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EXHIBIT 1.1
THE ▇▇▇▇▇▇▇▇ COMPANIES, INC.
UNDERWRITING AGREEMENT
STANDARD PROVISIONS (DEBT)
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From time to time, The ▇▇▇▇▇▇▇▇ Companies Inc., a Delaware
corporation (the "Company"), may enter into one or more underwriting agreements
substantially in the form of Schedule I hereto that provide for the sale of
designated securities to the several Underwriters named therein. The standard
provisions set forth herein may be incorporated by reference in any such
underwriting agreement (an "Underwriting Agreement"). The Underwriting
Agreement, including the provisions incorporated therein by reference, is herein
referred to as this Agreement. Unless otherwise defined herein, terms defined in
the Underwriting Agreement are used herein as therein defined.
The Company proposes to issue from time to time debt
securities to be issued pursuant to the provisions of a senior debt indenture
dated as of November 10, 1997 (as it may be supplemented or amended from time to
time, the "Indenture") between the Company and Bank One Trust Company, N.A., as
Trustee.
The debt securities will have varying designations,
maturities, rates and times of payment of interest, selling prices, redemption
terms and other terms. Any such debt securities are herein sometimes
collectively referred to as the "Securities."
The Company has filed with the Securities and Exchange
Commission (the "Commission"), in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations thereunder
(herein referred to collectively as the "Act"), a registration statement
including a prospectus relating to the Securities and has filed with, or mailed
for filing to, the Commission a prospectus supplement or supplements
specifically relating to the Securities pursuant to Rule 424 under the Act. The
term Registration Statement means the registration statement as amended to the
date of the Underwriting Agreement and shall include any registration statement
filed pursuant to Rule 462(b) of the Act. The term "Basic Prospectus" means the
prospectus included in the Registration Statement. The term "Prospectus" means
the Basic Prospectus
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together with the prospectus supplement or preliminary abbreviated term sheet
(other than a preliminary prospectus supplement or preliminary abbreviated term
sheet) specifically relating to the Securities. The term "preliminary
prospectus" means a preliminary prospectus supplement or preliminary abbreviated
term sheet specifically relating to the Securities, together with the Basic
Prospectus. As used herein, the terms "Registration Statement", "Basic
Prospectus", "Prospectus" and "preliminary prospectus" shall include, in each
case, the material, if any, incorporated by reference therein.
The term Contract Securities means the Securities, if any, to
be purchased pursuant to the delayed delivery contracts substantially in the
form of Schedule II hereto, with such changes therein as the Company may
authorize or approve (the "Delayed Delivery Contracts"). The term "Underwriters'
Securities" means the Securities other than Contract Securities.
The Company and the Underwriters agree as follows:
1. Sale and Purchase. If the Prospectus provides for sales of
Securities pursuant to Delayed Delivery Contracts, the Company hereby authorizes
the Underwriters to solicit offers to purchase Contract Securities on the terms
contained in the Delayed Delivery Contracts. Delayed Delivery Contracts are to
be with institutional investors approved by the Company and of the types set
forth in the Prospectus. On the Closing Date (as hereinafter defined), the
Company will pay the Manager, as compensation for the accounts of the
Underwriters, the commissions set forth in the Underwriting Agreement in respect
of the Contract Securities. The Underwriters will not have any responsibility in
respect of the validity or the performance of Delayed Delivery Contracts.
If the Company executes and delivers Delayed Delivery
Contracts with institutional investors, the Securities comprising the Contract
Securities shall be deducted from the Securities to be purchased by the several
Underwriters, and the aggregate principal amount of Securities to be purchased
by each Underwriter shall be reduced pro rata in proportion to the principal
amount of Securities set forth opposite each Underwriter's name in the
Underwriting Agreement, except to the extent that the Manager determines that
such reduction shall be otherwise and so advises the Company.
The Company is advised by the Manager that the Underwriters
propose to make a public offering of their respective portions of the
Underwriters' Securities as soon after this Agreement is entered into as in the
Manager's judgment is advisable. The terms of the public offering of the
Underwriters' Securities are set forth in the Prospectus.
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2. Payment and Delivery. Payment for the Underwriters'
Securities shall be made by wire transfer to an account designated by the
Company at the time and place set forth in the Underwriting Agreement, upon
delivery to the Manager for the respective accounts of the several Underwriters
of the Underwriters' Securities registered in such names and in such
denominations as the Manager shall request in writing not less than one full
business day prior to the date of delivery. The time and date of such payment
and delivery with respect to the Underwriters' Securities are herein referred to
as the Closing Date.
3. Certain Covenants of the Company. In further consideration
of the agreements of the Underwriters herein contained, the Company covenants as
follows:
(a) To furnish you, without charge, one conformed copy of the
Registration Statement (including exhibits thereto and documents
incorporated therein by reference) and, during the period mentioned in
paragraph (c) below, as many copies of the Prospectus, any documents
incorporated therein by reference, and any supplements and amendments
thereto as you may reasonably request. The terms "supplement" and
"amendment" or "amend" as used in this Agreement shall include all
documents subsequently filed by the Company with the Commission
pursuant to the Securities Exchange Act of 1934, as amended, (the
"Exchange Act"), that are deemed to be incorporated by reference in the
Prospectus, including any abbreviated term sheets.
(b) Before amending or supplementing the Registration
Statement or the Prospectus, to furnish you a copy of each such
proposed amendment or supplement and to file no such proposed amendment
or supplement to which you reasonably object in writing; provided, that
the foregoing shall not apply to amendments or supplements that relate
to securities registered under the Registration Statement that are not
Securities.
(c) If, at any time when a Prospectus relating to the
Securities is in the opinion of your counsel required by law to be
delivered under the Act, any event shall occur as a result of which it
is necessary to amend or supplement the Prospectus in order to make the
statements therein, in light of the circumstances when the Prospectus
is delivered to a purchaser, not misleading, or if it is necessary to
amend or supplement the Prospectus to comply with law, forthwith to
prepare and furnish, at its own expense, to the Underwriters and to the
dealers (whose names and addresses you will furnish to the Company) to
which Securities may have been sold by you on behalf of the
Underwriters and to any other dealers upon request, either
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amendments or supplements to the Prospectus so that the statements in
the Prospectus as so amended or supplemented will not, in light of the
circumstances when the Prospectus is delivered to a purchaser, be
misleading or so that the Prospectus will comply with law.
(d) To endeavor to qualify the Securities for offer and sale
under the securities or Blue Sky laws of such jurisdictions as you
shall reasonably request and to pay all expenses (including fees and
disbursements of counsel) in connection therewith as well as all fees,
if any, payable in connection with the review of the offering of the
Securities by the National Association of Securities Dealers, Inc. and
the determination of the eligibility of the Securities for investment
under the laws of such jurisdictions as the Manager may designate.
(e) To make generally available to the Company's security
holders as soon as practicable an earnings statement or statements of
the Company which shall satisfy the provisions of Section 11(a) of the
Act and the rules and regulations of the Commission thereunder.
(f) During the period beginning on the date of this Agreement
and continuing to and including the Closing Date, not to offer, sell,
contract to sell or otherwise dispose of any securities of the Company
substantially similar to the Securities other than the Securities, if
any, without the prior written consent of the Manager.
