1
EXHIBIT 1.1
OUTDOOR SYSTEMS, INC.
$150,000,000
[ ]% Senior Subordinated Notes due 2006
UNDERWRITING AGREEMENT
[ ], 1996
CIBC WOOD GUNDY SECURITIES CORP.
ALEX. ▇▇▇▇▇ & SONS INCORPORATED
c/o CIBC Wood Gundy Securities Corp.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Outdoor Systems, Inc., a Delaware corporation (the "Company"),
and each of the Company's subsidiaries listed in Exhibit A hereto (each, a
"Subsidiary Guarantor" and, collectively, the "Subsidiary Guarantors" and,
together with the Company, the "Issuers") hereby confirm their agreement with
you (the "Underwriters"), as set forth below.
1. The Securities. Subject to the terms and conditions herein
contained, the Company proposes to issue and sell to the Underwriters
$150,000,000 aggregate principal amount of its [ ]% Senior Subordinated Notes
due 2006 (the "Notes"). The obligations of the Company under the Indenture (as
hereinafter defined) and the Notes will be unconditionally guaranteed (the
"Guarantees"), on a joint and several basis, by each Subsidiary Guarantor. The
Notes and the Guarantees are to be issued pursuant to the Indenture (the
"Indenture"), dated [ ], 1996, among the Company, The Bank of New York, a New
York Banking corporation, as trustee (the "Trustee"), and the Subsidiary
Guarantors. The Notes and the Guarantees are hereinafter referred to
collectively as the "Securities."
2. Representations and Warranties of the Issuers. The Issuers,
jointly and severally, represent and warrant to and agree with the Underwriters
that:
(a) A registration statement on Form S-3 (File No. 333-9713
with respect to the Securities, including a prospectus, subject to
completion, has been filed with the Securities and Exchange Commission
(the "Commission") under the Securities Act of 1933, as amended
(together with the
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rules and regulations of the Commission promulgated thereunder, the
"Act") by the Issuers with respect to the Securities; and one or more
amendments to such registration statement also have been so filed.
After the execution of this Agreement, the Issuers will file with the
Commission either (x) if such registration statement, as it may have
been amended, has been declared by the Commission to be effective under
the Act prior to the execution and delivery hereof, a prospectus in the
form most recently included in an amendment to such registration
statement (or, if no such amendment shall have been filed, in such
registration statement) with only such changes or insertions therein as
are required by Rule 430A under the Act or permitted by Rule 424(b)
under the Act and as have been provided to and approved by the
Underwriters or their counsel prior to the filing thereof and as to
which the Underwriters shall not have reasonably objected; or (y) if
such registration statement, as it may have been amended, has not been
declared by the Commission to be effective under the Act prior to the
execution and delivery hereof, an amendment to such registration
statement, including a form of final prospectus, a copy of which
amendment has been furnished to and approved by the Underwriters or
their counsel prior to the proposed filing thereof. As used in this
Agreement, the term "Registration Statement" means such registration
statement, as amended at the time when it was or is declared effective,
including all financial schedules and exhibits thereto and including
any information omitted therefrom pursuant to Rule 430A under the Act
and included in the Prospectus (as hereinafter defined); the term
"Preliminary Prospectus" means each prospectus, subject to completion,
filed with such registration statement or any amendment thereto
(including the prospectus, subject to completion, if any, included in
the Registration Statement or any amendment thereto at the time it was
or is declared effective); and the term "Prospectus" means the
prospectus first filed with the Commission pursuant to Rule 430A and
Rule 424(b), if required, or, if no prospectus is required to be filed
pursuant to Rule 430A or Rule 424(b), such term means the prospectus
included in such Registration Statement, provided that if a revised
prospectus shall be provided to the Underwriters by the Company for use
in connection with the offering and sale of the Securities that differs
from the prospectus on file at the Commission at the time such
Registration Statement becomes effective or as first filed under Rule
430A and Rule 424(b), the term "Prospectus" shall refer to the revised
prospectus from and after the time it is first provided to the
Underwriters for such use. If the
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Company has filed an abbreviated registration statement to register
additional securities pursuant to Rule 462(b) under the Act (the "Rule
462 Registration Statement") then any reference herein to "Registration
Statement" shall be deemed to include such Rule 462 Registration
Statement. All references in this Agreement to the Registration
Statement, Preliminary Prospectus and Prospectus and to financial
statements and schedules and other information that is "contained,"
"included," "set forth," "described in" or "stated" therein (and all
other references of like import) shall be deemed to mean and include
all such financial statements and schedules and other information that
is or is deemed to be incorporated by reference therein; and all
references in this Agreement to amendments or supplements to the
Registration Statement, the Preliminary Prospectus or the Prospectus
shall be deemed to mean and include the filing of any document under
the Securities Exchange Act of 1934, as amended (together with the
rules and regulations of the Commission promulgated thereunder, the
"1934 Act"), that is or is deemed to be incorporated by reference
therein.
(b) The Commission has not issued any order preventing or
suspending the use of any Preliminary Prospectus nor instituted any
proceeding for such purpose. When the Registration Statement or any
amendment thereto was or is declared effective, it (i) contained all
statements required to be stated therein in accordance with, and
complied or will comply in all material respects with the requirements
of the Act and (ii) did not or will not contain any untrue statement of
a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading. When the Registration Statement becomes effective, the
Indenture will have been qualified under and will conform in all
material respects to the requirements of the Trust Indenture Act of
1939, as amended (together with the rules and regulations of the
Commission thereunder, "Trust Indenture Act"). The Prospectus, and any
amendment or supplement thereto, on the date first filed with the
Commission pursuant to Rule 424(b) (or if not filed, on the date first
provided to the Underwriters in connection with the offering and sale
of the Securities) and on the Closing Date (i) complied or will comply
in all material respects with the requirements of the Act and (ii) did
not or will not contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
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The foregoing provisions of this paragraph (b) do not apply to
statements or omissions in the Registration Statement or any amendment
thereto or the Prospectus or any amendment or supplement thereto made
in reliance upon and in conformity with written information furnished
to the Company by any Underwriter specifically for use therein, or to
the Statement of Eligibility and Qualification (Form T-1) under the
Trust Indenture Act of the Trustee filed as an exhibit to the
Registration Statement.
(c) The documents incorporated or deemed to be incorporated by
reference in the Prospectus, at the time they were or hereafter are
filed with the Commission, complied and will comply in all material
respects with the requirements of the 1934 Act, and when read together
with the other information in the Prospectus, at the time the
Registration Statement and any amendments thereto became or becomes
effective and at the Closing Date, 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, in the light of the circumstances under which they were made,
not misleading.
(d) Each of the Issuers and the Subsidiaries (as hereinafter
defined) has been duly incorporated and each of the Issuers and the
Subsidiaries is validly existing in good standing as a corporation
under the laws of its jurisdiction of incorporation, with the requisite
corporate power and authority to own its properties and conduct its
business as now conducted as described in the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus)
and is duly qualified to do business as a foreign corporation in good
standing in all other jurisdictions where the ownership or leasing of
its properties or the conduct of its business requires such
qualification, except where the failure to be so qualified would not,
individually or in the aggregate, have a material adverse effect on the
business, condition (financial or other), prospects or results of
operations of the Company and the Subsidiaries, taken as a whole, (any
such event, a "Material Adverse Effect"); the Company had as of the
date specified therein the authorized, issued and outstanding
capitalization set forth in the Prospectus (or, if the Prospectus is
not in existence, the most recent Preliminary Prospectus); except as
set forth in Exhibit B hereto, the Company does not have any
subsidiaries (the "Subsidiaries") or own directly or indirectly any of
the capital stock or
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other equity securities of any other person; all of the outstanding
shares of capital stock of the Issuers and the Subsidiaries have been
duly authorized and validly issued, are fully paid and nonassessable
and were not issued in violation of any preemptive or similar rights
and are owned free and clear of all liens, encumbrances, equities and
restrictions on transferability (other than those imposed by the Act
and the state securities or "Blue Sky" laws); except as set forth in
the Prospectus (or, if the Prospectus is not in existence, the most
recent Preliminary Prospectus), all of the outstanding shares of
capital stock of the Subsidiaries are owned by the Company, free and
clear of all liens, encumbrances, equities and restrictions on
transferability (other than those imposed by the Act and the State
securities or "Blue Sky" laws); except as set forth in the Registration
Statement and the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus), no options,
warrants or other rights to purchase from the Company or any
Subsidiary, agreements or other obligations of the Company or any
Subsidiary to issue or other rights to convert any obligation into, or
exchange any securities for, shares of capital stock of or ownership
interests in the Company or any Subsidiary are outstanding; and no
holder of securities of the Company or any Subsidiary is entitled to
have such securities registered under the Registration Statement.
