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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: September 16, 1998
(Date of earliest event reported)
FRONTIER CORPORATION
(Exact name of registrant as specified in its charter)
New York Commission File No. 1-4166 16-0613330
(State of incorporation) (IRS Employer I.D. No.)
180 South Clinton Avenue
Rochester, NY 14646-0700
(Address of principal executive offices)
(716) 777-1000
(Registrant's telephone number, including area code)
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Item 7. Financial Statements and Exhibits.
(c) Exhibits
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1.1 Underwriting Agreement, dated September 16, 1998, among
Frontier Corporation (the "Registrant") and J.P. Morgan
Securities Inc., Credit Suisse First Boston Corporation, and
Merrill Lynch, Pierce, Fenner & Smith Incorporated regarding
the sale of $200,000,000 aggregate principal amount of the
Registrant's 6% Dealer remarketable securities/SM/ Notes due
2013 (the "Notes")
1.2 Form of Remarketing Agreement between the Registrant and J.P.
Morgan Securities, Inc. regarding the Notes
4.1 Form of Global Note for the Notes
5.1 Opinion of Martin T. McCue, Senior Vice President and General
Counsel of the Registrant, regarding the legality of the Notes
8.1 Opinion of Jaffe, Raitt, Heuer & Weiss, Professional
Corporation, as to certain federal tax matters pertaining to
the Notes
23.1 Consent of Martin T. McCue, Senior Vice President and General
Counsel of the Registrant (included in Exhibit 5.1)
23.2 Consent of Jaffe, Raitt, Heuer & Weiss, Professional
Corporation (included in Exhibit 8.1)
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SIGNATURES
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 hereunto duly authorized.
FRONTIER CORPORATION,
a New York corporation
Date: September 18, 1998 By: /s/ Josephine S. Trubek
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Josephine S. Trubek, Corporate Secretary
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Filed
Number Description Herewith
- ------- ----------- --------
<S> <C> <C>
1.1 Underwriting Agreement, dated September 16, 1998, among X
Frontier Corporation (the "Registrant") and J.P. Morgan
Securities Inc., Credit Suisse First Boston Corporation, and
Merrill Lynch, Pierce, Fenner & Smith Incorporated regarding
the sale of $200,000,000 aggregate principal amount of the
Registrant's 6% Dealer remarketable securities/SM/ Notes due
2013 (the "Notes")
1.2 Form of Remarketing Agreement between the Registrant and J.P. X
Morgan Securities, Inc. regarding the Notes
4.1 Form of Global Note for the Notes X
5.1 Opinion of Martin T. McCue, Senior Vice President and General X
Counsel of the Registrant, regarding the legality of the Notes
8.1 Opinion of Jaffe, Raitt, Heuer & Weiss, Professional
Corporation, as to certain federal tax matters pertaining to X
the Notes
23.1 Consent of Martin T. McCue, Senior Vice President and General X
Counsel of the Registrant (included in Exhibit 5.1)
23.2 Consent of Jaffe, Raitt, Heuer & Weiss, Professional X
Corporation (included in Exhibit 8.1)
</TABLE>
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Exhibit 1.1
Frontier Corporation
Underwriting Agreement
New York, New York
To the Representatives
named in Schedule I
hereto of the Under-
writers named in
Schedule II hereto
Ladies and Gentlemen:
Frontier Corporation, a New York corporation (the "Company"), proposes to
sell to the underwriters named in Schedule II hereto (the "Underwriters"), for
whom you (the "Representatives"), are acting as representatives, the principal
amount of its securities identified in Schedule I hereto (the "Securities"), to
be issued under an indenture dated as of May 21, 1997 between the Company and
The Chase Manhattan Bank, as trustee (the "Trustee"), as supplemented by the
supplemental indenture dated as of December 8, 1997 among the Company and the
Trustee (as so supplemented, the "Indenture").
1. Representations and Warranties. The Company represents and warrants
------------------------------
to, and agrees with, each Underwriter as set forth below in this Section 1.
Certain terms used in this Section 1 are defined in paragraph (d) hereof.
(a) The Company meets the requirements for the use of Form S-3 under the
Securities Act of 1933 (the "Act") and has filed with the Securities and
Exchange Commission (the "Commission") a registration statement (the file number
of which is set forth in Schedule I hereto) on such Form, including a basic
prospectus, for registration under the Act of the offering and sale of the
Securities. The Company may have filed one or more amendments thereto, and may
have used a Preliminary Final Prospectus, each of which has previously been
furnished to you. Such registration statement, as so amended, has become
effective. The offering of the Securities is a Delayed Offering and, although
the Basic Prospectus may not include all the information with respect to the
Securities and the offering thereof required by the Act and the rules thereunder
to be included in the Final Prospectus, the Basic Prospectus includes all such
information required by the Act and the rules thereunder to be included therein
as of the Execution Time. The Company will next file with the Commission
pursuant to Rules 415 and 424(b)(2) or (5) a final supplement to the form of
prospectus included in such registration statement relating to the Securities
and the offering thereof. As filed, such final prospectus supplement shall
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include all required information with respect to the Securities and the offering
thereof and, except to the extent the Representatives shall agree in writing to
a modification, shall be in all substantive respects in the form furnished to
you prior to the Execution Time or, to the extent not completed at the Execution
Time, shall contain only such specific additional information and other changes
(beyond that contained in the Basic Prospectus and any Preliminary Final
Prospectus) as the Company has advised you, prior to the Execution Time, will be
included or made therein.
(b) On the Effective Date and at the Execution Time, the Registration
Statement did or will, and when the Final Prospectus is first filed (if
required) in accordance with Rule 424(b) and on the Closing Date, the Final
Prospectus (and any supplement thereto) will, comply in all material respects
with the applicable requirements of the Act, the Securities Exchange Act of 1934
(the "Exchange Act") and the Trust Indenture Act of 1939 (the "Trust Indenture
Act") and the respective rules thereunder; on the Effective Date and at the
Execution Time, the Registration Statement did not or will not contain any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary in order to make the statements therein not
misleading; on the Effective Date and at the Execution Time and on the Closing
Date the Indenture did or will comply in all material respects with the
requirements of the Trust Indenture Act and the rules thereunder; and on the
date of any filing pursuant to Rule 424(b) and on the Closing Date, the Final
Prospectus (together with any supplement thereto) will not include any untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading; provided, however, that the Company makes no
representations or warranties as to (i) that part of the Registration Statement
which shall constitute the Statement of Eligibility and Qualification (Form T-1)
under the Trust Indenture Act of the Trustee or (ii) the information contained
in or omitted from the Registration Statement or the Final Prospectus (or any
supplement thereto) in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of any Underwriter through
the Representatives specifically for inclusion in the Registration Statement or
the Final Prospectus (or any supplement thereto).
(c) The financial statements, and the related notes thereto, included or
incorporated by reference in the Registration Statement and the Final Prospectus
present fairly the consolidated financial position of the Company and its
consolidated subsidiaries as of the dates indicated and the results of their
operations and the changes in their consolidated cash flows for the periods
specified; said financial statements have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis, except
as set forth therein, and the supporting schedules included or incorporated by
reference in the Registration Statement present fairly the information required
to be stated therein;
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(d) The terms which follow, when used in this Agreement, shall have the
meanings indicated. The term "the 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. "Basic
Prospectus"shall mean the basic prospectus referred to in the first sentence of
paragraph (a) above contained in the Registration Statement at the Effective
Date or, if such basic prospectus has been amended after the Effective Date, the
basic prospectus as most recently amended and filed pursuant to Rule 424(b).
"Preliminary Final Prospectus"shall mean any preliminary prospectus supplement
to the Basic Prospectus which describes the Securities and the offering thereof
and is used prior to the filing of the Final Prospectus, together with the Basic
Prospectus. "Final Prospectus"shall mean the prospectus supplement relating to
the Securities that is first filed pursuant to Rule 424(b) after the Execution
Time, together with the Basic Prospectus. "Registration Statement"shall mean
the registration statement referred to in the first sentence of paragraph (a)
above, including incorporated documents, exhibits and financial statements, as
amended at the Execution Time and, in the event any post-effective amendment
thereto becomes effective prior to the Closing Date (as 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 by Rule 430A. "Rule 415", "Rule 424", "Rule 430A"and
"Regulation S-K"refer to such rules or regulation 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. Any reference herein to the Registration
Statement, the Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus, shall be deemed to refer to and include the documents incorporated
by reference therein pursuant to Item 12 of Form S-3 which were filed under the
Exchange Act on or before the Effective Date of the Registration Statement or
the issue date of the Basic Prospectus, any Preliminary Final Prospectus or the
Final Prospectus, as the case may be; and any reference herein to the terms
"amend", "amendment"or "supplement"with respect to the Registration Statement,
the Basic Prospectus, any Preliminary Final Prospectus or the Final Prospectus,
shall be deemed to refer to and include the filing of any document under the
Exchange Act after the Effective Date of the Registration Statement or the issue
date of the Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus, as the case may be, deemed to be incorporated therein by reference.
A "Delayed Offering" shall mean an offering of securities pursuant to Rule 415
which does not commence promptly after the effective date of a registration
statement, with the result that only information required pursuant to Rule 415
need be included in such registration statement at the effective date thereof
with respect to the securities so offered.
2. Purchase and Sale. Subject to the terms and conditions and in
-----------------
reliance upon the representations and warranties herein set forth, the Company
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Company, at the
3
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purchase price set forth in Schedule I hereto, the principal amount of the
Securities set forth opposite such Underwriter's name in Schedule II hereto.
3. Delivery and Payment. Delivery of and payment for the Securities
--------------------
shall be made on the date and at the time specified in Schedule I hereto (or
such later date not later than three business days after such specified date as
the Representatives shall designate), which date and time may be postponed by
agreement between the Representatives and the Company or as provided in Section
8 hereof (such date and time of delivery and payment for the Securities being
herein called the "Closing Date"). Delivery of the Securities shall be made to
the Representatives for the respective accounts of the several Underwriters
against payment by the several Underwriters through the Representatives of the
purchase price thereof to or upon the order of the Company by wire transfer of
same-day funds. Delivery of the Securities shall be made at such location as
the Representatives shall reasonably designate at least one business day in
advance of the Closing Date and payment for the Securities shall be made at the
office specified in Schedule I hereto. Certificates for the Securities shall be
registered in such names and in such denominations as the Representatives 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 Representatives in New York, New York, not later
than 1:00 PM on the business day prior to the Closing Date.
4. Agreements. The Company agrees with each of the Underwriters that:
----------
(a) The Company will use its best efforts to cause the Registration
Statement, if not effective at the Execution Time, and any amendment
thereto, to become effective. Prior to the termination of the offering of
the Securities, the Company will not file any amendment of the Registration
Statement or supplement (including the Final Prospectus or any Preliminary
Final Prospectus) to the Basic Prospectus unless the Company has furnished
you a copy for your review prior to filing and will not file any such
proposed amendment or supplement to which you reasonably object. Subject to
the foregoing sentence, the Company will cause the Final Prospectus,
properly completed, and any supplement thereto to be filed with the
Commission pursuant to the applicable paragraph of Rule 424(b) within the
time period prescribed and will provide evidence satisfactory to the
Representatives of such timely filing. The Company will promptly advise the
Representatives (i) when the Registration Statement, if not effective at
the Execution Time, and any amendment thereto, shall have become effective,
(ii) when the Final Prospectus, and any supplement thereto, shall have been
filed 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 Final Prospectus or for any additional
information, (v) of the issuance by the Commission of any stop order
suspending the effectiveness of the
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Registration Statement or the institution or 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) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event occurs as a result of
which the Final Prospectus as then supplemented would include any untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein in the light of the circumstances under
which they were made not misleading, or if it shall be necessary to amend
the Registration Statement or supplement the Final Prospectus to comply
with the Act or the Exchange Act or the respective rules thereunder, the
Company promptly will prepare and file with the Commission, subject to the
second sentence of paragraph (a) of this Section 4, an amendment or
supplement which will correct such statement or omission or effect such
compliance.
(c) As soon as practicable, the Company will make generally
available to its security holders and to the Representatives an earnings
statement or statements of the Company and its subsidiaries which will
satisfy the provisions of Section 11(a) of the Act and Rule 158 under the
Act.
(d) The Company will furnish to the Representatives and counsel for
the Underwriters, without charge, copies of the Registration Statement
(including exhibits thereto) and, so long as delivery of a prospectus by an
Underwriter or dealer may be required by the Act, as many copies of any
Preliminary Final Prospectus and the Final Prospectus and any supplement
thereto as the Representatives may reasonably request. The Company will pay
the expenses of printing or other production of all documents relating to
the offering.
(e) Whether or not the transactions contemplated in this Agreement
are consummated or this Agreement is terminated, the Company will pay or
cause to be paid all costs and expenses incident to the performance of its
obligations hereunder, including without limiting the generality of the
foregoing, all costs and expenses (i) incident to the preparation,
issuance, execution, authentication and delivery of the Securities,
including any expenses of the Trustee, (ii) incident to the preparation,
printing and filing under the Securities Act of the Registration Statement,
the Final Prospectus and any Preliminary Final Prospectus (including in
each case all exhibits, amendments and supplements thereto), (iii) incurred
in connection with the registration or qualification and determination of
eligibility for investment of the Securities under the laws of such
jurisdictions as the Underwriters may designate (including fees of counsel
for the Underwriters and their disbursements),(iv) related to any filing
with the National
5
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Association of Securities Dealers, Inc., (v) in connection with the
printing (including word processing and duplication costs) and delivery of
this Agreement, the Indenture, Blue Sky Memorandum and any Legal Investment
Survey and the furnishing to Underwriters and dealers of copies of the
Registration Statement and the Final Prospectus, including mailing and
shipping, as herein provided, (vi) payable to rating agencies in connection
with the rating of the Securities, (vii) any expenses incurred by the
Company in connection with any "road show" presentation to potential
investors (if any) and (viii) the cost and charges of any transfer agent.
Subject to Section 6, the Company will not be required to pay any out-of-
pocket expenses of the Underwriters (including fees and disbursements of
counsel for Underwriters) in connection with the purchase and sale of the
Securities.
(f) Until the date set forth on Schedule I hereto, the Company will
not, without the consent of the Representatives, offer, sell or contract to
sell, or announce the offering of, any debt securities issued or guaranteed
by the Company other than the Securities.
5. Conditions to the Obligations of the Underwriters. The obligations of
-------------------------------------------------
the Underwriters to purchase the Securities shall be subject to the accuracy of
the representations and warranties on the part of the Company contained herein
as of the Execution Time and the Closing Date, to the accuracy of the statements
of the Company made in any certificates pursuant to the provisions hereof, to
the performance by the Company of its obligations hereunder and to the following
additional conditions:
(a) If the Registration Statement has not become effective prior to
the Execution Time, unless the Representatives agree in writing to a later
time, the Registration Statement will become effective not later than (i)
6:00 PM New York City time, on the date of determination of the public
offering price, if such determination occurred at or prior to 3:00 PM 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 PM New York City time on such date;
if filing of the Final Prospectus, or any supplement thereto, is required
pursuant to Rule 424(b), the Final Prospectus, and any such supplement,
shall have been filed in the manner and within the time period required by
Rule 424(b); and no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted or threatened.
(b) The Company shall have furnished to the Representatives the
opinion of Martin T. McCue, counsel for the Company, dated the Closing
Date,substantially in the form attached hereto as Exhibit A.
(c) The Company shall have furnished to the Representative the
opinion of Jaffe, Raitt, Heuer & Weiss, special counsel to the Company,
dated the Closing Date, substantially in the form attached hereto as
Exhibit B.
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(d) The Representatives shall have received from Davis Polk &
Wardwell, counsel for the Underwriters, such opinion or opinions, dated the
Closing Date, with respect to the issuance and sale of the Securities, the
Indenture, the Remarketing Agreement, the Registration Statement, the Final
Prospectus (together with any supplement thereto) and other related matters
as the Representatives may reasonably require, and the Company shall have
furnished to such counsel such documents as they request for the purpose of
enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representatives 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 signer of such certificate
has carefully examined the Registration Statement, the Final Prospectus,
any supplement to the Final Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as of
the Closing Date with the same effect as if made on the Closing Date
and the Company has complied with all the 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 Final Prospectus (exclusive of any supplement
thereto), there has been no material adverse change in the condition
(financial or other), earnings, business, properties or prospects of
the Company and its subsidiaries, whether or not arising from
transactions in the ordinary course of business, except as set forth
in or contemplated in the Final Prospectus (exclusive of any
supplement thereto).
