Cox Communications, Inc. $500,000,000 6.75% Notes Due 2011 Purchase Agreement with Underwriters
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Summary
Cox Communications, Inc. has entered into an agreement with a group of underwriters, led by Banc of America Securities LLC and Merrill Lynch, to sell $500 million in 6.75% notes due in 2011. The agreement outlines the terms of the sale, the responsibilities of both Cox and the underwriters, and the process for public offering. It also covers representations, warranties, indemnification, and conditions for closing. The notes are issued under an indenture with The Bank of New York as trustee, and the offering is registered with the SEC.
EX-1.1 2 0002.txt PURCHASE AGREEMENT Exhibit 1.1 COX COMMUNICATIONS, INC. (a Delaware corporation) $500,000,000 6 3/4% Notes due 2011 PURCHASE AGREEMENT March 6, 2001 - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- Table of Contents SECTION 1. Representations and Warranties...........................2 (a) Representations and Warranties by the Company............2 (i) Compliance with Registration Requirements.......3 (ii) Incorporated Documents..........................3 (iii) Independent Accountants.........................4 (iv) Financial Statements............................4 (v) No Material Adverse Change in Business..........4 (vi) Good Standing of the Company....................4 (vii) Good Standing of Subsidiaries...................5 (viii) Capitalization..................................5 (ix) Authorization of Agreement......................5 (x) Authorization of the Indenture..................5 (xi) Authorization of Securities.....................5 (xii) Description of the Securities and the Indenture.6 (xiii) Absence of Defaults and Conflicts...............6 (xiv) Absence of Labor Dispute........................7 (xv) Absence of Proceedings..........................7 (xvi) Accuracy of Exhibits............................7 (xvii) Possession of Intellectual Property.............7 (xviii) Absence of Further Requirements.................7 (xix) Possession of Licenses and Permits..............8 (xx) Title to Property...............................8 (xxi) Investment Company Act..........................8 (xxii) Environmental Laws..............................8 (b) Officer's Certificates...................................9 SECTION 2. Sale and Delivery to Underwriters; Closing...............9 (a) Securities...............................................9 (b) Payment..................................................9 (c) Denominations; Registration.............................10 SECTION 3. Covenants of the Company................................10 (a) Compliance with Securities Regulations and Commission Requests.............................10 (b) Filing of Amendments....................................10 (c) Delivery of Registration Statements.....................10 (d) Delivery of Prospectus..................................11 (e) Continued Compliance with Securities Laws...............11 (f) Blue Sky Qualifications.................................11 (g) Rule 158................................................12 (h) Use of Proceeds.........................................12 (i) Restriction on Sale of Securities.......................12 (j) Reporting Requirements..................................12 SECTION 4. Payment of Expenses.....................................12 i (a) Expenses. .............................................12 (b) Termination of Agreement................................12 SECTION 5. Conditions of Underwriters' Obligations.................13 (a) Effectiveness of Registration Statement.................13 (b) Opinion of Counsel for Company..........................13 (c) Opinion of Counsel for Underwriters.....................13 (d) Officers' Certificate...................................13 (e) Accountants' Comfort Letters............................14 (f) Bring-down Comfort Letter...............................14 (g) Maintenance of Rating...................................14 (h) Additional Documents....................................14 (i) Termination of Agreement................................14 SECTION 6. Indemnification.........................................15 (a) Indemnification of Underwriters.........................15 (b) Indemnification of Company, Directors and Officers......16 (c) Actions against Parties; Notification...................16 (d) Settlement without Consent if Failure to Reimburse......17 SECTION 7. Contribution............................................17 SECTION 8. Representations, Warranties and Agreements to Survive Delivery.................................................18 SECTION 9. Termination of Agreement................................18 (a) Termination; General....................................18 (b) Liabilities.............................................19 SECTION 10. Default by One of the Underwriters......................19 SECTION 11. Notices.................................................19 SECTION 12. Parties.................................................20 SECTION 13. Governing Law and Time..................................20 SECTION 14. Effect of Headings. ....................................20 SECTION 15. Counterparts............................................20 ii SCHEDULES Schedule A - List of Underwriters.................................Sch A Schedule B - Pricing Information..................................Sch B Schedule C - List of Subsidiaries.................................Sch C EXHIBITS Exhibit A - Form of Opinion of Company's Counsel....................A-1 iii COX COMMUNICATIONS, INC. (a Delaware corporation) $500,000,000 6 3/4% Notes due 2011 PURCHASE AGREEMENT March 6, 2001 Banc of America Securities LLC Merrill Lynch, Pierce, Fenner & Smith Incorporated Banc One Capital Markets, Inc. Mizuho International plc SunTrust Equitable Securities Corporation Wachovia Securities, Inc. c/o Banc of America Securities LLC Banc of America Corporate Center 100 North Tryon Street Charlotte, North Carolina 28255 and Merrill Lynch, Pierce, Fenner & Smith Incorporated 4 World Financial Center New York, New York 10080 Ladies and Gentlemen: Cox Communications, Inc., a Delaware corporation (the "Company"), confirms its agreement with Banc of America Securities LLC ("Banc of America"), Merrill Lynch, Pierce, Fenner & Smith Incorporated ("Merrill Lynch"), Banc One Capital Markets, Inc., Mizuho International plc, SunTrust Equitable Securities Corporation and Wachovia Securities, Inc. (collectively, the "Underwriters," which term shall also include any underwriter substituted as hereinafter provided in Section 10 hereof) for whom Banc of America and Merrill Lynch are acting as representatives (in such capacity, the "Representatives"), with respect to the issue and sale by the Company and the purchase by the Underwriters, acting severally and not jointly, of the respective principal amounts set forth in Schedule A hereto opposite the name of such Underwriter of $500,000,000 aggregate principal amount of the Company's 6 3/4% Notes due 2011 (the "Securities"). The Securities are to be issued pursuant to an indenture, dated as of June 27, 1995 (the "Indenture"), between the Company and The Bank of New York, as trustee (the "Trustee"). The Company understands that the Underwriters propose to make a public offering of the Securities as soon as the Underwriters deem advisable after this Agreement has been executed and delivered. The Company has filed with the Securities and Exchange Commission (the "Commission") a registration statement on Form S-3 (No. 333-54450) for the registration of certain securities, including the Securities, under the Securities Act of 1933, as amended (the "1933 Act"), including the related prospectus, and the offering thereof from time to time in accordance with Rule 415 of the rules and regulations of the Commission under the 1933 Act (the "1933 Act Regulations"). Such registration statement has been declared effective by the Commission, and the Indenture has been duly qualified under the Trust Indenture Act of 1939, as amended (the "1939 Act"). Such registration statement, including the exhibits and schedules thereto, if any, in the form in which it became effective, is herein called the "Registration Statement"; and the final base prospectus contained in the Registration Statement and the final prospectus supplement relating to the offering of the Securities, in the form first furnished to the Underwriters by the Company for use in connection with the offering of the Securities, are collectively referred to herein as the "Prospectus"; provided, however, that all references to the "Registration Statement" and the "Prospectus" shall also be deemed to include all documents incorporated therein by reference pursuant to the Securities Exchange Act of 1934, as amended (the "1934 Act"), prior to the execution and delivery of this Agreement; and provided, further, that if the Company files a registration statement with the Commission pursuant to Section 462(b) of the 1933 Act Regulations (the "Rule 462(b) Registration Statement"), then after such filing, all references to "Registration Statement" shall also be deemed to include the Rule 462(b) Registration Statement. For purposes of this Agreement, all references to the Registration Statement, the Prospectus or any amendment or supplement to any of the foregoing shall be deemed to include the copy filed with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval system ("EDGAR"). All references in this Agreement to financial statements and schedules and other information which is "contained," "included" or "stated" in the Registration Statement, any preliminary prospectus or the Prospectus (or other references of like import) shall be deemed to mean and include all such financial statements and schedules and other information which is incorporated by reference in the Registration Statement or the Prospectus, as the case may be; and all references in this Agreement to amendments or supplements to the Registration Statement or the Prospectus shall be deemed to mean and include the filing of any document under the 1934 Act which is incorporated by reference in the Registration Statement or the Prospectus, as the case may be. SECTION 1. Representations and Warranties. (a) Representations and Warranties by the Company. The Company represents and warrants to the Underwriters as of the date hereof and as of the Closing Time (as defined in Section 2(b) hereof) (in