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COMPUTER SCIENCES CORPORATION
(A NEVADA CORPORATION)
__% NOTES DUE 20__
FORM OF PURCHASE AGREEMENT
DATED: _____ __, 2000
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TABLE OF CONTENTS
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PURCHASE AGREEMENT................................................................................................1
SECTION 1. Representations and Warranties..................................................................3
(a) Representations and Warranties by the Company...................................................3
(i) Prospectus.............................................................................3
(ii) Registration Statement.................................................................3
(iii) Incorporated Documents.................................................................3
(iv) Independent Accountants................................................................4
(v) Financial Statements...................................................................4
(vi) No Material Adverse Change in Business.................................................4
(vii) Good Standing of the Company...........................................................4
(viii) Status of CSC Enterprises..............................................................4
(ix) Good Standing of Designated Subsidiaries...............................................5
(x) Capitalization.........................................................................5
(xi) Authorization of Agreement.............................................................5
(xii) Authorization of the Indenture.........................................................5
(xiii) Authorization of the Securities........................................................5
(xiv) Description of the Securities and the Indenture........................................6
(xv) Absence of Defaults and Conflicts......................................................6
(xvi) Absence of Labor Dispute...............................................................7
(xvii) Absence of Proceedings.................................................................7
(xviii) Possession of Intellectual Property....................................................7
(xix) Possession of Licenses and Permits.....................................................7
(xx) Title to Property......................................................................7
(xxi) Tax Returns............................................................................8
(xxii) Environmental Laws.....................................................................8
(xxiii) Investment Company Act.................................................................9
(xxiv) Related Transactions...................................................................9
(b) Officer's Certificates..........................................................................9
SECTION 2. Sale and Delivery to the Underwriters; Closing..................................................9
(a) Securities......................................................................................9
(b) Payment.........................................................................................9
(c) Examination of Global Note.....................................................................10
SECTION 3. Covenants of the Company.......................................................................10
(a) Compliance with Securities Regulations and Commission Requests.................................10
(b) Filing of Amendments...........................................................................10
(c) Delivery of Registration Statements............................................................10
(d) Delivery of Prospectuses.......................................................................11
(e) Continued Compliance with Securities Laws......................................................11
(f) Blue Sky Qualifications........................................................................11
(g) Rule 158.......................................................................................12
(h) Use of Proceeds................................................................................12
(i) Restriction on Sale of Securities..............................................................12
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(j) Reporting Requirements.........................................................................12
SECTION 4. Payment of Expenses............................................................................12
(a) Expenses.......................................................................................12
(b) Termination of Agreement.......................................................................13
SECTION 5. Conditions of the Underwriters'Obligations.....................................................13
(a) Effectiveness of Registration Statement........................................................13
(b) Opinions of Inside and Outside Counsel for Company.............................................13
(c) Opinion of Counsel for the Underwriters........................................................13
(d) Officers'Certificate...........................................................................14
(e) Accountant's Comfort Letter....................................................................14
(f) Bring-down Comfort Letter......................................................................14
(g) Maintenance of Rating..........................................................................14
(h) Additional Documents...........................................................................14
(i) Termination of Agreement.......................................................................15
SECTION 6. Indemnification................................................................................15
(a) Indemnification of the Underwriters............................................................15
(b) Indemnification of Company, Directors and Officers.............................................15
(c) Actions against Parties; Notification..........................................................16
(d) Settlement without Consent if Failure to Reimburse.............................................16
SECTION 7. Contribution...................................................................................17
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.................................18
SECTION 9. Termination of Agreement.......................................................................18
(a) Termination; General...........................................................................18
(b) Liabilities....................................................................................18
SECTION 10. Default by One or More of the Underwriters.....................................................19
SECTION 11. Notices........................................................................................19
SECTION 12. Parties........................................................................................19
SECTION 13. GOVERNING LAW AND TIME.........................................................................20
SECTION 14. Effect of Headings.............................................................................20
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SCHEDULES
Schedule A - List of Underwriters.......................................................Sch A-1
Schedule B - Pricing Information........................................................Sch B-1
Schedule C - Jurisdiction of Designated Subsidiaries....................................Sch C-1
EXHIBITS
Exhibit A - Form of Opinion of Company's Inside Counsel....................................Ex A-1
Exhibit B - Form of Opinion of Company's Outside Counsel...................................Ex B-1
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COMPUTER SCIENCES CORPORATION
(A NEVADA CORPORATION)
$300,000,000
__% NOTES DUE 20__
PURCHASE AGREEMENT
______ __, 2000
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
Goldman, Sachs & Co.
