EXHIBIT 1.2
UNDERWRITING AGREEMENT
(Preferred Securities)
__________, 199_
Comcast Cable Communications, Inc.
1105 North Market Street
Wilmington, Delaware 19801
Dear Sirs:
We (the "Manager") are acting on behalf of the underwriter or
underwriters (including ourselves) named below (such underwriter or
underwriters being herein called the "Underwriters"), and we understand that
Comcast Cable Trust [_] (the "Issuer Trust"), a statutory business trust
created under the Delaware Business Trust Act, proposes to issue and sell
[number and title of securities] Guaranteed Trust Preferred Securities (the
"Firm Preferred Securities"). [The Issuer Trust also proposes to issue and
sell to the several Underwriters not more than an additional [
] Guaranteed Trust Preferred Securities (the "Additional Preferred
Securities") if and to the extent that we, as Manager of the offering, shall
have determined to exercise, on behalf of the Underwriters, the right to
purchase such Additional Preferred Securities granted to the Underwriters
herein.] The Firm Preferred Securities [and the Additional Preferred
Securities] are hereinafter collectively referred to as the "Offered Preferred
Securities."
It is understood that substantially contemporaneously with the
closing of the sale of the Offered Preferred Securities to the Underwriters
contemplated hereby, (i) the Issuer Trust, its trustees (the "Issuer
Trustees") and Comcast Cable Communications, Inc. (the "Company") shall enter
into an Amended and Restated Trust Agreement in substantially the form of the
Form of the Amended and Restated Trust Agreement attached as Exhibit 4.[_] to
the Registration Statement referred to below (the "Trust Agreement"), pursuant
to which the Issuer Trust shall (x) issue and sell the Offered Preferred
Securities to the Underwriters pursuant hereto and (y) issue [___] shares of
its Common Securities (the "Common Securities" and, together with the Offered
Preferred Securities, the "Trust Securities") to the Company, in each case
with such rights and obligations as shall be set forth in such Trust
Agreement, (ii) the Company and [___], as Trustee, acting pursuant to a Junior
Subordinated Debt Indenture dated as of [___], 1998 shall provide for the
issuance of $[___] principal amount of the Company's [__]% Junior Subordinated
Deferrable Interest Debentures due [____] (the "Junior Subordinated
Debentures"), (iii) the Company shall sell such Junior Subordinated Debentures
to the Issuer Trust and the Issuer Trust shall purchase such Junior
Subordinated Debentures with proceeds of the sale of the Offered Preferred
Securities to the Underwriters contemplated hereby and of the Common
Securities to the Company and (iv) the Company and [____], as Guarantee
Trustee, shall enter into a Guarantee Agreement in substantially the form of
the Form of the Guarantee Agreement attached as Exhibit 4.14 of the
Registration Statement referred to below (the "Guarantee") for the benefit of
holders from time to time of the Offered Preferred Securities.
Subject to the terms and conditions set forth or incorporated
by reference herein, the Issuer Trust hereby agrees to sell and the
Underwriters agree to purchase, severally and not jointly, the aggregate
number of Firm Preferred Securities set forth below opposite their names at a
purchase price of $[____] per Firm Preferred Security, (the "Purchase Price"),
provided, that the Company shall pay to the Underwriters' compensation equal
to $[____] per Firm Preferred Security:
Number of
Firm Preferred Securities
Underwriter To Be Purchased
[Insert syndicate list]
_________________
Total..........................................
=================
[Subject to the terms and conditions set forth or incorporated
by reference herein, the Issuer Trust hereby agrees to sell to the
Underwriters the Additional Preferred Securities and the Underwriters shall
have a one-time right to purchase, severally and not jointly, up to [
] Additional Preferred Securities at the Purchase Price plus
accrued dividends, if any, from [ ] to the date of
payment and delivery, provided, that the Company shall pay to the
Underwriters' compensation equal to $[____] per Additional Preferred Security.
Additional Preferred Securities may be purchased as provided herein solely for
the purpose of covering over-allotments made in connection with the offering
of the Firm Preferred Securities. If any Additional Preferred Securities are
to be purchased, each Underwriter agrees, severally and not jointly, to
purchase the number of Additional Preferred Securities (subject to such
adjustments to eliminate fractional Additional Preferred Securities as you may
determine) that bears the same proportion to the total number of Additional
Preferred Securities to be purchased as the number of Firm Preferred
Securities set forth above opposite the name of such Underwriter bears to the
total number of Firm Preferred Securities.]
The Underwriters will pay for the Firm Preferred Securities
upon delivery thereof at the offices of Davis Polk & Wardwell, 450 Lexington
Avenue, New York, New York at 10:00 a.m. (New York time) on [_____], 199_, or
at such other time, not later than 5:00 p.m. (New York time) on [______],
199_, as shall be designated by us. The time and date of such payment and
delivery are hereinafter referred to as the Closing Date.
[Payment for any Additional Preferred Securities shall be made
to the Issuer Trust in immediately available funds at the offices referred to
above on such date (which may be the same as the Closing Date but shall in no
event be earlier than the Closing Date nor later than ten business days after
the giving of the notice hereinafter referred to) shall be designated in a
written notice from us to the Company of our determination, on behalf of the
Underwriters, to purchase a number, specified in said notice, of Additional
Preferred Securities, or on such other date, in any event not later than [
], as shall be designated in writing by us. The time
and date of such payment are hereinafter referred to as the "Option Closing
Date." The notice of the determination to exercise the option to purchase
Additional Preferred Securities and of the Option Closing Date may be given at
any time within 30 days after the date of this Agreement.
The several obligations of the Underwriters to purchase
Additional Preferred Securities hereunder are subject to the delivery to us on
the Option Closing Date of such documents as we may reasonably request with
respect to the good standing of the Company, the due authorization and
issuance of Additional Preferred Securities and other matters related to the
issuance of the Additional Preferred Securities.]
The Offered Securities shall have the terms set forth in the
Prospectus dated , 1998, and the Prospectus Supplement dated
[______], 199_, including the following:
Terms of Offered Preferred Securities
Designation of the Series of Capital Securities:
Issuer of Offered Preferred Securities: Comcast Cable Trust [__]
Aggregate Number of Capital Securities:
Price to Public:
Purchase Price:
Underwriters' Compensation per Capital Security:
Closing Date:
Form:
Other Terms:
Capitalized terms used above and not defined herein shall have
the meanings set forth in the Prospectus and Prospectus Supplement referred to
above.
Except as set forth below, all provisions contained in the
document entitled Underwriting Agreement Standard Provisions dated [____],
1998 relating to the Preferred Securities of Comcast Cable Trust I, Comcast
Cable Trust II and Comcast Cable Trust III (fully and unconditionally
guaranteed to the extent described therein by Comcast Cable Communications,
Inc. (the "Standard Provisions"), a copy of which is attached hereto, are
herein incorporated by reference in their entirety and shall be deemed to be a
part of this Agreement to the same extent as if such provisions had been set
forth in full herein, except that if any term defined in such document is
otherwise defined herein, the definition set forth herein shall control.
Please confirm your agreement by having an authorized officer
sign a copy of this Agreement in the space set forth below.
Very truly yours,
[Name of Lead Managers]
On behalf of themselves and the other
Underwriters named herein
By [________]
By:_______________________________________
Name:
Title:
Accepted:
COMCAST CABLE
COMMUNICATIONS, INC.
