Exhibit (h)
FORM OF UNDERWRITING AGREEMENT
EQUITY SECURITIES TRUST I
21,279,206 Equity Trust Securities*
(Representing Beneficial Interests in a Contract Relating to
Shares of Cablevision NY Group Class A Common Stock, $.01 par value, of
Cablevision Systems Corporation)
Underwriting Agreement
New York, New York
October [17] , 2001
BEAR XXXXXXX & CO. INC.
XXXXXXX XXXXX & CO.
XXXXXXX XXXXX XXXXXX INC.
As Representatives of the several Underwriters,
c/o Xxxxxxx Xxxxx Xxxxxx Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Equity Securities Trust I, a statutory business trust organized under the
State of Delaware Business Trust Act, 12 Del.C. Section 3801 et seq. (the
"Delaware Act"), (such trust and the trustees thereof acting in their capacities
as such being referred to herein as the "Trust"), proposes to issue and to sell
to the several underwriters named in Schedule I hereto (the "Underwriters"), for
whom you (the "Representatives") are acting as representatives, an aggregate of
21,279,206 Equity Trust Securities representing shares of beneficial interest in
the Trust (the "Underwritten Equity Trust Securities"). In addition, the
Underwriters will have an option to purchase up to 3,191,880 Equity Trust
Securities (the "Option Equity Trust Securities" and, together with the
Underwritten Equity Trust Securities, the "Equity Trust Securities") to cover
over-allotments, if any. The Option Equity Trust Securities and the Underwritten
Equity Trust Securities, together with the [1] Equity Trust Securities of the
Trust subscribed for by Xxxxxxx Xxxxx Xxxxxx Inc. ("Xxxxxxx Xxxxx Xxxxxx")
pursuant to the Subscription Agreement, dated as of October 2, 2001, between
Xxxxxxx Xxxxx Xxxxxx and the Trust (the "Subscription Equity Trust Securities"),
are
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* Plus an option to purchase from the Trust up to 3,191,880 additional
Equity Trust Securities to cover over-allotments.
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referred to herein as the "Securities." The Securities are to be issued
under an Amended and Restated Declaration of Trust, dated as of October [16],
2001 (the "Trust Agreement"), among the initial trustee and initial sponsor of
the Trust, the trustees of the Trust (the "Trustees") and Xxxxxxx Xxxxx Xxxxxx,
as sponsor.
The Trust has entered into forward purchase contracts (the "Contracts")
with AT&T Broadband CSC II, Inc., a Delaware corporation and AT&T Broadband CSC
Holdings Inc., a Delaware corporation ("Counterparties"), pursuant to which
Counterparties have agreed to sell, and the Trust have agreed to purchase, the
number of shares (the "Shares") of Cablevision NY Group Class A Common Stock,
par value $.01 per share (the "Cablevision NY Group Class A Common Stock") of
Cablevision Systems Corporation, a Delaware corporation, (the "Company"),
specified therein on [ ], 2004 (the "Exchange Date") (subject to Counterparties'
right to extend and accelerate the Exchange Date and to deliver cash with a
value equivalent thereto, or other property, as provided in the Contracts).
Counterparties' obligations under the Contracts will be secured by a pledge of
collateral under collateral agreements (the "Collateral Agreements"), each among
a Counterparty, the Trust and The Bank of New York ("BoNY"), as collateral agent
(in such capacity, the "Collateral Agent").
In connection with the foregoing, the Company has filed with the
Commission a registration statement, including a basic prospectus, with respect
to 21,279,206 Shares in respect of the Underwritten Equity Trust Securities,
plus an additional 3,191,880 Shares in respect of the Option Equity Trust
Securities [and an additional [1] Shares in respect of the Subscription Equity
Trust Securities], for delivery by Counterparties pursuant to the Securities,
which registration statement is referred to in Section 2(a) of this Agreement.
To the extent there are no additional Underwriters listed on Schedule I
other than you, the term Representatives as used herein shall mean you, as
Underwriters, and the terms Representatives and Underwriters shall mean either
the singular or plural as the context requires. The use of the neuter in this
Agreement shall include the feminine and masculine wherever appropriate. Certain
terms used herein are defined in Section 23 hereof.
1. Representations and Warranties of the Trust. The Trust represents and
warrants to, and agrees with, each Underwriter as set forth below in this
Section 1.
(a) The Trust meets the requirements for use of Form N-2 under the
Act and has prepared and filed with the Commission (a) a notification on Form
N-8A (the "Notification") of registration of the Trust as an investment company
under the Investment Company Act and (b) a registration statement on Form N-2
(file numbers 333-34600 and 811-9897), including a related preliminary
prospectus, for the registration of the offering and sale of the Equity Trust
Securities under the Act. The Trust may have filed one or more amendments
thereto, including the related preliminary prospectus, each of which has
previously been furnished to you. The Trust will next file with the Commission
one of the following: either (1) prior to the Trust Effective Date of such
registration statement, a further amendment to such registration statement
(including the form of final prospectus); or (2) after the Trust Effective Date
of such registration statement, a final prospectus in accordance with Rules 430A
and 497(h). In the case of clause (2), the Trust has included in such
registration statement, as amended at the Trust Effective Date, all information
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(other than Rule 430A Information) required by the Act and the rules thereunder
to be included in such registration statement and the Trust Prospectus. As
filed, such amendment and form of final prospectus, or such final prospectus,
shall contain all Rule 430A Information, together with all other such required
information, and, except to the extent the Representatives shall agree in
writing to a modification, shall be in all substantive respects in the form
furnished to you prior to the Execution Time or, to the extent not completed at
the Execution Time, shall contain only such specific additional information and
other changes (beyond that contained in the latest Preliminary Trust Prospectus)
as the Trust has advised you, prior to the Execution Time, will be included or
made therein.
(b) On the Trust Effective Date, the Trust Registration Statement
and the Notification did or will, and when the Trust Prospectus is first filed
(if required) in accordance with Rule 497(h) and on the Closing Date (as defined
herein) and on any date on which Option Equity Trust Securities are purchased,
if such date is not the Closing Date (a "Settlement Date"), the Trust Prospectus
(and any supplements thereto) will comply in all material respects with the
applicable requirements of the Act, the Exchange Act and the Investment Company
Act, and the respective rules thereunder; on the Trust Effective Date and at the
Execution Time, the Trust 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; and, on the Trust Effective Date, the Trust Prospectus, if not filed
pursuant to Rule 497(h), did not or will not, and on the date of any filing
pursuant to Rule 497(h) and on the Closing Date and any Settlement Date, the
Trust 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.
(c) No stop order suspending the effectiveness of the Trust
Registration Statement is in effect, no order preventing or suspending the use
of any Preliminary Trust Prospectus has been issued by the Commission, no notice
or order under Section 8(e) of the Investment Company Act has been issued, and
no proceedings for any such purpose are pending before or threatened by the
Commission.
(d) The Trust has been duly created, is validly existing as a
business trust under the Delaware Act, has the power and authority to own or
lease, as the case may be, and to operate its properties and conduct its
business as described in the Trust Prospectus and to enter into and perform its
obligations under this Agreement, the Trust Agreement and each of the
Fundamental Agreements (as defined below) and is duly qualified to do business
and is in good standing under the laws of each jurisdiction in which it owns or
leases properties or conducts any business so as to require such qualification
other than where the failure to be so qualified would not have a material
adverse effect on the Trust or its assets. The Trust has no subsidiaries.
(e) The Trust is registered with the Commission as a
non-diversified, closed-end management investment company under the Investment
Company Act and no order of suspension or revocation of such registration has
been issued or proceedings therefor initiated or, to the knowledge of the Trust,
threatened by the Commission. No person is serving or acting as
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an officer or trustee of the Trust except in accordance with the provisions of
the Investment Company Act.
(f) This Agreement has been duly authorized, executed and delivered
by the Trust.
(g) Each of the Contracts, the Collateral Agreements, the
Administration Agreement between BoNY and the Trust (the "Administration
Agreement"), the Custodian Agreement between BoNY and the Trust (the "Custodian
Agreement"), the Paying Agent Agreement between BoNY and the Trust (the "Paying
Agent Agreement") and the Fund Indemnity Agreement between Xxxxxxx Xxxxx Xxxxxx
and the Trust (the "Fund Indemnity Agreement") (the Contracts, the Collateral
Agreements, the Administration Agreement, the Custodian Agreement, the Paying
Agent Agreement and the Fund Indemnity Agreement are referred to herein,
collectively, as the "Fundamental Agreements") has been duly authorized,
executed and delivered by the Trust and, assuming due authorization, execution
and delivery by the other parties thereto, is a valid and binding agreement of
the Trust, enforceable against the Trust in accordance with its terms except as
such enforceability may be limited by applicable bankruptcy, insolvency and
similar laws affecting creditors' rights generally and by general equitable
principles.
(h) The execution and delivery by the Trust of, and the performance
by the Trust of its obligations under, this Agreement and each Fundamental
Agreement (including the issue and sale by the Trust of the Equity Trust
Securities as contemplated by this Agreement) 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 or violation of, or default under, or give the holder of any
indebtedness of the Trust the right to require the repurchase, redemption or
repayment of all or a portion of such indebtedness under, or result in the
creation or imposition of any lien, charge or encumbrance upon any property or
assets of the Trust pursuant to, any contract, indenture, mortgage, deed of
trust, loan or credit agreement, note, lease or other agreement or instrument to
which the Trust is a party or by which it may be bound, or to which any of the
property or assets of the Trust is subject, nor will such action result in any
violation of the provisions of the Trust Agreement 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 Trust or any of its assets or properties; and no consent, approval,
authorization, order of, or qualification or filing with, any governmental body
or agency, self-regulatory organization or court or other tribunal, whether
foreign or domestic, is required for the execution and delivery by the Trust of
this Agreement or the Fundamental Agreements or the performance by the Trust of
its obligations hereunder and thereunder, except for the filing of a Certificate
of Trust and the filing of a Restated Certificate of Trust with the office of
the Secretary of State of the State of Delaware (which filings have been duly
made) and such as have been obtained and as may be required by the securities or
Blue Sky laws of the various states and foreign jurisdictions in connection with
the offer and sale of the Equity Trust Securities by the Underwriters.
(i) The Equity Trust Securities, the Trust Agreement and the
Fundamental Agreements conform in all material respects to the descriptions
thereof contained in the Trust Prospectus.
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(j) The Trust Agreement and the Fundamental Agreements comply with
all applicable provisions of the Act, the Exchange Act and the Investment
Company Act, and all approvals of such documents required under the Investment
Company Act by the holders of the Securities and the Trustees have been obtained
and are in full force and effect.
(k) On the Closing Date, the Fundamental Agreements will be in full
force and effect and the Trust will not be in default thereunder and, to the
knowledge of the Trust, no event will have occurred which with the passage of
time or the giving of notice or both would constitute a default thereunder. The
Trust is not currently in breach of, or in default under, the Trust Agreement or
any other written agreement or instrument to which it or its property is bound
or affected.
(l) All of the outstanding Securities have been duly authorized and
are validly issued, fully paid and nonassessable undivided beneficial interests
in the assets of the Trust, and the form of certificate used to evidence the
Securities is in due and proper form and complies with all provisions of
applicable law.
(m) The Equity Trust Securities have been duly authorized by the
Trust for issuance to the Underwriters pursuant to this Agreement and, when
issued and delivered by the Trust in accordance with the terms of this Agreement
and the Trust Agreement against payment of the purchase price therefor as
provided herein, will be validly issued, fully paid and nonassessable undivided
beneficial interests in the assets of the Trust, and the issuance of such Equity
Trust Securities will not be subject to any preemptive or similar rights. No
person has rights to the registration of any securities because of the filing of
the Trust Registration Statement, and no holder of the Securities will be
subject to personal liability by reason of being such a holder.
(n) The Equity Trust Securities have been approved for listing on
the New York Stock Exchange (the "NYSE"), subject to official notice of
issuance. The Trust's Registration Statement on Form 8-A under the Exchange Act
is effective.
(o) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the condition,
financial or otherwise, of the Trust, or in the investment objectives,
investment policies, liabilities, business, prospects or operations of the Trust
from that set forth in the Trust Prospectus (exclusive of any supplements
thereto subsequent to the date of this Agreement) and there have been no
transactions entered into by the Trust which are material to the Trust other
than those in the ordinary course of its business or as described in the Trust
Prospectus (exclusive of any supplements thereto subsequent to the date of this
Agreement).
(p) There are no legal or governmental proceedings pending or, to
the knowledge of the Trust, threatened against or affecting the Trust that are
required to be described in the Trust Registration Statement or the Trust
Prospectus and are not so described or any statutes, regulations, contracts or
other documents that are required to be described in the Trust Registration
Statement or the Trust Prospectus or to be filed as exhibits to the Trust
Registration Statement that are not described or filed as required.
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(q) The Trust has all necessary consents, authorizations, approvals,
orders (including exemptive orders), certificates and permits of and from, and
has made all declarations and filings with, all governmental authorities,
self-regulatory organizations and courts and other tribunals, whether foreign or
domestic, to own and use its assets and to conduct its business in the manner
described in the Trust Prospectus, except to the extent that the failure to
obtain or file the foregoing would not have a material adverse effect on the
Trust and except such as may be required by the securities or Blue Sky laws of
the various states in connection with the offer and sale of the Equity Trust
Securities.
(r) There are no material restrictions, limitations or regulations
with respect to the ability of the Trust to invest its assets as described in
the Trust Prospectus, other than as described therein.
(s) The Trust has good title to all properties owned by it, 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 Trust 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 Trust.
