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SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
--------------------
FORM 8-K
Current Report
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report: May 12, 1997
BRISTOL HOTEL COMPANY
14285 Midway Road, Suite 300
Dallas, Texas 75244
972-391-3910
Commission File No. 1-14062
Incorporated in Delaware IRS No. 75-2584227
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ITEM 5. OTHER EVENTS.
On May 12, 1997, Bristol Hotel Company (the "Company") entered into a
Terms Agreement with Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated ("Merrill Lynch") pursuant to which the Company intends to issue
up to 3,162,500 shares of the Company's common stock in connection with an
underwritten public offering of such shares. The Company expects to use the
net proceeds for general corporate purposes and to repay borrowings.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(c) Exhibits.
1.1 Terms Agreement, dated May 12, 1997 between the Company and
Merrill Lynch, including the Underwriting Agreement Standard Provisions
incorporated therein by reference.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereto duly authorized.
BRISTOL HOTEL COMPANY
BY: /s/ JOEL M. EASTMAN
------------------------------
Joel M. Eastman
Vice President, Secretary and
General Counsel
Date: May 15, 1997
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EXHIBIT INDEX
EXHIBIT
1.1 Terms Agreement, dated May 12, 1997 between the Company and Merrill
Lynch, including the Underwriting Agreement Standard Provisions
incorporated therein by reference.
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BRISTOL HOTEL COMPANY
(a Delaware Corporation)
TERMS AGREEMENT
Common Stock, par value $.01 per share
May 12, 1997
To: Bristol Hotel Company
14285 Midway Road, Suite 300
Dallas, Texas 75244
Attention : Chairman of the Board of Directors
Ladies and Gentlemen:
We understand that Bristol Hotel Company, a Delaware corporation
(the "Company"), proposes to issue and sell up to 3,162,500 shares (including
412,500 shares that may be sold if the Underwriters exercise the option with
respect to Option Underwritten Securities) of its common stock, par value $.01
per share (the "Common Stock") (such securities also being hereinafter referred
to as the "Initial Underwritten Securities"). Subject to the terms and
conditions set forth or incorporated by reference herein, Merrill Lynch & Co.,
Merrill Lynch, Pierce, Fenner & Smith Incorporated, Alex. Brown & Sons
Incorporated, Lehman Brothers Inc., Montgomery Securities, Smith Barney Inc.
and the other underwriters named below (the "Underwriters") offer to purchase,
severally and not jointly, the number of Underwritten Securities opposite their
names set forth below at the purchase price set forth below, and a
proportionate share of Option Underwritten Securities set forth below, to the
extent any are purchased.
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<TABLE>
<CAPTION>
Number of Initial
Name of Underwriter Underwritten Securities
- ------------------------------ -----------------------
<S> <C>
Merrill Lynch, Pierce, Fenner & Smith
Incorporated . . . . . . . . . . . . . . . . . . . . . . . . 412,000
Alex. Brown & Sons Incorporated . . . . . . . . . . . . . . . . . . . . 412,000
Lehman Brothers Inc. . . . . . . . . . . . . . . . . . . . . . . . . . 412,000
Montgomery Securities . . . . . . . . . . . . . . . . . . . . . . . . . 412,000
Smith Barney Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . 412,000
Credit Lyonnais Securities (USA) Inc. . . . . . . . . . . . . . . . . . 60,000
Credit Suisse First Boston Corporation . . . . . . . . . . . . . . . . 60,000
Deutsche Morgan Grenfell Inc. . . . . . . . . . . . . . . . . . . . . . 60,000
Donaldson, Lufkin & Jenrette Securities Corporation . . . . . . . . . . 60,000
Goldman, Sachs & Co. . . . . . . . . . . . . . . . . . . . . . . . . . 60,000
Oppenheimer & Co., Inc. . . . . . . . . . . . . . . . . . . . . . . . . 60,000
PaineWebber Incorporated . . . . . . . . . . . . . . . . . . . . . . . 60,000
Salomon Brothers Inc . . . . . . . . . . . . . . . . . . . . . . . . . 60,000
Schroder Wertheim & Co. Incorporated . . . . . . . . . . . . . . . . . 60,000
Friedman, Billings, Ramsey & Co., Inc. . . . . . . . . . . . . . . . . 30,000
Legg Mason Wood Walker, Incorporated . . . . . . . . . . . . . . . . . 30,000
Rauscher Pierce Refsnes, Inc. . . . . . . . . . . . . . . . . . . . . . 30,000
Raymond James & Associates, Inc. . . . . . . . . . . . . . . . . . . . 30,000
Southwest Securities, Inc. . . . . . . . . . . . . . . . . . . . . . . 30,000
TOTAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2,750,000
==========
</TABLE>
The Underwritten Securities shall have the following terms:
Title: Common Stock, par value $.01 per
share
("Common Stock")
Number of Initial Underwritten Securities:2,750,000 shares
Number of Option Underwritten Securities: 412,500 shares
Initial public offering price per share: $36.00
Purchase price per share: $34.29
Listing requirements: New York Stock Exchange
Black-out provisions: Specified Security: Common Stock;
Black Out Period:
Ninety (90) days from the Closing Time
for the Company black-out period in
Section 3(k) of the Standard
Provisions (as defined below)
Lock-up provisions: Ninety (90) days with respect to each
of the following:
John A. Beckert
Richard N. Beckert
Joel M. Eastman
J. Peter Kline
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Jeffrey P. Mayer
Robert L. Miars
Edward J. Rohling
Robert H. Lutz, Jr.
Kurt C. Read
Donald J. McNamara
David A. Dittman
United/Harvey Holdings, L.P.
Bass America Inc.
Holiday Corporation
Other terms and conditions:
In addition to the representations and warranties contained in
Section 1 of the Standard Provision (as defined below), the Company hereby
represents and warrants to each Underwriter, as of the Closing Time and as of
each Date of Delivery, as follows:
The Agreement and Plan of Merger dated as of December 15, 1996
and as thereafter amended among Holiday Corporation, Holiday Inns, Inc.
and the Company and the agreements executed and delivered by the Company
and/or any of its Subsidiaries in connection therewith (collectively,
the "Merger Agreement"), and the First Amended and Restated Credit
Agreement (the "Credit Agreement") relating to the New Credit Facility
(as defined in the Prospectus), each have been duly and validly
authorized, executed and delivered by the parties thereto, is a valid
and binding agreement of the parties thereto, enforceable against each
of the parties thereto in accordance with its respective terms, except
as such enforceability may be limited by bankruptcy, moratorium,
insolvency or other similar laws generally affecting the enforcement of
creditors' rights. The Merger Agreement and the Credit Agreement are
referred to herein as the "Company Documents." The transactions
contemplated by the Merger Agreement and the Credit Agreement have been
duly contemplated in accordance with their terms.
Closing date and location: May 16, 1997
Rogers & Wells
200 Park Avenue
New York New York 10021
Notice to Underwriters: To Merrill Lynch at:
World Financial Center
North Tower
New York, New York 10281-1201
Attention: Martin J. Cicco, Managing
Director
with a copy to:
Rogers & Wells
200 Park Avenue
New York, New York 10166
Attention: Robert E. King, Jr., Esq.
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All of the provisions contained in the document attached as Annex
I hereto entitled "Bristol Hotel Company--Underwriting Agreement Standard
Provisions" (the "Standard Provisions") are hereby incorporated by reference in
their entirety herein and shall be deemed to be a part of this Terms Agreement
to the same extent as if such provisions had been set forth in full herein.
Terms defined in such document are used herein as therein defined.
Please accept this offer no later than 5 o'clock P.M. (New York
City time) on May 12, 1997 by signing a copy of this Terms Agreement in the
space set forth below and returning the signed copy to us.
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Very truly yours,
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
ALEX. BROWN & SONS INCORPORATED
LEHMAN BROTHERS INC.
MONTGOMERY SECURITIES
SMITH BARNEY INC.
BY: MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By:
--------------------------------------
for themselves and as Representatives
of the Underwriters named herein
Name:
Title:
CONFIRMED AND ACCEPTED:
as of the date first above written
BRISTOL HOTEL COMPANY
By:
-----------------------------
Name:
Title:
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ANNEX I
BRISTOL HOTEL COMPANY
(a Delaware corporation)
Common Stock, Warrants to Purchase Common Stock,
Preferred Stock, Warrants to Purchase Preferred Stock,
Debt Securities and Warrants to Purchase Debt Securities
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
May 1997
Bristol Hotel Company, a Delaware corporation (the "Company")
proposes to issue and sell up to $500,000,000 aggregate initial public offering
price of its (i) shares of common stock, par value $.01 per share (the "Common
Stock"), (ii) warrants to purchase shares of Common Stock (the "Common Stock
Warrants"), (iii) shares of preferred stock, par value $.01 per share (the
"Preferred Stock"), (iv) warrants to purchase shares of Preferred Stock (the
"Preferred Stock Warrants"), (v) senior or subordinated debt securities (the
"Debt Securities"), or (vi) warrants to purchase Debt Securities (the "Debt
Security Warrants"), or any combination thereof, from time to time, in or
pursuant to one or more offerings on terms to be determined at the time of
sale.
The Preferred Stock will be issued in one or more series and each
series of Preferred Stock may vary, as applicable, as to the title, specific
number of shares, rank, stated value, liquidation preference, dividend rate or
rates (or method of calculation), dividend payment dates, redemption
provisions, sinking fund requirements, conversion provisions (and terms of the
related Underlying Securities (as defined below)) and any other variable terms
as set forth in the applicable certificate of designations (each, the
"Certificate of Designations") relating to such series of Preferred Stock.
The Debt Securities will be issued in one or more series as
senior indebtedness (the "Senior Debt Securities") under an indenture, dated as
of a date prior to the first issuance of Senior Debt Securities (the "Senior
Indenture"), between the Company and a trustee to be named in the applicable
prospectus supplement (the "Senior Trustee"), or as subordinated indebtedness
(the "Subordinated Debt Securities") under an indenture dated as of a date
prior to the first issuance of Subordinated Debt Securities (the "Subordinated
Indenture" and together with the Senior Indenture, the "Indenture"), between
the Company and a trustee to be named in the applicable prospectus supplement
(the "Subordinated Trustee" and collectively with the Senior Trustee, the
"Trustees", and each, a "Trustee"). Each series of Debt Securities may vary,
as applicable, as to title, aggregate principal amount, rank, interest rate or
formula and
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timing of payments thereof, stated maturity date, redemption and/or repayment
provisions, sinking fund requirements, conversion provisions (and terms of the
related Underlying Securities) and any other variable terms established by or
pursuant to the applicable Indenture.
