EXHIBIT 1.1
UNDERWRITING AGREEMENT
March 10, 2000
Enterprise Products Operating L.P.
0000 Xxxxx Xxxx Xxxx
Xxxxxxx, Xxxxx 00000-0000
Enterprise Products Partners L.P.
0000 Xxxxx Xxxx Xxxx
Xxxxxxx, Xxxxx 00000-0000
Dear Sirs and Mesdames:
We (the "REPRESENTATIVE") are acting on behalf of the underwriter or
underwriters (including ourselves) named below (such underwriter or underwriters
being herein called the "UNDERWRITERS"), and we understand that Enterprise
Products Operating L.P., a Delaware limited partnership (the "COMPANY"),
proposes to issue and sell $350,000,000 aggregate principal amount of Senior
Notes Due 2005 (the "NOTES") with the guarantee (the "GUARANTEE" and, together
with the Notes, the "SECURITIES") endorsed thereon of Enterprise Products
Partners, L.P., a Delaware limited partnership and the ultimate parent company
of the Company (the "GUARANTOR"). The Securities will be issued pursuant to the
provisions of the Indenture dated as of March 15, 2000 (as such Indenture shall
be supplemented to the date hereof) (the "INDENTURE") among the Company, the
Guarantor and First Union National Bank, as trustee (the "TRUSTEE").
Subject to the terms and conditions set forth or incorporated by
reference herein, the Company hereby agrees to sell and the Underwriters agree
to purchase, severally and not jointly, the respective principal amounts of
Notes set forth below opposite their names at a purchase price of 99.348% of the
principal amount of Notes plus accrued interest, if any, from March 15, 2000 to
the date of payment and delivery:
Principal
Amount of
Underwriters Notes
------------ -----
Chase Securities Inc. $210,000,000
------------
Xxxxxx Brothers Inc. $ 87,500,000
------------
Banc One Capital Markets, Inc. $ 10,500,000
------------
FleetBoston Xxxxxxxxx Xxxxxxxx Inc. $ 10,500,000
------------
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First Union Securities, Inc. $ 10,500,000
------------
Scotia Capital (USA) Inc. $ 10,500,000
------------
XX Xxxxx Securities Corp. $ 10,500,000
------------
Total $350,000,000
============
The Underwriters will pay for the Notes upon delivery thereof at the
location identified below at 9:00 a.m. (Houston time) on March 15, 2000, or at
such other time or date, not later than seven full business days thereafter, as
shall be agreed upon by the Company and the Representative. The time and date
of such payment and delivery are hereinafter referred to as the "Closing Date."
The Notes shall have the terms set forth in the Prospectus dated
January 14, 2000 and the Prospectus Supplement dated March 10, 2000, including
the following:
Representative(s) and address(es):
Chase Securities Inc.
000 Xxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx
with a copy of notices pursuant
to Section 9(c) to:
Chase Securities Inc.
1 Chase Xxxxxxxxx Xxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Legal Department
Certain Terms of the Notes:
Title of Notes: 8.25% Senior Notes due 2005
Aggregate Principal Amount of Notes: $350,000,000
Maturity Date: March 15, 2005
Interest Rate: 8.25%
Interest Payment Dates: September 15 and
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March 15,
commencing September 15, 2000
Record Dates: September 1 and
March 1
Redemption Provisions: The Notes will be redeemable, at the option
of the Company, at any time in whole, or from
time to time in part, at a price equal to the
greater of (i) 100% of the principal amount
of the Notes to be redeemed or (ii) the sum
of the present values of the remaining
scheduled payments of principal and interest
thereon (exclusive of interest accrued to the
date of redemption) discounted to the date of
redemption on a semiannual basis (assuming a
360-day year consisting of twelve 30 day
months) at the applicable Treasury Yield (as
defined in the Prospectus) plus 25 basis
points, plus accrued interest to the date of
redemption.
Repayment Provisions: There is no sinking fund.
Transfer Agent and Registrar: First Union National Bank
Closing Date and Location: March 15, 2000
Xxxxxx & Xxxxxx
2300 First City Tower
0000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
The Notes are to be offered to the public at the Initial Public Offering Price
specified below, and to dealers at prices which represent concessions not in
excess of the Dealer Concession set forth below, and the Underwriters may allow
and such dealers may reallow concessions not in excess of the Reallowance
concession set forth below:
Initial Public Offering Price: 99.948% of the principal amount of the Notes
plus accrued interest from March 15, 2000, if
any
Dealer Concession: .350% of the principal amount of the Notes
Reallowance Concession: .250% of the principal amount of the Notes
The parties hereto acknowledge and agree that the Underwriters'
Information consists solely of the following information in any Preliminary
Prospectus and the Prospectus: (i) the third sentence of the fifth paragraph
and (ii) the sixth paragraph of "Underwriting" in the Prospectus Supplement.
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All provisions contained in the document entitled Enterprise Products
Operating L.P. and Enterprise Products Partners L.P. Underwriting Agreement
Standard Provisions (Debt Securities) dated March 10, 2000 (the "STANDARD
PROVISIONS"), are herein incorporated by reference in their entirety and shall
be deemed to be a part of this Agreement to the same extent as if such
provisions had been set forth in full herein, except that if any term defined in
such document is otherwise defined herein, the definition set forth herein shall
control.
This Agreement may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
Please confirm your agreement by having an authorized officer sign a
copy of this Agreement as of the date first set forth above in the space set
forth below.
Very truly yours,
CHASE SECURITIES INC.
Acting on behalf of itself and the several
Underwriters named herein
By: Chase Securities Inc.
By: /s/ Xxxxx Xxxxxxx
--------------------------------
Name: Xxxxx Xxxxxxx
Title: Managing Director
ENTERPRISE PRODUCTS OPERATING L.P.
By: Enterprise Products GP, LLC, its general
partner
By: /s/ Xxxx X. Xxxxxx
--------------------------------
Name: Xxxx X. Xxxxxx
Title: Executive Vice President
& Chief Financial Officer
ENTERPRISE PRODUCTS PARTNERS L.P.
By: Enterprise Products GP, LLC, its general
partner
By: /s/ Xxxx X. Xxxxxx
--------------------------------
Name: Xxxx X. Xxxxxx
Title: Executive Vice President
& Chief Financial Officer
ENTERPRISE PRODUCTS OPERATING L.P.
ENTERPRISE PRODUCTS PARTNERS L.P.
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
(DEBT SECURITIES)
March 10, 2000
From time to time, Enterprise Products Operating L.P., a Delaware
limited partnership (the "Company") and Enterprise Products Partners L.P. (the
"Guarantor"), may enter into one or more underwriting agreements that provide
for the sale of designated securities to the several underwriters named therein.
The standard provisions hereof set forth herein may be incorporated by reference
in any such underwriting agreement (an "Underwriting Agreement"). The
Underwriting Agreement, including the provisions hereof incorporated therein by
reference, is herein sometimes referred to as this "Agreement". Terms defined
in the Underwriting Agreement are used herein as therein defined.
The Company and the Guarantor have filed with the Securities and
Exchange Commission (the "Commission") a registration statement on Form S-3
(file number 333-93239), including a prospectus, relating to the debt securities
and has filed with, or transmitted for filing to, or shall promptly hereafter
file with or transmit for filing to, the Commission a prospectus supplement (the
"Prospectus Supplement") specifically relating to the Securities pursuant to
Rule 424 under the Securities Act of 1933, as amended (the "Securities Act").
The registration statement as amended at the date of the Underwriting Agreement,
including information, if any, deemed to be part of the registration statement
at the time of effectiveness pursuant to Rule 430A under the Securities Act, is
hereinafter referred to as the "Registration Statement." The term "Basic
Prospectus" means the prospectus included in the Registration Statement. The
term "Prospectus" means the Basic Prospectus together with the Prospectus
Supplement. The term "Preliminary Prospectus" means a preliminary prospectus
supplement specifically relating to the Securities, together with the Basic
Prospectus. As used herein, the terms "Registration Statement," "Basic
Prospectus," "Prospectus" and "Preliminary Prospectus" shall include in each
case the documents, if any, incorporated by reference therein. The terms
"supplement," "amendment" and "amend" as used herein shall include the filing of
all documents deemed to be incorporated by reference in the Prospectus that are
filed subsequent to the date of the Underwriting Agreement by the Company with
the Commission pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act"). If the Company has filed an abbreviated registration statement
to register additional debt securities pursuant to Rule 462(b) under the
Securities Act (the "Rule 462(b) Registration Statement"), then any reference
herein to the term "Registration Statement" shall be deemed to include such Rule
462(b) Registration Statement. For purposes of this Agreement, "Effective Time"
means the date and time the Registration Statement became effective, and if
later, the date of filing of the Guarantor's most recent Annual Report on Form
10-K.
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1. Representations and Warranties. Each of the Guarantor and the
Company represents and warrants to and agree with the several Underwriters on
and as of the date of the Underwriting Agreement and the Closing Date:
(a) The Registration Statement has become effective under the
Securities Act; no stop order suspending the effectiveness of the
Registration Statement is in effect, and no proceedings for such purpose
are pending before or, to the best knowledge of the Guarantor or the
Company, threatened by the Commission.