(t) There are no legal or governmental proceedings pending to which
the Trust is a party or of which any property of the Trust is the subject which,
if determined adversely to the Trust, would individually or in the aggregate
have a material adverse effect on the current or future financial position or
results of operations of the Trust; and, to the best of the Trust's knowledge,
no such proceedings are threatened or contemplated by governmental authorities
or threatened by others.
(u) The statement of assets, liabilities and capital included in the
Trust Registration Statement and the Trust Prospectus, together with the notes
thereto, present fairly the financial position of the Trust at the date
indicated, and such financial statement has been prepared in conformity with
generally accepted accounting principles in the United States of America.
(v) The accountants who certified the financial statements and
supporting schedules included in the Trust Registration Statement are
independent public accountants as required by the Act and the rules and
regulations of the Commission thereunder.
(w) The Trust has not taken and will not take, directly or
indirectly, any action designed to or which has constituted or which might
reasonably be expected to cause or result, under the Exchange Act or otherwise,
in stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Equity Trust Securities or the Shares.
2. Representations and Warranties of the Company. The Company represents
and warrants to, and agrees with, each Underwriter as set forth below in this
Section 2.
(a) The Company meets the requirements for use of Form S-3 under the
Act. The Company Registration Statement and any Rule 462(b) Company Registration
Statement has
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become effective under the Act. At the respective times the Company Registration
Statement, any Rule 462(b) Company Registration Statement and any post-effective
amendments thereto become effective (the "Company Effective Date") and on each
Settlement Date, (A) the Company Registration Statement and any amendments and
supplements thereto, comply and will comply in all material respects with the
requirements of the Act, (B) neither the Company Registration Statement nor any
amendment or supplement thereto includes or will include an untrue statement of
a material fact or omits or will omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading and
(C) neither the Company Prospectus nor any amendment or supplement thereto
includes or will include an untrue statement of a material fact or omits or will
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 this representation and warranty does not apply to
statements or omissions made in reliance upon and in conformity with information
furnished to the Company in writing (i) by any Underwriter through the
Representatives expressly for use in the Company Registration Statement or the
Company Prospectus, (ii) by or on behalf of the Counterparties or AT&T Corp
("AT&T") expressly for use in the Company Registration Statement or the Company
Prospectus or (iii) by or on behalf of the Trust expressly for use in the
Company Registration Statement or the Company Prospectus. The Company makes no
representations or warranties as to the Trust Registration Statement or the
Trust Prospectus.
(b) The documents incorporated or deemed to be incorporated by
reference in the Company Prospectus pursuant to Item 12 of Form S-3 under the
Act, at the time they were or hereafter are filed with the Commission, complied
and will comply in all material respects with the requirements of the Exchange
Act and, when read together and with the other information in the Company
Prospectus, at the time the Company Registration Statement became effective and
at all times subsequent thereto up to the Closing Date and any Settlement Date,
did not and will not include an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading.
(c) KPMG LLP, who are reporting upon the audited financial
statements and schedules included or incorporated by reference in the Company
Registration Statement, are independent accountants as required by the Act.
(d) This Agreement has been duly authorized, executed and delivered
by the Company.
(e) The consolidated historical financial statements of the Company
and its subsidiaries included or incorporated by reference in the Company
Registration Statement and the Company Prospectus present fairly the
consolidated financial position of the Company and its subsidiaries as of the
dates indicated and the consolidated results of operations and changes in
financial position of the Company and its subsidiaries for the periods
specified. Such financial statements have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis
throughout the periods involved. The financial statement schedules, if any,
included in the Company Registration Statement present fairly the information
required to be stated therein. The selected financial data included in the
Company Prospectus present fairly
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the information shown therein and have been compiled on a basis consistent with
that of the audited consolidated financial statements included or incorporated
by reference in the Company Registration Statement.
(f) The Company is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware with power and
authority (corporate and other) under such laws to own, lease and operate its
properties and conduct its business as described in the Company Prospectus; and
the Company is duly qualified to transact business as a foreign corporation and
is in good standing in each other jurisdiction in which it owns or leases
property of a nature, or transacts business of a type, that would make such
qualification necessary, except to the extent that the failure to so qualify or
be in good standing would not have a material adverse effect on the Company and
its subsidiaries, considered as one enterprise.
(g) The subsidiaries of the Company set forth on Schedule II are, as
of the date hereof, all of the "Restricted Subsidiaries", as such term is
defined in the indenture dated March 22, 2001, between CSC Holdings, Inc. (a
wholly-owned subsidiary of the Company) and the Bank of New York, Trustee. The
subsidiaries of the Company set forth on Schedule III are "Unrestricted
Subsidiaries", as such term is defined in such indenture (the restricted
subsidiaries and the unrestricted subsidiaries are hereinafter referred to
collectively as the "Subsidiaries"). The Subsidiaries on Schedules II and III
with an asterisk by their names, together with CSC Holdings, Inc., are the only
subsidiaries of the Company which had at December 31, 2000 assets in excess of
10% of the consolidated assets of the Company and its subsidiaries as at that
date or had, in the aggregate, for the fiscal year then ended revenues or
operating cash flow in excess of 10% of consolidated revenues or consolidated
operating cash flow of the Company and its subsidiaries for such period (such
Subsidiaries are referred to herein as the "Material Subsidiaries"). In making
this determination, any subsidiary acquired after December 31, 2000 shall be
deemed to have been acquired as of such date.
(h) Each Material Subsidiary that is a corporation is duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation with power and authority (corporate and other)
under such laws to own, lease and operate its properties and conduct its
business; and each such Material Subsidiary is duly qualified to transact
business as a foreign corporation and is in good standing in each other
jurisdiction in which it owns or leases property of a nature, or transacts
business of a type, that would make such qualification necessary, except to the
extent that the failure to be so qualified or in good standing would not have a
material adverse effect on the Company and its subsidiaries, considered as one
enterprise. All of the outstanding shares of capital stock of each Material
Subsidiary that is a corporation have been duly authorized and validly issued
and are fully paid and nonassessable and, except as disclosed on Schedule II or
III to this Agreement or as disclosed or contemplated by the Company
Registration Statement, are owned by the Company, directly or through one or
more subsidiaries, free and clear of any pledge, lien, security interest,
mortgage, charge, claim, equity or encumbrance of any kind.
(i) Each of the Material Subsidiaries in which the Company or a
subsidiary of the Company is a limited or general partner (hereinafter called
the "Partnerships") has been duly formed and is validly existing as a limited or
general partnership, as the case may be, under the
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laws of its jurisdiction of organization, with full power and authority to own,
lease and operate properties and conduct its business; all necessary filings
with respect to the formation of the Partnerships as limited or general
partnerships (as the case may be) have been made under such laws; and each of
the Partnerships is duly qualified to transact business and is in good standing
in each other jurisdiction in which it owns or leases property of a nature, or
transacts business of a type, that would make such qualification necessary,
except to the extent that the failure to be so qualified or in good standing
would not have a material adverse effect on the Company and its subsidiaries,
considered as one enterprise.
(j) The Company had, at June 30, 2001, a duly authorized and
outstanding capitalization as set forth in the Company Prospectus under the
caption "Capitalization"; the Shares conform in all material respects to the
description thereof contained in the Company Prospectus and such description
conforms in all material respects to the rights set forth in the instruments
defining the same.
(k) All of the outstanding shares of capital stock of the Company,
including the Shares, 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, including the Shares, was issued in violation of the preemptive
rights of any stockholder of the Company.
(l) Since the respective dates as of which information is given in
the Company Registration Statement and the Company Prospectus, except as
otherwise stated therein or contemplated thereby, there has not been (A) any
material loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor dispute
or court or governmental action, order or decree and there has not been any
change in the capital stock or long-term debt of the Company or any of its
Subsidiaries or any change which the Company has reasonable cause to believe
will involve any material adverse change, or any development involving a
prospective material adverse change, in or affecting the financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, considered as one enterprise, or (B) any transaction entered into
by the Company or any Subsidiary, other than in the ordinary course of business,
that is material to the Company and its subsidiaries, considered as one
enterprise, or (C) any dividend or distribution of any kind declared, paid or
made by the Company on its capital stock.
(m) Neither the Company nor any Subsidiary is in default in the
performance or observance of any obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, loan agreement, note, lease or
other agreement or instrument to which it is a party or by which it may be bound
or to which any of its properties may be subject, except for such defaults that
would not have a material adverse effect on the financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, considered as one enterprise. The execution and delivery of this
Agreement and the compliance by the Company with its obligations hereunder at
the Closing Date and any Settlement Date shall have been duly authorized by all
necessary corporate action on the part of the Company and do not and will not
result in any violation of the charter or by-laws of the Company or any
Subsidiary, and do not and will not conflict with, or result in a breach of any
of the terms or provisions of,
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or constitute a default under, or result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of the Company or any
Subsidiary under:
(i) any contract, indenture, mortgage, loan agreement, note, lease or
other agreement or instrument to which the Company or any Subsidiary is a
party or by which it may be bound or to which any of its properties may be
subject (except for such conflicts, breaches or defaults or liens, charges
or encumbrances that would not have a material adverse effect on the
financial position, stockholders' equity or results of operations of the
Company and its subsidiaries, considered as one enterprise); or
(ii) any existing applicable law, rule, regulation, judgment, order or
decree of any government, governmental instrumentality or court, domestic
or foreign, having jurisdiction over the Company or any Subsidiary or any
of its properties (except for such conflicts, breaches or defaults or
liens, charges or encumbrances that would not have a material adverse
effect on the financial position, stockholders' equity or results of
operations of the Company and its subsidiaries, considered as one
enterprise); or
(iii) any material agreement or other material instrument (including any
franchise agreement, license, permit or other governmental authorization
granted by the Federal Communications Commission (hereinafter called the
"FCC"), The New York State Public Service Commission on Cable Television
or any other governing body having jurisdiction over the Company's cable
television operations) binding upon the Company or any of its Subsidiaries
(except for such conflicts, breaches or defaults or liens, charges or
encumbrances that would not have a material adverse effect on the
financial position, stockholders' equity or results of operations of the
Company and its subsidiaries, considered as one enterprise).
(n) The statements in the Company Prospectus under "Risk Factors"
and "Description of Capital Stock," and the statements in the Company's annual
report on Form 10-K, as supplemented and amended by the Company's Form 10-K/As,
for the year ended December 31, 2000 (the "2000 Form 10-K"), which is
incorporated by reference in the Company Prospectus, under "Business --
Competition -- Cable Television" and "Business -- Regulation -- Cable
Television", and in the Company Registration Statement in Item 15, and the
statements cross-referenced therein, insofar as such statements constitute a
summary of the legal matters, documents or proceedings referred to therein, with
respect to such legal matters, documents and proceedings, do not contain any
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary in order to make the statements therein not
misleading.
(o) Except as disclosed in the Company Prospectus, no authorization,
approval, consent or license of any government, governmental instrumentality or
court, domestic or foreign (other than under the Act and the securities or the
blue sky laws of the various states) is required for the execution, delivery or
performance of this Agreement by the Company, except for any consent, approval,
authorization, order or registration the failure of which to obtain or make or
the absence of which would result in no material adverse effect on the Company
and its subsidiaries, considered as one enterprise.
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(p) Except as disclosed in the Company Prospectus, there is no
action, suit or proceeding before or by any government, governmental
instrumentality or court, domestic or foreign, now pending or, to the best of
the Company's knowledge, threatened against or affecting the Company or any
Subsidiary that the Company has reasonable cause to believe will result in any
material adverse change in the consolidated financial position, stockholders'
equity or results of operations of the Company and its subsidiaries, considered
as one enterprise, or that will materially and adversely affect the properties
or assets of the Company and its subsidiaries, considered as one enterprise, or
that the Company has reasonable cause to believe will materially adversely
affect the consummation of the transactions contemplated in this Agreement.
(q) There are no contracts or documents of a character required to
be described in the Company Registration Statement, the Company Prospectus or
the documents incorporated by reference therein or to be filed as exhibits to
the Company Registration Statement that are not described and filed as required.
(r) The Company and the Subsidiaries each has good and marketable
title to all material properties and assets described in the Company Prospectus
as owned by it, free and clear of all liens, charges, encumbrances or
restrictions, except such as (A) are described in the Company Prospectus or (B)
are neither material in amount nor materially significant in relation to the
business of the Company and its subsidiaries, considered as one enterprise; and
any material real property and buildings under lease by the Company and the
Subsidiaries are held by them under valid, subsisting and enforceable leases
with such exceptions as do not interfere, to an extent material to the Company
and its subsidiaries, considered as one enterprise, with the use made and
proposed to be made of such property and buildings by the Company and the
Subsidiaries.
(s) Except as disclosed in the Company Prospectus, the Company and
the Subsidiaries each owns, possesses or has obtained all material agreements,
governmental licenses, permits, certificates, consents, orders, approvals and
other material authorizations (including, without limitation, all material
governmental authorizations and agreements with public utilities and microwave
transmission companies and pole access and rental agreements) necessary to own
or lease, as the case may be, and to operate its properties and to carry on its
business as presently conducted; and neither the Company nor any Subsidiary has
received any notice of proceedings relating to revocation or modification of any
such licenses, permits, certificates, consents, orders, approvals or
authorizations.
(t) To the best knowledge of the Company and except as disclosed in
the Company Prospectus, no labor problem exists with its employees or with
employees of the Subsidiaries that could reasonably be expected to materially
and adversely affect the financial position, stockholders' equity or results of
operations of the Company and its subsidiaries, considered as one enterprise.