(f) At the Closing Date, PricewaterhouseCoopers LLP shall have
furnished to the Representatives a letter or letters (which may refer to
letters previously delivered to one or more of the Representatives), dated
as of the Closing Date, in form and substance satisfactory to the
Representatives, confirming that they are independent accountants within
the meaning of the Act and the Exchange Act and the respective applicable
published rules and regulations thereunder and stating in effect that:
(i) in their opinion the audited consolidated financial
statements and financial statement schedule incorporated by
reference in the Registration Statement and the Final Prospectus and
reported on by them comply in form in all material respects with the
applicable accounting requirements of the Act
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and the Exchange Act and the related published rules and regulations
thereunder with respect to the Registration Statement;
(ii) on the basis of procedures (but not an audit in accordance
with generally accepted auditing standards) consisting of:
(a) reading the minutes of meetings of the stockholders, the
Board of Directors and the audit and executive committees of the
Board of Directors of the Company and its consolidated subsidiaries
since December 31, 1997 as set forth in the minute books through a
specified date not more than five business days prior to the date of
delivery of such letter;
(b) performing the procedures specified by the American
Institute of Certified Public Accounts for a review of interim
financial information as described in SAS No. 71, Interim Financial
Information, on the unaudited condensed interim financial statements
of the Company and its consolidated subsidiaries incorporated by
reference in the Registration Statement and Final Prospectus and
reading the unaudited interim financial data for the period from the
date of the latest balance sheet incorporated by reference in the
Registration Statement and Final Prospectus to the date of the
latest available interim financial data; and
(c) making inquiries of certain officials of the Company who
have responsibility for financial and accounting matters regarding
the specific items for which representations are requested below;
nothing has come to their attention as a result of the foregoing
procedures that caused them to believe that:
(1) any unaudited condensed interim financial
statements included or incorporated in the Registration
Statement and the Final Prospectus do not comply in form in
all material respects with applicable accounting
requirements and with the published rules and regulations of
the Commission with respect to financial statements included
or incorporated in quarterly reports on Form 10-Q under the
Exchange Act; and said unaudited condensed interim financial
statements are not in conformity with generally accepted
accounting principles applied on a basis substantially
consistent with that of the audited financial statements
included or incorporated in the Registration Statement and
the Final Prospectus;
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(2) with respect to the period subsequent to the date
of the most recent unaudited condensed interim financial
statements (other than any capsule information), audited or
unaudited, included or incorporated in the Registration
Statement and the Final Prospectus, there were any changes,
at a specified date not more than three business days prior
to the date of the letter, in the long-term debt of the
Company and its subsidiaries or capital stock of the Company
or decreases in the shareowners' equity of the Company or
decreases in working capital of the Company and its
subsidiaries consolidated as compared with the amounts shown
on the most recent consolidated balance sheet included or
incorporated in the Registration Statement and the Final
Prospectus, or for the period from the date of the most
recent unaudited condensed interim financial statements
included or incorporated in the Registration Statement and
the Final Prospectus to such specified date not more than
three business days prior to the date of the letter there
were any decreases, as compared with the corresponding
period in the preceding year, in revenues, operating income
or in total or per share amounts of net income of the
Company and its subsidiaries, except in all instances for
changes or decreases which the Registration Statement
discloses have occurred or may occur, or as set forth in
such letter, in which case the letter shall be accompanied
by an explanation by the Company as to the significance
thereof unless said explanation is not deemed necessary by
the Representatives; or
(3) the amounts included in any unaudited
"capsule" information included or incorporated in the
Registration Statement and the Final Prospectus do not agree
with the amounts set forth in the unaudited financial
statements for the same periods or were not determined on a
basis substantially consistent with that of the
corresponding amounts in the audited financial statements
included or incorporated in the Registration Statement and
the Final Prospectus; and
(iii) 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 Final Prospectus and in
Exhibit 12 to the Registration Statement, including the information
included or incorporated in Items 1, 2, 6, 7, 7A, 8, 11 and 14 of
the Company's Annual Report on Form 10-K, incorporated in the
Registration Statement and the Prospectus, and
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the information included in the "Management's Discussion and
Analysis of Financial Condition and Results of Operations" included
or incorporated in the Company's Quarterly Reports on Form 10-Q,
incorporated in the Registration Statement and the Final Prospectus,
agrees with the accounting records of the Company and its
subsidiaries, excluding any questions of legal interpretation.
References to the Final Prospectus in this paragraph (f) include any
supplement thereto at the date of the letter.
In addition, except as provided in Schedule I hereto, at the Execution
Time, PricewaterhouseCoopers LLP shall have furnished to the Representatives a
letter or letters, dated as of the Execution Time, in form and substance
satisfactory to the Representatives, to the effect set forth above.
(g) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Registration Statement (exclusive of any
amendment thereof) and the Final Prospectus (exclusive of any supplement
thereto), there shall not have been (i) any change or decrease specified in
the letter or letters referred to in paragraph (f) of this Section 5 or
(ii) any change, or any development involving a prospective change, in or
affecting the business or properties of the Company and its subsidiaries
the effect of which, in any case referred to in clause (i) or (ii) above,
is, in the judgment of the Representatives, so material and adverse as to
make it impractical or inadvisable to proceed with the offering or the
delivery of the Securities as contemplated by the Registration Statement
(exclusive of any amendment thereof) and the Final Prospectus (exclusive of
any supplement thereto).
(h) Subsequent to the Execution Time, there shall not have been any
decrease in the ratings of any of the Company's debt securities by any
"nationally recognized statistical rating organization"(as defined for
purposes of Rule 436(g) under the Act) or any notice given of any intended
or potential decrease in any such rating or of a possible change in any
such rating that does not indicate the direction of the possible change.
(i) The Company shall have delivered to J.P. Morgan Securities Inc.
the Remarketing Agreement, duly executed by an authorized officer of the
Company.
(j) Prior to the Closing Date, the Company shall have furnished to
the Representatives such further information, certificates and documents as
the Representatives may reasonably request.
If any of the conditions specified in this Section 5 shall not have been
fulfilled in all material respects when and as provided in this Agreement, or if
any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and counsel for the
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Underwriters, this Agreement and all obligations of the Underwriters hereunder
may be canceled at, or at any time prior to, the Closing Date by the
Representatives. Notice of such cancellation shall be given to the Company in
writing or by telephone or telecopy confirmed in writing.
6. Reimbursement of Underwriters' Expenses. If the sale of the
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Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 5 hereof is not satisfied,
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, in each case other than by
reason of a default by any of the Underwriters, the Company will reimburse the
Underwriters severally upon demand for all out-of-pocket expenses (including
reasonable fees and disbursements of counsel) that shall have been incurred by
them in connection with the proposed purchase and sale of the Securities.
7. Indemnification and Contribution. (a) The Company agrees to
---------------------------------
indemnify and hold harmless each Underwriter, the directors, officers, employees
and agents of each Underwriter and each person who controls any Underwriter
within the meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they or any
of them may become subject under the Act, the Exchange Act or other Federal or
state statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the registration statement for the registration of
the Securities as originally filed or in any amendment thereof, or in the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus, or in any
amendment thereof or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
agrees to reimburse each such indemnified party, as incurred, for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that (i) the Company will not be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon any such
untrue statement or alleged untrue statement or omission or alleged omission
made therein in reliance upon and in conformity with written information
furnished to the Company by or on behalf of any Underwriter through the
Representatives specifically for inclusion therein, and (ii) such indemnity with
respect to any Preliminary Final Prospectus shall not inure to the benefit of
any Underwriter from whom the person asserting such loss, claim, damage or
liability purchased the Securities which are the subject thereof if such person
did not receive a copy of the Final Prospectus (or the Final Prospectus as
supplemented) at or prior to the confirmation of the sale of such Securities to
such person (other than as a result of the Company's breach of its obligations
under Section 4) in any case where such delivery is required by the Act and the
untrue statement or omission of a material fact contained in such Preliminary
Final Prospectus was corrected in the Final Prospectus (or the Final Prospectus
as supplemented). This indemnity agreement will be in addition to any liability
which the Company may otherwise have.
11
<PAGE>
(b) Each Underwriter severally agrees to indemnify and hold harmless the
Company, each of its directors, each of its officers who signs the Registration
Statement, and each person who controls the Company within the meaning of either
the Act or the Exchange Act, to the same extent as the foregoing indemnity from
the Company to each Underwriter, but only with reference to written information
relating to such Underwriter furnished to the Company by or on behalf of such
Underwriter through the Representatives specifically for inclusion in the
documents referred to in the foregoing indemnity. This indemnity agreement will
be in addition to any liability which any Underwriter may otherwise have. The
Company acknowledges that the statements set forth in the last paragraph of the
cover page and under the heading "Underwriting" in the Preliminary Final
Prospectus or the Final Prospectus, constitute the only information furnished in
writing by or on behalf of any of the Underwriters for inclusion in the
documents referred to in the foregoing indemnity, and you, as the
Representatives, confirm that such statements are correct.
(c) Promptly after receipt by an indemnified party under this Section 7 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 7, notify the indemnifying party in writing of the commencement thereof;
but the failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the material
prejudice of substantial rights and defenses of the indemnifying party and (ii)
will not, in any event, relieve the indemnifying party from any obligations to
any indemnified party other than the indemnification obligation provided in
paragraph (a) or (b) above. The indemnifying party shall be entitled to appoint
counsel of the indemnifying party's choice at the indemnifying party's expense
to represent the indemnified party in any action for which indemnification is
sought (in which case the indemnifying party shall not thereafter be responsible
for the fees and expenses of any separate counsel retained by the indemnified
party or parties except as set forth below); provided, however, that such
counsel shall be reasonably satisfactory to the indemnified party.
Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall have
the right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses of such
separate counsel if (i) the use of counsel chosen by the indemnifying party to
represent the indemnified party would present such counsel with a conflict of
interest, (ii) the actual or potential defendants in, or targets of, any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, (iii) the
indemnifying party shall not have employed counsel reasonably satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time after notice of the institution of such action or (iv) the indemnifying
party shall authorize the indemnified party to employ separate counsel at the
expense of the indemnifying party. An indemnifying party will not, without the
prior written consent of the indemnified parties (which shall not be
unreasonably withheld, delayed, or conditioned), settle or compromise or consent
to the entry of any judgment
12
<PAGE>
with respect to any pending or threatened claim, action, suit or proceeding in
respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified parties are actual or potential parties to such
claim or action) unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability arising out
of such claim, action, suit or proceeding and does not include any statement as
to or admission of fault, culpability or failure to act by or on behalf of such
indemnified party.
(d) In the event that the indemnity provided in paragraph (a) or (b) of
this Section 7 is unavailable to or insufficient to hold harmless an indemnified
party for any reason, the Company and the Underwriters agree to contribute to
the aggregate losses, claims, damages and liabilities (including legal or other
expenses reasonably incurred in connection with investigating or defending same)
(collectively "Losses") to which the Company and one or more of the
Underwriters may be subject in such proportion as is appropriate to reflect the
relative benefits received by the Company and by the Underwriters from the
offering of the Securities; provided, however, that in no case shall any
Underwriter (except as may be provided in any agreement among underwriters
relating to the offering of the Securities) be responsible for any amount in
excess of the underwriting discount or commission applicable to the Securities
purchased by such Underwriter hereunder. If the allocation provided by the
immediately preceding sentence is unavailable for any reason, the Company and
the Underwriters shall contribute in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of the
Company and of the Underwriters in connection with the statements or omissions
which resulted in such Losses as well as any other relevant equitable
considerations. Benefits received by the Company shall be deemed to be equal to
the total net proceeds from the offering (before deducting expenses), and
benefits received by the Underwriters shall be deemed to be equal to the total
underwriting discounts and commissions, in each case as set forth under the
caption "Underwriting" in the Final Prospectus. Relative fault shall be
determined by reference to whether any alleged untrue statement or omission
relates to information provided by the Company or the Underwriters and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company and the Underwriters
agree that it would not be just and equitable if contribution were determined by
pro rata allocation or any other method of allocation which does not take
account of the equitable considerations referred to above. Notwithstanding the
provisions of this paragraph (d), no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 7, each person who controls an
Underwriter within the meaning of either the Act or the Exchange Act and each
director, officer, employee and agent of an Underwriter shall have the same
rights to contribution as such Underwriter, and each person who controls the
Company within the meaning of either the Act or the Exchange Act, each officer
of the Company who shall have signed the Registration Statement and each
director of the Company shall have the same rights to contribution as the
Company, subject in each case to the applicable terms and conditions of this
paragraph (d). The Underwriters' respective obligations to contribute pursuant
to this Section 7 are several in proportion to their respective underwriting
commitments and not joint.
13
<PAGE>
8. Default by an Underwriter. If any one or more Underwriters shall fail
-------------------------
to purchase and pay for any of the Securities agreed to be purchased by such
Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Securities set
forth opposite their names in Schedule II hereto bears to the aggregate amount
of Securities set forth opposite the names of all the remaining Underwriters)
the Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase; provided, however, that in the event that the aggregate
amount of Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase shall exceed 10% of the aggregate amount of Securities set
forth in Schedule II hereto, the remaining Underwriters shall have the right to
purchase all, but shall not be under any obligation to purchase any, of the
Securities, and if such nondefaulting Underwriters do not purchase all the
Securities, this Agreement will terminate without liability to any nondefaulting
Underwriter or the Company. In the event of a default by any Underwriter as set
forth in this Section 8, the Closing Date shall be postponed for such period,
not exceeding seven days, as the Representatives shall determine in order that
the required changes in the Registration Statement and the Final Prospectus or
in any other documents or arrangements may be effected. Nothing contained in
this Agreement shall relieve any defaulting Underwriter of its liability, if
any, to the Company and any nondefaulting Underwriter for damages occasioned by
its default hereunder.
9. Termination. This Agreement shall be subject to termination in the
-----------
absolute discretion of the Representatives, by notice given to the Company prior
to delivery of and payment for the Securities, if prior to such time (i) trading
in the Company's common stock shall have been suspended by the Commission or the
New York Stock Exchange or trading in securities generally on the New York Stock
Exchange shall have been suspended or limited or minimum prices shall have been
established on such Exchange, (ii) a banking moratorium shall have been declared
either by Federal or New York State authorities or (iii) there shall have
occurred any outbreak or escalation of hostilities, declaration by the United
States of a national emergency or war or other calamity or crisis the effect of
which on financial markets is such as to make it, in the judgment of the
Representatives, impracticable or inadvisable to proceed with the offering or
delivery of the securities as contemplated by the Final Prospectus (exclusive of
any supplement thereto).
10. Representations and Indemnities to Survive. The respective agreements,
-------------------------------------------
representations, warranties, indemnities and other statements of the Company or
its officers and of the Underwriters set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any investigation
made by or on behalf of any Underwriter or the Company or any of the officers,
directors or controlling persons referred to in Section 7 hereof, and will
survive delivery of and payment for the Securities. The provisions of Sections
6 and 7 hereof shall survive the termination or cancellation of this Agreement.
14
<PAGE>
11. Notices. All communications hereunder will be in writing and
-------
effective only on receipt, and, if sent to the Representatives, will be mailed,
delivered or telecopied and confirmed to them, at the address specified in
Schedule I hereto; or, if sent to the Company, will be mailed, delivered or
telecopied and confirmed to it at 180 South Clinton Avenue, Rochester, New York,
14646-0700, attention - Senior Vice President - General Counsel.
12. Successors. This Agreement will inure to the benefit of and be
----------
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 7 hereof, and no
other person will have any right or obligation hereunder.
13. Applicable Law. This Agreement will be governed by and construed in
--------------
accordance with the laws of the State of New York.
15
<PAGE>
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicate hereof, whereupon this
letter and your acceptance shall represent a binding agreement among the Company
and the several Underwriters.
Very truly yours,
Frontier Corporation
By: /s/ Joseph Enis
_____________________________
Name: Joseph Enis
Title: Treasurer
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
J.P. Morgan Securities Inc.
Credit Suisse First Boston Corporation
Merrill Lynch, Pierce, Fenner & Smith Incorporated
By: J. P. Morgan Securities Inc.
By: /s/ John Simmons
________________________
Name: John Simmons
Title: Vice President
For themselves and the other
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement.
16
<PAGE>
SCHEDULE I
Underwriting Agreement dated September 16, 1998
Registration Statement No. 33-64307
Representatives: c/o J.P. Morgan Securities Inc.
60 Wall Street
New York, NY 10260
Telecopy: (212) 648- 5151
Attn: Chadwick Parson
Title, Purchase Price and Description of Securities:
Title: 6% Dealer remarketable securities/sm/ ("Drs./sm/") due October 15,
2013
Principal amount: $200,000,000
Purchase price to Underwriters: $198,528,000, representing 99.264% of the
principal amount being purchased, plus accrued interest, if any, from
September 21, 1998.
Sinking fund provisions: The Securities will not be subject to any sinking
fund.
Redemption provisions: Not redeemable prior to October 15, 2003. After such
date, the Securities will be redeemable, in whole or in part, at the option
of the Company, at the price specified in the Prospectus.
Remarketing Agreement: The Company and J.P. Morgan Securities Inc., as
remarketing dealer (the "Remarketing Dealer") shall execute and deliver a
Remarketing Agreement on or prior to the Closing Date. In consideration
therefor, the Remarketing Dealer shall pay the Company on the Closing Date
an amount equal to 4.530% of the principal amount of the Drs.
Closing Date, Time and Location: September 21, 1998, 10:00 AM, New York City
time, at the offices of Davis Polk & Wardwell, 450 Lexington Avenue, New York,
New York 10017.
Type of Offering: Delayed Offering
Date referred to in Section 4(e) after which the Company may offer or sell debt
securities issued or guaranteed by the Company, other than the Securities
without the consent of the Representatives: the first business day occurring on
or after the tenth business day after the Closing Date.
1
<PAGE>
SCHEDULE II
<TABLE>
<CAPTION>
Principal Amount
of Securities to
Underwriters be Purchased
----------------
<S> <C>
J.P. Morgan Securities Inc. $100,000,000
Credit Suisse First Boston Corporation 50,000,000
Merrill Lynch, Pierce, Fenner & Smith
Incorporated 50,000,000
------------
Total $200,000,000
</TABLE>
2
<PAGE>
Exhibit "A"
September 21, 1998
J.P. Morgan Securities Inc.
