Exhibit 1(a)
▇▇▇▇▇▇ OIL CORPORATION
UNDERWRITING AGREEMENT
New York, New York
---------- --, ----
▇▇▇▇▇▇ Oil Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇▇
▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Ladies and Gentlemen:
We (the "Manager") are acting on behalf of the underwriters (including
ourselves) identified on the table below (such underwriters being herein called
the "Underwriters"), and we understand that ▇▇▇▇▇▇ Oil Corporation, a Delaware
corporation (the "Company"), proposes to issue and sell [Currency and Principal
Amount] aggregate principal amount of [Full Title of Debt Securities] (the "Debt
Securities"). The Debt Securities are also referred to herein as the "Offered
Securities." The Debt Securities will be issued pursuant to the provisions of an
Indenture dated as of _______ __, ____[, as amended by a Supplemental Indenture
(a "Supplemental Indenture") dated as of _______ __, ____ (as amended,] the
"Indenture") between the Company and , ____________________________________
as trustee (the "Trustee").
Subject to the terms and conditions set forth or incorporated by
reference herein, the Company hereby agrees to issue and sell to each
Underwriter and, upon the basis of the representations, warranties and
agreements of the Company herein contained and subject to all the terms and
conditions set forth herein, each of the Underwriters agrees to purchase from
the Company, severally and not jointly, the principal amount of Debt Securities
set forth below opposite its name at a purchase price of ____% of the principal
amount of such Debt Securities, plus accrued interest, if any, from _______ __,
____, to the Closing Date (as hereinafter defined):
Name Principal Amount of Debt Securities
---- -----------------------------------
Total . . . . . . . .$
============
The Underwriters will pay for the Offered Securities upon delivery
thereof at [office] at __:__ a.m. (New York City time) on _______ __, ____, or
at such other time as shall be designated by the Manager. The time and date of
such payment and delivery are hereinafter referred to as the Closing Date.
The Offered Securities shall have the terms set forth in the Basic
Prospectus dated _______ __, 1999, and the Prospectus Supplement dated _______
__, ____, including the following:
Terms of Debt Securities
Maturity Date:
Interest Rate:
Redemption Provisions:
Interest Payment Dates:
_______ __and _______ commencing _______ __, ____
(Interest accrues from _______ __, ____)
Form and Denomination:
[Other Terms:]
All provisions contained in the document entitled ▇▇▇▇▇▇ Oil Corporation
Underwriting Agreement Standard Provisions (Debt Securities) dated _______ __,
____, a copy of which is attached hereto, are herein incorporated by reference
in their entirety and shall be deemed to be a part of this Agreement to the same
extent as if such provisions had been set forth in full herein, except that (a)
if any
2
term defined in such document is otherwise defined herein, the definition set
forth herein shall control, (b) all references in such document to a type of
security that is not an Offered Security shall not be deemed to be a part of
this Agreement, and (c) all references in such document to a type of agreement
that has not been entered into in connection with the transactions contemplated
hereby shall not be deemed to be a part of this Agreement.
Please confirm that the foregoing correctly sets forth the agreement
between the Company and the several Underwriters by having an authorized officer
sign a copy of this Agreement in the space set forth below.
Very truly yours,
[Name of Lead Manager],
Acting severally on behalf of itself
and the several Underwriters named herein:
By:
--------------------------------------
Name:
Title:
Accepted:
▇▇▇▇▇▇ OIL CORPORATION
By:
-----------------------------------
Name:
Title:
3
▇▇▇▇▇▇ OIL CORPORATION
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
(DEBT SECURITIES)
------- --, ----
From time to time, ▇▇▇▇▇▇ Oil Corporation, a Delaware corporation (the
"Company"), may enter into one or more underwriting agreements that provide for
the sale of designated securities to the several underwriters named therein. The
standard provisions set forth herein may be incorporated by reference in any
such underwriting agreement (an "Underwriting Agreement"). The Underwriting
Agreement, including the provisions incorporated therein by reference, is herein
referred to as this Agreement. Terms defined in the Underwriting Agreement are
used herein as therein defined.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3, including a prospectus,
relating to the Debt Securities and has filed with, or transmitted for filing
to, or shall promptly hereafter file with or transmit for filing to, the
Commission a prospectus supplement (the "Prospectus Supplement") specifically
relating to the Offered Securities pursuant to Rule 424 under the Securities Act
of 1933, as amended (the "Securities Act"). The term "Registration Statement"
means the registration statement, including the exhibits thereto, as amended to
the date of this Agreement and, in the event any post-effective amendment
thereto or any registration statement (and any amendments thereto) filed
pursuant to Rule 462(b) under the Securities Act relating to the offering (a
"Rule 462(b) Registration Statement") becomes effective prior to the Closing
Date, also means such registration statement as so amended or such Rule 462(b)
Registration Statement, as the case may be. The term "Basic Prospectus" means
the prospectus in the form first filed with the Commission. The term
"Prospectus" means the Basic Prospectus together with the Prospectus Supplement.
The term "preliminary prospectus" means a preliminary prospectus supplement
specifically relating to the Offered Securities, together with the Basic
Prospectus. As used herein, the terms "Registration Statement", "Basic
Prospectus", "Prospectus" and "preliminary prospectus" shall include in each
case the documents, if any, incorporated by reference therein. The terms
"supplement" and "amendment" or "amend" as used herein shall include all
documents deemed to be incorporated by reference in the Prospectus that are
filed subsequent to the date of the Basic Prospectus by the Company with the
Commission pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act").
