EXHIBIT 1
OCI HOLDINGS CORPORATION
$125,000,000
% Senior Subordinated Notes due 2007
UNDERWRITING AGREEMENT
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, 1997
CHASE SECURITIES INC.
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
SALOMON BROTHERS INC
c/o Chase Securities Inc.
000 Xxxx Xxxxxx, 0xx xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
OCI Holdings Corporation, a Delaware corporation (the "Company"),
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proposes to issue and sell $125,000,000 aggregate principal amount of its %
Senior Subordinated Notes due 2007 (the "Securities"). The Securities will be
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issued pursuant to an Indenture to be dated as of , 1997 (the "Indenture")
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between the Company, the Guarantors named therein (the "Guarantors")
and , as trustee (the "Trustee"), the form of
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which has been filed as an exhibit to the Registration Statement (as defined
below). The securities will be unconditionally guaranteed on a senior
subordinated basis, as to payment of principal, premium, if any, and interest,
jointly and severally, by the Guarantors (the "Guarantee").
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Simultaneously with the issuance and sale by the Company of the Securities, the
Company is offering shares of its common stock, par value $0.01 (the "Common
Stock Offering"). The Company hereby confirms its agreement with Chase
Securities Inc. ("CSI"), Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation
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("DLJ") and Salomon Brothers Inc (together with CSI, the
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"Underwriters") concerning the purchase of the Securities from the Company by
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the several Underwriters.
1. Registration Statement and Prospectus. A registration statement
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on Form S-1 (File No. 333- ), including a form of prospectus, relating to the
Securities has been prepared by the Company in conformity with the requirements
of the Securities Act of 1933, as amended (the "Securities Act"), and the rules
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and regulations (the "Rules and Regulations") of the Securities and Exchange
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Commission (the "Commission") thereunder and has been filed by the Company with
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the Commission. The Company may have filed one or more amendments thereto,
including the related preliminary prospectus, each of which has previously been
furnished to you. The Company will next file with the Commission either (i)
prior to effectiveness of such registration statement, a further amendment to
such registration statement (including the form of final prospectus) or (ii)
after effectiveness of such registration statement, a final prospectus in
accordance with Rules 430A and 424(b)(1) or (4). In the case of clause (ii)
above, the Company has included in such registration statement, as amended at
the Effective Time (as defined below), all information (other than information
permitted to be omitted from the Registration Statement when it becomes
effective pursuant to Rule 430A ("Rule 430A Information")) required by the
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Securities Act and the Rules and Regulations to be included in the final
prospectus with respect to the Securities and the offering thereof. As filed,
such amendment and form of final prospectus, or such final prospectus, shall
contain all Rule 430A Information, together with all other such required
information, with respect to the Securities and the offering thereof and, except
to the extent the Underwriters shall agree in writing to a modification, shall
be in all substantive respects in the form furnished to you prior to the
execution of this Agreement (this "Agreement") or, to the extent not completed
at such time, shall contain only such specific additional information and other
changes (beyond that contained in the latest Preliminary Prospectus) as the
Company has advised you, prior to the execution of this Agreement, will be
included or made therein. For purposes of this Agreement, "Effective Time"
means the date and time as of which such registration statement, or the most
recent post-effective amendment thereto, if any, was or is declared effective by
the Commission, and "Preliminary Prospectus" means each prospectus included in
such registration statement, or amendments thereof, before it becomes effective
under the Securities Act, any prospectus filed with the Commission by the
Company pursuant to Rule 424(a) and the prospectus included in the Registration
Statement at the Effective Time that omits Rule 430A Information. Such
registration statement, as amended at the Effective Time, including all Rule
430A Information, if any, is hereinafter referred to as the "Registration
Statement," and the form of prospectus relating to the Securities, as first
filed with the Commission pursuant to and in accordance with Rule 424(b) or, if
no such filing is required, as included in the Registration Statement is
hereinafter referred to as the "Prospectus."
2. Representations, Warranties and Agreements of the Company and the
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Guarantors. The Company and the Guarantors, jointly and severally,
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represent and warrant to, and agree with, the several Underwriters on and as of
the date hereof and the Closing Date (as defined in Section 3) that:
(a) 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.
(b) (i) The Registration Statement (other than any Rule 462(b)
Registration Statement to be filed by the Company after the effectiveness
of this Agreement), when it became effective, did not contain and, as
amended, 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, (ii) the
Registration Statement (other than any Rule 462(b) Registration Statement
to be filed by the Company after the effectiveness of this Agreement) and
the Prospectus comply and, as amended or supplemented, if applicable, will
comply in all material respects with the Securities Act and (iii) 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 paragraph do not apply 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 you expressly for use therein.
(c) Each preliminary 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; and did not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that the
representations and warranties set forth in this paragraph do not apply to
statements or omissions in any preliminary prospectus based upon
information relating to any underwriter furnished to the Company in writing
by such underwriter through you expressly for use therein.
(d) Each of the Company and its subsidiaries has been duly
incorporated, is validly existing as a corporation in good standing under
the laws of its jurisdiction of incorporation and has the corporate power
and authority to carry on its business as described in the Prospectus and
to own, lease and operate its properties, and each is duly qualified and is
in good standing as a foreign corporation authorized to do business in each
jurisdiction in which the nature of its business or its ownership or
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leasing of property requires such qualification, except where the failure
to be so qualified would not have a material adverse effect on the
business, prospects, financial condition or results of operations of the
Company and its subsidiaries, taken as a whole.
(e) All of the outstanding shares of capital stock of each of the
Company's subsidiaries have been duly authorized and validly issued and are
fully paid and nonassessable, and are owned by the Company, free and clear
of any security interest, claim, lien, encumbrance or adverse interest of
any nature.
(f) All the outstanding shares of capital stock of the Company have
been duly authorized and validly issued and are fully paid, nonassessable
and not subject to any preemptive or similar rights.
(g) The Company has the authorized capitalization as set forth in the
Prospectus under the caption "Capitalization."
(h) Neither the Company nor any of its subsidiaries is in violation of
its respective charter or by-laws or in default in the performance of any
obligation, agreement or condition contained in any bond, debenture, note
or any other evidence of indebtedness or in any other agreement, indenture
or instrument material to the conduct of the business of the Company and
its subsidiaries, taken as a whole, to which the Company or any of its
subsidiaries is a party or by which it or any of its subsidiaries or their
respective property is bound.
(i) Each of the Company and the Guarantors has all requisite corporate
power and authority to enter into this Agreement, the Indenture, the
Securities and the Guarantees and to consummate the transactions
contemplated hereby and thereby, and each of the Company and the
Guarantors has all requisite corporate power and authority to issue and
sell the Securities to be offered and sold by it hereunder. This Agreement
has been duly authorized, executed and delivered by each of the Company and
the Guarantors.
(j) The Indenture has been duly authorized by each of the Company and
the Guarantors and, when duly executed and delivered in accordance with its
terms by each of the parties thereto, will constitute a valid and legally
binding agreement of each of the Company and the Guarantors enforceable
against each of the Company and the Guarantors in accordance with its
terms, except to the extent that such enforceability may be limited by
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and
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other similar laws affecting creditors' rights generally and by general
equitable principles (whether considered in a proceeding in equity or at
law).
(k) The Securities have been duly authorized by the Company and, when
duly executed, authenticated, issued and delivered as provided in the
Indenture and paid for as provided herein, will be duly and validly issued
and outstanding and will constitute valid and legally binding obligations
of the Company entitled to the benefits of the Indenture and enforceable
against the Company in accordance with their terms, except to the extent
that such enforceability may be limited by applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other
similar laws affecting creditors' rights generally and by general equitable
principles (whether considered in a proceeding in equity or at law). The
Guarantees endorsed on the Notes have been duly authorized by the
Guarantors and, when the Securities are executed by the Company and the
Guarantees are endorsed by the Guarantors and the Securities are
authenticated by the Trustee as provided in the Indenture and delivered and
paid for by the Underwriters as provided herein, the Guarantees will
constitute valid and legally binding obligations of the Subsidiary
Guarantors entitled to the benefits of the Indenture and enforceable
against the Guarantors in accordance with their terms, except to the extent
that such enforceability may be limited by applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other
similar laws affecting creditors rights generally and by general equitable
principles (whether considered in a proceeding in equity or at law).
(l) The execution, delivery and performance of this Agreement,
compliance by the Company and the Guarantors with all the provisions hereof
and the consummation of the transactions contemplated hereby will not
require any consent, approval, authorization or other order of any court,
regulatory body, administrative agency or other governmental body (except
as such may be required under the securities or Blue Sky laws of the
various states) and will not conflict with or constitute a breach of any of
the terms or provisions of, or a default under, the charter or by-laws of
the Company or any of its subsidiaries or any agreement, indenture or other
instrument to which it or any of its subsidiaries is a party or by which it
or any of its subsidiaries or their respective property is bound, or
violate or conflict with any laws, administrative regulations or rulings or
court decrees applicable to the Company, any of its subsidiaries or their
respective property.
