Exhibit 1
DEBT SECURITIES UNDERWRITING AGREEMENT
[Date]
American Standard Inc.
American Standard Companies Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Dear Sirs:
The underwriter or underwriters named in Schedule I
hereto (the "Underwriters"), acting through the firm or firms named
in Schedule I-A hereto as representatives (the "Representatives"),
understand that American Standard Inc., a Delaware corporation (the
"Issuer" or "ASI"), proposes to issue and sell $ aggregate
principal amount of the Issuer's
% due 1 (the "Securities") guaranteed as to payment of
principal and interest by American Standard Companies Inc., and as
designated in Schedule [ ] hereto, registered on Registration
Statement No. 333-32627 under the Securities Act of 1933, as
amended (the "Registration Statement").
Subject to the terms and conditions set forth herein or
incorporated by reference herein and referred to below, the Issuer
hereby agrees to sell to each of the Underwriters, and each of the
Underwriters agree, severally and not jointly, to purchase from the
Issuer, the principal amount of such Securities set forth in
Schedule [ ] hereto. If the firm or firms named in Schedule I-A
hereto include only the firm or firms named as Underwriters in
Schedule I hereto, the terms "Underwriters" and "Representatives"
shall each be deemed to refer to such firm or firms.
The Underwriters will pay for such Securities upon
delivery thereof at the Closing Location and Closing Time set forth
in Schedule II hereto.
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1 Insert Title of applicable Securities.
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The Securities shall have the terms set forth in Schedule
II hereto.
This Underwriting Agreement consists of the special
provisions set forth herein and in the schedules hereto (the
"Special Provisions") and such of the provisions contained in the
document entitled American Standard Inc. Underwriting Agreement
Standard Provisions (the "Standard Provisions") as are herein
incorporated by reference. A copy of the Standard Provisions was or
will be filed as an exhibit to or incorporated by reference into
the Registration Statement. Unless otherwise provided in Schedule [
] hereto, the Standard Provisions are herein incorporated by
reference in their entirety and shall be deemed to be a part of
this Underwriting Agreement to the same extent as if such
provisions had been set forth in full herein. References herein and
therein to numbered sections of this Underwriting Agreement shall
mean the numbered sections of the Standard Provisions.
Please confirm your agreement by (a) having an authorized
officer sign a copy of this Underwriting Agreement in the space set
forth below, and (b) returning the signed copy to us no later than
5:00 P.M., New York time, on the date hereof.
Very truly yours,
[NAME OF REPRESENTATIVE]
By:
For itself and as Representative
of the other Underwriters named
above
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ACCEPTED:
AMERICAN STANDARD INC.
By: _______________________________
Name:
Title:
AMERICAN STANDARD COMPANIES INC.
By: _______________________________
Name:
Title:
SCHEDULE I
PRINCIPAL AMOUNT OF OFFERED
UNDERWRITER SECURITIES TO BE PURCHASED
Total $
SCHEDULE I-A
REPRESENTATIVE(S)
SCHEDULE II
Indenture: Senior Debt Indenture dated as of ,
1997, as supplemented, among American ▇▇▇▇-
dard Inc., American Standard Companies Inc.
and the Trustee named below
Trustee:
Title of Securi- % Notes due 200_
ties:
Aggregate Princi- $ ,000,000 pal Amount:
Initial Offering % of the principal amount of the Secu-
Price to Public: rities, plus accrued interest, if any, from
Purchase Price to % of the principal amount of the Secu-
Underwriters: rities, plus accrued interest, if any, from
Maturity: , 200__
Interest Rate: % per annum
Interest Payment and commencing
Dates: , 199__
Redemption Provi- [The Senior Debt Securities are subject to
sions: redemption at the option of the Company
prior to maturity as described in the Pro-
spectus] [The Senior Debt Securities are not
subject to redemption at the option of the
Company.]
Sinking Fund Pro- [The Senior Debt Securities will not be en-
visions: titled to the benefit of the sinking fund]
[The Senior Debt Securities will be entitled
to the benefit of a sinking fund as de-
scribed in the Prospectus.]
Closing Time: [Date] at 9:00 A.M. New York time
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Closing Location:
Funds for Payment
of Purchase
Price: [Immediately available funds]
Name and address for purposes of Section 11:
Other Terms or [N/A]
Conditions:
SCHEDULE III
Indenture: Senior Subordinated Debt Indenture dated as
of , 1997, as supplemented, among
American Standard Inc., American Standard
Companies Inc. and the Trustee named below
Trustee:
Title of Securi- % Senior Subordinated Notes due 200_ ties:
Aggregate Princi- $ ,000,000 pal Amount:
Initial Offering % of the principal amount of the Secu-
Price to Public: rities, plus accrued interest, if any, from
Purchase Price to % of the principal amount of the Secu-
Underwriters: rities, plus accrued interest, if any, from
Maturity: , 200__
Interest Rate: % per annum
Interest Payment and commencing
Dates: , 199__
Redemption Provi- [The Senior Subordinated Debt Securities are
sions: subject to redemption at the option of the
Company prior to maturity as described in the
Prospectus] [The Senior Subordinated Debt
Securities are not subject to redemption at the
option of the Company]
Sinking Fund Pro- [The Senior Subordinated Debt Securities
visions: will not be entitled to the benefit of the
sinking fund] [The Senior Subordinated Debt
Securities will be entitled to the benefit of a
sinking fund as described in the Prospectus]
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Closing Time: [Date] at 9:00 A.M. New York time
Closing Location:
Funds for Payment
of Purchase
Price: [Immediately available funds]
Name and address for purposes of Section 11:
Other Terms or [N/A]
Conditions:
SCHEDULE IV
Indenture: Subordinated Debt Indenture dated as of
, 1997, as supplemented, among
American Standard Inc., American Standard
Companies Inc. and the Trustee named below
Trustee:
Title of Securi- % Subordinated Notes due 200_ ties:
Aggregate Princi- $ ,000,000 pal Amount:
Initial Offering % of the principal amount of the Secu-
Price to Public: rities, plus accrued interest, if any, from
Purchase Price to % of the principal amount of the Secu-
Underwriters: rities, plus accrued interest, if any, from
Maturity: , 200__
Interest Rate: % per annum
Interest Payment and commencing
Dates: , 199__
Redemption Provi- [The Subordinated Debt Securities are sub-
sions: ject to redemption at the option of the Com-
pany prior to maturity as described in the
Prospectus] [The Subordinated Debt Securities are
not subject to redemption at the option of the
Company]
Sinking Fund Pro- [The Subordinated Debt Securities will not
visions: be entitled to the benefit of the sinking
fund] [The Subordinated Debt Securities will
be entitled to the benefit of a sinking fund
as described in the Prospectus]
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Closing Time: [Date] at 9:00 A.M. New York time
Closing Location:
Funds for Payment
of Purchase
Price: [Immediately available funds]
Name and address for purposes of Section 11:
Other Terms or [N/A]
Conditions:
AMERICAN STANDARD INC.
