RAM ENERGY, INC.
(a Delaware corporation)
% Senior Notes due 2008
UNDERWRITING AGREEMENT
February __, 1998
▇▇▇▇▇▇▇▇▇ & Company, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
RAM Energy, Inc., a Delaware corporation (the "Company"), and RB
Operating Company, a Delaware corporation ("RB"), and RLP Gulf States,
L.L.C., an Oklahoma limited liability company ("RLP" and, collectively with
RB, the "Guarantors") hereby confirm their agreement with you (the
"Underwriter") with respect to the issuance and sale by the Company and the
Guarantors and the purchase by the Underwriter of $115,000,000 aggregate
principal amount of the Company's ___% Senior Notes due February ___, 2008
(the "Notes") and the related Guaranties (as hereinafter defined). The Notes
are being issued pursuant to an indenture (the "Indenture") among the
Company, the Guarantors and United States Trust Company of New York, as
Trustee (the "Trustee"). The guaranties provided by the Guarantors pursuant
to the Indenture are herein referred to as the "Guaranties". The Notes and
the Guaranties are herein collectively referred to as the "Securities".
You have advised us that you desire to purchase the Securities and that
you propose to make a public offering of the Securities as soon as you deem
advisable after the Registration Statement referred to below becomes
effective upon the terms set forth in the Prospectus referred to below.
The terms that follow, when used in this Agreement, shall have the
meanings indicated. "Preliminary Prospectus" shall mean any preliminary
prospectus referred to in Section 1(a)(i) below and any preliminary
prospectus related to the Securities included in the Registration Statement
on the date that the Registration Statement becomes effective (the "Effective
Date") that omits Rule 430A Information (as defined below). "Registration
Statement" shall mean the registration statement referred to in Section
1(a)(i) below, including exhibits, as amended at the Representation Date (as
defined below) (or, if not effective at the Representation Date, in the form
in which it shall become effective) and, in the event any post-effective
amendment thereto becomes effective prior to the Closing Date (as defined in
Section 2 hereof), shall also mean such registration statement as so amended.
Such term shall include Rule 430A Information deemed to be included therein
at the Effective Date as provided by Rule 430A (as defined below). The
prospectus related to the Securities and constituting a part of the
Registration Statement (including the Rule 430A Information), as from time to
time amended or supplemented, is hereinafter referred to as the "Prospectus",
except that if any revised prospectus shall be provided to the Underwriter by
the Company that differs from the prospectus on file at the Securities and
Exchange Commission (the "Commission") at the Effective Date (whether or not
such revised prospectus is required to be filed by the Company pursuant to
Rule 424 of the Act Regulations), the term "Prospectus" shall refer to each
such revised prospectus from and after the time it is first provided to the
Underwriter for such use.
"Rule 158", "Rule 424" and "Rule 430A" refer to such rules under the
Securities Act of 1933, as amended (the "Act"; and the rules and regulations
under the Act, the "Act Regulations"). "Rule 430A Information" means
information with respect to the Securities and the offering thereof permitted
to be omitted from the Registration Statement when it becomes effective
pursuant to Rule 430A. The "Trust Indenture Act" shall mean the Trust
Indenture Act of 1939, as amended, and the "Trust Indenture Act Regulations"
shall mean the rules and regulations under the Trust Indenture Act.
SECTION 1. REPRESENTATIONS AND WARRANTIES.
(a) The Company and the Guarantors represent and warrant to the
Underwriter as of the date hereof (such date being referred to as the
"Representation Date") and as of the Closing Date, as follows; provided,
however, that all representations and warranties with respect to Carlton
Resources Corporation ("Carlton") on the Representation Date are, and as of the
Closing Date shall be, to the best knowledge of the Company's executive
officers:
(i) The Company and the Guarantors have filed with the Commission a
registration statement on Form S-1 (Registration No. 333-42641), including
a preliminary prospectus related to the Securities, and one or more
amendments thereto, including the related preliminary prospectus, each of
which has previously been furnished to the Underwriter, for the
registration under the Act of the offering and sale of the Securities. The
Company and the Guarantors will file with the Commission either (A) prior
to effectiveness of such registration statement, a further amendment to
such registration statement (including the form of final prospectus) or (B)
after effectiveness of such registration statement, a final prospectus in
accordance with Rules 430A and 424(b) or Rule 434 of the Act Regulations.
The Company and the Guarantors have included in such registration
statement, as amended at the Effective Date, all information (other than
Rule 430A Information in the case of clause (B)) required by the Act, the
Act Regulations, the Trust Indenture Act and the Trust Indenture Act
Regulations to be included in the prospectus with respect to the Securities
and the offering thereof. As filed, such amendment and form of final
prospectus, or such final prospectus, shall contain all Rule 430A
Information, together with all other such required information, with
respect to the Securities and the offering thereof and, except to the
extent the Underwriter shall agree in writing to a modification, shall be
in all substantive respects in the form furnished to the Underwriter prior
to the date hereof.
(ii) On the Effective Date, the Representation Date and the Closing
Date, the Registration Statement did and will, and when the Prospectus is
first filed (if required) in accordance with Rule 424(b) the Prospectus
will, comply in all material respects with the applicable requirements of
the Act, the Act Regulations, the Trust Indenture Act and the Trust
Indenture Act Regulations; on the Effective Date, the Representation Date
and the Closing Date, the Registration Statement did not and will not
contain 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; and, on the Effective Date, the
Representation Date and the Closing Date, and on the date of any filing
pursuant to Rule 424(b), the Prospectus did not and will not contain any
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading; provided, that the Company and the Guarantors make no
representation or warranty as to the information provided in writing to the
Company and the Guarantors by or on behalf of the Underwriter, expressly
for use in the Registration Statement or the Prospectus, and the Company
and the Guarantors agree that the only information provided in writing by
or on behalf of the Underwriter to the Company, expressly for use in the
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Registration Statement or the Prospectus, is that information contained
in the third paragraph in the section of the Prospectus entitled
"Underwriting" and the last paragraph on the cover page of the Prospectus.