11
3. Representations and Warranties of Counterparties. Each Counterparty
(with respect to itself and AT&T) and AT&T (with respect to each Counterparty
and itself) represents and warrants to, and agrees with, each Underwriter, the
Company and the Trust that:
(a) Such Counterparty has been duly organized, is validly existing
as a corporation in good standing under the laws of the jurisdiction in
which it is chartered or organized, with full power and authority to own
its property.
(b) Such Counterparty has full legal right, capacity, power and
authority to enter into and perform its obligations under this Agreement,
the Contract and Collateral Agreement to which it is a party and the
letter agreement between Counterparties and Xxxxxxx Xxxxx Xxxxxx relating
to expenses of the Trust (the "Reimbursement Agreement").
(c) This Agreement has been duly authorized, executed and delivered
by such Counterparty. The Contract and the Collateral Agreement to which
it is a party and the Reimbursement Agreement have been duly authorized,
executed and delivered by such Counterparty and, assuming due
authorization, execution and delivery by the other parties thereto, are
valid and binding agreements of such Counterparty, enforceable against it
in accordance with their terms except as such enforceability may be
limited by applicable bankruptcy, insolvency and similar laws affecting
creditors' rights generally and by general equitable principles.
(d) The execution and delivery by such Counterparty and AT&T of this
Agreement, the execution and delivery by such Counterparty of the Contract
and Collateral Agreement to which it is a party and the Reimbursement
Agreement, the performance by such Counterparty of its obligations
hereunder and thereunder and the consummation of the transactions herein
and therein contemplated (including, without limitation, (i) the pledge by
such Counterparty to the Trust of a security interest in the Shares
pursuant to its respective Collateral Agreement, (ii) following an
Acceleration Event (as defined in the Contracts), any action by the
Collateral Agent to foreclose on the Shares and deliver the Shares to the
Trust, and any action by the Trust to distribute the Shares to the holders
of the Equity Trust Securities pursuant to the terms of the Trust
Agreement and the Collateral Agreements, and (iii) if the Counterparties
do not elect the Cash Delivery Option or elect the Cash Delivery Option
but fail thereafter to deliver cash as required by the Contracts, any
action by the Collateral Agent to deliver the Shares to the Trust or by
the Trust to distribute the Shares to the holders of the Equity Trust
Securities pursuant to the terms of the Trust Agreement and the Collateral
Agreements) do not and will not, whether with or without the giving of
notice or passage of time or both, conflict with, result in a breach or
violation of, or default under, any contract, indenture, mortgage, deed of
trust, loan or credit agreement, note or other agreement or instrument to
which such Counterparty or AT&T is a party or by which it may be bound
(including, without limitation the Stockholders Agreement dated March 4,
1998, as amended by the Letter Agreements dated August 8, 2001, September
10, 2001 and October 5, 2001 (as so amended, the "Stockholders
Agreement")), nor will such actions result in any violation of the
provisions of the certificate of incorporation or by-laws of
12
such Counterparty or AT&T or any law, order, rule or regulation applicable
to such Counterparty or AT&T of any court, federal or state regulatory
body, administrative agency or other governmental body having jurisdiction
over such Counterparty or AT&T or its properties. Upon the occurrence of
any of the events listed in clauses (ii) and (iii) in the preceding
sentence, the Shares referred to in such clauses will be free and clear of
any restriction imposed on the Shares by the Stockholders Agreement.
Amounts received by such Counterparty under the Contract to which it is a
party at the Closing Date and, if any Option Equity Trust Securities are
purchased, at the time of delivery thereof pursuant to Section 4(b), will
not be used by such Counterparty for the purpose, whether immediate,
incidental or ultimate, of buying or carrying a margin stock, as such
terms are defined in Regulation U promulgated by the Board of Governors of
the Federal Reserve System.
(e) Such Counterparty is not and, after giving effect to the
transactions contemplated in the Contract and the Collateral Agreement to
which it is a party and the offering and sale of the Equity Trust
Securities contemplated by this Agreement, will not be an "investment
company" or an entity "controlled" by an "investment company" as such
terms are defined in the Investment Company Act.
(f) Such Counterparty [and AT&T] is now and on the Exchange Date
will be the beneficial owner of the Shares to be sold under the Contract
to which it is a party free and clear of all liens, encumbrances, equities
and claims, except for those created pursuant to the Collateral Agreement
to which it is a party, and, assuming that the Trust acquires its interest
in such Shares in exchange for the Firm Purchase Price and the Additional
Purchase Price (as defined in the Collateral Agreements) in accordance
with the terms of the Contract to which it is a party without notice of
any adverse claim (within the meaning of Section 8-105 of the New York
Uniform Commercial Code ("UCC")), on the Exchange --- Date the Trust will
have acquired either the Shares free of any adverse claim (within the
meaning of Section 8-102(a)(1) of the UCC) or a security entitlement
(within the meaning of Section 8-102(a)(17) of the UCC) to such Shares, in
accordance with the terms of the Contract to which such Counterparty is a
party. Such Counterparty has the full right, power and authority, and all
authorization and approvals required by law to pledge and assign the
Shares to be pledged and assigned by such Counterparty pursuant to the
Collateral Agreement to which it is a party. The sale, transfer and
delivery of any Shares to be delivered by such Counterparty pursuant to
the Contract to which it is a party is not, and at the time of delivery of
such Shares will not be, subject to any right of first refusal or similar
rights of any person pursuant to any contract to which such Counterparty
or any shareholder of such Counterparty is a party or by which any of them
is bound.
(g) [Certificates in negotiable form for such Counterparty's Shares
have been or, prior to the Closing Date, will be placed in custody, for
delivery pursuant to the terms of the Contract and Collateral Agreement,
under a Custody Agreement duly authorized, executed and delivered by such
Counterparty, in the form heretofore furnished to you (the "Custody
Agreement") with [ ], as Custodian (the "Custodian"); the Shares
represented by the certificates so held in custody for such Counterparty
will be subject to the interests of the Trust pursuant to the Contract and
the Collateral Agreement to which it is a party;
13
the arrangements for custody and delivery of such certificates, made by
such Counterparty pursuant to the Contract and the Collateral Agreement to
which it is a party and the Custody Agreement, are not subject to
termination by any acts of such Counterparty, or by operation of law.]
(h) At the respective times the Company Registration Statement, any
Company Rule 462(b) Registration Statement become effective, at the
Closing Time (and, if any are purchased on a date other than the Closing
Date, at Settlement Date, (A) neither the Company Registration Statement
nor any amendment or supplement thereto includes or will include an untrue
statement of a material fact or omits or will omit to state any material
fact required to be stated therein or necessary to make the statements
therein not misleading and (B) neither the Company Prospectus nor any
amendment or supplement thereto includes or will include an untrue
statement of a material fact or omits or will 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 this representation and -------- ------- warranty applies
only to statements or omissions relating to such Counterparty or AT&T
furnished to the Company in writing by or on behalf of such Counterparty
or AT&T expressly for use in the Company Registration Statement or Company
Prospectus.
(i) Such Counterparty hereby repeats and confirms as if set forth in
full herein each of the representations, warranties, guarantees and
agreements made by it in the Contract and the Collateral Agreement to
which it is a party and agrees that the representations, warranties,
guarantees and agreements therein and herein are made hereby for the
benefit of, and may be relied upon by, (i) the Underwriters, Xxxxxxxx &
Xxxxxxxx and Cleary, Xxxxxxxx, Xxxxx & Xxxxxxxx, counsel to the
Underwriters and (ii) the Company and Xxxxxxxx & Xxxxxxxx, counsel to the
Company.
(j) Neither such Counterparty [nor AT&T] has taken or 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,
under the Exchange Act or otherwise, in stabilization or manipulation of
the price of any security of the Company to facilitate the sale or resale
of the Shares or the Equity Trust Securities.
(k) No consent, approval, license, authorization, order or
validation of, and no filing, recording, or registration with, any court
or governmental authority, agency or body is required for the compliance
by such Counterparty with all of the provisions of this Agreement, the
Contract and the Collateral Agreement to which it is a party and the
Reimbursement Agreement, except such as have been obtained under the Act
and such as may be required under the blue sky laws in connection with the
purchase and distribution of the Equity Trust Securities by the
Underwriters and the distribution of the Shares pursuant to the terms of
the Equity Trust Securities in the manner contemplated herein and in the
Trust Prospectus and the Company Prospectus.
(l) Such Counterparty is a wholly-owned subsidiary of AT&T.
14
Any certificate signed by such Counterparty or any director or officer
thereof, as the case may be, and delivered to the Representatives or counsel for
the Underwriters in connection with the offering of the Equity Trust Securities
shall be deemed a representation and warranty by such Counterparty (and not of
such officer in his individual capacity), as to matters covered thereby, to each
Underwriter.
4. Purchase and Sale.
(a) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Trust agrees to sell to
each Underwriter, and each Underwriter agrees, severally and not jointly, to
purchase from the Trust, at a purchase price of $[ ] per Equity Trust Security,
the amount of the Underwritten Equity Trust Securities set forth opposite such
Underwriter's name in Schedule I hereto.
(b) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Trust hereby grants an
option to the several Underwriters to purchase, severally and not jointly, up to
3,191,880 Option Equity Trust Securities at the same purchase price per Equity
Trust Security as the Underwriters shall pay for the Underwritten Equity Trust
Securities. The option may be exercised only to cover over-allotments in the
sale of the Underwritten Equity Trust Securities by the Underwriters. The option
may be exercised in whole or in part at any time (but not more than once) on or
before the 30th day after the date of the Trust Prospectus upon written or
facsimile notice by the Representatives to the Trust setting forth the number of
Option Equity Trust Securities as to which the several Underwriters are
exercising the option and the Settlement Date. Delivery of certificates for the
Option Equity Trust Securities by the Trust, and payment therefor to the Trust,
shall be made as provided in Section 5 hereof. The number of shares of the
Option Equity Trust Securities to be purchased by each Underwriter shall be the
same percentage of the total number of Option Equity Trust Securities to be
purchased by the several Underwriters as such Underwriter is purchasing of the
Underwritten Equity Trust Securities, subject to such adjustments as you in your
absolute discretion shall make to eliminate any fractional Equity Trust
Securities.
(c) As compensation to the Underwriters for their commitment
hereunder, and in view of the fact that the proceeds of the sale of the Equity
Trust Securities will be used by the Trust as specified in the Contracts, the
Counterparties agree to pay to Xxxxxxx Xxxxx Xxxxxx, at the time of each
delivery of Equity Trust Securities pursuant to Section 5, an amount equal to $[
] Equity Trust Security being delivered at such time, plus $[ ] per Equity Trust
Security for each Subscription Equity Trust Securities owned by Xxxxxxx Xxxxx
Xxxxxx after giving effect to the subdivision of the Subscription Equity Trust
Securities provided for in the Subscription Agreement.
5. Delivery and Payment. Delivery of and payment for the Underwritten
Equity Trust Securities and the Option Equity Trust Securities (if the option
provided for in Section 4(b) hereof shall have been exercised on or before the
first Business Day prior to the Closing Date)
15
shall be made at 10:00 A.M., New York City time, on October [23], 2001, or at
such time on such later date not later than five Business Days after the
foregoing date as the Representatives shall designate, which date and time may
be postponed by agreement among the Representatives, the Trust and
Counterparties or as provided in Section 13 hereof (such date and time of
delivery and payment for the Equity Trust Securities herein called the "Closing
Date"). Delivery of the Equity Trust Securities shall be made to the
Representatives for the respective accounts of the several Underwriters against
payment by the several Underwriters through the Representatives of the purchase
price thereof to or upon the order of the Trust by wire transfer payable in
immediately available same-day funds to an account specified by the Trust in
writing at least two Business Days in advance of the Closing Date. Delivery of
the Equity Trust Securities shall be made through the facilities of the
Depository Trust Company unless the Representatives shall otherwise instruct.
The Trust agrees to have the Equity Trust Securities available for
inspection and checking by the Representatives in New York, New York, not later
than 1:00 P.M. on the Business Day prior to the Closing Date.
If the option provided for in Section 4(b) hereof is exercised after the
first Business Day prior to the Closing Date, the Trust will deliver the Option
Equity Trust Securities (at the expense of the Trust) to the Representatives on
the date specified by the Representatives (which shall be within three Business
Days after exercise of said option) for the respective accounts of the several
Underwriters, against payment by the several Underwriters through the
Representatives of the purchase price thereof to or upon the order of the Trust
by wire transfer payable in immediately available same-day funds to an account
specified by the Trust in writing at least two Business Days in advance of such
Settlement Date. If settlement for the Option Equity Trust Securities occurs
after the Closing Date, the Trust, the Company and Counterparties will deliver
to the Representatives on the Settlement Date for the Option Equity Trust
Securities, and the obligation of the Underwriters to purchase the Option Equity
Trust Securities shall be conditioned upon receipt of, supplemental opinions,
certificates and letters confirming as of such date the opinions, certificates
and letters delivered on the Closing Date pursuant to Section 10 hereof.
6. Offering by the Underwriters. It is understood that the several
Underwriters propose to offer the Equity Trust Securities for sale to the public
as set forth in the Trust Prospectus.
7. Agreements of the Trust. The Trust agrees with the several Underwriters
that:
(a) The Trust will use its best efforts to cause the Trust
Registration Statement, if not effective at the Execution Time, and any
amendment thereof, to become effective. Prior to the termination of the
offering of the Equity Trust Securities, the Trust will not file any
amendment of the Trust Registration Statement or supplement to the Trust
Prospectus or any Rule 462(b) Trust Registration Statement unless the
Trust has furnished you a copy for your review prior to filing and will
not file any such proposed amendment or supplement to which you object.
