Exhibit 1
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UNDERWRITING AGREEMENT
VECTREN UTILITY HOLDINGS, INC.
(An Indiana corporation)
AND THE GUARANTORS NAMED HEREIN
Debt Securities
Dated October 12, 2001
Table of Contents
Page
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SECTION 1. Representations and Warranties.....................................3
(a) Representations and Warranties by the Company....................3
(b) Officers' Certificates..........................................11
SECTION 2. Sale and Delivery to Underwriters; Closing........................11
(a) Underwritten Securities.........................................11
(b) Option Underwritten Securities..................................11
(c) Payment.........................................................12
(d) Denominations; Registration.....................................12
SECTION 3. Covenants of the Company and the Initial Guarantors...............13
(a) Compliance with Securities Regulations and Commission Requests..13
(b) Filing of Amendments............................................13
(c) Delivery of Registration Statements.............................13
(d) Delivery of Prospectuses........................................14
(e) Continued Compliance with Securities Laws.......................14
(f) Blue Sky Qualifications.........................................14
(g) Earnings Statement..............................................14
(h) Use of Proceeds.................................................15
(i) Listing.........................................................15
(j) Restriction on Sale of Securities...............................15
(k) Reporting Requirements..........................................15
SECTION 4. Payment of Expenses...............................................15
(a) Expenses........................................................15
(b) Termination of Agreement........................................16
SECTION 5. Conditions of Underwriters' Obligations...........................16
(a) Effectiveness of Registration Statement.........................16
(b) Opinion of General Counsel of the Company.......................16
(c) Opinion of Counsel for Company..................................17
(d) Opinion of Counsel for Underwriters.............................17
(e) Officers' Certificate...........................................17
(f) Accountant's Comfort Letter.....................................17
(g) Bring-down Comfort Letter.......................................17
(h) Ratings.........................................................17
(i) Approval of Listing.............................................18
(j) No Objection....................................................18
(k) Lock-up Agreements..............................................18
(l) Over-Allotment Option...........................................18
(m) Additional Documents............................................19
(n) Termination of Terms Agreement..................................19
SECTION 6. Indemnification...................................................19
(a) Indemnification of Underwriters.................................19
(b) Indemnification of Company, Directors and Officers..............20
(c) Actions against Parties; Notification...........................21
(d) Settlement without Consent if Failure to Reimburse..............21
SECTION 7. Contribution......................................................21
SECTION 8. Representations, Warranties and Agreements to Survive Delivery....23
SECTION 9. Termination.......................................................23
(a) Underwriting Agreement..........................................23
(b) Terms Agreement.................................................23
(c) Liabilities.....................................................24
SECTION 10. Default by One or More of the Underwriters.......................24
SECTION 11. Notices..........................................................25
SECTION 12. Parties..........................................................25
SECTION 13. GOVERNING LAW AND TIME...........................................25
SECTION 14. Effect of Headings...............................................25
SECTION 15. Counterparts.....................................................25
SCHEDULES
Schedule A - List of Subsidiaries...................................Sch A-1
EXHIBITS
Exhibit A - Terms Agreement......................................... A-1
Exhibit B - Form of Opinion of General Counsel of the Company....... B-1
Exhibit C - Form of Opinion of Company's Counsel.................... C-1
VECTREN UTILITY HOLDINGS, INC.
(an Indiana corporation)
AND THE GUARANTORS NAMED HEREIN
Debt Securities
UNDERWRITING AGREEMENT
October 12, 2001
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Vectren Utility Holdings, Inc., an Indiana corporation (the
"Company"), proposes to issue and sell an aggregate principal amount of senior
debt securities not to exceed $350,000,000 (the "Debt Securities"), from time to
time, in or pursuant to one or more offerings on terms to be determined at the
time of sale. The Debt Securities will be issued in one or more series as senior
indebtedness under an indenture, dated as of October 19, 2001 (as modified,
supplemented or amended from time to time, the "Indenture"), among the Company,
as issuer, the Initial Guarantors (as defined below), as guarantors, and U.S.
Bank Trust National Association, as trustee (the "Trustee"), and, subject to the
terms of the Indenture, will be fully and unconditionally guaranteed as to
payment of principal, premium (if any) and interest (the "Guarantees," and
together with the Debt Securities, the "Securities") by Indiana Gas Company,
Inc., an Indiana and Ohio corporation, Southern Indiana Gas and Electric
Company, an Indiana corporation, and Vectren Energy Delivery of Ohio, Inc., an
Ohio corporation (collectively, the "Initial Guarantors" and, together with each
other subsidiary of the Company that pursuant to the terms of the Indenture
guarantees the Company's obligations under the Securities, the "Guarantors").
Each series of Debt Securities may vary, as applicable, as to title,
aggregate principal amount, rank, interest rate or formula and timing of
payments thereof, stated maturity date, redemption and/or repayment provisions,
sinking fund requirements and any other variable terms established by or
pursuant to the Indenture.
Whenever the Company determines to make an offering of Securities
through ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated ("▇▇▇▇▇▇▇ ▇▇▇▇▇"), or
through an underwriting syndicate managed by ▇▇▇▇▇▇▇ ▇▇▇▇▇, the Company and, if
applicable, the Guarantors will enter into an agreement (each, a "Terms
Agreement") providing for the sale of such Securities to, and the purchase and
offering thereof by, ▇▇▇▇▇▇▇ ▇▇▇▇▇ and such other underwriters, if any, selected
by ▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Underwriters", which term shall include ▇▇▇▇▇▇▇ ▇▇▇▇▇,
whether acting as sole Underwriter or as a member of an underwriting syndicate,
as well as any Underwriter substituted pursuant to Section 10 hereof). The Terms
Agreement relating to the offering of Securities shall specify the aggregate
principal amount of Debt Securities to be initially issued (the "Initial
Underwritten Securities"), the name of each Underwriter participating in such
offering (subject to substitution as provided in Section 10 hereof) and the name
of any Underwriter other ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ acting as co-manager in connection
with such offering, the aggregate principal amount of Initial Underwritten
Securities which each such Underwriter severally agrees to purchase, whether
such offering is on a fixed or variable price basis and, if on a fixed price
basis, the initial offering price, the price at which the Initial Underwritten
Securities are to be purchased by the Underwriters, the form, time, date and
place of delivery and payment of the Initial Underwritten Securities and any
other material variable terms of the Initial Underwritten Securities. In
addition, if applicable, such Terms Agreement shall specify whether the Company
has agreed to grant to the Underwriters an option to purchase additional
Securities to cover over-allotments, if any, and the aggregate principal amount
of Debt Securities subject to such option (the "Option Underwritten
Securities"). As used herein, the term "Underwritten Securities" shall include
the Initial Underwritten Securities and all or any portion of any Option
Underwritten Securities. The Terms Agreement, which shall be substantially in
the form of Exhibit A hereto, may take the form of an exchange of any standard
form of written telecommunication between the Company and ▇▇▇▇▇▇▇ ▇▇▇▇▇ acting
for itself and, if applicable, as representative of any other Underwriters. Each
offering of Underwritten Securities through ▇▇▇▇▇▇▇ ▇▇▇▇▇ as sole Underwriter or
through an underwriting syndicate managed by ▇▇▇▇▇▇▇ ▇▇▇▇▇ will be governed by
this Underwriting Agreement, as supplemented by the applicable Terms Agreement.
The Company and the Initial Guarantors have filed with the Securities
and Exchange Commission (the "Commission") a registration statement on Form S-3
(No. 333-69742) for the registration of the Securities under the Securities Act
of 1933, as amended (the "1933 Act"), and the offering thereof from time to time
in accordance with Rule 415 of the rules and regulations of the Commission under
the 1933 Act (the "1933 Act Regulations"). Such registration statement has been
declared effective by the Commission and the Indenture has been duly qualified
under the Trust Indenture Act of 1939, as amended (the "1939 Act"), and the
Company and the Initial Guarantors have or will have filed such post-effective
amendments thereto as may be required prior to the execution of the applicable
Terms Agreement and each such post-effective amendment has been declared
effective by the Commission. Such registration statement (as so amended, if
applicable), including the information, if any, deemed to be a part thereof
pursuant to Rule 430A(b) of the 1933 Act Regulations (the "Rule 430A
Information") or Rule 434(d) of the 1933 Act Regulations (the "Rule 434
Information"), is referred to herein as the "Registration Statement"; and the
final prospectus and the final prospectus supplement relating to the offering of
the Underwritten Securities, in the forms first furnished to the Underwriters by
the Company for use in connection with the offering of the Underwritten
Securities, are collectively referred to herein as the "Prospectus"; provided,
however, that all references to the "Registration Statement" and the
"Prospectus" shall also be deemed to include all documents incorporated therein
by reference pursuant to the Securities Exchange Act of 1934, as amended (the
"1934 Act"), prior to the execution of the applicable Terms Agreement; provided,
further, that if the Company and the Initial Guarantors file a registration
statement with the Commission pursuant to Rule 462(b) of the 1933 Act
Regulations (the "Rule 462(b) Registration Statement"), then, after such filing,
all references to "Registration Statement" shall also be deemed to include the
Rule 462(b) Registration Statement; and provided, further, that if the Company
elects to rely upon Rule 434 of the 1933 Act Regulations, then all references to
"Prospectus" shall also be deemed to include the final or preliminary prospectus
and the applicable term sheet or abbreviated term sheet (the "Term Sheet"), as
the case may be, in the forms first furnished to the Underwriters by the Company
in reliance upon Rule 434 of the 1933 Act Regulations, and all references to the
date of the Prospectus shall mean the date of the Term Sheet. A "preliminary
prospectus" shall be deemed to refer to (i) the preliminary prospectus relating
to an offering of Securities, dated o, 2001, filed by the Company with the
Commission pursuant to Rule 424(b) of the 1933 Act Regulations on o, 2001, (ii)
any prospectus used before the Registration Statement became effective and (iii)
any prospectus that omitted, as applicable, the Rule 430A Information, the Rule
434 Information or other information to be included upon pricing in a form of
prospectus filed with the Commission pursuant to Rule 424(b) of the 1933 Act
Regulations and was used after such effectiveness and prior to the initial
delivery of the Prospectus to the Underwriters by the Company. For purposes of
this Underwriting Agreement, all references to the Registration Statement,
Prospectus, Term Sheet or preliminary prospectus or to any amendment or
supplement to any of the foregoing shall be deemed to include any copy filed
with the Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval system ("▇▇▇▇▇").