(iii) The Company is a corporation duly organized and validly
existing in good standing under the laws of the State of Delaware, with
full corporate power and authority to own, lease and operate its properties
and to conduct its business as described in the Registration Statement and
the Prospectus, and is duly registered and qualified to conduct its
business and is in good standing in each jurisdiction where the nature or
location of its properties (owned or leased) or the conduct of its business
requires such registration or qualification, except where the failure so to
register or qualify would not have a Material Adverse Effect. As used
herein, the term "Material Adverse Effect" shall mean an adverse effect on
the condition (financial or other), business, properties, net worth or
results of operations of the Company or any of the Subsidiaries (as
hereinafter defined) that would be, singly or in the aggregate, material to
the Company and the Subsidiaries, taken as a whole, whether or not
occurring in the ordinary course of business, provided that fluctuations in
the market prices of oil and natural gas shall not be deemed to be the
occurrence of an adverse effect.
(iv) The only subsidiaries (as defined in the Act Regulations) of the
Company are the Guarantors and any other subsidiaries listed on Schedule 1
hereto (the Guarantors, any other such listed subsidiaries and Carlton
being collectively referred to as the "Subsidiaries"). Each of RB and
Carlton is a corporation duly organized and validly existing in good
standing under the laws of the State of Delaware, with full corporate power
and authority to own, lease and operate its properties and to conduct its
business as described in the Registration Statement and in the Prospectus.
RLP is a limited liability company duly organized and validly existing
under the laws of the State of Oklahoma, with all requisite power and
authority to own, lease and operate its properties and to conduct its
business as described in the Registration Statement and Prospectus. Each
of the Subsidiaries is duly registered and qualified to conduct its
business and is in good standing in each jurisdiction where the nature or
location of its properties (owned or leased) or the conduct of its business
requires such registration or qualification, except where the failure so to
register or qualify would not have a Material Adverse Effect. The
Partnership (as hereinafter defined) has been dissolved and all of its
assets have been distributed to the Company or the Subsidiaries.
(v) As of each of the dates of its balance sheets included in the
Registration Statement and the Prospectus (the "Balance Sheet Dates"), the
RAMCO-NYL 1987 Limited Partnership, a Texas limited partnership (the
"Partnership"), was duly formed and validly existing as a limited
partnership under the laws of the State of Texas. As of each of the
Balance Sheet Dates, the Partnership (A) had all requisite power and
authority to own, lease and operate its properties and to conduct its
business as described in the Registration Statement and Prospectus and was
duly qualified or registered as a foreign partnership in each jurisdiction
where the nature or location of its properties (owned or leased) or the
conduct of its business required such registration or qualification, except
where the failure so to register or qualify would not have a Material
Adverse Effect and (B) had all necessary authorizations, approvals, orders,
licenses, rights-of-way, operating rights, easements, certificates and
permits of and from, and had made all declarations and filings with, all
regulatory or governmental officials and bodies, all self-regulatory
organizations and all courts and other tribunals ("Permits"), to own or
lease its properties and to conduct its business described in the
Prospectus and the Registration, except where failure to have obtained or
made the same would not have a Material Adverse Effect.
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(vi) Each of the Company and the Subsidiaries has all necessary
Permits to own or lease its properties and to conduct its business
described in the Prospectus and the Registration Statement, except where
failure to have obtained or made the same would not have a Material Adverse
Effect, and neither the Company nor any of the Subsidiaries has received
any notice of proceedings relating to the revocation or modification of any
such Permits, where the failure to be so licensed or approved or where the
subject of an unfavorable decision, ruling or finding, would have a
Material Adverse Effect; each of the Company and the Subsidiaries has
fulfilled and performed all its current material obligations with respect
to such Permits and no event has occurred that allows, or after notice or
lapse of time, or both, would allow, revocation or termination thereof or
result in any other material impairment of the rights of the holder of any
such Permit; and such Permits contain no restrictions that are materially
burdensome to the Company or the Subsidiaries; and the Company and each of
the Subsidiaries is in compliance with all applicable laws, rules,
regulations, orders and consents, the violation of which could have a
Material Adverse Effect. The property and business of the Company and the
Subsidiaries conform in all material respects to the descriptions thereof
contained in the Prospectus and the Registration Statement.
(vii) All of the Company's authorized and outstanding capital
stock has been duly authorized, validly issued and is fully paid and
nonassessable and the capitalization of the Company conforms to the
descriptions thereof and the statements made with respect thereto in the
Registration Statement and the Prospectus as of the date set forth therein.
There are no outstanding securities convertible into or exchangeable for,
and no outstanding options, warrants or other rights to purchase, any
shares of the capital stock of the Company, nor any agreements or
commitments to issue any of the same, except as described in the
Registration Statement and the Prospectus, and there are no preemptive or
other rights to subscribe for or to purchase, and no restrictions upon the
voting or transfer of, any capital stock of the Company pursuant to the
Company's certificate of incorporation or by-laws or any agreement or other
instrument to which the Company is a party, except as described in the
Registration Statement and the Prospectus.
(viii) All the outstanding shares of capital stock of RB and
Carlton, and all of the outstanding membership interests of RLP, have been
duly authorized and are validly issued, fully paid and nonassessable and
were not issued in violation of or subject to any preemptive or similar
rights. Except as otherwise set forth in the Registration Statement and
the Prospectus, all outstanding shares of capital stock or membership
interests of RB and RLP, respectively, are owned by the Company, directly
or indirectly through another Subsidiary, free and clear of any security
interests, liens, encumbrances, equities or other claims.
(ix) Each of the Company and the Subsidiaries has defensible title to
all real property and to all personal property owned by it, including those
properties described in the Registration Statement and Prospectus, in each
case free and clear of all liens, charges, encumbrances and restrictions,
except such as are described in the Registration Statement and Prospectus
or such as would not have a Material Adverse Effect. Each of the Company
and the Subsidiaries has valid, subsisting and enforceable leases for the
properties described in the Registration Statement and the Prospectus as
leased by it, with such exceptions as are described in the Registration
Statement and the Prospectus or that in the aggregate would not have a
Material Adverse Effect.
(x) The Company and the Guarantors have all requisite power,
authority, authorizations, approvals, orders, licenses, certificates and
permits to enter into this Agreement and the Indenture and to carry out the
provisions and conditions hereof and thereof, and to issue and deliver to
the Underwriter the Securities that are being sold
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by the Company and the Guarantors as provided herein. This Agreement
has been duly authorized, executed and delivered by the Company and the
Guarantors and constitutes a legal, valid and binding agreement of the
Company and the Guarantors, enforceable against them in accordance with
its terms, except to the extent rights to indemnity hereunder may be
limited by federal or state securities laws or public policy underlying
such laws and except to the extent that such enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or affecting creditors' rights generally or by
equitable principles. The Indenture has been duly authorized and, when
executed and delivered by the Company, the Guarantors and the Trustee
and qualified under the Trust Indenture Act, will constitute a legal,
valid and binding agreement of the Company and the Guarantors,
enforceable against them in accordance with its terms, except to the
extent rights to indemnity thereunder may be limited by federal or
state securities laws or public policy underlying such laws and except
to the extent that such enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating
to or affecting creditors' rights generally or by equitable principles.
