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EXHIBIT 1
HUSSMANN INTERNATIONAL, INC.
Senior Note Offering
UNDERWRITING AGREEMENT
[DATE]
BancAmerica Xxxxxxxxx Xxxxxxxx
Credit Suisse First Boston Corporation
NationsBanc Xxxxxxxxxx Securities, Inc.
c/o BancAmerica Xxxxxxxxx Xxxxxxxx
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
Hussmann International, Inc., a Delaware corporation (the
"Company"), proposes to issue and sell to the underwriters named in Schedule I
certain of its debt securities specified in Schedule II (the "Offered
Securities") on the terms and conditions stated herein and in Schedule II. The
Offered Securities will be issued pursuant to an indenture dated as of [DATE]
(the "Indenture") between the Company and The Bank of New York, as trustee (the
"Trustee"). As used herein, unless the context otherwise requires, the term
"Underwriters" shall mean the firms named as Underwriters in Schedule I and the
term "you" shall mean the Underwriters, if no underwriting syndicate is
purchasing the Offered Securities, or the representatives of the
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Underwriters, if an underwriting syndicate is purchasing the Offered
Securities, as indicated in Schedule I.
The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 (REGISTRATION NO.
333- ), including a prospectus, relating to certain of its debt securities
(including the Offered Securities) and the offering thereof from time to time
in accordance with Rule 415 under the Securities Act of 1933, as amended (the
"1933 Act"), and including a preliminary prospectus supplement relating to the
Offered Securities. Such registration statement has been declared effective by
the Commission. As provided in Section 3(a), a prospectus supplement reflecting
the terms of the Offered Securities, the terms of the offering thereof and the
other matters set forth therein has been prepared and will be filed pursuant to
Rule 424 under the 1933 Act. Such prospectus supplement, in the form first
filed after the date hereof pursuant to Rule 424, is herein referred to as the
"Prospectus Supplement." Such registration statement, as amended at the date
hereof, including the exhibits thereto and the documents incorporated by
reference therein, is herein called the "Registration Statement," and the basic
prospectus included therein relating to all offerings of securities under the
Registration Statement, as supplemented by the Prospectus Supplement, is herein
called the "Prospectus," except that, if such basic prospectus is amended or
supplemented on or prior to the date on which the Prospectus Supplement is
first filed pursuant to Rule 424, the term "Prospectus" shall refer to the
basic prospectus as so amended or supplemented and as supplemented by the
Prospectus Supplement, in either case including the documents filed by the
Company with the Commission pursuant to the Securities Exchange Act of 1934, as
amended (the "1934 Act"), that are incorporated by reference therein.
Section 1. Representations and Warranties. (a) The Company
represents and warrants to and agrees with each Underwriter that:
(i) On the original effective date of the Registration
Statement, on the effective date of the most recent post-effective
amendment thereto, if any, and on the date of the filing by the Company
of any annual report on Form 10-K after the original filing of the
Registration Statement, the Registration Statement complied in all
material respects with the requirements of the 1933 Act and the rules
and regulations of the Commission thereunder (the "1933 Act
Regulations"), the Trust Indenture Act of 1939, as amended (the "1939
Act"), and the rules and regulations of the Commission under the 1939
Act (the "1939 Act Regulations") and did not contain an untrue statement
of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading; on the date hereof and at the Closing Date (as defined
below), the Prospectus, and any amendments thereof and supplements
thereto, complies and will comply in all material respects with the
requirements of the 1933 Act, the 1933 Act Regulations, the 1939 Act and
the 1939 Act Regulations and the Prospectus, and any amendment thereof
and supplements thereto, does not include and will not include an untrue
statement of a material fact and does not omit and will not omit to
state a material
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fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; provided,
however, that the Company makes no representations or warranties as to
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by any Underwriter
through you expressly for use in the Registration Statement or the
Prospectus or that part of the Registration Statement that constitutes
the Statement of Eligibility on Form T-1 under the 1939 Act of the
Trustee. At the Closing Date, the Designated Indenture (as defined
below) will comply in all material respects with the requirements of the
1939 Act and the 1939 Act Regulations.
(ii) The documents incorporated by reference in the Prospectus,
at the time they were filed with the Commission, complied in all
material respects with the requirements of the 1934 Act, and the rules
and regulations of the Commission thereunder (the "1934 Act
Regulations"), and when read together with the other information
included in or incorporated by reference in the Prospectus, do not and
will not, on the date hereof and at the Closing Date, include an untrue
statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(iii) KPMG Peat Marwick LLP, who have reported upon the audited
financial statements and schedules included or incorporated by reference
in the Registration Statement, are independent public accountants as
required by the 1933 Act and the 1933 Act Regulations.
(iv) This Agreement has been duly authorized, executed and
delivered by the Company.
(v) The combined or consolidated financial statements included
or incorporated by reference in the Registration Statement present
fairly the combined or consolidated financial position of the Company
and its subsidiaries as of the dates indicated and the combined or
consolidated results of operations and the combined or consolidated cash
flows of the Company and its subsidiaries for the periods specified.
Except as otherwise stated therein, such financial statements have been
prepared in conformity with generally accepted accounting principles
applied on a consistent basis throughout the periods involved. The
financial statement schedules, if any, included or incorporated by
reference in the Registration Statement present fairly the information
required to be stated therein. The selected financial data included or
incorporated by reference in the Prospectus present fairly the
information shown therein and, except for the pro forma financial
information and as otherwise stated therein, have been compiled on a
basis consistent with that of the
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audited combined or consolidated financial statements included or
incorporated by reference in the Registration Statement.
(vi) The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware
with corporate power and authority under such laws to own, lease and
operate its properties and conduct its business as described in the
Prospectus; and the Company is duly qualified to transact business as a
foreign corporation and is in good standing in each other jurisdiction
in which it owns or leases property of a nature, or transacts business
of a type, that would make such qualification necessary, except to the
extent that the failure to so qualify or be in good standing would not
have a material adverse effect on condition (financial or otherwise),
earnings or business affairs of the Company and its subsidiaries,
considered as one enterprise (a "Material Adverse Effect").