1. Representations and Warranties. The Company represents and
warrants to each of the Underwriters that:
(a) (i) The Registration Statement has become effective; no stop
order suspending the effectiveness of the Registration Statement is in
effect, and no proceedings for such purpose are pending before or
threatened by the Commission; (ii) the Company and the transactions
contemplated by this Agreement meet the requirements for using Form S- 3
under the Securities Act; and (iii) the Company will next file with the
Commission either (1) the Prospectus Supplement relating to the Offered
Securities in accordance with Rules 430A and 424(b) or (2) the
Prospectus in accordance with Rules 415 and 424(b). In the case of
clause (1), the Company has included in such Registration Statement all
information (other than Rule 430A Information (as defined below))
required by the Securities Act and the rules thereunder to be included
in such Registration Statement and the Prospectus. As filed, such
Prospectus shall contain all Rule 430A Information, together with all
other such required information, and, except to the extent the Manager
shall agree in writing to a modification, shall be in all substantive
respects in the form furnished to the Manager prior to the time this
Agreement is executed (the "Execution Time"), or, to the extent not
completed at the Execution Time, shall contain only such specific
additional information and other changes (beyond that contained in the
Basic Prospectus and any preliminary prospectus) as the Company has
advised the Manager, prior to the Execution Time, will be included or
made therein. The Registration Statement, at the Execution Time, meets
the requirements set forth in Rule 415(a)(1)(x). "Rule 430A Information"
shall mean information with respect to the Offered Securities and the
offering thereof permitted to be omitted from the Registration Statement
pursuant to Rule 430A.
(b) (i) Each document, if any, filed or to be filed pursuant to
the Exchange Act and incorporated by reference in the Prospectus
complied or will comply when so filed in all material respects with the
Exchange Act and the applicable rules and regulations of the Commission
thereunder; (ii) each part of the Registration Statement, when such part
became effective, did not contain, and each such part, as amended or
supplemented, if applicable, will not contain any untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading;
(iii) the Registration Statement and the Prospectus comply, and, as
amended or supplemented, if applicable, will comply in all material
respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder; and (iv) the Prospectus does
not contain and, as amended or supplemented, if applicable, will not
contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading, except
that the representations and warranties set forth in this Section 1(b)
do not apply (A) to statements or omissions in the Registration
Statement or the Prospectus based upon information relating to any
Underwriter furnished to the Company in writing by such Underwriter
through the Manager expressly for use therein or (B) to that part of the
Registration Statement that constitutes the Statement of Eligibility and
Qualification
2
(Form T-1) under the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), of the Trustee.
(c) The Company has been duly incorporated, is validly existing
as a corporation in good standing under the laws of the State of
Delaware, has the corporate power and authority to own its property and
to conduct its business as described in the Prospectus and is duly
qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent
that the failure to be so qualified or be in good standing would not
have a material adverse effect on the Company and its subsidiaries,
taken as a whole.
(d) Each subsidiary of the Company has been duly incorporated, is
validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and authority
to own its property and to conduct its business as described in the
Prospectus and is duly qualified to transact business and is in good
standing in each jurisdiction in which the conduct of its business or
its ownership or leasing of property requires such qualification, except
to the extent that the failure to be so qualified or be in good standing
would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(e) This Agreement has been duly authorized, executed and
delivered by the Company.
(f) On or prior to the Closing Date, the Indenture will have been
duly qualified under the Trust Indenture Act. The Indenture conforms to
the description thereof in the Registration Statement and the
Prospectus, has been duly authorized, and, when executed and delivered
by the Company, will be a valid and binding agreement of the Company,
enforceable in accordance with its terms except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency or
similar laws affecting creditors' rights generally and (ii) rights of
acceleration and the availability of equitable remedies may be limited
by equitable principles of general applicability.
(g) The Offered Securities have been duly authorized and, when
executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Underwriters in
accordance with the terms of the Underwriting Agreement, will be
entitled to the benefits of the Indenture, will conform to the
description thereof in the Prospectus, and will be valid and binding
obligations of the Company, in each case enforceable in accordance with
their respective terms except as (i) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting creditors'
rights generally and (ii) rights of acceleration, if any, and the
availability of equitable remedies may be limited by equitable
principles of general applicability.
(h) There are no legal or governmental proceedings pending or
threatened to which the Company or any of its subsidiaries is a party or
to which any of the properties of the Company or any of its subsidiaries
is
3
subject that are required to be described in the Registration Statement
or the Prospectus and are not so described or any statutes, regulations,
contracts or other documents that are required to be described in the
Registration Statement or the Prospectus or to be filed as exhibits to
the Registration Statement that are not described or filed as required.
(i) The Company is not an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in
the Investment Company Act of 1940, as amended.
(j) The accountants who certified the financial statements
included or incorporated by reference in the Prospectus are independent
public accountants as required by the Securities Act and the regulations
thereunder.
(k) The consolidated financial statements of the Company and its
subsidiaries included or incorporated by reference in the Prospectus
present fairly the financial position of the Company and its
subsidiaries as at the dates indicated and the results of their
operations for the periods specified; except as stated therein, said
financial statements have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis throughout
the period or periods involved.
(l) Since the respective dates as of which information is given
in the Registration Statement and the Prospectus, except as otherwise
stated therein or contemplated thereby, there has been no material
adverse change, or any development involving a prospective material
adverse change, in the condition, financial or otherwise, of the Company
and its subsidiaries, taken as a whole, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries, taken
as a whole, whether or not arising in the ordinary course of business.