Each issue of Common Stock Warrants, Preferred Stock Warrants and
Debt Security Warrants (collectively, the "Warrants") will be issued pursuant
to a separate warrant agreement (each, a "Warrant Agreement") between the
Company and the warrant agent identified therein (each, a "Warrant Agent").
The Warrants may vary, as applicable, as to, among other terms, title, type,
specific number, exercise dates or periods, exercise price(s), expiration
date(s) and terms of the related Underlying Securities.
As used herein, "Securities" shall mean the Common Stock, Common
Stock Warrants, Preferred Stock, Preferred Stock Warrants, Senior Debt
Securities or Subordinated Debt Securities, or any combination thereof,
initially issuable by the Company and "Underlying Securities" shall mean the
Common Stock, Preferred Stock, Senior Debt Securities or Subordinated Debt
Securities issuable upon exercise of the Warrants, as applicable, or upon
conversion of the Preferred Stock, Senior Debt Securities or Subordinated Debt
Securities, as applicable.
Whenever the Company determines to make an offering of Securities
through one underwriter, or through an underwriting syndicate, which may
include Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated, the Company and such underwriter(s) will enter into an agreement
(each, a "Terms Agreement") providing for the sale of such Securities to, and
the purchase and offering thereof by, such underwriters (the "Underwriters",
which term shall include any Underwriter substituted pursuant to Section 10
hereof). The Terms Agreement relating to the offering of Securities shall
specify the number or aggregate principal amount, as the case may be, of
Securities to be initially issued (the "Initial Underwritten Securities"), the
name of each Underwriter participating in such offering (subject to
substitution as provided in Section 10 hereof); and the name of any Underwriter
or Underwriters acting as manager or co-manager (each, a "Managing
Underwriter") in connection with such offering, the number or aggregate
principal amount, as the case may be, of Initial Underwritten Securities which
each such Underwriter severally agrees to purchase, whether such offering is on
a fixed or variable price basis and, if on a fixed price basis, the initial
offering price, the price at which the Initial Underwritten Securities are to
be purchased by the Underwriters, the form, time, date and place of delivery
and payment of the Initial Underwritten Securities and any other material
variable terms of the Initial Underwritten Securities, as well as the material
variable terms of any related Underlying Securities. In addition, if
applicable, such Terms Agreement shall specify whether the Company has agreed
to grant to the Underwriters an option to purchase additional Securities to
cover over-allotments, if any, and the number or aggregate principal amount, as
the case may be, of Securities subject to such option (the "Option Underwritten
Securities"). As used herein, the term "Underwritten Securities" shall include
the Initial Underwritten Securities and all or any portion of any Option
Underwritten Securities. The Terms Agreement, which shall be substantially in
the form of Exhibit A hereto, may take the form of an exchange of any standard
form of written telecommunication between the Company and the Managing
Underwriter, acting for itself and, if applicable, as representative of any
other Underwriters. Unless otherwise
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provided for, each offering of Underwritten Securities will be governed by this
Underwriting Agreement, as supplemented by the applicable Terms Agreement.
The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 (No. 333-22889) for the
registration of the Securities and the Underlying Securities under the
Securities Act of 1933, as amended (the "1933 Act"), and the offering thereof
from time to time in accordance with Rule 415 of the rules and regulations of
the Commission under the 1933 Act (the "1933 Act Regulations"), and the Company
has filed such post-effective amendments thereto as may be required prior to
the execution of the applicable Terms Agreement. Such registration statement
(as so amended, if applicable) has been declared effective by the Commission
and any applicable Indenture with respect to Underwritten Securities that
involve Debt Securities will be duly qualified under the Trust Indenture Act of
1939, as amended (the "1939 Act") on or prior to the date of the Terms
Agreement relating to such Underwritten Securities. Such registration
statement (as so amended, if applicable), including the information, if any,
deemed to be a part thereof pursuant to Rule 430A(b) of the 1933 Act
Regulations (the "Rule 430A Information") or Rule 434(d) of the 1933 Act
Regulations (the "Rule 434 Information"), is referred to herein as the
"Registration Statement"; and the prospectus constituting a part thereof and
the applicable prospectus supplement relating to the offering of the
Underwritten Securities, in the form first furnished to the Underwriters by the
Company for use in connection with the offering of the Underwritten Securities,
are collectively referred to herein as the "Prospectus"; provided, however,
that all references to the "Registration Statement" and the "Prospectus" shall
be deemed to include all documents incorporated therein by reference pursuant
to the Securities Exchange Act of 1934, as amended (the "1934 Act"), prior to
the execution of the applicable Terms Agreement; provided, further, that if the
Company files a registration statement with the Commission pursuant to Section
462(b) of the 1933 Act Regulations (the "Rule 462 Registration Statement"),
then, after such filing, all references to "Registration Statement" shall be
deemed to include the Rule 462 Registration Statement; provided, however, that
if the Company elects to rely upon Rule 434 of the 1933 Act Regulations, then
all references to "Prospectus" shall be deemed to include the final or
preliminary prospectus and the applicable term sheet or abbreviated term sheet
(the "Term Sheet"), as the case may be, in the form first furnished to the
Underwriters by the Company in reliance upon Rule 434 of the 1933 Act
Regulations, and all references in this Underwriting Agreement to the date of
the Prospectus shall mean the date of the Term Sheet. A "preliminary
prospectus" shall be deemed to refer to any prospectus used before the
registration statement became effective and any prospectus that omitted, as
applicable, the Rule 430A Information, the Rule 434 Information or other
information to be included upon pricing in a form of prospectus filed with the
Commission pursuant to Rule 424(b) of the 1933 Act Regulations, that was used
after such effectiveness and prior to the execution and delivery of the
applicable Terms Agreement. For purposes of this Underwriting Agreement, all
references to the Registration Statement, Prospectus, Term Sheet or preliminary
prospectus or to any amendment or supplement to any of the foregoing shall be
deemed to include the copy filed with the Commission pursuant to its Electronic
Data Gathering, Analysis and Retrieval system ("EDGAR").
All references in this Underwriting Agreement to financial
statements and schedules and other information which is "contained," "included"
or "stated" (or other references
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of like import) in the Registration Statement, Prospectus or preliminary
prospectus shall be deemed to mean and include all such financial statements
and schedules and other information which is or is deemed to be incorporated by
reference in the Registration Statement, Prospectus or preliminary prospectus,
as the case may be; and all references in this Underwriting Agreement to
amendments or supplements to the Registration Statement, Prospectus or
preliminary prospectus shall be deemed to mean and include the filing of any
document under the 1934 Act which is or is deemed to be incorporated by
reference in the Registration Statement, Prospectus or preliminary prospectus,
as the case may be.
The term "Subsidiary" means a corporation, partnership, limited
liability company, joint venture or other entity, a majority of the outstanding
voting stock, partnership, membership or other interests, as the case may be,
of which is beneficially owned or controlled, directly or indirectly, by the
Company or by one or more other Subsidiaries of the Company, including, without
limitation, Bristol Hotel Asset Company, a Delaware corporation, Harvey Hotel
Company, Ltd., a Texas limited partnership and Bristol Hotel Management
Company, a Delaware corporation.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company. The
Company represents and warrants to each Underwriter named in the applicable
Terms Agreement, as of the date thereof, as of the Closing Time (as defined
below) and, if applicable, as of each Date of Delivery (as defined below) (in
each case, a "Representation Date"), as follows:
(1) Compliance with Registration Requirements. The Company
meets the requirements for use of Form S-3 under the 1933 Act. Each of
the Registration Statement and any Rule 462(b) Registration Statement
has become effective under the 1933 Act and no stop order suspending the
effectiveness of the Registration Statement or any Rule 462(b)
Registration Statement has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are pending or, to
the knowledge of the Company, after due inquiry, are contemplated by the
Commission or the state securities authority of any jurisdiction, and
any request on the part of the Commission for additional information has
been complied with. In addition, the applicable Indenture with respect
to any Underwritten Securities that include Debt Securities will have
been duly qualified under the 1939 Act on or prior to the date of the
Terms Agreement relating to such Underwritten Securities.
At the respective times the Registration Statement, any
Rule 462(b) Registration Statement and any post-effective amendments
thereto (including by reason of the filing of the Company's most recent
Annual Report on Form 10-K with the Commission (the "Annual Report on
Form 10-K")) became effective and at each Representation Date, the
Registration Statement, any Rule 462(b) Registration Statement and any
amendments and supplements thereto complied and will comply in all
material respects with the requirements of the 1933 Act and the 1933 Act
Regulations and the 1939 Act and the rules and regulations of the
Commission under the 1939 Act (the "1939 Act Regulations") and did not
and will not contain an untrue statement of a material fact
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or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading. At the date of
the Prospectus, at each Representation Date, and at the Closing Time,
the Prospectus and any amendments and supplements thereto did not and
will not include an untrue statement of a material fact or omit to state
a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading. If the Company elects to rely upon Rule 434 of the 1933 Act
Regulations, the Company will comply with the requirements of Rule 434.
Notwithstanding the foregoing, the representations and warranties in
this subsection shall not apply to statements in or omissions from the
Registration Statement or the Prospectus made in reliance upon and in
conformity with information furnished to the Company in writing by any
Underwriter through the Managing Underwriter expressly for use in the
Registration Statement or the Prospectus.
Each preliminary prospectus and Prospectus filed as part
of the Registration Statement as originally filed or as part of any
amendment or supplement thereto, or filed pursuant to Rule 424 under the
1933 Act, complied when so filed in all material respects with the 1933
Act and the 1933 Act Regulations and, if applicable, each preliminary
prospectus and the Prospectus delivered to the Underwriters for use in
connection with the offering of Underwritten Securities will, at the
time of such delivery, be identical to the electronically transmitted
copies thereof filed with the Commission pursuant to EDGAR, except to
the extent permitted by Regulation S-T.
If a Rule 462(b) Registration Statement is required in connection
with the offering and sale of the securities, the Company has complied
or will comply with the requirements of Rule 111 under the 1933 Act
Regulations relating to the payment of filing fees therefor.
(2) Incorporated Documents. The documents incorporated or
deemed to be incorporated by reference in the Registration Statement and
the Prospectus, when they were or hereafter are filed with the
Commission, complied and will comply in all material respects with the
requirements of the 1934 Act and the rules and regulations of the
Commission thereunder (the "1934 Act Regulations") and, when read
together with the other information in the Prospectus, at the date of
the Prospectus, at the Closing Time and at each Representation Date, did
not and will not include an 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.
(3) Independent Accountants. The accountants who certified
the financial statements and supporting schedules included or
incorporated by reference in the Registration Statement and the
Prospectus are independent public accountants as required by the 1933
Act and the 1933 Act Regulations.
