Exhibit 1
NEXTLINK Communications, Inc.
___% Senior Notes Due 2009
___% Senior Discount Notes Due 2009
UNDERWRITING AGREEMENT
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New York, New York, USA
________________ ___,1999
Salomon Smith Barney Inc.
Goldman, Sachs & Co.
Bear, Stearns & Co. Inc.
Credit Suisse First Boston Corporation
Chase Securities Inc.
c/o Salomon Smith Barney Inc.
Seven World Trade Center
New York, New York 10048
United States of America
Ladies and Gentlemen:
NEXTLINK Communications, Inc., a corporation organized under the laws
of the State of Delaware (the "Company"), confirms its agreement with the
underwriters named in Schedule A hereto (the "Underwriters") with respect to
the issue and sale by the Company and the purchase by the Underwriters,
acting severally and not jointly, of an aggregate of $__________ principal
amount of the senior notes due 2009 (the "Senior Notes") and $_________
aggregate principal amount at stated maturity of senior discount notes due
2009 (the "Senior Discount Notes"). At the election of the Underwriters, the
Company proposes, subject to the terms and conditions stated herein, to issue
an aggregate of up to $_________ additional principal amount of Senior Notes
and up to $_________ aggregate principal amount at stated maturity of Senior
Discount Notes. The aggregate of $_________ of principal amount of Senior
Notes (the "Firm Senior Notes") to be issued and $_________ of aggregate
principal amount at stated maturity of Senior Discount Notes (the "Firm
Senior Discount Notes") are herein collectively called the "Firm Securities"
and the aggregate of up to $_________ of principal amount of Senior Notes
(the "Optional Senior Notes") and $_________ aggregate principal amount at
stated maturity of Senior Discount Notes (the "Optional Senior Discount
Notes") to be issued by the Company are herein collectively called the
"Optional Securities" (the Firm Securities and the Optional Securities that
the Underwriters elect to purchase pursuant to Section 2 hereof collectively
called the "Securities").
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company. The Company represents
and warrants to each of the Underwriters as of the date hereof and as of the
Closing Time referred to in Section 2(c) hereof, and agrees with each of the
Underwriters as follows:
(i) Effectiveness of Registration Statement. A registration
statement on Form S-3 (File No. 333-77819) (the "Initial Registration
Statement") in respect of the Securities has been filed
with the Securities and Exchange Commission (the "Commission"); the
Initial Registration Statement and any post-effective amendment thereto,
each in the form heretofore delivered to the Underwriters have been
declared effective by the Commission in such form; other than a
registration statement, if any, increasing the size of the offering (a
"Rule 462(b) Registration Statement") filed pursuant to Rule 462(b) under
the Securities Act of 1933, as amended (the "1933 Act") which became
effective upon filing, no other document with respect to the Initial
Registration Statement has heretofore been filed with the Commission; and
no stop order suspending the effectiveness of the Initial Registration
Statement, any post-effective amendment thereto or the Rule 462(b)
Registration Statement, if any, has been issued and no proceeding for that
purpose has been initiated or threatened by the Commission (any
preliminary prospectus included in the Initial Registration Statement or
filed with the Commission pursuant to Rule 424(a) of the rules and
regulations of the Commission under the 1933 Act, is hereinafter called a
"Preliminary Prospectus"; the various parts of the Initial Registration
Statement and the Rule 462(b) Registration Statement, if any, including
all exhibits thereto but excluding Form T-1 and including the information
contained in the form of final Prospectus filed with the Commission
pursuant to Rule 424(b) under the 1933 Act in accordance with Section 3(a)
hereof and deemed by virtue of Rule 430A under the 1933 Act to be part of
the Initial Registration Statement at the time it was declared effective,
or such part of the Rule 462(b) Registration Statement, if any, at the
time it became effective (each such part of a registration statement as
amended at the time such part became effective), are hereinafter
collectively called the "Registration Statement"; and such final
Prospectus, in the form first filed pursuant to Rule 424(b) under the 1933
Act, is hereinafter called the "Prospectus").
(ii) Compliance of Preliminary Prospectus with the
Requirements of the 1933 Act. No order preventing or suspending the use of
any Preliminary Prospectus has been issued by the Commission, and each
Preliminary Prospectus, at the time of filing thereof, conformed in all
material respects to the requirements of the 1933 Act and the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"), and the
rules and regulations of the Commission thereunder, and did not contain an
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,
in the light of the circumstances under which they were made, not
misleading; provided, however, that this representation and warranty shall
not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an
Underwriter through Salomon Smith Barney expressly for use therein.
(iii) Compliance of Registration Statement and Prospectus with
the Requirements of the 1933 Act. The Registration Statement conforms, and
the Prospectus and any further amendments or supplements to the
Registration Statement or the Prospectus will conform, in all material
respects to the requirements of the 1933 Act and the Trust Indenture Act
and the rules and regulations of the Commission thereunder and do not and
will not, as of the applicable effective date as to the Registration
Statement and any amendment thereto, and as of the applicable filing date
as to the Prospectus and any amendment or supplement thereto, contain an
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; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon and
in conformity with information furnished in writing to the Company by an
Underwriter through Salomon Smith Barney expressly for use therein.
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(iv) Independent Accountants. The accountants who certified
the financial statements included in the Prospectus are independent
certified public accountants with respect to the Company and its
subsidiaries within the meaning of Regulation S-X under the 1933 Act.
(v) Financial Statements. The financial statements, together
with the related notes, included in the Prospectus present fairly the
financial position of the Company and its consolidated subsidiaries at the
dates indicated and the statement of operations, stockholders' equity and
cash flows of the Company and its consolidated subsidiaries for the
periods specified; said financial statements have been prepared in
conformity with generally accepted accounting principles ("GAAP") applied
on a consistent basis throughout the periods involved. The selected
financial data included in the Prospectus present fairly the information
shown therein and have been compiled on a basis consistent with that of
the audited financial statements included in the Prospectus.
(vi) No Material Adverse Change in Business. Since the
respective dates as of which information is given in the Prospectus,
except as otherwise stated therein, (1) there has been no material adverse
change in the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company and its subsidiaries
considered as one enterprise (a "Material Adverse Effect"), whether or not
arising in the ordinary course of business, (2) there have been no
transactions entered into by the Company or any of its subsidiaries, other
than those in the ordinary course of business, which are material with
respect to the Company and its subsidiaries considered as one enterprise
and (3) there has been no dividend or distribution of any kind declared,
paid or made by the Company on any class of its capital stock, except for
those declared, paid or made on the Company's 6 1/2% Cumulative
Convertible Preferred Stock, including any interest and associated penalty
payments thereon, and the Company's 14% Senior Exchangeable Redeemable
Preferred Stock.
(vii) Good Standing of the Company. The Company has been duly
organized and is validly existing as a corporation under the laws of the
State of Delaware and has power and authority to own, lease and operate
its properties and to conduct its business as described in the Prospectus
and to enter into and perform its obligations under this Agreement; and
the Company is duly qualified as a foreign corporation to transact
business and is in good standing in each other jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing
of property or the conduct of business, except where the failure so to
qualify or to be in good standing would not result in a Material Adverse
Effect.
(viii) Good Standing of Designated Subsidiaries. Each
"significant subsidiary" of the Company (as such term is defined in Rule
1-02 of Regulation S-X) (each a "Designated Subsidiary" and, collectively,
the "Designated Subsidiaries") has been duly organized and is validly
existing and in good standing, where applicable, as a corporation, limited
liability company or limited partnership, as the case may be, under the
laws of the jurisdiction of its formation, has power and authority to own,
lease and operate its properties and to conduct its business as described
in the Prospectus and is duly qualified as a foreign corporation, limited
liability company or limited partnership, as the case may be, to transact
business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing
of property or the conduct of business, except where the failure so to
qualify or to be in good standing would not result in a Material Adverse
Effect; except as otherwise disclosed in the Prospectus, all of the issued
and outstanding capital stock or other equity interest of each Designated
Subsidiary has been duly
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authorized and validly issued, is fully paid and non-assessable and at
least 99% thereof is owned by the Company, directly or through
subsidiaries, free and clear of any security interest, mortgage, pledge,
lien, encumbrance, claim or equity; none of the outstanding shares of
capital stock or other equity interest of the Designated Subsidiaries was
issued in violation of any preemptive or similar rights arising by
operation of law, or under the constituting or operative document or
agreement of any Designated Subsidiary or under any agreement to which the
Company or any Designated Subsidiary is a party.