60 Wall Street
New York, New York 10260
Credit Suisse First Boston Corporation
11 Madison Avenue
New York, NY 10010-3629
Merrill Lynch, Pierce, Fenner & Smith Incorporated
World Financial Center
North Tower
New York, NY 10281-1307
Re: Underwriting Agreement (the "Agreement"), dated September 16,
1998, among Frontier Corporation (the "Company"), J.P. Morgan
Securities Inc., Credit Suisse First Boston Corporation, and Merrill
Lynch, Pierce, Fenner & Smith Incorporated
Dear Sirs/Madams:
I am Senior Vice President and General Counsel of the Company and am
delivering this opinion to you pursuant to Section 5(b) of the Agreement. All
terms in this letter that are capitalized and have not been defined in this
letter shall have the meanings ascribed in the Agreement. For purposes of this
letter, I have examined and relied upon executed copies of the Agreement, copies
of the other documents or agreements delivered pursuant to the Agreement
(including the Remarketing Agreement), copies of the Indenture, the Officer's
Certificate delivered in connection with the Indenture establishing the terms of
the Securities, the global certificate for the Securities, and copies of the
Registration Statement, the Basic Prospectus, the Preliminary Final Prospectus
and the Final Prospectus. I have also examined and relied upon copies of the
bylaws, minute books, and other organizational documents for the Company and
Frontier Telephone of Rochester, Inc. ("FTR"), Frontier Communications Services
Inc. ("FCS) and Frontier Communications International Inc. ("FCI", and together
with FTR and FCS, the "Significant Subsidiaries").
In rendering this opinion, I have assumed the genuineness of all
signatures, the authenticity of all documents submitted to me as originals, and
the conformity to original documents of documents submitted to me as certified
or photostatic copies. I have also assumed that all parties to the Agreement
(other than the Company) and all parties to the Remarketing Agreement (other
than the Company) have all necessary power and authority to execute, deliver,
accept and perform such agreements, and that each such party has taken all
necessary action so as to cause such party to be bound by such agreements,
including under the terms of its governing documents and the laws of the
jurisdiction of its formation. To the extent that the obligations of the Company
under the Indenture may be dependent upon such matters, I assume for purposes of
this opinion that the Trustee is duly organized, validly existing and in good
standing under the laws of its jurisdiction of organization; that the Trustee is
duly qualified to engage in the
<PAGE>
J.P. Morgan Securities Inc.
Credit Suisse First Boston Corporation
Merrill Lynch, Pierce, Fenner & Smith Incorporated
September 21, 1998
Page 2
activities contemplated by the Indenture; that the Indenture has been duly
authorized, executed and delivered by the Trustee.
My review has been limited to examining the documents described above, the
Secretary's Composite Certificate delivered at the Closing (the "Secretary's
Certificate") and applicable New York and federal law. To the extent that any
opinion given herein relates to or is dependent upon factual information, or is
expressed in terms of my knowledge or awareness, I have relied solely upon the
assumptions stated above and the truth of the matters set forth in the
Secretary's Certificate. I have not undertaken to independently verify such
facts or information.
Based solely upon the foregoing, and subject to the qualifications and
limitations set forth herein, I am of the opinion that, as of the date hereof:
1. The Company and FTR have each been duly incorporated and are validly
existing as subsisting corporations under the laws of the State of New
York, with full corporate power and authority necessary to own or hold
their respective properties and conduct the businesses in which they
are engaged, as described in the Final Prospectus. FCS has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the State of Michigan, with full corporate power and
authority necessary to own or hold its properties and conduct the
businesses in which it is engaged, as described in the Final
Prospectus. FCI has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware,
with full corporate power and authority necessary to own or hold its
properties and conduct the businesses in which it is engaged, as
described in the Final Prospectus.
2. All of the outstanding shares of capital stock of each of the
Significant Subsidiaries (a) have been duly and validly authorized and
issued and are fully paid, non-assessable and, except as set forth in
the Final Prospectus, are owned directly or indirectly by the Company
free and clear of any perfected security interest, and (b) to my
knowledge, are free and clear of all other liens, encumbrances,
equities or claims.
3. The Company's authorized equity capitalization is as set forth in the
Final Prospectus and the Securities conform to the description thereof
contained in the Final Prospectus.
4. The Indenture has been duly authorized, executed, and delivered by the
Company and constitutes a valid and binding agreement on the part of
the Company, enforceable against the Company in accordance with its
terms, except to the extent that enforcement thereof may be limited by
(a) bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights generally and (b) general principles of equity
(regardless of whether enforceability is considered in a proceeding at
law or in equity).
5. The Indenture has been duly qualified under the Trust Indenture Act.
<PAGE>
J.P. Morgan Securities Inc.
Credit Suisse First Boston Corporation
Merrill Lynch, Pierce, Fenner & Smith Incorporated
September 21, 1998
Page 3
6. The Securities have been duly authorized, executed and delivered for
authentication by the Company and, when authenticated in accordance
with the provisions of the Indenture and delivered to and paid for by
the Underwriters pursuant to the Agreement, will constitute valid and
binding obligations of the Company entitled to the benefits of the
Indenture, except to the extent that enforcement thereof may be limited
by (a) bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights generally and (b) general principles of equity
(regardless of whether enforceability is considered in a proceeding at
law or in equity).
7. To my knowledge after due inquiry, (a) there is no pending or overtly
threatened action, suit or proceeding before any court or governmental
agency, authority or body or any arbitrator involving the Company or
any Subsidiary of a character required to be disclosed in the
Registration Statement which is not adequately disclosed in the Final
Prospectus, (b) there is no franchise, contract or other document
involving the Company or any Subsidiary of a character required to be
described in the Registration Statement or Final Prospectus, or to be
filed as an exhibit to the Registration Statement, which is not
described or filed as required by the Act, and (c) the statements
included or incorporated in the Final Prospectus describing any legal
proceedings or material contracts or agreements relating to the Company
fairly summarize such matters.
8. All Regulatory Licenses held by the Company or any Subsidiary have been
validly issued and are in full force and effect, with no material
restrictions or qualifications other than as described in the Final
Prospectus. The Regulatory Licenses are the only licenses necessary for
the Company and the Subsidiaries to own their properties and to conduct
their businesses in the manner and to the extent now operated as
described in the Final Prospectus, except to the extent that the
failure to have such license would not have a material adverse effect
on the Company and the Subsidiaries taken as a whole.
9. On the basis of an order, dated January 26, 1996, from the Commission,
the Registration Statement was declared effective under the Act. Any
required filing of the Basic Prospectus, the Preliminary Final
Prospectus and the Final Prospectus pursuant to Rule 424(b) promulgated
under the Act has been made in the manner and within the time period
required by Rule 424(b), and, to my knowledge, (a) no stop order
suspending the effectiveness of the Registration Statement has been
issued and (b) no proceeding for that purpose is pending or threatened
by the Commission.
10. The Registration Statement and the Final Prospectus (other than the
financial statements and other financial or statistical information
contained therein, as to which I express no opinion) comply as to form
in all material respects with the requirements of the Act, the Exchange
Act, the Trust Indenture Act, and the respective rules thereunder.
11. The Agreement has been duly authorized, executed and delivered by the
Company.
<PAGE>
J.P. Morgan Securities Inc.
Credit Suisse First Boston Corporation
Merrill Lynch, Pierce, Fenner & Smith Incorporated
September 21, 1998
Page 4
12. The Remarketing Agreement has been duly authorized, executed and
delivered by the Company and constitutes a valid and binding agreement
on the part of the Company, enforceable against the Company in
accordance with its terms, except to the extent that enforcement
thereof may be limited by (a) bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally and (b)
general principles of equity (regardless of whether enforceability is
considered in a proceeding at law or in equity) and except as rights to
indemnity and contribution thereunder may be limited by applicable law.
13. Neither the issue and sale of the Securities by the Company, nor the
consummation of any of the transactions contemplated in the Remarketing
Agreement or in the Agreement (including the execution, delivery and
performance of the Remarketing Agreement), nor the fulfillment of the
terms of the Agreement or the Remarketing Agreement, will conflict
with, result in a breach of, or constitute a default under, (a) the
charter or by-laws of the Company, (b) the material terms of any
indenture or other agreement or instrument known to me and to which the
Company or any Significant Subsidiary is a party or bound, or (c) any
order or decree known to me to be applicable to the Company or any
Significant Subsidiary of any court, regulatory body, administrative
agency, governmental body or arbitrator having jurisdiction over the
Company or any Significant Subsidiary.
14. No consent, approval, authorization or order of any court or
governmental agency or body is required for the consummation of the
transactions contemplated in the Agreement (including the execution,
delivery and performance of the Remarketing Agreement), except
registration of the Securities under the Act, qualification of the
Indenture under the Trust Indenture Act and such consents, approvals,
authorizations, registrations or qualifications as may be required
under the Exchange Act or applicable state or foreign securities laws
in connection with the purchase and distribution of the Securities by
the Underwriters.
15. To my knowledge after due inquiry, no holders of securities of the
Company have rights to the registration of such securities under the
Registration Statement.
Not having undertaken to determine independently the accuracy or
completeness of or to verify the information furnished with respect to matters
contained in the Registration Statement (which includes all documents
incorporated therein by reference), and recognizing that the character of the
determinations involved in the preparation of the Registration Statement is such
that I do not assume any responsibility for, or express any opinion on the
accuracy, completeness, or fairness of, statements contained in the Registration
Statement, except for those referred to in paragraphs 3 and 7 above, and nothing
has come to my attention therefrom which would lead me to believe that: (a) the
Registration Statement, on the Effective Date and at the Execution Time,
contained any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading, or (b) on the date of the Final Prospectus or on the date
hereof, the Final Prospectus included or includes any untrue statement of a
material fact or omitted or omits to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
<PAGE>
J.P. Morgan Securities Inc.
Credit Suisse First Boston Corporation
Merrill Lynch, Pierce, Fenner & Smith Incorporated
September 21, 1998
Page 5
circumstances under which they were made, not misleading. Further, I have not
been called upon to examine, and I have not attempted to examine, the financial
and statistical data included in the Registration Statement, and I express no
opinion with respect thereto.
I do not purport to be an expert on or to express any opinion herein
concerning any laws other than laws of the State of New York, the laws of the
United States of America, and the General Corporation Law of the State of
Delaware, and I expressly decline to opine as to the laws of any other
jurisdiction. With respect to the opinions in paragraph 1 insofar as they
implicate Michigan law, I have relied solely upon the opinion of Jaffe, Raitt,
Heuer & Weiss, Professional Corporation, and have not made any independent
investigation of Michigan law. This opinion is only for the benefit of the
addressees and their successors, assigns and counsel and may not be relied upon
by any other person without my express written consent.
Very truly yours,
Martin T. McCue
Senior Vice President and General Counsel
<PAGE>
Exhibit "B"
September 21, 1998
J.P. Morgan Securities Inc.
60 Wall Street
New York, NY 10260
Credit Suisse First Boston Corporation
11 Madison Avenue
New York, NY 10010-3629
Merrill Lynch, Pierce, Fenner & Smith Incorporated
World Financial Center
North Tower
New York, NY 10281-1307
Re: Underwriting Agreement (the "Agreement"), dated September 16,
1998, among Frontier Corporation (the "Company"), J.P. Morgan
Securities Inc., Credit Suisse First Boston Corporation, and Merrill
Lynch, Pierce, Fenner & Smith Incorporated
Dear Sirs/Madames:
Pursuant to Section 5(c) of the Agreement, we are delivering this opinion.
All terms in this letter that are capitalized and have not been defined in this
letter shall have the meanings ascribed in the Agreement. We have acted as
special counsel to the Company in connection with the execution and delivery of
the Agreement, and in this capacity, we have examined and relied upon executed
copies of the Agreement, copies of the other documents or agreements delivered
pursuant to the Agreement, a copy of that certain Remarketing Agreement, dated
September 21, 1998, between the Company and J.P. Morgan Securities Inc. (the
"Remarketing Agreement"), copies of the Indenture, the Officer's Certificate
delivered in connection with the Indenture establishing the terms of the
Securities, the global certificate for the Securities, and copies of the
Registration Statement, the Basic Prospectus, the Preliminary Final Prospectus
and the Final Prospectus. We have also examined and relied upon copies of the
bylaws, minutes of board of directors and shareholder meetings, and other
organizational documents for the Company, Frontier Telephone of Rochester, Inc.
("FTR"), Frontier Communications Services Inc. ("FCS"), and Frontier
Communications International Inc. ("FCI") provided to us by management of the
Company.
This opinion is governed by, and shall be interpreted in accordance with,
Part II of the Report of the Ad Hoc Committee of the Business Law Section of the
State Bar of Michigan on Standardized Legal Opinions in Business Transactions
dated August 1, 1991 (the "Michigan Report"), incorporated herein by reference.
A copy of Part II of the Michigan Report is attached hereto. Without limiting
the generality of the foregoing, the meaning of the terms and phrases used in
this opinion (other than those defined in the Agreement) is governed by and is
subject to such Part II except as otherwise expressly provided herein. However,
notwithstanding anything in the Michigan Report or anything else in this opinion
letter, (a) we have not relied on any information or assumption if we have
knowledge that such information or assumption is false or we have knowledge of
facts that would make such reliance unreasonable; (b) as used in this opinion
letter, "knowledge" includes the knowledge of the attorneys within the firm who
are principal contacts for the Company or have performed substantive work for
the Company or its subsidiaries within the past year, in addition to those
persons referred to in paragraph B(3)(c) of
<PAGE>
J.P. Morgan Securities Inc.
Credit Suisse First Boston Corporation
Merrill Lynch, Pierce, Fenner & Smith Incorporated
September 21, 1998
Page 2
the Michigan Report; and (c) paragraphs B(9)(a) and B(9)(e) of the Michigan
Report are not applicable to this opinion letter.
In our examination, we have assumed the genuineness of all signatures, the
authenticity of all documents submitted to us as originals, and the conformity
to original documents of documents submitted to us as certified or photostatic
copies. We have also assumed that all parties to the Agreement (other than the
Company) have all necessary power and authority to execute, deliver, accept and
perform such agreements, and that each such party has taken all necessary action
so as to cause such party to be bound by such agreements, including under the
terms of its governing documents and the laws of the jurisdiction of its
formation. To the extent that the obligations of the Company under the
Indenture may be dependent upon such matters, we assume for purposes of this
opinion that the Trustee is duly organized, validly existing and in good
standing under the laws of its jurisdiction of organization; that the Trustee is
duly qualified to engage in the activities contemplated by the Indenture; that
the Indenture has been duly authorized, executed and delivered by the Trustee
and constitutes the legally valid and binding obligation of the Trustee
enforceable against the Trustee in accordance with its terms; that the Trustee
is in compliance, with respect to acting as a trustee under the Indenture, with
all applicable laws and regulations; and that the Trustee has the requisite
organizational and legal power and authority to perform its obligations under
the Indenture.
Our review has been limited to examining the documents described above, the
Secretary's Composite Certificate delivered at the Closing (the "Secretary's
Certificate"), the opinion of Martin T. McCue, Vice President Legal and Planning
of the Company, and applicable Michigan, Delaware and federal law (other than
the Communications Act of 1934, as amended, the rules and regulations of the
Federal Communications Commission, and other federal telecommunications laws or
regulations). To the extent that any opinion given herein relates to or is
dependent upon factual information, or is expressed in terms of our knowledge or
awareness, we have relied solely upon the assumptions stated above and the truth
of the matters set forth in the Secretary's Certificate. We have not undertaken
to independently verify such facts or information.
Based solely upon the foregoing, and subject to the qualifications and
limitations set forth herein, we are of the opinion that, as of the date hereof:
1. The Company and FTR have each been duly incorporated and, based upon a
certificate of subsistence received from the State of New York
Department of State, dated September ___, 1998 for each of the
Company and FTR, are validly existing as subsisting corporations under
the laws of the State of New York, with full corporate power and
authority necessary to own or hold their respective properties and
conduct the businesses in which they are engaged, as described in the
Final Prospectus. FCS has been duly incorporated and, based upon a
certificate of good standing received from the Michigan Department of
Consumer and Industry Services, dated September ___, 1998, is validly
existing as a corporation in good standing under the laws of the State
of Michigan, with full corporate power and authority necessary to own
or hold its properties and conduct the businesses in which it is
engaged, as described in the Final Prospectus. FCI has been duly
incorporated and, based upon a certificate of good standing received
from the Delaware Secretary of State, dated September ___, 1998, is
validly existing as a corporation in good standing under the laws of
the State of Delaware, with full corporate power and authority
necessary to own or hold its properties and conduct the businesses in
which it is engaged, as described in the Final
<PAGE>
J.P. Morgan Securities Inc.
Credit Suisse First Boston Corporation
Merrill Lynch, Pierce, Fenner & Smith Incorporated
September 21, 1998
Page 3
Prospectus. We express no opinion as to whether the Company, FTR, FCS,
or FCI is qualified to do business in any state other than their
respective states of incorporation.
2. The Indenture has been duly authorized, executed, and delivered by the
Company and constitutes a valid and binding agreement on the part of
the Company, enforceable against the Company in accordance with its
terms, except to the extent that enforcement thereof may be limited by
(a) bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights generally and (b) general principles of equity
(regardless of whether enforceability is considered in a proceeding at
law or in equity).
