, executed and
delivered, has been duly qualified under the Trust Indenture Act, and
constitutes a legal, valid and binding instrument enforceable against
the Company in accordance with its terms (subject, as to enforcement
of remedies, to applicable bankruptcy, reorganization, insolvency,
moratorium or other similar laws affecting creditors' rights generally
from time to time in effect); and the Securities have been duly
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authorized and, when executed and authenticated in accordance with the
provisions of the Indenture and delivered to and paid for by the
Underwriters pursuant to this Agreement, will constitute legal, valid
and binding obligations of the Company entitled to the benefits of the
Indenture;
(iv) the Registration Statement has become effective under the
Act; any required filing of the Prospectus, and any supplements
thereto, pursuant to Rule 424(b) has been made in the manner and
within the time period required by Rule 424(b); to the knowledge of
such counsel, no stop order suspending the effectiveness of the
Registration Statement has been issued, no proceedings for that
purpose have been instituted or threatened and the Registration
Statement and the Prospectus (other than the financial statements and
other financial and statistical information contained therein as to
which such counsel need express no opinion) comply as to form in all
material respects with the applicable requirements of the Act, the
Exchange Act and the Trust Indenture Act and the respective rules
thereunder;
(v) this Agreement has been duly authorized, executed and
delivered by the Company;
(vi) no consent, approval, authorization, license or order of, or
filing, registration or qualification with, any court or governmental
agency or body, domestic or foreign, is required, including, without
limitation, under the Telecommunications Acts or any order, rule,
regulation or policy of the FCC or the APUC for the performance by the
Company of its obligations under this Agreement or for the
consummation of the transactions contemplated herein, 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 and such other
approvals (specified in such opinion) as have been obtained; and
(vii) neither the execution and delivery of the Indenture, the
issue and sale of the Securities, nor the consummation of any other of
the transactions herein contemplated nor the fulfillment of the terms
-15-
hereof will conflict with, result in a breach or violation of, or
constitute a default under any law or any Governmental Laws or the
certificate of incorporation or by-laws of the Company or the terms of
any agreement governing indebtedness for money borrowed or other
material agreement or instrument known to such counsel and to which
the Company or any of its Subsidiaries is a party or bound or any
judgment, injunction, order or decree known to such counsel to be
applicable to the Company or any of its Subsidiaries of any court,
regulatory body, administrative agency, governmental body or
arbitrator, except for such conflicts, breaches, violations or
defaults as would not have a material adverse effect on the Company
and its Subsidiaries, taken as a whole.
In addition, such counsel shall state that it has participated in
conferences with officers and other representatives of the Company,
representatives of the independent public accountants for the Company,
representatives of the Representatives and counsel for the Representatives at
which the contents of the Registration Statement and related matters were
discussed and, although such counsel has not independently verified, are not
passing upon and do not assume any responsibility for, the accuracy,
completeness or fairness of the statements contained in the Registration
Statement, no facts have come to such counsel's attention that leads such
counsel to believe that the Registration Statement, as of the date it is
declared effective by the Commission or on the Closing Date 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 Prospectuses as of the Closing Date contain an untrue statement of a
material fact or 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 (it being understood that such counsel does not comment as
to the financial statements (including supporting schedules), and other
financial data included in the Registration Statement, and the Prospectus or the
exhibits to the Registration Statement).
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the State of
[Colorado] [, the General Corporation/Limited Partnership Law of the State of
Delaware] or the United States, to the extent such counsel deems proper and as
specified in such opinion, upon the opinion of other counsel of
-16-
good standing whom such counsel believes to be reliable and who are satisfactory
to counsel for the Underwriters and (B) as to matters of fact, to the extent
deemed proper, on certificates of responsible officers of the Company and public
officials. References to the Prospectus in this paragraph (d) include any
supplements thereto at the Closing Date.
