Exhibit 1.1
▇▇▇▇▇▇ OIL CORPORATION
$250,000,000
[ ]% Notes due ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
[ ], 1999
▇▇▇▇▇▇ Oil Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇▇
▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Ladies and Gentlemen:
We (the "Manager") are acting on behalf of the underwriters (including
ourselves) identified on the table below (such underwriters being herein called
the "Underwriters"), and we understand that ▇▇▇▇▇▇ Oil Corporation, a Delaware
corporation (the "Company"), proposes to issue and sell $250,000,000 aggregate
principal amount of [ ]% Notes due 2029 (the "Debt Securities"). The Debt
Securities are also referred to herein as the "Offered Securities." The Debt
Securities will be issued pursuant to the provisions of an Indenture dated as of
[ ], 1999, as amended by a Supplemental Indenture dated as of [ ],
1999 (as amended, the "Indenture") between the Company and SunTrust Bank,
Nashville, N.A., as trustee (the "Trustee").
Subject to the terms and conditions set forth or incorporated by
reference herein, the Company hereby agrees to issue and sell to each
Underwriter and, upon the basis of the representations, warranties and
agreements of the Company herein contained and subject to all the terms and
conditions set forth herein, each of the Underwriters agrees to purchase from
the Company, severally and not jointly, the principal amount of Debt Securities
set forth below opposite its name at a purchase price of [ ]% of the principal
amount of such Debt Securities, plus
accrued interest, if any, from [ ], 1999, to the Closing Date (as
hereinafter defined):
Principal Amount of
Name Debt Securities
---- -------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc. $
Chase Securities Inc.
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
Nationsbanc ▇▇▇▇▇▇▇▇▇▇ Securities LLC
Warburg Dillon Read LLC
Total . . . . . . $250,000,000
============
The Underwriters will pay for the Offered Securities upon delivery
thereof at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ at 9:00 a.m. (New York
City time) on [ ], 1999, or at such other time as shall be designated by
the Manager. The time and date of such payment and delivery are hereinafter
referred to as the Closing Date.
The Offered Securities shall have the terms set forth in the Basic
Prospectus dated [ ], 1999, and the Prospectus Supplement dated [ ],
1999, including the following:
Terms of Debt Securities
Maturity Date:
Interest Rate:
Redemption Provisions:
The Offered Securities will be redeemable at the
Company's option, in whole or in part, at any time and from
time to time, at a redemption price equal to the greater of:
o 100% of the principal amount of the Offered
Securities to be redeemed
o the sum of the present values of the Remaining
Scheduled Payments (as defined in the Indenture)
on the Offered Securities being redeemed,
discounted to the redemption date on a semiannual
basis (assuming a 360-day year consisting of
twelve 30-day months) at the Treasury Rate (as
defined in the Indenture) plus [ ] basis points.
In each case, the Company will pay accrued
interest to the date of redemption.
Interest Payment Dates:
[ ] and [ ] commencing
[ ], 1999 (Interest accrues from
[ ], 1999)
All provisions contained in the document entitled ▇▇▇▇▇▇ Oil
Corporation Underwriting Agreement Standard Provisions (Debt Securities) dated
[ ], 1999, a copy of which is attached hereto, are herein incorporated by
reference in their entirety 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,
except that (2) if any term defined in such document is otherwise defined
herein, the definition set forth herein shall control, (b) all references in
such document to a type of security that is not an Offered Security shall not be
deemed to be a part of this Agreement, and (c) all references in such document
to a type of agreement that has not been entered into in connection with the
transactions contemplated hereby shall not be deemed to be a part of this
Agreement.
Please confirm that the foregoing correctly sets forth the agreement
between the Company and the several Underwriters by having an authorized officer
sign a copy of this Agreement in the space set forth below.
Very truly yours,
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.,
Acting severally on behalf of itself and the
several Underwriters named herein:
by:
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.,
by
-----------------------------
Name:
Title:
Accepted:
▇▇▇▇▇▇ Oil Corporation,
by
--------------------
Name:
Title:
▇▇▇▇▇▇ OIL CORPORATION
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
(DEBT SECURITIES)
[ ], 1999
From time to time, ▇▇▇▇▇▇ Oil Corporation, a Delaware corporation (the
"Company"), may enter into one or more underwriting agreements 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. Terms defined in the Underwriting Agreement are
used herein as therein defined.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3, including a prospectus,
relating to the Debt Securities and has filed with, or transmitted for filing
to, or shall promptly hereafter file with or transmit for filing to, the
Commission a prospectus supplement (the "Prospectus Supplement") specifically
relating to the Offered Securities pursuant to Rule 424 under the Securities Act
of 1933, as amended (the "Securities Act"). The term "Registration Statement"
means the registration statement, including the exhibits thereto, as amended to
the date of this Agreement and, in the event any post-effective amendment
thereto or any registration statement (and any amendments thereto) filed
pursuant to Rule 462(b) under the Securities Act relating to the offering (a
"Rule 462(b) Registration Statement") becomes effective prior to the Closing
Date, also means such registration statement as so amended or such Rule 462(b)
Registration Statement, as the case may be. The term "Basic Prospectus" means
the prospectus in the form first filed with the Commission. The term
"Prospectus" means the Basic Prospectus together with the Prospectus Supplement.
The term "preliminary prospectus" means a preliminary prospectus supplement
specifically relating to the Offered 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 documents, if any, incorporated by
reference therein. The terms "supplement" and "amendment" or "amend" as used
herein shall include all documents deemed to be incorporated by reference in the
Prospectus that are filed subsequent to the date of the Basic Prospectus by the
Company with the Commission pursuant to the Securities Exchange Act of 1934, as
amended (the "Exchange Act").