Debt Securities
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
(Incorporated By Reference)
From time to time American Standard Inc., a Delaware
corporation (the "Issuer"), may enter into one or more underwriting
agreements that provide for the sale of designated debt securities to
the several underwriters named therein. The Senior Debt Securities (as
hereinafter defined) will be unconditionally guaranteed (the "Senior
Debt Guarantees") as to payment of principal, premium, if any, and
interest by the Issuer's parent, American Standard Companies Inc. (the
"Guarantor" and together with the Issuer and the consolidated
subsidiaries of the Guarantor, the "Company"), the Senior Subordinated
Debt Securities (as hereinafter defined) will be unconditionally
guaranteed on a senior subordinated basis (the _Senior Subordinated
Debt Guaran- tees_) as to the payment of principal, premium, if any,
and interest by the Guarantor, and the Subordinated Debt Securities
(as hereinafter defined) will be unconditionally guaranteed on a
subordinated basis (the "Subordinated Debt Guarantees" and, together
with the Senior Debt Guarantees and the Senior Subordinated Debt
Guarantees, the "Debt Guarantees") as to the payment of principal,
premium, if any, and interest by the Guarantor. The standard
provisions set forth herein (the "Standard Provisions") may be
incorporated by reference in any such underwriting agreement. Such
underwriting agreement, which shall consist of the special provisions
(the "Special Provisions") set forth in the part of the Underwriting
Agreement to be executed by the parties thereto (and accompanying
schedules) and the Standard Provisions incorporated therein by
reference, is herein called the "Underwriting Agreement" or this
"Agreement." Unless otherwise provided, terms defined in the Special
Provisions are used in the Standard Provisions as so defined. The
Underwriting Agreement shall be in the form of an executed writing
(which may be in counterparts) and may be evidenced by an exchange of
telegraphic communications or any other rapid transmission device
designed to produce a written record of communications transmitted. As
used herein, the term "Execution Date" shall mean the date set forth
on the first page of the Special Provisions.
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The Company proposes to issue and sell up to $1,000,000,000
aggregate principal amount of its unsecured debt securities and
related Debt Guarantees (the "Securities") which may be either "Senior
Debt Securities", "Senior Subordinated Debt Securities" or
"Subordinated Debt Securities" (each of which terms shall include the
related Debt Guarantees) in one or more offerings on terms determined
at or about the time of sale. The Senior Debt Securities, the Senior
Subordinated Debt Securities and the Subordinated Debt Securities to
be sold pursuant to the Underwriting Agreement will be issued under
respective indentures dated as of , 1997, as further supplemented (the
"Senior Debt Indenture", the "Senior Subordinated Debt Indenture" and
the "Subordinated Debt Indenture", respectively, and collectively, the
"Indentures"), among the Guarantor and the Issuer
and and and
, respectively (collectively, the "Trustee"). Each issue
of Securities may vary as to specific designation, aggregate principal
amount, maturity date, currency of payment, interest rate or rates and
timing of payments thereof, redemption provisions and sinking fund
requirements, if any, and any other variable terms which such
Indenture contemplates may be set forth in the Securities as issued
from time to time. As used herein, "Offered Securities" means the
particular issue of Securities to be sold pursuant to the applicable
Special Provisions.
The Issuer and the Guarantor have filed with the Securities
and Exchange Commission (the "Commission") a registration statement on
Form S-3 (No. 333-32627), including a prospectus relating to the
Securities, which relates to the offering from time to time in
accordance with Rule 415 under the Securities Act of 1933 (the "1933
Act") of up to $1,000,000,000 aggregate principal amount of
Securities, and have filed amendments thereto as may have been
required prior to the Execution Date. Such registration statement, as
amended, has been declared effective by the Commission, and the
Indentures have been qualified under the Trust Indenture Act of 1939
(the "1939 Act"). The term "Registration Statement" means such
registration statement, including all exhibits thereto but excluding
Form T-1 (as herein described), as amended to the Execution Date. The
term "Basic Prospectus" means the prospectus included in such
registration statement, as amended to the Execution Date. The term
"Prospectus" means the Basic Prospectus together with the prospectus
supplement specifically relating to the applicable Offered Securities,
in the definitive form filed or to be filed pursuant to Rule 424 under
the 1933 Act; and the term "Preliminary Prospectus" means the Basic
Prospectus together with a preliminary prospectus supplement
specifically relating to the applicable Offered Securities. Any
reference herein to the Reg-
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istration Statement, the Basic Prospectus, any Preliminary Prospectus
or the Prospectus shall be deemed to refer to and include the
documents or portions thereof incorporated by reference therein as of
such date pursuant to the applicable form under the 1933 Act; and any
reference to any amendment or supplement to the Basic Prospectus, any
Preliminary Prospectus or the Prospectus shall be deemed to refer to
and include any documents or portions thereof filed after the
Execution Date and during the time when a prospectus is required by
the 1933 Act to be delivered in connection with sales of the
applicable Offered Securities and so incorporated by reference.
Notwithstanding the foregoing, any statement contained in a document
incorporated or deemed to be incorporated by reference in the
Registration Statement and the Prospectus which is modified by a
statement contained in the Prospectus or in any other subsequently
filed document which is or is deemed to be incorporated by reference
in the Prospectus shall be deemed to constitute part of the
Registration Statement and the Prospectus only as so modified, and any
statement contained in a document incorporated or deemed to be
incorporated by reference in the Registration Statement and the
Prospectus which is superseded or replaced by a statement contained in
the Prospectus or in any other subsequently filed document which is or
is deemed to be incorporated by reference in the Prospectus shall be
deemed not to constitute a part of the Registration Statement and the
Prospectus. The term "Underwriters' Securities" means the Offered
Securities to be purchased by the Underwriters hereunder.