J. P. Morgan Securities Inc.
Morgan Stanley & Co. Incorporated
c/o Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
North Tower
World Financial Center
New York, New York 10281-1209
Ladies and Gentlemen:
Computer Sciences Corporation, a Nevada corporation (the "Company"),
confirms its agreement with Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner &
Smith Incorporated and each of the other Underwriters named in Schedule A hereto
(collectively, the "Underwriters"; which term shall also include any underwriter
substituted as hereinafter provided in Section 10 hereof), for whom Merrill
Lynch is acting as representative (in such capacity, the "Representative"), with
respect to the issue and sale by the Company and the purchase by the
Underwriters, acting severally and not jointly, of the respective principal
amounts set forth in said Schedule A of $300,000,000.00 aggregate principal
amount of the Company's __% Notes Due 20__ (the "Securities"). The Securities
are to be issued pursuant to an indenture dated as of _______ __, 2000 (the
"Indenture") between the Company and Citibank, N.A., as trustee (the "Trustee").
The Company understands that the Underwriters propose to make a public
offering of the Securities as soon as the Representative deems advisable after
this Agreement has been executed and delivered and the Indenture has been
qualified under the Trust Indenture Act of 1939, as amended (the "1939 Act").
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-__________) covering
the
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registration of the Securities under the Securities Act of 1933, as amended
(the "1933 Act"), including the related preliminary prospectus or
prospectuses. Promptly after execution and delivery of this Agreement, the
Company will either (i) prepare and file a prospectus in accordance with the
provisions of Rule 430A ("Rule 430A") of the rules and regulations of the
Commission under the 1933 Act (the "1933 Act Regulations") and paragraph (b)
of Rule 424 ("Rule 424(b)") of the 1933 Act Regulations or (ii) if the
Company has elected to rely upon Rule 434 ("Rule 434") of the 1933 Act
Regulations, prepare and file a term sheet (a "Term Sheet") in accordance
with the provisions of Rule 434 and Rule 424(b). The information included in
such prospectus or in such Term Sheet, as the case may be, that was omitted
from such registration statement at the time it became effective but that is
deemed to be part of such registration statement at the time it became
effective (a) pursuant to paragraph (b) of Rule 430A is referred to as "Rule
430A Information" or (b) pursuant to paragraph (d) of Rule 434 is referred to
as "Rule 434 Information." Each prospectus used before such registration
statement became effective, and any prospectus that omitted, as applicable,
the Rule 430A Information or the Rule 434 Information, that was used after
such effectiveness and prior to the execution and delivery of this Agreement,
is herein called a "preliminary prospectus." Such registration statement,
including the exhibits thereto, schedules thereto, if any, and the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under the
1933 Act, at the time it became effective or, if a post-effective amendment
is filed in respect thereto, as amended by such post-effective amendment at
the time of its effectiveness and including the Rule 430A Information and the
Rule 434 Information, as applicable, is herein called the "Registration
Statement." Any registration statement filed pursuant to Rule 462(b) of the
1933 Act Regulations is herein referred to as the "Rule 462(b) Registration
Statement," and after such filing the term "Registration Statement" shall
include the Rule 462(b) Registration Statement. The final prospectus,
including the documents incorporated by reference therein pursuant to Item 12
of Form S-3 under the 1933 Act, in the form first furnished to the
Underwriters for use in connection with the offering of the Securities is
herein called the "Prospectus." If Rule 434 is relied on, the term
"Prospectus" shall refer to the preliminary prospectus dated ________ __,
2000 together with the Term Sheet and all references in this Agreement to the
date of the Prospectus shall mean the date of the Term Sheet. For purposes of
this Agreement, all references to the Registration Statement, any preliminary
prospectus, the Prospectus or any Term Sheet or 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 Agreement to financial statements and schedules
and other information which is "contained," "included" or "stated" in the
Registration Statement, any preliminary prospectus or the Prospectus (or other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
by reference in the Registration Statement, any preliminary prospectus or the
Prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement, any preliminary
prospectus or the Prospectus shall be deemed to mean and include the filing of
any document under the Securities Exchange Act of 1934 (the "1934 Act") which is
incorporated by reference in the Registration Statement, such preliminary
prospectus or the Prospectus, as the case may be.
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SECTION 1. Representations and Warranties.
(a) REPRESENTATIONS AND WARRANTIES BY THE COMPANY. The Company
represents and warrants to each Underwriter as of the date hereof and as of the
Closing Time referred to in Section 2(b) hereof and agrees with each
Underwriter, as follows:
(i) PROSPECTUS. No order preventing or suspending the use of
any preliminary prospectus has been issued by the Commission, and each
preliminary prospectus filed as part of the Registration Statement as originally
filed or as part of any amendment thereto, or filed pursuant to Rule 424 under
the 1933 Act, complied when so filed in all material respects with the 1933 Act,
and did not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading; PROVIDED that this representation and warranty shall not apply to
any statements or omissions made in reliance upon and in conformity with
information relating to any Underwriter furnished to the Company in writing by
such Underwriter through the Representative expressly for use therein.
