Exhibit 1.1
DSMO DRAFT:
3/24/03
$30,000,000
12% Senior Notes due 2008
RESOURCE AMERICA, INC.
THE GUARANTORS LISTED ON EXHIBIT A HERETO
UNDERWRITING AGREEMENT
_______________, 2003
BEAR, XXXXXXX & CO. INC.
XXXXXXXX, XXXXXXXX, XXXXXX & CO., INC.
c/o Bear, Xxxxxxx & Co., Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies/Gentlemen:
Resource America, Inc., a corporation organized and existing under the
laws of Delaware (the "Company"), proposes, subject to the terms and conditions
stated herein, to issue and sell to the several underwriters named in Schedule I
hereto (the "Underwriters") an aggregate $30,000,000 in principal amount of its
12% Senior Notes due 2008 (the "Firm Notes) and, for the sole purpose of
covering over-allotments in connection with the sale of the Firm Notes, at the
option of the Underwriters, up to an additional $4,500,000 in principal amount
of notes (the "Additional Notes"). The Firm Notes and any Additional Notes
purchased by the Underwriters are referred to herein as the "Notes". The Notes
will be fully and unconditionally guaranteed (the "Guarantees") as to payment of
principal, interest and premium, if any, on an unsecured senior basis, jointly
and severally by each entity listed on Exhibit A hereto (collectively, the
"Guarantors"). The Notes will be issued pursuant to an indenture (the
"Indenture"), to be dated the Closing Date (as defined), among the Company, the
Guarantors and Bank of New York as trustee (the "Trustee"). The Notes, the
Guarantees and the Indenture are more fully described in the Registration
Statement and Prospectus referred to below. Bear, Xxxxxxx & Co. Inc. ("Bear
Xxxxxxx" or the "Lead Manager") is acting as lead manager in connection with the
offering and sale of the Notes and the Guarantees (the "Offering").
Concurrently with the Offering and the sale of the Notes and the
Guarantees, the Company and the Guarantors have offered to exchange the
Company's existing 12% Senior Notes due 2004 for new 12% notes due 2008 and
related guarantees identical in all respects to the Notes and the Guarantees
(the "Exchange Offer").
1. Representations and Warranties of the Company. The Company and
each Guarantor, jointly and severally, represents and warrants to, and agrees
with, each of the Underwriters that:
(a) The Company and the Guarantors have filed with the
Securities and Exchange Commission (the "Commission") a registration statement
on Form S-3 (No. 333-103085), and amendments thereto, and related preliminary
prospectuses for the registration under the Securities Act of 1933, as amended
(the "Securities Act"), of the Notes and the Guarantees, which registration
statement, as so amended (including post-effective amendments, if any), has been
declared effective by the Commission and copies of which have heretofore been
delivered to the Underwriters. The registration statement, as amended at the
time it became effective, including the exhibits and information (if any) deemed
to be part of the registration statement at the time of effectiveness pursuant
to Rule 430A or 434(d) under the Securities Act, is hereinafter referred to as
the "Registration Statement." If the Company and the Guarantors have filed or
are required pursuant to the terms hereof to file a registration statement
pursuant to Rule 462(b) under the Securities Act increasing the size of the
Offering by registering additional Notes (a "Rule 462(b) Registration
Statement"), then, unless otherwise specified, any reference herein to the term
"Registration Statement" shall be deemed to include such Rule 462(b)
Registration Statement. Other than a Rule 462(b) Registration Statement, which,
if filed, becomes effective upon filing, no other document with respect to the
Registration Statement has heretofore been filed with the Commission. All of the
Notes and the Guarantees have been registered under the Securities Act pursuant
to the Registration Statement or, if any Rule 462(b) Registration Statement is
filed, will be duly registered under the Securities Act with the filing of such
Rule 462(b) Registration Statement. No stop order suspending the effectiveness
of either the Registration Statement or the Rule 462(b) Registration Statement,
if any, has been issued and no proceeding for that purpose has been initiated or
threatened by the Commission. The Company and the Guarantors, if required by the
rules and regulations of the Commission (the "Rules and Regulations") or by the
Securities Act, propose to file the Prospectus with the Commission pursuant to
Rule 424(b) under the Securities Act ("Rule 424(b)"). The prospectus, in the
form in which it is to be filed with the Commission pursuant to Rule 424(b), or,
if the prospectus is not to be filed with the Commission pursuant to Rule
424(b), the prospectus in the form included as part of the Registration
Statement at the time the Registration Statement became effective, is
hereinafter referred to as the "Prospectus," except that if any revised
prospectus or prospectus supplement shall be provided to the Underwriters by the
Company and the Guarantors for use in connection with the Offering which differs
from the Prospectus (whether or not such revised prospectus or prospectus
supplement is required to be filed by the Company pursuant to Rule 424(b)), the
term "Prospectus" shall also refer to such revised prospectus or prospectus
supplement, as the case may be, from and after the time it is first provided to
the Underwriters for such use. Any preliminary prospectus or prospectus subject
to completion included in the Registration Statement or filed with the
Commission pursuant to Rule 424 under the Securities Act is hereafter called a
"Preliminary Prospectus." Any reference herein to the Registration Statement,
any Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to Item 12 of
Form S-3 which were filed under the Exchange Act (as defined below) on or before
the effective date of the Registration Statement, the date of such Preliminary
Prospectus or the date of the Prospectus, as the case may be, and any reference
herein to the terms "amend", "amendment" or "supplement" with respect to the
Registration Statement, any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include (i) the filing of any document under the Exchange
Act after the effective date of the Registration Statement, the date of such
Preliminary Prospectus or the date of the Prospectus, as the case may be, which
is incorporated therein by reference and (ii) any such document so filed. All
references in this Agreement to the Registration Statement, the Rule 462(b)
Registration Statement, a Preliminary Prospectus and the Prospectus, or any
amendments or supplements to any of the foregoing shall be deemed to include any
copy thereof filed with the Commission pursuant to its Electronic Data
Gathering, Analysis and Retrieval System (the "XXXXX System").
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(b) At the time of the effectiveness of the Registration
Statement or any Rule 462(b) Registration Statement or the effectiveness of any
post-effective amendment to the Registration Statement, when the Prospectus is
first filed with the Commission pursuant to Rule 424(b) or Rule 434 under the
Securities Act ("Rule 434"), when any supplement to or amendment of the
Prospectus is filed with the Commission, when any document filed under the
Exchange Act was or is filed and at the Closing Date and the Additional Closing
Date, if any (as hereinafter respectively defined), the Registration Statement
and the Prospectus and any amendments thereof and supplements thereto complied
or will comply in all material respects with the applicable provisions of the
Securities Act, the Exchange Act, the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act") and the Rules and Regulations and did not and will
not contain an untrue statement of a material fact and did not and will not omit
to state any material fact required to be stated therein or necessary in order
to make the statements therein (i) in the case of the Registration Statement,
not misleading and (ii) in the case of the Prospectus or any related Preliminary
Prospectus in light of the circumstances under which they were made, not
misleading. When any related Preliminary Prospectus was first filed with the
Commission (whether filed as part of the registration statement for the
registration of the Notes or any amendment thereto or pursuant to Rule 424(a)
under the Securities Act) and when any amendment thereof or supplement thereto
was first filed with the Commission, such Preliminary Prospectus and any
amendments thereof and supplements thereto complied in all material respects
with the applicable provisions of the Securities Act, the Exchange Act and the
Rules and Regulations and did not contain an untrue statement of a material fact
and did not omit to state any material fact required to be stated therein or
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading. The Company and the Guarantors make
no representation or warranty herein as to that part of the Registration
Statement constituting the Statement of Eligibility and Qualification (Form T-1)
under the Trust Indenture Act of the Trustee. If Rule 434 is used, the Company
will comply with the requirements of Rule 434 and the Prospectus shall not be
"materially different," as such term is used in Rule 434, from the Prospectus
included in the Registration Statement at the time it became effective. No
representation and warranty is made in this subsection (b), however, with
respect to any information contained in or omitted from the Registration
Statement or the Prospectus or any related Preliminary Prospectus or any
amendment thereof or supplement thereto in reliance upon and in conformity with
information furnished in writing to the Company by or on behalf of any
Underwriter through Bear Xxxxxxx specifically for use therein. The parties
acknowledge and agree that such information provided by or on behalf of any
Underwriter consists solely of the material included in paragraphs ___, ___ and
___ under the caption "Underwriting" in the Prospectus.
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(c) Xxxxx Xxxxxxxx LLP, who have certified the financial
statements and supporting schedules and information of the Company and its
subsidiaries that are included or incorporated by reference in the Registration
Statement, are independent public accountants as required by the Securities Act,
the Securities Exchange Act of 1934, as amended (the "Exchange Act") and the
Rules and Regulations.
(d) Subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus, except as
set forth in the Registration Statement and the Prospectus, (i) there has been
no material adverse change or any development involving a prospective material
adverse change, whether or not arising from transactions in the ordinary course
of business, in or affecting (A) the business, condition (financial or
otherwise), results of operations, stockholders' equity, properties or prospects
of the Company and each subsidiary of the Company listed on Exhibit B hereto
(the "Subsidiaries"), taken as a whole; (B) the long-term debt or capital stock
of the Company or any of its Subsidiaries; or (C) the Offering or any other
transaction contemplated by this Agreement, the Registration Statement or the
Prospectus (a "Material Adverse Change"); and (ii) except in the case of Atlas
Pipeline Partners, L.P., no dividend or distribution of any kind shall have been
declared, paid or made by the Company or any of its Subsidiaries on any class of
its capital stock. Since the date of the latest balance sheet presented in the
Registration Statement and the Prospectus, there has been no material increase
in the long-term debt or short-term debt of the Company and its Subsidiaries,
and neither the Company nor any Subsidiary has incurred or undertaken any other
liabilities or obligations, whether direct or indirect, liquidated or
contingent, matured or unmatured, or entered into any transactions which are
material to the Company and the Subsidiaries taken as a whole, except for
liabilities, obligations and transactions which are disclosed in the
Registration Statement and the Prospectus.
(e) The Company has not prior to the date hereof made any
offer or sale of any securities which could be "integrated" with the offer and
sale of the Notes and the Guarantees pursuant to the Registration Statement.
Except as disclosed in the Registration Statement and the Prospectus, the
Company has not sold or issued any debt securities during the six-month period
preceding the date of the Prospectus, including but not limited to any sales
pursuant to Rule 144A or Regulation D or S under the Securities Act.
(f) Except as disclosed in the Registration Statement and
the Prospectus, no holder of any security has any rights to require registration
of any security as part or on account of, or otherwise in connection with, the
offer and sale of the Notes and the Guarantees contemplated hereby.
(g) The conditions for use of Form S-3, as set forth in
the General Instructions thereto, have been satisfied.
(h) The documents incorporated or deemed to be
incorporated by reference in the Prospectus, at the time they were or hereafter
are filed with the Commission, complied and will comply in all material respects
with the requirements of the Securities Act, the Exchange Act and the Rules and
Regulations, and, when read together with the other information in the
Prospectus, do 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.
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(i) There are no contracts or other documents which are
required to be described in the Registration Statement and the Prospectus or
filed as exhibits to the Registration Statement by the Securities Act, the
Exchange Act, the Trust Indenture Act or the Rules and Regulations and which
have not been so described or filed.
(j) The Company is subject to the reporting requirements
of Section 13 or 15(d) of the Exchange Act and files reports with the Commission
on the XXXXX System.
(k) On the Closing Date and the Additional Closing Date,
if any, the Notes and the Guarantees will have been issued in compliance with
all applicable state, federal and foreign securities laws.
(l) The Company has no subsidiaries within the meaning of
Rule 405 under the Securities Act other than the entities listed on Exhibit B
attached hereto.
(m) Except as set forth on Exhibit B, all of the
outstanding equity interests of each Subsidiary of the Company is owned,
directly or indirectly, by the Company, free and clear of any security interest,
claim, lien, limitation on voting rights or encumbrance; and all such securities
have been duly authorized, validly issued, and are fully paid and nonassessable
and were not issued in violation of any preemptive or similar rights.