(m) The Company is not in violation of its charter or in default
in the performance or observance of any obligation, agreement, covenant
or condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which it is a party or by
which it or any of its properties may be bound, which default would have
a material adverse effect on the Company and its subsidiaries, taken as
a whole; and the execution and delivery of this Agreement and the
Indenture and the consummation of the transactions contemplated herein
and therein will not conflict with or constitute a breach of, or default
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company pursuant to any
contract, indenture, mortgage, loan agreement, note, lease or other
instrument to which the Company is a party or by which it may be bound
or to which any of the property or assets of the Company is subject, nor
will such action result in any violation of the provisions of the
charter or by-laws of the Company or, to the best of its knowledge, any
law, administrative regulation or administrative or court order or
decree; and no consent, approval, authorization, order or decree of any
court or governmental agency or body is required for the consummation by
the Company of the transactions contemplated by this Agreement, except
such as may be required under the
4
Securities Act, the Trust Indenture Act or state securities or Blue Sky
laws.
(n) The Company owns or possesses or has obtained all material
governmental licenses, permits, consents, orders, approvals and other
authorizations necessary to lease or own, as the case may be, and to
operate its properties and to carry on its business as presently
conducted.
(o) In the case of Securities convertible into Common Stock of
the Company, $1.00 par value (the "Common Stock"), the shares of Common
Stock issuable upon the conversion of the Securities have been reserved
for issuance and, when issued upon conversion of such Securities in
accordance with the terms of the Indenture, will be duly authorized,
validly issued, fully paid and non-assessable and will conform to the
description thereof in the Prospectus. Stockholders of the Company have
no preemptive rights with respect to shares of Common Stock into which
the Securities may be converted.
(p) In the case of Securities convertible into Common Stock, any
rights to purchase capital securities of the Company issuable in
conjunction with Common Stock ("Rights") issuable upon the conversion of
the Securities are duly authorized and, when issued, will be validly
issued and will conform to the description thereof in the Prospectus.
Any certificate signed by any officer of the Company and delivered to
the Underwriters or to counsel for the Underwriters in connection with an
offering of Offered Securities shall be deemed a representation and warranty by
the Company to the Underwriters as to the matters covered thereby.
2. Public Offering. The Company is advised by the Manager that the
Underwriters propose to make a public offering of their respective portions of
the Offered Securities as soon after this Agreement has been entered into as in
the Manager's judgment is advisable. The terms of the public offering of the
Offered Securities are set forth in the Prospectus.
3. Purchase and Delivery. Payment for the Offered Securities shall be
made by wire transfer payable in same-day funds to an account specified by the
Company at the time and place set forth in the Underwriting Agreement, upon
delivery to the Manager for the respective accounts of the several Underwriters
of the Offered Securities, registered in such names and in such denominations as
the Manager shall request in writing not less than two full business days prior
to the date of delivery, with any transfer taxes payable in connection with the
transfer of the Offered Securities to the Underwriters duly paid. Delivery of
the Offered Securities shall be made through the facilities of The Depository
Trust Company unless the Manager shall otherwise instruct.
4. Conditions to Closing. The several obligations of the Underwriters
hereunder are subject to the following conditions:
(a) Subsequent to the execution and delivery of the Underwriting
Agreement and prior to the Closing Date,
5
(i) there shall not have occurred any downgrading, nor shall
any notice have been given of any intended or potential
downgrading or of any review for a possible change that does not
indicate the direction of the possible change, in the rating
accorded any of the Company's securities by any "nationally
recognized statistical rating organization," as such term is
defined for purposes of Rule 436(g)(2) under the Securities Act;
and
(ii) there shall not have occurred any change, or any
development involving a prospective change, in the condition,
financial or otherwise, or in the earnings, business or
operations, of the Company and its subsidiaries, taken as a
whole, from that set forth in the Prospectus, that, in the
judgment of the Manager, is material and adverse and that makes
it, in the judgment of the Manager, impracticable to market the
Offered Securities or enforce contracts for the sale of the
Offered Securities on the terms and in the manner contemplated in
the Prospectus.
(b) The Manager shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer
of the Company, to the effect set forth in clause (a)(i) above and to
the effect that the representations and warranties of the Company
contained in this Agreement are true and correct as of the Closing Date
and that the Company has complied with all of the agreements and
satisfied all of the conditions on its part to be performed or satisfied
on or before the Closing Date.
The officer signing and delivering such certificate may rely upon
the best of his knowledge as to proceedings threatened.
(c) The Manager shall have received on the Closing Date an
opinion of the General Counsel of the Company, dated the Closing Date,
in form and substance satisfactory to the Underwriters and the
Underwriters' counsel, to the effect set forth in Exhibit A.
(d) The Manager shall have received on the Closing Date an
opinion of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Company, dated the
Closing Date, in form and substance satisfactory to the Underwriters and
the Underwriters' counsel, to the effect set forth in Exhibit B.
(e) The Manager shall have received on the Closing Date an
opinion of counsel for the Underwriters specified in the Prospectus,
dated the Closing Date, to the effect set forth in Exhibit C.
(f) The Manager shall have received on the Closing Date a letter,
dated the Closing Date, in form and substance satisfactory to the
Manager, from the Company's independent public accountants, containing
statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in or
incorporated by reference into the Prospectus.
6
(g) The Company shall not have failed at or prior to the Closing
Date to have performed or complied with any of its agreements herein
contained and required to be performed or complied with by it hereunder
at or prior to the Closing Date.
(h) The Company shall have furnished or caused to be furnished to
the Manager such further certificates and documents as the Manager shall
have reasonably requested.
All such opinions, certificates, letters and other documents will be in
compliance with the provisions hereof only if they are satisfactory in form and
substance to the Manager and its counsel.
