SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
Current Report
Pursuant to Section 13 or 15(d) of
The Securities Exchange Act of 1934
Date of Report (date of earliest event reported) January 7, 1994
ADELPHIA COMMUNICATIONS CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 0-16014 23-2417713
(State or other (Commission (IRS Employer
jurisdiction of File Number) Identification No.)
incorporation)
5 West Third Street - P.O. Box 472, Coudersport, PA 16915
(Address of principal executive offices) (ZIP Code)
Registrant's telephone number, including area code (814) 274-9830
<PAGE>
Item 5. Other Events.
On December 22, 1993, Adelphia Communications Corporation (the "Company")
announced that it had filed a registration statement (the "Registration
Statement") with the Securities and Exchange Commission for an offering of
shares of its Class A Common Stock. The Company issued a press release,
dated December 22, 1993, with respect to such announcement, a copy of which
is attached hereto as Exhibit 99.01 and is incorporated by reference herein.
On January 7, 1994, the Company issued a press release announcing that the
Registration Statement had been declared effective by the Securities and
Exchange Commission on such date. At the time of effectiveness, the Registra-
tion Statement covered an offering of 8,832,604 shares of Class A Common Stock,
exclusive of an overallotment option for up to 300,000 additional shares. Of
the 8,832,604 shares, 3,000,000 shares were offered to the public at $18.00 per
share, with an underwriting discount of $.855 per share. Partnerships
controlled by the family of John J. Rigas, the Company's President and CEO,
agreed to purchase the other 5,832,604 shares at the public offering price less
the underwriting discount. Net proceeds to Adelphia before offering expenses
were $151,435,000, or $17.145 per share. Net proceeds will be used to redeem
the Company's $100,000,000 aggregate principal amount of outstanding 13% Senior
Subordinated Notes Due 1996 and to reduce existing bank debt of subsidiaries. A
copy of the press release, dated January 7, 1994, is attached hereto as
Exhibit 99.02 and is incorporated by reference herein.
At the closing for the offering on January 14, 1994, the Company sold an
additional 300,000 shares of Class A Common Stock to the underwriter pursuent
to the overallotment option, generating an additional $5,143,500 in net proceeds
to the Company and bringing the total number of shares in the offering to
9,132,604.
The Registration Statement contains the following information, which as
provided herein is incorporated by reference into an effective registration
statement of the Company, and which is provided herein in order for the
Company's periodic filings under the Securities Exchange Act of 1934 to be
consistent with the information contained in the Registration Statement:
Management believes that the telecommunications industry, including the
cable television and telephone industries, is in a period of consolidation
characterized by mergers, joint ventures, acquisitions, sales of all or part of
cable companies or their assets, and other partnering and investment transac-
tions of various structures and sizes involving cable or other telecommuni-
cations companies. Management also believes that the Company is well positioned
to participate in this consolidation trend due to its well-clustered cable
systems, the quality of its cable plant, its management strengths and its
relationships within the cable industry. The Company, like other cable
television companies, has participated from time to time and is participating in
preliminary discussions with third parties regarding a variety of potential
transactions, and the Company has considered and expects to continue to consider
and explore potential transactions of various types with other cable and tele-
communications companies. However, the Company has not reached any agreements,
in principal or otherwise, with respect to any material transaction and no
assurances can be given as to whether any such transaction may be consummated
or, if so, when.
<PAGE>
Item 7. Financial Statements and Exhibits.
(c) The following exhibits are filed as part of this report on Form 8-K:
Exhibit 10.01 Underwriting Agreement between the Company and
Salomon Brothers Inc, dated January 7, 1994.
Exhibit 10.02 Registration Agreement between the Company and
Salomon Brothers Inc, dated January 7, 1994.
Exhibit 10.03 Second Amendment to Loan Agreement between Chelsea
Communications, Inc. and The Toronto Dominion Bank
Trust Company and Nationsbank of Texas, N.A. as agents
dated December 31, 1993.
Exhibit 99.01 Press Release by Adelphia Communications Corporation
dated December 22, 1993.
Exhibit 99.02 Press Release by Adelphia Communications Corporation
dated January 7, 1994.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
Date: January 14, 1994 ADELPHIA COMMUNICATIONS CORPORATION
(Registrant)
/s/ Timothy J. Rigas
Timothy J. Rigas
Senior Vice President,
Chief Financial Officer and
Chief Accounting Officer
<PAGE>
EXHIBIT INDEX
Exhibit No. Description Page
Exhibit 10.01 Underwriting Agreement between
the Company and Salomon Brothers Inc,
dated January 7, 1994.
Exhibit 10.02 Registration Agreement between
the Company and Salomon Brothers Inc,
dated January 7, 1994.
Exhibit 10.03 Second Amendment to Loan Agreement
between Chelsea Communications, Inc.
and The Toronto Dominion Bank Trust
Company and Nationsbank of Texas, N.A.
as agents dated December 31, 1993.
Exhibit 99.01 Press Release by Adelphia Communications
Corporation dated December 22, 1993.
Exhibit 99.02 Press Release by Adelphia Communications
Corporation dated January 7, 1994.
[conformed copy]
ADELPHIA COMMUNICATIONS CORPORATION
3,000,000 Shares
Class A Common Stock
($.01 par value)
UNDERWRITING AGREEMENT
New York, New York
January 7, 1994
Salomon Brothers Inc
Seven World Trade Center
New York, New York 10048
Dear Sirs:
Adelphia Communications Corporation, a Delaware
corporation (the "Company"), proposes to sell to Salomon Brothers
Inc (the "Underwriter") 3,000,000 shares of Class A Common Stock,
$.01 par value ("Common Stock"), of the Company (said shares to
be issued and sold by the Company being hereinafter called the
"Underwritten Securities"). The Company also proposes to grant
to the Underwriter an option to purchase up to 300,000 additional
shares of Common Stock (the "Option Securities"; the Option
Securities, together with the Underwritten Securities, being
hereinafter called the "Securities").
The Company also proposes to sell, pursuant to a
separate purchase agreement, 5,832,604 shares of Common Stock to
certain members of the Rigas family (and/or related persons).
Such shares will be registered under the Securities Act of 1933,
as amended (the "Act") pursuant to the Registration Statement and
Prospectus (each as defined below). In connection with the sale
by the Company of such shares of Common Stock to such persons,
Salomon Brothers Inc proposes, pursuant to separate agreements,
to make margin loans to such persons that are to be secured by
such shares of Common Stock. The Company has agreed, pursuant to
a Registration Agreement (the "Registration Agreement"), dated
January 7, 1994 between the Company and Salomon Brothers Inc, to
maintain in effect a registration statement relating to the
shares of Common Stock that are pledged as security for the
margin loans. The Registration Statement (as defined below) will
also cover the resale of such pledged shares by Salomon Brothers
Inc, as pledgee, or by such persons.
1. Representations and Warranties. The Company
represents and warrants to, and agrees with, the Underwriter as
set forth below in this Section 1. Certain capitalized terms
used in this Section 1 but not otherwise defined shall have the
meanings given to them in paragraph (n) of this Section 1.
(a) The Company meets the requirements for use of
Form S-3 under the Act and has filed with the
Commission a registration statement (file number
33-52630) on such Form, including a related preliminary
prospectus, for registration under the Act, of the
offering and sale of the Securities. The Company may
have filed one or more amendments thereto, including
the related preliminary prospectus, each of which
complies in all material respects with the Act and the
rules and regulations promulgated thereunder, and each
of which has previously been furnished to the
Underwriter. The Company will next file with the
Commission either (i) prior to effectiveness of such
registration statement, a further amendment to such
registration statement (including the form of final
prospectus) or (ii) after effectiveness of such
registration statement, a final Prospectus in
accordance with Rules 430A and 424(b)(1) or (4). In
the case of clause (ii), the Company has included in
such registration statement, as amended at the
Effective Date, all information (other than Rule 430A
Information) required by the Act and the rules
thereunder to be included in the Prospectus with
respect to the Securities and the offering thereof. 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, with respect to the Securities and the
offering thereof and, except to the extent the
Underwriter shall agree in writing to a modification,
shall be in all substantive respects in the form
furnished to the Underwriter 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 Prospectus) as the Company has
advised the Underwriter, prior to the Execution Time,
will be included or made therein. In addition, the
Registration Statement, at the Execution Time, meets
the requirements set forth in Rule 415(a)(1).
(b) On the Effective Date, the Registration
Statement did or will, and when the Prospectus is first
filed (if required) in accordance with Rule 424(b)
under the Act and on the Closing Date, the Prospectus
(and any supplements thereto) will, comply in all
material respects with the Act and the Securities
Exchange Act of 1934 (the "Exchange Act") and the
respective rules and regulations promulgated
thereunder; on the Effective Date, the Registration
Statement did not or will not contain any untrue
statement of a material fact or omit to state any
material fact required to be stated therein or
necessary in order to make the statements therein not
misleading; on the Effective Date the Prospectus, if
not filed pursuant to Rule 424(b), will not or did not,
and on the date of any filing pursuant to Rule 424(b)
and on the Closing Date, the Prospectus (together with
any supplement thereto) will not, include any untrue
statement of a material fact or omit to state a
material fact necessary in order to make the statements
therein, in the light of the circumstances under which
they were made, not misleading; provided, however, that
the Company makes no representations or warranties as
to the information contained in or omitted from the
Registration Statement, or the Prospectus (or any
supplement thereto), in reliance upon and in conformity
with information furnished in writing to the Company by
or on behalf of the Underwriter specifically for use in
connection with the preparation of the Registration
Statement or the Prospectus (or any supplement
thereto).
(c) Each of the Company and its Subsidiaries has
been duly incorporated, is validly existing as a
corporation in good standing under the laws of its
jurisdiction of incorporation, has full corporate power
and authority to own, lease and operate the properties
material to the business of the Company and its
Subsidiaries and the Partnerships taken as a whole and
to conduct its business (which business is completely
and accurately described in all respects material to
the Company, its Subsidiaries and the Partnerships
taken as a whole in the Registration Statement and the
Prospectus) and is duly qualified and authorized to do
business as a foreign corporation 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 or authorization and where
the failure to be so qualified could have a materially
adverse effect on the business, assets, properties or
condition (financial or otherwise) of the Company, its
Subsidiaries and the Partnerships taken as a whole.
(d) Each of the Partnerships has been duly formed
and is validly existing as a partnership under the laws
of its jurisdiction of organization, with full power
and authority to own, lease and operate the properties
material to the business of the Company and its
Subsidiaries and the Partnerships taken as a whole and
to conduct its business (which business is completely
and accurately described in all respects material to
the Company, its Subsidiaries and the Partnerships
taken as a whole in the Registration Statement and the
Prospectus); all necessary filings with respect to the
formation of the Partnerships as partnerships under
such laws have been made and all of the statements in
the certificates of partnership of the Partnerships are
true and correct in all material respects; each of the
Partnerships is duly qualified or registered to do
business in each jurisdiction in which the conduct of
its business or its ownership or leasing of property
requires such qualification or registration and where
the failure to be so qualified would have a materially
adverse effect on the business, assets, properties, or
condition (financial or otherwise) of the Company, its
Subsidiaries and the Partnerships taken as a whole.
(e) The Company has full corporate power and
authority and has taken all corporate actions necessary
to authorize it to enter into and to perform its
obligations under this Agreement and the Registration
Agreement and to consummate the transactions
contemplated hereby and thereby and to consummate the
transactions described in the Prospectus under "Use of
Proceeds"; the execution, delivery and performance by
the Company of this Agreement and the Registration
Agreement has been duly authorized by all requisite
corporate action; each of this Agreement and the
Registration Agreement constitutes the legal, valid and
binding obligation of the Company, enforceable in
accordance with its terms, except as (A) the
enforceability hereof or thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium
(whether general or specific), or similar laws
affecting the enforcement of creditors' rights and
remedies generally, (B) the remedy of specific
performance and other remedies or forms of relief may
be limited by equitable defenses and the discretion of
the court before which a proceeding therefor may be
brought (whether such proceeding is at law or in equity
or in a bankruptcy proceeding), and (C) rights to
indemnification may be limited by the laws of any
governmental authority or agency thereof, or by public
policy.
(f) The execution, delivery and performance of
this Agreement and the Registration Agreement and the
consummation of the transactions contemplated hereby
and thereby and the consummation of the transactions
described in the Prospectus under "Use of Proceeds"
will not (A) contravene the certificate or articles of
incorporation or bylaws of the Company or any
Subsidiary or the certificates or agreements of
partnership of the Partnerships or, except as to the
following clauses (B), (C) or (D) in cases in which
such contravention would not have a material adverse
effect on the business, assets, properties or condition
(financial or otherwise) of the Company, its
Subsidiaries and Partnerships taken as a whole, (B)
contravene any provision of law applicable to the
Company or any of its Subsidiaries or any of the
Partnerships or (C) contravene any agreement or other
instrument (including any franchise agreement, license,
permit or other governmental authorization granted by
the Federal Communications Commission (the "FCC"), the
State of New York Commission on Cable Television, the
Massachusetts Community Cablevision Commission, the New
Jersey office of Cable Television and Board of Public
Utilities, the Vermont Public Service Board or any
other governing body having jurisdiction over cable
television operations) binding upon the Company or any
of its Subsidiaries or any of the Partnerships or (D)
contravene any order, judgment or decree of any court
or governmental agency or authority; and will not
conflict with or result in the creation or imposition
of any lien, charge or other encumbrance upon any of
the assets of the Company or any of its Subsidiaries or
any of the Partnerships pursuant to the terms of, or
constitute a default under, any franchise agreement,
contract, ordinance, easement, license, permit, right
of way, resolution or other form of operating
authorization granted by governmental authorities,
except in cases in which such conflict, creation,
imposition or default would not have a material adverse
effect on the business, assets, properties or condition
(financial or otherwise) of the Company, its
Subsidiaries and the Partnerships taken as a whole.