(ii) REGISTRATION STATEMENT. No stop order suspending the
effectiveness of the Registration Statement has been issued and no proceeding
for that purpose has been instituted or, to the knowledge of the Company,
threatened by the Commission; and the Registration Statement and Prospectus (as
amended or supplemented if the Company shall have furnished any amendments or
supplements thereto) comply, or will comply, as the case may be, in all material
respects with the 1933 Act and the 1939 Act and the rules and regulations of the
Commission thereunder and do not and will not, as of the applicable effective
date as to the Registration Statement and any amendment thereto and as of the
date of the Prospectus and any amendment or supplement thereto, contain any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein not misleading,
and the Prospectus, as amended or supplemented, if applicable, at the Closing
Time will not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; except that the
foregoing representations and warranties shall not apply to (i) that part of the
Registration Statement which constitutes the Statement of Eligibility and
Qualification (Form T-1) of the Trustee under the 1939 Act, and (ii) statements
or omissions in the Registration Statement or the Prospectus made in reliance
upon and in conformity with information relating to any Underwriter furnished to
the Company in writing by such Underwriter through the Representative expressly
for use therein.
(iii) INCORPORATED DOCUMENTS. The documents incorporated or
deemed to be incorporated by reference in the Prospectus at the time they were
or hereafter are filed with the Commission complied and will comply in all
material respects with the requirements of the 1933 Act or the 1934 Act, as
applicable, and, when read together with the other information in the
Prospectus, at the date of the Prospectus and at the Closing Date, do not and
will not include an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; PROVIDED that this representation, warranty and agreement shall not
apply to pricing information omitted in the preliminary prospectus or to
statements in or omissions from the Prospectus made in reliance upon and in
conformity with information furnished to the
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Company in writing by any Underwriter through the Representative expressly for
use in the Prospectus.
(iv) INDEPENDENT ACCOUNTANTS. The accountants who certified
the financial statements and supporting schedules included in the
Registration Statement and the Prospectus (including any financial statements
and supporting schedules incorporated by reference therein) are independent
certified public accountants with respect to the Company, within the meaning
of Regulation S-X under the 1933 Act and the 1934 Act.
(v) FINANCIAL STATEMENTS. The financial statements, together
with the related schedules and notes, included or incorporated by reference in
the Registration Statement and the Prospectus present fairly (i) the financial
position of the Company and its consolidated subsidiaries at the dates
indicated, (ii) the statement of operations of the Company and its consolidated
subsidiaries, and (iii) stockholders' equity and cash flows of the Company and
its consolidated subsidiaries for the periods specified; said financial
statements have been prepared in conformity with generally accepted accounting
principles ("GAAP") applied on a consistent basis throughout the periods
involved. The supporting schedules, if any, included in 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 information included in the Registration Statement and the Prospectus
present fairly the information shown therein and has been compiled on a basis
consistent with that of the audited financial statements included in the
Registration Statement and the Prospectus.
(vi) NO MATERIAL ADVERSE CHANGE IN BUSINESS. Since January 1,
2000 and except as otherwise stated in the Registration Statement and the
Prospectus, (i) there has been no material adverse change, or any development
involving a prospective material adverse change, in the condition, financial or
otherwise, or in the earnings, assets, properties or business affairs of the
Company and its subsidiaries, taken as a whole, whether or not arising in the
ordinary course of business (a "Material Adverse Effect"), (ii) there has been
no material change in the capital stock of the Company or the long-term debt of
the Company and its subsidiaries and (iii) there has been no dividend or
distribution of any kind declared, paid or made by the Company on any class of
its capital stock..
(vii) GOOD STANDING OF THE COMPANY. The Company has been duly
organized and is validly existing as a corporation in good standing under the
laws of the State of Nevada and has corporate power and authority to own, lease
and operate its properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under this Agreement;
and the Company is duly qualified as a foreign corporation to transact business
in all 50 states of the United States (except for the state of its
incorporation) and is in good standing in all 50 states of the United States.
(viii) STATUS OF CSC ENTERPRISES. CSC Enterprises, a Delaware
general partnership ("CSC Enterprises"), has been duly formed and is validly
existing as a general partnership under the laws of the State of Delaware, with
power and authority (partnership and other) to own, lease and operate its
properties and to conduct its business as described in the Prospectus.
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(ix) GOOD STANDING OF DESIGNATED SUBSIDIARIES. Each of CSC
Consulting, Inc., CSC Outsourcing Inc., CSC Credit Services, Inc. and CSC
Healthcare, Inc. (each a "Designated Subsidiary" and, collectively, the
"Designated Subsidiaries") has been duly organized and is validly existing as
a corporation, in good standing under the laws of the jurisdiction of its
incorporation, has power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectus and is
duly qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the conduct of
business, except where the failure so to qualify or to be in good standing
would not result in a Material Adverse Effect (all such jurisdictions are
listed on Schedule C hereto); except as otherwise disclosed in the
Prospectus, all of the issued and outstanding capital stock of each such
Designated Subsidiary has been duly authorized and validly issued, is fully
paid and non-assessable and is owned by the Company, directly or through
subsidiaries, free and clear of any security interest, mortgage, pledge,
lien, encumbrance, claim or equity; none of the outstanding shares of capital
stock of any Designated Subsidiary was issued in violation of any preemptive
or similar rights arising by operation of law, or under the charter or
by-laws of any Designated Subsidiary or under any agreement to which the
Company or any Designated Subsidiary is a party.