Any certificate or document signed by any officer of the Company and
delivered to the Manager, as representatives of the Underwriters, or to counsel
for the Underwriters, shall be deemed a representation and warranty by the
Company to each Underwriter as to the statements made therein.
5. Covenants of the Company. In further consideration of the agreements
of the Underwriters contained herein, the Company covenants as follows:
(a) To furnish the Manager, without charge, a signed copy of the
Registration Statement (including exhibits thereto) and for delivery to
each other Underwriter a conformed copy of the Registration Statement
(without exhibits thereto) and, during the period mentioned in paragraph
(c) below, as many copies of the Prospectus, any documents incorporated
by reference therein and any supplements and amendments thereto or to
the Registration Statement as the Manager may reasonably request.
(b) Before amending or supplementing the Registration Statement
or the Prospectus with respect to the Offered Securities, or before
filing any Rule 462(b) Registration Statement, to furnish to the Manager
a copy of each such proposed amendment, supplement or Rule 462(b)
Registration Statement and not to file any such proposed amendment,
supplement or Rule 462(b) Registration Statement to which the Manager
reasonably objects within a reasonable period after receipt of such
proposed amendment or supplement. Subject to the foregoing sentence, the
Company will cause the Prospectus, properly completed, and any
supplement thereto to be filed with the Commission pursuant to the
applicable paragraph of Rule 424(b) within the time period prescribed
and will provide evidence satisfactory to the Manager of such timely
filing.
(c) If, during such period after the first date of the public
offering of the Offered Securities as in the opinion of counsel for the
Underwriters the Prospectus is required by law to be delivered in
connection with sales by an Underwriter or dealer, any event shall occur
or condition exist as a result of which it is necessary to amend or
supplement the Prospectus in order to make the statements therein, in
the light of the circumstances when the Prospectus is delivered to a
purchaser, not misleading, or if, in the opinion of counsel for the
Underwriters, it is necessary to amend or supplement the Prospectus to
comply with law, forthwith to prepare, and, subject to Section 5(b),
file with the Commission and furnish for use, at its
7
own expense, to the Underwriters, and to the dealers (whose names and
addresses the Manager will furnish to the Company) to which Offered
Securities may have been sold by the Manager on behalf of the
Underwriters and to any other dealer upon request, either amendments or
supplements to the Prospectus so that the statements in the Prospectus
as so amended or supplemented will not, in the light of the
circumstances when the Prospectus is delivered to a purchaser, be
misleading or so that the Prospectus, as so amended or supplemented,
will comply with law.
(d) To endeavor and cooperate with the Manager and with counsel
for the Underwriters in connection with registration or qualification of
the Offered Securities for offer and sale under the securities or Blue
Sky laws of such jurisdictions as the Manager shall reasonably request
and to pay all expenses (including fees and disbursements of counsel) in
connection with such registration or qualification.
(e) To make generally available to the Company's security holders
and to the Manager as soon as practicable an earning statement covering
a twelve month period beginning on the first day of the first full
fiscal quarter after the date of this Agreement, which earning statement
shall satisfy the provisions of Section 11(a) of the Securities Act and
the rules and regulations of the Commission thereunder.
(f) The Company will not, without the prior written consent of
the Manager, offer, sell, contract to sell, pledge, or otherwise dispose
of, (or enter into any transaction which is designed to, or might
reasonably be expected to, result in the disposition (whether by actual
disposition or effective economic disposition due to cash settlement or
otherwise) by the Company or any affiliate of the Company or any person
in privity with the Company or any affiliate of the Company) directly or
indirectly, including the filing (or participation in the filing) of a
registration statement with the Commission in respect of, or establish
or increase a put equivalent position or liquidate or decrease a call
equivalent position within the meaning of Section 16 of the Exchange
Act, any debt securities issued or guaranteed by the Company (other than
the Offered Securities) or publicly announce an intention to effect any
such transaction until the Closing Date.
(g) The Company agrees to pay the following costs and expenses
and all other costs and expenses incident to the performance by it of
its 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, each Basic Prospectus, the Prospectus, each
amendment or supplement to any of them, this Agreement, the Indenture
and the Statement of Eligibility and Qualification of the Trustee; (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, each Basic
Prospectus, the Prospectus, the incorporated documents, and all
amendments or supplements to any of them, as may reasonably be requested
for use in connection with the offering and sale of the Offered
Securities; (iii) the preparation, printing
8
(or reproduction), execution and delivery of the Indenture and the
preparation, printing, authentication, issuance and delivery of the
Offered Securities, including any stamp taxes in connection with the
original issuance of the Offered Securities; (iv) the printing (or
reproduction) and delivery of this Agreement, the preliminary and
supplemental Blue Sky Memoranda and all other agreements or documents
printed (or reproduced) and delivered in connection with the offering of
the Offered Securities; (v) the registration of the Offered Securities
under the Exchange Act; (vi) the registration or qualification of the
Offered Securities for offer and sale under the securities or Blue Sky
laws of the several states as provided in Section 5(d) hereof (including
the reasonable fees, expenses and disbursements of counsel for the
Underwriters relating to the preparations, printing (or reproduction),
and delivery of the preliminary and supplemental Blue Sky Memoranda and
such registration and qualification); (vii) the filing fees and the fees
and expenses of counsel for the Underwriters in connection with any
filing required to be made with the National Association of Securities
Dealers, Inc.; (viii) the fees and expenses of the Trustee; (ix) the
fees and expenses associated with obtaining ratings for the Offered
Securities from nationally recognized statistical rating organizations;
(x) the transportation and other expenses incurred by or on behalf of
Company representatives in connection with presentations to prospective
purchasers of the Offered Securities; and (xi) the fees and expenses of
the Company's accountants and the fees and expenses of counsel
(including local and special counsel) for the Company.