(n) Except as set forth on Exhibit B, there are no
currently outstanding subscriptions, rights, warrants, calls, commitments of
sale or options to acquire, or instruments convertible into or exchangeable for,
any capital stock or other equity interest of the Company's Subsidiaries.
(o) Each of the Company and the Subsidiaries has been
duly organized and validly exists as a corporation, partnership or limited
liability company in good standing under the laws of its jurisdiction of
organization. Each of the Company and the Subsidiaries has all requisite power
and authority to carry on its business as it is currently being conducted and as
described in the Prospectus, and to own, lease and operate its respective
properties. Each of the Company and the Subsidiaries is duly qualified to do
business and is in good standing as a foreign corporation, partnership or
limited liability company in each jurisdiction in which the character or
location of its properties (owned, leased or licensed) or the nature or conduct
of its business makes such qualification necessary, except for those failures to
be so qualified or in good standing which (individually and in the aggregate)
could not reasonably be expected to have a material adverse effect on (i) the
business, condition (financial or otherwise), results of operations,
stockholders' equity, properties or prospects of the Company and the
Subsidiaries, taken as a whole; (ii) the long-term debt or capital stock of the
Company or any of its Subsidiaries; or (iii) the Offering or any other
transaction contemplated by this Agreement, the Notes, the Guarantees, the
Indenture, the Registration Statement or the Prospectus (collectively, the
"Operative Documents"). Any of the events in clauses (i), (ii) or (iii) is
referred to herein as a "Material Adverse Effect".
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(p) Each of the Company and the Guarantors has all
requisite power and authority to execute, deliver and perform its obligations
under this Agreement and each of the other Operative Documents to which it is a
party and to consummate the transactions contemplated hereby and thereby,
including, without limitation, the power and authority to issue, sell and
deliver the Notes and to issue and deliver the related Guarantees as provided
herein and therein.
(q) This Agreement has been duly and validly authorized,
executed and delivered by the Company and each Guarantor and is the legal, valid
and binding agreement of the Company and each Guarantor, enforceable against
each of them in accordance with its terms, subject to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization or similar laws affecting the
rights of creditors generally and subject to general principles of equity.
(r) The Indenture has been duly and validly authorized by
the Company and each Guarantor and, when duly executed and delivered by the
Company and each Guarantor, will be the legal, valid and binding agreement of
the Company and each Guarantor, enforceable against each of them in accordance
with its terms, subject to applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization or similar laws affecting the rights of creditors
generally and subject to general principles of equity. On the Closing Date, the
Indenture will conform in all material respects to the requirements of the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"), and the rules and
regulations of the Commission applicable to an indenture which is qualified
thereunder. The Prospectus contains a summary of the terms of the Indenture,
which is accurate in all material respects.
(s) The Notes have been duly and validly authorized by
the Company for issuance and sale to the Underwriters pursuant to this Agreement
and, when issued and authenticated in accordance with the terms of the Indenture
and delivered against payment therefor in accordance with the terms hereof and
thereof, will be the legal, valid and binding obligations of the Company,
enforceable against it in accordance with their terms and entitled to the
benefits of the Indenture, subject to applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization or similar laws affecting the rights of
creditors generally and subject to general principles of equity. The Prospectus
contains a summary of the terms of the Notes, which is accurate in all material
respects.
(t) The Guarantees have been duly and validly authorized
by each of the Guarantors and, when executed and delivered in accordance with
the terms of the Indenture and when the Notes have been issued and authenticated
in accordance with the terms of the Indenture and delivered against payment
therefor in accordance with the terms hereof and thereof, will be the legal,
valid and binding obligations of each of the Guarantors, enforceable against
each of them in accordance with their terms and entitled to the benefits of the
Indenture, subject to applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization or similar laws affecting the rights of creditors generally and
subject to general principles of equity. The Prospectus contains a summary of
the terms of the Guarantees, which is accurate in all material respects.
(u) Each of the Company and its Subsidiaries is not and,
after giving effect to the Offering, will not be, (A) in violation of its
charter, bylaws or other organizational documents, (B) in default in the
performance of any bond, debenture, note, indenture, mortgage, deed of trust or
other agreement or instrument to which it is a party or by which it is bound or
to which any of its properties is subject, which singly or in the aggregate,
could reasonably be expected to have a Material Adverse Effect or (C) in
violation of any local, state, federal or foreign law, statute, ordinance, rule,
regulation, requirement, judgment or court decree (including, without
limitation, environmental laws, statutes, ordinances, rules, regulations,
judgments or court decrees) applicable to it or any of its assets or properties
(whether owned or leased), which singly or in the aggregate, could reasonably be
expected to have a Material Adverse Effect. To the best knowledge of the Company
and the Guarantors, there exists no condition that, with notice, the passage of
time or otherwise, would constitute a default under any such document or
instrument.
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(v) None of (A) the execution, delivery or performance by
the Company or any Guarantor of this Agreement or any of the other Operative
Documents to which it is a party, (B) the issuance and sale of the Notes and the
issuance of the Guarantees and (C) consummation by the Company of the
transactions described in the Prospectus under the caption "Use of Proceeds,"
violates, conflicts with or constitutes a breach of any of the terms or
provisions of, or will violate, conflict with or constitute a breach of any of
the terms or provisions of, or a default under (or an event that with notice or
the lapse of time, or both, would constitute a default under), or require
consent under, or result in the imposition of a lien or encumbrance on any
properties of the Company or any of its Subsidiaries, or an acceleration of any
indebtedness of the Company or any of its Subsidiaries pursuant to, (1) the
charter or bylaws of the Company or any of its Subsidiaries, (2) except as set
forth in Schedule 1(v), any bond, debenture, note, indenture, mortgage, deed of
trust or other agreement or instrument to which the Company or any of its
Subsidiaries is a party or by which any of them or their property is or may be
bound (including without limitation the Company's 12% Senior Notes due 2004, any
of the agreements disclosed in the Preliminary Prospectus or the Prospectus and
any agreement or instrument relating thereto), (3) any statute, rule or
regulation applicable to the Company or any of its Subsidiaries or any of their
assets or properties or (4) any judgment, order or decree of any court or
governmental agency or authority having jurisdiction over the Company or any of
its Subsidiaries or any of their assets or properties. No consent, approval,
authorization or order of, or filing, registration, qualification, license or
permit of or with, (A) any court or governmental agency, body or administrative
agency or (B) any other person is required for (1) the execution, delivery and
performance by each of the Company and the Guarantors of this Agreement or any
of the other Operative Documents to which it is a party or (2) the issuance and
sale of the Notes, the issuance and sale of the Guarantees and the transactions
contemplated hereby and thereby, except such as have been or will be obtained
and made on or prior to the Closing Date (or will be obtained and made under the
Act, the Trust Indenture Act, and state securities or Blue Sky laws and
regulations).
(w) There is (A) no action, suit, investigation or
proceeding before or by any court, arbitrator or governmental agency, body or
official, domestic or foreign, now pending or, to the best knowledge of the
Company and the Guarantors, threatened or contemplated to which the Company or
any of its Subsidiaries is or may be a party or to which the business or
property of the Company or any of its Subsidiaries, is or may be subject, (B) no
statute, rule, regulation or order that has been enacted, adopted or issued by
any governmental agency or that has been proposed by any governmental body and
(C) no injunction, restraining order or order of any nature by a federal or
state court or foreign court of competent jurisdiction to which the Company or
any of its Subsidiaries is or may be subject or to which the business, assets or
property of the Company or any of its Subsidiaries is or may be subject, that,
in the case of clauses (A), (B) and (C) above, (1) is required to be disclosed
in the Preliminary Prospectus and the Prospectus and that is not so disclosed or
(2) could reasonably be expected to have a Material Adverse Effect.
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(x) No action has been taken and no statute, rule,
regulation or order has been enacted, adopted or issued by any governmental
agency that prevents the issuance of the Notes or the Guarantees or prevents or
suspends the use of the Prospectus; no injunction, restraining order or order of
any nature by a federal or state court of competent jurisdiction has been issued
that prevents the issuance of the Notes or the Guarantees or prevents or
suspends the sale of the Notes or the Guarantees in any jurisdiction referred to
in Section 4(e) hereof; and every request of any securities authority or agency
of any jurisdiction for additional information has been complied with in all
material respects.
(y) There is (A) no significant unfair labor practice
complaint pending against the Company or any of its Subsidiaries nor, to the
best knowledge of the Company and the Guarantors, threatened against any of
them, before the National Labor Relations Board, any state or local labor
relations board or any foreign labor relations board, and no significant
grievance or 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 and the Guarantors,
threatened against any of them, (B) no significant strike, labor dispute,
slowdown or stoppage pending against the Company or any of its Subsidiaries nor,
to the best knowledge of the Company and the Guarantors, threatened against any
of them and (C) to the best knowledge of the Company and the Guarantors, no
union representation question existing with respect to the employees of the
Company or any of its Subsidiaries. To the best knowledge of the Company and the
Guarantors, no collective bargaining organizing activities are taking place with
respect to the Company or any of its Subsidiaries. None of the Company or any of
its Subsidiaries has violated (A) any federal, state or local law or foreign law
relating to discrimination in hiring, promotion or pay of employees, (B) any
applicable wage or hour laws or (C) any provision of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), or the rules and regulations
thereunder, except those violations that could not reasonably be expected to
have a Material Adverse Effect.
(z) None of the Company or 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 (collectively, "Environmental
Laws"), which violation could reasonably be expected to have a Material Adverse
Effect.
(aa) There is no alleged liability, or to the best
knowledge of the Company and the Guarantors, potential liability (including,
without limitation, alleged or potential liability or investigatory costs,
cleanup costs, governmental response costs, natural resource damages, property
damages, personal injuries or penalties) of the Company or any of its
Subsidiaries arising out of, based on or resulting from (A) the presence or
release into the environment of any Hazardous Material (as defined) at any
location, whether or not owned by the Company or such subsidiary, as the case
may be, or (B) any violation or alleged violation of any Environmental Law,
which alleged or potential liability is required to be disclosed in the
Prospectus, other than as disclosed therein, or could reasonably be expected to
have a Material Adverse Effect. The term "Hazardous Material" means (i) any
"hazardous substance" as defined by the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended, (ii) any "hazardous waste"
as defined by the Resource Conservation and Recovery Act, as amended, (iii) any
petroleum or petroleum product, (iv) any polychlorinated biphenyl, and (v) any
pollutant or contaminant or hazardous, dangerous or toxic chemical, material,
waste or substance regulated under or within the meaning of any other law
relating to protection of human health or the environment or imposing liability
or standards of conduct concerning any such chemical material, waste or
substance.
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(bb) 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 businesses, except where the failure to have such
permits could not reasonably be expected to have a Material Adverse Effect; each
of the Company and its Subsidiaries has fulfilled and performed all of its
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, except for such revocations, terminations and impairments that
could not reasonably be expected to have a Material Adverse Effect; and, except
as described in the Prospectus, such permits contain no restrictions that are
materially burdensome to the Company and the Subsidiaries taken as a whole.
(cc) None of the Company or any of its Subsidiaries is,
and, at all times up to and including consummation of the transactions
contemplated by this Agreement, the Registration Statement and the Prospectus,
and after giving effect to application of the net proceeds of the Offering, will
not be, subject to registration as an "investment company" under the Investment
Company Act of 1940, as amended, and is not and will not be an entity
"controlled" by an "investment company" within the meaning of such act.
(dd) None of the Company or any of its Subsidiaries is
subject to regulation as a "public utility" as such term is defined in under the
Public Utility Holding Company Act.
(ee) Except as disclosed in the Registration Statement and
the Prospectus, there are no contracts, agreements or understandings between the
Company or any Subsidiary and any person that would give rise to a valid claim
against the Company or any Underwriter for a brokerage commission, finder's fee
or other like payment in connection with the transactions contemplated by this
Agreement, the Registration Statement and the Prospectus. Except as contemplated
by the Exchange Offer, to the knowledge of the Company or any Guarantor, there
are no arrangements, agreements, understandings, payments or issuance with
respect to the Company or any of its officers, directors, shareholders,
partners, employees, Subsidiaries or affiliates that may affect the
Underwriters' compensation as determined by the NASD.
