EXHIBIT 1.1
COMCAST CORPORATION
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
(DEBT SECURITIES, WARRANTS, PURCHASE CONTRACTS, UNITS AND GUARANTEES)
December 23, 2002
From time to time, Comcast Corporation, a Pennsylvania corporation (the
"Company"), may, alone or together with Comcast Cable Communications, Inc.,
Comcast Cable Communications Holdings, Inc., Comcast Cable Holdings, LLC and
Comcast MO Group, Inc. (collectively, the "Cable Guarantors"), enter into one
or more underwriting agreements that provide for the sale of designated
securities to the several underwriters named therein. The standard provisions
set forth herein may be incorporated by reference in any such underwriting
agreement (an "Underwriting Agreement"). The Underwriting Agreement, including
the provisions incorporated therein by reference, is herein referred to as this
Agreement. Terms defined in the Underwriting Agreement are used herein as
therein defined.
The Company proposes to issue from time to time (a) its senior debt
securities ("Senior Debt Securities"), (b) its subordinated debt securities
("Subordinated Debt Securities" and with the Senior Debt Securities, the "Debt
Securities"), (c) warrants ("Warrants") and (d) purchase contracts ("Purchase
Contracts") requiring the holders thereof to purchase or sell (i) securities of
an entity unaffiliated with the Company, a basket of such securities, an index
or indices of such securities or any combination of the above, (ii) currencies
or composite currencies or (iii) commodities. Debt Securities, Purchase
Contracts and Warrants or any combination thereof may be offered in the form of
Units ("Units"). As used herein, the term "Debt Securities" includes prepaid
Purchase Contracts. The Debt Securities are to be guaranteed (the "Cable
Guarantees") on an unsecured basis by the Cable Guarantors. The Warrants,
Purchase Contracts and Units may be guaranteed on an unsecured basis by the
Cable Guarantors to the extent described in the Prospectus (as defined below)
pursuant to a Guarantee Agreement to be dated as of a date specified in the
Underwriting Agreement and executed and delivered by the Cable Guarantors and a
trustee to be named in the relevant prospectus supplement, as trustee (the
"Guarantee Trustee") for the benefit of the holders from time to time of the
Offered Company Securities (the "Additional Guarantee").
The Company and the Cable Guarantors have filed with the Securities and
Exchange Commission (the "Commission") a registration statement including a
prospectus relating to
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the Debt Securities, Warrants, Purchase Contracts, Units, Cable Guarantees and
Additional Guarantees (collectively, the "Securities") and have filed with, or
transmitted for filing to, or shall promptly after the date of the Underwriting
Agreement file with or transmit for filing to, the Commission a prospectus
supplement (the "Prospectus Supplement") pursuant to Rule 424 under the
Securities Act of 1933, as amended (the "Securities Act"), specifically
relating to the Securities offered pursuant to this Agreement (the "Offered
Company Securities" and the "Offered Guarantees," if any, and, together, the
"Offered Securities"). The term Registration Statement means the registration
statement as amended to the date of the Underwriting Agreement including any
additional registration statement filed by the Company pursuant to Rule 462(b).
The term Basic Prospectus means the prospectus included in the Registration
Statement. The term Prospectus means the Basic Prospectus together with the
Prospectus Supplement. The term preliminary prospectus means a preliminary
prospectus supplement specifically relating to the Offered Securities, together
with the Basic Prospectus. As used herein, the terms "Basic Prospectus,"
"Prospectus" and "preliminary prospectus" shall include in each case the
documents, if any, incorporated by reference therein. The terms "supplement,"
"amendment" and "amend" as used herein shall include all documents deemed to be
incorporated by reference in the Prospectus that are filed subsequent to the
date of the Basic Prospectus by the Company with the Commission pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act"). For purposes
of this Agreement, "Issuers" means the Company and includes the Cable
Guarantors if Cable Guarantees or an Additional Guarantee are offered pursuant
to this Agreement.
1. Representations and Warranties. The Issuers, jointly and severally,
represent and warrant to each of the Underwriters as of the date of the
Underwriting Agreement that:
(i) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect,
and no proceedings for such purpose are pending before or threatened by
the Commission.
(ii) each document filed or to be filed pursuant to the Exchange Act
and incorporated by reference in the Prospectus complied or will comply
when so filed in all material respects with the Exchange Act and the rules
and regulations of the Commission thereunder.
(iii) the Registration Statement and Prospectus comply in all
material respects with the Securities Act and the rules and regulations of
the Commission thereunder and do not contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not
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misleading, except that the foregoing representations and warranties do
not apply to (a) that part of the Registration Statement which shall
constitute the Statement of Eligibility of the Trustee on Form T-1 (the
"Form T-1") and (b) statements or omissions in the Registration Statement
or the Prospectus or any amendment or supplement thereto based upon
information furnished to the Issuers in writing by any Underwriter through
the Manager expressly for use therein.