(h) The Company will apply the net proceeds from the sale of the
Offered Securities substantially in accordance with the description set
forth in the Prospectus.
(i) The Company, during the period when the Prospectus is
required to be delivered under the Securities Act, will file promptly
all documents required to be filed with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act.
(j) The Company will advise you promptly and, if requested by
you, will confirm such advice in writing: (i) when the Prospectus, and
any supplement thereto, shall have been filed (if required) with the
Commission pursuant to Rule 424(b) or when any Rule 462(b) Registration
Statement shall have been filed with the Commission; (ii) of any request
by the Commission for amendment of or a supplement to the Registration
Statement, any Rule 462(b) Registration Statement, preliminary
prospectus, Basic Prospectus or the Prospectus or for additional
information; (iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or of the
suspension of qualification of the Offered Securities for offering or
sale in any jurisdiction or the initiation of any proceeding for such
purpose; and (iv) within the period of time that any Prospectus is
required to be delivered under the Securities Act in connection with
sales of the Offered Securities by any Underwriter or dealer, of any
change in the Company's condition (financial or other), business,
prospects, properties, net worth or results of operations, or of the
happening of any event, which makes any
9
statement of a material fact made in the Registration Statement or the
Prospectus (as then amended or supplemented) untrue or which requires
the making of any additions to or changes in the Registration Statement
or the Prospectus (as then amended or supplemented) in order to state a
material fact required by the Securities Act or the regulations
thereunder to be stated therein or necessary in order to make the
statements therein not misleading, or of the necessity to amend or
supplement the Prospectus (as then amended or supplemented) to comply
with the Securities Act or any other law. If at any time the Commission
shall issue any stop order suspending the effectiveness of the
Registration Statement, the Company will make every reasonable effort to
obtain the withdrawal of such order at the earliest possible time.
6. Indemnification and Contribution. (a) The Company agrees to indemnify
and hold harmless each Underwriter and each person, if any, who controls such
Underwriter within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act (i) from and against any and all losses, claims,
damages and liabilities arising out of any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or any
amendment thereof, any preliminary prospectus or the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto), or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages or
liabilities are caused by any such untrue statement or omission or alleged
untrue statement or omission based upon information relating to any Underwriter
furnished to the Company in writing by such Underwriter through the Manager
expressly for use therein; (ii) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, to the extent of the aggregate
amount paid in settlement of any litigation, or investigation or proceeding by
any governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such alleged
untrue statement or omission in each case if such settlement is effected with
the written consent of the Company; and (iii) against any and all expense
whatsoever, as incurred (including the fees and disbursements of counsel chosen
by the Manager), reasonably incurred in investigating, preparing or defending
against any litigation, or investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue statement or
omission (except as made in reliance upon and in conformity with information
furnished by the Manager as aforesaid), to the extent that any such expense is
not paid under (i) or (ii) above.
(b) Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors, its officers who sign the Registration
Statement and each person, if any, who controls the Company within the meaning
of either Section 15 of the Securities Act or Section 20 of the Exchange Act to
the same extent as the foregoing indemnity from the Company to such Underwriter,
but only with reference to information relating to such Underwriter furnished to
the Company by such Underwriter in writing through the Manager expressly for use
in the Registration Statement, any preliminary prospectus, the Prospectus or any
amendments or supplements thereto.
10
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to any of the two preceding paragraphs, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel, (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them or (iii) the indemnifying party has failed to
retain counsel as set forth herein. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the fees and expenses of more than one separate firm (in addition
to any local counsel) for all such indemnified parties and that all such fees
and expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by the Manager, in the case of parties indemnified
pursuant to the first preceding paragraph, and by the Company, in the case of
parties indemnified pursuant to the second preceding paragraph. The indemnifying
party shall not be liable for any settlement of any proceeding effected without
its written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as contemplated by the third
sentence of this paragraph, the indemnifying party agrees that it shall be
liable for any settlement of any proceeding effected without its written consent
if (A) such settlement is entered into more than 60 days after receipt by such
indemnifying party of the aforesaid request and (B) such indemnifying party
shall not have reimbursed the indemnified party in accordance with such request
prior to the date of such settlement. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of any
pending or threatened proceeding in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such proceeding.
(d) If the indemnification provided for in the first or second paragraph
in this Section 6 is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
each indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the
11
Company on the one hand and the Underwriters on the other hand from the offering
of the Offered Securities or (ii) if the allocation provided by clause (i) above
is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but also
the relative fault of the Company on the one hand and of the Underwriters on the
other hand in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Underwriters on the other hand in connection with the offering of the
Offered Securities shall be deemed to be in the same respective proportions as
the net proceeds from the offering of such Offered Securities (before deducting
expenses) received by the Company and the total underwriting discounts and
commissions received by the Underwriters, in each case as set forth in the table
on the cover of the Prospectus Supplement, bear to the aggregate public offering
price of the Offered Securities. The relative fault of the Company on the one
hand and of the Underwriters on the other hand shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or by the Underwriters and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Underwriters' respective
obligations to contribute pursuant to this Section 6 are several in proportion
to the respective principal amounts of Offered Securities they have agreed to
purchase hereunder, and not joint.