3. The Remarketing Agreement has been duly authorized, executed, and
delivered by the Company and constitutes a valid and binding agreement
on the part of the Company, enforceable against the Company in
accordance with its terms, except as rights to indemnity and
contribution thereunder may be limited by applicable law, and to the
extent that enforcement thereof may be limited by (a) bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors' rights
generally and (b) general principles of equity (regardless of whether
enforceability is considered in a proceeding at law or in equity).
4. The Indenture has been duly qualified under the Trust Indenture Act.
5. The Securities have been duly authorized, executed and delivered for
authentication by the Company and, when authenticated in accordance
with the provisions of the Indenture and delivered to and paid for by
the Underwriters pursuant to the Agreement, will constitute validly
issued and binding obligations of the Company entitled to the benefits
of the Indenture, except to the extent that enforcement thereof may be
limited by (a) bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights generally and (b) general
principles of equity (regardless of whether enforceability is
considered in a proceeding at law or in equity).
6. On the basis of an order, dated January 26, 1996, from the Commission,
the Registration Statement was declared effective under the Act. Any
required filing of the Basic Prospectus, any Preliminary Final
Prospectus and the Final Prospectus pursuant to Rule 424(b) promulgated
under the Act has been made in the manner and within the time period
required by Rule 424(b), and, to our knowledge, (a) no stop order
suspending the effectiveness of the Registration Statement has been
issued and (b) no proceeding for that purpose is pending or threatened
by the Commission.
7. The Registration Statement and the Final Prospectus (other than the
financial statements and other financial or statistical information
contained therein, as to which we express no opinion) comply as to form
in all material respects with the requirements of the Act, the Exchange
Act, the Trust Indenture Act, and the respective rules thereunder.
<PAGE>
J.P. Morgan Securities Inc.
Credit Suisse First Boston Corporation
Merrill Lynch, Pierce, Fenner & Smith Incorporated
September 21, 1998
Page 4
8. The Agreement has been duly authorized, executed, and delivered by the
Company.
9. Neither the issue and sale of the Securities by the Company, nor the
consummation of any of the transactions contemplated in the Remarketing
Agreement or in the Agreement (including the execution, delivery and
performance of the Remarketing Agreement), nor the fulfillment of the
terms of the Agreement or of the Remarketing Agreement, will conflict
with, result in a breach of, or constitute a default under, the charter
or by-laws of the Company.
10. No consent, approval, authorization or order of any court or
governmental agency or body is required for the consummation of the
transactions contemplated in the Agreement (including the execution,
delivery and performance of the Remarketing Agreement), except
registration of the Securities under the Act and such consents,
approvals, authorizations, registrations or qualifications as may be
required under the Exchange Act or applicable state or foreign
securities laws in connection with the purchase and distribution of the
Securities by the Underwriters.
11. The discussion in the Final Prospectus under the caption "Certain
United States Federal Income Tax Considerations" fairly summarizes the
material Federal income tax considerations discussed in it.
12. The statements in the Final Prospectus under the captions "Description
of the Drs." and "Description of Debt Securities", insofar as such
statements constitute a summary of the legal matters or documents
referred to therein, fairly present the information called for with
respect to such legal matters or documents.
Not having undertaken to determine independently the accuracy or
completeness of or to verify the information furnished with respect to matters
contained in the Registration Statement (which includes all documents
incorporated therein by reference), and recognizing that the character of the
determinations involved in the preparation of the Registration Statement is such
that we do not assume any responsibility for, or express any opinion on the
accuracy, completeness, or fairness of, statements contained in the Registration
Statement, except for those referred to in paragraphs 11 and 12 above, and
solely on the basis of our participation in the preparation of the Registration
Statement, nothing has come to our attention therefrom which would lead us to
believe that: (a) the Registration Statement, on the Effective Date and at the
Execution Time, contained any untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, or (b) on the date of the Final Prospectus or
on the date hereof, the Final Prospectus included or includes any untrue
statement of a material fact or omitted or omits to state 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. Further,
we have not been called upon to examine, and we have not attempted to examine,
the financial and statistical data included in the Registration Statement, and
we express no opinion with respect thereto.
We are admitted to practice law only in the State of Michigan and do not
purport to be experts on or to express any opinion herein concerning any laws
other than laws of the State of Michigan, the General Corporation Law of the
State of Delaware and the laws of the United States of America, and we expressly
decline to opine as to the laws of any other jurisdiction. With respect to the
opinions in paragraphs 1, 2, 3, 5, and 8, insofar as they implicate New York
<PAGE>
J.P. Morgan Securities Inc.
Credit Suisse First Boston Corporation
Merrill Lynch, Pierce, Fenner & Smith Incorporated
September 21, 1998
Page 5
law, we have relied solely upon the opinion of Martin T. McCue, Senior Vice
President and General Counsel of the Company, and have not made any independent
investigation of New York law. In addition, we note that the Agreement and the
Indenture each provide that they are to be governed by the laws of a state other
than the State of Michigan. We have made no study of the laws, decisions and
other authorities of such state, and we express no opinion concerning the
validity, binding effect or enforceability of the Agreement or the Indenture
under the laws of such state. This opinion is only for the benefit of the
addressees and their successors, assigns and counsel and may not be relied upon
by any other person without our express written consent.
Very truly yours,
JAFFE, RAITT, HEUER & WEISS
Professional Corporation
Jeffrey L. Forman
0579012.03
<PAGE>
Exhibit 1.2
REMARKETING AGREEMENT
between
FRONTIER CORPORATION
and
J.P. MORGAN SECURITIES INC.
as Remarketing Dealer
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
Section 1. Definitions.............................................. 2
Section 2. Representations and Warranties........................... 6
Section 3. Covenants of the Company................................. 7
Section 4. Appointment and Obligations of the Remarketing Dealer....10
Section 5. Fees and Expenses........................................14
Section 6. Resignation of the Remarketing Dealer....................14
Section 7. Dealing in the Drs.; Purchase of Drs. by the Company.....14
Section 8. Conditions to Remarketing Dealer's Obligations...........15
Section 9. Indemnification..........................................18
Section 10. Termination of Remarketing Agreement....................22
Section 11. Remarketing Dealer's Performance; Duty of Care..........23
Section 12. Governing Law...........................................24
Section 13. Term of Agreement.......................................24
Section 14. Successors and Assigns..................................24
Section 15. Headings................................................24
Section 16. Severability............................................25
Section 17. Counterparts............................................25
Section 18. Amendments; Waivers.....................................25
Section 19. Notices.................................................25
</TABLE>
<PAGE>
REMARKETING AGREEMENT dated as of September 21, 1998 (the "Agreement")
between Frontier Corporation, a New York business corporation (the "Company"),
and J.P. Morgan Securities Inc. ("JPMSI" and, in its capacity as the remarketing
dealer hereunder, the "Remarketing Dealer").
WHEREAS, the Company has issued $200,000,000 aggregate principal amount of
its 6% Dealer remarketable securities/SM/("Drs."/SM/) pursuant to an Indenture
dated as of May 21, 1997, as supplemented as of December 8, 1997 (the
"Indenture"), from the Company to The Chase Manhattan Bank, as trustee (the
"Trustee"); and
WHEREAS, the Drs. are being sold initially pursuant to an Underwriting
Agreement dated as of September 16, 1998 (the "Underwriting Agreement") between
the Company and JPMSI, as Representative of the Underwriters named in Schedule
II thereto; and
WHEREAS, the Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement (No. 33-64307) under the Securities
Act of 1933, as amended (the "Securities Act"), in connection with the offering
of debt and equity securities, including the Drs., which registration statement
was declared effective by order of the Commission, and has filed such amendments
thereto and such amended or supplemented prospectuses as may have been required
to the date hereof, and will file such additional amendments and supplements
thereto and such additional amended or supplemented prospectuses as may
hereafter be required (such registration statement, including any amendments and
supplements thereto, and all documents incorporated therein by reference, as
from time to time amended or supplemented pursuant to the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), the Securities Act, or otherwise,
are referred to herein as the "Registration Statement"); all preliminary and
final prospectuses relating to such Registration Statement used in connection
with the offering of Drs., including the documents incorporated by reference
therein, are referred to herein collectively as the "Prospectus"; provided that,
if any new or revised prospectus shall be provided to the Remarketing Dealer by
the Company for use in connection with the remarketing of the Drs. which differs
from the Prospectus filed with the Commission at the time of the initial
issuance of the Drs. (whether or not such revised prospectus is required to be
filed by the Company pursuant to Rule 424(b) under the Securities Act), the term
"Prospectus" shall refer to such new or revised prospectus from and after the
time it is first provided to the Remarketing Dealer
- ---------------------------
/SM/"Dealer remarketable securities/SM/" and "Drs./SM/" are service marks
of J.P. Morgan Securities Inc.
<PAGE>
for such use, and "Registration Statement" shall refer to the Registration
Statement as deemed amended by the prospectus so provided or any new
registration statement of which such prospectus is a part; and
WHEREAS, JPMSI is prepared to act as the Remarketing Dealer with respect to
the remarketing of the Drs. on October 15, 2003 (the "Remarketing Date")
pursuant to the terms of, but subject to the conditions set forth in, this
Agreement;
NOW, THEREFORE, for and in consideration of the covenants herein made, and
subject to the conditions herein set forth, the parties hereto agree as follows:
Section 1. Definitions.
(a) The following terms have the following meanings:
"Base Rate" means 6% per annum.
"Business Day" means any day other than a Saturday or Sunday or other day
on which banking institutions in the City of New York are authorized or
obligated by law, executive order or governmental decree to be closed.
"Call Price" means, with respect to any Drs. Unavailable for Remarketing:
(i) if the Remarketing Dealer's request for a Call Price payment is
made prior to the Determination Date, the Commercially Reasonable Option
Value for the Drs. Unavailable for Remarketing on the date of such request;
or
(ii) if the Remarketing Dealer's request for a Call Price payment is
made on or after the Determination Date, an amount (if positive) equal to:
Full Option Settlement Value x Drs. Unavailable for Remarketing
----------------------------------------------------------------
Original Amount of Drs.
where "Original Amount of Drs." means the aggregate principal amount of the
Drs. issued by the Company on the date hereof; and "Full Option Settlement
Value" equals the Dollar Price less the Original Amount of Drs.
"Commercially Reasonable Option Value" means, with respect to any Drs.
Unavailable for Remarketing, on any date, the amount determined by the
2
<PAGE>
Remarketing Dealer on such date under Section 6(e) of the ISDA Master Agreement
on a "Market Quotation" basis in respect of the embedded interest rate option
implicit in the Remarketing Dealer's option to purchase, at 100% of the
aggregate principal amount thereof, the Drs. Unavailable for Remarketing as if a
"Termination Event" had occurred on such date under such interest rate option
with respect to the Company under the ISDA Master Agreement and the Company was
the "Affected Party". The determination of the Commercially Reasonable Option
Value shall be made using the provisions of the ISDA Master Agreement regardless
of any termination of the ISDA Master Agreement.
"Comparable Treasury Issue" means the United States Treasury security
selected by the Remarketing Dealer as having an actual maturity on the
Determination Date (or the United States Treasury securities selected by the
Remarketing Dealer to derive an interpolated yield to maturity on such
Determination Date) comparable to the remaining term of the Drs.
"Comparable Treasury Price" means (a) the offer price for the Comparable
Treasury Issue (expressed as a percentage of its principal amount) on the
Determination Date, as set forth on Telerate Page 500, adjusted to reflect
settlement on the Remarketing Date if prices quoted on Telerate Page 500 are for
settlement on any date other than the Remarketing Date, or (b) if such page (or
any successor page) is not displayed or does not contain such offer prices on
such Business Day, then (i) the average of such Reference Treasury Dealer
Quotations for such Remarketing Date, after excluding the highest and lowest of
such Reference Treasury Dealer Quotations (unless there is more than one highest
or lowest quotation, in which case only one such highest and/or lowest quotation
shall be excluded), or (ii) if the Remarketing Dealer obtains fewer than four
such Reference Treasury Dealer Quotations, the average of all such Reference
Treasury Dealer Quotations. The Remarketing Dealer shall have the discretion to
select the time at which the Comparable Treasury Price is determined on the
Determination Date and the number of Reference Treasury Dealer Quotations to be
obtained.
"Dollar Price" means the discounted present value to the Remarketing Date of
the cash flows on a bond (x) with a principal amount equal to the aggregate
principal amount of the initially issued Drs., (y) maturing on the Stated
Maturity Date and (z) bearing interest from the Remarketing Date, payable semi-
annually (assuming a 360-day year consisting of twelve 30-day months) on the
interest payment dates of the Drs. at a rate equal to the Base Rate, using a
discount rate equal to the Treasury Rate.
"Drs. Unavailable for Remarketing" means any Drs. that are unavailable for
any reason for remarketing by the Remarketing Dealer on the Remarketing Date
(whether due to termination of this Agreement according to its terms,
3
<PAGE>
purchase or redemption of Drs. by the Company prior to the Remarketing Date, or
otherwise).
"ISDA Master Agreement" means the ISDA Master Agreement dated as of December
15, 1997 between the Company and Morgan Guaranty Trust Company of New York.
"Reference Corporate Dealer" means J.P. Morgan Securities Inc., and four
other leading dealers of publicly-traded debt securities of the Company to be
chosen by the Remarketing Dealer. If any of such persons shall cease to be a
leading dealer of publicly-traded debt securities of the Company, then the
Remarketing Dealer may replace such person with any other leading dealer of
publicly-traded debt securities of the Company.
"Reference Treasury Dealer" means a primary U.S. Government securities
dealer in The City of New York (which may include the Remarketing Dealer)
selected by the Remarketing Dealer.
"Reference Treasury Dealer Quotations" means, with respect to each Reference
Treasury Dealer, the offer price for the Comparable Treasury Issue (expressed as
a percentage of its principal amount) for settlement on the Remarketing Date,
quoted in writing to the Remarketing Dealer by such Reference Treasury Dealer by
3:30 p.m., New York City time, on the Determination Date.
"Stated Maturity Date" means October 15, 2013.
"Telerate Page 500" means the display designated as "Telerate Page 500" on
Dow Jones Markets Limited (or such other page as may replace Telerate Page 500
on such service) or such other service displaying the offer prices specified in
clause (a) of the definition of Comparable Treasury Price as may replace Dow
Jones Markets Limited.
"Treasury Rate" means the annual rate equal to the semi-annual equivalent
yield to maturity or interpolated (on a 30/360 day count basis) yield to
maturity on the Determination Date of the Comparable Treasury Issue for value on
the Remarketing Date, assuming a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price.
4
<PAGE>
(b) The following additional terms are defined in the following Sections:
<TABLE>
<CAPTION>
Defined Term Section
- ------------- --------
<S> <C>
Commission Preamble
Company Preamble
Determination Date 4(d)
Drs. Preamble
DTC 4(e)
Exchange Act Preamble
Exchange Act Documents 2(a)
Indemnified Person 9(c)
Indemnifying Person 9(c)
Indenture Preamble
Interest Rate to Maturity 4(d)
Investment Grade 8(c)
JPMSI Preamble
Moody's 8(c)
Notification Date 4(c)
Prospectus Preamble
Rating Agency 8(c)
Registration Statement Preamble
Remarketing Date Preamble
Remarketing Dealer Preamble
Remarketing Materials 3(b)
Representation Date 2(a)
S&P 8(c)
Securities Act Preamble
Trustee Preamble
Underwriting Agreement Preamble
</TABLE>
Section 2. Representations and Warranties.
(a) The Company represents and warrants to the Remarketing Dealer as of the
date hereof, the Notification Date, the Determination Date and the Remarketing
Date (each of the foregoing dates being hereinafter referred to as a
"Representation Date"), as follows:
5
<PAGE>
(i) It has filed all reports and any definitive proxy or information
statements required to be filed by the Company with the Commission pursuant
to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act (collectively, the
"Exchange Act Documents").
(ii) The applicable Remarketing Materials will not, as of their date or
the Remarketing Date, include an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary in order
to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
(iii) The representations and warranties contained in the Underwriting
Agreement are true and correct with the same force and effect as though
expressly made at and as of each Representation Date; except that for
purposes of this Agreement, representations and warranties in the
Underwriting Agreement relating to the Registration Statement and the
Prospectus (as defined therein) shall be made with respect to such documents
as deemed modified by the Exchange Act Documents, as well as any new or
revised registration statement and new or revised prospectus required by
subsection 3(f) herein, and the date as of which such representations and
warranties are made shall include each Representation Date.
(iv) Since the respective dates as of which information is given in the
Remarketing Materials or the Exchange Act Documents, there has not been any
material change in the capital stock or long-term debt of the Company or any
of its subsidiaries, or any material adverse change, or any development
involving a prospective material adverse change that is reasonably likely to
occur, in or affecting the general affairs, business, prospects, management,
financial position, stockholders' equity or results of operations of the
Company and its subsidiaries, taken as a whole, otherwise than as set forth
or contemplated in the Remarketing Materials or the Exchange Act Documents.
Except as set forth or contemplated in the Remarketing Materials or the
Exchange Act Documents, neither the Company nor any of its subsidiaries has
entered into any transaction or agreement (whether or not in the ordinary
course of business) material to the Company and its subsidiaries, taken as a
whole.