(g) Prior to the Closing Date, the Company, the
Subsidiaries and the Partnerships will (A) have
obtained, except in cases in which the failure to do so
would not have a material adverse effect on the
business, assets, properties or condition (financial or
otherwise) of the Company, its Subsidiaries and
Partnerships taken as a whole, all licenses, consents,
approvals, authorizations, permits, franchises and
other agreements (including, without limitation, all
governmental authorizations (including, without
limitation, those of the Commission and, to the
Company's knowledge based solely on information
supplied to it by the Underwriter and its counsel, of
any state securities agency or other regulatory body
having jurisdiction where the Securities will be
offered for sale)) as are necessary to be obtained by
the Company in connection with (1) the execution and
delivery of this Agreement and the Registration
Agreement, (2) the consummation of any of the
transactions contemplated hereby and thereby, (3) the
consummation of the transactions described in the
Prospectus under "Use of Proceeds" or (4) the conduct
of their respective businesses, each of which will, on
the Closing Date, be in full force and effect and (B)
have filed, except in cases in which the failure to do
so would not have a material adverse effect on the
business, assets, properties or condition (financial or
otherwise) of the Company, its Subsidiaries and
Partnerships taken as a whole, all notices,
registrations, declarations and other filings with, any
lender, regulatory body, administrative agency,
governmental body or other public authority (including,
without limitation, those with the Commission and, to
the Company's knowledge based solely on information
supplied to it by the Underwriter and its counsel, of
any state securities agency or other regulatory body
having jurisdiction where the Securities will be
offered for sale) required on or prior to the Closing
Date to be filed by the Company, any Subsidiary or any
Partnership in connection with (1) the execution and
delivery of this Agreement and the Registration
Agreement, (2) the consummation of any of the
transactions contemplated hereby or thereby, (3) the
consummation of the transactions described in the
Prospectus under "Use of Proceeds" or (4) the conduct
of their respective businesses (including, without
limitation, all governmental authorizations and
agreements with public utilities or microwave
transmission companies, and pole access and rental
agreements); the Company, its Subsidiaries and the
Partnerships are on the date hereof, and will be on the
Closing Date, in full compliance, except in cases in
which the failure to be in compliance would not have a
material adverse effect on the business, assets,
properties or condition (financial or otherwise) of the
Company, its Subsidiaries and Partnerships taken as a
whole, with the foregoing licenses, consents,
approvals, authorizations, permits, franchises and
other agreements, none of which contain any
restrictions materially burdensome to the Company, its
Subsidiaries and Partnerships taken as a whole.
(h) Except as disclosed in the Registration
Statement, as of the Closing Date there will be no
action, claim, suit, proceeding, order or investigation
pending, nor, to the best of the Company's knowledge
after due inquiry, threatened against the Company, any
Subsidiary or any Partnership, or to which the business
or any of the properties of the Company, any Subsidiary
or any Partnership is subject, before any court or
before or by any governmental department, commission,
board, bureau, agency or instrumentality, which seeks
to restrain, enjoin or prevent consummation of or
otherwise challenge this Agreement or the Registration
Agreement or any of the transactions contemplated
hereby or thereby (including, without limitation, the
authorization, issuance, sale and delivery of the
Securities) or transactions described in the Prospectus
under "Use of Proceeds", or which if finally determined
adversely to the Company, any Subsidiary or any
Partnership would, individually or in the aggregate,
have a material adverse effect on their businesses,
assets, properties, operations, prospects or conditions
(financial or otherwise) taken as a whole.
(i) Except as disclosed in the Registration
Statement, as of the Closing Date there will have been
no material adverse change in the business, operations,
assets, properties or prospects, or in the condition
(financial or otherwise) of the Company, its
Subsidiaries and the Partnerships taken as a whole;
except as disclosed in the Registration Statement, the
Company has not entered into or performed in whole or
in part any material transaction or taken any other
material action and there is no fact known to the
Company which materially and adversely affects, or in
the future would materially and adversely affect, the
business, prospects, condition, affairs, operations,
properties or assets of the Company, its Subsidiaries
and Partnerships taken as a whole; or the ability of
the Company to perform fully its obligations under this
Agreement.
(j) As of the Closing Date, the Company, its
Subsidiaries and the Partnerships taken as a whole will
not have any material liabilities, contingent or
otherwise, (whether or not such liabilities must be
disclosed on a balance sheet), except as disclosed in
the Registration Statement.
(k) Neither the Company nor any Subsidiary nor
any Partnership is (1) in the case of the Company or
any Subsidiary, in violation of their respective
articles or certificates of incorporation or, in the
case of a Partnership, in violation of its certificate
or agreement of partnership or, except as to the
following clauses (2) or (3) in cases in which such
violation would not have a material adverse effect on
the business, assets, properties or condition
(financial or otherwise) of the Company, its
Subsidiaries and the Partnerships taken as a whole, (2)
in violation of any law, administrative regulation,
ordinance, order, judgment or decree of any court or
governmental agency, arbitration panel or authority
applicable to the Company, any Subsidiary or any
Partnership or to any of their respective properties or
assets, or (3) in violation of or default under any
obligation, agreement, covenant or condition contained
in any loan agreement, bond, debenture, mortgage, deed
of trust, note or any other evidence of indebtedness or
in any indenture or any other agreement, contract or
instrument to which the Company, any Subsidiary or any
Partnership is a party or by which the Company or any
Subsidiary or any Partnership is bound or to which any
of their respective properties or assets are bound or
subject; no condition or event has, and as of the
Closing Date, none will have occurred which, with
notice or lapse of time or both, would constitute a
default under any such document or instrument or result
in the imposition of any penalty or acceleration of any
indebtedness, except in cases in which such default,
imposition or acceleration would not have a material
adverse effect on the business, assets, properties or
condition (financial or otherwise) of the Company, its
Subsidiaries and the Partnerships taken as a whole and
in cases where waivers have been previously obtained.
(l) Except as set forth in the Registration
Statement or on Schedule I attached hereto, (i) the
Company owns, directly or through a Subsidiary or
Partnership, all of the outstanding shares of capital
stock of each of its Subsidiaries; all of such shares
have been duly authorized and validly issued and are
fully paid and nonassessable and are owned by the
Company or one of its Subsidiaries or Partnerships free
and clear of any security interest, claim, lien or
other encumbrance; (ii) the general partnership
interests in the Partnerships are validly issued and
fully paid, are owned by the Company, or a Subsidiary
or Partnership free and clear of any security interest,
claim, lien or other encumbrance, and constitute the
sole general partnership interests in each Partnership;
and (iii) there are no outstanding rights, warrants or
options to acquire, or instruments convertible into or
exchangeable for, any shares of capital stock of the
Company or any Subsidiary or any partnership interest
in any Partnership.
(m) Except as disclosed in the Registration
Statement, the Company, its Subsidiaries or the
Partnerships, as the case may be, have good and
marketable title in fee simple to all real property
owned thereby which is material to the business of the
Company, its Subsidiaries and the Partnerships taken as
a whole, subject to no liens, restrictions or
encumbrances, or title retention or other similar
agreements, devices or arrangements, except such as are
not material in the aggregate and will not materially
interfere with the business, operations or condition
(financial or otherwise) of the Company, its
Subsidiaries and the Partnerships taken as a whole;
except as disclosed in the Registration Statement, the
Company, its Subsidiaries and the Partnerships enjoy
peaceful and undisturbed possession and use under all
leases pursuant to which the Company, its Subsidiaries
or the Partnerships hold any such real property or
tangible personal property which is material to the
business of the Company, its Subsidiaries and the
Partnerships taken as a whole as described in the
Registration Statement, none of which leases contain
any provision which materially and adversely affects
the business, operations or condition (financial or
otherwise) of the Company, its Subsidiaries and the
Partnerships taken as a whole, and all of such leases
are valid and subsisting and in full force and effect,
except as would not have a material adverse effect on
the operations of the Company, its Subsidiaries and the
Partnerships taken as a whole.
(n) The terms which follow, when used in this
Agreement, shall have the meanings indicated.
"Commission" shall mean the Securities and Exchange
Commission of the United States. "Effective Date"
shall mean each date that the Registration Statement
and any post-effective amendment or amendments thereto
became or become effective. "Execution Time" shall
mean the date and time that this Agreement is executed
and delivered by the parties hereto. "Partnership"
shall mean any general or limited partnership in which
the Company or any Subsidiary thereof, or any
Partnership, holds a general partnership interest,
except as set forth in Schedule I attached hereto.
"Preliminary Prospectus" shall mean the preliminary
prospectus relating to the Securities included in
Amendment No. 3 to the Registration Statement, dated
December 22, 1993, and any preliminary prospectus
relating to the Securities subsequent thereto included
in the Registration Statement at the Effective Date
that omits Rule 430A Information. "Prospectus" shall
mean the prospectus relating to the Securities that is
first filed pursuant to Rule 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 Securities included in the Registration
Statement at the Effective Date. "Registration
Statement" shall mean the registration statement
referred to in paragraph (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 becomes effective
prior to the Closing Date (as hereinafter defined),
shall also mean such registration statement as so
amended. Such term shall include any Rule 430A
Information deemed to be included therein at the
Effective Date as provided herein or by Rule 430A.
"Rule 415", "Rule 424" and "Rule 43OA" refer to such
rules under the Act. "Rule 430A Information" means
information with respect to the Securities and the
offering thereof permitted to be omitted from the
Registration Statement when it becomes effective
pursuant to Rule 430A (including information provided
in the Prospectus filed pursuant to Rule 424(b)).
"Subsidiary" means any corporation of which the
Company, or any Subsidiary or Partnership, owns,
directly or indirectly, more than 50% of the
outstanding shares of stock of such corporation
entitled to one or more votes to elect the directors,
officers or trustees thereof. Any reference herein to
the Registration Statement, a Preliminary Prospectus or
the Prospectus shall be deemed to refer to and include
the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 which were filed under
the Exchange Act on or before the Effective Date of the
Registration Statement or the issue date of such
Preliminary Prospectus or the Prospectus, as the case
may be; and any reference herein to the terms "amend",
"amendment" or "supplement" with respect to the
Registration Statement, any Preliminary Prospectus or
the Prospectus shall be deemed to refer to and include
the filing of any document under the Exchange Act after
the Effective Date of the Registration Statement, or
the issue date of any Preliminary Prospectus or the
Prospectus, as the case may be, deemed to be
incorporated therein by reference.
2. Purchase and Sale. (a) Subject to the terms and
conditions set forth in this Agreement, and in reliance upon the
representations and warranties herein set forth, the Company
agrees to sell to the Underwriter, and the Underwriter agrees to
purchase from the Company, 3,000,000 shares of Underwritten
Securities at a purchase price of $18.00 per share.
(b) Subject to the terms and conditions and in
reliance upon the representations and warranties herein set
forth, the Company hereby grants an option to the Underwriter to
purchase up to 300,000 shares of Option Securities at the same
purchase price per share as the Underwriter shall pay for the
Underwritten Securities. Said option may be exercised only to
cover over-allotments in the sale of the Underwritten Securities
by the Underwriter. Said 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 Prospectus upon written or telegraphic
notice by the Underwriter to the Company setting forth the number
of shares of the Option Securities as to which the Underwriter is
exercising the option and the settlement date. Delivery of
certificates for the shares of Option Securities, and payment
therefor, shall be made as provided in Section 3 hereof.
3. Delivery and Payment. Delivery of and payment for
the Underwritten Securities and the Option Securities (if the
option provided for in Section 2(b) hereof shall have been
exercised on or before the third business day prior to the
Closing Date) shall be made at offices in New York, New York to
be designated by the Underwriter, at 10:00 A.M., New York City
time, on January 14, 1994, or such later date (not later than
January 21, 1994) as the Underwriter shall designate, which date
and time may be postponed by agreement between the Underwriter
and the Company or as provided in Section 9 hereof (such date and
time of delivery and payment for the Securities being herein
called the "Closing Date"). Delivery of the Underwritten
Securities and the Option Securities shall be made to the
Underwriter for its account against payment by the Underwriter of
the purchase price thereof to or upon the order of the Company by
certified or official bank check or checks drawn on or by a New
York Clearing House bank and payable in next day funds.
Certificates for the Securities shall be registered in such names
and in such denominations as the Underwriter may request not less
than three full business days in advance of the Closing Date.