(e) The Securities have been duly and validly authorized by
each of the Issuers for issuance and when executed by the Issuers and
authenticated by the Trustee in accordance with the provisions of the
Indenture, and delivered to and paid for by the Underwriters in
accordance with the terms hereof, will have been duly executed, issued
and delivered and will constitute valid and legally binding obligations
of the Issuers, entitled to the benefits of the Indenture and
enforceable against the Issuers in accordance with their terms except
that the enforcement thereof may be limited by (i) bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to or affecting creditors' rights
generally or (ii) general principles of equity and the discretion of
the court before which any proceeding therefor may be brought
(regardless of whether such enforcement is considered in a proceeding
at law or in equity); each of the Issuers has all requisite corporate
power and authority to execute, deliver and perform its obligations
under the Indenture and the Securities; and the Indenture has been duly
and validly authorized by the Issuers and qualified under the Trust
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Indenture Act and, when executed and delivered by the Issuers (assuming
the due authorization, execution and delivery by the Trustee), will
constitute a valid and legally binding agreement of the Issuers,
enforceable against the Issuers in accordance with its terms except
that the enforcement thereof may be limited by (i) bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to or affecting creditors' rights
generally or (ii) general principles of equity and the discretion of
the court before which any proceeding therefor may be brought
(regardless of whether such enforcement is considered in a proceeding
at law or in equity).
(f) Each of the Issuers has the requisite corporate power and
authority to execute, deliver and perform its obligations under this
Agreement. This Agreement has been duly and validly authorized by the
Issuers and, when executed and delivered by the Issuers, will
constitute a valid and legally binding agreement of the Issuers,
enforceable against the Issuers in accordance with its terms except (i)
that the enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in
effect relating to or affecting creditors' rights generally or general
principles of equity and the discretion of the court before which any
proceeding therefor may be brought (regardless of whether such
enforcement is considered in a proceeding at law or in equity) and (ii)
as any rights to indemnity or contribution hereunder may be limited by
federal and state securities laws and public policy considerations.
(g) No consent, approval, authorization or order of any court
or governmental agency or body is required for the performance of this
Agreement, the Securities or the Indenture by the Issuers or to the
consummation by the Issuers of any of the transactions contemplated
hereby and thereby, or the application of the proceeds of the issuance
of the Securities as described in the Prospectus (or, if the Prospectus
is not in existence, the most recent Preliminary Prospectus), except as
may be required and have been obtained under the Act, the Trust
Indenture Act or state securities or "Blue Sky" laws in connection with
the purchase and distribution of the Securities by the Underwriters;
and none of the Issuers is (i) in violation of its certificate of
incorporation or bylaws, (ii) in violation of any statute, judgment,
decree, order, rule or regulation applicable to it or any of its
properties or
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assets, which violation would, individually or in the aggregate, have a
Material Adverse Effect, or (iii) in default in the performance or
observance of any obligation, agreement, covenant or condition
contained in this Agreement, the Securities or the Indenture or any
other contract, indenture, mortgage, deed of trust, loan agreement,
note, lease, license, franchise agreement, permit, certificate or
agreement or instrument to which it is a party or to which it is
subject, which default would, individually or in the aggregate, have a
Material Adverse Effect.
(h) The execution, delivery and performance by the Issuers of
this Agreement, the Securities and the Indenture and the consummation
by the Issuers of the transactions contemplated hereby and thereby and
by the Prospectus and the fulfillment of the terms hereof and thereof,
will not violate, conflict with or constitute or result in a breach of
or a default under (or an event that, with notice or lapse of time, or
both, would constitute a breach of or a default under) any of (a) the
terms or provisions of any contract, indenture, mortgage, deed of
trust, loan agreement, note, lease, license, franchise agreement,
permit, certificate or agreement or instrument to which any of the
Company or the Subsidiaries is a party or to which any of their
respective properties or assets are subject, which violation, conflict,
breach or default would, individually or in the aggregate, have a
Material Adverse Effect, (b) the certificate of incorporation or bylaws
of any of the Company or the Subsidiaries or (c) (assuming compliance
with all applicable state securities or "Blue Sky" laws) any statute,
judgment, decree, order, rule or regulation of any court or
governmental agency or other body applicable to the Company or the
Subsidiaries or any of their respective properties or assets, which
violation, conflict, breach or default would, individually or in the
aggregate, have a Material Adverse Effect.
(i) The audited consolidated financial statements and
schedules included in the Registration Statement and the Prospectus
(or, if the Prospectus is not in existence, the most recent Preliminary
Prospectus) present fairly the consolidated financial position, results
of operations and cash flows of such entities at the dates and for the
periods to which they relate and have been prepared in accordance with
generally accepted accounting principles applied on a consistent basis,
except as otherwise stated therein; the unaudited consolidated
financial statements and the related
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notes included in the Registration Statement and the Prospectus (or, if
the Prospectus is not in existence, the most recent Preliminary
Prospectus) present fairly the consolidated financial position, results
of operations and cash flows of such entities at the dates and for the
periods to which they relate, subject to year end audit adjustments and
have been prepared in accordance with generally accepted accounting
principles applied on a consistent basis except as otherwise stated
therein and have been prepared on a basis substantially consistent with
that of the audited financial statements referred to above except as
otherwise stated therein; the summary and selected financial and
statistical data included in the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) present fairly the information shown therein
and have been prepared and compiled on a basis consistent with the
audited and unaudited financial statements included therein, except as
otherwise stated therein; and Deloitte & Touche L.L.P., which has
examined certain of such financial statements and schedules as set
forth in its reports included in the Registration Statement and the
Prospectus, is an independent public accounting firm as required by the
Act.
(j) The pro forma financial statements and other pro forma
financial information (including the notes thereto) included in the
Registration Statement and the Prospectus (or, if the Prospectus is not
in existence, the most recent Preliminary Prospectus) (A) have been
prepared in accordance with applicable requirements of Regulation S-X
promulgated under the Act and (B) have been properly computed on the
bases described therein; and the assumptions used in the preparation of
the pro forma financial statements and other pro forma financial
information included in the Registration Statement and the Prospectus
(or, if the Prospectus is not in existence, the most recent Preliminary
Prospectus) are reasonable and the adjustments used therein are
appropriate to give effect to the transactions or circumstances
referred to therein.
(k) Except as described in the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary
Prospectus), there is not pending or, to the best knowledge of the
Issuers, threatened any action, suit, proceeding, inquiry or
investigation, governmental or otherwise, to which any of the Company
or the Subsidiaries is a party, or to which their respective properties
or assets are subject, before or brought by any court, arbitrator or
governmental
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agency or body, that, if determined adversely to the Company or the
Subsidiaries would, individually or in the aggregate, have a Material
Adverse Effect or that seeks to restrain, enjoin, prevent the
consummation of or otherwise challenge the issuance or sale of the
Securities to be sold hereunder or the application of the proceeds
therefrom or the other transactions described in the Prospectus.
(l) None of the Company or the Subsidiaries has any liability
for any prohibited transaction or funding deficiency or any complete or
partial withdrawal liability with respect to any pension, profit
sharing or other plan which is subject to the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), to which any of the
Company or the Subsidiaries makes or ever has made a contribution and
in which any employee of any of the Company or the Subsidiaries is or
has ever been a participant. With respect to such plans, the Company
and the Subsidiaries are in compliance in all material respects with
all provisions of ERISA.
(m) The Company and the Subsidiaries own or possess adequate
licenses or other rights to use all patents, trademarks, service marks,
trade names, copyrights and know-how that are necessary to conduct
their business as described in the Prospectus (or, if the Prospectus is
not in existence, the most recent Preliminary Prospectus).
(n) None of the Company or the Subsidiaries has received any
notice of infringement of or conflict with (or knows of any such
infringement of or conflict with) asserted rights of others with
respect to any patents, trademarks, service marks, trade names,
copyrights or know-how that, if such assertion of infringement or
conflict were sustained, would, individually or in the aggregate, have
a Material Adverse Effect.
(o) Each of the Company and the Subsidiaries has obtained all
licenses, permits, franchises and other governmental authorizations,
the lack of which would, individually or in the aggregate, have a
Material Adverse Effect.
(p) Subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus)
and except as described therein, (i) the Company and the Subsidiaries
have not
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incurred any material liabilities or obligations, direct or contingent,
or entered into any material transactions, in either case whether or
not in the ordinary course of business, and (ii) the Company and the
Subsidiaries have not purchased any of their respective outstanding
capital stock, or declared, paid or otherwise made any dividend or
distribution of any kind on any of their respective capital stock or
otherwise.