By:__________________________________
Name:
Title:
COMCAST CABLE TRUST [ ]
By: Comcast Cable Communications, Inc.,
as Sponsor
By:__________________________________
Name:
Title:
COMCAST CABLE COMMUNICATIONS, INC.
COMCAST CABLE TRUST I
COMCAST CABLE TRUST II
COMCAST CABLE TRUST III
PREFERRED SECURITIES
(Fully and unconditionally guaranteed, to the extent described herein, by
Comcast Cable Communications, Inc.)
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
[_________], 1998
From time to time, Comcast Cable Communications, Inc., a
Delaware corporation (the "Company"), may, together with any one of Comcast
Cable Trust I, Comcast Cable Trust II, Comcast Cable Trust III (each an
"Issuer Trust," and collectively the "Issuer Trusts"), 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 from time to time to cause one or more of
the Issuer Trusts to issue its guaranteed trust preferred securities
("Preferred Securities") guaranteed by the Company to the extent described in
the Prospectus (as defined below) with respect to distributions and amounts
payable upon liquidation or redemption pursuant to a Preferred Securities
Guarantee Agreement to be dated as of a date specified in the Underwriting
Agreement executed and delivered by the Company and [_______], as trustee (the
"Guarantee Trustee"), for the benefit of the holders from time to time of the
Preferred Securities (the "Guarantee").
If the Company proposes to issue Preferred Securities, the
specified Issuer Trust will use the proceeds from the sale of the Preferred
Securities and the sale of Common Securities (as defined below) to purchase
from the Company an aggregate principal amount of its Junior Subordinated
Deferrable Interest Debentures (the "Junior Subordinated Debentures") equal to
the aggregate liquidation amount of the Preferred Securities and Common
Securities issued by such Issuer Trust. The Junior Subordinated Debentures
will be issued under a Junior Subordinated Indenture to be dated as of [____],
1998 between the Company and [_________], as trustee (the "Debt Securities
Trustee") (as amended and supplemented from time to time the "Subordinated
Debt Indenture"). With respect to any issuance of Preferred Securities by an
Issuer Trustee, the Company will also be the holder of one hundred percent of
the common securities representing undivided beneficial interests in the
assets of the specified Issuer Trust (the "Common Securities" and together
with the Preferred Securities, the "Trust Securities"). Each Issuer Trust
will have been created under Delaware law pursuant to the filing of a
Certificate of Trust (each, a "Certificate of Trust") with the Secretary of
State of the State of Delaware, and will be governed by an Amended and
Restated Trust Agreement (each, a "Trust Agreement") among the Company, as
depositor,[________], as Institutional Trustee (the "Institutional Trustee"),
[__________], as Delaware Trustee (the "Delaware Trustee") (collectively, the
"Issuer Trustees"), and two individuals who will be selected by the holders of
the Common Securities and the holders from time to time of the Trust
Securities. The Company, as holder of the Common Securities of each Issuer
Trust, has appointed the Issuer Trustees and two individuals who are employees
or officers of or affiliated with the Company to act as administrators with
respect to the Issuer Trust (the "Administrators"). [_________], as
Institutional Trustee, will act as Indenture Trustee for the purposes of the
Trust Indenture Act of 1939, as amended (the "Trust Indenture Act").
The Company and the Issuer Trusts have filed with the
Securities and Exchange Commission (the "Commission") a registration statement
including a prospectus relating to the Debt Securities, the Preferred
Securities and the Guarantee (collectively, the "Securities") and has filed
with, or transmitted for filing to, or shall promptly hereafter 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 ("Offered Preferred Securities"
and the "Offered Guarantee" and, together, the "Offered Securities"). The term
Registration Statement means the registration statement as amended to the date
of this Agreement. 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").
The term "Contract Securities" means the Offered Securities, if
any, to be purchased pursuant to the delayed delivery contracts substantially
in the form of Schedule I hereto, with such changes therein as the Company may
approve (the "Delayed Delivery Contracts"). The term "Underwriters'
Securities" means the Offered Securities other than Contract Securities.
1. Representations and Warranties. Each of the specified
Issuer Trust and the Company jointly and severally represents and warrants
to each of the Underwriters as of the date of the Underwriting Agreement:
(a) 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.
(b) (i) Each document, if any, 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
applicable rules and regulations of the Commission
thereunder, (ii) each part of the Registration Statement,
when such part became effective, did not contain and each
such part, as amended or supplemented, if applicable, will
not contain any untrue statement of a material fact or omit
to state a material fact required to be stated therein or
necessary to make the statements therein not misleading,
(iii) the Registration Statement and the Prospectus comply,
and, as amended or supplemented, if applicable, will comply,
in all material respects with the Securities Act and the
applicable rules and regulations of the Commission thereunder
and (iv) the Prospectus does not contain and, as amended or
supplemented, if applicable, will not contain any untrue
statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading,
except that the representations and warranties set forth in
this Section 1(b) do not apply (A) to statements or omissions
in the Registration Statement or the Prospectus based upon
information concerning any Underwriter furnished to the
Company in writing by such Underwriter through the Manager
expressly for use therein or (B) to those parts of the
Registration Statement that constitute the Statements of
Eligibility (Form T-1) under the Trust Indenture Act of the
trustees referred to in the Registration Statement.
(c) The Company has been duly incorporated, is
validly existing as a corporation in good standing under the
laws of the State of Delaware, has the corporate power and
authority to own its property and to conduct its business as
described in the Prospectus and is duly qualified to transact
business and is in good standing in each jurisdiction in
which the conduct of its business or its ownership or leasing
of property requires such qualification, except to the extent
that the failure to be so qualified or be in good standing
would not have a material adverse effect on the Company and
its consolidated subsidiaries, taken as a whole.
(d) Each subsidiary of the Company has been
duly incorporated, is validly existing as a corporation in
good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own
its property and to conduct its business as described in the
Prospectus and 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 to the extent that the failure to
be so qualified or be in good standing would not have a
material adverse effect on the Company and its consolidated
subsidiaries, taken as a whole.
(e) The Issuer Trust has been duly created and
is validly existing in good standing as a business trust
under the Delaware Business Trust Act, is a "grantor trust"
for Federal income tax purposes, has the power and authority
to conduct its business as presently conducted and as
described in the Prospectus and is not required to be
authorized to do business in any other jurisdiction.
(f) This Agreement has been duly authorized,
executed and delivered by each of the Issuer Trust and the
Company.
(g) The Subordinated Debt Indenture has been
duly qualified under the Trust Indenture Act and has been
duly authorized, executed and delivered by the Company and is
a valid and binding agreement of the Company, enforceable in
accordance with its terms except as the enforceability
thereof (i) may be limited by bankruptcy, insolvency,
reorganization, liquidation, moratorium and other similar
laws affecting creditors' rights generally and (ii) is
subject to general principles of equity, regardless of
whether such enforceability is considered in a proceeding in
equity or at law.