The Company agrees to have the Securities available for
inspection, checking and packaging by the Underwriter, or its
appointed representatives, in New York, New York, not later than
1:00 P.M. on the business day immediately preceding the Closing
Date.
If the option provided for in Section 2(b) hereof is
exercised after the third business day prior to the Closing Date,
the Company will deliver (at the expense of the Company) to the
Underwriter, in New York, New York, on the date specified by the
Underwriter (which shall be within three business days after
exercise of said option), certificates for the Option Securities
in such names and denominations as the Underwriter shall have
requested against payment of the purchase price thereof to or
upon the order of the Company by certified or official bank check
or checks drawn on or by a New York Clearing House bank and
payable in next day funds. If settlement for the Option
Securities occurs after the Closing Date, the Company will
deliver to the Underwriter on the settlement date for the Option
Securities, and the obligation of the Underwriter to purchase the
Option 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 6 hereof.
4. Offering by the Underwriter. It is understood and
agreed that the Underwriter proposes to make a public offering
of the Securities on the terms set forth in the Prospectus as
soon after the Registration Statement has become effective as in
the judgment of the Underwriter is advisable.
5. Covenants of the Company. The Company agrees with
and covenants to the Underwriter as follows:
(a) The Company will use its best efforts to
cause the Registration Statement, if not effective at
the Execution Time, and any subsequent amendment
thereto, to become effective as soon as practicable
thereafter. Prior to the termination of the offering
of the Securities (of which termination the Underwriter
will provide the Company prompt written notice), the
Company will not file any amendment of the Registration
Statement or supplement to the Prospectus without the
prior consent of the Underwriter, which shall not be
unreasonably withheld. Subject to the foregoing
sentence, if the Registration Statement has become or
becomes effective pursuant to Rule 430A, or filing of
the Prospectus is otherwise required under Rule 424(b),
the Company will cause the 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 Underwriter of
such timely filing. The Company will promptly advise
the Underwriter (i) when the Registration Statement, if
not effective at the Execution Time, and any subsequent
amendment thereto, shall have become effective; (ii)
when the Prospectus, and any supplement thereto, shall
have been filed (if required) with the Commission
pursuant to Rule 424(b); (iii) when, prior to
termination of the offering of the Securities, any
amendment to the Registration Statement shall have been
filed or become effective; (iv) of any request by the
Commission for any amendment of the Registration
Statement or supplement to the Prospectus or for any
additional information; (v) of the issuance by the
Commission of any stop order suspending the
effectiveness of the Registration Statement or the
institution or the threatening of any proceeding for
that purpose; and (vi) of the receipt by the Company of
any notification with respect to the suspension of the
qualification of the Securities for sale in any
jurisdiction or the initiation or threatening of any
proceeding for such purpose. The Company will use its
best efforts to prevent the issuance of any such stop
order and, if issued, to obtain as soon as possible the
withdrawal thereof.
(b) The Company shall furnish to the Underwriter,
at the Company's sole expense, one manually signed copy
of the Registration Statement (including all Exhibits
and financial statements thereto) and, during such
period after the first date of the public offering of
the Securities to the date of termination of the
offering, as in the opinion of counsel to the
Underwriter, the Preliminary Prospectus or the
Prospectus is required by law to be delivered in
connection with sales by an underwriter or dealer (the
"Prospectus Period"), as many copies of the Preliminary
Prospectus or the Prospectus and any supplements or
amendments thereto as the Underwriter may reasonably
request.
(c) If, at any time during the Prospectus Period,
any event occurs as a result of which the Prospectus as
then supplemented would include any untrue statement of
a material fact or omit to state any material fact
necessary to make any statement therein in the light of
the circumstances under which it was made not
misleading, or if it shall be necessary to amend the
Registration Statement or supplement the Prospectus to
comply with the Act or the rules thereunder, the
Company promptly will prepare such amendment or
supplement, provide the Underwriter with complete
copies thereof, and file with the Commission, subject
to the second sentence of paragraph (a) of this Section
5, such amendment or supplement which will correct such
statement or omission or effect such compliance.
(d) As soon as practicable, the Company will make
generally available to the holders of the Securities
and to the Underwriter an earning statement or
statements of the Company, its Subsidiaries and the
Partnerships covering the twelve-month period
commencing on the Closing Date, which will satisfy the
provisions of Section 11(a) of the Act and Rule 158
under the Act, or such similar provisions of law as may
hereafter be enacted in substitution thereof.
(e) If, during the Prospectus Period, any event
shall occur as a result of which it is necessary to
amend or supplement the Prospectus in order to make the
statements therein, in the light of the circumstances
existing when the Prospectus is delivered to a
purchaser, not misleading, or if it is necessary to
amend or supplement the Prospectus to comply with law,
forthwith to prepare and furnish, at its own expense,
to the Underwriter and to the dealers (whose names and
addresses the Underwriter will furnish to the Company)
to which Securities may have been sold by the
Underwriter 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 existing when the Prospectus is delivered
to a purchaser, be misleading and so that the
Prospectus will comply with law.
(f) To cooperate with the Underwriter and counsel
to the Underwriter to qualify the Securities for offer
and sale under the securities or Blue Sky laws of such
jurisdictions as the Underwriter shall request and to
pay all expenses (including reasonable fees and
disbursements of counsel) in connection therewith as
well as all fees payable in connection with the
determination of the eligibility of the Securities for
investment under the laws of such jurisdictions as the
underwriter may designate, as well as all fees payable
in connection with the review of the offering of the
Securities by the National Association of Securities
Dealers, Inc.
(g) To use the proceeds from the sale of the
Securities in the manner set forth in the Registration
Statement and in the Prospectus under "Use of
Proceeds," and in a manner that will not result in the
Company becoming an investment company within the
meaning of the Investment Company Act of 1940, as
amended, and the rules and regulations of the
Commission promulgated thereunder.
(h) The Company will not, for a period of 120
days following the Execution Time, without the prior
written consent of the Underwriter, offer, sell or
contract to sell, or otherwise dispose of, directly or
indirectly, or announce the offering of, any other
shares of Common Stock or any securities convertible
into, or exchangeable for, shares of Common Stock;
provided, however, that the Company may issue and sell
Common Stock pursuant to any employee stock option
plan, stock ownership plan or dividend reinvestment
plan of the Company in effect at the Execution Time and
the Company may issue Common Stock issuable upon the
conversion of securities or the exercise of warrants
outstanding at the Execution Time.
(i) The Company confirms as of the date hereof
that it is in compliance with all provisions of Section
1 of Laws of Florida, Chapter 92-198, An Act Relating
to Disclosure of Doing Business with Cuba, and the
Company further agrees that if it commences engaging in
business with the government of Cuba or with any person
or affiliate located in Cuba after the date the
Registration Statement becomes or has become effective
with the Commission or with the Florida Department of
Banking and Finance (the "Department"), whichever date
is later, or if the information reported in the
Prospectus, if any, concerning the Company's business
with Cuba or with any person or affiliate located in
Cuba changes in any material way, the Company will
provide the Department notice of such business or
change, as appropriate, in a form acceptable to the
Department.
6. Conditions to the Obligation of the Underwriter.
The obligation of the Underwriter to purchase the Securities
shall be subject to the accuracy of the representations and
warranties on the part of the Company contained herein as of the
Execution Time, the Closing Date and any settlement date pursuant
to Section 3 hereof, to the accuracy of the statements of the
Company made in any certificates pursuant to the provisions
hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
(a) If the Registration Statement has not become
effective prior to the Execution Time, unless the
Underwriter shall, prior to the Execution Time, agree
in writing to a later time, the 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, if such determination occurred
at or prior to 3:00 p.m. New York City time on such
date, or (ii) 12:00 Noon on the business day following
the day on which the public offering price was
determined, if such determination occurred after 3:00
p.m. New York City time on such date; if filing of the
Prospectus, or any supplement thereto, is required
pursuant to Rule 424(b) of the Act, the Prospectus, and
any such supplement, will be filed in the manner and
within the time period required by such Rule 424(b).
(b) No stop order suspending the effectiveness of
the Registration Statement shall be in effect, and no
proceedings for such purpose shall be pending before or
threatened by the Commission, and there shall have been
no material adverse change in the condition of the
Company, its Subsidiaries and the Partnerships, taken
as a whole, from that set forth in the Registration
Statement, and the Underwriter shall have received, on
the Closing Date, a certificate, dated the Closing Date
and signed by an executive officer of the Company and
attested to by the Secretary or an Assistant Secretary
of the Company, to the foregoing effect. Such
certificate will also provide that the representations
and warranties of the Company contained herein are
true, complete and correct as of the Closing Date. The
officer making such certificate may rely upon the best
of his knowledge as to proceedings which are
threatened.
(c) The Company shall have furnished to the
Underwriter the opinion of Buchanan Ingersoll
Professional Corporation ("Buchanan Ingersoll") and/or
Colin Higgin, deputy general counsel to the Company,
dated the Closing Date to the effect that:
(i) each of the Company and the Subsidiaries has
been duly incorporated and is validly existing as a
corporation in good standing under the laws of its
jurisdiction of incorporation, with full corporate power
and authority to own, lease or operate its properties and
to conduct its business (in all respects material to the
Company, its Subsidiaries and the Partnerships taken as a
whole) as described in the Prospectus, and is duly
qualified to do business as a foreign corporation and is
in good standing under the laws of each jurisdiction in
which the conduct of its business or the ownership or
leasing of its property requires such qualification and
where the failure to be so qualified would have a
materially adverse effect on the business, assets,
properties or condition (financial or otherwise) of the
Company, its Subsidiaries and the Partnerships, taken as
a whole;
(ii) each of the Partnerships has been duly formed
and is validly existing as a partnership under the laws
of its jurisdiction of organization, with full power and
authority to own, lease or operate its properties and to
conduct its business (in all respects material to the
Company, its Subsidiaries and the Partnerships taken as a
whole) as described in the Prospectus; each of the
Partnerships is duly qualified or registered to do
business in each jurisdiction in which the conduct of its
business or its ownership or leasing of property requires
such qualification or registration and where the failure
to be so qualified or registered would have a materially
adverse effect on the business, assets, properties or
condition (financial or otherwise) of the Company, its
Subsidiaries and the Partnerships taken as a whole;
(iii) the Company's authorized equity capitalization
is as set forth in the Prospectus; the capital stock of
the Company conforms to the description thereof contained
in the Prospectus; the outstanding shares of Common Stock
have been duly and validly authorized and issued and are
fully paid and nonassessable; the Securities have been
duly and validly authorized, and, when issued and
delivered to and paid for by the Underwriters pursuant to
this Agreement, will be fully paid and nonassessable; the
Securities being sold are duly approved for quotation
through the National Market System of the National
Association of Securities Dealers Automated Quotation
National Market System ("NASDAQ-NMS") and are duly
approved for trading through NASDAQ-NMS, and the Company
has notified the NASDAQ-NMS of the issuance of such
Securities; the certificates for the Securities are in
valid and sufficient form; and the holders of outstanding
shares of capital stock of the Company are not entitled
to preemptive or other rights to subscribe for the
Securities;
(iv) this Agreement and the Registration Agreement
constitute the valid and binding obligations of the
Company, enforceable in accordance with their respective
terms, except as (a) such enforceability may be limited
by bankruptcy, insolvency, reorganization, moratorium
(whether general or specific) or similar laws affecting
the enforcement of creditors' rights and remedies
generally, (b) the remedy of specific performance and
other remedies or forms of relief may be limited by
equitable defenses and the discretion of the court before
which any proceeding therefor may be brought (whether
such proceeding is at law or in equity or in a bankruptcy
proceeding), and (c) rights to indemnification may be
limited by the laws of any governmental authority or
agency thereof or by public policy;
(v) the execution, delivery and performance of this
Agreement and the Registration Agreement and the
consummation of the transactions contemplated hereby and
thereby and the consummation of the transactions
described in the Prospectus under "Use of Proceeds" will
not (A) contravene the certificate or articles of
incorporation or by-laws of the Company or any of its
Subsidiaries or the certificates or agreements of
partnership of the Partnerships or, except as to the
following clauses (B), (C) or (D) in cases in which such
contravention would not have a material adverse effect on
the business, assets, properties or condition (financial
or otherwise) of the Company, its Subsidiaries and
Partnerships taken as a whole, (B) contravene any
provision of law applicable to the Company or any of its
Subsidiaries or any of the Partnerships or (C) contravene
to the best knowledge of such counsel after due inquiry
any agreement or other instrument (including any
franchise agreement, license, permit or other
governmental authorization granted by the State of New
York Commission on Cable Television, the Massachusetts
Community Cablevision Commission, the New Jersey Office
of Cable Television and Board of Public Utilities, the
Vermont Public Service Board, or any other governing body
having jurisdiction over cable television operations)
binding upon the Company, any Subsidiary or any
Partnership or (D) contravene any order, judgment or
decree of any court or governmental agency or authority;