Section 1. REPRESENTATIONS AND WARRANTIES. The Issuer
and the Guarantor represent and warrant to each of the
Underwriters as follows:
(a) No order preventing or suspending the use of the
applicable Prospectus has been issued by the Commission, and the
applicable Prospectus, at the time of filing thereof, complied as
to form in all material respects with the requirements of the Act
and the rules and regulations of the Commission thereunder (the
_Regulations_), and did 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, in
the light of the circumstances under which they were made, not
misleading; provided, however, that as to the Underwriters, this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with
information furnished in writing to the Issuer and Guarantor by
any Underwriter expressly for use therein.
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(b) The documents incorporated by reference in the
applicable Prospectus, when they were filed with the Commission,
complied as to form in all material respects with the
requirements of the Act or the Exchange Act, as applicable, and
the rules and regulations of the Commission thereunder, and none
of such documents, as of their respective dates, 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; and any further documents
so filed and incorporated by reference in the applicable
Prospectus of any further amendment or supplement thereto, when
such documents are filed with the Commission, will comply as to
form in all material respects to the requirements of the Act or
the Exchange Act, as applicable, and the rules and regulations of
the Commission thereunder 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; provided, however, that as to the
Underwriters, this representation and warranty shall not apply to
any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company
by any Underwriter expressly for use therein.
(c) Ernst & Young, LLP, certified the financial statements
and schedules incorporated by reference in the Registration
Statement and the Prospectus and are independent public
accountants with respect to the Issuer and the Guarantor as
required by the 1933 Act and the Regulations.
(d) The financial statements incorporated by reference in
the Registration Statement and the Prospectus present fairly the
financial position of the Issuer and Guarantor as at the dates
indicated and the results of their operations for the periods
specified; such financial statements have been prepared in
conformity with generally accepted accounting principles applied
on a consistent basis during the periods involved, except as
indicated therein; and the supporting schedules incorporated by
reference in the Registration Statement present fairly the
information required to be stated therein.
(e) Except as set forth or referred to in the Registration
Statement or applicable Prospectus, since the respective dates
thereof no event or circumstance has occurred which would have a
material adverse effect, on the financial position, stockholders'
equity or consolidated results of
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operations of the Guarantor and its subsidiaries taken as a
whole (a "Material Adverse Effect").
(f) The Guarantor has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
State of Delaware, with the corporate power and authority to own
its properties and conduct its business as described in the
Prospectus, and has been duly qualified as a foreign corporation
for the transaction of business and is in good standing under the
laws of each other jurisdiction in which it owns or leases
properties or conducts any business so as to require such
qualification, except where the failure to possess such power or
authority, or to be so qualified, would not have a Material
Adverse Effect.
(g) The Issuer and each principal subsidiary listed on
Exhibit A hereto (the "Principal Subsidiaries") of the Guarantor
is a corporation duly organized and existing and in good standing
under the laws of the jurisdiction of its incorporation, with
corporate power and authority to own, lease and operate its
properties and conduct its business as now being conducted and is
duly qualified as a foreign corporation to transact business and
is in good standing except as to subsidiaries or jurisdictions as
to which the failure so to qualify would not have a Material
Adverse Effect.
(h) The execution and delivery of this Agreement and the
Indenture, the incurrence of the obligations set forth herein and
therein and the consummation of the transactions contemplated
herein and therein have been duly authorized by all necessary
corporate action on the part of the Issuer and the Guarantor and
will not conflict with or constitute a breach of, or default
under, the charter or by-laws of the Issuer or the Guarantor or
any bond, debenture, note or other evidence of indebtedness or
any contract, indenture, mortgage, loan agreement or lease to
which either of them is a party or by which either of them is
bound or any law, administrative regulation or administrative or
court decree.
Any certificate signed by any officer of the Issuer or the
Guarantor and delivered to any Underwriter or counsel for the
Underwriters in connection with an offering of Offered Securities
shall be deemed a representation and warranty by the Issuer or the
Guarantor, as the case may be, as to the matters covered thereby, to
each Underwriter.
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Section 2. PURCHASE, SALE AND DELIVERY. The Issuer is
advised by the Representatives that the Underwriters propose to make a
public offering of their respective portions of the Offered Securities
as soon after this Agreement is entered into as in the
Representatives' judgment is advisable. The terms of the public
offering of the Offered Securities are set forth in the Prospectus.
Payment of the purchase price for, and delivery of, the
Offered Securities shall be made in the funds, at the place or places,
on the date and at the time (unless postponed in accordance with the
provisions of Section 10) specified in Schedule II to the Special
Provisions or at such other time or place as shall be agreed upon by
the Representatives and the Issuer (such time and date being referred
to as the "Closing Time"). Except as otherwise specified in Schedule
II to the Special Provisions, payment shall be made to the Issuer by
delivery of immediately available funds to an account specified by the
Issuer or official bank check or checks in immediately available funds
payable to the order of the Issuer against delivery to the
Representatives for the respective accounts of the Underwriters of the
Underwriters' Securities to be purchased by them. Such Underwriters'
Securities shall be in such denominations and registered in such names
as the Representatives may request in writing at least two business
days prior to the Closing Time. Such Underwriters' Securities, which
may be in temporary form, will be made available for examination and
packaging by the Representatives in New York City or at such other
place as shall be agreed upon by the Representatives and the Issuer on
or before the first business day prior to the Closing Time.
Section 3. COVENANTS OF THE ISSUER AND GUARANTOR. The
Issuer and Guarantor covenant with each Underwriter that:
(a) Immediately following the execution of this Agreement,
the Issuer will prepare a supplement to the Basic Prospectus
setting forth the principal amount of the Offered Securities and
their terms that are not otherwise specified in the Indenture,
the names of the Underwriters and the principal amount of Offered
Securities which each severally has agreed to purchase, the names
of the Representatives, the price at which the Offered Securities
are to be purchased by the Underwriters from the Issuer, the
initial public offering price, the selling concession and
reallowance, if any, and such other information as the
Representatives and the Issuer deem appropriate in connection
with the offering of the Offered Securities. The Issuer will
promptly transmit copies of the Prospectus to the Commission for
fil-
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ing pursuant to Rule 424 of the Regulations and will furnish to
the Underwriters as many copies of the Prospectus as the
Representatives shall reasonably request.