each case, a "Representation Date"), and agrees with the Underwriters, as follows: 2 (i) Compliance with Registration Requirements.The Company meets the requirements for use of Form S-3 under the 1933 Act. Each of the Registration Statement and any Rule 462(b) Registration Statement has become effective under the 1933 Act and no stop order suspending the effectiveness of the Registration Statement or any Rule 462(b) Registration Statement has been issued under the 1933 Act and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the Company, are contemplated by the Commission, and any request on the part of the Commission for additional information has been complied with. At the respective times the Registration Statement, any Rule 462(b) Registration Statement and any post-effective amendments thereto became effective and at each Representation Date, the Registration Statement, the Rule 462(b) Registration Statement and any amendments thereto complied and will comply in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations and the 1939 Act and the rules and regulations of the Commission under the 1939 Act (the "1939 Act Regulations"), and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. Neither the Prospectus nor any amendments or supplements thereto, at the time the Prospectus or any amendments or supplements thereto were issued and at the Closing Time, included or will include an untrue statement of a material fact or omitted or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The representations and warranties in this subsection shall not apply to statements in or omissions from the Registration Statement (or any amendment thereto) or the Prospectus (or any amendment or supplement thereto) made in reliance upon and in conformity with information furnished to the Company in writing by any Underwriter expressly for use in the Registration Statement (or such amendment thereto) or the Prospectus (or such amendment or supplement thereto). The prospectus filed as part of the Registration Statement as originally filed or as part of any amendment thereto, or filed pursuant to Rule 424 under the 1933 Act, complied when so filed in all material respects with the 1933 Act Regulations and the Prospectus delivered to the Underwriters for use in connection with this offering was identical in all material respects to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T. (ii) Incorporated Documents. The documents incorporated or deemed to be incorporated by reference in the Registration Statement and the Prospectus, when they became effective or at the time they were or hereafter are filed with the Commission, complied and will comply in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations or the 1934 Act and the rules and regulations of the Commission thereunder (the "1934 Act Regulations"), as applicable, and, when read together with the other information in the Prospectus, at the time the Registration Statement became effective, at the time the Prospectus was issued and at Closing Time, did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. 3 (iii) Independent Accountants. The accountants who certified the financial statements and supporting schedules of the Company and its subsidiaries and of TCA Cable TV, Inc. ("TCA") and its subsidiaries included in the Registration Statement and the Prospectus are independent public accountants with respect to the Company and its subsidiaries as required by the 1933 Act and the 1933 Act Regulations. (iv) Financial Statements. The financial statements of the Company included in the Registration Statement and the Prospectus, together with the related schedules and notes, present fairly the financial position of the Company and its consolidated subsidiaries at the dates indicated and the statement of operations, stockholders' equity and cash flows of the Company and its consolidated subsidiaries for the periods specified; said financial statements have been prepared in conformity with generally accepted accounting principles ("GAAP") applied on a consistent basis throughout the periods involved. The financial statements of TCA included in the Registration Statement and the Prospectus, together with the related schedules and notes, present fairly the financial position of TCA and its consolidated subsidiaries at the date indicated and the statement of operations, stockholders' equity and cash flows of TCA and its subsidiaries for the period specified; said financial statements have been prepared in conformity with GAAP. The supporting schedules, if any, included in the Registration Statement and the Prospectus present fairly in accordance with GAAP the information required to be stated therein. The pro forma financial statements of the Company and its consolidated subsidiaries and the related notes thereto included in the Registration Statement and the Prospectus present fairly the information shown therein, have been prepared in accordance with the Commission's rules and guidelines with respect to pro forma financial statements and have been properly compiled on the bases described therein, and the assumptions used in the preparation thereof are reasonable and the adjustments used therein are appropriate to give effect to the transactions and circumstances referred to therein. (v) No Material Adverse Change in Business. Since the respective dates as of which information is given in the Registration Statement and the Prospectus, except as otherwise stated therein, (A) there has been no material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business (a "Material Adverse Effect"), (B) there have been no transactions entered into by the Company or any of its subsidiaries, other than those in the ordinary course of business, which are material with respect to the Company and its subsidiaries considered as one enterprise and (C) there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock. (vi) Good Standing of the Company. The Company has been duly organized and is validly existing as a corporation in good standing under the laws of the State of Delaware and has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus and to enter into and perform its obligations under this Agreement; and the Company is duly qualified as a foreign corporation to transact business and is in good standing in each other jurisdiction in which such qualification is 4 required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure so to qualify or to be in good standing would not result in a Material Adverse Effect. (vii) Good Standing of Subsidiaries. Each "significant subsidiary" of the Company (as such term is defined in Rule 1-02 of Regulation S-X) (each a "Subsidiary" and, collectively, the "Subsidiaries") has been duly organized and is validly existing as a corporation or limited liability company in good standing under the laws of the jurisdiction of its incorporation or organization, as the case may be, has corporate or other power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus and is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure so to qualify or to be in good standing would not result in a Material Adverse Effect; except as otherwise disclosed in the Registration Statement, all of the issued and outstanding capital stock of each such Subsidiary owned by the Company, directly or through subsidiaries, has been duly authorized and validly issued, is fully paid and non-assessable and is owned free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity; and none of the outstanding shares of capital stock of any Subsidiary was issued in violation of the preemptive or similar rights of any securityholder or such Subsidiary. The only subsidiaries of the Company are (a) the subsidiaries listed on Schedule C hereto and (b) certain other subsidiaries which, considered in the aggregate as a single Subsidiary, do not constitute a "significant subsidiary" as defined in Rule 1-02 of Regulation S-X. (viii) Capitalization. The shares of outstanding capital stock of the Company have been duly authorized and validly issued and are fully paid and non-assessable; and none of the outstanding shares of capital stock of the Company was issued in violation of the preemptive or other similar rights of any securityholder of the Company. (ix) Authorization of Agreement. This Agreement has been duly authorized, executed and delivered by the Company. (x) Authorization of the Indenture. The Indenture has been duly authorized, executed and delivered by the Company and, assuming due authorization, execution and delivery by the Trustee, constitutes a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, except as the enforcement thereof may be limited by bankruptcy, insolvency (including, without limitation, all laws relating to fraudulent transfers), reorganization, moratorium or similar laws affecting enforcement of creditors' rights generally and except as enforcement thereof is subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law). The Indenture has been duly qualified under the 1939 Act. (xi) Authorization of Securities. The Securities have been duly authorized by the Company for issuance and sale and, at the Closing Time, will have been duly executed by the Company and, when authenticated, issued and delivered in the manner provided for in the Indenture and delivered 5 against payment of the purchase price therefor as provided in this Agreement, will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, except as the enforcement thereof may be limited by bankruptcy, insolvency (including, without limitation, all laws relating to fraudulent transfers), reorganization, moratorium or similar laws affecting enforcement of creditors' rights generally and except as enforcement thereof is subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law). The Securities will be in the form contemplated by, and each registered holder thereof will be entitled to the benefits of, the Indenture. (xii) Description of the Securities and the Indenture. The Securities and the Indenture, as of each Representation Date, conform and will conform, as applicable, in all material respects to the respective statements relating thereto contained in the Prospectus and will be in substantially the respective forms filed or incorporated by reference, as the case may be, as exhibits to the Registration Statement. (xiii) Absence of Defaults and Conflicts. Neither the Company nor any of its subsidiaries is in violation of its charter or by-laws or other constitutive documents or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any of its subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company or any of its subsidiaries is subject (collectively, "Agreements and Instruments") except for such defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance by the Company of this Agreement, the Indenture and the Securities and the consummation of the transactions contemplated in this Agreement and in the Registration Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Prospectus under the caption "Use of Proceeds") and compliance by the Company with its obligations under this Agreement, the Indenture and the Securities do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of its subsidiaries pursuant to, the Agreements and Instruments (except for such conflicts, breaches or defaults or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the charter or by-laws or other constitutive documents of the Company or any of its subsidiaries or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any of its subsidiaries or any of their assets, properties or operations. As used herein, a "Repayment Event" means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its subsidiaries. 