(m) Each of this Agreement, the Indenture, the Securities and the
Guarantees conforms in all material respects to the description thereof
contained in the Prospectus.
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(n) There are no material legal or governmental proceedings pending to
which the Company or any of its subsidiaries is a party or of which any of
their respective property is the subject, and, to the best of the Company's
and the Guarantors' knowledge, no such proceedings are threatened or
contemplated.
(o) There are no contracts or other documents of a character required
to be described in the Registration Statement or the Prospectus or to be
filed as an exhibit to the Registration Statement that is not so described
or filed as required.
(p) Neither the Company nor any of its subsidiaries has violated any
foreign, federal, state or local law or regulation relating to the
protection of human health and safety, the environment or hazardous or
toxic substances or wastes, pollutants or contaminants ("Environmental
Laws"), nor any federal or state law relating to discrimination in the
hiring, promotion or pay of employees nor any applicable federal or state
wages and hours laws, nor any provisions of the Employee Retirement Income
Security Act or the rules and regulations promulgated thereunder, that in
each case might result in any material adverse change in the business,
prospects, financial condition or results of operation of the Company and
its subsidiaries, taken as a whole.
(q) Each of the Company and its subsidiaries has such permits,
licenses, franchises and authorizations of governmental or regulatory
authorities ("permits"), including, without limitation, under any
applicable Environmental Laws, as are necessary to own, lease and operate
its respective properties and to conduct its business; each of the Company
and its subsidiaries has fulfilled and performed all of its material
obligations with respect to such permits and no event has occurred that
allows, or after notice or lapse of time would allow, revocation or
termination thereof or results in any other material impairment of the
rights of the holder of any such permit; and, except as described in the
Prospectus, such permits contain no restrictions that are materially
burdensome to the Company or any of its subsidiaries.
(r) Except as otherwise set forth in the Prospectus or such as are not
material to the business, prospects, financial condition or results of
operation of the Company and its subsidiaries, taken as a whole, the
Company and each of its subsidiaries has good and marketable title, free
and clear of all liens, claims, encumbrances and restrictions except liens
for taxes not yet due and payable, to all property and assets described in
the Registration Statement as being owned by it. All leases to which the
Company or any of its subsidiaries is a party are valid and binding and no
default has occurred or is continuing thereunder that might result in any
material adverse change in the business, prospects, financial condition or
results of operation of the Company and its subsidiaries taken as a whole,
and the Company
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and its subsidiaries enjoy peaceful and undisturbed possession under all
such leases to which any of them is a party as lessee with such exceptions
as do not materially interfere with the use made by the Company or such
subsidiary.
(s) Each of the Company and its subsidiaries maintains reasonably
adequate insurance for the business in which it is engaged.
(t) Each of KPMG Peat Marwick LLP, Xxxxx & Xxxx, Xxxxx & Xxxxx LLP,
XxXxxxxxx & Xxxxxx, LLP, Xxxxxxxx & Xxxxx and Xxxxxx Xxxxxxxx LLP
(collectively, the "Independent Public Accountants") is an independent
public accountants with respect to the Company and the Subsidiary
Guarantors as required by the Securities Act.
(u) The consolidated financial statements, together with related
schedules and notes forming part of the Registration Statement and the
Prospectus (and any amendment or supplement thereto), present fairly the
consolidated financial position, results of operations and changes in
financial position of the Company and its subsidiaries on the basis stated
in the Registration Statement at the respective dates or for the respective
periods to which they apply; such statements and related schedules and
notes have been prepared in accordance with generally accepted accounting
principles consistently applied throughout the periods involved, except as
disclosed therein; and the other financial and statistical information and
data set forth in the Registration Statement and the Prospectus (and any
amendment or supplement thereto) is, in all material respects, accurately
presented and prepared on a basis consistent with such financial statements
and the books and records of the Company. The pro forma financial
statements and data set forth in the Registration Statement and the
Prospectus present fairly in all material respects the information shown
therein, have been prepared in accordance with the Commission's rules and
guidelines with respect to pro forma information, have been properly
compiled on the pro forma basis described therein and the assumptions used
in the preparation thereof are reasonable and the adjustments therein are
appropriate to give effect to the transactions and circumstances referred
to therein.
(v) None of the Company or any of the Guarantors is an "investment
company" or a company "controlled" by an "investment company" within the
meaning of the Investment Company Act of 1940, as amended.
(w) No holder of any security of the C ompany has any right to require
registration of shares of Common Stock or any other security of the
Company.
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(x) Each of the Company and the Guarantors has complied with all
provisions of Section 517.075, Florida Statutes (Chapter 92-198, Laws of
Florida).
(y) Except as disclosed in the Prospectus, there are no business
relationships or related party transactions required to be disclosed
therein by Item 404 of Regulation S-K of the Commission.
(z) There is no (i) significant unfair labor practice complaint
pending against the Company or any of its subsidiaries or, to the best
knowledge of the Company, threatened against any of them, before the
National Labor Relations Board or any state or local relations board, and
no significant grievance or more significant arbitration proceeding arising
out of or under any collective bargaining agreement is so pending against
the Company or any of its subsidiaries or, to the best knowledge of the
Company, threatened against any of them, and (ii) no significant strike,
labor dispute, slowdown or stoppage pending against the Company or any of
its subsidiaries or, to the best knowledge of the Company, threatened
against it or any of its subsidiaries except for such actions specified in
clause (i) or (ii) above that, singly or in the aggregate, could not
reasonably be expected to have a material adverse effect on the Company and
its subsidiaries, taken as a whole.
(aa) Each of the Company and its subsidiaries maintains a system of
internal accounting controls sufficient to provide reasonable assurance
that (i) transactions are executed in accordance with management's general
or specific authorizations; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset accountability;
(iii) access to assets is permitted only in accordance with management's
general or specific authorization; and (iv) the recorded accountability for
assets is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
(bb) All material tax returns required to be filed by the Company and
each of its subsidiaries in any jurisdiction have been filed, other than
those filings being contested in good faith, and all material taxes,
including withholding taxes, penalties and interest, assessments, fees and
other charges due pursuant to such returns or pursuant to any assessment
received by the Company or any of its subsidiaries have been paid, other
than those being contested in good faith and for which adequate reserves
have been provided.
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(cc) Each of the Company and the Guarantors has filed a registration
statement pursuant to Section 12(g) of the Exchange Act, to register the
Securities.
(dd) No "prohibited transaction" (as defined in Section 406 of the
Employee Retirement Income Security Act of 1974, as amended, including the
regulations and published interpretations thereunder ("ERISA"), or
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Section 4975 of the Internal Revenue Code of 1986, as amended from time to
time (the "Code")) or "accumulated funding deficiency" (as defined in
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Section 302 of ERISA) or any of the events set forth in Section 4043(b) of
ERISA (other than events with respect to which the 30-day notice
requirement under Section 4043 of ERISA has been waived) has occurred with
respect to any employee benefit plan of the Company or any of its
subsidiaries that could reasonably be expected to have a material adverse
effect on the Company or its subsidiaries; each such employee benefit plan
is in compliance in all material respects with applicable law, including
ERISA and the Code; the Company and each of its subsidiaries have not
incurred and do not expect to incur liability under Title IV of ERISA with
respect to the termination of, or withdrawal from, any pension plan for
which the Company or any of its subsidiaries would have any liability; and
each such pension plan that is intended to be qualified under
Section 401(a) of the Code is so qualified in all material respects and
nothing has occurred, whether by action or by failure to act, that could
reasonably be expected to cause the loss of such qualification.
(ee) Neither the Company nor, to the best knowledge of the Company,
any director, officer, agent, employee or other person associated with or
acting on behalf of the Company has (i) used any corporate funds for any
unlawful contribution, gift, entertainment or other unlawful expense
relating to political activity; (ii) made any direct or indirect unlawful
payment to any foreign or domestic government official or employee from
corporate funds; (iii) violated or is in violation of any provision of the
Foreign Corrupt Practices Act of 1977; or (iv) made any bribe, rebate,
payoff, influence payment, kickback or other unlawful payment.
(ff) None of the Company or any of the Guarantors has taken or will
take, directly or indirectly, any action designed to or that could
reasonably be expected to cause or result in the stabilization or
manipulation of the price of the Securities.
(gg) No forward-looking statement (within the meaning of Section 27A
of the Act and Section 21E of the Exchange Act) contained in the
Registration Statement has been made or reaffirmed without a reasonable
basis or has been disclosed other than in good faith.