(xi) Each of the Company and the Subsidiaries owns, or possesses
adequate rights to use, all trademarks, service marks and other rights
necessary for the conduct of its business as described in the Registration
Statement and the Prospectus, and neither the Company nor any of the
Subsidiaries has received a notice, or knows of any basis, of any conflict
with the asserted rights of others in any such respect that could have a
Material Adverse Effect.
(xii) The Securities have been duly and validly authorized and,
when issued, delivered and sold, and in the case of the Notes authenticated
by the Trustee, in accordance with this Agreement and the Indenture, will
have been duly and validly executed, issued and delivered, and in the case
of the Notes authenticated, and will constitute legal, valid and binding
obligations of the Company and the Guarantors, enforceable against the
Company and the Guarantors in accordance with their respective terms and
entitled to the benefits of the Indenture, except to the extent that such
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance or other laws relating to or affecting
creditors' rights generally or by equitable principles. All corporate
action required to be taken by the Company and the Guarantors for the
authorization, issuance and sale of the Securities has been duly and
validly taken.
(xiii) Ernst & Young LLP are independent public accountants with
respect to the Company and the Subsidiaries as required by the Act.
(xiv) The consolidated financial statements and related notes and
schedules included in the Registration Statement or in the Prospectus
present fairly the financial position of the Partnership, the Company and
the Subsidiaries, as the case may be, on the basis stated in the
Registration Statement, as of the respective dates thereof and the
consolidated statements of operations, stockholders' equity (or partners'
equity, as the case may be) and cash flows of the Partnership, the Company
and the Subsidiaries, for the respective periods covered thereby; and such
financial statements and the related schedules and notes have been prepared
in conformity with generally accepted accounting principles applied on a
consistent basis throughout the entire period involved, except as otherwise
disclosed in the Registration Statement and the Prospectus. The selected
financial information included in the Registration Statement or the
Prospectus presents fairly the information shown therein and has been
compiled on a basis consistent with that of the audited financial
statements of the Company included therein. The pro forma financial
information in the Registration Statement or in the Prospectus complies in
all material respects with the applicable accounting
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requirements of Article 11 of Regulation S-X promulgated by the
Commission and presents fairly the information shown therein; the
assumptions used in the preparation thereof are reasonable and the
adjustments used therein are appropriate to give effect to the
transactions or circumstances referred to therein. No other financial
statements or schedules of the Partnership, the Company or the
Subsidiaries are required by the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated
thereunder (collectively, the "Exchange Act"), the Act, the Act
Regulations, the Trust Indenture Act or the Trust Indenture Act
Regulations to be included in the Registration Statement or Prospectus.
(xv) The Securities and the Indenture conform in all material respects
to the descriptions thereof in the Registration Statement and Prospectus.
(xvi) Since the respective dates as of which information is provided
in the Registration Statement and Prospectus, except as otherwise
specifically stated therein, there has been no change or development with
respect to the condition (financial or otherwise) or business of the
Company and the Subsidiaries, taken as a whole, whether or not arising in
the ordinary course of business, that would have a Material Adverse Effect.
(xvii) Neither the Company nor any Subsidiary is in violation of
its certificate of incorporation or bylaws or other organizational
documents. Neither the Company nor any Subsidiary is, nor with the passage
of time or the giving of notice or both would be, in violation of any law,
ordinance, administrative or governmental rule or regulation applicable to
the Company or any of the Subsidiaries, or of any judgment, order or decree
of any court or governmental agency or body or of any arbitrator having
jurisdiction over the Company or any of the Subsidiaries, or in default in
the performance or observance of any obligation, agreement, covenant or
condition contained in any mortgage, loan agreement, note, bond, debenture,
credit agreement or any other evidence of indebtedness or in any agreement,
contract, indenture, lease or other instrument to which the Company or any
of the Subsidiaries is a party or by which it may be bound, or to which any
of the property or assets of the Company or any of the Subsidiaries is
subject, the effect of which violation or default in performance or
observance would have a Material Adverse Effect.
(xviii) There is no action, suit or proceeding pending before or by
any court, arbitrator or governmental agency or body or, to the Company's
knowledge, threatened against the Company or any of the Subsidiaries or to
which any of their respective property is subject (A) that is required to
be described in the Registration Statement or the Prospectus but is not
described as required or (B) that, if adversely determined, could
reasonably be expected to have a Material Adverse Effect. There is no
agreement, contract, indenture, lease or other document or instrument that
is required to be described in the Registration Statement or Prospectus or
to be filed as an exhibit to the Registration Statement that is not
described or filed as required.
(xix) No person has any right to the registration of any security
of the Company by reason of the filing of the Registration Statement with
the Commission or the consummation of the transactions contemplated hereby,
which right has not been waived or lapsed, except as described in the
Registration Statement or Prospectus.
(xx) Neither the Company nor any Guarantor is an "investment company"
within the meaning of the Investment Company Act of 1940, as amended (the
"Investment Company Act"), and neither the Company nor any Guarantor is
subject to registration under the Investment Company Act.
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(xxi) As of the date of the Prospectus, and except as described in
the Registration Statement and the Prospectus, neither the Company nor any
of the Subsidiaries is currently planning any probable acquisitions for
which disclosure of pro forma financial information would be required by
the Act.
(xxii) Since the respective dates as of which information is given
or otherwise described in the Registration Statement and the Prospectus (or
any amendment or supplement thereto), except as otherwise stated therein,
(A) neither the Company nor any of the Subsidiaries (1) has issued any
securities other than in connection with the exercise of any outstanding
options, (2) incurred any material liability or obligations, direct or
contingent, for borrowed money, (3) entered into any transaction, not in
the ordinary course of business, that is material to the Company and the
Subsidiaries, taken as a whole, (4) entered into any transaction with an
affiliate of the Company (as the term "affiliate" is defined in Rule 405 of
the Act Regulations) that would otherwise be required to be disclosed in
the Prospectus or the Registration Statement, or (5) declared or paid any
dividend on its capital stock, or made any other distribution to its equity
holders, (B) there has not been any material change in the capital stock or
other equity, or material increase in the short-term or long-term debt, of
the Company or any of the Subsidiaries and (C) there has been no change or
development with respect to the condition (financial or otherwise) or
business of the Company and the Subsidiaries, taken as a whole, whether or
not arising in the ordinary course of business, that would have a Material
Adverse Effect.