(iv) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement, the
Senior Debt Indenture, the Subordinated Debt Indenture, the Offered
Securities, any Warrants, any Purchase Contracts and any Units will not
contravene any provision of applicable law or the certificate of
incorporation or by-laws of the Company or any agreement or other
instrument binding upon the Company or any of its subsidiaries that is
material to the Company and its consolidated subsidiaries, taken as a
whole, or any judgment, order or decree of any governmental body, agency
or court having jurisdiction over the Company or any of its consolidated
subsidiaries, and no consent, approval, authorization or order of, or
qualification with, any governmental body or agency is required for the
performance by the Company of its obligations under this Agreement, the
Senior Debt Indenture, the Subordinated Debt Indenture, the Offered
Securities, any Warrants, except such as may be required by the securities
or blue sky laws of the various states in connection with the offer and
sale of the Offered Securities; provided, however, that no representation
is made as to whether the purchase of the Offered Securities constitutes a
"prohibited transaction" under Section 406 of the Employee Retirement
Income Security Act of 1974, as amended, or Section 4975 of the Internal
Revenue Code of 1986, as amended.
(v) Neither the Company nor any of its subsidiaries is (i) in
violation of its Certificate of Incorporation or By-Laws (or similar
organizational documents) or (ii) in default in the performance or
observance of any obligation, covenant or condition contained in any
contract, except to the extent such default would not have a material
adverse effect.
(vi) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
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operations of the Company and its subsidiaries, taken as a whole, from
that set forth in the Prospectus (exclusive of any amendments or
supplements thereto effected subsequent to the date of the Agreement).
(vii) There are no legal or governmental proceedings pending or
threatened to which the Company or any of its consolidated subsidiaries is
a party or to which any of the properties of the Company or any of its
consolidated subsidiaries is subject that are required to be described in
the Registration Statement or the Prospectus and are not so described or
any statutes, regulations, contracts or other documents that are required
to be described in the Registration Statement or the Prospectus or to be
filed or incorporated by reference as exhibits to the Registration
Statement that are not described, filed or incorporated as required.
(viii) Each of the Company and its consolidated subsidiaries has all
necessary consents, authorizations, approvals, orders, certificates and
permits of and 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, to own,
lease, license and use its properties and assets and to conduct its
business in the manner described in the Prospectus, except to the extent
that the failure to obtain or file would not have a material adverse
effect on the Company and its consolidated subsidiaries, taken as a whole.
2. Public Offering. The Issuers are advised by the Manager that the
Underwriters propose to make a public offering of their respective portions of
the Offered Securities as soon after this Agreement has been entered into as in
the Manager's judgment is advisable. The terms of the public offering of the
Offered Securities are set forth in the Prospectus.
3. Purchase and Delivery. Except as otherwise provided in this Section 3,
payment for the Offered Securities shall be made to the Company in Federal or
other funds immediately available in New York City at the time and place set
forth in the Underwriting Agreement, upon delivery to the Manager for the
respective accounts of the several Underwriters of the Offered Securities
registered in such names and in such denominations as the Manager shall request
in writing not less than one full business day prior to the date of delivery,
with any transfer taxes payable in connection with the transfer of the Offered
Securities to the Underwriters duly paid.
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4. Conditions to Closing. The several obligations of the Underwriters
hereunder are subject to the following conditions:
(a) Subsequent to the execution and delivery of the Agreement and
prior to the Closing Date, there shall not have occurred any downgrading,
nor shall any notice have been given of any intended or potential
downgrading or of any review for a possible change that does not indicate
the direction of the possible change, in the rating accorded any Issuer or
any of the securities of any Issuer by any "nationally recognized
statistical rating organization", as such term is defined for purposes of
Rule 436(g)(2) under the Securities Act.
(b) No stop order suspending the effectiveness of the Registration
Statement shall be in effect, and no proceedings for such purpose shall be
pending before or threatened by the Commission, and there shall, not have
occurred any change, or any development involving a prospective change, in
the condition, financial or otherwise, or in the earnings, business or
operations of the Company and its consolidated subsidiaries, taken as a
whole, from that set forth in the Prospectus (exclusive of any amendments
or supplements thereto effected subsequent to the execution and delivery
of the Underwriting Agreement), that, in the judgment of the Manager, is
material and adverse and that makes it, in the judgment of the Manager,
impracticable to market the Offered Securities on the terms and in the
manner contemplated in the Prospectus; and the Manager shall have
received, on the Closing Date, a certificate, dated the Closing Date and
signed by an executive officer of the Company, to the foregoing effect.