(x) CAPITALIZATION. The authorized, issued and outstanding
capital stock of the Company is as set forth in the Prospectus in the column
entitled "Actual" under the caption "Capitalization" (except for subsequent
issuances or subsequent repurchases, if any, pursuant to employee benefit or
option plans referred to in the amended Annual Report on Form 10-K for the
year ended March 31, 2000 or subsequent repurchases or cancellations, if any,
of restricted stock awards that do not vest upon termination of employment,
or subsequent issuances of cash in lieu of fractional shares in connection
with the Company's acquisition of The Continuum Company, Inc.).
(xi) AUTHORIZATION OF AGREEMENT. This Agreement has been duly
authorized, executed and delivered by the Company.
(xii) AUTHORIZATION OF THE INDENTURE. The Indenture has been
duly authorized by the Company and, upon effectiveness of the Registration
Statement, will have been duly qualified under the 1939 Act and, when executed
and delivered by the Company and the Trustee will constitute a legally valid and
binding agreement of the Company, enforceable against the Company in accordance
with its terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or other similar laws relating to or
affecting enforcement of creditors' rights generally, or by general principles
of equity (regardless of whether enforcement is considered in a proceeding in
equity or at law).
(xiii) AUTHORIZATION OF THE SECURITIES. The Securities have
been duly authorized and, at the Closing Time, will have been duly executed by
the Company and, when authenticated in the manner provided for in the Indenture
and delivered against payment of the purchase price therefor, will constitute
legally valid and binding obligations of the Company, enforceable against the
Company in accordance with their terms, except as the enforcement thereof may be
limited by bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent
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transfers), reorganization, moratorium or other similar laws relating to or
affecting enforcement of creditors' rights generally, or by general principles
of equity (regardless of whether enforcement is considered in a proceeding in
equity or at law), and will be in the form contemplated by, and entitled to the
benefits of, the Indenture.
(xiv) DESCRIPTION OF THE SECURITIES AND THE INDENTURE. The
Securities and the Indenture will conform in all material respects to the
respective statements relating thereto contained in the preliminary prospectus,
the Prospectus and the Registration Statement and will be in substantially the
respective forms previously delivered to the Underwriters; PROVIDED, HOWEVER,
that the preliminary prospectus excludes certain pricing information.
(xv) ABSENCE OF DEFAULTS AND CONFLICTS. Neither the Company
nor any of its subsidiaries is in violation of its charter or by-laws or in
default in the performance or observance of any obligation, agreement, covenant
or condition contained in any contract, indenture, mortgage, deed of trust, loan
or credit agreement, note, lease or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which any of them may be
bound, or to which any of the property or assets of the Company or any of its
subsidiaries is subject (collectively, "Agreements and Instruments"), except for
such defaults that would not result in a Material Adverse Effect; and the
execution, delivery and performance of this Agreement, the Indenture, the
Securities 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 in the Prospectus and the consummation of the
transactions contemplated herein and in the Prospectus (including the issuance
and sale of the Securities and the use of the proceeds from the sale of the
Securities as described in the Prospectus under the caption "Use of Proceeds")
and compliance by the Company with its obligations hereunder and under the
Indenture and the Securities have been duly authorized by all necessary
corporate action and do not and will not, whether with or without the giving of
notice or passage of time or both, conflict with or constitute a breach of, or
default or a Repayment Event (as defined below) under, or result in the creation
or imposition of any lien, charge or encumbrance upon any property or assets of
the Company or any of its subsidiaries pursuant to, the Agreements and
Instruments except for such conflicts, breaches or defaults or liens, charges or
encumbrances that, individually or in the aggregate, would not result in a
Material Adverse Effect, nor will such action result in any violation of the
provisions of the charter, by-laws or other organizational documents of the
Company or any of its subsidiaries or any applicable law, statute, rule,
regulation, judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over the
Company or any of its subsidiaries or any of their assets or properties. As used
herein, a "Repayment Event" means any event or condition which gives the holder
of any note, debenture or other evidence of indebtedness (or any person acting
on such holder's behalf) the right to require the repurchase, redemption or
repayment of all or a portion of such indebtedness by the Company or any of its
subsidiaries prior to its scheduled maturity. No consent, approval,
authorization, order, license, registration or qualification of or with any such
government instrumentality or court is required for the issue and sale of the
Securities or the consummation by the Company of the transactions contemplated
by this Agreement or the Indenture, except such consents, approvals,
authorizations, orders, licenses, registrations or qualifications as have been
obtained under the 1933 Act, the 1939 Act and as may be required under state
securities or "blue sky" laws in connection with the purchase and distribution
of the Securities by the Underwriters.
