Exhibit 1.1
TIME WARNER TELECOM INC.
FORM OF
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
(DEBT SECURITIES)
January 12, 2001
From time to time, Time Warner Telecom Inc., a Delaware corporation
(the "Company"), may enter into one or more underwriting agreements that
provide for the sale of designated securities to the several underwriters
named therein. The standard provisions set forth herein may be incorporated
by reference in any such underwriting agreement (an "Underwriting
Agreement"). The Underwriting Agreement, including the provisions
incorporated therein by reference, is herein sometimes referred to as this
Agreement. Terms defined in the Underwriting Agreement are used herein as
therein defined.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement, including a prospectus, relating to
the Debt Securities and has filed with, or transmitted for filing to, or
shall promptly hereafter file with or transmit for filing to, the
Commission a prospectus supplement (the "Prospectus Supplement")
specifically relating to the Debt Securities pursuant to Rule 424 under the
Securities Act of 1933, as amended (the "Securities Act"). The term
"Registration Statement" means the registration statement, including the
exhibits thereto, as amended to the date of this Agreement. The term "Basic
Prospectus" means the prospectus included in the Registration Statement.
The term "Prospectus" means the Basic Prospectus together with the
Prospectus Supplement. The term "preliminary prospectus" means a
preliminary prospectus supplement specifically relating to the Debt
Securities, together with the Basic Prospectus. As used herein, the terms
"Basic Prospectus," "Prospectus" and "preliminary prospectus" shall include
in each case the documents, if any, incorporated by reference therein. The
terms "supplement," "amendment" and "amend" as used herein shall include
all documents deemed to be incorporated by reference in the Prospectus that
are filed subsequent to the date of the Basic Prospectus by the Company
with the Commission pursuant to the Securities Exchange Act of 1934, as
amended (the "Exchange Act").
1. Representations and Warranties. The Company represents and
warrants to and agrees with each of the Underwriters that:
(a) The Registration Statement has become effective; no stop
order suspending the effectiveness of the Registration Statement is in
effect, and no
<PAGE>
proceedings for such purpose are pending before or , to the
knowledge of the Company, threatened by the Commission.
(b) (i) Each document, if any, filed or to be filed pursuant to
the Exchange Act and incorporated by reference in the Prospectus
complied or will comply when so filed in all material respects with
the Exchange Act and the applicable rules and regulations of the
Commission thereunder, (ii) each part of the Registration Statement,
when such part became effective, did not contain, and each such part,
as amended or supplemented, if applicable, will not contain any untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading, (iii) the Registration Statement and the Prospectus
comply, and, as amended or supplemented, if applicable, will comply in
all material respects with the Securities Act and the applicable rules
and regulations of the Commission thereunder and (iv) the Prospectus
does not contain and, as amended or supplemented, if applicable, will
not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading,
except that the representations and warranties set forth in this
paragraph do not apply (A) to statements or omissions in the
Registration Statement or the Prospectus based upon information
relating to any Underwriter furnished to the Company in writing by
such Underwriter through the Manager expressly for use therein or (B)
to that part of the Registration Statement that constitutes the
Statement of Eligibility (Form T-1) under the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act"), of the Trustee.
(c) The Company has been duly incorporated, is validly existing
as a corporation in good standing under the laws of the jurisdiction
of its incorporation, has the corporate power and authority to own its
property and to conduct its business as described in the Prospectus
and is duly qualified to transact business and is in good standing in
each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except
to the extent that the failure to be so qualified or be in good
standing would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole.
(d) Each subsidiary of the Company has been duly incorporated or,
in the case of partnerships or limited liability companies, duly
organized, is validly existing as a corporation, a partnership or a
limited liability company, as the case may be, in good standing under
the laws of the jurisdiction of its incorporation or organization, has
the power and authority to own its property and to conduct its
business as described in the Prospectus and is duly qualified to
transact business and is in good standing in each jurisdiction in
which the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent that the
failure to be so qualified or be in good standing would not have a
material adverse effect on the Company and its subsidiaries, taken as
a whole; all of the issued shares of capital stock of each subsidiary
2
<PAGE>
of the Company that is a corporation have been duly and validly
authorized and issued, are fully paid and non-assessable and are owned
directly or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims, and all of the partnership interests
and membership interests in each subsidiary of the Company that is a
partnership or a limited liability company, as the case may be, are
owned directly or indirectly by the Company, free and clear of all
liens, encumbrances, equities or claims.
(e) This Agreement has been duly authorized, executed and
delivered by the Company.
(f) The Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized and, when duly executed and
delivered by the Company on the Closing Date, assuming due
authorization, execution and delivery by the Trustee will constitute a
valid and binding agreement of the Company, enforceable in accordance
with its terms except as (i) the enforceability thereof may be limited
by bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (ii) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of general
applicability.
(g) The Debt Securities have been duly authorized by the Company
and, when executed and authenticated in accordance with the provisions
of the Indenture and delivered to and paid for by the Underwriters in
accordance with the terms of the Underwriting Agreement, will
constitute legal, valid and binding obligations of the Company
entitled to the benefits of the Indenture and enforceable against the
Company in accordance with its terms except as (i) the enforceability
thereof may be limited by bankruptcy, insolvency or similar laws
affecting creditors' rights generally and (ii) rights of acceleration
and the availability of equitable remedies may be limited by equitable
principles of general applicability.
(h) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement,
the Indenture and the Debt Securities will not contravene any
provision of applicable law or the certificate of incorporation or
by-laws of the Company or any agreement or other instrument binding
upon the Company or any of its subsidiaries that is material to the
Company and its subsidiaries, taken as a whole, or any judgment, order
or decree of any governmental body, agency or court having
jurisdiction over the Company or any subsidiary, and no consent,
approval, authorization or order of, or qualification with, any
governmental body or agency is required for the performance by the
Company of its obligations under this Agreement, the Indenture or the
Debt Securities, except (1) such as may have been obtained, and (2) as
may be required by the securities or Blue Sky laws of the various
states in connection with the offer and sale of the Debt Securities.