Such certificate will also provide that the representations and warranties
of the Company contained herein are true and correct as of the Closing
Date. The officer making such certificate may rely upon the best of his
knowledge as to proceedings threatened.
(c) The Manager shall have received on the Closing Date an opinion of
Arthur R. Block, Esquire, Senior Vice President, General Counsel and
Secretary of the Company (or another lawyer of the Company reasonably
satisfactory to the Underwriters), dated the Closing Date, to the effect
(as applicable) that:
(i) the Company has been duly incorporated, is validly existing
as a corporation subsisting under the laws of the Commonwealth of
Pennsylvania and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its
business or its ownership or leasing of property requires such
qualification (except where the failure to so qualify would not have
a material adverse effect upon the business or financial condition of
the Company and its subsidiaries, as a whole);
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(ii) all of the issued shares of capital stock of each Cable
Guarantor have been duly and validly authorized and issued, are fully
paid and non-assessable, and (except for directors' qualify shares
and except as otherwise set forth in the Prospectus) are owned
directly and indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims (such counsel being entitled to rely
in respect of the opinion in this clause upon opinions of local
counsel and in respect of matters of fact upon certificates of
officers of the Company or its subsidiaries, provided that such
counsel shall state that he believes that both you and he are
justified in relying upon such opinions and certificates);
(iii) the Company has an authorized capitalization as set forth
in the Prospectus, and all of the issued shares of capital stock of
the Company have been duly and validly authorized and issued and are
fully paid and non-assessable;
(iv) each of the Senior Indenture dated as of January 7, 2003
(the "Senior Indenture") among the Company, the Cable Guarantors and
The Bank of New York, as trustee, and the Subordinated Indenture to
be dated as of a date indicated in a relevant prospectus supplement
(the "Subordinated Indenture") among the Company and the Cable
Guarantors and The Bank of New York, as trustee has been duly
authorized, executed and delivered by the Company;
(v) the Warrant Agreement, if any, has been duly authorized,
executed and delivered by the Company;
(vi) the Unit Agreement, if any, has been duly authorized,
executed and delivered by the Company;
(vii) the Offered Company Securities have been duly authorized
by the Company;
(viii) this Agreement has been duly authorized, executed and
delivered by the Company;
(ix) except as rights to indemnity and contribution under this
Agreement may be limited under applicable law, the execution and
delivery by each Issuer of, and the performance by each Issuer of its
obligations under, this Agreement, the Senior Indenture, the
Subordinated Indenture, the Offered Securities, the Warrant
Agreement,
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the Unit Agreement and the Additional Guarantee, if any, will not
contravene any provision of applicable law of the United States
(except with respect to laws relating specifically to the cable
communications industry, as to which such counsel is not called upon
to express any opinion), Pennsylvania, or, to the best knowledge of
such counsel, of any other state or jurisdiction of the United
States, or the articles of incorporation or by-laws (or similar
organizational document) of any Issuer or, to the best knowledge of
such counsel, any material agreement or other material instrument
binding upon such Issuer, and, except for the orders of the
Commission making the Registration Statement effective and the Senior
Indenture and the Subordinated Indenture qualified under the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act") (which
have been obtained) and such permits or similar authorizations
required under the securities or Blue Sky laws of certain states or
foreign jurisdictions (as to which such counsel is not called upon to
express any opinion), no consent, approval or authorization of any
governmental body or agency of the United States (except with respect
to consents, approvals and authorizations relating specifically to
the cable communications industry, as to which such counsel is not
called upon to express any opinion), Pennsylvania, or, to the best
knowledge of such counsel, of any other state or jurisdiction of the
United States or of any foreign jurisdiction is required for the
performance by any Issuer of its obligations under this Agreement,
the Senior Indenture, the Subordinated Indenture, the Offered
Securities, the Warrant Agreement, the Unit Agreement and the
Additional Guarantee, if any;
(x) subject to such qualification as may be set forth in the
Prospectus, the Company and its subsidiaries have, and are in
material compliance with, such franchises, and to the best knowledge
of such counsel after reasonable investigation, such licenses and
authorizations, as are necessary to own their cable communications
properties and to conduct their cable communications business in the
manner described in the Prospectus, except where the failure to have,
or comply with, such franchises, licenses and authorizations would
not have a material adverse effect on the business or financial
condition of the Company and its subsidiaries, as a whole, and such
franchises, licenses and authorizations contain no materially
burdensome restrictions not adequately described in the Prospectus,
which restrictions would have a material adverse effect on the
business or financial condition of the Company and its subsidiaries,
as a whole;
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(xi) the statements (A) in Item 3 of the Company's most recent
Annual Report on Form 10-K incorporated by reference in the
Prospectus, (B) in Part II, Item 1 under the caption "Legal
Proceedings" of the Company's most recent Quarterly Report on Form
10-Q incorporated by reference in the Prospectus and (C) in the
Registration Statement in Item 15, insofar as such statements
constitute a summary of the legal matters, documents or proceedings
referred to therein, fairly present the information called for with
respect to such legal matters, documents and proceedings;
(xii) such counsel does not know of any legal or governmental
proceeding pending or threatened to which the Company or any of its
subsidiaries is a party or to which any of the properties of the
Company or any of its subsidiaries is subject which is required to be
described in the Registration Statement or the Prospectus and is not
so described or of any contract or other document which is required
to be described in the Registration Statement or the Prospectus or to
be filed as an exhibit to the Registration Statement which is not
described or filed as required;
(xiii) the securities into which the Offered Company Securities
are convertible, initially reserved for issuance upon conversion of
the Offered Company Securities (the "Underlying Securities") have
been duly authorized and reserved for issuance; and
(xiv) when the Underlying Securities are issued upon conversion
of the Offered Company Securities in accordance with the terms of the
Offered Company Securities, such Underlying Securities will be
validly issued, fully paid and non-assessable and will not be subject
to any preemptive or other right to subscribe for or purchase such
Underlying Securities.