4. Reimbursement of Underwriters' Expenses. If this Agreement
shall be terminated by the Underwriters or any of them, because of any failure
or refusal on the part of the Company to comply with the terms or to fulfill any
of the conditions of this Agreement in any material respect, or if for any
reason the Company shall be unable to perform its obligations under this
Agreement in any material respect, the Company will reimburse the Underwriters
or such Underwriters as have so terminated this Agreement, with respect to
themselves, severally, for all out-of-pocket expenses (including the fees and
disbursements of their counsel) reasonably incurred by such Underwriters in
connection with the Securities.
5. Certain Covenants of the Underwriters.
Each of the several Underwriters agrees with the Company that:
(a) it will not offer, sell, resell, or deliver, directly or
indirectly, any Securities in bearer form (including any Security in
global form that is exchangeable for Securities in bearer form) within
the United States of
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America, its territories and possessions and other areas subject to its
jurisdiction and the Commonwealth of Puerto Rico (the "United States")
in connection with their original issuance or during the period set
forth in the Prospectus;
(b) it will not offer, sell, resell or deliver, directly or
indirectly, Securities in bearer form, in connection with their
original issuance or during such period, to a United States Person
(which term, as used herein, means any citizen, national or resident of
the United States, any corporation, partnership or other entity created
or organized in or under the laws of the United States or any political
subdivision thereof or any estate or trust the income of which is
subject to United States federal income taxation regardless of its
source) other than to an office located outside the United States of a
financial institution as defined in Section 1.165-12(c)(1)(v) of the
Treasury Department Regulations, purchasing for its own account or for
the account of a customer and that provides a written statement that it
will comply with Section 165(j)(3)(A), (B) or (C) of the Internal
Revenue Code of 1986, as amended from time to time, and the regulations
thereunder, which financial institution, as a condition of the
purchase, agrees to provide on delivery of such Securities (or on
issuance of such Securities if not in definitive form) the certificate
required in paragraph (c) below;
(c) it will deliver to each purchaser from it of any
Securities in bearer form (including Securities initially represented
by a temporary global certificate) a written confirmation stating
substantially the following:
"By your purchase of Securities in bearer form you represent
that you are not a United States Person or, if you are a United States Person,
that you are a financial institution as defined in Section 1.165-12(c)(1)(v) of
the Treasury Department Regulations, purchasing for your own account or for the
account of a customer and that you will comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as amended from
time to time, and the regulations thereunder. Furthermore, if you are a dealer,
you agree that you will deliver a confirmation containing this entire paragraph
to purchasers of such Securities from you. For purposes of this statement,
'United States Person' means any citizen, national or resident of the United
States, any corporation, partnership or other entity created or organized in or
under the laws of the United States or any political subdivision thereof or any
estate or trust the income of which is subject to United States federal income
taxation regardless of its source, and 'United States' means the United States
of America, its territories and possessions and other areas subject to its
jurisdiction and the Commonwealth of Puerto Rico."
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(d) it will deliver Securities in definitive bearer form to
the person entitled to delivery thereof (or transfer of interests
therein) only outside the United States and upon receipt of a written
confirmation stating substantially the following:
"This confirms as of the date hereof that none of the
Securities issued in bearer form delivered or credited to you for our account
are being acquired by or on behalf of, or for offer to resell or for resale to,
a United States Person, or any person inside the United States, or, if a
beneficial interest in such Securities issued in bearer form is being acquired
by a United States Person, that such person is a financial institution as
defined in Section 1.165-12(c)(1)(v) of the Treasury Department Regulations, or
is acquiring such Securities through such a financial institution and that such
Securities are held by a financial institution that has agreed to comply with
Section 165 (j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as
amended from time to time, and the regulations thereunder, and is not purchasing
for offer to resell or for resale inside the United States. As used herein,
'United States Person' means any citizen, national or resident of the United
States, any corporation, partnership or other entity created or organized in or
under the laws of the United States or any political subdivision thereof or any
estate or trust the income of which is subject to United States federal income
taxation regardless of its source, and 'United States' means the United States
of America, its territories and possessions and other areas subject to its
jurisdiction and the Commonwealth of Puerto Rico."; provided, however, that (i)
if it has actual knowledge that the information contained in any confirmation
delivered pursuant to (c) or (d) above is false, it shall not deliver any
Securities in bearer form to, or, if applicable, cause a transfer of an interest
in any Global Security to the account of, the person who signed or delivered the
confirmation referred to in (d) above notwithstanding the delivery of such
confirmation to it, and (ii) when a certificate is provided by a clearing
organization, it must be based on statements provided to it by its member
organizations. As used herein, a "clearing organization" is an entity that is in
the business of holding obligations for member organizations and transferring
obligations among such members by credit or debit to the account of a member
without the necessity of physical delivery of the obligation; and
(e) it will comply with or observe any other restrictions or
limitations set forth in the Prospectus on persons to whom, or the
jurisdictions in which, or the manner in which, the Securities may be
offered, sold, resold or delivered.
If Underwriters' Securities are to be distributed through a selling
group consisting of banks, brokers or dealers, the Manager agrees that it shall
cause each
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member of such selling group to enter into an agreement that it will comply with
this Section 5.
6. Conditions of Underwriters' Obligations. The several
obligations of the Underwriters to purchase and pay for any issue of
Underwriters' Securities hereunder are subject to the following conditions:
(a) Subsequent to the execution and delivery of the
Underwriting Agreement and prior to the Closing Date:
(i) the representations and warranties of the Company
contained herein are true and correct in all material respects
as of the Closing Date;
(ii) the Registration Statement has become effective,
no stop order suspending the effectiveness of the Registration
Statement shall be in effect, and no proceedings for such
purpose shall be pending before or threatened by the
Commission;
(iii) there shall not have occurred any downgrading,
nor shall any notice have been given of any intended or
potential downgrading or of any review for a possible change
that does not indicate the direction of the possible change,
in the rating accorded any of the Company's securities by any
"nationally recognized statistical rating organization," as
such term is defined for purposes of Rule 436(g)(2) under the
Securities Act; and
(iv) there shall not have occurred any change, or any
development involving a prospective change, in the condition,
financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a
whole, from that set forth in the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of
this Agreement) that, in the judgment of the Manager, is
material and adverse and that makes it, in the judgment of the
Manager, impracticable to market the Offered Securities on the
terms and in the manner contemplated in the Prospectus.
(b) That, at the Closing Date, the Company shall furnish to
the Manager an opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇, Esq., General Counsel
of The ▇▇▇▇▇▇▇▇ Companies, Inc., dated the Closing Date, in
substantially the form set forth as Exhibit A.
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(c) That, at the Closing Date, the Manager shall receive an
opinion of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Underwriters, dated
the Closing Date, in substantially the form set forth as Exhibit B.
(d) That, at the Closing Date, the Company shall furnish to
the Manager a letter addressed to the Underwriters and dated the
Closing Date, in form and substance satisfactory to the Manager, from
Ernst & Young LLP independent public accountants, 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 relating to the Company
contained in or incorporated by reference into the Registration
Statement and the Prospectus.