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(xvi) ABSENCE OF LABOR DISPUTE. No labor dispute with the
employees of the Company or any of its subsidiaries exists or, to the knowledge
of the Company, is imminent, and the Company is not aware of any existing or
imminent labor disturbance by the employees of any of its or any subsidiary's
principal suppliers, manufacturers, customers or contractors, which, in either
case, would result in a Material Adverse Effect.
(xvii) ABSENCE OF PROCEEDINGS. To the knowledge of the
Company, there are no actions, suits, proceedings, inquiries or investigations
before or brought by any court or governmental agency or body, domestic or
foreign, now pending or threatened, against or applicable to the Company or any
of its subsidiaries which (i) could reasonably be expected, either individually
or in the aggregate, to result in a Material Adverse Effect, or (ii) would
materially and adversely affect the consummation of the transactions
contemplated in this Agreement or the performance by the Company of its
obligations hereunder. There are no contracts or other documents that are
required to be filed as an exhibit to the Registration Statement which are not
filed as required.
(xviii) POSSESSION OF INTELLECTUAL PROPERTY. The Company and
its subsidiaries own or have the right to use adequate patents, patent rights,
licenses, inventions, copyrights, know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential information, systems
or procedures), trademarks, service marks, trade names or other intellectual
property (collectively, "Intellectual Property") necessary to carry on the
business now operated by them, and neither the Company nor any of its
subsidiaries has received any notice or is otherwise aware of any infringement
of or conflict with asserted rights of others with respect to any Intellectual
Property or of any facts or circumstances which would render any Intellectual
Property invalid or inadequate to protect the interest of the Company or any of
its subsidiaries therein, and which infringement or conflict (if the subject of
any unfavorable decision, ruling or finding) or invalidity or inadequacy,
individually or in the aggregate, would result in a Material Adverse Effect.
(xix) POSSESSION OF LICENSES AND PERMITS. The Company and its
subsidiaries possess such permits, licenses, approvals, consents and other
authorizations (collectively, "Governmental Licenses") issued by the appropriate
federal, state, local or foreign regulatory agencies or bodies necessary to
conduct the business now operated by them, except where the failure to have any
such Governmental License would not, either individually or in the aggregate,
have a Material Adverse Effect; the Company and its subsidiaries are in
compliance with the terms and conditions of all such Governmental Licenses,
except where the failure to comply would not, individually or in the aggregate,
have a Material Adverse Effect; all of the Governmental Licenses are valid and
in full force and effect, except when the invalidity of such Governmental
Licenses or the failure of such Governmental Licenses to be in full force and
effect would not have a Material Adverse Effect; and neither the Company nor any
of its subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such Governmental Licenses which, individually
or in the aggregate, if the subject of an unfavorable decision, ruling or
finding, would result in a Material Adverse Effect.
(xx) TITLE TO PROPERTY. The Company and its subsidiaries have
good title to all real property owned by the Company and its subsidiaries, as
the case may be, and good title to all other properties owned by them, in each
case, free and clear of all mortgages, pledges, liens,
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security interests, claims, restrictions or encumbrances of any kind except such
as (i) are described in the Prospectus or (ii) do not, individually or in the
aggregate, interfere with the use made and proposed to be made of such property
by the Company or any of its subsidiaries, except where such interferences,
either individually or in the aggregate, would not have a Material Adverse
Effect; and all of the leases and subleases to which the Company or any of its
subsidiaries is a party and under which the Company or any of its subsidiaries
holds properties described in the Prospectus or in any document incorporated by
reference therein, are in full force and effect, except where the failure to be
in full force and effect would not, either individually or in the aggregate,
have a Material Adverse Effect; and neither the Company nor any of its
subsidiaries has received any notice of any claim of any sort that has been
asserted by anyone adverse to the rights of the Company or any of its
subsidiaries under any such leases or subleases, or affecting or questioning the
rights of the Company or any of its subsidiaries to the continued possession of
the leased or subleased premises under any such lease or sublease, except where
such claim, either individually or in the aggregate, would not have a Material
Adverse Effect.
(xxi) TAX RETURNS. The Company and its subsidiaries have filed
all federal, state, local and foreign tax returns that are required to be filed
or have duly requested extensions thereof and have paid all taxes required to be
paid by any of them and any related assessments, fines or penalties, except for
any such tax, assessment, fine or penalty that is being contested in good faith
and by appropriate proceedings, and except where the failure to have made such
filings, paid such taxes or requested such extensions would not, either
individually or in the aggregate, have a Material Adverse Effect; and adequate
charges, accruals and reserves have been provided for in the financial
statements referred to in Section 1(a)(v) above in respect of all federal,
state, local and foreign taxes for all periods as to which the tax liability of
the Company or any of its subsidiaries has not been finally determined or
remains open to examination by applicable taxing authorities, except where the
failure to provide for such adequate charges, accruals and reserves would not,
individually or in the aggregate, have a Material Adverse Effect.