(e) The Representative shall have received from ▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or
opinions, dated the Closing Date, with respect to the issuance and sale of
the Securities, the Indenture, the Registration Statement, the Prospectus
(together with any supplement thereto) and other related matters as the
Representatives may reasonably require, and the Company shall have
furnished to such counsel such documents as they request for the purpose of
enabling them to pass upon such matters.
(f) The Company shall have furnished to the Representatives a
certificate of the Company, signed by (1) the President and Chief Executive
Officer and (2) the Chief Financial Officer of the Company, dated the
Closing Date, to the effect that the signers of such certificate have
carefully examined the Registration Statement, the Prospectus, any
supplement to the Prospectus 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 Date with the same effect as if made on the Closing Date
and the Company has complied with all the agreements and satisfied all
the conditions on its part to be performed or satisfied at or prior to
the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the Company's knowledge,
threatened; and
(iii) since the date of the most recent financial statements
included in the Prospectus (exclusive of any supplement thereto),
there has been no material adverse change in the condition (financial
or other), earnings, business, properties or prospects of the Company
and its Subsidiaries, whether or not arising from transactions in the
ordinary course of business, except
-17-
as set forth in or contemplated in the Prospectus (exclusive of any
supplement thereto).
(g) At the Execution Time and at the Closing Date, KPMG Peat Marwick
LLP shall have furnished to the Representatives a letter or letters, dated
respectively as of the Execution Time and as of the Closing Date, in form
and substance satisfactory to the Representatives, confirming that they are
independent accountants within the meaning of the Act and the Exchange Act
and the respective applicable published rules and regulations thereunder
and stating in effect that:
(i) in their opinion the audited financial statements and
financial statement schedules and pro forma financial statements
included or incorporated in the Registration Statement and the
Prospectus and reported on by them comply in form in all material
respects with the applicable accounting requirements of the Act and
the Exchange Act and the related published rules and regulations;
(ii) on the basis of a reading of the latest unaudited financial
statements made available by the Company and its Subsidiaries; their
limited review in accordance with standards established by the
American Institute of Certified Public Accountants of the unaudited
interim financial information as indicated in their reports
incorporated in the Registration Statement and the Prospectus;
carrying out certain specified procedures (but not an examination in
accordance with generally accepted auditing standards) which would not
necessarily reveal matters of significance with respect to the
comments set forth in such letter; a reading of the minutes of the
meetings of the stockholders, directors and executive, audit and
compensation committees of the Company and the Subsidiaries; and
inquiries of certain officials of the Company who have responsibility
for financial and accounting matters of the Company and its
Subsidiaries as to transactions and events subsequent to December 31,
1996, nothing came to their attention which caused them to believe
that:
(1) any unaudited financial statements included or
incorporated in the Registration Statement and the Prospectus do
not comply in form
-18-
in all material respects with applicable accounting requirements
of the Act and the related published rules and regulations with
respect to financial statements included or incorporated in
quarterly reports on Form 10-Q under the Exchange Act; and said
unaudited financial statements are not in conformity with
generally accepted accounting principles applied on a basis
substantially consistent with that of the audited financial
statements included or incorporated in the Registration Statement
and the Prospectus;
(2) with respect to the period subsequent to December 31,
1996, audited or unaudited, in or incorporated in the Prospectus,
there was any change, at a specified date not more than five
business days prior to the date of the letter, in the capital
stock, increase in long-term debt or decrease in consolidated net
current assets or stockholders' equity of the Company and its
Subsidiaries as compared with the amounts shown on the
December 31, 1996 consolidated balance sheet included or
incorporated in the Registration Statement and the Prospectus, or
for the period from January 1, 1997 to such specified date there
were any decreases, as compared with the corresponding period in
the preceding year in consolidated net sales or in the total or
per share amounts of income before extraordinary items or net
income of the Company and its Subsidiaries, except in all
instances for changes, increases or decreases that the
Registration Statement and Prospectus discloses have occurred or
may occur, in which case the letter shall be accompanied by an