All references in this Underwriting Agreement to financial statements
and schedules and other information which is "contained," "included" or "stated"
(or other references of like import) in the Registration Statement, Prospectus
or preliminary prospectus shall be deemed to include all such financial
statements and schedules and other information which is incorporated by
reference in the Registration Statement, Prospectus or preliminary prospectus,
as the case may be, at or prior to the execution of the applicable Terms
Agreement; and all references in this Underwriting Agreement to amendments or
supplements to the Registration Statement, Prospectus or preliminary prospectus
shall be deemed to include the filing of any document under the 1934 Act which
is incorporated by reference in the Registration Statement, Prospectus or
preliminary prospectus, as the case may be, after the execution of the
applicable Terms Agreement.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company. Each Initial
Guarantor and the Company and its subsidiaries, jointly and severally represent
and warrant to ▇▇▇▇▇▇▇ ▇▇▇▇▇, as of the date hereof, and to each Underwriter
named in the applicable Terms Agreement, as of the date thereof, as of the
Closing Time (as defined below) and, if applicable, as of each Date of Delivery
(as defined below) (in each case, a "Representation Date"), as follows:
(1) Compliance with Registration Requirements. Each of the
Company and the Initial Guarantors meets the requirements for use of
Form S-3 under the 1933 Act. The Registration Statement (including any
Rule 462(b) Registration Statement) has become effective under the
1933 Act and no stop order suspending the effectiveness of the
Registration Statement (or such Rule 462(b) Registration Statement)
has been issued under the 1933 Act and no proceedings for that purpose
have been instituted or are pending or, to the knowledge of the
Company and the Initial Guarantors, are contemplated by the
Commission, and any request on the part of the Commission for
additional information has been complied with. In addition, the
Indenture has been duly qualified under the 1939 Act.
At the respective times the Registration Statement
(including any Rule 462(b) Registration Statement) and any
post-effective amendments thereto (including the filing of the
Company's most recent Annual Report on Form 10-K with the Commission
(the "Annual Report on Form 10-K")) became effective and at each
Representation Date, the Registration Statement (including any Rule
462(b) Registration Statement) and any amendments thereto complied and
will comply in all material respects with the requirements of the 1933
Act and the 1933 Act Regulations and the 1939 Act and the rules and
regulations of the Commission under the 1939 Act (the "1939 Act
Regulations") and did not and will not contain an untrue statement of
a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading. At
the date of the Prospectus, at the Closing Time and at each Date of
Delivery, if any, neither the Prospectus nor any amendment or
supplement thereto included or will include an untrue statement of a
material fact or omitted or will 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. If the
Company elects to rely upon Rule 434 of the 1933 Act Regulations, the
Company will comply with the requirements of Rule 434. Notwithstanding
the foregoing, the representations and warranties in this subsection
shall not apply to the Statement of Eligibility of the Trustee on Form
T-1 or statements in or omissions from the Registration Statement or
the Prospectus made in reliance upon and in conformity with
information furnished to the Company or an Initial Guarantor in
writing by any Underwriter through ▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for use in
the Registration Statement or the Prospectus.
Each preliminary prospectus and prospectus filed as part of
the Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the 1933 Act,
complied when so filed in all material respects with the 1933 Act
Regulations and each preliminary prospectus and the Prospectus
delivered to the Underwriters for use in connection with the offering
of Underwritten Securities will, at the time of such delivery, be
identical to any electronically transmitted copies thereof filed with
the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by
Regulation S-T.
(2) Incorporated Documents. The documents incorporated or
deemed to be incorporated by reference in the Registration Statement
and the Prospectus, at the time they were or hereafter are filed with
the Commission, complied and will comply in all material respects with
the requirements of the 1934 Act and the rules and regulations of the
Commission thereunder (the "1934 Act Regulations") and, when read
together with the other information in the Prospectus, at the date of
the Prospectus, at the Closing Time and at each Date of Delivery, if
any, did not and will not include an untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading.
(3) Independent Accountants. The accountants that examined
certain of the Company's financial statements and supporting schedules
thereto included in the Registration Statement and the Prospectus, as
specified therein, are independent public accountants as required by
the 1933 Act and the 1933 Act Regulations.
(4) Financial Statements. The consolidated financial
statements included in the Registration Statement and the Prospectus,
together with the related schedules and notes, as well as those
financial statements, schedules and notes of any other entity included
therein, present fairly the financial position of the Company and its
consolidated subsidiaries, or such other entity, as the case may be,
at the dates indicated and the statement of operations, stockholders'
equity and cash flows of the Company and its consolidated
subsidiaries, or such other entity, as the case may be, for the
periods specified. Such financial statements have been prepared in
conformity with generally accepted accounting principles ("GAAP")
applied on a consistent basis throughout the periods involved. The
supporting schedules, if any, included in the Registration Statement
and the Prospectus present fairly in accordance with GAAP the
information required to be stated therein. The selected financial data
and the summary financial information, if any, included in the
Prospectus present fairly the information shown therein and have been
compiled on a basis consistent with that of the audited financial
statements included in the Registration Statement and the Prospectus.
Any pro forma financial statements of the Company and its subsidiaries
and the related notes thereto included in the Registration Statement
and the Prospectus present fairly the information shown therein, have
been prepared in accordance with the Commission's rules and guidelines
with respect to pro forma financial statements and have been properly
compiled on the bases described therein, and the assumptions used in
the preparation thereof are reasonable and the adjustments used
therein are appropriate to give effect to the transactions and
circumstances referred to therein.
(5) No Material Adverse Change in Business. Since the
respective dates as of which information is given in the Registration
Statement and the Prospectus, except as otherwise stated therein, (A)
there has been no material adverse change in the condition, financial
or otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business
(a "Material Adverse Effect"), (B) there have been no transactions
entered into by the Company or any of its subsidiaries, other than
those arising in the ordinary course of business, which are material
with respect to the Company and its subsidiaries considered as one
enterprise and (C) there has been no dividend or distribution of any
kind declared, paid or made by the Company on any class of its capital
stock.
(6) Good Standing of the Company. The Company has been duly
organized and is validly existing as a corporation in good standing
under the laws of the State of Indiana and has corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus and to enter into and perform
its obligations under, or as contemplated under, this Underwriting
Agreement and the applicable Terms Agreement. The Company is duly
qualified as a foreign corporation to transact business and is in good
standing in each other jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or
the conduct of business, except where the failure to so qualify or be
in good standing could not reasonably be expected to result in a
Material Adverse Effect.
(7) Good Standing of Subsidiaries. Each Initial Guarantor
and each "significant subsidiary", as defined in Regulation S-X
promulgated under the 1933 Act, of the Company (each, a "Subsidiary"
and, collectively, the "Subsidiaries") has been duly organized, is
validly existing and is in good standing under the laws of the
jurisdiction of its incorporation or organization, has power and
authority (corporate and other) to own, lease and operate its
properties and to conduct its business as described in the Prospectus
and is duly qualified as a foreign corporation or limited liability
company, as applicable, to transact business and is in good standing
in each jurisdiction in which such qualification is required, whether
by reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify or be in good
standing could not reasonably be expected to result in a Material
Adverse Effect. Except as otherwise stated in the Registration
Statement and the Prospectus, all of the issued and outstanding
capital stock or other equity interests of each Subsidiary has been
duly authorized and is validly issued, fully paid and non-assessable
and is owned by the Company, directly or through subsidiaries, free
and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity. None of the outstanding shares of
capital stock or other equity interests of any Subsidiary was issued
in violation of preemptive or other similar rights of any
securityholder of such Subsidiary. The only subsidiaries of the
Company are (a) the Subsidiaries and (b) certain other subsidiaries
which, individually or in the aggregate, are "minor" within the
meaning of Rule 3-10 of Regulation S-X promulgated under the ▇▇▇▇ ▇▇▇.
(8) Capitalization. If the Prospectus contains a
"Capitalization" section, the authorized, issued and outstanding
shares of capital stock of the Company is as set forth in the column
entitled "Actual" under such section (except for subsequent issuances
thereof, if any, contemplated under this Underwriting Agreement). Such
shares of capital stock have been duly authorized and validly issued
by the Company and are fully paid and non-assessable, and none of such
shares of capital stock was issued in violation of preemptive or other
similar rights of any securityholder of the Company.
(9) Authorization of this Underwriting Agreement and Terms
Agreement. This Underwriting Agreement has been, and the applicable
Terms Agreement as of the date thereof will have been, duly
authorized, executed and delivered by the Company.
(10) Authorization of the Debt Securities. The Debt
Securities have been, or as of the date of such Terms Agreement will
have been, duly authorized by the Company for issuance and sale
pursuant to this Underwriting Agreement and such Terms Agreement. Such
Debt Securities, when issued and authenticated in the manner provided
for in the Indenture and delivered against payment of the
consideration therefor specified in such Terms Agreement will
constitute valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or other similar laws affecting
the enforcement of creditors' rights generally or by general equitable
principles (regardless of whether enforcement is considered in a
proceeding in equity or at law), and except further as enforcement
thereof may be limited by requirements that a claim with respect to
any Debt Securities payable in a foreign currency (or a foreign
currency judgment in respect of such claim) be converted into U.S.
dollars at a rate of exchange prevailing on a date determined pursuant
to applicable law or by governmental authority to limit, delay or
prohibit the making of payments outside the United States. Such Debt
Securities will be in the form contemplated by, and each registered
holder thereof is entitled to the benefits of, the Indenture.
(11) Authorization of Guarantees. The Guarantees have been,
or as of the date of such Terms Agreement will have been, duly
authorized by the Guarantors; the Guarantees, when the Debt Securities
are issued and delivered in the manner provided for in the Indenture,
will constitute valid and binding obligations of the Guarantors,
enforceable against the Guarantors in accordance with their terms,
except as the enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or other similar
laws affecting the enforcement of creditors' rights generally or by
general equitable principles (regardless of whether enforcement is
considered in a proceeding in equity or at law), and except further as
enforcement thereof may be limited by requirements that a claim with
respect to any Guarantee payable in a foreign currency (or a foreign
currency judgment in respect of such claim) be converted into U.S.
dollars at a rate of exchange prevailing on a date determined pursuant
to applicable law or by governmental authority to limit, delay or
prohibit the making of payments outside the United States.
(12) Authorization of the Indenture. The Indenture has been,
or prior to the issuance of the Underwritten Securities thereunder
will have been, duly authorized, executed and delivered by the Company
and each Initial Guarantor and, upon such authorization, execution and
delivery, will constitute a valid and binding agreement of the Company
and each such Initial Guarantor, enforceable against the Company and
each such Initial Guarantor in accordance with its terms, except as
the enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or other similar laws affecting
the enforcement of creditors' rights generally or by general equitable
principles (regardless of whether enforcement is considered in a
proceeding in equity or at law).
(13) Description of the Underwritten Securities. The
Underwritten Securities being sold pursuant to the applicable Terms
Agreement, as of the Representation Date, when issued and delivered in
accordance with the terms of the related Underwritten Securities, will
conform in all material respects to the statements relating thereto
contained in the Prospectus and will be in substantially the form
filed or incorporated by reference, as the case may be, as an exhibit
to the Registration Statement.
(14) Description of the Indenture. The Indenture, as of the
Representation Date, will conform in all material respects to the
statements relating thereto contained in the Prospectus and will be in
substantially the form filed or incorporated by reference, as the case
may be, as an exhibit to the Registration Statement.