(v) This Agreement has been duly authorized, executed and delivered by
the Company.
(vi) The issue and sale of the Drs. and the performance by the Company
of all of its obligations under the Drs., the Indenture and this
6
<PAGE>
Agreement and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach of any of the
terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which the Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries is bound or to which any of the property
or assets of the Company or any of its subsidiaries is subject, nor will any
such action result in any violation of the provisions of the Certificate of
Incorporation or the By-Laws of the Company or any applicable law or statute
or any order, rule or regulation of any court or governmental agency or body
having jurisdiction over the Company, its subsidiaries or any of their
respective properties. No consent, approval, authorization, order, license,
registration or qualification of or with any such court or governmental
agency or body is required for the issue and sale of the Drs. or the
consummation by the Company of the transactions contemplated by this
Agreement or the Indenture, except such as have already been obtained and
except as may be required under the blue sky laws of any jurisdiction.
(vii) The Drs. conform in all material respects to the description
thereof contained in the Prospectus.
(b) Additional Certifications. Any certificate signed by any director or
officer of the Company in their capacity as such director or officer and
delivered to the Remarketing Dealer or to counsel for the Remarketing Dealer in
connection with the remarketing of the Drs. shall be deemed a representation and
warranty by the Company to the Remarketing Dealer as to the matters covered
thereby.
Section 3. Covenants of the Company.
The Company covenants with the Remarketing Dealer as follows:
(a) The Company will provide prompt notice by telephone, confirmed in
writing (which may include facsimile or other electronic transmission), to the
Remarketing Dealer of the occurrence:
(i) at any time, of any event set forth in clause (i), (ii) or (iii) of
subsection 8(c) or of any amendment of any kind to the Indenture (including
the Drs.); and
(ii) on or after the Notification Date, of any event set forth in
clauses (i) or (ii) of subsection 8(d).
7
<PAGE>
(b) The Company will furnish to the Remarketing Dealer upon request:
(i) each Registration Statement and the Prospectus relating to the Drs.
(including in each case any amendment or supplement thereto and each
document incorporated therein by reference);
(ii) each Exchange Act Document filed after the date hereof; and
(iii) such other information relating to the Company and the Drs. as
the Remarketing Dealer may reasonably request from time to time for use in
connection with the remarketing of the Drs.
The Company agrees to provide the Remarketing Dealer with as many copies of
the foregoing written materials and information (collectively, the "Remarketing
Materials", including in each case any document incorporated by reference
therein) as the Remarketing Dealer may reasonably request for use in connection
with the remarketing of Drs. and consents to the use thereof for such purpose.
(c) If, at any time within three months of the Remarketing Date, any event
or condition known to the Company relating to or affecting the Company, any
subsidiary thereof or the Drs. shall occur which could reasonably be expected to
cause any of the Remarketing Materials to contain an untrue statement of a
material fact or omit to state a material fact, the Company shall promptly
notify the Remarketing Dealer in writing of the circumstances and details of
such event or condition.
(d) So long as the Drs. are outstanding, the Company will file all
documents required to be filed with the Commission pursuant to the Exchange Act
within the time periods required by the Exchange Act and the rules and
regulations thereunder.
(e) The Company will comply with the Securities Act, the Exchange Act, the
Trust Indenture Act and the rules and regulations of the Commission thereunder
so as to permit the completion of the remarketing of the Drs. as contemplated in
(i) this Agreement, (ii the Prospectus first used to confirm sales of the Drs.
when the Drs. were originally issued, and (ii the prospectus, if any, used in
connection with the remarketing.
(f) If a new or amended Registration Statement in respect of the Drs. is
in the opinion of counsel for the Remarketing Dealer or for the Company
necessary to sell Drs. on an unrestricted basis on the Remarketing Date, then
the Company, at its expense, will, on or before such date:
8
<PAGE>
(i) prepare and file with the Commission such amended or new
Registration Statement (including a Prospectus) covering such sale of Drs.
by the Remarketing Dealer, and use its best efforts to cause such
Registration Statement to become effective on or prior to the Determination
Date;
(ii) furnish to the Remarketing Dealer such number of copies of such
Prospectus as the Remarketing Dealer may reasonably request;
(iii) furnish to the Remarketing Dealer and any other securities dealer
participating in the remarketing of the Drs. an officers' certificate, an
opinion, including a statement as to the absence of material misstatements
in or omissions from the Registration Statement and the Prospectus, of
Jaffe, Raitt, Heuer & Weiss or such other counsel to the Company reasonably
satisfactory to the Remarketing Dealer and a "comfort letter" from the
Company's independent accountants, in each case dated as of the Remarketing
Date and in form and substance satisfactory to the Remarketing Dealer, of
the same tenor as the officers' certificate, opinion and comfort letter,
respectively, delivered to satisfy the closing conditions of the
Underwriting Agreement, but modified to relate to such new or amended
Registration Statement and the Prospectus; and
(iv) provide to the Remarketing Dealer and any other securities dealer
participating in the remarketing of the Drs. the opportunity to conduct an
underwriters' due diligence investigation of the Company in a scope
customarily provided in connection with a public offering of the Company's
debt securities.
The Remarketing Dealer will use its best efforts to advise the Company,
promptly upon request, whether in the opinion of counsel for the Remarketing
Dealer, a new or amended Registration Statement in respect of the Drs. is
necessary to sell Drs. on an unrestricted basis. In addition, the Remarketing
Dealer will use its best efforts to advise the Company promptly of any change in
the opinion of such counsel. Furthermore, if at any time when, in the
reasonable opinion of counsel for the Remarketing Dealer, a prospectus is
required by the Securities Act to be delivered in connection with sales of the
Drs., any event shall occur or condition shall exist as a result of which it is
necessary to amend the Registration Statement or amend or supplement the
Prospectus in order that such Prospectus 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 not misleading in the light of the circumstances existing
at the time it is delivered to a purchaser, or if it is necessary to amend or
supplement the Prospectus to comply with law, the Company, at its expense, will
promptly furnish to the Remarketing Dealer such
9
<PAGE>
amendments or supplements to the Prospectus as may be needed so that the
statements in the Prospectus as so amended or supplemented will not, in the
light of the circumstances when the Prospectus is delivered to a purchaser, be
misleading or so that the Prospectus will comply with law.
The Company agrees to reimburse the Remarketing Dealer for all of its
reasonable out-of-pocket expenses (including reasonable fees and disbursements
of counsel) incurred in connection with any remarketing under circumstances
described in this subsection 3(f).
(g) The Company agrees that neither it nor any of its subsidiaries or
affiliates shall purchase or otherwise acquire, or enter into any agreement to
purchase or otherwise acquire, any of the Drs. on or prior to the Remarketing
Date, other than (i) a repurchase of the Drs. in accordance with subsection 4(g)
or (ii) a redemption of the Drs. in accordance with subsection 4(h).
(h) The Company will comply with each of the covenants set forth in the
Underwriting Agreement.
(i) In connection with the remarketing, the Company will endeavor to
arrange for the qualification of the Drs. for sale under the laws of such United
States jurisdictions as the Remarketing Dealer may designate, and will maintain
such qualifications in effect so long as required for the remarketing of the
Drs. provided, however, that the Company shall not be required to (i) file a
general consent to service of process in any jurisdiction, (ii) make any
undertaking with respect to the conduct of its business, (iii) take any action
that would subject the Company to taxation or (iv) provide any undertaking or
make any change in its charter or by-laws that the Board of Directors of the
Company reasonably determines to be contrary to the best interests of the
Company and its stockholders; the Company will pay all expenses in connection
with such qualification, including the fees and disbursements of counsel for any
dealers participating in the remarketing in connection with such qualification
and in connection with blue sky and legal investment surveys.
(j) During the five Business Day period ending on the Remarketing Date,
the Company will not, without the consent of the Remarketing Dealer, offer, sell
or contract to sell, or otherwise dispose of, directly or indirectly, or
announce the offering of, any debt securities.
Section 4. Appointment and Obligations of the Remarketing Dealer.
(a) Unless this Agreement is otherwise terminated in accordance with
Section 10 hereof, the Company hereby appoints JPMSI, and JPMSI hereby
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accepts such appointment, in accordance with the terms but subject to the
conditions of this Agreement, as the exclusive Remarketing Dealer with respect
to the Drs.
(b) The obligations of the Remarketing Dealer hereunder to purchase the
tendered Drs. on the Remarketing Date, to determine the Interest Rate to
Maturity pursuant to subsection 4(d) and to remarket the Drs. are conditioned
on:
(i) the issuance and delivery of such Drs. pursuant to the terms and
conditions of the Underwriting Agreement;
(ii) the Remarketing Dealer's election on the Notification Date to
purchase the Drs. for remarketing on the Remarketing Date and
(iii) the fact that the conditions set forth in Section 8 hereof shall
have been fully and completely met to the satisfaction of the Remarketing
Dealer.
(c) On a Business Day not later than five Business Days prior to the
Remarketing Date (the "Notification Date"), the Remarketing Dealer will notify
the Company and the Trustee as to whether it elects to purchase the Drs. on the
Remarketing Date. If, and only if, the Remarketing Dealer so elects, the Drs.
shall be subject to mandatory tender to the Remarketing Dealer for purchase and
remarketing on the Remarketing Date, upon the terms and subject to the
conditions described herein. The purchase price of the Drs. shall be equal to
100% of the principal amount thereof.
(d) The Remarketing Dealer shall determine a new stated interest rate on
the Drs. as of the Remarketing Date (the "Interest Rate to Maturity") on the
third Business Day immediately preceding the Remarketing Date (the
"Determination Date") by soliciting by 3:30 p.m., New York City time, the
Reference Corporate Dealers for firm, committed bids to purchase all outstanding
Drs. at the Dollar Price, and by selecting the lowest such firm, committed bid
(regardless of whether each of the Reference Corporate Dealers actually submits
a bid). Each bid shall be expressed in terms of the Interest Rate to Maturity
that the Drs. would bear (quoted as a spread over the Base Rate) based on the
following assumptions:
(i) the Drs. would be sold to such Reference Corporate Dealer on the
Remarketing Date for settlement on the same day;
(ii) the Drs. would mature on the Stated Maturity Date;
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(iii) the Drs. would bear interest from the Remarketing Date at a
stated rate equal to the Interest Rate to Maturity bid by such Reference
Corporate Dealer, payable semi-annually on the interest payment dates for
the Drs.
The Interest Rate to Maturity announced by the Remarketing Dealer as a result of
such process will be quoted to the nearest one hundred-thousandth (0.00001) of
one percent per annum and, absent manifest error, will be binding and conclusive
upon holders of the Drs., the Company and the Trustee. Subject only to
subsection 4, below, the Remarketing Dealer shall have the discretion to select
the time at which the Interest Rate to Maturity is determined on the
Determination Date.
The Remarketing Dealer shall have the right in its sole discretion to
either (i) remarket the Drs. for its own account or (ii) sell the Drs. to the
Reference Corporate Dealer submitting the lowest firm, committed, bid pursuant
to subsection 4(d). If two or more Reference Corporate Dealers submit
equivalent bids which constitute the lowest firm, committed bid, the Remarketing
Dealer may in its sole discretion elect to sell the Drs. to any such Reference
Corporate Dealer.
(e) If the Remarketing Dealer has elected to remarket the Drs. as provided
in subsections 4(c) and 4(d), then it shall notify the Company, the Trustee and
The Depository Trust Company ("DTC") by telephone, confirmed in writing (which
may include facsimile or other electronic transmission), by 5:00 p.m., New York
City time, on the Determination Date of the Interest Rate to Maturity applicable
to the Drs. effective from and including the Remarketing Date.
(f) If the Drs. are remarketed as provided herein, then, subject to
Section 8 hereof, the Remarketing Dealer will make, or cause the Trustee to
make, payment to DTC by the close of business on the Remarketing Date against
delivery through DTC of the tendered Drs., of the purchase price for all of the
tendered Drs. The purchase price of the tendered Drs. will be equal to 100% of
the principal amount thereof and shall be paid in immediately available funds.
(g) If the Remarketing Dealer (i) does not elect to purchase the Drs. for
remarketing pursuant to subsection 4(c), (ii determines in its sole discretion
that one or more of the conditions in Section 8 hereof have not been fulfilled
by the required time, or (iii) for any other reason does not remarket the Drs.,
then the Company shall repurchase on the Remarketing Date all then outstanding
Drs. at a price equal to 100% of the principal amount of such Drs. plus all
accrued interest, if any, on such Drs. to (but excluding) the Remarketing Date.
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(h) If the Remarketing Dealer has elected to remarket the Drs. on the
Remarketing Date in accordance with subsection 4(c) hereof, the Company may
irrevocably elect to exercise its right to redeem the Drs., in whole but not in
part, from the Remarketing Dealer on the Remarketing Date at the greater of (x)
100% of the aggregate principal amount of the Drs. or (y) the Dollar Price, by
giving notice of such election to the Remarketing Dealer no later than
(i) the Business Day immediately prior to the Determination Date or
(ii) if fewer than three Reference Corporate Dealers submit firm,
committed bids in accordance with subsection 4(d) hereof, immediately after
the deadline set by the Remarketing Dealer for receiving such bids has
passed.
In either such case, the Company shall pay such redemption price for the
Drs. in same-day funds by wire transfer on the Remarketing Date to an account
designated by the Remarketing Dealer.
If the Company exercises its right to redeem the Drs. pursuant to clause
4(h)(ii) above, it shall promptly reimburse the Remarketing Dealer for any and
all expenses (including any and all hedge losses) incurred by the Remarketing
Dealer in connection with its having to break associated hedging transactions to
enable the Company to exercise such redemption right. If any such broken hedges
result in a profit to the Remarketing Dealer, the Remarketing Dealer shall
promptly pay such profit over to the Company. The amount of any hedge losses or
profits shall be determined solely by the Remarketing Dealer, on a reasonable
basis.
(i) In accordance with the terms and provisions of the Drs., the tender
and settlement procedures set forth in this Section 4, shall be subject to
modification without the consent of the holders of the Drs., to the extent
required by DTC or, if the book-entry system is no longer available for the Drs.
at the time of the remarketing, to the extent required to facilitate the
tendering and remarketing of Drs. in certificated form. In addition, the
Remarketing Dealer may, without the consent of the holders of the Drs., modify
the settlement procedures set forth in the Indenture and/or the Drs. in order to
facilitate the settlement process.
(j) In accordance with the terms and provisions of the Drs., the Company
hereby (i) agrees that at all times, it will use its best efforts to maintain
the Drs. in book-entry form with DTC or any successor thereto and to appoint a
successor depositary to the extent necessary to maintain the Drs. in book-entry
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form and (ii) waives any discretionary right it otherwise may have under the
Indenture to cause the Drs. to be issued in certificated form.
Section 5. Fees and Expenses.
Subject to subsection 3(f), the last paragraph of subsection 4(h), and
Section 10 hereof, the Remarketing Dealer will not receive any fees or
reimbursement of expenses from the Company for its remarketing services set
forth herein.
Section 6. Resignation of the Remarketing Dealer.
The Remarketing Dealer may resign and be discharged from its duties and
obligations hereunder at any time prior to its giving notice of its intention to
remarket the Drs., such resignation to be effective ten Business Days after
delivery of a written notice to the Company and the Trustee of such resignation.
The Remarketing Dealer also may resign and be discharged from its duties and
obligations hereunder at any time, such resignation to be effective immediately,
upon termination of this Agreement in accordance with subsection 10 hereof. The
Company shall have the right, but not the obligation, to appoint a successor
Remarketing Dealer.
Section 7. Dealing in the Drs.; Purchase of Drs. by the Company.
(a) JPMSI, when acting as the Remarketing Dealer or in its individual or
any other capacity, may, to the extent permitted by law, buy, sell, hold and
deal in any of the Drs. JPMSI, as holder or beneficial owner of the Drs., may
exercise any vote or join as a holder or beneficial owner, as the case may be,
in any action which any holder or beneficial owner of Drs. may be entitled to
exercise or take pursuant to the Indenture with like effect as if it did not act
in any capacity hereunder. The Remarketing Dealer, in its capacity either as
principal or agent, may also engage in or have an interest in any financial or
other transaction with the Company as freely as if it did not act in any
capacity hereunder.
(b) The Company may purchase Drs. in the remarketing, provided that the
Interest Rate to Maturity established with respect to Drs. in the remarketing is
not different from the Interest Rate to Maturity that would have been
established if the Company had not purchased such Drs.
Section 8. Conditions to Remarketing Dealer's Obligations.