(vii) The Company's only direct and indirect subsidiaries are
listed in Exhibit A (each individually, a "Subsidiary", and
collectively, the "Subsidiaries"). Each Subsidiary is a corporation
duly organized, validly existing and in good standing under the laws of
the jurisdiction of its incorporation with corporate power and authority
under such laws to own, lease and operate its properties and conduct its
business; and each Subsidiary is duly qualified to transact business as
a foreign corporation and is in good standing in each other jurisdiction
in which it owns or leases property of a nature, or transacts business
of a type, that would make such qualification necessary, except to the
extent that the failure to so qualify or be in good standing would not
have a Material Adverse Effect. All of the outstanding shares of capital
stock of each Subsidiary have been duly authorized and validly issued
and are fully paid and non-assessable and, except as set forth in
Exhibit A, are owned by the Company, directly or through one or more
Subsidiaries, free and clear of any pledge, lien, security interest,
charge, claim, equity or encumbrance of any kind.
(viii) The Indenture, each supplement thereto, if any, to the
date hereof and the supplement thereto or board or other corporate
resolution setting forth the terms of the Offered Securities (the
Indenture, as so supplemented by such supplement or supplements and
resolutions, being herein referred to as the "Designated Indenture"),
have been duly authorized by the Company. The Indenture as executed is
or will be substantially in the form filed as an exhibit to the
Registration Statement. The Designated Indenture, when duly executed
and delivered (to the extent required by the Indenture) by the Company
and the Trustee, will constitute a valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms,
except as enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar laws affecting
enforcement of creditors' rights generally and except as enforcement
thereof is subject to general principles of equity (regardless of
whether enforcement is considered in a proceeding in
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equity or at law); and the description of the Indenture in the
Prospectus fairly summarizes, in all material respects, the matters
referred to therein.
(ix) The Offered Securities have been duly authorized by the
Company. When executed, authenticated, issued and delivered in the
manner provided for in the Designated Indenture and sold and paid for as
provided herein, the Offered Securities will constitute valid and
binding obligations of the Company entitled to the benefits of the
Designated Indenture and enforceable against the Company in accordance
with their terms, except as enforcement thereof may be limited by
bankruptcy, insolvency (including, without limitation, all laws relating
to fraudulent transfers), reorganization, moratorium or similar laws
affecting enforcement of creditors' rights generally and except as
enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in
equity or at law); and the description of the Offered Securities in the
Prospectus fairly summarizes, in all material respects, the matters
referred to therein.
(x) All of the outstanding shares of capital stock of the
Company have been duly authorized and validly issued and are fully paid
and non-assessable.
(xi) Since the respective dates as of which information is given
in the Registration Statement and the Prospectus, except as otherwise
stated therein or contemplated thereby, there has not been (A) any
material adverse change in the condition (financial or otherwise),
earnings or business affairs of the Company and its Subsidiaries,
considered as one enterprise, whether or not arising in the ordinary
course of business (a "Material Adverse Change"), (B) any transaction
entered into by the Company or any Subsidiary, other than in the
ordinary course of business, that is material to the Company and its
Subsidiaries, considered as one enterprise, or (C) any dividend or
distribution of any kind declared, paid or made by the Company on its
capital stock, other than the ordinary quarterly dividend paid or
payable by the Company to holders of its Common Stock.
(xii) Neither the Company nor any Subsidiary is in default in
the performance or observance of any obligation, agreement, covenant or
condition contained in any material contract, indenture, mortgage, loan
agreement, note, lease or other material agreement or instrument to
which it is a party or by which it may be bound or to which any of its
properties may be subject. The execution and delivery by the Company of
this Agreement, the Indenture and any supplement to the Indenture, the
issuance and delivery of the Offered Securities, the consummation by the
Company of the transactions contemplated herein and in the Registration
Statement and compliance by the Company with the terms of this Agreement
and the Designated Indenture do not and will not result in any violation
of the certificate of incorporation or by-laws of the Company or any
Subsidiary, and do
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not and will not violate, or result in a breach of any of the terms or
provisions of, or constitute a default under, or result in the creation
or imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any Subsidiary under (A) any material contract,
indenture, mortgage, loan agreement, note, lease or other material
agreement or instrument to which the Company or any Subsidiary is a
party or by which it may be bound or to which any of its properties may
be subject or (B) any existing applicable law, rule, regulation,
judgment, order or decree or determination of any government,
governmental instrumentality or court, domestic or foreign, having
jurisdiction over the Company or any Subsidiary or any of their
respective properties.
(xiii) No authorization, approval, consent or license of any
government, governmental instrumentality or court, domestic or foreign
(other than under the 1933 Act, the 1939 Act and the securities or blue
sky laws of the various states), is required for the valid
authorization, issuance, sale and delivery of the Offered Securities or
for the execution, delivery or performance of the Designated Indenture
by the Company.
(xiv) Except as disclosed in the Prospectus, there is no action,
suit or proceeding before or by any government, governmental
instrumentality or court, domestic or foreign, now pending or, to the
knowledge of the Company, threatened against or affecting the Company or
any Subsidiary that is required to be disclosed in the Prospectus or
that could reasonably be expected to result in any Material Adverse
Effect, or that could have a Material Adverse Effect on the consummation
of the transactions contemplated in this Agreement; no pending legal or
governmental proceedings that are not described in the Prospectus to
which the Company or any Subsidiary is a party or which affect any of
their respective properties, including ordinary routine litigation
incidental to the business of the Company or any Subsidiary, could
reasonably be expected, individually or in the aggregate, to have a
Material Adverse Effect.
(xv) There are no contracts or documents of a character required
to be described in the Registration Statement or the Prospectus or to be
filed as exhibits to the Registration Statement that are not described
and filed (or incorporated by reference) as required.