1. Representations and Warranties. The Company represents and warrants
to each of the Underwriters that:
(a) (i) The Registration Statement has become effective; no
stop order suspending the effectiveness of the Registration Statement
is in effect, and no proceedings for such purpose are pending before or
threatened by the Commission; (ii) the Company and the transactions
contemplated by this Agreement meet the requirements for using Form S-3
under the Securities Act; and (iii) the Company will next file with the
Commission either (1) the Prospectus Supplement relating to the Offered
Securities in accordance with Rules 430A and 424(b) or (2) the
Prospectus in accordance with Rules 415 and 424(b). In the case of
clause (1), the Company has included in such Registration Statement all
information (other than Rule 430A Information (as defined below))
required by the Securities Act and the rules thereunder to be included
in such Registration Statement and the Prospectus. As filed, such
Prospectus shall contain all Rule 430A Information, together with all
other such required information, and, except to the extent the Manager
shall agree in writing to a modification, shall be in all substantive
respects in the form furnished to the Manager prior to the time this
Agreement is executed (the "Execution Time"), or, to the extent not
completed at the Execution Time, shall contain only such specific
additional information and other changes (beyond that contained in the
Basic Prospectus and any preliminary prospectus) as the Company has
advised the Manager, prior to the Execution Time, will be included or
made therein. The Registration Statement, at the Execution Time, meets
the requirements set forth in Rule 415(a)(1)(x). "Rule 430A
Information" shall mean information with respect to the Offered
Securities and the offering thereof permitted to be omitted from the
Registration Statement pursuant to Rule 430A.
(b) (i) Each document, if any, filed or to be filed pursuant
to the Exchange Act and incorporated by reference in the Prospectus
complied or will comply when so filed in all material respects with the
Exchange Act and the applicable rules and regulations of the Commission
thereunder; (ii) each part of the Registration Statement, when such
part became effective, did not contain, and each such part, as amended
or supplemented, if applicable, will 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; (iii) the Registration Statement and the Prospectus comply,
and, as amended or supplemented, if applicable, will comply in all
material respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder; and (iv) the Prospectus does
not contain and, as amended or supplemented, if applicable, will not
contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading, except
that the representations and warranties set forth in this Section 1(b)
do not apply (A) 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 such Underwriter
through the Manager expressly for use therein or (B) to that part of
the Registration Statement that constitutes the Statement of
Eligibility and Qualification (Form T-1) under the Trust Indenture Act
of 1939, as amended (the "Trust Indenture Act"), of the Trustee.
(c) The Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the State
of Delaware, has the corporate power and authority to own its property
and to conduct its business as described in the Prospectus and is duly
qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent
that the failure to be so qualified or be in good standing would not
have a material adverse effect on the Company and its subsidiaries,
taken as a whole.
(d) Each subsidiary of the Company has been duly incorporated,
is validly existing as a corporation in good standing under the laws of
the jurisdiction of its incorporation, has the corporate power and
authority to own its property and to conduct its business as described
in the Prospectus and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its business
or its ownership or leasing of property requires such qualification,
except to the extent that the failure to be so qualified or be in good
standing would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole.
(e) This Agreement has been duly authorized, executed and
delivered by the Company.
(f) On or prior to the Closing Date, the Indenture will have
been duly qualified under the Trust Indenture Act. The Indenture
conforms to the description thereof in the Registration Statement and
the Prospectus, has been duly authorized, and, when executed and
delivered by the Company, will be a valid and binding agreement of the
Company, enforceable in accordance with its terms except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency or
similar laws affecting creditors' rights generally and (ii) rights of
acceleration and the availability of equitable remedies may be limited
by equitable principles of general applicability.
(g) The Offered 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 in
accordance with the terms of the Underwriting Agreement, will be
entitled to the benefits of the Indenture, will conform to the
description thereof in the Prospectus, and will be valid and binding
obligations of the Company, in each case enforceable in accordance with
their respective terms except as (i) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting creditors'
rights generally and (ii) rights of acceleration, if any, and the
availability of equitable remedies may be limited by equitable
principles of general applicability.
(h) There are no legal or governmental proceedings pending or
threatened to which the Company or any of its subsidiaries is a party
or to which any of the properties of the Company or any of its
subsidiaries is subject that are required to be described in the
Registration Statement or the Prospectus and are not so described or
any statutes, regulations, contracts or other documents that are
required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement
that are not described or filed as required.
(i) The Company is not an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in
the Investment Company Act of 1940, as amended.
(j) The accountants who certified the financial statements
included or incorporated by reference in the Prospectus are independent
public accountants as required by the Securities Act and the
regulations thereunder.
(k) The consolidated financial statements of the Company and
its subsidiaries included or incorporated by reference in the
Prospectus present fairly the financial position of the Company and its
subsidiaries as at the dates indicated and the results of their
operations for the periods specified; except as stated therein, said
financial statements have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis throughout
the period or periods involved.
(l) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as
otherwise stated therein or contemplated thereby, there has been no
material adverse change, or any development involving a prospective
material adverse change, in the condition, financial or otherwise, of
the Company and its subsidiaries, taken as a whole, or in the 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.