(4) Financial Statements. The financial statements included
or incorporated by reference in the Registration Statement and the
Prospectus, together with the related schedules and notes, present
fairly the financial position of the respective entity or entities or
group presented therein at the respective dates indicated and the
statement of
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operations, stockholders' equity and cash flows of such entity for the
periods specified. Such financial statements have been prepared in
conformity with generally accepted accounting principles ("GAAP")
applied on a consistent basis throughout the periods involved. The
supporting schedules, if any, included or incorporated by reference in
the Registration Statement and the Prospectus present fairly, in
accordance with GAAP, the information required to be stated therein.
The selected financial data, the summary financial information and other
financial and statistical information and data included in the
Prospectus present fairly the information shown therein and, to the
extent applicable, have been prepared on a basis consistent with that of
the financial statements included or incorporated by reference in the
Registration Statement and the Prospectus and/or the books and records
of the respective entities or group presented therein. In addition, any
pro forma financial information and the related notes thereto included
or incorporated by reference in the Registration Statement and the
Prospectus present fairly the information shown therein, have been
prepared in accordance with the applicable requirements of the 1933 Act
and the 1933 Act Regulations with respect to pro forma information and
includes all adjustments necessary to present fairly the pro forma
financial position of the respective entity or entities at the
respective dates indicated and the results of operations for the
respective periods specified. All historical financial statements and
information and all pro forma financial statements and information
required by the 1933 Act, the 1933 Act Regulations, the 1934 Act and the
1934 Act Regulations are included, or incorporated by reference, in the
Registration Statement and the Prospectus.
(5) No Material Adverse Change in Business. Since the
respective dates as of which information is given in the Registration
Statement and the Prospectus, except as otherwise stated therein, (A)
there has been no change in the condition, financial or otherwise, or in
the earnings, assets, business affairs or business prospects of the
Company or any Subsidiary, whether or not arising in the ordinary course
of business, which would be materially adverse to the Company and its
Subsidiaries, taken as a whole (any such change being hereinafter
referred to as a "Material Adverse Change"), (B) no casualty, loss or
condemnation or other adverse event with respect to any of the fee and
ground lease interests in hotel properties which the Company or any
Subsidiary owns and/or operates (the "Hotels") has occurred which would
have an adverse effect on the condition, financial or otherwise, or on
the earnings, assets, business affairs or business prospects of the
Company or any of its Subsidiaries or the Hotels which would be material
to the Company and its Subsidiaries taken as a whole (a "Material
Adverse Effect"), (C) there have been no transactions or acquisitions
entered into by the Company or any Subsidiary, other than those in the
ordinary course of business, which would have a Material Adverse Effect,
(D) there has been no dividend or distribution of any kind (other than
dividends or distributions of additional shares of Common Stock to all
holders of the Company's Common Stock on a pro rata basis) declared,
paid or made by the Company on any class of its capital stock and (E)
there has been no change in the capital stock of the Company or any
increase in the indebtedness of the Company, any Subsidiary or the
Hotels which would have a Material Adverse Effect.
(6) Good Standing of the Company. The Company has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the State of
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Delaware, with corporate power and authority to own, lease and operate
its properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under, this
Underwriting Agreement and the applicable Terms Agreement and the other
Company Documents (as hereinafter defined) to which it is a party; and
the Company is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing
of property or the conduct of business, except where the failure to so
qualify or be in good standing would not result in a Material Adverse
Effect.
(7) Good Standing of Subsidiaries. Each of the Company's
Significant Subsidiaries (as defined in Rule 1-02 of Regulation S-X
promulgated under the 1933 Act) has been duly organized and is validly
existing as a corporation, limited partnership, limited liability
company or other entity, as the case may be, in good standing under the
laws of the jurisdiction of its incorporation or organization, as the
case may be, has the requisite power and authority to own, lease and
operate its properties and to conduct the business in which it is
engaged or proposes to engage as described in the Prospectus and to
enter into and perform its obligations under the Company Documents (if
any, if and as defined in the Terms Agreement) to which it is a party.
Each of the Significant Subsidiaries is duly qualified as a foreign
corporation, limited partnership, or limited liability company or other
entity, as the case may be, to transact business and is in good standing
in each jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify or be in good standing
would not result in a Material Adverse Effect. All of the issued and
outstanding capital stock of each corporate Subsidiary has been duly
authorized and is validly issued, fully paid and non-assessable and,
except as described in the Prospectus, all of such capital stock is
owned by the Company, directly or through Subsidiaries, free and clear
of any security interest, mortgage, pledge, lien, encumbrance, claim,
restriction or equity (collectively, "Liens"). None of the outstanding
shares of capital stock of the Company corporate Significant
Subsidiaries are reserved for any purpose, and there are no outstanding
securities convertible into or exchangeable for any capital stock of any
of the Company's corporate Significant Subsidiaries, and there are no
outstanding options, rights (preemptive or otherwise) or warrants to
purchase or to subscribe for shares of such capital stock or any other
securities of any of the Company's corporate Significant Subsidiaries.
Except as otherwise stated in the Registration Statement and the
Prospectus, all of the partnership or membership interests, as the case
may be, of each partnership or limited liability company Subsidiary, as
the case may be, is owned by the Company, directly or through
Subsidiaries, free and clear of all Liens, except for such Liens that
would not result in a Material Adverse Change.
(8) Capitalization. The authorized, issued and outstanding
shares of capital stock of the Company is as set forth in the Prospectus
(except for subsequent issuances thereof, if any, contemplated under
this Underwriting Agreement, pursuant to employee benefit plans referred
to in the Prospectus or pursuant to the exercise of convertible
securities or options referred to in the Prospectus). All the issued
and outstanding shares
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<PAGE> 13
of capital stock have been duly authorized and are validly issued by the
Company, are fully paid and non-assessable and have been offered and
sold in compliance with all applicable laws (including, without
limitation, federal and state securities laws), and none of such shares
of capital stock were issued in violation of preemptive or other similar
rights of any securityholder of the Company. Except as is otherwise
disclosed in the Prospectus, and except as granted under this Agreement,
no shares of capital stock of the Company are reserved for any purpose
and there are no outstanding securities convertible into or exchangeable
for any shares of capital stock of the Company, and there are no
outstanding options, rights (preemptive or otherwise) or warrants to
purchase or to subscribe for such stock.
(9) Authorization of this Underwriting Agreement and Terms
Agreement and Company Documents. This Underwriting Agreement and the
applicable Terms Agreement as of the date thereof will have been, duly
and validly authorized, executed and delivered by the Company. Assuming
due authorization, execution and delivery by the Underwriter, this
Underwriting Agreement and the applicable Terms Agreement at the date
hereof will be, a valid and binding agreement of the Company and is
enforceable against the Company in accordance with its terms.
(10) Authorization of Common Stock. If the Underwritten
Securities being sold pursuant to the applicable Terms Agreement include
Common Stock, such Underwritten Securities have been, or as of the date
of such Terms Agreement will have been, duly authorized by the Company
for issuance and sale pursuant to this Underwriting Agreement and such
Terms Agreement. Such Underwritten Securities, when issued and
delivered by the Company pursuant to this Underwriting Agreement and
such Terms Agreement against payment of the consideration therefor
specified in such Terms Agreement, will be validly issued, fully paid
and non-assessable. The issuance of such Underwritten Securities will
not be issued in violation of any preemptive or other similar rights
arising by operation of law, under the charter and by-laws of the
Company or under any agreement to which the Company or any Subsidiary is
a party, or otherwise.
(11) Authorization of Preferred Stock. If the Underwritten
Securities being sold pursuant to the applicable Terms Agreement include
Preferred Stock, such Underwritten Securities have been, or as of the
date of such Terms Agreement will have been, duly authorized by the
Company for issuance and sale pursuant to this Underwriting Agreement
and such Terms Agreement. The applicable Preferred Stock, when issued
and delivered by the Company pursuant to this Underwriting Agreement and
such Terms Agreement against payment of the consideration therefor
specified in such Terms Agreement, will be validly issued, fully paid
and non-assessable and will not be issued in violation of any preemptive
or other similar rights arising by operation of law, under the charter
and by-laws of the Company or under any agreement to which the Company
or any Subsidiary is a party, or otherwise. The applicable Certificate
of Designations will be in full force and effect prior to the applicable
Closing Time for the offering of such Preferred Stock.
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<PAGE> 14
(12) Authorization of Senior Debt Securities and/or
Subordinated Debt Securities. If the Underwritten Securities being sold
pursuant to the applicable Terms Agreement include Senior Debt
Securities and/or Subordinated Debt Securities, such Underwritten
Securities have been, or as of the date of such Terms Agreement will
have been, duly authorized by the Company for issuance and sale pursuant
to this Underwriting Agreement and such Terms Agreement. Such
Underwritten Securities, when issued and authenticated in the manner
provided for in the applicable Indenture and delivered against payment
of the consideration therefor specified in such Terms Agreement, will
constitute valid and legally binding obligations of the Company,
enforceable against the Company in accordance with their terms, except
as the enforcement thereof may be limited by bankruptcy, moratorium,
insolvency or other similar laws generally affecting creditors' rights.
Such Underwritten Securities will be in the form contemplated by, and
will be entitled to the benefits of, the applicable Indenture.
(13) Authorization of the Indentures. If the Underwritten
Securities being sold pursuant to the applicable Terms Agreement include
Senior Debt Securities and/or Subordinated Debt Securities or if
Preferred Stock is convertible into Debt Securities, each applicable
Indenture has been, or prior to the issuance of the Debt Securities
thereunder will have been, duly authorized, executed and delivered by
the Company and, upon such authorization, execution and delivery, will
constitute a valid and legally binding agreement of the Company,
enforceable against the Company in accordance with its terms, except as
the enforcement thereof may be limited by bankruptcy, moratorium,
insolvency or other similar laws generally affecting creditors' rights.
(14) Authorization of Warrants. If the Underwritten Securities
being sold pursuant to the applicable Terms Agreement include Warrants,
such Underwritten Securities have been, or as of the date of such Terms
Agreement will have been, duly authorized by the Company for issuance
and sale pursuant to this Underwriting Agreement and such Terms
Agreement. Such Underwritten Securities, when issued and authenticated
in the manner provided for, the applicable Warrant Agreement and
delivered against payment of the consideration therefor specified in
such Terms Agreement, will constitute valid and legally binding
obligations of the Company, entitled to the benefits provided by such
Warrant Agreement and enforceable against the Company in accordance with
their terms, except as enforcement thereof may be limited by bankruptcy,
moratorium or other similar laws generally affecting creditors' rights.
