360 COMMUNICATIONS COMPANY
$200,000,000 7.60% Senior Notes Due 2009
Underwriting Agreement
New York, New York
March 12, 1997
Salomon Brothers Inc
Lehman Brothers Inc.
J.P. Morgan Securities Inc.
c/o Salomon Brothers Inc
Seven World Trade Center
New York, NY 10048
Ladies and Gentlemen:
360 Communications Company, a Delaware corporation (the
"Company"), proposes to sell severally to each of the underwriters named in
Schedule I hereto (the "Underwriters") $200,000,000 in aggregate principal
amount of the Company's 7.60% Senior Notes Due 2009 (the "Securities"). The
Company proposes to issue the Securities under an Indenture (the "Indenture")
dated as of March 1, 1997 between the Company and Citibank, N.A., as Trustee
(the "Trustee").
1. Representations and Warranties. The Company represents and
warrants to, and agrees with, each Underwriter as set forth below in this
Section 1. Certain terms used in this Section 1 are defined in paragraph (c)
hereof.
(a) The Company meets the requirements for use of Form S-3
under the Securities Act of 1933, as amended (the "Act"), and has filed
with the Securities and Exchange Commission (the "Commission") a
registration statement (file number 333-21331) on such Form, including
a basic prospectus, for the registration under the Act of the offering
and sale of the Company's debt securities (the "Debt Securities")
and/or warrants to purchase Debt
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Securities, including the Securities. The Company may have filed one or
more amendments thereto, and may have used a Preliminary Final
Prospectus, each of which has previously been furnished to you. Such
registration statement, as so amended, has become effective. The
Company will next file with the Commission pursuant to the applicable
paragraph of Rule 424(b) a final prospectus supplement to the Basic
Prospectus relating to the Securities and the offering thereof. Except
to the extent the Underwriters shall agree in writing to a
modification, such final prospectus supplement shall be in all
substantive respects in the form furnished to the Underwriters prior to
the Execution Time or, to the extent not completed at the Execution
Time, shall contain only such specific additional information and other
changes (beyond that contained in the Basic Prospectus and any
Preliminary Final Prospectus) as the Company has advised the
Underwriters, prior to the Execution Time, will be included or made
therein.
(b) On the Effective Date, the Registration Statement did or
will, and when the Final Prospectus is first filed (if required) in
accordance with Rule 424(b) and on the Closing Date, the Final
Prospectus (and any supplements thereto) will, comply in all material
respects with the applicable requirements of the Act, the Securities
Exchange Act of 1934, as amended (the "Exchange Act") and the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act") and the
respective rules and regulations of the Commission thereunder; on the
Effective Date, the Registration Statement did not or will not contain
any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to make the
statements therein not misleading; on the Effective Date, and on the
Closing Date the Indenture did or will comply in all material respects
with the applicable requirements of the Trust Indenture Act and the
rules and regulations of the Commission thereunder; and, on the
Effective Date, the Final Prospectus, if not filed pursuant to Rule
424(b), did not or will not, and on the date of any filing pursuant to
Rule 424(b) and on the Closing Date, the
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Final Prospectus (together with any supplement thereto) will not,
include any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
provided, however, that the Company makes no representations or
warranties as to (i) that part of the Registration Statement which
shall constitute the Statement of Eligibility and Qualification (Form
T-1) under the Trust Indenture Act of the Trustee or (ii) the
information contained in or omitted from the Registration Statement, or
the Final Prospectus (or any supplement thereto) in reliance upon and
in conformity with information furnished in writing to the Company by
or on behalf of any Underwriter specifically for inclusion in the
Registration Statement or the Final Prospectus (or any supplement
thereto).
(c) The terms which follow, when used in this Agreement, shall
have the meanings indicated. The term "Effective Date" shall mean each
date that the Registra tion Statement and any post-effective amendment
or amendments thereto became or become effective. "Execu tion Time"
shall mean the date and time that this Agreement is executed and
delivered by the parties hereto. "Basic Prospectus" shall mean the
prospectus referred to in paragraph (a) of this Section 1 contained in
the Registration Statement at the Effective Date. "Preliminary Final
Prospectus" shall mean any preliminary prospectus supplement to the
Basic Prospectus which describes the Securities and the proposed
offering thereof and is used prior to filing of the Final Prospectus.