(15) Absence of Defaults and Conflicts. Neither the Company
nor any of its subsidiaries is in violation of its charter or by-laws
or in default in the performance or observance of any obligation,
agreement, covenant or condition contained in any contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, lease or
other agreement or instrument to which the Company or any of its
subsidiaries is a party or by which it or any of them may be bound, or
to which any of the assets, properties or operations of the Company or
any of its subsidiaries is subject (collectively, "Agreements and
Instruments"), except for such violations or defaults that could not
reasonably be expected to result in a Material Adverse Effect. The
execution, delivery and performance of this Underwriting Agreement,
the applicable Terms Agreement and the Indenture and any other
agreement or instrument entered into or issued or to be entered into
or issued by the Company and each Initial Guarantor in connection with
the transactions contemplated hereby or thereby or in the Registration
Statement and the Prospectus and the consummation of the transactions
contemplated herein and in the Registration Statement and the
Prospectus (including the issuance and sale of the Underwritten
Securities and the use of the proceeds from the sale of the
Underwritten Securities as described under the caption "Use of
Proceeds" in the Prospectus relating to such Underwritten Securities)
and compliance by the Company and each Initial Guarantor with its
obligations hereunder and thereunder have been duly authorized by all
necessary corporate action and do not and will not, whether with or
without the giving of notice or passage of time or both, conflict with
or constitute a breach of, or default or Repayment Event (as defined
below) under, or result in the creation or imposition of any lien,
charge or encumbrance upon any assets, properties or operations of the
Company or any of its subsidiaries pursuant to, any Agreements and
Instruments, nor will such action result in any violation of the
provisions of the charter or by-laws of the Company or any of its
subsidiaries or any applicable law, statute, rule, regulation,
judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction
over the Company or any of its subsidiaries or any of their assets,
properties or operations. As used herein, a "Repayment Event" means
any event or condition which gives the holder of any note, debenture
or other evidence of indebtedness (or any person acting on such
holder's behalf) the right to require the repurchase, redemption or
repayment of all or a portion of such indebtedness by the Company or
any of its subsidiaries.
(16) Absence of Labor Dispute. No labor dispute with the
employees of the Company or any of its subsidiaries exists or, to the
knowledge of the Company, is imminent, and the Company is not aware of
any existing or imminent labor disturbance by the employees of any of
its or any of its subsidiaries' principal suppliers, manufacturers,
customers or contractors, which, in either case, could reasonably be
expected to result in a Material Adverse Effect.
(17) Absence of Proceedings. Except as otherwise disclosed
in the Registration Statement or the Prospectus, there is no action,
suit, proceeding, inquiry or investigation before or brought by any
court or governmental agency or body, domestic or foreign, now
pending, or to the knowledge of the Company threatened, against or
affecting the Company or any of its subsidiaries which is required to
be disclosed in the Registration Statement and the Prospectus (other
than as stated therein), or which could reasonably be expected to
result in a Material Adverse Effect, or which could reasonably be
expected to materially and adversely affect the consummation of the
transactions contemplated under the Prospectus, this Underwriting
Agreement, the applicable Terms Agreement or the Indenture or the
performance by the Company and the Initial Guarantors of their
respective obligations hereunder and thereunder. The aggregate of all
pending legal or governmental proceedings to which the Company or any
of its subsidiaries is a party or of which any of their respective
assets, properties or operations is the subject which are not
described in the Registration Statement and the Prospectus, including
ordinary routine litigation incidental to the business, could not
reasonably be expected to result in a Material Adverse Effect.
(18) Accuracy of Exhibits. There are no franchises,
contracts or other documents which are required to be described in the
Registration Statement, the Prospectus or the documents incorporated
by reference therein or to be filed as exhibits thereto which have not
been so described and filed as required.
(19) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or
agency, domestic or foreign, is necessary or required for the due
authorization, execution and delivery by the Company and the Initial
Guarantors of this Underwriting Agreement or the applicable Terms
Agreement or for the performance by the Company and the Initial
Guarantors of the transactions contemplated under the Prospectus, this
Underwriting Agreement, such Terms Agreement or the Indenture, except
such as have been already made, obtained or rendered, as applicable or
as may be required under state securities or blue sky laws.
(20) Possession of Intellectual Property. The Company and
its subsidiaries own or possess, or can acquire on reasonable terms,
adequate patents, patent rights, licenses, inventions, copyrights,
know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or
procedures), trademarks, service marks, trade names or other
intellectual property (collectively, "Intellectual Property")
necessary to carry on the business now operated by them, except where
the failure to own, possess or acquire, singly or in the aggregate,
could not reasonably be expected to result in a Material Adverse
Effect. Neither the Company nor any of its subsidiaries has received
any notice or is otherwise aware of any infringement of or conflict
with asserted rights of others with respect to any Intellectual
Property or of any facts or circumstances which would render any
Intellectual Property invalid or inadequate to protect the interest of
the Company or any of its subsidiaries therein, and which infringement
or conflict (if the subject of any unfavorable decision, ruling or
finding) or invalidity or inadequacy, singly or in the aggregate,
could not reasonably be expected to result in a Material Adverse
Effect.
(21) Possession of Licenses and Permits. Except as otherwise
disclosed in the Registration Statement or the Prospectus, the Company
and its subsidiaries possess such permits, licenses, approvals,
consents and other authorizations (collectively, "Governmental
Licenses") issued by the appropriate federal, state, local or foreign
regulatory agencies or bodies necessary to conduct the business now
operated by them, except where the non-possession of such Governmental
Licenses could not reasonably be expected to result in a Material
Adverse Effect. The Company and its subsidiaries are in compliance
with the terms and conditions of all such Governmental Licenses,
except where the failure so to comply could not, singly or in the
aggregate, reasonably be expected to result in a Material Adverse
Effect. All of the Governmental Licenses are valid and in full force
and effect, except where the invalidity of such Governmental Licenses
or the failure of such Governmental Licenses to be in full force and
effect could not reasonably be expected to result in a Material
Adverse Effect. Neither the Company nor any of its subsidiaries has
received any notice of proceedings relating to the revocation or
modification of any such Governmental Licenses which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or
finding, could reasonably be expected to result in a Material Adverse
Effect.
(22) Title to Property. The Company and its subsidiaries
have good and marketable title to all material real property owned by
the Company and its subsidiaries and good title to all other material
properties owned by them, in each case, free and clear of all
mortgages, pledges, liens, security interests, claims, restrictions or
encumbrances of any kind, except (A) as otherwise stated in the
Registration Statement and the Prospectus or (B) those which do not,
singly or in the aggregate, materially affect the value of the
property of the Company and its subsidiaries in the aggregate and do
not interfere with the use made or proposed to be made of the property
of the Company and its subsidiaries in the aggregate by the Company or
any of its subsidiaries. All of the leases and subleases material to
the business of the Company and its subsidiaries considered as one
enterprise, and under which the Company or any of its subsidiaries
holds properties described in the Prospectus, are in full force and
effect, and neither the Company nor any of its subsidiaries has
received any notice of any material claim of any sort that has been
asserted by anyone adverse to the rights of the Company or any of its
subsidiaries under any of the leases or subleases mentioned above, or
affecting or questioning the rights of the Company or such subsidiary
of the continued possession of the leased or subleased premises under
any such lease or sublease.
(23) Investment Company Act. Neither the Company nor any of
the Initial Guarantors are, or upon the issuance and sale of the
Underwritten Securities as herein contemplated and the application of
the net proceeds therefrom as described in the Prospectus will be, an
"investment company" within the meaning of the Investment Company Act
of 1940, as amended (the "1940 Act").
(24) Public Utility Holding Company Act of 1935. The Company
is a "holding company" (within the meaning of the Public Utility
Holding Company Act of 1935, as amended (the "PUHC Act")) which is
exempt from being required to seek approval to perform its obligations
under this Underwriting Agreement, the Indenture and the Securities
pursuant to Rule 2 of the rules and regulations promulgated pursuant
to the PUHC Act.
(25) Environmental Laws. Except as otherwise stated in the
Registration Statement and the Prospectus and except as could not,
singly or in the aggregate, reasonably be expected to result in a
Material Adverse Effect, (A) neither the Company nor any of its
subsidiaries is in violation of any federal, state, local or foreign
statute, law, rule, regulation, ordinance, code, policy or rule of
common law or any judicial or administrative interpretation thereof
including any judicial or administrative order, consent, decree or
judgment, relating to pollution or protection of human health, the
environment (including, without limitation, ambient air, surface
water, groundwater, land surface or subsurface strata) or wildlife,
including, without limitation, laws and regulations relating to the
release or threatened release of chemicals, pollutants, contaminants,
wastes, toxic substances, hazardous substances, petroleum or petroleum
products (collectively, "Hazardous Materials") or to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport
or handling of Hazardous Materials (collectively, "Environmental
Laws"), (B) the Company and its subsidiaries possess all permits,
authorizations and approvals required under any applicable
Environmental Laws and are each in compliance with their requirements,
(C) there are no pending or, to the Company's knowledge, threatened
administrative, regulatory or judicial actions, suits, demands, demand
letters, claims, liens, notices of noncompliance or violation,
investigation or proceedings relating to any Environmental Law against
the Company or any of its subsidiaries and (D) to the Company's
knowledge, there are no events or circumstances that might reasonably
be expected to form the basis of an order for clean-up or remediation,
or an action, suit or proceeding by any private party or governmental
body or agency, against or affecting the Company or any of its
subsidiaries relating to Hazardous Materials or any Environmental
Laws.
(b) Officers' Certificates. Any certificate signed by any officer of
the Company, any Initial Guarantor or any of their respective subsidiaries and
delivered to any Underwriter or to counsel for the Underwriters in connection
with the offering of the Underwritten Securities shall be deemed a
representation and warranty by the Company or such Initial Guarantor to each
Underwriter as to the matters covered thereby on the date of such certificate.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Underwritten Securities. The several commitments of the
Underwriters to purchase the Underwritten Securities pursuant to the applicable
Terms Agreement shall be deemed to have been made on the basis of the
representations, warranties and agreements herein contained and shall be subject
to the terms and conditions herein set forth.