(b) The documents incorporated by reference in the Registration
Statement, the Preliminary Prospectus and the Prospectus (the "Exchange Act
Reports"), when they were filed with the Commission, conformed in all
material respects to the requirements of the Exchange Act and the rules and
regulations of the Commission thereunder and none of such documents
contained an untrue statement of a material fact or omitted to state a
material fact necessary to make the statements in the Prospectus, in light
of the circumstances under which they were made, not misleading, and any
further documents so filed and incorporated by reference in the
Registration Statement, the Preliminary Prospectus and the Prospectus, when
such documents are filed with the Commission, will conform in all material
respects to the requirements of the Exchange Act and the rules and
regulations of the Commission thereunder and shall not contain an untrue
statement of a material fact or omit to a state a material fact necessary
to make the statements in the Prospectus, in light of the circumstances
under which they were made, not misleading.
(c) At the Effective Time, the Registration Statement did, and when
the Prospectus is first filed in accordance with Rule 424(b) and on the
Closing Date, the Prospectus (and any supplements thereto) will, comply in
all material respects with the applicable requirements of the Securities
Act and the rules and regulations of the Commission thereunder (the "Rules
and Regulations") and the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"), and the rules and regulations of the Commission
thereunder; at the Effective Time, the Registration Statement did not or
will not include any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary in order to
make the statements therein not misleading; at the Effective Time and on
the Closing Date, the Indenture did or will conform in all material
respects with the applicable requirements of the Trust Indenture Act and
the rules and regulations of the Commission thereunder; and, the Prospectus
on the date of the Prospectus and on the Closing Date (together with any
supplement thereto), did not and will not, include any untrue statement of
a material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading. The preceding sentence does not apply to (i)
that part of the Registration Statement which shall constitute the
Statement of Eligibility and Qualification (Form T-1) of the Trustee under
the Trust Indenture Act or (ii) information contained in or omitted from
the Registration Statement or the Prospectus (or any supplement thereto) in
reliance upon and in conformity with written information furnished to the
Guarantor and the Company by or on behalf of any Underwriter specifically
for use therein, which is set forth in the Underwriting Agreement (the
"Underwriters' Information").
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(d) The Guarantor, the Company and each of their respective
subsidiaries (as such term is defined in the rules and regulations of the
Commission under the Act and the Exchange Act) have been duly formed and
are validly existing and in good standing under the laws of their
respective jurisdictions of formation, are duly qualified to do business
and are in good standing as foreign corporations or partnerships, as the
case may be, in each jurisdiction in which their respective ownership or
lease of property or the conduct of their respective businesses requires
such qualification, and have all corporate or partnership power, as the
case may be, and authority necessary to own or hold their respective
properties and to conduct the businesses in which they are engaged, except
where the failure to so qualify or have such power or authority would not,
singularly or in the aggregate, have a material adverse effect on the
condition (financial or otherwise), results of operations, business or
prospects of the Guarantor and its subsidiaries taken as a whole or the
Company and its subsidiaries taken as a whole (a "Material Adverse
Effect").
(e) The Guarantor has an authorized capitalization as set forth in the
Prospectus under the heading "Capitalization"; all of the outstanding
partnership interests of the Guarantor and the Company have been duly and
validly authorized and issued and are fully paid and non-assessable; and
the partnership interests of the Guarantor and the Company conform in all
material respects to the description thereof contained in the Prospectus.
All of the outstanding shares of capital stock, partnership interest or
membership interest, as the case may be, of each subsidiary of the Company
have been duly and validly authorized and issued, are fully paid and non-
assessable and are owned directly or indirectly by the Company and/or the
Guarantor, as the case may be, free and clear of any lien, charge,
encumbrance, security interest, restriction upon voting or transfer or any
other claim of any third party.
(f) The Guarantor has full right, partnership power and authority to
execute and deliver this Agreement, the Indenture and the Guarantees and to
perform its obligations hereunder and thereunder; the Company has full
right, partnership power and authority to execute and deliver this
Agreement, the Indenture and the Notes (this Agreement, the Indenture, the
Guarantee and the Notes collectively, the "Transaction Documents") and to
perform its obligations hereunder and thereunder; and all partnership
action required to be taken by the Guarantor or the Company for the due and
proper authorization, execution and delivery of each of the Transaction
Documents to which it is a party and the consummation of the transactions
contemplated thereby have been duly and validly taken.
(g) This Agreement has been duly authorized, executed and delivered by
each of the Guarantor and the Company and constitutes a valid and legally
binding agreement of each of the Guarantor and the Company.
(h) The Indenture has been duly qualified under the Trust Indenture
Act and has been duly authorized, executed and delivered by each of the
Guarantor and the Company and is a valid and legally binding agreement of
each of the Guarantor and the Company enforceable against each of the
Guarantor and the Company in accordance with
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its terms, except to the extent that such enforceability may be limited by
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws affecting creditors' rights generally and
by general equitable principles (whether considered in a proceeding in
equity or at law).
(i) Each of the Notes has been duly authorized by the Company and each
of the Guarantees has been duly authorized by the Guarantor, and when duly
executed, authenticated, issued and delivered as provided in the Indenture
and, in the case of the Notes, paid for as provided herein, each of the
Notes and the Guarantees will be duly and validly issued and outstanding
and will constitute valid and legally binding obligations of each of the
Guarantor and the Company, as the case may be, entitled to the benefits of
the Indenture and enforceable against each of the Guarantor and the
Company, as the case may be, in accordance with their terms, except to the
extent that such enforceability may be limited by applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other
similar laws affecting creditors' rights generally and by general equitable
principles (whether considered in a proceeding in equity or at law).
(j) Each Transaction Document conforms in all material respects to the
description thereof contained in the Prospectus.
(k) The execution, delivery and performance by each of the Guarantor
and the Company of each of the Transaction Documents to which it is a
party, the issuance, authentication, sale and delivery of the Notes and the
issuance of the Guarantee and compliance by each of the Guarantor and the
Company with the terms thereof and the consummation of the transactions
contemplated by the Transaction Documents to which it is a party will not
conflict with or result in a breach or violation 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 Guarantor, the Company or any of their respective subsidiaries
pursuant to, any material indenture, mortgage, deed of trust, loan
agreement or other material agreement or instrument to which the Guarantor,
the Company or any of their respective subsidiaries is a party or by which
the Guarantor, the Company or any of their respective subsidiaries is bound
or to which any of the property or assets of the Guarantor, the Company or
any of their respective subsidiaries is subject, nor will such actions
result in any violation of the provisions of the organizational documents
of the Guarantor, the Company or any of their respective subsidiaries or
any statute or any judgment, order, decree, rule or regulation of any court
or arbitrator or governmental agency or body having jurisdiction over any
of the Guarantor, the Company or any of their respective subsidiaries or
any of their properties or assets; and no consent, approval, authorization
or order of, or filing or registration with, any such court or arbitrator
or governmental agency or body under any such statute, judgment, order,
decree, rule or regulation is required for the execution, delivery and
performance by the Guarantor or the Company of each of the Transaction
Documents to which it is a party, the issuance, authentication, sale and
delivery of the Notes, the issuance of the Guarantee and compliance by the
Guarantor or the Company with the terms thereof and the consummation of the
transactions contemplated by the Transaction Documents to which it is a
party, except for such consents, approvals, authorizations,
5
filings, registrations or qualifications (i) which shall have been obtained
or made prior to the Closing Date and (ii) as may be required to be
obtained or made under the Exchange Act, and applicable state securities
laws in connection with the purchase and distribution of the Notes by the
Underwriters. The Commission has not issued any order preventing or
suspending the use of any Preliminary Prospectus.
(l) Deloitte & Touche LLP are independent certified public accountants
with respect to the Guarantor, the Company and their respective
subsidiaries as required by the Securities Act and the Rules and
Regulations. The historical financial statements (including the related
notes and supporting schedules) contained or incorporated by reference in
the Registration Statement and the Prospectus comply in all material
respects with the applicable requirements under the Securities Act and the
Exchange Act (except that certain supporting schedules are omitted); such
financial statements have been prepared in accordance with generally
accepted accounting principles consistently applied throughout the periods
covered thereby and fairly present the financial position of the entities
purported to be covered thereby at the respective dates indicated and the
results of their operations and their cash flows for the respective periods
indicated; and the financial information contained or incorporated by
reference in the Registration Statement and the Prospectus under the
headings, "Capitalization", "Selected Financial Data" and "Management's
Discussion and Analysis of Financial Condition and Results of Operations"
are derived from the accounting records of the Company and its subsidiaries
and fairly present the information purported to be shown thereby. The pro
forma financial information, if any, contained or incorporated by reference
in the Registration Statement and the Prospectus has been prepared on a
basis consistent with the historical financial statements contained or
incorporated by reference in the Prospectus (except for the pro forma
adjustments specified therein), includes all material adjustments to the
historical financial information required by Rule 11-02 of Regulation S-X
under the Securities Act and the Exchange Act to reflect the transactions
described in the Prospectus, gives effect to assumptions made on a
reasonable basis and fairly presents the transactions described in the
Prospectus. The other historical financial and statistical information and
data included or incorporated by reference in the Prospectus are, in all
material respects, fairly presented.