"Final Prospectus" shall mean the prospectus supplement relating to the
Securities that is first filed pursuant to Rule 424(b) after the
Execution Time, together with the Basic Prospectus. "Registration
Statement" shall mean the registration statement referred to in the
first sentence of paragraph (a) of this Section 1, including
incorporated documents, exhibits and financial statements, as amended
at the Execution Time and, in the event any post-effective amendment
thereto becomes effective prior to the Closing Date (as
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hereinafter defined), shall also mean such registration statement as so
amended. "Rule 424(b)" and "Regulation S- K" refer to such rules or
regulations under the Act. Any reference herein to the Registration
Statement, the Basic Prospectus, any Preliminary Final Prospectus or
the Final Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to Item 12 of Form
S-3 which were filed under the Exchange Act on or before the Effective
Date of the Registration Statement or the issue date of the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus,
as the case may be; and any reference herein to the terms "amend,"
"amendment" or "supplement" with respect to the Registration Statement,
the Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus shall be deemed to refer to and include the filing of any
document under the Exchange Act after the Effective Date of the
Registration Statement or the issue date of the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, as the case may
be, deemed to be incorporated therein by reference.
2. Purchase and Sale. Subject to the terms and conditions and
in reliance upon the representations and warranties herein set forth, the
Company agrees to sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from the Company, the principal amount of
the Securities set forth opposite such Underwriter's name in Schedule I hereto
at a purchase price of 99.163% of the principal amount of the Securities, plus
accrued interest on the Securities from March 17, 1997, to the Closing Date.
3. Delivery and Payment. Delivery of and payment for the
Securities shall be made at 10:00 a.m., New York City time, on March 17, 1997,
or such later date (not later than March 24, 1997) as the Underwriters shall
designate, which date and time may be postponed by agreement between the
Underwriters and the Company or as provided in Section 9 hereof (such date and
time of delivery and payment for the Securities being herein called the "Closing
Date"). Delivery of the Securities shall be made on the instructions of the
Underwriters for the respective accounts of the several
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Underwriters against payment by the several Underwriters of the purchase price
thereof to or upon the order of the Company in immediately available funds.
Delivery of, and payment for, the Securities shall be made through the
facilities of the Depository Trust Company.
4. Offering by Underwriters. It is understood that the
several Underwriters propose to offer the Securities for sale to the public as
set forth in the Final Prospectus.
5. Agreements. The Company agrees with the several
Underwriters that:
(a) Prior to the termination of the offering of the
Securities, the Company will not file any amendment of the Registration
Statement or supplement (including the Final Prospectus) to the Basic
Prospectus without your prior consent, which consent shall not be
unreasonably withheld. Subject to the foregoing sentence, (i) the
Company will cause the Final Prospectus, properly completed, and any
supplement thereto to be filed with the Commission pursuant to the
applicable paragraph of Rule 424(b) within the time period prescribed
therein and will provide evidence satisfactory to the Underwriters of
such timely filing and (ii) the Company will use its best reasonable
efforts to cause any amendment to the Registration Statement to become
effective. The Company will promptly advise the Underwriters (i) when
the Final Prospectus, and any supplement thereto, shall have been filed
with the Commission pursuant to the applicable paragraph of Rule
424(b), (ii) when, prior to termination of the offering of the
Securities, any amendment to the Registration Statement shall have been
filed or become effective, (iii) of any request by the Commission for
any amendment of the Registration Statement or supplement to the Final
Prospectus or for any additional information, (iv) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any
proceeding for that purpose and (v) of the receipt by the Company of
any notification with respect to the suspension of the qualification of
the Securities for
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sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose. The Company will use its best reasonable
efforts to prevent the issuance of any such stop order and, if issued,
to obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any event occurs
as a result of which the Final Pro spectus as then supplemented would
include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein in the light of
the circumstances under which they were made not misleading, or if it
shall be necessary to amend the Registration Statement or supplement
the Final Prospectus to comply, in all material respects, with the Act
or the Exchange Act or the respective rules and regulations of the
Commission thereunder, the Company promptly will notify the
Underwriters and prepare and file with the Commission, subject to the
first sentence of paragraph (a) of this Section 5, an amendment or
supplement which is reasonably necessary to correct such statement or
omission or effect such compliance.
(c) As soon as practicable, the Company will make generally
available to its security holders and to the Underwriters an earnings
statement or statements of the Company and its subsidiaries which will
satisfy the provisions of Section 11(a) of the Act and Rule 158 under
the Act.