(xxiii) The Company has not distributed and, prior to the later to
occur of (A) the Closing Date and (B) completion of the distribution of the
Securities, will not distribute without your prior written consent any
offering material in connection with the offering and sale of the
Securities other than the Registration Statement, the Prospectus or other
materials, if any, permitted by the Act.
(xxiv) The Indenture has been duly qualified under the Trust
Indenture Act and complies with all applicable provisions of the Trust
Indenture Act and the Trust Indenture Act Regulations.
(xxv) Neither the Company nor any Subsidiary is involved in any
labor dispute and, to the knowledge of the Company, no such dispute is
threatened.
(xxvi) Neither the Company nor any Subsidiary nor, to the best of
its knowledge, any employee or agent of the Company or any Subsidiary has
made any payment of funds of the Company or any Subsidiary or received or
retained any funds of a character required to be disclosed in the
Prospectus.
(xxvii) The Company and each of the Subsidiaries have filed (or have
obtained extensions thereto) all federal, state and local tax returns that
are required to be filed, which returns are complete and correct in all
material respects, and have paid all taxes shown on such returns and all
assessments with respect thereto to the extent that the same have become
due, except where failure to file or pay would not have a Material Adverse
Effect.
(xxviii) Except for the membership interests of RLP and shares of
capital stock of each of RB, Gasco Energy Corporation and, as of the
Closing Date, Carlton, neither the Company nor any of the Subsidiaries owns
any shares of stock or any other securities of any corporation or has any
equity interest in any firm, partnership, association or other entity other
than as reflected in the consolidated financial statements included in the
Registration Statement and the Prospectus.
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(xxix) Neither the execution, delivery or performance of this
Agreement or the Indenture, the offer, issuance, sale or delivery of the
Securities that are being issued and sold by the Company and the Guarantors
nor the consummation by the Company and the Guarantors of the terms of this
Agreement and the Indenture (A) requires the consent, approval,
authorization or order of any court or governmental agency or body, except
such as have been obtained under the Act, the Trust Indenture Act and the
Trust Indenture Act Regulations and such as may be required under the blue
sky laws of any jurisdiction in connection with the purchase and
distribution of the Securities by the Underwriter or such as may be
required by the National Association of Securities Dealers, Inc. (the
"NASD") and such other approvals as have been obtained, (B) will conflict
with, result in a breach of, or constitute a default under the terms of any
indenture, agreement, lease or other instrument to which the Company or any
of the Subsidiaries is a party or by which any of them or any of their
respective properties may be bound, or will result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets
of the Company or any of the Subsidiaries pursuant to the terms of any
agreement or instrument to which any of them is a party or by which any of
them may be bound or to which any of the property or assets of any of them
is subject, (C) will conflict with or violate any law, order, statute,
regulation, consent or memorandum of understanding applicable to the
Company or any Subsidiary of any court, regulatory body, administrative
agency, governmental body or arbitrator having jurisdiction over the
Company or any of the Subsidiaries (in the case of (B) or (C) above, where
such conflict, breach, default or violation, individually or in the
aggregate, would have a Material Adverse Effect), or (D) will conflict with
or violate the certificate of incorporation or by-laws or other constituent
documents of the Company or any Subsidiary.
(xxx) Neither the Company nor the Guarantors has taken, directly
or indirectly, any action designed to cause or result in or that has
constituted or that might reasonably be expected to constitute, the
stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of the Securities.
(xxxi) Neither the Company nor the Guarantors is required to comply
with Section 517.075 of the Florida statutes.
(xxxii) The Company and each of the Subsidiaries (A) are in
compliance with any and all applicable federal, state, local and foreign
laws and regulations relating to the protection of human health and safety,
the environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("Environmental Laws"), (B) have received all permits,
licenses or other approvals required of them under applicable Environmental
Laws to conduct their business and (C) are in compliance with all terms and
conditions of any such permit, license or approval, except where such
noncompliance with Environmental Laws, failure to receive required permits,
licenses or approvals or failure to comply with the terms and conditions of
such permits, licenses or approvals would not have a Material Adverse
Effect.
(xxxiii) There are no costs or liabilities, to the Company's
knowledge after due inquiry, associated with the effect of Environmental
Laws on the business, operations and properties of the Company and its
Subsidiaries that would have a Material Adverse Effect.
(b) Any certificate signed by any officer of the Company or the
Guarantors delivered to the Underwriter or to counsel for the Underwriter
pursuant to the terms of this Agreement shall be deemed a representation and
warranty by the Company and the Guarantors to the Underwriter as to the
matters covered thereby.
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SECTION 2. SALE AND DELIVERY TO THE UNDERWRITER; CLOSING
(a) Subject to the terms and conditions set forth herein, the Company
and the Guarantors agree to sell the Securities to the Underwriter on the
basis of the representations and warranties herein contained and subject to
the terms and conditions herein set forth, and the Underwriter agrees to
purchase the Securities from the Company, at a purchase price of ____% of the
$115,000,000 principal amount of the Securities. The Company and the
Guarantors will have no obligation to sell the Underwriter any of the
Securities that are being issued and sold by the Company and the Guarantors
hereunder unless the Underwriter purchases all of such Securities hereunder.
(b) Payment of the purchase prices for, and delivery of, the Securities
to be purchased by the Underwriter shall be made at the offices of ▇▇▇▇▇▇▇▇▇
& Company, Inc., ▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or at such other
place as shall be agreed upon by the Underwriter and the Company, at 10:00
A.M., New York City time, on the third (or, if pricing occurs after 4:30
p.m., New York City time, on any given day, on the fourth) business day
following the date hereof, or such other time not later than ten business
days after such date as shall be agreed upon by the Underwriter and the
Company (such time and date of payment and delivery being herein called the
"Closing Date"). Payment shall be made to the Company by wire transfer or
certified check payable to the order of the Company against delivery to the
Underwriter of the Securities.