(m) There are no legal or governmental proceedings pending to which
the Guarantor, the Company, or any of their respective subsidiaries is a
party or of which any property or assets of the Guarantor, the Company or
any of their respective subsidiaries is the subject which, singularly or in
the aggregate, if determined adversely to the Guarantor, the Company or any
of their respective subsidiaries, could reasonably be expected to have a
Material Adverse Effect; and to the best knowledge of the Guarantor or the
Company, no such proceedings are threatened or contemplated by governmental
authorities or threatened by others.
(n) No action has been taken and no statute, rule, regulation or order
has been enacted, adopted or issued by any governmental agency or body
which prevents the issuance of the Securities or suspends the sale of the
Notes in any jurisdiction; no injunction, restraining order or order of any
nature by any federal or state court of
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competent jurisdiction has been issued with respect to the Guarantor, the
Company or any of their respective subsidiaries which would prevent or
suspend the issuance or sale of the Notes, the issuance of the Guarantee or
the use of the Preliminary Prospectus or the Prospectus in any
jurisdiction; no action, suit or proceeding is pending against or, to the
best knowledge of the Guarantor or the Company, threatened against or
affecting the Guarantor, the Company or any of their respective
subsidiaries before any court or arbitrator or any governmental agency,
body or official, domestic or foreign, which could reasonably be expected
to interfere with or adversely affect the issuance of the Notes or in any
manner draw into question the validity or enforceability of any of the
Transaction Documents to which it is a party or any action taken or to be
taken pursuant thereto; and each of the Guarantor and the Company has
complied with any and all requests by any securities authority in any
jurisdiction for additional information to be included in the Preliminary
Prospectus and the Prospectus.
(o) There are no contracts or other documents which are required under
the Securities Act or the Rules and Regulations to be described in the
Prospectus or filed as exhibits to the Registration Statement and which
have not been so described or filed.
(p) None of the Guarantor, the Company or any of their respective
subsidiaries is (i) in violation of its organizational documents, (ii) in
default in any material respect, and no event has occurred which, with
notice or lapse of time or both, would constitute such a default, in the
due performance or observance of any term, covenant or condition contained
in any material indenture, mortgage, deed of trust, loan agreement or other
material agreement or instrument to which it is a party or by which it is
bound or to which any of its property or assets is subject or (iii) in
violation in any material respect of any law, ordinance, governmental rule,
regulation or court decree to which it or its property or assets may be
subject, except in the case of (ii) and (iii) for such defaults or
violations which would not, either individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
(q) Each of the Guarantor, the Company and each of their respective
subsidiaries possess all material licenses, certificates, authorizations
and permits issued by, and have made all declarations and filings with, the
appropriate federal, state or foreign regulatory agencies or bodies which
are necessary or desirable for the ownership of their respective properties
or the conduct of their respective businesses as described in the
Prospectus, except where the failure to possess or make the same would not,
singularly or in the aggregate, have a Material Adverse Effect, and none of
the Guarantor, the Company or any of their respective subsidiaries has
received notification of any revocation or modification of any such
license, certificate, authorization or permit or has any reason to believe
that any such license, certificate, authorization or permit will not be
renewed in the ordinary course.
(r) No forward-looking statement (within the meaning of Section 27A of
the Securities Act and Section 21E of the Exchange Act) contained or
incorporated by reference in the Registration Statement has been made or
reaffirmed without a reasonable basis or has been disclosed other than in
good faith.
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(s) Since the date as of which information is given in the Prospectus,
except as otherwise stated therein, (i) there has been no material adverse
change or any development involving a prospective material adverse change
in the condition, financial or otherwise, or in the earnings, business
affairs, management or business prospects of the Guarantor and its
subsidiaries taken as a whole or the Company and its subsidiaries taken as
a whole, whether or not arising in the ordinary course of business,
(ii) none of the Guarantor, the Company or any of their respective
subsidiaries has incurred any material liability or obligation, direct or
contingent, other than in the ordinary course of business, (iii) none of
the Guarantor, the Company or any of their respective subsidiaries has
entered into any material transaction other than in the ordinary course of
business and (iv) there has not been any change in the capital or long-term
debt of the Guarantor or the Company, or any dividend or distribution of
any kind declared, paid or made by the Guarantor or the Company on any
class of its partnership interests.
(t) None of the Guarantor, the Company or any of their respective
subsidiaries is (i) an "investment company" or a company "controlled by" an
investment company within the meaning of the Investment Company Act of
1940, as amended (the "Investment Company Act"), and the rules and
regulations of the Commission thereunder or (ii) a "holding company" or a
"subsidiary company" of a holding company or an "affiliate" thereof within
the meaning of the Public Utility Holding Company Act of 1935, as amended.
(u) Each of the Guarantor, the Company and each of their respective
subsidiaries has insurance covering its respective properties, operations,
personnel and businesses, which insurance is in amounts and insures against
such losses and risks as are adequate to protect each of the Guarantor, the
Company and each of their respective subsidiaries and their respective
businesses. None of the Guarantor, the Company or any of their respective
subsidiaries has received notice from any insurer or agent of such insurer
that capital improvements or other expenditures are required or necessary
to be made in order to continue such insurance.
(v) Each of the Guarantor, the Company and each of their respective
subsidiaries owns or possesses adequate rights to use all material patents,
patent applications, trademarks, service marks, trade names, trademark
registrations, service xxxx registrations, copyrights, licenses and know-
how (including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures) necessary
for the conduct of their respective businesses; and the conduct of their
respective businesses will not conflict in any material respect with, and
the none of the Guarantor, the Company or any of their respective
subsidiaries have received any notice of any claim of conflict with, any
such rights of others.
(w) Each of the Guarantor, the Company and each of their respective
subsidiaries has (i) good and defensible title to all its interests in its
properties that are material to the operations of the Guarantor, the
Company and each of their respective subsidiaries, considered as a whole,
title investigations having been carried out by or on behalf of the
Guarantor, the Company or any of their respective subsidiaries in
8
accordance with customary practice in the natural gas processing and
transportation industry in the areas in which they operate and (ii) good
and marketable title in fee simple to, or have valid rights to lease or
otherwise use, all items of other real and personal property which are
material to the business of the Guarantor, the Company or any of their
respective subsidiaries in each case free and clear of all liens,
encumbrances, claims and defects and imperfections of title except such as
(1) do not materially interfere with the use made and proposed to be made
of such property by the Guarantor, the Company or any of their respective
subsidiaries, (2) could not reasonably be expected to have a Material
Adverse Effect or (3) are Permitted Liens (as defined in the Indenture).
(x) There has been no storage, generation, transportation, handling,
treatment, disposal, discharge, emission or other release of any kind of
toxic or other wastes or other hazardous substances, including, but not
limited to, natural gas liquids, by, due to or caused by the Guarantor, the
Company or any of their respective subsidiaries (or, to the best knowledge
of the Guarantor and the Company, any other entity (including any
predecessor) for whose acts or omissions the Guarantor, the Company or any
of their respective subsidiaries is or could reasonably be expected to be
liable) upon any of the property now or previously owned or leased by the
Guarantor, the Company or any of their respective subsidiaries, or upon any
other property, in violation of any statute or any ordinance, rule,
regulation, order, judgment, decree or permit or which would, under any
statute or any ordinance, rule (including rule of common law), regulation,
order, judgment, decree or permit, give rise to any liability, except for
any violation or liability could not reasonably be expected to have,
singularly or in the aggregate with all such violations and liabilities, a
Material Adverse Effect; and there has been no disposal, discharge,
emission or other release of any kind onto such property or into the
environment surrounding such property of any toxic or other wastes or other
hazardous substances with respect to which the Guarantor or the Company has
knowledge, except for any such disposal, discharge, emission or other
release of any kind which could not reasonably be expected to have,
singularly or in the aggregate with all such discharges and other releases,
a Material Adverse Effect.
2. Purchase of the Notes. (a) On the basis of the representations,
warranties and agreements contained herein, and subject to the terms and
conditions set forth herein and in the Underwriting Agreement, the Company
agrees to issue and sell to each of the Underwriters, severally and not jointly,
and each of the Underwriters, severally and not jointly, agrees to purchase and
the Company, the principal amount of Notes set forth opposite the name of such
Underwriter in the Underwriting Agreement at the purchase price set forth in the
Underwriting Agreement.
(b) The Company shall not be obligated to deliver any of the Notes
except upon payment for all of the Notes to be purchased as provided herein.
Each of the Guarantor and the Company acknowledges and agrees that the
Underwriters may sell Notes to any affiliate of an Underwriter and that any such
affiliate may sell Notes purchased by it to an Underwriter.