(d) The Company will furnish to the Underwriters and counsel
for the Underwriters, without charge, signed copies of the Registration
Statement (including exhibits thereto) and to each other Underwriter a
copy of the Registration Statement (without exhibits thereto) and, so
long as delivery of a prospectus by an Underwriter or dealer may be
required by the Act, as many copies of each Preliminary Final
Prospectus and the Final Prospectus and any supplement thereto as the
Underwriters may reasonably request. The Company will pay the expenses
of printing
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or other production of all documents relating to the offering.
(e) The Company will cooperate with you and your counsel in
connection with obtaining the qualification of the Securities for sale
under the laws of such jurisdictions in the United States as the
Underwriters may designate, will maintain such qualifications in effect
so long as required for the distribution of the Securities; provided,
however, that the Company shall not be obligated to qualify as a
foreign corporation to do business under the laws of any jurisdiction
in which it shall not then be qualified but for the requirements of
this Section 5(e), to subject itself to taxation in any such
jurisdiction to which it shall not then be so subject or to consent to
general service of process in any such jurisdiction to which it shall
not than be so subject.
(f) The Company will not, for a period of 30 days following
the Execution Time, without the prior written consent of Salomon
Brothers Inc, offer, sell or contract to sell, or otherwise dispose of
(or enter into any transaction which is designed to, or could be
expected to, result in the disposition by any person of) directly or
indirectly, or announce the offering of, any Debt Securities (other
than the Securities) and having a maturity of more than one year from
the date of issue.
6. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Securities shall be subject to
the accuracy of the representations and warranties on the part of the Company
contained herein as of the Execution Time and the Closing Date, to the accuracy
of the statements of the Company made in any certificates pursuant to the
provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, will be
filed in the manner and within the time period required by Rule 424(b);
and no stop order
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suspending the effectiveness of the Registration Statement shall have
been issued and no proceedings for that purpose shall have been
instituted or threatened.
(b) The Company shall have furnished to the Underwriters the
opinion of Kevin C. Gallagher, General Counsel of the Company, dated
the Closing Date, to the effect that:
(i) each of the Company and the subsidiaries named in
Schedule II hereto (individually a "Subsidiary" and
collectively the "Subsidiaries") has been duly incorporated
and is validly existing as a corporation in good standing
under the laws of the jurisdiction in which it is chartered or
organized, with full corporate power and authority to own its
properties and conduct its business as described in the Final
Prospectus, and is duly qualified to do business as a foreign
corporation and is in good standing under the laws of each
jurisdiction which requires such qualification wherein it owns
or leases material properties or conducts material business,
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 subsidiaries taken as a whole; and each of
the limited partnerships named in Schedule III hereto
(individually a "Limited Partnership" and collectively the
"Limited Partnerships") has been duly formed and is validly
existing as a limited partnership in good standing under the
laws of the jurisdiction in which it is organized;
(ii) The Securities conform in all material respects
to the description thereof contained in the Final Prospectus;
(iii) the Indenture has been duly authorized,
executed and delivered, has been duly qualified under the
Trust Indenture Act, and constitutes a legal, valid and
binding instrument enforceable
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against the Company in accordance with its terms (subject, as
to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency (including, without limitation, all
laws relating to fraudulent transfers), moratorium or other
laws affecting creditors' rights generally from time to time
in effect and to general principles of equity (regardless of
whether enforcement is considered a proceeding in equity or at
law)); and the Securities have been duly authorized and, when
executed and authenticated in accordance with the provisions
of the Indenture and delivered to and paid for by the
Underwriters pursuant to this Agreement, will constitute
legal, valid and binding obligations of the Company entitled
to the benefits of the Indenture (subject, as to enforcement
of remedies, to applicable bankruptcy, reorganization,
insolvency (including, without limitation, all laws relating
to fraudulent transfers), moratorium or other laws affecting
creditors' rights generally from time to time in effect and to
general principles of equity (regardless of whether
enforcement is considered a proceeding in equity or at law));
(iv) to the best knowledge of such counsel, there is
no pending or threatened action, suit or proceeding before any
court or governmental agency, authority or body or any
arbitrator involving the Company or any of its subsidiaries or
Limited Partnerships of a character required to be disclosed
in the Registration Statement and the Final Prospectus which
is not disclosed in all material respects in the Registration
Statement and the Final Prospectus and the statements included
or incorporated in the Registration Statement and the Final
Prospectus describing any legal proceedings relating to the
Company fairly summarize such matters;
(v) the Registration Statement has become effective
under the Act; to the best knowledge of
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such counsel, no stop order suspending the effec tiveness of
the Registration Statement has been issued, no proceedings for