The obligations of the Remarketing Dealer to purchase the Drs. on the
Remarketing Date in accordance with the provisions of this Agreement, to
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determine the Interest Rate to Maturity pursuant to subsection 4(d), and to
remarket the Drs. have been undertaken in reliance on, and are subject to, the
following conditions:
(a) the due performance in all material respects by the Company of its
obligations and agreements as set forth in this Agreement and the accuracy of
the representations and warranties in this Agreement and any certificate
delivered pursuant hereto;
(b) the due performance in all material respects by the Company of its
obligations and agreements set forth in, and the accuracy as of the dates
specified therein of the representations and warranties contained in, the
Underwriting Agreement;
(c) none of the following events shall have occurred at any time on or
prior to the Remarketing Date:
(i) the Drs. shall cease to be rated Investment Grade by each of the
Rating Agencies at any time; for purposes of the foregoing, "Rating Agency"
shall mean Standard & Poor's Corporation and its successors ("S&P") and
Moody's Investor's Services, Inc. and its successors ("Moody's"); and
"Investment Grade" shall mean that the Company's long-term, unsecured debt
is rated BBB- or higher by S&P and Baa3 or higher by Moody's;
(ii) an Event of Default (as defined in the Indenture), or any event
which, with the giving of notice or passage of time, or both, would
constitute an Event of Default thereunder, with respect to the Drs. shall
have occurred and be continuing;
(iii) an Event of Default or a Termination Event, each as defined in
the ISDA Master Agreement, shall have occurred and be continuing under the
ISDA Master Agreement (if the ISDA Master Agreement shall have terminated,
then this provision shall continue to have effect as if such agreement were
still in force and effect); provided that, for purposes of this Agreement,
the "Threshold Amount" in the ISDA Master Agreement shall be deemed to be
$10,000,000; or
(iv) without the prior written consent of the Remarketing Dealer, the
Indenture (including the Drs.) shall have been amended in any manner, or
otherwise contain any provision not contained therein as of the date hereof,
that in either case in the judgment of the Remarketing Dealer materially
changes the nature of the Drs. or the remarketing procedures;
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(d) none of the following events shall have occurred after the Remarketing
Dealer elects on the Notification Date to purchase the Drs.:
(i) there shall have occurred any downgrading, or any notice shall have
been given of (A) any downgrading, (B) any intended or potential downgrading
or (C) any review or possible change that does not indicate an improvement,
in the rating accorded any debt securities of, or guaranteed by, the Company
by any "nationally recognized statistical rating organization", as such term
is defined for purposes of Rule 436(g)(2) under the Securities Act;
(ii) trading of any securities of, or guaranteed by, the Company shall
have been suspended on any exchange or in any over-the-counter market;
(iii) a material adverse change, or any development involving a
prospective material adverse change reasonably likely to occur, in or
affecting the general affairs, business, prospects, management, financial
position, stockholders' equity or results of operations of the Company and
its subsidiaries, taken as a whole, the effect of which is such as to make
it, in the judgment of the Remarketing Dealer, impracticable or inadvisable
to remarket the Drs. or to enforce contracts for the sale of the Drs.;
(iv) if a prospectus is required under the Securities Act to be
delivered in connection with the remarketing of the Drs., the Company shall
fail to furnish to the Remarketing Dealer on the Remarketing Date the
officers' certificate, opinion and comfort letter referred to in subsection
3(f) of this Agreement and such other documents and opinions as Davis Polk &
Wardwell, as special counsel for the Remarketing Dealer may reasonably
require for the purpose of enabling such counsel to pass upon the sale of
Drs. in the remarketing as herein contemplated and related proceedings, or
in order to evidence the accuracy and completeness of any of the
representations and warranties, or the fulfillment of any of the conditions,
herein contained;
(v) trading generally shall have been suspended or materially limited
on or by, as the case may be, any of the New York Stock Exchange, the
American Stock Exchange, the National Association of Securities Dealers,
Inc., the Chicago Board Options Exchange, the Chicago Mercantile Exchange or
the Chicago Board of Trade; or a general moratorium on commercial banking
activities in New York shall have been declared by either Federal or New
York State authorities;
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(vi) there shall have occurred any outbreak or escalation of
hostilities or any change in financial markets or any calamity or crisis
that, in the judgment of the Remarketing Dealer, is material and adverse and
which, in the judgment of the Remarketing Dealer, makes it impracticable to
remarket the Drs. or to enforce contracts for the sale of the Drs.;
(vii) the Treasury Rate used to determine the Dollar Price on the
Determination Date exceeds the Base Rate; or
(viii) the Remarketing Dealer shall not have received by the required
time on the Determination Date any firm, committed bids to purchase all of
the Drs. in accordance with subsection 4(d) hereof, provided the Remarketing
Dealer has solicited bids pursuant to subsection 4(d);
(e) the Remarketing Dealer shall have received (as soon as practicable
following notification by the Remarketing Dealer to the Company on the
Notification Date of its election to purchase the Drs. and in any event prior to
the Determination Date) a certificate of any of the Chief Financial Officer, the
Treasurer, or the Controller of the Company, satisfactory to the Remarketing
Dealer, dated as of the Notification Date, to the following effect:
(i) the Company has, prior to the Remarketing Dealer's election on the
Notification Date to remarket the Drs., provided the Remarketing Dealer with
notice of all events as required under subsection 3(a) of this Agreement;
(ii) the representations and warranties in this Agreement are true and
correct at and as of the Notification Date; and
(iii) the Company has complied in all material respects with all
agreements and satisfied all conditions on its part to be performed or
satisfied at or prior to the Notification Date; and
(f) the Remarketing Dealer shall have received on the Remarketing Date a
certificate of any of the Chief Financial Officer, the Treasurer or the
Controller of the Company, satisfactory to the Remarketing Dealer, dated as of
the Remarketing Date, to the following effect:
(i) the representations and warranties in this Agreement are true and
correct with the same force and effect as though expressly made at and as of
the Remarketing Date;
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(ii) the Company has complied in all material respects with all
agreements and satisfied all conditions on its part to be performed or
satisfied at or prior to the Remarketing Date;
(iii) no material adverse change, or any development involving a
prospective material adverse change reasonably likely to occur, in or
affecting the general affairs, business prospects, management, financial
position, stockholders' equity or results of operations of the Company and
its subsidiaries, taken as a whole, shall have occurred since the date of
the most recent financial statements of the Company filed with the
Commission; and
(iv) the conditions specified in clauses 8(c)(i), 8(c)(ii) and
8(c)(iii) and clauses 8(d)(i) and 8(d)(ii) of this Agreement have been
satisfied.
Section 9. Indemnification.
(a) The Company agrees to indemnify and hold harmless the Remarketing
Dealer and each person, if any, who controls the Remarketing Dealer within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act, from and against any and all losses, claims, damages and liabilities
(including, without limitation, the reasonable legal fees and other expenses
incurred in connection with any suit, action or proceeding or any claim
asserted):
(i) arising out of the failure to have an effective registration
statement under the Securities Act relating to the Drs., if required, or the
failure to satisfy the prospectus delivery requirements of the Securities
Act because the Company failed to notify the Remarketing Dealer of such
delivery requirement or failed to provide the Remarketing Dealer with a
prospectus for delivery,
(ii) caused by any untrue statement or alleged untrue statement of a
material fact contained in any of the Remarketing Materials or caused by any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages or liabilities are caused by
any untrue statement or omission or alleged untrue statement or omission
made in reliance upon and in conformity with information relating to the
Remarketing Dealer furnished to the Company in writing by the Remarketing
Dealer expressly for use therein, or
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(iii) arising out of any violation by the Company of, or any failure by
the Company to perform any of its obligations under, this Agreement, or
(iv) the acts or omissions of the Remarketing Dealer in connection with
its duties and obligations hereunder, except to the extent due to its gross
negligence or willful misconduct.
(b) The Remarketing Dealer agrees to indemnify and hold harmless the
Company, its directors and its officers and each person who controls the Company
within the meaning of Section 15 of the Securities Act and Section 20 of the
Exchange Act, to the same extent as the foregoing indemnity from the Company to
the Remarketing Dealer in subsection 9(a)(i) of this Agreement, but only with
reference to information relating to such Remarketing Dealer furnished to the
Company in writing by such Remarketing Dealer expressly for use in any of the
Remarketing Materials.
(c) If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any person in respect of which indemnity may be sought pursuant to either of the
two preceding paragraphs, such person (the "Indemnified Person") shall promptly
notify the person against whom such indemnity may be sought (the "Indemnifying
Person") in writing, and the Indemnifying Person, upon request of the
Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Person may designate in such proceeding and shall pay the fees and
expenses of such counsel related to such proceeding. In any such proceeding,
any Indemnified Person 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
Person unless
(i) the Indemnifying Person and the Indemnified Person shall have
mutually agreed to the contrary,
(ii) the Indemnifying Person has failed within a reasonable time to
retain counsel reasonably satisfactory to the Indemnified Person or
(iii) the named parties in any such proceeding (including any impleaded
parties) include both the Indemnifying Person and the Indemnified Person and
representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them.
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It is understood that the Indemnifying Person shall not, in connection with
any proceeding or related proceeding in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any local
counsel) for all Indemnified Persons, and that all such fees and expenses shall
be reimbursed as they are incurred. Any such separate firm for the Remarketing
Dealer and its directors and officers shall be designated in writing by it and
any such separate firm for the Company, its directors and its officers who sign
the Registration Statement and such control persons of the Company or authorized
representatives shall be designated in writing by the Company. The Indemnifying
Person 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 Person agrees to indemnify any
Indemnified Person from and against any loss or liability by reason of such
settlement or judgment.
(d) Notwithstanding the foregoing subsection 9(c), if at any time an Indemnified
Person shall have requested an Indemnifying Person to reimburse the Indemnified
Person for fees and expenses of counsel as contemplated by such subsection 9(c),
the Indemnifying Person agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such Indemnifying Person of the
aforesaid request and (ii) such Indemnifying Person shall not have reimbursed
the Indemnified Person in accordance with such request prior to the date of such
settlement. If during any period of time the indemnifying parties are disputing
in good faith the reasonableness of such fees and expenses of counsel, such
period of time shall not be counted in calculating such 30 day period. No
Indemnifying Person shall, without the prior written consent of the Indemnified
Person, effect any settlement of any pending or threatened proceeding in respect
of which any Indemnified Person is or could have been a party and indemnity
could have been sought hereunder by such Indemnified Person, unless such
settlement includes an unconditional release of such Indemnified Person from all
liability on claims that are the subject matter of such proceeding.
(e) If the indemnification provided for in subsections 9(a) and 9(b) is
unavailable to an Indemnified Person or insufficient in respect of any losses,
claims, damages or liabilities referred to, then each Indemnifying Person, in
lieu of indemnifying such Indemnified Person thereunder, shall contribute to the
amount paid or payable by such Indemnified Person as a result of such losses,
claims, damages or liabilities (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company, on the one hand, and the
Remarketing Dealer, on the other, from the remarketing of the Drs. or (ii if the
allocation provided by clause (i) above is not permitted by applicable law, in
such propor tion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company, on
the one hand, and the Remarketing Dealer, on the other, in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Company, on the one hand, and the
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Remarketing Dealer, on the other, shall be deemed to be in the same respective
proportions as the aggregate principal amount of the Drs. bears to the amount,
if any, by which the price at which the Drs. are sold by the Remarketing Dealer
in the remarketing exceeds the price paid by the Remarketing Dealer for the Drs.
tendered on the Remarketing Date. The relative fault of the Company on the one
hand and the Remarketing Dealer on the other shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or by the Remarketing Dealer and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission.
(f) The Company and the Remarketing Dealer agree that it would not be just
and equitable if contribution pursuant to this Section 9 were determined by pro
rata allocation or by any other method of allocation that does not take account
of the equitable considerations referred to in the immediately preceding para
graph. The amount paid or payable by an Indemnified Person 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 incurred by such Indemnified Person in
connection with investigating or defending any such action or claim.
(g) Notwithstanding the provisions of this Section 9, in no event shall
the Remarketing Dealer be required to contribute any amount in excess of the
amount by which the total price at which the Drs. remarketed by it and
distributed to the public were offered to the public exceeds the amount of any
damages that such Remarketing Dealer has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
remedies provided for in this Section 9 are not exclusive and shall not limit
any rights or remedies which may otherwise be available to any indemnified party
at law of in equity.
(h) The indemnity and contribution agreements contained in this Section 9
and the representations and warranties of the Company set forth in this
Agreement shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement and (ii) any investigation made by or on
behalf of the Remarketing Dealer or any person controlling the Remarketing
Dealer or by
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or on behalf of the Company, its officers or directors or any other person
controlling the Company.
Section 10. Termination of Remarketing Agreement.
(a) This Agreement shall terminate as to the Remarketing Dealer on the
earliest of
(i) the effective date of the resignation of the Remarketing Dealer
pursuant to Section 6 hereof;
(ii) the occurrence of any event described in clause (i) or (ii) of
subsection 4(g) hereof; or
(iii) the date the Company gives notice of its intention to redeem all
of the outstanding Drs. in accordance with subsection 4(h).
(b) In addition, the Remarketing Dealer may terminate all of its
obligations under this Agreement immediately by notifying the Company and the
Trustee of its election to do so, at any time on or before the Remarketing Date,
if:
(i) any of the conditions referred to or set forth in subsection 8(a)
or (b) hereof have not been met or satisfied in full or any of the events
set forth in subsection 8(c) or 8(d) shall have occurred; or
(ii) the Remarketing Dealer determines, in its sole discretion, after
consultation with the Company, that there is material, non-public
information about the Company that is not available to the Remarketing
Dealer which is necessary for it to fulfill its obligations under this
Agreement.
(c) If this Agreement is terminated pursuant to this Section 10, such
termination shall be without liability of any party to any other party, except
that, in the case of a termination resulting from a failure to observe the
conditions set forth in subsections 8(a) or 8(b), or the occurrence of any of
the events set forth in subsection 8(c) or clauses 8(d)(i) through 8(d)(iv), the
Company shall reimburse the Remarketing Dealer for all of its reasonable out-of-
pocket expenses, including the reasonable fees and disbursements of counsel for
the Remarketing Dealer. Section 9 and subsections 3(f), 4(h), 10(c) and 10(d)
shall survive such termination and remain in full force and effect.
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(d) Upon:
(i) the termination of this Agreement pursuant to subsection 10 (except
as a result of an event described in subsection 8(d)(vii)); or
(ii) a repurchase by the Company of any Drs. due to a failure by the
holder thereof to deliver the Drs. to the Remarketing Dealer against payment
therefor in connection with a mandatory tender;
then, upon the request of the Remarketing Dealer, the Company shall pay to the
Remarketing Dealer, in same-day funds by wire transfer to an account designated
by the Remarketing Dealer, the Call Price in respect of the Drs. that have
become Drs. Unavailable for Remarketing as result of clause (i) or (ii). The
Call Price for any Drs. Unavailable for Remarketing shall be paid as soon as
practicable after the Remarketing Dealer has determined the Call Price and
notified the Company of the Call Price, but in any case no later than the
earlier of (x) three Business Days after written notification to the Company and
(y) the Remarketing Date.
The Remarketing Dealer shall promptly notify the Company of the Call Price
for any Drs. Unavailable for Remarketing by telephone, confirmed in writing
(which may include facsimile or other electronic transmission). The Call Price,
absent manifest error, shall be binding and conclusive upon the parties hereto.
(e) This Agreement shall not be subject to termination by the Company.
Section 11. Remarketing Dealer's Performance; Duty of Care.
The duties and obligations of the Remarketing Dealer shall be determined
solely by the express provisions of this Agreement and the Indenture. No implied
covenants or obligations of or against the Remarketing Dealer shall be read into
this Agreement or the Indenture. In the absence of bad faith on the part of the
Remarketing Dealer, the Remarketing Dealer may conclusively rely upon any
document furnished to it, which purports to conform to the requirements of this
Agreement and the Indenture, as to the truth of the statements expressed in any
of such documents. The Remarketing Dealer shall be protected in acting upon any
document or communication reasonably believed by it to have been signed,
presented or made by the proper party or parties. The Remarketing Dealer shall
incur no liability to the Company or to any beneficial owner or holder of Drs.
in its individual capacity or as Remarketing Dealer for any action or failure to
act in connection with the remarketing or otherwise, except to the extent
finally judicially determined to be due primarily to its gross negligence or
willful misconduct.
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Section 12. Governing Law.
This agreement shall be governed by and construed in accordance with the
laws of the State of New York, without giving effect to the conflicts of laws
provisions thereof.
Section 13. Term of Agreement.
Unless otherwise terminated in accordance with the provisions hereof, this
Agreement shall remain in full force and effect from the date hereof until the
earlier of the first day thereafter on which no Drs. are outstanding or the
completion of the remarketing of the Drs.
Regardless of any termination of this Agreement pursuant to any of the
provisions hereof, the obligations of the Company pursuant to Section 9 and
subsections 3(f), 4(h), 10(c) and 10(d) hereof shall remain operative and in
full force and effect until fully satisfied.
Section 14. Successors and Assigns.
The rights and obligations of the Company hereunder may not be assigned or
delegated to any other person without the prior written consent of the
Remarketing Dealer. The rights and obligations of the Remarketing Dealer
hereunder may not be assigned or delegated to any other person (other than an
affiliate of the Remarketing Dealer) without the prior written consent of the
Company. This Agreement shall inure to the benefit of and be binding upon the
Company and the Remarketing Dealer and their respective successors and assigns,
and will not confer any benefit upon any other person, partnership, association
or corporation other than persons, if any, controlling the Remarketing Dealer
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act or any other indemnified party to the extent provided in Section 9
hereof. The terms "successors" and "assigns" shall not include any purchaser of
any Drs. merely because of such purchase.
Section 15. Headings.
Section headings have been inserted in this Agreement as a matter of
convenience of reference only, and it is agreed that such section headings are
not a part of this Agreement and will not be used in the interpretation of any
provisions of this Agreement.
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Section 16. Severability.