(15) Authorization of Warrant Agreement. If the Underwritten
Securities being sold pursuant to the applicable Terms Agreement include
Warrants, each applicable Warrant Agreement has been, or prior to the
issuance of such Underwritten Securities will have been, duly
authorized, executed and delivered by the Company and, upon such
authorization, execution and delivery, will constitute a valid and
legally binding agreement of the Company, enforceable against the
Company in accordance with its terms, except as enforcement thereof may
be limited by bankruptcy, moratorium, insolvency or other similar laws
generally affecting creditors' rights.
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<PAGE> 15
(16) Authorization of Underlying Securities. If the Underlying
Securities related to the Underwritten Securities being sold pursuant to
the applicable Terms Agreement include Common Stock or Preferred Stock,
such Underlying Securities have been, or as of the date of such Terms
Agreement will have been, duly authorized and reserved for issuance by
the Company upon exercise of the Common Stock Warrants or Preferred
Stock Warrants, as applicable, or upon conversion of the related
Preferred Stock, Senior Debt Securities or Subordinated Debt Securities,
as applicable. If the Underlying Securities include Common Stock or
Preferred Stock, such Underlying Securities, when issued upon such
exercise or conversion, as applicable, will be validly issued, fully
paid and non-assessable and will not be issued in violation of any
preemptive or other similar rights arising by operation of law, under
the charter and by-laws of the Company or under any agreement to which
the Company or any Subsidiary is a party, or otherwise. If the
Underlying Securities related to the Underwritten Securities being sold
pursuant to the applicable Terms Agreement include Senior Debt
Securities and/or Subordinated Debt Securities, such Underlying
Securities have been, or as of the date of such Terms Agreement will
have been, duly authorized for issuance by the Company upon the exercise
of the Debt Security Warrants or upon conversion of the related
Preferred Stock, as applicable. Such Underlying Securities, when issued
and authenticated in the manner provided for in the applicable Indenture
and delivered in accordance with the terms of the Debt Securing Warrants
or the related Preferred Stock, as applicable, will constitute valid and
legally binding obligations of the Company, enforceable against the
Company in accordance with their terms, except as the enforcement
thereof may be limited by bankruptcy, moratorium, insolvency or other
similar laws generally affecting creditors' rights.
(17) Descriptions of the Underwritten Securities, Underlying
Securities, Indentures and Warrant Agreement. The Underwritten
Securities being sold pursuant to the applicable Terms Agreement as of
the date of the Prospectus, and any Underlying Securities, when issued
and delivered in accordance with the terms of the related Underwritten
Securities, will conform in all material respects to the statements
relating thereto contained or incorporated by reference in the
Prospectus.
(18) Absence of Defaults and Conflicts. Neither the Company
nor any of its Subsidiaries is in violation of its charter, by-laws,
certificate of limited partnership or partnership agreement or other
organizational document as the case may be, or in default in the
performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, deed of trust,
loan or credit agreement, note, lease or other agreement or instrument
to which any such entity is a party or by which it or any of them may be
bound, or to which any of its property or assets or any Hotel may be
bound or subject (collectively, "Agreements and Instruments"), except
for such violations and defaults that would not have a Material Adverse
Effect. The execution, delivery and performance of this Underwriting
Agreement, and the applicable Terms Agreement and each applicable
Indenture and Warrant Agreement and any other agreement or instrument
entered into or issued or to be entered into or issued by the Company in
connection with the transactions contemplated hereby or thereby or the
material transactions contemplated in the Registration Statement and the
Prospectus and
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<PAGE> 16
the consummation of the transactions contemplated herein and the
material transactions contemplated in the Registration Statement and the
Prospectus (including the issuance and sale of the Underwritten
Securities and the use of the proceeds from the sale of the Underwritten
Securities as described under the caption "Use of Proceeds") and
compliance by the Company with its obligations hereunder and thereunder
have been duly authorized by all necessary corporate action and do not
and will not, whether with or without the giving of notice or passage of
time or both, conflict with or constitute a breach of, or default under,
or result in the creation or imposition of any lien, charge or
encumbrance upon any assets, properties, Hotels or other properties or
operations of the Company or any Subsidiary pursuant to, any Agreements
and Instruments or under any applicable law, statute, rule, regulation,
judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over
the Company or any Subsidiary or any of their assets, properties, Hotels
or operations, except in each case for such conflicts, breaches,
defaults, violations or liens, charges or encumbrances that would not
have a Material Adverse Effect, nor will such action result in any
violation of the provisions of the charter or bylaws of the Company or
the organizational documents of any Significant Subsidiary.
(19) Absence of Labor Dispute. No labor dispute with the
employees of the Company or any Subsidiary exists or, to the knowledge
of the Company, is imminent, and the Company is not aware of any
existing or imminent labor disturbance by the employees of any of its or
any Subsidiary's principal suppliers, manufacturers, customers or
contractors, which dispute or disturbance, in either case, may
reasonably be expected to have a Material Adverse Effect.
(20) Absence of Proceedings. There is no action, suit,
proceeding, inquiry or investigation before or by any court or
governmental agency or body, domestic or foreign, now pending, or to the
knowledge of the Company threatened, against or affecting the Company or
any Subsidiary, Hotel or any officer or director of the Company which is
required to be disclosed in the Registration Statement and the
Prospectus (other than as stated therein), or that, if determined
adversely to the Company, any Subsidiary, Hotel or such officer or
director, (A) could reasonably be expected to result in a Material
Adverse Effect or (B) which might reasonably be expected to materially
and adversely affect the consummation of this Underwriting Agreement,
the applicable Terms Agreement or any applicable Indenture or Warrant
Agreement or the transactions contemplated herein or therein or the
performance by the Company of its obligations hereunder and thereunder.
The aggregate of all pending legal or governmental proceedings to which
the Company or any Subsidiary is a party or of which any of their
respective assets, properties, Hotels or operations is the subject which
are not described in the Registration Statement and the Prospectus,
including ordinary routine litigation incidental to the business, could
not reasonably be expected to result in a Material Adverse Effect.
(21) Accuracy of Exhibits. There are no contracts or documents
which are required to be described or referred to in the Registration
Statement, the Prospectus or the documents incorporated by reference
therein or to be filed as exhibits thereto which
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<PAGE> 17
have not been so described, referred to and/or filed as required and the
descriptions thereof or references thereto are accurate in all material
respects.
(22) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order registration,
qualification or decree of, any court or governmental authority or
agency is necessary or required for the performance by the Company of
its obligations under this Underwriting Agreement and the applicable
Terms Agreement or in connection with the transactions contemplated
under this Underwriting Agreement, such Terms Agreement or any
applicable Indenture or Warrant Agreement, except such as have been
already obtained or as may be required under the 1933 Act and the 1933
Act Regulations or under state or foreign securities laws or real estate
syndication laws or under the by-laws and rules of the National
Association of Securities Dealers, Inc. (the "NASD").
(23) Possession of Intellectual Property. The Company and its
Subsidiaries own or possess, or can acquire on reasonable terms,
adequate patents, patent rights, licenses, inventions, copyrights, know-
how (including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures),
trademarks, service marks, trade names or other intellectual property
(collectively, "Intellectual Property") presently employed by or
necessary to each of them in connection with the business now operated
by them, and neither the Company nor any Subsidiary has received any
notice or is otherwise aware of any infringement of or conflict with
asserted rights of others with respect to any Intellectual Property or
of any facts which would render any Intellectual Property invalid or
inadequate to protect the interest of the Company or any Subsidiary and
which infringement or conflict (if the subject of any unfavorable
decision, ruling or finding) or invalidity or inadequacy, singly or in
the aggregate, would have a Material Adverse Effect.
(24) Possession of Licenses and Permits. The Company and its
Subsidiaries possess, or have made application for, such permits,
licenses, approvals, consents and other authorizations (collectively,
"Governmental Licenses") issued by the appropriate federal, state, local
or foreign regulatory agencies or bodies necessary to conduct the
business now operated by them, except for such Governmental Licenses the
failure of which to obtain, maintain or possess by the Company or any of
the Subsidiaries would not have a Material Adverse Effect. Neither the
Company nor any Subsidiary has received any notice of proceedings
relating to the revocation or modification of any such Governmental
Licenses which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would have a Material Adverse
Effect.
(25) Registration Rights. Except as disclosed in the
Prospectus, there are no persons with registration or other similar
rights to have any securities registered pursuant to the Registration
Statement or otherwise registered by the Company under the 1933 Act.
(26) Title to Property. The Company and its Subsidiaries have
good and marketable title or a valid leasehold estate, as the case may
be, to each of the Hotels and
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<PAGE> 18
other real property interests indicated in the Prospectus as owned or
leased by the Company (or the Subsidiaries), in each case free and clear
of Liens, except (A) as otherwise stated in the Registration Statement
and the Prospectus, (B) mortgages on each of the Hotels, (C) those which
would not have a Material Adverse Effect. Each of the Hotels complies
with all applicable codes, laws and regulations (including, without
limitation, building and zoning codes, laws and regulations and laws
relating to access to the Hotels), except for such failures to comply
that would not have a Material Adverse Effect. The Company has no
knowledge of, after due inquiry, any pending or threatened condemnation
proceeding, zoning change, or other proceeding or action that would have
a material adverse effect on the Hotels taken as a whole, or that would
have a Material Adverse Effect.
(27) Insurance. Each of the Company and each Subsidiary is
insured by insurers of recognized financial responsibility against such
losses and risks and in such amounts as are prudent and customary in the
businesses in which they are engaged; and the Company has no reason to
believe that it or any of its Subsidiaries will not be able to renew its
existing insurance coverage as and when such coverage expires or to
obtain similar coverage from similar insurers as may be necessary to
continue its businesses at a cost that would not have a Material Adverse
Effect, except as described in or contemplated by the Registration
Statement and the Prospectus.
(28) Investment Company Act. The Company and its Subsidiaries
are not, and upon the issuance and sale of the Underwritten Securities
as herein contemplated and the application of the net proceeds therefrom
as described in the Prospectus will not be required to register as an
"investment company" under the Investment Company Act of 1940, as
amended (the "1940 Act").