(h) The Junior Subordinated Debentures have
been duly authorized and, when executed and authenticated in
accordance with the provisions of the Subordinated Debt
Indenture, and delivered to and paid for as described in the
Prospectus in accordance with the terms of the Underwriting
Agreement, in the case of the Underwriters' Securities, or by
institutional investors in accordance with the terms of the
Delayed Delivery Contracts, in the case of Contract
Securities, will be entitled to the benefits of the
Subordinated Indenture, and will be valid and legally binding
obligations of the Company, in each case enforceable in
accordance with their respective terms except as (i) the
enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, liquidation, moratorium and other
similar laws affecting creditors' rights generally and (ii)
is subject to general principles of equity, regardless of
whether such enforceability is considered in a proceeding in
equity or at law.
(i) The Delayed Delivery Contracts, if any,
have been duly authorized, executed and delivered by the
Company and are valid and binding agreements of the Company,
enforceable in accordance with their respective terms except
as (i) the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization, liquidation,
moratorium and other similar laws affecting creditors' rights
generally and (ii) is subject to general principles of
equity, regardless of whether such enforceability is
considered in a proceeding in equity or at law.
(j) The Guarantee has been qualified under the
Trust Indenture Act and has been duly authorized by the
Company and, upon execution and delivery thereof by the
Company (and assuming due authorization, execution and
delivery by the Guarantee Trustee), will, as of the Closing
Date, be a valid and binding agreement of the Company,
enforceable in accordance with its terms except as the
enforceability thereof (i) may be limited by bankruptcy,
insolvency, reorganization, liquidation, moratorium and other
similar laws affecting creditors' rights generally and (ii)
is subject to general principles of equity, regardless of
whether such enforceability is considered in a proceeding in
equity or at law.
(k) The Trust Agreement has been qualified
under the Trust Indenture Act and has been duly authorized by
the Company and, upon execution and delivery thereof by the
Company (and assuming due authorization, execution and
delivery thereof by each party thereto other than the
Company), will, as of the Closing Date, be a valid and
binding agreement of the Company, the Issuer Trustees and the
Administrators, enforceable in accordance with its terms
except as the enforceability thereof (i) may be limited by
bankruptcy, insolvency, reorganization, liquidation,
moratorium and other similar laws affecting creditors' rights
generally and (ii) is subject to general principles of
equity, regardless of whether such enforceability is
considered in a proceeding in equity or at law and except as
rights to indemnification may be limited under applicable
law.
(l) The Offered Preferred Securities have been
duly authorized by the Trust Agreement and, when executed and
authenticated in accordance with the provisions of the Trust
Agreement and delivered to and paid for by the Underwriters
in accordance with the terms of this Agreement, will be
validly issued and (subject to the terms of the Trust
Agreement) fully paid and non-assessable undivided beneficial
interests in the assets of the Issuer Trust, and the issuance
of such Offered Preferred Securities will not be subject to
any preemptive or similar rights. Holders of the Offered
Preferred Securities will be entitled to the same limitation
of personal liability as that extended to stockholders of
private corporations for profit organized under the General
Corporation Law of the State of Delaware. The Common
Securities have been duly authorized by the Trust Agreement
and, when issued and delivered to the Company against payment
therefor as described in the Prospectus, will be validly
issued undivided beneficial interests in the assets of the
Issuer Trust, and the issuance of such Common Securities will
not be subject to any preemptive rights.
(m) The execution and delivery by the Company
of, and the performance by the Company of its obligations
under, this Agreement, the Subordinated Debt Indenture, the
Trust Agreement, the Guarantee, the Junior Subordinated
Debentures and any Delayed Delivery Contracts, will not
contravene any provision of applicable law, the Trust
Agreement 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 Subordinated Debt Indenture, the Trust
Agreement, the Guarantee, the Junior Subordinated Debentures
and any Delayed Delivery Contracts, 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 Preferred
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.
(n) The execution and delivery by the Issuer
Trust of, and the performance by the Issuer Trust of its
obligations under, this Agreement will not contravene any
provision of applicable law or the Trust Agreement or any
agreement or other instrument binding upon the Issuer Trust,
or any judgment, order or decree of any governmental body,
agency or court having jurisdiction over the Issuer Trust,
and no consent, approval, authorization or order of, or
qualification with, any governmental body or agency is
required for the performance by the Issuer Trust of its
obligations under this Agreement, 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 Preferred
Securities constitutes a "prohibited transaction" under 406
of the Employment Retirement Income Security Act of 1974, as
amended, or Section 4975 of the Internal Revenue Code of
1986, as amended.
(o) 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 operations of the
Issuer Trust or 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 Underwriting Agreement).
(p) The Issuer Trust is not, and after giving
effect to the offering and sale of the Offered Preferred
Securities and the application of the proceeds thereof as
described in the Prospectus, will not be an "investment
company" as such term is defined under the Investment Company
Act of 1940, as amended.
(q) There are no legal or governmental
proceedings pending or threatened to which the Issuer Trust
or the Company or any of its consolidated subsidiaries is a
party or to which any of the properties of the Issuer Trust
or 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.
(r) Each of the Issuer Trust and 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.
(s) The Company has complied with all
provisions of Section 517.075, Florida Statutes relating to
doing business with the Government of Cuba or with any person
or affiliate located in Cuba.
2. Delayed Delivery Contracts. If the Prospectus provides
for sales of Offered Securities pursuant to Delayed Delivery Contracts, the
Company hereby authorizes the Underwriters to solicit offers to purchase
Contract Securities on the terms and subject to the conditions set forth in
the Prospectus pursuant to Delayed Delivery Contracts. Delayed Delivery
Contracts may be entered into only with institutional investors approved by
the Company of the types set forth in the Prospectus. On the Closing Date,
the Company will pay to the Manager as compensation for the accounts of the
Underwriters the commission set forth in the Underwriting Agreement in
respect of the Contract Securities. The Underwriters will not have any
responsibility in respect of the validity or the performance of any Delayed
Delivery Contracts.
If the Company executes and delivers Delayed Delivery Contracts
with institutional investors, the aggregate amount of Offered Securities to be
purchased by the several Underwriters shall be reduced by the aggregate amount
of Contract Securities; and such reduction shall be applied to the commitment
of each Underwriter pro rata in proportion to the amount of Offered Securities
set forth opposite such Underwriter's name in the Underwriting Agreement,
except to the extent that the Manager determines that such reduction shall be
applied in other proportions and so advises the Company; provided, however,
that the total amount of Offered Securities to be purchased by all
Underwriters shall be the aggregate amount set forth above, less the aggregate
amount of Contract Securities.
3. Public Offering. The Issuer Trust and the Company are
advised by the Manager that the Underwriters propose to make a public
offering of their respective portions of the Underwriters' 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 Underwriters'
Securities are set forth in the Prospectus.
4. Purchase and Delivery. Except as otherwise provided in
this Section 4, payment for the Underwriters' Securities shall be made to the
Issuer Trust or the Company, as applicable, in immediately available funds 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
Underwriters' Securities registered in such names and in such denominations or
amounts, as the case may be, 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 Underwriters' Securities
to the Underwriters duly paid.