(ix) Capitalization. The authorized, issued and outstanding
capital stock of the Company is as set forth in the Prospectus as of the
dates indicated therein. The shares of issued and outstanding capital
stock of the Company have been duly authorized and validly issued and are
fully paid and non-assessable; and none of the outstanding shares of
capital stock of the Company was issued in violation of the preemptive or
other similar rights of any securityholder of the Company, as applicable.
(x) Authorization of Underwriting Agreements. This Agreement
has been duly authorized, executed and delivered by the Company.
(xi) Authorization and Description of the Securities and the
Indentures. The Securities have been duly authorized for issuance and sale
to the Underwriters pursuant to this Agreement and, when issued and
delivered by the Company pursuant to this Agreement against payment of the
consideration set forth herein, will have been duly executed,
authenticated, issued and delivered and will constitute valid and legally
binding obligations of the Company entitled to the benefits provided by
the indenture relating to the senior notes to be dated as of _________,
1999 and by the indenture relating to the senior discount notes to be
dated as of __________, 1999 (collectively, the "Indentures") between the
Company and United States Trust Company of New York, as Trustee (the
"Trustee"), under which they are to be issued, which will be substantially
in the form filed as an exhibit to the Registration Statement; the
Indentures have been duly authorized and duly qualified under the Trust
Indenture Act and, when executed and delivered by the Company and the
Trustee, will constitute a valid and legally binding instrument,
enforceable in accordance with its terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to general
equity principles; and the Securities and the Indentures will conform in
all material respects to the descriptions thereof in the Prospectus and
will be in substantially the form previously delivered to the
Underwriters.
(xii) Absence of Defaults and Conflicts. Neither the Company
nor any of its subsidiaries is in violation of its constituting or
operative document or agreement or in default in the performance or
observance of any material obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, deed of trust, loan or
credit agreement, note, lease or other agreement or instrument to which
the Company or any of its subsidiaries is a party, or by which or any of
them may be bound, or to which any of the property or assets of the
Company or any of its subsidiaries is subject (collectively, "Agreements
and Instruments") except for such defaults that would not result in a
Material Adverse Effect; the issue and sale of the Securities, the
execution, delivery and performance of this Agreement, the Indentures, the
Securities and any other agreement or instrument entered into or issued or
to be entered into or issued by the Company in connection with the
transactions contemplated hereby, thereby or in the Prospectus and the
consummation of the transactions contemplated herein, therein and in the
Prospectus (including the issuance and sale
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of the Securities by the Company hereunder), the compliance by the Company
with its obligations hereunder and under the Indentures and the Securities
have been duly authorized by all necessary action and do not and will not,
whether with or without the giving of notice or passage of time or both,
conflict with or constitute a breach of, or default or a Repayment Event
(as defined below) under, or result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of the Company or
any of its subsidiaries pursuant to, the Agreements and Instruments except
for such conflicts, breaches or defaults or liens, charges or encumbrances
that, singly or in the aggregate, would not result in a Material Adverse
Effect, nor will such action result in any violation of the provisions of
the constituting or operative document or agreement of the Company or any
of its subsidiaries or any applicable law, statute, rule, regulation,
judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over
the Company or any of its subsidiaries or any of their assets or
properties. As used herein, a "Repayment Event" means any event or
condition which gives the holder of any material note, debenture or other
evidence of indebtedness (or any person acting on such holder's behalf)
the right to require to repurchase, redemption or repayment of all or a
portion of such indebtedness by the Company or any of its subsidiaries.
(xiii) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or agency
is necessary or required for the performance by the Company of its
obligations hereunder, in connection with the offering, issuance or sale
of the Securities hereunder or the consummation of the actions
contemplated by this Agreement or the Indentures, except the registration
under the 1933 Act of the Securities, such as have been obtained under the
Trust Indenture Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under state securities
or Blue Sky laws in connection with the purchase and distribution of the
Securities by the Underwriters.
(xiv) Possession of Licenses and Permits. Except as set forth
in or contemplated by the Prospectus with respect to systems under
development and the offering of dial tone service, each of the Company and
its Designated Subsidiaries has all material certificates, consents,
exemptions, orders, permits, licenses, authorizations, franchises or other
material approvals (each, an "Authorization") of and from, and has made
all material declarations and filings with, all Federal, state, local and
other governmental authorities, all self-regulatory organizations and all
courts and other tribunals, necessary or appropriate for the Company and
its Designated Subsidiaries to own, lease, license, use and construct 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 any
such Authorizations or make any such declaration or filing would not,
singly or in the aggregate, result in a Material Adverse Effect. Except as
set forth in or contemplated by the Prospectus, all such Authorizations
are in full force and effect with respect to the Company and its
Designated Subsidiaries; to the best knowledge of the Company, no event
has occurred that permits, or after notice or lapse of time could permit,
the revocation, termination or modification of any such Authorization; the
Company and its Designated Subsidiaries are in compliance in all material
respects with the terms and conditions of all such Authorizations and with
the rules and regulations of the regulatory authorities and governing
bodies having jurisdiction with respect thereto; and, except as set forth
in the Prospectus, the Company has no knowledge that any person is
contesting or intends to contest the granting of any material
Authorization; and neither the execution and delivery of this Agreement,
the Indentures or the Securities, nor the consummation of the transactions
contemplated hereby and thereby nor
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compliance with the terms, conditions and provisions hereof and thereof by
the Company or any of its Designated Subsidiaries will cause any
suspension, revocation, impairment, forfeiture, nonrenewal or termination
of any Authorization.
(xv) Absence of Labor Dispute. No labor dispute with the
employees of the Company or any of its subsidiaries exists or, to the
knowledge of the Company, is imminent, and the Company is not aware of any
existing labor disturbance by the employees of any of its or any of its
subsidiaries' principal suppliers, manufacturers, customers or
contractors, which, in either case, would reasonably be expected to result
in a Material Adverse Effect.
(xvi) Absence of Proceedings. Except as disclosed in the
Prospectus, there is no action, suit, proceeding, inquiry or investigation
before or by any court or governmental agency or body, domestic or
foreign, now pending or, to the knowledge of the Company, threatened
against or affecting the Company or any of its subsidiaries which could
reasonably be expected to result in a Material Adverse Effect, or which
might reasonably be expected to materially and adversely affect the
properties or assets of the Company or any of its subsidiaries or the
consummation of this Agreement or the performance by the Company of its
obligations hereunder. The aggregate of all pending legal or governmental
proceedings to which the Company or any subsidiary thereof is a party or
of which any of their respective property or assets is the subject which
are not described in the Prospectus, including ordinary routine litigation
incidental to the business, could not reasonably be expected to result in
a Material Adverse Effect.
(xvii) Possession of Intellectual Property. The Company and
its subsidiaries own or possess, or can acquire on reasonable terms,
adequate patents, patent rights, licenses, inventions, copyrights,
know-how (including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures),
trademarks, service marks, trade names or other intellectual property
(collectively, "Intellectual Property") necessary to carry on the business
now operated by them, and except as otherwise described in the Prospectus
neither the Company nor any of its subsidiaries has received any notice or
is otherwise aware of any infringement of or conflict with asserted rights
of others with respect to any Intellectual Property or of any facts or
circumstances which would render any Intellectual Property invalid or
inadequate to protect the interest of the Company or any of its
subsidiaries therein, and which infringement or conflict (if the subject
of any unfavorable decision, ruling or finding) or invalidity or
inadequacy, singly or in the aggregate, would result in a Material Adverse
Effect.