(c) Certificates representing the Securities shall be in such
denominations and registered in such names as the Underwriter may request in
writing at least two business days before the Closing Date. The certificates
representing the Securities will be made available for examination and
packaging by the Underwriter not later than 1:00 P.M., New York City time, on
the last business day prior to the Closing Date at such place as is
designated by the Underwriter.
SECTION 3. COVENANTS OF THE COMPANY AND THE GUARANTORS.
The Company and the Guarantors covenant with the Underwriter as follows:
(a) The Company and the Guarantors will use their best efforts to cause
the Registration Statement, if not effective at the Representation Date, and
any amendment thereof, to become effective, as promptly as possible after the
filing thereof. The Company and the Guarantors will not file any amendment
to the Registration Statement or any amendment or supplement to the
Prospectus to which the Underwriter shall reasonably object in writing after
a reasonable opportunity to review such amendment or supplement. Subject to
the foregoing sentences in this clause (a), if the Registration Statement has
become or becomes effective pursuant to Rule 430A, or filing of the
Prospectus or supplement to the Prospectus is otherwise required under Rule
424(b), the Company will cause the Prospectus, properly completed, or such
supplement thereto to be filed with the Commission pursuant to the applicable
paragraph of Rule 424(b) within the time period prescribed and will provide
evidence satisfactory to the Underwriter of such timely filing. The Company
and the Guarantors will promptly advise the Underwriter (i) when the
Registration Statement, if not effective at the Representation Date, and any
amendment thereto, shall have become effective, (ii) when the Prospectus, and
any supplement thereto, shall have been filed (if required) with the
Commission pursuant to Rule 424(b), (iii) when any amendment to the
Registration Statement shall have been filed or become effective, (iv) of any
request by the Commission for any amendment of the Registration Statement or
supplement to any Prospectus or for any additional information, (v) of the
receipt by the Company or any Guarantor of any notification of, or if the
Company or any Guarantor otherwise has knowledge of, the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or the institution or threatening of any proceeding for that
purpose and (vi) of the receipt by the
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Company or any Guarantor of any notification with respect to the suspension
of the qualification of the Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose. The Company
and the Guarantors will use their best efforts to prevent the issuance of any
such stop order and, if issued, to obtain as soon as possible the lifting
thereof.
(b) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act or the Act Regulations, any event
occurs as a result of which the Prospectus as then amended or supplemented
would contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or if it shall be necessary to amend the Registration
Statement or amend or supplement the Prospectus to comply with the Act or the
Act Regulations, the Company and the Guarantors promptly will prepare and
file with the Commission, subject to the second sentence of paragraph (a) of
this Section 3, an amendment or supplement that will correct such statement
or omission or effect such compliance. Neither your consent to, nor your
delivery of, any such amendment or supplement shall constitute a waiver of
any of the conditions set forth in Section 5.
(c) The Company and the Guarantors consent to the use of the Prospectus
in accordance with the provisions of the Act and with the securities or blue
sky laws of the jurisdictions in which the Securities are offered by the
Underwriter and by all dealers to whom Securities may be sold, both in
connection with the offering and sale of the Securities and for such period
of time thereafter as the Prospectus is required by the Act to be delivered
in connection with the sales by the Underwriter or any dealer. The Company
and the Guarantors will comply with all requirements imposed upon them by the
Act, as now and hereafter amended, so far as necessary to permit the
continuance of sales of or dealing in the Securities in accordance with the
provisions hereof and the Prospectus.
(d) As soon as practicable, the Company will make generally available
to its securityholders and to the Underwriter a consolidated earnings
statement or statements of the Company and the Subsidiaries covering a
twelve-month period beginning after the Effective Date that will satisfy the
provisions of Section 11(a) of the Act and Rule 158 under the Act Regulations.
(e) The Company will furnish to the Underwriter, without charge, three
signed copies of the Registration Statement (including exhibits thereto and
all documents incorporated by reference therein) and, so long as delivery of
a prospectus by the Underwriter or a dealer may be required by the Act or the
Act Regulations, as many copies of the Prospectus and all amendments and
supplements thereto as the Underwriter may reasonably request.
(f) During the period of three years hereafter, the Company will
furnish to you, as soon as practicable after the end of each fiscal year, a
copy of its annual report to shareholders for such year; and the Company will
furnish to you as soon as available, a copy of each report or definitive
proxy statement of the Company filed with the Commission under Exchange Act
or mailed to stockholders.
(g) The Company and the Guarantors will comply with all the provisions
of any undertakings contained in the Registration Statement.
(h) The Company and the Guarantors will not at any time, directly or
indirectly, take any action intended, or that might reasonably be expected,
to cause or result in, or that will cause, stabilization of the price of any
security of the Company to facilitate the sale or resale of any of the
Securities.
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(i) The Company will apply the net proceeds from the offering and sale
of the Securities to be sold in accordance with the description set forth in
the "Use of Proceeds" section of the Prospectus.
(j) The Company and the Guarantors will cooperate with the Underwriter
and its counsel in connection with endeavoring to obtain and maintain the
qualification or registration, or exemption from qualification, of the
Securities for offer and sale under the applicable securities laws of such
states and other jurisdictions of the United States as the Underwriter may
designate; provided, that in no event shall the Company or the Guarantors be
obligated to qualify to do business in any jurisdiction where they are not
now so qualified or to take any action that would subject them to taxation or
general service of process in any jurisdiction where they are not now so
subject.
SECTION 4. PAYMENT OF EXPENSES.
The Company will pay, or reimburse if paid by the Underwriter, all
actual and reasonable costs and expenses incident to the performance of the
obligations of the Company and the Guarantors under this Agreement, including
(i) the fees, disbursements and expenses of counsel for the Underwriter and
counsel and accountants for the Company and all other expenses in connection
with the preparation, printing and filing of the Registration Statement, any
Preliminary Prospectus, the Prospectus, the Statement of Eligibility and
Qualification under the Trust Indenture Act of the Trustee (the "Form T-1"),
and any amendments or supplements thereto, and the mailing and delivery of
copies thereof to the Underwriter and dealers, (ii) the fees and
disbursements of the Trustee and its counsel; (ii) the cost of printing the
Agreement Among Underwriters, this Agreement, the Indenture, the Form T-1,
the Selling Agreement, any Dealer Agreements, the Underwriter Questionnaire
and the Blue Sky Memorandum (in both preliminary and final form); (iii) all
expenses in connection with qualification of the Securities for offering and
sale under state securities laws, including filing and registration fees and
the fees, disbursements and expenses of counsel for the Underwriter in
connection with such qualification and in connection with blue sky surveys;
(iv) the filing fees incident to securing any required review by the NASD;
(v) the cost of preparing certificates representing the Securities; (vi) all
fees of the Company's transfer agent and registrar; (vii) all fees and
expenses of nationally recognized statistical rating organizations (as
defined for purposes of Rule 436(g) under the Act); and (viii) all other
costs and expenses incident to the performance of the Company's and the
Guarantors' obligations hereunder that are not otherwise specifically
provided for in this Section.