6 (xiv) Absence of Labor Dispute. No labor dispute with the employees of the Company or any of its subsidiaries exists or, to the knowledge of the Company, is imminent which, individually or in the aggregate, may reasonably be expected to result in a Material Adverse Effect. (xv) Absence of Proceedings. There is no action, suit, proceeding, inquiry or investigation before or brought by any court or governmental agency or body, domestic or foreign, now pending, or, to the knowledge of the Company, threatened, against or affecting the Company or any of its subsidiaries, which is required to be disclosed in the Registration Statement (other than as disclosed therein), or which, individually or in the aggregate, might reasonably be expected to result in a Material Adverse Effect, or which, individually or in the aggregate, might reasonably be expected to materially and adversely affect the properties or assets thereof or the consummation of the transactions contemplated in this Agreement or the performance by the Company of its obligations hereunder or thereunder; the aggregate of all pending legal or governmental proceedings to which the Company or any of its subsidiaries is a party or of which any of their respective property or assets is the subject which are not described in the Registration Statement, including ordinary routine litigation incidental to the business, could not reasonably be expected to result in a Material Adverse Effect. (xvi) Accuracy of Exhibits. There are no contracts or documents which are required to be described in the Registration Statement, the Prospectus or the documents incorporated by reference therein or to be filed as exhibits thereto which have not been so described and filed as required. (xvii) Possession of Intellectual Property. Except as disclosed in the Prospectus, the Company and its subsidiaries own or possess, or can acquire on reasonable terms, adequate patents, patent rights, licenses, inventions, copyrights, know-how (including trade secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures), trademarks, service marks, trade names or other intellectual property (collectively, "Intellectual Property") necessary to carry on the business now operated by them, other than those the absence of which would not have a Material Adverse Effect, and neither the Company nor any of its subsidiaries has received any notice or is otherwise aware of any infringement of or conflict with asserted rights of others with respect to any Intellectual Property or of any facts or circumstances which would render any Intellectual Property invalid or inadequate to protect the interest of the Company or any of its subsidiaries therein, and which infringement or conflict (if the subject of any unfavorable decision, ruling or finding) or invalidity or inadequacy, singly or in the aggregate, would result in a Material Adverse Effect. (xviii) Absence of Further Requirements. No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Company of its obligations hereunder, in connection with the offering, issuance or sale of the Securities under this Agreement or the consummation of the transactions contemplated by this Agreement or for the due execution, delivery or performance of the Indenture by the Company, except such as have been already obtained or as may be required under the 1933 Act or the 1933 Act 7 Regulations or state securities laws, the laws of a foreign jurisdiction or the by-laws and rules of the NASD and except for the qualification of the Indenture under the 1939 Act. (xix) Possession of Licenses and Permits. The Company and its subsidiaries possess such permits, licenses, approvals, consents and other authorizations (collectively, "Governmental Licenses") issued by the appropriate federal, state, local or foreign regulatory agencies or bodies necessary to conduct the business now operated by them other than those the absence of which would not have a Material Adverse Effect; the Company and its subsidiaries are in compliance with the terms and conditions of all such Governmental Licenses, except where the failure so to comply would not, singly or in the aggregate, have a Material Adverse Effect; all of the Governmental Licenses are valid and in full force and effect, except when the invalidity of such Governmental Licenses or the failure of such Governmental Licenses to be in full force and effect would not have a Material Adverse Effect; and neither the Company nor any of its subsidiaries has received any notice of proceedings relating to the revocation or modification of any such Governmental Licenses which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would result in a Material Adverse Effect. (xx) Title to Property. The Company and its subsidiaries have good and marketable title to all material real property owned by the Company and its subsidiaries and good title to all other properties owned by them, in each case, free and clear of all mortgages, pledges, liens, security interests, claims, restrictions or encumbrances of any kind except such as (a) are described in the Prospectus or (b) do not, singly or in the aggregate, materially affect the value of such property and do not interfere with the use made and proposed to be made of such property by the Company or any of its subsidiaries; and all of the leases and subleases material to the business of the Company and its subsidiaries, considered as one enterprise, and under which the Company or any of its subsidiaries holds properties described in the Prospectus, are in full force and effect, and neither the Company nor any subsidiary has any notice of any material claim of any sort that has been asserted by anyone adverse to the rights of the Company or any subsidiary under any of the leases or subleases mentioned above, or affecting or questioning the rights of the Company or such subsidiary to the continued possession of the leased or subleased premises under any such lease or sublease. (xxi) Investment Company Act. The Company is not, and upon the issuance and sale of the Securities as herein contemplated and the application of the net proceeds therefrom as described in the Prospectus will not be, an "investment company" as such term is defined in the Investment Company Act of 1940, as amended (the "1940 Act"). (xxii) Environmental Laws. Except as described in the Registration Statement and except as would not, singly or in the aggregate, result in a Material Adverse Effect, (A) neither the Company nor any of its subsidiaries is in violation of any federal, state, local or foreign statute, law, rule, regulation, ordinance, code, policy or rule of common law or any judicial or administrative interpretation thereof, including any judicial or administrative order, consent, decree or judgment, relating to pollution or protection of human health, the environment (including, without limitation, ambient air, surface water, groundwater, land surface 8 or subsurface strata) or wildlife, including, without limitation, laws and regulations relating to the release or threatened release of chemicals, pollutants, contaminants, wastes, toxic substances, hazardous substances, petroleum or petroleum products (collectively, "Hazardous Materials") or to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous Materials (collectively, "Environmental Laws"), (B) the Company and its subsidiaries have all permits, authorizations and approvals required under any applicable Environmental Laws and are each in compliance with their requirements, (C) there are no pending or threatened administrative, regulatory or judicial actions, suits, demands, demand letters, claims, liens, notices of noncompliance or violation, investigation or proceedings relating to any Environmental Law against the Company or any of its subsidiaries and (D) there are no events or circumstances that might reasonably be expected to form the basis of an order for clean-up or remediation, or an action, suit or proceeding by any private party or governmental body or agency, against or affecting the Company or any of its subsidiaries relating to Hazardous Materials or any Environmental Laws. (b) Officer's Certificates. Any certificate signed by any officer of the Company delivered to the Underwriters or to counsel for the Underwriters in connection with the offering of the Securities shall be deemed a representation and warranty by the Company to the Underwriters as to the matters covered thereby. SECTION 2. Sale and Delivery to Underwriter; Closing. (a) Securities. On the basis of the representations, warranties and agreements herein contained and subject to the terms and conditions herein set forth, the Company agrees to sell to the Underwriters, and the Underwriters agree to purchase from the Company, at the price per Security set forth in Schedule B, the aggregate principal amount of Securities set forth in Schedule A opposite the name of such Underwriter, plus any additional principal amount of Securities which such Underwriter may become obligated to purchase pursuant to the provisions of Section 10 hereof. (b) Payment. Payment of the purchase price for, and delivery of certificates for, the Securities shall be made at the offices of Brown & Wood LLP, or at such other place as shall be agreed upon by the Representatives and the Company, at 9:00 A.M. (Eastern time) on the third business day after the date hereof, or such other time not later than ten business days after such date as shall be agreed upon by the Representatives and the Company (such time and date of payment and delivery being herein called "Closing Time"). Payment shall be made to the Company by wire transfer of immediately available funds to a bank account designated by the Company, against delivery to the Underwriters of certificates for the Securities to be purchased by them. It is understood that each Underwriter has authorized Merrill Lynch, for its account, to accept delivery of, receipt for, and make payment of the purchase price for, the Securities which it has severally agreed to purchase. Merrill Lynch, individually and not as representative of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Securities to be purchased by any Underwriter whose funds have not been received by the Closing Time, but such payment shall not relieve such Underwriter from its obligations hereunder. 