(b) Option Underwritten Securities. Subject to the terms and
conditions herein set forth, the Company may grant, if so provided in the
applicable Terms Agreement, an option to the Underwriters, severally and not
jointly, to purchase up to the aggregate principal amount of the Option
Underwritten Securities set forth therein at a price equal to the percentage of
the aggregate principal amount of the Initial Underwritten Securities
representing the purchase price, plus accrued interest or amortized original
issue discount, as the case may be, from the original issue date of the Initial
Underwritten Securities. Such option, if granted, will expire 30 days after the
date of such Terms Agreement, and may be exercised in whole or in part from time
to time only for the purpose of covering over-allotments which may be made in
connection with the offering and distribution of the Initial Underwritten
Securities upon notice by ▇▇▇▇▇▇▇ ▇▇▇▇▇ to the Company setting forth the number
or aggregate principal amount, as the case may be, of Option Underwritten
Securities as to which the several Underwriters are then exercising the option
and the time, date and place of payment and delivery for such Option
Underwritten Securities. Any such time and date of payment and delivery (each, a
"Date of Delivery") shall be determined by ▇▇▇▇▇▇▇ ▇▇▇▇▇, but shall not be later
than seven full business days after the exercise of said option, nor in any
event prior to the Closing Time, unless otherwise agreed upon by ▇▇▇▇▇▇▇ ▇▇▇▇▇
and the Company. If the option is exercised as to all or any portion of the
Option Underwritten Securities, each of the Underwriters, severally and not
jointly, will purchase that proportion of the total aggregate principal amount
of Option Underwritten Securities then being purchased which the number or
aggregate principal amount, as the case may be, of Initial Underwritten
Securities each such Underwriter has severally agreed to purchase as set forth
in such Terms Agreement bears to the total aggregate principal amount of Initial
Underwritten Securities, subject to such adjustments as ▇▇▇▇▇▇▇ ▇▇▇▇▇ in its
discretion shall make to eliminate any sales or purchases of Option Underwritten
Securities in an amount other than whole dollars.
(c) Payment. Payment of the purchase price for, and delivery of, the
Initial Underwritten Securities shall be made at the offices of Sidley ▇▇▇▇▇▇
▇▇▇▇▇ & ▇▇▇▇ LLP, or at such other place as shall be agreed upon by ▇▇▇▇▇▇▇
▇▇▇▇▇ and the Company, at 9:00 A.M. (Eastern time) on the third business day
after the date of the applicable Terms Agreement (unless postponed in accordance
with the provisions of Section 10 hereof), or such other time not later than ten
business days after such date as shall be agreed upon by ▇▇▇▇▇▇▇ ▇▇▇▇▇ and the
Company (such time and date of payment and delivery being herein called the
"Closing Time"). In addition, in the event that the Underwriters have exercised
their option, if any, to purchase any or all of the Option Underwritten
Securities, payment of the purchase price for, and delivery of such Option
Underwritten Securities, shall be made at the above-mentioned offices of Sidley
▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, or at such other place as shall be agreed upon by
▇▇▇▇▇▇▇ ▇▇▇▇▇ and the Company, on the relevant Date of Delivery as specified in
the notice from ▇▇▇▇▇▇▇ ▇▇▇▇▇ to the Company.
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery to
▇▇▇▇▇▇▇ ▇▇▇▇▇ for the respective accounts of the Underwriters of the
Underwritten Securities to be purchased by them. It is understood that each
Underwriter has authorized ▇▇▇▇▇▇▇ ▇▇▇▇▇, for its account, to accept delivery
of, receipt for, and make payment of the purchase price for, the Underwritten
Securities which it has severally agreed to purchase. ▇▇▇▇▇▇▇ ▇▇▇▇▇ individually
and not as representative of the Underwriters, may (but shall not be obligated
to) make payment of the purchase price for the Underwritten Securities to be
purchased by any Underwriter whose funds have not been received by the Closing
Time or the relevant Date of Delivery, as the case may be, but such payment
shall not relieve such Underwriter from its obligations hereunder.
(d) Denominations; Registration. The Underwritten Securities or
certificates for the Underwritten Securities, as applicable, shall be in such
denominations and registered in such names as ▇▇▇▇▇▇▇ ▇▇▇▇▇ may request in
writing at least two full business days prior to the Closing Time or the
relevant Date of Delivery, as the case may be. The Underwritten Securities or
certificates for the Underwritten Securities, as applicable, will be made
available for examination and packaging by ▇▇▇▇▇▇▇ ▇▇▇▇▇ in The City of New
York, or at such other place as shall be agreed upon by ▇▇▇▇▇▇▇ ▇▇▇▇▇ and the
Company, not later than 10:00 A.M. (Eastern time) on the business day prior to
the Closing Time or the relevant Date of Delivery, as the case may be.
SECTION 3. Covenants of the Company and the Initial Guarantors. Each
of the Company and the Initial Guarantors covenants with ▇▇▇▇▇▇▇ ▇▇▇▇▇ and with
each Underwriter participating in the offering of Underwritten Securities, as
follows:
(a) Compliance with Securities Regulations and Commission Requests.
The Company, subject to Section 3(b), will comply with the requirements of Rule
430A of the 1933 Act Regulations and/or Rule 434 of the 1933 Act Regulations, if
and as applicable, and will notify the Representative(s) promptly, and confirm
the notice in writing, of (i) the effectiveness of any post-effective amendment
to the Registration Statement or the filing of any supplement or amendment to
the Prospectus, (ii) the receipt of any comments from the Commission, (iii) any
request by the Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or for additional information, and
(iv) the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing or
suspending the use of any preliminary prospectus, or of the suspension of the
qualification of the Underwritten Securities for offering or sale in any
jurisdiction, or of the initiation or threatening of any proceedings for any of
such purposes. The Company will promptly effect the filings necessary pursuant
to Rule 424 and will take such steps as it deems necessary to ascertain promptly
whether any Prospectus transmitted for filing under Rule 424 was received for
filing by the Commission and, in the event that it was not, it will promptly
file the Prospectus. The Company and the Initial Guarantors will use their best
efforts to prevent the issuance of any stop order and, if any stop order is
issued, to obtain the lifting thereof as soon as practicable.
(b) Filing of Amendments. The Company will give ▇▇▇▇▇▇▇ ▇▇▇▇▇ notice
of its intention to file or prepare any amendment to the Registration Statement
(including any filing under Rule 462(b) of the 1933 Act Regulations), any Term
Sheet or any amendment, supplement or revision to either the prospectus included
in the Registration Statement at the time it became effective or to the
Prospectus, whether pursuant to the 1933 Act, the 1934 Act or otherwise, will
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ with copies of any such documents a reasonable amount of
time prior to such proposed filing or use, as the case may be, and will not file
or use any such document to which ▇▇▇▇▇▇▇ ▇▇▇▇▇ or counsel for the Underwriters
shall reasonably object.
(c) Delivery of Registration Statements. The Company has furnished or
will deliver to ▇▇▇▇▇▇▇ ▇▇▇▇▇ and counsel for the Underwriters, without charge,
signed or conformed copies of the Registration Statement as originally filed and
of each amendment thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated or deemed to be incorporated by
reference therein) and signed or conformed copies of all consents and
certificates of experts, and will also deliver to ▇▇▇▇▇▇▇ ▇▇▇▇▇, without charge,
a conformed copy of the Registration Statement as originally filed and of each
amendment thereto (without exhibits) for each of the Underwriters. Copies of the
Registration Statement and each amendment thereto furnished to the Underwriters
will be identical to the electronically transmitted copies thereof filed with
the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation
S-T.
(d) Delivery of Prospectuses. The Company will deliver to each
Underwriter, without charge, as many copies of each preliminary prospectus as
such Underwriter may reasonably request, and the Company hereby consents to the
use of such copies for purposes permitted by the 1933 Act. The Company will
furnish to each Underwriter, without charge, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, such
number of copies of the Prospectus as such Underwriter may reasonably request.
The Prospectus and any amendments or supplements thereto furnished to the
Underwriters will be identical to the electronically transmitted copies thereof
filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by
Regulation S-T.
(e) Continued Compliance with Securities Laws. Each of the Company and
Initial Guarantors will comply with the 1933 Act and the 1933 Act Regulations
and the 1934 Act and the 1934 Act Regulations so as to permit the completion of
the distribution of the Underwritten Securities as contemplated in this
Underwriting Agreement and the applicable Terms Agreement and in the
Registration Statement and the Prospectus. If at any time when the Prospectus is
required by the 1933 Act or the 1934 Act to be delivered in connection with
sales of the Securities any event shall occur or condition shall exist as a
result of which it is necessary, in the reasonable opinion of counsel for the
Underwriters or for the Company and the Initial Guarantors, to amend the
Registration Statement in order that the Registration Statement will not contain
an untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not misleading
or to amend or supplement the Prospectus in order that the Prospectus will not
include an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein not misleading in the light of
the circumstances existing at the time it is delivered to a purchaser, or if it
shall be necessary, in the opinion of such counsel, at any such time to amend
the Registration Statement or amend or supplement the Prospectus in order to
comply with the requirements of the 1933 Act or the 1933 Act Regulations, the
Company and the Initial Guarantors will promptly prepare and file with the
Commission, subject to Section 3(b), such amendment or supplement as may be
necessary to correct such statement or omission or to make the Registration
Statement or the Prospectus comply with such requirements, and the Company and
the Initial Guarantors will furnish to the Underwriters, without charge, such
number of copies of such amendment or supplement as the Underwriters may
reasonably request.
(f) Blue Sky Qualifications. The Company and the Initial Guarantors
will use their best efforts, in cooperation with the Underwriters, to qualify
the Underwritten Securities for offering and sale under the applicable
securities laws of such states and other jurisdictions (domestic or foreign) as
▇▇▇▇▇▇▇ ▇▇▇▇▇ may designate and to maintain such qualifications in effect as
long as may be necessary to complete the distribution of the Underwritten
Securities; provided, however, that neither the Company nor the Initial
Guarantors shall be obligated to file any general consent to service of process
or to qualify as a foreign corporation or as a dealer in securities in any
jurisdiction in which it is not so qualified or to subject itself to taxation in
respect of doing business in any jurisdiction in which it is not otherwise so
subject. In each jurisdiction in which the Underwritten Securities have been so
qualified, the Company and the Initial Guarantors will file such statements and
reports as may be required by the laws of such jurisdiction.
(g) Earnings Statement. The Company will timely file such reports
pursuant to the 1934 Act as are necessary in order to make generally available
to its securityholders as soon as practicable an earnings statement for the
purposes of, and to provide the benefits contemplated by, the last paragraph of
Section 11(a) of the 1933 Act.
(h) Use of Proceeds. The Company will use the net proceeds received by
it from the sale of the Underwritten Securities in the manner specified in the
Prospectus under "Use of Proceeds."
(i) Listing. The Company will use commercially reasonable efforts to
effect the listing of the Underwritten Securities, prior to the Closing Time, on
any national securities exchange or quotation system if and as specified in the
applicable Terms Agreement.
(j) Restriction on Sale of Securities. Between the date of the
applicable Terms Agreement and the Closing Time or such other date specified in
such Terms Agreement, the Company will not, without the prior written consent of
▇▇▇▇▇▇▇ ▇▇▇▇▇, directly or indirectly, issue, sell, offer or contract to sell,
grant any option for the sale of, or otherwise dispose of, the securities
specified in such Terms Agreement.