(xvi) The Company and its Subsidiaries each owns or possesses
all governmental licenses, permits, certificates, consents, orders,
approvals and other authorizations (collectively, "Governmental
Licenses") that are material to the Company and its Subsidiaries taken
as a whole, and neither the Company nor any Subsidiary has received any
notice of proceedings relating to revocation or modification of any such
Governmental Licenses.
(xvii) The Company has not taken and will not take, directly or
indirectly, any action designed to, or that might be reasonably expected
to, cause or result in stabilization
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or manipulation of the price of the Offered Securities and the Company
has not distributed and will not distribute any prospectus (as such term
is defined in the 1933 Act and the 1933 Act Regulations) in connection
with the offering and sale of the Offered Securities other than any
preliminary prospectus filed with the Commission or the Prospectus or
other material permitted by the 1933 Act or the 1933 Act Regulations.
(xviii) The Company is not an investment company or a company
controlled by an investment company under the Investment Company Act of
1940.
(b) Any certificate signed by any officer of the Company or any
Subsidiary and delivered to you or to counsel for the Underwriters in
connection with the offering of the Offered Securities shall be deemed a
representation and warranty by the Company to each Underwriter as to the
matters covered thereby.
Section 2. Purchase and Sale. (a) On the basis of the
representations and warranties herein contained and subject to the terms and
conditions herein set forth, the Company agrees to sell to each Underwriter,
and each Underwriter agrees, severally and not jointly, to purchase from the
Company, at the purchase price to the Underwriters set forth in Schedule II,
the principal amount of Offered Securities set forth opposite the name of such
Underwriter in Schedule I.
(b) Payment of the purchase price for, and delivery of, the
Offered Securities shall be made at the date and time specified in Schedule II,
or at such other date and time as shall be agreed upon by the Company and you,
or as shall otherwise be provided in Section 10 (such date and time of payment
and delivery being herein called the "Closing Date"). Payment shall be made to
the Company by you hereunder by wire transfer payable in immediately available
funds to an account specified by the Company, against delivery to you for the
respective accounts of the several Underwriters of the Offered Securities.
Delivery of the Offered Securities shall be made through the facilities of the
Depository Trust Company unless you shall otherwise instruct.
Section 3. Certain Covenants of the Company. The Company covenants with
each Underwriter as follows:
(a) If requested by you in connection with the offering of the
Offered Securities, the Company will prepare a preliminary prospectus
supplement containing such information as you and the Company deem
appropriate, and, immediately following the execution of this Agreement,
the Company will prepare a Prospectus Supplement that complies with the
1933 Act and the 1933 Act Regulations and that sets forth the principal
amount of the Offered Securities and their terms not otherwise specified
in the Indenture,
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the name of each Underwriter participating in the offering and the
principal amount of the Offered Securities that each severally has
agreed to purchase, the name of each Underwriter, if any, acting as
representative of the Underwriters in connection with the offering, the
price at which the Offered Securities are to be purchased by the
Underwriters from the Company, any initial public offering price, any
selling concession and reallowance and any delayed delivery
arrangements, and such other information as you and the Company deem
appropriate in connection with the offering of the Offered Securities.
The Company will promptly transmit copies of the Prospectus Supplement
to the Commission for filing pursuant to Rule 424 under the 1933 Act and
will furnish to the Underwriters as many copies of any preliminary
prospectus supplement and the Prospectus as you shall reasonably
request.
(b) The Company will comply with the 1933 Act and the 1933 Act
Regulations, and the 1934 Act and the 1934 Act Regulations, so as to
permit the completion of the distribution of the Offered Securities as
contemplated in this Agreement and in the Prospectus. If at any time
when the Prospectus is required by the 1933 Act to be delivered in
connection with sales of the Offered Securities any event shall occur or
condition exist as a result of which it is necessary, in the opinion of
counsel for the Underwriters or counsel for the Company, to amend the
Registration Statement or amend or supplement the Prospectus in order
that the Prospectus will not include an untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements therein not misleading in the light of the circumstances
existing at the time it is delivered to a purchaser, or if it shall be
necessary, in the opinion of either such counsel, at any such time to
amend the Registration Statement or amend or supplement the Prospectus
in order to comply with the requirements of the 1933 Act or the 1933 Act
Regulations, the Company will promptly prepare and file with the
Commission, subject to Section 3(d), such amendment or supplement as may
be necessary to correct such untrue statement or omission or to make the
Registration Statement or the Prospectus comply with such requirements.
(c) During the period when the Prospectus is required by the
1933 Act to be delivered in connection with sales of the Offered
Securities, the Company will, subject to Section 3(d), file promptly all
documents required to be filed with the Commission pursuant to Section
13, 14 or 15(d) of the 1934 Act.
(d) During the period when the Prospectus is required by the
1933 Act to be delivered in connection with sales of the Offered
Securities, the Company will inform you of its intention to file any
amendment to the Registration Statement, any supplement to the
Prospectus or any document that would as a result thereof be
incorporated by reference in the Prospectus; will furnish you with
copies of any such amendment, supplement or other document and afford a
reasonable opportunity to comment on such amendment, supplement or other
document.
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(e) During the period when the Prospectus is required by the
1933 Act to be delivered in connection with sales of the Offered
Securities, the Company will notify you immediately, and confirm the
notice in writing, (i) of the effectiveness of any amendment to the
Registration Statement, (ii) of the mailing or the delivery to the
Commission for filing of any supplement to the Prospectus or any
document that would as a result thereof be incorporated by reference in
the Prospectus, (iii) of the receipt of any comments from the Commission
with respect to the Registration Statement, the Prospectus or the
Prospectus Supplement, (iv) of any request by the Commission for any
amendment to the Registration Statement or any supplement to the
Prospectus or for additional information relating thereto or to any
document incorporated by reference in the Prospectus and (v) of the
issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement, of the suspension of the
qualification of the Offered Securities for offering or sale in any
jurisdiction, or of the institution or threatening of any proceeding for
any of such purposes. The Company will use its best efforts to prevent
the issuance of any such stop order or of any order suspending such
qualification and, if any such order is issued, to obtain the lifting
thereof at the earliest possible moment.