5. 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
Underwriting Agreement and prior to the Closing Date,
(i) 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 of the Company's securities by any
"nationally recognized statistical rating
organization," as such term is defined for purposes
of Rule 436(g)(2) under the Securities Act;
(ii) 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,
or, with respect to an offering of Preferred
Securities, the Issuer Trust, 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
(iii) the Manager shall have received on the
Closing Date a certificate, dated the Closing Date
and signed by the Chairman of the Board, the
President, the Chief Financial Officer, the Chief
Strategic and Administrative Officer, the Chief
Legal Officer, the Treasurer, any Assistant
Treasurer of the Company, or any other person
authorized by the Board of Directors of the Company
to execute any such written statement (an
"Executive Officer"), and, in the case of an
offering of Preferred Securities, a certificate,
dated the Closing Date and signed by an
Administrator of the Issuer Trust,
(A) to the effect set forth in clause
(i) above (in the case of the certificate
signed by an executive officer of the
Company); and
(B) to the effect that the
representations and warranties of the Company
and, in the case of an offering of Preferred
Securities, the Issuer Trust contained in
this Agreement are true and correct as of the
Closing Date and that each of the Company and
the Issuer Trust, as applicable, has complied
with all of the agreements and satisfied all
of the conditions on its part to be performed
or satisfied on or before the Closing Date.
The Executive Officer or Administrator signing and delivering such
certificate may rely upon the best of his or her knowledge as to
proceedings threatened.
(b) The Manager shall have received on the Closing
Date an opinion of Davis Polk & Wardwell, counsel to the
Company, dated the Closing Date, to the effect that:
(i) the Company has been duly incorporated and
is validly existing as a corporation in good standing
under the laws of the State of Delaware, with the
power and authority to own its properties and
conduct its business as described in the
Prospectus;
(ii) this Agreement has been duly authorized,
executed and delivered by the Company;
(iii) the Subordinated Debt Indenture has been
duly qualified under the Trust Indenture Act and
(assuming the due execution and delivery thereof by
the Trustee) is a valid and binding agreement of the
Company, enforceable in accordance with its terms
except as the enforceability thereof (A) may be
limited by bankruptcy, insolvency, reorganization,
liquidation, moratorium and other similar laws
affecting creditors' rights generally and (B) is
subject to general principles of equity,
regardless of whether such enforceability is
considered in a proceeding in equity or at law;
(iv) the Junior Subordinated Debentures have
been duly authorized and, when executed and
authenticated in accordance with the provisions of
the relevant Subordinated Debt Indenture, and
delivered to and paid for as described in the
Prospectus will be entitled to the benefits of the
Subordinated Debt Indenture, and will be valid and
binding obligations of the Company, in each case
enforceable in accordance with their respective
terms except as the enforceability thereof (A) may
be limited by bankruptcy, insolvency,
reorganization, liquidation, moratorium and other
similar laws affecting creditors' rights generally
and (B) is subject to general principles of
equity, regardless of whether such enforceability
is considered in a proceeding in equity or at law;
(v) the Guarantee has been duly authorized,
executed and delivered by the Company and is a valid
and binding obligation of the Company enforeceable in
accordance with its terms except as the
enforceability thereof (a) may be limited by
bankruptcy, insolvency, reorganization,
liquidation, moratorium and other similar laws
affecting creditors' rights generally and (b) is
subject to general principles of equity,
regardless of whether such enforceability is
considered in a proceeding in equity or at law;
(vi) the Delayed Delivery Contracts, if any,
have been duly authorized, executed and delivered by
the Company and (assuming the due execution and
delivery thereof by the institutional investors party
thereto) are valid and binding agreements of the
Company enforceable in accordance with their
respective terms except as the enforceability
thereof may be limited by bankruptcy, insolvency,
reorganization, liquidation, moratorium and other
similar laws affecting creditors' rights generally
and is subject to general principles of equity,
regardless of whether such enforceability is
considered in a proceeding in equity or at law;
(vii) the execution and delivery by the Issuer
Trust of, and the performance of its obligations
under, the Underwriting Agreement and the
execution and delivery by the Company of, and the
performance by the Company of its obligations
under, the Underwriting Agreement, the
Subordinated Debt Indenture, the Trust Agreement,
the Guarantee and any Delayed Delivery Contracts
will not contravene any provisions of applicable
law or the certificate of incorporation or by-laws
of the Company or the Trust Agreement and 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; and no
consent, approval or authorization or order of or
qualification with any governmental body or agency
of the United States (except any consents,
approvals, authorizations, orders, registrations
or qualifications relating specifically to the
cable communications industry, as to which such
counsel is not called upon to express any opinion)
is required for the performance by the Issuer
Trust or the Company of its obligations under the
Underwriting Agreement, the Subordinated Debt
Indenture, the Trust Agreement, the Guarantee and
any Delayed Delivery Contracts, 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;
(viii) the Issuer Trust is not and, after
giving effect to the offering and sale of the
Offered Preferred Securities and the application
of the proceeds thereof as described in the
Prospectus, will not be an "investment company" as
such term is defined in the Investment Company Act
of 1940, as amended;
(ix) such counsel is of the opinion
ascribed to it under the caption "Certain Federal
Income Tax Consequences" in the Prospectus
Supplement;
(x) the statements (1) in the Prospectus
under the captions "Description of the Senior Debt
Securities and Subordinated Debt Securities",
"Description of the Guaranteed Trust Preferred
Securities", "Description of the Guaranteed Trust
Preferred Securities Guarantees" and "Plan of
Distribution", (2) in the Registration Statement
under Item 15, in each case insofar as such
statements constitute summaries 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 and fairly summarize the matters
referred to therein;
(xi) such counsel (1) is of the opinion
that each document, if any, filed pursuant to the
Exchange Act and incorporated by reference in the
Registration Statement and the Prospectus (except
as to financial statements and schedules included
therein as to which such counsel need not express
any opinion) complied when so filed as to form in
all material respects with the Exchange Act and
the applicable rules and regulations of the
Commission thereunder, (2) has no reason to
believe that any part of the Registration
Statement (except as to financial statements and
schedules included therein, as to which such
counsel need not express any belief, and except
for that part of the Registration Statement that
constitutes Forms T-1), on the date such part
became effective contained, and the Registration
Statement (except as to financial statements and
schedules included therein, as to which such
counsel need not express any belief, and except
for the part of the Registration Statement that
constitutes Forms T-1) as of the date such opinion
is delivered contains any untrue statement of a
material fact or omitted or omits to state a
material fact required to be stated therein or
necessary to make the statements therein not
misleading, (3) is of the opinion that the
Registration Statement and Prospectus (except as
to financial statements and schedules included
therein, as to which such counsel need not express
any opinion) comply as to form in all material
respects with the Securities Act and the
applicable rules and regulations of the Commission
thereunder and (4) has no reason to believe that
the Prospectus (except as to financial statements
and schedules included therein as to which such
counsel need not express any belief) as of the
date such opinion is delivered contains any untrue
statement of a material fact or omits to state a
material fact necessary in order to make the
statements therein, in light of the circumstances
under which they were made, not misleading.