(29) Environmental Laws. Except as otherwise stated in the
Registration Statement and the Prospectus and except for activities,
conditions, circumstances, matters or violations that would not have a
Material Adverse Effect: (A) to the knowledge of the Company, after due
inquiry, the operations of the Company and its Subsidiaries are in
compliance with all Environmental Laws (as defined below) and all
requirements of applicable permits, licenses, approvals and other
authorizations issued pursuant to Environmental Laws; (B) to the
knowledge of the Company, after due inquiry, none of the Company or its
Subsidiaries has caused or suffered to occur any Release (as defined
below) of any Hazardous Substance (as defined below) into the
Environment (as defined below) on, in, under or from any Hotel or any
developed or undeveloped land held (at any time) by any of the Company
or its Subsidiaries, including, without limitation, any of the land
currently or previously operated as car wash facilities or a furniture
manufacturing company (all such developed or undeveloped land is
referred to herein as "Bristol Land"), and no condition exists on, in,
under or adjacent to any Hotel or Bristol Land that could result in the
incurrence of liabilities under, or any violations of, any Environmental
Law or give rise to the imposition of any Lien (as defined below), under
any Environmental Law; (C) none of the Company or its Subsidiaries has
received any written notice of a claim under or pursuant to any
Environmental Law or under common law pertaining to Hazardous Substances
on, in, under or originating from any Hotel or
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<PAGE> 19
Bristol Land; (D) none of the Company or its Subsidiaries has actual
knowledge of, after due inquiry, or received any written notice from any
Governmental Authority (as defined below) or other person claiming, any
violation of any Environmental Law or a determination to undertake
and/or request the investigation, remediation, clean-up or removal of
any Hazardous Substance released into the Environment on, in, under or
from any Hotel or Bristol Land; and (E) no Hotel or Bristol Land is
included or, to the knowledge of the Company, after due inquiry,
proposed for inclusion on the National Priorities List issued pursuant
to CERCLA (as defined below) by the United States Environmental
Protection Agency (the "EPA") or on the Comprehensive Environmental
Response, Compensation, and Liability Information System database
maintained by the EPA, and the Company has no actual knowledge, after
due inquiry, that any Hotel or Bristol Land has otherwise been
identified in a published writing by the EPA as a potential CERCLA
removal, remedial or response site or, to the knowledge of the Company,
after due inquiry, proposed for inclusion on any similar list of
potentially contaminated sites pursuant to any other Environmental Law.
As used herein, "Hazardous Substance" shall include any hazardous
substance, hazardous waste, toxic substance, pollutant, hazardous
material or similarly designated materials including, without
limitation, oil, petroleum or any petroleum-derived substance or waste,
asbestos or asbestos-containing materials, PCBs, pesticides, explosives,
radioactive materials, dioxins, urea formaldehyde insulation or any
constituent of any such substance, pollutant or waste which is
identified, regulated, prohibited or limited under any Environmental Law
(including, without limitation, materials listed in the United States
Department of Transportation Optional Hazardous Material Table, 49
C.F.R. Section 172.101, or in the EPA's List of Hazardous Substances
and Reportable Quantities, 40 C.F.R. Part 302) as the same may now or
hereafter be amended; "Environment" shall mean any surface water,
drinking water, ground water, land surface, subsurface strata, river
sediment, buildings, structures, and ambient, workplace and indoor and
outdoor air; "Environmental Law" shall mean the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as
amended (42 U.S.C. Sections 9601, et seq.) ("CERCLA"), the Resource
Conservation and Recovery Act of 1976, as amended (42 U.S.C. Sections
6901, et seq.), the Clean Air Act, as amended (42 U.S.C. Sections 7401,
et seq.), the Clean Water Act, as amended (33 U.S.C. Sections 1251, et
seq.), the Toxic Substances Control Act, as amended (15 U.S.C. Sections
2601, et seq.), the Occupational Safety and Health Act of 1970, as
amended (29 U.S.C. Sections 651, et seq.), the Hazardous Materials
Transportation Act, as amended (49 U.S.C. Sections 1801, et seq.), and
all other federal, state and local laws, ordinances, regulations, rules
and orders relating to the protection of the environments or of human
health from environmental effects; "Governmental Authority" shall mean
any federal, state or local governmental office, agency or authority
having the duty or authority to promulgate, implement or enforce any
Environmental Law; "Lien" shall mean, with respect to any Hotel or
Bristol Land, any mortgage, deed of trust, pledge, security interest,
lien, encumbrance, penalty, fine, charge, assessment, judgment or other
liability in, on or affecting such Hotel or Bristol Land, as the case may
be; and "Release" shall mean any spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, leaching, dumping,
emanating or disposing of any Hazardous Substance into the Environment,
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<PAGE> 20
including, without limitation, the abandonment or discard of barrels,
containers, tanks (including, without limitation, underground storage
tanks) or other receptacles containing or previously containing any
Hazardous Substance or any release, emission, discharge or similar term,
as those terms are defined or used in any Environmental Law.
(30) Tax Returns. The Company has filed all federal, state,
local and foreign income tax returns which have been required to be
filed (except in any case in which an extension has been granted or the
failure to so file would not have a Material Adverse Effect) and has
paid all taxes required to be paid and any other assessment, fine or
penalty levied against it, to the extent that any of the foregoing is
due and payable, except, in all cases, for any such tax, assessment,
fine or penalty that is being contested in good faith (except in any
case in which the failure to so pay would not have a Material Adverse
Effect).
(31) Listing. If the Underwritten Securities are Common Stock,
the Common Stock will be approved for listing on the New York Stock
Exchange or such other exchange or automated quotation system specified
in the Prospectus on each Representation Date. If the Underwritten
Securities are securities other than Common Stock, then such
Underwritten Securities will be listed on the stock exchange or
automated quotation system, if any, designated in the applicable Terms
Agreement on each Representation Date.
(32) Beneficial Owners, Directors and Officer of the Company.
To the knowledge of the Company, after due inquiry, no person who in
the aggregate beneficially owns 5% of more of the Common Stock, director
of the Company or officer of the Company is a member of the NASD, a
controlling stockholder of a member, or an affiliate of a member, or of
an underwriter or related person of a member or underwriter with respect
to any proposed offering under this Underwriting Agreement and any
applicable Terms Agreement. To the knowledge of the Company, after due
inquiry, no beneficial owner of the Company's unregistered securities
acquired within the 12 months prior to the filing of the Registration
Statement, or any amendments thereto, or to the filing of the
Prospectus, or any amendment or supplement thereto, has any direct or
indirect affiliation or association with any NASD member.
(33) Compliance with Cuba Act. The Company has complied with,
and is and will be in compliance with, the provisions of that certain
Florida act relating to disclosure of doing business with Cuba, codified
as Section 517.075 of the Florida statutes, and the rules and
regulations thereunder or is exempt therefrom.
(b) Officers' Certificates. Any certificate signed by any officer of
the Company or any Subsidiary and delivered to any Underwriter or to counsel
for the Underwriters in connection with the offering of the Underwritten
Securities shall be deemed a representation and warranty by the Company or such
Subsidiary, as the case may be, to each Underwriter as to the matters covered
thereby on the date of such certificate and, unless subsequently amended or
supplemented, at each Representation Date subsequent thereto.
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<PAGE> 21
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Underwritten Securities. The several commitments of the
Underwriters to purchase the Underwritten Securities pursuant to the applicable
Terms Agreement shall be deemed to have been made on the basis of the
representations and warranties herein contained and shall be subject to the
terms and conditions herein set forth.
(b) Option Underwritten Securities. In addition, subject to the
terms and conditions herein set forth, the Company may grant, if so provided in
the applicable Terms Agreement, an option to the Underwriters, severally and
not jointly, to purchase up to the number or aggregate principal amount, as the
case may be, of the Option Underwritten Securities set forth therein at a price
per Option Underwritten Security equal to the price per Initial Underwritten
Security. Such option, if granted, will expire 30 days after the date of such
Terms Agreement, and may be exercised in whole or in part from time to time
only for the purpose of covering over-allotments which may be made in
connection with the offering and distribution of the Initial Underwritten
Securities upon notice by the Managing Underwriter to the Company setting forth
the number or aggregate principal amount, as the case may be, of Option
Underwritten Securities as to which the several Underwriters are then
exercising the option and the time, date and place of payment and delivery for
such Option Underwritten Securities. Any such time and date of payment and
delivery (each, a "Date of Delivery") shall be determined by the Managing
Underwriter, but shall not be later than seven full business days after the
exercise of said option, nor in any event prior to the Closing Time, unless
otherwise agreed upon by the Managing Underwriter and the Company. If the
option is exercised as to all or any portion of the Option Underwritten
Securities, each of the Underwriters, severally and not jointly, will purchase
that proportion of the total number or aggregate principal amount, as the case
may be, of Option Underwritten Securities then being purchased which the number
or aggregate principal amount, as the case may be, of Initial Underwritten
Securities each such Underwriter has severally agreed to purchase as set forth
in such Terms Agreement bears to the total number or aggregate principal
amount, as the case may be, of Initial Underwritten Securities, subject to such
adjustments as the Managing Underwriter in its discretion shall make to
eliminate any sales or purchases of a fractional number or aggregate principal
amount, as the case may be, of Option Underwritten Securities.
(c) Payment. Payment of the purchase price for, and delivery of, the
Initial Underwritten Securities shall be made at the office of counsel to the
Underwriter, or at such other place as shall be agreed upon by the Managing
Underwriter and the Company, at 9:00 A.M. (Eastern time) on the third (fourth,
if the pricing occurs after 4:30 P.M. (Eastern time) on any given day) business
day after the date of the applicable Terms Agreement (unless postponed in
accordance with the provisions of Section 10 hereof), or such other time not
later than ten business days after such date as shall be agreed upon by the
Managing Underwriter and the Company (such time and date of payment and
delivery being herein called "Closing Time"). In addition, in the event that
the Underwriters have exercised their option, if any, to purchase any or all of
the Option Underwritten Securities, payment of the purchase price for, and
delivery of such Option Underwritten Securities, shall be made at the above-
mentioned offices of counsel to the Underwriter, or at such other place as
shall be agreed upon by the Managing Underwriter
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<PAGE> 22
and the Company, on the relevant Date of Delivery as specified in the notice
from the Managing Underwriter to the Company.
Payment shall be made to the order of the Company by wire
transfer of immediately available funds to a bank account designated by the
Company, against delivery to the Managing Underwriter for the respective
accounts of the Underwriters of the Underwritten Securities to be purchased by
them. It is understood that each Underwriter has authorized the Managing
Underwriter, for its account, to accept delivery of, receipt for, and make
payment of the purchase price for, the Underwritten Securities which it has
severally agreed to purchase. The Managing Underwriter, individually and not
as representative of the Underwriters, may (but shall not be obligated to) make
payment of the purchase price for the Underwritten Securities to be purchased
by any Underwriter whose funds have not been received by the Closing Time or
the relevant Date of Delivery, as the case may be, but such payment shall not
relieve such Underwriter from its obligations hereunder.
(d) Denominations; Registration. The Underwritten Securities or
certificates for the Underwritten Securities, as applicable, shall be in such
denominations and registered in such names as the Managing Underwriter may
request in writing at least two full business days prior to the Closing Time or
the relevant Date of Delivery, as the case may be. The Underwritten Securities
or certificates for the Underwritten Securities, as applicable, will be made
available for examination and packaging by the Managing Underwriter in The City
of New York not later than 10:00 A.M. (Eastern time) on the business day prior
to the Closing Time or the relevant Date of Delivery, as the case may be.