If this Agreement is terminated by the Underwriter because of any
failure or refusal on the part of the Company or the Guarantors to comply
with the terms or fulfill any of the conditions of this Agreement, the
Company shall reimburse the Underwriter for all of its reasonable
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriter. The Company shall not in any event be liable to
the Underwriter for consequential damages including loss of anticipated
profits from the transactions covered by this Agreement.
SECTION 5. CONDITIONS OF THE UNDERWRITER'S OBLIGATION.
The obligation of the Underwriter to purchase the Securities hereunder
is subject to the continued accuracy of the representations and warranties of
the Company and the Guarantors herein contained, to the accuracy of the
statements of the Company and the Guarantors made in any certificates
pursuant to the provisions hereof, to the performance by the Company and the
Guarantors of their obligations hereunder and to the following further
conditions:
(a) The Registration Statement shall have become effective, and you
shall have received notice thereof, not later than 5:30 p.m., Washington D.C.
time, on the date hereof, or
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such later time and date as shall be approved by the Underwriter and the
Company and shall remain effective at the Closing Date. No stop order
suspending the effectiveness of the Registration Statement shall have been
issued under the Act or proceedings therefor initiated or threatened by the
Commission. No order suspending the effectiveness of the Registration
Statement or the qualification or registration of the Securities under the
securities or blue sky laws of any jurisdiction shall be in effect or
proceedings therefor initiated or threatened by the Commission or the
authorities of any such jurisdiction. If the Company and the Guarantors have
elected to rely upon Rule 430A, the price of the Securities and any
price-related or other information previously omitted from the effective
Registration Statement pursuant to Rule 430A shall have been transmitted to
the Commission for filing pursuant to Rule 424(b) within the prescribed time
period, and, prior to the Closing Date, the Company and the Guarantors shall
have provided evidence satisfactory to the Underwriter of such timely filing,
or a post-effective amendment providing such information shall have been
promptly filed and declared effective in accordance with the requirements of
Rule 430A.
(b) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred (i) any change, or any development involving a
prospective change, in or affecting particularly the business, properties,
condition (financial or other) or results of operations of the Company and
the Subsidiaries, taken as a whole, which, in the reasonable judgment of the
Underwriter, materially impairs the investment quality of the Securities and
constitutes a Material Adverse Effect; (ii) any material loss or interference
with the business or properties of the Company or any of the Subsidiaries
from fire, explosion, flood or other casualty, whether or not covered by
insurance, or from any labor dispute or any court or legislative or other
governmental action, order or decree, that is not set forth in the
Registration Statement and the Prospectus, if in the reasonable judgment of
the Underwriter any such development makes it impracticable or inadvisable to
proceed with completion of the sale of and payment for the Securities; (iii)
any suspension or limitation of trading in securities generally on the New
York Stock Exchange or the Nasdaq National Market System, or any setting of
minimum prices for trading on such exchange or system, or any suspension of
trading of any securities of the Company on any exchange or system or in the
over-the-counter market; (iv) any banking moratorium declared by federal or
New York authorities; or (v) any outbreak or escalation of major hostilities
in which the United States is involved, any declaration of war by Congress or
any other substantial national or international calamity or emergency if, in
the reasonable judgment of the Underwriter, the effect of any such outbreak,
escalation, declaration, calamity or emergency makes it impractical or
inadvisable to proceed with completion of the sale of and payment for the
Securities.
(c) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, there shall have been no
litigation or other proceeding instituted against the Company or any of the
Subsidiaries or any of their respective officers or directors in their
capacities as such, before or by any federal, state or local court,
commission, regulatory body, administrative agency or other governmental
body, domestic or foreign, or arbitrator, in which litigation or proceeding
an unfavorable ruling, decision or finding would have a Material Adverse
Effect.
(d) Each of the representations and warranties of the Company and the
Guarantors contained herein shall be true and correct in all material
respects at the Closing Date, as if made at the Closing Date, and all
covenants and agreements contained herein to be performed on the part of the
Company and the Guarantors, and all conditions contained herein to be
fulfilled or complied with by the Company and the Guarantors at or prior to
the Closing Date, shall have been duly performed, fulfilled or complied with.
(e) The Underwriter shall have received an opinion from McAfee & ▇▇▇▇ A
Professional Corporation, counsel for the Company and the Guarantors,
satisfactory in form
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and substance to counsel for the Underwriter, dated as of the Closing Date,
to the effect set forth in Exhibit A.
(f) The Underwriter shall have received a favorable opinion, dated as
of the Closing Date, of ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ L.L.P., counsel for the
Underwriter, with respect to such matters as may be reasonably requested by
the Underwriter, and you shall have provided such counsel with such papers
and information as they may reasonably request to enable them to provide such
opinion.
(g) The following conditions contained in clauses (i), (ii) and (iii)
of this Section 5(g) shall have been satisfied on and as of the Closing Date
and the Company shall have furnished to the Underwriter a certificate of the
Company, signed by the President and the principal financial or accounting
officer of the Company, and each of the Guarantors shall have furnished to
the Underwriter a certificate of such Guarantor, signed by the President and
the principal financial or accounting officer of such Guarantor, each dated
the Closing Date to the effect that the signers of such certificates have
carefully examined the Registration Statement, the Prospectus, any supplement
or amendment to the Prospectus, and this Agreement and that:
(i) the representations and warranties of the Company and the
Guarantors, respectively, in this Agreement are true and correct in all
material respects on and as of the Closing Date with the same effect as if
made on the Closing Date and the Company and the Guarantors, respectively,
have complied with all the agreements and satisfied all the conditions
under this Agreement on their part to be performed or satisfied at or prior
to the Closing Date;
(ii) 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 Company's and the Guarantors' knowledge, threatened;
and
(iii) since the date of the most recent financial statements
included in the Prospectus, there has been no change that would have a
Material Adverse Effect.