(e) The Company and the Underwriters agree that it would not be just or
equitable if contribution pursuant to this Section 6 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 6, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Offered Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages that such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The remedies provided for in this
Section 6 are not exclusive and shall not limit any rights or remedies which may
otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section
6 and the representations and warranties of the Company contained herein shall
remain operative and in full force and effect regardless of (i) any termination
of this Agreement, (ii) any investigation made by or on behalf of any
Underwriter or any person controlling any Underwriter or by or on behalf of the
Company, its directors or officers or any person controlling the Company and
(iii) acceptance of
12
and payment for any of the Offered Securities. Any losses, claims, damages,
liabilities or expenses for which an indemnified party is entitled to
indemnification or contribution under this Section 6 shall be paid by the
indemnifying party to the indemnified party as such losses, claims, damages,
liabilities or expenses are incurred. A successor to any Underwriter or any
person controlling any Underwriter, or to the Company, its directors or
officers, or any person controlling the Company, shall be entitled to the
benefits of the indemnity, contribution and reimbursement agreements contained
in this Section 6.
7. Termination. This Agreement shall be subject to termination, by
notice given by the Manager to the Company, if (a) after the execution and
delivery of the Underwriting Agreement and prior to the Closing Date (i) trading
generally shall have been suspended or materially limited on or by, as the case
may be, any of the New York Stock Exchange, the American Stock Exchange or the
Nasdaq National Market, (ii) trading of any securities of the Company shall have
been suspended on any exchange or in any over-the-counter market, (iii) a
general moratorium on commercial banking activities in New York shall have been
declared by either Federal or New York State authorities, or (iv) there shall
have occurred any outbreak or escalation of hostilities or any change in
financial markets or any calamity or crisis that, in the judgment of the
Manager, is material and adverse and (b) in the case of any of the events
specified in clauses (a)(i) through (iv), such event, singly or together with
any other such event, makes it, in the sole judgment of the Manager,
impracticable to commence or continue to market the Offered Securities on the
terms and in the manner contemplated in the Prospectus.
8. Defaulting Underwriters. If, on the Closing Date, any one or more of
the Underwriters shall fail or refuse to purchase Offered Securities that it has
or they have agreed to purchase hereunder on such date, and the aggregate amount
of Offered Securities which such defaulting Underwriter or Underwriters agreed
but failed or refused to purchase is not more than one-tenth of the aggregate
amount of the Offered Securities to be purchased on such date, the nondefaulting
Underwriters shall be obligated severally in the proportions that the amount of
Offered Securities set forth opposite their respective names above bears to the
aggregate amount of Offered Securities set forth opposite the names of all such
nondefaulting Underwriters, or in such other proportions as the Manager may
specify, to purchase the Offered Securities which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date; provided
that in no event shall the amount of Offered Securities that any Underwriter has
agreed to purchase pursuant to this Agreement be increased pursuant to this
Section 8 by an amount in excess of one-ninth of such amount of Offered
Securities without the written consent of such Underwriter. If, on the Closing
Date, any Underwriter or Underwriters shall fail or refuse to purchase Offered
Securities and the aggregate amount of Offered Securities with respect to which
such default occurs is more than one-tenth of the aggregate amount of Offered
Securities to be purchased on such date, and arrangements satisfactory to the
Manager and the Company for the purchase of such Offered Securities are not made
within 36 hours after such default, this Agreement shall terminate without
liability on the part of any non-defaulting Underwriter or the Company. In any
such case either the Manager or the Company shall have the right to postpone the
Closing Date but in no event for longer then seven days, in order that the
required changes, if any, in the Registration Statement and in the Prospectus or
in any other documents or
13
arrangements may be effected. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement. The term "Underwriter" as used in this
Agreement includes, for all purposes of this Agreement, any party not listed
herein who, with your approval and the approval of the Company, purchases
Offered Securities which a defaulting Underwriter is obligated, but fails or
refuses, to purchase.
If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and disbursements of their counsel)
reasonably incurred by such Underwriters in connection with this Agreement or
the offering of the Offered Securities.
9. Miscellaneous. The Underwriting Agreement may be signed in any number
of counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
10. Governing Law. THIS AGREEEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAW OF
THE STATE OF NEW YORK.
11. Headings. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
12. Parties at Interest. This Agreement has been and is made solely for
the benefit of the Underwriters and the Company, and the controlling persons,
directors and officers referred to in Section 6 hereof, and their respective
successors, assigns, executors and administrators. No other person shall acquire
or have any right under or by virtue of this Agreement.
14
EXHIBIT A
Opinion of General Counsel
of the Company
The opinion of General Counsel of the Company, to be delivered pursuant
to Section 4(c) of the Underwriting Agreement shall be to the effect that:
(1) The Company and each Significant Subsidiary has been duly
incorporated in good standing and is validly existing as a corporation
in good standing under the laws of the jurisdiction of its incorporation
with full corporate power and authority to own, lease and operate its
properties and conduct its business as described in the Registration
Statement.
(2) The issued and outstanding common stock of each Significant
Subsidiary has been duly authorized and validly issued and is fully paid
and non-assessable; and the Company owns the issued and outstanding
common stock of each Significant Subsidiary free and clear of any
mortgages, liens or similar encumbrances.
(3) The authorized capital stock of the Company conforms as to
legal matters to the description thereof contained in the Prospectus.
(4) To the knowledge of such counsel, the execution and delivery
of the Underwriting Agreement, the issuance of the Offered Securities
and the consummation of the transactions therein contemplated do not and
will not conflict with or constitute or result in a breach of, or
default under, (a) any judgment, order or decree of any government,
governmental instrumentality or court having jurisdiction over the
Company, any Significant Subsidiary, or any of their property, which is
material to such corporations, taken as a whole or (b) any provision of
any indenture, mortgage or similar agreement or instrument known to such
counsel to which the Company or any Significant Subsidiary is a party or
by which they or any material part of their property is bound except for
such conflicts, breaches or defaults as would not have a material
adverse effect on the Company and its subsidiaries taken as a whole.