Subject to the foregoing sentence, if the Trust Registration Statement has
become or becomes effective pursuant to Rule 430A, or filing of the Trust
Prospectus is otherwise required under Rule 424(b), the Trust will
16
cause the Trust Prospectus, properly completed, and any supplement thereto
to be filed with the Commission pursuant to the applicable paragraph of
Rule 424(b) within the time period prescribed and will provide evidence
satisfactory to the Representatives of such timely filing. The Trust will
promptly advise the Representatives (1) when the Trust Registration
Statement, if not effective at the Execution Time, shall have become
effective, (2) when the Trust Prospectus, and any supplement thereto,
shall have been filed (if required) with the Commission pursuant to Rule
424(b) or when any Rule 462(b) Trust Registration Statement shall have
been filed with the Commission, (3) when, prior to termination of the
offering of the Equity Trust Securities, any amendment to the Trust
Registration Statement or any Rule 462(b) Trust Registration Statement,
shall have been filed or become effective, (4) of any request by the
Commission or its staff for any amendment of the Trust Registration
Statement, or any Rule 462(b) Trust Registration Statement, or for any
supplement to the Trust Prospectus or for any additional information, (5)
of the issuance by the Commission of any stop order suspending the
effectiveness of the Trust Registration Statement or the institution or
threatening of any proceeding for that purpose and (6) of the receipt by
the Trust of any notification with respect to the suspension of the
qualification of the Equity Trust Securities for sale in any jurisdiction
or the institution or threatening of any proceeding for such purpose. The
Trust will use its best efforts to prevent the issuance of any such stop
order or the suspension of any such qualification and, if issued, to
obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Equity Trust
Securities is required to be delivered under the Act, any event occurs as
a result of which the Trust Prospectus as then supplemented would include
any untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein in the light of the circumstances
under which they were made not misleading, or if it shall be necessary to
amend the Trust Registration Statement or supplement the Trust Prospectus
to comply with the Act or the Exchange Act or the respective rules
thereunder, the Trust promptly will (1) notify the Representatives of any
such event, (2) prepare and file with the Commission, subject to the
second sentence of paragraph (a) of this Section 7, an amendment or
supplement which will correct such statement or omission or effect such
compliance and (3) supply any supplemental Trust Prospectus to you in such
quantities as you may reasonably request.
(c) The Trust will furnish to the Representatives and counsel for
the Underwriters, without charge, signed copies of the Trust Registration
Statement (including exhibits thereto) and to each other Underwriter a
copy of the Trust Registration Statement (without exhibits thereto). The
Trust will furnish to the Representatives and counsel for the
Underwriters, without charge, copies of the Trust Registration Statement
(including exhibits thereto). The Trust will furnish to the Underwriters
not later than (i) 12:00 P.M., New York City time, on the Business Day
immediately following the date of determination of the public offering
price of the Equity Trust Securities, if such determination occurred at or
prior to 12:00 noon, New York City time, on such date or (ii) 9:00 A.M.,
New York City time, on the second Business Day immediately following the
date on which the public offering price was determined, if such
determination
17
occurred after 12:00 noon, New York City time, on such date, as many
copies of each Preliminary Trust Prospectus, the Trust Prospectus and any
supplement thereto as the Representatives may reasonably request; further,
so long as delivery of a prospectus by an Underwriter or any dealer may be
required by the Act, as many copies of each Preliminary Trust Prospectus
and the Trust Prospectus and any supplement thereto as the Representatives
may reasonably request.
(d) The Trust will arrange, if necessary, for the qualification of
the Equity Trust Securities and the Shares for sale under the laws of such
jurisdictions as the Representatives may designate, will maintain such
qualifications in effect so long as required for the distribution of the
Equity Trust Securities and will pay any fee of the National Association
of Securities Dealers, Inc. (the "NASD"), in connection with its review,
if any, of the Trust Registration Statement and the offering of the Equity
Trust Securities.
8. Agreements of the Company. The Company agrees with the several
Underwriters that:
(a) The Company will use its best efforts to cause the Company
Registration Statement, if not effective at the Execution Time, and any
amendment thereof, to become effective. Subject to Section 8(c), if filing
of the Company Prospectus is required under Rule 424(b), the Company will
cause the Company 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. The Company
will promptly advise the Representatives when the Company Registration
Statement, if not effective at the Execution Time, shall have become
effective. The Company has furnished or will furnish to the Underwriters
as many copies of any preliminary prospectus and the Company Prospectus as
the Representatives reasonably request.
(b) During the period when the Company Prospectus is required by the
Act to be delivered in connection with sales of the Equity Trust
Securities, the Company will, subject to Section 8(c), file promptly all
documents required to be filed with the Commission pursuant to Section 13
or 14 of the Exchange Act subsequent to the time the Company Registration
Statement becomes effective.
(c) During the period when the Company Prospectus is required by the
Act to be delivered in connection with sales of the Equity Trust
Securities, the Company will inform the Representatives of its intention
to file any amendment to the Company Registration Statement, any
supplement to the Company Prospectus or any document that would as a
result thereof be incorporated by reference in the Company Prospectus;
will furnish the Representatives with copies of any such amendment,
supplement or other document a reasonable time in advance of filing; and
will not file any such amendment, supplement or other document in a form
to which the Representatives shall reasonably object.
18
(d) During the period when the Company Prospectus is required by the
Act to be delivered in connection with sales of the Equity Trust
Securities, the Company will notify the Representatives immediately, and
confirm the notice in writing (with respect to clause (i), upon request),
(i) of the effectiveness of any amendment to the Company Registration
Statement, (ii) of the receipt of any comments from the Commission with
respect to the Company Registration Statement or the Company Prospectus,
(iii) of any request by the Commission to amend the Company Registration
Statement or any supplement to the Company Prospectus or for additional
information relating thereto and (iv) of the issuance by the Commission of
any stop order suspending the effectiveness of the Company Registration
Statement, of the suspension of the qualification of the Shares for
offering or sale in any jurisdiction, or of the institution or to the
Company's knowledge, the threatening of any proceedings for any of such
purposes. The Company will use every reasonable effort to prevent the
issuance of any such stop order or of any order preventing or suspending
such use and, if any such order is issued, to obtain the lifting thereof
at the earliest possible moment.
(e) The Company has furnished or will furnish to the Representatives
one copy of the originally executed Company Registration Statement (as
originally filed) and of each amendment thereto (including exhibits filed
therewith or incorporated by reference therein and documents incorporated
or deemed to be incorporated by reference therein) and a copy of all
originally executed consents and certificates of experts, and has
furnished or will furnish to each of the Representatives as many conformed
copies of the Company Registration Statement as originally filed and of
each amendment thereto (including documents incorporated or deemed to be
incorporated by reference into the Company Prospectus but without
exhibits) as the Representatives may reasonably request.
(f) The Company will use its reasonable best efforts, in cooperation
with the Trust and the Underwriters, to qualify the Shares for offering
and sale under the applicable securities laws of such states and other
jurisdictions as the Representatives may designate and to maintain such
qualifications in effect for a period of not less than one year from the
date hereof; provided, however, that the Company shall not be obligated to
file any general consent to service of process or to qualify as a foreign
corporation or as a dealer in securities in any jurisdiction in which it
is not so qualified or to subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so subject. The
Company will file such statements and reports as may be required by the
laws of each jurisdiction in which the Shares have been qualified as above
provided.
(g) The Company will make generally available to its security
holders as soon as practicable, but not later than 45 days after the close
of the period covered thereby (90 calendar days in the case the period
corresponds to the fiscal year of the Company), an earnings statement of
the Company (in form complying with the provisions of Rule 158 under the
Act), covering a period of 12 months beginning after the effective
19
date of the Registration Statement and covering a period of 12 months
beginning after the effective date of any post-effective amendment to the
Company Registration Statement but not later than the first day of the
Company's fiscal quarter next following such effective date.
(h) The Company will use its reasonable best efforts to comply with
the Act and the Exchange Act. If at any time when the Company Prospectus
is required by the Act to be delivered in connection with sales of the
Equity Trust Securities any event shall occur or condition exist as a
result of which it is necessary to amend the Company Registration
Statement or amend or supplement the Company Prospectus in order that the
Company Prospectus will not include an untrue statement of a material fact
or omit to state a material fact necessary in order to make the statements
therein not misleading in the light of the circumstances existing at the
time it is delivered to a purchaser, or if it shall be necessary at any
such time to amend the Company Registration Statement or amend or
supplement the Company Prospectus in order to comply with the requirements
of the Act, the Company will promptly prepare and file with the
Commission, subject to Section 8(d), such amendment or supplement as may
be necessary to correct such untrue statement or omission or to make the
Company Registration Statement or the Prospectus comply with such
requirements.
(i) For a period of three years after the Closing Date, the Company
will furnish to the Representatives copies of all annual reports,
quarterly reports and current reports filed with the Commission on Forms
10-K, 10-Q and 8-K, or such other similar forms as may be designated by
the Commission, and such other documents, reports and information as shall
be furnished by the Company to its stockholders generally.
(j) The Company will not be or become, at any time prior to the
expiration of three years after the Closing Date, an open-end investment
trust, unit investment trust or face-amount certificate company that is or
is required to be registered under Section 8 of the Investment Company Act
of 1940, as amended.
(k) The Company will not, without the prior written consent of one
of the Representatives, offer, sell, contract to sell or otherwise dispose
of any Shares (except for shares issuable upon conversion of securities or
exercise of warrants and options outstanding as of the date of the Company
Prospectus or pursuant to employee benefit plans) or warrants, rights or
options convertible into or exercisable or exchangeable for Shares at any
time for a period of 90 days after the date of the Company Prospectus.
9. Agreements of Counterparties. Each Counterparty agrees with each of the
Underwriters that:
(a) [Each of such Counterparty [and AT&T] and its other
subsidiaries, will comply with the last paragraph of Section 2 of the
Stockholders Agreement, as in effect on the date hereof. The foregoing
sentence shall not apply to the Shares to be sold hereunder.]
(b) Such Counterparty will not take any action designed to or which
has constituted or which might reasonably be expected to cause or result,
under the Exchange
20
Act or otherwise, in stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the Equity
Trust Securities or the Shares.
(c) Such Counterparty will advise you promptly, and if requested by
you, will confirm such advice in writing, so long as delivery of a
prospectus relating to the Shares (including with respect to the offering
and sale of the Equity Trust Securities) by an Underwriter or dealer may
be required under the Act, of any change in the information furnished to
the Company in writing by or on behalf of such Counterparty or AT&T in the
Company Registration Statement or the Company Prospectus relating to such
Counterparty or AT&T.
10. Conditions to the Obligations of the Underwriters. The obligations of
the Underwriters to purchase the Underwritten Equity Trust Securities and the
Option Equity Trust Securities, as the case may be, shall be subject to the
accuracy of the representations and warranties on the part of the Trust, the
Company and Counterparty contained herein as of the Execution Time, the Closing
Date and any Settlement Date pursuant to Section 4(b) hereof, to the accuracy of
the statements of the Trust, the Company and Counterparty made in any
certificates pursuant to the provisions hereof, to the performance by each of
the Trust, the Company and Counterparty of their respective obligations
hereunder and to the following additional conditions:
(a) If the Trust Registration Statement or the Company Registration
Statement has not become effective prior to the Execution Time, unless the
Representatives agree in writing to a later time, such Trust Registration
Statement or Company Registration Statement will become effective not
later than (i) 6:00 P.M. New York City time on the date of determination
of the public offering price of the Equity Trust Securities, if such
determination occurred at or prior to 3:00 P.M. New York City time on such
date or (ii) 9:30 A.M. New York City time on the Business Day following
the day on which the public offering price of the Equity Trust Securities
was determined, if such determination occurred after 3:00 P.M. New York
City time on such date; if filing of the Trust Prospectus or the Company
Prospectus, or any supplement thereto, is required pursuant to Rule 497(h)
or Rule 424(b), such Trust Prospectus or Company Prospectus, and any such
supplement, will be filed in the manner and within the time period
required by such Rule; and no stop order suspending the effectiveness of
the Trust Registration Statement or the Company Registration Statement
shall have been issued and no proceedings for that purpose shall have been
instituted or threatened.
(b) The Representatives shall have received the opinion of Xxxxxxxx,
Xxxxxx & Xxxxxx, special Delaware counsel for the Trust, dated the Closing
Date and addressed to the Representatives, with respect to such matters as
the Representatives may reasonably request.
(c) The Company Registration Statement, including any Rule 462(b)
Company Registration Statement, has become effective and at the Closing
Date, no stop order suspending the effectiveness of the Company
Registration Statement shall have been issued under the Act and no
proceedings for that purpose shall have been instituted or shall be
pending or, to the knowledge of the Company, shall be contemplated by the
21
Commission, and any request on the part of the Commission for additional
information shall have been complied with to the reasonable satisfaction
of counsel for the Underwriters.
(d) The Representatives shall have received a signed opinion of
Xxxxxxxx & Xxxxxxxx, counsel for the Company, dated as of the Closing
Date, in form and substance satisfactory to counsel for the Underwriters,
to the effect that:
(i) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of
Delaware.
(ii) The Shares have been duly authorized and validly issued
and are fully paid and non-assessable.
(iii) The execution and delivery of this Agreement by the
Company, and the compliance by the Company with the terms of this
Agreement do not and will not result in any violation of the
Certificate of Incorporation or By-laws of the Company, in each case
as in effect as of such Closing Date.