(xxii) ENVIRONMENTAL LAWS. Except as described in the
Prospectus and except as would not, individually or in the aggregate, result in
a Material Adverse Effect, (i) neither the Company nor any of its subsidiaries
is in violation of any federal, state, local or foreign statute, law, rule,
regulation, ordinance, code, policy or rule of common law or any judicial or
administrative interpretation thereof, including any judicial or administrative
order, consent, decree or judgment, relating to pollution or protection of human
health, the environment (including, without limitation, ambient air, surface
water, groundwater, land surface or subsurface strata) or wildlife, including,
without limitation, laws and regulations relating to the release or threatened
release of chemicals, pollutants, contaminants, wastes, toxic substances,
hazardous substances, petroleum or petroleum products (collectively, "Hazardous
Materials") or to the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of Hazardous Materials (collectively,
"Environmental Laws"), (ii) the Company and its subsidiaries have all permits,
authorizations and approvals required under any applicable Environmental Laws
and are each in compliance with their requirements, (iii) there are no pending
or threatened administrative, regulatory or judicial actions, suits, demands,
demand letters, claims, liens, notices of noncompliance or violation,
investigation or proceedings relating to any Environmental Laws against the
Company or any of its subsidiaries and (iv) there are no
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events or circumstances that might reasonably be expected to form the basis of
an order for clean-up or remediation, or an action, suit or proceeding by any
private party or governmental body or agency, against or affecting the Company
or any of its subsidiaries relating to Hazardous Materials or Environmental
Laws.
(xxiii) INVESTMENT COMPANY ACT. The Company is not, and upon
the issuance and sale of the Securities as herein contemplated and the
application of the net proceeds therefrom as described in the Prospectus will
not be, an "investment company" or an entity "controlled" by an "investment
company" as such terms are defined in the Investment Company Act of 1940, as
amended (the "Investment Company Act").
(xxiv) RELATED TRANSACTIONS. The Company is not aware of any
relationship, direct or indirect, between or among the Company or any of its
subsidiaries on the one hand, and the directors and officers of the Company or
any of its subsidiaries on the other hand, which is required by the 1933 Act to
be described in the Registration Statement and the Prospectus which is not so
described.
(b) OFFICER'S CERTIFICATES. Any certificate signed by any officer of
the Company or any of its subsidiaries delivered to the Representative or to
counsel for the Underwriters shall be deemed a representation and warranty by
the Company to the Underwriters as to the matters covered thereby.
SECTION 2. SALE AND DELIVERY TO THE UNDERWRITERS; CLOSING.
(a) SECURITIES. On the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth,
the Company agrees to sell to each Underwriter, and each Underwriter,
severally and not jointly, agrees to purchase from the Company, at the price
set forth in Schedule B, the aggregate principal amount of Securities set
forth in Schedule A opposite the name of such Underwriter, plus any
additional principal amount of Securities which such Underwriter may become
obligated to purchase pursuant to the provisions of Section 10 hereof.
(b) PAYMENT. Payment for the Securities shall be made against delivery
to the nominee of The Depository Trust Company for the account of the
Underwriters of one or more global notes (collectively, the "Global Note")
representing the Securities, with transfer taxes payable in connection with the
transfer to the Underwriters of the Securities duly paid by the Company on the
third (fourth, if the pricing occurs after 4:30 P.M. (Eastern time) on any given
day) business day after the date hereof, or such other time not later than ten
business days after such date as shall be agreed upon by the Representative and
the Company (such time and date of payment and delivery being herein called
"Closing Time"). Merrill Lynch, individually and not as representative of the
Underwriters, may (but shall not be obligated to) make payment of the purchase
price for the Securities to be purchased by any Underwriter whose funds have not
been received by the Closing Time, but such payment shall not relieve such
Underwriter from its obligations hereunder.
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Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery of
the Global Note as described above.
(c) EXAMINATION OF GLOBAL NOTE. The Global Note will be made available
for examination by the Representative in The City of New York not later than
11:00 A.M. (Eastern time) on the business day prior to the Closing Time.
SECTION 3. COVENANTS OF THE COMPANY. The Company covenants with each
Underwriter 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
or Rule 434, as applicable, and will notify the Representative promptly, and
confirm the notice in writing, (i) when any post-effective amendment to the
Registration Statement shall become effective, or any supplement to the
Prospectus or any amended Prospectus shall have been filed, (ii) of the receipt
of any comments from the Commission, (iii) of 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) of 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 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(b) and will take such steps as it deems
necessary to ascertain promptly whether the form of prospectus transmitted for
filing under Rule 424(b) was received for filing by the Commission and, in the
event that it was not, it will promptly file such prospectus. The Company will
make every reasonable effort to prevent 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 Representative
notice of its intention to file or prepare any amendment to the Registration
Statement (including any filing under Rule 462(b)), 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
Representative 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 Representative or counsel for the
Underwriters shall reasonably object.