(q) There are no legal or governmental proceedings required to
be described in the Registration Statement or Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus)
that are not described as required, nor are there any contracts or
other documents required to be described in the Registration Statement
or Prospectus (or, if the Prospectus is not in existence, the most
recent Preliminary Prospectus) or to be filed as exhibits to the
Registration Statement by the Act that have not been described or filed
as required. Except as described in the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary
Prospectus), none of the Company or the Subsidiaries is in default
under any of the contracts filed as exhibits to the Registration
Statement, has received a notice or claim of any such default or has
knowledge of any breach of any of the contracts filed as exhibits to
the Registration Statement by the other party or parties thereto,
except such defaults or breaches as would not, individually or in the
aggregate, have a Material Adverse Effect.
(r) None of the Company or the Subsidiaries has taken or will
take any action that would cause this Agreement or the issuance or sale
of the Securities to violate Regulation G, T, U or X of the Board of
Governors of the Federal Reserve System, in each case as in effect, or
as the same may hereafter be in effect, on the Closing Date.
(s) Each of the Company and the Subsidiaries has good and
marketable title to all real property described in the Prospectus (or,
if the Prospectus is not in existence, the most recent Preliminary
Prospectus) as being owned by it and good and marketable title to the
leasehold estate in the real property described therein as being leased
by it, free and clear of all liens, charges, encumbrances or
restrictions, except, in each case, as described in the Prospectus (or,
if the Prospectus is not in existence, the most recent Preliminary
Prospectus) or such as would not, individually or in the aggregate,
have a Material Adverse
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Effect. All leases, contracts and agreements, including those referred
to in or filed as exhibits to the Registration Statement, to which the
Company or any of the Subsidiaries is a party or by which any of them
is bound are valid and enforceable against the Company or any such
Subsidiary, are, to the knowledge of the Issuers, valid and enforceable
against the other party or parties thereto and are in full force and
effect.
(t) Each of the Company and the Subsidiaries has filed all
necessary federal, state and foreign income and franchise tax returns,
except where the failure to so file such returns would not,
individually or in the aggregate, have a Material Adverse Effect, and
have paid all taxes shown as due thereon; and other than tax
deficiencies which the Company or any Subsidiary is contesting in good
faith and for which adequate reserves have been provided, and there is
no tax deficiency that has been asserted against the Company or any
Subsidiary that would, individually or in the aggregate, have a
Material Adverse Effect.
(u) (i) Immediately after the consummation of the transactions
contemplated by the Agreement, the fair value and present fair saleable
value of the assets of the Company will exceed the sum of its stated
liabilities and identified contingent liabilities; and (ii) the Company
is not, nor will it be, after giving effect to the execution, delivery
and performance of the Agreement, and the consummation of the
transactions contemplated hereby, (a) left with unreasonably small
capital with which to carry on its business as it is proposed to be
conducted, (b) unable to pay its debts (contingent or otherwise) as
they mature or (c) insolvent.
(v) Except as disclosed in the Registration Statement or
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus), and except as would not individually or in the
aggregate have a Material Adverse Effect (A) each of the Company and
the Subsidiaries is in compliance with all applicable Environmental
Laws, (B) each of the Company and the Subsidiaries has made all filings
and provided all notices required under any applicable Environmental
Law, and has all permits, authorizations and approvals required under
any applicable Environmental Laws and is in compliance with their
requirements, (C) there is no civil, criminal or administrative action,
suit, demand, claim, hearing, notice of violation, investigation,
proceeding, notice or demand letter or request for
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information pending or, to the best knowledge of the Issuers,
threatened against the Company or any of the Subsidiaries under any
Environmental Law, (D) no Lien has been recorded under any
Environmental Law with respect to any assets, facility or property
owned, operated, leased or controlled by the Company or any of the
Subsidiaries, (E) neither the Company nor any of the Subsidiaries has
received notice that it has been identified as a potentially
responsible party under the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended ("CERCLA") or any
comparable state law, (F) no property or facility of the Company or any
of the Subsidiaries is (i) listed or proposed for listing on the
National Priorities List under CERCLA or (ii) listed in the
Comprehensive Environmental Response, Compensation, Liability
Information System List promulgated pursuant to CERCLA, or on any
comparable list maintained by any state or local governmental
authority.
For purposes of this Agreement, the following terms shall have
the following meanings: "Environmental Law" means any federal, state,
local or municipal statute, law, rule, regulation, ordinance, code,
policy or rule of common law and any judicial or administrative
interpretation thereof, including any judicial or administrative order,
consent decree or judgment binding on any of the Issuers or the
Subsidiaries, relating to pollution or protection of the environment or
health or safety or any chemical, material or substance, that is
subject to regulation thereunder. "Environmental Claims" means any and
all administrative, regulatory or judicial actions, suits, demands,
demand letters, claims, notices of responsibility, information
requests, liens, notices of noncompliance or violation, investigations
or proceedings relating in any way to any Environmental Law.
(w) None of the Company or the Subsidiaries is required to
register as an "investment company" or a company "controlled by" an
"investment company" within the meaning of the Investment Company Act
of 1940, as amended.
(x) Except as stated in the Prospectus (or, if the Prospectus
is not in existence, the most recent Preliminary Prospectus) none of
the Company or the Subsidiaries or any of such entities' directors,
officers or controlling persons, has taken, directly or indirectly, any
action designed, or that might reasonably be expected, to cause or
result, under the Act or otherwise, in, or that has
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constituted, stabilization or manipulation of the price of any security
of any Issuer to facilitate the sale or resale of the Securities (it
being understood that no representation or warranty is made as to any
actions by the Underwriters).
(y) Each of the Company and the Subsidiaries is in compliance
with all provisions of Section 517.075 of Florida Statutes, as amended,
relating to issuers doing business with Cuba.
3. Purchase, Sale and Delivery of the Securities. On the basis
of the representations, warranties, agreements and covenants herein contained
and subject to the terms and conditions herein set forth, the Company agrees to
issue and sell to the Underwriters, and each of the Underwriters severally
agrees to purchase from the Company, at [ ]% of their principal amount, the
respective aggregate principal amounts of the Notes set forth opposite their
respective names on Exhibit C hereto. The obligations of the Underwriters under
this Agreement are several and not joint.
One or more certificates in definitive form for the Notes that
the Underwriters have agreed to purchase hereunder, and in such denomination or
denominations and registered in such name or names, as each Underwriter requests
upon notice to the Company at least 48 hours prior to the Closing Date, shall be
delivered by or on behalf of the Company, against payment by or on behalf of the
Underwriters, of the purchase price therefor by wire transfer of immediately
available funds net of the overnight cost of such funds to the account of the
Company previously designated by it in writing. Such delivery of and payment for
the Securities shall be made at the offices of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, at 9:00 A.M., New York time, on [ ], 1996, or
at such date as the Underwriters and the Company may agree upon or as the
Underwriters may determine pursuant to Section 7(i) hereof, such time and date
of delivery against payment being herein referred to as the "Closing Date." The
Company will make such certificate or certificates for the Securities available
for checking and packaging by the Underwriters at the offices in New York, New
York of CIBC Wood Gundy Securities Corp. at least 24 hours prior to the Closing
Date.
The Issuers hereby confirm their engagement of Alex. ▇▇▇▇▇ &
Sons Incorporated and Alex. ▇▇▇▇▇ & Sons Incorporated hereby confirms its
engagement with the Issuers to render services as, a "qualified independent
underwriter" within the
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meaning of Rules 2720(b)(15)(A) through (b)(15)(G) of the Conduct
Rules of the NASD with respect to the offering and sale of the
Securities. Alex. ▇▇▇▇▇ & Sons Incorporated, solely in its
capacity as qualified independent underwriter and not otherwise,
is referred to herein as the "Independent Underwriter."
4. Offering by the Underwriters. After the Registration
Statement becomes effective, the Underwriters propose to offer for sale to the
public the Securities at the price and upon the terms set forth in the
Prospectus. The Underwriters will notify the Issuers when such offer and sale
has been completed.