(iv) This Agreement has been duly authorized, executed and
delivered by the Company.
Such counsel shall also furnish the Representatives with a letter to the effect
that as counsel to the Company, they reviewed the Company Registration Statement
and the Company Prospectus, participated in discussions with representatives of
the Representatives and those of the Company and its accountants and advised the
Company as to the requirements of the Act and the applicable rules and
regulations thereunder; between the date of the Company Prospectus and the
Closing Date, such counsel participated in further discussions with
representatives of the Representatives and those of the Company and its
accountants in which the contents of certain portions of the Company Prospectus
and related matters were discussed and reviewed, reviewed certain documents
filed by the Company with the Commission, certificates of certain officers of
the Company and the Counterparties, an opinion addressed to the Underwriters
from Xxxxxx X. Xxxxx, Esq., Vice Chairman, General Counsel and Secretary for the
Company, and a letter from the Company's independent accountants; on the basis
of the information that such counsel gained in the course of the performance of
the services referred to above, considered in the light of such counsel's
understanding of the applicable law (including the requirements of Form S-3 and
the character of the prospectus contemplated thereby) and the experience such
counsel have gained through their practice under the Act, they confirm to the
Representatives that, in such counsel's opinion, the Company Registration
Statement, as of its effective date, and the Company Prospectus, as of the date
of the Company Prospectus (and any amendment to the Company Registration
Statement or supplement to the Company Prospectus, as of its respective
effective or issue date), appeared on their face to be appropriately responsive
in all material respects to the requirements of the Act and the applicable rules
and regulations of the Commission thereunder; further, nothing that came to such
counsel's attention in the course of such review has caused such counsel to
believe that the Company Registration Statement, as of its effective date,
contained any untrue statement of a material fact or omitted to state any
material fact required to
22
be stated therein or necessary to make the statements therein not misleading or
that the Company Prospectus, as of the date of the Company Prospectus, contained
any untrue statement of a material fact or omitted to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; also, nothing that
came to the attention of such counsel in the course of the procedures described
in the second clause of this paragraph has caused such counsel to believe that
the Company Prospectus, as of the Closing Date, contained any untrue statement
of a material fact or omitted to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading; such counsel shall state that the limitations
inherent in the independent verification of factual matters and the character of
determinations involved in the registration process are such that such counsel
does not assume any responsibility for the accuracy, completeness or fairness of
the statements contained in the Company Registration Statement or the Company
Prospectus except for those made under the captions "Description of Cablevision
NY Group Class A Common Stock" and "Plan of Distribution" in the Company
Prospectus insofar as they relate to provisions of documents therein described;
also, such counsel need express no opinion or belief as to the financial
statements or other financial data contained in the Company Registration
Statement or the Company Prospectus or as to the description of statutes,
regulations, proceedings or matters referred to in Section 10(f) hereof.
In rendering such opinion, such counsel may state that they express no opinion
as to the laws of any jurisdiction other than the federal laws of the United
States, the laws of the State of New York and the General Corporation Law of the
State of Delaware, and no opinion as to federal or state laws relating to
communications and telecommunications, including laws which regulate
individuals, companies or businesses because such entities provide
communications or telecommunications services, including the provision of cable
television services or telephone services. Such counsel may also state that they
have relied as to certain matters on information obtained from public officials,
officers of the Company and other sources believed by them to be responsible.
(e) The Representatives shall have received a signed opinion of Xxxxxx X.
Xxxxx, Esq., Vice Chairman, General Counsel and Secretary for the Company, dated
as of the Closing Date, in form and substance satisfactory to counsel to the
Underwriters, to the effect that:
(i) The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Delaware with corporate power and authority under such laws to own,
lease and operate its properties and conduct its business as
described in the Company Prospectus.
(ii) The Company is duly qualified to transact business as a
foreign corporation and is in good standing in each other
jurisdiction in which it owns or leases property of a nature, or
transacts business of a type, that would make such qualification
necessary, except where the failure to be so qualified would not
have a material adverse effect on the Company and its subsidiaries,
considered as one enterprise.
23
(iii) Each Material Subsidiary that is a corporation is duly
incorporated, validly existing and in good standing under the laws
of the jurisdiction of its incorporation, with corporate power and
authority under such laws to own, lease and operate its properties
and conduct its business. Each Material Subsidiary that is a
partnership is duly organized under the laws of the jurisdiction of
its organization.
(iv) The number of authorized shares of capital stock of the
Company is as set forth in the Company Prospectus under the heading
"Capitalization".
(v) All of the outstanding shares of capital stock of each
Material Subsidiary that is a corporation have been duly authorized
and validly issued and are fully paid and nonassessable; except as
set forth on Schedules II and III to this Agreement or as disclosed
in or as contemplated by the Company Prospectus, all of such shares
are owned by the Company, directly or through one or more
subsidiaries, free and clear of any material pledge, lien, security
interest, charge, claim, equity or encumbrance of any kind; no
holder thereof is subject to personal liability under the
certificate of incorporation or by-laws of the respective Material
Subsidiary or the corporation law of the jurisdiction in which such
Material Subsidiary is organized by reason of being such a holder
and none of such shares was issued in violation of the preemptive
rights of any stockholder of such Material Subsidiary under the
certificate of incorporation or by-laws of such Material Subsidiary
or the corporation law of the jurisdiction in which such Material
Subsidiary is organized.
(vi) To such counsel's knowledge, there are no legal or
governmental proceedings pending or threatened to which the Company
or any of its subsidiaries is or may be a party, or of which any of
their properties are or may be the subject, of a character which are
required to be disclosed in the Company Registration Statement, the
Company Prospectus, the 2000 Form 10-K or any Form 10-Q of the
Company, other than those disclosed therein or in any amendments
thereto.
(vii) The documents incorporated by reference in the Company
Prospectus or any further amendment or supplement thereto made by
the Company prior to the Closing Date (other than the financial
statements and related schedules therein and any untrue statement or
omission of a material fact contained therein which was corrected in
the Company Prospectus, as to which such counsel need express no
opinion), when they became effective or were filed with the
Commission, as the case may be, complied as to form in all material
respects with the requirements of the Exchange Act and the rules and
regulations of the Commission thereunder; and he has no reason to
believe that such documents, considered together, as of the date of
the Company Prospectus or as of the Closing Date, contained or
contain an untrue statement of a material fact or omitted or omit to
state a material fact necessary in order to make the statements
24
therein, in the light of the circumstances under which they were
made, not misleading.
(viii) Such counsel does not know of any contracts or
documents of a character required to be described or referred to in
the Company Registration Statement or the Company Prospectus or to
be filed as exhibits to the Company Registration Statement that are
not described, referred to or filed as required.
(ix) To the knowledge of such counsel, no default exists in
the performance or observance of any material obligation, agreement,
covenant or condition contained in any contract, indenture, loan
agreement, note, lease or other agreement or instrument that is
described or referred to in the Company Registration Statement or
the Company Prospectus or filed as an exhibit to the Company
Registration Statement or any subsequent Form 10-Q of the Company,
which default would have a material adverse effect on the financial
position, stockholders' equity or results of operations of the
Company and its subsidiaries, considered as one enterprise.
(x) The execution and delivery by the Company of this
Agreement and the compliance by the Company with its obligations
under this Agreement, will not conflict with the terms or provisions
of, or constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument (including
any franchise agreement, license, permit or other governmental
authorization granted by the FCC, The New York State Public Service
Commission on Cable Television or any other federal or New York
State governing body having jurisdiction over the Company's cable
television operations) known to such counsel to which the Company or
any Subsidiary is a party or by which the Company or any Subsidiary
is bound or to which any of the property or assets of the Company or
any Subsidiary is subject, which conflict, breach, violation or
default would have a material adverse effect on the financial
position, stockholders' equity or results of operations of the
Company and its subsidiaries, taken as a whole, nor will such action
result in any violation of the provisions of the Certificate of
Incorporation or By-laws of the Company or any federal, New York or
Delaware General Corporation Law statute or any order, rule or
regulation known to such counsel of any federal, New York or
Delaware court or governmental agency or body having jurisdiction
over the Company or any Subsidiary or any of their properties, which
violation in each case would have a material adverse effect on the
financial position, stockholders' equity or results of operations of
the Company and its subsidiaries, taken as a whole; and no consent,
approval, authorization, order, registration or qualification of or
with any such court or governmental agency or body is required for
the consummation by the Company of the transactions contemplated by
this Agreement, except with respect to such consents, approvals,
authorizations, registrations or qualifications as may be required
under state or foreign securities laws in connection with the
purchase and distribution of the Equity Trust Securities by the
Underwriters or the distribution of Shares pursuant to the terms of
the Equity Trust Securities.
25
(xi) All of the outstanding shares of 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 rights of any stockholder of the Company under the
Company's Certificate of Incorporation or By-laws or the Delaware
General Corporation Law.
In rendering such opinion, such counsel may state that he expresses no opinion
as to any matters governed by any laws of any jurisdiction other than the
federal laws of the United States (other than federal communications laws, as to
which such counsel need express no opinion), the laws of the State of New York
and the General Corporation Law of the State of Delaware. In giving such
opinion, such counsel may rely, as to all matters governed by the laws of any
other jurisdiction, upon opinions of other counsel, who shall be counsel
satisfactory to counsel for the Underwriters, in which case the opinion shall
state that he believes the Representatives and he are entitled to so rely. Such
counsel may also state that, insofar as such opinion involves factual matters,
he has relied upon certificates of officers of the Company and the Subsidiaries
and certificates of public officials.
(f) The Representatives shall have received a signed opinion of
Xxxxx, Xxxxx, Xxxx, Xxxxxx, Xxxxxxx and Xxxxx, P.C., as special communications
counsel to the Company, dated as of the Closing Date, in form and substance
satisfactory to counsel to the Underwriters, to the effect that:
(i) The approvals, if any, required to be obtained from the
FCC to consummate the transactions contemplated by this Agreement
have been obtained and are in full force and effect.
(ii) Such counsel does not know of any federal communications
and copyright statutes that are principally directed to the
regulation of cable properties applicable to the Company that are
not described in the Company Prospectus but would be material and
relevant to the business of the Company, and the descriptions in the
Company Prospectus of such statutes therein described are accurate
and fairly summarize the information shown.
(iii) The information in the Company Registration Statement
and Company Prospectus under the captions "Risk Factors -- Our
business is subject to extensive government regulations and changes
in current or future laws or regulations could restrict our ability
to operate our business as we currently do", "Risk Factors -- Recent
FCC and Congressional issues may effect our businesses" and "Risk
Factors -- Our financial performance may be harmed by the
significant and credible risk of competition in our cable television
business" and in the 2000 Form 10-K under the captions "Business --
Competition -- Cable Television" and "Business -- Regulation --
Cable Television", to the extent that such sections describe
statutes, regulations and governmental proceedings or matters
involving federal communications and copyright law and policy and
the impact thereof on the business in which the Company and its
26
subsidiaries are engaged, has been reviewed by them and fairly
represents the communications and copyright law described therein
applicable to the Company and its subsidiaries as disclosed in the
Company Prospectus and material and relevant to the business of the
Company and its subsidiaries.
In giving such opinion, such counsel may rely, as to all matters governed
by the laws of jurisdictions other than the law of the District of Columbia, the
federal law of the United States and the corporate law of the State of Delaware,
upon opinions of other counsel, who shall be counsel satisfactory to counsel for
the Underwriters, in which case the opinion shall state that they believe the
Representatives and they are entitled to so rely. 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 the
Subsidiaries and certificates of public officials.
(g) Counterparties shall have caused Xxxxx Xxxx & Xxxxxxxx, counsel
for Counterparties and AT&T, to have furnished to the Representatives its
opinion dated the Closing Date and addressed to the Representatives, to
the effect that:
(i) Each of the Counterparties and AT&T is 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 power to own its property;
(ii) This Agreement has been duly authorized, executed and
delivered by each Counterparty and AT&T; the Contracts, the
Collateral Agreements and the Reimbursement Agreement have been duly
authorized, executed and delivered by Counterparties and assuming
due authorization, execution and delivery by the other parties
thereto, constitute valid and legally binding agreements of
Counterparties; each Counterparty has corporate power and authority
to sell, transfer and deliver Shares in connection with the offering
of the Equity Trust Securities in the manner provided in this
Agreement and the Contracts;
(iii) Counterparty is not, and after giving effect to the
distribution of the Shares in connection with the offering of the
Equity Trust Securities and the application of the proceeds thereof,
will not be, an "investment company" as defined in the Investment
Company Act;
(iv) Each Collateral Agreement creates a valid security
interest in favor of the Collateral Agent (as defined therein) for
the benefit of the Trust in the Shares pledged thereunder as
security for the performance by the applicable Counterparty of its
obligations under its respective Contract and to secure the
observance and performance of the covenants and agreements of such
Counterparty contained in its respective Contract and Collateral
Agreement;
(v) Each of (i) the execution and delivery by the
Counterparties and AT&T of this Agreement, their respective
Contracts and Collateral Agreements
27
and the Reimbursement Agreement, the performance by the
Counterparties of their respective obligations thereunder and the
consummation of the transactions therein contemplated, including the
pledge by the Counterparties to the Trust of a security interest in
the Shares pursuant to the Collateral Agreement, (ii) following an
Acceleration Event (as defined in the Contracts), any action by the
Collateral Agent to foreclose on the Shares and deliver the Shares
to the Trust, and any action by the Trust to distribute the Shares
to the holders of the Equity Trust Securities pursuant to the terms
of the Trust Agreement, and (iii) if the Counterparties do not elect
the Cash Delivery Option or elect the Cash Delivery Option but fail
thereafter to deliver cash as required by the Contracts, any action
by the Collateral Agent to deliver the Shares to the Trust or by the
Trust to distribute the Shares to the holders of the Equity Trust
Securities pursuant to the terms of the Trust Agreement and the
Collateral Agreements, does not and will not, whether with or
without the giving of notice or passage of time or both, conflict
with, result in a breach or violation of or imposition of any lien
(other than the lien created pursuant to the Collateral Agreements),
charge or encumbrance upon the Shares pursuant to the Stockholders
Agreement and upon the occurrence of the any of the events listed in
clauses (ii) and (iii) above, the Shares referred to in such clauses
will be free and clear of any restriction imposed on the Shares by
the Stockholders Agreement.