(h) At the Representation Date and at the Closing Date, ▇▇▇▇▇ & Young
LLP shall have furnished to the Underwriter a letter or letters, dated
respectively as of the date of this Agreement and the Closing Date, in form
and substance satisfactory to the Underwriter, containing statements and
information of the type customarily included in accountants' "comfort
letters" to underwriters with respect to the financial statements and certain
financial and statistical information pertaining to the Partnership, the
Company and the Subsidiaries contained in the Registration Statement and the
Prospectus.
(i) As of the Closing Date, the Securities shall have been rated "_____"
by Standard & Poor's and "_____" by ▇▇▇▇▇'▇ Investors Service, Inc., and such
ratings shall not have been rescinded. The Company shall have delivered to
the Underwriter letters from such rating organizations, or other evidence
satisfactory to the Underwriter, confirming that the Securities have such
ratings.
(j) The Indenture shall have been duly executed and delivered by the
parties thereto.
(k) At the Closing Date, counsel for the Underwriter shall have been
furnished with such information, certificates and documents as they may
reasonably require for the purpose of enabling them to pass upon the issuance
and sale of the Securities as contemplated herein and related proceedings, or
to evidence the accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained, or otherwise in
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connection with the offering contemplated hereby; and all opinions and
certificates mentioned above or elsewhere in this Agreement shall be
reasonably satisfactory in form and substance to the Underwriter and counsel
for the Underwriter.
(l) At the time of the closing of the offering of the Securities, a
simultaneous closing occurs with respect to the acquisition by the Company of
all of the outstanding common stock of Carlton pursuant to a Stock Purchase
Agreement, dated as of December 16, 1997, among the Company, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇. (the "▇▇▇▇▇▇▇ Acquisition").
(m) The Underwriters shall have been expressly entitled to rely on any
and all legal opinions delivered in connection with the closing of the
Carlton Acquisition.
(n) On or prior to the Closing Date, the Company shall have redeemed
all of the issued and outstanding shares of all classes of its Preferred
Stock.
If any condition specified in this Section 5 shall not have been
fulfilled in all material respects when and as required to be fulfilled, this
Agreement may be terminated by the Underwriter by notice to the Company and
such termination shall be without liability of any party to any other party
except as provided in Section 4.
SECTION 6. CONDITIONS OF THE COMPANY'S OBLIGATION.
The obligation of the Company to issue and sell the Securities hereunder
is subject to the condition that, at the time of the closing of the offering
of the Securities, a simultaneous closing occurs with respect to the Carlton
Acquisition.
SECTION 7. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company and the Guarantors jointly and severally agree to
indemnify, defend and hold harmless the Underwriter and its officers,
shareholders, employees and directors and any person who controls the
Underwriter within the meaning of Section 15 of the Act from and against any
loss, expense, liability or claim (including the reasonable cost of
investigating such claim) that the Underwriter or any such officer,
shareholder, employee, director or controlling person may incur under the
Act, the Exchange Act or otherwise, as such expenses are incurred, insofar as
such loss, expense, liability or claim arises out of or is based upon any
untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement (or in the Registration Statement as amended by
any post-effective amendment thereof) or any omission or alleged omission to
state a material fact required to be stated in such Registration Statement or
necessary to make the statements made therein not misleading or any untrue
statement or alleged untrue statement of a material fact contained in a
Prospectus (the term Prospectus for the purpose of this Section 7 being
deemed to include any Preliminary Prospectus, the Prospectus, the Prospectus
as amended or supplemented and any document filed under the Exchange Act and
incorporated by reference into the Prospectus) or any omission or alleged
omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading; provided, however, the Company and the
Guarantors will not be liable in any such case to the extent any such loss,
expense, liability or claim arises out of or is based upon any untrue
statement or omission or alleged untrue statement or omission that has been
made therein or omitted therefrom in reliance upon and in conformity with the
information provided in writing to the Company by or on behalf of the
Underwriter, expressly for use in the Registration Statement or the
Prospectus; and provided, further that with respect to any untrue statement
or omission or alleged untrue statement or omission made in any Preliminary
Prospectus, the indemnity agreement contained in this Section 7(a) shall not
inure to the benefit of the Underwriter or its officers, shareholders,
employees and directors, and the Company and the Guarantors shall not be
liable to the
-14-
Underwriter or its officers, shareholders, employees and directors, from whom
the person asserting any such losses, claims, damage, or liabilities
purchased the Securities concerned, to the extent that any such loss, claim,
damage or liability of the Underwriter or its officers, shareholders,
employees and directors results from the fact that there was not sent or
given to such person at or prior to the written confirmation of the sale of
such shares to such person, a copy of the Prospectus, as the same may be
amended or supplemented, and the untrue statement or alleged untrue statement
of a material fact or omission or alleged omission to state a material fact
in such Preliminary Prospectus was corrected in such Prospectus and the
Company had previously furnished copies thereof to the Underwriter on a
timely basis to permit the Prospectus (as the same may be amended or
supplemented) to be sent or given. The Company and the Guarantors agree that
the only such information provided in writing by or on behalf of the
Underwriter to the Company, expressly for use in the Registration Statement
or the Prospectus, is that information contained in the third paragraph in
the section of the Prospectus entitled "Underwriting" and the last paragraph
on the cover page of the Prospectus. The foregoing indemnity agreement shall
be in addition to any liability that the Company and the Guarantors may
otherwise have.
(b) The Underwriter agrees to indemnify, defend and hold harmless the
Company, the Guarantors and their respective officers, stockholders,
employees and directors and any person who controls the Company or the
Guarantors within the meaning of Section 15 of the Act from and against any
loss, expense, liability or claim (including the reasonable cost of
investigating such claim) that the Company, the Guarantors or any such
officer, stockholder, employee, director or controlling person may incur
under the Act, the Exchange Act or otherwise to the same extent as the
provisions of Section 7(a) above, but only insofar as such loss, expense,
liability or claim arises out of or is based upon any untrue statement or
omission or alleged untrue statement or omission made in reliance or in
conformity with information relating to the Underwriter furnished in writing
to the Company by or on behalf of the Underwriter, expressly for use in the
Registration Statement or the Prospectus. The Company and the Guarantors
agree that the only information provided in writing by or on behalf of the
Underwriter to the Company, expressly for use in the Registration Statement
or the Prospectus, is that information contained in the third paragraph in
the section of the Prospectus entitled "Underwriting" and the last paragraph
on the cover page of the Prospectus.