explanation by the Company as to the significance thereof unless
said explanation is not deemed necessary by the Representatives;
or
(3) the information included in the Registration Statement
and the Prospectus in response to Regulation S-K, Item 301
(Selected Financial Data), Item 302 (Supplementary Financial
Information) and Item 402 (Executive Compensation) is not in
conformity with the applicable disclosure requirements of
Regulation S-K;
-19-
(iii) they have performed certain other specified procedures as a
result of which they determined that certain information of an
accounting, financial or statistical nature (which is limited to
accounting, financial or statistical information derived from the
general accounting records of the Company and its Subsidiaries) set
forth in the Registration Statement and the Prospectus, including the
information set forth under the captions "Prospectus Summary," "Risk
Factors," "Use of Proceeds," "Capitalization," "Selected Consolidated
Financial Data," "Management's Discussion and Analysis of Financial
Condition and Results of Operations," "Business," "Management," and
"Certain Transactions" in the Prospectus, the information included or
incorporated in Items [_____________] of the Company's Annual Report
on Form 10-K, incorporated in the Registration Statement and the
Prospectus, the information included in the "Management's Discussion
and Analysis of Financial Condition and Results of Operations"
included or incorporated in the Company's Quarterly Reports on Form
10-Q, incorporated in the Registration Statement and the Prospectus,
and the information in the Company's Current Report on Form 8-K, if
any, incorporated in the Registration Statement and the Prospectus
agrees with the accounting records of the Company and its
Subsidiaries, excluding any questions of legal interpretation;
(iv) on the basis of a reading of the unaudited pro forma
financial statements included or incorporated in the Registration
Statement and the Prospectus (the "pro forma financial statements");
carrying out certain specified procedures; inquiries of certain
officials of the Company who have responsibility for financial and
accounting matters; and proving the arithmetic accuracy of the
application of the pro forma adjustments to the historical amounts in
the pro forma financial statements, nothing came to their attention
which caused them to believe that the pro forma financial statements
do not comply in form in all material respects with the applicable
accounting requirements of Rule 11-02 of Regulation S-X or that the
pro forma adjustments have not been properly applied to the historical
amounts in the compilation of such statements.
-20-
References to the Prospectus in this paragraph (f) include any
supplement thereto at the date of the letter.
The Representatives shall have also received from KPMG Peat Marwick
LLP a letter stating that the Company's system of internal accounting controls
taken as a whole is sufficient to meet the broad objectives of internal
accounting control insofar as those objectives pertain to the prevention or
detection of errors or irregularities in amounts that would be material in
relation to the financial statements of the Company and its Subsidiaries.
(h) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Registration Statement (exclusive of any
amendment thereof) and the Prospectus (exclusive of any supplement
thereto), there shall not have been (i) any change or decrease specified in
the letter or letters referred to in paragraph (f) of this Section 6 or
(ii) any change, or any development involving a prospective change, in or
affecting the business or properties of the Company and its Subsidiaries
the effect of which, in any case referred to in clause (i) or (ii) above,
is, in the judgment of the Representatives, so material and adverse as to
make it impractical or inadvisable to proceed with the offering or delivery
of the Securities as contemplated by the Registration Statement (exclusive
of any amendment thereof) and the Prospectus (exclusive of any supplement
thereto).
(i) Subsequent to Execution Time, there shall not have been any
decrease in the rating of any of the Company's debt securities by any
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Act) or any notice given of any intended
or potential decrease in any such rating or of a possible change in any
such rating that does not indicate the direction of the possible change.
(j) Prior to the Closing Date, the Company shall have furnished to
the Representatives such further information, certificates and documents as
the Representatives may reasonably request.
(k) At or prior to the Closing Date, the Company shall have entered
into a credit facility to refinance the Company's $205 million cable credit
facility and the Company's $62.5 million senior telephony credit facility.
-21-
(l) Prior to the Closing Date, a commitment letter for a construction
and term loan facility shall have been entered into by and among Credit
Lyonnais and Alaska United Partnership, a subsidiary of the Company,
pursuant to which Credit Lyonnais shall have agreed to provide financing to
construct and develop an undersea fiber optic cable connecting Anchorage,
Fairbanks and Juneau, Alaska with the continental United States.