5. Certain Covenants. The Issuers jointly and severally
covenant and agree with the Underwriters that:
(i) Each of the Issuers will use its best efforts to cause the
Registration Statement, if not effective at the time of execution of
this Agreement, and any amendments thereto, to become effective
promptly. If, at the time that the Registration Statement becomes
effective, any information shall have been omitted therefrom in
reliance upon Rule 430A of the rules and regulations of the Commission
under the Act, then immediately following the execution of this
Agreement, the Issuers will prepare, and thereafter the Issuers will
file or transmit for filing with the Commission in accordance with such
Rule 430A and Rule 424(b) of the rules and regulations of the
Commission under the Act, copies of an amended Prospectus relating to
such Registration Statement, or, if required by such Rule 430A, a
post-effective amendment to such Registration Statement (including an
amended Prospectus), containing all information so omitted. During any
time when a prospectus relating to the Securities is required to be
delivered under the Act, the Issuers will comply with all requirements
imposed by the Act, the Exchange Act and the Trust Indenture Act to the
extent necessary to permit the continuance of sales or dealings in the
Securities in accordance with the provisions hereof and of the
Prospectus. The Issuers will give each Underwriter notice of their
intention to file any amendment to the Registration Statement
(including any post-effective amendment) or any amendment or supplement
to the Prospectus (including any revised prospectus that the Issuers
propose for use by the Underwriters in connection with the offering of
the Securities that differs from any prospectus on file at the
Commission at the time the Registration Statement including such
prospectus becomes effective, whether or not such revised prospectus is
15
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required to be filed pursuant to Rule 424(b) of the rules and
regulations of the Commission under the Act), will furnish the
Underwriters with copies of any such amendment or supplement a
reasonable amount of time prior to such proposed filing or use, as the
case may be, and will not file any such amendment or supplement or use
any such prospectus to which the Underwriters or counsel for the
Underwriters shall reasonably object or which is not in compliance with
the Act. The Issuers will advise the Underwriters, promptly after they
receive notice thereof, of the time when the Registration Statement or
any amendment thereto has been filed or declared effective or the
Prospectus or any amendment or supplement thereto has been filed.
(ii) The Issuers will advise the Underwriters, promptly after
receiving notice or obtaining knowledge thereof, of (a) the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or any amendment thereto or any order preventing
or suspending the use of any Preliminary Prospectus or the Prospectus,
or any amendment or supplement thereto, (b) the suspension of the
qualification of the Securities for offering or sale in any
jurisdiction, (c) the institution, threatening or contemplation of any
proceeding for any such purpose or (d) any request made by the
Commission for amending the Registration Statement, for amending or
supplementing the Prospectus or for additional information. Each of the
Issuers will use its best efforts to prevent the issuance of any such
stop order and, if any such stop order is issued, to obtain the
withdrawal thereof as promptly as possible.
(iii) The Issuers will cooperate with the Underwriters in
arranging for the qualification of the Securities for offering and sale
under the securities or "Blue Sky" laws of such jurisdictions as the
Underwriters may designate and will continue such qualifications in
effect for as long as may be necessary to complete the distribution of
the Securities by the Underwriters; provided, however, that in
connection therewith none of the Issuers shall be required to qualify
as a foreign corporation or to execute a general consent to service of
process in any jurisdiction or to take any other action that would
subject it to general service of process or to taxation in respect of
doing business in any jurisdiction in which it is not otherwise
subject.
16
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(iv) If any event shall occur as a result of which it is
necessary, in the opinion of counsel for the Underwriters, to amend or
supplement the Prospectus in order to make such Prospectus not
misleading in the light of the circumstances existing at the time it is
delivered to a purchaser, or if for any other reason it shall be
necessary to amend or supplement the Prospectus in order to comply with
the Act and the Exchange Act, the Issuers shall (subject to Section
5(i)) forthwith amend or supplement such Prospectus so that, as so
amended or supplemented, such 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, in the light of the
circumstances existing at the time it is delivered to a purchaser, not
misleading and will comply in all material respects with the Act and
the Exchange Act, and the Issuers will furnish to the Underwriters,
without charge, a reasonable number of copies of such amendment or
supplement.
(v) The Issuers will, without charge, provide (a) to each
Underwriter and to counsel for the Underwriters a signed copy of each
registration statement originally filed with respect to the Securities
and each amendment thereto (in each case including exhibits thereto)
and (b) so long as a prospectus relating to the Securities is required
to be delivered under the Act, as many copies of each Preliminary
Prospectus or Prospectus or any amendment or supplement thereto as the
Underwriters may reasonably request.
(vi) The Company will make generally available to its security
holders as soon as practicable, but not later than 90 days after the
close of the period covered thereby, a consolidated earning statement
(in form complying with the provisions of Rule 158 of the rules and
regulations of the Commission under the Act ("Rule 158")) covering a
twelve-month period beginning not later than the first day of the
fiscal quarter of the Company next following the "effective date" (as
defined in Rule 158) of the Registration Statement, which consolidated
earning statement shall satisfy the provisions of Section 11(a) of the
Act.
(vii) During the period of five years hereafter, the Company
will furnish to the Underwriters (a) as soon as available, a copy of
each report or other communication (financial or otherwise) of the
Company mailed to the Trustee or holders of the Notes, stockholders or
filed with the Commission, and (b) from time to time such other
17
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information concerning the Company as you may reasonably
request.
(viii) If this Agreement shall terminate or shall be
terminated after execution pursuant to any provisions hereof (other
than solely by reason of a default by the Underwriters of their
obligations hereunder after all conditions hereunder have been
satisfied in accordance herewith) or if this Agreement shall be
terminated by the Underwriters because of any failure or refusal on the
part of the Issuers to comply with the terms or fulfill any of the
conditions of this Agreement, the Company agrees to reimburse you for
all reasonable out-of-pocket expenses (including fees and expenses of
counsel for the Underwriters) incurred by you in connection herewith.
(ix) The Company will apply the net proceeds from the sale of
the Securities as set forth under "Use of Proceeds" in the Prospectus.
(x) Prior to the Closing Date, the Company will furnish to the
Underwriters, as soon as they have been prepared by or are available to
the Company, a copy of any unaudited interim consolidated financial
statements of the Company and the Subsidiaries, for any period
subsequent to the period covered by the most recent financial
statements appearing in the Registration Statement and the Prospectus.
6. Expenses. Notwithstanding any termination of this Agreement
(pursuant to Section 10 or otherwise), the Issuers jointly and severally agree
to pay the following costs and expenses and all other costs and expenses
incident to the performance by the Issuers of their obligations hereunder: (i)
the preparation, printing or reproduction, and filing with the Commission of the
registration statement (including financial statements and exhibits thereto),
each Preliminary Prospectus, the Prospectus and each amendment or supplement to
any of them; (ii) the printing (or reproduction) and delivery (including
postage, air freight charges and charges for counting and packaging) of such
copies of the registration statement, each Preliminary Prospectus, the
Prospectus and all amendments or supplements to any of them as may be reasonably
requested for use in connection with the offering and sale of the Securities;
(iii) the preparation, printing, authentication, issuance and delivery of
certificates for the Securities, including any stamp taxes in connection with
the original issuance and sale of the Notes and trustees' fees; (iv) the
reproduction and delivery of this Agreement, the preliminary and supplemental
"Blue Sky"
18
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memoranda and all other agreements or documents reproduced and delivered in
connection with the offering of the Securities; (v) the registration or
qualification of the Securities for offer and sale under the securities or Blue
Sky laws of the several states (including filing fees and the fees, expenses and
disbursements of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel to the Underwriters, relating
to such registration and qualification); (vi) the filing fees in connection with
any filings required to be made with the National Association of Securities
Dealers, Inc. (the "NASD") (including the fees and disbursements of ▇▇▇▇▇▇
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel to the Underwriters, in respect thereof and in
connection with obtaining an opinion of the NASD concerning the fairness of the
terms and arrangements of the underwriting of the Securities); (vii) the
transportation and other expenses incurred by or on behalf of Company
representatives in connection with presentations to prospective purchasers of
the Securities; (viii) the fees and expenses of the Company's accountants and
the fees and expenses of counsel (including local and special counsel) for the
Issuers; (ix) fees and expenses of the Trustee including fees and expenses of
its counsel; and (x) any fees charged by investment rating agencies for the
rating of the Securities.
7. Conditions of the Underwriters' Obligations. The several
obligations of the Underwriters to purchase and pay for the Securities are
subject to the accuracy of the representations and warranties contained herein,
to the performance by the Issuers of their respective covenants and agreements
hereunder and to the following additional conditions unless waived in writing by
the Underwriters:
(i) If the registration statement originally filed with
respect to any of the Securities, or any amendment thereto filed prior
to the Closing Date has not been declared effective as of the time of
execution hereof, such registration statement or such amendment shall
have been declared effective not later than 12:00 noon, New York City
time, on the date (which shall not be later than the second business
day after the date of execution hereof) on which the amendment to such
registration statement originally filed with respect to such
Securities, or to the Registration Statement, as the case may be,
containing information regarding the initial public offering price of
such Securities has been filed with the Commission, or such later time
and date as shall have been consented to by the Underwriters; if
required, the Prospectus and any amendment or supplement thereto shall
have been filed in accordance with Rule 424(b) under the Act; no stop
order suspending the
19
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effectiveness of the Registration Statement or any amendment thereto or
the qualification of the Indenture under the Trust Indenture Act shall
have been issued and no proceedings for that purpose shall have been
instituted or to the knowledge of the Issuers or the Underwriters,
shall be threatened or contemplated by the Commission; and the Issuers
shall have complied with or satisfactorily responded to any request of
the Commission for additional information.