(e) That, at the Closing Date, the Company shall have
furnished to the Manager a certificate dated the Closing Date and
signed by an officer of the Company, to the effect set forth in
6(a)(i), (ii) and (iii) above and further to the effect that there has
not occurred any material adverse change, or any development which
could reasonably be expected to result in a prospective material
adverse change, in the financial condition, or in the earnings,
business or operations of the Company and its subsidiaries, taken as a
whole, from that set forth in the Registration Statement and the
Prospectus as supplemented by the Prospectus Supplement. The officer
signing and delivering such certificate may rely upon the best of his
knowledge as to proceedings threatened.
(f) That, the Company shall have performed in all material
respects such of its obligations under this Agreement as are to be
performed by the terms hereof at or before the time of purchase.
(g) That, the Company shall have accepted Delayed Delivery
Contracts, if any, in any case in which sales of Contract Securities
arranged by the Underwriters have been approved by the Company.
7. Defaulting Underwriters. If any Underwriter or Underwriters
shall default in its or their obligation to take up and pay for the Securities
to be purchased by it or them hereunder, the non-defaulting Underwriters shall
take up and pay for (in addition to the principal amount of Securities they are
obligated to purchase hereunder) the principal amount of Securities agreed to be
purchased by all such defaulting Underwriters as hereinafter set forth;
provided, however, that in the event that the principal amount of Securities
which all Underwriters so defaulting shall have agreed but failed to take up and
pay for shall exceed 10% of the total principal amount of Securities, the
non-defaulting Underwriters shall have the right to purchase all, but shall not
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be under any obligation to purchase any of the Securities, and if such
non-defaulting Underwriters do not purchase all the Securities, this Agreement
will terminate without liability to any non-defaulting Underwriter or the
Company. If non-defaulting Underwriters take up and pay for all Securities,
agreed to be purchased by all such defaulting Underwriters, such Securities
shall be taken up and paid for by such non-defaulting Underwriter or
Underwriters in such amount or amounts as the Manager may designate with the
consent of each Underwriter so designated or, in the event no such designation
is made, such Securities shall be taken up and paid for by all non-defaulting
Underwriters pro rata in proportion to the aggregate principal amount of
Securities set opposite the names of such non-defaulting Underwriters herein.
Without relieving any defaulting Underwriter from its
obligations hereunder, the Company agrees with the non-defaulting Underwriters
that it will not sell any Securities hereunder unless all of the Underwriters'
Securities are purchased by the Underwriters (or by substituted underwriters
selected by the Manager with the approval of the Company or selected by the
Company with the Manager's approval).
If a new underwriter or underwriters are substituted by the
Underwriters or by the Company for a defaulting Underwriter or Underwriters in
accordance with the foregoing provisions, the Company or the Manager shall have
the right to postpone the Closing Date for a period not exceeding five business
days in order that necessary changes in the Registration Statement and
Prospectus and other documents may be effected.
The term Underwriter as used in this Agreement shall refer to
and include any underwriter substituted under this Section 7 with like effect as
if such substituted underwriter had originally been named herein.
8. Representations and Warranties. The Company represents and
warrants to each of the Underwriters that:
(a) each document filed or to be filed pursuant to the
Securities Exchange Act of 1934 (the "Exchange Act") and incorporated
by reference in the Registration Statement and the Prospectus, complied
or will comply when so filed in all material respects with the Exchange
Act and the applicable rules and regulations thereunder;
(b) each part of the Registration Statement and 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
Act, complied when so filed in all material respects with the Act;
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(c) the Registration Statement and the Prospectus (as amended
or supplemented if the Company shall have furnished any amendments or
supplements thereto) will comply in all material respects with the Act
and will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to
make the statements therein, in light of circumstances under which the
statements are made, not misleading;
(d) the representations and warranties set forth in this
Section 8(a)- (c) do not apply (1) to statements or omissions in the
Registration Statement or the Prospectus based upon information
relating to any Underwriter furnished to the Company in writing by any
Underwriter expressly for use therein or (2) to that part of the
Registration Statement that constitutes a Statement of Eligibility and
Qualification (Form T-1) under the Trust Indenture Act of 1939, as
amended, of the Trustee referred to in the Registration Statement;
(e) Ernst & Young LLP, who have reported upon the audited
financial statements and schedules included or incorporated by
reference in the Registration Statement, are independent public
accountants as required by the Act;
(f) this Agreement has been duly authorized, executed and
delivered by the Company;
(g) the Company and each of its significant subsidiaries (as
defined in Rule 1-02 of Regulation S-X under the Securities Act) (each,
a "Significant Subsidiary" and collectively, "Significant
Subsidiaries") have been duly incorporated (in the case of each
Significant Subsidiary which is a corporation) or otherwise validly
formed and are validly existing in good standing under the laws of
their respective jurisdictions of organization, are duly qualified to
do business and are in good standing in each jurisdiction in which
their respective ownership or lease of property or the conduct of their
respective businesses requires such qualification, except where failure
to have such qualifications would not, singly or in the aggregate, have
a material adverse effect on the consolidated financial position,
results of operation, business or prospects of the Company and its
subsidiaries, taken as a whole, and have all power and authority
necessary to own or hold their respective properties and to conduct the
businesses in which they are engaged;
(h) the Company has an authorized capitalization as set forth
in the Prospectus and all of the issued shares of capital stock of the
Company
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have been duly authorized and validly issued, are fully paid and non-
assessable and conform to the description thereof contained in the
Prospectus; and all of the issued shares of capital stock of each
Significant Subsidiary (in the case of each Significant Subsidiary
which is a corporation) have been duly authorized and validly issued
and are fully paid and non-assessable and (except for directors'
qualifying shares and as disclosed in the Prospectus) are owned
directly or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims;
(i) the Indenture, each supplement or amendment thereto, if
any, to the date hereof and any supplement thereto or board resolution
setting forth the terms of the Securities, have been duly authorized by
the Company. The Indenture as executed is or will be substantially in
the form filed as an exhibit to the Registration Statement. The
Indenture, when duly executed and delivered by the Company and, when
duly authorized, executed and delivered (to the extent required by the
Indenture) by the Trustee, will constitute a valid and binding
obligation of the Company, enforceable against the Company in
accordance with its terms, except as 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); and the Indenture conforms in all material
respects to the description thereof in the Prospectus;
(j) the Securities have been duly authorized by the Company.