(m) Prior to the Closing Date, General Communication, Inc., the
parent of the Company, shall have contributed to the Company all of the
outstanding capital stock or other ownership interests of Parent's
operating subsidiaries, including those listed on Schedule II hereto.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and counsel for the Underwriters, this
Agreement and all obligations of the Underwriters hereunder may be cancelled at,
or at any time prior to, the Closing Date by the Representatives. Notice of
such cancellation shall be given to the Company in writing or by telephone or
facsimile and confirmed in writing.
The documents required to be delivered by this Section 6 shall be
delivered at the office of Paul, Hastings, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel for
the Underwriters, at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, on the Closing Date.
7. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. 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 6 hereof is not satisfied,
because of any termination pursuant to Section 10 hereof or because of any
refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof other than by reason of a
default by any of the Underwriters, the Company will reimburse the Underwriters
severally upon demand for all out-of-pocket expenses (including reasonable fees
and disbursements of counsel) that shall have been incurred by them in
connection with the proposed purchase and sale of the Securities.
8. INDEMNIFICATION AND CONTRIBUTION. (a) The Company agrees to
indemnify and hold harmless each Underwriter, the directors, officers, employees
and agents of each Underwriter and each person who controls any Underwriter
within the meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they or any
of them may become subject under the Act, the Exchange Act
-22-
or other Federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in the registration statement for
the registration of the Securities as originally filed or in any amendment
thereof, or in any Preliminary Prospectus or the Prospectus, or in any amendment
thereof or supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and agrees to
reimburse each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; PROVIDED, HOWEVER,
that the Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished to
the Company by or on behalf of any Underwriter through the Representatives
specifically for inclusion therein. This indemnity agreement will be in
addition to any liability which the Company may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company, each of its directors, each of its officers who signs the
Registration Statement, and each person who controls the Company within the
meaning of either the Act or the Exchange Act, to the same extent as the
foregoing indemnity from the Company to each Underwriter, but only with
reference to written information relating to such Underwriter furnished to the
Company by or on behalf of such Underwriter through the Representatives
specifically for inclusion in the documents referred to in the foregoing
indemnity. This indemnity agreement will be in addition to any liability which
any Underwriter may otherwise have. The Company acknowledges that the
statements set forth in the last paragraph of the cover page and under the
heading "Underwriting" in any Preliminary Prospectus and the Prospectus
constitute the only information furnished in writing by or on behalf of the
several Underwriters for inclusion in any Preliminary Prospectus or the
Prospectus, and you, as the Representatives, confirm that such statements are
correct.
(c) Promptly after receipt by an indemnified party under this Section
8 of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to
-23-
be made against the indemnifying party under this Section 8, notify the
indemnifying party in writing of the commencement thereof; but the failure so to
notify the indemnifying party (i) will not relieve it from liability under
paragraph (a) or (b) above unless and to the extent it did not otherwise learn
of such action and such failure results in the forfeiture by the indemnifying
party of substantial rights and defenses and (ii) will not, in any event,
relieve the indemnifying party from any obligations to any indemnified party
other than the indemnification obligation provided in paragraph (a) or (b)
above. The indemnifying party shall be entitled to appoint counsel of the
indemnifying party's choice at the indemnifying party's expense to represent the
indemnified party in any action for which indemnification is sought (in which
case the indemnifying party shall not thereafter be responsible for the fees and
expenses of any separate counsel retained by the indemnified party or parties
except as set forth below); PROVIDED, HOWEVER, that such counsel shall be
satisfactory to the indemnified party. Notwithstanding the indemnifying party's
election to appoint counsel to represent the indemnified party in an action, the
indemnified party shall have the right to employ separate counsel (including
local counsel), and the indemnifying party shall bear the reasonable fees, costs
and expenses of such separate counsel if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such counsel
with a conflict of interest, (ii) the actual or potential defendants in, or
targets of, any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, (iii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of the institution of such action or (iv) the
indemnifying party shall authorize the indemnified party to employ separate
counsel at the expense of the indemnifying party. An indemnifying party will
not, without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any pending
or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding.