(m) The Company is not in violation of its charter or in
default in the performance or observance of any obligation,
agreement, covenant or condition contained in any contract, indenture,
mortgage, loan agreement, note, lease or other instrument to which it
is a party or by which it or any of its properties may be bound, which
default would have a material adverse effect on the Company and its
subsidiaries, taken as a whole; and the execution and delivery of this
Agreement and the Indenture and the consummation of the transactions
contemplated herein and therein will not conflict with or constitute a
breach of, or default under, or result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets of the
Company pursuant to any contract, indenture, mortgage, loan agreement,
note, lease or other instrument to which the Company is a party or by
which it may be bound or to which any of the property or assets of the
Company is subject, nor will such action result in any violation of the
provisions of the charter or by-laws of the Company or, to the best of
its knowledge, any law, administrative regulation or administrative or
court order or decree; and no consent, approval, authorization, order
or decree of any court or governmental agency or body is required for
the consummation by the Company of the transactions contemplated by
this Agreement, except such as may be required under the Securities
Act, the Trust Indenture Act or state securities or Blue Sky laws.
(n) The Company owns or possesses or has obtained all material
governmental licenses, permits, consents, orders, approvals and other
authorizations necessary to lease or own, as the case may be, and to
operate its properties and to carry on its business as presently
conducted.
Any certificate signed by any officer of the Company and delivered to
the Underwriters or to counsel for the Underwriters in connection with an
offering of Offered Securities shall be deemed a representation and warranty by
the Company to the Underwriters as to the matters covered thereby.
2. Public Offering. The Company is advised by the Manager that
the Underwriters propose to make a public offering of their respective portions
of the Offered Securities as soon after this Agreement has been entered into as
in the Manager's judgment is advisable. The terms of the public offering of the
Offered Securities are set forth in the Prospectus.
3. Purchase and Delivery. Payment for the Offered Securities
shall be made by wire transfer payable in same-day funds to an account specified
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 Offered Securities, registered in such names and in such
denominations as the Manager shall request in writing not less than two full
business days prior to the date of delivery, with any transfer taxes payable in
connection with the transfer of the Offered Securities to the Underwriters duly
paid. Delivery of the Offered Securities shall be made through the facilities of
The Depository Trust Company unless the Manager shall otherwise instruct.
4. Conditions to Closing. The several obligations of the
Underwriters 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) 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
(ii) 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, 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 or enforce contracts for the
sale of the Offered Securities on the terms and in the manner
contemplated in the Prospectus.
(b) The Manager shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer
of the Company, to the effect set forth in clause (a)(i) above and to
the effect that the representations and warranties of the Company
contained in this Agreement are true and correct as of the Closing Date
and that the Company has complied with all of the agreements and
satisfied all of the conditions on its part to be performed or
satisfied on or before the Closing Date.
The officer signing and delivering such certificate may rely
upon the best of his knowledge as to proceedings threatened.
(c) The Manager shall have received on the Closing Date an
opinion of the General Counsel of the Company, dated the Closing Date,
in form and substance satisfactory to the Underwriters and the
Underwriters' counsel, to the effect set forth in Exhibit A.
(d) The Manager shall have received on the Closing Date an
opinion of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Company, dated the
Closing Date, in form and substance satisfactory to the Underwriters
and the Underwriters' counsel, to the effect set forth in Exhibit B.
(e) The Manager shall have received on the Closing Date an
opinion and statement of Cravath, Swaine & ▇▇▇▇▇, counsel for the
Underwriters, dated the Closing Date, to the effect set forth in
Exhibits C and D.
(f) The Manager shall have received on the Closing Date a
letter, dated the Closing Date, in form and substance satisfactory to
the Manager, from the Company's 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 contained in or
incorporated by reference into the Prospectus.
(g) The Company shall not have failed at or prior to the
Closing Date to have performed or complied with any of its
agreements herein contained and required to be performed or complied
with by it hereunder at or prior to the Closing Date.
(h) The Company shall have furnished or caused to be furnished
to the Manager such further certificates and documents as the Manager
shall have reasonably requested.
All such opinions, certificates, letters and other documents will be
in compliance with the provisions hereof only if they are satisfactory in form
and substance to the Manager and its counsel.
Any certificate or document signed by any officer of the Company and
delivered to the Manager, as representatives of the Underwriters, or to counsel
for the Underwriters, shall be deemed a representation and warranty by the
Company to each Underwriter as to the statements made therein.
5. Covenants of the Company. In further consideration of the
agreements of the Underwriters contained herein, the Company covenants as
follows:
(a) To furnish the Manager, without charge, a signed copy of
the Registration Statement (including exhibits thereto) and for
delivery to each other Underwriter a conformed copy of the Registration
Statement (without exhibits thereto) and, during the period mentioned
in paragraph (c) below, as many copies of the Prospectus, any documents
incorporated by reference therein and any supplements and amendments
thereto or to the Registration Statement as the Manager may reasonably
request.
(b) Before amending or supplementing the Registration
Statement or the Prospectus with respect to the Offered Securities, or
before filing any Rule 462(b) Registration Statement, to furnish to the
Manager a copy of each such proposed amendment, supplement or Rule
462(b) Registration Statement and not to file any such proposed
amendment, supplement or Rule 462(b) Registration Statement to which
the Manager reasonably objects within a reasonable period after receipt
of such proposed amendment or supplement. Subject to the foregoing
sentence, the Company will cause the Prospectus, properly completed,
and any supplement thereto to be filed
with the Commission pursuant to the applicable paragraph of Rule 424(b)
within the time period prescribed and will provide evidence
satisfactory to the Manager of such timely filing.