(c) The Manager shall have received on the Closing
Date an opinion of Arthur R. Block, Esquire, Senior Deputy
General Counsel of the Company (or Thomas R. Nathan,
Esquire, Deputy General Counsel of the Company), dated the
Closing Date, to the effect that:
(i) The Company has been duly qualified as a
foreign corporation for the transaction of business and
is in good standing under the laws of each other
jurisdiction in which it owns or leases properties or
conducts any business so as to require such
qualification (except where the failure to so qualify
would not have a material adverse effect on the Company
and its subsidiaries, taken as a whole) (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 officer
of the Company; provided that such counsel shall state
that he believes that both you and he are justified in
relying upon such opinions and certificates);
(ii) Each subsidiary listed on Schedule II
hereto, which subsidiaries constitute all of the
material subsidiaries of the Company ( the "Material
Subsidiaries"), has been duly incorporated and is
validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation and
all of the issued shares of capital stock of each such
Material Subsidiary have been duly and validly
authorized and issued, are fully paid and non-
assessable, and (except for directors' qualifying
shares and except as otherwise set forth in the
Prospectus) are owned directly or 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 maters of fact upon
certificates of officer 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) To the best of such counsel's knowledge and
other than as set forth or incorporated by reference in
the Prospectus, there are no legal or governmental
proceedings pending to which the Company or any of its
subsidiaries or the Issuer Trust is a party or of which
any property of the Company or any of its subsidiaries
is the subject which, if determined adversely to the
Company or any of its subsidiaries or the Issuer Trust,
would, individually or in the aggregate, have a
material adverse effect on the Company and its
subsidiaries, taken as a whole or the Issuer Trust; and
to the best of such counsel's knowledge, no such
proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(iv) The Company and its subsidiaries have good
and marketable title in fee simple to all real property
owned by them, in each case free and clear of all
liens, encumbrances and defects except such as are
described in the Prospectus or such as would not have
material adverse effect on the Company and its
subsidiaries, taken as a whole (in giving the opinion
in this clause, such counsel may state that no
examination of record titles for the purpose of such
opinion has been made, and that they are relying upon a
general review of the titles of the Company and its
subsidiaries, upon opinions of local counsel and
abstracts, reports and policies of title companies
rendered or issued at or subsequent to the time of
acquisition of such property by the Company or its
subsidiaries, upon opinions of counsel to the lessors
of such property 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, abstracts, reports,
policies and certificates);
(v) Neither the Company nor any of its
subsidiaries is (x) in violation of its certificate of
incorporation or by-laws or (y) in default in the
performance or observance of any obligation, covenant
or condition contained in any agreement or other
instrument binding upon the Company or any of its
subsidiaries that is material to the Company and its
subsidiaries, taken as a whole, except to the extent
that such default would not, individually or in the
aggregate, have a material adverse effect on the
Company and its subsidiaries, taken as a whole;
(vi) Subject to such qualification as may be set
forth in the Prospectus, the Company and its
subsidiaries have, and are in 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 Company
and its subsidiaries, taken 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 Company and its
subsidiaries, taken as a whole;
(vii) The execution and delivery by the Issuer
Trust of, and the performance of its obligations under,
the Underwriting Agreement and the execution and
delivery by the Company of, and the performance by the
Company of its obligations under, the Underwriting
Agreement, the Subordinated Debt Indenture, the Trust
Agreement, the Guarantee and any Delayed Delivery
Contracts will not conflict with result in a breach or
violation of any of the terms or provisions of, or
constitute a default under, any agreement or other
instrument binding upon the Company or any of its
subsidiaries or the Issuer Trust that is material to
the Company and its subsidiaries, taken as a whole, or
the Issuer Trust known to such counsel or any judgment,
order or decree of any governmental body, agency or
court having jurisdiction over the Company or any
subsidiary (other than laws relating specifically to
the cable communications industry, as to which such
counsel is not called upon to express any opinion), or
the Issuer Trust except to the extent that such
conflict, breach, violation or default would not,
individually or in the aggregate, have a material
adverse effect on the Company and its subsidiaries,
taken as a whole or the Issuer Trust; and
(viii) No consent, approval, authorization, order,
registration or qualification of or with any such court
or governmental agency or body is required for the
performance by the Issuer Trust of its obligations
under the Underwriting Agreement or by the Company of
its obligations under this Agreement, the Subordinated
Debt Indenture, the Trust Agreement, the Guarantee and
any Delayed Delivery Contracts, except such consents,
approvals, authorizations, registrations or
qualifications (x) as may be required under state
securities or Blue Sky laws in connection with the
purchase and distribution of the Securities by the
Underwriters or (y) relate specifically to the cable
communications industry, as to which such counsel is
not called upon to express any opinion;
(ix) Such counsel (1) is of the opinion that
each document, if any, filed pursuant to the Exchange
Act and incorporated by reference in the Registration
Statement and the Prospectus (except as to financial
statements and schedules included therein as to which
such counsel need not express any opinion) complied
when so filed as to form in all material respects with
the Exchange Act and the applicable rules and
regulations of the Commission thereunder, (2) has no
reason to believe that any part of the Registration
Statement (except as to financial statements and
schedules included therein, as to which such counsel
need not express any belief, and except for that part
of the Registration Statement that constitutes Forms T-
1), on the date such part became effective contained,
and the Registration Statement (except as to financial
statements and schedules included therein, as to which
such counsel need not express any belief, and except
for the part of the Registration Statement that
constitutes Forms T-1) as of the date of the
Underwriting Agreement contains any untrue statement of
a material fact or omitted or omits to state a material
fact required to be stated therein or necessary to make
the statements therein not misleading, (3) is of the
opinion that the Registration Statement and Prospectus
(except as to financial statements and schedules
included therein, as to which such counsel need not
express any opinion) comply as to form in all material
respects with the Securities Act and the applicable
rules and regulations of the Commission thereunder and
(4) has no reason to believe that the Prospectus
(except as to financial statements and schedules
included therein as to which such counsel need not
express any belief) as of the date such opinion is
delivered contains any untrue statement of a material
fact or omits to state a material fact necessary in
order to make the statements therein, in light of the
circumstances under which they were made, not
misleading.
(d) The Manager shall have received on the Closing
Date an opinion of Dow, Lohnes & Albertson, PLLC special
communications counsel for the Company, dated the Closing
Date, to the effect that:
(i) No approval of the Federal Communications
Commission is required for the issuance and sale of the
Offered Securities;
(ii) The statements under the caption
"Legislation and Regulation" in the most recent annual
report on Form 10-K, as supplemented by any reports on
Form 10-Q or 8-K filed subsequent to such annual report
on Form 10-K, incorporated by reference in the
Prospectus, insofar as they are, or refer to,
statements of federal communications law or legal
conclusions with respect to federal communications law,
have been reviewed by such counsel and, taken together,
present the information required to make such
statements of federal law or legal conclusions, in
light of the circumstances in which they were made,
accurate in all respects material to the business of
the Company as described in the Prospectus; and
(iii) The execution and delivery by the Issuer
Trust of the Underwriting Agreement or by the Company
of its obligations under the Underwriting Agreement,
the Subordinated Debt Indenture, the Trust Agreement,
the Guarantee and any Delayed Delivery Contracts, and
the fulfillment of the terms set forth therein do not
violate any statute, regulation or other law of the
United States relating specifically to the cable
communications industry or, to such counsel's
knowledge, 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 the Company or any of its subsidiaries,
which violation would have a material adverse effect on
the Company and its subsidiaries, taken as a whole.
[(e) The Manager shall have received on the
Closing Date an opinion of [________], special counsel for
the Underwriters, dated the Closing Date, covering the
matters referred to in subparagraphs (iv), (v), (vi), (vii),
(viii), (xii) (but only as to statements in the Prospectus
under "Description of the Senior Debt Securities and
Subordinated Debt Securities," "Description of the
Guaranteed Trust Preferred Securities," "Description of
Units," "Description of the Guaranteed Trust Preferred
Securities Guarantees" and "Plan of Distribution"), and
(xiv) (2), (3) and (4) of paragraph (b) above.]