and will not conflict with or result in the creation or
imposition of any lien, charge or other encumbrance upon
any of the assets of the Company, any of its Subsidiaries
or any of the Partnerships pursuant to the terms of, or
constitute a default under, any franchise agreement,
contract, ordinance, easement, license, permit, right of
way, resolution or other form of operating authorization
granted by governmental authorities, except in cases in
which such conflict, creation, imposition or default
would not have a material adverse effect on the business,
assets, properties or condition (financial or otherwise)
of the Company, its Subsidiaries and the Partnerships
taken as a whole; no license, permit, consent, approval,
authorization or declaration of any governmental body or
agency is required, except in cases in which the failure
to have obtained such license, permit, consent, approval,
authorization or declaration would not have a material
adverse effect on the business, assets, properties or
condition (financial or otherwise) of the Company, its
Subsidiaries and Partnerships taken as a whole, for the
performance by the Company of this Agreement and the
Registration Agreement and the consummation of the
transactions contemplated hereby and thereby and the
consummation of the transactions described in the
Prospectus under "Use of Proceeds", except such as are
described in the Registration Statement or Prospectus or
have been obtained and except such as may be required
under state securities and Blue Sky laws;
(vii) the Registration Statement has become effective
under the Act; any required filing of the Prospectus, and
any supplements thereto, pursuant to Rule 424(b) has been
made in the manner and within the time period required by
Rule 424(b); and, to the best knowledge of such counsel
after due inquiry, no stop order suspending the
effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been
instituted or are threatened, pending or contemplated
under the Act;
(viii) except as described in the Prospectus, to the
best knowledge of such counsel after due inquiry, each of
the Company, the Subsidiaries and the Partnerships has
all licenses, consents, approvals, authorizations,
permits, franchises and other agreements (including,
without limitation, all governmental authorizations and
agreements with public utilities and microwave
transmission companies and pole access and rental
agreements) as are necessary, except in cases in which
the failure to have obtained such licenses, consents,
approvals, authorizations, permits, franchises and other
agreements would not have a material adverse effect on
the business, assets, properties or condition (financial
or otherwise) of the Company, its Subsidiaries and
Partnerships taken as a whole, to own and maintain their
respective cable communications properties and to conduct
their respective cable communications businesses in the
manner described in the Prospectus, and all such
licenses, consents, approvals, authorizations, permits,
franchises and other agreements are in full force and
effect; the Company, the Subsidiaries and the
Partnerships are in compliance with such licenses,
consents, approvals, authorizations, permits, franchises
and other agreements, except in cases in which the
failure to so comply would not have a material adverse
effect on the business, assets, properties or condition
(financial or otherwise) of the Company, its Subsidiaries
and the Partnerships taken as a whole;
(ix) to the best knowledge of such counsel after due
inquiry, neither the Company, any of its Subsidiaries, or
any Partnership is (1) in the case of the Company or any
of its Subsidiaries, in violation of its articles or
certificate of incorporation or by-laws or, in the case
of a Partnership, in violation of its certificate or
agreement of partnership, or, except as to the following
clauses (2) and (3) in cases in which such violation
would not have a material adverse effect on the business,
assets, properties or condition (financial or otherwise)
of the Company, its Subsidiaries and the Partnerships
taken as a whole, (2) in violation of any law,
administrative regulation, ordinance, order, judgment or
decree of any court or governmental agency, arbitration
panel or authority applicable to the Company, any of its
Subsidiaries or any Partnership, or any of their
respective properties or assets, or (3) to the best
knowledge of such counsel after due inquiry, in violation
of or default under any obligation, agreement, covenant
or condition contained in any loan agreement, bond,
debenture, mortgage, deed of trust, note or any other
evidence of indebtedness or in any indenture or any other
agreement, contract or instrument to which the Company or
any of its Subsidiaries or any Partnership is a party for
which waivers have not been obtained; to the best
knowledge of such counsel after due inquiry, there exists
no condition or event which, with notice or lapse of time
or both, would constitute a default under any such
document or instrument or result in the imposition of any
penalty or acceleration of any indebtedness, except in
cases in which such default, imposition or acceleration
would not have a material adverse effect on the business,
assets, properties or condition (financial or otherwise)
of the Company, its Subsidiaries and the Partnerships
taken as a whole;
(x) except as set forth in the Registration
Statement, the Company owns, directly or through a
Subsidiary or Partnership, (i) all of the outstanding
shares of capital stock of each of its Subsidiaries, all
of which shares have been duly authorized and validly
issued and are fully paid and nonassessable, are, to the
best knowledge of such counsel after due inquiry, owned
free and clear of any security interest (whether
perfected or not), claim, lien or other encumbrance; and
(ii) all of the outstanding general partnership interests
in the Partnerships, all of which interests have been
validly issued and fully paid, are, to the best knowledge
of such counsel after due inquiry, owned by the Company
or a Subsidiary or Partnership free and clear of any
security interest (whether perfected or not), claim, lien
or other encumbrance and constitute the sole general
partnership interest in the Partnerships; to the best
knowledge of such counsel after due inquiry, there are no
outstanding rights, warrants or options to acquire, or
instruments convertible into or exchangeable for, any
shares of capital stock of the Company or any of its
Subsidiaries, except as set forth in the Registration
Statement;
(xi) no holders of securities of the Company have
rights to the registration of such securities under the
Registration Statement; and
(xii) such counsel (1) is of the opinion that at the
time the Registration Statement became effective the
Registration Statement and the Prospectus and any
supplements or amendments thereto (except for financial
statements, schedules and other financial and statistical
data, as to which such counsel need not express any
opinion) complied as to form in all material respects
with the Act, and the rules and regulations of the
Commission promulgated thereunder, and (2) shall state
that during the course of preparation of the Registration
Statement and the Prospectus, such counsel participated
in conferences with officers and other representatives of
the Company, its Subsidiaries and Partnerships,
representatives of the independent certified public
accountants of the Company and its Subsidiaries and
Partnerships, the representatives and counsel of the
Underwriter, at which conferences the contents of the
Registration Statement and the Prospectus and related
matters were discussed and, although such counsel is not
passing upon and does not assume any responsibility for
the accuracy, completeness or fairness of the statements
contained in the Registration Statement and the
Prospectus and has not made an independent investigation
of facts for the purpose of rendering this opinion, such
counsel advises the Underwriter that, on the basis of the
foregoing (relying as to certain factual matters on the
information provided to such counsel by the Company) no
facts have come to the attention of such counsel which
lead such counsel to believe that the Registration
Statement at the time it became effective or the
Prospectus, when such Prospectus was first filed with the
commission pursuant to Rule 424(b) or (together with any
supplements or amendments thereto) as of the Closing
Date, contained any untrue statement of a material fact
or omitted to state any material fact required to be
stated therein or necessary to make the statements
therein, in light of the circumstances under which they
were made, not misleading.
In rendering the foregoing opinion, Buchanan Ingersoll
and/or Colin Higgin may rely (a) as to matters involving the
laws of any jurisdiction other than Pennsylvania, the United
States, and Delaware general corporate law, upon the opinion
of local counsel satisfactory to the Underwriter, and (b) as
to all matters of fact, on certificates and written statements
of officers and employees of, and accountants for, the
Company; provided, however, that all such opinions,
certificates and statements shall be satisfactory to the
Underwriter in all material respects, with originally executed
copies attached to such counsel's opinion, said satisfaction
being within the sole discretion of the Underwriter.
(d) The Underwriter shall have received on the Closing
Date an opinion, satisfactory to the Underwriter in all
respects in the sole discretion of the Underwriter, of
Fleischman and Walsh of Washington, D.C., special
communications counsel for the Company, who shall base such
opinion in part on its inspection of the public records of the
FCC and the U.S. Copyright Office, to the effect that:
(i) To the best knowledge of such counsel after due
inquiry, all of the FCC licenses, as that term is defined
below (the "FCC Licenses"), held by International
Cablevision, Inc., Clear Cablevision, Inc., Southeast
Florida Cable, Inc., Key Biscayne Cablevision, Bethel
Park TV Cable Co., Inc., Mt. Lebanon Cablevision, Inc.,
South Hills TV Cable Company, Upper St. Clair
Cablevision, Inc., Lorain Cable Television Inc.,
Multi-Channel T.V. Cable Company, Adelphia Cable T.V.,
Inc., UltraCom of Montgomery County, Inc., UltraCom of
Marple, Inc., UltraCom of Lansdale, Inc., Mt. Oliver TV
Cable Co., Inc. and Adelphia Cable Partners, L.P.
(collectively, the "Selected Subsidiaries") have been
validly issued or assigned to the present licensee and
are currently in full force and effect. To the best
knowledge of such counsel after due inquiry, there is no
event which would allow, or after notice or lapse of time
which would allow, revocation or termination of any FCC
License held by the Selected Subsidiaries or would result
in any other material impairment of the rights of the
holder of such license. To the best knowledge of such
counsel after due inquiry, no other FCC Licenses are
required in connection with the operation of the cable
systems operated by the Selected Subsidiaries (the "Cable
Systems") in the manner such counsel has been advised
they are presently being operated. For the purposes of
this opinion, an "FCC license" is defined as an
authorization or renewal thereof, issued by the FCC
pursuant to Parts 78, 25 or 90 of its rules, authorizing
the operation of a facility in the Cable Television Relay
Service, Satellite Radio Service or Business Radio
Service.
(ii) Other than proceedings affecting the cable
television industry generally and other than rate
proceedings described in such opinion and in the
Prospectus, there is no action, suit or proceeding
pending before or, to the best knowledge of such counsel
after due inquiry, threatened by the FCC which is
reasonably likely to have a materially adverse impact
upon the cable television operations of the Company, the
Selected Subsidiaries and the Partnerships taken as a
whole.
(iii) Based solely on the information provided by
representatives of the Company and/or Selected
Subsidiaries as to antenna structure height, location and
proximity to any aircraft landing areas, all antenna
structures which such counsel has been advised are being
utilized by the Selected Subsidiaries in connection with
their operation of the Cable Systems are in compliance
with the notification requirements contained in Part 17
of the FCC's rules. Such counsel need express no opinion
as to compliance with any requirements of Part 17 of the
FCC's rules (such as antenna structure marking and
lighting requirements) other than those delineating the
circumstances under which notification to the Federal
Aviation Administration is required prior to the
construction or alteration of certain antenna structures.
(iv) The Selected Subsidiaries hold all
authorizations and/or have filed all notifications
required by the FCC in connection with their operation on
all frequencies in the 108-136 MHz and 225-400 MHz bands
which such counsel has been advised are currently being
utilized on the Cable Systems.
(v) The employment units covered by the Cable
Systems operated by the Selected Subsidiaries have been
certified, where required, by the FCC for compliance with
equal employment opportunity requirements in each of
calendar years 1987 through 1992. Based solely upon
representations of authorized representatives of the
Company and/or Selected Subsidiaries which such counsel
may state it has not independently verified, all 1993
Annual Employment Reports (From FCC Form 395-A) have been
filed for the employment units covered by the Cable
Systems.
(vi) All Statements of Account, Declarations of
Gross Receipts, and Gross Receipts Adjustment Schedules
required by Section 111, as limited by Section 507, of
the Copyright Act of 1976, as amended, have been filed
with, and accompanying royalty fee payments have been
tendered to, the U.S. Copyright Office for the Cable
Systems operated by the Selected Subsidiaries covering
the accounting periods beginning with the July 1 through
December 31, 1990 accounting period and ending with the
January 1 through June 30, 1993 accounting period. Such
counsel may state that it has not reviewed the
information or calculations contained in these
Statements, Declarations or Adjustment Schedules and
express no opinion with respect to the accuracy thereof.
To the best of such counsel's knowledge after due
inquiry, there are no currently outstanding inquiries
received from the U.S. Copyright Office or any other
party which question the copyright filings or payments
made by the Selected Subsidiaries with respect to the
Cable Systems.
(vii) Such counsel shall state that in the course of
its representation of the Company, its Subsidiaries and
the Partnerships, no matters have come to its attention,
other than matters affecting the cable television
industry generally and other than rate proceedings
described in such opinion and in the Prospectus, which
would reasonably be expected to have a materially adverse
impact upon the cable television operations of the
Company, its Subsidiaries and the Partnerships taken as a
whole, except as otherwise disclosed in such opinion.
(viii) Except as otherwise noted pursuant to
subparagraph (ix) below, neither the execution and
delivery of this Agreement or the Registration Agreement,
nor compliance with the terms, conditions and provisions
hereof or thereof by the Company, its Subsidiaries or the
Partnerships, nor the consummation of the transactions
contemplated hereby or thereby will conflict with the
Communications Act of 1934, as amended (the
"Communications Act") or the rules, regulations or
policies of the FCC thereunder, or will cause any
suspension, revocation, impairment, forfeiture,
nonrenewal or termination of any FCC Licenses.
(ix) Neither the execution and delivery of this
Agreement or the Registration Agreement, nor compliance
with the terms, conditions and provisions hereof or
thereof by the Company, its Subsidiaries or the
Partnerships, nor the delivery, offer, issuance and sale
of the Securities presently require any consent, filing,
registration or qualification by or with the FCC. Such
counsel may state that under the Communications Act as
now in effect, and as interpreted by the FCC, no security
interest may be granted in an FCC License.