Such counsel shall also state that no facts have come to his attention
that lead him to believe (1) that the Registration Statement or any amendments
thereto (except for the financial statements and other financial or statistical
data included or incorporated by reference therein or omitted therefrom and the
Form T-1, as to which such counsel is not called upon to express any belief),
on the date on which it became effective or the date of filing of the most
recent subsequent Annual Report on Form 10-K, 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; (2) that
the Prospectus, as amended or supplemented, if applicable (except for the
financial statements and other financial or statistical data included or
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incorporated by reference therein or omitted therefrom, as to which such
counsel is not called upon to express any belief), at the date of the
Underwriting Agreement or at the Closing Date, contained or contains an untrue
statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they are made, not misleading; or (3) that the
documents incorporated by reference in the Prospectus (except for the financial
statements and other financial or statistical data included or incorporated by
reference therein or omitted therefrom, as to which such counsel is not called
upon to express any belief), as of the dates they were filed with the
Commission, contained an untrue statement of a material fact or omitted to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they are made, not misleading.
With respect to the preceding paragraph, such counsel may state that his
opinion and belief is based upon his participation in the preparation of the
Registration Statement, Prospectus (as amended or supplemented) and the
documents incorporated therein by reference and review and discussion of the
contents thereof, but is without independent check or verification except as
specified.
In expressing his opinion as to questions of the law of jurisdictions
other than the Commonwealth of Pennsylvania and the United States, such counsel
may rely to the extent reasonable on such counsel as may be reasonably
acceptable to counsel to the Underwriters. In addition, such counsel may
reasonably rely as to questions of fact on certificates of responsible officers
of the Company.
(d) The Manager shall have received on the Closing Date an opinion of
Davis Polk & Wardwell, special counsel for the Company, dated the Closing
Date, to the effect that:
(i) each Cable Guarantor is a corporation or limited liability
company duly incorporated or duly organized, validly existing and in
good standing under the laws of the jurisdiction of its incorporation
or formation;
(ii) each of the Senior Indenture and the Subordinated Indenture
has been duly authorized, executed and delivered by each Cable
Guarantor and assuming each of the Senior Indenture and the
Subordinated Indenture has been duly authorized, executed and
delivered by the Company and duly executed and delivered by the
respective trustee thereto, each of the Senior Indenture and the
Subordinated Indenture is a valid and binding agreement of each
Issuer, enforceable against each Issuer in accordance with its terms
(subject, as to enforcement of remedies, to applicable bankruptcy,
reorganization,
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insolvency, fraudulent transfer, moratorium or other similar laws
affecting creditors' rights generally from time to time in effect and
to general equity principles);
(iii) assuming the Warrant Agreement, if any, has been duly
authorized, executed and delivered by the Company and duly executed
and delivered by the Warrant Agent, the Warrant Agreement, if any, is
a valid and binding agreement of the Company, enforceable 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 to general equity principles);
(iv) assuming the Unit Agreement, if any, has been duly
authorized, executed and delivered by the Company and duly executed
and delivered by the Agent, the Unit Agreement, if any, is a valid
and binding agreement of the Company, enforceable 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 to general equity principles);
(v) the Additional Guarantee, if any, has been duly authorized,
executed and delivered by each Cable Guarantor and is a valid and
binding agreement of each Cable Guarantor, enforceable in accordance
with its terms (subject, as to enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, fraudulent transfer,
moratorium or other similar laws affecting creditors' rights
generally from time to time in effect and to general equity
principles);
(vi) the Cable Guarantees have been duly authorized, and,
assuming the Offered Company Securities have been authorized by the
Company, when the Offered Company Securities have been duly executed
and authenticated in accordance with the provisions of the relevant
Senior Indenture or Subordinated Indenture, the Offered Securities
and the Debt Securities will be valid and binding obligations of the
Issuers, enforceable against them in accordance with their terms
(subject, as to enforcement or remedies, to applicable bankruptcy,
reorganization, insolvency, fraudulent transfer, moratorium or other
similar laws affecting creditors' rights generally from time to time
in effect and to general equity principles), and will be entitled to
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the benefits of the relevant Senior Indenture or Subordinated
Indenture.