[With respect to subparagraph (ix) of paragraph (c) above,
Arthur R. Block, Esquire (or Thomas R. Nathan, Esquire) may state that his
opinion and belief are based upon his participation, or the participation of
someone under his supervision, in the preparation of the Registration
Statement and Prospectus and documents incorporated therein by reference and
review and discussion of the contents thereof, but are without independent
check or verification, except as specified. With respect to subparagraph (x)
of paragraph (b) above, Davis Polk & Wardwell and [ ] may state that
their opinion and belief are based upon their participation in the preparation
of the Registration Statement and Prospectus (but not including documents
incorporated therein by reference) and review and discussion of the contents
thereof (including documents incorporated therein by reference), but are
without independent check or verification, except as specified.]
(f) The Manager shall have received on the Closing Date
an opinion dated the Closing Date of Richards, Layton &
Finger, P.A., special Delaware counsel for the Issuer Trust
or the Company, or of other counsel satisfactory to the
Manager, to the effect that:
(i) the Issuer Trust has been duly created and is
validly existing in good standing as a business trust
under the Delaware Business Trust Act and under the
Trust Agreement and the Delaware Business Trust Act has
the trust power and authority to conduct its business,
all as described in the Registration Statement and
Prospectus;
(ii) assuming due authorization, execution and
delivery of the Trust Agreement by the Company, the
Administrators and the Issuer Trustees, the Trust
Agreement is a legal, valid and binding agreement of
the Company, the Administrators and the Issuer Trustees
and is enforceable against the Company, the
Administrators and the Issuer Trustees, in accordance
with its terms, subject, as to enforcement, to the
effect upon the Trust Agreement of (i) bankruptcy,
insolvency, moratorium, receivership, reorganization,
liquidation, fraudulent conveyance and transfer, and
other similar laws relating to or affecting the rights
and remedies of creditors generally, (ii) principles of
equity, including applicable law relating to fiduciary
duties (regardless of whether considered and applied in
a proceeding in equity or at law), and (iii) the effect
of applicable public policy on the enforceability of
provisions relating to indemnification or contribution;
(iii) under the Trust Agreement and the Delaware
Business Trust Act, the execution and delivery of the
Underwriting Agreement by the Issuer Trust, and the
performance by the Issuer Trust of its obligations
thereunder, have been duly authorized by all necessary
trust action on the part of the Issuer Trust;
(iv) the Preferred Securities have been duly
authorized by the Trust Agreement and are duly and
validly issued and, subject to the qualifications set
forth herein, will be fully paid and nonassessable
undivided beneficial interests in the assets of the
Issuer Trust; the holders of Preferred Securities, as
beneficial owners of the Issuer Trust, will be entitled
to the same limitation of personal liability extended
to stockholders of private corporations for profit
organized under the General Corporation Law of the
State of Delaware;
(v) the Common Securities have been duly
authorized by the Trust Agreement and are duly and
validly issued undivided beneficial interests in the
assets of the Trust;
(vi) under the Trust Agreement and the Delaware
Business Trust Act, the issuance of the Trust
Securities is not subject to preemptive rights;
(vii) the statements in the Basic Prospectus under
the caption "Trust Subsidiaries" and "Description of
the Guaranteed Trust Preferred Securities" insofar as
such statements constitute statements of Delaware law,
are fairly presented;
(viii) the issuance and the sale of the Trust
Securities by the Issuer Trust, the execution, delivery
and performance by the Issuer Trust of the Underwriting
Agreement, the consummation by the Issuer Trust of the
transactions contemplated by the Underwriting Agreement
and compliance by the Issuer Trust with its obligations
under the Underwriting Agreement do not violate (A) the
Certificate or the Trust Agreement, or (B) any
applicable Delaware law or Delaware administrative
regulation;
(ix) after due inquiry, limited to, and solely to
the extent disclosed on [a date immediately prior to]
the Closing Date, the court dockets for active cases of
the Court of Chancery of the State of Delaware in and
for New Castle County, Delaware, of the Superior Court
of the State of Delaware in and for New Castle County,
Delaware, and of the United States Federal District
Court sitting in the State of Delaware, we do not know
of any legal or governmental proceeding pending against
the Issuer Trust;
(x) no authorization, approval, consent or order
of any Delaware court or any Delaware governmental
authority or Delaware agency is required to be obtained
by the Issuer Trust solely in connection with the
issuance and sale of the Trust Securities; and
(xi) the Capital Security Holders (other than those
Capital Security Holders who reside or are domiciled in
the State of Delaware) will have no liability for
income taxes imposed by the State of Delaware solely as
a result of their participation in the Issuer Trust,
and the Issuer Trust will not be liable for any income
tax imposed by the State of Delaware.
In rendering such opinion, such counsel may note that Holders
of Trust Securities may be obligated, pursuant to the Trust Agreement, to (i)
provide indemnity and security in connection with and pay taxes or other
governmental charges arising from transfers of certificates for Trust
Securities and the issuance of replacement certificates for Trust Securities,
(ii) provide security and indemnity in connection with requests of or
directions to the Institutional Trustee to exercise its rights and remedies
under the Trust Agreement and (iii) undertake as a party litigant to pay costs
in any suit for the enforcement of any right or remedy under the Trust
Agreement or against the Institutional Trustee, to the extent provided in the
Trust Agreement.
(g) The Manager shall have received on the Closing Date
a letter, dated the Closing Date, in form and substance
satisfactory to the Manager, from the Company's independent
auditors, containing statements and information of the type
ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and
certain financial information contained in or incorporated
by reference into the Prospectus.
6. Covenants of the Company and the Issuer Trust. In further
consideration of the agreements of the Underwriters contained herein, each of
the Company and the Issuer Trust covenants as follows:
(a) To furnish the Manager, without charge, a conformed
copy of the Registration Statement (including exhibits and
all amendments thereto) and for delivery to each other
Underwriter a conformed copy of the Registration Statement
(without exhibits thereto) and, during the period mentioned
in paragraph (c) below, as many copies of the Prospectus,
any documents incorporated by reference therein and any
supplements and amendments thereto or to the Registration
Statement as the Manager may reasonably request.
(b) Before amending or supplementing the Registration
Statement or the Prospectus with respect to the Offered
Securities, to furnish to the Manager a copy of each such
proposed amendment or supplement and not to file any such
proposed amendment or supplement to which the Manager
reasonably objects.
(c) If, during such period after the first date of the
public offering of the Offered Securities as in the opinion
of counsel for the Underwriters the Prospectus is required
by law to be delivered in connection with sales by an
Underwriter or dealer, any event shall occur or condition
exist 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 when the
Prospectus is delivered to a purchaser, not misleading, or
if in the opinion of counsel for the Underwriters, it is
necessary to amend or supplement the Prospectus to comply
with law, forthwith to prepare and furnish, at its own
expense, to the Underwriters and to the dealers (whose names
and addresses the Manager will furnish to the Company and
the Issuer Trust) to which Offered Securities may have been
sold by the Manager on behalf of the Underwriters and to any
other dealers upon request, either amendments or supplements
to the Prospectus, satisfactory in all respects to the
Manager, so that the statements in the Prospectus as so
amended or supplemented will not, in the light of the
circumstances existing when the Prospectus is delivered to a
purchaser, be misleading or so that the Prospectus, as so
amended or supplemented, will comply with law and to cause
such amendments or supplements to be filed promptly with the
Commission.