SECTION 3. Covenants of the Company.
The Company covenants with the Managing Underwriter and with each
Underwriter participating in the offering of Underwritten Securities, as
follows:
(a) Compliance with Securities Regulations and Commission Requests.
The Company, subject to Section 3(b), will comply with the requirements of Rule
430A of the 1933 Act Regulations and/or Rule 434 of the 1933 Act Regulations,
if and as applicable, and will promptly notify the Representative(s) of (i) the
effectiveness of any post-effective amendment to the Registration Statement or
the filing of any supplement or amendment to the Prospectus, (ii) the receipt
of any comments from the Commission relating to the Registration Statement or
the Prospectus, (iii) any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus or for
additional information, and (iv) the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or of any
order preventing or suspending the use of any preliminary prospectus, or of the
suspension of the qualification of the Underwritten Securities for offering or
sale in any jurisdiction, or of the initiation or threatening of any
proceedings for any of such purposes. The Company will promptly effect the
filings necessary pursuant to Rule 424 and will take such steps as it deems
necessary to ascertain promptly whether the Prospectus transmitted for filing
under Rule 424 was received for filing by the Commission and, in the event that
it was not, it will promptly file the Prospectus. The Company will use
reasonable efforts to prevent
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the issuance of any stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
(b) Filing of Amendments. The Company will give the Managing
Underwriter notice of its intention to file or prepare any amendment to the
Registration Statement (including any filing under Rule 462(b) of the 1933 Act
Regulations), any Term Sheet or any amendment, supplement or revision to either
the prospectus included in the Registration Statement at the time it became
effective or to the Prospectus, whether pursuant to the 1933 Act, the 1934 Act
or otherwise, will furnish the Managing Underwriter with copies of any such
documents a reasonable amount of time prior to such proposed filing or use, as
the case may be, and will not file or use any such document to which the
Managing Underwriter or counsel for the Underwriters shall object.
(c) Delivery of Registration Statements. The Company has furnished
or will deliver to the Managing Underwriter and counsel for the Underwriters,
without charge, copies of the Registration Statement as originally filed and of
each amendment thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated or deemed to be incorporated by
reference therein) and signed copies of all consents and certificates of
experts, and will also deliver to the Managing Underwriter and counsel for the
Underwriters, without charge, as many conformed copies of the Registration
Statement as originally filed and of each amendment thereto for each of the
Underwriters as may be reasonably requested by the Managing Underwriter.
Copies of the Registration Statement and each amendment thereto furnished to
the Underwriters will be identical to the electronically transmitted copies
thereof filed with the Commission pursuant to EDGAR, except to the extent
permitted by Regulation S-T.
(d) Delivery of Prospectuses. The Company will deliver to the
Managing Underwriter, on behalf of each Underwriter, without charge, as many
copies of each preliminary prospectus as the Managing Underwriter may
reasonably request, and the Company hereby consents to the use of such copies
for purposes permitted by the 1933 Act. The Company will furnish to each
Underwriter, without charge, during the period when the Prospectus is required
to be delivered under the 1933 Act or the 1934 Act, such number of copies of
the Prospectus as such Underwriter may reasonably request. The Prospectus and
any amendments or supplements thereto furnished to the Underwriters will be
identical to the electronically transmitted copies thereof filed with the
Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company will
comply with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the
1934 Act Regulations so as to permit the completion of the distribution of the
Underwritten Securities as contemplated in this Underwriting Agreement and the
applicable Terms Agreement and in the Registration Statement and the
Prospectus. If at any time when the Prospectus is required by the 1933 Act or
the 1934 Act to be delivered in connection with sales of the Securities, any
event shall occur or condition shall exist as a result of which it is
necessary, in the opinion of counsel for the Underwriters or for the Company,
to amend the Registration Statement in order that the Registration Statement
will not contain an untrue statement of a material fact or omit to state a
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<PAGE> 24
material fact required to be stated therein or necessary to make the statements
therein not misleading or to amend or supplement the Prospectus in order that
the Prospectus will not include an untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements therein not
misleading in the light of the circumstances existing at the time it is
delivered to a purchaser, or if it shall be necessary, in the opinion of such
counsel, at any such time to amend the Registration Statement or amend or
supplement the Prospectus in order to comply with the requirements of the 1933
Act or the 1933 Act Regulations, the Company will promptly prepare and file
with the Commission, subject to Section 3(b), such amendment or supplement (in
form and substance reasonably satisfactory to counsel for the Underwriters) as
may be necessary to correct such statement or omission or to make the
Registration Statement or the Prospectus comply with such requirements, and the
Company will furnish to the Underwriters and counsel for the Underwriters,
without charge, such number of copies of such amendment or supplement as the
Underwriters may reasonably request.
(f) Blue Sky Qualifications. The Company will use its best efforts,
in cooperation with the Underwriters, to qualify the Underwritten Securities
and any related Underlying Securities for offering and sale under the
applicable securities laws and real estate syndication laws of such states and
other jurisdictions (domestic or foreign) as the Managing Underwriter may
reasonably designate and to maintain such qualifications in effect in order to
permit the distribution of the Underwritten Securities; provided, however, that
the Company shall not be obligated to file any general consent to service of
process or to qualify or register as a foreign corporation or as a dealer in
securities in any jurisdiction in which it is not so qualified or registered or
to subject itself to taxation in respect of doing business in any jurisdiction
in which it is not otherwise so subject or provide any undertaking or make any
change in its charter, certificate of incorporation, by-laws or other governing
documents that the Board of Directors of the Company reasonably determines to
be contrary to the best interests of the Company and its shareholders.
(g) Earnings Statement. The Company will timely file such reports
pursuant to the 1934 Act as are necessary in order to make generally available
to its securityholders as soon as practicable (but not later than 90 days after
the close of the Company's current fiscal year) an earnings statement (in form
and in a manner complying with Rule 158 of the 1933 Act Regulations) for the
purposes of, and to provide the benefits contemplated by, the last paragraph of
Section 11(a) of the 1933 Act.
(h) Reservation of Securities. If the applicable Terms Agreement
specifies that any related Underlying Securities include Common Stock or
Preferred Stock, the Company will reserve and keep available at all times, free
of preemptive or other similar rights, a sufficient number of shares of Common
Stock and/or Preferred Stock, as applicable, for the purpose of enabling the
Company to satisfy any obligations to issue such Underlying Securities upon
exercise of the related Warrants, as applicable, or upon conversion of the
Preferred Stock, Senior Debt Securities or Subordinated Debt Securities, as
applicable.
(i) Use of Proceeds. The Company will use the net proceeds received
by it from the sale of the Underwritten Securities in the manner specified in
the Prospectus under "Use of Proceeds."
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<PAGE> 25
(j) Listing. The Company will use its best efforts to effect and
maintain the listing of the Underwritten Securities and any related Underlying
Securities, prior to the Closing Time, on the New York Stock Exchange, and/or
such other stock exchange or automated quotation system designated in the
applicable Terms Agreement, and will file with the New York Stock Exchange,
and/or such other stock exchange or automated quotation system designated in
the applicable Terms Agreement, all documents and notices required by the New
York Stock Exchange, and/or such other stock exchange or automated quotation
system designated in the applicable Terms Agreement, of companies that have
securities listed on such exchange.
(k) Restriction on Sale of Securities. Between the date of the
applicable Terms Agreement and the Closing Time and/or such other date
specified in such Terms Agreement, the Company and any other entity or person
named in the applicable Terms Agreement will not, without the prior written
consent of the Managing Underwriter, directly or indirectly, issue, sell, offer
to sell, grant any option for the sale of, or otherwise dispose of, the
securities specified in such Terms Agreement subject to any conditions listed
therein.
(l) Reporting Requirements. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, will
file all documents required to be filed with the Commission pursuant to the
1934 Act within the time periods required by the 1934 Act and the 1934 Act
Regulations.
(m) Exchange Act Filings. During the period from each Closing Time
until three years after such Closing Time, the Company will deliver to the
Managing Underwriter, (i) promptly upon their becoming available, copies of all
current, regular and periodic reports of the Company mailed to its stockholders
or filed with any securities exchange or with the Commission or any
governmental authority succeeding to any of the Commission's functions, and
(ii) such other information concerning the Company as the Managing Underwriter
may reasonably request.
SECTION 4. Payment of Expenses.
(a) Expenses. The Company will pay all expenses incident to the
performance of its obligations under this Underwriting Agreement and each
applicable Terms Agreement, including (i) the preparation, printing and filing
of the Registration Statement (including financial statements and exhibits) as
originally filed and of each amendment thereto, (ii) the preparation, printing
and delivery to the Underwriters of this Underwriting Agreement, any Terms
Agreement, the Indentures and any Warrant Agreement, (iii) the preparation,
issuance and delivery of the Underwritten Securities and any related Underlying
Securities, any certificates for the Underwritten Securities or such Underlying
Securities to the Underwriters, (iv) the fees and disbursements of the
Company's counsel, accountants and other advisors or agents (including transfer
agents and registrars), as well as the fees and disbursements of the Trustees,
and any Warrant Agent, and their respective counsel, (v) the qualification of
the Underwritten Securities and any related Underlying Securities under state
securities and real estate syndication laws in accordance with the provisions
of Section 3(f) hereof, including filing fees and the reasonable fees and
disbursements of counsel for the Underwriters in connection therewith and in
connection with the preparation, printing and delivery of the Blue Sky Survey,
(vi) the printing
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<PAGE> 26
and delivery to the Underwriters of copies of each preliminary prospectus, any
Term Sheet, the Registration Statement (including financial statements and
exhibits) as originally filed and of each amendment thereto and the Prospectus
and any amendments or supplements thereto, (vii) the fees charged by nationally
recognized statistical rating organizations for the rating of the Underwritten
Securities and any related Underlying Securities, if applicable, (viii) the
fees and expenses incurred with respect to the listing of the Underwritten
Securities and any related Underlying Securities, if applicable, (ix) the
filing fees incident to the review, if any, by the NASD of the terms of the
sale of the Underwritten Securities and any related Underlying Securities, and
(x) the fees and expenses of any Underwriter acting in the capacity of a
"qualified independent underwriter" (as defined in Section 2(l) of Schedule E
of the by-laws of the NASD), if specified in the applicable Terms Agreement and
(xi) any transfer taxes imposed on the sale of the Underwritten Securities to
the several Underwriters.
(b) Termination of Agreement. If the applicable Terms Agreement is
terminated by the Managing Underwriter in accordance with the provisions of
Section 5 or Section 9(a)(i) hereof, the Company shall reimburse the
Underwriters for all of their out-of-pocket expenses, including the reasonable
fees and disbursements of counsel for the Underwriters.