If any provision of this Agreement shall be held or deemed to be or shall,
in fact, be invalid, inoperative or unenforceable as applied in any particular
case in any or all jurisdictions because it conflicts with any provision of any
constitution, statute, rule or public policy or for any other reason, such
circumstances shall not have the effect of rendering the provision in question
invalid, inoperative or unenforceable in any other case, circumstance or
jurisdiction, or of rendering any other provision or provisions of this
Agreement invalid, inoperative or unenforceable to any extent whatsoever.
Section 17. Counterparts.
This Agreement may be executed in several counterparts, each of which shall
be regarded as an original and all of which shall constitute one and the same
document.
Section 18. Amendments; Waivers.
This Agreement may be amended or portions thereof may be waived by any
instrument in writing signed by each of the parties hereto so long as this
Agreement as amended or the provisions as so waived are not inconsistent with
the Indenture in effect as of the date of any such amendment or waiver.
Section 19. Notices.
Unless otherwise specified, any notices, requests, consents or other
communications given or made hereunder or pursuant hereto shall be made in
writing (which may include facsimile or other electronic transmission) and shall
be deemed to have been validly given or made when delivered or, if earlier,
three days after it was mailed, registered or certified mail, return receipt
requested and postage prepaid, addressed as follows:
(a) to the Company:
Frontier Corporation
180 South Clinton
Rochester, New York 14646-0700
Attention: Mr. Joseph Enis
Facsimile No.: (716) 325-7638
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with a copy to:
Frontier Corporation
180 South Clinton
Rochester, New York 14646-0700
Attention: Martin T. McCue, Esq.
Facsimile No.: (716) 546-7823
(b) to JPMSI:
J.P. Morgan Securities Inc.
60 Wall Street
New York, New York 10260
Attention: Syndicate Department
Facsimile No.: (212) 648-5909
or to such other address as the Company or the Remarketing Dealer shall specify
in writing.
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IN WITNESS WHEREOF, each of the Company and the Remarketing Dealer has
caused this Remarketing Agreement to be executed in its name and on its behalf
by one of its duly authorized officers as of the date first above written.
FRONTIER CORPORATION
By /s/ Joseph Enis
--------------------------------
Name: Joseph Enis
Title: Treasurer
J.P. MORGAN SECURITIES INC.
By /s/ Steve Christensen
--------------------------------
Name: Steve Christensen
Title: Vice President
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<PAGE>
Exhibit 4.1
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A
NOMINEE THEREOF. THIS SECURITY MAY NOT BE TRANSFERRED TO, OR REGISTERED OR
EXCHANGED FOR SECURITIES REGISTERED IN THE NAME OF, ANY PERSON OTHER THAN THE
DEPOSITORY OR A NOMINEE THEREOF AND NO SUCH TRANSFER MAY BE REGISTERED, EXCEPT
IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE. EVERY SECURITY
AUTHENTICATED AND DELIVERED UPON REGISTRATION OF TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY (AS
DEFINED BELOW) OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
FRONTIER CORPORATION
6% Dealer remarketable security/SM/
Due 2013
REGISTERED PRINCIPAL AMOUNT
No.: R-1 $200,000,000.00
CUSIP No.: 35906PAB1
FRONTIER CORPORATION, a business corporation incorporated and existing under
the laws of the State of New York (hereinafter called the "Company", which term
includes any successor under the Indenture hereinafter referred to), for value
received, hereby promises to pay to CEDE & Co., or registered assigns, upon
presentation, the principal sum of Two Hundred Million and 00/100 Dollars
($200,000,000.00) on October 15, 2013, and to pay interest thereon from
September 21, 1998, or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, semi-annually in arrears on April
15 and October 15 in each year, commencing April 15, 1999, at the rate per annum
specified below. Any capitalized term not defined herein shall have the meaning
assigned to it in that certain Indenture by and between the Company and The
Chase Manhattan Bank, a New York banking corporation, dated as of May 21, 1997,
and supplemented as of December 8, 1997. The interest so payable on any
Interest Payment Date will, as provided for in the Indenture, be paid to the
person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such interest
which shall be the fifteenth (15th) calendar day (whether or not a Business
Day), as the case may be, next preceding such Interest Payment Date. For
purposes of this Security, "Business Day" means any day other than a Saturday, a
Sunday or a day on which banking institutions in The City of New York are
authorized or required by law, regulation or executive order to close. Any such
interest not so punctually paid or duly provided
- ---------------------------
/SM/ "Dealer remarketable security" is a service mark of J.P. Morgan Securities
Inc.
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for shall forthwith cease to be payable to the Holder on such Regular Record
Date, and may either be paid to the Person in whose name this Security (or one
or more Predecessor Securities) is registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest to be fixed by
the Trustee, notice whereof shall be given to Holders of Securities of this
series not less than ten (10) days prior to such Special Record Date, or may be
paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities of this series
may be listed, and upon such notice as may be required by such exchange, all as
more fully provided in the Indenture.
Payment of the principal of (and premium, if any) and interest on, the
Securities will be made to The Depository Trust Company or its nominee at the
corporate trust office of the Trustee, located initially at 450 West 33rd
Street, New York, New York 10001, in such coin or currency of the United States
of America as at the time of payment is legal tender for payment of public or
private debts; provided, however, that at the option of the Company, payment of
interest may be made by (i) check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register or (ii) by wire
transfer of funds to an account of the Person entitled thereto maintained within
the United States. The Company is not required to maintain an office or agency
for such payment in The City of New York.
The rate of interest on this Security shall be 6% per annum to October 15,
2003 (the "Remarketing Date"). If the Remarketing Dealer elects to remarket the
Securities pursuant to the Remarketing Agreement dated as of September 21, 1998
(the "Remarketing Agreement") between J.P. Morgan Securities Inc., as
Remarketing Dealer (the "Remarketing Dealer"), and the Company, then, except as
otherwise set forth on the reverse hereof, (i) this Security shall be subject to
mandatory tender to the Remarketing Dealer for remarketing on the Remarketing
Date, on the terms and subject to the conditions set forth on the reverse
hereof, and (ii) on and after the Remarketing Date, this Security shall bear
interest at the rate determined by the Remarketing Dealer in accordance with the
procedures set forth in Section 4 on the reverse hereof (the "Interest Rate to
Maturity"). If the Remarketing Dealer does not remarket the Securities pursuant
to the Remarketing Agreement, this Security shall be subject to mandatory tender
to the Company for repurchase on the Remarketing Date, on the terms and subject
to the conditions set forth on the reverse hereof.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS SECURITY SET FORTH
ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES HAVE THE
SAME EFFECT AS IF SET FORTH IN THIS PLACE.
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<PAGE>
Unless the Certificate of Authentication hereon has been executed by or on
behalf of the Trustee by manual signature, this Security shall not be entitled
to any benefit under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed
under its corporate seal.
FRONTIER CORPORATION
By:
--------------------------------------------
Joseph P. Clayton, President
and Chief Executive Officer
Date: September 21, 1998
ATTEST:
By:
-------------------------------------------
Josephine S. Trubek, Corporate Secretary
[SEAL]
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<PAGE>
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
---------------------------------------
This is one of the Securities of the series referred to in the within-
mentioned Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By: Date: , 1998
----------------------------------- --------------
Authorized Officer
4
<PAGE>
FRONTIER CORPORATION
6% Dealer remarketable security/SM/ due 2013
1. Indenture. This Security is one of a duly authorized issue of securities of
the Company (hereinafter called the "Debt Securities") issued and to be issued
in one or more series under an Indenture (the "Indenture") between the Company
and The Chase Manhattan Bank, a banking corporation organized under the laws of
the State of New York, as Trustee (herein called the "Trustee", which term
includes any successor trustee under the Indenture with respect to the series of
which this Security is a part), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the Company,
the Trustee and the Holders of the Debt Securities and of the terms upon which
the Debt Securities are, and are to be, authenticated and delivered. Any
capitalized term not defined herein shall have the meaning assigned to it in the
Indenture. This Security is one of the series designated on the first page
hereof, limited in aggregate principal amount to Two Hundred Million and 00/100
Dollars ($200,000,000.00). References herein to "Securities" shall mean the
Debt Securities of said series.
2. Mandatory Tender on Remarketing Date; Purchase and Settlement. On a
Business Day not later than five (5) Business Days prior to the Remarketing Date
(the "Notification Date"), the Remarketing Dealer will notify the Company and
the Trustee as to whether it elects to purchase all (but not less than all) of
the outstanding Securities on the Remarketing Date. If, and only if, the
Remarketing Dealer so elects, the Securities shall be subject to mandatory
tender to the Remarketing Dealer for purchase and remarketing on the Remarketing
Date, upon the terms and subject to the conditions described herein and in the
Remarketing Agreement. The purchase price of the Securities shall be equal to
one hundred percent (100%) of the principal amount thereof. No holder or
beneficial owner of any Securities shall have any rights or claims under the
Remarketing Agreement or against the Company or the Remarketing Dealer as a
result of the Remarketing Dealer not purchasing such Securities.
3. Maintenance of Book-Entry System.
(a) The tender and settlement procedures with respect to the Securities set
forth in the Remarketing Agreement shall be subject to modification,
without the consent of the holders of the Securities, to the extent
required by DTC or, if the book-entry system is no longer available for the
Securities at the time of the remarketing, to the extent required to
facilitate the tendering and remarketing of Securities in certificated
form. In addition, the Remarketing Dealer may modify the settlement
procedures without the consent of the holders of the Securities in order to
facilitate the settlement process.
(b) The Company hereby agrees with the Trustee and the holders of Securities
that (i) at all times, it will use its best efforts to maintain the
Securities in book-entry form with DTC or any successor thereto and to
appoint a successor depository to the extent necessary to maintain the
Securities in book-entry form and (ii) it waives any discretionary right
that it otherwise may have under the Indenture to cause the Securities to
be issued in certificated form.
4. Determination of Interest Rate to Maturity; Notification Thereof. The
Remarketing Dealer shall determine the interest rate the Securities will bear
from the Remarketing Date to the Stated Maturity Date (the "Interest Rate to
Maturity") on the third Business Day immediately preceding the Remarketing Date
(the "Determination Date") by soliciting by 3:30 p.m., New York City time, the
Reference Corporate Dealers (defined below) for firm, committed bids to purchase
all outstanding Securities at the Dollar Price (defined below), and by selecting
the lowest such firm, committed bid (regardless of whether each of the
/SM/ "Dealer remarketable security" is a service mark of J.P. Morgan Securities
Inc.
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<PAGE>
Reference Corporate Dealers actually submit bids). Each bid shall be expressed
in terms of the Interest Rate to Maturity that the Securities would bear (quoted
as a spread over 6% per annum (the "Base Rate")) based on the following
assumptions:
(a) the Securities would be sold to the Reference Corporate Dealer on the
Remarketing Date for settlement on the same day;
(b) the Securities would mature on the Stated Maturity Date; and
(c) the Securities would bear interest from the Remarketing Date at a stated
rate equal to the Interest Rate to Maturity bid by such Reference Corporate
Dealer, payable semi-annually on the interest payment dates for the
Securities
The Interest Rate to Maturity announced by the Remarketing Dealer as a result of
such process will be quoted to the nearest one hundred-thousandth (0.00001) of
one percent per annum and, absent manifest error, will be binding and conclusive
upon holders of the Securities, the Company and the Trustee. The Remarketing
Dealer shall have the discretion to select the time at which the Interest Rate
to Maturity is determined on the Determination Date.
The Remarketing Dealer shall have the right in its sole discretion to
either (i) remarket the Securities for its own account (at a price equal to the
lowest firm, committed bid, as described above) or (ii) sell the Securities to
the Reference Corporate Dealer submitting the lowest firm, committed, bid. If
two or more Reference Corporate Dealers submit equivalent bids which constitute
the lowest firm, committed bid, the Remarketing Dealer may in its sole
discretion elect to sell the Securities to any such Reference Corporate Dealer.
If the Remarketing Dealer has elected to remarket the Securities as
provided herein, then it shall notify the Company, the Trustee and DTC by
telephone, confirmed in writing (which may include facsimile or other electronic
transmission), by 5:00 p.m., New York City time, on the Determination Date of
the Interest Rate to Maturity applicable to the Securities effective from and
including the Remarketing Date.
"Dollar Price" means the discounted present value to the Remarketing Date
of the cash flows on a bond (x) with a principal amount equal to the aggregate
principal amount of the Securities, (y) maturing on the Stated Maturity Date and
(z) bearing interest from the Remarketing Date, payable semi-annually (assuming
a 360-day year consisting of twelve 30-day months) on the interest payment dates
of the Securities at a rate equal to the Base Rate, using a discount rate equal
to the Treasury Rate (defined below).
"Reference Corporate Dealer" means J.P. Morgan Securities Inc. and four (4)
other leading dealers of publicly-traded debt securities of the Company to be
chosen by the Remarketing Dealer. If any of such persons shall cease to be a
leading dealer of publicly-traded debt securities of the Company, then the
Remarketing Dealer may replace such person with any other leading dealer of
publicly-traded debt securities for the Company.
"Treasury Rate" means the annual rate equal to the semi-annual equivalent
yield to maturity or interpolated (on a 30/360 day count basis) yield to
maturity on the Determination Date of the Comparable Treasury Issue (defined
below) for value on the Remarketing Date, assuming a price for the Comparable
Treasury Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price (as defined below).
"Comparable Treasury Issue" means the United States Treasury security
selected by the Remarketing Dealer as having an actual maturity on the
Determination Date (or the United States Treasury securities selected by the
Remarketing Dealer to derive an interpolated yield to maturity on such
Determination Date) comparable to the remaining term of the Securities.
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<PAGE>
"Comparable Treasury Price" means (a) the offer price for the Comparable
Treasury Issue (expressed as a percentage of its principal amount) on the
Determination Date, as set forth on Telerate Page 500 (as defined below),
adjusted to reflect settlement on the Remarketing Date if prices quoted on
Telerate Page 500 are for settlement on any date other than the Remarketing
Date, or (b) if such page (or any successor page) is not displayed or does not
contain such offer prices on such Business Day, (i) if the Remarketing Dealer
obtains four or more Reference Treasury Dealer Quotations, the average of such
Reference Treasury Dealer Quotations for such Remarketing Date, after excluding
the highest and lowest of such Reference Treasury Dealer Quotations (unless
there is more than one highest or lowest quotation, in which case only one such
highest and/or lowest quotation shall be excluded), or (ii) if the Remarketing
Dealer obtains fewer than four such Reference Treasury Dealer Quotations, the
average of all such Reference Treasury Dealer Quotations. The Remarketing
Dealer shall have the discretion to select the time at which the Comparable
Treasury Price is determined on the Determination Date.
"Telerate Page 500" means the display designated as "Telerate Page 500" on
Dow Jones Markets Limited (or such other page as may replace Telerate Page 500
on such service) or such other service displaying the offer price specified in
clause (a) of the definition of Comparable Treasury Price as may replace Dow
Jones Markets Limited.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer, the offer price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) for settlement on the
Remarketing Date, quoted in writing to the Remarketing Dealer by such Reference
Treasury Dealer by 3:30 p.m., New York City time, on the Determination Date.
"Reference Treasury Dealer" means a primary U.S. Government securities
dealer in The City of New York (which may include the Remarketing Dealer)
selected by the Remarketing Dealer.
5. Repurchase. If the Remarketing Dealer does not purchase all of the
Securities on the Remarketing Date, then holders will be required to tender, and
the Company shall repurchase, on the Remarketing Date, at a price equal to one
hundred percent (100%) of the principal amount of the Securities plus all
accrued interest, if any, on the Securities to (but excluding) the Remarketing
Date, all Securities that have not been purchased by the Remarketing Dealer on
the Remarketing Date.
6. Redemption. If the Remarketing Dealer has elected to remarket the
Securities on the Remarketing Date, the Company shall have the right to redeem
the Securities, in whole but not in part, from the Remarketing Dealer on the
Remarketing Date at a redemption price equal to the greater of (i) one hundred
percent (100%) of the aggregate principal amount of the Securities and (ii) the
Dollar Price, by giving written notice of such redemption to the Remarketing
Dealer
(x) no later than the Business Day immediately prior to the
Determination Date, or
(y) if fewer than three Reference Corporate Dealers submit firm,
committed bids for all outstanding Securities to the Remarketing Dealer on
the Determination Date in accordance with Section 4 of this Security,
immediately after the deadline set by the Remarketing Dealer for receiving
such bids has passed.
In either such case, the Company shall pay such redemption price for the
Securities in same-day funds by wire transfer on the Remarketing Date to an
account designated by the Remarketing Dealer.
7. Optional Redemption After the Remarketing Date. After the Remarketing
Date, if the Remarketing Dealer has elected to remarket the Securities on the
Remarketing Date, the Securities will be redeemable (a "Post-Remarketing
Redemption"), in whole or in part, at the
7
<PAGE>
option of the Company at any time at a redemption price equal to the greater of
(i) one hundred percent (100%) of the principal amount of such Securities or
(ii) the sum of the present values of the remaining scheduled payments of
principal and interest thereon (not including the portion of any such payments
of interest accrued as of the redemption date) discounted to the redemption date
on a semiannual basis (assuming a 360-day year consisting of twelve 30-day
months) at the Adjusted Treasury Rate (as defined below) (determined on the
third Business Day preceding such redemption date), plus, in each case, accrued
and unpaid interest thereon to (but excluding) the redemption date.