(5) No regulatory consent, authorization, approval or filing is
required by the laws of the States of Delaware or Louisiana or, to the
best of his knowledge, any other state for the issuance, sale and
delivery of the Offered Securities by the Company to the Underwriters
except such as have been obtained or made under the 1933 Act, the 1934
Act and other applicable legislation specified in such opinion and such
as may be required under state securities or Blue Sky laws in connection
with the purchase and distribution of the Offered Securities by you.
(6) The Offered Securities are in due and proper form, as
contemplated by the Indenture, have been duly authorized, executed,
authenticated, issued and delivered and constitute valid and binding
obligations of the Company entitled to the benefits provided by the
Indenture; and the Offered Securities and the Indenture conform to the
descriptions thereof in the Prospectus, as amended or supplemented;
(7) In the case of Debt Securities convertible into Common Stock,
the shares of Common Stock issuable upon the conversion of the Debt
Securities have been reserved for issuance and, when issued upon
conversion of such Debt Securities in accordance with the terms of the
Indenture, will be duly authorized, validly issued, fully paid and
non-assessable and will conform to the description thereof in the
Prospectus. Stockholders of the Company have no preemptive rights with
respect to shares of Common Stock into which the Debt Securities may be
converted.
(8) The documents incorporated by reference in the Prospectus as
amended or supplemented (other than the financial statements and related
schedules therein, as to which such counsel need express no opinion),
when they became effective or were filed with the Commission, as the
case may be, complied as to form in all material respects with the
requirements of the Securities Act or the Exchange Act, as applicable,
and the rules and regulations of the Commission thereunder; and such
counsel has no reason to believe that any of such documents, when such
documents became effective or were so filed, as the case may be,
contained, in the case of a registration statement which became
effective under the Securities Act, an untrue statement of a material
fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, or, in the
case of other documents which were filed under the Securities Act or the
Exchange Act with the Commission, an untrue statement of a material fact
or omitted to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made when such documents were so filed, not misleading.
(9) The Registration Statement and the Prospectus as amended or
supplemented and any further amendments and supplements thereto made by
the Company prior to the Closing Date (other than the financial
statements and related schedules and other financial and statistical
information therein, as to which such counsel need express no opinion)
comply as to form in all material respects with the requirements of the
Securities Act and the Trust Indenture Act and the rules and regulations
thereunder; such counsel has no reason to believe that, as of its
effective date, the Registration Statement or any further amendment
thereto made by the Company prior to the Closing Date (other than the
financial statements and related schedules and other financial and
statistical information therein, as to which such counsel need express
no opinion) contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to
make the statements therein not misleading or that, as of its date, the
Prospectus as amended or supplemented or any further amendment or
supplement thereto made by the Company prior to the Closing Date (other
than the financial statements and related schedules and other financial
and statistical information therein, as to which such counsel need
express no
2
opinion) contained an untrue statement of a material fact or omitted to
state a material fact necessary to make the statements therein, in light
of the circumstances under which they were made, not misleading or that,
as of the Closing Date, the Prospectus as amended or supplemented or any
further amendment or supplement thereto made by the Company prior to the
Closing Date (other than the financial statements and related schedules
and other financial and statistical information therein, as to which
such counsel need express no opinion) contains an untrue statement of a
material fact or omits to state a material fact necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading; and such counsel does not know of any amendment to
the Registration Statement required to be filed or any contracts or
other documents of a character required to be filed as an exhibit to the
Registration Statement or required to be incorporated by reference into
the Prospectus as amended or supplemented or required to be described in
the Registration Statement or the Prospectus as amended or supplemented
which are not filed or incorporated by reference or described as
required.
In rendering such opinion, such counsel may rely, without independent
investigation, upon an opinion or opinions of local counsel as to laws other
than the federal laws of the United States, the General Corporation Law of the
State of Delaware or the laws of the State of Louisiana; provided that (a) each
such local counsel is acceptable to the Representatives, (b) such reliance is
expressly authorized by each opinion so relied upon and a copy of each such
opinion is delivered to the Representatives and is in form and substance
satisfactory to the Representatives and their counsel, and (c) counsel shall
state in their opinion that they believe that they and the Underwriters are
justified in relying thereon. With respect to subparagraph (9) above, such
counsel may state that his opinion and belief are based upon his participation
and the participation of his staff in the preparation of the Registration
Statement and Prospectus and review and discussion of the information furnished
therein.
3
EXHIBIT B
Opinion of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇,
Counsel for the Company
The opinion of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, special counsel for the Company,
to be delivered pursuant to Section 4(d) of the Underwriting Agreement shall be
to the effect that:
(1) The Underwriting Agreement has been duly authorized, executed
and delivered by the Company.
(2) The Offered Securities are in due and proper form, as
contemplated by the Indenture, have been duly authorized, executed,
authenticated, issued and delivered and constitute valid and binding
obligations of the Company entitled to the benefits provided by the
Indenture; and the Offered Securities and the Indenture conform to the
descriptions thereof in the Prospectus as amended or supplemented.
(3) The Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed and delivered by
the parties thereto and constitutes a valid and binding instrument,
enforceable in accordance with its terms, except, as (a) the
enforceability thereof may be limited by bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors' rights generally and (b) rights of acceleration and
the availability of equitable remedies may be limited by equitable
principles of general applicability.