(c) If any action is brought against an indemnified party under this
Section 7, the indemnified party or parties shall promptly notify the
indemnifying party in writing of the institution of such action (provided
that the failure to give such notice shall not relieve the indemnifying party
of any liability that it may have pursuant to this Agreement, unless and to
the extent the indemnifying party did not otherwise learn of such action and
such failure has resulted in the forfeiture of substantive rights or defenses
by the indemnifying party) and the indemnifying party shall assume the
defense of such action, including the employment of counsel and payment of
reasonable expenses. The indemnified party or parties shall have the right to
employ its or their own counsel in any such case, but the fees and expenses
of such counsel shall be at the expense of the indemnified party or parties
unless (i) the employment of such counsel shall have been authorized in
writing by the indemnifying party in connection with the defense of such
action, (ii) the indemnifying party shall not have employed counsel
reasonably satisfactory to the indemnified party to take charge of the
defense of such action within a reasonable time after notice of the
institution of such action, (iii) such indemnified party or parties shall
have reasonably concluded that there may be defenses available to it or them
that are different from or additional to those available to the indemnifying
party or (iv) the use of counsel chosen by the indemnifying party to
represent the indemnified party would present such counsel with a conflict of
interest (in which case the indemnifying party shall not have the right to
direct the defense of such action on behalf of the indemnified party or
parties), in any of which events such fees and expenses shall be borne by the
indemnifying party and paid as incurred; provided that the indemnifying party
shall only be responsible for the fees and expenses of one counsel for the
indemnified party or parties hereunder. Anything
-15-
in this paragraph to the contrary notwithstanding, the indemnifying party
shall not be liable for any settlement of any such claim or action effected
without its written consent, which consent shall not be unreasonably withheld.
(d) If the indemnification provided for in this Section 7 is
unavailable to an indemnified party under subsection (a) or (b) of this
Section 7 in respect of any losses, damages, expenses, liabilities or claims
referred to therein, then each applicable indemnifying party shall contribute
to the amount paid or payable by such indemnified party as a result of such
losses, expenses, liabilities or claims (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company and the
Guarantors on the one hand and the Underwriter on the other hand from the
offering of the Securities or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Company and the Guarantors on
the one hand and the Underwriter on the other hand in connection with the
statements or omissions that resulted in such losses, expenses, liabilities
or claims, as well as any other relevant equitable considerations. The
relative benefits received by the Company and the Guarantors on the one hand
and the Underwriter on the other hand shall be deemed to be in the same
proportion as the total proceeds from the offering of the Securities (net of
underwriting discounts and commissions but before deducting expenses)
received by the Company bear to the total underwriting discounts and
commissions received by the Underwriter. The relative fault of the Company
and the Guarantors on the one hand and of the Underwriter on the other hand
shall be determined by reference to, among other things, whether the untrue
statement or alleged untrue statement of a material fact or omission or
alleged omission relates to information supplied by the Company, the
Guarantors or by the Underwriter and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The amount paid or payable by a party as a result of the losses,
expenses, liabilities and claims referred to above shall be deemed to include
any legal or other fees or expenses reasonably incurred by such party in
connection with investigating or defending any claim or action.
(e) The Company, the Guarantors and the Underwriter agree that it would
not be just and equitable if contribution pursuant to this Section 7 were
determined by pro rata allocation or by any other method of allocation that
does not take account of the equitable considerations referred to in Section
7(d) above. Notwithstanding the provisions of this Section 7, the
Underwriter shall not be required to contribute any amount in excess of the
underwriting discount received by it by reason of such untrue statement or
alleged untrue statement or omission or alleged omission. No person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation.
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY.
The respective indemnity and contribution agreements contained in
Section 7, and the covenants, representations and warranties of the Company
and the Guarantors contained in this Agreement or contained in certificates
of officers of the Company or the Guarantors submitted pursuant hereto, shall
remain in full force and effect, regardless of any investigation, or
statement as to the results thereof, made by or on behalf of the Underwriter
or any of its officers, employees, directors, shareholders or any person who
controls the Underwriter, or by or on behalf of the Company or the Guarantors
or any of their respective officers or directors or any controlling person of
the Company or the Guarantors, and will survive delivery of and payment for
the Securities.
-16-
SECTION 9. NOTICES.
All notices and other communications hereunder will be in writing and shall
be deemed to have been duly given if mailed or transmitted by standard form of
telecommunication. Notices to the Underwriter shall be directed to ▇▇▇▇▇▇▇▇▇ &
Company, Inc. at ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
attn: ▇▇▇▇▇ ▇▇▇▇▇, Esq., with a copy to ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
L.L.P., ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇; and if sent to the
Company or the Guarantors, directed to RAM Energy, Inc., ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, attn: ▇▇▇▇▇ ▇. ▇▇▇, with a copy to ▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇, McAfee & ▇▇▇▇ A Professional Corporation, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
SECTION 10. PARTIES.
This Agreement shall inure to the benefit of and be binding upon the
Underwriter, the Company and the Guarantors and their respective successors and
legal representatives. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to provide any person, firm or corporation, other
than the Underwriter, the Company and the Guarantors and their respective
successors and legal representatives and the controlling persons, officers,
employees, directors and shareholders referred to in Sections 7 and 8 and their
respective heirs and legal representatives, any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provision herein or
therein contained. This Agreement and all conditions and provisions hereof are
intended to be for the sole and exclusive benefit of the Underwriter, the
Company and the Guarantors and their respective successors and legal
representatives, and such controlling persons, shareholders, officers and
directors and their respective heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Securities
from the Underwriter shall be deemed to be a successor by reason merely of such
purchase.
SECTION 11. GOVERNING LAW AND TIME.
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York applicable to agreements made and to be performed
in such State. Specified times of day refer to New York time, unless otherwise
specified.
SECTION 12. COUNTERPARTS.
This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
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If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company a counterpart hereof, whereupon this
instrument, along with all counterparts, will become a binding agreement among
the Company, the Guarantors and the Underwriter in accordance with its terms.
Very truly yours,
RAM ENERGY, INC.
By:
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Name:
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Title:
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RB OPERATING COMPANY
By:
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Name:
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Title:
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RLP GULF STATES, L.L.C.
By:
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Name:
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Title:
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The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
▇▇▇▇▇▇▇▇▇ & COMPANY, INC.
By:
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Name:
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Title:
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-18-