(xviii) Title to Property. The Company and its subsidiaries
have good and marketable title to all real property owned by them and good
title to all other properties owned by them, in each case, free and clear
of all mortgages, pledges, liens, security interests, claims, restrictions
or encumbrances of any kind except such as (a) are described in the
Prospectus or (b) do not, singly or in the aggregate, materially affect
the value of such property and do not interfere with the use made and
proposed to be made of such property by the Company or any of its
subsidiaries; and all of the leases and subleases material to the business
of the Company and its subsidiaries, considered as one enterprise, and
under which the Company or any of its subsidiaries holds properties
described in the Prospectus, are in full force and effect, and neither the
Company nor any of its subsidiaries has any notice of any material claim
of any sort that has been asserted by anyone adverse to the rights of the
Company or any of its subsidiaries under any of the leases or subleases
mentioned above, or
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affecting or questioning the rights of the Company or any subsidiary
thereof to the continued possession of the leased or subleased premises
under any such lease or sublease.
(xix) Tax Returns. The Company and its subsidiaries have filed
all federal, state, foreign and, to the extent material, local tax returns
that are required to be filed or have duly requested extensions thereof
and have paid all taxes required to be paid by any of them and any related
assessments, fines or penalties, except for any such tax, assessment, fine
or penalty that is being contested in good faith and by appropriate
proceedings; and adequate charges, accruals and reserves have been
provided for in the financial statements referred to in Section 1(a)(v)
above in respect of all federal, state, local and foreign taxes for all
periods as to which the tax liability of the Company or any of its
subsidiaries has not been finally determined or remains open to
examination by applicable taxing authorities.
(xx) Environmental Laws. Except as described in the Prospectus
and except such matters as would not, singly or in the aggregate, result
in a Material Adverse Effect, (A) neither the Company nor any of its
subsidiaries is in violation of any federal, state, local or foreign
statute, law, rule, regulation, ordinance, code, policy or rule of common
law or any judicial or administrative interpretation thereof, including
any judicial or administrative order, consent, decree or judgment,
relating to pollution or protection of human health, the environment
(including, without limitation, ambient air, surface water, groundwater,
land surface or subsurface strata) or wildlife, including, without
limitation, laws and regulations relating to the release or threatened
release of chemicals, pollutants, contaminants, wastes, toxic substances,
hazardous substances, petroleum or petroleum products (collectively,
"Hazardous Materials") or to the manufacture, processing, distribution,
use, treatment, storage, disposal, transport or handling of Hazardous
Materials (collectively, "Environmental Laws"), (B) the Company and its
subsidiaries have all permits, authorizations and approvals required under
any applicable Environmental Laws and are each in compliance with their
requirements, (C) there are no pending or, to the Company's knowledge,
threatened administrative, regulatory or judicial actions, suits, demands,
demand letters, claims, liens, notices of noncompliance or violation,
investigation or proceedings relating to any Environmental Law against the
Company or any of its subsidiaries and (D) there are no events or
circumstances that would reasonably be expected to form the basis of an
order for clean-up or remediation, or an action, suit or proceeding by any
private party or governmental body or agency, against or affecting the
Company or any of its subsidiaries relating to Hazardous Materials or
Environmental Laws.
(xxi) Investment Company Act. The Company is not, and upon the
issuance and sale of the Securities as herein contemplated and the
application of the net proceeds therefrom as described in the Prospectus
will not be, an "investment company" or an entity "controlled" by an
"investment company" as such terms are defined in the Investment Company
Act of 1940, as amended (the "1940 Act").
(xxii) Certain Disclosures in Prospectus. The statements set
forth in the Prospectus under the caption "Description of the Notes",
insofar as they purport to constitute a summary of the terms of the
Securities, and under the captions "Regulation" when considered together
with the statements under the caption "Business-Regulatory Overview" in
the Company's Annual Report on Form 10-K, filed on March 29, 1999, which
is incorporated in the Prospectus by reference and "Underwriting", insofar
as they purport to describe the provisions of the laws and documents
referred to therein, are accurate and complete in all material respects;
and the statements set forth
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in the Prospectus under the caption "Material United States Federal Income
Tax Consequences", insofar as such statements purport to summarize certain
United States federal income and estate tax consequences of the ownership
and dispensation of the Securities by certain U.S. Holders (as such terms
are defined in the Prospectus) of the Securities, provide a fair summary
of such consequences under current law.
(xxiii) Cuba. Neither the Company nor any of its affiliates
does business with the government of Cuba or with any person or affiliate
located in Cuba within the meaning of Section 517.075, Florida Statutes.
(xxiv) No Manipulation or Stabilization. Neither the Company
nor, to its knowledge, any of its officers, directors or affiliates has
taken and will take, directly or indirectly, any action which is designed
to or which has constituted or which might reasonably be expected to cause
or result in stabilization or manipulation of the price of any security of
the Company to facilitate the sale or resale of the Securities.
(b) Officer's Certificates. Any certificate signed by any officer of the
Company or any of its subsidiaries delivered to the Underwriters or to counsel
for the Underwriters shall be deemed a representation and warranty by the
Company to each Underwriter as to the matters covered thereby.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Securities. On the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth,
(a) the Company agrees to issue and sell to each Underwriter, severally and
not jointly, and each Underwriter, severally and not jointly, agrees to
purchase from the Company, the Firm Senior Notes at a purchase price of ___%
of the principal amount thereof, plus accrued interest, if any, from
__________, 1999, and agrees to purchase from the Company, the Firm Senior
Discount Notes, at a purchase price of ___% of the principal amount thereof
at stated maturity, plus accrued interest, if any, from ____, 1999 the
principal amount of Firm Securities set forth in Schedules A and B opposite
the name of such Underwriter and (b) in the event and to the extent that the
Underwriters shall exercise the election to purchase Optional Securities as
provided below, the Company agrees to issue and sell to each of the
Underwriters, and each of the Underwriters agrees, severally and not jointly,
to purchase from the Company at the purchase price set forth in clause (a) of
this Section 2, the aggregate principal amount of Optional Securities as to
which such election shall have been exercised determined by multiplying such
aggregate principal amount of Optional Senior Notes or Optional Senior
Discount Notes, as the case may be, by a fraction, the numerator of which is
the maximum aggregate principal amount of Optional Senior Notes or Optional
Senior Discount Notes which such Underwriter is entitled to purchase as set
forth opposite the name of such Underwriter in Schedule A or B hereto and the
denominator of which is the maximum aggregate principal amount of Optional
Senior Notes or Optional Senior Discount Notes, as the case may be, that all
of the Underwriters are entitled to purchase hereunder.
The Company hereby grants to the Underwriters the right to purchase at
their election up to $_________ aggregate principal amount of Optional Senior
Notes and up to $_________ aggregate principal amount at stated maturity of
Optional Senior Discount Notes, at the purchase price set forth in the
paragraph above, for the sole purpose of covering overallotments in the sale
of the Firm Securities. Any such election to purchase Optional Securities may
be exercised only by written notice from Salomon Smith Barney to the Company,
given within a period of 30 calendar days after the date of this Agreement,
setting forth the aggregate number of Optional Securities to be purchased and
the date on which such Optional Securities are to be delivered, as determined
by Salomon Smith Barney but in no event earlier than the First Closing Time
(as defined in Section 2(c) hereof) or, unless Salomon Smith Barney and the
Company otherwise agree in writing, earlier than two or later than ten
business days after the date of such notice.
(b) Terms and Conditions of Sale. Upon the authorization by Salomon Smith
Barney on behalf of the Underwriters of the release of the Securities, the
several Underwriters propose to offer the Securities for sale upon the terms and
conditions set forth in the Prospectus.