(f) The Company has furnished or will furnish to you as many
conformed copies of the Registration Statement (as originally filed) and
of all amendments thereto, whether filed before or after the
Registration Statement became effective, copies of all exhibits and
documents filed therewith or incorporated by reference therein (through
the end of the period when the Prospectus is required by the 1933 Act to
be delivered in connection with sales of the Offered Securities) and
conformed copies of all consents and certificates of experts, as you may
reasonably request, and has furnished or will furnish to you, for each
of the Underwriters, one conformed copy of the Registration Statement
(as originally filed) and of each amendment thereto (including documents
incorporated by reference into the Prospectus).
(g) The Company will take such action as you shall reasonably
request to arrange for the qualification of the Offered Securities for
offering and sale under the applicable securities laws of such states
and other jurisdictions as you may designate and will maintain such
qualifications in effect for so long as required for the distribution of
the Offered Securities. The Company will file such statements and
reports as may be required by the laws of each jurisdiction in which the
Offered Securities have been qualified as above provided.
Notwithstanding the preceding sentences, the Company shall not be
obligated to qualify as a foreign corporation in any jurisdiction in
which it is not so qualified or subject itself to taxation in respect of
doing business in any jurisdiction in
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which it is not otherwise so subject or file a general consent to
service of process in any jurisdiction.
(h) The Company will make generally available to its security
holders as soon as practicable, but not later than 45 days after the
close of the period covered thereby (or 90 days, in the case of a period
that is also the Company's fiscal year), an earnings statement of the
Company (in form complying with the provisions of Rule 158 of the 1933
Act Regulations), covering (i) a period of 12 months beginning after the
effective date of the Registration Statement and covering a period of 12
months beginning after the effective date of any post-effective
amendment to the Registration Statement but not later than the first day
of the Company's fiscal quarter next following such respective effective
dates and (ii) a period of 12 months beginning after the date of this
Agreement but not later than the first day of the Company's fiscal
quarter next following the date of this Agreement.
(i) If and to the extent specified in Schedule II, the Company
will use its best efforts to cause the Offered Securities to be duly
authorized for listing on such exchange specified in Schedule II and to
be registered under the 1934 Act.
(j) For a period of three years after the Closing Date, the
Company will furnish to you and, upon request, to each Underwriter,
copies of all annual reports, quarterly reports and current reports
filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other
similar forms as may be designated by the Commission, and such other
documents, reports and information as shall be furnished by the Company
to its stockholders or security holders generally.
(k) Between the date hereof and the date of delivery of the
Offered Securities, the Company will not, without your prior consent,
offer or sell, enter into any agreement to sell, or announce the
offering of, any debt securities issued or guaranteed by the Company
with maturities longer than one year (other than the Offered
Securities). This limitation is not applicable to such offerings as may
be specified in Schedule II.
Section 4. Payment of Expenses. The Company will pay and bear
all costs and expenses incident to the performance of its obligations under
this Agreement, including (a) the preparation, printing and filing of the
Registration Statement (including financial statements and exhibits), as
originally filed and as amended, any preliminary prospectus supplements and the
Prospectus and any amendments or supplements thereto, and the cost of
furnishing copies thereof to the Underwriters, (b) the preparation, printing
and distribution of this Agreement, the Designated Indenture, the Offered
Securities and the Blue Sky Survey, (c) the delivery of the Offered Securities
to the Underwriters, (d) the fees and disbursements of the Company's counsel
and accountants, (e) the qualification of the Offered Securities under the
applicable securities laws in accordance with Section 3(g) and any filing for
review of the offering with the National Association of Securities Dealers,
Inc., including filing fees and reasonable fees and disbursements
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of counsel for the Underwriters in connection therewith and in connection with
the Blue Sky Survey, (f) any fees charged by rating agencies for rating the
Offered Securities, (g) the fees and expenses of the Trustee, including the
fees and disbursements of counsel for the Trustee, in connection with the
Designated Indenture and the Offered Securities and (h) the listing fees and
expenses incurred in connection with any listing of the Offered Securities on
the New York Stock Exchange or any other exchange.
If this Agreement is terminated by you in accordance with the
provisions of Section 5 or 9(a)(i), the Company shall reimburse the
Underwriters for all their reasonable out-of-pocket expenses, including the
reasonable fees and disbursements of counsel for the Underwriters.
Section 5. Conditions of Underwriters' Obligations. Except as
otherwise provided in Schedule II, the obligations of the Underwriters to
purchase and pay for the Offered Securities pursuant to this Agreement are
subject to the accuracy of the representations and warranties of the Company
contained herein or in certificates of any officer of the Company or any
Subsidiary delivered pursuant to the provisions hereof, to the performance by
the Company of its obligations hereunder, and to the following further
conditions:
(a) At the Closing Date, no stop order suspending the
effectiveness of the Registration Statement shall have been issued under
the 1933 Act and no proceedings for that purpose shall have been
instituted or shall be pending or, to your knowledge or the knowledge of
the Company, shall be contemplated by the Commission, and any request on
the part of the Commission for additional information shall have been
complied with to the satisfaction of counsel for the Underwriters.
(b) At the Closing Date, you shall have received signed opinions
of Sidley & Austin, counsel for the Company, and Xxxxxx Xxxxxxx, General
Counsel of the Company, dated as of the Closing Date, together with
signed or reproduced copies of such opinion for each of the other
Underwriters, in form and substance satisfactory to counsel for the
Underwriters, to the effect stated in Schedule III hereto.
(c) At the Closing Date, you shall have received a signed
opinion of Cleary, Gottlieb, Xxxxx & Xxxxxxxx, counsel for the
Underwriters, dated as of the Closing Date, together with signed or
reproduced copies of such opinion for each of the other Underwriters,
with respect to the sufficiency of all corporate proceedings and other
legal matters relating to this Agreement, the Offered Securities, the
Registration Statement, the Prospectus and other related matters as you
shall have requested.