(vi) The Custody Agreement has been duly authorized, executed
and delivered by the Counterparties, the Custody Agreement is valid
and binding on the Counterparties and the Counterparties have full
legal right and authority to sell, pledge, transfer and deliver in
the manner provided in their respective Contract and Collateral
Agreement and the Custody Agreement, the Shares to be sold, pledged,
transferred and delivered thereunder; and
(vii) no consent, approval, authorization, filing with or
order of any court or governmental agency or body is required for
the consummation by Counterparty of the transactions contemplated
herein, except such as may 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 Equity Trust
Securities by the Underwriters and the distribution of the Shares
pursuant to the terms of the Equity Trust Securities in the manner
contemplated in this Agreement and in the Trust Prospectus and the
Company Prospectus;
(h) The Representatives shall have received from Xxxxxx, Xxxxxxxx,
Xxxxx & Xxxxxxxx, counsel for the Underwriters and the Trust, such opinion
or opinions, dated the Closing Date and addressed to the Representatives,
with respect to the issuance and sale of the Equity Trust Securities, the
Trust Registration Statement, the Trust Prospectus (together with any
supplement thereto), the Fundamental Agreements and other related matters
as the Representatives may reasonably require, and (ii) from Xxxxxxxx &
Xxxxxxxx, counsel for the Underwriters, a negative assurance letter dated
the Closing Date and addressed to the Representatives, with respect to the
Company Registration Statement, the Company Prospectus (together with any
supplement thereto) and other
28
related matters as the Representatives may reasonably require, and the
Company shall have furnished to such counsel such documents as they
reasonably request for the purpose of enabling them to pass upon such
matters.
(i) The Trust shall have furnished to the Representatives a
certificate of the Trust, signed by the Managing Trustee and dated the
Closing Date, to the effect that:
(i) the representations and warranties of the Trust 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 Trust has complied in all material respects with all of the
agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to the Closing Date (such
certificate to set forth all known failures to comply with such
agreements or satisfy such conditions whether such known failures
are material or immaterial); and
(ii) no stop order suspending the effectiveness of the Trust
Registration Statement or the use of the Trust Prospectus has been
issued and to the Trust's knowledge after due inquiry, no
proceedings for that purpose have been instituted or, to the Trust's
knowledge, threatened.
(j) At the Closing Time, (i) the Company Registration Statement and
the Company Prospectus, as they may then be amended or supplemented, shall
contain all statements that are required to be stated therein under the
Act and, in all material respects, shall conform to the requirements of
the Act and neither the Company Registration Statement nor the Company
Prospectus, as they may then be amended or supplemented, shall 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, (ii) there shall not have been, since the respective dates
as of which information is given in the Company Registration Statement,
any material adverse change or any development involving a prospective
material adverse change in or affecting the financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, considered as one enterprise, (iii) the Company shall have
complied with all agreements and satisfied all conditions on its part to
be performed or satisfied at or prior to the Closing Time and (iv) the
other representations and warranties of the Company set forth in Section 2
shall be accurate as though expressly made at and as of the Closing Time.
At the Closing Time, the Representatives shall have received a certificate
of the Chief Executive Officer, the President, a Vice Chairman or a Vice
President, and the Treasurer or Controller, of the Company, dated as of
the Closing Time, to such effect.
(k) Each Counterparty shall have furnished to the Representatives a
certificate, dated the Closing Date, to the effect that the
representations and warranties of such Counterparty in this Agreement are
true and correct in all material respects on and as of the Closing Date to
the same effect as if made on the Closing Date and such Counterparty has
complied in all material respect with all the agreements and satisfied in
all material respect all the conditions on its part to be performed or
satisfied at or prior to the Closing
29
Date (such certificate to set forth all known failures to comply with such
agreements or satisfy such conditions whether such known failures are
material or immaterial).
(l) The Representatives shall have received from KPMG LLP (i) at the
time of execution of this Agreement, a letter dated the date hereof and
delivered in accordance with Statement on Auditing Standards No. 72, as
amended, in form and substance satisfactory to the Representatives and
(ii) at the Closing Date, a letter, dated as of the Closing Date, to the
effect that KPMG LLP reaffirms the statements made in the letter furnished
pursuant to Section 10(l)(i) hereof, except that the specified date
referred to shall be a date not more than five business days prior to the
Closing Date.
(m) The Equity Trust Securities shall have been approved for listing
on the NYSE, subject only to official notice of issuance.
(n) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Company Registration Statement
(exclusive of any amendment thereof) and the Company Prospectus (exclusive
of any supplement thereto), there shall not have been any change, or any
development involving a prospective change, in or affecting the condition
(financial or otherwise), earnings, business or properties of the Company
and the Subsidiaries taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set forth in or
contemplated in the Company Prospectus (exclusive of any supplement
thereto) the effect of which is, in the judgment of the Representatives,
so material and adverse as to make it impractical or inadvisable to
proceed with the offering or delivery of the Equity Trust Securities as
contemplated by the Trust Registration Statement and the Company
Registration Statement (in either case, exclusive of any amendment
thereof) and the Trust Prospectus and the Company Prospectus (in either
case, exclusive of any supplement thereto).
(o) The NASD shall not have raised any objection with respect to the
fairness and reasonableness of the underwriting terms and arrangements.
(p) Each Fundamental Agreement shall have been executed and
delivered by all parties thereto, and Counterparties shall have delivered
to the Collateral Agent the number of Shares required by the Collateral
Agreement to be initially pledged and assigned by each Counterparty in
accordance with the requirements of its Collateral Agreement.
(q) Prior to the Closing Date, the Representatives shall have
received an agreement substantially in the form of Exhibit A hereto signed
by the persons listed on Schedule IV hereto.
(r) Prior to the Closing Date, counsel for the Underwriters shall
have been furnished with all such documents, certificates and opinions as
they may reasonably
30
request for the purpose of enabling them to pass upon the sale of the
Shares as herein contemplated and the matters referred to in Section 10(h)
and in order to evidence the accuracy and completeness of any of the
representations, warranties or statements of the Company, the Trust, AT&T,
and the Counterparties, the performance of any of the covenants of the
Company, the Trust, AT&T, and the Counterparties, or the fulfillment of
any of the conditions herein contained.
If any of the conditions specified in this Section 10 shall not have been
fulfilled in all material respects when and as provided in this Agreement, or if
any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and counsel for the Underwriters, this
Agreement and all obligations of the Underwriters hereunder may be canceled at,
or at any time prior to, the Closing Date by the Representatives. Notice of such
cancellation shall be given to the Trust, the Company and Counterparty in
writing or by telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 10 shall be
delivered to Shearman & Sterling, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, attention of Xxxxxxxx Xxxxxx, Esq., on the Closing Date.
11. Expenses. (a) Counterparties will pay all expenses incident to the
performance by the Trust and their obligations under this Agreement and the
Contracts and Collateral Agreements, including (i) the preparation, printing and
filing of the Notification and the Trust Registration Statement (including
financial statements and exhibits) as originally filed and of each amendment
thereto, (ii) the preparation, printing and delivery of this Agreement, the
Trust Agreement, each of the Fundamental Agreements and such other documents as
may be required in connection with the offering, purchase, sale, issuance or
delivery of the Equity Trust Securities, (iii) the preparation, issuance and
delivery of the certificates for the Equity Trust Securities to the
Representatives, (iv) the fees and disbursements of the Trust's counsel,
accountants and other advisors, (v) the fees and disbursements of
Counterparties' counsel and other advisors, (vi) the qualification of the Equity
Trust Securities under state securities laws in accordance with the provisions
of Section 7(d) hereof, including filing fees and the reasonable fees and
disbursements of the counsel for the Underwriters in connection therewith and in
connection with the preparation of the related blue sky survey and any
supplement thereto, (vii) the printing and delivery to the Representatives of
copies of each Preliminary Trust Prospectus, the Trust Prospectus and any
amendments or supplements thereto, (viii) the fees and expenses of any transfer
agent or registrar for the Equity Trust Securities, (ix) the filing fees
incident to, and the reasonable fees and disbursements of counsel to the
Underwriters in connection with, securing any required review by the NASD of the
Trust Registration Statement and the offering of the Equity Trust Securities in
accordance with the provisions of Section 7(d) hereof, (x) the fees and expenses
incurred in connection with the listing of the Equity Trust Securities on the
NYSE and (xi) the fees and expenses incurred in connection with the preparation
and filing of a registration statement under the Exchange Act relating to the
Equity Trust Securities. Counterparties will reimburse the Underwriters through
Xxxxxxx Xxxxx Xxxxxx on the Closing Date in immediately available funds for the
Up-Front Fee Amount and the Up-Front Expense Amount (each as defined in the Fund
Expense Agreement dated as of the Closing Date between
31
Xxxxxxx Xxxxx Xxxxxx and XxXX) and for the up-front fees of the trustees of the
Trust paid by Xxxxxxx Xxxxx Xxxxxx.
(b) Counterparties will pay all expenses incident to the performance
by the Company of its obligations under this Agreement, including (i) the
preparation, printing and filing of the Company Registration Statement
(including financial statements and exhibits) as originally filed and of each
amendment thereto, (ii) the preparation, issuance and delivery of the
certificates for the Shares to the Trust, (iii) the fees and disbursements of
the Company's counsel, accountants and other advisors, (iv) the qualification of
the Shares under state securities laws in accordance with the provisions of
Section 8(e) hereof, including filing fees and the reasonable fees and
disbursements of counsel for the Underwriters in connection therewith and in
connection with the preparation of any related blue sky survey and any
supplement thereto, (v) the printing and delivery to the Representatives of
copies of each Preliminary Company Prospectus, the Company Prospectus and any
amendments or supplements thereto, (vi) the fees and expenses of any transfer
agent or registrar for the Shares, (vii) the filing fees incident to, and the
reasonable fees and disbursements of counsel to the Underwriters in connection
with, securing any required review by the NASD of the Company Registration
Statement and the offering of the Shares in accordance with the provisions of
Section 8(e) hereof and (viii) the fees and expenses incurred in connection with
the approval of the Shares for trading on the New York Stock Exchange.
(c) If the sale of the Equity Trust Securities provided for herein
is not consummated because any condition to the obligations of the Underwriters
set forth in Section 10 hereof is not satisfied, because of any refusal,
inability or failure on the part of the Company or Counterparties to perform any
agreement herein or comply with any provision hereof other than by reason of a
default by the Underwriters, Counterparties will reimburse the Underwriters
through Xxxxxxx Xxxxx Xxxxxx upon demand for all out-of-pocket expenses
(including reasonable fees and disbursements of counsel) that shall have been
incurred by the Underwriters in connection with the proposed purchase and sale
of the Equity Trust Securities.
(d) The provisions of this Section 11 shall not supersede or
otherwise affect any agreement that the Company, on the one hand, and
Counterparties or AT&T Broadband LLC, on the other hand, may otherwise have for
the allocation of such expenses among themselves.
12. Indemnification. (a) The Company agrees to indemnify and hold harmless
the Trust, each of the Trustees, each Underwriter and each person, if any, who
controls the Trust or any Underwriter within the meaning of Section 15 of the
Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of an untrue statement
or alleged untrue statement of a material fact contained in the
Company Registration Statement (or any amendment thereto), including
all documents incorporated therein by reference, or the omission or
alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading
or arising out of an untrue statement or alleged untrue statement of
a material fact included in any Preliminary Company Prospectus or
the Company
32
Prospectus (or any amendment or supplement thereto) or the omission
or alleged omission therefrom of a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate
amount paid in settlement of any litigation, or investigation or
proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission, if such settlement is effected with the written consent of
the Company; and
(iii) against any and all expense whatsoever, as incurred
(including fees and disbursements of counsel chosen by the
Representatives), reasonably incurred in investigating, preparing or
defending against any litigation, or investigation or proceeding by
any governmental agency or body, commenced or threatened, or any
claim whatsoever based upon any such untrue statement or omission,
or any such alleged untrue statement or omission, to the extent that
any such expense is not paid under subparagraph (i) or (ii) above;
provided, however, that this indemnity agreement does not apply to any loss,
liability, claim, damage or expense to the extent arising out of an untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by (i)
any Underwriter through the Representatives expressly for use in the Company
Registration Statement (or any amendment thereto), or any Preliminary Company
Prospectus or the Company Prospectus (or any amendment or supplement thereto),
(ii) the Counterparties or AT&T, or on behalf of the Counterparties or AT&T,
expressly for use in the Company Registration Statement (or any amendment
thereto), or any Preliminary Company Prospectus or the Company Prospectus (or
any amendment or supplement thereto) or (iii) the Trust, or on behalf of the
Trust, expressly for use in the Company Registration Statement (or any amendment
thereto), or any Preliminary Company Prospectus or the Company Prospectus (or
any amendment or supplement thereto);
The foregoing indemnity with respect to any untrue statement contained in
or any omission from any Preliminary Company Prospectus, shall not inure to the
benefit of any Underwriter (or any person controlling such Underwriter) on
account of any loss, claim, damage, liability or litigation arising from the
sale of Equity Trust Securities to any person by such Underwriter if such
Underwriter failed to send or give a copy of the Preliminary Company Prospectus,
as the same may be supplemented or amended, to such person within the time
required by the Act, and the untrue statement or alleged untrue statement or
omission or alleged omission of a material fact in such preliminary prospectus
was corrected in the Company Prospectus, unless such failure resulted from
noncompliance by the Company with its obligations hereunder to furnish the
Underwriters with copies of the Company Prospectus.