(c) Closing and Payment. (i) The Securities to be purchased by each
Underwriter hereunder, in definitive form, and in such authorized
denominations and registered in such names as Salomon Smith Barney may
request upon at least forty-eight hours' prior notice to the Company shall be
delivered by or on behalf of the Company to the Underwriters, through the
facilities of the Depository Trust Company ("DTC") (unless the Underwriters
shall otherwise instruct) for the account of such Underwriter, against
payment by or on behalf of such Underwriter of the purchase price therefor by
wire transfer or certified or official bank check or checks, payable to the
order of the Company in immediately available (same day) funds. The Company
will cause the certificates representing the Securities to be made available
for checking and packaging at least twenty-four hours prior to the Closing
Time (as defined below) with respect thereto at the offices of DTC or its
designated custodian (the "Designated Office"). The time and date of such
delivery and payment shall be, with respect to the Firm Securities, 10:00
a.m. on ________, 1999 or such other time and date as Salomon Smith Barney
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and the Company may agree upon in writing, and, with respect to the Optional
Securities, 10:00 a.m. on the date specified by Salomon Smith Barney in the
written notice given by Salomon Smith Barney of the Underwriters' election to
purchase such Optional Securities, or such other time and date as Salomon
Smith Barney and the Company may agree upon in writing. Such time and date
for delivery of the Firm Securities is herein called the "First Closing
Time", such time and date for delivery of the Optional Securities, if not the
First Closing Time, is herein called the "Second Closing Time", and each time
and date for delivery is herein called a "Closing Time".
(ii) The documents to be delivered at the Closing Time by or on behalf of
the parties hereto pursuant to Section 5 hereof, including the cross receipt for
the Securities and any additional documents requested by the Underwriters
pursuant to Section 5(k) hereof, will be delivered at the offices of Sullivan &
Cromwell, 125 Broad Street, New York, New York 10004 (the "Closing Location"),
and the Securities will be delivered at the Designated Office, all at the
Closing Time. A meeting will be held at the Closing Location at 2:00 p.m. on the
New York Business Day next preceding the Closing Time, at which meeting the
final drafts of the documents to be delivered pursuant to the preceding sentence
will be available for review by the parties hereto. For the purposes of this
Section 2 and Section 3(a)(iii) below, "New York Business Day" shall mean each
Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in New York are generally authorized or obligated by law or
executive order to close.
SECTION 3. Covenants.
(a) Covenants of the Company. The Company covenants with each Underwriter
as follows:
(i) Preparation of Prospectus; Notices. To prepare the Prospectus in a
form approved by the Underwriters and to file such Prospectus, properly
completed, and any supplement thereto, pursuant to Rule 424(b) under the 1933
Act not later than the Commission's close of business on the second business day
following the execution and delivery of this Agreement, or, if applicable, such
earlier time as may be required by Rule 430A(a)(3) under the 1933 Act, and to
provide evidence satisfactory to the Underwriters of such timely filing; to use
its best efforts to cause the Registration Statement, if not effective at the
time of execution of this Agreement, to become effective; prior to termination
of the offering of the Securities, to make or file no further amendment or any
supplement to the Registration Statement or Prospectus which shall be
disapproved by the Underwriters promptly after reasonable notice thereof; to
advise the Underwriters, promptly after it receives notice thereof, of the time
when the Registration Statement or any amendment thereto has been filed or
becomes effective or the Prospectus or any supplement thereto or any amended
Prospectus has been filed and to furnish the Underwriters with copies thereof;
to advise the Underwriters, promptly after it receives notice thereof, of the
issuance by the Commission of any stop order or of any order preventing or
suspending the use of any Preliminary Prospectus or Prospectus, of the
suspension of the qualification of the Securities for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for any such
purpose, or of any request by the Commission for the amending or supplementing
of the Registration Statement or Prospectus or for additional information; and,
in the event of the issuance of any stop order or of any order preventing or
suspending the use of any Preliminary Prospectus or Prospectus or suspending any
such qualification, promptly to use its best efforts to obtain the withdrawal of
such order.
(ii) Qualifications of the Securities under State Securities Laws.
Promptly from time to time to take such action as the Underwriters may
reasonably request to qualify the Securities for offering and sale under the
securities laws of such jurisdictions as they may request and to comply with
such laws so as to permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the distribution of
the Securities, provided that in connection therewith the Company shall not be
required to qualify as a foreign corporation or to file a general consent to
service of process in any jurisdiction.
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(iii) Copies of and Amendments to Prospectus and Supplements. Prior to
12:00 noon on the New York Business Day next succeeding the date of this
Agreement and from time to time, to furnish the Underwriters with copies of the
Prospectus in New York City in such quantities as the Underwriters may
reasonably request, and, if the delivery of a Prospectus is required at any time
prior to the expiration of nine months after the time of issue of the Prospectus
in connection with the offering or sale of the Securities and if at such time
any event shall have occurred as a result of which the Prospectus as then
amended or supplemented would include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made when such
Prospectus is delivered, not misleading, or, if for any other reason it shall be
necessary during such period to amend or supplement the Prospectus in order to
comply with the 1933 Act, to notify the Underwriters and upon their request to
prepare and furnish without charge to each Underwriter and to any dealer in
securities as many copies as the Underwriters may from time to time reasonably
request of an amended Prospectus or a supplement to the Prospectus which will
correct such statement or omission or effect such compliance, and in case any
Underwriter is required to deliver a Prospectus in connection with sales of any
of the Securities at any time nine months or more after the time of issue of the
Prospectus, upon the Underwriters' request but at the expense of such
Underwriter, to prepare and deliver to such Underwriter as many copies as the
Underwriters may request of an amended or supplemented Prospectus complying with
Section 10(a)(3) of the 1933 Act. The Company will advise the Underwriters
promptly of any proposal to amend or supplement the Prospectus and will not
effect such amendment or supplement without the consent of the Underwriters.
Neither the consent of the Underwriters, nor the Underwriter's delivery of any
such amendment or supplement, shall constitute a waiver of any of the conditions
set forth in Section 5 hereof.
(iv) Earning Statement. To make generally available to its securityholders
as soon as practicable, but in any event not later than the 30th day following
the end of the fiscal quarter first occurring after the first anniversary of the
effective date of the Registration Statement (as defined in Rule 158(c) under
the 1933 Act), an earning statement of the Company and its subsidiaries (which
need not be audited) complying with Section 11(a) of the 1933 Act and the rules
and regulations thereunder (including, at the option of the Company, Rule 158).
(v) Lock-Up. During the period beginning from the date hereof and
continuing to and including the date 90 days after the date of the Prospectus,
not to offer, sell, contract to sell or otherwise dispose of, directly or
indirectly, or announce an offering of, except as provided hereunder any debt
securities of the Company in an offering to the public (or in a private offering
where holders of the debt securities are granted rights to have such debt
securities registered under the Securities Act, or to exchange such debt
securities for other debt securities that are so registered) without the prior
written consent of Salomon Smith Barney.
(vi) Investment Company. Not to be or become, at any time prior to the
expiration of three years after the Closing Time, an open-end investment
company, unit investment trust, closed-end investment company or face-amount
certificate company that is or is required to be registered under Section 8 of
the 1940 Act.
(vii) Information to the Underwriters. During a period of five years from
the effective date of the Registration Statement, to furnish to the Underwriters
copies of all reports or other communications (financial or other) furnished to
shareholders, and to deliver to the Underwriters such additional information
concerning the business and financial condition of the Company as the
Underwriters may from time to time reasonably request (such financial statements
to be on a consolidated basis to the extent the accounts of the
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Company and its subsidiaries are consolidated in reports furnished to its
stockholders generally or to the Commission).
(viii) Use of Proceeds. To use the net proceeds received by it from the
sale of the Securities pursuant to this Agreement in the manner specified in the
Prospectus under "Use of Proceeds".
(ix) Rule 462(b) Registration Statement. If the Company elects to rely
upon Rule 462(b), to file a Rule 462(b) Registration Statement with the
Commission in compliance with Rule 462(b) by 10:00 P.M., Washington, D.C. time,
on the date of this Agreement, and at the time of filing to either pay to the
Commission the filing fee for the Rule 462(b) Registration Statement or give
irrevocable instructions for the payment of such fee pursuant to Rule 111(b)
under the 1933 Act.