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(hh) Since the respective dates as of which information is given in
the Prospectus, except as otherwise stated therein, (i) there has been no
material adverse change or any development involving a prospective material
adverse change in the condition, financial or otherwise, or in the
earnings, business, prospects, financial condition or results of operations
of the Company or any of the Guarantors taken as a whole, whether or not
arising in the ordinary course of business, (ii) none of the Company or any
of the Guarantors has incurred any material liability or obligation, direct
or contingent, other than in the ordinary course of business, (iii) none of
the Company or any of the Guarantors has entered into any material
transaction other than in the ordinary course of business and (iv) there
has not been any change in the capital stock or long-term debt of the
Company or any of the Guarantors, or any dividend or distribution of any
kind declared, paid or made by the Company or any of the Guarantors on any
class of its capital stock.
3. Purchase of the Securities. (a) On the basis of the
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representations, warranties and agreements contained herein, and subject to the
terms and conditions set forth herein, each of the Company and the Guarantors
agrees to issue and sell to each of the Underwriters, severally and not jointly,
and each of the Underwriters, severally and not jointly, agrees to purchase from
each of the Company and the Guarantors, the principal amount of Securities set
forth opposite the name of such Underwriter on Schedule 1 hereto at a purchase
price equal to 0% of the principal amount thereof.
The Company shall not be obligated to deliver any of the Securities
except upon payment for all of the Securities to be purchased as provided
herein. The Company acknowledges and agrees that the Underwriters may sell
Securities to any affiliate of an Underwriter and that any such affiliate may
sell Securities purchased by it to an Underwriter.
The Company hereby confirms its engagement of DLJ as, and DLJ hereby
confirms its agreement with the Company to render services as, a "qualified
independent underwriter", within the meaning of Section (b)(15) of Rule 2720 of
the Conduct Rules of the National Association of Securities Dealers, Inc. (the
"NASD") with respect to the offering and sale of the Securities. DLJ, solely in
its capacity as qualified independent underwriter and not otherwise, is referred
to herein as the "QIU." As compensation for the services of the QIU hereunder,
the Company agrees to pay the QIU $5,000 on the Closing Date, which fee shall be
waived. The yield to maturity at which the securities will be sold to the
public shall be no lower than the minimum yield to maturity recommended by DLJ
acting as QIU.
4. Delivery of and Payment for the Securities. (a) Delivery of and
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payment for the Securities shall be made at the offices of Xxxxxx Xxxxxx &
Xxxxxxx, New York, New York, or at such other place as shall be agreed upon by
the Underwriters and the Company, at 9:00 A.M., New York City time, on ,
1997, or at such other time or date, not later than seven full business days
thereafter, as shall be agreed upon by the Underwriters and the Company (such
date and time of payment and delivery being referred to herein as the "Closing
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Date").
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(b) On the Closing Date, payment of the purchase price for the
Securities shall be made to the Company by wire transfer (same-day funds) to
such account or accounts as specified by the Company, or by such other means as
the parties hereto shall agree prior to the Closing Date, against delivery to
the Underwriters of the certificates evi-
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dencing the Securities. Time shall be of the essence, and delivery at the time
and place specified pursuant to this Agreement is a further condition of the
obligations of the Underwriters hereunder. Upon delivery, the Securities shall
be in global form, registered in such names and in such denominations as CSI on
behalf of the Underwriters shall have requested in writing not less than two
full business days prior to the Closing Date. The Company agrees to make one or
more global certificates evidencing the Securities available for inspection by
CSI on behalf of the Underwriters in New York, New York at least 24 hours prior
to the Closing Date.
5. Further Agreements of the Company and the Guarantors.
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Each of the Company and the Guarantors agrees with each of the several
Underwriters:
(a) To advise you promptly and, if requested by you, to confirm such
advice in writing, (i) of any request by the Commission for amendments to
the Registration Statement or amendments or supplements to the Prospectus
or for additional information, (ii) 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 Shares for offering or sale in
any jurisdiction, or the initiation of any proceeding for such purposes,
(iii) when any amendment to the Registration Statement becomes effective,
(iv) if the Company is required to file a Rule 462(b) Registration
Statement after the effectiveness of this Agreement, when the Rule 462(b)
Registration Statement has become effective and (v) of the happening of any
event during the period referred to in Section 5(d) below which makes any
statement of a material fact made in the Registration Statement or the
Prospectus untrue or which requires any additions to or changes in the
Registration Statement or the Prospectus in order to make the statements
therein not misleading. If at any time the Commission shall issue any stop
order suspending the effectiveness of the Registration Statement, the
Company will use its best efforts to obtain the withdrawal or lifting of
such order at the earliest possible time;
(b) to furnish to each of the Underwriters and counsel for the
Underwriters, without charge, four signed copies of the Registration
Statement as originally filed with the Commission, and each amendment
thereto filed with the Commission, including all consents and exhibits
filed therewith; and to deliver promptly without charge to the Underwriters
such number of the following documents as the Underwriters may from time to
time reasonably request: (i) conformed copies of the Registration
Statement as originally filed with the Commission and each amendment
thereto (in each case excluding exhibits other than this Agreement, the
Indenture and the computation of the ratio of earnings to fixed charges)
and (ii) each Preliminary Prospectus, the Prospectus and any amended or
supplemented Prospectus;
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(c) if the delivery of a prospectus is required at any time in
connection with the sale of the Securities and if at such time any events
shall have occurred as a result of which, in the opinion of counsel for the
Underwriters, the Prospectus as then amended or supplemented would include
an untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such Prospectus is delivered,
not misleading, or if for any other reason it shall be necessary or
advisable at such time to amend or supplement the Prospectus in order to
comply with the Securities Act or the Exchange Act or with a request from
the Commission, to notify the Underwriters immediately thereof, and to
promptly prepare and file with the Commission an amended Prospectus or a
supplement to the Prospectus that will correct such statement or omission
or effect such compliance;
(d) as soon as practicable to make generally available to the
Company's security holders and to deliver to the Underwriters an earning
statement of the Company and its subsidiaries (which need not be audited)
complying with Section 11(a) of the Securities Act and the Rules and
Regulations (including, at the option of the Company, Rule 158);
(e) for so long as the Securities are outstanding, to furnish to you
as soon as available a copy of each report or other publicly available
information of the Company furnished by the Company to the Trustee or filed
with the Commission and such other publicly available information as you
may reasonably request concerning the Company and its subsidiaries;
(f) to promptly take from time to time such actions as the
Underwriters may reasonably request to qualify the Securities for offering
and sale under the securities or Blue Sky laws of such jurisdictions as the
Underwriters may designate and to continue such qualifications in effect
for so long as required for the resale of the Securities; and to arrange
for the determination of the eligibility for investment of the Securities
under the laws of such jurisdictions as the Underwriters may reasonably
request; provided that the Company and its subsidiaries shall not be
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obligated to qualify as foreign corporations in any jurisdiction in which
they are not so qualified or to file a general consent to service of
process in any jurisdiction;
(g) for a period of 180 days from the date of the Prospectus, not to
offer for sale, sell, contract to sell or otherwise dispose of, directly or
indirectly, or file a registration statement for, or announce any offer,
sale, contract for sale of or other disposition of any debt securities
issued or guaranteed by the Company or any of its subsidiaries (other than
the Securities) without the prior written consent of CSI;
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(h) not to, for so long as the Securities are outstanding, be or
become, or be or become owned by, an open-end investment company, unit
investment trust or face-amount certificate company that is or is required
to be registered under Section 8 of the Investment Company Act, and to not
be or become, or be or become owned by, a closed-end investment company
required to be registered, but not registered thereunder;
(i) in connection with the offering of the Securities, until CSI on
behalf of the Underwriters shall have notified the Company of the
completion of the distribution of the Securities, not to, and to cause its
affiliated purchasers (as defined in Regulation M under the Exchange Act)
not to, either alone or with one or more other persons, bid for or
purchase, for any account in which it or any of its affiliated purchasers
has a beneficial interest, any Securities, or attempt to induce any person
to purchase any Securities; and not to, and to cause its affiliated
purchasers not to, make bids or purchase for the purpose of creating
actual, or apparent, active trading in or of raising the price of the
Securities;
(j) in connection with the offering of the Securities, to make its
officers, employees, independent accountants and legal counsel reasonably
available upon request by the Underwriters;
(k) to furnish to each of the Underwriters on the date hereof a copy
of the independent accountants' report included in Registration Statement
signed by the accountants rendering such report;
(l) to do and perform all things required to be done and performed by
it under this Agreement that are within its control prior to or after the
Closing Date, and to use its best efforts to satisfy all conditions
precedent on its part to the delivery of the Securities;
(m) to not take any action prior to the execution and delivery of the
Indenture that, if taken after such execution and delivery, would have
violated any of the covenants contained in the Indenture;
(n) to not take any action prior to the Closing Date that would
require the Prospectus to be amended or supplemented pursuant to Section
4(d);
(o) prior to the Closing Date, not to issue any press release or other
communication directly or indirectly or hold any press conference with
respect to the Company, its condition, financial or otherwise, or earnings,
business affairs or business prospects (except for routine oral marketing
communications in the ordi-
-14-
nary course of business and consistent with the past practices of the
Company and of which the Underwriters are notified), without the prior
written consent of the Underwriters, unless in the judgment of the Company
and its counsel, and after notification to the Underwriters, such press
release or communication is required by law; and
(p) to apply the net proceeds from the sale of the Securities as set
forth in the Prospectus under the heading "Use of Proceeds".