33
(b) The Counterparties severally agree to indemnify and hold
harmless the Trust, each of the Trustees, the Company, each Underwriter and each
person, if any, who controls the Trust or any Underwriter within the meaning of
Section 15 of the Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of (A) an untrue
statement or alleged untrue statement of a material fact contained
in the Trust Registration Statement (or any amendment thereto),
including all documents incorporated therein by reference, or the
omission or alleged omission therefrom of a material fact required
to be stated therein or necessary to make the statements therein not
misleading; (B) an untrue statement or alleged untrue statement of a
material fact included in any Preliminary Trust Prospectus or the
Trust Prospectus (or any amendment or supplement thereto), or the
omission or alleged omission therefrom of a material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading and (C) an
untrue statement or alleged untrue statement of material fact
contained in any information furnished to the Company in writing by
or on behalf of the Counterparties or AT&T in the Company
Registration Statement or the Company Prospectus relating to the
Counterparties or AT&T or the omission or alleged omission therefrom
of a material fact required to be stated in such information or
necessary to make the statements in such information (with respect
to the Company Prospectus, in light of the circumstances under which
they were made) not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate
amount paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission, if any such settlement is effected with the written
consent of the Counterparties; and
(iii) against any and all expense whatsoever, as incurred
(including fees and disbursements of counsel chosen by the
Representatives), reasonably incurred in investigating, preparing or
defending against any litigation, or investigation or proceeding by
any governmental agency or body, commenced or threatened, or any
claim whatsoever based upon any such untrue statement or omission,
or any such alleged untrue statement or omission, to the extent that
any such expense is not paid under subparagraph (i) or (ii) above;
The foregoing indemnity with respect to any untrue statement contained in
or any omission from Preliminary Trust Prospectus, shall not inure to the
benefit of any Underwriter (or any person controlling such Underwriter) on
account of any loss, claim, damage, liability or litigation arising from the
sale of Equity Trust Securities to any person by such Underwriter if such
Underwriter failed to send or give a copy of such Preliminary Trust Prospectus,
as the same may be supplemented or amended, to such person within the time
required by the Act, and the
34
untrue statement or alleged untrue statement or omission or alleged omission of
a material fact in such preliminary prospectus was corrected in the Trust
Prospectus, unless such failure resulted from noncompliance by the Trust with
its obligations hereunder to furnish the Underwriters with copies of the Trust
Prospectus.
(c) Each Underwriter severally and not jointly agrees to indemnify
and hold harmless the Company, the directors of the Company, officers of the
Company who signed the Company Registration Statement, and each person, if any,
who controls the Company within the meaning of Section 15 of the Act, against
any and all loss, liability, claim, damage and expense described in the
indemnity agreement in Section 12(a), as incurred, but only with respect to
untrue statements or omissions, or alleged untrue statements or omissions, made
in the Company Registration Statement (or any amendment thereto), any
Preliminary Company Prospectus or in the Company Prospectus (or any amendment or
supplement thereto) in reliance upon and in conformity with written information
furnished to the Company by such Underwriter through the Representatives
expressly for use in the Company Registration Statement (or any amendment
thereto), or such Preliminary Company Prospectus or the Company Prospectus (or
any amendment or supplement thereto).
(d) Each Underwriter severally and not jointly agrees to indemnify
and hold harmless the Counterparties, the directors, officers, employees and
agents of the Counterparties, and each person, if any, who controls the
Counterparties within the meaning of Section 15 of the Act, against any and all
loss, liability, claim, damage and expense described in the indemnity agreement
in Section 12(b), as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Trust
Registration Statement (or any amendment thereto), any Preliminary Trust
Prospectus or in the Trust Prospectus (or any amendment or supplement thereto)
in reliance upon and in conformity with written information furnished to the
Counterparties by such Underwriter through the Representatives expressly for use
in the Trust Registration Statement (or any amendment thereto), or such
Preliminary Trust Prospectus or the Trust Prospectus (or any amendment or
supplement thereto).
(e) Each indemnified party shall give prompt notice 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 shall not relieve it from any liability which it may have otherwise than
on account of this indemnity agreement. An indemnifying party may participate at
its own expense in the defense of such action; provided, however, that counsel
to the indemnifying party shall not (except with the consent of the indemnified
party) also be counsel to the indemnified party. In no event shall the
indemnifying party or parties be liable for the fees and expenses of more than
one counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances.
(f) The provisions of this Section 12 shall not affect any agreement
between the Company, on the one hand, and the Counterparties, AT&T or AT&T
Broadband LLC, on the other hand, with respect to indemnification.
35
13. Contribution.
(a) In order to provide for just and equitable contribution in
circumstances under which the indemnity provided for in paragraph (a) or (c) of
Section 12 is for any reason held to be unenforceable by the indemnified parties
although applicable in accordance with its terms, the Company and the
Underwriters shall contribute to the aggregate losses, liabilities, claims,
damages and expenses of the nature contemplated by such indemnity incurred by
the Company and one or more of the Underwriters, as incurred, in such
proportions that the Underwriters are responsible for that portion represented
by the percentage that the sales load hereunder with respect to the offering of
the Equity Trust Securities bears to the purchase price of the Equity Trust
Securities, and the Company is responsible for the balance on a pro rata basis;
provided, however, that 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.
(b) In order to provide for just and equitable contribution in
circumstances under which the indemnity provided for in paragraph (b) or (d) of
Section 12 is for any reason held to be unenforceable by the indemnified parties
although applicable in accordance with its terms, Counterparties and the
Underwriters shall contribute to the aggregate losses, liabilities, claims,
damages and expenses of the nature contemplated by such indemnity incurred by
the Counterparties and one or more of the Underwriters, as incurred, in such
proportions that the Underwriters are responsible for that portion represented
by the percentage that the sales load hereunder with respect to the offering of
the Equity Trust Securities bears to the purchase price of the Equity Trust
Securities, and the Counterparties are responsible for the balance on a pro rata
basis; provided, however, that 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.
(c) The contribution provisions contained in this Section 13 shall
not affect any agreement between the Company, on the one hand, and the
Counterparties, AT&T or AT&T Broadband LLC on the other hand, with respect to
contribution.
(d) For purposes of this Section, each person, if any, who controls
an Underwriter within the meaning of Section 15 of the Act shall have the same
rights to contribution as such Underwriter, and each director or officer of the
Company or the Selling Stockholders and each person, if any, who controls the
Company or the Counterparties within the meaning of Section 15 of the Act shall
have the same rights to contribution as the Company and the Counterparties,
respectively.
14. Default by an Underwriter. If any one or more Underwriters shall fail
to purchase and pay for any of the Equity Trust 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 Equity Trust Securities set forth opposite their names in Schedule I hereto
bears to the aggregate amount of Equity Trust Securities set forth opposite the
names of all the remaining Underwriters) the Equity
36
Trust Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase; provided, however, that in the event that the aggregate
amount of Equity Trust Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase shall exceed 10% of the aggregate
amount of Equity Trust 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 Equity Trust Securities, and if such
nondefaulting Underwriters do not purchase all the Equity Trust Securities, then
the Company shall have 36 hours within which it may, but it is not obligated, to
find one or more substitute underwriters satisfactory to the Representatives to
purchase such Securities upon the terms set forth in this Agreement and if the
Company is unable to find one or more such underwriters that are satisfactory to
the Representatives, this Agreement will terminate without liability to any
nondefaulting Underwriter, the Company, or Counterparty. In the event of a
default by any Underwriter as set forth in this Section 14, the Closing Date
shall be postponed for such period, not exceeding five Business Days, as the
Representatives shall determine in order that the required changes in the
Company Registration Statement, the Company Prospectus, the Trust Registration
Statement and the Trust 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, Counterparties and any
nondefaulting Underwriter for damages occasioned by its default hereunder.
15. Termination. The Representatives may terminate this Agreement, by
notice to the Company and the Counterparties, at any time at or prior to the
Closing Time (i) if there has been, since the respective dates as of which
information is given in the Company Prospectus, any material adverse change or
any development involving a prospective material adverse change in or affecting
he financial position, stockholders' equity or results of operations of the
Company and its subsidiaries, considered as one enterprise, or (ii) if trading
in securities of the Company or generally on the New York Stock Exchange shall
have been materially suspended or materially limited or minimum prices shall
have been established on such Exchange (which shall not include trading
suspensions or limitations resulting from the operation of General Rules 80A and
80B of such Exchange, as amended or supplemented), or (iii) a banking moratorium
shall have been declared by either federal or New York State authorities, or
(iv) the United States shall have become engaged in hostilities which have
resulted in the declaration of war, or there shall have occurred any other
calamity or crisis, the effect of which (in either event) on the financial
markets of the United States is such as to make it, in the reasonable judgment
of the Representatives, impracticable or inadvisable to proceed with the
offering or delivery of the Equity Trust Securities on the terms and in the
manner contemplated in the Trust Prospectus.
16. Representations and Indemnities to Survive. The respective agreements,
representations, warranties, indemnities and other statements of the Trust, the
Company, Counterparties or their respective officers, if applicable, 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, the Trust, the Company, AT&T, the Counterparties or any of the
officers, directors or controlling persons referred to in Section 12 hereof, and
will survive delivery of and payment for the Equity Trust Securities. The
provisions of Sections 11, 12, 13 and 18 hereof shall survive the termination or
cancellation of this Agreement.
37
17. Guarantee of AT&T.
AT&T agrees to guarantee full payment and complete performance of any and
all obligations of the Counterparties under this Agreement. [Consider if more is
necessary].
18. Notices. All communications hereunder will be in writing and effective
only on receipt, and, if sent to the Representatives, will be mailed, delivered
or telefaxed to the Xxxxxxx Xxxxx Xxxxxx Inc., General Counsel (fax no.: (212) [
]) and confirmed to the General Counsel, care of Xxxxxxx Xxxxx Xxxxxx Inc., at
000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, attention: Xxxxxx Xxxxxxxxxx; if
sent to the Trust, will be mailed, delivered, or telefaxed and confirmed to it
c/o Puglisi & Associates, 000 Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx 00000,
Attention: Xxxxxx X. Xxxxxxx; if sent to the Company, will be mailed, delivered
or telefaxed and confirmed to it at Cablevision Systems Corporation, 000 Xxxxxxx
Xxxxxx, Xxxxxxxx, Xxx Xxxx 00000, xxxxxxxxx of Xxxxxx X. Xxxxx, Esq., Vice
Chairman, Secretary and General Counsel, with a copy to Xxxxxxxx & Xxxxxxxx, 000
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, attention of Xxxx X. Xxxx, Esq.; or if
sent to Counterparties, [____].
19. 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 12 hereof, and no other
person will have any right or obligation hereunder.
20. Applicable Law. This agreement will be governed by and construed in
accordance with the laws of the State of New York applicable to contracts made
and to be performed within the State of New York.
21. Counterparts This Agreement may be executed by any one or more of the
parties 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
agreement.
22. Headings. The section headings used herein are for convenience only
and shall not affect the construction hereof.
23. Definitions. The terms which follow, when used in this Agreement,
shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended, and the rules and
regulations of the Commission promulgated thereunder.
"Business Day" shall mean any day other than a Saturday, a Sunday or a legal
holiday or a day on which banking institutions or trust companies are authorized
or obligated by law to close in New York City.
"Commission" shall mean the Securities and Exchange Commission.
"Company Prospectus" shall mean the prospectus relating to the Shares that is
used in connection with the offering and sale of the Equity Trust Securities and
that is first filed pursuant to Rule
38
424(b) after the Execution Time or, if no filing pursuant to Rule 424(b) is
required, shall mean the form of final prospectus relating to the Shares that is
used in connection with such offering and sale and that is included in the
Company Registration Statement at the Company Effective Date.
"Company Registration Statement" shall mean the registration statement referred
to in Section 2(a) above including incorporated documents, exhibits and
financial statements, as amended at the Execution Time (or, if not effective at
the Execution Time, in the form in which it shall become effective) and, in the
event any post-effective amendment thereto or any Rule 462(b) Company
Registration Statement becomes effective prior to the Closing Date, shall also
mean such registration statement as so amended or such Rule 462(b) Company
Registration Statement, as the case may be.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended, and
the rules and regulations of the Commission promulgated thereunder.
"Execution Time" shall mean the date and time that this Agreement is executed
and delivered by the parties hereto.
"Investment Company Act" shall mean the Investment Company Act of 1940, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"Organizational Documents" shall mean, in respect of any company, corporation,
trust, partnership, limited liability company, governmental agency or other
enterprise, as applicable, its founding act, charter, articles of incorporation
and by-laws, deed of trust, memorandum and articles of association, statute,
certificate of partnership, partnership agreement, limited liability company
agreement, or similar instrument.
"Preliminary Company Prospectus" shall mean any preliminary prospectus relating
to the Shares referred to in Section 2(a) and any preliminary prospectus
included in the Company Registration Statement at the Company Effective Date
that omits Rule 430A Information.