-24-
(d) In the event that the indemnity provided in paragraph (a) or (b)
of this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company and the Underwriters agree to
contribute to the aggregate losses, claims, damages and liabilities (including
legal or other expenses reasonably incurred in connection with investigating or
defending same) (collectively "Losses") to which the Company and one or more of
the Underwriters may be subject in such proportion as is appropriate to reflect
the relative benefits received by the Company and by the Underwriters from the
offering of the Securities; PROVIDED, HOWEVER, that in no case shall any
Underwriter (except as may be provided in any agreement among underwriters
relating to the offering of the Securities) be responsible for any amount in
excess of the underwriting discount or commission applicable to the Securities
purchased by such Underwriter hereunder. If the allocation provided by the
immediately preceding sentence is unavailable for any reason, the Company and
the Underwriters shall contribute in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of the
Company and of the Underwriters in connection with the statements or omissions
which resulted in such Losses as well as any other relevant equitable
considerations. Benefits received by the Company shall be deemed to be equal to
the total net proceeds from the offering (before deducting expenses), and
benefits received by the Underwriters shall be deemed to be equal to the total
underwriting discounts and commissions, in each case as set forth on the cover
page of the Prospectus. Relative fault shall be determined by reference to
whether any alleged untrue statement or omission relates to information provided
by the Company or the Underwriters. The Company and the Underwriters agree that
it would not be just and equitable if contribution were determined by pro rata
allocation or any other method of allocation which does not take account of the
equitable considerations referred to above. Notwithstanding the provisions of
this paragraph (d), 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 8, each person who controls an Underwriter within the meaning of
either the Act or the Exchange Act and each director, officer, employee and
agent of an Underwriter shall have the same rights to contribution as such
Underwriter, and each person who controls the Company within the meaning of
either the Act or the Exchange Act, each officer of the Company who shall have
signed the Registration Statement and each director of the Company shall have
the same rights to
-25-
contribution as the Company, subject in each case to the applicable terms and
conditions of this paragraph (d).
(e) Without limitation of and in addition to its obligations under
the other paragraphs of this Section 8, the Company agrees to indemnify and hold
harmless Salomon Brothers Inc, its directors, officers, employees and agents and
each person who controls Salomon Brothers Inc within the meaning of either the
Act or the Exchange Act against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them may become subject,
insofar as such losses, claims, damages or liabilities (or action in respect
thereof) arise out of or are based upon Salomon Brothers Inc's acting as a
"qualified independent underwriter" in connection with the offering contemplated
by this Agreement, and agrees to reimburse each such indemnified party, as
incurred, for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action; PROVIDED, HOWEVER, that the Company will not be liable in
any such case to the extent that any such loss, claim, damage or liability
results from the gross negligence or willful misconduct of Salomon Brothers Inc.
9. DEFAULT BY AN UNDERWRITER. If any one or more Underwriters shall
fail to purchase and pay for any of the Securities agreed to be purchased by
such Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the principal amount of
Securities set forth opposite their names in Schedule I hereto bears to the
aggregate principal amount of Securities set forth opposite the names of all the
remaining Underwriters) the Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase; PROVIDED, HOWEVER, that in the event
that the aggregate principal amount of Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of
the aggregate principal amount of Securities set forth in Schedule I hereto, the
remaining Underwriters shall have the right to purchase all, but shall not be
under any obligation to purchase any, of the Securities, and if such
nondefaulting Underwriters do not purchase all the Securities, this Agreement
will terminate without liability to any nondefaulting Underwriter or the
Company. In the event of a default by any Underwriter as set forth in this
Section 9, the Closing Date shall be postponed for such period, not exceeding
seven days, as the Representatives
-26-
shall determine in order that the required changes in the Registration Statement
and the Prospectus or in any other documents or arrangements may be effected.