(i) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise,
3
<PAGE>
or in the earnings, business or operations of the Company and its
subsidiaries, taken as a whole, from that set forth in the Prospectus
(exclusive of any amendments or supplements thereto subsequent to the
date of this Agreement).
(j) There are no legal or governmental proceedings pending or, to
the knowledge of the Company, threatened to which the Company or any
of its subsidiaries is a party or to which any of the properties of
the Company or any of its subsidiaries is subject that are required to
be described in the Registration Statement or the Prospectus and are
not so described or any statutes, regulations, contracts or other
documents that are required to be described in the Registration
Statement or the Prospectus or to be filed or incorporated by
reference as exhibits to the Registration Statement that are not
described, filed or incorporated as required.
(k) Each preliminary prospectus filed as part of the registration
statement as originally filed or as part of any amendment thereto, or
filed pursuant to Rule 424 under the Securities Act, complied when so
filed in all material respects with the Securities Act and the
applicable rules and regulations of the Commission thereunder.
(l) The Company is not and, after giving effect to the offering
and sale of the Debt Securities and the application of the proceeds
thereof as described in the Prospectus, will not be required to
register as an "investment company" as such term is defined in the
Investment Company Act of 1940, as amended.
(m) The Company and its subsidiaries (i) are in compliance with
any and all applicable foreign, federal, state and local laws and
regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("Environmental Laws"), (ii) have received all permits,
licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses and (iii)
are in compliance with all terms and conditions of any such permit,
license or approval, except where such noncompliance with
Environmental Laws, failure to receive required permits, licenses or
other approvals or failure to comply with the terms and conditions of
such permits, licenses or approvals would not, singly or in the
aggregate, have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(n) There are no costs or liabilities associated with
Environmental Laws (including, without limitation, any capital or
operating expenditures required for clean-up, closure of properties or
compliance with Environmental Laws or any permit, license or approval,
any related constraints on operating activities and any potential
liabilities to third parties) which would, singly or in the aggregate,
have a material adverse effect on the Company and its subsidiaries,
taken as a whole.
(o) Except as set forth in the Prospectus, there are no
contracts, agreements or understandings between the Company and any
person granting such person the right to
4
<PAGE>
require the Company to file a registration statement under the
Securities Act with respect to any securities of the Company or to
require the Company to include such securities with the Debt
Securities registered pursuant to the Registration Statement.
(p) Subsequent to the respective dates as of which information is
given in the Prospectus, (i) the Company and its subsidiaries have not
incurred any material liability or obligation, direct or contingent,
nor entered into any material transaction not in the ordinary course
of business; (ii) the Company and its subsidiaries have not purchased
any of its outstanding capital stock, nor has the Company declared,
paid or otherwise made any dividend or distribution of any kind on its
capital stock other than ordinary and customary dividends; and (iii)
there has not been any material change in the capital stock,
short-term debt or long-term debt of the Company and its subsidiaries,
taken as a whole, except in each case as set forth or described in the
Prospectus.
(q) The Company and its subsidiaries have good and marketable
title in fee simple to all real property and good marketable title to
all personal property owned by them, in each case free and clear of
all liens, encumbrances and defects except such as are described in
the Prospectus or such as do not materially affect the value of such
property and do not interfere with the use made and proposed to be
made of such property by the Company and its subsidiaries or such as
do not, singly or in the aggregate, have or could not result in a
material adverse effect on the Company and its subsidiaries, taken as
a whole; and any real property and buildings held under lease by the
Company and its subsidiaries are held by them under valid, subsisting
and enforceable leases with such exceptions as do not interfere with
the use made and proposed to be made of such property and buildings by
the Company and its subsidiaries or such as do not, singly or in the
aggregate, have or could not result in a material adverse effect on
the Company and its subsidiaries, taken as a whole, in each case
except as described in the Prospectus.
(r) Except as set forth in the Prospectus, the Company and its
subsidiaries own or possess, or can acquire on reasonable terms, all
patents, patent rights, licenses, inventions, copyrights, know-how
(including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures),
trademarks, service marks and trade names, currently employed by them
in connection with the business now operated by them, except where the
failure to own or possess or to have the right to acquire any of the
foregoing, singly or in the aggregate, does not have a material
adverse effect on the Company and its subsidiaries, taken as a whole,
and neither the Company nor any of its subsidiaries has received any
notice of infringement of or conflict with asserted rights of others
with respect to any of the foregoing which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or
finding, would have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
5
<PAGE>
(s) No labor dispute with the employees of the Company or any of
its subsidiaries exists, except as described in the Prospectus, or, to
the knowledge of the Company, is imminent, except for disputes that do
not or would not have a material adverse effect on the Company and its
subsidiaries taken as a whole; and the Company is not aware of any
existing, threatened or imminent labor disturbance by the employees of
any of its principal suppliers or contractors that could have a
material adverse effect on the Company and its subsidiaries, taken as
a whole.
(t) The Company and its subsidiaries are insured by insurers of
recognized financial responsibility against such losses and risks and
in such amounts as are prudent and customary in the businesses in
which they are engaged; and neither of the Company nor any of its
subsidiaries has any reason to believe that it will not be able to
renew its existing insurance coverage as and when such coverage
expires or to obtain similar coverage from similar insurers as may be
necessary to continue its business at a cost that would not have a
material adverse effect on the Company and its subsidiaries, taken as
a whole, except as described in the Prospectus
(u) The Company and its subsidiaries possess all permits,
licenses, rights of way, approvals, consents and other authorizations
issued by the appropriate federal, state, local or foreign regulatory
agencies or bodies (including the Federal Communications Commission
(the "FCC"), the public utilities commission, or any equivalent body,
of each state in which the Company does business and any other
relevant state or local governmental department, commission, board,
bureau, agency, court or other authority thereof (the "Local
Authorities")) required for the conduct of the telecommunications
business now operated by the Company (collectively, the "Governmental
Licenses"), except where the failure to possess any such Governmental
Licenses would not, singly or in the aggregate, have a material
adverse effect on the Company and its subsidiaries, taken as a whole;
the Company and its subsidiaries are in compliance with the terms and
conditions of all such Licenses, except where the failure so to comply
would not, singly or in the aggregate, have a material adverse effect
on the Company and its subsidiaries, taken as a whole; all of the
Governmental Licenses are valid and in full force and effect, except
where the invalidity of such Governmental Licenses or the failure of
such Governmental Licenses to be in full force and effect would not,
singly or in the aggregate, have a material adverse effect on the
Company and its subsidiaries, taken as a whole; there is no
outstanding adverse judgment, decree or order that has been issued by
the FCC or any of the Local Authorities against the Company or any of
its subsidiaries and which, singly or in the aggregate, would have a
material adverse effect on the Company and its subsidiaries, taken as
a whole; and neither the Company nor any of its subsidiaries has
received any notice of or is aware of proceedings relating to the
revocation or modification of any such Governmental Licenses or,
except as set forth in the Prospectus, that would otherwise affect the
operations of the Company or its subsidiaries and which, singly or in
the aggregate, would have a material adverse effect on the Company and
its subsidiaries, taken as a whole.