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3. Delivery of and Payment for the Notes. (a) Delivery of and
payment for the Notes shall be made on the Closing Date at the time and place
set forth in the Underwriting Agreement.
(b) On the Closing Date, payment of the purchase price for the Notes
shall be made to the Company by wire or book-entry transfer of same-day funds to
such account or accounts as the Company shall specify prior to the Closing Date
or by such other means as the parties hereto shall agree prior to the Closing
Date, against delivery to the Underwriters of the certificates evidencing the
Notes. Time shall be of the essence, and delivery at the time and place
specified pursuant to this Agreement is a further condition of the obligations
of the Underwriters hereunder. Upon delivery, the Notes shall be in global
form, registered in such names and in such denominations as the Representative
on behalf of the Underwriters shall have requested in writing not less than one
full business day prior to the Closing Date. The Company agrees to make one or
more global certificates evidencing the Notes available for inspection by the
Representative on behalf of the Underwriters in New York, New York at least 24
hours prior to the Closing Date.
4. Further Agreements of the Guarantor and the Company. Each of the
Guarantor and the Company agrees with each of the several Underwriters:
(a) (i) to prepare the 462(b) Registration Statement, if necessary, in
a form approved by the Underwriters and to file such 462(b) Registration
Statement with the Commission in compliance with Rule 462(b) of the Rules and
Regulations by 10:00 a.m. New York City time on the business day following the
date of determination of the public offering price and, at the time of filing,
either to pay the Commission the filing fee for the Rule 462(b) Registration
Statement or give irrevocable instructions for the payment of such fee pursuant
to Rule 111(b) of the Rules and Regulations and (ii) to file the Prospectus with
the Commission pursuant to and in accordance with Rule 424(b) within the time
period prescribed by such rule and to provide evidence satisfactory to the
Underwriters of such timely filing;
(b) to file promptly all reports and any definitive proxy or
information statement required to be filed by the Company with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to
the date of the Prospectus and for so long as the delivery of a Prospectus is
required in connection with the offering of the Securities;
(c) prior to filing with the Commission any (i) amendment to the
Registration Statement (including any Rule 462(b) Registration Statement) or
supplement to the Prospectus, (ii) any document incorporated by reference in the
Prospectus or (iii) any Prospectus pursuant to Rule 424 of the Rules and
Regulations, to furnish a copy thereof to the Representative and counsel for the
Underwriters, and not to file any such document to which the Representative
shall reasonably object after having been given reasonable notice of the
proposed filing thereof unless the Company is required by law to make such
filing;
(d) to advise the Underwriters promptly of any amendment or supplement
to the Registration Statement or the Prospectus, or of any request by the
Commission therefor, and of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration
10
Statement or the initiation of any proceedings for that purpose; to advise the
Underwriters promptly of any order preventing or suspending the use of any
prospectus relating to the Securities, of the suspension of the qualification of
the Securities for offering or sale in any jurisdiction and of the initiation or
threatening of any proceeding for any such purpose; and to use its best efforts
to prevent the issuance of any stop order or of any such order preventing or
suspending the use of any prospectus relating to the Securities or suspending
any such qualification and, if any such stop order or order or suspension is
issued, to obtain the lifting thereof at the earliest possible time;
(e) to furnish promptly to each of the Underwriters and counsel for
the Underwriters a copy of the Registration Statement as originally filed with
the Commission, and each amendment thereto filed with the Commission, including
all consents and exhibits filed therewith; and to deliver promptly without
charge to the Underwriters such number of the following documents as the
Underwriters may from time to time reasonably request: (i) conformed copies of
the Registration Statement as originally filed with the Commission and each
amendment thereto (in each case excluding exhibits other than this Agreement,
the Indenture and the computation of the ratio of earnings to fixed charges),
(ii) each Preliminary Prospectus, the Prospectus and any amended or supplemented
Prospectus and (iii) each document incorporated by reference in the Prospectus
(excluding exhibits thereto);
(f) if the delivery of a prospectus is required at any time in
connection with the sale of the Securities and if at such time any events shall
have occurred as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made when such Prospectus
is delivered, not misleading, or if for any other reason it shall be necessary
or advisable at such time to amend or supplement the Prospectus in order to
comply with the Securities Act or the Exchange Act or with a request from the
Commission, to notify the Underwriters immediately thereof, and to promptly
prepare and, subject to Section 4(c) hereof, file with the Commission an amended
Prospectus or a supplement to the Prospectus which will correct such statement
or omission or effect such compliance;
(g) as soon as practicable to make generally available to the
Guarantor's security holders and to deliver to the Underwriters an earnings
statement of the Guarantor and its subsidiaries (which need not be audited)
complying with Section 11(a) of the Securities Act and the Rules and Regulations
(including, at the option of the Guarantor, Rule 158);
(h) promptly take from time to time such actions as the Underwriters
may reasonably request to qualify the Securities for offering and sale under the
securities or Blue Sky laws of such jurisdictions as the Underwriters may
designate and to continue such qualifications in effect for so long as required
for the resale of the Securities; and to arrange for the determination of the
eligibility for investment of the Securities under the laws of such
jurisdictions as the Underwriters may reasonably request; provided that none of
the Guarantor, the Company or any of their respective subsidiaries shall be
obligated to qualify as foreign corporations in any jurisdiction in which they
are not so qualified or to file a general consent to service of process in any
jurisdiction;
(i) for a period of 30 days from the date of the Prospectus, not to
offer for sale, sell, contract to sell or otherwise dispose of, directly or
indirectly, or file a registration statement for,
11
or announce any offer, sale, contract for sale of or other disposition of any
debt securities issued or guaranteed by the Guarantor, the Company or any of
their respective subsidiaries (other than the Notes and, after the Closing Date,
$54 million principal amount of Mississippi Business Finance Corporation
Industrial Revenue Bonds guaranteed by the Guarantor) without the prior written
consent of the Representative on behalf of the Underwriters;
(j) in connection with the offering of the Securities, until CSI on
behalf of the Underwriters shall have notified the Guarantor and the Company of
the completion of the distribution of the Securities, not to, and to cause its
affiliated purchasers (as defined in Regulation M under the Exchange Act) not
to, either alone or with one or more other persons, bid for or purchase, for any
account in which it or any of its affiliated purchasers has a beneficial
interest, any Securities, or attempt to induce any person to purchase any
Securities; and not to, and to cause its affiliated purchasers not to, make bids
or purchase for the purpose of creating actual, or apparent, active trading in
or of raising the price of the Securities; and
(k) to apply the net proceeds from the sale of the Notes as set forth
in the Prospectus under the heading "Use of Proceeds".
5. Conditions of Underwriters' Obligations. The respective
obligations of the several Underwriters hereunder are subject to the accuracy,
on and as of the date of the Underwriting Agreement and the Closing Date, of the
representations and warranties of the Guarantor and the Company contained
herein, to the accuracy of the statements of the Guarantor and the Company and
the officers of their general partner made in any certificates delivered
pursuant hereto, to the performance by each of the Guarantor and the Company of
its obligations hereunder, and to each of the following additional terms and
conditions:
(a) The Prospectus shall have been timely filed with the Commission in
accordance with Section 4(a) of this Agreement, and, if applicable, the
Rule 462(b) Registration Statement shall have become effective by 10:00
a.m. New York City time on the business day following the date of the
Underwriting Agreement. Prior to the Closing Date, no stop order
suspending the effectiveness of the Registration Statement or any part
thereof shall have been issued and no proceeding for that purpose shall
have been initiated or threatened by the Commission; and any request of the
Commission for inclusion of additional information in the Registration
Statement or the Prospectus or otherwise shall have been complied with to
the reasonable satisfaction of the Underwriters.
(b) The Prospectus (and any amendments or supplements thereto) shall
have been printed and copies distributed to the Underwriters as promptly as
practicable on or following the date of the Underwriting Agreement or at
such other date and time as to which the Underwriters may agree.
(c) None of the Underwriters shall have discovered and disclosed to
the Guarantor or the Company on or prior to the Closing Date that the
Prospectus or any amendment or supplement thereto contains an untrue
statement of a fact which, in the
12
opinion of counsel for the Underwriters, is material or omits to state any
fact which, in the opinion of such counsel, is material and is required to
be stated therein or is necessary to make the statements therein not
misleading.
(d) All partnership proceedings and other legal matters incident to
the authorization, form and validity of each of the Transaction Documents
and the Prospectus, and all other legal matters relating to the Transaction
Documents and the transactions contemplated thereby, shall be satisfactory
in all material respects to the Underwriters, and the Guarantor and the
Company shall have furnished to the Underwriters all documents and
information that they or their counsel may reasonably request to enable
them to pass upon such matters.
(e) Xxxxxx & Xxxxxx L.L.P. shall have furnished to the Underwriters
their written opinion, as counsel to the Guarantor and the Company,
addressed to the Underwriters and dated the Closing Date, in form and
substance reasonably satisfactory to the Underwriters, substantially to the
effect set forth in Annex A hereto.