(x) On the basis of and subject to the foregoing,
such counsel shall state that the statements contained in
the Registration Statement and Prospectus in all material
respects, as to legal matters, are fair and accurate
summaries in non-technical terms of the information
purported to be shown therein. Such counsel may state
that it expresses no opinion, however, as to the accuracy
or adequacy of the statements of fact or predictions
specific to the Company contained in the Registration
Statement and Prospectus.
(xi) Such counsel shall also state that although it
did not prepare, is not passing upon and does not assume
any responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration
Statement and the Prospectus (except as otherwise
expressly set forth in its opinion) and has not made an
independent investigation of facts for the purpose of
rendering its opinion, during the course of its review of
the "Legislation and Regulation" section of the
Registration Statement and Prospectus, no facts have come
to such counsel's attention that would cause it to
believe that the "Legislation and Regulation" section of
the Registration Statement, at the time it became
effective, contained any untrue statement of a material
fact or omitted to state any material fact required to be
stated in it or necessary in order to make the statements
in it not misleading, or that the "Legislation and
Regulation" section of the Prospectus contains any untrue
statement of a material fact or omits to state any
material fact necessary in order to make the statements
in it, in light of the circumstances under which they
were made, not misleading.
(e) The Underwriter shall have received from Cleary,
Gottlieb, Steen & Hamilton, counsel for the Underwriter, such
opinion or opinions, dated the Closing Date, with respect to
the issuance and sale of the Securities, the Registration
Statement, the Prospectus (together with any amendments or
supplements thereto) and other related matters as the
Underwriter may reasonably require, and the Company shall have
furnished to such counsel such documents as they may request
for the purpose of enabling them to pass upon such matters.
(f) The Company shall have furnished to the Underwriter
a certificate of the Company, signed by the Chairman of the
Board or the President and the principal financial or
accounting officer of the Company, dated the Closing Date, to
the effect that the signers of such certificate have carefully
examined the Registration Statement, the Prospectus, any
supplement to the Prospectus and this Agreement and that:
(i) the representations and warranties of the
Company in this Agreement are complete, true and correct
in all material respects on and as of the Closing Date
with the same force and effect as if made on the Closing
Date and the Company has complied in all material
respects with all the agreements and satisfied all the
conditions on its part to be performed or satisfied at or
prior to the Closing Date;
(ii) no stop order suspending the effectiveness of
the Registration Statement has been issued and no
proceedings for that purpose have been instituted or, to
the Company's knowledge, threatened; and
(iii) since the date of the most recent financial
statements included in the Prospectus (exclusive of any
supplement thereto), there has been no material adverse
change in the condition (financial or other), earnings,
business or properties of the Company, its Subsidiaries
and the Partnerships 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
Prospectus (exclusive of any supplement thereto).
(g) At the Execution Time and at the Closing Date,
Deloitte & Touche shall have furnished to the Underwriter a
letter or letters, dated respectively as of the Execution Time
and as of the Closing Date, in form and substance satisfactory
to the Underwriter, containing the statements set forth in
Exhibit A hereto.
(h) Subsequent to the Execution Time or, if earlier, the
dates as of which information is given in the Registration
Statement (exclusive of any amendment thereof) and the
Prospectus (exclusive of any supplement thereto), there shall
not have been (i) any change or decrease specified in the
letter or letters referred to in paragraph (g) of this Section
6 or (ii) any change, or any development involving a
prospective change, in or affecting the business or properties
of the Company, its Subsidiaries and the Partnerships taken as
a whole, the effect of which is, in the judgment of the
Underwriter, so material and adverse as to make it impractical
or inadvisable to proceed with the public offering or the
delivery of the Securities as contemplated by the Registration
Statement (exclusive of any amendment thereof) and the
Prospectus (exclusive of any supplement thereto).
(i) The Company shall have authorized and executed the
Registration Agreement, such Agreement shall be in full force
and effect and the Company shall have performed all agreements
contained therein that are to be performed by it on or prior
to the Closing Date;
(j) At the Closing Date, the closings of the sales of
shares of Common Stock by the Company to certain members of
the Rigas family (and related persons) as contemplated by the
Prospectus and the closing of the transactions contemplated
hereby shall occur simultaneously; and
(k) Prior to the Closing Date, the Company shall have
furnished to the Underwriter such further information,
certificates and documents as the Underwriter may reasonably
request.
If any of the conditions specified in this Section 6 shall not
have been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Underwriter and its counsel, this
Agreement and all obligations of the Underwriter hereunder may be cancelled at,
or at any time prior to, the Closing Date by the Underwriter. Notice of such
cancellation shall be given to the Company in writing or by telephonic
facsimile, or by telephone or telegraph confirmed in writing.
7. Reimbursement of Underwriter's Expenses. If the sale of
the Securities provided for herein is not consummated because any condition to
the obligations of the Underwriter set forth in Section 6 hereof is not
satisfied in all material respects, because of any termination pursuant to
Section 9 hereof or because of any refusal, inability or failure on the part of
the Company to perform any agreement herein or comply with any provision hereof
other than by reason of a default by the Underwriter, the Company will
reimburse the Underwriter upon demand for all reasonable out-of-pocket expenses
(including fees and disbursements of counsel) that shall have been incurred by
it in connection with the proposed purchase and sale of the Securities.
8. Indemnification. The Company agrees to indemnify and
hold harmless the Underwriter and each person, if any, who controls the
Underwriter within the meaning of either Section 15 of the Act or Section 20 of
the Securities Exchange Act of 1934 (the "Exchange Act"), as amended, from and
against any and all losses, claims, damages and liabilities caused by (a) any
untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement 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 or (b) any untrue statement or
alleged untrue statement of a material fact contained in the Prospectus (as
amended or supplemented, if the Company shall have furnished any amendments or
supplements thereto) or any Preliminary Prospectus, 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, in light of the
circumstances under which they were made, not misleading; provided, however,
that
the Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished
to the Company by or on behalf of the Underwriter specifically for use in
connection with the preparation thereof. This indemnity agreement will be in
addition to any liability which the Company may otherwise have.
The Underwriter agrees 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 Act or Section 20 of the Exchange Act, as amended, from and
against any and all losses, claims, damages and liabilities caused by (a) any
untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement 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 or (b) any untrue statement or
alleged untrue statement of a material fact contained in the Prospectus (as
amended or supplemented, if the Company shall have furnished any amendments or
supplements thereto) or any Preliminary Prospectus, or caused by any omission
or alleged omission to state therein a material fact necessary in order to make
the statements therein, in light of the circumstances under which they were
made, not misleading, but only with reference to information furnished to the
Company in writing by the Underwriter expressly for use in the Registration
Statement, the Prospectus, any amendment or supplement thereto, or any
Preliminary Prospectus. The Company acknowledges that the statements set forth
in the last paragraph of the cover page and under the heading "Underwriting" in
the Preliminary Prospectus and the Prospectus constitute the only information
furnished in writing by or on behalf of the Underwriter for inclusion in the
Preliminary Prospectus, the Prospectus or the Registration Statement.
In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to either of the two preceding paragraphs,
such person (hereinafter called the "Indemnified Party") shall promptly notify
the person against whom such indemnity may be sought (hereinafter called the
"Indemnifying Party") in writing and the Indemnifying Party, upon request of
the Indemnified Party, shall retain counsel reasonably satisfactory to the
Indemnified Party to represent the indemnified Party and any others the
Indemnifying Party may designate in such proceeding and shall pay the fees and
disbursements of such counsel, as incurred, related to such proceedings. 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 connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the reasonable fees and
expenses, as incurred, of more than one separate firm (in addition to any local
counsel) for all such Indemnified Parties. Such firm shall be designated in
writing by the Underwriter in the case of parties indemnified pursuant to the
second preceding paragraph and by the Company in the case of parties
indemnified pursuant to the first preceding paragraph. The Indemnifying Party
shall not be liable for any settlement of any proceeding effected without its
written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the Indemnifying Party agrees to indemnify the
Indemnified Party from and against any loss or liability by reason of such
settlement or judgment.
If the indemnification provided for in this Section 8 is
unavailable to an Indemnified Party under the first or second paragraphs hereof
in respect of any losses, claims, damages or
liabilities referred to therein, then each Indemnifying Party under either such
paragraph, in lieu of indemnifying such indemnifying Party thereunder, shall
contribute to the amount paid or payable by such Indemnified Party as a result
of such losses, clams, damages or liabilities (a) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the Underwriter on the other from the offering of the Securities or
(b) if the allocation provided by clause (a) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (a) above but also the relative fault
of the Company on the one hand and of the Underwriter on the other in
connection with the statement or omissions which 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 Underwriter on the other shall be deemed to be in the same proportion
as the total net proceeds from the offering (before deducting expenses)
received by the Company bear to the total underwriting discounts and
commissions received by the Underwriter, in each case as set forth in the table
on the cover of the Prospectus. The relative fault of the Company and the
Underwriter shall be determined by reference to, among other things, whether
the alleged untrue statement or omission relates to information supplied by the
Company or by the Underwriter, and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
The Company and the Underwriter agree that it would not be
just and equitable if contribution pursuant to this Section 8 were determined
by pro rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable by an Indemnified Party as a
result of the losses, claims, damages and liabilities referred to in the
immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such Indemnified Party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 8, the
Underwriter shall not be required to contribute any amount in excess of the
underwriting discount applicable to the Securities purchased hereunder. 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.
The indemnity and contribution agreements contained in this
Section 8 and the representations and warranties 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 the Underwriter, or any person controlling the Underwriter, or by or
on behalf of the Company, its officers and directors or any other person
controlling the Company and (iii) acceptance of and payment for any of the
Securities.
9. Termination. This Agreement shall be subject to
termination in the absolute discretion of the Underwriter, by notice given to
the Company if, prior to the Closing Date, (i) trading in securities generally
on the New York Stock Exchange, the American Stock Exchange, or the National
Association of Securities Dealers Automated Quotation National Market System
shall have been suspended or materially limited, (ii) a general moratorium on
commercial banking activities in New York shall have been declared by either
Federal or New York State authorities or (iii) there shall have occurred any
outbreak or material escalation of hostilities or other calamity or crisis the
effect of which on the financial markets of the United States is such as to
make it, in the judgment of the Underwriter, impracticable to market the
Securities.
10. Miscellaneous.
(a) This Agreement may be signed in one 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.
(b) 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 herein, and no other person will have any
right or obligation hereunder.
(c) THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF
NEW YORK WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF
LAWS THEREOF.<PAGE>
Please confirm that the foregoing correctly sets
forth the agreement between the Company and you.
Very truly yours,
ADELPHIA COMMUNICATIONS CORPORATION
By: /s/ Michael J. Rigas
Michael J. Rigas
Vice President
Accepted, January 7, 1994
SALOMON BROTHERS INC
By: /s/ Nancy B. Peretsman
Nancy B. Peretsman
Managing Director
<PAGE>
Exhibit A
The letter or letters supplied by Deloitte & Touche shall state
that:
1. They are independent certified public accountants
with respect to the Company and Olympus within the
meaning of the Act and the applicable published rules
and regulations thereunder.
2. In their opinion, the consolidated financial
statements and financial statement schedules audited
by them and included or incorporated by reference in
the Registration Statement comply as to form in all
material respects with the applicable accounting
requirements of the Act and the Securities Exchange
Act of 1934 and the related published rules and
regulations.
3. They have not audited any financial statements of the
Company as of any date or for any period subsequent
to March 31, 1993; although they have conducted an
audit for the year ended March 31, 1993, the purpose
(and therefore the scope) of the audit was to enable
them to express their opinion on the consolidated
financial statements as of March 31, 1993 and for the
year then ended, but not on the consolidated
financial statements for any interim period within
that year. Therefore, they are unable to and do not
express any opinion on the unaudited consolidated
balance sheet of the Company as of September 30, 1993
and the unaudited consolidated statements of
operations for the three-month and six-month periods
ended September 30, 1993 and 1992, and cash flow for
the six-month periods ended September 30, 1993 and
1992 included in the Registration Statement and the
Company's Quarterly Report on Form 10-Q for the
quarter ended September 30, 1993 (the September 30,
1993 Form 10-Q) incorporated by reference in the
Registration Statement, or on the financial position,
results of operations, or cash flows of the Company
as of any date or for any period subsequent to March
31, 1993.
They have not audited any consolidated financial
statements of Olympus and its subsidiaries as of any
date or for any period subsequent to December 31,
1992; although they have conducted an audit for the
year ended December 31, 1992, the purpose (and
therefore the scope) of such audit was to enable them
to express their opinion on the consolidated
financial statements as of December 31, 1992 and for
the year then ended, but not on consolidated
financial statements for any interim period within
such year. Therefore, they are unable to, and do
not, express any opinion on the financial position,
results of operations or cash flows of Olympus as of
any other date or for any other period subsequent to
December 31, 1992.
4. For purposes of this letter, they have read the 1993
minutes of the meetings of the stockholders and the
board of directors of the Company and its
subsidiaries as set forth in the minute books at
_________, 1993, and officials of the Company have
advised them that the minutes of all such meetings
through that date were set forth therein. They have
carried out other procedures to _________, 1993 as
follows:
a. With respect to the three-month and six-month
periods ended September 30, 1992 and 1993, they
have:
(i) Performed the procedures specified by the
American Institute of Certified Public
Accountants for a review of interim
financial information as described in
Statement on Auditing Standards No. 71,
Interim Financial Information, on the
unaudited consolidated financial statements
of the Company for these periods, described
in 3, included in the Registration
Statement and the September 30, 1993 Form
10-Q incorporated by reference in the
registration statement.