that purpose have been instituted or threatened; the
Registration State ment at the Effective Date, and the Final
Pro spectus, at the time it was filed with the Commission
pursuant to Rule 424(b) (other than the financial statements
and other financial and statistical information contained
therein as to which such counsel need express no opinion),
complied] as to form in all material respects with the
applicable requirements of the Act and the Trust Indenture Act
and the respective rules and regulations of the Commission
thereunder; and the documents incorporated by reference in the
Registration Statement and the Final Prospectus, at the time
such documents were filed with the Commission (other than the
financial statements and other financial and statistical
information contained therein as to which such counsel need
express no opinion), complied as to form in all material
respects with the applicable requirements of the Exchange Act
and the rules and regulations of the Commission thereunder;
(vi) while such counsel has not independently
verified, and is not passing upon or assuming responsibility
for, the accuracy, completeness or fairness of the statements
or representations contained in the Registration Statement or
Final Prospectus, no facts have come to the attention of such
counsel which would lead such counsel to believe that either
(A) at the Effective Date, the Registration Statement
contained any untrue statement of a material fact or omitted
to state any material fact required to be stated therein or
necessary to make the statements therein not misleading (other
than the financial statements, schedules and other financial
and statistical information contained therein as to which such
counsel need express no belief) or (B) the Final Prospectus,
at the date it was filed with the
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Commission pursuant to Rule 424(b) and at the date of such
opinion, included or includes any untrue statement of a
material fact or omitted or omits to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading
(other than the financial statements, schedules and other
financial and statistical information contained therein as to
which such counsel need express no belief);
(vii) this Agreement has been duly authorized,
executed and delivered by the Company;
(viii) to the best knowledge of such counsel, no
consent, approval, authorization or order of any court or
governmental agency or body is required for the consummation
of the transactions contemplated herein, except such as have
been obtained under the Act and such as may be required under
the blue sky laws of any jurisdiction in connection with the
purchase and distribution of the Securities by the
Underwriters and such other approvals (specified in such
opinion) as have been obtained; and
(ix) neither the execution and delivery of the
Indenture, the issuance and sale of the Securities, nor the
consummation of any other of the transactions herein
contemplated nor the fulfill ment of the terms hereof (a) will
conflict with, result in a breach or violation of, or
constitute a default under any law or the charter or by-laws
of the Company or (b) the terms of any indenture or other
agreement or instrument known to such counsel and to which the
Company or any of its subsidiaries is a party or bound or any
judgment, order or decree known to such counsel to be
applicable to the Company or any of its subsidiaries of any
court, regulatory body, administrative agency, governmental
body or arbitrator having jurisdiction over the Company or any
of its subsidiaries.
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In rendering such opinion, such counsel may rely (A) as to
matters involving the application of laws of any jurisdiction
other than the State of Delaware or the Federal laws of the
United States, to the extent they deem proper and specified in
such opinion, upon the opinion of other counsel of good
standing whom they believe to be reliable and who are
satisfactory to counsel for the Underwriters and (B) as to
matters of fact, to the extent they deem proper, on
certificates of responsible officers of the Company and public
officials. References to the Final Prospectus in this
paragraph (b) include any supplements thereto at the Closing
Date.
(c) The Underwriters shall have received from Cravath, Swaine
& Moore, counsel for the Underwriters, such opinion or opinions, dated
the Closing Date, with respect to the issuance and sale of the
Securities, the Indenture, the Registration Statement, the Final
Prospectus (together with any supplement thereto) and other related
matters as the Underwriters may reasonably require, and the Company
shall have furnished to such counsel such documents as they request for
the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Underwriters a
certificate of the Company, signed by the President or any Executive or
Senior Vice President of the Company and the principal financial or
accounting officer of the Company, dated the Closing Date, to the
effect that the signers of such certificate have carefully examined the
Registration Statement, the Final Prospectus, any supplements to the
Final Prospectus and this Agreement and that:
(i) the representations and warranties of the Company
in this Agreement are true and correct in all material
respects on and as of the Closing Date with the same effect as
if made on the Closing Date and the Company has complied with
all the agree ments and satisfied all the conditions on its
part to be performed or satisfied at or prior to the Closing
Date;
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(ii) no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings
for that purpose have been instituted or, to the Company's
knowledge, threat ened; and
(iii) since the date of the most recent finan cial
statements included in the Final Prospectus (exclusive of any
supplement thereto), there has been no material adverse change
in the condition (financial or other), earnings, business or
proper ties of the Company and its subsidiaries, whether or
not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Final
Prospectus (exclusive of any supplement thereto).