(b) If at any time when a prospectus is required by the 1933
Act to be delivered in connection with sales of the Offered
Securities any event shall occur or condition exist as a result
of which it is necessary, in the opinion of counsel for the
Underwriters or counsel for the Issuer and the Guarantor, to
further amend or supplement the Prospectus in order that the
Prospectus will not include an untrue statement of a material
fact or omit to state any material fact necessary to make the
statements therein not misleading in the light of circumstances
existing at the time it is delivered to a purchaser or if it
shall be necessary, in the opinion of either such counsel, at any
such time to amend or supplement the Registration Statement or
the Prospectus in order to comply with the requirements of the
1933 Act or the Regulations, the Issuer and the Guarantor will
promptly prepare and file with the Commission such amendment or
supplement, whether by filing documents pursuant to the 1934 Act
or otherwise, as may be necessary to correct such untrue
statement or omission or to make the Registration Statement
comply with such requirements.
(c) The Guarantor will make generally available to the
Issuer's security holders as soon as practicable but in any event
not later than eighteen months after the effective date of the
Registration Statement (as defined in Rule 158(c) under the Act)
an earnings statement (in form complying with the provisions of
Section 11(a) of the 1933 Act, which need not be certified by
independent certified public accountants unless required by the
1933 Act or the Regulations) covering a twelve-month period
beginning not later than the first day of the Guarantor's fiscal
quarter next following the Execution Date.
(d) During the period when a prospectus is required by the
1933 Act to be delivered in connection with sales of the Offered
Securities, the Issuer and the Guarantor will give the
Representatives notice of their intention to file any amendment
to the Registration Statement or any amendment or supplement to
the applicable Prospectus, whether pursuant to the 1934 Act, the
1933 Act or otherwise, will furnish the Representatives with
copies of any such amendment or supplement or other documents
proposed to be filed a reasonable time in advance of filing, and
will not file any such amendment or supplement or other documents
in a form in which the
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Representatives or counsel for the Underwriters shall reasonably
object.
(e) During the period when a prospectus is required by the
1933 Act to be delivered in connection with sales of the Offered
Securities, the Issuer will notify the Representatives
immediately, and confirm the notice in writing, (i) of the
effectiveness of any amendment to the Registration Statement,
(ii) of the mailing or the delivery to the Commission for filing
of any supplement to the applicable Prospectus, (iii) of the
receipt of any comments from the Commission with respect to the
Registration Statement or the applicable Prospectus, (iv) of any
request by the Commission for any amendment to the Registration
Statement or any amendment or supplement to the applicable
Prospectus or for additional information, and (v) of the issuance
by the Commission of any stop order suspending the effectiveness
of the Registration Statement or the initiation of any
proceedings for that purpose. The Issuer will make every
reasonable effort to prevent the issuance of any such stop order
and, if any such stop order is issued, to obtain the lifting
thereof at the earliest possible moment.
(f) The Issuer has previously delivered to ▇▇▇▇▇▇ ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇, counsel for the Underwriters, signed and conformed
copies of the Registration Statement and of each amendment
thereto filed prior to the date of this Agreement (including
exhibits filed therewith or incorporated by reference therein and
documents incorporated by reference in the Prospectus) and will
also deliver to ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ a copy of each amendment
to the Registration Statement filed after the date of this
Agreement.
(g) The Issuer and the Guarantor will endeavor, in
cooperation with the Representatives, to qualify the Offered
Securities for offering and sale under the applicable securities
laws of such states and other jurisdictions of the United States
as the Representatives may designate, and, in cooperation with
the Representatives, will maintain such qualifications in effect
for as long as may be required for the distribution of the
Offered Securities; provided, however, that neither the Issuer
nor the Guarantor shall be obligated to file any general consent
to service of process or to qualify as a foreign corporation in
any jurisdiction in which it is not otherwise required to be so
qualified.
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(h) The Issuer and the Guarantor, during the period when a
prospectus is required to be delivered under the 1933 Act in
connection with the sale of the Offered Securities, will file
promptly all documents required to be filed with the Commission
pursuant to Section 13 or 14 of the 1934 Act.
(i) The Issuer and the Guarantor agree not to offer or sell
any of the Issuer's other debt securities, guaranteed by the
Guarantor which are substantially similar to the Offered
Securities prior to ten days after the time of purchase hereunder
without the consent of the underwriters.
Section 4. CONDITIONS TO UNDERWRITERS' OBLIGATIONS. The
obligations of the Underwriters to purchase the Underwriters'
Securities are subject to the accuracy of the representations and
warranties on the part of the Issuer and the Guarantor herein
contained, to the accuracy of the statements of the officers of the
Issuer and the Guarantor made in any certificate furnished pursuant to
the provisions hereof, to the performance by the Issuer and the
Guarantor of all of their covenants and other obligations hereunder
and to the following further conditions:
(a) At the 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.
(b) At the Closing Time the Representatives shall have
received:
(i) The favorable opinion, dated as of the Closing
Time, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq., General Counsel of the
Issuer and the Guarantor, in form and substance satisfactory
to the Representatives, to the effect that:
(A) Each of the Issuer and the Guarantor has been
duly incorporated and is validly existing as a
corporation in good standing under the laws of its
jurisdiction of incorporation, with power and authority
(corporate and other) to own its properties and conduct
its business as described in the Prospectus and is duly
qualified to do business as a foreign corporation and
is in good standing under the laws of each jurisdiction
in which it owns or leases properties or conducts any
business so as to require such qualification, except
where the failure to be so qualified would not have a
Material Adverse Effect;
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(B) Each Principal Subsidiary incorporated within
the United States (a "U.S. Principal Subsidiary"),
other than the Issuer, has been duly incorporated and
is validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation;
and all of the issued shares of capital stock of each
U.S. Principal Subsidiary and of the Issuer have been
duly and validly authorized and issued, are fully paid
and non-assessable, and (except as otherwise set forth
in the Prospectus) are owned directly or indirectly by
the Guarantor, free and clear of all liens,
encumbrances, equities or claims (other than liens,
encumbrances, equities or claims existing under or
permitted by the senior credit facilities) (such
counsel being entitled to rely in respect of the
opinion in this clause upon opinions of local counsel
and in respect to matters of fact upon certificates of
officers of the Issuer, the Guarantor or their
subsidiaries and of governmental officials, provided
that such counsel shall state that he believes that you
and he are justified in relying upon such opinions and
certificates);
(C) To the best of such counsel's knowledge and
other than as set forth or contemplated in the
Prospectus, there are no legal or governmental
proceedings pending to which the Guarantor or any of
its subsidiaries is a party or of which any property of
the Guarantor or any of its subsidiaries is the subject
which, if determined adversely to the Company or any of
its subsidiaries, would individually or in the
aggregate have a Material Adverse Effect; and, to the
best of such counsel's knowledge, no such proceedings
are threatened or contemplated by governmental
authorities or threatened by others;
(D) Neither the Guarantor nor any of its U.S.