SECTION 4. Payment of Expenses.
(a) Expenses. The Company covenants and agrees with the several
Underwriters that the Company will pay or cause to be paid the following: (i)
the fees, disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Securities under the 1933 Act and all
other expenses in connection with the preparation, printing and filing of the
Registration Statement, any Preliminary Prospectus and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the cost of printing or
reproducing any Agreement among Underwriters, this Agreement, the Selling
Agreement, the Indentures, the Blue Sky Memorandum, closing documents (including
any compilations thereof) and any other documents in connection with the
offering, purchase, sale and delivery of the Securities; (iii) all expenses in
connection with the qualification of the Securities for offering and sale under
state securities laws as provided in Section 3(b) hereof, including the fees and
disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky survey, (iv) any fees charged
by securities rating services for rating the Securities, (v) the filing fees
incident to, and the fees and disbursements of counsel for the Underwriters in
connection with, securing any required review by the National Association of
Securities Dealers, Inc. of the terms of the sale of the Securities; (vi) the
cost of preparing the Securities; (vii) the cost and charges of any transfer
agent or registrar and of DTC; (viii) the fees and expenses of the Trustee and
any agent of the Trustee and the fees and disbursements of counsel for the
Trustee in connection with the Indentures and the Securities, and (ix) all other
costs and expenses incident to the performance of its obligations hereunder
which are not otherwise specifically provided for in this Section. It is
understood, however, that, except as provided in this Section, and Sections 6, 7
and 10(d) hereof, the Underwriters will pay all of their own costs and expenses,
including the fees of their counsel, transfer taxes on resale of any of the
Securities by them, and any advertising expenses connected with any offers they
may make.
(b) Termination of Agreement. If this Agreement is terminated by the
Underwriters in accordance with the provisions of Section 5 or Section 9(a)(i)
hereof, the Company shall reimburse the Underwriters for all of their
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriters.
SECTION 5. Conditions of Underwriters' Obligations. The obligations of the
several Underwriters hereunder, as to the Securities to be delivered at the
Closing Time, are subject to the accuracy, at and as of the Closing Time, of the
representations and warranties of the Company contained in Section 1 hereof or
in certificates of any officer of the Company or any of its subsidiaries
delivered pursuant to the
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provisions hereof, to the performance by each of the Company of its covenants
and other obligations hereunder, and to the following further conditions:
(a) Filing of Prospectus and Effectiveness of Registration Statement. If
the Registration Statement has not become effective prior to execution of this
Agreement, unless the Underwriters agree in writing to a later time, the
Registration Statement shall have become effective not later than (i) 6:00 p.m.
on the date of determination of the public offering price, if such determination
occurred at or prior to 3:00 p.m. on such date or (ii) 9:30 a.m. on the business
day following the day on which the public offering price was determined, if such
determination occurred after 3:00 p.m. on such date; if filing is required
pursuant to Rule 424(b), the Prospectus shall have been filed with the
Commission pursuant to such Rule within the applicable time period prescribed
for such filing by the rules and regulations under the 1933 Act and in
accordance with Section 3(a) hereof; no stop order suspending the effectiveness
of the Registration Statement or any part thereof shall have been issued and no
proceeding for that purpose shall have been initiated or threatened by the
Commission; and all requests for additional information on the part of the
Commission shall have been complied with to the Underwriters' reasonable
satisfaction.
(b) Opinion of Counsel for Company. At the Closing Time, the Underwriters
shall have received the favorable opinions, dated as of the Closing Time, of
Willkie Farr & Gallagher, counsel for the Company and of R. Bruce Easter, Esq.,
Vice President, General Counsel and Secretary of the Company in form and
substance satisfactory to counsel for the Underwriters, to the effect set forth
in Exhibits A-1 and 2 hereto, respectively, and to such further effect as
counsel to the Underwriters may reasonably request.
(c) Opinion of Counsel for Underwriters. At the Closing Time, the
Underwriters shall have received the favorable opinion, dated as of the Closing
Time, of Sullivan & Cromwell, counsel for the Underwriters, with respect to the
incorporation of the Company, the Indentures, the validity of the Securities
being delivered at the Closing Time, the Registration Statement, the Prospectus
and such other related matters as the Underwriters may reasonably request. In
giving such opinion such counsel may rely, as to all matters governed by the
laws of jurisdictions other than the law of the State of New York and the
federal law of the United States, upon the opinions of counsel satisfactory to
the Underwriters. Such counsel may also state that, insofar as such opinion
involves factual matters, they have relied, to the extent they deem proper, upon
certificates of officers of the Company and its subsidiaries and certificates of
public officials.
(d) Officers' Certificate. At such Closing Time, there shall not have
been, since the date hereof or since the date of the most recent financial
statements included in the Prospectus (exclusive of any supplement thereto), any
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising from
transactions in the ordinary course of business except as set forth in the
Prospectus (exclusive of any supplement thereto), and the Underwriters shall
have received certificates of the Chairman of the Board, the President or a Vice
President of the Company and of the chief financial or chief accounting officer
of the Company, satisfactory to the Underwriters, to the effect that, at and as
of such Closing Time, (i) they have carefully examined the Registration
Statement, the Preliminary Prospectus, the Prospectus and any supplements
thereto and this Agreement, (ii) there has been no such material adverse change,
(iii) the representations and warranties of the Company in Section 1 hereof are
true and correct in all material respects on and as of the Closing Time with the
same force and effect as though expressly made at and as of such Closing Time,
(iv) the Company has complied with all agreements and satisfied all conditions
on its part to be performed or satisfied at or prior to such Closing Time, and
(v) no stop order
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suspending the effectiveness of the Registration Statement has been issued and
no proceedings for that purpose have been instituted or, to the Company's
knowledge, threatened.
(e) Accountant's Comfort Letter. On the date of the Prospectus at a time
prior to the execution of this Agreement, and at 10:00 a.m. on the effective
date of any post-effective amendment to the Registration Statement filed
subsequent to the date of this Agreement, the Underwriters shall have received
from Arthur Andersen LLP a letter or letters dated the respective dates of
delivery thereof, in form and substance satisfactory to the Underwriters,
containing statements and information of the type ordinarily included in
accountants' "comfort letters" to the Underwriters with respect to the financial
statements and certain financial information contained in the Prospectus.
(f) Bring-down Comfort Letter. At the Closing Time, the Underwriters shall
have received from Arthur Andersen LLP a letter, dated as of the Closing Time,
to the effect that they reaffirm the statements made in the letter furnished
pursuant to subsection (e) of this Section 5, except that the specified date
referred to shall be a date not more than three business days prior to such
Closing Time.
(g) No Material Adverse Change in Business. Since the respective dates as
of which information is given in the Prospectus, except as otherwise stated
therein, (1) there has been no Material Adverse Effect, whether or not arising
in the ordinary course of business, (2) there have been no transactions entered
into by the Company or any of its subsidiaries, other than those in the ordinary
course of business, which are material with respect to the Company and its
subsidiaries considered as one enterprise (3) there has been no dividend or
distribution of any kind, declared, paid or made by the Company on any class of
its capital stock, except for the 6 1/2% Cumulative Convertible Preferred Stock
and the 14% Senior Exchangeable Redeemable Preferred Stock, which dividend shall
be the customary dividend on such stock, and (4) there has been no change or
decrease specified in the letters referred to in Section 5(e) and 5(f) above,
the effect of which, in any case referred to in clauses (1) through (4) above,
is, in the sole 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 Statement (exclusive of any
amendment thereof) and the Prospectus (exclusive of any supplement thereto).