(d) To endeavor to qualify the Offered Securities, the
Preferred Securities and the Guarantees for offer and sale
under the securities or blue sky laws of such jurisdictions
as the Manager shall reasonably request and to maintain such
qualifications for as long as the Manager shall reasonably
request.
(e) To make generally available to the Company's
security holders and to the Manager as soon as practicable
an earning statement covering a twelve month period
beginning on the first day of the first full fiscal quarter
after the date of the Underwriting Agreement, which earning
statement shall satisfy the provisions of Section 11(a) of
the Securities Act and the rules and regulations of the
Commission thereunder. If such fiscal quarter is the last
fiscal quarter of the Company's fiscal year, such earning
statement shall be made available not later than 90 days
after the close of the period covered thereby and in all
other cases shall be made available not later than 45 days
after the close of the period covered thereby.
(f) During the period beginning on the date of the
Underwriting Agreement and continuing to and including the
Closing Date, not to offer, sell, contract to sell or
otherwise dispose of any debt securities of the Company or
any securities with characteristics similar to those of the
Preferred Securities (other than (i) the Offered Securities
and (ii) commercial paper issued in the ordinary course of
business), without the prior written consent of the Manager.
(g) Whether or not any sale of Offered Securities is
consummated, to pay all expenses incident to the performance
of the Company's and the Issuer Trust's obligations under
this Agreement, including: (i) the preparation and filing
of the Registration Statement and the Prospectus and all
amendments and supplements thereto, (ii) the preparation,
issuance and delivery of the Offered Securities, (iii) the
fees and disbursements of the Company's counsel and
accountants, of the Issuer Trust's counsel and of the
Trustees and their counsel, (iv) the qualification of the
Offered Securities and, in the case of an offering of
Preferred Securities, the Preferred Securities and the
Guarantees under securities or blue sky laws in accordance
with the provisions of Section 6(d), including filing fees
and the fees and disbursements of counsel for the
Underwriters in connection therewith and in connection with
the preparation of any blue sky or Legal Investment
Memoranda, (v) the printing and delivery to the Underwriters
in quantities as hereinabove stated of copies of the
Registration Statement and all amendments thereto and of the
Prospectus and any amendments or supplements thereto, (vi)
the printing and delivery to the Underwriters of copies of
any blue sky or Legal Investment Memoranda, (vii) any fees
charged by rating agencies for the rating of the Offered
Securities, (viii) any expenses incurred by the Company or
the Issuer Trust in connection with a "road show"
presentation to potential investors, (ix) all document
production charges of counsel to the Underwriters (but not
including their fees for professional services in connection
with the preparation of this Agreement) and (x) any filing
fees in connection with any review of the offering of the
Offered Securities by the National Association of Securities
Dealers, Inc.
7. Indemnification and Contribution. The Company, or in the
case of an offering of Preferred Securities, each of the Company and the
Issuer Trust jointly and severally, agrees to indemnify and hold harmless
each Underwriter and each person, if any, who controls any 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 (including, without limitation, any legal or other expenses
reasonably incurred in connection with defending or investigating any such
action or claim) caused by any untrue statement or allegedly untrue
statement of a material fact contained in the Registration Statement or any
amendment thereof, any preliminary prospectus or the Prospectus (as amended
or supplemented if the Company shall have furnished any amendments or
supplements thereto), or caused by any omission or alleged omission to
state therein a material fact required to be stated therein or 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 allegedly untrue statement or omission based upon information
relating to any Underwriter furnished to the Company and the Issuer Trust
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 such
Underwriter, if a copy of the Prospectus (as then amended or supplemented
if the Company or the Issuer Trust shall have furnished any amendments or
supplements thereto) 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 written confirmation of the sale of the Offered
Securities to such person, and if the Prospectus (as so amended or
supplemented) would have cured the defect giving rise to such losses,
claims, damages or liabilities.
Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Issuer Trust, the Issuer Trustees, the
Administrators, the Company, its directors, its officers who sign the
Registration Statement and each person, if any, who controls the Issuer Trust
or Company 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 Company and the Issuer Trust to each Underwriter, but only with
reference to information relating to such Underwriter furnished to the Company
or the Issuer Trust by such Underwriter in writing through the Manager
expressly for use in the Registration Statement, any preliminary prospectus,
the Prospectus or any amendments or supplements thereto.
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 (the "indemnified party") shall promptly notify the person against
whom such indemnity may be sought (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 respect of the legal
expenses of any indemnified party in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the 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. Such firm shall be designated in writing by the Manager,
in the case of parties indemnified pursuant to the second preceding paragraph,
and by the Company and the Issuer Trust, in the case of parties indemnified
pursuant to the first preceding paragraph. 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 the indemnified
party from and against any loss or liability by reason of such settlement or
judgment. Notwithstanding the foregoing sentence, if at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as contemplated by the third
sentence of this paragraph, the indemnifying party agrees that it shall be
liable for any settlement of any proceeding effected without its written
consent if (i) such settlement is entered into more than 30 days after receipt
by such indemnifying party of the aforesaid request and (ii) such indemnifying
party shall not have reimbursed the indemnified party in accordance with such
request prior to the date of such settlement. 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 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.
To the extent the indemnification provided for in the first or
second paragraph in this Section 7 is unavailable to an indemnified party or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then each indemnifying party under such paragraph, in lieu of
indemnifying such indemnified party thereunder, 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 Company and the Issuer Trust on the one hand
and the Underwriters on the other hand 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 Company and the Issuer Trust on the one hand and the
Underwriters on the other hand in connection with the statements or omissions
that resulted in such losses, claims, damages or liabilities, as well as any
other relevant equitable considerations. The relative benefits received by
the Company and the Issuer Trust on the one hand and the Underwriters on the
other hand in connection with the offering of the Offered Securities shall be
deemed to be in the same respective proportions as the net proceeds from the
offering of such Offered Securities (before deducting expenses) received by
the Company and the Issuer Trust and the total underwriting discounts and
commissions received by the Underwriters, in each case as set forth in the
table on the cover of the Prospectus Supplement, bear to the aggregate public
offering price of the Offered Securities. The relative fault of the Company
and the Issuer Trust on the one hand and of the Underwriters on the other hand
shall be determined by reference to, among other things, whether the untrue or
allegedly untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Company and the Issuer Trust or by the Underwriters and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Company, the Issuer Trust and the Underwriters agree that
it would not be just or equitable if contribution pursuant to this Section 7
were determined by pro rata allocation (even if the Underwriters were treated
as one entity for such purpose) or by any other method of allocation that 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 7, no Underwriter shall 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 that such Underwriter has otherwise been
required to pay by reason of such untrue or allegedly untrue statement or
omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' respective obligations to
contribute pursuant to this Section 7 are several in proportion to the
respective amounts of Offered Securities purchased by each of such
Underwriters and not joint. The remedies provided for in this Section 7 are
not exclusive and shall not limit any rights or remedies which may otherwise
be available to any indemnified party at law or in equity.