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(ff) Each of the Company and its Subsidiaries has (A) good
and marketable title to all of the properties and assets described in the
Prospectus as owned by it, free and clear of all liens, charges, encumbrances
and restrictions (except for (i) taxes not yet payable, (ii) as described in the
Prospectus and (iii) such liens, charges, encumbrances and restrictions as do
not detract from the value thereof and do not materially interfere with the use
thereof taken as a whole as such properties and assets have been used in the
past and are proposed to be used in the future), (B) peaceful and undisturbed
possession under all material leases to which any of them is a party as lessee
and each of which lease is valid and binding and no default exists thereunder,
except for defaults that could not reasonably be expected to have a Material
Adverse Effect, (C) all material licenses, certificates, permits,
authorizations, approvals, franchises and other rights from, and has made all
declarations and filings with, all federal, state and local authorities, all
self-regulatory authorities and all courts and other tribunals (each, an
"Authorization") necessary to engage in the business conducted by any of them in
the manner described in the Prospectus and (D) no reason to believe that any
governmental body or agency is considering limiting, suspending or revoking any
such Authorization. All such Authorizations are valid and in full force and
effect and each of the Company and its Subsidiaries is in compliance in all
material respects with the terms and conditions of all such Authorizations and
with the rules and regulations of the regulatory authorities having jurisdiction
with respect thereto. All material leases to which the Company or any of its
Subsidiaries is a party are valid and binding and no default by the Company or
such Subsidiary, as the case may be, has occurred and is continuing thereunder
and, to the best knowledge of the Company and the Guarantors, no material
defaults by the landlord are existing under any such lease, except those
defaults that could not reasonably be expected to have a Material Adverse
Effect.
(gg) Except as could not reasonably be expected to have a
Material Adverse Effect, each of the Company and its Subsidiaries owns,
possesses or has the right to employ all patents, patent rights, licenses,
inventions, copyrights, know-how (including trade secrets and other unpatented
and/or unpatentable proprietary or confidential information, software, systems
or procedures), trademarks, service marks and trade names, inventions, computer
programs, technical data and information (collectively, the "Intellectual
Property") presently employed by it in connection with the businesses now
operated by it or that are proposed to be operated by it, free and clear of and
without violating any right, claimed right, charge, encumbrance, pledge,
security interest, restriction or lien of any kind of any other person, and none
of the Company or any of its Subsidiaries has received any notice of
infringement of or conflict with asserted rights of others with respect to any
of the foregoing. The use of the Intellectual Property in connection with the
business and operations of the Company or any of its Subsidiaries does not
infringe on the rights of any person, except such infringements as could not
reasonably be expected to have a Material Adverse Effect.
(hh) All material tax returns required to be filed by the
Company or any of its Subsidiaries in all jurisdictions have been so filed. All
taxes, including withholding taxes, penalties and interest, assessments, fees
and other charges due or claimed to be due from such entities or that are due
and payable have been paid, other than those being contested in good faith and
for which adequate reserves have been provided or those currently payable
without penalty or interest. To the knowledge of the Company and the Guarantors,
there are no material proposed additional tax assessments against the Company or
any of its Subsidiaries, or the assets or property of the Company or any of its
Subsidiaries, except those tax assessments for which adequate reserves have been
established.
10
(ii) Each of the Company and its Subsidiaries maintains a
system of internal accounting controls sufficient to provide reasonable
assurance that: (A) transactions are executed in accordance with management's
general or specific authorizations; (B) transactions are recorded as necessary
to permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain accountability for assets; (C)
access to assets is permitted only in accordance with management's general or
specific authorization; and (D) the recorded accounting for assets is compared
with the existing assets at reasonable intervals and appropriate action is taken
with respect thereto.
(jj) Each of the Company and its Subsidiaries maintains
insurance covering its properties, operations, personnel and businesses,
insuring against such losses and risks as are consistent with industry practice
to protect the Company and its Subsidiaries and their respective businesses.
None of the Company or any of its Subsidiaries has received notice from any
insurer or agent of such insurer that substantial capital improvements or other
expenditures will have to be made in order to continue such insurance.
(kk) Except as disclosed in the Prospectus, no
relationship, direct or indirect, exists between or among the Company or any of
its Subsidiaries on the one hand, and the directors, officers, stockholders,
customers or suppliers of the Company or any of its Subsidiaries on the other
hand, which is required by the Act to be described in the Prospectus.
(ll) Except as disclosed in the Prospectus, none of the
Company or any of its Subsidiaries is subject to rate or terms of service
regulation under federal or state law.
(mm) Except as permitted in connection with the Exchange
Offer under applicable law and the Rules and Regulations, none of the Company or
any of its Subsidiaries has (A) taken, directly or indirectly, any action
designed to, or that might reasonably be expected to, cause or result in
stabilization or manipulation of the price of any security of the Company or any
of its Subsidiaries to facilitate the sale or resale of the Notes or (B) since
the date of the Preliminary Prospectus (1) sold, bid for, purchased or paid any
person any compensation for soliciting purchases of the Notes or (2) paid or
agreed to pay to any person any compensation for soliciting another to purchase
any other securities of the Company or any of its Subsidiaries.
(nn) The financial statements, including the notes
thereto, and the supporting schedules included or incorporated by reference in
the Registration Statement and the Prospectus present fairly the financial
position as of the dates indicated and the cash flows and results of operations
for the periods specified of the Company and its consolidated subsidiaries, said
financial statements have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis throughout the periods
involved; and the supporting schedules included in the Registration Statement
and the Prospectus present fairly the information required to be stated therein.
The other financial and statistical information included or incorporated by
reference in the Registration Statement and the Prospectus present fairly the
information included therein and have been prepared on a basis consistent with
that of the financial statements that are included or incorporated by reference
in the Registration Statement and the Prospectus and the books and records of
the respective entities presented therein. There are no pro forma or as adjusted
financial statements which are required to be included in the Registration
Statement and Prospectus in accordance with Regulation S-X.
11
(oo) The statistical and market-related data included in
the Prospectus are based on or derived from sources which the Company and the
Guarantors believe to be reliable and accurate in all material respects.
(pp) The oil and gas reserve estimates of the Company and
its Subsidiaries contained or incorporated by reference into the Prospectus have
been prepared in accordance with the Commission guidelines applied on a
consistent basis throughout the periods involved, and the Company has no reason
to believe that such estimates do not fairly reflect the oil and gas reserves of
the Company and its Subsidiaries at the dates indicated.
(qq) The Indenture has been qualified under the Trust
Indenture Act.
(rr) None of the execution, delivery and performance of
this Agreement, the issuance and sale of the Notes, the application of the
proceeds from the issuance and sale of the Notes and the consummation of the
transactions contemplated thereby as set forth in the Prospectus, will violate
Regulations T, U or X promulgated by the Board of Governors of the Federal
Reserve System or analogous foreign laws and regulations.
(ss) Neither the Company nor any Guarantor intends to, nor
believes that it will, incur debts beyond its ability to pay such debts as they
mature. The present fair saleable value of the assets of the Company and each
Guarantor exceeds the amount that will be required to be paid on or in respect
of its existing debts and other liabilities (including contingent liabilities)
as they become absolute and matured. The assets of the Company and each
Guarantor does not constitute unreasonably small capital to carry out its
business as conducted or as proposed to be conducted. Upon the issuance of the
Notes and the Guarantees, the present fair saleable value of the assets of the
Company and each Guarantor will exceed the amount that will be required to be
paid on or in respect of its existing debts and other liabilities (including
contingent liabilities) as they become absolute and matured. Upon the issuance
of the Notes and the Guarantees, the assets of the Company and each Guarantor
will not constitute unreasonably small capital to carry out its business as now
conducted, including the capital needs of the Company and such Guarantor, taking
into account the projected capital requirements and capital availability.
(tt) There exist no conditions that would constitute a
default (or an event which with notice or the lapse of time, or both, would
constitute a default) under any of the Operative Documents.
(uu) Each certificate signed by any officer of the Company
or any Guarantor and delivered to the Underwriters or counsel for the
Underwriters shall be deemed to be a representation and warranty by the Company
or such Guarantor, as the case may be, to the Underwriters as to the matters
covered thereby.
12
Each of the Company and the Guarantors acknowledge that the
Underwriters, and for purposes of the opinions to be delivered to the
Underwriters pursuant to Sections 6(c) and 6(d) hereof, counsel for the Company
and the Guarantors and counsel for the Underwriters will rely upon the accuracy
and truth of the foregoing representations, and hereby consent to such reliance.
2. Purchase, Sale and Delivery of the Notes.
(a) On the basis of the representations, warranties,
covenants and agreements herein contained, but subject to the terms and
conditions herein set forth, the Company agrees to sell to each Underwriter and
each Underwriter, severally and not jointly, agrees to purchase from the
Company, the principal amount of Firm Notes set forth opposite their respective
names on Schedule I hereto, together with any additional Notes which such
Underwriter may become obligated to purchase pursuant to the provisions of
Section 9 hereof. The purchase price for the Notes will be [____]% of the
principal amount thereof plus accrued interest, if any.
(b) Payment of the purchase price for, and delivery of
certificates representing, the Firm Notes shall be made at the office of
Xxxxxxxxx Xxxxxxx Xxxxx & Xxxxxxxx, LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx,
XX 00000-0000 ("Underwriters' Counsel"), or at such other place as shall be
agreed upon by Bear Xxxxxxx and the Company, at 10:00 A.M., New York City time,
on the third or fourth business day (as permitted under Rule 15c6-1 under the
Exchange Act)/1/ (unless postponed in accordance with the provisions of Section
9 hereof) following the date of the effectiveness of the Registration Statement
(or, if the Company has elected to rely upon Rule 430A under the Securities Act,
the third or fourth business day (as permitted under Rule 15c6-1 under the
Exchange Act) after the determination of the public offering price of the
Notes), or such other time not later than ten business days after such date as
shall be agreed upon by Bear Xxxxxxx and the Company (such time and date of
payment and delivery being herein called the "Closing Date").
Payment of the purchase price for the Firm Notes shall be made by wire
transfer in same day funds to or as directed by the Company upon delivery of
certificates for the Firm Notes to Bear Xxxxxxx through the facilities of The
Depository Trust Company for the respective accounts of the several
Underwriters. Certificates for the Firm Notes shall be registered in such name
or names and shall be in such denominations as Bear Xxxxxxx may request at least
two business days before the Closing Date. The Company will permit Bear Xxxxxxx
to examine and package such certificates for delivery at least one full business
day prior to the Closing Date.
(c) In addition, on the basis of the representations,
warranties, covenants and agreements herein contained, but subject to the terms
and conditions herein set forth, the Company hereby grants to the Underwriters,
acting severally and not jointly, the option to purchase up to $4,500,000
principal amount of Additional Notes at the same purchase price to be paid by
the Underwriters for the Firm Notes as set forth in Section 2(a) above, for the
sole purpose of covering over-allotments in the sale of Firm Notes by the
Underwriters. This option may be exercised at any time and from time to time, in
whole or in part on one or more occasions, on or before the thirtieth day
following the date of the Prospectus, by written notice from Bear Xxxxxxx to the
Company. Such notice shall set forth the aggregate principal amount of
Additional Notes as to which the option is being exercised and the date and
time, as reasonably determined by Bear Xxxxxxx, when the Additional Notes are to
be delivered (any such date and time being herein sometimes referred to as the
"Additional Closing Date"); provided, however, that no Additional Closing Date
shall occur earlier than the Closing Date or earlier than the second full
business day after the date on which the option shall have been exercised nor
later than the eighth full business day after the date on which the option shall
have been exercised (unless such time and date are postponed in accordance with
the provisions of Section 9 hereof). Upon any exercise of the option as to all
or any portion of the Additional Notes, each Underwriter, acting severally and
not jointly, agrees to purchase from the Company the number of Additional Notes
that bears the same proportion of the total number of Additional Notes then
being purchased as the number of Firm Notes set forth opposite the name of such
Underwriter in Schedule I hereto (or such number increased as set forth in
Section 9 hereof) bears to the total number of Firm Notes that the Underwriters
have agreed to purchased hereunder.