(c) If, during such period after the first date of the public
offering of the Offered Securities as in the opinion of counsel for the
Underwriters the Prospectus is required by law to be delivered in
connection with sales by an Underwriter or dealer, any event shall
occur or condition exist as a result of which it is necessary to amend
or supplement the Prospectus in order to make the statements therein,
in the light of the circumstances when the Prospectus is delivered to a
purchaser, not misleading, or if, in the opinion of counsel for the
Underwriters, it is necessary to amend or supplement the Prospectus to
comply with law, forthwith to prepare, and, subject to Section 5(b),
file with the Commission and furnish for use, at its own expense, to
the Underwriters, and to the dealers (whose names and addresses the
Manager will furnish to the Company) to which Offered Securities may
have been sold by the Manager on behalf of the Underwriters and to any
other dealer upon request, either amendments or supplements to the
Prospectus so that the statements in the Prospectus as so amended or
supplemented will not, in the light of the circumstances when the
Prospectus is delivered to a purchaser, be misleading or so that the
Prospectus, as so amended or supplemented, will comply with law. In the
event that the Company and the Manager agree that the Prospectus should
be amended or supplemented, the Company, if reasonably requested by the
Manager, will promptly issue a press release announcing or disclosing
the matters to be covered by the proposed amendment or supplement.
(d) To endeavor and cooperate with the Manager and with
counsel for the Underwriters in connection with registration or
qualification of the Offered Securities for offer and sale under the
securities or Blue Sky laws of such jurisdictions as the Manager shall
reasonably request and to pay all expenses (including fees and
disbursements of counsel) in connection with such registration or
qualification.
(e) To make generally available to the Company's security
holders and to the Manager as soon as practicable an earning statement
covering a twelve month period beginning on
the first day of the first full fiscal quarter after the date of this
Agreement, which earning statement shall satisfy the provisions of
Section 11(a) of the Securities Act and the rules and regulations of
the Commission thereunder.
(f) The Company will not, without the prior written consent of
the Manager, offer, sell, contract to sell, pledge, or otherwise
dispose of, (or enter into any transaction which is designed to, or
might reasonably be expected to, result in the disposition (whether by
actual disposition or effective economic disposition due to cash
settlement or otherwise) by the Company or any affiliate of the Company
or any person in privity with the Company or any affiliate of the
Company) directly or indirectly, including the filing (or participation
in the filing) of a registration statement with the Commission in
respect of, or establish or increase a put equivalent position or
liquidate or decrease a call equivalent position within the meaning of
Section 16 of the Exchange Act, any debt securities issued or
guaranteed by the Company (other than the Offered Securities) or
publicly announce an intention to effect any such transaction until the
Closing Date.
(g) The Company agrees to pay the following costs and expenses
and all other costs and expenses incident to the performance by it of
its obligations hereunder: (i) the preparation, printing (or
reproduction), and filing with the Commission of the registration
statement (including financial statements and exhibits thereto), each
preliminary prospectus, each Basic Prospectus, the Prospectus, each
amendment or supplement to any of them, this Agreement, the Indenture
and the Statement of Eligibility and Qualification of the Trustee; (ii)
the printing (or reproduction) and delivery (including postage, air
freight charges and charges for counting and packaging) of such copies
of the Registration Statement, each preliminary prospectus, each Basic
Prospectus, the Prospectus, the incorporated documents, and all
amendments or supplements to any of them, as may reasonably be
requested for use in connection with the offering and sale of the
Offered Securities; (iii) the preparation, printing (or reproduction),
execution and delivery of the Indenture and the preparation, printing,
authentication, issuance and delivery of the Offered Securities,
including any stamp taxes in connection with the original issuance of
the Offered Securities; (iv) the printing
(or reproduction) and delivery of this Agreement, the preliminary and
supplemental Blue Sky Memoranda and all other agreements or documents
printed (or reproduced) and delivered in connection with the offering
of the Offered Securities; (v) the registration of the Offered
Securities under the Exchange Act; (vi) the registration or
qualification of the Offered Securities for offer and sale under the
securities or Blue Sky laws of the several states as provided in
Section 5(d) hereof (including the reasonable fees, expenses and
disbursements of counsel for the Underwriters relating to the
preparations, printing (or reproduction), and delivery of the
preliminary and supplemental Blue Sky Memoranda and such registration
and qualification); (vii) the filing fees and the fees and expenses of
counsel for the Underwriters in connection with any filing required to
be made with the National Association of Securities Dealers, Inc.;
(viii) the fees and expenses of the Trustee; (ix) the fees and expenses
associated with obtaining ratings for the Offered Securities from
nationally recognized statistical rating organizations; (x) the
transportation and other expenses incurred by or on behalf of Company
representatives in connection with presentations to prospective
purchasers of the Offered Securities; and (xi) the fees and expenses of
the Company's accountants and the fees and expenses of counsel
(including local and special counsel) for the Company.
(h) The Company will apply the net proceeds from the sale of
the Offered Securities substantially in accordance with the description
set forth in the Prospectus.
(i) The Company, during the period when the Prospectus is
required to be delivered under the Securities Act, will file promptly
all documents required to be filed with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act and will promptly
supply copies of those documents to the Manager.