6
<PAGE>
(v) The Company and each of its subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with
management's general or specific authorizations; (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to
maintain asset accountability; (iii) access to assets is permitted
only in accordance with management's general or specific
authorization; and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
2. Terms of Public Offering. The Company is advised by the
Manager that the Underwriters propose to make a public offering of their
respective portions of the Debt Securities as soon after this Agreement has
been entered into as in the Manager's judgment is advisable. The terms of
the public offering of the Debt Securities are set forth in the Prospectus.
3. Payment and Delivery. Except as otherwise provided in this
Section 3, payment for the Debt Securities shall be made to the Company in
Federal or other funds immediately available at the time and place set
forth in the Underwriting Agreement, upon delivery to the Manager for the
respective accounts of the several Underwriters of the Debt Securities
registered in such names and in such denominations as the Manager shall
request in writing not less than two full business days prior to the date
of delivery, with any transfer taxes payable in connection with the
transfer of the Debt Securities to the Underwriters duly paid. The time and
date of such payment are hereinafter referred to as the "Closing Date".
Delivery on the Closing Date of any Debt Securities in bearer form
shall be effected by delivery of a single temporary global Debt Security
without coupons (the "Global Debt Security") evidencing the Debt Securities
in bearer form to a common depositary for Morgan Guaranty Trust Company of
New York, Brussels office, as operator of the Euro-clear System
("Euro-clear"), and for Clearstream Banking, S.A. of Luxemburg.
("Clearstream") for credit to the respective accounts at Euro-clear or
Clearstream of each Underwriter or to such other accounts as such
Underwriter may direct. Any Global Debt Security shall be delivered to the
Manager not later than the Closing Date, against payment of funds to the
Company in the net amount due to the Company for such Global Debt Security
by the method and in the form set forth in the Underwriting Agreement. The
Company shall cause definitive Debt Securities in bearer form to be
prepared and delivered in exchange for such Global Debt Security in such
manner and at such time as may be provided in or pursuant to the Indenture;
provided, however, that the Global Debt Security shall be exchangeable for
definitive Debt Securities in bearer form only on or after the date
specified for such purpose in the Prospectus.
7
<PAGE>
4. Conditions to the Underwriters' Obligations. The several
obligations of the Underwriters are subject to the following conditions:
(a) Subsequent to the execution and delivery of the Underwriting
Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall
any notice have been given of any intended or potential
downgrading or of any review for a possible change that does not
indicate the direction of the possible change, in the rating
accorded any of the Company's securities by any "nationally
recognized statistical rating organization," as such term is
defined for purposes of Rule 436(g)(2) under the Securities Act;
and
(ii) there shall not have occurred any change, or any
development involving a prospective change, in the condition,
financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole,
from that set forth in the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of this
Agreement) that, in the judgment of the Manager, is material and
adverse and that makes it, in the judgment of the Manager,
impracticable to market the Debt Securities on the terms and in
the manner contemplated in the Prospectus.
(b) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer
of the Company, to the effect set forth in Section 4(a)(i) above and
to the effect that the representations and warranties of the Company
contained in this Agreement are true and correct as of the Closing
Date and that the Company has complied with all of the agreements and
satisfied all of the conditions on its part to be performed or
satisfied hereunder on or before the Closing Date.
The officer signing and delivering such certificate may rely upon
the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an
opinion of Cravath, Swaine & Moore, outside counsel for the Company,
dated the Closing Date, to the effect that:
(i) the Company has been duly incorporated, and, based
solely on a certificate of good standing from the Secretary of
State of Delaware, is a corporation validly existing and in good
standing under the laws of the State of Delaware, with full
corporate power and authority to own, lease and operate its
properties and conduct its businesses as described in the
Registration Statement;
8
<PAGE>
(ii) to such counsel's knowledge, (A) there are not any
pending or threatened governmental proceedings before any court
or governmental agency or authority or any arbitrator to which
the Company or any of its subsidiaries is a party or to which any
of the properties of the Company or any of its subsidiaries is
subject of a character required to be disclosed in the
Registration Statement or the Prospectus which is not adequately
disclosed as required, and (B) there is no contract, indenture,
mortgage, loan agreement, note, lease or other document of a
character required to be described in the Registration Statement
or the Prospectus or to be filed or incorporated by reference as
exhibits to the Registration Statement which is not described,
filed or incorporated as required;
(iii) this Agreement has been duly authorized, executed and
delivered by the Company;
(iv) the Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement of
the Company, enforceable in accordance with its terms (subject to
applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance and other similar laws affecting creditors'
rights generally and general principles of equity including,
without limitation, concepts of materiality, reasonableness, good
faith and fair dealing, regardless of whether in a proceeding in
equity or at law);
(v) the Debt Securities have been duly authorized by the
Company and, when executed and authenticated in accordance with
the provisions of the Indenture and delivered to and paid for by
the Underwriters in accordance with the terms of the Underwriting
Agreement will constitute legal, valid and binding obligations of
the Company entitled to the benefits of the Indenture and
enforceable against the Company in accordance with their terms
(subject to applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance and other similar laws
affecting creditors' rights generally and general principles of
equity including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing, regardless of
whether in a proceeding in equity or at law);
(vi) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, this
Agreement, the Indenture and the Debt Securities will not
contravene any provision of applicable law or the certificate of
incorporation or by-laws of the Company or, to the best of such
counsel's knowledge, any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the
Company or any subsidiary, and no consent, approval,
authorization or order of, or qualification with, any
governmental body or agency is required for the performance by
the Company of
9
<PAGE>
its obligations under this Agreement, the Indenture or the
Debt Securities, except such as has been obtained and 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 Debt
Securities;
(vii) the statements in the Prospectus under the captions
"Recent Developments," "Description of Debt Securities,"
"Description of Capital Stock," " Description of the Notes, "and
"Certain Relationships and Related Transactions - Stockholders
Agreement," "Description of Certain Indebtedness, " "Certain
United States Federal Tax Consequences to Holders of the Notes,"
and any other captions in the Prospectus listed on a schedule
attached to an Underwriting Agreement, in each case insofar as
such statements constitute summaries of the legal matters,
documents or proceedings referred to therein, fairly present the
information required to be described with respect to such legal
matters, documents and proceedings and summarize in all material
respects the matters referred to therein;
(viii) the Company is not and, after giving effect to the
offering and sale of the Debt Securities and the application of
the proceeds thereof as described in the Prospectus, will not be
required to register as an "investment company" as such term is
defined in the Investment Company Act of 1940, as amended;
(ix) to such counsel's knowledge, there are no statutes or
regulations (other than federal, state or local
telecommunications statutes or regulations as to which such
counsel expresses no opinion) that are required to be disclosed
in the Prospectus that are not adequately disclosed as required.