----------
/1/ If the transaction is priced after 4:30 p.m. Washington, D.C. time, T+4
will apply to the transaction. If the pricing takes place before or
during market hours, the closing will be three business days after
pricing.
13
(d) Payment of the purchase price for, and delivery of
certificates representing, the Additional Notes shall be made at the office of
Underwriters' Counsel, or at such other place as shall be agreed upon by Bear
Xxxxxxx and the Company, at 10:00 A.M., New York City time, on the Additional
Closing Date (unless postponed in accordance with the provisions of Section 9
hereof), or such other time as shall be agreed upon by Bear Xxxxxxx and the
Company.
Payment of the purchase price for the Additional Notes shall be made by
wire transfer in same day funds to or as directed by the Company upon delivery
of certificates for the Additional Notes to Bear Xxxxxxx through the facilities
of The Depository Trust Company for the respective accounts of the several
Underwriters. Certificates for the Additional Notes shall be registered in such
name or names and shall be in such denominations as Bear Xxxxxxx may request at
least two business days before the Additional Closing Date. The Company will
permit Bear Xxxxxxx to examine and package such certificates for delivery at
least one full business day prior to the Additional Closing Date.
3. Offering. Upon authorization of the release of the Firm Notes
by Xxxx Xxxxxxx, the Underwriters propose to offer the Notes for sale to the
public upon the terms and conditions set forth in the Prospectus.
4. Covenants of the Company. The Company and each Guarantor
covenants and agrees with the Underwriters that:
(a) The Registration Statement and any amendments thereto
have been declared effective, and if Rule 430A is used or the filing of the
Prospectus is otherwise required under Rule 424(b) or Rule 434, the Company and
the Guarantors will file the Prospectus (properly completed if Rule 430A has
been used) pursuant to Rule 424(b) within the prescribed time period and will
provide evidence satisfactory to Bear Xxxxxxx of such timely filing. If the
Company and the Guarantors elect to rely on Rule 434, the Company and the
Guarantors will prepare and file a term sheet that complies with the
requirements of Rule 434.
14
The Company and the Guarantors will notify you immediately (and, if
requested by Bear Xxxxxxx, will confirm such notice in writing) (i) when the
Registration Statement and any amendments thereto become effective, (ii) of any
request by the Commission for any amendment of or supplement to the Registration
Statement or the Prospectus or for any additional information, (iii) of the
Company's intention to file or prepare any supplement or amendment to the
Registration Statement or the Prospectus, (iv) of the mailing or the delivery to
the Commission for filing of any amendment of or supplement to the Registration
Statement or the Prospectus, including but not limited to Rule 462(b) under the
Securities Act, (v) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or any post-effective
amendment thereto or of the initiation, or the threatening, of any proceedings
therefor, it being understood that the Company shall make every effort to avoid
the issuance of any such stop order, (vi) of the receipt of any comments from
the Commission, and (vii) of the receipt by the Company or the Guarantors of any
notification with respect to the suspension of the qualification of the Notes
and the Guarantees for sale in any jurisdiction or the initiation or threatening
of any proceeding for that purpose. If the Commission shall propose or enter a
stop order at any time, the Company will make every reasonable effort to prevent
the issuance of any such stop order and, if issued, to obtain the lifting of
such order as soon as possible. The Company and the Guarantors will not file,
before or after the effective date of the Registration Statement, any amendment
to the Registration Statement or any amendment of or supplement to the
Prospectus (including the prospectus required to be filed pursuant to Rule
424(b) or Rule 434) that differs from the prospectus on file at the time of the
effectiveness of the Registration Statement or file any document under the
Exchange Act if such document would be deemed to be incorporated by reference
into the Prospectus to which Bear Xxxxxxx shall object in writing after being
timely furnished in advance a copy thereof. The Company will provide Bear
Xxxxxxx with copies of all such amendments, filings and other documents and a
sufficient time prior to any filing or other publication thereof to permit Bear
Xxxxxxx a reasonable opportunity to review and comment thereon.
(b) The Company and the Guarantors shall comply with the
Securities Act, the Exchange Act and the Trust Indenture Act to permit
completion of the distribution as contemplated in this Agreement, the
Registration Statement and the Prospectus. If at any time when a prospectus
relating to the Notes and the Guarantees is required to be delivered under the
Securities Act or the Exchange Act in connection with the sales of the Notes and
the Guarantees, any event shall have occurred as a result of which the
Prospectus as then amended or supplemented would, in the judgment of the
Underwriters or the Company, include an untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances existing at the
time of delivery to the purchaser, not misleading, or if to comply with the
Securities Act, the Exchange Act or the Rules and Regulations it shall be
necessary at any time to amend or supplement the Prospectus or Registration
Statement, or to file any document incorporated by reference in the Registration
Statement or the Prospectus or in any amendment thereof or supplement thereto,
the Company will notify you promptly and prepare and file with the Commission,
subject to Section 5(a) hereof, an appropriate amendment or supplement (in form
and substance satisfactory to Bear Xxxxxxx) which will correct such statement or
omission or which will effect such compliance and will use its best efforts to
have any amendment to the Registration Statement declared effective as soon as
possible.
15
(c) The Company will promptly deliver to each of you and
Underwriters' Counsel a signed copy of the Registration Statement, as initially
filed and all amendments thereto, including all consents and exhibits filed
therewith, and will maintain in the Company's files manually signed copies of
such documents for at least five years after the date of filing. The Company
will promptly deliver to each of the Underwriters such number of copies of any
Preliminary Prospectus, the Prospectus, the Registration Statement, all
amendments of and supplements to such documents, if any, and all documents
incorporated by reference in the Registration Statement and Prospectus or any
amendment thereof or supplement thereto, as you may reasonably request. Prior to
10:00 A.M., New York time, on the business day next succeeding the date of this
Agreement and from time to time thereafter, the Company will furnish the
Underwriters with copies of the Prospectus in New York City in such quantities
as you may reasonably request.
(d) The Company and the Guarantors consent to the use and
delivery of the Preliminary Prospectus by the Underwriters in accordance with
Rule 430 and Section 5(b) of the Securities Act.
(e) The Company will use its best efforts, in cooperation
with Bear Xxxxxxx, at or prior to the time of effectiveness of the Registration
Statement, to qualify the Notes and the Guarantees for offering and sale under
the securities laws relating to the offering or sale of the Notes and the
Guarantees of such jurisdictions, domestic or foreign, as Bear Xxxxxxx may
designate and to maintain such qualification in effect for so long as required
for the distribution thereof; except that in no event shall the Company be
obligated in connection therewith to qualify as a foreign corporation or to
execute a general consent to service of process.
(f) The Company will make generally available to its
security holders and to the Underwriters as soon as practicable, but in any
event not later than twelve months after the effective date of the Registration
Statement (as defined in Rule 158(c) under the Securities Act), an earnings
statement of the Company and the 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).
(g) During the period of 90 days from the date of the
Prospectus, without the prior written consent of Bear Xxxxxxx the Company and
the Guarantors will not, directly or indirectly, issue, offer, sell, agree to
issue, offer or sell, solicit offers to purchase, any debt security having a
maturity greater than one year after the Closing Date and which are
substantially similar to the Notes and the Guarantees, other than issuances and
sales of the notes and guarantees in connection with the Exchange Offer.
(h) During the period of five years from the effective
date of the Registration Statement, the Company will furnish to you copies of
all reports or other communications (financial or other) furnished to security
holders or from time to time published or publicly disseminated by the Company,
and will deliver to you (i) as soon as they are available, copies of any
reports, financial statements and proxy or information statements furnished to
or filed with the Commission or any national securities exchange on which any
class of securities of the Company is listed; and (ii) such additional
information concerning the business and financial condition of the Company as
you may from time to time reasonably request (such financial information to be
on a consolidated basis to the extent the accounts of the Company and the
Subsidiaries are consolidated in reports furnished to its security holders
generally or to the Commission).
16
(i) The Company will apply the net proceeds from the sale
of the Notes as set forth under the caption "Use of Proceeds" in the Prospectus.
(j) The Company, during the period when the Prospectus is
required to be delivered under the Securities Act or the Exchange Act, will file
all documents required to be filed with the Commission pursuant to the
Securities Act, the Exchange Act and the Rules and Regulations within the time
periods required thereby.
(k) The Company will assist Bear Xxxxxxx in arranging for
the Notes and the Guarantees to be eligible for clearance and settlement through
the Depository Trust Company ("DTC").
(l) Until Bear Xxxxxxx shall have notified the Company of
the completion of the distribution of the Notes, the Company will not, and will
cause its "affiliated purchasers" (as defined in Regulation M under the Exchange
Act) not to, either alone or with one or more other persons (i) bid for or
purchase, for any account in which it or any of its affiliated purchasers has a
beneficial interest, any Notes, or attempt to induce any person to purchase any
Notes, or (ii) make bids or purchases for the purpose of creating actual or
apparent active trading in or raising the price of the Notes.
(m) The Company will use its best efforts to do and
perform all things required to be done or performed under this Agreement by the
Company prior to the Closing Date or the Additional Closing Date, as the case
may be, and to satisfy all conditions precedent to the delivery of the Firm
Notes and the Additional Notes.
5. Payment of Expenses. Whether or not the transactions
contemplated by this Agreement, the Registration Statement and the Prospectus
are consummated or this Agreement is terminated, the Company hereby agrees to
pay all costs and expenses incident to the performance of its obligations
hereunder, including the following: (i) all expenses in connection with the
preparation, printing and filing of the Registration Statement, any Preliminary
Prospectus and the Prospectus and any and all amendments and supplements thereto
and the mailing and delivering of copies thereof to the Underwriters and
dealers; (ii) the fees, disbursements and expenses of the Company's counsel and
accountants in connection with the registration of the Notes and the Guarantees
under the Securities Act and the Offering; (iii) the cost of producing this
Agreement and any agreement among Underwriters, blue sky survey, closing
documents and other instruments, agreements or documents (including any
compilations thereof) in connection with the Offering; (iv) all expenses in
connection with the qualification of the Notes and the Guarantees for offering
and sale under state securities or blue sky laws as provided in Section 4(e)
hereof, including the fees and disbursements of counsel for the Underwriters in
connection with such qualification and in connection with any blue sky survey;
(v) the filing fees incident to, and the fees and disbursements of counsel for
the Underwriters in connection with, securing any required review by the NASD of
the terms of the Offering; (vi) all fees and expenses of the Trustee (including
fees and expenses of counsel to the Trustee); (vii) all costs of preparation and
printing of the Indenture, the Notes and the Guarantees, and (viii) all travel
expenses of the Company's officers and employees and any other expense of the
Company incurred in connection with attending or hosting meetings with
prospective purchasers of the Notes and the Guarantees. The Company also will
pay or cause to be paid all other costs and expenses incident to the performance
of its obligations hereunder which are not otherwise specifically provided for
in this Section 5. It is understood, however, that except as provided in this
Section, and Sections 7, 8 and 11 hereof, and as may be otherwise agreed to by
the Company in writing, the Underwriters will pay all of their own costs and
expenses, including the fees of their counsel. Notwithstanding anything to the
contrary in this Section 5, in the event that this Agreement is terminated
pursuant to Section 6 or 11(b) hereof, or subsequent to a Material Adverse
Change, the Company will pay all out-of pocket expenses of the Underwriters
(including but not limited to fees and disbursements of counsel to the
Underwriters) incurred in connection herewith.