9 (c) Denominations; Registration. Certificates for the Securities shall be in such denominations and registered in such names as the Underwriters may request in writing at least one full business day before the Closing Time. The Securities will be made available for examination and packaging by the Underwriters in The City of New York not later than 10:00 A.M. (Eastern time) on the business day prior to the Closing Time. SECTION 3. Covenants of the Company. The Company covenants with the Underwriters as follows: (a) Compliance with Securities Regulations and Commission Requests. Subject to Section 3(b), the Company will notify the Underwriters immediately, and confirm the notice in writing, (i) when any post-effective amendment to the Registration Statement shall become effective, or any supplement to the Prospectus or any amended Prospectus shall have been filed, (ii) of the receipt of any comments from the Commission, (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes. The Company will promptly effect the filings necessary pursuant to Rule 424(b) and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) was received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus. The Company will use its reasonable best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment. (b) Filing of Amendments. The Company will give the Underwriters notice of its intention to file or prepare any amendment to the Registration Statement (including any filing under Rule 462(b)) or any amendment, supplement or revision to either the prospectus included in the Registration Statement at the time it became effective or to the Prospectus, whether pursuant to the 1933 Act, the 1934 Act or otherwise, will furnish the Underwriters with copies of any such documents a reasonable amount of time prior to such proposed filing or use, as the case may be, and will not file or use any such document to which the Underwriters or counsel for the Underwriters shall object in writing within three business days of receipt. (c) Delivery of Registration Statements. The Company has furnished or will deliver to the Underwriters and counsel for the Underwriters, without charge, signed copies of the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein) and signed copies of all consents and certificates of experts, and will also deliver to the Underwriters, without 10 charge, a conformed copy of the Registration Statement as originally filed and of each amendment thereto (without exhibits). The copies of the Registration Statement and each amendment thereto furnished to the Underwriters will be identical in all material respects to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T. (d) Delivery of Prospectus. The Company will furnish to the Underwriters, without charge, during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act, such number of copies of the Prospectus (as amended or supplemented) as the Underwriters may reasonably request. The Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical in all material respects to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T. (e) Continued Compliance with Securities Laws. The Company will comply with the 1933 Act and the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations and the 1939 Act and the 1939 Act Regulations so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and in the Prospectus. If at any time when a prospectus is required by the 1933 Act to be delivered in connection with sales of the Securities any event shall occur or condition shall exist as a result of which it is necessary, in the opinion of counsel for the Underwriters or counsel for the Company, to amend the Registration Statement or amend or supplement the Prospectus in order that the Prospectus will not include any untrue statements of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, or if it shall be necessary, in the opinion of any such counsel, at any such time to amend the Registration Statement or amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and file with the Commission, subject to Section 3(b), such amendment or supplement as may be necessary to correct such statement or omission or to make the Registration Statement or the Prospectus comply with such requirements, and the Company will furnish to the Underwriters, without charge, such number of copies of such amendment or supplement as the Underwriters may reasonably request. (f) Blue Sky Qualifications. The Company will use its reasonable best efforts, in cooperation with the Underwriters, to qualify the Securities for offering and sale under the applicable securities laws of such states and other jurisdictions as the Underwriters may designate and to maintain such qualifications in effect for a period of not less than one year from the date of this Agreement; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject. In each jurisdiction in which the Securities have been so qualified, the Company will file such statements and reports as may be required by the laws of such jurisdiction to continue such qualification in effect for a period of not less than one year from the date of this Agreement. The Company will also supply the Underwriters with such information as is necessary for the determination of the legality of the Securities for investment under the laws of such jurisdictions as the Underwriters may request. 11 (g) Rule 158. The Company will timely file such reports pursuant to the 1934 Act as are necessary in order to make generally available to its securityholders as soon as practicable an earnings statement for the purposes of, and to provide the benefits contemplated by, the last paragraph of Section 11(a) of the 1933 Act. (h) Use of Proceeds. The Company will use the net proceeds received by it from the sale of the Securities in the manner specified in the Prospectus under "Use of Proceeds." (i) Restriction on Sale of Securities. During a period of 45 days from the date of this Agreement, the Company will not, without the prior written consent of Banc of America and Merrill Lynch, directly or indirectly, issue, sell, offer or agree to sell, grant any option for the sale of, or otherwise dispose of, any other debt securities of the Company or securities of the Company that are convertible into, or exchangeable for, the Securities or such other debt securities. (j) Reporting Requirements. The Company, during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act, will file all documents required to be filed with the Commission pursuant to the 1934 Act within the time periods required by the 1934 Act and the 1934 Act Regulations. SECTION 4. Payment of Expenses. (a) Expenses. The Company will pay all expenses incident to the performance of its obligations under this Agreement, including (i) the preparation, printing and filing of the Registration Statement (including financial statements and exhibits) as originally filed and of each amendment thereto, (ii) the preparation, printing and delivery to the Underwriters of this Agreement, the Indenture and such other documents as may be required in connection with the offering, purchase, sale, issuance or delivery of the Securities, (iii) the preparation, issuance and delivery of the Securities to the Underwriters, (iv) the fees and disbursements of the Company's counsel, accountants and other advisors, (v) the qualification of the Securities under securities laws in accordance with the provisions of Section 3(f) hereof, including filing fees and the reasonable fees and disbursements of counsel for the Underwriters in connection therewith and in connection with the preparation of the Blue Sky Survey and any supplement thereto, (vi) the printing and delivery to the Underwriters of copies of the Prospectus and any amendments or supplements thereto, (vii) the preparation, printing and delivery to the Underwriters of copies of the Blue Sky Survey and any supplement thereto, (viii) the fees and expenses of the Trustee, including the fees and disbursements of counsel for the Trustee in connection with the Indenture and the Securities and (ix) any fees payable in connection with the rating of the Securities. (b) Termination of Agreement. If this Agreement is terminated by the Underwriters in accordance with the provisions of Section 5 or Section 12 9(a)(i) hereof, the Company shall reimburse the Underwriters for all of their out-of-pocket expenses, including the reasonable fees and disbursements of counsel for the Underwriters. SECTION 5. Conditions of Underwriters' Obligations. The obligations of the Underwriters to purchase and pay for the Securities pursuant to this Agreement are subject to the accuracy of the representations and warranties of the Company contained in Section 1 hereof or in certificates of any officer of the Company or any subsidiary of the Company delivered pursuant to the provisions hereof, to the performance by the Company of its covenants and other obligations hereunder, and to the following further conditions: (a) Effectiveness of Registration Statement. The Registration Statement, including any Rule 462(b) Registration Statement, has become effective and at Closing Time no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated or threatened by the Commission, and any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of counsel to the Underwriters. A prospectus containing information relating to the description of the Securities, the specific method of distribution and similar matters shall have been filed with