6. Conditions of Underwriters' Obligations. The respective obligations
---------------------------------------
of the several Underwriters hereunder are subject to the accuracy, on and as of
the date hereof and the Closing Date, of the representations and warranties of
the Company and the Guarantors contained herein, to the accuracy of the
statements of the Company and its officers made in any certificates delivered
pursuant hereto, to the performance by each of the Company and the Subsidiary
Guarantors of its obligations hereunder, and to each of the following additional
terms and conditions:
(a) All of the representations and warranties of the Company and the
Guarantors contained in this Agreement shall be true and correct on the
Closing Date with the same force and effect as if made on and as of the
Closing Date.
(b) If the Effective Time is not prior to the execution and delivery
of this Agreement, the Registration Statement shall have become effective
and the Indenture shall have been qualified under the Trust Indenture Act,
and the Underwriters shall have received notice thereof, not later than (i)
5:00 p.m. New York City time on the date of determination of the public
offering price, if such determination occurred at or prior to 3:00 p.m. New
York City time on such date or (ii) 12:00 noon New York City time on the
business day following the day on which the offering price was determined
if such determination occurred after 3:00 p.m. New York City time on such
date. If the Effective Time is prior to the execution and delivery of this
Agreement, the Prospectus shall have been timely filed with the Commission
in accordance with Section 4(a) of this Agreement. Prior to the Closing
Date, no stop order suspending the effectiveness of the Registration
Statement or any part thereof shall have been issued and no proceeding for
that purpose shall have been initiated or threatened by the Commission; and
any request of the Commission for inclusion of additional information in
the Registration Statement or the Prospectus or otherwise shall have been
complied with to the reasonable satisfaction of the Underwriters.
(c) The Prospectus (and any amendments or supplements thereto) shall
have been printed and copies distributed to the Underwriters as promptly as
practicable on or
-15-
following the date of this Agreement or at such other date and time as to
which the Underwriters may agree.
(d) None of the Underwriters shall have discovered and disclosed to
the Company on or prior to the Closing Date that the Prospectus or any
amendment or supplement thereto contains an untrue statement of a fact
which, in the opinion of counsel for the Underwriters, is material or omits
to state any fact which, in the opinion of such counsel, is material and is
required to be stated therein or is necessary to make the statements
therein not misleading.
(e) All corporate proceedings and other legal matters incident to the
authorization, form and validity of each of this Agreement, the Indenture
and the Securities (collectively, the "Transaction Documents") and the
Prospectus, and all other legal matters relating to the Transaction
Documents and the transactions contemplated thereby, shall be satisfactory
in all material respects to the Underwriters, and the Company shall have
furnished to the Underwriters all documents and information that they or
their counsel may reasonably request to enable them to pass upon such
matters.
(f) Xxxxxxx, Xxxxxxx & Xxxx LLP shall have furnished to the
Underwriters their written opinion, as counsel to the Company and the
Guarantors, addressed to the Underwriters and dated the Closing Date, in
form and substance reasonably satisfactory to the Underwriters,
substantially to the effect set forth in Annex A hereto.
(g) The Underwriters shall have received from Xxxxxx Xxxxxx & Xxxxxxx,
counsel for the Underwriters, such opinion, dated the Closing Date, with
respect to such matters as the Underwriters may reasonably require, and the
Company shall have furnished to such counsel such documents and information
as they request for the purpose of enabling them to pass upon such matters.
(h) The Company shall have furnished to the Underwriters a letter (the
"Initial Letter") the Independent Public Accountants, addressed to the
--------------
Underwriters and dated the date hereof, in form and substance reasonably
satisfactory to the Underwriters and counsel for the Underwriters.
(i) The Company shall have furnished to the Underwriters a letter (the
"Bring-Down Letter") of the Independent Public Accountants, addressed to
-----------------
the Underwriters and dated the Closing Date (i) confirming that they are
independent public accountants with respect to the Company and its
subsidiaries as required by the Securities Act and the Rules and
Regulations, (ii) stating, as of the date of the Bring-Down
-16-
Letter (or, with respect to matters involving changes or developments since
the respective dates as of which specified financial information is given
in the Prospectus, as of a date not more than three business days prior to
the date of the Bring-Down Letter), that the conclusions and findings of
such accountants with respect to the financial information and other
matters covered by the Initial Letter are accurate and (iii) confirming in
all material respects the conclusions and findings set forth in the Initial
Letter.
(j) The Company and each of the Guarantors shall have furnished to the
Underwriters a certificate, dated the Closing Date, of its chief executive
officer and its chief financial officer stating that (A) such officers have
carefully examined the Registration Statement and the Prospectus, (B) in
their opinion, the Registration Statement and the Prospectus, as of the
Effective Time, did not include any untrue statement of a material fact and
did not omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and since the
Effective Time, no event has occurred that should have been set forth in a
supplement or amendment to the Registration Statement and the Prospectus so
that the Registration Statement and the Prospectus (as so amended or
supplemented) would not include any untrue statement of a material fact and
would not omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading and (C) as of the
Closing Date, the representations and warranties of the Company and each of
the Guarantors in this Agreement are true and correct in all material
respects, each of the Company and the Guarantors has complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied hereunder on or prior to the Closing Date, no stop order
suspending the effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been instituted or, to the best of
such officer's knowledge, are contemplated by the Commission, and
subsequent to the date of the most recent financial statements contained in
the Registration Statement and the Prospectus, there has been no material
adverse change in the financial position or results of operation of the
Company or any of its subsidiaries, or any change, or any development
including a prospective change, in or affecting the condition (financial or
otherwise), results of operations, business or prospects of the Company and
its subsidiaries taken as a whole, except as set forth in the Prospectus.
(k) The Indenture shall have been duly executed and delivered by the
Company, the Guarantors and the Trustee, the Securities shall have been
duly
-17-
executed and delivered by the Company and duly authenticated by the Trustee
and the Guarantees were duly endorsed by the Guarantors.
(l) If any event shall have occurred that requires the Company under
Section 5(d) to prepare an amendment or supplement to the Prospectus, such
amendment or supplement shall have been prepared, the Underwriters shall
have been given a reasonable opportunity to comment thereon, and copies
thereof shall have been delivered to the Underwriters reasonably in advance
of the Closing Date.
(m) Subsequent to the execution and delivery of this Agreement or, if
earlier, the dates as of which information is given in the Registration
Statement (exclusive of any amendment thereto) and the Prospectus
(exclusive of any supplement thereto), there shall not have been any change
in the capital stock or long-term debt or any change, or any development
involving a prospective change, in or affecting the condition (financial or
otherwise), results of operations, business or prospects of the Company and
its subsidiaries taken as a whole, the effect of which, in any such case
described above, is, in the judgment of the Underwriters, so material and
adverse as to make it impracticable or inadvisable to proceed with the
public offering of the Securities on the terms and in the manner
contemplated by this Agreement and the Prospectus (exclusive of any
supplement thereto).
(n) The Company shall have consummated the Common Stock Offering.
(o) No action shall have been taken and no statute, rule, regulation
or order shall have been enacted, adopted or issued by any governmental
agency or body that would, as of the Closing Date, prevent the issuance or
sale of the Securities; and no injunction, restraining order or order of
any other nature by any federal or state court of competent jurisdiction
shall have been issued as of the Closing Date which would prevent the
issuance or sale of the Securities.
(p) Subsequent to the execution and delivery of this Agreement (i) no
downgrading shall have occurred in the rating accorded the Securities or
any of the Company's other debt securities or preferred stock by any
"nationally recognized statistical rating organization," as such term is
defined by the Commission for purposes of Rule 436(g)(2) of the Rules and
Regulations and (ii) no such organization shall have publicly announced
that it has under surveillance or review (other than an announcement with
positive implications of a possible upgrading), its rating of the
Securities or any of the Company's other debt securities or preferred
stock.