(x) such counsel's work in connection with this matter did
not disclose any information that gave such counsel reason to
believe that (i) each part of the Registration Statement when
such part became effective, or the Prospectus as of its date and
the date hereof (in each case except for the financial statements
and other information of a statistical, accounting or financial
nature included therein, and the Statement of Eligibility (Form
T-1) included as an exhibit to the Registration Statement, as to
which such counsel does not express any view) was not
appropriately responsive in all material respects to the
requirements of the Securities Act and the Trust Indenture Act of
1939 and the applicable rules and regulations of the Commission
thereunder, or (ii) each part of the Registration Statement when
such part became effective, contained an untrue statement of a
material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading or that the Prospectus, as of its date and as of the
date hereof, included or includes an untrue statement of a
material fact or omits to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made,
10
<PAGE>
not misleading (in each case except for the financial
statements and other information of a statistical, accounting or
financial nature included therein, and the Statement of
Eligibility (Form T-1) included as an exhibit to the Registration
Statement, as to which such counsel does not express any view).
(d) The Underwriters shall have received on the Closing Date an
opinion of Paul B. Jones, Esq., General Counsel to the Company, dated
the Closing Date, to the effect that:
(i) the Company has been duly incorporated and is validly
existing and in good standing under the laws of the State of
Delaware, with full corporate power and authority to own its
property and to conduct its business as described in the
Prospectus;
(ii) the Company is duly qualified to transact business and
is in good standing in each jurisdiction in which the conduct of
its business or its ownership or leasing of property requires
such qualification, except to the extent that the failure to be
so qualified or be in good standing would not have a material
adverse effect on the Company and its subsidiaries, taken as a
whole;
(iii) each subsidiary of the Company has been duly
incorporated or, in the case of partnerships or limited liability
companies, duly organized, is validly existing as a corporation,
a partnership or a limited liability company, as the case may be,
in good standing under the laws of the jurisdiction of its
incorporation or organization, as the case may be, has the power
and authority to own its property and to conduct its business as
described in the Prospectus and is duly qualified to transact
business and is in good standing in each jurisdiction in which
the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent that
the failure to be so qualified or be in good standing would not
have a material adverse effect on the Company and its
subsidiaries, taken as a whole;
(iv) except as otherwise disclosed in the Prospectus, all of
the issued shares of capital stock of each subsidiary of the
Company that is a corporation have been duly and validly
authorized and issued, are fully paid and non-assessable and are
owned directly by the Company free and clear of all liens,
encumbrances, equities or claims; and all of the partnership
interests and membership interests in each subsidiary of the
Company that is a partnership or limited liability company, as
the case may be, are owned directly or indirectly by the Company
free and clear of all liens, encumbrances, equities or claims;
11
<PAGE>
(v) the statements contained in the Prospectus under the
captions "Risk Factors--Competition in local services has also
increased as a result of changing government regulations," "Risk
Factors--We are subject to significant federal and state
regulation that can significantly affect pricing and
profitability," "Risk Factors--We may receive less revenue if
incumbent local exchange carriers successfully challenge
reciprocal compensation," "Risk Factors--We are dependent on
governmental and other authorizations," "Risk Factors--We are
dependent on Time Warner Cable's permits, licenses and
rights-of-way," "Business--Competition", "Business--Government
Regulation," and any other caption in the Prospectus listed on a
schedule attached to any Underwriting Agreement, insofar as such
statements constitute a summary of the legal or regulatory
matters or legal or regulatory proceedings referred to therein,
are correct in all material respects and do not omit a material
fact necessary to make the statements contained therein not
misleading;
(vi) to such counsel's knowledge, the Company possesses the
Governmental Licenses and the Company is in compliance with the
terms and conditions of all such Governmental Licenses, except
where the failure to so comply would not, singly or in the
aggregate, have a material adverse effect on the Company and its
subsidiaries, taken as a whole, and all of the Governmental
Licenses are valid and in full force and effect, except when the
invalidity of such Governmental Licenses or the failure of such
Governmental Licenses to be in full force and effect would not
have a material adverse effect on the Company and its
subsidiaries, taken as a whole;
(vii) there is no outstanding adverse judgment, decree or
order that has been issued by the FCC or any of the Local
Authorities against the Company and its subsidiaries which,
singly or in the aggregate, would have a material adverse effect
on the Company and its subsidiaries, taken as a whole, and, to
the best of such counsel's knowledge, neither the Company nor any
of its subsidiaries is the object of, or threatened by, any
proceedings relating to the revocation or modification of any
such Governmental Licenses or, except as set forth in the
Prospectus, that would otherwise affect the operation of the
Company, which, singly or in the aggregate, would have a material
adverse effect on the Company and its subsidiaries, taken as a
whole;
(viii) the execution, delivery and performance of this
Agreement and the Indenture and the consummation of the
transactions contemplated in this Agreement, and compliance by
the Company with its obligations under this Agreement do not and
will not, whether with or without the giving of notice or lapse
of time or both, result in any violation of any applicable law,