(f) Xxxxxxx X. Xxxxxxxx, Esq. shall have furnished to the Underwriters
his written opinion, as Chief Legal Officer of the Guarantor and the
Company, addressed to the Underwriters and dated the Closing Date, in form
and substance reasonably satisfactory to the Underwriters, substantially to
the effect set forth in Annex B hereto.
(g) The Underwriters shall have received from Xxxxxxx Xxxxxxx &
Xxxxxxxx, counsel for the Underwriters, such opinion or opinions, dated the
Closing Date, with respect to such matters as the Underwriters may
reasonably require, and the Guarantor and the Company shall have furnished
to such counsel such documents and information as they request for the
purpose of enabling them to pass upon such matters.
(h) The Guarantor and the Company shall have furnished to the
Underwriters a letter (the "Initial Letter") of Deloitte & Touche LLP,
addressed to the Underwriters and dated the date of the Underwriting
Agreement, in form and substance satisfactory to the Underwriters,
substantially to the effect set forth in Annex C hereto.
(i) The Guarantor and the Company shall have furnished to the
Underwriters a letter (the "Bring-Down Letter") of Deloitte & Touche LLP,
addressed to the Underwriters and dated the Closing Date (i) confirming
that they are independent accountants with respect to the Guarantor, the
Company and their respective subsidiaries as required by the Securities Act
and the Rules and Regulations, (ii) stating, as of the date of the Bring-
Down Letter (or, with respect to matters involving changes or developments
since the respective dates as of which specified financial information is
given in the Prospectus, as of a date not more than three business days
prior to the date of the Bring-Down Letter), that the conclusions and
findings of such accountants with respect to the financial information and
other matters covered by the Initial Letter are accurate and (iii)
confirming in all material respects the conclusions and findings set forth
in the Initial Letter.
(j) Each of the Guarantor and the Company shall have furnished to the
Underwriters a certificate, dated the Closing Date, of the chief executive
officer and the chief
13
financial officer of their general partner stating that (A) such officers
have carefully examined the Registration Statement and the Prospectus, (B)
in their opinion, the Registration Statement, including the documents
incorporated therein by reference, as of the Effective Time, did not
include any untrue statement of a material fact and did not omit to state a
material fact required to be stated therein or necessary in order to make
the statements therein not misleading, and the Prospectus, including the
documents incorporated therein by reference, as of the date of the
Prospectus and as of the Closing Date, did not and does not include any
untrue statement of a material fact and did not and does not 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, and
(C) as of the Closing Date, the representations and warranties of each of
the Guarantor and the Company in this Agreement are true and correct in all
material respects, each of the Guarantor and the Company has complied with
all agreements and satisfied all conditions on its part to be performed or
satisfied hereunder on or prior to the Closing Date, no stop order
suspending the effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been instituted or, to the best of
such officer's knowledge, are contemplated by the Commission, and
subsequent to the date of the most recent financial statements contained in
the Prospectus, there has been no material adverse change in the financial
position or results of operations of the Guarantor, the Company or any of
their respective subsidiaries, or any change, or any development involving
a prospective material adverse change, in or affecting the condition
(financial or otherwise), results of operations or business of the
Guarantor and its subsidiaries taken as a whole or the Company and its
subsidiaries taken as a whole, except as set forth in the Prospectus.
(k) The Indenture and any applicable supplement thereto, shall have
been duly executed and delivered by each of the Guarantor, the Company and
the Trustee, and the Notes (including the Guarantee endorsed thereon) shall
have been duly executed and delivered by each of the Guarantor and the
Company and duly authenticated by the Trustee.
(l) If any event shall have occurred on or prior to the Closing Date
that requires either the Guarantor or the Company under Section 4(f) to
prepare an amendment or supplement to the Prospectus, such amendment or
supplement shall have been prepared, the Underwriters shall have been given
a reasonable opportunity to comment thereon as provided in Section 4(c)
hereof, and copies thereof shall have been delivered to the Underwriters
reasonably in advance of the Closing Date.
(m) Subsequent to the execution and delivery of the Underwriting
Agreement or, if earlier, the dates as of which information is given in the
Registration Statement (exclusive of any amendment thereto) and the
Prospectus (exclusive of any supplement thereto), there shall not have been
any change in the partnership interests or long-term debt or any change, or
any development involving a prospective change, in or affecting the
condition (financial or otherwise), results of operations, business or
prospects of the Guarantor and its subsidiaries taken as a whole or the
Company and its subsidiaries taken as a whole, the effect of which, in any
such case described above, is, in the judgment of the Representative on
behalf of the Underwriters, so material and adverse as to make it
impracticable or inadvisable
14
to proceed with the public offering of the Securities on the terms and in
the manner contemplated by this Agreement and the Prospectus (exclusive of
any supplement thereto).
(n) No action shall have been taken and no statute, rule, regulation
or order shall have been enacted, adopted or issued by any governmental
agency or body which would, as of the Closing Date, prevent the issuance or
sale of the Securities; and no injunction, restraining order or order of
any other nature by any federal or state court of competent jurisdiction
shall have been issued as of the Closing Date which would prevent the
issuance or sale of the Securities.
(o) Subsequent to the execution and delivery of the Underwriting
Agreement (i) no downgrading shall have occurred in the rating accorded the
Securities or any of the Guarantor's or the Company's other debt securities
or preferred stock by any "nationally recognized statistical rating
organization", as such term is defined by the Commission for purposes of
Rule 436(g)(2) of the Rules and Regulations and (ii) no such organization
shall have publicly announced that it has under surveillance or review
(other than an announcement with positive implications of a possible
upgrading), its rating of the Securities or any of the Guarantor's or the
Company's other debt securities or preferred stock.
(p) Subsequent to the execution and delivery of this Agreement there
shall not have occurred any of the following: (i) trading in securities
generally on the New York Stock Exchange, the American Stock Exchange or
the over-the-counter market shall have been suspended or limited, or
minimum prices shall have been established on any such exchange or market
by the Commission, by any such exchange or by any other regulatory body or
governmental authority having jurisdiction, or trading in any securities of
the Guarantor or the Company on any exchange or in the over-the-counter
market shall have been suspended or (ii) any moratorium on commercial
banking activities shall have been declared by federal or New York state
authorities or (iii) an outbreak or escalation of hostilities or a
declaration by the United States of a national emergency or war or (iv) a
material adverse change in general economic, political or financial
conditions (or the effect of international conditions on the financial
markets in the United States shall be such) the effect of which, in the
case of this clause (iv), is, in the judgment of the Representative on
behalf of the Underwriters, so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the
sale or the delivery of the Notes on the terms and in the manner
contemplated by this Agreement and in the Prospectus (exclusive of any
supplement thereto).
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Underwriters.
6a Termination. The obligations of the Underwriters hereunder may be
terminated by the Underwriters, in their absolute discretion, by notice given to
and received by the Guarantor or the Company prior to delivery of and payment
for the Notes if, prior to that time, any of the events described in Section
5(m), (n), (o) or (p) shall have occurred and be continuing.
15
7a Defaulting Underwriters. (a) If, on the Closing Date, any
Underwriter defaults in the performance of its obligations under this Agreement,
the non-defaulting Underwriters may make arrangements for the purchase of the
Notes which such defaulting Underwriter agreed but failed to purchase by other
persons satisfactory to the Guarantor or the Company and the non-defaulting
Underwriters, but if no such arrangements are made within 36 hours after such
default, this Agreement shall terminate without liability on the part of the
non-defaulting Underwriters, the Guarantor or the Company, except that each of
the Guarantor and the Company will continue to be liable for the payment of
expenses to the extent set forth in Section 12 and except that the provisions of
Sections 9 and 10 shall not terminate and shall remain in effect. As used in
this Agreement, the term "Underwriters" includes, for all purposes of this
Agreement unless the context otherwise requires, any party not listed in the
Underwriting Agreement that, pursuant to this Section 7, purchases Notes which a
defaulting Underwriter agreed but failed to purchase.
(b) Nothing contained herein shall relieve a defaulting Underwriter of
any liability it may have to the Guarantor, the Company or any non-defaulting
Underwriter for damages caused by its default. If other persons are obligated
or agree to purchase the Notes of a defaulting Underwriter, either the non-
defaulting Underwriters, the Guarantor or the Company may postpone the Closing
Date for up to seven full business days in order to effect any changes that in
the opinion of counsel for the Guarantor or the Company or counsel for the
Underwriters may be necessary in the Registration Statement and the Prospectus
or in any other document or arrangement, and each of the Guarantor and the
Company agrees to promptly prepare any amendment or supplement to the
Registration Statement and the Prospectus that effects any such changes.
8a Reimbursement of Underwriters' Expenses. If (a) this Agreement
shall have been terminated pursuant to Section 6, (b) the Guarantor or the
Company shall fail to tender the Notes for delivery to the Underwriters for any
reason permitted under this Agreement or (c) the Underwriters shall decline to
purchase the Notes for any reason permitted under this Agreement, the Guarantor
and the Company shall reimburse the Underwriters for such out-of-pocket expenses
(including reasonable fees and disbursements of counsel) as shall have been
reasonably incurred by the Underwriters in connection with this Agreement and
the proposed public offering and sale of the Notes, and upon demand the
Guarantor and the Company shall pay the full amount thereof to the Underwriters.