Principal Subsidiaries is in violation of its
Certificate of Incorporation or By-laws or in default
in the performance or observance of any material
obligation, agreement, covenant or condition contained
in any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument known
to such counsel to which it is a party or by which it
or any of its properties may
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be bound except (other than with respect to such
Certificate of Incorporation or By-laws) for such
defaults which would not have a Material Adverse
Effect;
(E) The compliance by the Guarantor and the Issuer
with all of the provisions of this Agreement will not
conflict with or result in a breach or violation of any
of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument known to
such counsel to which the Guarantor or any of its U.S.
Principal Subsidiaries is a party or by which the
Guarantor or any of its U.S. Principal Subsidiaries is
subject, nor will such action result in any violation
of the provisions of the Restated Certificate of
Incorporation or Amended By-laws of the Issuer and
Guarantor or any statute or any order, rule or
regulation known to such counsel of any court or
governmental agency or body having jurisdiction over
the Guarantor or any of its U.S. Principal Subsidiaries
or any of their properties except, in each case (other
than with respect to such Restated Certificate of
Incorporation and Amended By-laws), for such conflicts,
violations, breaches or defaults which would not have a
Material Adverse Effect or impair the Guarantor's or
the Issuer's ability to perform its obligations
hereunder;
(F) The Registration Statement and the Prospectus
and any further amendments and supplements thereto made
by the Issuer and the Guarantor prior to the date
hereof (other than financial statements and related
schedules and other financial information contained or
incorporated by reference therein, as to which such
counsel need not express a belief) comply as to form in
all material respects with the requirements of the Act
and the rules and regulations thereunder; and such
counsel does not know of any contracts or other
documents of a character required to be filed as an
exhibit to the Registration Statement or required to be
incorporated by reference into the Prospectus which are
not filed or incorporated by reference as required.
-12-
(G) The documents incorporated by reference in the
Prospectus (other than the financial statements and
related schedules and other financial information
contained therein, as to which such counsel need
express no belief), when they were filed with the
Commission, complied as to form in all material
respects with the requirements of the Exchange Act and
rules and regulations of the Commission thereunder;
(H) This Agreement has been duly authorized,
executed and delivered by the Issuer and the Guarantor.
(I) The Indenture has been duly and validly
authorized, executed and delivered by the Issuer and
the Guarantor and constitutes the valid and binding
agreement of each of them, enforceable against them in
accordance with its terms, except as enforcement
thereof may be limited by bankruptcy, insolvency or
other laws relating to or affecting enforcement of
creditors' rights or by general equity principles.
(J) The Offered Securities have been duly and
validly authorized by all necessary corporate action on
the part of the Issuer and the Guarantor and, when
executed and authenticated as specified in the
Indenture and delivered against payment pursuant to
this Agreement, will be valid and binding obligations
of the Issuer and the Guarantor, enforceable against
them in accordance with their terms, except as
enforcement thereof may be limited by bankruptcy,
insolvency or other laws relating to or affecting
enforcement of creditors' rights or by general equity
principles, and will be entitled to the benefits of the
Indenture.
(K) The descriptions of the Indenture and the
Offered Securities set forth in the Prospectus are
accurate and constitute fair summaries of such
documents and instruments.
-13-
(L) The Indenture is qualified under the 1939 Act.
(M) The Registration Statement is effective under
the 1933 Act and, to the best of such counsel's
knowledge and information, no stop order suspending the
effectiveness of the Registration Statement has been
issued under the 1933 Act or proceedings therefor
initiated or threatened by the Commission.
(N) No consent, approval, authorization, order,
registration or qualification of or with any State of
New York or Delaware or U.S. Federal court or
governmental agency or body is required for the sale of
the Offered Securities or the consummation by the
Issuer or the Guarantor of the transactions
contemplated by this Agreement, except the registration
under the Act of the Offered Securities and such
consents, approvals, authorizations, registrations or
qualifications as may be required under state
securities or Blue Sky laws in connection with the
purchase and distribution of the Offered Securities by
the Underwriters (as to which such counsel need not
express an opinion).
In addition to the matters set forth above, such opinion
shall also include a statement to the effect that (i) such counsel has
not checked the accuracy or completeness of, or otherwise verified,
and is not passing upon and assumes no responsibility for the accuracy
or completeness of, the information contained or incorporated by
reference in the Registration Statement or the Prospectus, or any
amendment or supplement thereto and (ii) in the course of the
preparation of the Registration Statement and the Prospectus by the
Issuer and the Guarantor, such counsel participated in conferences
with representatives of the Issuer and the Guarantor, the independent
public accountants of the Issuer and the Guarantor and the
Underwriters and their counsel with respect thereto, and that such
counsel's examination of the Registration Statement and the Prospectus
and such counsel's participation in the above-mentioned conferences
did not cause such counsel to believe that the Registration Statement
or any amendment thereto (except as to the financial statements and
related schedules and other financial information contained or
incorporated by reference therein, as to which such counsel need not
express a belief), at the time the Registration Statement or amendment
became effective, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or that the
Prospectus or any amendment or supplement thereto (other than the
financial statements and related schedules and other financial
information contained or incorporated by
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reference therein, as to which such counsel need not express a
belief), at the time it was filed pursuant to Rule 424(b) or on the
Closing Date, 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, in light of the
circumstances under which they were made, not misleading.