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(d) You shall have received a certificate of the President or a
Vice President, and the Treasurer or the Controller, of the Company,
dated as of the Closing Date, to the effect that (i) there has not been,
since the respective dates as of which information is given in the
Registration Statement and the Prospectus, any Material Adverse Change,
(ii) the Company has complied with all agreements and satisfied all
conditions on its part to be performed and satisfied at or prior to the
Closing Date and (iii) the representations and warranties of the Company
set forth in Section 1(a) are true and correct in all material respects
as though expressly made at and as of the Closing Date.
(e) You shall have received on the Closing Date a letter from
KPMG Peat Marwick LLP, independent public accountants (or other
independent public accountants acceptable to you), dated as of the
Closing Date, in form and substance satisfactory to you, containing
statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained or
incorporated by reference in the Registration Statement or the
Prospectus.
(f) Subsequent to the execution and delivery of this Agreement
and prior to the Closing Date, there shall not have been any
downgrading, nor any notice given of any intended or potential
downgrading or of a possible change that does not indicate the direction
of the possible change, in the rating accorded any of the Company's
securities, including the Offered Securities, by any "nationally
recognized statistical rating organization," as such term is defined for
purposes of Rule 436(g)(2) under the 1933 Act.
(g) At the Closing Date, counsel for the Underwriters shall have
been furnished with all such documents, certificates and opinions as
they may request for the purpose of enabling them to pass upon the
issuance and sale of the Offered Securities as herein contemplated and
the other matters to be addressed in the opinion referred to in Section
5(c) and in order to evidence the accuracy and completeness of any of
the representations, warranties or statements of the Company, the
performance of any of the covenants of the Company, or the fulfillment
of any of the conditions herein contained; and all proceedings taken by
the Company at or prior to the Closing Date in connection with the
authorization, issuance and sale of the Offered Securities as herein
contemplated shall be satisfactory in form and substance to the
Underwriters and to counsel for the Underwriters.
If any of the conditions specified in this Section 5 shall not
have been fulfilled when and as required by this Agreement, this Agreement may
be terminated by you on notice to the Company at any time at or prior to the
Closing Date, and such termination shall be without liability of any party to
any other party, except as provided in Section 4. Notwithstanding any such
termination, the provisions of Sections 6, 7 and 8 shall remain in effect.
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The documents required to be delivered by this Section 5 shall be
delivered on the Closing Date at the time and location specified in Schedule
II.
Section 6. Indemnification. (a) The Company agrees to indemnify
and hold harmless each Underwriter, and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever (including but not limited to attorneys' fees and
disbursements), as incurred, arising out of an untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), including all
documents incorporated therein by reference, or the omission or alleged
omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading or arising out
of an untrue statement or alleged untrue statement of a material fact
included in any preliminary prospectus supplement or the Prospectus (or
any amendment or supplement thereto) or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever (including but not limited to attorneys' fees and
disbursements), as incurred, to the extent of the aggregate amount paid
in settlement of any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, if such settlement is effected
with the written consent of the Company; and
(iii) against any and all expense whatsoever (including but not
limited to attorneys' fees and disbursements), as incurred, reasonably
incurred in investigating, preparing or defending against any
litigation, or investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue statement
or omission, to the extent that any such expense is not paid under
subparagraph (i) or (ii) above;
provided, however, that this indemnity does not apply to any loss, liability,
claim, damage or expense to the extent arising out of an untrue statement or
omission or alleged untrue statement or omission (i) made in reliance upon and
in conformity with written information furnished to the Company by any
Underwriter through you expressly for use in the Registration Statement (or any
amendment thereto) or any preliminary prospectus supplement or the Prospectus
(or any
14
amendment or supplement thereto) or (ii) made in any Statement of Eligibility
on Form T-1 filed as an exhibit to the Registration Statement; provided further
that the foregoing indemnity agreement with respect to any Prospectus shall not
inure to the benefit of any Underwriter from whom the person asserting any such
losses, claims, damages or liabilities purchased Offered Securities, or any
person controlling such Underwriter, if a copy of the Prospectus (as then
amended or supplemented if the Company shall have furnished any amendments or
supplements thereto) was not sent or given by or on behalf of such Underwriter
to such person, if required by law so to have been delivered, at or prior to
the written confirmation of the sale of the Offered Securities to such person,
and if the Prospectus (as so amended and supplemented) would have cured the
defect giving rise to such losses, claims, damages or liabilities.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, its directors, each of its officers who signed the
Registration Statement, and each person, if any, who controls the Company
within the meaning of Section 15 of the 1933 Act, against any and all loss,
liability, claim, damage and expense described in the indemnity contained in
Section 6(a), as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto) or any preliminary prospectus supplement
or the Prospectus (or any amendment or supplement thereto) in reliance upon and
in conformity with written information furnished to the Company by such
Underwriter through you expressly for use in the Registration Statement (or any
amendment thereto) or such preliminary prospectus supplement or the Prospectus
(or any amendment or supplement thereto).
(c) Each indemnified party shall give prompt notice to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve it from any liability which it may have otherwise than
on account of this indemnity agreement. If it so elects within a reasonable
time after receipt of such notice, an indemnifying party, jointly with any
other indemnifying parties receiving such notice, may assume the defense of
such action with counsel chosen by it and approved by the indemnified parties
defendant in such action, unless such indemnified parties reasonably object to
such assumption on the ground that there may be legal defenses available to
them which are different from or in addition to those available to such
indemnifying party. If an indemnifying party assumes the defense of such
action, the indemnifying party shall not be liable for any fees and expenses of
counsel for the indemnified parties incurred thereafter in connection with such
action unless (i) the use of the counsel chosen by the indemnifying party to
represent the indemnified parties would present such counsel with a conflict of
interest, (ii) the actual or potential defendants in any such action include
both the indemnified parties and the indemnifying party and the indemnified
parties shall have reasonably concluded that there may be legal defenses
available to them which are different from or additional to those available to
the indemnifying party, (iii) the indemnifying party shall not have employed
counsel satisfactory to the indemnified parties, or (iv) the indemnifying party
shall authorize the indemnified parties to employ separate counsel at the
expense of the indemnifying party. The indemnifying party shall not be liable
for
15
any settlement of any such action or proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified
parties from and against any loss or liability by reason of such settlement or
judgment. The indemnifying party will not settle any action or proceeding
without the written consent of the indemnified parties unless such settlement
includes an unconditional release of such indemnified parties from all
liability arising out of such claim, action, suit or proceeding.