(q) Subsequent to the execution and delivery of this Agreement there
shall not have occurred any of the following: (i) trading in securities
generally on the
-18-
New York Stock Exchange, the American Stock Exchange or the over-the-
counter market shall have been suspended or limited, or minimum prices
shall have been established on any such exchange or market by the
Commission, by any such exchange or by any other regulatory body or
governmental authority having jurisdiction, or trading in any securities of
the Company on any exchange or in the over-the-counter market shall have
been suspended or (ii) any moratorium on commercial banking activities
shall have been declared by federal or New York state authorities or (iii)
an outbreak or escalation of hostilities or a declaration by the United
States of a national emergency or war or (iv) a material adverse change in
general economic, political or financial conditions (or the effect of
international conditions on the financial markets in the United States
shall be such) the effect of which, in the case of this clause (iv), is, in
the judgment of the Underwriters, so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the
sale or the delivery of the Securities on the terms and in the manner
contemplated by this Agreement and in the Prospectus (exclusive of any
amendment or supplement thereto).
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Underwriters.
7. Effectiveness and Termination. This Agreement shall become
-----------------------------
effective upon the later of (i) when the Underwriters and the Company shall have
received notification of the effectiveness of the Registration Statement or (ii)
the execution of this Agreement. The obligations of the Underwriters hereunder
may be terminated by the Underwriters, in their absolute discretion, by notice
given to and received by the Company prior to delivery of and payment for the
Securities if, prior to that time, any of the events described in Section 6(l),
(m), (n) or (o) shall have occurred and be continuing.
8. Defaulting Underwriters. (a) If, on the Closing Date, any
-----------------------
Underwriter defaults in the performance of its obligations under this Agreement,
the non-defaulting Underwriters may make arrangements for the purchase of the
Securities that such defaulting Underwriter agreed but failed to purchase by
other persons satisfactory to the Company and the non-defaulting Underwriters,
but if no such arrangements are made within 36 hours after such default, this
Agreement shall terminate without liability on the part of the non-defaulting
Underwriters or the Company, except that the Company will continue to be liable
for the payment of expenses to the extent set forth in Sections 9 and 13 and
except that the provisions of Sections 10 and 11 shall not terminate and shall
remain in effect. As used in this Agreement, the term "Underwriters" includes,
for all purposes of this Agreement unless the context otherwise requires, any
party not listed in Schedule 1 hereto that, pursu-
-19-
ant to this Section 8, purchases Securities which a defaulting Underwriter
agreed but failed to purchase.
(b) Nothing contained herein shall relieve a defaulting Underwriter of
any liability it may have to the Company or any non-defaulting Underwriter for
damages caused by its default. If other persons are obligated or agree to
purchase the Securities of a defaulting Underwriter, either the non-defaulting
Underwriters or the Company may postpone the Closing Date for up to seven full
business days in order to effect any changes that in the opinion of counsel for
the Company or counsel for the Underwriters may be necessary in the Registration
Statement and the Prospectus or in any other document or arrangement, and the
Company agrees to promptly prepare any amendment or supplement to the
Registration Statement and the Prospectus that effects any such changes.
9. Reimbursement of Underwriters' Expenses. If (a) no notice shall
---------------------------------------
have been given pursuant to Section 7 causing this Agreement to become
effective, (b) the Company shall fail to tender the Securities for delivery to
the Underwriters for any reason permitted under this Agreement or (c) the
Underwriters shall decline to purchase the Securities for any reason permitted
under this Agreement, the Company shall reimburse the Underwriters for such out-
of-pocket expenses (including reasonable fees and disbursements of counsel for
the Underwriters) as shall have been reasonably incurred by the Underwriters in
connection with this Agreement and the proposed public offering and sale of the
Securities, and upon demand the Company shall pay the full amount thereof to the
Underwriters. If this Agreement is terminated pursuant to Section 8 by reason of
the default of one or more of the Underwriters, the Company shall not be
obligated to reimburse any defaulting Underwriter on account of such expenses.
10. Indemnification. (a) The Company and the Guarantors, jointly
---------------
and severally, shall indemnify and hold harmless each Underwriter, its
affiliates, their respective officers, directors, employees, representatives and
agents, and each person, if any, who controls any Underwriter within the meaning
of the Securities Act or the Exchange Act (collectively referred to for purposes
of this Section 10(a) and Section 11 as an Underwriter), from and against any
loss, claim, damage or liability, joint or several, or any action in respect
thereof (including, without limitation, any loss, claim, damage, liability or
action relating to purchases and sales of the Securities), to which that
Underwriter may become subject, whether commenced or threatened, under the
Securities Act, the Exchange Act, any other federal or state statutory law or
regulation, at common law or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, (i) any untrue statement or
alleged untrue statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement or the Prospectus or in any amendment or
supplement thereto or (ii) the omission or alleged omission to state therein a
material fact required to be stated therein or necessary in order to make the
statements therein, in the
-20-
light of the circumstances under which they were made, not misleading, and shall
reimburse each Underwriter promptly upon demand for any legal or other expenses
reasonably incurred by that Underwriter in connection with investigating or
defending or preparing to defend against or appearing as a third party witness
in connection with any such loss, claim, damage, liability or action as such
expenses are incurred; provided, however, that the Company and the Guarantors
-------- -------
shall not be liable in any such case to the extent that any such loss, claim,
damage, liability or action arises out of, or is based upon, an untrue statement
or alleged untrue statement in or omission or alleged omission from any of such
documents in reliance upon and in conformity with any Underwriters' Information;
and provided, further, that with respect to any such untrue statement in or
-------- -------
omission from any Preliminary Prospectus, the indemnity agreement contained in
this Section 10(a) shall not inure to the benefit of any such Underwriter to the
extent that the sale to the person asserting any such loss, claim, damage,
liability or action was an initial resale by such Underwriter and any such loss,
claim, damage, liability or action of or with respect to such Underwriter
results from the fact that both (A) to the extent required by applicable law, a
copy of the Prospectus was not sent or given to such person at or prior to the
written confirmation of the sale of such Securities to such person and (B) the
untrue statement in or omission from such Preliminary Prospectus was corrected
in the Prospectus unless, in either case, such failure to deliver the Prospectus
was a result of non-compliance by the Company and the Guarantors with
Section 5(c).
(b) Each Underwriter, severally and not jointly, shall indemnify and
hold harmless the Company and the Guarantors, and any affiliates, including any
of their respective officers, directors, employees, representatives and agents,
and each person, if any, who controls the Company within the meaning of the
Securities Act or the Exchange Act (collectively referred to for purposes of
this Section 10(b) and Section 11 as the Company), from and against any loss,
claim, damage or liability, joint or several, or any action in respect thereof,
to which the Company may become subject, whether commenced or threatened, under
the Securities Act, the Exchange Act, any other federal or state statutory law
or regulation, at common law or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, (i) any untrue statement or
alleged untrue statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement or the Prospectus or in any amendment or
supplement thereto or (ii) the omission or alleged omission to state therein a
material fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, but in each case only to the extent that the untrue
statement or alleged untrue statement or omission or alleged omission was made
in reliance upon and in conformity with any Underwriters' Information, and shall
reimburse the Company and the Guarantors for any legal or other
expenses reasonably incurred by the Company and the Guarantors in connection
with investigating or defending or preparing to
-21-
defend against or appearing as a third party witness in connection with any such
loss, claim, damage, liability or action as such expenses are incurred.
(c) The Company and the Guarantors also agree to indemnify
and hold harmless DLJ, its directors, officers and employees and each person, if
any, who controls DLJ within the meaning of either Section 15 of the Act or
Section 20 of the Exchange Act, from and against any and all losses, claims,
damages, liabilities and judgments incurred as a result of DLJ's participation
as a "qualified independent underwriter" within the meaning of Conduct Rule 2720
of the By-Laws of the National Association of Securities Dealers, Inc. in
connection with the offering of the Notes, insofar as such loss, claim, damage,
liability or action arises out of or is based upon (i) any untrue statement or
alleged untrue statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement or the Prospectus or in any amendment or
supplement thereto or (ii) the omission or alleged omission to state in any
Preliminary Prospectus, the Registration Statement or the Prospectus, or in any
amendment or supplement thereto, any material fact required to be stated therein
or necessary to make the statements therein not misleading, except for any
losses, claims, damages, liabilities and judgments resulting from DLJ's, or such
controlling person's, willful misconduct or gross negligence.