When duly executed, authenticated, issued and delivered in the manner
provided for in the Indenture and sold and paid for as provided herein
and in any Delayed Delivery Contracts, the Securities 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, except as 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); and the Securities conform in all material
respects to the description thereof in the Prospectus;
(k) since the respective dates as of which information is
given in the Registration Statement, the Prospectus (or any amendment
or supplement thereto), except as otherwise stated therein or
contemplated
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thereby, there has not been (A) any material adverse change in the
condition (financial or otherwise), earnings, business affairs or
business prospects of the Company and its subsidiaries, taken as a
whole, whether or not arising in the ordinary course of business and
(B) any transaction entered into by the Company or any of its
subsidiaries, other than in the ordinary course of business, that is
material to the Company and its subsidiaries, taken as a whole;
(l) the execution and delivery by the Company of this
Agreement, the Indenture and any Delayed Delivery Contracts, the
issuance and delivery of the Securities, the consummation by the
Company of the transactions contemplated herein and compliance by the
Company with the terms of this Agreement, the Indenture and any delayed
Delivery Contracts, have been duly authorized by all necessary
corporate action on the part of the Company and do not and will not
result in any violation of the charter or by-laws of the Company or any
of its subsidiaries, and do not and will not conflict with, or result
in a breach of any of the terms or provisions of, or constitute a
default 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 under (A) any contract, indenture, mortgage, loan
agreement, note, lease or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which it is bound
or to which any of its properties is subject (except for such
conflicts, breaches or defaults or liens, charges or encumbrances that
could not reasonably be expected to have a material adverse effect on
the condition (financial or otherwise), earnings, or business of the
Company and its subsidiaries, taken as a whole) or (B) any existing
applicable law, rule, regulation, judgment, order or decree or
determination of any government, governmental instrumentality
(including without limitation, any insurance regulatory agency or body)
or court, domestic or foreign, having jurisdiction over the Company or
any of its subsidiaries or any of their respective properties;
(m) no authorization, approval, consent or license of any
government, governmental instrumentality or court, domestic or foreign
(other than under the Act, the Trust Indenture Act and the applicable
rules and regulations thereunder, and the securities or blue sky laws
of the various states and other jurisdictions outside the United States
in which the Securities will be offered or sold), is required for the
valid authorization, issuance, sale and delivery of the Securities or
for the execution, delivery or performance of the Indenture by the
Company;
(n) except as disclosed in the Prospectus (or any amendment or
supplement thereto), there is no action, suit or proceeding before or
by any
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government, governmental instrumentality or court, domestic or foreign,
now pending or, to the knowledge of the Company, threatened against or
affecting the Company or any of its subsidiaries that is required to be
disclosed in the Prospectus or that could reasonably be expected to
result in any material adverse change in the condition (financial or
otherwise), earnings or business of the Company and its subsidiaries,
taken as a whole, or that could reasonably be expected to materially
and adversely affect the properties or assets of the Company and its
subsidiaries, taken as a whole, or that could reasonably be expected to
adversely affect the consummation of the transactions contemplated in
this Agreement;
(o) the Company and each of its Significant Subsidiaries
carry, or are covered by, insurance in such amounts and covering such
risks as the Company believes is adequate for the conduct of their
respective businesses and the value of their respective properties and
as the Company believes is customary for companies engaged in similar
businesses in similar industries;
(p) there are no statutes, regulations, contracts or documents
of a character required to be described in the Registration Statement
or the Prospectus (or any amendment or supplement thereto) or to be
filed as exhibits to the Registration Statement that are not described
and filed (or incorporated by reference) as required;
(q) the Company and its subsidiaries each owns or possesses
all governmental licenses, permits, certificates, consents, orders,
approvals and other authorizations (collectively, "Governmental
Licenses") necessary to own or lease, as the case may be, and to
operate its properties and to carry on its business as presently
conducted, except where the failure to possess such Governmental
Licenses could not reasonably be expected to have a material adverse
effect on the condition (financial or otherwise), earnings or business
of the Company and its subsidiaries, taken as a whole, and neither the
Company nor any of its subsidiaries has received any notice of
proceedings relating to revocation or modification of any such
Governmental Licenses;
(r) the Company is not an investment company under the
Investment Company Act of 1940;
(s) the Company (i) makes and keeps accurate books and records
and (ii) maintains internal accounting controls which provide
reasonable assurance that (A) transactions are executed in accordance
with management's authorization, (B) transactions are recorded as
necessary to
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permit preparation of its financial statements and to maintain
accountability for its assets, (C) access to its assets is permitted
only in accordance with management's authorization and (D) the reported
accountability for its assets is compared with existing assets at
reasonable intervals;
(t) neither the Company nor any of its Significant
Subsidiaries (i) is in violation of its charter or by-laws, (ii) is in
default in any material respect, and no event has occurred which, with
notice or lapse of time or both, would constitute such a default, in
the due performance or observance of any term, covenant or condition
contained in any material indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which it is a party or by
which it is bound or to which any of its properties or assets is
subject or (iii) is in violation in any material respect of any law,
ordinance, governmental rule, regulation or court decree to which it or
its property or assets may be subject or has failed to obtain any
material license, permit, certificate, franchise or other governmental
authorization or permit necessary to the ownership of its property or
to the conduct of its business except, in case of (ii) and (iii), for
such defaults, violations, or failures to obtain such authorizations or
permits that have not had or are not reasonably expected to have, a
material adverse effect on the consolidated financial condition,
results of operations, business or prospects of the Company and its
subsidiaries, taken as a whole; and
(u) there has been no storage, disposal, generation,
manufacture, refinement, transportation, handling or treatment of toxic
wastes, medical wastes, hazardous wastes or hazardous substances by the
Company or any of its Significant Subsidiaries (or, to the knowledge of
the Company, any of their predecessors in interest) at, upon or from
any of the property now or previously owned or leased by the Company or
its Significant Subsidiaries in violation of any applicable law,
ordinance, rule, regulation, order, judgment, decree or permit or which
would require remedial action under any applicable law, ordinance,
rule, regulation, order, judgment, decree or permit, except for any
violation or remedial action which would not have, or could not be
reasonably likely to have, singularly or in the aggregate with all such
violations and remedial actions, a material adverse effect on the
consolidated financial position, results of operations, business or
prospects of the Company and its subsidiaries, taken as a whole; there
has been no material spill, discharge, leak, emission, injection,
escape, dumping or release of any kind onto such property or into the
environment surrounding such property of any toxic wastes, medical
wastes, solid wastes, hazardous wastes or hazardous substances due to
or caused by the Company or any of its Significant Subsidiaries or with
respect to which the
14
15
Company or any of its Significant Subsidiaries have knowledge, except
for any such spill, discharge, leak, emission, injection, escape,
dumping or release which would not have or would not be reasonably
likely to have, singularly or in the aggregate with all such spills,
discharges, leaks, emissions, injections, escapes, dumpings and
releases, a material adverse effect on the consolidated financial
position, results of operations, business or prospects of the Company
and its subsidiaries, taken as a whole; and the terms "hazardous
wastes", "toxic wastes", "hazardous substances" and "medical wastes"
shall have the meanings specified in any applicable local, state,
federal and foreign laws or regulations with respect to environmental
protection.
9. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of Section 15 of the Act or Section
20 of the Exchange Act as follows:
(i) against any and all losses, claims, damages,
liabilities and expenses 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 information deemed to be
part of the Registration Statement pursuant to Rule 430A(b) of
the Act, if applicable, or 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 or
arising out of any untrue statement or alleged untrue
statement of a material fact contained in any preliminary
prospectus or 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; provided that (subject
to Section 9(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, subject to the third sentence of Section
9(c) hereof, the
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reasonable fees and disbursements of counsel chosen by the
Manager for the Underwriters), 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 to the extent that any
such expense is not paid under (i) and (ii) above;
(iv) 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 any Underwriter through the
Manager for the Underwriters expressly for use in the
Registration Statement (or any amendment thereto) or any
preliminary prospectus or the Prospectus (or any amendment or
supplement thereto); and provided, further, that the foregoing
indemnity agreement with respect to any preliminary prospectus
shall not inure to the benefit of any Underwriter from whom
the person asserting any such losses, claims, damages or
liabilities purchased Securities, or any person so controlling
such Underwriter, (i) if a copy of the Prospectus (as then
amended or supplemented if the Company shall have furnished
sufficient copies of amendments or supplements thereto to such
Underwriter) was not sent or given by or on behalf of such
Underwriter to such person, where such delivery is required by
the Act, at or prior to the written confirmation of the sale
of the Securities to such person, and (ii) if the Prospectus
(as so amended or supplemented) would have fully cured the
defect giving rise to such loss, claim, damage or liability.