(vii) this Agreement has been duly authorized, executed and
delivered by each Cable Guarantor party hereto;
(viii) each of the Senior Indenture and the Subordinated
Indenture has been duly qualified under the Trust Indenture Act;
(ix) except as rights to indemnity and contribution under this
Agreement may be limited under applicable law, the execution and
delivery by each Issuer of, and the performance by each Issuer of its
obligations under, this Agreement, the Senior Indenture, the
Subordinated Indenture, the Offered Securities, the Warrant
Agreement, the Unit Agreement and the Additional Guarantee, if any,
will not contravene any provision of applicable law of the United
States (except with respect to laws relating specifically to the
cable communications industry, as to which such counsel is not called
upon to express any opinion), or New York, or the articles of
incorporation or bylaws or equivalent organizational documents of any
Cable Guarantor and, except for the orders of the Commission making
the Registration Statement effective and the Senior Indenture and the
Subordinated Indenture qualified under the Trust Indenture Act (which
have been obtained) and such permits or similar authorizations
required under the securities or Blue Sky laws of certain states or
foreign jurisdictions (as to which such counsel is not called upon to
express any opinion), no consent, approval or authorization of any
governmental body or agency of the United States (except with respect
to consents, approvals and authorizations relating specifically to
the cable communications industry, as to which such counsel is not
called upon to express any opinion), or New York is required for the
performance by any Issuer of its obligations under this Agreement,
the Senior Indenture, the Subordinated Indenture, the Offered
Securities, the Warrant Agreement, the Unit Agreement and the
Additional Guarantee, if any, and
(x) the statements in the Prospectus Supplement under
"Description of [the Offered Securities]", "Certain U.S. Tax
Considerations" and "Underwriting" and in the Basic Prospectus under
"Description of [the Offered Securities]", and "Plan of
Distribution", insofar as such statements constitute a summary of the
legal matters or
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documents referred to therein, fairly present the information called
for with respect to such legal matters and documents.
Such counsel shall also state that no facts have come to the attention of
such counsel that lead them to believe (1) that the Registration Statement and
the Prospectus and any supplements or amendments thereto or the documents
incorporated by reference in the Registration Statement and Prospectus (except
for financial statements and other financial or statistical data included or
incorporated by reference therein and the Form T- 1, as to which such counsel
is not called upon to express any belief) did not comply as to form in all
material respects with the Securities Act and the rules and regulations of the
Commission thereunder; (2) that the Registration Statement or any amendment
thereto (except for the financial statements and other financial or statistical
data included or incorporated by reference therein or omitted therefrom and the
Form T-1, as to which such counsel is not called upon to express any belief) at
the date of the Underwriting Agreement contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading; or (3) that the
Prospectus, as amended or supplemented, if applicable (except for the financial
statements and other financial or statistical data included or incorporated by
reference therein or omitted therefrom, as to which such counsel is not called
upon to express any belief), at the date of the Underwriting Agreement or at
the Closing Date, contained or contains an untrue statement of a material fact
or omitted or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they are
made, not misleading.
With respect to the preceding paragraph, Davis Polk & Wardwell may state
that their opinion and belief is based upon their participation in the
preparation of the Registration Statement and Prospectus and any amendments or
supplements thereto (but not including documents incorporated therein by
reference) and review and discussion of the contents thereof (including
documents incorporated therein by reference), but is without independent check
or verification except as specified.