(d) Promptly after receipt by an indemnified party under this Section
10 of notice of any claim or the commencement of any action, the indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party pursuant to Section 10(a) or 10(b), notify the indemnifying
party in writing of the claim or the commencement of that action; provided,
--------
however, that the failure to notify the indemnifying party shall not relieve it
-------
from any liability which it may have under this Section 10 except to the extent
that it has been materially prejudiced (through the forfeiture of substantive
rights or defenses) by such failure; and, provided, further, that the failure to
-------- -------
notify the indemnifying party shall not relieve it from any liability which it
may have to an indemnified party otherwise than under this Section 10. If any
such claim or action shall be brought against an indemnified party, and it shall
notify the indemnifying party thereof, the indemnifying party shall be entitled
to participate therein and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense thereof with
counsel reasonably satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 10 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, that an
-------- -------
indemnified party shall have the right to employ its own counsel in any such
action, but the fees, expenses and other charges of such counsel for the
indemnified party will be at the expense of such indemnified party unless (1)
the employment of counsel by the indemnified
-22-
party has been authorized in writing by the indemnifying party, (2) the
indemnified party has reasonably concluded (based upon advice of counsel to the
indemnified party) that there may be legal defenses available to it or other
indemnified parties that are different from or in addition to those available to
the indemnifying party, (3) a conflict or potential conflict exists (based upon
advice of counsel to the indemnified party) between the indemnified party and
the indemnifying party (in which case the indemnifying party will not have the
right to direct the defense of such action on behalf of the indemnified party)
or (4) the indemnifying party has not in fact employed counsel reasonably
satisfactory to the indemnified party to assume the defense of such action
within a reasonable time after receiving notice of the commencement of the
action, in each of which cases the reasonable fees, disbursements and other
charges of counsel will be at the expense of the indemnifying party or parties.
It is understood that the indemnifying party or parties shall not, in connection
with any proceeding or related proceedings in the same jurisdiction, be liable
for the reasonable fees, disbursements and other charges of more than one
separate firm of attorneys (in addition to any local counsel) at any one time
for all such indemnified party or parties. Each indemnified party, as a
condition of the indemnity agreements contained in Sections 10(a) and 10(b),
shall use all reasonable efforts to cooperate with the indemnifying party in the
defense of any such action or claim. No indemnifying party shall be liable for
any settlement of any such action effected without its written consent (which
consent shall not be unreasonably withheld), but if settled with its written
consent or if there be a final judgment for the plaintiff in any such action,
the indemnifying party agrees to indemnify and hold harmless any indemnified
party from and against any loss or liability by reason of such settlement or
judgment. No indemnifying party shall, without the prior written consent of the
indemnified party (which consent shall not be unreasonably withheld), 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.
The obligations of the Company, the Guarantors and the Underwriters in
this Section 10 and in Section 12 are in addition to any other liability that
the Company, the Guarantors or the Underwriters, as the case may be, may
otherwise have, including in respect of any breaches of representations,
warranties and agreements made herein by any such party.
Section 11. Indemnification QIU
-------------------
(a) The Company agrees to indemnify and hold harmless the QIU, its
directors, its officers and each person, if any, who controls the QIU within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, from and
against any and all losses, claims, damages, liabilities and judgments
(including, without limitation, any legal or other expenses incurred in
connection with defending or investigating any matter, including any action,
that could give rise to any such losses, claims, damages, liabilities or
judgments) related to, based upon or arising out of (i) any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), the Prospectus (or any amendment or
supplement thereto) or any preliminary prospectus, or 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 or (ii) the QIU's
activities as QIU under it engagement pursuant to Section 3, hereof, except in
the case of this clause (ii) insofar as any such losses, claims, damages,
liabilities or judgments are found in a final judgment by a court of competent
jurisdiction, not subject to further appeal, to have resulted solely from the
willful misconduct or gross negligence of the QIU.
(b) In case any action shall be commenced involving any person in
respect of which indemnity may be sought pursuant to paragraph (a) of this
Section 11 (the "QIU Indemnified Party"), the QIU Indemnified Party shall
promptly notify the Company in writing and the Company shall assume the defense
of such action, including the employment of counsel reasonably satisfactory to
the QIU Indemnified Party and the payment of all fees and expenses of such
counsel, as incurred. Any QIU Indemnified Party shall have the right to employ
separate counsel in any such action and participate in the defense thereof,
but the fees and expenses of such counsel shall be at the expense of the QIU
Indemnified Party unless (i) the employment of such counsel shall have been
specifically authorized in writing by the Company,(ii) the Company shall have
failed to assume the defense of such action or employ counsel reasonably
satisfactory to the QIU Indemnified Party or (iii) the name parties to any such
action (including any impleaded parties) include both the QIU Indemnified Party
and the Company, and the QIU Indemnified Party shall have been advised by such
counsel that there may be one or more legal defenses available to it which are
different from or additional to those available to the Company (in which case
the Company shall not have the right to assume the defense of such action on
behalf of the QIU Indemnified Party). In any such case, the Company shall not,
in connection with any one action or separate but substantially similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the fees and expenses of more than
one separate firm of attorneys (in addition to any local counsel) for all QIU
Indemnified Parties, which firm shall be designated by the QIU, and all such
fees and expenses shall be reimbursed as they are incurred. The Company shall
indemnify and hold harmless the QIU Indemnified Party from and against any and
all losses, claims, damages, liabilities and judgments by reason of any
settlement of any action (i) effected with its written consent or (ii) effected
without its written consent if the settlement is entered into more than ten
business days after the Company shall have received a request from the QIU
Indemnified Party for reimbursement for the fees and expenses of counsel (in any
case where such fees and expenses are at the expense of the Company) and, prior
to the date of such settlement, the Company shall have failed to comply with
such reimbursement request. The Company shall not, without the prior written
consent of the QIU Indemnified Party, effect any settlement or compromise of, or
consent to the entry of judgment with respect to, any pending or threatened
action in respect of which the QIU Indemnified Party is or could have been a
party and indemnity or contribution may be or could have been sought hereunder
by the QIU Indemnified Party, unless such settlement, compromise or judgment (i)
includes an unconditional release of the QIU Indemnified Party from all
liability on claims that are or could have been the subject matter of such
action and (ii) does not include a statement as to or an admission of fault,
culpability or failure to act, by or on behalf of the QIU Indemnified Party.
(c) To the extent the indemnification provided for in this Section 11
is unavailable to a QIU Indemnified Party or insufficient in respect of any
losses, claims, damages, liabilities or judgments referred to therein, then the
Company, in lieu of indemnifying such QIU Indemnified party, shall contribute to
the amount paid or payable by such QIU Indemnified Party as a result of such
losses, claims, damages, liabilities and judgments (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the QIU on the other hand from the offering of the Shares 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
the QIU in connection with the statements or omissions which resulted in such
losses, claims, damages, liabilities or judgments, as well as any other relevant
equitable considerations. The relative benefits received by the Company and the
QIU shall be deemed to be in the same proportion as the total net proceeds from
the offering (before deducting expenses) received by the Company as set forth in
the table on the cover page of the Prospectus, and the fee received by the QIU
pursuant to Section 3 hereof, bear to the sum of such total net proceeds and
such fee. The relative fault of the Company and the QIU 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 the QIU and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission and whether the QIU's activities as QIU under
its engagement pursuant to Section 3 hereof involved any willful misconduct or
gross negligence on the part of the QIU.
The Company and the QIU agree that it would not be just and equitable
if contribution pursuant to this Section 11(c) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by a QIU Indemnified Party as a result of the losses,
claims, damages, liabilities or judgments referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses incurred by such QIU Indemnified Party
in connection with investigating or defending any matter that could have given
rise to such losses, claims, damages, liabilities or judgments. 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.
(d) The remedies provided for in this Section 11 are not exclusive and
shall not limit any rights or remedies which may otherwise be available to any
QIU Indemnified Party at law or in equity.
12. Contribution. If the indemnification provided for in Section 10 is
------------
unavailable or insufficient to hold harmless an indemnified party under Section
10(a) or 10(b), then each indemnifying party shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid or payable by such indemnified
party as a result of such loss, claim, damage or liability, or action in respect
thereof, (i) in such proportion as shall be appropri-
-23-
ate to reflect the relative benefits received by the Company and the Guarantors
on the one hand and the Underwriters on the other from the offering of the
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 and the Guarantors on the one hand and the Underwriters on
the other with respect to the statements or omissions that resulted in such
loss, claim, damage or liability, or action in respect thereof, as well as any
other relevant equitable considerations. The relative benefits received by the
Company and the Guarantors on the one hand and the Underwriters on the other
with respect to such offering shall be deemed to be in the same proportion as
the total net proceeds from the offering of the Securities purchased under this
Agreement (before deducting expenses) received by or on behalf of the Company
and the Guarantors, on the one hand, and the total underwriting discounts and
commissions received by the Underwriters with respect to the Securities
purchased under this Agreement, on the other, bear to the total gross proceeds
from the sale of the Securities under this Agreement, in each case as set forth
in the table on the cover page of the Prospectus. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to the Company and the Guarantors or information
supplied by the Company and the Guarantors on the one hand or to any
Underwriters' Information on the other, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission. The Company, the Guarantors and the
Underwriters agree that it would not be just and equitable if contributions
pursuant to this Section 12 were to be 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 into account the equitable
considerations referred to herein. The amount paid or payable by an indemnified
party as a result of the loss, claim, damage or liability, or action in respect
thereof, referred to above in this Section 12 shall be deemed to include, for
purposes of this Section 12, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending or
preparing to defend any such action or claim. Notwithstanding the provisions of
this Section 12, no Underwriter shall be required to contribute any amount in
excess of the amount by which the total underwriting discounts and commissions
received by such Underwriter with respect to the Securities purchased by it
under this Agreement exceeds the amount of any damages which such Underwriter
has otherwise paid or become liable to pay by reason of any 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 Underwriters' obligations to contribute as
provided in this Section 12 are several in proportion to their respective
purchase obligations and not joint.