In rendering such opinion, such counsel may state that he
expresses no opinion other than as to the laws of the State of New
York, the General Corporation Law of the State of Delaware and the
Federal laws of the United States. No persons other than the
Underwriters shall be entitled to rely on such opinion, and such
opinion may not be furnished or referred to, or quoted from, any other
person.
(ii) The favorable opinion or opinions, dated as of the
applicable Closing Time, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for
the Underwriters, with respect to the matters set forth (G)
through (I), inclusive, of subsection (b)(i) of this Section. In
addition to the matters set forth above, such opinion shall also
include a statement to the effect that in the course of the
preparation of the Registration Statement and the Prospectus by
the Issuer and the Guarantor, such counsel participated in
conferences with representatives of the Issuer and the Guarantor,
the independent public accountants of the Issuer and the
Guarantor and the Underwriters with respect thereto, and that
such counsel's examination of the Registration Statement and the
Prospectus and such counsel's participation in the
above-mentioned conferences did not cause such counsel to believe
that the Registration Statement or any amendment thereto (except
as to the financial statements and related schedules and other
financial information contained or incorporated by reference
therein, as to which such counsel need not express a belief), at
the time the Registration Statement or amendment became
effective, contained and 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 or any amendment or supplement thereto (other than
the financial statements and related schedules and other
financial information
-15-
contained or incorporated by reference therein, as to which such
counsel need not express a belief), at the time it was filed
pursuant to Rule 424(b) or on the Closing Date, 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, in light of the circumstances under which
they were made, not misleading.
(c) The Representatives shall have received a certificate of
the President or a Vice President of the Issuer and the
Guarantor, dated as of the Closing Time, to the effect that the
representations and warranties of the Issuer and the Guarantor
contained in Section 1 are true and correct, in all material
respects, with the same force and effect as though expressly made
at the Closing Time and all conditions to be performed at or
prior to Closing have been performed, in all material respects.
(d) The Representatives shall have received from Ernst &
Young LLP a letter, dated as of the Closing Time, covering
periods up to a date not more than five business days preceding
the date of the letter, in form and substance satisfactory to the
Representatives, confirming that they are independent accountants
within the meaning of the 1933 Act and the applicable published
rules and regulations thereunder and setting forth the Statements
in Annex I.
(e) At the Closing Time counsel for the Underwriters shall
have been furnished with such documents and opinions as they may
reasonably require for the purpose of enabling them to pass upon
the issuance and sale of the Offered Securities as herein
contemplated and related proceedings or in order to evidence the
accuracy and completeness of any of the representations and
warranties, or the fulfillment of any of the conditions, herein
contained.
(f) On or after the date hereof to the Closing Time (i) no
downgrading shall have occurred in the rating accorded the
Issuer's or the Guarantor's debt securities by any _nationally
recognized statistical rating organization_, as that term is
defined by the Commission for purposes of Rule 436(g)(2) under
the Act, and (ii) no such organization shall have publicly
announced that it has under surveillance or review, with possible
negative implications, its rating of any of the Issuer's or the
Guarantor's debt securities
-16-
If any condition specified in this Agreement shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be
terminated by the Representatives by notice to the Issuer at any time
at or prior to the Closing Time, and such termination shall be without
liability of any party to any other party except as provided in
Section 5.
Section 5. PAYMENT OF EXPENSES. The Guarantor and Issuer
will pay all expenses incident to the performance of either of their
obligations under this Agreement, including (a) the printing and
filing of the Registration Statement, any Preliminary Prospectus and
the Prospectus and all amendments thereto, and the typing and
duplicating or printing of this Agreement and any agreement among the
Underwriters, (b) the preparation, issuance and delivery of the
Offered Securities to the Underwriters, (c) the fees and disbursements
of the Issuer's counsel and accountants, (d) the qualification of the
Offered Securities under securities laws in accordance with the
provisions of Section 3(g), including filing fees and the reasonable
fee and disbursements of counsel for the Underwriters in connection
therewith and in connection with the preparation of any Blue Sky
Survey and Legal Investment Survey, (e) the printing and delivery to
the Underwriters in quantities as hereinabove stated of copies of the
Registration Statement and all amendments thereto, and of any
Preliminary Prospectus and the Prospectus and any amendments or
supplements thereto, (f) the printing and delivery to the Underwriters
of copies of the Indenture and any Blue Sky Survey and Legal
Investment Survey, (g) the fees of rating agencies, (h) the fees of
the National Association of Securities Dealers, if any, and (i) the
fees and expenses, if any, incurred in connection with the listing of
the Offered Securities on any exchange.
If this Agreement is terminated by the Representatives in
accordance with the provisions of Section 4 or Section 9, the Issuer
shall reimburse the Underwriters for all of their out-of-pocket
expenses, including the reasonable fees and disbursements of counsel
for the Underwriters.
Section 6. INDEMNIFICATION.
(a) The Guarantor and Issuer, jointly and severally, will
indemnify and hold harmless each Underwriter against any losses,
claims, damages or liabilities, joint or several, to which such
Underwriter becomes subject, under the Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or
-17-
are based upon an untrue statement or alleged untrue statement of
a material fact contained in any Preliminary Prospectus, the
Registration Statement or the Prospectus, or any amendment or
supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse each Underwriter for
any legal or other expenses reasonably incurred by such
Underwriter in connection with investigating or defending any
such action or claim as such expenses are incurred; provided,
however, that neither Guarantor nor Issuer shall be liable (i) in
any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in
any Preliminary Prospectus, the Registration Statement or
Prospectus or any such amendment or supplement in reliance upon
and in conformity with written information furnished to the
Guarantor or Issuer by such Underwriter expressly for use therein
and (ii) with respect to any Preliminary Prospectus to the extent
that any such loss, claim, damage or liability of such
Underwriter results from the fact that such Underwriter sold
Offered Securities to a person as to whom there was not sent by
commercially reasonable means, at or prior to the written
confirmation of such sale, a copy of the Prospectus in any case
where such delivery is required by the Act, and the loss, claim,
damage or liability of such Underwriter results from any untrue
statement or omission of a material fact contained in the
Preliminary Prospectus that was corrected in the Prospectus.