SECTION 5. Conditions of Underwriters' Obligations.
The obligations of the Underwriters to purchase and pay for the
Underwritten Securities pursuant to the applicable Terms Agreement are subject
to the accuracy of the representations and warranties of the Company contained
in Section 1 hereof or in certificates of any officer or authorized
representative of the Company delivered pursuant to the provisions hereof, to
the performance by the Company of its covenants and other obligations
hereunder, and to the following further conditions:
(a) Effectiveness of Registration Statement. The Registration
Statement, including any Rule 462(b) Registration Statement, has become
effective under the 1993 Act and no stop order suspending the effectiveness of
the Registration Statement shall have been issued under the 1933 Act or
proceedings therefor initiated or threatened by the Commission or the state
securities authority of any jurisdiction, and any request on the part of the
Commission or the state securities authority of any jurisdiction for additional
information shall have been complied with to the reasonable satisfaction of
counsel to the Underwriters. A prospectus containing information relating to
the description of the Underwritten Securities and any related Underlying
Securities, the specific method of distribution and similar matters shall have
been filed with the Commission in accordance with Rule 424(b)(1), (2), (3), (4)
or (5), as applicable (or any required post-effective amendment providing such
information shall have been filed and declared effective in accordance with the
requirements of Rule 430A), or, if the Company has elected to rely upon Rule
434 of the 1933 Act Regulations, a Term Sheet including the Rule 434
Information shall have been filed with the Commission in accordance with Rule
424(b)(7).
(b) Opinions of Counsel for Company. At Closing Time, the Managing
Underwriter shall have received the favorable opinions, dated as of Closing
Time, of each of Jones, Day, Reavis & Pogue, counsel for the Company, Munsch
Hardt Kopf Harr & Dinan, counsel for the Company, and Joel Eastman, General
Counsel of the Company, in form and substance
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<PAGE> 27
satisfactory to counsel for the Underwriters, together with signed or
reproduced copies of such letter for each of the other Underwriters, to the
effect set forth in Exhibits B-1, B-2, B-3 and B-4 hereto, as applicable, and
to such further effect as counsel to the Underwriters may reasonably request.
(c) Opinion of Counsel for Underwriters. At Closing Time, the
Managing Underwriter shall have received the favorable opinion, dated as of
Closing Time, of counsel for the Underwriters, together with signed or
reproduced copies of such letter for each of the other Underwriters, with
respect to the incorporation of the Company, the validity of the Underwritten
Securities, the authorization of the Terms Agreement, the Registration
Statement, the Prospectus and other related matters that the Managing
Underwriter may reasonably require. In giving such opinion, such counsel may
rely, as to all matters governed by the laws of jurisdictions other than the
law of the State of New York, the federal law of the United States and the
General Corporation Law of the State of Delaware, upon the opinions of counsel
satisfactory to the Managing Underwriter. Such counsel may also state that,
insofar as such opinion involves factual matters, they have relied, to the
extent they deem proper, upon certificates of officers or authorized
representatives of the Company and certificates of public officials.
(d) Material Adverse Change; Officers' Certificate. At Closing Time,
there shall not have been, since the date of the applicable Terms Agreement or
since the respective dates as of which information is given in the Prospectus,
any Material Adverse Change, and the Managing Underwriter shall have received a
certificate of the President or a Vice President of the Company and of the
chief financial officer or chief accounting officer of the Company, dated as of
Closing Time, to the effect that (i) there has been no such Material Adverse
Change, and (ii) the representations and warranties in Section 1 are true and
correct with the same force and effect as though expressly made at and as of
the Closing Time, and with respect to such other matters as the Managing
Underwriter or counsel for the Underwriters may reasonably request.
(e) Accountants' Letters. At the time of the execution of the
applicable Terms Agreement, the Managing Underwriter shall have received from
Arthur Andersen LLP, as applicable, a letter dated such date, in form and
substance satisfactory to the Managing Underwriter and counsel to the
Underwriters, together with signed or reproduced copies of such letter for each
of the other Underwriters, containing statements and information of the type
ordinarily included in accountants' "comfort letters" as set forth in the
American Institute of Certified Public Accountants' Statement on Accounting
Standards 72 to underwriters with respect to the financial statements and
certain financial information contained in the Registration Statement and the
Prospectus.
In addition, at the time of the execution of the applicable Terms
Agreement, the Managing Underwriter shall have received from such other
independent accountants, as applicable, a letter dated such date, in form and
substance satisfactory to the Managing Underwriter and counsel to the
Underwriters to the effect that: (i) they are independent accountants within
the meaning of the 1933 Act and the 1933 Act Regulations; and (ii) it is their
opinion that the financial statements audited by them and included in the
Registration Statement comply as to form in all material respects with the
applicable accounting requirements of the 1933 Act and the 1933 Act Regulations
with respect to registration statements on Form S-3; and
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<PAGE> 28
(iii) such other matters as may be reasonably requested by the Managing
Underwriter or counsel to the Underwriters.
(f) Bring-down Accountants' Letters. At Closing Time, the Managing
Underwriter shall have received from Arthur Andersen LLP, and such other
accountants, as applicable, a letter, dated as of Closing Time, to the effect
that they reaffirm the statements made in the letter and letters furnished
pursuant to subsection (e) of this Section 5, except that the specified date
referred to shall be a date not more than five business days prior to the
Closing Time.
(g) Ratings. If the Underwritten Securities include Debt Securities,
since the time of execution of the applicable Terms Agreement, there shall not
have occurred a downgrading in the rating assigned to such Underwritten
Securities or any other of the Company's debt securities by any "nationally
recognized statistical organization," as defined by the Commission for purposes
of Rule 436(g)(2) of the 1933 Act Regulations, and no such rating organization
shall have publicly announced that it has under surveillance or review, with
possible negative implications, its rating of the Underwritten Securities or
any of the Company's other debt securities. The Company shall have delivered
to the Managing Underwriter a letter, dated as of such date, from each such
rating organization, or other evidence satisfactory to the Managing
Underwriter, confirming that the Underwritten Securities have such ratings.
(h) Approval of Listing. At Closing Time, the Underwritten
Securities shall be listed or shall have been approved for listing, subject
only to official notice of issuance, if and as specified in the applicable
Terms Agreement.
(i) Lock-up Agreements. On the date of the applicable Terms
Agreement, the Managing Underwriter shall have received, in form and substance
satisfactory to it, each lock-up agreement, if any, specified in such Terms
Agreement as being required to be delivered by the persons listed therein.
(j) Over-Allotment Option. In the event that the Underwriters are
granted an over-allotment option by the Company in the applicable Terms
Agreement and the Underwriters exercise their option to purchase all or any
portion of the Option Underwritten Securities, the representations and
warranties of the Company contained herein and the statements in any
certificates furnished by the Company hereunder shall be true and correct as of
each Date of Delivery, and, at the relevant Date of Delivery, the Managing
Underwriter shall have received:
(1) A certificate dated such Date of Delivery, of the
President or a Vice President of the Company and the chief financial
officer or chief accounting officer of the Company, confirming that the
certificate delivered at the Closing Time pursuant to Section 5(d)
hereof remains true and correct as of such Date of Delivery.
(2) The favorable opinions of each of Jones, Day, Reavis &
Pogue, counsel for the Company, Munsch Hardt Kopf Harr & Dinan, counsel
for the Company, and Joel Eastman, General Counsel of the Company, in
form and substance satisfactory to counsel for the Underwriters, dated
such Date of Delivery, relating to the Option Underwritten
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Securities and otherwise to the same effect as the opinions required by
Section 5(b) hereof.
(3) The favorable opinion of counsel for the Underwriters,
dated such Date of Delivery, relating to the Option Underwritten
Securities and otherwise to the same effect as the opinion required by
Section 5(c) hereof.
(4) A letter from Arthur Andersen LLP and such other
accountants, as applicable, in form and substance satisfactory to the
Managing Underwriter and dated such Date of Delivery, substantially in
the same form and substance as the letters furnished to the Managing
Underwriter pursuant to Section 5(f) hereof, except that the "specified
date" on the letters furnished pursuant to this paragraph shall be a
date not more than five business days prior to such Date of Delivery.
(k) Additional Documents. At Closing Time and at each Date of
Delivery, counsel for the Underwriters shall have been furnished with such
documents and opinions as they may reasonably require for the purpose of
enabling them to pass upon the issuance and sale of the Underwritten Securities
as herein contemplated, or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the conditions,
herein contained; and all proceedings taken by the Company in connection with
the issuance and sale of the Underwritten Securities as herein contemplated
shall be satisfactory in form and substance to the Managing Underwriter and
counsel for the Underwriters.
(l) Termination of Terms Agreement. If any condition specified in
this Section 5 shall not have been fulfilled when and as required to be
fulfilled, the applicable Terms Agreement (or, with respect to the
Underwriters' exercise of any applicable over-allotment option for the purchase
of Option Underwritten Securities on a Date of Delivery after the Closing Time,
the obligations of the Underwriters to purchase the Option Underwritten
Securities on such Date of Delivery) may be terminated by the Managing
Underwriter by notice to the Company at any time at or prior to the Closing
Time (or such Date of Delivery, as applicable), and such termination shall be
without liability of any party to any other party except as provided in Section
4 and except that Sections 4, 6, 7 and 8 shall survive any such termination and
remain in full force and effect.
SECTION 6. Indemnification.
(a) Indemnification of Underwriters. The Company agrees to indemnify
and hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act as follows:
(1) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained or incorporated by
reference in the Registration Statement (or any amendment thereto),
including the Rule 430A Information and the Rule 434 Information deemed
to be a part thereof, if applicable, or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary
to make the statements
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therein not misleading or arising out of any untrue statement or alleged
untrue statement of a material fact included or incorporated by
reference in any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto), or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading;
(2) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or proceeding
by any governmental agency or body, commenced or threatened, or of any
claim whatsoever for which indemnification is provided under subsection
(a)(1) above if such settlement is effected with the written consent of
the indemnifying party; and
(3) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by the Managing
Underwriter), reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever for which indemnification is provided under subsection (a)(1)
or (a)(2) above, to the extent that any such expense is not paid under
subsection (a)(1) or (a)(2) above;
provided, however, that this indemnity agreement shall not apply to any
loss, liability, claim, damage or expense to the extent arising out of
any untrue statement or omission or alleged untrue statement or omission
made in reliance upon and in conformity with written information
furnished to the Company by any Underwriter through the Managing
Underwriter expressly for use in the Registration Statement (or any
amendment thereto), including the 430A Information and the Rule 434
Information deemed to be a part thereof, if applicable, or any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto); and provided, further, that this indemnity agreement with
respect to any preliminary prospectus shall not inure to the benefit of
any Underwriter from whom the person asserting any such losses,
liabilities, claims, damages or expenses purchased Securities, or any
person controlling such Underwriter, if a copy of the Prospectus (as
then amended or supplemented if the Company shall have furnished any
such amendments or supplements thereto) was not sent or given by or on
behalf of such Underwriter to such person, if such is required by law,
at or prior to the written confirmation of the sale of such Securities
to such person and if the Prospectus (as so amended or supplemented)
would have corrected the defect giving rise to such loss, liability,
claim, damage or expense.