17
6. Conditions of Underwriters' Obligations. The obligations of
the Underwriters to purchase and pay for the Firm Notes and the Additional
Notes, as provided herein, shall be subject to the accuracy of the
representations and warranties of the Company herein contained, as of the date
hereof and as of the Closing Date (for purposes of this Section 6 "Closing Date"
shall refer to the Closing Date for the Firm Notes and any Additional Closing
Date, if different, for the Additional Notes), to the absence from any
certificates, opinions, written statements or letters furnished to you or to
Underwriters' Counsel pursuant to this Section 6 of any misstatement or
omission, to the performance by the Company of its obligations hereunder, and to
each of the following additional conditions:
(a) The Registration Statement shall have become
effective and all necessary regulatory or stock exchange approvals shall have
been received not later than [if pricing pursuant to Rule 430A: 5:30 P.M., New
York time, on the date of this Agreement] [if pricing pursuant to a pricing
amendment: 12:00 P.M., New York time on the date an amendment to the
Registration Statement containing the public offering price has been filed with
the Commission], or at such later time and date as shall have been consented to
in writing by Bear Xxxxxxx; if the Company shall have elected to rely upon Rule
430A or Rule 434 under the Securities Act, the Prospectus shall have been filed
with the Commission in a timely fashion in accordance with Section 4(a) hereof
and a form of the Prospectus containing information relating to the description
of the Notes and the method of distribution and similar matters shall have been
filed with the Commission pursuant to Rule 424(b) within the applicable time
period; and, at or prior to the Closing Date no stop order suspending the
effectiveness of the Registration Statement or any post-effective amendment
thereof shall have been issued and no proceedings therefor shall have been
initiated or threatened by the Commission.
(b) At the Closing Date you shall have received the
favorable written opinion of The Ledgewood Law Firm, counsel for the Company,
and Xxxxxx & Xxxxxxx, special counsel to you, dated the Closing Date addressed
to the Underwriters in the form attached hereto as Xxxxx X.
(c) All proceedings taken in connection with the sale of
the Firm Notes and the Additional Notes as herein contemplated shall be
satisfactory in form and substance to Bear Xxxxxxx and to Underwriters' Counsel,
and the Underwriters shall have received from Underwriters' Counsel and Xxxxxx &
Xxxxxxx, as special counsel for the Underwriters, a favorable written opinion,
dated as of the Closing Date, with respect to the issuance and sale of the Notes
and the Guarantees, the Indenture, the Registration Statement and the Prospectus
and such other related matters as Bear Xxxxxxx may require, and the Company
shall have furnished to Underwriters' Counsel and Xxxxxx & Xxxxxxx such
documents as they may reasonably request for the purpose of enabling them to
pass upon such matters.
18
(d) At the Closing Date you shall have received a
certificate of the Chief Executive Officer and Chief Financial Officer of the
Company, dated the Closing Date to the effect that (i) the condition set forth
in subsection (a) of this Section 6 has been satisfied, (ii) as of the date
hereof and as of the Closing Date, the representations and warranties of the
Company and the Guarantors set forth in Section 1 hereof are accurate, (iii) as
of the Closing Date all agreements, conditions and obligations of the Company
and the Guarantors to be performed or complied with hereunder on or prior
thereto have been duly performed or complied with, (iv) the Company and the
Subsidiaries have not sustained any material loss or interference with their
respective businesses or properties from fire, flood, hurricane, accident or
other calamity, whether or not covered by insurance, or from any labor dispute
or any legal or governmental proceeding, (v) no stop order suspending the
effectiveness of the Registration Statement or any post-effective amendment
thereof has been issued and no proceedings therefor have been initiated or
threatened by the Commission and (vi) subsequent to the respective dates as of
which information is given in the Registration Statement and the Prospectus
there has not been any material adverse change or any development involving a
prospective material adverse change, whether or not arising from transactions in
the ordinary course of business, in or affecting (x) the business, condition
(financial or otherwise), results of operations, stockholders' equity,
properties or prospects of the Company and the Subsidiaries, taken as a whole;
(y) the long-term debt or capital stock of the Company or any of its
Subsidiaries; or (z) the Offering or consummation of any of the other
transactions contemplated by this Agreement, the Registration Statement and the
Prospectus.
(e) At the time this Agreement is executed and at the
Closing Date, you shall have received a comfort letter, from Xxxxx Xxxxxxxx LLP,
independent public accountants for the Company, dated, respectively, as of the
date of this Agreement and as of the Closing Date addressed to the Underwriters
and in form and substance satisfactory to the Underwriters and Underwriters'
Counsel.
(f) 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 thereof) and the Prospectus
(exclusive of any supplement thereto), there shall not have been any change in
the capital stock or long-term debt of the Company or any of the Subsidiaries or
any change or development involving a change, whether or not arising from
transactions in the ordinary course of business, in the business, condition
(financial or otherwise), results of operations, stockholders' equity,
properties or prospects of the Company and the Subsidiaries, taken as a whole,
including but not limited to the occurrence of any fire, flood, storm,
explosion, accident or other calamity at any of the properties owned or leased
by the Company or any of its Subsidiaries, the effect of which, in any such case
described above, is, in the judgment of Bear Xxxxxxx, so material and adverse as
to make it impracticable or inadvisable to proceed with the Offering on the
terms and in the manner contemplated in the Prospectus (exclusive of any
supplement).
19
(g) You shall have received written consents of each of
[Xxxxxx United Bank, Sovereign Bank, The Xxxxxxxx Group, Wachovia Bank] to the
issuance and sale of the Notes and the Guarantees.
(h) The Indenture shall have been duly executed and
delivered by the Company, the Trustee and the Guarantors, and the Notes and the
Guarantees shall have been duly executed and delivered by the Company and the
Guarantors, respectively, and duly authenticated by the Trustee.
(i) The Company and Trustee, shall have executed and
delivered a supplemental indenture to the Indenture dated as of July 22, 1997
relating to the Company's 12% Senior Notes due 2004, effecting the amendments
set forth in Annex A to the Company's Exchange Offer and Consent Solicitation
Statement dated ___________, 2003 (the "Exchange Offer Statement") and such
supplemental indenture shall be in full force and effect.
(j) The Company shall have completed the Exchange Offer
in compliance with applicable law and the Exchange Offer Statement.
(k) At the Closing Date, the NASD shall have confirmed
that it has not raised any objection with respect to the fairness and
reasonableness of the underwriting terms and arrangements.
(l) The Company shall have furnished the Underwriters and
Underwriters' Counsel with such other certificates, opinions or other documents
as they may have reasonably requested.
(m) On or after the date hereof, (i) there shall not have
occurred any downgrading, suspension or withdrawal of, nor shall any notice have
been given of any potential or intended downgrading, suspension or withdrawal
of, or of any review (or of any potential or intended review) for a possible
change that does not indicate the direction of the possible change in, any
rating of the Company or any Guarantor or any securities of the Company or any
Guarantor (including, without limitation, the placing of any of the foregoing
ratings on credit watch with negative or developing implications or under review
with an uncertain direction) by any "nationally recognized statistical rating
organization" as such term is defined for purposes of Rule 436(g)(2) under the
Act, (ii) there shall not have occurred any change, nor shall any notice have
been given of any potential or intended change, in the outlook for any rating of
the Company or any Guarantor or any securities of the Company or any Guarantor
by any such rating organization and (iii) no such rating organization shall have
given notice that it has assigned (or is considering assigning) a lower rating
to the Notes than that on which the Notes were marketed.
If any of the conditions specified in this Section 6 shall not have
been fulfilled when and as required by this Agreement, or if any of the
certificates, opinions, written statements or letters furnished to you or to
Underwriters' Counsel pursuant to this Section 6 shall not be satisfactory in
form and substance to Bear Xxxxxxx and to Underwriters' Counsel, all obligations
of the Underwriters hereunder may be cancelled by Bear Xxxxxxx at, or at any
time prior to, the Closing Date and the obligations of the Underwriters to
purchase the Additional Notes may be cancelled by Bear Xxxxxxx at, or at any
time prior to, the Additional Closing Date. Notice of such cancellation shall be
given to the Company in writing, or by telephone. Any such telephone notice
shall be confirmed promptly thereafter in writing.
20
7. Indemnification.
(a) The Company and each Guarantor shall indemnify and
hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act, against any and all losses, liabilities, claims, damages
and expenses whatsoever as incurred (including but not limited to attorneys'
fees and any and all expenses whatsoever incurred in investigating, preparing or
defending against any litigation, commenced or threatened, or any claim
whatsoever, and any and all amounts paid in settlement of any claim or
litigation), joint or several, to which they or any of them may become subject
under the Securities Act, the Exchange Act or otherwise, insofar as such losses,
liabilities, claims, damages or expenses (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, as originally filed or
any amendment thereof, or any related Preliminary Prospectus or the Prospectus,
or in any supplement thereto or amendment thereof, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading;
provided, however, that the Company will not be liable in any such case to the
extent but only to the extent that any such loss, liability, claim, damage or
expense arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made therein in reliance upon
and in conformity with written information furnished to the Company by or on
behalf of any Underwriter through Bear Xxxxxxx expressly for use therein. The
parties agree that such information provided by or on behalf of any Underwriter
through Bear Xxxxxxx consists solely of the material referred to in the last
sentence of Section 1(b) hereof. This indemnity agreement will be in addition to
any liability which the Company may otherwise have, including but not limited to
other liability under this Agreement.
(b) Each Underwriter, severally and not jointly, shall
indemnify and hold harmless the Company and the Guarantors, each of the
directors of the Company, each of the officers of the Company who shall have
signed the Registration Statement, and each other person, if any, who controls
the Company within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act, against any losses, liabilities, claims, damages and
expenses whatsoever as incurred (including but not limited to attorneys' fees
and any and all expenses whatsoever incurred in investigating, preparing or
defending against any litigation, commenced or threatened, or any claim
whatsoever, and any and all amounts paid in settlement of any claim or
litigation), joint or several, to which they or any of them may become subject
under the Securities Act, the Exchange Act or otherwise, insofar as such losses,
liabilities, claims, damages or expenses (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, as originally filed or
any amendment thereof, or any related Preliminary Prospectus or the Prospectus,
or in any amendment thereof or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
in each case to the extent, but only to the extent, that any such loss,
liability, claim, damage or expense arises out of or is based upon any such
untrue statement or alleged untrue statement or omission or alleged omission
made therein in reliance upon and in conformity with information furnished in
writing to the Company by or on behalf of any Underwriter through Bear Xxxxxxx
specifically for use therein; provided, however, that in no case shall any
Underwriter be liable or responsible for any amount in excess of the
underwriting discount applicable to the Notes to be purchased by such
Underwriter hereunder. This indemnity will be in addition to any liability which
any Underwriter may otherwise have, including but not limited to other liability
under this Agreement.
21
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of any claims or the commencement of any
action, such indemnified party shall, if a claim in respect thereof is to be
made against the indemnifying party under such subsection, notify each party
against whom indemnification is to be sought in writing of the claim or the
commencement thereof (but the failure so to notify an indemnifying party shall
not relieve the indemnifying party from any liability which it may have under
this Section 7). In case any such claim or action is brought against any
indemnified party, and it notifies an indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate, at its own
expense in the defense of such action, and to the extent it may elect by written
notice delivered to the indemnified party promptly after receiving the aforesaid
notice from such indemnified party, to assume the defense thereof with counsel
satisfactory to such indemnified party; provided however, that counsel to the
indemnifying party shall not (except with the written consent of the indemnified
party) also be counsel to the indemnified party. Notwithstanding the foregoing,
the indemnified party or parties shall have the right to employ its or their own
counsel in any such case, but the fees and expenses of such counsel shall be at
the expense of such indemnified party or parties unless (i) the employment of
such counsel shall have been authorized in writing by one of the indemnifying
parties in connection with the defense of such action, (ii) the indemnifying
parties shall not have employed counsel to have charge of the defense of such
action within a reasonable time after notice of commencement of the action,
(iii) the indemnifying party does not diligently defend the action after
assumption of the defense, or (iv) such indemnified party or parties shall have
reasonably concluded that there may be defenses available to it or them which
are different from or additional to those available to one or all of the
indemnifying parties (in which case the indemnifying parties shall not have the
right to direct the defense of such action on behalf of the indemnified party or
parties), in any of which events such fees and expenses shall be borne by the
indemnifying parties. No indemnifying party shall, without the prior written
consent of the indemnified parties, effect any settlement or compromise of, or
consent to the entry of judgment with respect to, any pending or threatened
claim, investigation, action or proceeding in respect of which indemnity or
contribution may be or could have been sought by an indemnified party under this
Section 7 or Section 8 hereof (whether or not the indemnified party is an actual
or potential party thereto), unless (x) such settlement, compromise or judgment
(i) includes an unconditional release of the indemnified party from all
liability arising out of such claim, investigation, action or proceeding and
(ii) does not include a statement as to or an admission of fault, culpability or
any failure to act, by or on behalf of the indemnified party, and (y) the
indemnifying party confirms in writing its indemnification obligations hereunder
with respect to such settlement, compromise or judgment.