(b) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers
who sign the Registration Statement and each person, if any, who
controls the Company within the meaning of either Section 15 of the
Act, or Section 20 of the Exchange Act to the same extent as the
foregoing indemnity from the Company to each Underwriter, but only with
respect to untrue statements or omissions made in the Registration
Statement (or any amendment thereto) or any preliminary prospectus 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)
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or such preliminary prospectus or the Prospectus (or any amendment or
supplement thereto).
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of
which indemnity may be sought pursuant to either of the two preceding
paragraphs, such person (hereinafter called the indemnified party)
shall promptly notify the person against whom such indemnity may be
sought (hereinafter called the indemnifying party) in writing and the
indemnifying party, upon request of the indemnified party, shall retain
counsel reasonably satisfactory to the indemnified party to represent
the indemnified party and any others the indemnifying party may
designate in such proceeding and shall pay the reasonable fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the
expense of such indemnified party unless (i) the indemnifying party and
the indemnified party shall have mutually agreed to the retention of
such counsel or (ii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying party
and the indemnified party and representation of both parties by the
same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the
indemnifying party shall not, in respect of the legal expenses of any
indemnified party in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and
expenses of more than one separate firm (in addition to any local
counsel) for all such indemnified parties, and that all such fees and
expenses as shall be reasonable shall be reimbursed as they are
incurred. In the case of any such separate firm for the Underwriters
and such control persons of Underwriters, such firm shall be designated
in writing by the Manager. In the case of any such separate firm for
the Company, and such directors, officers and control persons of the
Company, such firm shall be designated in writing by the Company. The
indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with
such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and
against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified
party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as contemplated by
the third sentence of this paragraph, the indemnifying party agrees
that it shall be liable for any settlement of any proceeding effected
without its written consent if (i) such settlement is entered into more
than 30 days after receipt by such indemnifying party of the aforesaid
17
18
request and (ii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the date of
such settlement. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending
or threatened proceeding in respect of which any indemnified party is
or could have been a party and indemnity could have been sought
hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on
claims that are the subject matter of such proceeding.
(d) If the indemnification provided for in paragraphs (a) or
(b) of this Section 9 is unavailable to an indemnified party in respect
of any losses, claims, damages, liabilities or expenses referred to
therein, then each indemnifying party under such paragraph, in lieu of
indemnifying such indemnified party thereunder, shall contribute to the
amount paid or payable by such indemnified party as a result of such
losses, claims, damages, liabilities or expenses (i) in such proportion
as is appropriate to reflect the relative benefits received by the
Company and the Underwriters from the offering of the Securities
pursuant to this Agreement or (ii) if the allocation provided by clause
(i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of the Company and of the
Underwriters in connection with the statements or omissions which
resulted in such losses, claims, damages, liabilities or expenses, as
well as any other relevant equitable considerations. The relative
benefits received by the Company and the Underwriters shall be deemed
to be in the same respective proportions as the net proceeds from the
offering pursuant to this Agreement (before deducting expenses)
received by the Company and the total underwriting commissions received
by the Underwriters, in each case as set forth in the table on the
cover of the Prospectus, bear to the aggregate public offering price of
the Securities. The relative fault of the Company and the Underwriters
shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission
or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
(e) The Company and the Underwriters agree that it would not
be just and equitable if contribution pursuant to this Section 9 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 which does not take account of the equitable considerations
referred to in
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19
paragraph (d) above. The amount paid or payable by an indemnified party
as a result of the losses, claims, damages, liabilities and expenses
incurred by an indemnified party and referred to in paragraph (d) above
shall be deemed to include, subject to the limitations set forth above,
any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this Section 9, 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 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 Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 9, each person, if any,
who controls an Underwriter within the meaning of Section 15 of the Act
or Section 20 of the Exchange Act shall have the same rights to
contribution as such Underwriter, and each director 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 Act or
Section 20 of the Exchange Act shall have the same right to
contribution as the Company. The Underwriters' obligations to
contribute pursuant to this Section 9 are several in proportion to
their respective underwriting percentages determined by the ratio which
the original purchase obligation of any Underwriter appearing in the
Underwriting Agreement (or such amount increased as provided in Section
8 above) bears to the total purchase obligations of the Underwriters
set forth therein and not joint.
(f) The indemnity and contribution agreements contained in
this Section 9 and the representations and warranties of the Company
contained herein shall remain operative and in full force and effect
regardless of (1) any termination of this Agreement, (2) any
investigation made by or on behalf of any Underwriter or any person
controlling any Underwriter or by or on behalf of the Company, its
officers or directors or any other person controlling the Company and
(3) acceptance of and payment for any of the Securities.
10. Termination in Certain Events. This Agreement shall be
subject to termination in the Manager's absolute discretion, by notice given to
the Company, if (a) after the execution and delivery of this Agreement and prior
to the Closing Date (i) trading generally shall have been suspended or
materially limited on or by, as the case may be, any of the New York Stock
Exchange, the American Stock Exchange, the National Association of Securities
Dealers, Inc., the Chicago
19
20
Board of Options Exchange, the Chicago Mercantile Exchange or the Chicago Board
of Trade, (ii) trading of any securities of the Company shall have been
suspended on any exchange or in any over-the-counter market, (iii) a general
moratorium on commercial banking activities in New York shall have been declared
by either Federal or New York State authorities, or (iv) there shall have
occurred any outbreak or escalation of hostilities or any change in financial
markets or any calamity or crisis that, in the judgment of the Manager, is
material and adverse and (b) in the case of any of the events specified in
clauses (a)(i) through (iv), such event singly or together with any other such
event makes it, in the judgment of the Manager, impracticable to market the
Securities on the terms and in the manner contemplated in the Prospectus.
11. Counterparts. This Agreement may be signed by the parties
in counterparts which together shall constitute one and the same agreement
between the parties and shall become effective at such time as each of the
parties shall have signed such counterparts and shall have notified the other
party thereof.
12. Construction. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York.
13. Parties at Interest. This Agreement has been and is made
solely for the benefit of the Underwriters and the Company, and the controlling
persons, directors and officers referred to in Section 9 hereof, and their
respective successors, assigns, executors and administrators. No other person
shall acquire or have any right under or by virtue of this Agreement.
14. Section Headings. The Section headings in this Agreement
have been inserted as a matter of convenience of reference and are not a part of
this Agreement.
20
21
SCHEDULE I
UNDERWRITING AGREEMENT
, 200
------------- --
The ▇▇▇▇▇▇▇▇ Companies, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
[Name of Manager] (the "Manager") is acting on behalf of the
underwriters (including itself) named below (such underwriters being herein
called the "Underwriters"), and we understand that The ▇▇▇▇▇▇▇▇ Companies, Inc.,
a Delaware corporation (the "Company"), proposes to issue and sell $_________
aggregate principal amount of [_________ % Notes due _________] (the "Notes").