(ii) The Underwriters shall have received an opinion of
counsel to the Issuers in form and substance satisfactory to the
Underwriters and counsel to the Underwriters, dated the Closing Date,
of Powell, Goldstein, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, substantially in the form of
Exhibit D hereto. In rendering such opinion, Powell, Goldstein, ▇▇▇▇▇▇
& ▇▇▇▇▇▇ shall have received and may rely upon such certificates and
other documents and information, including one or more opinions of
local counsel reasonably acceptable to the Underwriters and ▇▇▇▇▇▇
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel to the Underwriters, as they may reasonably
request to pass upon such matters.
(iii) The Underwriters shall have received an opinion, dated
the Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel to the
Underwriters, with respect to the sufficiency of certain legal matters
relating to this Agreement and such other related matters as the
Underwriters may require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇ shall have received and may rely upon such certificates and
other documents and information as they may reasonably request to pass
upon such matters. In addition, in rendering their opinion, ▇▇▇▇▇▇
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ may state that its opinion is limited to matters of
New York, Delaware corporate and federal law.
(iv) The Underwriters shall have received from Deloitte &
Touche L.L.P., independent public accountants for the Issuers,
"comfort" letters dated the date hereof and the Closing Date, in form
and substance reasonably satisfactory to the Underwriters and ▇▇▇▇▇▇
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel to the Underwriters.
(v) The representations and warranties of the Issuers
contained in this Agreement shall be true and correct on and as of the
Closing Date; the Issuers shall have complied in all material respects
with all agreements and satisfied all conditions on their part to be
performed or satisfied hereunder at or prior to the Closing Date.
20
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(vi) There shall not have been any change in the capital stock
of the Issuers nor any material increase in the consolidated short-term
or long-term debt of the Issuers from that set forth or contemplated in
the Registration Statement or the Prospectus (or any amendment or
supplement thereto) and (b) the Issuers shall not have any liabilities
or obligations, contingent or otherwise (whether or not in the ordinary
course of business), that are material to the Issuers, taken as a
whole, other than those reflected in the Registration Statement or the
Prospectus (or any amendment or supplement thereto).
(vii) None of the issuance and sale of the Securities pursuant
to this Agreement or the Prospectus shall be enjoined (temporarily or
permanently) and no restraining order or other injunctive order shall
have been issued; and there shall not have been any legal action,
order, decree or other administrative proceeding instituted or
threatened against any of the Issuers or against you relating to the
issuance of the Securities or the Underwriters' activities in
connection therewith or any other transactions contemplated by this
Agreement or the Prospectus.
(viii) Subsequent to the effective date of this Agreement,
there shall not have occurred (i) any change, or any development
involving a prospective change, in or affecting the condition
(financial or other), business, properties, prospects or results of
operations of the Company and the Subsidiaries, taken as a whole, not
contemplated by the Prospectus that, in your opinion, would materially
adversely affect the market for the Securities, or (ii) any event or
development relating to or involving any of the Company or the
Subsidiaries or any of the officers or directors of the Company or the
Subsidiaries that makes any statement made in the Prospectus untrue or
that, in the opinion of the Issuers and their counsel or the
Underwriters and their counsel, requires the making of any addition to
or change in the Prospectus in order to state a material fact required
by the Act or any other law to be stated therein or necessary in order
to make the statements made therein not misleading.
(ix) The Underwriters shall have received certificates, dated
the Closing Date and signed by the chief executive officer and the
chief financial officer of the Company and each Subsidiary Guarantor
(or such other officers as are acceptable to the Underwriters), to the
effect that:
21
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a. All of the representations and warranties of the
Issuers set forth in this Agreement are true and
correct as if made on and as of the Closing Date and
the Issuers have complied in all material respects
with all agreements and satisfied all conditions on
their part to be performed or satisfied at or prior
to the Closing Date.
b. No stop order suspending the effectiveness of the
Registration Statement or any amendment thereto or
the qualification of the Indenture under the Trust
Indenture Act has been issued, and no proceedings for
those purposes have been instituted or, to the best
of the Issuer's knowledge, are threatened or
contemplated by the Commission.
c. None of the issuance and sale of the Securities
pursuant to this Agreement or the Prospectus have
been enjoined (temporarily or permanently) and no
restraining order or other injunctive order has
been issued and there has not been any legal
action, order, decree or other administrative
proceeding instituted or threatened against any of
the Issuers relating to the issuance of the
Securities or the Underwriters' activities in
connection therewith or in connection with any
other transactions contemplated by this Agreement
or the Prospectus.
d. Subsequent to the effective date of this
Agreement, there has not occurred (i) any change,
or any development involving a prospective change,
in or affecting the condition (financial or
other), business, properties, prospects or results
of operations of the Company and the Subsidiaries,
taken as a whole, not contemplated by the
Prospectus that would materially adversely affect
the market for the Securities, or (ii) any event
or development relating to or involving any of the
Company or the Subsidiaries or any of the
respective officers or directors of the Company or
the Subsidiaries that makes any statement made in
the Prospectus untrue or that requires the making
of any addition to or change in the Prospectus in
order to state a material fact required by the Act
or any other law to be stated therein or necessary
in order to make the statements made therein not
misleading.
22
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e. There has not been any change in the capital stock
of the Company or the Subsidiaries nor any
material increase in the consolidated short-term
or long-term debt of the Company from that set
forth or contemplated in the Registration
Statement or the Prospectus (or any amendment or
supplement thereto) and (b) the Company and the
Subsidiaries have no liabilities or obligations,
contingent or otherwise (whether or not in the
ordinary course of business), that are material to
the Company and the Subsidiaries, taken as a
whole, other than those reflected in the
Registration Statement or the Prospectus (or any
amendment or supplement thereto).
(x) The Issuers shall have furnished or caused to be furnished
to you such further certificates and documents as the Underwriters
shall have reasonably requested.
Any certificate or document signed by any officer of an Issuer
and delivered to the Underwriters or to counsel for the Underwriters, shall be
deemed a representation and warranty by such Issuer, to each Underwriter as to
the statements made therein.
All such opinions, certificates, letters, schedules, documents
or instruments delivered pursuant to this Agreement will comply with the
provisions hereof only if they are reasonably satisfactory in all material
respects to the Underwriters and counsel to the Underwriters. The Issuers shall
furnish to the Underwriters such conformed copies of such opinions,
certificates, letters, schedules, documents and instruments in such quantities
as the Underwriters shall reasonably request.
8. Indemnification and Contribution. (a) Each Issuer jointly
and severally agrees to indemnify and hold harmless each Underwriter, and each
person, if any, who controls either of the Underwriters within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act, against any losses,
claims, damages or liabilities to which such Underwriter or such controlling
person may become subject under the Act, the Exchange Act or otherwise, insofar
as any such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon:
(i) any untrue statement or alleged untrue statement
of any material fact contained in (A) the registration
23
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statement originally filed with respect to the Securities or any
amendment thereto or any Preliminary Prospectus or the Prospectus or
any amendment or supplement thereto or (B) any application or other
document, or any amendment or supplement thereto, executed by any
Issuer or based upon written information furnished by or on behalf of
any Issuer filed in any jurisdiction in order to qualify the Securities
under the securities or "Blue Sky" laws thereof or filed with the
Commission or any securities association or securities exchange (each
an "Application"); or
(ii) the omission or alleged omission to state, in the
registration statement or any amendment thereto, any Preliminary
Prospectus or the Prospectus or any amendment or supplement thereto, or
any Application, a material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and will
reimburse, as incurred, each Underwriter and each such controlling
person for any legal or other expenses reasonably incurred by such
Underwriter or such controlling person in connection with
investigating, defending against or appearing as a third-party witness
in connection with any such loss, claim, damage, liability or action;
provided, however, that none of the Issuers will be liable in any such
case to an Underwriter or any controlling person of such Underwriter to
the extent that any such loss, claim, damage or liability arises out of
or is based upon any untrue statement or alleged untrue statement or
omission or alleged omission made in any registration statement or any
amendment thereto, any Preliminary Prospectus or the Prospectus or any
amendment or supplement thereto, or any Application in reliance upon
and in conformity with written information furnished to the Issuers by
or on behalf of such Underwriter specifically for use therein; and
provided, further, that none of the Issuers will be liable to an
Underwriter or any person controlling such Underwriter with respect to
any such untrue statement or omission made in any Preliminary
Prospectus that is corrected in the Prospectus (or any amendment or
supplement thereto) if the person asserting any such loss, claim,
damage or liability purchased Securities from such Underwriter in
reliance upon the Preliminary Prospectus but was not sent or given a
copy of the Prospectus (as amended or supplemented) that was made
available by the Issuers to such Underwriter at or prior to the written
confirmation of the sale of the Securities to such person in any case
where such delivery of such Prospectus (as so amended or supplemented)
is required by
24
-24-
the Act, unless such failure to deliver such Prospectus (as amended or
supplemented) was a result of noncompliance by the Issuers with Section
5(v)(b) of this Agreement. This indemnity agreement will be in addition
to any liability that the Issuers may otherwise have to the indemnified
parties. None of the Issuers will, without the prior written consent of
the Underwriters, settle or compromise or consent to the entry of any
judgment in any pending or threatened claim, action, suit or proceeding
in respect of which indemnification by the Underwriters may be sought
hereunder (whether or not the Underwriters or any person who controls
either of the Underwriters within the meaning of Section 15 of the Act
or Section 20 of the Exchange Act is a party to such claim, action,
suit or proceeding), unless such settlement, compromise or consent
includes an unconditional release of the Underwriters and each such
controlling person from all liability arising out of such claim,
action, suit or proceeding.