"Preliminary Trust Prospectus" shall mean any preliminary prospectus referred to
in Section 1(a) above and any preliminary prospectus included in the Trust
Registration Statement at the Trust Effective Date that omits Rule 430A
Information.
"Rule 415," "Rule 424," "Rule 430A," "Rule 462," "Rule 497(h)," "Regulation S-K"
and "Regulation S-X" refer to such rules and regulations under the Act.
"Rule 430A Information" shall mean information with respect to the Equity Trust
Securities, the Shares and the offering thereof permitted to be omitted from the
Trust Registration Statement (or, as used in Section 2 above, the Company
Registration Statement) when it becomes effective pursuant to Rule 430A.
"Rule 462(b) Company Registration Statement" shall mean a registration statement
and any amendments thereto filed pursuant to Rule 462(b) relating to the
offering covered by the initial registration statement referred to in Section
2(a) above.
39
"Rule 462(b) Trust Registration Statement" shall mean a registration statement
and any amendments thereto filed pursuant to Rule 462(b) relating to the
offering covered by the initial registration statement referred to in Section
1(a) above.
"Trust Effective Date" shall mean each date and time that the Trust Registration
Statement, any post-effective amendment or amendments thereto and any Rule
462(b) Trust Registration Statement became or become effective.
"Trust Prospectus" shall mean the prospectus relating to the Equity Trust
Securities that is first filed pursuant to Rule 497(h) after the Execution Time
or, if no filing pursuant to Rule 497(h) is required, shall mean the form of
final prospectus relating to the Equity Trust Securities included in the Trust
Registration Statement at the Trust Effective Date.
"Trust Registration Statement" shall mean the registration statement referred to
in paragraph 1(a) above, including exhibits and financial statements, as amended
at the Execution Time (or, if not effective at the Execution Time, in the form
in which it shall become effective) and, in the event any post-effective
amendment thereto or any Rule 462(b) Trust Registration Statement becomes
effective prior to the Closing Date, shall also mean such registration statement
as so amended or such Rule 462(b) Trust Registration Statement, as the case may
be. Such term shall include any Rule 430A Information deemed to be included
therein at the Trust Effective Date as provided by Rule 430A.
As used herein, the terms "Trust Registration Statement," "Preliminary Trust
Prospectus" and "Trust Prospectus" shall not include the Company Prospectus
attached thereto.
As used herein, the terms "Company Registration Statement", "Preliminary Company
Prospectus", and "Company Prospectus" shall not include the Trust Registration
Statement, Preliminary Trust Prospectus or Trust Prospectus.
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicate hereof, whereupon this
letter and your acceptance shall
40
represent a binding agreement among the Trust, the Company, Counterparties
and the several Underwriters.
[SIGNATURES]
41
SCHEDULE I
Number of Underwritten
Equity Trust Securities to be
Underwriters Purchased
Bear, Xxxxxxx & Co. Inc.
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx
Incorporated
Xxxxxxx Xxxxx Xxxxxx Inc.
Banc of America Securities LLC
Xxxxxxx, Xxxxx & Co.
Xxxxxx Brothers Inc.
Credit Lyonnais Securities (USA) Inc.
Xxxx Xxxxxxxx Incorporated
X.X. Xxxxxx Securities Inc.
XX Xxxxx Securities Corporation
Total 21,279,206
----------
42
SCHEDULE II
RESTRICTED SUBSIDIARIES
(* - material subsidiary)
000 Xxxxxx Xxxxxx Corporation
A-R Cable Services - NY, Inc.
Arsenal MSub 2 Inc.
Cablevision Area 9 Corporation
Cablevision Fairfield Corporation
Cablevision Lightpath, Inc.
Cablevision MFR, Inc.
Cablevision of Brookhaven, Inc.
Cablevision of Brookline, Inc.
Cablevision of Cleveland G.P., Inc.
Cablevision of Cleveland L.P., Inc.
Cablevision of Cleveland, L.P.
Cablevision of Connecticut Corporation
Cablevision of Connecticut Limited Partnership
Cablevision of Xxxxxx County, Inc.
Cablevision of Litchfield, Inc.
Cablevision of Monmouth, Inc.
Cablevision of New Jersey, Inc.
Cablevision of Newark
Cablevision of Oakland, Inc.
Cablevision of Ossining Limited Partnership (f/k/a Cablevision of \
Brookline LP)
Cablevision of Paterson, Inc.
Cablevision of Rockland/Ramapo, Inc.
Cablevision of Southern Westchester, Inc.
Cablevision of the Midwest Holding, Inc.
Cablevision of Wappingers Falls, Inc. (f/k/a Cablevision of Boston, Inc.)
Cablevision of Warwick, Inc.
Cablevision Systems Brookline Corporation
Cablevision Systems Dutchess Corporation
Cablevision Systems East Hampton Corporation
Cablevision Systems Great Neck Corporation
Cablevision Systems Huntington Corporation
Cablevision Systems Islip Corporation
Cablevision Systems Long Island Corporation
* Cablevision Systems New York City Corporation (f/k/a NYC LP Corp.)
Cablevision Systems of Southern Connecticut Limited Partnership
1
SCHEDULE II
RESTRICTED SUBSIDIARIES
(* - material subsidiary)
Cablevision Systems Suffolk Corporation
Cablevision Systems Westchester Corporation
Communications Development Corporation
CSC Acquisition - MA, Inc.
CSC Acquisition - NY, Inc.
CSC Acquisition Corporation
CSC Gateway Corporation
CSC TKR, Inc.
CSC TKR I, Inc.
KRC/CCC Investment Partnership
Montague Cable Company, Inc.
Petra Cablevision Corporation
Samson Cablevision Corp.
Suffolk Cable Corporation
Suffolk Cable of Shelter Island, Inc.
Suffolk Cable of Smithtown, Inc.
Telerama, Inc.
2
AC Productions West, Inc.
AC Productions, Inc.
ACEP LLC
American Catholic Enterprises At The Movies Productions East LLC
American Catholic Enterprises Chat Productions East LLC
American Catholic Enterprises Hub Productions East LLC
American Catholic Enterprises Masters Productions East LLC
American Catholic Enterprises News Productions East LLC
American Catholic Enterprises Productions East LLC
American Catholic Enterprises Studios Productions East LLC
American Catholic LLC
AMC II Holding Corporation (1)
AMC Productions, Inc. (1)
American Movie Classics Company (1)
American Movie Classics Holding Corporation (1)
American Pop, LLC
American Sports Classics, L.L.C.
Bravo Acquisition Company LLC
Bravo Company
Bravo Holding Corporation
Bravo II Holding Corporation
Bravo Programming, Inc.
Cable Networks, Inc.
CSC Sterling Holdings, LLC
Foxwatch Productions, Inc.
Garden Programming, L.L.C.
IFC Entertainment LLC
IFC Films LLC
IFC Productions I L.L.C.
IFC Theatres, LLC
* Madison Square Garden, L.P. (2)
Madison Square Garden CT, LLC
Metro Channel, L.L.C.
Metro Channel Holdings I, LLC
Metro Channel Holdings II, LLC
Metro Channel Productions, LLC
MSG Aircraft Leasing, LLC
MSG Boxing, LLC
1
MSG Eden Corporation
MSG Flight Operations, LLC
MSG/TJF Scarlet Productions, LLC
MuchMusic U.S.A. Venture
National Advertising Partners
National PSNA Holdings I, LLC
National PSNA Holdings II, LLC
National Sports Partners
News 00.xxx, Inc. (f/k/a Neighborhood News Holdings, Inc.)
News 12 Holding Corporation
News 12 II Holding Corporation
News 12 New Jersey L.L.C.
News 12 The Bronx, LLC
News 12 The Bronx Holding Corporation
Next Wave Films, L.L.C.
New England Sea Wolves, L.L.C.
New York Rangers Enterprises Company
New York Metro LLC
Prime SportsChannel Networks Associates
Radio City Networks LLC
Radio City Networks Holdings I, LLC
Radio City Networks Holdings II, LLC
Radio City Productions, L.L.C.
Radio City Trademarks, L.L.C.
Rainbow Advertising Holdings, LLC
Rainbow Advertising Sales Corporation
Rainbow CT Holdings, Inc.
Rainbow DBS Holdings, Inc.
Rainbow Films Holding LLC
Rainbow Garden Corp.
Rainbow Media Group, LLC
* Rainbow Media Holdings, Inc.
Rainbow MM Holdings Corporation
Rainbow MM Holdings II Corporation
Rainbow National Sports Holdings, LLC
Rainbow Network Communications
Rainbow News 12 Company
Rainbow NJ Holdings, Inc.
Rainbow NJ Holdings II, Inc.
2
* Rainbow Regional Holdings, LLC
Rainbow Regional Sports News Holdings, LLC
Rainbow Travel, Inc.
Rainbow Westchester Holdings, Inc.
RCE Humbug Productions LLC
RCE/4KE Productions LLC
Regional Chicago Holdings, LLC
Regional Cincinnati Holdings I, LLC
Regional Cincinnati Holdings II, LLC
* Regional MSG Holdings, LLC
Regional NE Holdings I, LLC
Regional NE Holdings II, LLC
Regional Ohio Holdings I, LLC
Regional Ohio Holdings II, LLC
Regional Pacific Holdings, LLC
* Regional Programming Partners
RNC Holding Corporation
RNC II Holding Corporation
SC Florida Holding Company, L.L.C.
Soccer/USA Partners, L.P.
SportsChannel America Associates
SportsChannel America Soccer, Inc.
SportsChannel Associates (2)
SportsChannel Chicago Associates
SportsChannel Cincinnati Associates
SportsChannel Florida Associates
SportsChannel Florida Holding Company L.L.C.
SportsChannel New England Limited Partnership
SportsChannel Ohio Associates
SportsChannel Pacific Associates
SportsChannel Ventures, Inc.
Sterling Digital LLC
The 00xx Xxxxxx Company, L.L.C.
The Independent Film Channel LLC
WE: Women's Entertainment LLC (f/k/a Romance Classics, LLC)
WE: Women's Entertainment Productions, Inc. (f/k/a Romance Classics
Productions, Inc.)
(1)
WSN, LLC
3
1070 Jericho Turnpike Corp.
000 Xxx Xxxxx Xxxx Corporation
1111 Xxxxxxx Corporation
1144 Route 109 Corp.
000 Xxxxx Xxxxxx Corporation
Cablevision Digital Development, LLC
* Cablevision Electronics Investments, Inc.
Cablevision Lightpath - CT, Inc.
Cablevision Lightpath - MA, Inc.
Cablevision Lightpath - MI, Inc.
Cablevision Lightpath - NJ, Inc.
Cablevision Lightpath - NY, Inc.
Cablevision Lightpath - OH, Inc.
Cablevision NYI L.L.C.
Cablevision PCS Investment, Inc.
Cablevision PCS Management, Inc.
Cablevision Real Estate Corporation
Coram Route 112 Corporation
* CCG Holdings, Inc.
CCC Cobble Hill Cinema Corp.
CCC Franklin Square Cinema Corp.
CSC @Security Holding, LLC
CSC At Home Holding Corporation
CSC Charter Holdings I, Inc.
CSC Charter Holdings II, Inc.
CSC Charter Holdings III, Inc.
CSC Investments, Inc.
CSC LF Holdings, LLC
CSC Metro Cinema LLC
CSC Nassau, Inc.
CSC Ohio Holdings I, Inc.
CSC Ohio Holdings II, Inc.
CSC Ohio Holdings III, Inc.
CSC T Holdings, Inc.
CSC T Holdings, I, Inc.
CSC T Holdings, II, Inc.
CSC T Holdings, III, Inc.
CSC T Holdings, IV, Inc.
CSC T Holdings, V, Inc.
4
CSC T Holdings VI, Inc.
CSC Technology, Inc. (f/k/a CSC Realty, Inc.)
CSC Transport, Inc.
CSC Transport II, Inc.
CSC Transport III, Inc.
CSC Transport IV, Inc.
Xxxxxxx Road Corporation
Knollwood Development Corp.
NCC LP Corp.
PVI Holding, LLC
The New York Interconnect L.L.C.
U.S. Cable Television Group, L.P.
-----------------------------
(1) Shares of AMC Productions, Inc., We: Women's Entertainment Productions,
Inc. and partnership interests in American Movie Classics Company held by
AMC II Holding Corporation ("AMC II") and American Movie Classics Holding
Corporation ("AMCHC") are pledged to Toronto Dominion under the terms of a
Stock Pledge Agreement, dated as of April 2, 1997, between American Movie
Classics Holding Company and Toronto Dominion (Texas), Inc., as agent for
the Banks and a Partners Pledge Agreement, dated as of April 2, 1997, by
and between AMC II and AMCHC and Toronto Dominion (Texas), Inc..
(2) All of the capital stock, partnership interests or limited liability
company interests are pledged under the Credit Party Pledge Agreement,
dated as of June 6, 1997 to the Madison Square Garden, L.P. Credit
Agreement.
5
SCHEDULE IV
PERSONS AND ENTITIES SUBJECT TO THE
LOCK-UP AGREEMENT
Xxxxxxx X. Xxxxx
Xxxxx X. Xxxxx
Xxxxxxx X. Xxxx
Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxxxxxx
Xxxxxx X. Xxxxxx
Xxxxxxxx Xxxxxxx
Xxxxxx X. Xxxxx
Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxxx
Xxxxxx Xxxxxxxx
Xxxxxxx Xxxx
Xxxxxxx X. Xxxxx
Xxxx Xxxxx
6
EXHIBIT A
[LOCK-UP AGREEMENT]
7