(j) The Company will advise you promptly and, if requested by
you, will confirm such advice in writing: (i) when the Prospectus, and
any supplement thereto, shall have been filed (if required) with the
Commission pursuant to Rule 424(b) or when any Rule 462(b) Registration
Statement shall have been filed with the Commission; (ii) of any
request
by the Commission for amendment of or a supplement to the Registration
Statement, any Rule 462(b) Registration Statement, preliminary
prospectus, Basic Prospectus or the Prospectus or for additional
information; (iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or of the
suspension of qualification of the Offered Securities for offering or
sale in any jurisdiction or the initiation of any proceeding for such
purpose; and (iv) within the period of time that any Prospectus is
required to be delivered under the Securities Act in connection with
sales of the Offered Securities by any Underwriter or dealer, of any
change in the Company's condition (financial or other), business,
prospects, properties, net worth or results of operations, or of the
happening of any event, which makes any statement of a material fact
made in the Registration Statement or the Prospectus (as then amended
or supplemented) untrue or which requires the making of any additions
to or changes in the Registration Statement or the Prospectus (as then
amended or supplemented) in order to state a material fact required by
the Securities Act or the regulations thereunder to be stated therein
or necessary in order to make the statements therein not misleading, or
of the necessity to amend or supplement the Prospectus (as then amended
or supplemented) to comply with the Securities Act or any other law. If
at any time the Commission shall issue any stop order suspending the
effectiveness of the Registration Statement, the Company will make
every reasonable effort to obtain the withdrawal of such order at the
earliest possible time.
6. Indemnification and Contribution. The Company agrees to
indemnify and hold harmless each Underwriter and each person, if any, who
controls such Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act (i) from and against any and
all losses, claims, damages and liabilities arising out of any untrue statement
or alleged untrue statement of a material fact contained in the Registration
Statement or any amendment thereof, any preliminary prospectus or the Prospectus
(as amended or supplemented if the Company shall have furnished any amendments
or supplements thereto), or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon information relating to any
Underwriter furnished to the Company in writing by such Underwriter through the
Manager expressly for use therein; (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 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 if such settlement is effected with
the written consent of the Company; and (iii) against any and all expense
whatsoever, as incurred (including the fees and disbursements of counsel chosen
by the Manager), reasonably incurred in investigating, preparing or defending
against any litigation, or 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 (except as made in reliance upon and in conformity with information
furnished by the Manager as aforesaid), to the extent that any such expense is
not paid under (i) or (ii) above.
(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 Securities Act or Section 20 of
the Exchange Act to the same extent as the foregoing indemnity from the Company
to such Underwriter, but only with reference to information relating to such
Underwriter furnished to the Company by such Underwriter in writing through the
Manager expressly for use in the Registration Statement, any preliminary
prospectus, the Prospectus or any amendments or supplements thereto. The Company
acknowledges that the statements set forth in the last paragraph of the cover
page regarding delivery of the Securities and, under the headings "Underwriting"
and "Plan of Distribution", (i) the list of Underwriters and their respective
participation in the sale of the Offered Securities, (ii) the sentences related
to concessions and reallowances and (iii) the paragraph related to
stabilization, syndicate covering transactions and penalty bids in any
preliminary prospectus and the Prospectus constitute the only information
furnished in writing by or on behalf of the several Underwriters for inclusion
in any preliminary prospectus or the Prospectus.
(c) The Company agrees to indemnify and hold harmless each
Underwriter against any documentary stamp or similar issue tax and any related
interest or penalties on the original issuance and sale of the Offered
Securities to the Underwriters which are due in the United States, any state or
municipality or any other jurisdiction.
(d) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to any of the three preceding paragraphs, such
person (the "indemnified party") shall promptly notify the person against whom
such indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel 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, (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 or (iii) the indemnifying party has failed to
retain counsel as set forth herein. 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 shall be reimbursed as they are incurred. Such firm shall be
designated in writing by the Manager, in the case of parties indemnified
pursuant to the first or third preceding paragraph, and by the Company, in the
case of parties indemnified pursuant to the second preceding paragraph. The
indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability by reason
of such settlement or judgment. 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 (A) such settlement is entered into more than 60 days after
receipt by such indemnifying party of the aforesaid request and (B) 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.
(e) If the indemnification provided for in the first or second
paragraph in this Section 6 is unavailable to an indemnified party or
insufficient in respect of any losses, claims, damages or liabilities 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 or liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
on the other hand from the offering of the Offered Securities 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 on
the one hand and of the Underwriters on the other hand in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the Underwriters
on the other hand in connection with the offering of the Offered Securities
shall be deemed to be in the same respective proportions as the net proceeds
from the offering of such Offered Securities (before deducting expenses)
received by the Company and the total underwriting discounts and commissions
received by the
Underwriters, in each case as set forth in the table on the cover of the
Prospectus Supplement, bear to the aggregate public offering price of the
Offered Securities. The relative fault of the Company on the one hand and of the
Underwriters on the other hand 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. The Underwriters' respective obligations to contribute
pursuant to this Section 6 are several in proportion to the respective principal
amounts of Offered Securities they have agreed to purchase hereunder, and not
joint.
(f) The Company and the Underwriters agree that it would not
be just or equitable if contribution pursuant to this Section 6 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 that does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 6, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Offered Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages that 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
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The remedies provided for in this
Section 6 are not exclusive and shall not limit any rights or remedies which may
otherwise be available to any indemnified party at law or in equity.
(g) The indemnity and contribution provisions contained in
this Section 6 and the representations and warranties of the Company contained
herein shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf of
any Underwriter or any person controlling any Underwriter or by or on behalf of
the Company, its directors or officers or any person controlling the Company and
(iii) acceptance of and payment for any of the Offered Securities. Any losses,
claims, damages, liabilities or expenses for which an indemnified party is
entitled to indemnification or contribution under this Section 6 shall be paid
by the indemnifying party to the indemnified party as such losses, claims,
damages, liabilities or expenses are incurred. A successor to any Underwriter or
any person controlling any Underwriter, or to the Company, its directors or
officers, or any person controlling the Company, shall be entitled to the
benefits of the indemnity, contribution and reimbursement agreements contained
in this Section 6.