statute, rule, regulation, judgment, order, writ or decree, known
to such counsel, of any Local Authority having jurisdiction over
the Company or any of its subsidiaries or any
12
<PAGE>
of its assets or operations with respect to the provision of
telecommunications services except for such violations that would
not have a material adverse effect on the Company and its
subsidiaries, taken as a whole;
(ix) that each document, if any, filed pursuant to the
Exchange Act and incorporated by reference in the Prospectus
(except for financial statements and schedules, and other
information of a statistical, accounting or financial nature
included therein as to which such counsel need not express any
opinion) complied when so filed as to form in all material
respects with the Exchange Act and the applicable rules and
regulations of the Commission thereunder
(x) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, this
Agreement will not contravene any agreement or other instrument
binding upon the Company or any of its subsidiaries that is
material to the Company and its subsidiaries, taken as a whole;
(xi) the statements in the Registration Statement under (A)
Item 15 (B) "Item 3 - Legal Proceedings" of the Company's most
recent annual report on Form 10-K incorporated by reference in
the Prospectus and (C) in "Item 1 - Legal Proceedings" of Part II
of the Company's quarterly reports on Form 10-Q, if any, filed
since such annual report, in each case insofar as such statements
constitute summaries of the legal matters, documents or
proceedings referred to therein, fairly present the information
required to be described with respect to such legal matters,
documents and proceedings and summarize in all material respects
the matters referred to therein; and
(xii) to such counsel's knowledge, there are no
telecommunications statutes or regulations that are required to
be described in the Prospectus that are not described as
required;
In rendering opinion (vi) above, the General Counsel may rely, as to
matters involving the application of the laws of Arizona, California,
Colorado, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Kentucky,
Minnesota, Nevada, New Mexico, New York, New Jersey, North Carolina, Ohio,
Oregon, South Carolina, Tennessee, Texas, Utah, Washington and Wisconsin,
upon the opinions of special counsel to the Company (which opinions shall
be dated and furnished to the Underwriters on the Closing Date and shall be
satisfactory in form and substance to counsel for the Underwriters,
provided that the General Counsel shall state that such opinion (vi) above
is subject to the qualifications set forth in such opinions of special
counsel and provided further that the General Counsel shall state in his
opinion that he believes that he is justified in relying upon such
opinions).
13
<PAGE>
(e) The Underwriters shall have received on the Closing Date an
opinion of Willke Farr & Gallagher, regulatory counsel for the
Company, dated the Closing Date, to the effect that:
(i) The statements contained in the Prospectus under the
captions "Business--Government Regulation--Federal Regulation"
and "Business--Government Regulation--Telecommunications Act of
1996," insofar as such statements constitute a summary of the
legal or regulatory matters or legal or regulatory proceedings
referred to therein, are correct in all material respects and do
not omit a material fact necessary to make the statements
contained therein not misleading.
(f) The Underwriters shall have received on the Closing Date an
opinion of Shearman & Sterling, counsel for the Underwriters, dated
the Closing Date, covering the matters referred to in Sections
4(c)(iii) and 4(c)(vii) (but only as to the statements in the
Prospectus under "Description of Notes," and "Underwriting") and
4(c)(x) above.
With respect to Section 4(c)(x) above, Cravath, Swaine & Moore and
Shearman & Sterling may provide their statements in separate letters and
may state that their opinion and belief are based upon their participation
in the preparation of the Prospectus and discussion of the contents
thereof, but are without independent check or verification, except as
specified.
The opinion of Cravath, Swaine & Moore described in Section 4(c) above
shall be rendered to the Underwriters at the request of the Company and
shall so state therein.
(g) The Underwriters shall have received on each of the date
hereof and the Closing Date (i) a letter, dated the date hereof or the
Closing Date, as the case may be, in form and substance satisfactory
to the Underwriters, from the Company's independent public
accountants, containing statements and information of the type
ordinarily included in accountants' "comfort letters" to underwriters
with respect to the financial statements in the Prospectus or the
Registration Statement, and certain financial information contained in
or incorporated by reference into the Prospectus or the Registration
Statement and (ii) to the extent that the audited financial statements
of another person is required under the rules and regulation of the
Securities Act to be contained in the Prospectus or Registration
Statement, a similar "cold comfort" letter, dated the date hereof or
the Closing Date, as the case may be, in form and substance
satisfactory to the Underwriters, from such other person's independent
public accountants.
5. Covenants of the Company. In further consideration of the
agreements of the Underwriters herein contained, the Company covenants with
each Underwriter as follows:
(a) To furnish the Manager, without charge, three signed copies
of the Registration Statement (including exhibits thereto) and for
delivery to each other
14
<PAGE>
Underwriter a conformed copy of the Registration Statement
(without exhibits thereto) and to furnish the Manager in New York
City, without charge, prior to 10:00 a.m. New York City time on the
business day next succeeding the date of this Agreement and during the
period mentioned in Section 5(c) below, as many copies of the
Prospectus, any documents incorporated by reference therein and any
supplements and amendments thereto or to the Registration Statement as
the Manager may reasonably request.
(b) Before amending or supplementing the Registration Statement
or the Prospectus with respect to the Debt Securities, to furnish to
the Manager a copy of each such proposed amendment or supplement and
not to file any such proposed amendment or supplement to which the
Manager reasonably objects.