(c) DELIVERY OF REGISTRATION STATEMENTS. The Company has furnished or
will deliver to the Representative and counsel for the Underwriters, without
charge, signed 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 Representative, without charge, a
conformed copy of the Registration Statement as originally filed and of each
amendment thereto (without exhibits) for each of the Underwriters. The copies of
the Registration Statement and each amendment thereto furnished
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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 has delivered to each
Underwriter, without charge, as many copies of each preliminary prospectus as
such Underwriter reasonably requested, 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 amended or supplemented) 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, the 1934 Act and the 1934 Act
Regulations and the 1939 Act and the 1939 Act Regulations so as to permit the
completion of the distribution of the Securities as contemplated in this
Agreement and in the Prospectus. If at any time when a prospectus is required by
the 1933 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 or amend or supplement the Prospectus in order that the
Prospectus will not include any untrue statements 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 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 such number of copies of such amendment or
supplement as the Underwriters may reasonably request.
(f) BLUE SKY QUALIFICATIONS. The Company will use its commercially
reasonable best efforts, in cooperation with the Underwriters, to qualify the
Securities for offering and sale under the applicable securities laws of such
states and other jurisdictions as the Representative may designate and to
maintain such qualifications in effect for a period of not less than one year
from the later of the effective date of the Registration Statement and any Rule
462(b) Registration Statement; provided, however, that the Company shall not be
obligated to file any general consent to service of process or to qualify as a
foreign corporation or as a dealer in securities in any jurisdiction in which it
is not so qualified or to subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so subject. In each
jurisdiction in which the Securities have been so qualified, the Company will
file such statements and reports as may be required by the laws of such
jurisdiction to continue such qualification in effect for a period of not less
than one year from the effective date of the Registration Statement and any Rule
462(b) Registration Statement. The Company will also supply the Underwriters
with such information as is necessary for the determination of the legality of
the Securities for investment under the laws of such jurisdictions as the
Underwriters may request.
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(g) RULE 158. The Company will timely file such reports pursuant to the
1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for the purposes
of, and to provide the benefits contemplated by, the last paragraph of Section
11(a) of the 1933 Act.
(h) USE OF PROCEEDS. The Company will use the net proceeds received by
it from the sale of the Securities in the manner specified in the Prospectus
under "Use of Proceeds".
(i) RESTRICTION ON SALE OF SECURITIES. During the period from the date
hereof to and including the business day following the Closing Date, the Company
will not, without first obtaining the written consent of the Representative,
sell or transfer any of its debt securities which are substantially similar to
the Securities. Specifically, the Company will not, directly or indirectly: (1)
issue, sell, offer or contract to sell any of its debt securities which are
substantially similar to the Securities; (2) grant any option for the sale of
any of its debt securities which are substantially similar to the Securities; or
(3) otherwise transfer or dispose of any of its debt securities which are
substantially similar to the Securities
The preceding lockup provision applies to (1) the Company's debt
securities which are substantially similar to the Securities and (2) to any of
the Company's securities convertible into or exercisable or exchangeable for its
debt securities which are substantially similar to the Securities.
(j) 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.
SECTION 4. PAYMENT OF EXPENSES.
(a) Expenses. The Company will pay all expenses incident to the
performance of its obligations under this 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
Agreement, any agreement among the Underwriters, the Indenture and such other
documents as may be required in connection with the offering, purchase, sale,
issuance or delivery of the Securities, (iii) the preparation, issuance and
delivery of the certificates for the Securities to the Underwriters, (iv) the
fees and disbursements of the Company's counsel, accountants and other advisors,
(v) the qualification of the Securities under securities laws in accordance with
the provisions of Section 3(f) hereof, including filing fees and the reasonable
fees and disbursements of counsel for the Underwriters in connection therewith
and in connection with the preparation of the Blue Sky Survey and any supplement
thereto, (vi) the printing and delivery to the Underwriters of copies of each
preliminary prospectus, any Term Sheets and of the Prospectus and any amendments
or supplements thereto, (vii) printing and delivery to the Underwriters of
copies of the Blue Sky Survey and any supplement thereto, (viii) the fees and
expenses of the Trustee, including the fees and disbursements of counsel for the
Trustee in connection with the Indenture and the Securities, and (ix) any fees
payable in connection with the rating of the Securities; PROVIDED, HOWEVER, that
the Underwriters will pay all expenses of their counsel
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incident to the performance of their obligations under this Agreement and any
agreement among the Underwriters (other than fees and disbursements of Latham
& Watkins associated with state securities or blue sky laws).
(b) TERMINATION OF AGREEMENT. If this Agreement is terminated by the
Representative 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 THE UNDERWRITERS' OBLIGATIONS. The obligations
of the several Underwriters hereunder are subject to the accuracy of the
representations and warranties of the Company contained in Section 1 hereof or
in certificates of any officer of the Company or any subsidiary 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 and at Closing Time 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, and any request on the part
of the Commission for additional information shall have been complied with to
the reasonable satisfaction of counsel to the Underwriters. A prospectus
containing the Rule 430A Information shall have been filed with the Commission
in accordance with Rule 424(b) (or a 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,
a Term Sheet shall have been filed with the Commission in accordance with Rule
424(b).