(b) Each Issuer also jointly and severally agrees to indemnify
and hold harmless the Independent Underwriter and each person, if any, who
controls the Independent Underwriter within the meaning of Section 15 of the Act
or Section 20 of the Exchange Act, against any losses, claims, damages or
liabilities incurred as a result of the Independent Underwriter's participation
as a "qualified independent underwriter" within the meaning of Rules
2720(b)(15)(A) through (b)(15)(G) of the Conduct Rules of the NASD in connection
with the offering of the Securities, except for any losses, claims, damages,
liabilities and judgments resulting from the Independent Underwriter's or such
controlling person's willful misconduct or gross negligence.
(c) Each Underwriter will severally and not jointly indemnify
and hold harmless the Issuers, their respective directors, officers who signed
the Registration Statement and each person, if any, who controls any of the
Issuers within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act against any losses, claims, damages or liabilities to which any of
the Issuers or any such director, officer or controlling person may become
subject under the Act, the Exchange Act, or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of any material
fact contained in the Registration Statement or any amendment thereto, any
Preliminary Prospectus or the Prospectus or any amendment or supplement thereto
or any Application, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement was made in reliance upon and
in
25
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conformity with written information furnished to any of the Issuers by or on
behalf of such Underwriter specifically for use therein; and, subject to the
limitation set forth immediately preceding this clause, will reimburse, as
incurred, any legal or other expenses reasonably incurred by any of the Issuers
or any such director, officer or controlling person in connection with
investigating or defending against or appearing as a third-party witness in
connection with any such loss, claim, damage, liability or action in respect
thereof. This indemnity agreement will be in addition to any liability that the
Underwriters may otherwise have to the indemnified parties. The Underwriters
will not, without the prior written consent of the Issuers, settle or compromise
or consent to the entry of any judgment in any pending or threatened claim,
action, suit or proceeding in respect of which indemnification by any of the
Issuers may be sought hereunder (whether or not any of the Issuers or any person
who controls the Issuers within the meaning of Section 15 of the Act or Section
20 of the Exchange Act is a party to such claim, action, suit or proceeding),
unless such settlement, compromise or consent includes an unconditional release
of any such Issuer and each such controlling person from all liability arising
out of such claim, action, suit or proceeding or otherwise with the consent of
the Issuers.
(d) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 8, notify the indemnifying party of the commencement thereof;
but the omission so to notify the indemnifying party will not relieve it from
any liability that it may have to any indemnified party except to the extent
that such omission results in the forfeiture by the indemnifying party of
substantial rights and defenses. In case any such action is brought against any
indemnified party, and such indemnified party notifies the indemnifying party of
the commencement thereof, the indemnifying party will be entitled to participate
therein and, to the extent that it may wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party; provided, however, that if the named
parties in any such action (including any impleaded parties) include both the
indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be one or more legal defenses available
to it and/or other indemnified parties that are different from or additional to
those available to any such indemnifying party, then the indemnifying parties
shall not have the right to direct the defense of such action on behalf of such
indemnified party or
26
-26-
parties and such indemnified party or parties shall have the right to select
separate counsel to defend such action on behalf of such indemnified party or
parties. After notice from the indemnifying party to such indemnified party of
its election so to assume the defense thereof and approval by such indemnified
party of counsel appointed to defend such action, the indemnifying party will
not be liable to such indemnified party under this Section 8 for any legal or
other expenses, other than reasonable and documented out-of-pocket costs of
investigation, subsequently incurred by such indemnified party in connection
with the defense thereof, unless (i) the indemnified party shall have employed
separate counsel in accordance with the proviso to the immediately preceding
sentence (it being understood, however, that in connection with such action the
indemnifying party shall not be liable for the expenses of more than one
separate counsel (in addition to local counsel) in any one action or separate
but substantially similar actions in the same jurisdiction arising out of the
same general allegations or circumstances, designated by the Underwriters in the
case of paragraph (b) of this Section 8 or the Issuers in the case of paragraph
(c) of this Section 8, representing the indemnified parties under such paragraph
(a) or paragraph (c), as the case may be, who are parties to such action or
actions); (ii) the indemnifying party has authorized in writing the employment
of counsel for the indemnified party at the expense of the indemnifying parties;
or (iii) the indemnifying party shall have failed to assume the defense or
retain counsel reasonably satisfactory to the indemnified party. If indemnity is
sought pursuant to paragraph (b) of this Section 8, then in addition to such
counsel for the indemnified parties, the indemnifying party shall be liable for
the reasonable fees and expenses of not more than one separate counsel (in
addition to any necessary local counsel) for the Independent Underwriter in its
capacity as a "qualified independent underwriter" and all persons, if any, who
control the Independent Underwriter within the meaning of Section 15 of the Act
or Section 20 of the Exchange Act if, in the reasonable judgment of the
Independent Underwriter, there may exist a conflict of interest between the
Independent Underwriter and the other indemnified parties. In the case of any
such separate counsel for the Independent Underwriter and such control persons
of the Independent Underwriter, such counsel, which shall be reasonably
acceptable to the Issuers, shall be designated in writing by the Independent
Underwriter. After such notice from the indemnifying parties to such indemnified
party (so long as the indemnified party shall have informed the indemnifying
parties of such action in accordance with this Section 8 on a timely basis prior
to the indemnified party seeking indemnification hereunder), the indemnifying
parties will not be
27
-27-
liable under this Section 8 for the costs and expenses of any settlement of such
action effected by such indemnified party without the consent of the
indemnifying party, unless such indemnified party waived its rights under this
Section 8, in which case the indemnified party may effect such a settlement
without such consent.
(e) In circumstances in which the indemnity agreement provided
for in the preceding paragraphs of this Section 8 is unavailable or insufficient
to hold harmless an indemnified party in respect of any losses, claims, damages
or liabilities (or actions in respect thereof), each indemnifying party, in
order to provide for just and equitable contribution, shall contribute to the
amount paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect (i) the relative benefits received by
the indemnifying party or parties on the one hand and the indemnified party on
the other from the offering of the Securities or (ii) if the allocation provided
by the foregoing clause (i) is not permitted by applicable law, not only such
relative benefits but also the relative fault of the indemnifying party or
parties on the one hand and the indemnified party on the other in connection
with the statements or omissions or alleged statements or omissions that
resulted in such losses, claims, damages or liabilities (or actions in respect
thereof). The relative benefits received by the Issuers on the one hand and the
Underwriters on the other shall be deemed to be in the same proportion as the
total proceeds from the offering of the Securities (before deducting expenses)
received by the Issuers bear to the total underwriting discounts and commissions
received by the Underwriters. The relative fault of the parties shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Issuers on the one hand,
or the Underwriters on the other, the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission, and any other equitable considerations appropriate in the
circumstances. The Issuers and the Underwriters agree that the Independent
Underwriter will not receive any additional benefits hereunder for serving as
the Independent Underwriter in connection with the offering and sale of the
Securities. The Issuers and the Underwriters agree that it would not be
equitable if the amount of such contribution were determined by pro rata or per
capita allocation (even if the Issuers on the one hand and the Underwriters on
the other hand were treated as one entity for such purpose) or by any other
method of allocation that does not
28
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take into account the equitable considerations referred to in the first sentence
of this paragraph (e). Notwithstanding any other provision of this paragraph
(e), the Underwriters shall not be obligated to make contributions hereunder
that in the aggregate exceed the total underwriting discounts and commissions
received by the Underwriters under this Agreement, less the aggregate amount of
any damages that the Underwriters have otherwise been required to pay by reason
of the untrue or alleged untrue statements, and no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this paragraph (e), each person, if any, who
controls any of the Underwriters within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act shall have the same rights to contribution as the
Underwriters, and each director of any of the Issuers, each officer of any of
the Issuers who signed the Registration Statement and each person, if any, who
controls any of the Issuers within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, shall have the same rights to contribution as
the Issuers.