(k) Reporting Requirements. The Company and the Initial Guarantors,
during the period when the Prospectus is required to be delivered under the 1933
Act or the 1934 Act, will file all documents required to be filed with the
Commission pursuant to the 1934 Act within the time periods required by the 1934
Act and the 1934 Act Regulations.
SECTION 4. Payment of Expenses.
(a) Expenses. The Company and the Initial Guarantors will pay all
expenses incident to the performance of their obligations under this
Underwriting Agreement or the applicable Terms Agreement, including (i) the
preparation, printing and filing of the Registration Statement (including
financial statements and exhibits) as originally filed and of each amendment
thereto, (ii) the preparation, printing and delivery to the Underwriters of this
Underwriting Agreement, any Terms Agreement, any Agreement among Underwriters,
the Indenture and such other documents as may be required in connection with the
offering, purchase, sale, issuance or delivery of the Underwritten Securities,
(iii) the preparation, issuance and delivery of the Underwritten Securities, any
certificates for the Underwritten Securities, as applicable, to the
Underwriters, including any transfer taxes and any stamp or other duties payable
upon the sale, issuance or delivery of the Underwritten Securities to the
Underwriters, (iv) the fees and disbursements of the Company's counsel,
accountants and other advisors or agents (including transfer agents and
registrars), as well as the fees and disbursements of the Trustee and its
counsel, (v) the qualification of the Underwritten Securities under state
securities laws in accordance with the provisions of Section 3(f) hereof,
including filing fees and the reasonable fees and disbursements of counsel for
the Underwriters in connection therewith and in connection with the preparation,
printing and delivery of the Blue Sky and Legal Investment Surveys, and any
amendment thereto, (vi) the printing and delivery to the Underwriters of copies
of each preliminary prospectus, any Term Sheet, and the Prospectus and any
amendments or supplements thereto, (vii) the fees charged by nationally
recognized statistical rating organizations for the rating of the Underwritten
Securities, (viii) the fees and expenses incurred with respect to the listing of
the Underwritten Securities, if applicable, (ix) the filing fees incident to,
and the reasonable fees and disbursements of counsel to the Underwriters in
connection with, the review, if any, by the National Association of Securities
Dealers, Inc. (the "NASD") of the terms of the sale of the Underwritten
Securities, and (x) the fees and expenses of any Underwriter acting in the
capacity of a "qualified independent underwriter" (as defined in Rule 2720 of
the Conduct Rules of the NASD), if applicable. It is understood, however, that
except as provided in this Section 4, and in Sections 5(n), 6 or 7 hereof, the
Underwriters will be responsible for all of their own costs and expenses,
including the fees of their counsel, any transfer taxes on the Underwritten
Securities upon resale by them and all other expenses incurred by them in
connection with any offering of the Underwritten Securities made by the
Underwriters.
(b) Termination of Agreement. If the applicable Terms Agreement is
terminated by ▇▇▇▇▇▇▇ ▇▇▇▇▇ in accordance with the provisions of Section 5 or
Section 9(b)(i) hereof, the Company shall reimburse the Underwriters for all of
their out-of-pocket expenses reasonably incurred by the Underwriters in
connection with preparations for the purchase, sale and delivery of the
Underwritten Securities pursuant to the applicable Terms Agreement, including
the reasonable fees and disbursements of counsel for the Underwriters.
SECTION 5. Conditions of Underwriters' Obligations. The obligations of
the Underwriters to purchase and pay for the Underwritten Securities pursuant to
the applicable Terms Agreement are subject to the accuracy of the
representations and warranties of the Company and the Initial Guarantors
contained in Section 1 hereof and in certificates of any officer of the Company,
any of the Initial Guarantors or any of their respective subsidiaries delivered
pursuant to the provisions hereof, to the performance by the Company and the
Initial Guarantors of its covenants and other obligations hereunder, and to the
following further conditions:
(a) Effectiveness of Registration Statement. The Registration
Statement, including any Rule 462(b) Registration Statement, has become
effective under the 1933 Act and no stop order suspending the effectiveness of
the Registration Statement shall have been issued under the 1933 Act and no
proceedings for that purpose shall have been instituted or be pending or
threatened by the Commission, and any request on the part of the Commission for
additional information shall have been complied with to the reasonable
satisfaction of counsel to the Underwriters. A prospectus containing information
relating to the description of the Underwritten Securities, the specific method
of distribution and similar matters shall have been filed with the Commission in
accordance with Rule 424(b)(1), (2), (3), (4) or (5), as applicable (or any
required post-effective amendment providing such information shall have been
filed and declared effective in accordance with the requirements of Rule 430A),
or, if the Company has elected to rely upon Rule 434 of the 1933 Act
Regulations, a Term Sheet including the Rule 434 Information shall have been
filed with the Commission in accordance with Rule 424(b)(7).
(b) Opinion of General Counsel of the Company. At the Closing Time,
the Underwriters shall have received the favorable opinion, dated as of the
Closing Time, of, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, General Counsel of the Company, in form
and substance satisfactory to the Underwriters, together with signed or
reproduced copies of such letter for each of the other Underwriters,
substantially to the effect set forth in Exhibit B hereto and to such further
effect as counsel to the Underwriters may reasonably request.
(c) Opinion of Counsel for Company. At the Closing Time, the
Underwriters shall have received the favorable opinion, dated as of the Closing
Time, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, counsel for the Company, in form and substance
satisfactory to the Underwriters, together with signed or reproduced copies of
such letter for each of the other Underwriters, substantially to the effect set
forth in Exhibit C hereto and to such further effect as counsel to the
Underwriters may reasonably request.
(d) Opinion of Counsel for Underwriters. At the Closing Time, the
Underwriters shall have received an opinion, dated as of the Closing Time, of
Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, together with
signed or reproduced copies of such letter for each of the other Underwriters,
in form and substance satisfactory to the Underwriters.
(e) Officers' Certificate. At the Closing Time, there shall not have
been, since the date of the applicable Terms Agreement or since the respective
dates as of which information is given in the Prospectus, any material adverse
change in the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries considered as
one enterprise, whether or not arising in the ordinary course of business, and
the Underwriters shall have received a certificate of the Chief Executive
Officer, President or Executive Vice President of the Company and of each
Initial Guarantor and of the Chief Financial Officer or Chief Accounting Officer
of the Company and of each Initial Guarantor, dated as of the Closing Time, to
the effect that (i) there has been no such material adverse change, (ii) the
representations and warranties in Section 1(a) are true and correct with the
same force and effect as though expressly made at and as of the Closing Time,
(iii) the Company or such Initial Guarantor, as the case may be, has complied
with all agreements and satisfied all conditions on its part to be performed or
satisfied at or prior to the Closing Time, and (iv) no stop order suspending the
effectiveness of the Registration Statement has been issued and no proceedings
for that purpose have been instituted, are pending or, to the best of such
officer's knowledge, are threatened by the Commission.
(f) Accountant's Comfort Letter. At the time of the execution of the
applicable Terms Agreement, the Underwriters shall have received from ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ LLP a letter dated such date, in form and substance satisfactory to the
Underwriters, together with signed or reproduced copies of such letter for each
of the other Underwriters, containing statements and information of the type
ordinarily included in accountants' "comfort letters" to underwriters with
respect to the financial statements and certain financial information contained
in the Registration Statement and the Prospectus.
(g) Bring-down Comfort Letter. At the Closing Time, the Underwriters
shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP a letter, dated as of the Closing
Time, to the effect that they reaffirm the statements made in the letter
furnished pursuant to subsection (f) of this Section 5, except that the
specified date referred to shall be a date not more than three business days
prior to the Closing Time.
(h) Ratings. At the Closing Time and at any relevant Date of Delivery,
the Underwritten Securities shall have the ratings accorded by any "nationally
recognized statistical rating organization", as defined by the Commission for
purposes of Rule 436(g)(2) of the 1933 Act Regulations, if and as specified in
the applicable Terms Agreement, and the Company shall have delivered to the
Underwriters a letter, dated as of such date, from each such rating
organization, or other evidence satisfactory to the Underwriters, confirming
that the Underwritten Securities have such ratings. Since the time of execution
of such Terms Agreement, there shall not have occurred a downgrading in, or
withdrawal of, the rating assigned to the Underwritten Securities or any of the
Company's other securities by any nationally recognized statistical rating
organization, and no such rating organization shall have publicly announced that
it has under surveillance or review its rating of the Underwritten Securities or
any of the Company's other securities.
(i) Approval of Listing. At the Closing Time, the Underwritten
Securities shall have been approved for listing, subject only to official notice
of issuance, if and as specified in the applicable Terms Agreement.
(j) No Objection. If the Registration Statement or an offering of
Underwritten Securities has been filed with the NASD for review, the NASD shall
not have raised any objection with respect to the fairness and reasonableness of
the underwriting terms and arrangements.
(k) Lock-up Agreements. On the date of the applicable Terms Agreement,
the Underwriters shall have received, in form and substance satisfactory to it,
each lock-up agreement, if any, specified in such Terms Agreement as being
required to be delivered by the persons listed therein.
(l) Over-Allotment Option. In the event that the Underwriters are
granted an over-allotment option by the Company in the applicable Terms
Agreement and the Underwriters exercise their option to purchase all or any
portion of the Option Underwritten Securities, the representations and
warranties of the Company contained herein and the statements in any
certificates furnished by the Company or any of its subsidiaries hereunder shall
be true and correct as of each Date of Delivery, and, at the relevant Date of
Delivery, the Underwriters shall have received:
(1) A certificate, dated such Date of Delivery, of the Chief
Executive Officer, President or Executive Vice President of the
Company and the Chief Financial Officer or Chief Accounting Officer of
the Company, confirming that the certificate delivered at the Closing
Time pursuant to Section 5(e) hereof remains true and correct as of
such Date of Delivery.
(2) The favorable opinions of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, General
Counsel of the Company and ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, counsel for the
Company, each in form and substance satisfactory to the Underwriters,
dated such Date of Delivery, relating to the Option Underwritten
Securities and otherwise to the same effect as the opinions required
by Sections 5(b) and 5(c) hereof.
(3) The favorable opinion of Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP,
counsel for the Underwriters, dated such Date of Delivery, relating to
the Option Underwritten Securities and otherwise to the same effect as
the opinion required by Section 5(d) hereof.
(4) A letter from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, in form and substance
satisfactory to the Underwriters and dated such Date of Delivery,
substantially in the same form and substance as the letter furnished
to the Underwriters pursuant to Section 5(f) hereof, except that the
"specified date" on the letter furnished pursuant to this paragraph
shall be a date not more than three business days prior to such Date
of Delivery.
(5) Since the time of execution of such Terms Agreement,
there shall not have occurred a downgrading in, or withdrawal of, the
rating assigned to the Underwritten Securities or any of the Company's
other securities by any nationally recognized statistical rating
organization, and no such rating organization shall have publicly
announced that it has under surveillance or review its rating of the
Underwritten Securities or any of the Company's other securities.