(h) Maintenance of Rating. On or after the date of this Agreement, there
shall not have occurred a downgrading in the rating assigned to the Company's
debt securities or preferred stock by any nationally recognized securities
rating agency, and no such securities rating agency shall have publicly
announced that it has under surveillance or review, with possible negative
implications, its rating of any of the Company's debt securities or preferred
stock.
(i) Delivery of Prospectuses. The Company shall have complied with the
provisions of Section 3(a)(iii) hereof with respect to the furnishing of
Prospectuses on the New York Business Day next succeeding the date of this
Agreement.
(j) Adequate Disclosure of Litigation. There is no litigation or
governmental or other action, suit, claim, proceeding or investigation before
any court or any public, regulatory or governmental agency or body, pending or,
to the best of the Company's knowledge, threatened against the Company or any of
its subsidiaries or any of their respective officers (in their capacity as
officers of the Company or such subsidiaries) or any of the properties, assets,
business or rights of the Company or such subsidiaries which is of a character
required to be disclosed in the Registration Statement and Prospectus which is
not disclosed therein.
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(k) Additional Documents. At the Closing Time: (i) the Company shall have
furnished to the Underwriters such further information, certificates and
documents as the Underwriters may reasonably request; (ii) counsel for the
Underwriters shall have been furnished with such documents and opinions as they
may require for the purpose of enabling them to pass upon the issuance and sale
of the Securities as herein contemplated, or in order to evidence the accuracy
of any of the representations or warranties, or the fulfillment of any of the
conditions, herein contained; and (iii) all proceedings taken by the Company in
connection with the issuance and sale of the Securities as herein contemplated
shall be satisfactory in form and substance to the Underwriters and counsel for
the Underwriters.
(l) Termination of Agreement. If any condition specified in this Section
shall not have been fulfilled when and as required to be fulfilled, this
Agreement may be terminated by the Underwriters by notice to the Company at any
time at or prior to the Closing Time, and such termination shall be without
liability of any party to any other party except as provided in Section 4 and
except that Sections 1, 6 and 7 shall survive any such termination and remain in
full force and effect.
SECTION 6. Indemnification.
(a) Indemnification of Underwriters. The Company agrees to indemnify and
hold harmless each Underwriter, the directors, officers, employees and agents of
each Underwriter and each person, if any, who controls any Underwriter within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act against
any and all losses, liabilities (joint or several), claims, damages and expenses
whatsoever, to which they or any of them may become subject under the 1933 Act,
the 1934 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 for the registration of the Securities as originally filed or in any
amendment thereof, or in any Preliminary Prospectus or Prospectus (or any
amendment or supplement thereto), or arise out of or are based upon the omission
or alleged omission therefrom of a material fact required to be stated therein
or necessary in order to make the statements therein not misleading, and agrees
to reimburse each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished to
the Company by or on behalf of any Underwriter through the Underwriters
specifically for inclusion therein. This indemnity agreement will be in addition
to any liability which the Company may otherwise have.
(b) Indemnification of Company, Directors and Officers. Each Underwriter
severally agrees to indemnify and hold harmless the Company, each of its
directors, each of its officers who sign the Registration Statement (including
any person who, with his or her consent, is named in the Registration Statement
as about to become a director of the Company) and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act against any and all losses, liabilities (joint or several),
claims, damages and expenses described in the indemnity contained in subsection
(a) of this Section, as incurred, but only with respect to written information
furnished to the Company by such Underwriter through Salomon Smith Barney
specifically for inclusion in the documents referred to in the foregoing
indemnity. The Company acknowledges that the statements set forth in the last
paragraph of the cover page regarding delivery of the Securities, the
stabilization legend in block capital letters on the
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reverse of the cover page and, under the heading "Underwriting", (i) the
sentences related to concessions and reallowances and (ii) the paragraph related
to stabilization in the Preliminary Prospectus, the Registration Statement or
the Prospectus constitute the only information furnished in writing by or on
behalf of the several Underwriters for inclusion in such Preliminary Prospectus,
Registration Statement or Prospectus.
(c) Actions against Parties; Notification. Each indemnified party shall
give written notice as promptly as reasonably practicable to each indemnifying
party of any action commenced against it in respect of which indemnity may be
sought hereunder, but failure to so notify an indemnifying party (i) will not
relieve it from liability under paragraph (a) or (b) above unless and to the
extent it did not otherwise learn of such action and such failure results in the
forfeiture by the indemnifying party of substantial rights and defenses and (ii)
will not, in any event, relieve the indemnifying party from any obligations to
any indemnified party other than the indemnification obligation provided in
paragraph (a) or (b) above. The indemnifying party shall be entitled to appoint
counsel of the indemnifying party's choice at the indemnifying party's expense
to represent the indemnified party in any action for which indemnification is
sought (in which case the indemnifying party shall not thereafter be responsible
for the fees and expenses of any separate counsel retained by the indemnified
party or parties except as set forth below); provided, however, that such
counsel shall be satisfactory to the indemnified party. Notwithstanding the
indemnifying party's election to appoint counsel to represent the indemnified
party in an action, the indemnified party shall have the right to employ
separate counsel (including local counsel), and the indemnifying party shall
bear the reasonable fees, costs and expenses of such separate counsel if (i) the
use of counsel chosen by the indemnifying party to represent the indemnified
party would present such counsel with a conflict of interest, (ii) the actual or
potential defendants in, or targets of, any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties which are different from or additional to those
available to the indemnifying party, (iii) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of the institution of
such action or (iv) the indemnifying party shall authorize the indemnified party
to employ separate counsel at the expense of the indemnifying party. No
indemnifying party shall, without the prior written consent of the indemnified
parties, settle or compromise or consent to the entry of any judgment with
respect to any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever in
respect of which indemnification or contribution could be sought under this
Section 6 or Section 7 hereof (whether or not the indemnified parties are actual
or potential parties thereto), unless such settlement, compromise or consent (i)
includes an unconditional release of each indemnified party from all liability
arising out of such litigation, investigation, proceeding or claim and (ii) does
not include a statement as to or an admission of fault, culpability or a failure
to act by or on behalf of any indemnified party.
SECTION 7. Contribution. If the indemnification provided for in Section 6
hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
(including legal or other expenses reasonably incurred in connection with
investigating or defending same) incurred by such indemnified party, as
incurred, (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on the
other hand from the offering of the Securities pursuant to this Agreement
(provided that in no case shall any Underwriter (except as may be provided in
any agreement among underwriters relating to the offering of the Securities) be
responsible for any amount in excess of the underwriting discount or commission
applicable to the Securities purchased by such Underwriter hereunder)
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or (ii) if the allocation provided by clause (i) is unavailable for any reason,
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 on
the one hand and of the Underwriters on the other hand in connection with the
statements or omissions which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the
Underwriters on the other hand in connection with the offering of the Securities
pursuant to this Agreement shall be deemed to be in the same respective
proportions as the total net proceeds from the offering of the Securities
pursuant to this Agreement (before deducting expenses) received by the Company
and the total underwriting discount received by the Underwriters, in each case
as set forth on the cover page of the Prospectus, bear to the aggregate initial
offering price of the Securities.
The relative fault of the Company on the one hand and the Underwriters on
the other hand shall be determined by reference to, among other things, whether
any such untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by the
Company 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 and the Underwriters agree that it would not be just and
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 which does not take account of the
equitable considerations referred to above in this Section 7.
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 Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933
Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter,
and each person, if any, who controls the Company within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same
rights to contribution as the Company. The Underwriters' respective
obligations to contribute pursuant to this Section 7 are several in
proportion to the number of Securities set forth opposite their respective
names in Schedules A and B hereto and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement, or
in certificates of officers of the Company submitted pursuant hereto, shall
remain operative and in full force and effect, regardless of any investigation
made by or on behalf of any Underwriter or controlling person, or by or on
behalf of the Company, and shall survive delivery of the Securities to the
Underwriters.
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SECTION 9. Termination of Agreement.