(ii) Inquired of certain officials of the
Company who have responsibility for
financial and accounting matters whether
the unaudited consolidated financial
statements referred to in a(i) comply as to
form in all material respects with the
applicable accounting requirements of the
Act, and of the Securities Exchange Act of
1934 as it applies to Form 10-Q and the
related published rules and regulations.
b. With respect to the period subsequent to
September 30, 1993, they have inquired of, and
received assurance from, officials of the
Company who have responsibility for financial
and accounting matters that no financial
statements as of any date or for any period
subsequent to September 30, 1993 were available.
The foregoing procedures do not constitute an
audit conducted in accordance with generally
accepted auditing standards. Also, they would
not necessarily reveal matters of significance
with respect to the comments in the following
paragraph. Accordingly, they make no
representations about the sufficiency of the
foregoing procedures for your purposes.
5. Nothing came to their attention as a result of the
foregoing procedures, however, that caused them to
believe that:
a. Any material modifications should be made to the
unaudited consolidated financial statements of
the Company included or incorporated by
reference in the Registration Statement for them
to be in conformity with generally accepted
accounting principles.
b. Any unaudited consolidated financial statements
of the Company described in 3 do not comply as
to form in all material respects with the
applicable accounting requirements of the Act,
or of the Securities Exchange Act of 1934 as it
applies to Form 10-Q and the related published
rules and regulations.
6. As mentioned in 4b, Company officials have advised
them that no consolidated financial statements of the
Company as of any date or for any period subsequent
to September 30, 1993 are available; accordingly, the
procedures carried out by them with respect to
changes in financial statement items after September
30, 1993 have, of necessity, been even more limited
than those with respect to the periods referred to in
4. They have inquired of certain officials of the
Company who have responsibility for financial and
accounting matters whether (a) at ____________, 1993,
there was any change in the capital stock, any
increase in debt or any decrease in consolidated
stockholders' equity (deficiency) as compared with
amounts shown on the September 30, 1993 unaudited
consolidated balance sheet incorporated by reference
in the registration statement or (b) for the period
from October 1, 1993 to ___________, 1993, there were
any decreases, as compared with the corresponding
period in the preceding year, in consolidated revenue
or in the total of net income (loss). On the basis
of these inquiries and their reading of the minutes
as described in 4, nothing has come to their
attention that has caused them to believe that there
has been any such change, increase, or decrease,
except in all instances for changes, increases or
decreases that the Registration Statement discloses
have occurred or may occur and except as described in
the following sentence. They have been informed by
officials of the Company that debt increased by
approximately [ ] from September 30, 1993 to
___________, 1993 and that the Company has incurred a
net loss of [ ] for the period October 1,
1993 to ___________, 1993.
7. For purposes of this letter, they have read the 1993
minutes of meetings of the Operating Committee of
Olympus as set forth in the minute book at
______________, 1993, officials of Olympus having
advised them that minutes for all such meetings
through that date were set forth therein.
a. With respect to the period from January 1, 1993
to September 30, 1993, they have:
(i) Read the unaudited consolidated balance
sheet as of September 30, 1993 and the
unaudited consolidated statements of
operations for the nine-month periods ended
September 30, 1993 and 1992 of Olympus and
its subsidiaries included in the
Registration Statement. Officials of the
Company have advised them that no such
financial statements are available as of
any date or for any period subsequent to
September 30, 1993.
(ii) Inquired of certain officials of the
Company who have responsibility for
financial and accounting matters whether
the unaudited consolidated financial
statements referred to in a(i) are stated
on a basis substantially consistent with
that of the audited consolidated financial
statements included or incorporated by
reference in the Registration Statement.
The foregoing procedures do not constitute an audit
conducted in accordance with generally accepted
auditing standards, and they would not necessarily
reveal matters of significance with respect to the
comments in the following paragraph; accordingly,
they make no representation as to the sufficiency of
such procedures for your purposes.
8. Nothing has come to their attention as a result of
the foregoing procedures, however, that caused them
to believe that at September 30, 1993, there was any
decrease in partners' equity (deficiency) of Olympus
and its subsidiaries as compared with amounts shown
in the December 31, 1992 audited consolidated balance
sheet incorporated by reference, or (ii) for the
period from January 1, 1993 to September 30, 1993,
there were any decreases, as compared to the
corresponding period in the preceding year, in
consolidated revenues or in the total amounts of net
loss, except in all instances for changes, increases,
or decreases that the Registration Statement
discloses have occurred or may occur.
9. As mentioned in 7a, officials of Olympus have advised
them that no consolidated financial statements as of
any date or for any period subsequent to September
30, 1993 are available; accordingly, the procedures
carried out by them with respect to changes in
financial statement items after September 30, 1993
have, of necessity, been even more limited than those
with respect to the periods referred to in 7. They
have inquired of certain officials of Olympus who
have responsibility for financial and accounting
matters as to whether there was any change at
________, 1993 in the partners' equity (deficiency)
of Olympus and its subsidiaries on a consolidated
basis, as compared with amounts shown in the
September 30, 1993 unaudited consolidated balance
sheet. On the basis of these inquiries and their
reading of the minutes as described in 7, nothing
came to their attention that caused them to believe
that there was any such change, except in all
instances for changes that the Registration Statement
discloses have occurred or may occur and except as
described in the following sentence. They have been
informed by officials of Olympus that Olympus has
incurred a net loss of [ ] for the
period October 1, 1993 to ____________, 1993.
10. For purposes of this letter, they have read certain
information included or incorporated in the
Registration Statement.
11. Their audits of the consolidated financial statements
of the Company and Olympus for the periods referred
to in the first paragraph comprise audit tests and
procedures deemed necessary for the purpose of
expressing an opinion on such financial statements
taken as a whole. For none of the periods referred
to therein, or any other period, did they perform
audit tests for the purpose of expressing an opinion
on individual balances of accounts or summaries of
selected transactions such as those enumerated below
and, accordingly, they express no opinion thereon.
12. However, for purposes of this letter, they have
performed certain other specified procedures as a
result of which they determined that certain
information of an accounting, financial or statistical
nature (which is limited to accounting, financial or
statistical information derived from the general
accounting records of the Company and its subsidiaries)
set forth in the Registration Statement and the
Prospectus, including the information set forth under
the captions "Prospectus Summary", "The Company", "Risk
Factors", "Use of Proceeds", "Capitalization",
"Selected Consolidated Financial Data", "Managements
Discussion and Analysis", "Business", "Executive
Compensation" and "Certain Transactions" in the
Registration Statement and Prospectus, agrees with the
accounting records of the Company and its subsidiaries,
excluding any questions of legal interpretation.
References to the Prospectus in this paragraph (g) of
the Underwriting Agreement include any supplement thereto at
the date of the letter.<PAGE>
Schedule I
[conformed copy]
ADELPHIA COMMUNICATIONS CORPORATION
Class A Common Stock
($.01 par value)
REGISTRATION AGREEMENT
New York, New York
January 7, 1994
Salomon Brothers Inc
Seven World Trade Center
New York, New York 10048
Dear Sirs:
Adelphia Communications Corporation, a Delaware
corporation (the "Company"), proposes to issue and sell to
Salomon Brothers Inc ("Salomon"), upon the terms set forth in an
Underwriting Agreement to be entered into by the Company and
Salomon in substantially the form attached hereto as Exhibit A
(as executed, the "Underwriting Agreement"), up to 3,300,000
shares of Class A Common Stock, $0.01 par value ("Common Stock"),
of the Company. Such shares are to be offered to the public in
the manner contemplated by the Underwriting Agreement.
The Company also proposes to issue and sell, pursuant
to a separate purchase agreement, 5,832,604 shares of Common
Stock to certain members of the Rigas family (and/or related
persons). Such shares will be registered under the Securities
Act of 1933, as amended (the "Act") pursuant to the registration
statement and prospectus that relates to the public offering
contemplated by the Underwriting Agreement. In connection with
the issue and sale of such shares of Common Stock to such
persons, Salomon proposes, pursuant to separate agreements, to
make margin loans to such persons. Such shares of Common Stock
are to be pledged to Salomon as security for the margin loans
and, together with such other shares of Common Stock as may also
be pledged from time to time to secure such loans, are
hereinafter called the "Securities."
As an inducement to Salomon to enter into the
Underwriting Agreement and to make the margin loans, and in
satisfaction of a condition to your obligations under the
Underwriting Agreement, the Company agrees with you, (i) for your
benefit and (ii) for the benefit of each pledgee from time to
time of the Securities (each of the foregoing a "Holder" and
together the "Holders"), as follows:
I. Definitions. Capitalized terms used herein without
definition shall have the meanings assigned to them in the
Underwriting Agreement. As used in this Agreement, the following
capitalized defined terms shall have the following meanings:
"Affiliate" of any specified person means any other
person which, directly or indirectly, is in control of, is
controlled by, or is under common control with, such specified
person. For purposes of this definition, control of a person
means the power, direct or indirect, to direct or cause the
direction of the management and policies of such person whether
by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Holder" has the meaning set forth in the preamble
hereto.
"Majority Holders" means the Holders of a majority of
the Securities registered under a Shelf Registration Statement.
"Managing Underwriters" means the investment banker or
investment bankers and manager or managers that shall administer
any underwritten offering.
"Prospectus" means the prospectus included in any Shelf
Registration Statement (including, without limitation, a
prospectus that discloses information previously omitted from a
prospectus filed as part of an effective registration statement
in reliance upon Rule 430A under the Act), as amended or
supplemented by any prospectus supplement, with respect to the
terms of the offering of any portion of the Securities covered by
such Shelf Registration Statement, and all amendments and
supplements to the Prospectus, including post-effective
amendments.
"Securities" has the meaning set forth in the preamble
hereto.
"Shelf Registration" means a registration effected
pursuant to Section 2 hereof.
"Shelf Registration Period" has the meaning set forth
in Section 2(b) hereof.
"Shelf Registration Statement" means a "shelf"
registration statement of the Company pursuant to the provisions
of Section 2 hereof which covers the Securities, on an
appropriate form under Rule 415 under the Act, or any similar
rule that may be adopted by the Commission, amendments and
supplements to such registration statement, including
post-effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto and all material
incorporated by reference therein.
"underwriter" means any underwriter of Securities in
connection with an offering thereof under a Shelf Registration
Statement.
II. Shelf Registration.
A. The Company shall prepare and shall file with the
Commission and thereafter shall cause to be declared effective
under the Act prior to the Closing Date a Shelf Registration
Statement relating to the offer and sale of the Securities by the
owners thereof and by the Holders from time to time in accordance
with the methods of distribution elected by such owners or
Holders and set forth in such Shelf Registration Statement.
B. The Company shall keep the Shelf Registration
Statement continuously effective in order to permit the
Prospectus forming part thereof to be usable by Holders for such
period as any Securities remain pledged as security for the
margin loans referred to in the preamble hereto (such period
being called the "Shelf Registration Period").
III. Registration Procedures. In connection with any
Shelf Registration Statement, the following provisions shall
apply:
A. The Company shall furnish to you, prior to the
filing thereof with the Commission, a copy of any Shelf
Registration Statement, and each amendment thereof and each
amendment or supplement, if any, to the Prospectus included
therein and shall use its best efforts to reflect in each
such document, when so filed with the Commission, such
comments as you reasonably may propose.
B. The Company shall ensure that (i) any Shelf
Registration Statement and any amendment thereto and any
Prospectus forming part thereof and any amendment or
supplement thereto complies in all material respects with
the Act and the rules and regulations thereunder, (ii) any
Shelf Registration Statement and any amendment thereto does
not, when it becomes effective, 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 and (iii) any Prospectus forming part
of any Shelf Registration Statement, and any amendment or
supplement to such Prospectus, does not include an untrue
statement of a material fact or omit to state a material
fact necessary in order to make the statements, in the light
of the circumstances under which they were made, not
misleading.
C. 1. The Company shall advise you and the Holders
and, if requested by you or any such Holder, confirm such
advice in writing:
a. when a Shelf Registration Statement and any
amendment thereto has been filed with the Commission
and when the Shelf Registration Statement or any
post-effective amendment thereto has become effective;
and
b. of any request by the Commission for
amendments or supplements to the Shelf Registration
Statement or the Prospectus included therein or for
additional information.
2. The Company shall advise you and the Holders and,
if requested by you or any such Holder, confirm such advice
in writing:
a. of the issuance by the Commission of any stop
order suspending the effectiveness of the Shelf
Registration Statement or the initiation of any
proceedings for that purpose;
b. of the receipt by the Company of any
notification with respect to the suspension of the
qualification of the securities included therein for
sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose; and
c. of the happening of any event that requires
the making of any changes in the Shelf Registration
Statement or the Prospectus so that, as of such date,
the statements therein are not misleading and do not
omit to state a material fact required to be stated
therein or necessary to make the statements therein (in
the case of the Prospectus, in light of the
circumstances under which they were made) not
misleading (which advice shall be accompanied by an
instruction to suspend the use of the Prospectus until
the requisite changes have been made).