22
8. Contribution. In order to provide for contribution in
circumstances in which the indemnification provided for in Section 8 hereof is
for any reason held to be unavailable from any indemnifying party or is
insufficient to hold harmless a party indemnified thereunder, the Company and
the Guarantors, on the one hand, and the Underwriters, on the other hand, shall
contribute to the aggregate losses, claims, damages, liabilities and expenses of
the nature contemplated by such indemnification provision (including any
investigation, legal and other expenses incurred in connection with, and any
amount paid in settlement of, any action, suit or proceeding or any claims
asserted, but after deducting in the case of losses, claims, damages,
liabilities and expenses suffered by the Company and the Guarantors, any
contribution received by the Company and the Guarantors from persons, other than
the Underwriters, who may also be liable for contribution, including persons who
control the Company and the Guarantors within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, officers of the Company who
signed the Registration Statement and directors of the Company) as incurred to
which the Company and the Guarantors, on the one hand, and one or more of the
Underwriters, on the other hand, may be subject, in such proportions as is
appropriate to reflect the relative benefits received by the Company and the
Guarantors, on the one hand, and the Underwriters on the other hand from the
Offering or, if such allocation is not permitted by applicable law, in such
proportions as are appropriate to reflect not only the relative benefits
referred to above but also the relative fault of the Company and the Guarantors,
on the one hand, and the Underwriters on the other hand in connection with the
statements or omissions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company and the Guarantors, on the one
hand, and the Underwriters on the other hand shall be deemed to be in the same
proportion as (x) the total proceeds from the Offering (net of underwriting
discounts and commissions but before deducting expenses) received by the Company
bears to (y) the underwriting discount or commissions received by the respective
Underwriters, in each case as set forth in the table on the cover page of the
Prospectus. The relative fault of each of the Company and the Guarantors, on the
one hand, and of the Underwriters on the other hand shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or the Underwriters and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company and the Guarantors,
on the one hand, and the Underwriters on the other hand agree that it would not
be just and equitable if contribution pursuant to this Section 8 were determined
by pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to above in this Section. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 8 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any judicial, regulatory or other legal or
governmental agency or body, commenced or threatened, or any claim whatsoever
based upon any such untrue or alleged untrue statement or omission or alleged
omission. Notwithstanding the provisions of this Section 8, (i) no Underwriter
shall be required to contribute any amount in excess of the amount by which the
discounts and commissions applicable to the Notes underwritten by it and
distributed to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission and (ii) 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. For purposes of this Section 8,
each person, if any, who controls an Underwriter within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act shall have the same
rights to contribution as such Underwriter, and each person, if any, who
controls the Company or any Guarantor within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, each officer of the Company or
any Guarantor who shall have signed the Registration Statement and each director
of the Company shall have the same rights to contribution as the Company and any
Guarantor, as applicable, subject in each case to clauses (i) and (ii) of the
immediately preceding sentence. Any party entitled to contribution will,
promptly after receipt of notice of commencement of any action, suit or
proceeding against such party in respect of which a claim for contribution may
be made against another party or parties, notify each party or parties from whom
contribution may be sought, but the omission to so notify such party or parties
shall not relieve the party or parties from whom contribution may be sought from
any obligation it or they may have under this Section 8 or otherwise. The
obligations of the Underwriters to contribute pursuant to this Section 8 are
several in proportion to the respective principal amount of Notes to be
purchased by each of the Underwriters hereunder and not joint.
23
9. Default by an Underwriter.
(a) If any Underwriter or Underwriters shall default in
its or their obligation to purchase Firm Notes or Additional Notes hereunder,
and if the Firm Notes or Additional Notes with respect to which such default
relates (the "Default Notes") do not (after giving effect to arrangements, if
any, made by Bear Xxxxxxx pursuant to subsection (b) below) exceed in the
aggregate 10% of the number of Firm Notes or Additional Notes, each
non-defaulting Underwriter, acting severally and not jointly, agrees to purchase
from the Company and the Guarantors that principal amount of Default Notes that
bears the same proportion of the total principal amount of Default Notes then
being purchased as the number of Firm Notes set forth opposite the name of such
Underwriter in Schedule I hereto bears to the aggregate principal amount of Firm
Notes set forth opposite the names of the non-defaulting Underwriters.
(b) In the event that the aggregate principal amount of
Default Notes exceeds 10% of the number of Firm Notes or Additional Notes, as
the case may be, Bear Xxxxxxx may in its discretion arrange for itself or for
another party or parties (including any non-defaulting Underwriter or
Underwriters who so agree) to purchase the Default Notes on the terms contained
herein. In the event that within five calendar days after such a default Bear
Xxxxxxx does not arrange for the purchase of the Default Notes as provided in
this Section 9, this Agreement or, in the case of a default with respect to the
Additional Notes, the obligations of the Underwriters to purchase and of the
Company and the Guarantors to sell the Additional Notes shall thereupon
terminate, without liability on the part of the Company with respect thereto
(except in each case as provided in Sections 5, 7, 8, 10 and 11(d)) or the
Underwriters, but nothing in this Agreement shall relieve a defaulting
Underwriter or Underwriters of its or their liability, if any, to the other
Underwriters and the Company for damages occasioned by its or their default
hereunder.
24
(c) In the event that any Default Notes are to be
purchased by the non-defaulting Underwriters, or are to be purchased by another
party or parties as aforesaid, Bear Xxxxxxx or the Company shall have the right
to postpone the Closing Date or Additional Closing Date, as the case may be for
a period, not exceeding five business days, in order to effect whatever changes
may thereby be made necessary in the Registration Statement or the Prospectus or
in any other documents and arrangements, and the Company agrees to file promptly
any amendment or supplement to the Registration Statement or the Prospectus
which, in the opinion of Underwriters' Counsel, may thereby be made necessary or
advisable. The term "Underwriter" as used in this Agreement shall include any
party substituted under this Section 9 with like effect as if it had originally
been a party to this Agreement with respect to such Firm Notes and Additional
Notes.
10. Survival of Representations and Agreements. All
representations and warranties, covenants and agreements of the Underwriters and
the Company and the Guarantors contained in this Agreement or in certificates of
officers of the Company or any Subsidiary submitted pursuant hereto, including
the agreements contained in Section 5, the indemnity agreements contained in
Section 7 and the contribution agreements contained in Section 8, shall remain
operative and in full force and effect regardless of any investigation made by
or on behalf of any Underwriter or any controlling person thereof or by or on
behalf of the Company, any of its officers and directors or any controlling
person thereof, and shall survive delivery of and payment for the Notes to and
by the Underwriters. The representations contained in Section 1 and the
agreements contained in Sections 5, 7, 8, 10 and 11(d) hereof shall survive any
termination of this Agreement, including termination pursuant to Section 9 or 11
hereof.
11. Effective Date of Agreement; Termination.
(a) This Agreement shall become effective upon [the later
of (i) receipt by Bear Xxxxxxx and the Company of notification of the
effectiveness of the Registration Statement or (ii)] the execution of this
Agreement. If either the public offering price or the purchase price per $1,000
principal amount of Notes has not been agreed upon prior to 5:00 P.M., New York
City time, on the fifth full business day after the Registration Statement shall
have become effective, this Agreement shall thereupon terminate without
liability to the Company or the Underwriters except as herein expressly
provided. Until this Agreement becomes effective as aforesaid, it may be
terminated by the Company by notifying you or by Bear Xxxxxxx notifying the
Company. Notwithstanding any termination of this Agreement, the provisions of
this Section 11 and of Sections 1, 5, 7, 8 and 12 through 17, inclusive, shall
be in full force and effect at all times after the execution hereof.
(b) Bear Xxxxxxx shall have the right to terminate this
Agreement at any time prior to the Closing Date or to terminate the obligations
of the Underwriters to purchase the Additional Notes at any time prior to the
Additional Closing Date, as the case may be, if (A) any domestic or
international event or act or occurrence has materially disrupted, or in the
opinion of Bear Xxxxxxx will in the immediate future materially disrupt, the
market for the Company's securities or securities in general; or (B) if trading
on The New York Stock Exchange ("the NYSE") or The NASDAQ National Market (the
"NASDAQ") shall have been suspended or been made subject to material
limitations, or minimum or maximum prices for trading shall have been fixed, or
maximum ranges for prices for securities shall have been required, on the NYSE
or the NASDAQ or by order of the Commission or any other governmental authority
having jurisdiction; or (C) if a banking moratorium has been declared by any
state or federal authority or if any material disruption in commercial banking
or securities settlement or clearance services shall have occurred; or (D) in
the reasonable judgment of Bear Xxxxxxx, any material adverse change shall have
occurred since the respective dates as of which information is given in the
Prospectus in the condition (financial or otherwise), business, properties,
assets, liabilities, prospects, net worth, results of operations or cash flows
of the Company and its Subsidiaries, taken as a whole; (E) (i) if there shall
have occurred any outbreak or escalation of hostilities or acts of terrorism
involving the United States or there is a declaration of a national emergency or
war by the United States or (ii) if there shall have been any other calamity or
crisis or any change in political, financial or economic conditions if the
effect of any such event in (i) or (ii), in the judgment of Bear Xxxxxxx, makes
it impracticable or inadvisable to proceed with the offering, sale and delivery
of the Firm Notes or the Additional Notes, as the case may be, on the terms and
in the manner contemplated by the Prospectus; or (F) the Company or any of the
Guarantors shall have failed, refused or been unable to perform in any material
respect any agreement on its part to be performed hereunder, any other condition
to the obligations of the Underwriters as provided in Section 6 is not fulfilled
when and as required in any material respect.
25
(c) Any notice of termination pursuant to this Section 11
shall be in writing.
(d) If this Agreement shall be terminated pursuant to any
of the provisions hereof (other than pursuant to (i) notification by Bear
Xxxxxxx as provided in Section 11(a) hereof or (ii) Section 9(b) hereof), or if
the sale of the Notes provided for herein is not consummated because any
condition to the obligations of the Underwriters set forth herein is not
satisfied or because of any refusal, inability or failure on the part of the
Company or the Guarantors to perform any agreement herein or comply with any
provision hereof, the Company will, subject to demand by Bear Xxxxxxx, reimburse
the Underwriters for all out-of-pocket expenses (including the fees and expenses
of their counsel), incurred by the Underwriters in connection herewith.
12. Notices. All communications hereunder, except as may be
otherwise specifically provided herein, shall be in writing, and:
(a) if sent to any Underwriter, shall be mailed,
delivered, or faxed and confirmed in writing, to such Underwriter c/o Bear,
Xxxxxxx & Co. Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
[____________], with a copy to Underwriter's Counsel at Xxxxxxxxx Xxxxxxx Xxxxx
& Xxxxxxxx LLP, Attention: Xxxxxxx Xxxxx, Xx.;
26
(b) if sent to the Company or any Guarantor, shall be
mailed, delivered, or faxed and confirmed in writing to the Company and its
counsel at the addresses set forth in the Registration Statement, Attention:
Xxxxxxx Xxxxxx;
provided, however, that any notice to an Underwriter pursuant to Section 7 shall
be delivered or sent by mail or facsimile transmission to such Underwriter at
its address set forth in its acceptance facsimile to Bear Xxxxxxx, which address
will be supplied to any other party hereto by Bear Xxxxxxx upon request. Any
such notices and other communications shall take effect at the time of receipt
thereof.
13. Parties. This Agreement shall insure solely to the benefit of,
and shall be binding upon, the Underwriters, the Company and the Guarantors and
the controlling persons, directors, officers, employees and agents referred to
in Sections 7 and 8 hereof, and their respective successors and assigns, and no
other person shall have or be construed to have any legal or equitable right,
remedy or claim under or in respect of or by virtue of this Agreement or any
provision herein contained. This Agreement and all conditions and provisions
hereof are intended to be for the sole and exclusive benefit of the parties
hereto and said controlling persons and their respective successors, officers,
directors, heirs and legal representatives, and it is not for the benefit of any
other person, firm or corporation. The term "successors and assigns" shall not
include a purchaser, in its capacity as such, of Notes from any of the
Underwriters.