If this Agreement is terminated pursuant to Section 7 by reason of the default
of one or more of the Underwriters, neither the Guarantor nor the Company shall
be obligated to reimburse any defaulting Underwriter on account of such
expenses.
9a Indemnification. (a) Each of the Guarantor and the Company,
jointly and severally, shall indemnify and hold harmless each Underwriter, its
affiliates, their respective officers, directors, employees, representatives and
agents, and each person, if any, who controls any Underwriter within the meaning
of the Securities Act or the Exchange Act (collectively referred to for purposes
of this Section 9(a) and Section 10 as an Underwriter), from and against any
loss, claim, damage or liability, joint or several, or any action in respect
thereof (including, without limitation, any loss, claim, damage, liability or
action relating to purchases and sales of the Notes), to which that Underwriter
may become subject, whether commenced or threatened, under the Securities Act,
the Exchange Act, any other federal or state statutory law or regulation,
16
at common law or otherwise, insofar as such loss, claim, damage, liability or
action arises out of, or is based upon, (i) any untrue statement or alleged
untrue statement of a material fact contained in any Preliminary Prospectus, the
Registration Statement or the Prospectus or in any amendment or supplement
thereto or (ii) the omission or alleged omission to state therein a material
fact required to be stated therein or necessary in order to make the statements
therein not misleading, and shall reimburse each Underwriter promptly upon
demand for any legal or other expenses reasonably incurred by that Underwriter
in connection with investigating or defending or preparing to defend against or
appearing as a third party witness in connection with any such loss, claim,
damage, liability or action as such expenses are incurred; provided, however,
that the Company shall not be liable in any such case to the extent that any
such loss, claim, damage, liability or action arises out of, or is based upon,
an untrue statement or alleged untrue statement in or omission or alleged
omission from any of such documents in reliance upon and in conformity with any
Underwriters' Information; and provided, further, that with respect to any such
untrue statement in or omission from any Preliminary Prospectus, the indemnity
agreement contained in this Section 9(a) shall not inure to the benefit of any
such Underwriter to the extent that the sale to the person asserting any such
loss, claim, damage, liability or action was an initial resale by such
Underwriter and any such loss, claim, damage, liability or action of or with
respect to such Underwriter results from the fact that both (A) to the extent
required by applicable law, a copy of the Prospectus (excluding the documents
incorporated by reference therein) was not sent or given to such person at or
prior to the written confirmation of the sale of such Notes to such person and
(B) the untrue statement in or omission from such Preliminary Prospectus was
corrected in the Prospectus unless, in either case, such failure to deliver the
Prospectus was a result of non-compliance by the Guarantor or the Company with
Section 4(e).
(b) Each Underwriter, severally and not jointly, shall indemnify and
hold harmless the Guarantor, the Company, their general partner, the respective
officers of such general partner who signed the Registration Statement,
directors, and each person, if any, who controls the Guarantor or the Company
within the meaning of the Securities Act or the Exchange Act (collectively
referred to for purposes of this Section 9(b) and Section 10 as the Company),
from and against any loss, claim, damage or liability, joint or several, or any
action in respect thereof, to which the Company may become subject, whether
commenced or threatened, under the Securities Act, the Exchange Act, any other
federal or state statutory law or regulation, at common law or otherwise,
insofar as such loss, claim, damage, liability or action arises out of, or is
based upon, (i) any untrue statement or alleged untrue statement of a material
fact contained in any Preliminary Prospectus, the Registration Statement or the
Prospectus or in any amendment or supplement thereto or (ii) the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, but in each case only
to the extent that the untrue statement or alleged untrue statement or omission
or alleged omission was made in reliance upon and in conformity with any
Underwriters' Information provided by such Underwriter, and shall reimburse the
Company for any legal or other expenses reasonably incurred by the Company in
connection with investigating or defending or preparing to defend against or
appearing as a third party witness in connection with any such loss, claim,
damage, liability or action as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under this Section
9 of notice of any claim or the commencement of any action, the indemnified
party shall, if a claim in respect
17
thereof is to be made against the indemnifying party pursuant to Section 9(a) or
9(b), notify the indemnifying party in writing of the claim or the commencement
of that action; provided, however, that the failure to notify the indemnifying
party shall not relieve it from any liability which it may have under this
Section 9 except to the extent that it has been materially prejudiced (through
the forfeiture of substantive rights or defenses) by such failure; and,
provided, further, that the failure to notify the indemnifying party shall not
relieve it from any liability which it may have to an indemnified party
otherwise than under this Section 9. If any such claim or action shall be
brought against an indemnified party, and it shall notify the indemnifying party
thereof, the indemnifying party shall be entitled to participate therein and, to
the extent that it wishes, jointly with any other similarly notified
indemnifying party, to assume the defense thereof with counsel reasonably
satisfactory to the indemnified party. After notice from the indemnifying party
to the indemnified party of its election to assume the defense of such claim or
action, the indemnifying party shall not be liable to the indemnified party
under this Section 9 for any legal or other expenses subsequently incurred by
the indemnified party in connection with the defense thereof other than
reasonable costs of investigation; provided, however, that an indemnified party
shall have the right to employ its own counsel in any such action, but the fees,
expenses and other charges of such counsel for the indemnified party will be at
the expense of such indemnified party unless (1) the employment of counsel by
the indemnified party has been authorized in writing by the indemnifying party,
(2) the indemnified party has reasonably concluded (based upon advice of counsel
to the indemnified party) that there may be legal defenses available to it or
other indemnified parties that are different from or in addition to those
available to the indemnifying party, (3) a conflict or potential conflict exists
(based upon advice of counsel to the indemnified party) between the indemnified
party and the indemnifying party (in which case the indemnifying party will not
have the right to direct the defense of such action on behalf of the indemnified
party) or (4) the indemnifying party has not in fact employed counsel reasonably
satisfactory to the indemnified party to assume the defense of such action
within a reasonable time after receiving notice of the commencement of the
action, in each of which cases the reasonable fees, disbursements and other
charges of counsel will be at the expense of the indemnifying party or parties.
It is understood that the indemnifying party or parties shall not, in connection
with any proceeding or related proceedings in the same jurisdiction, be liable
for the reasonable fees, disbursements and other charges of more than one
separate firm of attorneys (in addition to any local counsel) at any one time
for all such indemnified party or parties. Each indemnified party, as a
condition of the indemnity agreements contained in Sections 9(a) and 9(b), shall
use all reasonable efforts to cooperate with the indemnifying party in the
defense of any such action or claim. No indemnifying party shall be liable for
any settlement of any such action effected without its written consent (which
consent shall not be unreasonably withheld), but if settled with its written
consent or if there be a final judgment for the plaintiff in any such action,
the indemnifying party agrees to indemnify and hold harmless any indemnified
party from and against any loss or liability by reason of such settlement or
judgment. No indemnifying party shall, without the prior written consent of the
indemnified party (which consent shall not be unreasonably withheld), effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
The obligations of the Guarantor, the Company and the Underwriters in
this Section 9 and in Section 10 are in addition to any other liability that the
Guarantor, the Company or the
18
Underwriters, as the case may be, may otherwise have, including in respect of
any breaches of representations, warranties and agreements made herein by any
such party.
10a Contribution. If the indemnification provided for in Section 9
is unavailable or insufficient to hold harmless an indemnified party under
Section 9(a) or 9(b), then each indemnifying party shall, in lieu of
indemnifying such indemnified party, contribute to the amount paid or payable by
such indemnified party as a result of such loss, claim, damage or liability, or
action in respect thereof, (i) in such proportion as shall be appropriate to
reflect the relative benefits received by the Company on the one hand and the
Underwriters on the other from the offering of the Securities or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company on
the one hand and the Underwriters on the other with respect to the statements or
omissions that resulted in such loss, claim, damage or liability, or action in
respect thereof, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the Underwriters
on the other with respect to such offering shall be deemed to be in the same
proportion as the total net proceeds from the offering of the Notes purchased
under this Agreement (before deducting expenses) received by or on behalf of the
Company, on the one hand, and the total underwriting discounts and commissions
received by the Underwriters with respect to the Notes purchased under this
Agreement, on the other, bear to the total gross proceeds from the sale of the
Notes under this Agreement, in each case as set forth in the table on the cover
page of the Prospectus. The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to the
Company or information supplied by the Company on the one hand or to any
Underwriters' Information on the other, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission. The Company and the Underwriters agree that
it would not be just and equitable if contributions pursuant to this Section 10
were to be determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of allocation
that does not take into account the equitable considerations referred to herein.
The amount paid or payable by an indemnified party as a result of the loss,
claim, damage or liability, or action in respect thereof, referred to above in
this Section 10 shall be deemed to include, for purposes of this Section 10, any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending or preparing to defend any such
action or claim. Notwithstanding the provisions of this Section 10, no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total underwriting discounts and commissions received by such
Underwriter with respect to the Notes purchased by it under this Agreement
exceeds the amount of any damages which such Underwriter has otherwise paid or
become liable to pay by reason of any untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute as provided in
this Section 10 are several in proportion to their respective underwriting
commitments and not joint.