(m) Additional Documents. At the Closing Time and at each Date of
Delivery, counsel for the Underwriters shall have been furnished with such
documents and opinions as they may reasonably require for the purpose of
enabling them to pass upon the issuance and sale of the Underwritten Securities
as herein contemplated, or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the conditions,
herein contained; and all proceedings taken by the Company or the Initial
Guarantors in connection with the issuance and sale of the Underwritten
Securities as herein contemplated shall be satisfactory in form and substance to
the Underwriters and counsel for the Underwriters.
(n) Termination of Terms Agreement. If any condition specified in this
Section 5 shall not have been fulfilled when and as required to be fulfilled,
the applicable Terms Agreement or, with respect to the Underwriters' exercise of
any applicable over-allotment option for the purchase of Option Underwritten
Securities on a Date of Delivery after the Closing Time, the obligations of the
Underwriters to purchase the Option Underwritten Securities on such Date of
Delivery may be terminated by ▇▇▇▇▇▇▇ ▇▇▇▇▇ by notice to the Company at any time
at or prior to the Closing Time or such Date of Delivery, as applicable, and
such termination shall be without liability of any party to any other party
except as provided in Section 4 and except that Sections 1, 6, 7 and 8 shall
survive any such termination and remain in full force and effect.
SECTION 6. Indemnification.
(a) Indemnification of Underwriters. The Company and the Initial
Guarantors, jointly and severally, agree to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act as follows:
(1) against any and all losses, liabilities, claims, damages
and expenses whatsoever, as incurred, arising out of any untrue
statement or alleged untrue statement of a material fact contained in
the Registration Statement (or any amendment thereto), including the
Rule 430A Information and the Rule 434 Information deemed to be a part
thereof, if applicable, or the omission or alleged omission therefrom
of a material fact required to be stated therein or necessary to make
the statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact included in
any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto), or the omission or alleged omission therefrom of
a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading;
(2) against any and all losses, liabilities, claims, damages
and expenses whatsoever, as incurred, to the extent of the aggregate
amount paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission; provided that (subject to Section 6(d) below) any such
settlement is effected with the written consent of the Company; and
(3) against any and all expenses whatsoever, as incurred
(including the fees and disbursements of outside counsel chosen by
▇▇▇▇▇▇▇ ▇▇▇▇▇), reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or proceeding
by any governmental agency or body, commenced or threatened, or any
claim whatsoever based upon any such untrue statement or omission, or
any such alleged untrue statement or omission, to the extent that any
such expense is not paid under (1) or (2) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission, made in reliance
upon and in conformity with written information furnished to the Company or an
Initial Guarantor by any Underwriter through ▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for use in
the Registration Statement (or any amendment thereto), including the Rule 430A
Information and the Rule 434 Information deemed to be a part thereof, if
applicable, or any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto); and, provided further, that this indemnity agreement,
insofar as it relates to any preliminary prospectus, shall not inure to the
benefit of any Underwriter (or to the benefit of any person who controls such
Underwriter) on account of any loss, liability, claim, damage or expense arising
out of the sale of any of the Underwritten Securities by such Underwriter to any
person if it shall be established that a copy of the Prospectus, excluding any
documents incorporated by reference (as supplemented or amended, if the Company
shall have made any supplements or amendments which have been furnished to the
Representative), shall not have been sent or given by or on behalf of such
Underwriter to such person at or prior to the written confirmation of the sale
of Underwritten Securities to such person in any case where such delivery is
required by the 1933 Act and the Company satisfied its obligations pursuant to
Section 3(b) hereof, if the misstatement or omission leading to such loss,
claim, damage or liability was corrected in the Prospectus (excluding any
documents incorporated by reference) as amended or supplemented, such correction
would have cured the defect giving rise to such loss, liability, claim, damage,
or expense and the Prospectus was delivered to such Underwriter a reasonable
amount of time in advance of such Underwriter's delivery of the written
confirmation to such person.
(b) Indemnification of Company, Directors and Officers. Each
Underwriter severally agrees to indemnify and hold harmless the Company, each
Initial Guarantor, their respective directors, each of their officers who signed
the Registration Statement, and each person, if any, who controls the Company or
any Initial Guarantor within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act against any and all losses, liabilities, claims,
damages and expenses described in the indemnity contained in Section 6(a), as
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any
amendment thereto), including the Rule 430A Information and the Rule 434
Information deemed to be a part thereof, if applicable, or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with written information furnished to the
Company by such Underwriter through ▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for use in the
Registration Statement (or any amendment thereto) or such preliminary prospectus
or the Prospectus (or any amendment or supplement thereto).
(c) Actions against Parties; Notification. Each indemnified party
shall give notice as promptly as reasonably practicable to each indemnifying
party of any action commenced against it in respect of which indemnity may be
sought hereunder, but failure to so notify an indemnifying party shall not
relieve such indemnifying party from any liability hereunder to the extent it is
not materially prejudiced as a result thereof and in any event shall not relieve
it from any liability which it may have otherwise than on account of this
indemnity agreement. In the case of parties indemnified pursuant to Section 6(a)
above, counsel to the indemnified parties shall be selected by ▇▇▇▇▇▇▇ ▇▇▇▇▇,
and, in the case of parties indemnified pursuant to Section 6(b) above, counsel
to the indemnified parties shall be selected by the Company. An indemnifying
party may participate at its own expense in the defense of any such action;
provided, however, that counsel to the indemnifying party shall not (except with
the consent of the indemnified party) also be counsel to the indemnified party.
In no event shall the indemnifying parties be liable for fees and expenses of
more than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or Section
7 hereof (whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(2) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
SECTION 7. Contribution. If the indemnification provided for in
Section 6 hereof is for any reason unavailable to or insufficient to hold
harmless an indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate amount of such losses, liabilities, claims, damages
and expenses incurred by such indemnified party, as incurred, (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Initial Guarantors, on the one hand, and the Underwriters, on
the other hand, from the offering of the Underwritten Securities pursuant to the
applicable Terms Agreement or (ii) if the allocation provided by clause (i) 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 Initial Guarantors, on the one hand, and
the Underwriters, on the other hand, in connection with the statements or
omissions which resulted in such losses, liabilities, claims, damages or
expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company and the Initial
Guarantors, on the one hand, and the Underwriters, on the other hand, in
connection with the offering of the Underwritten Securities pursuant to the
applicable Terms Agreement shall be deemed to be in the same respective
proportions as the total net proceeds from the offering of such Underwritten
Securities (before deducting expenses) received by the Company and the Initial
Guarantors and the total underwriting discount received by the Underwriters, in
each case as set forth on the cover of the Prospectus, or, if Rule 434 is used,
the corresponding location on the Term Sheet, bear to the aggregate initial
public offering price of such Underwritten Securities as set forth on such
cover.
The relative fault of the Company and the Initial Guarantors, on the
one hand, and the Underwriters, on the other hand, shall be determined by
reference to, among other things, whether any such untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a material
fact relates to information supplied by the Company, the Initial Guarantors or
the Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company, the Initial Guarantors and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this Section 7 were
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this Section
7. The aggregate amount of losses, liabilities, claims, damages and expenses
incurred by an indemnified party and referred to above in this Section 7 shall
be deemed to include any legal or other expenses reasonably incurred by such
indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall
be required to contribute any amount in excess of the amount by which the total
price at which the Underwritten Securities underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages which
such Underwriter has otherwise been required to pay by reason of any such 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 ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each director of the Company or any Initial Guarantor, each officer of the
Company or any Initial Guarantor who signed the Registration Statement, and each
person, if any, who controls the Company or any Initial Guarantor within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have
the same rights to contribution as the Company.
The Underwriters' respective obligations to contribute pursuant to
this Section 7 are several in proportion to the aggregate principal amount of
Initial Underwritten Securities set forth opposite their respective names in the
applicable Terms Agreement, and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Underwriting Agreement or the applicable Terms Agreement or in certificates of
officers of the Company, any Initial Guarantor or any of their respective
subsidiaries submitted pursuant hereto or thereto shall remain operative and in
full force and effect, regardless of any investigation made by or on behalf of
any Underwriter or controlling person, or by or on behalf of the Company or any
Initial Guarantor, and shall survive delivery of and payment for the
Underwritten Securities.
SECTION 9. Termination.
(a) Underwriting Agreement. This Underwriting Agreement (excluding the
applicable Terms Agreement) may be terminated for any reason at any time by the
Company or by ▇▇▇▇▇▇▇ ▇▇▇▇▇ upon the giving of prior written notice of such
termination to the other party hereto.
(b) Terms Agreement. ▇▇▇▇▇▇▇ ▇▇▇▇▇ may terminate the applicable Terms
Agreement, by notice to the Company, at any time at or prior to the Closing Time
or any relevant Date of Delivery, if (i) there has been, since the time of
execution of such Terms Agreement or since the respective dates as of which
information is given in the Prospectus, any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, or (ii)
there has occurred any material adverse change in the financial markets in the
United States or in the international financial markets, or any outbreak of
hostilities or escalation thereof or other calamity or crisis or any change or
development involving a prospective change in national or international
political, financial or economic conditions, in each case the effect of which is
such as to make it, in the judgment of ▇▇▇▇▇▇▇ ▇▇▇▇▇, impracticable to market
the Underwritten Securities or to enforce contracts for the sale of the
Underwritten Securities, or (iii) trading in any securities of the Company has
been suspended or materially limited by the Commission, the New York Stock
Exchange or the American Stock Exchange, or if trading generally on the New York
Stock Exchange or the American Stock Exchange or in the Nasdaq National Market
has been suspended or materially limited, or minimum or maximum prices for
trading have been fixed, or maximum ranges for prices have been required, by
either of said exchanges or by such system or by order of the Commission, the
NASD or any other governmental authority, or (iv) a banking moratorium has been
declared by either Federal or New York authorities.
(c) Liabilities. If this Underwriting Agreement or the applicable
Terms Agreement is terminated pursuant to this Section 9, such termination shall
be without liability of any party to any other party except as provided in
Section 4 hereof, and provided further that Sections 1, 6, 7 and 8 shall survive
such termination and remain in full force and effect.