14. Governing Law and Jurisdiction; Waiver of Jury Trial. This
Agreement shall be governed by and construed in accordance with the laws of the
State of New York. The Company and each Guarantor irrevocably (a) submits to the
jurisdiction of any court of the State of New York or the United State District
Court for the Southern District of the State of New York for the purpose of any
suit, action, or other proceeding arising out of this Agreement, or any of the
agreements or transactions contemplated by this Agreement, the Registration
Statement and the Prospectus (each, a "Proceeding"), (b) agrees that all claims
in respect of any Proceeding may be heard and determined in any such court, (c)
waives, to the fullest extent permitted by law, any immunity from jurisdiction
of any such court or from any legal process therein, (d) agrees not to commence
any Proceeding other than in such courts, and (e) waives, to the fullest extent
permitted by law, any claim that such Proceeding is brought in an inconvenient
forum. THE COMPANY (ON BEHALF OF ITSELF AND, TO THE FULLEST EXTENT PERMITTED BY
LAW, ON BEHALF OF ITS RESPECTIVE EQUITY HOLDERS AND CREDITORS) HEREBY WAIVES ANY
RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY CLAIM BASED UPON, ARISING
OUT OF OR IN CONNECTION WITH THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED BY
THIS AGREEMENT, THE REGISTRATION STATEMENT AND THE PROSPECTUS.
15. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same instrument. Delivery of
a signed counterpart of this Agreement by facsimile transmission shall
constitute valid and sufficient delivery thereof.
16. 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
17. Time is of the Essence. Time shall be of the essence of this
Agreement. As used herein, the term "business day" shall mean any day when the
Commission's office in Washington, D.C. is open for business.
[signature page follows]
28
If the foregoing correctly sets forth your understanding, please so
indicate in the space provided below for that purpose, whereupon this letter
shall constitute a binding agreement among us.
Very truly yours,
RESOURCE AMERICA, INC.
By:
-------------------------------------
Name:
Title:
Accepted as of the date first above written
BEAR, XXXXXXX & CO. INC.
XXXXXXXX, XXXXXXXX, XXXXXX
& CO., INC.
By:
---------------------------------------
Name:
Title:
On behalf of themselves and the other
Underwriters [listed below].
RESOURCE CAPITAL PARTNERS, INC.
ATLAS ENERGY HOLDINGS, INC.
RAI VENTURES, INC.
RESOURCE PROPERTIES, INC.
RESOURCE PROPERTIES LOAN SUBSIDIARIES
[CP/GP, INC.] - 96% OWNED BY
RESOURCE PROPERTIES, INC.
XXXXXXXXXXXX MORTGAGE INVESTORS, INC.
ES GP, INC.
X.X. XXXXXXXX LAND, INC.
RAI FINANCIAL, INC.
RESOURCE COMMERCIAL MORTGAGES, INC.
RESOURCE FINANCIAL SERVICES, INC.
RESOURCE HOUSING INVESTORS I, INC.
RESOURCE HOUSING INVESTORS II, INC.
RESOURCE HOUSING INVESTORS III, INC.
RESOURCE HOUSING INVESTORS IV, INC.
RESOURCE PROGRAMS, INC.
RESOURCE XXXXXXXXXXX, INC.
WS MORTGAGE ACQUISITION CORP.
RESOURCE LEASING, INC.
FLI HOLDINGS, INC.
LEAF FINANCIAL CORPORATION
LEAF CAPITAL MANAGEMENT, INC.
LEAF ASSET MANAGEMENT, INC.
LEASE EQUITY APPRECIATION
FUND I, L.P.
ATLAS AMERICA, INC. (DE)
VIKING RESOURCES CORPORATION
RFI HOLDING COMPANY
VIKING INVESTMENTS, INC.
AIC, INC.
ANTHEM SECURITIES, INC.
ATLAS ENERGY CORPORATION
ATLAS ENERGY GROUP, INC.
AED INVESTMENTS, INC.
ATLAS RESOURCES, INC.
ARD INVESTMENTS, INC.
PENNSYLVANIA INDUSTRIAL ENERGY, INC.
ATLAS INFORMATION MANAGEMENT, LLC
ATLAS AMERICA, INC. (PA)
RESOURCE ENERGY, INC.
REI-NY, INC.
RESOURCE WELL SERVICES, INC.
ATLAS NOBLE CORP.
RESOURCE PROPERTIES II, INC.
RESOURCE PROPERTIES IV, INC.
RESOURCE PROPERTIES VI, INC.
RESOURCE PROPERTIES VIII, INC.
RESOURCE PROPERTIES XII, INC.
RESOURCE PROPERTIES XIV, INC.
RESOURCE PROPERTIES XV, INC.
RESOURCE PROPERTIES XVII, INC.
RESOURCE PROPERTIES XVIII, INC.
RESOURCE PROPERTIES XX, INC.
RESOURCE PROPERTIES XXII, INC.
RESOURCE PROPERTIES XXIII, INC.
RESOURCE PROPERTIES XXIV, INC.
RESOURCE PROPERTIES XXV, INC.
RESOURCE PROPERTIES XXVI, INC.
RESOURCE PROPERTIES XXVII, INC.
RESOURCE PROPERTIES XXVIII, INC.
RESOURCE PROPERTIES XXIX, INC.
RESOURCE PROPERTIES XXX, INC.
RESOURCE PROPERTIES XXXI, INC.
RESOURCE PROPERTIES XXXII, INC.
RESOURCE PROPERTIES XXXIII, INC.
RESOURCE PROPERTIES XXXIV, INC.
RESOURCE PROPERTIES XXXV, INC.
RESOURCE PROPERTIES XXXVI, INC.
RESOURCE PROPERTIES XXXVIII, INC.
RESOURCE PROPERTIES XL, INC.
RESOURCE PROPERTIES XLI, INC.
RESOURCE PROPERTIES XLII, INC.
RESOURCE PROPERTIES XLIV, INC.
RESOURCE PROPERTIES XLVI, INC.
RESOURCE PROPERTIES XLVII, INC.
RESOURCE PROPERTIES XLIX, INC.
RESOURCE PROPERTIES 50, INC.
RESOURCE PROPERTIES 51, INC.
RESOURCE PROPERTIES 52, INC.
RESOURCE PROPERTIES 53, INC.
RESOURCE PROPERTIES 54, INC.
RESOURCE FINANCIAL FUND
MANAGEMENT, INC.
TRAPEZA FUNDING, LLC
By:
----------------------------------
Name:
Title:
SCHEDULE I
Principal Amount of Additional
Total Principal Amount of Notes to be Purchased if Option is
Name of Underwriter Firm Notes to be Purchased Fully Exercised
------------------- --------------------------- ----------------------------------
Bear, Xxxxxxx & Co. Inc.
Xxxxxxxx, Xxxxxxxx, Xxxxxx
& Co., Inc.
Total...... $ 30,000,000 $ 4,500,000
--------------------------- ----------------------------------
EXHIBIT A
Guarantors
Resource Capital Partners, Inc.
Atlas Energy Holdings, Inc.
RAI Ventures, Inc.
Resource Properties, Inc.
Resource Properties Loan Subsidiaries
[CP/GP, Inc.] - 96% owned by Resource Properties, Inc.
Chesterfield Mortgage Investors, Inc.
ES GP, Inc.
X.X. Xxxxxxxx Land, Inc.
RAI Financial, Inc.
Resource Commercial Mortgages, Inc.
Resource Financial Services, Inc.
Resource Housing Investors I, Inc.
Resource Housing Investors II, Inc.
Resource Housing Investors III, Inc.
Resource Housing Investors IV, Inc.
Resource Programs, Inc.
Resource Xxxxxxxxxxx, Inc.
WS Mortgage Acquisition Corp.
Resource Leasing, Inc.
FLI Holdings, Inc.
LEAF Financial Corporation
LEAF Capital Management, Inc.
LEAF Asset Management, Inc.
Lease Equity Appreciation Fund I, L.P.
Atlas America, Inc. (DE)
Viking Resources Corporation
RFI Holding Company
Viking Investments, Inc.
AIC, Inc.
Anthem Securities, Inc.
Atlas Energy Corporation
Atlas Energy Group, Inc.
AED Investments, Inc.
Atlas Resources, Inc.
ARD Investments, Inc.
Pennsylvania Industrial Energy, Inc.
Atlas Information Management, LLC
Atlas America, Inc. (PA)
Resource Energy, Inc.
REI-NY, Inc.
Resource Well Services, Inc.
Atlas Noble Corp.
Resource Properties II, Inc.
Resource Properties IV, Inc.
Resource Properties VI, Inc.
Resource Properties VIII, Inc.
Resource Properties XII, Inc.
Resource Properties XIV, Inc.
Resource Properties XV, Inc.
Resource Properties XVII, Inc.
Resource Properties XVIII, Inc.
Resource Properties XX, Inc.
Resource Properties XXII, Inc.
Resource Properties XXIII, Inc.
Resource Properties XXIV, Inc.
Resource Properties XXV, Inc.
Resource Properties XXVI, Inc.
Resource Properties XXVII, Inc.
Resource Properties XXVIII, Inc.
Resource Properties XXIX, Inc.
Resource Properties XXX, Inc.
Resource Properties XXXI, Inc.
Resource Properties XXXII, Inc.
Resource Properties XXXIII, Inc.
Resource Properties XXXIV, Inc.
Resource Properties XXXV, Inc.
Resource Properties XXXVI, Inc.
Resource Properties XXXVIII, Inc.
Resource Properties XL, Inc.
Resource Properties XLI, Inc.
Resource Properties XLII, Inc.
Resource Properties XLIV, Inc.
Resource Properties XLVI, Inc.
Resource Properties XLVII, Inc.
Resource Properties XLIX, Inc.
Resource Properties 50, Inc.
Resource Properties 51, Inc.
Resource Properties 52, Inc.
Resource Properties 53, Inc.
Resource Properties 54, Inc.
Resource Financial Fund Management, Inc.
Trapeza Funding, LLC
EXHIBIT B
Subsidiaries
ABB Associates I, Inc.
ABB Associates II, Inc.
Atlas Technologies, LLC
Atlas Pipeline Partners GP, LLC
Atlas Pipeline Partners, L.P.
Atlas Pipeline Operating Partnership, L.P.
Atlas Pipeline Ohio, LLC
Atlas Pipeline Pennsylvania, LLC
Atlas Pipeline New York, LLC
Resource Capital Partners, Inc.
Atlas Energy Holdings, Inc.
RAI Ventures, Inc.
Resource Properties, Inc.
Resource Properties Loan Subsidiaries
CP/GP, Inc.
Chesterfield Mortgage Investors, Inc.
ES GP, Inc.
X.X. Xxxxxxxx Land, Inc.
RAI Financial, Inc.
Resource Commercial Mortgages, Inc.
Resource Financial Services, Inc.
Resource Housing Investors I, Inc.
Resource Housing Investors II, Inc.
Resource Housing Investors III, Inc.
Resource Housing Investors IV, Inc.
Resource Programs, Inc.
Resource Xxxxxxxxxxx, Inc.
WS Mortgage Acquisition Corp.
Resource Leasing, Inc.
FLI Holdings, Inc.
LEAF Financial Corporation
LEAF Capital Management, Inc.
LEAF Asset Management, Inc.
Lease Equity Appreciation Fund I, L.P.
Atlas America, Inc. (DE)
Viking Resources Corporation
RFI Holding Company
Viking Investments, Inc.
AIC, Inc.
Anthem Securities, Inc.
Atlas Energy Corporation
Atlas Energy Group, Inc.
AED Investments, Inc.
Atlas Resources, Inc.
ARD Investments, Inc.
Pennsylvania Industrial Energy, Inc.
Atlas Information Management, LLC
Atlas America, Inc. (PA)
Resource Energy, Inc.
REI-NY, Inc.
Resource Well Services, Inc.