7. Termination. This Agreement shall be subject to
termination, by notice given by the Manager to the Company, if (a) after the
execution and delivery of the Underwriting 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 Nasdaq National Market, the Chicago 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 sole judgment of
the Manager, impracticable or inadvisable to commence or continue to market the
Offered Securities on the terms and in the manner contemplated in the Prospectus
or to enforce contracts for the resale of the Offered Securities by the
Underwriters.
8. Defaulting Underwriters. If, on the Closing Date, any one
or more of the Underwriters shall fail or refuse to purchase Offered Securities
that it has or they have agreed to purchase hereunder on such date, and the
aggregate amount of Offered Securities which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase is not more than one-tenth
of the aggregate amount of the Offered Securities to be purchased on such date,
the nondefaulting Underwriters shall be obligated severally in the proportions
that the amount of Offered Securities set forth opposite their respective names
above bears to the aggregate amount of Offered Securities set forth opposite the
names of all such nondefaulting Underwriters, or in such other proportions as
the Manager may specify, to purchase the Offered Securities which such
defaulting Underwriter or Underwriters agreed but failed or refused to purchase
on such date; provided that in no event shall the amount of Offered Securities
that any Underwriter has agreed to purchase pursuant to this Agreement be
increased pursuant to this Section 8 by an amount in excess of one-ninth of such
amount of Offered Securities without the written consent of such Underwriter.
If, on the Closing Date, any Underwriter or Underwriters shall fail or refuse to
purchase Offered Securities and the aggregate amount of Offered Securities with
respect to which such default occurs is more than one-tenth of the aggregate
amount of Offered Securities to be purchased on such date, and arrangements
satisfactory to the Manager and the Company for the purchase of such Offered
Securities are not made within 36 hours after such default, this Agreement shall
terminate without liability on the part of any non-defaulting Underwriter or the
Company. In any such case either the Manager or the Company shall have the right
to postpone the Closing Date but in no event for longer then seven days, in
order that the required changes, if any, in the Registration Statement and in
the Prospectus or in any other documents or arrangements may be effected. Any
action taken under this paragraph shall not relieve any defaulting Underwriter
from liability in respect of any default of such Underwriter under this
Agreement. The term "Underwriter" as used in this Agreement includes, for all
purposes of this Agreement, any party not listed herein who, with your approval
and the approval of the Company, purchases Offered Securities which a defaulting
Underwriter is obligated, but fails or refuses, to purchase.
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, or if for any reason the Company shall be unable
to perform its obligations under this Agreement, 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 this Agreement or the offering of the Offered
Securities.
9. Miscellaneous. The Underwriting Agreement may be signed in
any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
This Agreement shall be governed by and construed in accordance with
the internal laws of the State of New York.
10. Headings. The headings of the sections of this Agreement
have been inserted for convenience of reference only and shall not be deemed a
part of this Agreement.
EXHIBIT A
Opinion of General Counsel
of the Company
The opinion of General Counsel of the Company, to be delivered
pursuant to Section 4(c) of the Underwriting Agreement shall be to the effect
that:
(1) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, with corporate power and authority
to own its properties and conduct its business as described in the
Prospectus as amended or supplemented.
(2) The Company has an authorized capitalization as set forth
in the Prospectus as amended or supplemented and all of the issued
shares of capital stock of the Company have been duly and validly
authorized and issued and are fully paid and nonassessable.
(3) The Company 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, or is subject to no material liability or disability by
reason of failure to be so qualified in any such jurisdiction.
(4) Each subsidiary of the Company 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 such subsidiary of the Company have been duly
and validly authorized and issued, are fully paid and non-assessable,
and (except for directors' qualifying shares and except as otherwise
set forth in the Registration Statement and Prospectus) are owned
directly or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims.
(5) To the best of such counsel's knowledge, without
independent inquiry, the Company and its subsidiaries have
good and marketable title in fee simple to all real property owned by
them, in each case free and clear of all liens, encumbrances and
defects except such as are described in the Prospectus or such as do
not materially affect the business of the Company and its subsidiaries,
taken as a whole; and any material real property and buildings held
under lease by the Company and its subsidiaries are held by them under
valid, subsisting and enforceable leases with such exceptions as do not
materially affect the business of the Company and its subsidiaries,
taken as a whole.
(6) 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 subsidiaries is
a party or of which any property of the Company or any of its
subsidiaries is the subject which such counsel has reasonable cause to
believe could individually or in the aggregate have a material adverse
effect on the consolidated financial position, stockholders' equity or
results of operations 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 contemplated by governmental authorities
or threatened by others.
(7) This Agreement has been duly authorized, executed and
delivered by the Company.
(8) The Offered Securities are in due and proper form, as
contemplated by the Indenture, have been duly authorized, executed,
authenticated, issued and delivered and constitute valid and binding
obligations of the Company entitled to the benefits provided by the
Indenture; and the Offered Securities and the Indenture conform to the
descriptions thereof in the Prospectus, as amended or supplemented;
(9) The Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed and delivered by
the parties thereto and constitutes a valid and binding instrument,
enforceable in accordance with its terms, except as (a) the
enforceability thereof may be limited by bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors' rights generally and (b) rights of acceleration
and the
availability of equitable remedies may be limited by equitable
principles of general applicability.