(a) Termination; General. 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 at any time prior to
such time (i) trading in the Company's Common Stock shall have been suspended by
the Commission or the NASDAQ or trading in securities generally on the New York
Stock Exchange or the NASDAQ shall have been suspended or limited or minimum
prices shall have been established on such Exchange or NASDAQ, (ii) a banking
moratorium shall have been declared either by Federal or New York State
authorities or (iii) there shall have occurred, subsequent to the signing
hereof, 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 sole judgment of the
Underwriters, impractical or inadvisable to proceed with the offering or
delivery of the Securities as contemplated by the Prospectus (exclusive of any
supplement thereto).
(b) Liabilities. If this Agreement is terminated pursuant to this Section,
such termination shall be without liability of any party to any other party
except as provided in Section 4 hereof, and provided further that Sections 1, 6
and 7 shall survive such termination and remain in full force and effect.
SECTION 10. Default by One or More of the Underwriters. If any one or
more of the 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 amount of Securities set forth opposite
their names in Schedules A and B hereto bears to the aggregate amount of
Securities set forth opposite the names of all the remaining Underwriters)
the Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase; provided, however, that in the event that the aggregate
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 Schedules A and B 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 of 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 10, the Closing Time
shall be postponed for such period, not exceeding five Business Days, as the
Underwriters shall determine in order that the required changes in the
Registration Statement and the Prospectus or in any other documents or
arrangements may be effected. Nothing contained in this Agreement shall
relieve any defaulting Underwriter of its liability, if any, to the Company
and any nondefaulting Underwriter for damages occasioned by its default
hereunder.
SECTION 11. Reliance; Notices. In all dealings hereunder, the Underwriters
shall act on behalf of each of the Underwriters, and the parties hereto shall be
entitled to act and rely upon any statement, request, notice or agreement on
behalf of any Underwriter made or given by the Underwriters jointly or by
Salomon Brothers on their behalf.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to the Underwriters in care of Salomon Smith Barney
General Counsel (fax no. (212) 816-7071) and confirmed to Salomon Smith Barney,
388 Greenwich Street, 19th Floor, New York, New York 10013, Attention: General
Counsel; and if to the Company shall be delivered or sent by mail, telex or
facsimile transmission to the address of the
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Company set forth in the Prospectus, Attention: General Counsel; provided,
however, that any notice to an Underwriter pursuant to Section 6(c) hereof shall
be delivered or sent by mail, telex or facsimile transmission to such
Underwriter at its address set forth in its Underwriters' Questionnaire, or
telex constituting such Questionnaire, which address will be supplied to the
Company by the Underwriters upon request. Any such statements, requests, notices
or agreements shall take effect upon receipt thereof.
SECTION 12. Parties. This Agreement shall inure to the benefit of and be
binding upon the Underwriters, the Company and their respective successors.
Nothing expressed or mentioned in this Agreement is intended or shall be
construed to give any person, firm or corporation, other than the Underwriters,
the Company and their respective successors and the controlling persons and
officers and directors referred to in Sections 6 and 7 and their heirs and legal
Underwriters, any legal or equitable right, remedy or claim under or in respect
of this Agreement or any provision herein contained. This Agreement and all
conditions and provisions hereof are intended to be for the sole and exclusive
benefit of the Underwriters, the Company and their respective successors, and
said controlling persons and officers and directors and their heirs and legal
Underwriters, and for the benefit of no other person, firm or corporation. No
purchaser of Securities from any Underwriter shall be deemed to be a successor
by reason merely of such purchase.
SECTION 13. Time of the Essence. Time shall be of the essence of this
Agreement. As used herein, the term "business day" shall mean any day when the
Commission's office in Washington, D.C. is open for business.
SECTION 14. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. SPECIFIED
TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 15. Effect of Headings. The Section headings herein are for
convenience only and shall not affect the construction hereof.
SECTION 16. Counterparts. This Agreement may be executed by any one of
more of the parties hereto in any number of counterparts, each of which shall be
deemed to be an original, but all such counterparts shall together constitute
one and the same instrument.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, and upon
the acceptance hereof by Salomon Smith Barney, on behalf of each of the
Underwriters, this letter and such acceptance hereof shall constitute a binding
agreement between each of the Underwriters and the Company. It is understood
that your acceptance of this letter on behalf of each of the Underwriters is
pursuant to the authority set forth in a form of Agreement among
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Underwriters, the form of which shall be submitted to the Company for
examination upon request, but without warranty on your part as to the authority
of the signers thereof.
Very truly yours,
NEXTLINK Communications, Inc.
By
-------------------------------------
Name: R. Bruce Easter, Jr.
Title: Vice President
CONFIRMED AND ACCEPTED,
as of the date first above written:
Salomon Smith Barney Inc.
Goldman, Sachs & Co.
Bear, Stearns & Co. Inc.
Credit Suisse First Boston Corporation
Chase Securities Inc.
By: Salomon Smith Barney Inc.
By
-----------------------------------------
Name:
Title:
For themselves and on behalf of the
other Underwriters named in Schedule A hereto.
SCHEDULE A
Aggregate
Aggregate Principal Amount
Principal Amount of Senior
of Senior Notes to be
Notes to be Purchased if Maximum
Underwriter Purchased Option Exercised
----------- ---------------- --------------------
Salomon Smith Barney Inc. ........................
Goldman, Sachs & Co. .............................
Bear, Stearns & Co. Inc. .........................
Credit Suisse First Boston Corporation ...........
Chase Securities Inc. ............................
Total ....................................
Sch A - 1
SCHEDULE B
Aggregate
Principal Amount
Aggregate of Senior Discount
Principal Amount Notes to be
of Senior Discount Purchased if
Notes to be Maximum Option
Underwriter Purchased Exercised
----------- ------------------ ------------------
Salomon Smith Barney Inc. ........................
Goldman, Sachs & Co. .............................
Bear, Stearns & Co. Inc. .........................
Credit Suisse First Boston Corporation ...........
Chase Securities Inc. ............................
Total ....................................
Sch B - 1
Exhibit A-1
FORM OF OPINION OF WILKIE FARR & GALLAGHER
TO BE DELIVERED PURSUANT TO SECTION 5(b)
(i) The Company has been duly incorporated and is validly existing as a
corporation under the laws of the State of Delaware.
(ii) The Company has power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectus and to
enter into and perform its obligations under the Underwriting Agreement.
(iii) The Company is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure so to qualify or
to be in good standing would not result in a Material Adverse Effect.
(iv) The authorized, issued and outstanding capital stock of the Company
is as set forth in the Prospectus as of the dates indicated therein; the shares
of issued and outstanding capital stock of the Company have been duly authorized
and validly issued and are fully paid and non-assessable; and none of the
outstanding shares of capital stock of the Company was issued in violation of
the preemptive or other similar rights of any securityholder of the Company.
(v) Each Designated Subsidiary has been duly formed and is validly
existing as a corporation, limited liability company or limited partnership in
good standing, as applicable, under the laws of the jurisdiction of its
formation, and has power and authority to own, lease and operate its properties
and to conduct its business as described in the Prospectus; all of the issued
and outstanding shares, membership interests or partnership interests of each
Designated Subsidiary has been duly authorized and validly issued, is fully paid
and non-assessable and, except as otherwise set forth in the Prospectus in
respect of the minority interests described therein, is owned by the Company,
directly or through subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity.
(vi) The Underwriting Agreement has been duly authorized, executed and
delivered by the Company.
(vii) The Indentures have been duly authorized, executed and delivered;
and, assuming due execution by the Trustee, the Indentures constitute a valid
and legally binding obligation of the Company enforceable in accordance with its
terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles.