(e) The Manager shall have received on the Closing Date an opinion of
internal regulatory counsel for the Company, dated the Closing Date, to
the effect that:
(i) no approval of the Federal Communications Commission (the
"FCC") is required in connection with the issuance and sale of the
Offered Securities,
(ii) the execution and delivery of this Agreement, the Senior
Indenture, the Subordinated Indenture, the Warrant Agreement, the
Unit Agreement and the Additional Guarantee, if any, by each Issuer,
the fulfillment of the terms set forth herein and therein by each
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Issuer and the consummation of the transactions contemplated hereby
and thereby by each Issuer do not violate any statute, regulation or
other law of the United States relating specifically to the cable
communications industry (except as otherwise explicitly set forth in
the Prospectus) or, to the knowledge of such counsel, any order,
judgment or decree of any court or governmental body of the United
States relating specifically to the cable communications industry and
applicable to such Issuer or any subsidiary, and which violation
would have a material adverse effect on the business or financial
condition of such Issuer and its subsidiaries, as a whole,
(iii) the statements in the Company's most recent Annual Report
on Form 10-K incorporated by reference in the Registration Statement
and Prospectus [identify sections describing cable regulatory
matters] as updated by the Company's most recent Quarterly Reports on
Form 10-Q incorporated in the Registration Statement and Prospectus
and as updated by the Prospectus, insofar as they are, or refer to,
statements of federal law or legal conclusions, have been reviewed by
such counsel and present in all material respects the information
called for with respect to such statements of federal law or legal
conclusions, and
(iv) such counsel does not know of any proceeding pending before
the FCC to which the Company or any of its subsidiaries is a party or
involving the cable communications properties, licenses or
authorizations of the Company and its subsidiaries, or of any cable
communications law or regulation relevant thereto required to be
described in the Registration Statement or Prospectus pursuant to
Regulation S-K promulgated under the Securities Act, which is not
described as required.
(f) The Manager shall have received on the Closing Date an opinion of
Cahill Gordon & Reindel, counsel for the Underwriters, dated the Closing
Date, covering the matters requested by and in form and substance
reasonably satisfactory to the Manager.
(g) The Manager shall have received on the Closing Date, a letter
dated the Closing Date, in each case in form and substance satisfactory to
the Manager, from Deloitte & Touche LLP, independent public accountants,
containing statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect to the
financial statements and
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certain financial information reviewed by them contained in or
incorporated by reference in the Registration Statement and the Prospectus
and each other firm of independent accountants, if any, who audited or
reviewed financial statements contained in or incorporated by reference in
the Registration Statement and the Prospectus, containing statements and
information of the type ordinarily included in accountants' "comfort
letters" to underwriters with respect to such financial statements and
financial information.
(h) The Manager shall have received on the Closing Date, a letter
dated such date, in each case in form and substance satisfactory to the
Manager, from PricewaterhouseCoopers LLP, independent public accountants,
containing statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information reviewed by them
contained in or incorporated by reference in the Registration Statement
and the Prospectus and each other firm of independent accountants, if any,
who audited or reviewed financial statements contained in or incorporated
by reference in the Registration Statement and the Prospectus, containing
statements and information of the type ordinarily included in accountants'
"comfort letters" to underwriters with respect to such financial
statements and financial information.
(i) The Manager shall have received on the date hereof or on the
Closing Date, as applicable, such additional documents as the Manager
shall have reasonably requested to confirm compliance with the conditions
to Closing listed herein.
5. Covenants of the Company. In further consideration of the agreements of
the Underwriters herein contained, the Issuers covenant as follows:
(a) To furnish to the Manager, without charge, a copy of the
Registration Statement and two signed copies of any post-effective
amendment thereto specifically relating to the Offered Securities
(including exhibits thereto and documents incorporated therein by
reference) and, during the period mentioned in paragraph (c) below, as
many copies of the Prospectus, any documents incorporated therein by
reference and any supplements and amendments thereto as the Manager may
reasonably request.
(b) Before amending or supplementing the Registration Statement or
the Prospectus, to furnish the Manager a copy of each such proposed
amendment or supplement.
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(c) If, during such period after the first date of the public
offering of the Offered Securities during which in the opinion of counsel
to the Manager the Prospectus is required by law to be delivered in
connection with sales by an Underwriter or dealer, any event shall occur
as a result of which it is necessary to amend or supplement the Prospectus
in order to make the statements therein, in the light of the circumstances
existing at the time, not misleading, forthwith to prepare and furnish, at
its expense, to the Underwriters and to the dealers (whose names and
addresses the Manager will furnish to the Company) to which Offered
Securities may have been sold by the Manager on behalf of the Underwriters
and to any other dealers on request, either amendments or supplements to
the Prospectus so that the statements in the Prospectus as so amended or
supplemented will not, in the light of the circumstances existing at the
time, be misleading.
(d) To endeavor to qualify the Offered Securities for offer and sale
under the securities or Blue Sky laws of such U.S. jurisdictions as the
Manager shall reasonably request.
(e) To make generally available to the Company's security holders as
soon as practicable an earnings statement covering the twelve month period
beginning on the first day of the first fiscal quarter commencing after
the date hereof, which shall satisfy the provisions of Section 11(a) of
the Securities Act and the rules and regulations of the Commission
thereunder (which may be accomplished by making generally available the
Company's financial statements in the manner provided for by Rule 158 of
the Securities Act).