-24-
13. Persons Entitled to Benefit of Agreement. This Agreement shall
----------------------------------------
inure to the benefit of and be binding upon the Underwriters, the Company, the
Guarantors and their respective successors. This Agreement and the terms and
provisions hereof are for the sole benefit of only those persons, except as
provided in Sections 10 and 12 with respect to affiliates, officers, directors,
employees, representatives, agents and controlling persons of the Company, the
Guarantors and the Underwriters. Nothing in this Agreement is intended or shall
be construed to give any person, other than the persons referred to in this
Section 13, any legal or equitable right, remedy or claim under or in respect of
this Agreement or any provision contained herein.
14. Expenses. Each of the Company and the Guarantors agrees
--------
with the Underwriters to pay (a) the costs incident to the authorization,
issuance, sale, preparation and delivery of the Securities and any taxes payable
in that connection; (b) the costs incident to the preparation, printing and
filing under the Securities Act of the Registration Statement and any amendments
and exhibits thereto; (c) the costs of printing and distributing the
Registration Statement as originally filed and each amendment thereto and any
post-effective amendments thereof (including, in each case, exhibits), any
Preliminary Prospectus, the Prospectus and any amendment or supplement thereto,
all as provided in this Agreement; (d) the costs of printing, reproducing and
distributing the Indenture, this Agreement and any underwriting and selling
group documents; (e) the filing fees incident to securing any required review by
the National Association of Securities Dealers, Inc. of the terms of sale of the
Securities; (f) the fees and expenses of the Company's counsel and independent
accountants; (g) the fees and expenses of preparing, printing and distributing
Blue Sky Memoranda (including related fees and expenses of counsel to the
Underwriters); (h) any fees charged by rating agencies for rating the
Securities; (i) all fees and expenses of the Trustee and any paying agent
(including related fees and expenses of any counsel to such parties); (j) the
fees and expenses of the QIU (including the fees and disbursements of courses to
the QIU; and (k) all other costs and expenses incident to the performance of the
obligations of the Company under this Agreement; provided that, except as
provided in this Section 14 and Section 9, the Underwriters shall pay their own
costs and expenses.
15. Survival. The respective indemnities, rights of contribution,
--------
representations, warranties and agreements of the Company, the Subsidiary
Guarantors and the Underwriters contained in this Agreement or made by or on
behalf of the Company the Guarantors or the Underwriters pursuant to
this Agreement or any certificate delivered pursuant hereto shall survive the
delivery of and payment for the Securities and shall remain in full force and
effect, regardless of any termination or cancellation of this Agreement or any
investigation made by or on behalf of any of them or any of their respective
affiliates, officers, directors, employees, representatives, agents or
controlling persons.
16. Notices, etc. All statements, requests, notices and agreements
-------------
hereunder shall be in writing, and:
-25-
(a) if to the Underwriters, shall be delivered or sent by mail or
telecopy transmission to Chase Securities Inc., 000 Xxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxxxxx (telecopier no.: (212) 270-
0994); or
(b) if to the Company, shall be delivered or sent by mail or telecopy
transmission to OCI Holdings Corporation, P.O. Box 1580, 000 Xxxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxxxxx 00000, Attention: Xxxx X. Xxxxxxx XX, Chairman
(telecopier no.: (000) 000-0000;
provided that any notice to an Underwriter pursuant to Section 10(c) shall also
--------
be delivered or sent by mail to such Underwriter at its address set forth on the
signature page hereof. Any such statements, requests, notices or agreements
shall take effect at the time of receipt thereof. The Company shall be entitled
to act and rely upon any request, consent, notice or agreement given or made on
behalf of the Underwriters by CSI.
16. Definition of Terms. For purposes of this Agreement, (a) the term
-------------------
"business day" means any day on which the New York Stock Exchange, Inc. is open
for trading, (b) the term "subsidiary" has the meaning set forth in Rule 405
under the Securities Act and (c) except where otherwise expressly provided, the
term "affiliate" has the meaning set forth in Rule 405 of the Rules and
Regulations.
17. Underwriters' Information. The parties hereto acknowledge and
-------------------------
agree that the Underwriters' Information consists solely of the following
information in any Preliminary Prospectus and the Prospectus: (i) the last
paragraph on the front cover page concerning the terms of the offering by the
Underwriters; (ii) the legend on the inside front cover page concerning over-
allotment and trading activities by the Underwriters; and (iii) the statements
concerning the Underwriters contained in the under the heading Underwriting".
18. Governing Law. This Agreement shall be governed by and construed
-------------
in accordance with the laws of the State of New York.
19. Counterparts. This Agreement may be executed in one or more
------------
counterparts (which may include counterparts delivered by telecopier) and, if
executed in more than one counterpart, the executed counterparts shall each be
deemed to be an original, but all such counterparts shall together constitute
one and the same instrument.
20. Amendments. No amendment or waiver of any provision of this
----------
Agreement, nor any consent or approval to any departure therefrom, shall in any
event be effective unless the same shall be in writing and signed by the parties
hereto.
-26-
21. Headings. The headings herein are inserted for convenience of
--------
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
-27-
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us a counterpart hereof, whereupon this
instrument will become a binding agreement between the Company and the several
Underwriters in accordance with its terms.
Very truly yours,
OCI HOLDINGS CORPORATION
By
-----------------------------------
Name:
Title:
MASS COMMUNICATIONS CORP.
By
-----------------------------------
Name:
Title:
OCI (N) CORP.
By
-----------------------------------
Name:
Title:
OUTDOOR COMMUNICATIONS, INC.
By
-----------------------------------
Name:
Title:
Accepted:
CHASE SECURITIES INC.
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
SALOMON BROTHERS INC
c/o CHASE SECURITIES INC.