(viii) The Securities have been duly authorized and executed by the
Company and authenticated, issued and delivered in accordance with the
Indentures and constitute valid and legally binding obligations of the Company
entitled to the benefits provided by the Indentures, subject, as to enforcement,
to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors' rights
and to general equity principles. In rendering the opinion set forth in this
paragraph (viii), as to authentication we have relied solely on a certificate of
the Trustee as to the
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authentication of the Securities by a duly authorized representative of the
Trustee and have assumed that the Securities so authenticated have been
delivered to you and paid for by you in accordance with the Underwriting
Agreement. The Securities and the Indentures conform in all material respects to
the descriptions thereof in the Prospectus;
(ix) The information in the Prospectus under the caption "Description of
the Notes", to the extent that it constitutes a summary of the terms of the
Securities, and under the captions "Regulation" and "Underwriting", to the
extent that it constitutes matters of law, summaries of legal matters, or legal
conclusions, has been reviewed by us and is correct in all material respects.
(x) The statements set forth in the Prospectus under the caption "Certain
United States Federal Income Tax Consequences", insofar as such statements
purport to summarize certain United States federal income and estate tax
consequences of the ownership and dispensation of the Securities by certain U.S.
Holders and non-U.S. Holders (as such terms are defined therein) of the
Securities, provide a fair summary of such consequences under current law.
(xi) All descriptions in the Prospectus of contracts and other documents
to which the Company or any of its subsidiaries are a party are accurate in all
material respects; to the best of our knowledge, there are no franchises,
contracts, indentures, mortgages, loan agreements, notes, leases or other
instruments that would be required to be described in the Prospectus that are
not described or referred to in the Prospectus other than those described or
referred to therein and the descriptions thereof or references thereto are
correct in all material respects.
(xii) Neither the Company nor any of its subsidiaries is in violation of
its charter or by-laws or other constituting or operative document or agreement
and, to the best of our knowledge, no default by the Company or any of its
subsidiaries exists in the due performance or observance of any material
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other agreement or
instrument that is described or referred to in the Prospectus.
(xiii) No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any court or governmental
authority or agency is necessary or required for the performance by the Company
of its obligations under the Underwriting Agreement or the Indentures, in
connection with the offering, issuance or sale of the Securities hereunder or
thereunder or the consummation of the actions contemplated by the Underwriting
Agreement or the Indentures, except such as have been obtained under the 1933
Act and the Trust Indenture Act, and such consents, approvals, authorizations,
registrations or qualifications as may be required under state securities or
Blue Sky laws in connection with the purchase and distribution of the Securities
by the Underwriters.
(xiv) The issue and sale of the Securities, the execution, delivery and
performance of the Underwriting Agreement, the Indentures and the Securities and
any other agreement or instrument entered into or issued or to be entered into
or issued by the Company in connection with the transactions contemplated
hereby, thereby or in the Prospectus, and the consummation of the transactions
contemplated herein, therein and in the Prospectus (including the issuance and
sale of the Securities by the Company hereunder), the compliance by the Company
with its obligations hereunder and thereunder have been duly authorized by all
necessary corporate action on the part of the Company and do not and will not,
whether with or without the giving of notice or passage of time or both,
conflict with or constitute a breach of, or default or a Repayment Event under,
or result in the creation or imposition of any lien, charge or
A-1-2
encumbrance upon any property or assets of the Company or any of its
subsidiaries, pursuant to any contract, indenture, mortgage, deed of trust, loan
or credit agreement, note, lease, or any other agreement or instrument known to
such counsel to which the Company or any of its subsidiaries is a party or by
which it or any of them may be bound, or to which any of the property or assets
of the Company or any subsidiaries thereof is subject, except for such
conflicts, breaches or defaults or liens, charges or encumbrances that, singly
or in the aggregate, would not result in a Material Adverse Effect, nor will
such action result in any violation of the provisions of the constituting or
operative document or agreement of the Company or any of its subsidiaries or any
applicable law, statute, rule, regulation, judgment, order, writ or decree of
any government, government instrumentality or court, domestic or foreign, having
jurisdiction over the Company or any of its subsidiaries or any of their assets
or properties.
(xv) The Company is not, and upon the issuance and sale of the Securities
and the application of the net proceeds therefrom will not be, an "investment
company" or an entity "controlled" by an "investment company," as such terms are
defined in the 1940 Act.
(xvi) The Registration Statement and the Prospectus and any further
amendments and supplements thereto made by the Company prior to each Closing
Time (other than the financial statements and related schedules therein, as to
which such counsel need express no opinion) comply as to form in all material
respects with the requirements of the 1933 Act and the rules and regulations
thereunder; although they do not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement or the Prospectus, except for those referred to in subsection (ix) of
this opinion, they have no reason to believe that, as of its effective date, the
Registration Statement or any further amendment thereto made by the Company
prior to such Closing Time (other than the financial statements and related
schedules therein, as to which such counsel need express no opinion) contained
an untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading or that, as if its date, the Prospectus or any further amendment or
supplement thereto made by the Company prior to such Closing Time (other than
the financial statements and related schedules therein, as to which such counsel
need express no opinion) contained an untrue statement of a material fact or
omitted to state a material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading or that,
as of such Closing Time, either the Registration Statement or the Prospectus or
any further amendment or supplement thereto made by the Company prior to such
Closing Time (other than the financial statements and related schedules therein,
as to which such counsel need express no opinion) contains an untrue statement
of a material fact 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; and they do not know of any amendment to the Registration
Statement required to be filed or of any contracts or other documents of a
character required to be filed as an exhibit to the Registration Statement or
required to be described in the Registration Statement or the Prospectus which
are not filed or described as required.
In rendering such opinion, such counsel (A) may rely as to matters of fact
(but not as to legal conclusions), to the extent they deem proper, on
certificates of responsible officers of the Company and public officials and (B)
may state that they express no opinion as to the laws of any jurisdiction
outside the United States. Such opinion shall not state that it is to be
governed or qualified by, or that it is otherwise subject to, any treatise,
written policy or other document relating to legal opinions, including, without
limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
A-1-3
Exhibit A-2
FORM OF OPINION OF R. BRUCE EASTER, ESQ.
TO BE DELIVERED PURSUANT TO SECTION 5(b)
(i) There is not pending or, to the best of my knowledge, threatened any
action, suit, proceeding, inquiry or investigation, to which the Company or any
subsidiary thereof is a party, or to which the property of the Company or any
subsidiary thereof is subject, before or brought by any court or governmental
agency or body, which could reasonably be expected to result in a Material
Adverse Effect, or which might reasonably be expected to materially and
adversely affect the properties or assets thereof or the consummation of the
transactions contemplated in the Underwriting Agreement, the Indentures or the
Securities or the performance by the Company of its obligations thereunder or
the transactions contemplated by the Prospectus.
(ii) To the best of my knowledge and except as set forth in or
contemplated by the Prospectus with respect to systems under development, (a)
each of the Company and its Designated Subsidiaries has all Authorizations 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, which are necessary or appropriate for the
Company and its Designated Subsidiaries to own, lease, license, use and
construct 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 any
such Authorizations or make any such declaration or filing would not, singly or
in the aggregate, reasonably be expected to result in a Material Adverse Effect,
(b) all such Authorizations are in full force and effect with respect to the
Company and its Designated Subsidiaries, (c) no event has occurred that permits,
or after notice or lapse of time could permit, the revocation, termination or
modification of any such Authorization and (d) the Company and its Designated
Subsidiaries are in compliance in all material respects with the terms and
conditions of all such Authorizations and with the rules and regulations of the
regulatory authorities and governing bodies having jurisdiction with respect
thereto.
(iii) To the best of my knowledge, neither the execution and delivery of
the Underwriting Agreement, the Indentures or the Securities, nor the
consummation by the Company of the transactions contemplated hereby or thereby
will cause any suspension, revocation, impairment, forfeiture, nonrenewal or
termination of any Authorization.
In rendering such opinion, such counsel (A) may rely as to matters of fact
(but not as to legal conclusions), to the extent he deems proper, on
certificates of responsible officers of the Company and public officials and (B)
may state that he expresses no opinion as to the laws of any jurisdiction
outside the United States. Such opinion shall not state that it is to be
governed or qualified by, or that it is otherwise subject to, any treatise,
written policy or other document relating to legal opinions, including, without
limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
A-2-1