(b) Indemnification of Company, Directors and Officers. Each
Underwriter severally agrees to indemnify and hold harmless the Company, each
of the Company's directors, each of its officers who signed the Registration
Statement, and each person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act against any and all
loss, liability, claim, damage and expense described in the indemnity contained
in subsection (a) of this Section, as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto), including the Rule 430A
Information and the Rule 434
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Information deemed to be a part thereof, if applicable, or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with written information furnished to the
Company by such Underwriter through the Managing Underwriter expressly for use
in the Registration Statement (or any amendment thereto) or such preliminary
prospectus or the Prospectus (or any amendment or supplement thereto).
(c) Actions against Parties; Notification. Each indemnified party
shall give notice as promptly as reasonably practicable to each indemnifying
party of any action commenced against it in respect of which indemnity may be
sought hereunder, but failure to so notify an indemnifying party shall not
relieve such indemnifying party from any liability hereunder to the extent it
is not materially prejudiced as a result thereof and in any event shall not
relieve it from any liability which it may have otherwise than on account of
this indemnity agreement. In the case of parties indemnified pursuant to
Section 6(a) above, counsel to the indemnified parties shall be selected by the
Managing Underwriter, and, in the case of parties indemnified pursuant to
Section 6(b) above, counsel to the indemnified parties shall be selected by the
Company. An indemnifying party may participate at its own expense in the
defense of any such action. If it so elects within a reasonable time after
receipt of such notice, an indemnifying party, jointly with any other
indemnifying parties receiving such notice, may assume the defense of such
action with counsel chosen by it and reasonably approved by the indemnified
parties defendant in such action, unless such indemnified parties reasonably
object to such assumption on the ground that there may be legal defenses
available to them which are different from or in addition to those available to
such indemnifying party. If an indemnifying party assumes the defense of such
action, the indemnifying parties shall not be liable for any fees and expenses
of counsel for the indemnified parties incurred thereafter in connection with
such action. In no event shall the indemnifying parties be liable for fees and
expenses of more than one counsel (in addition any local counsel) separate from
their own counsel for all indemnified parties in connection with any one action
or separate but similar or related actions in the same jurisdiction arising out
of the same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or Section
7 hereof (whether or not the indemnified parties are actual or potential
parties thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not
include a statement as to or an admission of fault, culpability or a failure to
act by or on behalf of any indemnified party.
SECTION 7. Contribution.
If the indemnification provided for in Section 6 hereof is for
any reason unavailable to or insufficient to hold harmless an indemnified party
in respect of any losses, liabilities, claims, damages or expenses referred to
therein, then each indemnifying party shall contribute to the aggregate amount
of such losses, liabilities, claims, damages and expenses incurred by such
indemnified party, as incurred, (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company, on the one hand, and the
Underwriters, on the
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other hand, from the offering of the Underwritten Securities pursuant to the
applicable Terms Agreement or (ii) if the allocation provided by clause (i) is
not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but also
the relative fault of the Company, on the one hand, and of the Underwriters, on
the other hand, in connection with the statements or omissions which resulted
in such losses, liabilities, claims, damages or expenses, as well as any other
relevant equitable considerations.
The relative benefits received by the Company, on the one hand,
and the Underwriters, on the other hand, in connection with the offering of the
Underwritten Securities pursuant to the applicable Terms Agreement shall be
deemed to be in the same respective proportions as the total net proceeds from
the offering of such Underwritten Securities (before deducting expenses)
received by the Company and the total underwriting discount received by the
Underwriters, in each case as set forth on the cover of the Prospectus, or, if
Rule 434 is used, the corresponding location on the Term Sheet bear to the
aggregate initial public offering price of such Underwritten Securities as set
forth on such cover.
The relative fault of the Company, on the one hand, and the
Underwriters, on the other hand, shall be determined by reference to, among
other things, whether any such untrue or alleged untrue statement of a material
fact or 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 Company and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this Section 7 were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of
the equitable considerations referred to above in this Section 7. The
aggregate amount of losses, liabilities, claims, damages and expenses incurred
by an indemnified party and referred to above in this Section 7 shall be deemed
to include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged
untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the Underwritten Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
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 1933 Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls
an Underwriter within the meaning of Section 15 of the 1933 Act or Section 20
of the 1934 Act shall have the
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same rights to contribution as such Underwriter, and each director of the
Company, each officer of the Company who signed the Registration Statement, and
each person, if any, who controls the Company within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as the Company. The Underwriters' respective obligations to
contribute pursuant to this Section 7 are several in proportion to the number
or aggregate principal amount, as the case may be, of Initial Underwritten
Securities set forth opposite their respective names in the applicable Terms
Agreement and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery.
All representations, warranties and agreements contained in this
Underwriting Agreement or the applicable Terms Agreement or in certificates of
officers of the Company submitted pursuant hereto or thereto shall remain
operative and in full force and effect, regardless or any investigation made by
or on behalf of any Underwriter or controlling person, or by or on behalf of
the Company, and shall survive delivery of and payment for the Underwritten
Securities.
SECTION 9. Termination.
(a) Terms Agreement. The Managing Underwriter may terminate the
applicable Terms Agreement, by notice to the Company, at any time at or prior
to the Closing Time or any relevant Date of Delivery, if (i) there has been,
since the time of execution of such Terms Agreement or since the respective
dates as of which information is given in the Prospectus, any Material Adverse
Change, or (ii) there has occurred any material adverse change in the financial
markets in the United States or any outbreak of hostilities or escalation of
existing hostilities or other calamity or crisis the effect of which on the
financial markets of the United States is such as to make it, in the judgment
of the Managing Underwriter, impracticable to market the Underwritten
Securities or to enforce contracts for the sale of the Underwritten Securities,
or (iii) trading in any securities of the Company has been suspended or limited
by the Commission or the New York Stock Exchange or any other exchange on which
securities of the Company are listed, or if trading generally on the New York
Stock Exchange or the American Stock Exchange or in the NASDAQ National Market
has been suspended or limited, or minimum or maximum prices for trading have
been fixed, or maximum ranges for prices have been required, by either of said
exchanges or by order of the Commission or any other governmental authority, or
(iv) a banking moratorium has been declared by either Federal, New York, or
Texas authorities.
(b) Liabilities. If this Underwriting Agreement or the applicable
Terms Agreement is terminated pursuant to this Section 9, such termination
shall be without liability of any party to any other party except as provided
in Sections 4 and 10 hereof, and provided further that Sections 4, 6, 7 and 8
hereof shall survive such termination and remain in full force and effect.
SECTION 10. Default by One or More of the Underwriters.
If one or more of the Underwriters shall fail at the Closing Time
or the relevant Date of Delivery, as the case may be, to purchase the
Underwritten Securities which it or they
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are obligated to purchase under the applicable Terms Agreement (the "Defaulted
Securities"), then the Managing Underwriter shall have the right, within 24
hours thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than
all, of the Defaulted Securities in such amounts as may be agreed upon and upon
the terms herein set forth; if, however, the Managing Underwriter shall not
have completed such arrangements within such 24-hour period, then:
(a) if the number or aggregate principal amount, as the
case may be, of Defaulted Securities does not exceed 10% of the
number or aggregate principal amount, as the case may be, of
Underwritten Securities to be purchased on such date pursuant to
such Terms Agreement, the non-defaulting Underwriters shall be
obligated, severally and not jointly, to purchase the full amount
thereof in the proportions that their respective underwriting
obligations under such Terms Agreement bear to the underwriting
obligations of all non-defaulting Underwriters, or
(b) if the number or aggregate principal amount, as the
case may be, of Defaulted Securities exceeds 10% of the number or
aggregate principal amount, as the case may be, of Underwritten
Securities to be purchased on such date pursuant to such Terms
Agreement, such Terms Agreement (or, with respect to the
Underwriters' exercise of any applicable over-allotment option
for the purchase of Option Underwritten Securities on a Date of
Delivery after the Closing Time, the obligations of the
Underwriters to purchase, and the Company to sell, such Option
Underwritten Securities on such Date of Delivery) shall terminate
without liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section 10 shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in (i) a
termination of the applicable Terms Agreement or (ii) in the case of a Date of
Delivery after the Closing Time, a termination of the obligations of the
Underwriters and the Company with respect to the related Option Underwritten
Securities, as the case may be, either the Managing Underwriter or the Company
shall have the right to postpone the Closing Time or the relevant Date of
Delivery, as the case may be, for a period not exceeding seven days in order to
effect any required changes in the Registration Statement or the Prospectus or
in any other documents or arrangements.
SECTION 11. Notices.
All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed or transmitted by
any standard form of telecommunication. Notices to the Underwriters shall be
directed to the addresses indicated in the applicable Terms Agreement, and
notices to the Company shall be directed to 14285 Midway Road, Suite 300,
Dallas, Texas 75244, attention of Joel Eastman, Esq., with a copy to Jones,
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Day, Reavis & Pogue, 599 Lexington Avenue, 32nd Floor, New York, New York
10022, attention of Robert A. Profusek, Esq.
SECTION 12. Parties.
This Underwriting Agreement and the applicable Terms Agreement
shall each inure to the benefit of and be binding upon the parties hereto and,
upon execution of such Terms Agreement, any other Underwriters and their
respective successors. Nothing expressed or mentioned in this Underwriting
Agreement or such Terms Agreement is intended or shall be construed to give any
person, firm or corporation, other than the Underwriters and the Company and
its successors and the controlling persons and officers and directors referred
to in Sections 6 and 7 and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this Underwriting
Agreement or such Terms Agreement or any provision herein or therein contained.
This Underwriting Agreement and such Terms Agreement and all conditions and
provisions hereof and thereof are intended to be for the sole and exclusive
benefit of the parties hereto and thereto and their respective successors, and
said controlling persons and officers and directors and their heirs and legal
representatives, and for the benefit of no other person, firm or corporation.
No purchaser of Underwritten Securities from any Underwriter shall be deemed to
be a successor by reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME.
THIS UNDERWRITING AGREEMENT AND ANY APPLICABLE TERMS AGREEMENT
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN SAID STATE.
SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 14. Effect of Headings.
The Article and Section headings herein and the Table of Contents
are for convenience only and shall not affect the construction hereof.
* * * * * *
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