Atlas Noble Corp.
Resource Properties II, Inc.
Resource Properties IV, Inc.
Resource Properties VI, Inc.
Resource Properties VIII, Inc.
Resource Properties XII, Inc.
Resource Properties XIV, Inc.
Resource Properties XV, Inc.
Resource Properties XVII, Inc.
Resource Properties XVIII, Inc.
Resource Properties XX, Inc.
Resource Properties XXII, Inc.
Resource Properties XXIII, Inc.
Resource Properties XXIV, Inc.
Resource Properties XXV, Inc.
Resource Properties XXVI, Inc.
Resource Properties XXVII, Inc.
Resource Properties XXVIII, Inc.
Resource Properties XXIX, Inc.
Resource Properties XXX, Inc.
Resource Properties XXXI, Inc.
Resource Properties XXXII, Inc.
Resource Properties XXXIII, Inc.
Resource Properties XXXIV, Inc.
Resource Properties XXXV, Inc.
Resource Properties XXXVI, Inc.
Resource Properties XXXVIII, Inc.
Resource Properties XL, Inc.
Resource Properties XLI, Inc.
Resource Properties XLII, Inc.
Resource Properties XLIV, Inc.
Resource Properties XLVI, Inc.
Resource Properties XLVII, Inc.
Resource Properties XLIX, Inc.
Resource Properties 50, Inc.
Resource Properties 51, Inc.
Resource Properties 52, Inc.
Resource Properties 53, Inc.
Resource Properties 54, Inc.
Resource Financial Fund Management, Inc.
Trapeza Funding, LLC
ANNEX I
Form of Opinion of Xxxxxx & Xxxxxxx and/or Ledgewood Law Firm, P.C.
1. Each of the Company and its Subsidiaries (a) is duly organized
and is validly existing and in good standing under the laws of its jurisdiction
of organization, (b) has all requisite power and authority to carry on its
business as it is currently being conducted and as described in the Registration
Statement and the Prospectus and to own, lease and operate its properties, and
(c) is duly qualified and in good standing as a foreign corporation, limited
liability company or general or limited partnership, as applicable, 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 could not reasonably be expected to have a Material
Adverse Effect.
2. Each of the Company and the Guarantors has all requisite power
and authority to execute, deliver and perform its obligations under this
Agreement and each of the other Operative Documents to which it is a party and
to consummate the transactions contemplated hereby and thereby, including,
without limitation, the power and authority to issue, sell and deliver the Notes
and to issue and deliver the Guarantees as provided herein.
3. Except as set forth on Exhibit A hereto, all of the
outstanding equity interests of each subsidiary of the Company is owned,
directly or indirectly, by the Company, free and clear of any security interest,
claim, lien, limitation on voting rights or encumbrance; and all such securities
have been duly authorized, validly issued, and are fully paid and nonassessable
and were not issued in violation of any preemptive or similar rights.
4. The Underwriting Agreement has been duly and validly
authorized, executed and delivered by the Company and each of the Guarantors and
is the legally valid and binding agreement of the Company and each of the
Guarantors, enforceable against each of them in accordance with its terms.
5. The Indenture has been duly authorized by all necessary
corporate action of the Company and each of the Guarantors, and the Indenture
has been duly executed and delivered by the Company and each of the Guarantors
and is the legally valid and binding agreement of the Company and each of the
Guarantors, enforceable against each of them in accordance with its terms.
6. The Notes have been duly authorized by all necessary corporate
action of the Company and, when executed, issued and authenticated in accordance
with the terms of the Indenture and delivered to and paid for by you in
accordance with the terms of the Underwriting Agreement, will be the legally
valid and binding obligations of the Company, enforceable against the Company in
accordance with their terms.
7. The Guarantees of each of the Guarantors to be endorsed on the
Notes and included in the Indenture have been duly authorized by all necessary
corporate action of each of the Guarantors and, when executed and delivered in
accordance with the terms of the Indenture will, upon the due execution,
issuance and authentication of the Notes in accordance with the terms of the
Indenture and the delivery to and payment therefor by you in accordance with the
terms of the Underwriting Agreement, and receipt of the agreed consideration by
the Guarantors, be the legally valid and binding obligations of each of the
Guarantors, enforceable against each of them in accordance with their terms.
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8. The Prospectus contains a summary of the terms of the
Indenture which, is accurate in all material respects. The statements under the
captions "Description of the Notes" and "Plan of Distribution" in the Prospectus
and Items 14 and 15 of Part II of the Registration Statement, insofar as such
statements constitute a summary of the legal matters, documents or proceedings
referred to therein, present fairly in all material respects, such legal
matters, documents and proceedings.
9. To the best of such counsel's knowledge, neither the Company
nor any of its Subsidiaries is (a) in violation of its charter, bylaws or other
organizational documents or (b) in default in the performance of any bond,
debenture, note, indenture, mortgage, deed of trust or other agreement or
instrument to which it is a party or by which it is bound or to which any of its
properties is subject, which, in the case of clause (b), singly or in the
aggregate, could reasonably be expected to have a Material Adverse Effect.
10. None of (a) the execution, delivery or performance by the
Company or any of the Guarantors of the Underwriting Agreement or any of the
other Operative Documents to which it is a party, (b) the issuance and sale of
the Notes and the issuance of the Guarantees and (c) consummation by the Company
of the transactions described in the Prospectus under the caption "Use of
Proceeds," violates, conflicts with or constitutes a breach of any of the terms
or provisions of, or a default under (or an event that with notice or the lapse
of time, or both, would constitute a default under), or requires consent under,
or results in the imposition of a lien or encumbrance on any properties of the
Company or any of its Subsidiaries, or an acceleration of any indebtedness of
the Company or any of its Subsidiaries pursuant to, (i) the charter, bylaws or
other organizational documents of the Company or any of its Subsidiaries, (ii)
[except as set forth on Schedule __ hereto,] any bond, debenture, note,
indenture, mortgage, deed of trust or other agreement or instrument known to
such counsel to which the Company or any of its Subsidiaries is a party or by
which any of them or their property is or may be bound, (iii) any statute, rule
or regulation applicable to the Company or any its Subsidiaries or any of their
assets or properties or (iv) to the best of such counsel's knowledge, any
judgment, order or decree of any court or governmental agency or authority
having jurisdiction over the Company or any of its Subsidiaries or any of their
assets or properties. No permit, consent, approval, certificate, authorization
or order of any federal or state court, governmental agency or body is required
in connection with the (i) execution, delivery and performance by the Company or
any of the Guarantors of this Agreement or any of the other Operative Documents
to which it is a party or (ii) issuance and sale of the Notes, the issuance of
the Guarantees and the transactions contemplated hereby and thereby, except (A)
such permits, consents, approvals, certificates and similar authorizations
required under the Act, the Exchange Act and the trust Indenture Act, (B) such
permits consents, approvals, certificates and similar authorizations required
under state securities or "Blue Sky" laws, as to which such counsel need not
express any opinion and (C) as described in the Prospectus.
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11. To the best of such counsel's knowledge, there is (a) no
action, suit, investigation or proceeding before or by any court, arbitrator or
governmental agency, body or official, domestic or foreign, now pending or
threatened or contemplated to which the Company or any of its Subsidiaries is or
may be a party or to which the business or property of the Company or any of its
Subsidiaries, is or may be subject, (b) no statute, rule, regulation or order
that has been enacted, adopted or issued by any governmental agency or that has
been proposed by any governmental body and (c) no injunction, restraining order
or order of any nature by a federal or state court or foreign court of competent
jurisdiction to which the Company or any of its Subsidiaries is or may be
subject or to which the business, assets, or property of the Company or any of
its Subsidiaries is or may be subject, that, in the case of clauses (a), (b) and
(c) above, is required to be disclosed in the Preliminary Prospectus and the
Prospectus and that is not so disclosed.
12. None of the Company or any of its Subsidiaries is an
"investment company" or a company "controlled" by an "investment company" within
the meaning of the Investment Company Act.
13. To the best of such counsel's knowledge, there are no holders
of securities of the Company or any of its Subsidiaries who, by reason of the
execution by the Company and the Guarantors of the Underwriting Agreement or any
other Operative Document to which it is a party or the consummation by the
Company or any of the Guarantors of the transactions contemplated thereby, have
the right to request or demand that the Company or any of its Subsidiaries
register under the Act or analogous foreign laws and regulations securities held
by them.
14. To the best of such counsel's knowledge, except as disclosed
on Exhibit A hereto, there are not currently any outstanding subscriptions,
rights, warrants, calls, commitments of sale or options to acquire, or
instruments convertible into or exchangeable for, any capital stock or other
equity interest of any Subsidiary of the Company.
15. The Registration Statement is effective under the Securities
Act, and, to the best knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement or any post-effective amendment
thereof has been issued and no proceedings therefor have been initiated or
threatened by the Commission and all filings required by Rule 424(b) and Rule
430A under the Securities Act have been made.
16. 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 applicable to an indenture which is qualified thereunder.
17. The Registration Statement and the Prospectus and any
amendments thereof or supplements thereto (other than the financial statements
and schedules and other financial data included or incorporated by reference
therein, as to which no opinion need be rendered) comply as to form in all
material respects with the requirements of the Securities Act, the Exchange Act
and the Rules and Regulations. The documents incorporated by reference in the
Registration Statement and the Prospectus or any amendment thereof or supplement
thereto (other than the financial statements and schedules and other financial
data included or incorporated by reference therein, as to which no opinion need
be rendered), when they became effective or were filed with the Commission, as
the case may be, comply as to form in all material respects with the
requirements of the Exchange Act.
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18. To the best knowledge of such counsel, no contract or
agreement is required to be filed as an exhibit to the Registration Statement
that is not so filed.
In addition, such counsel shall state that it has participated in
conferences with officers and other representatives of the Company and the
Guarantors, representatives of the independent certified public accountants of
the Company and the Guarantors and the Underwriters and their representatives at
which the contents of the Prospectus and related matters were discussed and,
although it is not passing upon, and does not assume any responsibility for, the
accuracy, completeness or fairness of the statements contained in the Prospectus
and has not made any independent check or verification thereof, during the
course of such participation, no facts have come to its attention which led it
to believe that either the Registration Statement, at the time it became
effective (including the information deemed to be part of the Registration
Statement at the time of effectiveness pursuant to Rule 430A(b) or Rule 434, if
applicable), or any amendment thereof made prior to the Closing Date, as of the
date of such amendment, contained or incorporated by reference any untrue
statement of a material fact or omitted to state any 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 or that the
Prospectus (including the documents incorporated by reference therein), as of
its date (or any amendment thereof or supplement thereto made prior to the
Closing Date as of the date of such amendment or supplement) and as of the
Closing Date, contained or contains any untrue statement of a material fact or
omitted to state any 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 as to financial statements and other financial
data included therein or omitted therefrom).
The opinions rendered in paragraphs 4, 5, 6 and 7 relating to the
enforceability of the Underwriting Agreement, the Indenture, the Notes and the
Guarantees, respectively, are subject to the following exceptions, limitations
and qualifications: (i) the effect of bankruptcy, insolvency, reorganization,
fraudulent transfer, moratorium or other similar laws now or hereafter in effect
relating to or affecting the rights and remedies of creditors; (ii) the effect
of general principles of equity, whether enforcement is considered in a
proceeding in equity or at law, and the discretion of the court before which any
proceeding therefor may be brought; (iii) the unenforceability under certain
circumstances under law or court decisions of provisions providing for the
indemnification of or contribution to a party with respect to a liability where
such indemnification or contribution is contrary to public policy; (iv) we
express no opinion concerning the enforceability of the waiver of rights or
defenses contained in Section 4.06 of the Indenture; and (v) the
unenforceability of any provision requiring the payment of attorneys' fees,
except to the extent a court determines such fees to be reasonable.
We have not been requested to express and, with your consent, do not
render any opinion as to the applicability to the obligations of the Company or
the Guarantors under the Indenture, the Notes and the Guarantees of Section 548
of the United States Bankruptcy Code or applicable state law (including, without
limitation, Article 10 of the New York Debtor and Creditor Law) relating to
fraudulent transfers and obligations.
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