(e) At the Closing Date, Ernst & Young LLP shall have
furnished to the Underwriters a letter dated as of the Closing Date, in
form and substance satisfactory to the Underwriters, confirming that
they are independent accountants within the meaning of the Act and the
Exchange Act and the respective applicable published rules and
regulations thereunder and stating in effect that:
(i) in their opinion the audited consolidated
financial statements and financial statement schedule included
or incorporated in the Registration Statement and the Final
Prospectus and the audited consolidated financial statements
as of and for the year ended December 31, 1996 not included or
incorporated by reference and reported on by them comply in
form in all material respects with the applicable accounting
requirements of the Act and the Exchange Act the related
published rules and regulations;
(ii) on the basis of a reading of the latest
unaudited financial statements made available by the Company
and its subsidiaries; a reading of the minutes of the meetings
of the stockholders,
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directors and executive, finance and audit committees of the
Company and its subsidiaries; and inquiries of certain
officials of the Company who have responsibility for financial
and accounting matters of the Company and its subsidiaries as
to transactions and events subsequent to December 31, 1996,
nothing came to their attention which caused them to believe
that, with respect to the period subsequent to December 31,
1996, there were any changes, at a specified date not more
than five business days prior to the date of the letter, in
the common stock of the Company or any increases in long term
debt of the Company and its subsidiaries or any decreases in
the shareowners' equity or working capital of the Company and
its subsidiaries as compared with the amounts shown on the
December 31, 1996 audited consolidated balance sheet of the
Company, or for the period from December 31, 1996 to February
28, 1997 there were any decreases, as compared with a
comparable period during the two month period ended November
30 1996, in total operating revenues, operating income plus
depreciation and amortization or operating income, except in
all instances for changes, increases or decreases set forth in
such letter, in which case the letter shall be accompanied by
an explanation by the Company as to the significance thereof
unless said explanation is not deemed necessary by the
Underwriters;
(iii) they have performed certain other speci fied
procedures as a result of which they deter mined that certain
information of an accounting, financial or statistical nature
(which is limited to accounting, financial or statistical
information derived from the general accounting records of the
Company and its subsidiaries) set forth in the Registration
Statement and the Final Prospectus, including the information
included or incorporated in Item 7 of the Company's Annual
Report on Form 10-K, incorporated in the Registration
Statement and the Final Prospectus, and the information
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included in the "Management's Discussion and Analysis of
Financial Condition and Results of Operations" included or
incorporated in the Company's Quarterly Reports on Form 10-Q,
incorporated in the Registration Statement and the Final
Prospectus, agrees with the accounting records of the Company
and its subsidiaries, excluding any questions of legal
interpretation; and
(iv) on the basis of a reading of the unaudited pro
forma consolidated financial statements included or
incorporated in the Registration Statement and the Final
Prospectus (the "pro forma financial statements"); carrying
out certain specified procedures; inquiries of certain
officials of the Company who have responsibility for financial
and accounting matters; and proving the arithmetic accuracy of
the application of the pro forma adjustments to the historical
amounts in the pro forma financial statements, nothing came to
their attention which caused them to believe that the pro
forma financial statements do not comply in form in all
material respects with the applicable accounting requirements
of Rule 11-02 of Regulation S-X or that the pro forma
adjustments have not been properly applied to the historical
amounts in the compilation of such statements.
References to the Final Prospectus in this paragraph (e)
include any supplement thereto at the date of the letter.
(f) Subsequent to the Execution Time or, if earlier, the dates
as of which information is given in the Registration Statement
(exclusive of any amendment thereof) and the Final Prospectus
(exclusive of any supplement thereto), there shall not have been (i)
any change, increase or decrease specified in the letter or letters
referred to in paragraph (e) of this Section 6 or (ii) any change, or
any development involving a
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prospective change, in or affecting the business or properties of the
Company and its subsidiaries the effect of which, in any case referred
to in clause (i) or (ii) above, is, in the judgment of the
Underwriters, so material and adverse as to make it impractical or
inadvisable to proceed with the offering or delivery of the Securities
as contemplated by the Registration State ment (exclusive of any
amendment thereof) and the Final Prospectus (exclusive of any
supplement thereto).
(g) Subsequent to the Execution Time, there shall not have
been any decrease in the rating of any of the Company's debt securities
by any "nationally recognized statistical rating organization" (as
defined for purposes of Rule 436(g) under the Act) or any notice given
of any intended or potential decrease in any such rating or of a
possible change in any such rating that does not indicate the direction
of the possible change.