the Commission in accordance with Rule 424(b) (or a post-effective amendment providing such information shall have been filed and declared effective in accordance with the requirements of Rule 430A). (b) Opinion of Counsel for Company. At Closing Time, the Underwriters shall have received the favorable opinion, dated as of Closing Time, of Dow, Lohnes & Albertson, PLLC, counsel for the Company, in form and substance satisfactory to counsel for the Underwriters, to the effect set forth in Exhibit A hereto. (c) Opinion of Counsel for Underwriters. At Closing Time, the Underwriters shall have received the favorable opinion, dated as of Closing Time, of Brown & Wood LLP, counsel for the Underwriters, in form and substance satisfactory to the Underwriters with respect to the issuance and sale of the Securities and other related matters as the Underwriters may reasonably require. Such counsel may state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company and its subsidiaries and certificates of public officials. (d) Officers' Certificate. At Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Prospectus, any material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business, and the Underwriters shall have received a certificate of the President or a Vice President of the Company and of the chief financial officer, chief accounting officer or the Treasurer of the Company, dated as of Closing Time, to the effect that (i) there has been no such material adverse change, (ii) the representations and warranties in Section 1(a) hereof are true and correct with the same force and effect as though expressly made at and as of Closing Time, (iii) the Company has complied with all agreements 13 and satisfied all conditions on its part to be performed or satisfied at or prior to Closing Time and (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or are contemplated by the Commission. (e) Accountants' Comfort Letters. At the date hereof, the Underwriters shall have received letters from Deloitte & Touche LLP, in relation to the Company, and KPMG LLP, in relation to TCA, each dated such date, in form and substance satisfactory to the Underwriters, containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Prospectus. (f) Bring-down Comfort Letter. At Closing Time, the Underwriters shall have received from Deloitte & Touche LLP a letter, dated as of Closing Time, to the effect that it reaffirms the statements made in the letter furnished pursuant to subsection (e) of this Section, except that the "specified date" referred to shall be a date not more than three business days prior to Closing Time. (g) Maintenance of Rating. At Closing Time the Securities shall be rated at least Baa2 by Moody's Investors Service Inc. and BBB by Standard & Poor's Ratings Service, and the Company shall have delivered to the Underwriters a letter, dated as of a recent date, from each such rating agency, or other evidence satisfactory to the Underwriters, confirming that the Securities have such ratings; and since the date of this Agreement, there shall not have occurred a downgrading in the rating assigned to the Securities or any of the Company's other debt securities by any "nationally recognized statistical rating agency," as that term is defined by the Commission for purposes of Rule 436(g)(2) under the 1933 Act, and no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Securities or any of the Company's other debt securities. (h) Additional Documents. At Closing Time counsel for the Underwriters shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities as herein contemplated, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities as herein contemplated shall be satisfactory in form and substance to the Underwriters and counsel for the Underwriters. (i) Termination of Agreement. If any condition specified in this Section shall not have been fulfilled when and as required to be fulfilled at the Closing Time, this Agreement may be terminated by the Underwriters by notice to the Company at any time at or prior to Closing Time, and such termination shall be without liability of any party to any other party except as provided in Section 4 and except that Sections 6, 7 and 8 shall survive any such termination and remain in full force and effect. 14 SECTION 6. Indemnification. (a) Indemnification of Underwriters. The Company agrees to indemnify and hold harmless each Underwriter and each person, if any, who controls any such Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act as follows: (i) against any and all loss, liability, claim, damage and expense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), including the Rule 434 Information, if applicable, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading or arising out of any untrue statement or alleged untrue statement of a material fact included in the Prospectus (or any amendment or supplement thereto), or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; (ii) against any and all loss, liability, claim, damage and expense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission referred to under (i) above; provided that (subject to Section 6(d) below) any such settlement is effected with the written consent of the Company; and (iii) against any and all expense whatsoever, as incurred (including the fees and disbursements of counsel chosen by the Underwriters), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, referred to under (i) above, to the extent that any such expense is not paid under (i) or (ii) above; provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the extent arising out of any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with written information furnished to the Company by such Underwriter expressly for use in the Registration Statement (or any amendment thereto), or the Prospectus (or any amendment or supplement thereto) and provided, further, that this indemnity agreement shall not inure to the benefit of such Underwriter or any person controlling such Underwriter on account of any loss, claim, damage, liability or action arising from the sale of Securities to any person by such Underwriter if such Underwriter failed to send or give a copy of an amendment or supplement to the Prospectus to that person and the untrue statement or alleged untrue statement of a material fact or omission or alleged omission to state a material fact in the Prospectus was corrected in said amendment or supplement and the delivery thereof was required by law and would have constituted a complete defense to the claim of that person, unless such failure resulted from non-compliance by the Company with Section 3(a) or (b). 15 For purposes of the second proviso to the immediately preceding sentence, the term Prospectus shall not be deemed to include the documents incorporated by reference therein, and no Underwriter shall be obligated to send or give any supplement or amendment to any document incorporated by reference in the Prospectus to any person. (b) Indemnification of Company, Directors and Officers. Each Underwriter severally agrees to indemnify and hold harmless the Company, its directors, each of its officers who signed the Registration Statement and each person, if any, who controls the Company within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Company by such Underwriter expressly for use in the Registration Statement (or any amendment thereto) or the Prospectus (or any amendment or supplement thereto). (c) Actions against Parties; Notification. Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying party of any action commenced against it in respect of which indemnity may be sought hereunder, but failure to so notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity agreement. In the case of parties indemnified pursuant to Section 6(a) above, counsel to the indemnified parties shall be selected by the Representatives, and, in the case of parties indemnified pursuant to Section 6(b) above, counsel to the indemnified parties shall be selected by the Company. An indemnifying party may participate at its own expense in the defense of any such action. If it so elects within a reasonable time after receipt of notice, an indemnifying party, jointly with any other indemnifying parties receiving such notice, may assume the defense of such action with counsel chosen by it and approved by the indemnified parties defendant in such action, unless such indemnified parties reasonably object to such assumption on the ground that there may be legal defenses available to them which are different from or in addition to those available to such indemnifying party. If an indemnifying party assumes the defense of such action, the indemnifying parties shall not be liable for any fees and expenses of counsel for the indemnified parties thereafter in connection with such action. In no event shall the indemnifying parties be liable for fees and expenses of more than one counsel (in addition to any local counsel) separate from their own counsel for all indemnified parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances. No indemnifying party shall, without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 6 or Section 7 hereof (whether or not the indemnified parties are actual or potential parties thereto), unless such settlement, compromise or consent (i) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party. 16 (d) Settlement without Consent if Failure to Reimburse. If at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by Section 6(a)(ii) effected without its written consent if (i) such settlement is entered into more than 90 days after receipt by such indemnifying party of the aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such settlement at least 45 days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement. SECTION 7. Contribution. If the indemnification provided for in Section 6 hereof is for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then the Company and the Underwriters shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Underwriters on the other hand from the offering of the Securities pursuant to this Agreement or (ii) if the allocation provided by clause (i) is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company on the one hand and of the Underwriters on the other hand in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the Underwriters on the other hand in connection with the offering of the Securities pursuant to this Agreement shall be deemed to be in the same respective proportions as the total net proceeds from the offering of the Securities pursuant to this Agreement (before deducting expenses) received by the Company and the total underwriting discount or commission received by the Underwriters, in each case as set forth on the cover of the Prospectus, bear to the aggregate initial public offering price of the Securities as set forth on such cover. The relative fault of the Company on the one hand and the Underwriters on the other hand shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Company or by such Underwriter and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Underwriters agree that it would not be just and equitable if contribution pursuant to this Section 7 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 7. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 7 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified 17 party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission. Notwithstanding the provisions of this Section 7, no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of any 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 1933 Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 7, each person, if any, who controls an Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to contribution as such Underwriter, and each director of the Company, each officer of the Company who signed the Registration Statement and each person, if any, who controls the Company within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to contribution as the Company. The Underwriters' respective obligations to contribute pursuant to this Section 7 are several in proportion to the aggregate principal amounts of Securities set forth opposite their respective names in Schedule A hereto and not joint. SECTION 8. Representations, Warranties and Agreements to Survive Delivery. All representations, warranties and agreements contained in this Agreement or in certificates of officers of the Company or any of its subsidiaries submitted pursuant hereto, shall remain operative and in full force and effect, regardless of any investigation made by or on behalf of the Underwriters or controlling person, or by or on behalf of the Company, and shall survive delivery of the Securities to the Underwriters. SECTION 9. Termination of Agreement. (a) Termination; General. The Representatives may terminate this Agreement, by notice to the Company, at any time at or prior to Closing Time (i) if there has been, since the time of execution of this Agreement or since the respective dates as of which information is given in the Prospectus, any material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business, (ii) if there has occurred any material adverse change in the financial markets in the United States or the international financial markets, any outbreak of hostilities or escalation thereof or other calamity or crisis or any change or development involving a prospective change in national or international political, financial or economic conditions, in each case the effect of which is such as to make it, in the judgment of the Representatives, impracticable to market the Securities or to enforce contracts for the sale of the Securities, (iii) if trading in any securities of the Company has been suspended or limited by the Commission or the New York Stock Exchange, or if trading generally on the 18 American Stock Exchange or the New York Stock Exchange or in the Nasdaq National Market has been suspended or limited, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices have been required, by any of said exchanges or by such system or by order of the Commission, the National Association of Securities Dealers, Inc. or any other governmental authority or (iv) if a banking moratorium has been declared by either federal or New York authorities. (b) Liabilities. If this Agreement is terminated pursuant to this Section, such termination shall be without liability of any party to any other party except as provided in Section 4 hereof, and provided further that Sections 6, 7 and 8 shall survive such termination and remain in full force and effect. SECTION 10. Default by One of the Underwriters. If one or more of the Underwriters shall fail at Closing Time to purchase the Securities which it or they are obligated to purchase under this Agreement (the "Defaulted Securities"), then Banc of America and Merrill Lynch shall have the right, within 24 hours thereafter, to make arrangements for one or more of the non-defaulting Underwriters, or any other underwriters, to purchase all, but not less than all, of the Defaulted Securities in such amounts as may be agreed upon and upon the terms herein set forth; if, however, neither Banc of America nor Merrill Lynch shall have completed such arrangements within such 24-hour period, then: (a) if the number of Defaulted Securities does not exceed 10% of the aggregate principal amount of the Securities to be purchased hereunder, each of the non-defaulting Underwriters shall be obligated, severally and not jointly, to purchase the full amount thereof in the proportions that their respective underwriting obligations hereunder bear to the underwriting obligations of all non-defaulting Underwriters, or (b) if the number of Defaulted Securities exceeds 10% of the aggregate principal amount of the Securities to be purchased hereunder, this Agreement shall terminate without liability on the part of any non-defaulting Underwriter. No action taken pursuant to this Section shall relieve any defaulting Underwriter from liability in respect of its default. In the event of any such default which does not result in a termination of this Agreement, either Banc of America and Merrill Lynch or the Company shall have the right to postpone the Closing Time for a period not exceeding seven days in order to effect any required changes in the Registration Statement or the Prospectus or in any other documents or arrangements. SECTION 11. Notices. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given if mailed or transmitted by any standard form of telecommunication. Notices to the Underwriters shall be directed to Banc of America Securities LLC, Banc of America Corporate Center, 100 North Tryon Street, Charlotte, North Carolina 28255, attention of Lynn T. McConnell, and to Merrill Lynch, Pierce, Fenner & Smith Incorporated, North Tower, 2 World Financial Center, New York, New York 10281, attention of Eric Federman, Director; and notices to the Company shall be directed to it at 1400 Lake Hearn Drive, Atlanta, Georgia 30319, attention of Andrew A. Merdek. 19 SECTION 12. Parties. This Agreement shall inure to the benefit of and be binding upon the Underwriters and the Company and their respective successors. Nothing expressed or mentioned in this Agreement is intended or shall be construed to give any person, firm or corporation, other than the Underwriters and the Company and their respective successors and the controlling persons and officers and directors referred to in Sections 6 and 7 and their heirs and legal representatives, any legal or equitable right, remedy or claim under or in respect of this Agreement or any provision herein contained. This Agreement and all conditions and provisions hereof are intended to be for the sole and exclusive benefit of the Underwriters and the Company and their respective successors, and said controlling persons and officers and directors and their heirs and legal representatives, and for the benefit of no other person, firm or corporation. No purchaser of Securities from any Underwriter shall be deemed to be a successor by reason merely of such purchase. SECTION 13. Governing Law and Time. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED WHOLLY IN SUCH STATE. SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME. SECTION 14. Effect of Headings. The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof. SECTION 15. Counterparts. This Agreement may be executed in one or more counterparts and, if executed in more than one counterpart, the executed counterparts hereof shall constitute a single instrument. 20 If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Company a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement among the Underwriters and the Company in accordance with its terms. Very truly yours, COX COMMUNICATIONS, INC. By: /s/ Mark W. Major --------------------------------- Name: Mark W. Major Title: Treasurer CONFIRMED AND ACCEPTED, as of the date first above written: as Representatives of the several Underwriters, BANC OF AMERICA SECURITIES LLC By: /s/ Sammy Hicks III ---------------------------------- Name: Sammy Hicks III Title: Associate MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED By: /s/ John L. Schwarz --------------------------------- Name: John L. Schwarz Title:Authorized Signatory
SCHEDULE B COX COMMUNICATIONS, INC. $500,000,000 6 3/4% Notes due 2011 1. The initial public offering price of the above-referenced securities shall be 99.675% of the principal amount thereof, plus accrued interest, if any, from the date of issuance. 2. The purchase price to be paid by the Underwriters for the above-referenced securities shall be 99.025% of the principal amount thereof. 