SECTION 10. Default by One or More of the Underwriters. If one or more
of the Underwriters shall fail at the Closing Time or the relevant Date of
Delivery, as the case may be, to purchase the Underwritten Securities which it
or they are obligated to purchase under the applicable Terms Agreement (the
"Defaulted Securities"), then ▇▇▇▇▇▇▇ ▇▇▇▇▇ shall have the right, within 24
hours thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth; if, however, ▇▇▇▇▇▇▇ ▇▇▇▇▇ shall not have completed such
arrangements within such 24-hour period, then:
(a) if the number or aggregate principal amount, as the case may be,
of Defaulted Securities does not exceed 10% of the number or aggregate principal
amount, as the case may be, of Underwritten Securities to be purchased on such
date pursuant to such Terms Agreement, the non-defaulting Underwriters shall be
obligated, severally and not jointly, to purchase the full amount thereof in the
proportions that their respective underwriting obligations under such Terms
Agreement bear to the underwriting obligations of all non-defaulting
Underwriters, or
(b) if the number or aggregate principal amount, as the case may be,
of Defaulted Securities exceeds 10% of the number or aggregate principal amount,
as the case may be, of Underwritten Securities to be purchased on such date
pursuant to such Terms Agreement, such Terms Agreement (or, with respect to the
Underwriters' exercise of any applicable over-allotment option for the purchase
of Option Underwritten Securities on a Date of Delivery after the Closing Time,
the obligations of the Underwriters to purchase, and the Company to sell, such
Option Underwritten Securities on such Date of Delivery) shall terminate without
liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section 10 shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in (i) a
termination of the applicable Terms Agreement or (ii) in the case of a Date of
Delivery after the Closing Time, a termination of the obligations of the
Underwriters and the Company with respect to the related Option Underwritten
Securities, as the case may be, either ▇▇▇▇▇▇▇ ▇▇▇▇▇ or the Company shall have
the right to postpone the Closing Time or the relevant Date of Delivery, as the
case may be, for a period not exceeding seven days in order to effect any
required changes in the Registration Statement or the Prospectus or in any other
documents or arrangements.
SECTION 11. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to ▇▇▇▇▇▇▇ ▇▇▇▇▇ at o, attention of o, and
notices to the Company shall be directed to it at o, attention of o.
SECTION 12. Parties. This Underwriting Agreement and the applicable
Terms Agreement shall each inure to the benefit of and be binding upon the
Company, the Initial Guarantors, ▇▇▇▇▇▇▇ ▇▇▇▇▇ and, upon execution of such Terms
Agreement, any other Underwriters and their respective successors. Nothing
expressed or mentioned in this Underwriting Agreement or such Terms Agreement is
intended or shall be construed to give any person, firm or corporation, other
than the parties hereto and their respective successors and the controlling
persons and officers and directors referred to in Sections 6 and 7 and their
heirs and legal representatives, any legal or equitable right, remedy or claim
under or in respect of this Underwriting Agreement or such Terms Agreement or
any provision herein or therein contained. This Underwriting Agreement and such
Terms Agreement and all conditions and provisions hereof and thereof are
intended to be for the sole and exclusive benefit of the parties hereto and
thereto and their respective successors, and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Underwritten
Securities from any Underwriter shall be deemed to be a successor by reason
merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS UNDERWRITING AGREEMENT AND
ANY APPLICABLE TERMS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK. SPECIFIED TIMES OF DAY REFER TO NEW YORK
CITY TIME.
SECTION 14. Effect of Headings. The Article and Section headings
herein and the Table of Contents are for convenience only and shall not affect
the construction hereof.
SECTION 15. Counterparts. This Agreement may be executed in one or
more counterparts and, if executed in more than one counterpart, the executed
counterparts hereof shall constitute a single instrument.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this Underwriting Agreement, along with all counterparts, will become a binding
agreement among ▇▇▇▇▇▇▇ ▇▇▇▇▇, the Company and the Initial Guarantors in
accordance with its terms.
Very truly yours,
VECTREN UTILITY HOLDINGS, INC.,
as Issuer
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Chairman & Chief Executive Officer
INDIANA GAS COMPANY, INC.,
as Guarantor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
SOUTHERN INDIANA GAS AND ELECTRIC COMPANY,
as Guarantor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
--------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Title: Executive Vice President and CFO
VECTREN ENERGY DELIVERY OF OHIO, INC.,
as Guarantor
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Sr. Vice President
CONFIRMED AND ACCEPTED,
as of the date first above written:
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
▇.▇. ▇▇▇▇▇▇▇ & SONS, INC.
UBS WARBURG LLC
U.S. BANCORP ▇▇▇▇▇ ▇▇▇▇▇▇▇ INC.
By: ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
By: /s/ ▇▇▇▇ ▇. Scholopy
-----------------------------------
Authorized Signatory
Acting on behalf of itself and the other named Underwriters.
EXHIBIT A
VECTREN UTILITY HOLDINGS, INC.
(an Indiana corporation)
AND THE GUARANTORS NAMED HEREIN
Senior Debt Securities
TERMS AGREEMENT
October 12, 2001
To: Vectren Utility Holdings, Inc.
▇▇ ▇.▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
We understand that Vectren Utility Holdings, Inc., an Indiana
corporation (the "Company"), proposes to issue and sell $100,000,000 aggregate
principal amount of its senior debt securities (the "Debt Securities"). Subject
to the terms of the Indenture, such securities will be fully and unconditionally
guaranteed as to payment of principal, premium (if any) and interest (the
"Guarantees," and together with the Debt Securities, the "Initial Underwritten
Securities") by the Initial Guarantors. Subject to the terms and conditions set
forth or incorporated by reference herein, we, the underwriters named below (the
"Underwriters") offer to purchase, severally and not jointly, the principal
amount of Underwritten Securities opposite their names set forth below at the
purchase price set forth below.
Principal Amount
Underwriter of Initial Underwritten Securities
----------- ----------------------------------
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ $ 23,875,000
Incorporated............ 23,875,000
▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc.................... 23,625,000
UBS Warburg LLC............................. 23,625,000
U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ Inc.............. 625,000
ABN AMRO Incorporated..................... 625,000
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co. Incorporated......... 625,000
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Company, L.L.C............ 625,000
J.J.B. ▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, Inc............. 625,000
McDonald Investments Inc.................... 625,000
Mesirow Financial, Inc...................... 625,000
NatCity Investments, Inc.................... 625,000
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Associates, Inc............ 625,000
----------------
Total $100,000,000
============
The Underwritten Securities shall have the
following terms:
Title: 7-1/4% Notes Due October 15, 2031
Rank: Unsecured senior indebtedness
Guaranteed: Guaranteed by Indiana Gas Company, Inc.,
Southern Indiana Gas and Electric
Company and Vectren Energy Delivery of
Ohio, Inc.
Ratings: "A2" by ▇▇▇▇▇'▇ Investors Service, Inc.
"A-" by Standard & Poor's Ratings
Services
Aggregate principal amount: $100,000,000
Denominations: $25 and integral multiples in excess
thereof
Currency of payment: United States dollars
Interest rate or formula: 7-1/4% per annum, payable quarterly
in arrears
Interest payment dates: January 15, April 15, July 15 and
October 15 of each year, commencing
January 15, 2002
Regular record dates: The first calendar day of the month in
which the relevant Interest Payment Date
falls.
Stated maturity date: October 15, 2031
Redemption provisions: The Notes are redeemable at the option
of the Company in whole or in part
commencing October 19, 2006, upon not
less than 30 calendar days and not more
than 60 calendar days prior written
notice at a price of 100% of the
principal amount to be redeemed, plus
unpaid interest accrued to the
redemption date.
Sinking fund requirements: The Notes will not have the benefit of,
or be subject to, any sinking fund.
Defeasance provisions: The Notes are subject to defeasance and
covenant defeasance as provided in
Article 8 of the Indenture.
Listing requirements: Application will be made to list the
Notes on the New York Stock Exchange.
Fixed or Variable Price Offering:
Fixed Price Offering
If Fixed Price Offering: 100% of the principal amount, plus accrued
interest , if any, from October 19, 2001.
Purchase price: 96.85% of the principal amount, plus accrued interest, if any,
from October 19, 2001.
Form: Book-entry
Other terms and conditions: N/A
Closing date and location: October 19, 2001 at Sidley ▇▇▇▇▇▇ ▇▇▇▇▇
& Wood LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
All of the provisions contained in the document attached as Annex I
hereto entitled "Vectren Utility Holdings, Inc.-- Debt Securities--Underwriting
Agreement" are hereby incorporated by reference in their entirety herein and
shall be deemed to be a part of this Terms Agreement to the same extent as if
such provisions had been set forth in full herein. Terms defined in such
document are used herein as therein defined.
Please accept this offer on October 12, 2001 by signing a copy of this
Terms Agreement in the space set forth below and returning the signed copy to
us.
Very truly yours,
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
▇.▇. ▇▇▇▇▇▇▇ & SONS, INC.
UBS WARBURG LLC
U.S. BANCORP ▇▇▇▇▇ ▇▇▇▇▇▇▇ INC.
By: ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
By:
-----------------------------------------
Authorized Signatory
Acting on behalf of itself and the other
named Underwriters.
Accepted:
VECTREN UTILITY HOLDINGS, INC.,
as Issuer
By:
--------------------------------------------------------
Name:
Title:
INDIANA GAS COMPANY, INC.,
as Guarantor
By:
--------------------------------------------------------
Name:
Title:
SOUTHERN INDIANA GAS AND ELECTRIC COMPANY,
as Guarantor
By:
--------------------------------------------------------
Name:
Title:
VECTREN ENERGY DELIVERY OF OHIO, INC.,
as Guarantor
By:
--------------------------------------------------------
Name:
Title:
EXHIBIT B
FORM OF OPINION OF GENERAL COUNSEL
OF THE COMPANY
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
1. The information in the Company's most recent Annual Report on Form
10-K under the caption "Legal Proceedings", to the extent that it constitutes
matters of law, summaries of legal matters or the Company's charter, bylaws or
legal proceedings, or legal conclusions, has been reviewed by me and is correct
in all material respects.
2. To the best of my knowledge, neither the Company nor any of its
subsidiaries is in violation of its charter or by-laws and no default by the
Company or any of its subsidiaries exists in the due performance or observance
of any obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other agreement or
instrument that is described or referred to in the Registration Statement or the
Prospectus or filed or incorporated by reference as an exhibit to the
Registration Statement, except for defaults which individually or in the
aggregate would not have a Material Adverse Effect.
3. To the best of my knowledge, there are no franchises, contracts,
indentures, mortgages, loan agreements, notes, leases or other instruments
required to be described or referred to in the Registration Statement or the
Prospectus or to be filed as exhibits thereto other than those described or
referred to therein or filed or incorporated by reference as exhibits thereto,
and the descriptions thereof or references thereto are correct in all material
respects.
4. To the best of my knowledge, there are no statutes or regulations
that are required to be described in the Prospectus that are not described as
required.
EXHIBIT C
FORM OF OPINION OF COMPANY'S COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(c)
1. The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Indiana.
2. The Company has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under, or as
contemplated under, the Underwriting Agreement and the applicable Terms
Agreement.
3. The Company is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure to so qualify or
be in good standing would not result in a Material Adverse Effect.
4. The authorized, issued and outstanding shares of capital stock of
the Company is as set forth in the column entitled "Actual" under the caption
"Capitalization" (except for subsequent issuances thereof, if any, contemplated
under the Underwriting Agreement). Such shares of capital stock have been duly
authorized and validly issued by the Company and are fully paid and
non-assessable, and none of such shares of capital stock was issued in violation
of preemptive or other similar rights of any securityholder of the Company.