(h) Prior to the Closing Date, the Company shall have
furnished to the Underwriters such further information, certificates
and documents as the Underwriters may reasonably request.
If any of the conditions specified in this Section 6 shall not
have been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Underwriters and counsel for the
Underwriters, this Agreement and all obliga tions of the Underwriters hereunder
may be canceled at, or at any time prior to, the Closing Date by the
Underwriters. Notice of such cancellation shall be given to the Company in
writing or by telephone or telegraph confirmed in writing.
The documents required to be delivered by this Section 6 shall
be delivered at the office of Cravath, Swaine & Moore, counsel for the
Underwriters, at Worldwide Plaza, 825 Eighth Avenue, New York, New York, on the
Closing Date.
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7. Reimbursement of Underwriters' Expenses. If the sale of
the Securities provided for herein is not consummated because any condition to
the obligations of the Underwriters set forth in Section 6 hereof is not
satisfied, because of any termination pursuant to Section 10 hereof or because
of any refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof other than by reason of a
default by any of the Underwriters, the Company will reimburse the Underwriters
severally upon demand for all out-of-pocket expenses (including reasonable fees
and disbursements of counsel) that shall have been incurred by them in
connection with the proposed purchase and sale of the Securities.
8. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless each Under writer, the directors, officers,
employees and agents of each Underwriter and each person who controls any
Underwriter within the meaning of either the Act or the Exchange Act against any
and all losses, claims, damages or liabilities, joint or several, to which they
or any of them may become subject under the Act, the Exchange Act or other
Federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement as
originally filed or in any amendment thereof, or in the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, or in any amendment
thereof or supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and agrees to
reimburse each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission (i) made
therein in reliance upon and in conformity with written information
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furnished to the Company by or on behalf of any Underwriter specifically for
inclusion therein, (ii) in respect of such part of the Registration Statement
that constitutes the Statement of Eligibility and Qualification (Form T-1) under
the Trust Indenture Act of the Trustee or (iii) in respect of the Final
Prospectus relating to the sale of Securities to any person if the Final
Prospectus shall have been amended or supplemented to correct such untrue
statement or alleged untrue statement or omission or alleged omission and a copy
of the Final Prospectus (exclusive of the documents incorporated therein) shall
not have been given or sent to such person by or on behalf of any Underwriter
with or prior to the written confirmation of the sale involved, unless, with
respect to the delivery of the Final Prospectus as amended or supplemented, the
untrue statement or alleged untrue statement or omission or alleged omission was
not corrected in the Final Prospectus as so amended or supplemented at the time
of such written confirmation. This indemnity agreement will be in addition to
any liability which the Company may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, each of its directors (including any person who, with his
consent, is named in the Registration Statement as about to become a director of
the Company), officers, employees and agents and each person who controls the
Company within the meaning of either the Act or the Exchange Act, to the same
extent as the foregoing indemnity from the Company to each Underwriter, but only
with reference to written information relating to such Underwriter furnished to
the Company by or on behalf of such Underwriter specifically for inclusion in
the documents referred to in the foregoing indemnity. This indemnity agreement
will be in addition to any liability which any Underwriter may otherwise have.
The Company acknowledges that the statements set forth in the last paragraph of
the cover page, the first paragraph on page S-2, the second and third sentences
of the fifth paragraph under the heading "Underwriting" and the last paragraph
under the heading "Underwriting" in the Final Prospectus constitute the only
information furnished in writing by or on behalf of the several Underwriters for
inclusion in the Basic Prospectus, any Preliminary Final
18
Prospectus or the Final Prospectus, and you, as the Underwriters, confirm that
such statements are correct.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of (i) the commencement of any action or (ii) the intention
or threat to commence an action, such indemnified party will, if a claim in
respect thereof is to be made against the indemnifying party under this Section
8, notify the indemnifying party in writing of the commencement or intended or
threatened commencement thereof; but the failure so to notify the indemnifying
party (i) will not relieve it from liability under paragraph (a) or (b) above
unless and to the extent it did not otherwise learn of such action and such
failure results in the forfeiture by the indemnifying party of substantial
rights or defenses or is otherwise materially prejudiced by such failure and
(ii) will not, in any event, relieve the indemnifying party from any obligations
to any indemnified party other than the indemnification obligation provided in
paragraph (a) or (b) above. The indemnifying party shall be entitled to appoint
counsel of the indemnifying party's choice at the indemnifying party's expense
to represent the indemnified party in any action for which indemnification is
sought (in which case the indemnifying party shall not thereafter be responsible
for the fees and expenses of any separate counsel retained by the indemnified
party or parties except as set forth below); provided, however, that such
counsel shall be reasonably satisfactory to the indemnified party.
Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall have
the right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses of such
separate counsel if (i) the use of counsel chosen by the indemnifying party to
represent the indemnified party would present such counsel with a conflict of
interest, (ii) the actual or potential defendants in, or targets of, any such
action include both the indemnified party and the indemnifying party and the
indem nified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, (iii) the
indemnifying
19
party shall not have employed counsel satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after notice of the
institution of such action or (iv) the indemnifying party shall authorize the
indemnified party to employ separate counsel at the expense of the indemnifying
party; provided, however, that the indemnifying party shall not, in respect of
the legal fees and expenses of any indemnified party 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. An indemnifying party
will not, without the prior written consent of the indemnified parties, settle
or compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding. No indemnified party, without the prior written consent of
the indemnifying party, will settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnifying party is an actual or potential party
to such claim or action) unless the indemnifying party fails to perform its
obligations hereunder.
(d) In the event that the indemnity provided in paragraph (a)
or (b) of this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company and the Underwriters agree to
contribute to the aggregate losses, claims, damages and liabilities (including
legal or other expenses reasonably incurred in connection with investigating or
defending same) (collectively "Losses") to which the Company and one or more of
the Under writers may be subject in such proportion as is appropriate to reflect
the relative benefits received by the Company and by the Underwriters from the
offering of the Securities; provided, however, that in no case shall any
Underwriter (except as may be provided in any agreement among underwriters
20
relating to the offering of the Securities) be responsible for any amount in
excess of the underwriting discount or commission applicable to the Securities
purchased by such Underwriter hereunder. If the allocation provided by the
immediately preceding sentence is unavailable for any reason, the Company and
the Underwriters shall contribute in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of the
Company and of the Underwriters in connection with the statements or omissions
which resulted in such Losses as well as any other relevant equitable
considerations. Benefits received by the Company shall be deemed to be equal to
the total net proceeds from the offering (before deducting expenses) received by
it, and benefits received by the Underwriters shall be deemed to be equal to the
total underwriting discounts and commissions, in each case as set forth on the
cover page of the Final Prospectus. Relative fault shall be determined by
reference to whether any alleged untrue statement or omission relates to
information provided by the Company or the Underwriters and the parties relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Company and the Underwriters agree that it would
not be just and equitable if contribution were determined by pro rata allocation
or any other method of allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of this
paragraph (d), no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. For purposes of
this Section 8, each person who controls an Underwriter within the meaning of
either the Act or the Exchange Act and each director, officer, employee and
agent of an Underwriter shall have the same rights to contribution as such
Underwriter, and each person who controls the Company within the meaning of
either the Act or the Exchange Act, each director (including any person who,
with his consent, is named in the Registration Statement as about to become a
director of the Company), officer, employee and agent of the Company shall have
the same rights to contribution as the Company, subject in each case to the
applicable terms and conditions of this paragraph (d).
21
9. Default by an Underwriter. If any one or more Underwriters
shall fail to purchase and pay for any of the Securities agreed to be purchased
by such Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the principal amount of
Securities set forth opposite their names in Schedule I hereto bears to the
aggregate principal amount of Securities set forth opposite the names of all the
remaining Underwriters) the Securities which the defaulting Underwriter or Under
writers agreed but failed to purchase; provided, however, that in the event that
the aggregate principal amount of Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase shall exceed 10% of the aggregate
amount of Securities set forth in Schedule I hereto, the remaining Underwriters
shall have the right to purchase all, but shall not be under any obligation to
purchase any, of the Securities, and if such nondefaulting Underwriters do not
purchase all the Securities, this Agreement will terminate without liability to
any nondefaulting Underwriter or the Company. In the event of a default by any
Underwriter as set forth in this Section 9, the Closing Date shall be postponed
for such period, not exceeding seven days, as the Underwriters shall determine
in order that the required changes in the Registration Statement and the Final
Prospectus or in any other documents or arrangements may be effected. Nothing
contained in this Agreement shall relieve any defaulting Underwriter of its
liability, if any, to the Company and any nondefaulting Underwriter for damages
occasioned by its default hereunder.