(c) If, during such period after the first date of the public
offering of the Debt Securities as in the opinion of counsel for the
Underwriters the Prospectus is required by law to be delivered in
connection with sales by an Underwriter or dealer, any event shall
occur or condition exist as a result of which it is necessary to amend
or supplement the Prospectus in order to make the statements therein,
in the light of the circumstances when the Prospectus is delivered to
a purchaser, not misleading, or if, in the opinion of counsel for the
Underwriters, it is necessary to amend or supplement the Prospectus to
comply with applicable law, forthwith to prepare, file with the
Commission and furnish, at its own expense, to the Underwriters and to
the dealers (whose names and addresses the Manager will furnish to the
Company) to which Debt Securities may have been sold by the Manager on
behalf of the Underwriters and to any other dealers upon request,
either amendments or supplements to the Prospectus so that the
statements in the Prospectus as so amended or supplemented will not,
in the light of the circumstances when the Prospectus is delivered to
a purchaser, be misleading or so that the Prospectus, as amended or
supplemented, will comply with law.
(d) To endeavor to qualify the Debt Securities for offer and sale
under the securities or Blue Sky laws of such jurisdictions as the
Manager shall reasonably request; provided that, in connection
therewith, the Company shall not be required to qualify as a foreign
corporation or to file a general consent to service of process in any
jurisdiction.
(e) To make generally available to the Company's security holders
and to the Manager as soon as practicable an earning statement of the
Company and its subsidiaries covering a twelve month period beginning
on the first day of the first full fiscal quarter after the date of
this Agreement, which earning statement shall satisfy the provisions
of Section 11(a) of the Securities Act and the rules and regulations
of the Commission thereunder (including at the option of the Company
Rule 158). If such fiscal quarter is the last fiscal quarter of the
Company's fiscal year, such earning statement shall be made available
not later than 90 days after the close of the period covered thereby
and in all other cases shall be made available not later than 45 days
after the close of the period covered thereby.
15
<PAGE>
(f) During the period beginning on the date of the Underwriting
Agreement and continuing to and including the Closing Date, not to
offer, sell, contract to sell or otherwise dispose of any debt
securities of the Company or warrants to purchase debt securities of
the Company substantially similar to the Debt Securities (other than
(i) the Debt Securities and (ii) commercial paper issued in the
ordinary course of business), without the prior written consent of the
Manager.
(g) Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, to pay or
cause to be paid all expenses incident to the performance of its
obligations under this Agreement, including: (i) the fees,
disbursements and expenses of the Company's counsel and the Company's
accountants in connection with the registration and delivery of the
Debt Securities under the Securities Act and all other fees or
expenses in connection with the preparation and filing of the
Registration Statement, any preliminary prospectus, the Prospectus and
amendments and supplements to any of the foregoing, including all
printing costs associated therewith, and the mailing and delivering of
copies thereof to the Underwriters and dealers, in the quantities
hereinabove specified, (ii) all costs and expenses related to the
transfer and delivery of the Debt Securities to the Underwriters,
including any transfer or other taxes payable thereon, (iii) the cost
of printing or producing any Blue Sky or legal investment memorandum
in connection with the offer and sale of the Debt Securities under
state law and all expenses in connection with the qualification of the
Debt Securities for offer and sale under state law as provided in
Section 5(d) hereof, including filing fees and the reasonable fees and
disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky or legal investment
memorandum, (iv) the fees and disbursements of the Trustee and its
counsel, (v) all filing fees and the reasonable fees and disbursements
of counsel to the Underwriters incurred in connection with the review
and qualification of the offering of the Debt Securities by the
National Association of Securities Dealers, Inc. (including any
counsel fees incurred on behalf of or disbursements by ABN ARMO (as
defined in Section 6 below) in its capacity as "qualified independent
underwriter"), (vi) any fees charged by the rating agencies for the
rating of the Debt Securities, (vii) all fees and expenses in
connection with the preparation and filing of the registration
statement on Form 8-A relating to the Securities and all costs and
expenses incident to listing the Debt Securities on the NASDAQ
National Market and other national securities exchanges and foreign
stock exchanges, (viii) the costs and expenses of the Company relating
to investor presentations on any "road show" undertaken in connection
with the marketing of the offering of the Debt Securities, including,
without limitation, expenses associated with the production of road
show slides and graphics, fees and expenses of any consultants engaged
in connection with the road show presentations with the prior approval
of the Company, travel and lodging expenses of the representatives and
officers of the Company and any such consultants, and the cost of any
aircraft chartered in connection with the road show, (ix) all other
costs and expenses incident to the performance of the obligations of
the Company hereunder for which provision is not otherwise
16
<PAGE>
made in this Section . It is understood, however, that except as
provided in this Section, Section 6 entitled "Indemnity and
Contribution", and the last paragraph of Section 8 below, the
Underwriters will pay all of their costs and expenses, including fees
and disbursements of their counsel, and any advertising expenses
connected with any offers they may make.
6. Indemnity and Contribution. (a) (i) The Company agrees to
indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act from and against any and
all losses, claims, damages and liabilities (including, without limitation,
any legal or other expenses reasonably incurred in connection with
defending or investigating any such action or claim) caused by any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement or any amendment thereof, any preliminary prospectus
or the Prospectus (as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto), or caused by any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, except
insofar as such losses, claims, damages or liabilities are caused by any
such untrue statement or omission or alleged untrue statement or omission
based upon information relating to any Underwriter furnished to the Company
in writing by such Underwriter through the Manager expressly for use
therein.
(ii) The Company also agrees to indemnify and hold harmless ARN
AMRO Incorporated ("ABN ARMO") and each person, if any, who controls ABN
ARMO within the meaning of either Section 15 of the Act, or Section 20 of
the Exchange Act, from and against any and all losses, claims, damages,
liabilities and judgments incurred as a result of ABN ARMO's participation
as a "qualified independent underwriter" within the meaning of Rule 2720 of
the National Association of Securities Dealers' Conduct Rules in connection
with the offering of the Debt Securities, except for any losses, claims,
damages, liabilities and judgments resulting from ABN ARMO's, or such
controlling person's, willful misconduct.