Nothing contained in this Agreement shall relieve any defaulting Underwriter of
its liability, if any, to the Company and any nondefaulting Underwriter for
damages occasioned by its default hereunder.
10. TERMINATION. This Agreement shall be subject to termination in
the absolute discretion of the Representatives, by notice given to the Company
prior to delivery of and payment for the Securities, if prior to such time (i)
trading in General Communication, Inc.'s Class A Common Stock shall have been
suspended by the Commission or the Nasdaq National Market ("Nasdaq") or trading
in securities generally on the New York Stock Exchange or the Nasdaq shall have
been suspended or limited or minimum prices shall have been established on the
New York Stock Exchange or the Nasdaq, (ii) a banking moratorium shall have been
declared either by Federal or New York State authorities or (iii) there shall
have occurred any outbreak or escalation of hostilities, declaration by the
United States of a national emergency or war or other calamity or crisis the
effect of which on financial markets is such as to make it, in the judgment of
the Representatives, impracticable or inadvisable to proceed with the offering
or delivery of the Securities as contemplated by the Prospectus (exclusive of
any supplement thereto).
11. REPRESENTATIONS AND INDEMNITIES TO SURVIVE. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Underwriters set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or the Company or any of
the officers, directors or controlling persons referred to in Section 8 hereof,
and will survive delivery of and payment for the Securities. The provisions of
Sections 7 and 8 hereof shall survive the termination or cancellation of this
Agreement.
12. NOTICES. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representatives, will be mailed,
delivered or telegraphed and confirmed to them, care of Salomon Brothers Inc,
Seven World Trade Center, New York, New York 10048, attention: Legal Department;
or, if sent to the Company, will be mailed, delivered or telegraphed and
confirmed to it at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇,
attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇.
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13. SUCCESSORS. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers, directors, employees, agents and controlling persons referred to in
Section 8 hereof, and no other person will have any right or obligation
hereunder.
14. APPLICABLE LAW. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
PRINCIPLES OF CONFLICT OF LAWS.
-28-
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the several Underwriters.
Very truly yours,
GCI, INC.
By: ________________________
Name:
Title:
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written
SALOMON BROTHERS INC
▇▇▇▇▇▇▇▇ & CO. INC.
NATIONSBANC CAPITAL MARKETS, INC.
TD SECURITIES (USA) INC.
By: SALOMON BROTHERS INC
By: _______________________
Name:
Title:
For themselves and the other
several Underwriters named in
Schedule I to the foregoing
Agreement.
-29-
SCHEDULE I
Principal Amount
of Securities to
Underwriters be Purchased
------------ -----------------
Salomon Brothers Inc
▇▇▇▇▇▇▇▇ & Co. Inc.. . . . . . . . . . . . . . . . . . . .
NationsBanc Capital Markets, Inc.. . . . . . . . . . . . .
TD Securities (USA) Inc. . . . . . . . . . . . . . . . . .
-----------------
Total . . . . . . . . . . . . . . . . . . . . . . $
-----------------
-----------------
-30-
SCHEDULE II
SUBSIDIARIES OF THE COMPANY
GCI Holdings, Inc., an Alaska corporation
GCI Communication Corp., an Alaska corporation
GCI Communication Services, Inc., an Alaska corporation
GCI Leasing Co., Inc., an Alaska corporation
GCI Cable, Inc., an Alaska corporation
GCI Cable/Fairbanks, Inc., an Alaska corporation
Prime Cable of Alaska, LP, a Delaware limited partnership
GCI Cable/Juneau, Inc., an Alaska corporation
GCI Transport Company, an Alaska corporation
GCI Satellite Company, an Alaska corporation
GCI Fiber Company, an Alaska corporation
Fiber Hold Company, an Alaska corporation
Alaska United Partnership, an Alaska partnership
-31-