D. The Company shall obtain the withdrawal of any
order suspending the effectiveness of any Shelf Registration
Statement at the earliest possible time.
E. The Company shall furnish to each Holder of
Securities included within the coverage of any Shelf
Registration Statement, without charge, at least one copy of
such Shelf Registration Statement and any post-effective
amendment thereto, including financial statements and
schedules, and, if the Holder so requests in writing, all
exhibits (including those incorporated by reference).
F. The Company shall, during the Shelf Registration
Period, deliver to each Holder of Securities included within
the coverage of any Shelf Registration Statement, without
charge, as many copies of the Prospectus (including each
preliminary Prospectus) included in such Shelf Registration
Statement and any amendment or supplement thereto as such
Holder may reasonably request; and the Company consents to
the use of the Prospectus or any amendment or supplement
thereto by each of the selling Holders of Securities in
connection with the offering and sale of the Securities
covered by the Prospectus or any amendment or supplement
thereto.
G. Prior to any offering of Securities pursuant to
any Shelf Registration Statement, the Company shall register
or qualify or cooperate with the Holders of Securities
included therein and their respective counsel in connection
with the registration or qualification of such Securities
for offer and sale under the securities or blue sky laws of
such jurisdictions as any such Holders reasonably request in
writing and do any and all other acts or things necessary or
advisable to enable the offer and sale in such jurisdictions
of the Securities covered by such Shelf Registration
Statement; provided, however, that the Company will not be
required to qualify generally to do business in any
jurisdiction where it is not then so qualified or to take
any action which would subject it to general service of
process or to taxation in any such jurisdiction where it is
not then so subject.
H. The Company shall cooperate with the Holders of
Securities to facilitate the timely preparation and delivery
of certificates representing Securities to be sold pursuant
to any Shelf Registration Statement free of any restrictive
legends and in such denominations and registered in such
names as Holders may request prior to sales of Securities
pursuant to such Shelf Registration Statement.
I. Upon the occurrence of any event contemplated by
paragraph (c)(2)(iii) above, the Company shall promptly
prepare a post-effective amendment to any Shelf Registration
Statement or an amendment or supplement to the related
Prospectus or file any other required document so that, as
thereafter delivered to purchasers of the Securities
included therein, the Prospectus will not include an 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.
J. The Company shall use its best efforts to comply
with all applicable rules and regulations of the Commission
and shall make generally available to its security holders
as soon as practicable after the applicable Shelf
Registration Statement an earning statement satisfying the
provisions of Section 11(a) of the Act and Rule 158 under
the Act.
K. The Company may require each Holder of Securities
to be sold pursuant to any Shelf Registration Statement to
furnish to the Company such information regarding the Holder
and the distribution of such Securities as the Company may
from time to time reasonably require for inclusion in such
Shelf Registration Statement.
L. The Company shall, if requested, promptly
incorporate in a Prospectus supplement or post-effective
amendment to a Shelf Registration Statement, such
information as the Managing Underwriters and Majority
Holders reasonably agree should be included therein and
shall make all required filings of such Prospectus
supplement or post-effective amendment as soon as notified
of the matters to be incorporated in such Prospectus
supplement or post-effective amendment.
M. The Company shall enter into such agreements
(including underwriting agreements) and take all other
appropriate actions in order to expedite or facilitate the
registration or the disposition of the Securities, and in
connection therewith, if an underwriting agreement is
entered into, cause the same to contain indemnification
provisions and procedures no less favorable than those set
forth in Section 5 (or such other provisions and procedures
acceptable to the Majority Holders and the Managing
Underwriters, if any), with respect to all parties to be
indemnified pursuant to Section 5 from Holders of Securities
to the Company.
N. The Company shall (i) make reasonably available
for inspection by the Holders of Securities registered or to
be registered thereunder, any underwriter participating in
any disposition pursuant to such Shelf Registration
Statement, and any attorney, accountant or other agent
retained by the Holders or any such underwriter all relevant
financial and other records, pertinent corporate documents
and properties of the Company and its subsidiaries; (ii)
cause the Company's officers, directors and employees to
supply all relevant information reasonably requested by the
Holders or any such underwriter, attorney, accountant or
agent in connection with any such Shelf Registration
Statement as is customary for similar due diligence
examinations; provided, however, that any information that
is designated in writing by the Company, in good faith, as
confidential at the time of delivery of such information
shall be kept confidential by the Holders or any such
underwriter, attorney, accountant or agent, unless such
disclosure is made in connection with a court proceeding or
required by law, or such information becomes available to
the public generally or through a third party without an
accompanying obligation of confidentiality; (iii) make such
representations and warranties to the Holders of Securities
registered thereunder and the underwriters, if any, in form,
substance and scope as are customarily made by issuers to
underwriters in primary underwritten offerings and covering
matters including, but not limited to, those set forth in
the Underwriting Agreement; (iv) obtain opinions of counsel
to the Company and updates thereof (which counsel and
opinions (in form, scope and substance) shall be reasonably
satisfactory to the Majority Holders and Managing
Underwriters, if any) addressed to each selling Holder and
the underwriters, if any, covering such matters as are
customarily covered in opinions requested in underwritten
offerings and such other matters as may be reasonably
requested by such Holders and underwriters; (v) obtain "cold
comfort" letters and updates thereof from the independent
certified public accountants of the Company (and, if
necessary, any other independent certified public
accountants of any subsidiary of the Company or of any
business acquired by the Company for which financial
statements and financial data are, or are required to be,
included in the Shelf Registration Statement), addressed to
each selling Holder of Securities registered thereunder and
the underwriters, if any, in customary form and covering
matters of the type customarily covered in "cold comfort"
letters in connection with primary underwritten offerings;
and (vi) deliver such documents and certificates as may be
reasonably requested by the Majority Holders and the
Managing Underwriters, if any, including those to evidence
compliance with Section 3(i) and with any customary
conditions contained in the underwriting agreement or other
agreement entered into by the Company. The foregoing
actions set forth in clauses (iii), (iv), (v) and (vi) of
this Section 3(n) shall be performed at (A) each post-
effective amendment to the Shelf Registration Statement and
(B) each closing under any underwriting or similar agreement
as and to the extent required thereunder.
IV. Registration Expenses. The Company shall bear all
expenses incurred in connection with the performance of its
obligations under Sections 2 and 3 hereof and shall reimburse the
Holders for the reasonable fees and disbursements of one firm or
counsel designated by the Majority Holders to act as counsel for
the Holders in connection therewith.
V. Indemnification and Contribution. A. In
connection with any Shelf Registration Statement, the Company
agrees to indemnify and hold harmless each Holder of securities
covered thereby, the directors, officers, employees and agents of
each such Holder and each person who controls any such Holder
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 and liabilities caused by any (a) untrue statement or
alleged untrue statement of a material fact contained in the
Shelf Registration Statement as originally filed or in any
amendment thereof 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 or (b)
any untrue statement or alleged untrue statement of a material
fact contained in the Prospectus (as amended or supplemented) or
any preliminary Prospectus 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, in light of
the circumstances under which they were made, not misleading;
provided, however, that the Company will not be liable in any
such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon and in conformity with
written information furnished to the Company by or on behalf of
any such Holder specifically for use in connection with the
preparation thereof. This indemnity agreement will be in
addition to any liability which the Company may otherwise have.
The Company also agrees to indemnify or contribute to
Losses of, as provided in Section 5(d), any underwriters of
Securities registered under a Shelf Registration Statement, their
directors, officers, employees and agents and each person who
controls such underwriters within the meaning of either Section
15 of the Act or Section 20 of the Exchange Act on substantially
the same basis as that of the indemnification of the selling
Holders provided in this Section 5(a) and shall, if requested by
any Holder, enter into an underwriting agreement reflecting such
agreement, as provided in Section 3(m) hereof.
B. Each Holder of Securities covered by a Shelf
Registration Statement severally agrees 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 Act or
Section 20 of the Exchange Act from and against any and all
losses, claims, damages and liabilities caused by (a) any untrue
statement or alleged untrue statement of a material fact
contained in the Shelf Registration Statement as originally filed
or in any amendment thereof 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 or (b) any untrue statement or alleged untrue
statement of a material fact contained in the Prospectus (as
amended or supplemented) or any preliminary Prospectus, or caused
by any omission or alleged omission to state therein a material
fact necessary in order to make the statements therein, in light
of the circumstances under which they were made, not misleading,
but only with reference to information furnished to the Company
in writing by such Holder expressly for use in the Registration
Statement, the Prospectus, any amendment or supplement thereto,
or any preliminary Prospectus.
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 of
the two preceding paragraphs, such person (hereinafter called the
"Indemnified Party") shall promptly notify the person against
whom such indemnity may be sought (hereinafter called the
"Indemnifying Party") in writing and the Indemnifying party, upon
request of the Indemnified Party, shall retain counsel reasonably
satisfactory to the Indemnified Party to represent the
Indemnified Party and any others the Indemnifying Party may
designate in such proceeding and shall pay the fees and
disbursements of such counsel, as incurred, related to such
proceedings. 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 connection with any
proceeding or related proceedings in the same jurisdiction, be
liable for the reasonable fees and expenses, as incurred, of more
than one separate firm (in addition to any local counsel) for all
such Indemnified Parties. 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.
D. If the indemnification provided for in paragraph
(a) or (b) of this Section 5 is unavailable to an Indemnified
Party, then each applicable Indemnifying Party, in lieu of
indemnifying such Indemnified Party, shall contribute to the
aggregate losses, claims, damages and liabilities (including
legal or other expenses reasonably incurred in connection with
investigating or defending same) (collectively "Losses") to which
such Indemnified Party may be subject in such proportion as is
appropriate to reflect the relative benefits received by such
Indemnifying Party, on the one hand, and such Indemnified Party,
on the other hand, from the public offering and the issue and
sale of shares of Common Stock to certain members of the Rigas
family and to Northwest Mutual Life Insurance Company, Inc.
referred to in the preamble hereto (collectively, the
"Offerings") and the Shelf Registration Statement which resulted
in such Losses; provided, however, that in no case shall Salomon
be responsible, in the aggregate, for any amount in excess of the
underwriting discounts and commissions it received in connection
with the Offerings, nor shall any subsequent Holder be
responsible, in the aggregate, for any amount in excess of the
value of receiving Securities registered under the Act, nor shall
any underwriter be responsible, in the aggregate, for any amount
in excess of the underwriting discounts and commissions
applicable to the Securities purchased by such underwriter under
the Shelf Registration Statement which resulted in such Losses,
as set forth on the cover page of the Prospectus forming a part
of the Shelf Registration Statement which resulted in such
Losses. If the allocation provided by the immediately preceding
sentence is unavailable for any reason, the Indemnifying Party
and the Indemnified Party shall contribute in such proportion as
is appropriate to reflect not only such relative benefits but
also the relative fault of such Indemnifying Party, on the one
hand, and such Indemnified Party, on the other hand, in
connection with the statements or omissions which resulted in
such Losses as well as any other relevant equitable
considerations. Benefits received by the Company shall be deemed
to be equal to the total net proceeds from the Offerings (before
deducting expenses). Benefits received by Salomon shall be
deemed to be equal to the total underwriting discounts and
commissions it received in connection with the Offerings, and
benefits received by any other Holders shall be deemed to be
equal to the value of receiving Securities registered under the
Act. Benefits received by any underwriter shall be deemed to be
equal to the total underwriting discounts and commissions, as set
forth on the cover page of the Prospectus forming a part of the
Shelf Registration Statement which resulted in such Losses.
Relative fault shall be determined by reference, among other
things, to whether the alleged untrue statement or omission
relates to information provided by the Indemnifying Party, on the
one hand, or by the Indemnified Party, on the other hand, and the
parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The parties agree that it would not be just and equitable if
contribution were determined by pro rata allocation or any other
method of allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions
of this paragraph (d), no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation.
E. The provisions of this Section 5 will remain in
full force and effect, regardless of any investigation made by or
on behalf of any Holder, the Company or any underwriter, or any
of the directors, officers, employees, agents or controlling
persons referred to in Section 5 hereof, and will survive the
sale by a Holder or an underwriter of Securities covered by a
Shelf Registration Statement.
VI. Miscellaneous.
A. No Inconsistent Agreements. The Company has not,
as of the date hereof, entered into, nor shall it, on or after
the date hereof, enter into, any agreement with respect to its
securities that is inconsistent with the rights granted to the
Holders herein or otherwise conflicts with the provisions hereof.
B. Amendments and Waivers. The provisions of this
Agreement, including the provisions of this sentence, may not be
amended, qualified, modified or supplemented, and waivers or
consents to departures from the provisions hereof may not be
given, unless the Company has obtained the written consent of the
Majority Holders; provided that, with respect to any matter that
directly or indirectly affects the rights of Salomon, the Company
shall obtain the written consent of Salomon. Notwithstanding the
foregoing (except the foregoing proviso), a waiver or consent to
departure from the provisions hereof with respect to a matter
that relates exclusively to the rights of Holders whose
Securities are being sold pursuant to a Shelf Registration
Statement and that does not directly or indirectly affect the
rights of other Holders may be given by the Majority Holders,
determined on the basis of Securities being sold rather than
registered under such Shelf Registration Statement.