(b) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers
who sign the Registration Statement and each person, if any, who
controls the Company within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act to the same extent as
the foregoing indemnity contained in subsection (a)(i) from the
Company to such Underwriter, but only with reference to information
relating to such Underwriter furnished to the Company in writing by
such Underwriter through the Manager expressly for use in the
Registration Statement, any preliminary prospectus, the Prospectus or
any amendments or supplements thereto.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of
which indemnity may be sought pursuant to either Section 6(a) or 6(b),
such person (the "indemnified party") shall promptly notify the person
against whom such indemnity may be sought (the "indemnifying
17
<PAGE>
party") in writing and the indemnifying party, upon request of
the indemnified party, shall retain counsel reasonably satisfactory to
the indemnified party to represent the indemnified party and any
others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have
the right to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such indemnified party unless (i)
the indemnifying party and the indemnified party shall have mutually
agreed to the retention of such counsel or (ii) the named parties to
any such proceeding (including any impleaded parties) include both the
indemnifying party and the indemnified party and representation of
both parties by the same counsel would be inappropriate due to actual
or potential differing interests between them. It is understood that
the indemnifying party shall not, in respect of the legal expenses of
any indemnified party in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and
expenses of more than one separate firm (in addition to any local
counsel) for all such indemnified parties and that all such fees and
expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by the Manager, in the case of parties
indemnified pursuant to Section 6(a) above, and by the Company, in the
case of parties indemnified pursuant to Section 6(b) above. The
indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with
such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and
against any loss or liability by reason of such settlement or
judgment. Notwithstanding the foregoing sentence, if at any time an
indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel as
contemplated by the second and third sentences of this paragraph, the
indemnifying party agrees that it shall be liable for any settlement
of any proceeding effected without its written consent if (i) such
settlement is entered into more than 30 days after receipt by such
indemnifying party of the aforesaid request and (ii) such indemnifying
party shall not have reimbursed the indemnified party in accordance
with such request prior to the date of such settlement. No
indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional
release of such indemnified party from all liability on claims that
are the subject matter of such proceeding. Notwithstanding anything
contained herein to the contrary, if indemnity may be sought pursuant
to Section 6(a)(ii) hereof in respect of such action or proceeding,
then in addition to such separate firm for the indemnified parties,
the indemnifying party shall be liable for the reasonable fees and
expenses of not more than one separate firm (in addition to any local
counsel) for ABN ARMO in its capacity as a "qualified independent
underwriter" and all persons, if any, who control ABN ARMO within the
meaning of either Section 15 of the Act or Section 20 of the Exchange
Act.
18
<PAGE>
(d) To the extent the indemnification provided for in Section
6(a) or 6(b) is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities referred to
therein, then each indemnifying party under such paragraph, in lieu of
indemnifying such indemnified party thereunder, shall contribute to
the amount paid or payable by such indemnified party as a result of
such losses, claims, damages or liabilities (i) in such proportion as
is appropriate to reflect the relative benefits received by the
Company on the one hand and the Underwriters on the other hand from
the offering of the Debt Securities or (ii) if the allocation provided
by clause 6(d)(i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits
referred to in clause 6(d)(i) above but also the relative fault of the
Company on the one hand and of the Underwriters on the other hand in
connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities, as well as any other relevant
equitable considerations. The relative benefits received by the
Company on the one hand and the Underwriters on the other hand in
connection with the offering of the Debt Securities shall be deemed to
be in the same respective proportions as the net proceeds from the
offering of such Debt Securities (before deducting expenses) received
by the Company and the total underwriting discounts and commissions
received by the Underwriters, in each case as set forth in the table
on the cover of the Prospectus Supplement, bear to the aggregate
Public Offering Price of the Debt Securities. The Company and the
Underwriters agree that ABN ARMO will not receive any additional
benefits hereunder for serving as the qualified independent
underwriter in connection with the offering and sale of the Debt
Securities. The relative fault of the Company on the one hand and the
Underwriters on the other hand shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of
a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company or by the
Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission. The Underwriters' respective obligations to contribute
pursuant to this Section 6 are several in proportion to the respective
principal amounts of Debt Securities they have purchased hereunder,
and not joint.
(e) The Company and the Underwriters agree that it would not be
just or equitable if contribution pursuant to this Section 6 were
determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of
allocation that does not take account of the equitable considerations
referred to in Section 6(d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages and
liabilities referred to in the immediately preceding paragraph shall
be deemed to include, subject to the limitations set forth above, any
legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this Section 6, no
Underwriter shall be required to contribute any amount in excess of
the amount by which the total price at which the Debt Securities
underwritten by it and distributed to the public were offered to the
public exceeds the
19
<PAGE>
amount of any damages that such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement
or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. The remedies
provided for in this Section 6 are not exclusive and shall not limit
any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this
Section 6 and the representations, warranties and other statements of
the Company contained in this Agreement shall remain operative and in
full force and effect regardless of (i) any termination of this
Agreement, (ii) any investigation made by or on behalf of any
Underwriter or any person controlling any Underwriter or the Company,
its officers or directors or any person controlling the Company and
(iii) acceptance of and payment for any of the Debt Securities.
7. Termination. This Agreement shall be subject to termination by
notice given by the Manager to the Company, if (a) after the execution and
delivery of the Underwriting Agreement and prior to the Closing Date (i)
trading generally shall have been suspended or materially limited on or by,
as the case may be, any of the New York Stock Exchange, the American Stock
Exchange, the National Association of Securities Dealers, Inc., the Chicago
Board of Options Exchange, the Chicago Mercantile Exchange or the Chicago
Board of Trade, (ii) trading of any securities of the Company shall have
been suspended on any exchange or in any over-the-counter market, (iii) a
general moratorium on commercial banking activities in New York shall have
been declared by either Federal or New York State authorities or (iv) there
shall have occurred any outbreak or escalation of hostilities or any change
in financial markets or any calamity or crisis that, in the judgment of the
Manager, is material and adverse and (b) in the case of any of the events
specified in clauses 7(a)(i) through 7(a)(iv), such event, singly or
together with any other such event, makes it, in the judgment of the
Manager, impracticable to market the Debt Securities on the terms and in
the manner contemplated in the Prospectus.