10. Termination. This Agreement shall be subject to
termination in the absolute discretion of the Underwriters, by notice given to
the Company prior to delivery of and payment for the Securities, if prior to
such time (i) trading in the Company's Common Stock shall have been suspended by
the Commission or the New York Stock Exchange or trading in securities generally
on the New York Stock Exchange shall have been suspended or limited or minimum
prices shall have been
22
established on such Exchange, (ii) a banking moratorium shall have been declared
either by Federal or New York State authorities or (iii) there shall have
occurred any outbreak or escalation of hostilities, declaration by the United
States of a national emergency or war or other calamity or crisis the effect of
which on financial markets is such as to make it, in the judgment of the
Underwriters, impracticable or inadvisable to proceed with the offering or
delivery of the Securities as contemplated by the Final Prospectus (exclusive of
any supplement thereto).
11. Representations and Indemnities to Survive. The
respective agreements, representations, warranties, indemnities and other
statements of the Company or its officers and of the Underwriters set forth in
or made pursuant to this Agreement will remain in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or the
Company or any of the officers, directors or controlling persons referred to in
Section 8 hereof, and will survive delivery of and payment for the Securities.
The provisions of Sections 7 and 8 hereof shall survive the termination or
cancellation of this Agreement.
12. Notices. All communications hereunder will be in writing
and effective only on receipt, and, if sent to the Underwriters, will be mailed,
delivered or telegraphed and confirmed to them, care of Salomon Brothers Inc, at
Seven World Trade Center, New York, New York, 10048; or, if sent to the Company,
will be mailed, delivered or telegraphed and confirmed to it at 8725 W. Higgins
Road, Chicago, Illinois 60631-2702, attention Kevin C. Gallagher, Esq., Senior
Vice President, General Counsel and Secretary.
13. Successors. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 8 hereof,
and no other person will have any right or obligation hereunder.
14. Applicable Law. This Agreement will be governed by and
construed in accordance with the laws of the State of New York.
23
15. Actions of Underwriters. Any action required or permitted
to be taken by the Underwriters hereunder may be taken by Salomon Brothers Inc,
and the Company shall be entitled to act and rely upon any action so taken by
Salomon Brothers Inc, as having been taken by the Underwriters.
16. Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed to be an original but all of
which shall constitute one and the same agreement.
17. Entire Agreement. This Agreement constitutes the entire
agreement among the parties hereto with respect to the transactions contemplated
hereby.
24
If the foregoing is in accordance with your under standing of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Company and the several Underwriters.
Very truly yours,
360 Communications Company
By: /s/ Gary L. Burge
Name: Gary L. Burge
Title: Senior Vice President
- Finance
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
Salomon Brothers Inc
Lehman Brothers Inc.
J.P. Morgan Securities Inc.
By: Salomon Brothers Inc
By: /s/ Martha Bailey
Name: Martha Bailey
Title: Vice President
25
SCHEDULE I
Principal Amount
Underwriters of Notes
- ------------ --------
Salomon Brothers Inc .......................................... $100,000,000
Lehman Brothers Inc. . . . . . 50,000,000
J.P. Morgan Securities Inc. . . 50,000,000
------------
Total................................................ $200,000,000
26
SCHEDULE II
Certain Subsidiaries of the Company
Susquehanna Cellular Communications Limited Partnership
Virginia Metronet, Inc.
TeleSpectrum of Virginia, Inc.
360 Communications Company of Peoria
South Bend/Mishawaka MSA Limited Partnership
Toledo MSA Limited Partnership
Ohio RSA 6 Limited Partnership
Youngstown-Warren MSA Limited Partnership
Raleigh-Durham MSA Limited Partnership
360 Communications Company of North Carolina Limited Partnership
360 Communications Company of Hickory Limited Partnership
360 Communications Company of North Carolina No. 1
North Carolina RSA 6 Limited Partnership
TeleSpectrum, Inc.
Charleston-North Charleston MSA Limited Partnership
Greenville MSA Limited Partnership
360 Communications Company of New Mexico
360 Communications Company of Nevada Limited Partnership
360 Communications Company of Ohio No. 3
360 Communications Company of Hickory No. 1
Northeast Pennsylvania SMSA Limited Partnership Cellular Plus LP
27
SCHEDULE III
Certain Limited Partnerships of the Company
Chicago MSA Limited Partnership
GTE Mobilnet of South Texas Limited Partnership
Kansas City MSA Limited Partnership
New York MSA Limited Partnership
Orlando MSA Limited Partnership
28