C. Notices. All notices and other communications
provided for or permitted hereunder shall be made in writing by
hand-delivery, first-class mail, telex, telecopier, or air
courier guaranteeing overnight delivery:
1. if to a Holder, at the most current address
given by such Holder to the Company in accordance with
the provisions of this Section 6(c), with a copy in
like manner to Salomon;
2. if to Salomon, initially at its address set
forth in the Underwriting Agreement; and
3. if to the Company, initially at its address
set forth in the Underwriting Agreement.
All such notices and communications shall be deemed to
have been duly given when received.
Salomon or the Company by notice to the other may
designate additional or different addresses for subsequent
notices or communications.
D. Successors and Assigns. This Agreement shall
inure to the benefit of and be binding upon the successors and
assigns of each of the parties, including, without the need for
an express assignment or any consent by the Company thereto,
subsequent Holders of Securities. The Company hereby agrees to
extend the benefits of this Agreement to any Holder of Securities
and any such Holder may specifically enforce the provisions of
this Agreement as if an original party hereto.
E. Counterparts. This agreement may be executed in
any number of counterparts and by the parties hereto in separate
counterparts, each of which when so executed shall be deemed to
be an original and all of which taken together shall constitute
one and the same agreement.
F. Headings. The headings in this agreement are for
convenience of reference only and shall not limit or otherwise
affect the meaning hereof.
G. Governing Law. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE
STATE OF NEW YORK WITHOUT GIVING EFFECT TO PRINCIPLES OF
CONFLICTS OF LAWS THEREOF.
H. Severability. In the event that any one of more
of the provisions contained herein, or the application thereof in
any circumstances, is held invalid, illegal or unenforceable in
any respect for any reason, the validity, legality and
enforceability of any such provision in every other respect and
of the remaining provisions hereof shall not be in any way
impaired or affected thereby, it being intended that all of the
rights and privileges of the parties shall be enforceable to the
fullest extent permitted by law.
I. Securities Held by the Company, etc. Whenever the
consent or approval of Holders of a specified percentage of
Securities is required hereunder, Securities held by the Company
or its Affiliates (other than subsequent Holders of Securities if
such subsequent Holders are deemed to be Affiliates solely by
reason of their holdings of such Securities) shall not be counted
in determining whether such consent or approval was given by the
Holders of such required percentage.<PAGE>
Please confirm that the foregoing correctly sets forth
the agreement between the Company and you.
Very truly yours,
ADELPHIA COMMUNICATIONS
CORPORATION
By: /s/ Michael J. Rigas
Michael J. Rigas
Vice President
Accepted, January 7, 1994
SALOMON BROTHERS INC
By: /s/ Nancy B. Peretsman
Nancy B. Peretsman
Managing Director
[conformed copy]
SECOND AMENDMENT TO LOAN AGREEMENT
THIS SECOND AMENDMENT TO LOAN AGREEMENT (the "Amendment"),
dated as of the 31st day of December, 1993, among Chelsea
Communications, Inc., a Delaware corporation (the "Borrower"), the
Banks whose names are set forth on the signature pages hereof
(collectively, the "Banks"), and The Toronto Dominion Bank Trust
Company and NationsBank of Texas, N.A. as agents for the Banks
(collectively, the "Agents"),
W I T N E S S E T H:
WHEREAS, the Borrower, the Agents and the Banks are parties to
that certain Loan Agreement dated as of September 25, 1989, as
amended by that certain First Amendment to Loan Agreement dated as
of August 10, 1992 (the "Loan Agreement"); and
WHEREAS, the Borrower has requested that the Banks amend the
Loan Agreement to change the definition of Total Debt Service to
exclude optional prepayments made from Total Debt Service; and
WHEREAS, the Banks have agreed to so amend the Loan Agreement
subject to the terms of this Amendment;
NOW, THEREFORE, in consideration of the premises referred to
above, the covenants and agreements hereinafter set forth and other
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Banks, the Agents and the
Borrower agree that capitalized terms used herein shall have the
meanings ascribed thereto in the Loan Agreement, except as
otherwise defined or limited herein, and further agree as follows:
1. Amendment of Article 1. Article 1 of the Loan Agreement,
Definitions, shall be and it hereby is amended by deleting the
existing definition of "Total Debt Service" in its entirety and
substituting the following therefor:
"Total Debt Service" shall mean for the Borrower and its
Subsidiaries on a consolidated basis with respect to any
twelve-month period ending on the applicable calculation date,
after giving effect to any Interest Hedge Agreements and Fixed
Rate Advances, the sum of (a) the aggregate of all principal
(excluding principal payments made pursuant to Section
2.9(a)), interest, fees and other payments made during such
twelve-month period in respect of Indebtedness for Money
Borrowed of such Persons as of the calculation date, plus (b)
as of the calculation date, the aggregate of all payments made
during such period in respect of Capitalized Lease Obligations
of such Persons and obligations of such Persons with respect
to leases constituting part of a sale and lease-back
arrangement.
2. Waiver. The Banks hereby waive any Event of Default or any
Default under the provisions of Section 8.1 resulting from the
Borrower's failure to timely deliver an annual forecast for fiscal
year 1994 pursuant to Section 6.5(b).
3. No Other Amendment or Waiver. Except for the amendment and
waiver set forth or referred to above, the text of the Loan
Agreement and all other Loan Documents shall remain unchanged and
in full force and effect.
4. Representations and Warranties. The Borrower hereby
represents and warrants in favor of the Agents and each Bank as
follows:
(a) Except for those representations and warranties satisfied
on the Agreement Date and not applicable after such date, each
representation and warranty set forth in Article 4 of the Loan
Agreement is hereby re-stated and affirmed as true and correct as
of the date thereof:
(b) The Borrower has the corporate power and authority to enter
into this Amendment and to do all acts and things as are required
or contemplated hereunder to be done, observed and performed by it;
(c) This Amendment has been duly authorized, validly executed
and delivered by the Authorized Signatories of the Borrower, and
this Amendment constitutes a legal, valid and binding obligation of
the Borrower, enforceable against the Borrower in accordance with
its terms, subject, as to enforcement of remedies, to the following
qualifications: (i) an order of specific performance and an
injunction are discretionary remedies and, in particular, may not
be available where damages are considered an adequate remedy at
law, and (ii) enforcement may be limited by bankruptcy, insolvency,
liquidation, reorganization, reconstruction and other similar laws
affecting enforcement of creditors' rights generally (insofar as
any such law relates to the bankruptcy, insolvency or similar event
of the Borrower): and
(d) The execution and delivery of this Amendment and the
Borrower's performance hereunder does not and will not require the
consent or approval of any regulatory authority or governmental
authority or agency having jurisdiction over the Borrower nor will
such execution, delivery and performance be in contravention of or
in conflict with the Borrower's articles of incorporation or by-
laws or the provision of any statute, judgment, order, indenture,
instrument, agreement, expressly including without limitation, the
Licenses, or undertaking to which the Borrower is a party or by
which the Borrower's Assets or properties are or may become bound.
5. Conditions Precedent to Effective Date of Amendment. The
effectiveness of this Amendment is subject to (i) the truth and
accuracy of the representations and warranties contained in Section
4 hereof; (ii) receipt by the Agent and the Banks of the annual
forecast for fiscal year 1994 described in Section 6.5(b) of the
Credit Agreement; and (iii) receipt of all other documents either
Agent or any Bank may reasonably request, certified by an
appropriate governmental official or officer of the Borrower, if so
requested.
6. Effectiveness. This Amendment shall become effective as of
the day and year first above-written.
7. Strict Compliance. Notwithstanding the agreement of the
Agents and the Banks to the terms and provisions of this Amendment,
the Borrower acknowledges and expressly agrees that the Agents and
the Banks reserve the right to require strict compliance with all
terms and provisions of the Loan Agreement, as amended by this
Amendment, and of all other Loan Documents, except as and to the
extent set forth herein.
8. Counterparts. This Amendment may be executed in any number
of counterparts, each of which shall be deemed to be an original,
but all such separate counterparts shall together constitute but
one and the same instrument.
9. Governing Law. This Amendment shall be construed in
accordance with and governed by the law of the Commonwealth of
Pennsylvania.
IN WITNESS WHEREOF, the parties hereto intending to be legally
bound hereby have caused their respective duly authorized officers
or representatives to execute, deliver and seal this Amendment as
of the day and year first above written.
BORROWER: CHELSEA COMMUNICATIONS, INC., a
Delaware corporation
[CORPORATE SEAL] By: /s/ Daniel R. Milliard
Title:__________________________
Attest:_________________________
Title:__________________________
AGENTS: THE TORONTO DOMINION BANK TRUST
COMPANY
By: /s/ Martha L. Gariepy
Title:__________________________
NATIONSBANK OF TEXAS, N.A.
By: /s/ Thomas E. Carter
Title:__________________________
BANKS:
THE TORONTO-DOMINION BANK, Cayman
Islands Branch
By: /s/ Melissa R Nigro
Title:_________________________
NATIONSBANK OF TEXAS, N.A.
By: /s/ Thomas E. Carter
Title:_________________________
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
By: /s/ Gigi L. Johnson
Title:_________________________
BANK OF HAWAII
By: /s/ Buddy Montgomery
Title:_________________________
BANK OF MONTREAL
By:____________________________
Title:_________________________
THE BANK OF NOVA SCOTIA
By: /s/ James Tryforus
Title:_________________________
CANADIAN IMPERIAL BANK OF COMMERCE
By: /s/ Marty Friedman
Title:_________________________
CRESTAR BANK
By:____________________________
Title:_________________________
FIDELITY BANK, NATIONAL ASSOCIATION
By:____________________________
Title:_________________________
THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ Ronna Bury-Prince
Title:_________________________
FLEET BANK, N.A.
By: /s/ Jan-Gee W. McCollam
Title:_________________________
HIBERNIA NATIONAL BANK
By: /s/ Karen DeBlieux
Title:_________________________
MARINE MIDLAND BANK, N.A.
By: Alison Melick
Title:_________________________
NATIONAL BANK OF CANADA
By: /s/ T. White / T. Carrasco
Title:_________________________
NATIONAL WESTMINSTER BANK
By:____________________________
Title:_________________________
NIPPON CREDIT BANK
By:____________________________
Title:_________________________
PROVIDENT NATIONAL BANK
By: /s/ David J. Riordan
Title:_________________________
SKOPBANK
By: /s/ Walter Altorfer / Petri Canstam
Title:_________________________
UNION BANK
By: /s/ James L. Leahy
Title:_________________________
Exhibit 99.01
ADELPHIA FILES REGISTRATION STATEMENT FOR COMMON STOCK
Coudersport, PA, December 22, 1993 -- Adelphia Communications
Corporation ("Adelphia") (NASDAQ-NMS: ADLAC) announced today that it has filed a
registration statement with the Securities and Exchange Commission for an
offering of 6,500,000 shares of its Class A Common Stock. Adelphia expects to
enter into an agreement with the family of John J. Rigas, its President and
Chief Executive Officer, whereby the family, at the time of effectiveness of the
offering, would agree to purchase approximately 4,500,000 shares of the Class A
Common Stock being offered. The Class A Common Stock is traded on the NASDAQ
National Market System under the symbol "ADLAC."
Adelphia plans to use the net proceeds of the stock offering to redeem
its 13% Senior Subordinated Notes Due 1996 and to reduce existing bank debt.
Salomon Brothers Inc will act as underwriter for the offering.
Adelphia owns or manages cable television systems in 11 states serving
approximately 1,284,000 basic subscribers as of September 30, 1993.
Contact: Timothy J. Rigas, Senior Vice President of Adelphia,
(814) 274-9830.
* * * * * *
Exhibit 99.02
OFFERING OF 8,832,604 CLASS A COMMON SHARES OF
ADELPHIA COMMUNICATIONS CORPORATION
Coudersport, PA January 7, 1994. -- Adelphia Communications
Corporation ("Adelphia") (NASDAQ-NMS: ADLAC) announced today that its
registration statement with respect to 8,832,604 shares of Class A Common Stock
has been declared effective by the Securities and Exchange Commission.
Of the 8,832,604 shares of Class A Common Stock being sold by Adelphia,
3,000,000 shares were offered to the public at a purchase price of $18.00 per
share. Partnerships controlled by the family of John J. Rigas, Adelphia's CEO
and President, have agreed to purchase the remaining 5,832,604 shares at the
public offering price less the underwriting discount. Net proceeds to Adelphia
before offering expenses will be $151,435,000, or $17.145 per share.
The net proceeds from the offering will be used to redeem Adelphia's
$100,000,000 aggregate principal amount of outstanding 13% Senior Subordinated
Notes due 1996 and to reduce existing bank debt. Salomon Brothers is serving as
underwriter for the offering.
Adelphia owns or manages cable television systems in 11 states serving
approximately 1,284,000 basic subscribers.
Contact: Timothy J. Rigas, Senior Vice President of Adelphia,
(814) 274-9830.
* * * * * *