3. The interest rate on the above-referenced securities shall be 6 3/4% per annum. Sch B-2-1 SCHEDULE C List of Subsidiaries Cox Communications Las Vegas, Inc. Cox Classic Cable, Inc. CoxCom, Inc. Cox Communications BTP Holdings, Inc. CCI PCS, Inc. Sch C-1 EXHIBIT A FORM OF OPINION OF DOW, LOHNES &ALBERTSON, PLLC, TO BE DELIVERED PURSUANT TO SECTION 5(a) Banc of America Securities LLC Merrill, Lynch, Pierce, Fenner & Smith Incorporated Banc One Capital Markets, Inc. Mizuho International plc SunTrust Equitable Securities Corporation Wachovia Securities, Inc. c/o: Banc of America Securities LLC Banc of America Corporate Center 100 North Tryon Street Charlotte, North Carolina 28255; and Merrill Lynch, Pierce, Fenner & Smith Incorporated 4 World Financial Center New York, New York 10080 Ladies and Gentlemen: This opinion is being delivered to you pursuant to Section 5(b) of the Purchase Agreement, dated March 6, 2001 (the "Purchase Agreement"), among you and Cox Communications, Inc., a Delaware corporation (the "Company"), providing for the issuance and sale to you on this date of $500,000,000 aggregate principal amount of the Company's 6 3/4% Notes due 2011 (the "Notes"). We have served as special counsel to the Company in connection with the issuance and sale of the Notes. Capitalized terms used herein that are not otherwise defined herein shall have the same meanings as in the Purchase Agreement. In this connection, we have examined the Registration Statement on Form S-3 (File No. 333-54450) filed by the Company with the Securities and Exchange Commission (the "Commission") for the registration of, among other things, the Notes. Such registration statement (as so amended), in the form in which it became effective and including the documents incorporated or deemed to be incorporated by reference therein pursuant to Item 12 of Form S-3, is hereinafter called the "Registration Statement." We have also examined copies of the Company's Prospectus dated February 2, 2001 (the "Base Prospectus") and the Prospectus Supplement to the Base Prospectus dated March 6, 2001 relating to the Notes (the "Prospectus Supplement"). The term "Prospectus" means the Base Prospectus and Prospectus Supplement in the forms filed with the Commission pursuant to Rule 424(b)(5) under the 1933 Act, including the documents incorporated or deemed to be incorporated by reference pursuant to Item 12 of Form S-3 under the 1933 Act. We have also examined originals or copies, certified or otherwise identified to our satisfaction, of all such agreements, certificates of public officials, including certificates of various governmental authorities, certificates of officers or representatives of the Company and A-1 others, and such other documents, certificates and corporate, partnership or other records, in each case, as we have deemed necessary or appropriate as a basis for the opinions set forth herein. In our examination we have assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified or photostatic or facsimile copies (and the authenticity of the originals of such documents) and the due, binding and valid authorization, execution and delivery pursuant to lawful power and legal right of applicable instruments and documents on behalf of persons and entities other than the Company. As to any facts relevant to the opinions expressed herein, we have relied upon (i) representations of the Company in the Purchase Agreement, (ii) statements and representations of officers and other representatives of the Company and others, and (iii) the accuracy and completeness of all records, documents and reports of the Company or any of its subsidiaries made available to us. Where in this opinion the phrase "to our knowledge", "of which we are aware", "known to us" or like language is used with respect to any statement, it shall mean that none of the lawyers in this firm who have given substantive legal attention to the representation of the Company in connection with the issuance and sale of the Notes pursuant to the Purchase Agreement has actual knowledge that the statement is false. Such term does not include any knowledge of other lawyers or any constructive or imputed notice of any items of information. Our opinions in numbered paragraphs (13) and (14) below (the "FCC Opinions") are strictly limited to matters arising under the Communications Act of 1934, as amended, and the published rules, regulations and policies of the Federal Communications Commission (the "FCC") (collectively, the "Communications Act") relating to the Company's business as set forth in the Prospectus. We do not purport to express opinions in the FCC Opinions concerning any laws other than the Communications Act. Except for a review of certain publicly available records of the FCC as described below, we have not made any independent review or investigation of the Company or any of its subsidiaries, their operations or businesses or of the operations or businesses of any other person or entity in connection with the FCC Opinions. In addition, we have not conducted an inspection of the Company or any of its subsidiaries, their work product, records or operations. Other than our review of the publicly available files for the Company available to us at the FCC's Washington, D.C. offices on March 8, 2001, we have not undertaken any inquiry to determine the existence or absence of any facts relevant to the FCC Opinions. We have not searched the docket files of any court. In connection with our rendering of this opinion, we have not been retained or engaged to perform, nor have we performed, any independent investigation with respect to any agreements to which the Company or any of its subsidiaries may be subject (other than the agreements identified in Schedule 1 attached hereto (the "Identified Agreements")), nor have we made any investigation as to the existence of facts, if any, which could cause the Company or any present or proposed stockholder, officer, director, partner, person or entity voting the stock of the Company, or other direct or indirect principal of the Company, any of its subsidiaries, or any other person to be in violation of any ownership restrictions arising under the Communications Act as a result of any person's or entity's other ownership interests or positions. While we have served as special counsel to the Company, our engagement has been limited to matters as to which we have been consulted, and the Company may employ other counsel from time to time, including its own internal counsel. Accordingly, no inference as to our knowledge of the existence or absence of such facts should be drawn from our serving as special counsel to the Company. A-2 We are members of the Bar of the District of Columbia and do not purport to be experts on, or generally familiar with, or certified to express legal conclusions based upon, the laws of any other jurisdiction. As to matters of law set forth below, our opinion is limited solely, to the extent applicable hereto, to matters of law under the laws of the State of New York, the laws of the United States and the Delaware General Corporation Law (collectively, "Applicable Law"); however, the term "Applicable Law" is limited to those laws and regulations that a lawyer exercising customary professional diligence would reasonably recognize as being directly applicable to the issuance and sale of the Notes by the Company pursuant to the Purchase Agreement, the Indenture, dated as of June 27, 1995 (the "Indenture"), between the Company and The Bank of New York, as trustee (the "Trustee"), and the Notes and does not include laws and regulations of county, municipal and special political subdivisions, whether state, regional, municipal or otherwise. The Indenture, the Purchase Agreement and the Notes are collectively referred to herein as the "Operative Agreements." We express no opinion as to conflicts of law rules, or the laws of any states or jurisdictions other than as specified above. Based upon the foregoing and subject to the other qualifications stated herein, we are of the opinion that: (1) The Company is an existing corporation in good standing under the laws of the State of Delaware, has the corporate power and authority to own its properties and to conduct its business as described in the Prospectus and to enter into and perform (as if such performance occurred on the date hereof) its obligations under each of the Operative Agreements and, based solely on a review of certificates of an officer of the Company and from appropriate governmental authorities or telephonic confirmations from representatives of such authorities in Georgia, is duly qualified as a foreign corporation to transact business and is in good standing in Georgia. (2) Each subsidiary of the Company identified on Schedule 2 attached hereto (each a "Subsidiary" and collectively the "Subsidiaries") is an existing corporation in good standing under the laws of the jurisdiction of its incorporation, has the corporate power and authority to own its property and to conduct its business as described in the Prospectus and, to our knowledge, based solely on a review of a certificate of an officer of the Company, is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property as described in the Prospectus requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not result in a Material Adverse Effect. (3) The Purchase Agreement has been duly authorized, executed and delivered by the Company. (4) The Indenture has been duly qualified under the 1939 Act, and the Indenture has been duly authorized, executed and delivered by the A-3 Company and, assuming due authorization, execution and delivery of the Indenture by the Trustee, the Indenture constitutes a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms. (5) The Notes are in the form contemplated by the Indenture, have been duly authorized by the Company and, when issued and authenticated by the Trustee in the manner provided for in the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee) and delivered against payment of the consideration therefor specified in the Purchase Agreement, will constitute valid and binding obligations of the Company, entitled to the benefits of the Indenture and enforceable against the Company in accordance with their terms. (6) The Registration Statement and the Prospectus, excluding the documents incorporated or deemed to be incorporated by reference therein, and each amendment or supplement to the Registration Statement and the Prospectus, excluding the documents incorporated or deemed to be incorporated by reference therein, as of their respective effective or issue dates (other than the financial statements and schedules or other financial information and statistical data included therein or omitted therefrom and the Statement of Eligibility on Form T-1 (the "Form T-1"), as to which we express no opinion) complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations. (7) The 1933 Act and 1934 Act filings incorporated by reference in the Prospectus (other than the financial statements and schedules or other financial information and statistical data included therein or omitted therefrom, as to which we express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the 1933 Act or the 1934 Act, as applicable, and the rules and regulations of the Commission thereunder. (8) To our knowledge and other than as set forth in the Prospectus, there is not pending or threatened in writing any action, suit, proceeding, inquiry or investigation, governmental or otherwise, to which the Company or any subsidiary is a party which might reasonably be expected to have a Material Adverse Effect, or that seeks to restrain, enjoin, prevent the consummation of, or otherwise challenge the issuance or sale of the Notes pursuant to the