(10) The issue and sale of the Offered Securities, the
compliance by the Company with all of the provisions of the Offered
Securities, the Indenture and this Agreement and the consummation of
the transactions herein and therein contemplated 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 to which the
Company or any of its subsidiaries is a party or by which the Company
or any of its subsidiaries is bound or to which any of the property or
assets of the Company or any of its subsidiaries is subject, nor will
such actions result in any violation of the provisions of the
Certificate of Incorporation or By-laws of the Company or any statute
or any order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Company or any of its subsidiaries or
any of their properties.
(11) No consent, approval, authorization, order, registration
or qualification of or with any such court or governmental agency or
body is required for the issue and sale of the Offered Securities or
the consummation by the Company of the transactions contemplated by
this Agreement or the Indenture, except such as have been obtained
under the Securities Act and the Trust Indenture Act 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
in the manner contemplated by this Agreement.
(12) The documents incorporated by reference in the Prospectus
as amended or supplemented (other than the financial statements and
related schedules therein, as to which such counsel need express no
opinion), when they became effective or were filed with the Commission,
as the case may be, complied as to form in all material respects with
the requirements of the Securities Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission thereunder;
and such counsel has no reason to believe that any
of such documents, when such documents became effective or were so
filed, as the case may be, contained, in the case of a registration
statement which became effective under the Securities Act, 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, in the case of other documents which were
filed under the Securities Act or the Exchange Act with the Commission,
an untrue statement of a material fact or omitted to state a material
fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made when such documents were
so filed, not misleading.
(13) The statements in the Registration Statement and
Prospectus, under the headings "Description of Debt Securities," "Plan
of Distribution," "Description of the Notes" and "Underwriting" insofar
as they are descriptions or summaries of contracts, agreements or other
legal documents, or refer to statements of law or legal conclusions,
are accurate and present fairly the information required to be shown.
(14) The Registration Statement and the Prospectus as amended
or supplemented and any further amendments and supplements thereto made
by the Company prior to the Closing Date (other than the financial
statements and related schedules and other financial and statistical
information therein, as to which such counsel need express no opinion)
comply as to form in all material respects with the requirements of the
Securities Act and the Trust Indenture Act and the rules and
regulations thereunder; such counsel has no reason to believe that, as
of its effective date, the Registration Statement or any further
amendment thereto made by the Company prior to the Closing Date (other
than the financial statements and related schedules and other financial
and statistical information therein, as to which such counsel need
express no opinion) 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, as of
its date, the Prospectus as amended or supplemented or any further
amendment or supplement thereto made by the Company prior to the
Closing Date (other than the financial statements and related schedules
and other
financial and statistical information therein, as to which such counsel
need express no opinion) contained an untrue statement of a material
fact or omitted to state a material fact necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading or that, as of the Closing Date, the Prospectus as
amended or supplemented or any further amendment or supplement thereto
made by the Company prior to the Closing Date (other than the financial
statements and related schedules and other financial and statistical
information therein, as to which such counsel need express no opinion)
contains an untrue statement of a material fact or omits to state a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; and such
counsel does not know of any amendment to the Registration Statement
required to be filed or 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 as amended
or supplemented or required to be described in the Registration
Statement or the Prospectus as amended or supplemented which are not
filed or incorporated by reference or described as required.
In rendering such opinion, such counsel may rely, without
independent investigation, upon an opinion or opinions as to laws of any
jurisdiction other than the United States or the State of Delaware; provided
that (a) each such local counsel is acceptable to the Representatives, (b) such
reliance is expressly authorized by each opinion so relied upon and a copy of
each such opinion is delivered to the Representatives and is in form and
substance satisfactory to the Representatives and their counsel, and (c) counsel
shall state in their opinion that they believe that they and the Underwriters
are justified in relying thereon. With respect to subparagraph (14) above, such
counsel may state that his opinion and belief are based upon his participation
and the participation of his staff in the preparation of the Registration
Statement and Prospectus and review and discussion of the information furnished
therein.
EXHIBIT B
Opinion of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇,
Counsel for the Company
The opinion of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, special counsel for the
Company, to be delivered pursuant to Section 4(d) of the Underwriting Agreement
shall be to the effect that:
(1) This Agreement has been duly authorized, executed and
delivered by the Company.
(2) The Offered Securities are in due and proper form, as
contemplated by the Indenture, have been duly authorized, executed,
authenticated, issued and delivered and constitute valid and binding
obligations of the Company entitled to the benefits provided by the
Indenture; and the Offered Securities and the Indenture conform to the
descriptions thereof in the Prospectus as amended or supplemented.
(3) The Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed and delivered by
the parties thereto and constitutes a valid and binding instrument,
enforceable in accordance with its terms, except, as (a) the
enforceability thereof may be limited by bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors' rights generally and (b) rights of acceleration
and the availability of equitable remedies may be limited by equitable
principles of general applicability.
(4) No consent, approval, authorization, order, registration
or qualification of or with any court or governmental agency or body of
the United States or the State of New York is required for the issue
and sale of the Offered Securities or the consummation by the Company
of the transactions contemplated by this Agreement or the Indenture
except such as have been obtained under the Securities Act and the
Trust Indenture Act, 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 in the manner contemplated by this
Agreement.
(5) The documents incorporated by reference in the Prospectus
as amended or supplemented (other than the financial statements and
related schedules and other financial information therein, as to which
such counsel need express no opinion), when they became effective or
were filed with the Commission, as the case may be, complied as to form
in all material respects with the requirements of the Securities Act or
the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder.