19
11a Persons Entitled to Benefit of Agreement. This Agreement shall
inure to the benefit of and be binding upon the Underwriters, the Guarantor, the
Company and their respective successors. This Agreement and the terms and
provisions hereof are for the sole benefit of only those persons, except as
provided in Sections 9 and 10 with respect to affiliates, officers, directors,
employees, representatives, agents and controlling persons of the Guarantor, the
Company and the Underwriters. Nothing in this Agreement is intended or shall be
construed to give any person, other than the persons referred to in this Section
11, any legal or equitable right, remedy or claim under or in respect of this
Agreement or any provision contained herein.
12a Expenses. Each of the Guarantor and the Company agrees with the
Underwriters to pay (a) the costs incident to the authorization, issuance, sale,
preparation and delivery of the Securities and any taxes payable in that
connection; (b) the costs incident to the preparation, printing and filing under
the Securities Act of the Registration Statement and any amendments and exhibits
thereto; (c) the costs of printing and distributing the Registration Statement
as originally filed and each amendment thereto and any post-effective amendments
thereof (including, in each case, exhibits), any Preliminary Prospectus, the
Prospectus and any amendment or supplement thereto, all as provided in this
Agreement; (d) the costs of printing, reproducing and distributing the
Indenture, this Agreement and any underwriting and selling group documents;
(e) the filing fees incident to securing any required review by the National
Association of Securities Dealers, Inc. of the terms of sale of the Notes;
(f) the fees and expenses of the Guarantor's and the Company's counsel and
independent accountants; (g) the fees and expenses of preparing, printing and
distributing Blue Sky Memoranda (including related fees and expenses of counsel
to the Underwriters); (h) any fees charged by rating agencies for rating the
Securities; (I) all fees and expenses of the Trustee and any paying agent
(including related fees and expenses of any counsel to such parties); and
(j) all other costs and expenses incident to the performance of the obligations
of the Guarantor and the Company under this Agreement; provided that, except as
provided in this Section 12 and Section 8, the Underwriters shall pay their own
costs and expenses.
13a Survival. The respective indemnities, rights of contribution,
representations, warranties and agreements of the Guarantor, the Company and the
Underwriters contained in this Agreement or made by or on behalf of the
Guarantor, the Company or the Underwriters pursuant to this Agreement or any
certificate delivered pursuant hereto shall survive the delivery of and payment
for the Notes and shall remain in full force and effect, regardless of any
termination or cancellation of this Agreement or any investigation made by or on
behalf of any of them or any of their respective affiliates, officers,
directors, employees, representatives, agents or controlling persons.
14a Notices, etc. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to the Underwriters, shall be delivered or sent by mail or
telecopy transmission to the Representative at the address set forth in the
Underwriting Agreement.; or
20
(b) if to the Guarantor or the Company, shall be delivered or sent by
mail or telecopy transmission to the address of the Company set forth in
the Registration Statement, Attention: (telecopier no.: 713-880-6570).
Any such statements, requests, notices or agreements shall take effect at the
time of receipt thereof. Each of the Guarantor and the Company shall be
entitled to act and rely upon any request, consent, notice or agreement given or
made on behalf of the Underwriters by the Representative.
15a Definition of Terms. For purposes of this Agreement, (a) the
term "business day" means any day on which the New York Stock Exchange, Inc. is
open for trading, (b) the term "subsidiary" has the meaning set forth in Rule
405 under the Securities Act and (c) except where otherwise expressly provided,
the term "affiliate" has the meaning set forth in Rule 405 of the Rules and
Regulations.
16a Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York.
17a Counterparts. This Agreement may be executed in one or more
counterparts (which may include counterparts delivered by telecopier) and, if
executed in more than one counterpart, the executed counterparts shall each be
deemed to be an original, but all such counterparts shall together constitute
one and the same instrument.
18a Amendments. No amendment or waiver of any provision of this
Agreement, nor any consent or approval to any departure therefrom, shall in any
event be effective unless the same shall be in writing and signed by the parties
hereto.
19a 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.
ANNEX A
[Form of Opinion of Outside Counsel for the Guarantor and the Company]
Xxxxxx & Xxxxxx L.L.P. shall have furnished to the Underwriters their
written opinion, as counsel to the Guarantor and the Company, addressed to the
Underwriters and dated the Closing Date, in form and substance reasonably
satisfactory to the Underwriters, substantially to the effect set forth below:
(i) The Registration Statement was declared effective under the
Securities Act and the Indenture was qualified under the Trust Indenture
Act as of the date and time specified in such opinion; [the Rule 462(b)
Registration Statement was filed with the Commission pursuant to Rule
462(b) of the Rules and Regulations on the date and at the time specified
in such opinion;] the Prospectus was filed with the Commission pursuant to
the subparagraph of Rule 424(b) of the Rules and Regulations specified in
such opinion on the date specified therein; and no stop order suspending
the effectiveness of the Registration Statement has been issued and, to the
best of such counsel's knowledge, no proceeding for that purpose is pending
or threatened by the Commission.
(ii) The Registration Statement and the Prospectus and any
further amendments or supplements to the Registration Statement or the
Prospectus made by the Guarantor and the Company prior to the Closing Date
(other than the financial statements and related schedules therein, as to
which such counsel need express no opinion) comply as to form in all
material respects with the requirements of the Securities Act and the Rules
and Regulations; and the Exchange Act Reports (other than the financial
statements and related schedules therein, as to which such counsel need
express no opinion), when they were filed with the Commission complied as
to form in all material respects with the requirements of the Exchange Act
and the rules and regulations of the Commission thereunder.
(iii) The Indenture complies as to form in all material respects
with the requirements of the Trust Indenture Act and the rules and
regulations of the Commission thereunder.
(iv) The statements in the Prospectus under the heading "Certain
Federal Income Tax Considerations", to the extent that they constitute
summaries of matters of law or regulation or legal conclusions, have been
reviewed by such counsel and fairly summarize the matters described therein
in all material respects.
(v) Each of the Guarantor and the Company has full right,
partnership power and authority to execute and deliver each of the
Transaction Documents to which it is a party and to perform its obligations
thereunder; and all partnership action required to be taken for the due and
proper authorization, execution and delivery of each of the
2
Transaction Documents to which it is a party and the consummation of
the transactions contemplated thereby have been duly and validly taken.
(vi) The Underwriting Agreement has been duly authorized,
executed and delivered by each of the Guarantor and the Company and
constitutes a valid and legally binding agreement of each of the Guarantor
and the Company enforceable against each of the Guarantor and the Company
in accordance with its terms, except to the extent that such enforceability
may be limited by applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws affecting creditors=
rights generally and by general equitable principles (whether considered in
a proceeding in equity or at law) and except to the extent that the
indemnification provisions thereof may be unenforceable.
(vii) The Indenture has been duly authorized, executed and
delivered by each of the Guarantor and the Company and, assuming due
authorization, execution and delivery thereof by the Trustee, constitutes a
valid and legally binding agreement of each of the Guarantor and the
Company enforceable against each of Guarantor and the Company in accordance
with its terms, except to the extent that such enforceability may be
limited by applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws affecting creditors=
rights generally and by general equitable principles (whether considered in
a proceeding in equity or at law).
(viii) The Notes have been duly authorized and issued by the
Company and the Guarantee has been duly authorized and issued by the
Guarantor and, assuming due authentication thereof by the Trustee and upon
payment and delivery in accordance with the Underwriting Agreement, will be
duly and validly issued and outstanding and will constitute valid and
legally binding obligations of each of the Guarantor and the Company
entitled to the benefits of the Indenture and enforceable against each of
the Guarantor and the Company in accordance with their terms, except to the
extent that such enforceability may be limited by applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other
similar laws affecting creditors' rights generally and by general equitable
principles (whether considered in a proceeding in equity or at law).
(ix) Each Transaction Document conforms in all material respects
to the description thereof contained in the Prospectus.
(x) None of the Guarantor, the Company or any of their
respective subsidiaries is (A) an "investment company" or a company
"controlled by" an investment company within the meaning of the Investment
Company Act and the rules and regulations of the Commission thereunder,
without taking account of any exemption under the Investment Company Act
arising out of the number of holders of the Guarantor's or the Company's
securities or (B) a "holding company" or a "subsidiary company" of a
holding company or an "affiliate" thereof within the meaning of the Public
Utility Holding Company Act of 1935, as amended; and
3
Such counsel shall also state that they have participated in
conferences with representatives of the Guarantor and the Company and with
representatives of its independent accountants and counsel at which conferences
the contents of the Registration Statement and the Prospectus and any amendment
and supplement thereto and related matters were discussed and, although such
counsel assume no responsibility for the accuracy, completeness or fairness of
the Registration Statement, the Prospectus and any amendment or supplement
thereto (except as expressly provided above), nothing has come to the attention
of such counsel to cause such counsel to believe that the Registration Statement
(or any post-effective amendment thereto), including any Exchange Act Reports
incorporated by reference therein, at the time of its effective date, contained
any untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading, or that the Prospectus or any amendment or supplement thereto,
including any Exchange Act Reports incorporated by reference therein, as of its
date and the Closing Date contains any untrue statement of a material fact or
omits to state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading (other
than the financial statements and other financial and statistical information
contained therein, as to which such counsel need express no belief).