(4) No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body of the
United States or the State of New York is required for the issue and
sale of the Offered Securities or the consummation by the Company of the
transactions contemplated by the Underwriting Agreement or the Indenture
except such as have been obtained under the Securities Act and the Trust
Indenture Act, and such consents, approvals, authorizations,
registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase and
distribution of the Offered Securities by the Underwriters in the manner
contemplated by the Underwriting Agreement.
(5) The documents incorporated by reference in the Prospectus as
amended or supplemented (other than the financial statements and related
schedules and other financial information therein, as to which such
counsel need express no opinion), when they became effective or were
filed with the Commission, as the case may be, complied as to form in
all material respects with the requirements of the Securities Act or the
Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder.
(6) The Registration Statement and the Prospectus as amended or
supplemented and any further amendments or supplements thereto made by
the Company prior to the Closing Date (other than the financial
statements and related schedules and other financial and statistical
information therein, as to which such counsel need express no opinion)
comply as to form in all material respects with the requirements of the
Securities Act and the Trust Indenture Act and the rules and regulations
thereunder; such counsel has no reason to believe that, as of its
effective date, the Registration Statement or any further amendment
thereto made by the Company prior to the Closing Date (other than the
financial statements and related schedules and other financial and
statistical information therein, as to which such counsel need express
no opinion) contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to
make the statements therein not misleading or that, as of its date, the
Prospectus as amended or supplemented or any further amendment or
supplement thereto made by the Company prior to the Closing Date (other
than the financial statements and related schedules and other financial
and statistical information therein, as to which such counsel need
express no opinion) contained an untrue statement of a material fact or
omitted to state a material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading or that, as of the Closing Date, either the Registration
Statement or the Prospectus as amended or supplemented or any further
amendment or supplement thereto made by the Company prior to the Closing
Date (other than the financial statements and related schedules and
other financial and statistical information therein, as to which such
counsel need express no opinion) contains an untrue statement of a
material fact or omits to state a material fact necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading; and such counsel does not know of any amendment to
the Registration Statement required to be filed.
In rendering such opinion, such counsel may state that they express no
opinion as to the laws of any jurisdiction other than the United States, the
State of New York and the General Corporation Law of the State of Delaware. With
respect to subparagraph (7) above, such counsel may state that their opinion and
belief are based upon their participation in the preparation of the Registration
Statement and Prospectus as amended or supplemented and review and discussion of
the information furnished therein, but without independent check or verification
thereof, except as specified.
2
EXHIBIT C
Opinion of
Counsel for the Underwriters
The opinion of counsel for the Underwriters, to be delivered pursuant to
Section 4(e) of the Underwriting Agreement shall be to the effect that:
(1) The Underwriting Agreement has been duly authorized, executed
and delivered by the Company.
(2) The Indenture has been duly authorized, executed and
delivered by the Company, and constitutes a legal, valid and binding
obligation of the Company, enforceable against the Company in accordance
with its terms (subject to applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer and other similar laws
affecting creditors' rights generally from time to time in effect and to
general principles of equity, including, without limitation, concepts of
materiality, reasonableness, good faith and fair dealing, regardless of
whether in a proceeding in equity or at law).
(3) The Offered Securities have been duly authorized and, when
executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Underwriters in
accordance with the terms of the Underwriting Agreement, will constitute
legal, valid and binding obligations of the Company entitled to the
benefits of the Indenture and enforceable against the Company in
accordance with their terms (subject to applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer and other
similar laws affecting creditors' rights generally from time to time in
effect and to general principles of equity, including, without
limitation, concepts of materiality, reasonableness, good faith and fair
dealing, regardless of whether in a proceeding in equity or at law).
(4) The Registration Statement is effective under the Securities
Act, and to the best knowledge of such counsel, no stop order suspending
the effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been initiated or are pending or
contemplated under the Securities Act.
(5) The Registration Statement and the Prospectus as amended or
supplemented and any further amendments or supplements thereto made by
the Company prior to the Closing Date (other than the financial
statements and related schedules and other financial and statistical
information therein, as to which such counsel need express no opinion)
comply as to form in all material respects with the requirements of the
Securities Act and the Trust Indenture Act and the rules and regulations
thereunder; such counsel has no reason to believe that, as of its
effective date, the Registration Statement or any further amendment
thereto made by the Company prior to the Closing Date (other than the
financial statements and related schedules and other financial and
statistical information therein, as to which such counsel need express
no opinion) contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to
make the statements therein not misleading or that, as of its date, the
Prospectus as amended or supplemented or any further amendment or
supplement thereto made by the Company prior to the Closing Date (other
than the financial statements and related schedules and other financial
and statistical information therein, as to which such counsel need
express no opinion) contained an untrue statement of a material fact or
omitted to state a material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading or that, as of the Closing Date, either the Registration
Statement or the Prospectus as amended or supplemented or any further
amendment or supplement thereto made by the Company prior to the Closing
Date (other than the financial statements and related schedules and
other financial and statistical information therein, as to which such
counsel need express no opinion) contains an untrue statement of a
material fact or omits to state a material fact necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading; and such counsel does not know of any amendment to
the Registration Statement required to be filed.
In rendering such opinion, such counsel may state that they express no
opinion as to the laws of any jurisdiction other than the United States, the
State of New York and the General Corporation Law of the State of Delaware. With
respect to subparagraph (5) above, such counsel may state that their opinion and
belief are based upon their participation in the preparation of the Registration
Statement and Prospectus as amended or supplemented and review and discussion of
the information furnished therein, but without independent check or verification
thereof, except as specified.
4