8. Termination. This Agreement shall be subject to
termination by notice given by the Manager to the Company, 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, any of the New York Stock Exchange,
the American Stock Exchange, the National Association of Securities
Dealers, Inc., the Chicago Board of Options Exchange, the Chicago
Mercantile Exchange or the Chicago Board of Trade, (ii) trading of any
securities of the Company or, in the case of an offering of Preferred
Securities, the Issuer Trust shall have been suspended on any exchange or
in any over-the-counter 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.
9. Defaulting Underwriters. If, on the Closing Date or the
Option Closing Date, as the case may be, any one or more of the
Underwriters shall fail or refuse to purchase Offered Securities that it
has or they have agreed to purchase hereunder on such date, and the
aggregate number 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 number of the Offered Securities to be purchased on
such date, the other Underwriters shall be obligated severally in the
proportions that the number of Firm Preferred Securities set forth opposite
their respective names herein bears to the aggregate number of Firm
Preferred Securities set forth opposite the names of all such non-
defaulting Underwriters, or in such other proportions as we may specify, to
purchase the Offered Preferred Securities which such defaulting Underwriter
or Underwriters agreed but failed or refused to purchase on such date;
provided that in no event shall the number of Offered Preferred Securities
that any Underwriter has agreed to purchase pursuant to this Agreement be
increased pursuant to this Section 9 by an amount in excess of one-ninth of
such number of Offered Preferred Securities without the written consent of
such Underwriter. If, on the Closing Date, any Underwriter or Underwriters
shall fail or refuse to purchase Firm Preferred Securities and the
aggregate number of Firm Preferred Securities with respect to which such
default occurs is more than one-tenth of the aggregate number of Firm
Preferred Securities to be purchased, and arrangements satisfactory to us
and the Company for the purchase of such Firm Preferred 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
Company. In any such case either we or the Company 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. If, on the Option Closing Date, any Underwriter or Underwriters
shall fail or refuse to purchase Additional Preferred Securities and the
aggregate number of Additional Preferred Securities with respect to which
such default occurs is more than one-tenth of the aggregate number of
Additional Preferred Securities to be purchased, the non-defaulting
Underwriters shall have the option to (i) terminate their obligation
hereunder to purchase Additional Preferred Securities or (ii) purchase not
less than the number of Additional Preferred Securities that such non-
defaulting Underwriters would have been obligated to purchase in the
absence of such default. 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.
If this Agreement shall be terminated by the Underwriters, or
any of them, because of any failure or refusal on the part of the Company or
the Issuer Trust to comply with the terms or to fulfill any of the conditions
of this Agreement, or if for any reason the Company or the Issuer Trust shall
be unable to perform its obligations under this Agreement, the Company and the
Issuer jointly and severally agree to reimburse the Underwriters or such
Underwriters as have so terminated this Agreement with respect to themselves,
severally, for all out-of-pocket expenses (including the fees and
disbursements of their counsel) reasonably incurred by such Underwriters in
connection with this Agreement or the offering of the Offered Securities.
10. Representations and Indemnities to Survive. The respective
indemnity and contribution agreements and the representations, warranties and
other statements of the Issuer Trust, the Administrators, the Company, its
officers and the Underwriters set forth in this Agreement will remain in full
force and effect, regardless of (i) any termination of this Agreement, (ii)
any investigation made by or on behalf of any Underwriter or any person
controlling any Underwriter or by or on behalf of the Company, its officers or
directors or any person controlling the Company or on behalf of the Issuer
Trust, the Issuer Trustee, the Administrators, or any person controlling the
Issuer Trust and (iii) acceptance of and payment for any of the Offered
Securities.
11. Successors. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective successors and the
officers, directors, Administrators and Issuer Trustees and controlling
persons referred to in Section 8, and no other person will have any right or
obligation hereunder.
12. 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.
13. Applicable Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York.
14. 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.
SCHEDULE I
DELAYED DELIVERY CONTRACT
________, 19__
Dear Sirs:
The undersigned hereby agrees to purchase from Comcast Cable
Communications, Inc., a Delaware corporation (the "Company"), and the Company
agrees to sell to the undersigned the Company's securities described in
Schedule A annexed hereto (the "Securities"), offered by the Company's
Prospectus dated , 19__ and Prospectus Supplement dated , 19__,
receipt of copies of which are hereby acknowledged, at a purchase price stated
in Schedule A and on the further terms and conditions set forth in this
agreement. The undersigned does not contemplate selling Securities prior to
making payment therefor.
The undersigned will purchase from the Company Securities in
the principal amount and numbers on the delivery dates set forth in Schedule
A. Each such date on which Securities are to be purchased hereunder is
hereinafter referred to as a "Delivery Date".
Payment for the Securities which the undersigned has agreed to
purchase on each Delivery Date shall be made in immediately available funds at
the office of , New York, N.Y., at
10:00 A.M. (New York time) on the Delivery Date, upon delivery to the
undersigned of the Securities to be purchased by the undersigned on the
Delivery Date, in such denominations and registered in such names as the
undersigned may designate by written or telegraphic communication addressed to
the Company not less than five full business days prior to the Delivery Date.
The obligation of the undersigned to take delivery of and make
payment for the Securities on the Delivery Date shall be subject to the
conditions that (1) the purchase of Securities to be made by the undersigned
shall not at the time of delivery be prohibited under the laws of the
jurisdiction to which the undersigned is subject and (2) the Company shall
have sold, and delivery shall have taken place to the underwriters (the
"Underwriters") named in the Prospectus Supplement referred to above of, such
part of the Securities as is to be sold to them. Promptly after completion of
sale and delivery to the Underwriters, the Company will mail or deliver to the
undersigned at its address set forth below notice to such effect, accompanied
by a copy of the opinion of counsel for the Company delivered to the
Underwriters in connection therewith.
Failure to take delivery of and make payment for Securities by
any purchaser under any other Delayed Delivery Contract shall not relieve the
undersigned of its obligations under this agreement.
This agreement will inure to the benefit of and be binding upon
the parties hereto and their respective successors, but will not be assignable
by either party hereto without the written consent of the other.
If this agreement is acceptable to the Company, it is requested
that the Company sign the form of acceptance below and mail or deliver one of
the counterparts hereof to the undersigned at its address set forth below.
This will become a binding agreement, as of the date first above written,
between the Company and the undersigned when such counterpart is so mailed or
delivered.
This agreement shall be governed by and construed in accordance
with the laws of the State of New York.
Yours very truly,
(Purchaser)
By:___________________________
Name:
Title:
Address:
Accepted:
COMCAST CABLE COMMUNICATIONS, INC.
By:________________________________
Name:
Title:
PURCHASER -- PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone and department of the representative of
the Purchaser with whom details of delivery on the Delivery Date may be
discussed is as follows: (Please print.)
Telephone No.
(including area
Name code) Department
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SCHEDULE A
Securities:
Principal amounts or Numbers to be Purchased:
Purchase Price:
Delivery Dates:
SCHEDULE II
Comcast Holdings, Inc. (DE)
Comcast MHCP Holdings, L.L.C. (DE)
Comcast SCH Holdings, Inc. (CO)
Comcast Storer, Inc. (DE)
Storer Communications, Inc. (DE)