8. Defaulting Underwriters. If, on the Closing Date, any one or
more of the Underwriters shall fail or refuse to purchase Debt Securities
that it has or they have agreed to purchase hereunder on such date, and the
aggregate amount of Debt Securities which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase is not more than
one-tenth of the aggregate amount of the Debt Securities to be purchased on
such date, the other Underwriters shall be obligated severally in the
proportions that the amount of Debt Securities set forth opposite their
respective names in the Underwriting Agreement bears to the aggregate
amount of Debt Securities set forth opposite the names of all such
non-defaulting Underwriters, or in such other proportions as the Manager
may specify, to purchase the Debt Securities which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase on
such date; provided that in no event shall the amount of Debt Securities
that any Underwriter has agreed to purchase pursuant to this Agreement be
increased pursuant to this Section 8 by an
20
<PAGE>
amount in excess of one-ninth of such amount of Debt Securities
without the written consent of such Underwriter. If, on the Closing Date,
any Underwriter or Underwriters shall fail or refuse to purchase Debt
Securities and the aggregate amount of Debt Securities with respect to
which such default occurs is more than one-tenth of the aggregate amount of
Debt Securities to be purchased on such date, and arrangements satisfactory
to the Manager and the Company for the purchase of such Debt Securities are
not made within 36 hours after such default, this Agreement shall terminate
without liability on the part of any non-defaulting Underwriter or the
Company. In any such case either the Manager or the Company shall have the
right to postpone the Closing Date, but in no event for longer than seven
days, in order that the required changes, if any, in the Registration
Statement and in the Prospectus or in any other documents or arrangements
may be effected. Any action taken under this paragraph shall not relieve
any defaulting Underwriter from liability in respect of any default of such
Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any
of them, because of any failure or refusal on the part of the Company to
comply with the terms or to fulfill any of the conditions of this
Agreement, or if for any reason the Company shall be unable to perform its
obligations under this Agreement, the Company will reimburse the
Underwriters or such Underwriters as have so terminated this Agreement with
respect to themselves, severally, for all out-of-pocket expenses (including
the fees and disbursements of their counsel) reasonably incurred by such
Underwriters in connection with this Agreement or the offering contemplated
hereunder.
9. Counterparts. This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same effect as
if the signatures thereto and hereto were upon the same instrument.
10. Applicable Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York.
11. Headings. The headings of the sections of this Agreement have
been inserted for convenience of reference only and shall not be deemed a
part of this Agreement.
21
<PAGE>
UNDERWRITING AGREEMENT
__________, 200__
Time Warner Telecom Inc.
10475 Park Meadows Drive
Littleton, CO 80124
Dear Sirs and Mesdames:
We (the "Manager") are acting on behalf of the underwriter or
underwriters (including ourselves) named below (such underwriter or
underwriters being herein called the "Underwriters"), and we understand
that Time Warner Telecom, Inc., a Delaware corporation (the "Company"),
proposes to issue and sell [Currency and Principal Amount] aggregate
initial offering price of [Full Title of Debt Securities] (the "Debt
Securities"). The Debt Securities will be issued pursuant to the provisions
of an Indenture dated as of January [12], 2001 (the "Indenture") between
the Company and The Chase Manhattan Bank as Trustee (the "Trustee").
Subject to the terms and conditions set forth or incorporated by
reference herein, the Company hereby agrees to sell to the several
Underwriters, and each Underwriter agrees, severally and not jointly, to
purchase from the Company the respective principal amounts of Debt
Securities set forth below opposite their names at a purchase price of
____% of the principal amount of Debt Securities [, plus accrued interest,
if any, from [Date of Debt Securities] to the date of payment and
delivery]1:
-----------------------
1 To be added only if the transaction does not close "flat" (i.e.,
when the purchaser pays accrued interest on the debt security at closing).
Unless otherwise provided in the Debt Securities, accrued interest, if any,
will be computed on the basis of a 360-day year of twelve 30-day months.
22
<PAGE>
Principal Amount of
Name Debt Securities
--------------------------------------------- -------------------------
[Name of Lead Managers and other underwriters]
-------------------------
Total......................................
The Underwriters will pay for the Debt Securities upon delivery
thereof at the offices of Shearman & Sterling, 599 Lexington Avenue, New
York, New York at 10:00 a.m. (New York City time) on ___________, 200_, or
at such other time, not later than 5:00 p.m. (New York City time) on
__________, 200_, as shall be designated by the Manager. The time and date
of such payment and delivery are hereinafter referred to as the Closing
Date.
The Debt Securities shall have the terms set forth in the Prospectus
dated January [12], 2000, and the Prospectus Supplement dated ____________,
200_, including the following:
Terms of Debt Securities:
Maturity Date: _____________ ___, _____
Interest Rate: _____________ ___, _____
Redemption Provisions: _____________ ___, _____
Interest Payment Dates: ______________ ___ and
______________ ___
commencing ______________
___, _____
-----------------------
2 To be added only if the transaction does not close flat.
23
<PAGE>
[(Interest accrues from: ______________ ___, _____)]2
Form and Denomination: ______________
[Other Terms:]
All provisions contained in the document entitled Time Warner Telecom
Inc. Form of Underwriting Agreement Standard Provisions (Debt Securities) dated
January 12, 2001 a copy of which is attached hereto, are herein
incorporated by reference in their entirety and shall be deemed to be a
part of this Agreement to the same extent as if such provisions had been
set forth in full herein, except that (i) if any term defined in such
document is otherwise defined herein, the definition set forth herein shall
control, (ii) all references in such document to a type of security that is
not an Offered Security shall not be deemed to be a part of this Agreement
and (iii) all references in such document to a type of agreement that has
not been entered into in connection with the transactions contemplated
hereby shall not be deemed to be a part of this Agreement.
24
<PAGE>
Please confirm your agreement by having an authorized officer sign a
copy of this Agreement in the space set forth below.
Very truly yours,
[Name of Lead Managers]
Acting severally on behalf of themselves
and the several Underwriters named herein
[Name of Executing Lead Manager]
By: __________________________
Name:
Title:
Accepted:
Time Warner Telecom Inc.
By: ______________________________
Name:
Title:
25