In rendering such opinion, such counsel may rely as to matters of
fact, to the extent such counsel deems proper, on certificates of responsible
officers of the Guarantor and the Company and public officials which are
furnished to the Underwriters.
ANNEX B
[Form of Opinion of Chief Legal Officer of the Guarantor and the Company]
Xxxxxxx X. Xxxxxxxx, Esq., Chief Legal Officer of the Guarantor and
the Company, shall have furnished to the Underwriters his written opinion, as
counsel to the Guarantor and the Company, addressed to the Underwriters and
dated the Closing Date, in form and substance reasonably satisfactory to the
Underwriters, substantially to the effect set forth below:
(i) Each of the Guarantor and the Company has been duly formed
and is validly existing and in good standing under the laws of Delaware, is
duly qualified to do business and is in good standing as a foreign
partnership in each jurisdiction in which its ownership or lease of
property or the conduct of its businesses requires such qualification, and
has all partnership power and authority necessary to own or hold its
properties and to conduct the businesses in which it is engaged (except
where the failure to so qualify or have such power or authority would not,
singularly or in the aggregate, have a Material Adverse Effect).
(ii) All of the issued shares of capital stock or partnership
interests, as the case may be, of each subsidiary of the Company have been
duly and validly authorized and issued and are fully paid and non-
assessable and (except for directors' qualifying shares) are owned directly
or indirectly by the Company, free and clear of all liens, encumbrances,
equities or claims.
(iii) The descriptions in the Prospectus of statutes, legal and
governmental proceedings and contracts and other documents (other than the
Transaction Documents) are accurate in all material respects; and, to the
best of such counsel's knowledge, (A) there are no current or pending legal
or governmental actions, suits or proceedings which are required to be
described in the Prospectus by the Securities Act or the Rules and
Regulations and which have not been so described and (B) there are no
contracts and other documents which are required under the Securities Act
or the Rules and Regulations to be described in the Prospectus or filed as
exhibits to the Registration Statement and which have not been so described
or filed.
(iv) The execution, delivery and performance by each of the
Guarantor and the Company of each of the Transaction Documents to which it
is a party, the issuance, authentication, sale and delivery of the Notes
and compliance by each of the Guarantor and the Company with the terms
thereof and the consummation of the transactions contemplated by the
Transaction Documents to which it is a party will not conflict with or
result in a breach or violation 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 either the
Guarantor or the Company or any of their respective subsidiaries pursuant
to, any material indenture, mortgage, deed of trust, loan agreement or
other material agreement or instrument known to such counsel to which
either of the Guarantor or the Company or any of their respective
subsidiaries is a party or by which
2
any of the Guarantor, the Company or any of their respective subsidiaries
is bound or to which any of the property or assets of the Guarantor, the
Company or any of their respective subsidiaries is subject, nor will such
actions result in any violation of the provisions of the organizational
documents of the Guarantor, the Company or any of their respective
subsidiaries or any statute or, to the best knowledge of such counsel, any
judgment, order, decree, rule or regulation of any court or arbitrator or
governmental agency or body having jurisdiction over the Guarantor, the
Company or any of their respective subsidiaries or any of their properties
or assets; and no consent, approval, authorization or order of, or filing
or registration with, any such court or arbitrator or governmental agency
or body under any such statute, judgment, order, decree, rule or regulation
is required for the execution, delivery and performance by either the
Guarantor or the Company of each of the Transaction Documents to which it
is a party, the issuance, authentication, sale and delivery of the Notes
and compliance by each of the Guarantor and the Company with the terms
thereof and the consummation of the transactions contemplated by the
Transaction Documents to which it is a party, except for such consents,
approvals, authorizations, filings, registrations or qualifications
(i) which shall have been obtained or made prior to the Closing Date and
(ii) as may be required to be obtained or made under the Exchange Act and
applicable state securities laws in connection with the purchase and
distribution of the Notes by the Underwriters.
(v) To the best knowledge of such counsel, there are no pending
actions or suits or judicial, arbitral, rule-making, administrative or
other proceedings to which the Guarantor, the Company or any of their
respective subsidiaries is a party or of which any property or assets of
Guarantor, the Company or any of their respective subsidiaries is the
subject which (A) singularly or in the aggregate, if determined adversely
to the Guarantor, the Company or any of their respective subsidiaries,
could reasonably be expected to have a Material Adverse Effect or
(B) questions the validity or enforceability of any of the Transaction
Documents to which it is a party or any action taken or to be taken
pursuant thereto; and to the best knowledge of such counsel, no such
proceedings are threatened or contemplated by governmental authorities or
threatened by others.
ANNEX C
[Form of Initial Comfort Letter]
The Guarantor and the Company shall have furnished to the Underwriters
a letter of Deloitte & Touche LLP, addressed to the Underwriters and dated the
date of delivery thereof (which, if the Effective Time is prior to the execution
and delivery of the Underwriting Agreement, shall be on or prior to the date of
the Underwriting Agreement or, if the Effective Time is subsequent to the
execution and delivery of the Underwriting Agreement, shall be prior to the
filing of the amendment or post-effective amendment to the Registration
Statement to be filed shortly prior to the Effective Time), in form and
substance satisfactory to the Underwriters, substantially to the effect set
forth below:
(i) they are independent certified public accountants with
respect to the Guarantor and the Company as required by the Securities Act
and the Rules and Regulation and are in compliance with the applicable
requirements relating to the qualification of accountants under Rule 2-01
of Regulation S-X of the Commission;
(ii) in their opinion, the audited financial statements and pro
forma financial statements included or incorporated by reference in the
Registration Statement and the Prospectus and reported on by them comply in
form in all material respects with the accounting requirements of the
Securities Act, the Exchange Act and the related published rules and
regulations of the Commission thereunder (except that certain supporting
schedules are omitted);
(iii) based upon a reading of the latest unaudited financial
statements made available by the Guarantor and the Company, the procedures
of the AICPA for a review of interim financial information as described in
Statement of Auditing Standards No. 71, reading of minutes and inquiries of
certain officials of the Guarantor and the Company who have responsibility
for financial and accounting matters and certain other limited procedures
requested by the Underwriters and described in detail in such letter,
nothing has come to their attention that causes them to believe that
(A) any unaudited financial statements included or incorporated by
reference in the Registration Statement and the Prospectus do not comply as
to form in all material respects with applicable accounting requirements or
(B) any material modifications should be made to the unaudited financial
statements included or incorporated by reference in the Registration
Statement and the Prospectus for them to be in conformity with generally
accepted accounting principles applied on a basis substantially consistent
with that of the audited financial statements included or incorporated by
reference in the Prospectus;
(iv) based upon the procedures detailed in such letter with
respect to the period subsequent to the date of the last available balance
sheet, including reading of minutes and inquiries of certain officials of
the Guarantor and the Company who have responsibility for financial and
accounting matters, nothing has come to their attention
2
that causes them to believe that (A) at a specified date not more than
three business days prior to the date of such letter, there was any change
in capital stock, increase in long-term debt or decrease in net current
assets as compared with the amounts shown in the ________________, ___
unaudited balance sheet included in the Registration Statement and the
Prospectus or (B) for the period from _________________, ____ to a
specified date not more than three business days prior to the date of such
letter, there were any decreases, as compared with the corresponding period
in the preceding year, in net sales, income from operations, EBITDA or net
income, except in all instances for changes, increases or decreases that
the Prospectus discloses have occurred or which are set forth in such
letter, in which case the letter shall be accompanied by an explanation by
either the Guarantor or the Company as to the significance thereof unless
said explanation is not deemed necessary by the Underwriters;
(v) they have performed certain other specified procedures as a
result of which they determined that certain information of an accounting,
financial or statistical nature (which is limited to accounting, financial
or statistical information derived from the general accounting records of
the Guarantor and the Company) set forth or incorporated by reference in
the Registration Statement and the Prospectus agrees with the accounting
records of the Guarantor and the Company, excluding any questions of legal
interpretation; and
(vi) on the basis of a reading of the unaudited pro forma
financial information included or incorporated by reference in the
Registration Statement and the Prospectus, carrying out certain specified
procedures, reading of minutes and inquiries of certain officials of the
Guarantor and the Company who have responsibility for financial and
accounting matters and proving the arithmetic accuracy of the application
of the pro forma adjustments to the historical amounts in the pro forma
financial information, nothing came to their attention which caused them to
believe that the pro forma financial information does not comply in form in
all material respects with the applicable accounting requirements of Rule
11-02 of Regulation S-X or that the pro forma adjustments have not been
properly applied to the historical amounts in the compilation of such
information.