Section 7. Contribution. In order to provide for just and
equitable contribution in circumstances under which the indemnity provided for
in Section 6 is for any reason unavailable or insufficient to hold harmless an
indemnified party, the Company and the Underwriters shall contribute to the
aggregate losses, liabilities, claims, damages and expenses of the nature
contemplated by such indemnity incurred by the Company and one or more of the
Underwriters, as incurred, in such proportions as to reflect the relative
benefits to the Company on the one hand and to the Underwriters on the other of
the offering of the Offered Securities. The relative benefits to the Company on
the one hand and to the Underwriters on the other shall be deemed to be in the
same proportions as the initial public offering price for the Offered
Securities bears to the underwriting discount hereunder with respect to the
offering of the Offered Securities. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law, then the
Company and the Underwriters shall contribute to such amount paid or payable in
such proportion as is appropriate to reflect not only the relative benefits but
also the relative fault of the Company on the one hand and the Underwriters on
the other in connection with the statements or omissions which resulted in such
losses, liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations. The relative fault shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company on the one hand or by the
Underwriters on the other and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or
omission. The Company and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this Section 7 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 7.
Notwithstanding the provisions of this Section 7, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Offered Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. The Underwriters'
obligations to contribute pursuant to this Section 7 shall be several in
proportion to their respective underwriting obligations and not joint. No
person guilty of fraudulent
16
misrepresentation (within the meaning of Section 11(f) of the 0000 Xxx) shall
be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section, each person, if
any, who controls an Underwriter within the meaning of Section 15 of the 1933
Act, shall have the same rights to contribution as such Underwriter, and each
director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company
within the meaning of Section 15 of the 1933 Act shall have the same rights to
contribution as the Company.
Section 8. Survival of Certain Provisions. The representations,
warranties, indemnities, agreements and other statements of the Company or its
officers set forth in or made pursuant to this Agreement will remain operative
and in full force and effect regardless of any investigation made by or on
behalf of the Company, any Underwriter or any person who controls the Company
or any Underwriter within the meaning of Section 15 of the 1933 Act and will
survive delivery of and payment for the Offered Securities. The provisions of
Sections 4, 6, 7 and 8 shall survive the termination or cancellation of this
Agreement.
Section 9. Termination of Agreement. (a) You may terminate this
Agreement, by notice to the Company, at any time at or prior to the Closing
Date (i) if there has been, since the respective dates as of which information
is given in the Registration Statement and the Prospectus, any Material Adverse
Change, or (ii) if there has occurred any material adverse change in the
financial markets in the United States or any outbreak of hostilities or
escalation thereof or other calamity or crisis the effect of which is such as
to make it, in your judgment, impracticable or inadvisable to market the
Offered Securities or enforce contracts for the sale of the Offered Securities
or (iii) if trading in any securities of the Company has been suspended by the
Commission or a national securities exchange, or if trading generally on the
New York Stock Exchange shall have been suspended or limited or minimum or
maximum prices for trading have been fixed, or maximum ranges for prices for
securities have been required, by such exchange or by order of the Commission,
the New York Stock Exchange or any other governmental authority or (iv) if a
banking moratorium has been declared by either federal or New York authorities.
(b) If this Agreement is terminated pursuant to this Section,
such termination shall be without liability of any party to any other party,
except to the extent provided in Section 4. Notwithstanding any such
termination, the provisions of Sections 6, 7 and 8 shall remain in effect.
Section 10. Default. If one or more of the Underwriters shall
fail at the Closing Date to purchase the Offered Securities that it or they are
obligated to purchase pursuant to this Agreement (the "Defaulted Offered
Securities"), you shall have the right, within 36 hours thereafter, to make
arrangements for one or more of the non-defaulting Underwriters, or any other
underwriters, to purchase all, but not less than all, of the Defaulted Offered
Securities in such amounts as may be agreed upon and upon the terms set forth
in this Agreement; if, however, you have not completed such arrangements within
such 36-hour period, then:
17
(a) if the aggregate principal amount of Defaulted Offered
Securities does not exceed 10% of the aggregate principal amount of the
Offered Securities to be purchased, the non-defaulting Underwriters
shall be obligated to purchase the full amount thereof in the
proportions that their respective underwriting obligations bear to the
underwriting obligations of all non-defaulting Underwriters, or
(b) if the aggregate principal amount of Defaulted Offered
Securities exceeds 10% of the aggregate principal amount of the Offered
Securities to be purchased, this Agreement shall terminate without
liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default that does not result in a termination
of this Agreement, either you or the Company shall have the right to postpone
the Closing Date for a period not exceeding seven days in order to effect any
required changes in the Registration Statement or Prospectus or in any other
documents or arrangements. As used herein, the term "Underwriter" includes any
person substituted for an Underwriter under this Section 10.
Section 11. Notices. All notices and other communications shall
be in writing and effective only on receipt, and, if sent to you or the
Underwriters, will be mailed, delivered or telefaxed to the BancAmerica
Xxxxxxxxx Xxxxxxxx Investment Grade Origination Group (telecopier no. (312)
974-8936) at 000 Xxxxx XxXxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxx, XX 00000, with a
copy to the BancAmerica Xxxxxxxxx Xxxxxxxx General Counsel (telecopier no.
(000) 000-0000), 000 Xxxxx XxXxxxx Xxxxxx, 0xx Xxxxx, Xxxxxxx, XX 00000,
Attention General Counsel; or, if sent to the Company, will be mailed,
delivered or telefaxed to it at 00000 Xx. Xxxxxxx Xxxx Xxxx, Xxxxxxxxx, XX
00000, telecopier no.: (000) 000-0000, attention of Xxxxxx Xxxxxxx, Esq.