5. The Debt Securities have been duly authorized by the Company for
issuance and sale pursuant to the Underwriting Agreement and the applicable
Terms Agreement. The Debt Securities, when issued and authenticated in the
manner provided for in the Indenture and delivered against payment of the
consideration therefor specified in such Terms Agreement, will constitute valid
and binding obligations of the Company, enforceable against the Company in
accordance with their terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or other similar laws
affecting the enforcement of creditors' rights generally or by general equitable
principles (regardless of whether enforcement is considered in a proceeding in
equity or at law); and except further as enforcement thereof may be limited by
requirements that a claim with respect to any Debt Securities payable in a
foreign currency (or a foreign currency judgment in respect of such claim) be
converted into U.S. dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law or by governmental authority to limit,
delay or prohibit the making of payments outside the United States. The Debt
Securities are in the form contemplated by, and each registered holder thereof
is entitled to the benefits of, the Indenture.
6. The Guarantees have been duly authorized by the Guarantors and,
when the Debt Securities are issued and authenticated in accordance with the
terms of the Indenture and delivered and paid for in accordance with the terms
of the Underwriting Agreement and applicable Terms Agreement, will constitute
valid and legally binding obligations of the Guarantors, enforceable against the
Guarantors in accordance with their terms, except as the enforcement thereof may
be limited by bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization, moratorium or other similar
laws affecting the enforcement of creditors' rights generally or by general
equitable principles (regardless of whether enforcement is considered in a
proceeding in equity or at law); and except further as enforcement thereof may
be limited by requirements that a claim with respect to any Guarantee payable in
a foreign currency (or a foreign currency judgment in respect of such claim) be
converted into U.S. dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law or by governmental authority to limit,
delay or prohibit the making of payments outside the United States.
7. The Indenture has been duly authorized, executed and delivered by
the Company and the Initial Guarantors and (assuming due authorization,
execution and delivery thereof by the Trustee) constitutes a valid and binding
agreement of the Company and the Initial Guarantors, enforceable against the
Company and the Initial Guarantors in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or other similar laws affecting the enforcement of creditors' rights
generally or by general equitable principles (regardless of whether enforcement
is considered in a proceeding in equity or at law).
8. Each Subsidiary has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the jurisdiction of its
incorporation, has corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectus and is
duly qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is required, whether
by reason of the ownership or leasing of property or the conduct of business,
except where the failure to so qualify or be in good standing would not result
in a Material Adverse Effect. Except as otherwise described in the Prospectus,
all of the issued and outstanding capital stock of each Subsidiary has been duly
authorized and is validly issued, fully paid and non-assessable and, to the best
of our knowledge, is owned by the Company, directly or through subsidiaries,
free and clear of any security interest, mortgage, pledge, lien, encumbrance,
claim or equity. None of the outstanding shares of capital stock of any
Subsidiary was issued in violation of preemptive or other similar rights of any
securityholder of such Subsidiary.
9. The Underwriting Agreement and the applicable Terms Agreement have
been duly authorized, executed and delivered by the Company.
10. The Underwritten Securities being sold pursuant to the applicable
Terms Agreement, conform and, when issued and delivered in accordance with the
terms of the related Underwritten Securities, will conform, in all material
respects to the statements relating thereto contained in the Prospectus and are
in substantially the form filed or incorporated by reference, as the case may
be, as an exhibit to the Registration Statement.
11. The Indenture conforms in all material respects to the statements
relating thereto contained in the Prospectus and is in substantially the form
filed or incorporated by reference, as the case may be, as an exhibit to the
Registration Statement.
12. The Registration Statement (including any Rule 462(b) Registration
Statement) has been declared effective under the 1933 Act. Any required filing
of the Prospectus pursuant to Rule 424(b) has been made in the manner and within
the time period required by Rule 424(b). To the best of our knowledge, no stop
order suspending the effectiveness of the Registration Statement (or such Rule
462(b) Registration Statement) has been issued under the 1933 Act and no
proceedings for that purpose have been initiated or are pending or threatened by
the Commission.
13. The Registration Statement (including any Rule 462(b) Registration
Statement) and the Prospectus, excluding the documents incorporated by reference
therein, and each amendment or supplement to the Registration Statement
(including any Rule 462(b) Registration Statement) and Prospectus, excluding the
documents incorporated by reference therein, as of their respective effective or
issue dates (other than the financial statements and supporting schedules
included therein or omitted therefrom and the Trustee's Statement of Eligibility
on Form T-1 (the "Form T-1"), as to which we express no opinion), complied as to
form in all material respects with the requirements of the 1933 Act and the 1933
Act Regulations.
14. The documents incorporated by reference in the Prospectus (other
than the financial statements and supporting schedules therein or omitted
therefrom, as to which we express no opinion), when they were filed with the
Commission, complied as to form in all material respects with the requirements
of the 1934 Act and the rules and regulations of the Commission thereunder.
15. To the best of our knowledge, except as otherwise disclosed in the
Registration Statement and Prospectus, there is not pending or threatened any
action, suit, proceeding, inquiry or investigation to which the Company or any
of its subsidiaries thereof is a party or to which the assets, properties or
operations of the Company or any of its subsidiaries thereof is subject, before
or by any court or governmental agency or body, domestic or foreign, which could
reasonably be expected to result in a Material Adverse Effect or which could
reasonably be expected to materially and adversely affect the assets, properties
or operations thereof or the consummation of the transactions contemplated under
the Underwriting Agreement, the applicable Terms Agreement or the Indenture or
the performance by the Company of its obligations thereunder.
16. The information in the Prospectus under "Description of Senior
Debt Securities" and "Description of Notes," and in the Registration Statement
under Item 15, to the extent that it constitutes matters of law, summaries of
legal matters or the Company's charter, bylaws or legal proceedings, or legal
conclusions, has been reviewed by us and is correct in all material respects.
17. All descriptions in the Registration Statement and the Prospectus
of contracts and other documents to which the Company or its subsidiaries are a
party are accurate in all material respects.
18. To the best of our knowledge, neither the Company nor any of its
subsidiaries is in violation of its charter or by-laws. Based solely on
inquiries we have made of the Company's Executive Vice President/Chief Financial
Officer, Senior Vice President/General Counsel/Secretary, Vice
President/Treasurer and Vice President/Controller, and a officer's certificate
no default by the Company or any of its subsidiaries exists in the due
performance or observance of any obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, loan agreement, note, lease or
other agreement or instrument that is described or referred to in the
Registration Statement or the Prospectus or filed or incorporated by reference
as an exhibit to the Registration Statement, except for defaults which
individually or in the aggregate would not have a Material Adverse Effect.
19. The execution, delivery and performance of the Underwriting
Agreement, the applicable Terms Agreement and the Indenture and any other
agreement or instrument entered into or issued or to be entered into or issued
by the Company and the Initial Guarantors in connection with the transactions
contemplated in the Registration Statement and the Prospectus and the
consummation of the transactions contemplated in the Underwriting Agreement and
such Terms Agreement and in the Registration Statement and the Prospectus
(including the issuance and sale of the Underwritten Securities and the use of
the proceeds from the sale of the Underwritten Securities as described under the
caption "Use of Proceeds") and compliance by the Company and the Initial
Guarantors with their respective obligations thereunder do not and will not,
whether with or without the giving of notice or passage of time or both,
conflict with or constitute a breach of, or default or Repayment Event under, or
result in the creation or imposition of any lien, charge or encumbrance upon any
assets, properties or operations of the Company or any of its subsidiaries
pursuant to, any contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease or any other agreement or instrument, known to me, to
which the Company or any of its subsidiaries is a party or by which it or any of
them may be bound, or to which any of the assets, properties or operations of
the Company or any of its subsidiaries is subject, nor will such action result
in any violation of the provisions of the charter or by-laws of the Company or
any of its subsidiaries or any applicable law, statute, rule, regulation,
judgment, order, writ or decree, known to us, of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over the
Company or any of its subsidiaries or any of their assets, properties or
operations.
20. No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any court or governmental
authority or agency, domestic or foreign, is necessary or required for the due
authorization, execution or delivery by the Company or the Initial Guarantors of
the Underwriting Agreement or the applicable Terms Agreement or for the
performance by the Company or the Initial Guarantors of the transactions
contemplated under the Prospectus, the Underwriting Agreement, such Terms
Agreement or the Indenture, other than under the 1933 Act, the 1933 Act
Regulations, the 1939 Act and the 1939 Act Regulations, which have already been
made, obtained or rendered, as applicable.
21. The Indenture has been duly qualified under the 1939 Act.
22. Neither the Company nor the Initial Guarantors are, or upon the
issuance and sale of the Underwritten Securities as herein contemplated and the
application of the net proceeds therefrom as described in the Prospectus will
be, an "investment company" within the meaning of the 1940 Act.
23. The Company is a "holding company" (within the meaning of the
Public Utility Holding Company Act of 1935, as amended (the "PUHC Act")) which
is exempt from being required to seek approval to perform its obligations under
the Underwriting Agreement, the Indenture and the Securities pursuant to Rule 2
of the rules and regulations promulgated pursuant to the PUHC Act.
Further, although we are not passing upon and do not assume any
responsibility for, the accuracy and completeness of the statements (except as
covered by (5), (6), (7), (16) and (17)) contained in the Registration
Statement, Prospectus, or any amendment or supplement thereto, including the
Rule 430A Information and Rule 434 Information (if applicable), we advise you,
on the basis of the discussions and inquiries concerning various legal and
related subjects and reviews of and reports on certain corporate records,
documents and proceedings and conferences with representatives of the Company at
which certain portions of the Registration Statement and the Prospectus were
discussed (relying as to certain factual matters upon representations of the
Company), nothing has come to our attention that would lead us to believe that
the Registration Statement (including any Rule 462(b) Registration Statement) or
any pre-effective amendment thereto (except for financial statements and
supporting schedules and other financial data included therein or omitted
therefrom and for the Form T-1, as to which we make no statement), at the time
the Registration Statement (including any Rule 462(b) Registration Statement) or
any post-effective amendment thereto (including the filing of the Company's
Annual Report on Form 10-K with the Commission) became effective or at the date
of the applicable Terms Agreement, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or that the Prospectus
or any amendment or supplement thereto (except for financial statements and
supporting schedules and other financial data included therein or omitted
therefrom, as to which we make no statement), at the time the Prospectus was
issued, at the time any such amended or supplemented prospectus was issued or at
the Closing Time, included or includes an untrue statement of a material fact or
omitted or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
In rendering such opinion, such counsel may rely, as to matters of
fact (but not as to legal conclusions), to the extent they deem proper, on
certificates of responsible officers of the Company, the Initial Guarantors and
public officials. Such opinion shall not state that it is to be governed or
qualified by, or that it is otherwise subject to, any treatise, written policy
or other document relating to legal opinions, including, without limitation, the
Legal Opinion Accord of the ABA Section of Business Law (1991).