9. Survival Clause. The respective representations,
warranties, agreements, covenants, indemnities and other statements of the
Issuers, their respective officers and the Underwriters set forth in this
Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement shall remain in full force and effect, regardless of (i) any
investigation made by or on behalf of the Issuers, any of their respective
officers or directors, the Underwriters or any controlling person referred to in
Section 8 hereof and (ii) delivery of and payment for the Securities, and shall
be binding upon and shall inure to the benefit of, any successors, assigns,
heirs, personal representatives of the Issuers, the Underwriters and indemnified
parties referred to in Section 8 hereof. The respective agreements, covenants,
indemnities and other statements set forth in Sections 6 and 8 hereof shall
remain in full force and effect, regardless of any termination or cancellation
of this Agreement.
10. Termination. (a) This Agreement may be
terminated in the sole discretion of the Underwriters by notice
to the Issuers given in the event that the Issuers shall have
failed, refused or been unable to satisfy all conditions on its
respective part to be performed or satisfied hereunder on or
prior to the Closing Date or, if at or prior to the Closing Date:
(i) any of the Company or the Subsidiaries shall have
sustained any loss or interference with respect to their
29
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respective businesses or properties from fire, flood, hurricane,
earthquake, accident or other calamity, whether or not covered by
insurance, or from any labor dispute or any legal or governmental
proceeding, which loss or interference has had or has a material
adverse effect on the business, condition (financial or other),
properties, prospects or results of operations of the Company and the
Subsidiaries, taken as a whole, or there shall have been any material
adverse change, or any development involving a prospective material
adverse change (including without limitation a change in management or
control of the Issuers), in the business, condition (financial or
other), properties, prospects or results of operations of the Company
and the Subsidiaries, taken as a whole, except as described in or
contemplated by the Prospectus (exclusive of any amendment or
supplement thereto);
(ii) trading in securities generally on the New York Stock
Exchange, the American Stock Exchange or the Nasdaq National Market
shall have been suspended or minimum or maximum prices shall have been
established on any such exchange;
(iii) a banking moratorium shall have been declared by
New York or United States authorities;
(iv) there shall have been (A) an outbreak or escalation of
hostilities between the United States and any foreign power, (B) an
outbreak or escalation of any other insurrection or armed conflict
involving the United States or (C) any material change in the financial
markets of the United States that, in the sole judgment of the
Underwriters, makes it impracticable or inadvisable to proceed with the
public offering or the delivery of the Securities as contemplated by
the Registration Statement, as amended as of the date hereof; or
(v) any securities of the Company shall have been downgraded
or placed on any "watch list" for possible downgrading by any
nationally recognized statistical rating organization.
(b) Termination of this Agreement pursuant to this Section 10
shall be without liability of any party to any other party except as provided in
Section 9 hereof.
11. Notices. All communications hereunder shall be in writing
and, if sent to the Underwriters, shall be mailed,
30
-30-
delivered or telecopied and confirmed in writing to the Underwriters c/o CIBC
Wood Gundy Securities Corp., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, and with a copy to ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq. If sent to
any of the Issuers, shall be mailed, delivered or telecopied and confirmed in
writing, to c/o Outdoor Systems, Inc., ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Chief Executive Officer, and with a copy to Powell,
Goldstein, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
12. Successors. This Agreement shall inure to the benefit of
and be binding upon the Underwriters and each of the Issuers and their
respective successors and legal representatives, and nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any other
person any legal or equitable right, remedy or claim under or in respect of this
Agreement, or any provisions herein contained; this Agreement and all conditions
and provisions hereof being intended to be and being for the sole and exclusive
benefit of such persons and for the benefit of no other person except that (i)
the indemnities of the Issuers contained in Section 8 of this Agreement shall
also be for the benefit of any person or persons who control the Underwriters
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act
and (ii) the indemnities of the Underwriters contained in Section 8 of this
Agreement shall also be for the benefit of the directors of the Issuers, their
respective officers who have signed the Registration Statement and any person or
persons who controls any Issuer within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act. No purchaser of Securities from the Underwriters
will be deemed a successor because of such purchase.
13. Joint and Several Obligations. All of the obligations of
the Issuers hereunder shall be joint and several obligations of each of them.
14. Information Supplied by the Underwriters. The statements
set forth in the last paragraph on the front cover page of the Prospectus and in
the [ ] paragraphs under the heading "Underwriting" in the Prospectus (to the
extent such statements relate to the Underwriters) constitute the only
information furnished by the Underwriters to the Issuers for purposes of
Sections 2(b) and 8 hereof.
15. Entire Agreement. This Agreement constitutes the entire
agreement among the parties hereto and supersedes all
31
-31-
prior agreements, understandings and arrangements, oral or written, among the
parties hereto with respect to the subject matter hereof.
16. Default of Underwriters. If any Underwriter defaults in
its obligations to purchase Securities hereunder and arrangements satisfactory
to the non-defaulting Underwriter and the Company for the purchase of such
Securities by other persons are not made within 36 hours after such default,
this Agreement will terminate without liability on the part of the
non-defaulting Underwriter or the Company, except as provided in Sections 6 and
8. As used in this Agreement, the term "Underwriter" includes any person
substituted for an Underwriter under this Section . Nothing herein will relieve
a defaulting Underwriter from liability for its default.
17. APPLICABLE LAW. THE VALIDITY AND INTERPRETATION OF THIS
AGREEMENT, AND THE TERMS AND CONDITIONS SET FORTH HEREIN SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
GIVING EFFECT TO ANY PROVISIONS RELATING TO CONFLICTS OF LAW.
18. Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
32
If the foregoing correctly sets forth our understanding,
please indicate your acceptance thereof in the space provided below for that
purpose, whereupon this letter shall constitute a binding agreement among the
Issuers and the Underwriters.
Very truly yours,
OUTDOOR SYSTEMS, INC.
By:_____________________________________
Name:
Title:
OUTDOOR SYSTEMS PAINTING, INC.
By:_____________________________________
Name:
Title:
OS ADVERTISING OF TEXAS PAINTING,
INC.
By:_____________________________________
Name:
Title:
OS BASELINE, INC.
By:_____________________________________
Name:
Title:
DECADE COMMUNICATIONS GROUP, INC.
By:_____________________________________
Name:
Title:
BENCH ADVERTISING COMPANY OF
COLORADO, INC.
By:_____________________________________
Name:
Title:
33
NEW YORK SUBWAYS ADVERTISING CO.,
INC.
By:_______________________________
Name:
Title:
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
CIBC WOOD GUNDY SECURITIES CORP.
By: _________________________________
Name:
Title:
ALEX. ▇▇▇▇▇ & SONS INCORPORATED
By: _________________________________
Name:
Title:
34
Exhibit A
Subsidiary Guarantors
Outdoor Systems Painting, Inc.
OS Advertising of Texas Painting, Inc.
OS Baseline, Inc.
Decade Communications Group, Inc.
Bench Advertising Company of Colorado, Inc.
New York Subways Advertising Co., Inc.
35
Exhibit B
Subsidiaries
Outdoor Systems Painting, Inc.
OS Advertising of Texas Painting, Inc.
OS Baseline, Inc.
Decade Communications Group, Inc.
Bench Advertising Company of Colorado, Inc.
New York Subways Advertising Co., Inc.
Mediacom Inc.
36
Exhibit C
Principal Amount
Underwriter of Notes
CIBC Wood Gundy Securities Corp. $
Alex. ▇▇▇▇▇ & Sons Incorporated -------------------
Total $150,000,000
===================
37
Exhibit D
Form of Opinion of Powell, Goldstein, ▇▇▇▇▇▇ & ▇▇▇▇▇▇
Opinion, dated the Closing Date and addressed to the
Underwriters, of Powell, Goldstein, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, counsel to
the Issuers, to the effect that:
(i) Each of the Company and the Subsidiaries has been duly
incorporated and is validly existing in good standing, as a corporation
under the laws of its jurisdiction of incorporation, with the requisite
corporate power and authority to own its properties and conduct its
business as described in the Prospectus and is duly qualified to do
business as a foreign corporation in good standing in all other
jurisdictions where the ownership or leasing of its properties or the
conduct of its business requires such qualification, except where the
failure to be so qualified would not, individually or in the aggregate,
have a Material Adverse Effect; the Company had as of the date
specified herein the authorized, issued and outstanding capitalization
set forth in the Prospectus; the outstanding shares of capital stock of
the Company and the Subsidiaries have been duly authorized and validly
issued, are fully paid and nonassessable and were not issued in
violation of any preemptive or similar rights and are owned free and
clear of all liens, encumbrances, equities and restrictions on
transferability (other than those imposed by the Act and the state
securities or "Blue Sky" laws); except as set forth in the Registration
Statement and Prospectus, all of the outstanding shares of capital
stock of the Subsidiaries are owned directly or indirectly by the
Company free and clear of all liens, encumbrances, equities and
restrictions on transferability (other than those imposed by the Act
and the State securities or "Blue Sky" laws); except as set forth in
the Registration Statement and Prospectus, no options, warrants or
other rights to purchase from the Company or any Subsidiary or,
agreements or other obligations of the Company or any Subsidiary to
issue or other rights to cause the Company or any Subsidiary to convert
any obligation into, or exchange any securities for, shares of capital
stock or ownership interests in the Company or any Subsidiary are
outstanding; and, no holder of securities of the Company or any
Subsidiary is entitled to have such securities registered under the
Registration Statement.