Section 12. Parties. The agreement herein set forth is made
solely for the benefit of the several Underwriters, the Company and, to the
extent expressed, any person who controls the Company or any of the
Underwriters within the meaning of Section 15 of the 1933 Act, the directors of
the Company, its officers who have signed the Registration Statement, and their
respective executors, administrators, successors and assigns and, subject to
the provisions of Section 10, no other person shall acquire or have any right
under or by virtue of this Agreement. The term "successors and assigns" shall
not include any purchaser, as such purchaser, from any Underwriter of the
Offered Securities. If there are two or more Underwriters, all of their
obligations hereunder are several and not joint.
18
Section 13. Governing Law and Time. THIS AGREEMENT SHALL BE
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK. Specified times of day refer to
New York City time.
Section 14. Counterparts. This Agreement may be executed in one
or more counterparts and when a counterpart has been executed by each party,
all such counterparts taken together shall constitute one and the same
agreement.
19
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
instrument will become a binding agreement among the Company and the several
Underwriters in accordance with its terms.
Very truly yours,
Hussmann International, Inc.
By
--------------------------
Name:
Title:
Confirmed and accepted as of
the date first above written:
BANCAMERICA XXXXXXXXX XXXXXXXX
CREDIT SUISSE FIRST BOSTON CORPORATION
NATIONSBANC XXXXXXXXXX SECURITIES, INC.
By: BancAmerica Xxxxxxxxx Xxxxxxxx
By:
---------------------------------------
Name:
Title:
For themselves and as Representatives of the
other Underwriters named in Schedule I.
20
EXHIBIT A
SUBSIDIARIES OF HUSSMANN INTERNATIONAL, INC.
Name Place of Incorporation
---- ----------------------
Hussmann Corporation Missouri
Krack Corporation Illinois
Hussmann International Sales Corporation Barbados
Luoyang Hussmann Refrigeration Co. Ltd.* China
Refrigeracion Frio Lux S.A.I. Chile
Hussmann Del Peru, S.A. Peru
Xxxxxxx Industries, Inc. Michigan
Design & Build Construction, Inc. California
Hussmann Tempcool Holdings PTE Limited* Singapore
Hussmann Netherlands B.V. Netherlands
Hussmann Mexico Ltda. Mexico
American Refrigeration Products Ltda. Mexico
Industrias Frigorificas, S.A. de C.V. Mexico
Hussmann Immobiliaria, S.A. de C.V. Mexico
Gilmart S.A. de C.V. Mexico
Industrias Xxxxxxx X.X. de C.V. Mexico
Hussmann Refrigeration International B.V. Netherlands
Fast Frio do Brasil Ltda.* Brazil
Hussmann Canada Holdings, Ltd. Canada
Hussmann Canada, Inc. Canada
Hussmann Holdings, Ltd. England
Hussmann (Europe) Ltd. England
Hussmann Refrigeration (Hungary) KFT* Hungary
* Each of the above subsidiaries is 100% owned or controlled except
as follows: Hussmann Tempcool Holdings PTE Limited (50%), Hussmann Fast Frio do
Brasil Ltda. (70%), Hussmann Refrigeration (Hungary) KFT (60%) and Luoyang
Hussmann Refrigeration Co., Ltd. (55%).
21
SCHEDULE I
22
SCHEDULE II
Hussmann International, Inc.
Senior Note Offering
Principal amount to be issued:
Current ratings:
Interest rate: , payable:
Date of maturity:
Redemption provisions:
Sinking fund requirements:
Initial public offering price: % of the principal amount plus accrued
interest[, or amortized original issue discount, if any,] from
Purchase price: % of the principal amount plus accrued interest[, or
amortized of original issue discount, if any,] from .
Closing Date, Time and Location: .
Listing requirement: None.
Expiration date of lock-up as contemplated by Section 3(k) and any additional
exceptions referred to in Section 3(k):
Other terms and conditions:
23
SCHEDULE III
MATTERS TO BE COVERED BY OPINION OF COUNSEL TO THE COMPANY
Sidley & Austin shall have furnished to you an opinion letter to
the following effect (in form and substance reasonably satisfactory to you):
(1) The Company is a corporation duly incorporated,
validly existing and in good standing under the laws of the State
of Delaware, with corporate power and authority under such laws
to own, lease and operate its properties and to conduct its
business as described in the Prospectus.
(2) All of the outstanding shares of capital stock of the
Company have been duly authorized and validly issued and are
fully paid and non-assessable.
(3) The Designated Indenture has been duly authorized,
executed and delivered by the Company and, assuming the due
authorization, execution and delivery by the Trustee, constitutes
a valid and binding obligation of the Company enforceable against
the Company in accordance with its terms, except as enforcement
thereof may be limited by bankruptcy, insolvency (including,
without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally and except as
enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding
in equity or at law).
(4) The Offered Securities have been duly authorized by
the Company and, when duly authenticated by the Trustee in
accordance with the provisions of the Designated Indenture and
delivered to and paid for by the Underwriters in accordance with
the terms of this Agreement, the Offered Securities will have
been duly executed, issued and delivered by the Company and will
constitute valid and binding obligations of the Company entitled
to the benefits of the Designated Indenture and enforceable
against the Company in accordance with their respective
24
terms, except as enforcement thereof may be limited by
bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization, moratorium or
similar laws affecting the enforcement of creditors' rights
generally and except as enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law).
(5) The Designated Indenture has been duly qualified
under the 0000 Xxx.
(6) The Offered Securities and the Designated Indenture
conform in all material respects as to legal matters to the
descriptions thereof in the Prospectus.
(7) This Agreement has been duly authorized, executed and
delivered by the Company.
(8) No authorization, approval, consent or license of or
notice to any government, governmental instrumentality or court,
domestic or foreign (other than under the 1933 Act, the 1939 Act
and the securities or blue sky laws of the various states), is
required for the valid authorization, issuance, sale and delivery
of the Offered Securities.