6. Indemnification and Contribution. The Issuers, jointly and severally,
agree to indemnify and hold harmless each Underwriter and each person, if any,
who controls each Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act from and against any and all
losses, claims, damages and liabilities caused by any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement or the Prospectus (as amended or supplemented) or any preliminary
prospectus, or caused by any omission or alleged omission to state therein a
material fact necessary to make the statements therein not misleading, except
insofar as such losses, claims, damages or liabilities are caused by any such
untrue statement or omission or alleged untrue statement or omission based upon
information furnished to any Issuer in writing by such Underwriter through the
Manager expressly for use therein; provided, however, that the foregoing
indemnity agreement with respect to any preliminary prospectus shall not inure
to the benefit of any Underwriter from whom the person asserting any such
losses, claims, damages or liabilities purchased Offered Securities, or any
person controlling any such Underwriter, if a copy of the Prospectus (as then
amended or supplemented) was not sent or given by or on behalf of such
Underwriter to such person, if required by law so to have been delivered, at or
prior to the
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written confirmation of the sale of the Offered Securities to such person, and
if the Prospectus (as so amended or supplemented but without reference to
documents incorporated by reference therein) would have cured the defect giving
rise to such loss, claim, damage or liability.
Each Underwriter agrees to indemnify and hold harmless each Issuer, their
respective directors and officers who sign the Registration Statement and each
person, if any, who controls an Issuer within the meaning of either Section 15
of the Securities Act or Section 20 of the Exchange Act to the same extent as
the foregoing indemnity from the Issuers to such Underwriter, but only with
reference to information relating to such Underwriter furnished to any Issuer
in writing by such Underwriter through the Manager expressly for use in the
Registration Statement, the Prospectus, any amendment or supplement thereto, or
any preliminary prospectus.
In case any proceeding (including any governmental investigation) shall be
instituted involving any person in respect of which indemnity may be sought
pursuant to either of the two preceding paragraphs, such person (hereinafter
called the "indemnified party") shall promptly notify the person against whom
such indemnity may be sought (hereinafter called the "indemnifying party") in
writing and the indemnifying party, upon request of the indemnified party,
shall retain counsel reasonably satisfactory to the indemnified party to
represent the indemnified party and any others the indemnifying party may
designate in such proceeding and shall pay the fees and disbursements of such
counsel related to such proceeding. In any such proceeding, any indemnified
party shall have the right to retain its own counsel, but the fees and expenses
of such counsel shall be at the expense of such indemnified party unless (i)
the indemnifying party and the indemnified party shall have mutually agreed to
the retention of such counsel or (ii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying party and the
indemnified party and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between them.
It is understood that the indemnifying party shall not, in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for the
reasonable fees and expenses of more than one separate firm (in addition to any
local counsel) for all such indemnified parties and that all such fees and
expenses shall be reimbursed as they are incurred. In the case of any such
separate firm for the Underwriters and such control persons of the
Underwriters, such firm shall be designated in writing by the Manager. In the
case of any such separate firm for the Issuers and such directors, officers and
controlling persons of the Issuers, such firm shall be designated in writing by
the Issuers. The indemnifying party shall not be liable for any settlement of
any proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify, to the extent provided in the two immediately
preceding paragraphs, the indemnified party from and against any loss or
liability by reason of such settlement or judgment. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of
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which any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party, unless such settlement
includes an unconditional release of such indemnified party from all liability
on claims that are the subject matter of such proceeding.
If the indemnification provided for in the second or third paragraph of
this Section 6 is unavailable to an indemnified party in respect of any losses,
claims, damages or liabilities for which indemnification is provided herein,
then the indemnifying party, in lieu of indemnifying such indemnified party,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (i) in such proportion as
is appropriate to reflect the relative benefits received by the Issuers on the
one hand and the Underwriters on the other from the offering of the Offered
Securities or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Issuers on the one hand and of the Underwriters on the
other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Issuers and the
Underwriters shall be deemed to be in the same respective proportions as the
net proceeds from the offering (before deducting expenses) received by the
Issuers bear to the total underwriting discounts and commissions received by
the Underwriters in respect thereof. The relative fault of the Issuers and the
Underwriters 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
the Issuers or by the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
The Issuers and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 6 were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of
the losses, claims, damages and liabilities referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this Section 6, the Underwriters
shall not be required to contribute any amount in excess of the amount by which
the total price at which the Offered Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which the Underwriters have otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of
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Section 11(f) of the Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
The indemnity and contribution agreement contained in this Section 6 and
the representations and warranties of the Company contained in this Agreement
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf of
the Underwriters or any person controlling the Underwriters or by or on behalf
of the Issuers, their respective officers or directors or any other person
controlling an Issuer and (iii) acceptance of and payment for any of the
Offered Securities.
7. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Manager by notice given by the Manager to the
Issuers, if (a) after the execution and delivery of the Underwriting Agreement
and prior to the Closing Date (i) trading generally shall have been suspended
or materially limited on or by, as the case may be, the New York Stock
Exchange, the American Stock Exchange, or the National Association of
Securities Dealers, Inc., (ii) trading of any securities of the Company shall
have been suspended on the Nasdaq National Market, (iii) a general moratorium
on commercial banking activities in New York shall have been declared by either
Federal or New York State authorities, or (iv) there shall have occurred any
outbreak or escalation of hostilities or any change in financial markets or any
calamity or crisis that, in the judgment of the Manager, is material and
adverse and (b) in the case of any of the events specified in clauses (a)(i)
through (iv), such event, singly or together with any other such event, makes
it, in the judgment of the Manager, impracticable to market the Offered
Securities on the terms and in the manner contemplated in the Prospectus.
The Issuers will pay and bear all costs and expenses incident to the
performance of its obligations under this Agreement, including (a) the
preparation, printing and filing of the Registration Statement (including
financial statements and exhibits), as originally filed and as amended, the
preliminary prospectuses and the Prospectus and any amendments or supplements
thereto, and the cost of furnishing copies thereto to the Underwriters, (b) the
preparation, printing and distribution of this Agreement, the Senior Indenture,
the Subordinated Indenture, the Warrant Agreement, the Unit Agreement and the
Additional Guarantee, if any, and Blue Sky Memorandum, (c) the delivery of the
Offered Securities to the Underwriters, (d) the reasonable fees and
disbursements of the Issuers' counsel and accountants, (e) the qualification of
the Offered Securities under the applicable state securities or Blue Sky laws
in accordance with Section 5, including filing fees and reasonable fees and
disbursements of counsel for the Underwriters in connection therewith and in
connection with any Blue Sky survey and any legal investment survey, (f) all
fees payable to the National Association of Securities Dealers, Inc. in
connection with the review, if any, of the offering of the Securities, (g) any
fees charged by rating agencies for rating the Offered Securities and (h) the
fees and expenses of the Trustee, including the fees and disbursements of
counsel for the Trustee, in connection
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with the Senior Indenture, the Subordinated Indenture and the Offered
Securities. Except as specifically provided elsewhere herein, the Underwriters
will pay all of their own costs and expenses, including without limitation the
fees and expenses of their counsel and the expenses of selling presentations.
If this Agreement shall be terminated by the Underwriters because of any
failure or refusal on the part of the Issuers to comply with the terms or to
fulfill any of the conditions of this Agreement, or if for any reason the
Issuers shall be unable to perform their obligations under this Agreement, the
Company will reimburse the Underwriters for all out-of-pocket expenses
(including the fees and disbursements of their counsel) reasonably incurred by
the Underwriters in connection with this Agreement or the offering contemplated
hereunder. This provision shall survive the termination or cancellation of this
Agreement.
8. Defaulting Underwriters. If on the Closing Date any one or more of the
Underwriters shall fail or refuse to purchase Offered Securities that it has or
they have agreed to purchase on such date, and the aggregate amount of Offered
Securities which such defaulting Underwriter or Underwriters agreed but failed
or refused to purchase is not more than one-tenth of the aggregate amount of
the Offered Securities to be purchased on such date, the other Underwriters
shall be obligated severally in the proportions that the amount of Offered
Securities set forth opposite their respective names bears to the aggregate
amount of Offered Securities set forth opposite the names of all such
non-defaulting Underwriters, or in such other proportions as the Manager may
specify, to purchase the Offered Securities which such defaulting Underwriter
or Underwriters agreed but failed or refused to purchase on such date; provided
that in no event shall the amount of Offered Securities that any Underwriter
has agreed to purchase pursuant to this Agreement be increased pursuant to this
Section 8 by an amount in excess of one-ninth of such amount of Offered
Securities without the written consent of such Underwriter. If on the Closing
Date any Underwriter or Underwriters shall fail or refuse to purchase Offered
Securities and the aggregate amount of Offered Securities with respect to which
such default occurs is more than one-tenth of the aggregate amount of Offered
Securities to be purchased on such date, and arrangements satisfactory to the
Manager and the Issuers for the purchase of such Offered Securities are not
made within 36 hours after such default, this Agreement shall terminate without
liability on the part of any non-defaulting Underwriter or the Issuers. In any
such case either the Manager or the Issuers shall have the right to postpone
the Closing Date but in no event for longer than seven days, in order that the
required changes, if any, in the Registration Statement and in the Prospectus
or in any other documents or arrangements may be effected. Any action taken
under this paragraph shall not relieve any defaulting Underwriter from
liability in respect of any default of such Underwriter under this Agreement.
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9. Counterparts. The Underwriting Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
10. Applicable Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York.
11. Headings. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.