Notice of any Post-Remarketing Redemption will be mailed at least thirty (30)
days but not more than sixty (60) days before the redemption date to each holder
of the Securities to be redeemed. Unless the Company defaults in payment of the
redemption price, on and after the redemption date, interest will cease to
accrue on the Securities or portions thereof called in connection with a Post-
Remarketing Redemption.
"Adjusted Treasury Rate" means (i) the arithmetic mean of the yields under the
heading "Week Ending" published in the Statistical Release most recently
published prior to the date of determination under the caption "Treasury
Constant Maturities" for the maturity (rounded to the nearest month)
corresponding to the remaining life to the maturity, as of the redemption date,
of the principal being redeemed, plus (ii) 0.20%. If no maturity set forth
under such heading exactly corresponds to the maturity of such principal, yields
for the two published maturities most closely corresponding to the maturity of
such principal shall be calculated pursuant to the immediately preceding
sentence, and the Adjusted Treasury Rate shall be interpolated or extrapolated
from such yields on a straight-line basis, rounding in each of the relevant
periods to the nearest month.
"Statistical Release" means the statistical release designated "H.15(519)" or
any successor publication which is published weekly by the Federal Reserve
System and which establishes yields on actively-traded United States government
securities adjusted to constant maturities, or, if such statistical release is
not published at the time of any determination under the terms of the
Securities, then such other reasonably comparable index which shall be
designated by the Company.
8. Covenants. The Indenture restricts the Company's ability to merge,
consolidate or sell substantially all of its assets. In addition, if at any
time the Company or any of its subsidiaries mortgages, pledges or otherwise
subjects to or permits to exist any Lien (defined below) on the whole or any
part of any property or assets now owned or hereafter acquired by it, except as
hereinafter provided, the Company will (or will cause such subsidiary to) secure
the outstanding Securities, and, if the Company elects, any other obligations of
the Company ranking on a parity with the Securities, equally and ratably with
the indebtedness or obligations secured by such mortgage, pledge or other Lien,
for as long as any such indebtedness or obligation is so secured. The foregoing
covenant does not apply to (a) the creation, extension, renewal or refunding of
purchase-money mortgages or liens, (b) landlords' liens, (c) liens with respect
to the sale or financing of accounts or chattel paper, (d) liens to which any
property or asset acquired by the Company or such subsidiary is subject as of
the date of its acquisition, (e) the making of any deposit or pledge to secure
public or statutory obligations or with any governmental agency at any time
required by law in order to qualify the Company or such subsidiary to conduct
its business or any part thereof or in order to entitle it to maintain self-
insurance or to obtain the benefits of any law relating to worker's
compensation, unemployment insurance, old age pensions or other social security,
or with any court, board commission, or governmental agency as security incident
to the proper conduct of any proceeding before it, or (f) other Liens not
otherwise permitted securing obligations in an aggregate amount not to exceed
Twenty-Five Million and 00/100 Dollars ($25,000,000.00).
"Lien" means any lien, mortgage, pledge, security interest, charge, or
encumbrance of any kind (including any conditional sale or title retention
agreement or any lease in the nature thereof, any capital lease obligation and
any sale and lease back transaction) and any agreement to give or
8
<PAGE>
refrain from any lien, mortgage, pledge, security interest, charge, or other
encumbrance of any kind.
9. Defeasance. The Indenture contains provisions for defeasance at any time of
(a) the entire indebtedness of the Company on this Security and (b) certain
restrictive covenants and the related defaults and Events of Default applicable
to the Company, in each case, upon compliance by the Company with certain
conditions set forth in the Indenture, which provisions apply to this Security.
10. Effect of Event of Default. If any Event of Default with respect to
Securities shall occur and be continuing, the principal of the Securities may be
declared due and payable in the manner and with the effect provided in the
Indenture.
11. Tax Treatment; Agreement to Tender. The Company and the holders of this
Security (and each holder of a beneficial interest herein) by accepting this
Security, agree to treat the Securities as fixed rate debt instruments that
mature on the Remarketing Date for United States Federal income tax purposes.
Furthermore, each holder of this Security (and each holder of a beneficial
interest herein) irrevocably agrees that this Security shall automatically be
tendered on the Remarketing Date (a) to the Remarketing Dealer if the
Remarketing Dealer elects to remarket the Securities on the terms and conditions
set forth herein or (b) to the Company if the Remarketing Dealer does not
remarket the Securities on the terms and conditions set forth herein.
12. Sinking Fund. The Securities do not have the benefit of any sinking fund
obligation.
13. Limitation on Remedies. As provided in and subject to the provisions of
the Indenture, the Holder of this Security shall not have the right to institute
any proceeding with respect to the Indenture or for the appointment of a
receiver or trustee or for any other remedy hereunder, unless (i) such Holder
shall have previously given written notice to the Trustee of a continuing Event
of Default with respect to the Securities, (ii) the Holders of not less than
twenty-five percent (25%) in principal amount of the Securities at the time
Outstanding shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default as Trustee, (iii) such Holder or
Holders have offered reasonable indemnity to the Trustee against the costs,
expenses (including expenses of counsel) and liabilities to be incurred in
compliance with such request, (iv) the Trustee shall have failed to institute
any such proceeding for sixty (60) days after its receipt of such notice,
request and offer of indemnity, and (v) the Trustee shall not have received from
the Holders of a majority in principal amount of Securities at the time
Outstanding a direction inconsistent with such request. The foregoing shall not
apply to any suit instituted by the Holder of this Security for the enforcement
of any payment of principal hereof (and premium, if any) or any interest thereon
on or after the respective due dates expressed herein.
14. Amendments and Waivers. The Indenture permits, with certain exceptions as
therein provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Debt Securities
of each series to be affected under the Indenture at any time by the Company and
the Trustee with the consent of the Holders of not less than a majority in
principal amount of the Debt Securities of each series at the time Outstanding
affected thereby. The Indenture also contains provisions permitting the Holders
of at least a majority in principal amount of the Debt Securities of each series
at the time Outstanding, on behalf of the Holders of all Debt Securities of such
series, to waive compliance by the Company with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holders of this Security shall be conclusive
and binding upon such Holder and upon all future Holders of this Security and of
any Security issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Security.
9
<PAGE>
15. Unconditional Obligation. No reference herein to the Indenture and no
provision of this Security or of the Indenture shall alter or impair the
obligation of the Company, which is absolute and unconditional, to pay the
principal of, premium, if any, on, and interest on this Security at the times,
place and rate, and in the coin or currency, herein prescribed.
16. Transfer; Denominations; etc.
(a) As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at
the office or agency of the Company in any Place of Payment where the
principal of, premium, if any, on, and interest on this Security are
payable, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar
duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereon one or more new Securities, of authorized
denominations and for the same aggregate principal amount, will be issued
to the designated transferee or transferees.
(b) The Securities are issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof. As provided in
the Indenture and subject to certain limitations therein set forth,
Securities are exchangeable for a like aggregate principal amount of
Securities of a different authorized denomination, as required by the
Holder surrendering the same.
(c) No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in
connection therewith. In no event shall the Company be required to pay any
Additional Amounts as contemplated by the Indenture.
(d) Prior to due presentment of this Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the owner hereof
for all purposes, whether or not this Security be overdue, and neither the
Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
17. No Liability of Certain Persons. No recourse under or upon any obligation,
covenant or agreement contained in the Indenture or in this Security, or because
of any indebtedness evidenced thereby or hereby, shall be had against any
promoter, as such or, against any past, present or future stockholder, partner,
officer or director, as such, of the Company or of any successor, either
directly or through the Company or any successor, under any rule of law, statute
or constitutional provision or by the enforcement of any assessment or by any
legal or equitable proceeding or otherwise, all such liability being expressly
waived and released by the acceptance of this Security by the Holder thereof and
as part of the consideration for the issue of the Securities.
18. Governing Law. The Indenture and the Debt Securities, including this
Security, shall be governed by and construed in accordance with the law of the
State of New York.
19. CUSIP Number. Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures, the Company has caused "CUSIP"
numbers to be printed on the Securities as a convenience to the Holders of such
Securities. No representation is made as to the correctness or accuracy of such
CUSIP numbers as printed on the Securities, and reliance may be placed only on
the other identification numbers printed hereon.
10
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COMM - as tenants in common UNIF GIFT MIN ACT -
TEN ENT - as tenants by the entities _______ Custodian ______
JT TEN - as joint tenants with right (Cust) (Minor)
of survivorship and not as Under Uniform Gifts to Minors
tenants in common Act _______________
(State)
Additional abbreviations may also be used though not in the above list.
_____________________________________________
Social Security or taxpayer I.D. or other identifying number of assignee.
______________________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
(name and address of assignee)
the within Security and all rights thereunder, hereby irrevocably constituting
and appointing ________________, attorney to transfer said Security on the books
kept for registration thereof, with full power of substitution in the premises.
Dated: _______________
-------------------------------
NOTICE: THE SIGNATURE(S) TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS
WRITTEN UPON THE FACE OF THE WITHIN INSTRUMENT IN EVERY PARTICULAR, WITHOUT
ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER. THE SIGNATURE(S) SHOULD BE
GUARANTEED BY A COMMERCIAL BANK OR TRUST COMPANY, A MEMBER ORGANIZATION OF A
NATIONAL STOCK EXCHANGE OR BY SUCH OTHER ENTITY WHOSE SIGNATURE IS ON FILE WITH
AND ACCEPTABLE TO THE TRANSFER AGENT.
11
<PAGE>
Exhibit 5.1
[Frontier Corporation Letterhead]
September 17, 1998
Frontier Corporation
Board of Directors
180 South Clinton Avenue
Rochester, New York 14646
Ladies and Gentlemen:
I am the Senior Vice President and General Counsel of Frontier Corporation,
a New York business corporation (the "Company"), and am delivering this opinion
letter in connection with (i) its registration statement on Form S-3 (the
"Registration Statement") declared effective by the Securities and Exchange
Commission on January 30, 1996 (File No. 33-64307) relating to the proposed
public offering of up to $500,000,000 in aggregate amount of one or more series
of (A) unsecured debt securities (the "Debt Securities"), (B) Class A Preferred
Stock, $100.00 par value (the "Class A Preferred Stock"), (C) Cumulative
Preferred Stock, $100.00 par value (the "Cumulative Preferred Stock"; the Class
A Preferred Stock and Cumulative Preferred Stock are hereinafter collectively
preferred to as the "Preferred Shares"); (D) common stock, $1.00 par value (the
"Common Shares"), or (E) warrants to purchase Common Shares (the "Securities
Warrants" and, together with the Debt Securities, Preferred Shares and Common
Shares, the "Securities"), all of which Securities may be offered and sold by
the Company from time to time as set forth in the prospectus which forms a part
of the Registration Statement (the "Prospectus"), and as to be set forth in one
or more supplements to the Prospectus (each, a "Prospectus Supplement"), and
(ii) that certain Prospectus Supplement (the "Debt Offering Prospectus
Supplement") relating to the offering of $200,000,000.00 of 6% Dealer
remarketable securitiesSM Notes due 2013 (the "Notes"). This opinion letter is
furnished to you at your request to enable you to fulfill the requirements of
Item 601(b)(5) of Regulation S-K, 17 C.F.R. 229.601(b)(5), in connection with
the Registration Statement, and is limited to the issuance of the Notes.
For purposes of this opinion letter, I have examined copies of the
following documents:
A. An executed copy of the Registration Statement;
B. The Debt Offering Prospectus Supplement;
C. A copy of the Officer's Certificate establishing the terms of the
Notes;
D. The Company's Amended and Restated Certificate of Incorporation, as
amended, as certified by the Secretary of the Company on the date
hereof as then being complete, accurate and in effect;
<PAGE>
Frontier Corporation
September 17, 1998
Page 2
E. The Bylaws of the Company, as certified by the Secretary of the
Company on the date hereof as then being complete, accurate and in
effect;
F. Resolutions of the Board of Directors of the Company adopted on
September 18, 1995, March 21, 1997, and August 24, 1998, as certified
by the Secretary of the Company on November 15, 1995, May 14, 1997,
and September 17, 1998, respectively, as then being complete, accurate
and in effect, relating to the filing of the Registration Statement,
the offering of the Notes, and related matters.
G. The Indenture, dated as of May 21, 1997, as supplemented by the First
Supplemental Indenture dated as of December 8, 1997, between the
Company and The Chase Manhattan Bank (the "Trustee"), as trustee (the
"Indenture").
The documents listed in items A-G above are collectively referred to as the
"Documents".
In rendering this opinion, I have assumed, without independent
verification, that: (i) all signatures are genuine; (ii) all Documents submitted
to me as originals are authentic; and (iii) all Documents submitted to me as
copies conform to the originals of such Documents. My review has been limited to
examining the Documents and applicable law.
Based upon, and subject to and limited by the foregoing, I am of the
opinion that, as of the date hereof, when the Notes have been (a) executed by
the Company as provided in the Indenture, (b) duly authenticated by the Trustee,
and (c) duly executed and delivered on behalf of the Company against payment
therefor as contemplated by the Debt Offering Prospectus Supplement, the Notes
will constitute binding obligations of the Company, enforceable in accordance
with their terms (subject, as to enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium or other laws affecting
creditors' rights from time to time in effect, and as may be limited by the
exercise of judicial discretion and the application of principles of equity,
including, without limitation, requirements of good faith, fair dealing,
conscionability and materiality).
To the extent that the obligations of the Company under the Indenture may
be dependent upon such matters, I have assumed for purposes of this opinion that
the Trustee is duly organized, validly existing and in good standing under the
laws of its jurisdiction of organization; that the Trustee is duly qualified to
engage in the activities contemplated by the Indenture; that the Indenture has
been duly authorized, executed and delivered by the Trustee and constitutes the
legally valid and binding obligation of the Trustee enforceable against the
Trustee in accordance with its terms; that the Trustee is in compliance, with
respect to acting as a trustee under the Indenture, with all applicable laws and
regulations; and that the Trustee has the requisite organizational and legal
power and authority to perform its obligations under the Indenture.
The opinion expressed above shall be understood to mean only that (i) if
there is a default in performance of an obligation, (ii) if a failure to pay or
other damage can be shown, and (iii) if the defaulting party can be brought into
a court which will hear the case and apply the governing law, then, subject to
the availability of defenses and to the exceptions set forth in the opinion, the
court will provide a money damage (or perhaps injunctive or specific
performance) remedy.
<PAGE>
Frontier Corporation
September 17, 1998
Page 3
I assume no obligation to advise you of any changes in the foregoing
subsequent to the delivery of this opinion letter.
I hereby consent to the filing of this opinion letter as Exhibit 5.1 to the
Company's Current Report on Form 8-K, and to the use of my name in the Debt
Offering Prospectus Supplement under the caption "LEGAL MATTERS".
Very truly yours,
/s/ Martin T. McCue
Martin T. McCue
Senior Vice President and General Counsel
<PAGE>
Exhibit 8.1
LAW OFFICES
JAFFE, RAITT, HEUER & WEISS
PROFESSIONAL CORPORATION
SUITE 2400
ONE WOODWARD AVENUE
DETROIT, MICHIGAN 48220 SOUTHFIELD
---------------
TELEPHONE (313) 961-8380
TELEFACSIMILE (313) 961-8358
September 18, 1998
Frontier Corporation
180 South Clinton Avenue
Rochester, New York 14646-7000
Re: Prospectus Supplement, dated September 16, 1998, for $200,000,000
of 6% Dealer remarketable securities/SM/ (the "Notes") of Frontier
Corporation, a New York corporation (the "Company")
Ladies and Gentlemen:
We have acted as counsel for the Company in connection with the issuance and
sale by the Company of $200,000,000 aggregate principal amount of the Notes. In
connection with the Prospectus Supplement to be filed by you on or about
September 18, 1998 with the Securities and Exchange Commission, you have
requested our opinion concerning the discussion in the Prospectus Supplement
under the heading "Certain United States Federal Income Tax Considerations".
In our capacity as special counsel to the Company, we have examined and relied
upon the following documents:
1. The registration statement of the Company on Form S-3, Registration
No. 33-64307 (the "Registration Statement"), and the Prospectus
constituting a part thereof, dated January 26, 1996, relating to the
issuance from time to time of up to $500,000,000 aggregate principal
amount of securities pursuant to Rule 415 promulgated under the
Securities Act of 1933, as amended (the "1933 Act"); and
2. The Prospectus Supplement, dated September 16, 1998, to the above-
referenced Prospectus relating to the Notes and filed with the
Securities and Exchange Commission pursuant to Rule 424 promulgated
under the 1933 Act (the "Prospectus Supplement").
You have requested our opinion regarding certain federal income tax matters in
connection with the offering of the Notes. The terms of the Notes are described
in the Prospectus Supplement.
We are of the opinion that the discussion in the Prospectus Supplement under
the heading "Certain United States Federal Income Tax Considerations" fairly
summarizes the material Federal income tax considerations discussed in it.
Other than as expressly stated above, we express no opinion on any issue
relating to the Company.
<PAGE>
JAFFE, RAITT, HEUER & WEISS
Frontier Corporation
September 18, 1998
Page 2
We hereby consent to the filing of this opinion as an exhibit on the Current
Report on Form 8-K to be filed by the Company with the Securities and Exchange
Commission on or about September 18, 1998.
Very truly yours,
JAFFE, RAITT, HEUER & WEISS
Professional Corporation
/s/ William E. Sider
William E. Sider