(9) Such counsel does not know of any statutes or
regulations, or any pending or threatened legal or governmental
proceedings, required to be described in the Prospectus that are
not described as required, nor of any contracts or documents of a
character required to be described or referred to in the
Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement that are not described,
referred to or filed as required.
(10) The execution and delivery by the Company of this
Agreement and the Designated Indenture, the issuance and delivery
of the Offered Securities, the consummation by the Company of the
transactions contemplated herein and in the Registration
Statement and compliance by the Company with the terms of this
Agreement and the Designated Indenture do not and will not result
in any violation of the charter or by-laws of the Company or any
Subsidiary, and, to the knowledge of such counsel, do not and
will not violate, or result in a breach of any of the terms or
provisions of, or constitute a default under, or result in the
creation or imposition of any lien, charge or encumbrance upon
any property or assets of the Company or any Subsidiary under any
existing applicable law, rule or regulation (other than the
securities or blue sky laws of the various states, as to which
such counsel need express no opinion).
25
(11) The Registration Statement has become effective
under the 1933 Act; and, to the knowledge of such counsel, the
Registration Statement is still effective, no stop order
suspending the effectiveness of the Registration Statement has
been issued and no proceedings for that purpose have been
instituted or threatened by the Commission.
(12) The Registration Statement and the Prospectus,
excluding the documents incorporated by reference therein, and
each amendment or supplement thereto (excluding the financial
statements and notes thereto, financial data, statistical data
and supporting schedules included or incorporated by reference
therein and the Statement of Eligibility of the Trustee on Form
T-1 filed with the Commission as part of the Registration
Statement, as to which such counsel need express no opinion), as
of their respective effective or issue dates (but after giving
effect to Rule 430A under the Securities Act), complied as to
form in all material respects to the requirements of the 1933 Act
and the 1933 Act Regulations, and the Designated Indenture
complies in all material respects to the requirements of the 1939
Act and the 1939 Act Regulations.
(13) The documents incorporated by reference in the
Prospectus (excluding the financial statements and notes thereto,
financial data, statistical data and supporting schedules
included therein, as to which such counsel need express no
opinion), as of the respective dates they were filed with the
Commission, complied as to form in all material respects to the
requirements of the 1934 Act and the 1934 Act Regulations.
(14) The Company is not an investment company or a
company controlled by an investment company under the Investment
Company Act of 1940, as amended.
Such opinion shall also include a statement to the effect that,
although such counsel has not independently checked the accuracy or
completeness of , or otherwise verified, and accordingly is not passing
upon, and does not assume responsibility for, the accuracy, completeness
or fairness of the statements contained or incorporated by reference in
the Registration Statement and the Prospectus and has relied to a large
extent upon the statements and judgments of officers and representatives
of the Company with respect to facts necessary to the determination of
materiality, nothing has come to the
26
attention of such counsel to cause such counsel to believe (A) that the
Registration Statement or any amendment thereto (except for the
financial statements and the notes thereto, financial data, statistical
data and supporting schedules included or incorporated by reference
therein and the Statement of Eligibility of the Trustee on Form T-1, as
to which such counsel need express no belief), on the original effective
date of the Registration Statement, on the effective date of the most
recent post-effective amendment thereto, if any, on the date of this
Agreement, or on the date any such amendment became effective after the
date of this Agreement, contained an untrue statement of a material fact
or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, (B) that the
Prospectus or any amendment or supplement thereto (except for the
financial statements and the notes thereto, financial data, statistical
data and supporting schedules included or incorporated by reference
therein, as to which such counsel need express no belief), at the date
of the Prospectus, at the date of any such amended or supplemented
Prospectus was issued or at the Closing Date, included or includes an
untrue statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading or
(C) that the documents incorporated by reference in the Prospectus
(except for the financial statements and the notes thereto, financial
data, statistical data and supporting schedules included therein, as to
which such counsel need express no belief), as of the dates they were
filed with the Commission, contained an 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 not misleading.
00
Xxxxxx Xxxxxxx, General Counsel of the Company, shall have
furnished to you an opinion letter to the following effect (in form and
substance reasonably satisfactory to you):
(1) Each of the Subsidiaries is a corporation duly
incorporated, validly existing and in good standing under the
laws of the jurisdiction of its incorporation, with corporate
power and authority under such laws to own, lease and operate its
properties and to conduct its business as described in the
Prospectus.
(2) All of the outstanding shares of capital stock of
each of the Subsidiaries have been duly authorized and validly
issued and are fully paid and non-assessable; except as set forth
in Exhibit A to this Agreement, all of such shares are held of
record by the Company, directly or through one or more
Subsidiaries, and such counsel has no reason to believe that,
except as set forth in Exhibit A to this Agreement, all of such
shares are not beneficially owned by the Company, directly or
through one or more Subsidiaries, free and clear of any pledge,
lien, security interest, charge, claim, equity or encumbrance of
any kind.
(3) The execution and delivery by the Company of this
Agreement and the Designated Indenture, the issuance and delivery
of the Offered Securities, the consummation by the Company of the
transactions contemplated herein and in the Registration
Statement and compliance by the Company with the terms of this
Agreement and the Designated Indenture do not and will not result
in any violation of the charter or by-laws of the Company or any
Subsidiary, and, to the knowledge of such counsel, do not and
will not violate, or result in a breach of any of the terms or
provisions of, or constitute a default under, or result in the
creation or imposition of any lien, charge or encumbrance upon
any property or assets of the Company or any Subsidiary under (A)
any material contract, indenture, mortgage, loan agreement, note,
lease or any other material agreement or instrument known to such
counsel, to which the Company or any Subsidiary is a party or by
which it may be bound or to which any of its properties may be
subject; or (B) any judgment, order or decree known to such
counsel of any government, governmental instrumentality or court
having jurisdiction over the Company or any Subsidiary or any of
their respective properties.