Purchase Agreement or the application of the proceeds therefrom. (9) The information included or incorporated by reference (A) in the Prospectus under the captions "Description of the Notes," "Certain United States Income Tax Considerations" and "Description of Debt Securities," (B) in the Registration Statement under Items 14 and 15, and (C) in the Company's Form 10-K for the year ended December 31, 1999 under the captions "Business--Competition" and "--Legislation and Regulation" to the extent that it constitutes matters of U.S. Federal laws, rules and regulations referred to therein, legal conclusions or A-4 summaries of the provisions of the Company's certificate of incorporation and by-laws or the Operative Agreements referred to therein has been reviewed by us and accurately describes in all material respects the matters referred to therein. (10) The statements in the Company's Form 10-K for the year ended December 31, 1999 under the caption "Legal Proceedings," to the extent that such statements constitute summaries of legal proceedings, have been reviewed by us and, to our knowledge, accurately describe such legal proceedings in all respects material to the business of the Company as described in the Prospectus; provided, however, that we have not been retained to represent the Company or any Subsidiary or affiliate of the Company in connection with all such legal proceedings. (11) To our knowledge, no consent, approval, authorization or order of, or qualification with, any governmental agency or body is required under Applicable Law for the execution and delivery by the Company of the Operative Agreements, or the consummation by the Company (as if consummation occurred on the date hereof) of the transactions contemplated thereby, except as has already been acquired or as may be required under state securities or "Blue Sky" laws. (12) The issuance of the Notes and the execution, delivery and performance (as if such performance occurred on the date hereof) by the Company of the Operative Agreements and consummation (as if consummation occurred on the date hereof) of the transactions contemplated therein do not, whether with or without the giving of notice or lapse of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined in Section l(a)(xiii) of the Purchase Agreement) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Subsidiary pursuant to, any Identified Agreement (except for such conflicts, breaches, defaults, Repayment Events or liens, charges or encumbrances that the Company has advised us would not, individually or in the aggregate, have a Material Adverse Effect), nor will such action result in any violation of the provisions of the certificate of incorporation or by-laws or other constitutive documents of the Company or any Subsidiary, or, to our knowledge, any Applicable Law or to our knowledge, any judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any Subsidiary and specifically applicable to the Company and any Subsidiary. (13) To our knowledge, the Company is not, nor with the giving of notice or lapse of time or both would be, in violation of any judgment, injunction, order or decree of the FCC, other than those that the Company has advised us, would not, individually or in the aggregate, have a Material Adverse Effect. (14) The execution, delivery and performance (as if such performance occurred on the date hereof) by the Company of the Purchase Agreement do not violate the Communications Act or any rules or the regulations thereunder binding on the Company or its Subsidiaries or any order, writ, judgment, injunction, decree or award of the FCC binding on the Company or its Subsidiaries of which we have knowledge. A-5 (15) The Company is not an "investment company" as such term is defined in the 1940 Act. We have been orally advised by the staff of the Commission that the Registration Statement has been declared effective under the 1933 Act; the required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and, to our knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued under the 1933 Act and no proceedings for that purpose have been instituted or are pending or threatened by the Commission. In the course of the preparation of the Registration Statement and the Prospectus (other than the documents incorporated or deemed to be incorporated by reference therein), we participated in conferences with officers and representatives of the Company, representatives of the independent certified public accountants of the Company and representatives of the Underwriters and their counsel at which conferences the contents of the Registration Statement and the Prospectus and related matters were discussed. Although we are not passing upon or assuming responsibility for the accuracy, completeness or fairness of the statements contained or incorporated by reference in the Registration Statement and the Prospectus and have not made any independent investigation, check or verification of facts for the purpose of rendering this opinion (except as described in paragraphs 9 and 10), on the basis of the foregoing, we advise you that nothing has come to our attention that leads us to believe that the Registration Statement (except for financial statements and schedules or other financial information or statistical data included or incorporated by reference therein or omitted therefrom and the Form T-1, as to which we make no statement), as of the date the Registration Statement was declared effective by the Commission or at the date of the Purchase Agreement, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements and schedules or other financial information and statistical data included or incorporated by reference therein or omitted therefrom, as to which we make no statement), at the time the Prospectus was issued or at the date hereof, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The opinions set forth above are subject to the following additional qualifications: (i) The enforceability of agreements, documents and instruments is subject to general principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, and the discretion of the court before which any proceeding therefor may be brought, regardless of whether enforcement is sought in a proceeding in equity or at law, and bankruptcy, reorganization, insolvency, fraudulent conveyance or transfer, moratorium (whether general or specific) and other laws affecting creditors' rights or the relief of debtors generally. Furthermore, the prior consent of the FCC may be required to the extent that any action by the holders of any Note to enforce its A-6 or their respective rights under the Notes would result in a transfer of control or assignment of any authorization issued by the FCC. We express no opinion as to whether any such consent would be granted. (ii) We express no opinion concerning the enforceability of (a) waivers of notice or of any other constitutional, statutory or common law rights, including, without limitation, waiver of stay, extension or usury laws, and (b) indemnification or contribution provisions to the extent such provisions are deemed to violate federal or state securities laws. (iii)We express no opinion as to any state or local laws, rules or regulations relating to the regulation of telecommunications. This opinion is furnished by us, as special counsel to the Company, in connection with the closing of the above-referenced issuance and sale of the Notes occurring today. The information set forth herein is as of the date hereof. We assume no obligation to advise you of changes which may thereafter be brought to our attention. Our opinion is based upon statutory laws and judicial decisions in effect at the date hereof, and we do not opine with respect to any law, regulation, rule or governmental policy which may be enacted or adopted after the date hereof, nor assume any responsibility to advise you of future changes in our opinion. This opinion is furnished to you solely for your benefit in connection with such issuance and sale of the Notes occurring today and is not to be used, circulated, quoted or otherwise referred to for any other purpose, and may not be relied upon by any other person, without our express prior written permission. A-7 SCHEDULE 1 Identified Agreements 1. Indenture dated as of June 27, 1995 between Cox Communications, Inc. and The Bank of New York, as Trustee, relating to the 6 3/8% Notes due 2000, 6 1/2% Notes due 2002, 6 7/8 Notes due 2005, 7 1/4% Debentures due 2015 and the 7 5/8% Debentures due 2025 of Cox Communications, Inc. 2. Tax Allocation Agreement, dated as of February 1, 1995, by and between Cox Enterprises, Inc. and Cox Communications, Inc. 3. Cox Executive Supplemental Plan of Cox Enterprises, Inc. 4. Cox Communications, Inc. Long-Term Incentive Plan. 5. Cox Communications, Inc. Restricted Stock Plan for Non-Employee Directors. 6. Five-Year Credit Agreement, dated as of September 26, 2000, by and among Cox Communications, Inc., The Chase Manhattan Bank, as Administrative Agent, Chase Bank of Texas, National Association, as Syndication Agent, The Bank of New York and Wachovia Bank, N.A., as Co-Documentation Agents, and the other banks party thereto. 7. 364-Day Credit Agreement, dated as of September 26, 2000, by and among Cox Communications, Inc., Bank of America National Trust and Savings Association, as Syndication Agent, The Bank of New York and Wachovia Bank, N.A., as Co -Documentation Agents, Chase Bank of Texas, National Association, as Administrative Agent, and the other banks party thereto. 8. First Supplemental Indenture, dated as of August 12, 1999, between Cox Communications, Inc. and The Bank of New York, as Trustee, relating to the FELINE PRIDES of Cox Communications, Inc. 9. Second Supplemental Indenture, dated as of March 14, 2000, between Cox Communications, Inc. and The Bank of New York, as Trustee, relating to the Premium PHONES of Cox Communications, Inc. 10. Third Supplemental Indenture, dated as of April 19, 2000, between Cox Communications, Inc. and The Bank of New York, as Trustee, relating to the Exchangeable Subordinated Discount Debentures of Cox Communications, Inc. 11. Fourth Supplemental Indenture, dated as of February 23, 2001, between Cox Communications, Inc. and The Bank of New York, as Trustee, relating to the Convertible Senior Notes due 2021. A-8 SCHEDULE 2 List of CCI Subsidiaries Cox Communications Las Vegas, Inc. Cox Classic Cable, Inc. CoxCom, Inc. Cox Communications BTP Holdings, Inc. CCI PCS, Inc. B-1