The Notes are also referred to herein as the "Securities."
Subject to the terms and conditions set forth or incorporated
by reference herein, the Company hereby agrees to sell and the Underwriters
agree to purchase, severally and not jointly, the respective principal amounts
of Notes set forth below opposite their names at a purchase price of _________%
of the principal amount of the Notes plus accrued interest, if any, from
_________, 200_ to the date of payment and delivery:
22
Principal
Amount of
Name Notes
---- -----
[List Underwriters]
Total........................ $
=============
The Underwriters will pay for such Notes upon delivery thereof
at the offices of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ at 10:00 a.m. (New York time) on
_________, 200_, or at such other time, not later than 10:00 a.m. (New York
time) on _________, 200_ as shall be jointly designated by the Manager and the
Company.
The Securities shall have the terms set forth in the
Prospectus dated December 5, 2000, and the Prospectus Supplement dated ______,
200_ (the "Prospectus Supplement"), including the following:
Maturity of Notes:
Interest Rate of Notes:
Redemption Provisions
Interest Payment Dates:
Form and Denomination: Global Notes registered in the name of a nominee of
The Depository Trust Company
All provisions contained in the document entitled The ▇▇▇▇▇▇▇▇
Companies, Inc. Underwriting Agreement Standard Provisions (Debt) dated
___________ , 200_, a copy of which is attached hereto, are herein incorporated
by reference in their entirety [(except for Sections 5(a), (b), (c) and (d)
thereof)] and shall be deemed to be a part of this agreement to the same extent
as if such provisions had been set forth in full herein. Each reference to the
Managers in the provisions of the Underwriting Agreement Standard Provisions
(Debt) so incorporated by reference shall be deemed to refer to us. Unless
otherwise defined herein, terms
I - 2
23
defined in the Underwriting Agreement Standard Provisions (Debt) are used herein
as therein defined.
[BALANCE OF PAGE LEFT INTENTIONALLY BLANK]
I - 3
24
Please confirm your agreement by having an authorized officer
sign a copy of this agreement in the space set forth below and returning the
signed copy to us.
Very truly yours,
[UNDERWRITERS]
By [Name of Manager]
By
-----------------------------------------------
Acting severally on behalf
of itself and the other several
Underwriters named above
Accepted:
THE ▇▇▇▇▇▇▇▇ COMPANIES, INC.
By
-----------------------------
Title:
I - 4
25
SCHEDULE II
DELAYED DELIVERY CONTRACT
---------------,
The ▇▇▇▇▇▇▇▇ Companies, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
The undersigned hereby agrees to purchase from The ▇▇▇▇▇▇▇▇
Companies, Inc., ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, a Delaware
corporation (the "Company"), and the Company agrees to sell to the undersigned
$___,000,000 principal amount of the Company's [ ]% Notes Due 200_ (the "Notes")
offered by the Company's Prospectus dated [ ]and Prospectus Supplement or
abbreviated term sheet dated ], receipt of copies of which are hereby
acknowledged, at a purchase price equal to ___% of the principal amount of such
Notes and on the further terms and conditions set forth in this contract. The
undersigned does not contemplate selling Notes prior to making payment therefor.
The undersigned will purchase from the Company the principal
amounts of Notes on the delivery dates (the "Delivery Dates") set forth below.
[Plus Accrued Interest
From] [and]
[Amortization of
Original Issue
[Principal Amount] Discount From]
$
---------- ---------- ----------
---------- ---------- ----------
---------- ---------- ----------
Payment for the Notes which the undersigned has agreed to
purchase on each Delivery Date shall be made to the Company or its order by
certified or official bank check in New York Clearing House funds at the office
of
26
_________________________, New York, New York (or at such other place as the
undersigned and the Company shall agree), at 10:00 A.M., New York City time, on
such Delivery Date, upon delivery to the undersigned of the Notes to be
purchased by the undersigned on the Delivery Date, in such denominations and
registered in such names as the undersigned may designate by written or
telegraphic communication addressed to the Company not less than five full
business days prior to the Delivery Date.
The obligation of the undersigned to take delivery of and make
payment for the Notes on the Delivery Date shall be subject to the conditions
that (1) the purchase of Notes to be made by the undersigned shall not at the
time of delivery be prohibited under the laws of the jurisdiction to which the
undersigned is subject and (2) the Company shall have sold and had delivered to
the underwriters (the "Underwriters") named in the Prospectus Supplement
referred to above such part of the Notes as is to be sold to them.
Promptly after completion of sale and delivery to the
Underwriters, the Company will mail or deliver to the undersigned at its address
set forth below notice to such effect, accompanied by copies of the opinions of
counsel for the Company delivered to the Underwriters in connection therewith.
Failure to take delivery of and make payment for Notes by any
purchaser under any other Delayed Delivery Contract shall not relieve the
undersigned of its obligations under this contract.
The undersigned represents and warrants that, (a) as of the
date of this contract, the undersigned is not prohibited under the laws of the
jurisdictions to which the undersigned is subject from purchasing the Notes
hereby agreed to be purchased and (b) the undersigned does not contemplate
selling the Notes which it has agreed to purchase hereunder prior to the
Delivery Date therefor.
This contract will inure to the benefit of and be binding upon
the parties hereto and their respective successors, but will not be assignable
by either party hereto without the written consent of the other. This contract
shall be governed by and construed in accordance with the laws of the State of
New York. This contract may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
It is understood that the acceptance of any Delayed Delivery
Contract is in the Company's sole discretion and, without limiting the
foregoing, need not be on a first-come, first-served basis. If the contract is
acceptable to the Company, it is requested that the Company sign the form of
acceptance below and
II - 2
27
mail or deliver one of the counterparts hereof to the undersigned at its address
set forth below. This will become a binding contract, as of the date first above
written, between the Company and the undersigned when such counterpart is so
mailed or delivered.
Yours very truly,
------------------------------------------
Purchaser
By:
---------------------------------------
------------------------------------------
(Title)
------------------------------------------
(Address)
II - 3
28
PURCHASER--- PLEASE COMPLETE AT TIME OF SIGNING
The name, telephone number and department of the
representative of the Purchaser with whom details of delivery on the Delivery
Date may be discussed is as follows: (Please print.)
Telephone No.
Name (Including Area Code) Department
---- --------------------- ----------
II - 4
29
EXHIBIT A
FORM OF
OPINION OF
▇▇▇▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇, ESQ.
GENERAL COUNSEL OF THE ▇▇▇▇▇▇▇▇ COMPANIES, INC.
Ladies and Gentlemen:
I have acted as counsel to The ▇▇▇▇▇▇▇▇ Companies, Inc., a
Delaware corporation (the "Company"), in connection with the Underwriting
Agreement dated [ ], 200 (the "Underwriting Agreement") between you and the
Company, pursuant to which the Underwriters severally agree to purchase from the
Company an aggregate of $___,000,000 principal amount of the Company's [ ]%
Notes Due 200_ ( the "Securities") issued or to be issued pursuant to a senior
indenture dated as of November 10, 1997 (the "Indenture") between the Company
and Bank One Trust Company, N.A., as Trustee (the "Trustee") to be issued
pursuant to the Indenture. I, or persons responsible to me, have examined
originals or copies, certified or otherwise identified to my satisfaction, and
such documents, corporate records, certificates of public officials and other
instruments as I have deemed necessary or advisable for the purpose of rendering
this opinion. Defined terms herein unless otherwise specified shall have the
meaning specified in the Underwriting Agreement.