(6) The Registration Statement and the Prospectus as amended
or supplemented and any further amendments or supplements thereto made
by the Company prior to the Closing Date (other than the financial
statements and related schedules and other financial and statistical
information therein, as to which such counsel need express no opinion)
comply as to form in all material respects with the requirements of the
Securities Act and the Trust Indenture Act and the rules and
regulations thereunder; such counsel has no reason to believe that, as
of its effective date, the Registration Statement or any further
amendment thereto made by the Company prior to the Closing Date (other
than the financial statements and related schedules and other financial
and statistical information therein, as to which such counsel need
express no opinion) 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, as of
its date, the Prospectus as amended or supplemented or any further
amendment or supplement thereto made by the Company prior to the
Closing Date (other than the financial statements and related schedules
and other financial and statistical information therein, as to which
such counsel need express no opinion) contained an untrue statement of
a material fact or omitted to state a material fact necessary to make
the statements therein, in light of the circumstances under which they
were made, not misleading or that, as of the Closing Date, either the
Registration Statement or the Prospectus as amended or supplemented or
any further amendment or supplement thereto made by the Company prior
to the Closing Date (other than the financial statements
and related schedules and other financial and statistical information
therein, as to which such counsel need express no opinion) contains an
untrue statement of a material fact or omits to state a material fact
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading; and such counsel does not
know of any amendment to the Registration Statement required to be
filed.
In rendering such opinion, such counsel may state that they
express no opinion as to the laws of any jurisdiction other than the United
States, the State of New York and the General Corporation Law of the State of
Delaware. With respect to subparagraph (vi) above, such counsel may state that
their opinion and belief are based upon their participation in the preparation
of the Registration Statement and Prospectus as amended or supplemented and
review and discussion of the information furnished therein, but without
independent check or verification thereof, except as specified.
EXHIBIT C
Opinion of Cravath, Swaine & ▇▇▇▇▇,
Counsel for the Underwriters
The opinion of Cravath, Swaine & ▇▇▇▇▇, counsel for the
Underwriters, to be delivered pursuant to Section 4(e) of the Underwriting
Agreement shall be to the effect that:
(1) The Underwriting Agreement has been duly authorized, executed
and delivered by the Company.
(2) The Indenture has been duly authorized, executed and delivered
by the Company, and constitutes a legal, valid and binding
obligation of the Company, enforceable against the Company in
accordance with its terms (subject to applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer and
other similar laws affecting creditors' rights generally from time
to time in effect and to general principles of equity, including,
without limitation, concepts of materiality, reasonableness, good
faith and fair dealing, regardless of whether in a proceeding in
equity or at law).
(3) The Offered 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 in
accordance with the terms of the Underwriting Agreement, will
constitute legal, valid and binding obligations of the Company
entitled to the benefits of the Indenture and enforceable against
the Company in accordance with their terms (subject to applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer and other similar laws affecting creditors' rights
generally from time to time in effect and to general principles of
equity, including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing, regardless of whether
in a proceeding in equity or at law).
(4) The Registration Statement became effective under the
Securities Act, and to the best knowledge of such counsel, no stop
order suspending the effectiveness of the Registration Statement
has been issued and no proceedings
for that purpose have been initiated or are pending or
contemplated under the Securities Act.
EXHIBIT D
Statement of Cravath, Swaine & ▇▇▇▇▇,
Counsel for the Underwriters
We have participated in conferences with certain officers of, and
with the accountants and counsel for, the Company concerning the preparation of
the Prospectus Supplement dated April [ ], 1999 (together with the Basic
Prospectus (as defined herein), the "Prospectus"), relating to the Offered
Securities, filed with the Securities and Exchange Commission (the "Commission")
pursuant to Rule 424(b) of the General Rules and Regulations under the
Securities Act of 1933 (the "Securities Act"). The Prospectus was filed as part
of the Registration Statement on Form S-3 (Registration No. 033-55161) filed
with the Commission on September 30, 1994 for registration under the Securities
Act of $250,000,000 aggregate amount of various securities of the Company, to be
issued from time to time by the Company (the "Registration Statement"), which
Registration Statement includes a prospectus dated April [ ], 1999 (together
with the documents incorporated therein by reference, the "Basic Prospectus").
The documents incorporated by reference in the Final Memorandum were prepared
and filed by the Company without our participation.
Although we have made certain inquiries and investigations in
connection with the preparation of the Registration Statement and Prospectus,
the limitations inherent in the role of outside counsel are such that we cannot
and do not assume responsibility for the accuracy or completeness of the
statements made in the Registration Statement and Prospectus, except insofar as
such statements relate to us. Subject to the foregoing, we hereby advise you
that our work in connection with this matter did not disclose any information
that gave us reason to believe that: (i) the Registration Statement, at the time
the Registration Statement became effective, or the Prospectus, as of the date
hereof (in each case except the financial statements and other information of a
statistical, accounting or financial nature included therein, as to which we do
not express any view), was not appropriately responsive in all material respects
to the requirements of the Securities Act and the applicable rules and
regulations of the Commission thereunder, or (ii) the Registration Statement, at
the time the Registration Statement became effective,
contained an untrue statement of a material fact or omitted to state a material
fact necessary to make the statements therein not misleading, or that the
Prospectus, at the date hereof, includes an untrue statement of a material fact
or omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading (in each case except for the financial statements and other
information of a statistical, accounting or financial nature included therein,
as to which we do not express any view).