By
---------------------------
Authorized Signatory
Address for notices pursuant to Section 9(c):
0 Xxxxx Xxxxx, 00xx xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Legal Department
SCHEDULE 1
Principal
Amount
Underwriters of Securities
------------ -------------
Chase Securities Inc. $
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation
Salomon Brothers Inc
=============
Total $
ANNEX A
[Form of Opinion of Counsel for the Company]
Xxxxxxx, Xxxxxxx & Xxxx LLP shall have furnished to the Underwriters
their written opinion, as counsel to the Company and the Guarantors, addressed
to the Underwriters and dated the Closing Date, in form and substance reasonably
satisfactory to the Underwriters, substantially to the effect set forth below:
(i) each of the Company and its subsidiaries has been duly
incorporated, is validly existing as a corporation in good standing under
the laws of its jurisdiction of incorporation and has the corporate power
and authority required to carry on its business as it is currently being
conducted and to own, lease and operate its properties;
(ii) each of the Company and its subsidiaries is duly qualified and
is in good standing as a foreign corporation authorized to do business in
each jurisdiction in which the nature of its business or its ownership or
leasing of property requires such qualification, except where the failure
to be so qualified would not have a material adverse effect on the
business, prospects, financial condition or results of operations of the
Company and its subsidiaries, taken as a whole;
(iii) all of the outstanding shares of capital stock of each of the
Company's subsidiaries have been duly and validly authorized and issued and
are fully paid and nonassessable, and are owned by the Company, free and
clear of any security interest, claim, lien, encumbrance or adverse
interest of any nature;
(iv) the Company has an authorized capitalization as set forth in the
Prospectus under the caption "Capitalization";
(v) The Registration Statement was declared effective under the
Securities Act and the Indenture was qualified under the Trust Indenture
Act as of the date and time specified in such opinion; the Prospectus was
filed with the Commission pursuant to the subparagraph of Rule 424(b) of
the Rules and Regulations specified in such opinion on the date specified
therein; and no stop order suspending the effectiveness of the Registration
Statement has been issued and, to the best of such counsel's knowledge, no
proceeding for that purpose is pending or threatened by the Commission;
(vi) The Indenture complies as to form in all material respects with
the requirements of the Trust Indenture Act and the rules and regulations
of the Commission thereunder;
-2-
(vii) neither the Company nor any of its subsidiaries is in violation
of its respective charter or by-laws and, to the best of such counsel's
knowledge after due inquiry, neither the Company nor any of its
subsidiaries is in default in the performance of any obligation, agreement
or condition contained in any bond, debenture, note or any other evidence
of indebtedness or in any other agreement, indenture or instrument material
to the conduct of the business of the Company and its subsidiaries, taken
as a whole, to which the Company or any of its subsidiaries is a party or
by which it or any of its subsidiaries or their respective property is
bound;
(viii) each of the Company and Guarantors has full right, power and
authority to execute and deliver each of the Underwriting Agreement, the
Indenture, the Securities and the Guarantees and to perform its obligations
thereunder; and all corporate action required to be taken for the due and
proper authorization, execution and delivery of each of the Underwriting
Agreement, the Indenture, the Securities and the Guarantees and the
consummation of the transactions contemplated thereby have been duly and
validly taken;
(ix) the Underwriting Agreement has been duly authorized, executed
and delivered by the Company and each of the Guarantors and constitutes a
valid and legally binding agreement of the Company and each of the
Guarantors enforceable against the Company and each of the Guarantors in
accordance with its terms, except to the extent that such enforceability
may be limited by applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws affecting creditors'
rights generally and by general equitable principles (whether considered in
a proceeding in equity or at law) and except as rights to indemnity and
contribution hereunder may be limited by applicable law;
(x) the Indenture has been duly authorized, executed and delivered
by the Company and each of the Guarantors and, assuming due authorization,
execution and delivery thereof by the Trustee, constitutes a valid and
legally binding agreement of the Company and each of the Guarantors
enforceable against the Company and each of the Guarantors in accordance
with its terms, except to the extent that such enforceability may be
limited by applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws affecting creditors'
rights generally and by general equitable principles (whether considered in
a proceeding in equity or at law);
(xi) the Securities have been duly authorized and issued by the
Company and, assuming due authentication thereof by the Trustee and upon
payment and delivery in accordance with the Underwriting Agreement, will
constitute valid and le-
-3-
gally binding obligations of the Company entitled to the benefits of the
Indenture and enforceable against the Company in accordance with their
terms, except to the extent that such enforceability may be limited by
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws affecting creditors' rights generally and
by general equitable principles (whether considered in a proceeding in
equity or at law); the Guarantees have been duly endorsed by the Subsidiary
Guarantors and, assuming the Securities have been duly authorized and
issued by the Company and assuming due authentication thereof by the
Trustee, the Guarantees will constitute valid and legally binding
obligations of the Guarantors entitled to the benefits of the Indenture and
enforceable against the Guarantors in accordance with their terms, except
to the extent that such enforceability may be limited by applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium
and other similar laws affecting creditors' rights generally and by general
equitable principles (whether considered in a preceding in equity or at
law);
(xii) the execution, delivery and performance of the Underwriting
Agreement by the Company and the Guarantors, compliance by the Company and
the Guarantors with all of the provisions thereof and the consummation of
the transactions contemplated thereof will not require any consent,
approval, authorization or other order of any court, regulatory body,
administrative agency or other governmental body (except as such may be
required under the Act or other securities or Blue Sky laws) and will not
conflict with or constitute a breach of any of the terms or provisions of,
or a default under, the charter or by-laws of the Company or any of its
subsidiaries, or any agreement, indenture or other instrument to which the
Company or any of its subsidiaries is a party or by which the Company or
any of its subsidiaries or their respective properties are bound, or
violate or conflict with any laws, administrative regulations or rulings or
court decrees applicable to the Company or any of its subsidiaries or their
respective properties;
(xiii) after due inquiry, such counsel does not know of any legal or
governmental proceeding pending or threatened to which the Company or any
of its subsidiaries is a party or to which any of their respective property
is subject that is required to be described in the Registration Statement
or the Prospectus and is not so described, or of any contract or other
document which is required to be described in the Registration Statement or
the Prospectus or is required to be filed as an exhibit to the Registration
Statement that is not described or filed as required;
(xiv) to the best of such counsel's knowledge, after due inquiry,
neither the Company nor any of its subsidiaries has violated any
Environmental Laws, nor any federal or state law relating to discrimination
in the hiring, promotion or pay of em-
-4-
ployees nor any applicable federal or state wages and hours laws, nor any
provisions of ERISA or the rules and regulations promulgated thereunder,
which in each case might result in any material adverse change in the
business, prospects, financial condition or results of operation of the
Company and its subsidiaries, taken as a whole;
(xv) each of the Company and its subsidiaries has such permits,
licenses, franchises and authorizations of governmental or regulatory
authorities ("permits"), including, without limitation, under any
applicable Environmental Laws, as are necessary to own, lease and operate
its respective properties and to conduct its business in the manner
described in the Prospectus; to the best of such counsel's knowledge, after
due inquiry, the Company and each of its subsidiaries has fulfilled and
performed all of its material obligations with respect to such permits and
no event has occurred which allows, or after notice or lapse of time would
allow, revocation or termination thereof or results in any other material
impairment of the rights of the holder of any such permit, subject in each
case to such qualification as may be set forth in the Prospectus; and,
except as described in the Prospectus, such permits contain no restrictions
that are materially burdensome to the Company or any of its subsidiaries;
(xvi) to the best of such counsel's knowledge, after due inquiry,
except as otherwise set forth in the Registration Statement or such as are
not material to the business, prospects, financial condition or results of
operation of the Company and its subsidiaries, taken as a whole, the
Company and each of its subsidiaries has good and marketable title, free
and clear of all liens, claims, encumbrances and restrictions except liens
for taxes not yet due and payable, to all property and assets described in
the Registration Statement as being owned by it;
(xvii) to the best of such counsel's knowledge, after due inquiry, all
leases to which the Company or any of its subsidiaries is a party are valid
and binding and no default has occurred or is continuing thereunder, which
might result in any material adverse change in the business, prospects,
financial condition or results of operation of the Company and its
subsidiaries taken as a whole, and the Company and its subsidiaries enjoy
peaceful and undisturbed possession under all such leases to which any of
them is a party as lessee with such exceptions as do not material interfere
with the use made by the Company or such subsidiary;
(xviii) (1) the Registration Statement and the Prospectus and any
supplement or amendment thereto (except for financial statements as to
which no opinion need be expressed) comply as to form in all material
respects with the Act, and (2) such counsel believes that (except for
financial statements, as aforesaid) the Registration
-5-
Statement and the prospectus included therein at the time the Registration
Statement became effective did 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
that the Prospectus, as amended or supplemented, if applicable (except for
financial statements, as aforesaid) does 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 the light of the circumstances under which
they were made, not misleading;
(xix) neither the Company nor any of its subsidiaries is (A) an
"investment company" or a company "controlled by" an investment company
within the meaning of the Investment Company Act and the rules and
regulations of the Commission thereunder, without taking account of any
exemption under the Investment Company Act arising out of the number of
holders of the Company's securities or (B) a "holding company" or a
"subsidiary company" of a holding company or an "affiliate" thereof within
the meaning of the Public Utility Holding Company Act of 1935, as amended;
and
(xx) neither the consummation of the transactions contemplated by
this Agreement nor the sale, issuance, execution or delivery of the
Securities will violate Regulation G, T, U or X of the Federal Reserve
Board.
Such counsel shall also state that they have participated in
conferences with representatives of the Company and each of the Subsidiary
Guarantors and with representatives of their independent accountants and counsel
at which conferences the contents of the Registration Statement and the
Prospectus and any amendment and supplement thereto and related matters were
discussed and, although such counsel assume no responsibility for the accuracy,
completeness or fairness of the Registration Statement, the Prospectus and any
amendment or supplement thereto (except as expressly provided above), nothing
has come to the attention of such counsel to cause such counsel to believe that
the Registration Statement (or any post-effective amendment thereto), at the
time of its effective date (including the information deemed to be part of the
Registration Statement at the time of effectiveness pursuant to Rule 430A or
Rule 434, if applicable), contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, or that the Prospectus or any
amendment or supplement thereto as of its date and the Closing Date contains any
untrue statement of a material fact or omits to state a material fact necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading (other than the financial statements and other
financial and statistical information contained therein, as to which such
counsel need express no belief).
-6-
In rendering such opinion, such counsel may rely as to matters of fact,
to the extent such counsel deems proper, on certificates of responsible officers
of the Company, the Guarantors and public officials which are furnished to the
Underwriters.