(ii) The Securities have been duly and validly authorized by
each of the Issuers and when executed by the Issuers and authenticated
by the Trustee in accordance with
38
-2-
the provisions of the Indenture, and delivered to and paid for by the
Underwriters in accordance with the terms of the Underwriting
Agreement, will have been duly executed, issued and delivered and will
constitute valid and legally binding obligations of the Issuers,
entitled to the benefits of the Indenture and enforceable against the
Issuers in accordance with their terms, except that the enforcement
thereof may be subject to (a) bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally, and (b)
general principles of equity and the discretion of the court before
which any proceeding therefor may be brought (regardless of whether
enforceability is considered in a proceeding at law or in equity).
(iii) Each of the Issuers has the requisite corporate power
and corporate authority to execute, deliver and perform its obligations
under the Indenture and the Securities; the Indenture has been duly and
validly authorized by the Issuers and qualified under the Trust
Indenture Act and, when executed and delivered by the Issuers (assuming
the due authorization, execution and delivery by the Trustee), will
constitute a valid and legally binding agreement of the Issuers,
enforceable against the Issuers in accordance with its terms, except
that the enforcement thereof may be subject to (a) bank ruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors' rights
generally and (b) general principles of equity and the discretion of
the court before which any proceeding therefor may be brought
(regardless of whether enforceability is considered in a proceeding at
law or in equity).
(iv) Each of the Issuers has the requisite corporate power and
authority to execute, deliver and perform its obligations under the
Underwriting Agreement. The Underwriting Agreement has been duly and
validly authorized by the Issuers and, when executed and delivered by
the Issuers, will constitute a valid and legally binding agreement of
the Issuers, enforceable against the Issuers in accordance with its
terms except (i) that the enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect relating to or affecting creditors'
rights generally or general principles of equity and the discretion of
the court before which any proceeding therefor may be brought
(regardless of whether such enforcement is
39
-3-
considered in a proceeding at law or in equity) and (ii) as any rights
to indemnity or contribution hereunder may be limited by federal and
state securities laws and public policy considerations.
(v) No consent, approval, authorization or order of any
governmental agency or body is required for the performance of any of
the Underwriting Agreement, the Securities or the Indenture or any of
the agreements contemplated thereby or delivered in connection
therewith, or the consummation of the transactions contemplated thereby
or by the Prospectus, except such as may be required and have been
obtained as described in the Prospectus or under the Act, the Trust
Indenture Act or state securities or "Blue Sky" laws in connection with
the purchase and distribution of the Securities.
(vi) None of the Company or the Subsidiaries is (a) in
violation of its certificate of incorporation or bylaws, (b) in
violation of any statute, judgment, decree, order, rule or regulation
applicable to any of its properties or assets, which violation would,
individually or in the aggregate, have a Material Adverse Effect or (c)
in breach of or in default under any of the Underwriting Agreement, the
Securities or the Indenture or any other contract, indenture, mortgage,
deed of trust, loan agreement, note, lease, license, franchise
agreement, permit, certificate or agreement or instrument to which it
is a party or to which it is subject, which breach or default would
individually or in the aggregate, have a Material Adverse Effect.
(vii) The execution, delivery and performance by the Issuers
of the Underwriting Agreement, the Securities or the Indenture and the
consummation by the Issuers of the transactions contemplated thereby
and the fulfillment of the terms thereof, will not violate, conflict
with or constitute or result in a breach of or a default under (or an
event that with notice or lapse of time, or both, would constitute a
breach of or a default under) any of the terms or provisions of (a) the
certificate of incorporation or bylaws of the Company or the
Subsidiaries (b) any contract, indenture, mortgage, deed of trust, loan
agreement, note, lease, license, franchise agreement or agreement or
instrument to which any of the Company or the Subsidiaries is a party
or to which any of their respective properties or assets are subject or
(c) (assuming compliance with all applicable state securities and "Blue
Sky" laws) any statute, judgment, decree, order, rule or regulation of
any
40
-4-
court or governmental agency or body applicable to any of the Company
or the Subsidiaries or any of their respective properties or assets,
which violation, conflict, breach or default would, individually or in
the aggregate, have any Material Adverse Effect.
(viii) Except as described in the Prospectus and Registration
Statement, there are no legal or governmental proceedings pending or
threatened to which any of the Company or the Subsidiaries is a party
or to which the respective properties or assets of the Company or the
Subsidiaries are subject that are required to be described in the
Registration Statement or the Prospectus and are not described therein,
or that seek to restrain, enjoin, prevent the consummation of or
otherwise challenge the issuance or sale of the Securities to the
Underwriters or the consummation of the other transactions described in
the Prospectus; and no legal or governmental proceedings and no
contract, agreement or other document is required to be described in
the Registration Statement or the Prospectus or to be filed as an
exhibit to the Registration Statement that is not described therein or
filed as required.
(ix) Each document (other than the financial statements and
schedules included therein) filed pursuant to the Act or incorporated
or deemed to be incorporated by reference in the Registration Statement
and Prospectus and filed pursuant to the Exchange Act complied when so
filed as to form in all material respects with the Act and the Exchange
Act.
(x) The statements set forth under the captions "Risk
Factors--Regulation of Outdoor Advertising," "Business--Government
Regulation," "Description of Capital Stock," "Description of
Indebtedness and Other Commitments," "Description of Notes" and
"Underwriting" in the Prospectus and the Registration Statement,
insofar as such statements purport to summarize legal documents or
statements of law or legal conclusions are accurate summaries in all
material respects and the Indenture and the Securities conform in all
material respects to the description thereof in the Prospectus and the
Registration Statement.
(xi) None of the Company or the Subsidiaries is required to
register as an "investment company" or a company "controlled by" an
"investment company" as such terms are defined in the Investment
Company Act of 1940, as amended.
41
-5-
(xii) The sale, issuance, execution or delivery of the
Securities will not violate Regulation G, T, U or X of the Board of
Governors of the Federal Reserve System.
(xiii) (a) The Registration Statement, as of its effective
date, and the Prospectus, as of its date, comply as to form in all
material respects with the requirements of the Act, except that in each
case we express no opinion as to the financial statements, schedules
and other financial and statistical data included therein, or the
Statement of Eligibility and Qualification of the Trustee on Form T-1,
and (b) the Indenture complies as to form in all material respects with
the requirements of the Trust Indenture Act.
(xiv) The Registration Statement and all post-effective
amendments, if any, have been declared effective under the Act; any
required filing of the Prospectus pursuant to Rule 424(b) has been made
in a manner and within the time period required by Rule 424(b); and, to
the best of our knowledge, no stop order suspending the effectiveness
of the Registration Statement or any post-effective amendment thereto
has been issued, and no proceedings for that purpose have been
instituted or threatened, by the Commission.
In addition, we have participated in conferences with officers
and other representatives of the Issuers, representatives of the independent
public accountants and representatives of the Underwriters at which the contents
of the Registration Statement and the Prospectus were discussed and, although we
are not passing upon and do not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement or Prospectus or the documents incorporated by reference therein
(except as indicated in clause (x) above) and have not made any independent
check or verification thereof, on the basis of the foregoing (relying as to
materiality to a large extent upon the statements of officers and other
representatives of the Issuers) no facts have come to our attention that have
caused us to believe that either the Registration Statement at the time it
became effective, or any post-effective amendment thereto as of its date and as
of the Closing Date, contained or contains an untrue statement of a material
fact or omitted or omits to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, or that the
Prospectus as of its respective date and as of the Closing Date, or any
amendment or supplement thereto as of its respective date and as of the Closing
Date, contained or contains an untrue statement of
42
-6-
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 (it being understood that we express no opinion
on the financial statements or other financial and statistical data or
information included or incorporated by reference in the Registration Statement
or Prospectus or the Statement of Eligibility and Qualification of the Trustee
on Form T-1).