I have also examined copies of the Registration Statement on
Form S-3 (File No. ) relating to up to $___,000,000 aggregate principal amount
of Securities filed with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Securities
Act"), exhibits thereto and documents incorporated by reference therein. Such
A-1
30
Registration Statement is now effective, and is herein called the "Registration
Statement". The prospectus constituting a part thereof, in the form filed with
the Commission pursuant to Rule 424 of the rules and regulations under the Act,
together with the prospectus supplement (other than a preliminary prospectus
supplement) specifically relating to the Securities, as filed with, or
transmitted for filing to, the Commission pursuant to Rule 424, is herein called
the "Prospectus".
Based upon the foregoing, I am of the opinion that:
(1) The Company and each of its Significant Subsidiaries have
been duly incorporated (in the case of each Significant Subsidiary that is a
corporation) or otherwise validly formed and are validly existing in good
standing under the laws of their respective jurisdictions of organization, are
duly qualified to do business and are in good standing in each jurisdiction in
which their respective ownership or lease of property or the conduct of their
respective businesses requires such qualification, except to the extent such
failure to be qualified or in good standing would not have a material adverse
effect on the consolidated financial position, results of operations, business
or prospects of the Company and its subsidiaries, taken as a whole, and have all
power and authority necessary to own or hold their respective properties and
conduct the businesses in which they are engaged as described in or contemplated
by the Registration Statement; and all of the issued shares of capital stock of
each Significant Subsidiary (in the case of each Significant Subsidiary that is
a corporation) have been duly and validly authorized and issued and are fully
paid, non-assessable and (except for directors' qualifying shares and as
disclosed in the Prospectus) are owned directly or indirectly by the Company,
free and clear of all liens, encumbrances, equities or claims.
(2) To the best of such counsel's knowledge and other than as
set forth in the Prospectus, there are no legal or governmental proceedings
pending to which the Company or any of its Significant Subsidiaries is a party
or of which any property or assets of the Company or any of its Significant
Subsidiaries is the subject which could reasonably be expected to have a
material adverse effect on the consolidated financial position, results of
operations, business or prospects of the Company and its subsidiaries, taken as
a whole; and, to the best of such counsel's knowledge, no such proceedings are
threatened or pending by governmental authorities or threatened by others.
(3) The Company and its subsidiaries hold all franchises,
certificates of public convenience and necessity, consents, authorizations,
approvals, orders, permits, licenses and easements necessary to own, operate and
maintain its properties as described in the Prospectus, subject only to such
defects, irregularities, restrictions, conditions and other matters as are
described in the
A-2
31
Prospectus or which do not materially affect the right of the Company or its
subsidiaries to own, operate and maintain its properties and to conduct its
business as described therein, and has made all declarations and filings with,
all federal, state, local and other governmental authorities, and all courts or
other tribunals, necessary to conduct its business in the manner described in
the Prospectus, except to the extent that the lack of such consents,
authorizations, approvals, orders, certificates or permits would not have a
material adverse effect on the Company and its subsidiaries, taken as a whole.
(4) Neither the Company nor any of its Significant
Subsidiaries (i) is in violation of its charter or by-laws, (ii) is in default
in any material respect, and no event has occurred which, with notice or lapse
of time or both, would constitute such a default, in the due performance or
observance of any term, covenant or condition contained in any material
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which it is a party or by which it is bound or to which any of its
properties or assets is subject or (iii) is in violation in any material respect
of any law, ordinance, governmental rule, regulation or court decree to which it
or its property or assets may be subject or has failed to obtain any material
license, permit, certificate, franchise or other governmental authorization or
permit necessary to the ownership of its property or to the conduct of its
business except, in case of (ii) and (iii), for such defaults, violations, or
failures to obtain such authorizations or permits that have not had or are not
reasonably expected to have, a material adverse effect on the consolidated
financial condition, results of operations, business or prospects of the Company
and its subsidiaries, taken as a whole.
(5) The Indenture has been duly authorized, executed and
delivered by the Company and, assuming due authorization, execution and
authentication by the Trustee, is a valid and binding agreement of the Company
enforceable in accordance with its terms subject, as to enforcement, to
bankruptcy, insolvency, reorganization, and other laws of general applicability
relating to or affecting creditors' rights and to general equity principals. The
Indenture has been duly qualified under the Trust Indenture Act of 1939, as
amended.
(6) The Securities have been duly authorized and, when
executed and authenticated in accordance with the provisions of the Indenture,
and delivered to and paid for by the Underwriters will be valid and binding
obligations of the Company, enforceable in accordance with their respective
terms subject, as to enforcement, to bankruptcy, insolvency, reorganization, and
other laws of general applicability relating to or affecting creditors' rights
and to general equity principals, and will be entitled to the benefits of such
Indenture.
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(7) The Underwriting Agreement has been duly authorized,
executed and delivered by the Company and is a valid and binding agreement of
the Company, enforceable in accordance with its terms subject, as to
enforcement, to bankruptcy, insolvency, reorganization, and other laws of
general applicability relating to or affecting creditors' rights and to general
equity principals, except as rights to indemnity and contribution thereunder may
be limited under applicable law.
(8) The execution, delivery and performance by the Company of
its obligations under the Underwriting Agreement, the Indenture and any
applicable terms agreement will not contravene any provision of applicable law
or the Certificate of Incorporation or the By-laws of the Company or any
material agreement or other material instrument binding upon the Company, and no
consent, approval or authorization of any governmental body or agency other than
pursuant to any state securities or Blue Sky law is required for the performance
by the Company of its obligations under the Underwriting Agreement, the
Indenture and for the issuance and sale of the Securities pursuant to the
Underwriting Agreement.
(9) [as updated][The statements (1) in the Prospectus, (2) in
the Registration Statement under Item 15 and (3) in the Company's Annual Report
on Form 10-K for the year ended December 31, 2000 under "Item 1. - Business",
"Item 3. - Legal Proceedings" and "Note 17 - Contingent Liabilities and
Commitments"; in its Quarterly Report on Form 10-Q for the period ended March
31, 2001 under "Note 9 - Contingent Liabilities and Commitments" relating to
legal matters in general or to the regulation of the Company by the Federal
Energy Regulatory Commission (the "FERC"), including, without limitation,
actions taken by, and matters pending before, the FERC, in each case insofar as
such statements constitute summaries of the legal matters, documents or
proceedings referred to therein, fairly present the information called for with
respect to such legal matters, documents and proceedings, and such statements do
not contain any untrue statement of material fact or omit to state any material
fact required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading].
(10) After due inquiry, I do not know of any legal or
governmental proceeding pending or threatened to which the Company is a party or
to which any of the properties of the Company is subject which is required to be
described or of any statute, regulation contract or other document which is
required to be described in the Registration Statement or the Prospectus or to
be filed as an exhibit to the Registration Statement which is not described or
filed as required.