(b) Each Underwriter will, severally and not jointly,
indemnify and hold harmless Guarantor and Issuer against any
losses, claims, damages or liabilities to which Guarantor and
Issuer may become subject, under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, the Registration
Statement or the Prospectus, or any amendment or supplement
thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent,
that such untrue statement or alleged untrue statement or
omission or alleged omission was made in any Preliminary
Prospectus, the Registration State
-18-
ment or the Prospectus or any such amendment or supplement in
reliance upon and in conformity with written information
furnished to the Issuer by such Underwriter expressly for use
therein; and will reimburse Guarantor and Issuer for any legal or
other expenses reasonably incurred by Guarantor and Issuer in
connection with investigating or defending any such action or
claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any
action, such indemnified party shall, if a claim in respect
thereof is to be made against the indemnifying party under such
subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which
it may have to any indemnifying party otherwise than under such
subsection. In case any such action shall be brought against any
indemnifying party and it shall notify the indemnifying party of
the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall
wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party (who shall not, except
with the consent of the indemnified party, be counsel to the
indemnifying party), and, after notice from the indemnifying
party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party shall not be liable to
such indemnified party under such subsection for any legal
expenses of other counsel or any other expenses, in each case
subsequently incurred by such indemnified party, in connection
with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the written
consent of the indemnified party (which consent will not be
unreasonably withheld), effect the settlement or compromise of,
or consent to the entry of any judgment with respect to, any
pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether
or not the indemnified party is an actual or potential party to
such action or claim) unless such settlement, compromise or
judgment (i) includes an unconditional release of the indemnified
party from all liability arising out of such action 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.
-19-
Section 7. CONTRIBUTION
(a) If the indemnification provided for in Section 6 is
unavailable or insufficient to hold harmless an indemnified party
in respect of any losses, claims, damages or liabilities (or
actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable
by such indemnified party as a result of such losses, claims,
damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative benefits
received by Guarantor and Issuer on the one hand and the
Underwriters on the other from the offering of the Securities.
If, however, the allocation provided by the immediately preceding
sentence is not permitted by applicable law or if the indemnified
party failed to give the notice required under Section 6(c)
above, then each indemnifying party shall contribute to such
amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative
benefits but also the relative fault of Guarantor and Issuer on
the one hand and the Underwriters on the other in connection with
the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof),
as well as any other relevant equitable considerations. The
relative benefits received by Guarantor and Issuer on the one
hand and the Underwriter on the other shall be deemed to be in
the same proportion as the total net proceeds from the offering
of the Securities purchased under this Agreement (before
deducting expenses) received by the Issuer bear to the total
underwriting discounts and commissions received by the
Underwriters with respect to the Securities purchased under this
Agreement, in each case as set forth in the table on the cover
page of the Prospectus. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information supplied
by Guarantor and Issuer on the one hand or the Underwriters on
the other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement
or omission.
Guarantor and Issuer and the Underwriters agree that it
would not be just and equitable if contributions pursuant to this
subsection (a) were determined by pro rata allocation (even if
the Underwriters were treated as one entity for such purpose) or
by any other method of allocation
-20-
which does not take account of the equitable considerations
referred to above in this subsection (a). The amount paid or
payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof)
referred to above in this subsection (a) shall be deemed to
include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this
subsection (a), no Underwriter shall be required to contribute
any amount in excess of the amount by which the total price at
which 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 such untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent
misrepresentation (with the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters'
obligations in this subsection (a) to contribute are several in
proportion to their respective underwriting obligations and not
joint.
(b) The obligations of Guarantor and Issuer under Section 6
and Section 7(a) shall be in addition to any liability which
Guarantor and Issuer may otherwise have and shall extend, upon
the same terms and conditions, to each person, if any, who
controls any Underwriter within the meaning of the Act, and the
obligations of the Underwriters under Section 6 and Section 7(a)
shall be in addition to any liability which the respective
Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each officer and director of Guarantor
and Issuer and to each person, if any, who controls Guarantor and
Issuer within the meaning of the Act.
Section 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO
SURVIVE DELIVERY. All representations, warranties and agreements
contained in this Agreement, or contained in certificates of
officers of Guarantor and Issuer submitted pursuant hereto, shall
remain operative and in full force and effect, regardless of any
termination of this Agreement, or any investigation made by or on
behalf of any Underwriter or controlling person, or by or on
behalf of Guarantor and Issuer, and shall survive delivery of any
Offered Securities to the Underwriters.
-21-
Section 9. TERMINATION. The Representatives may also
terminate this Agreement, immediately upon notice to the Issuer, at
any time at or prior to the Closing Time (a) if there has occurred any
outbreak or escalation of hostilities or other calamity or crisis the
effect of which on the financial markets of the United States is such
as to make it, in the judgment of the Representatives, impracticable
to market the Offered Securities or enforce contracts for the sale of
the Offered Securities or (b) if trading generally on the New York
Stock Exchange has been suspended or materially limited, or minimum or
maximum prices for trading have been fixed, or maximum ranges for
prices for securities have been required, by said exchange or by order
of the Commission or any other governmental authority, or if a banking
moratorium has been declared by Federal or New York authorities. In
the event of any such termination, the covenant set forth in Section
3(c), the provisions of Section 5, the indemnity agreement set forth
in Section 6, the contribution provisions set forth in Section 7 and
the provisions of Sections 8 and 13 shall remain in effect.
Section 10. DEFAULT. If one or more of the Underwriters
shall fail at the Closing Time to purchase the Offered Securities
which it or they are obligated to purchase hereunder (the "Defaulted
Securities"), then the Representatives 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, during such 24 hours the Representatives shall not have
completed such arrangements for the purchase of all of the Defaulted
Securities, then:
(a) If the aggregate principal amount of Defaulted
Securities does not exceed 10% of the aggregate principal amount
of the Offered Securities to be purchased pursuant to this
Agreement, the non-defaulting Underwriters shall be obligated to
purchase the full amount thereof in the proportions that their
respective underwriting obligations hereunder bear to the
underwriting obligations of all such non-defaulting Underwriters,
or
(b) If the aggregate principal amount of Defaulted
Securities exceeds 10% of the aggregate principal amount of the
Offered Securities to be purchased pursuant to this Agreement,
this Agreement shall terminate, without any liability on the part
of any non-defaulting Underwriter or the Company.
-22-
No action taken pursuant to this Section shall relieve any
defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement.
In the event of a default by any Underwriter or Underwriters
as set forth in this Section, either the Representatives or the
Company shall have the right to postpone the Closing Time for a period
of not exceeding seven days in order that any required change in the
Registration Statement or Prospectus or in any other documents or
arrangements may be effected.
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
the Representatives at the address or addresses specified in Schedule
II to the Special Provisions; notices to the Company shall be directed
to it at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇-▇▇▇▇, Attention: Secretary.
Section 12. PARTIES. This Agreement shall inure to the
benefit of and be binding upon the Underwriters, Issuer and Guarantor
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 parties hereto 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 parties 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
Offered Securities from any Underwriter shall be deemed to be a
successor by reason merely of such purchase.
Section 13. GOVERNING LAW. This Agreement shall be
governed by the laws of the State of New York applicable to
agreements made and to be performed therein.
EXHIBIT A
PRINCIPAL SUBSIDIARIES
Name Jurisdiction of
Incorporation
American Standard Inc. Delaware
Wabco Standard Trane Inc. Canada (Ontario)
Wabco Westinghouse Equipments France
Automobiles SNC
Societe Trane France
Wabco Standard GmbH Germany
Wabco GmbH (formerly Wabco Germany
Westinghouse Fahrzeugbremsen)
Ideal Standard GmbH Germany
Ideal Standard SPA Italy
Wabco Standard Trane BV Netherlands
American Standard Sanitaryware Thailand
Thailand
[ ] United Kingdom
ANNEX I
Pursuant to Section 4(d) of the Underwriting Agreement,
the accountants shall furnish letters to the Underwriters to the
effect that:
(i) They are independent certified public
accountants with respect to the Company within the meaning of
the Act and the applicable published rules and regulations
thereunder;
(ii) In their opinion, the financial statements and
any supplementary financial information and schedules (and, if
applicable, pro forma financial information) examined by them
and included or incorporated by reference in the Registration
Statement or the Prospectus comply as to form in all material
respects with the applicable accounting requirements of the
Act or the Exchange Act, as applicable, and the related
published rules and regulations thereunder;
(iii) They have made a review in accordance with
standards established by the American Institute of Certified
Public Accountants of the unaudited condensed consolidated
statements of income, consolidated balance sheets and
consolidated statements of cash flows included in the
Prospectus and/or included in Guarantor's and Issuer's
quarterly reports on Form 10-Q incorporated by reference into
the Prospectus; and on the basis of specified procedures
including inquiries of officials of Guarantor and Issuer who
have responsibility for financial and accounting matters
regarding whether the unaudited condensed consolidated
financial statements referred to in paragraph (iv)(A)(i) below
comply as to form in all material respects with the applicable
accounting requirements of the Act and the Exchange Act and
the related published rules and regulations, nothing came to
their attention that caused them to believe that the unaudited
condensed consolidated financial statements do not comply as
to form in all material respects with the applicable
accounting requirements of the Act and the Exchange Act and
the related published rules and regulations;
(iv) On the basis of limited procedures, not
constituting an examination in accordance with generally
accepted auditing standards, consisting of a reading of the
unaudited financial statements and other information
-2-
referred to below, a reading of the latest available interim
financial statements of the Guarantor and Issuer, inspection
of the minute books of the Guarantor and Issuer since the date
of the latest audited financial statements included or
incorporated by reference in the Prospectus, inquiries of
officials of the Guarantor and Issuer responsible for
financial and accounting matters and such other inquiries and
procedures as may be specified in such letter, nothing came to
their attention that caused them to believe that:
(A) (i) the unaudited condensed consolidated
statements of income, consolidated balance sheets
and consolidated statements of cash flows included
the Prospectus and/or included or incorporated by
reference in Guarantor's and Issuer's Quarterly
Reports on Form 10-Q incorporated by reference in
the Prospectus do not comply as to form in all
material respects with the applicable accounting
requirements of the Exchange Act and the related
published rules and regulations, or (ii) any
material modifications should be made to the
unaudited condensed consolidated statements of
income consolidated balance sheets and consolidated
statements of cash flows included in the Prospectus
or included in Guarantor's or Issuer's Quarterly
Reports on Form 10-Q incorporated by reference in
the Prospectus, for them to be in conformity with
generally accepted accounting principles;
(B) any unaudited pro forma consolidated
condensed financial statements included or
incorporated by reference in the Prospectus do not
comply as to form in all material respects with the
applicable accounting requirements of the Act and
the published rules and regulations thereunder or
the pro forma adjustments have not been properly
applied to the historical amounts in the compilation
of those statements;
(C) as of , there have been any changes in the
consolidated capital stock or any increase in the
consolidated long-term debt of the Company, or any
decreases in consolidated net current assets or
increases in stockholders' deficit or other items
specified by the Underwriters, or any increases or
decreases in any
-3-
items specified by the Underwriters, in each case as
compared with amounts shown in the latest balance
sheet included or incorporated by reference in the
Prospectus, except in each case for changes,
increases or decreases which the Prospectus
discloses have occurred or may occur, which may
result from exchange rate movements, which may
result from the award of shares net of repurchases
of which are described in such letter; and
(D) for the period from the date of the latest
financial statements included or incorporated by
reference in the Prospectus to the specified date
referred to in clause (C) there were any decreases
in consolidated net revenues or consolidated net
income or other items specified by the Underwriters,
or any increases in any items specified by the
Underwriters, in each case as compared with the
comparable period of the preceding year and with any
other period of corresponding length specified by
the Underwriters, except in each case for increases
or decreases which the Prospectus discloses have
occurred or may occur or which are described in such
letter; and
(v) In addition to the examination referred to in
their report(s) included or incorporated by reference in the
Prospectus and the limited procedures, inspection of minute
books, inquiries and other procedures referred to in
paragraphs (iii) and (iv) above, they have carried out certain
specified procedures, not constituting an examination in
accordance with generally accepted auditing standards, with
respect to certain amounts, percentages and financial
information specified by the Underwriters which are derived
from the general accounting records of the Company and its
subsidiaries, which appear in the Prospectus (excluding
documents incorporated by reference) or in Part II of, or in
exhibits and schedules to, the Registration Statement
specified by the Underwriters or in documents incorporated by
reference in the Prospectus specified by the Underwriters, and
have compared certain of such amounts, percentages and
financial information
-4-
with the accounting records of Guarantor and Issuer and have
found them to be in agreement.