(11) I (a) am of the opinion that (except as to financial
statements and other financial and statistical data included therein, as to
which I do not
A-4
33
express any opinion) each document, if any, filed pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and incorporated by
reference in the Registration Statement and the Prospectus complied when so
filed as to form in all material respects with the Exchange Act and the rules
and regulations of the Commission thereunder, (b) am of the opinion that the
Registration Statement and Prospectus, as amended or supplemented (except as to
financial statements and other financial and statistical data included therein,
as to which I do not express any opinion), comply as to form in all material
respects with the Securities Act and the applicable rules and regulations of the
Commission thereunder, (c) believe that (except as to financial statements and
other financial and statistical data, and except for that part of the
Registration Statement that constitutes a Statement of Eligibility and
Qualification ("Form T-1") under the Trust Indenture Act of 1939, as amended, as
to which I do not express any belief), each part of the Registration Statement
when such part became effective or was incorporated by reference into the
Registration Statement did not contain, and as of the date this opinion is
delivered, does not contain, any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, and (d) believe that (except as to financial
statements and other financial and statistical data, and except for that part of
the Registration Statement that constitutes a Form T-1 heretofore referred to as
to which I do not express any belief) the Registration Statement and the
Prospectus, as amended or supplemented, if applicable, do not contain any untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in light of the circumstances under which they
were made, not misleading.
I am a member of the Bar of the States of Oklahoma and New
York. This opinion is solely for the benefit of the Underwriters, and, other
than the Trustee who may rely upon this opinion to the same extent as if
addressed to it, may be relied upon only by the Underwriters. This opinion
speaks as of its date, and I undertake no, and hereby expressly disclaim any,
duty to advise you as to changes of fact or law coming to my attention after the
date hereof.
Yours very truly,
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34
EXHIBIT B
Dear Sirs:
We have acted as counsel for you, as Managers for the several
underwriters (the "Underwriters") named in the Underwriting Agreement dated
_______________________(the "Underwriting Agreement") with The ▇▇▇▇▇▇▇▇
Companies, Inc. (the "Company") in connection with the purchase by the several
Underwriters of $_____________ principal amount of ____ % Notes due _________
(the "Notes") to be issued pursuant to the indenture dated as of November 10,
1997 (the "Indenture") between the Company and Bank One Trust Company, N.A., as
Trustee.
We have examined an executed copy of the Underwriting
Agreement and the Indenture. We have examined originals or copies, certified or
otherwise identified to our satisfaction, of such other documents, corporate
records, certificates of public officials and other instruments as we have
deemed necessary or advisable for the purpose of rendering this opinion,
including those relating to the authorization, execution and delivery by the
Company of the Indenture and the Underwriting Agreement and the authorization,
issuance and sale of the Notes by the Company.
We have participated in the preparation of the Company's
registration statement on Form S-3 (File No. 333- ) (other than the documents
incorporated by reference in the prospectus included therein (the "Incorporated
Documents")) relating to up to $ ______________________ aggregate principal
amount of debt securities (the "Registration Statement") filed with the
Securities and Exchange Commission (the "Commission") pursuant to the provisions
of the Securities Act of 1933, as amended (the "Act"). Although we did not
participate in the preparation of the Incorporated Documents, we have reviewed
such documents. In addition, we have reviewed evidence that the Registration
Statement was declared
35
effective under the Act. The Initial Registration Statement (including the
Incorporated Documents) as amended to the date of the Underwriting Agreement is
hereinafter referred to as the "Registration Statement," and the prospectus
included in the Registration Statement (the "Basic Prospectus"), as supplemented
by the prospectus supplement specifically relating to the Notes (the "Prospectus
Supplement") in the form first filed with the Commission pursuant to Rule 424
under the Act, is hereinafter referred to in its entirety as the "Prospectus."
We have assumed the conformity of the documents filed with the
Commission via the Electronic Data Gathering Analysis and Retrieval System
("▇▇▇▇▇"), except for required ▇▇▇▇▇ formatting changes, to physical copies of
the documents delivered to the Underwriters and submitted to us for examination.
Based upon the foregoing, we are of the opinion that:
(i) the Indenture has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement of the Company,
and the Indenture has been duly qualified under the Trust Indenture Act;
(ii) the Notes have been duly authorized and, when executed
and authenticated in accordance with the provisions of the Indenture and
delivered to and paid for by the Underwriters, will be valid and binding
obligations of the Company and will be entitled to the benefits of the
Indenture; and
(iii) the Underwriting Agreement has been duly authorized,
executed and delivered by the Company.
We have considered the statements relating to legal matters or
documents included in the Prospectus under the captions "Description of Notes"
(in the Prospectus Supplement), "Description of Debt Securities" (in the Basic
Prospectus), "Plan of Distribution" (in the Basic Prospectus) and "Underwriting"
(in the Prospectus Supplement). In our opinion, such statements fairly summarize
in all material respects such matters or documents.
We have not ourselves checked the accuracy, completeness or
fairness of, or otherwise verified, the information furnished with respect to
other matters in the Registration Statement or the Prospectus. We have generally
reviewed and discussed with your representatives and with certain officers and
employees of, and counsel and independent public accountants for, the Company
the information furnished, whether or not subject to our check and verification.
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36
On the basis of such consideration, review and discussion, but without
independent check or verification, except as stated above, nothing has come to
our attention to cause us to believe that (i) the Registration Statement and the
Prospectus (except for the financial statements and other financial and
statistical data included therein and except for that part of the Registration
Statement that constitutes the Statement of Eligibility and Qualification ("Form
T-1") of the Trustee under the Trust Indenture Act, as to which we express no
belief) do not comply as to form in all material respects with the Act and the
rules and regulations of the Commission thereunder or (ii) the Registration
Statement (except for the financial statements and other financial and
statistical data included therein and except for that part of the Registration
Statement that constitutes the Form T-1, as to which we express no belief) on
the date of the Underwriting Agreement contained an untrue statement of a
material fact or omitted to state a material fact necessary to make the
statements therein not misleading or (iii) the Prospectus (except as stated) as
of its date or as of the date hereof contained or contains any untrue statement
of a material fact or omitted or omits to state a material fact necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading.
In rendering this opinion, we have relied solely on the
opinion dated the date hereof of ▇▇▇▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇, Esq., General Counsel of
the Company, as to matters relating to the regulation of the Company and certain
of its subsidiaries by the Federal Energy Regulatory Commission.
We have examined the above-mentioned opinion of ▇▇. ▇▇▇ ▇▇▇▇▇,
delivered in accordance with the provisions of Section 6(a) of the Underwriting
Agreement, and we believe that such opinion is appropriately responsive to the
requirements of the Underwriting Agreement. We have also examined the letter of
Ernst & Young LLP relating to the financial statements and schedules included in
or incorporated by reference in the Registration Statement and other matters
referred to in such letter. We participated in discussions with representatives
of Ernst & Young LLP and with your representatives relating to the forms of such
letters, and we believe that they are substantially in the forms agreed to.
We are members of the Bar of the State of New York and the
foregoing opinion is limited 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 of America.
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37
This opinion is rendered solely to you in connection with the
above matter. This opinion may not be relied upon by you for any other purpose
or relied upon by or furnished to any other person without our prior written
consent.
Very truly yours,
B-4