(b) OPINIONS OF INSIDE AND OUTSIDE COUNSEL FOR COMPANY. At Closing
Time, the Representative shall have received the favorable opinions, dated as of
Closing Time, of (i) Hayward D. Fisk, the Vice President, General Counsel and
Secretary of the Company, in the form attached hereto as Exhibit A and (ii)
Gibson, Dunn & Crutcher LLP, counsel for the Company, in the form attached
hereto as Exhibit B. In giving such opinion, Gibson, Dunn & Crutcher LLP may
rely, as to all matters governed by the laws of jurisdictions other than the law
of the State of New York and the federal law of the United States, upon the
opinions of counsel satisfactory to the Representative and counsel to the
Underwriters. Gibson, Dunn & Crutcher may also state that, insofar as their
opinion involves factual matters, they have relied, to the extent they deem
proper, upon certificates of officers of the Company and its subsidiaries and
certificates of public officials.
(c) OPINION OF COUNSEL FOR THE UNDERWRITERS. At Closing Time, the
Representative shall have received the favorable opinion, dated as of Closing
Time, of Latham & Watkins, counsel for the Underwriters with respect to the
validity of the Indenture and the Securities, the Registration Statement, the
Prospectus and other related matters as the Representative may reasonably
request, and such counsel shall have received such papers and information as
they may reasonably request to enable them to pass upon such matters.
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(d) OFFICERS' CERTIFICATE. At Closing Time, there shall not have been,
since the date hereof or since the respective dates as of which information is
given in the Prospectus, any material adverse change in the condition, financial
or otherwise, or in the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, and the Representative shall have
received a certificate of the President or a Vice President of the Company and
of the chief financial 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, (ii) the representations and warranties in Section 1(a) hereof are true
and correct with the same force and effect as though expressly made at and as of
Closing Time, (iii) the Company has complied with all agreements and satisfied
all conditions on its part to be performed or satisfied at or prior to Closing
Time, and (iv) no stop order suspending the effectiveness of the Registration
Statement has been issued and, to the knowledge of such officer, no proceedings
for that purpose have been instituted or are pending or are contemplated by the
Commission.
(e) ACCOUNTANT'S COMFORT LETTER. At the time of the execution of this
Agreement, the Representative shall have received from Deloitte and Touche LLP a
letter dated such date, in form and substance satisfactory to the
Representative, containing statements and information of the type ordinarily
included in accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in the
Registration Statement and the Prospectus.
(f) BRING-DOWN COMFORT LETTER. At Closing Time, the Representative
shall have received from Deloitte and Touche LLP a letter, dated as of Closing
Time, to the effect that they reaffirm the statements made in the letter
furnished pursuant to subsection (e) of this Section, except that the specified
date referred to shall be a date not more than three business days prior to
Closing Time.
(g) MAINTENANCE OF RATING. At Closing Time, the Securities shall be
rated at least "A2" by Moody's Investor's Service Inc., "A" by Standard & Poor's
Ratings Group, a division of McGraw-Hill, Inc., and "A+" from Duff & Phelps
Credit Rating Co.; and since the date of this Agreement, there shall not have
occurred a downgrading in the rating assigned to the Securities or any of the
Company's other debt securities by any "nationally recognized statistical rating
agency," as that term is defined by the Commission for purposes of Rule
436(g)(2) under the 1933 Act, and no such organization shall have publicly
announced that it has under surveillance or review, with negative implications,
its rating of the Securities or any of the Company's other debt securities.
(h) ADDITIONAL DOCUMENTS. At Closing Time, counsel for the Underwriters
shall have been furnished with such documents and opinions as they may require
for the purpose of enabling them to pass upon the issuance and sale of the
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 Securities as herein contemplated
shall be satisfactory in form and substance to the Representative and counsel
for the Underwriters.
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(i) TERMINATION OF AGREEMENT. If any condition specified in this
Section shall not have been fulfilled when and as required to be fulfilled, this
Agreement may be terminated by the Representative by notice to the Company at
any time at or prior to Closing Time, and such termination shall be without
liability of any party to any other party except as provided in Section 4 and
except that Sections 1, 6, 7 and 8 shall survive any such termination and remain
in full force and effect.
SECTION 6. INDEMNIFICATION.
(a) INDEMNIFICATION OF THE 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 against any and all loss, liability, claim, damage
and expense (including, without limitation, any legal fees and expenses incurred
in connection with any suit, action or proceeding or any claim asserted and any
amounts paid in settlement) whatsoever, as incurred, arising out of any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), including the Rule 430A
Information and the Rule 434 Information, if applicable, or the omission or
alleged omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading or arising out of any
untrue statement or alleged untrue statement of a material fact contained 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;
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 Representative expressly for use in the Registration
Statement (or any amendment thereto), including the Rule 430A Information and
the Rule 434 Information, if applicable, or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto); PROVIDED, FURTHER, that the
indemnity agreement provided in this Section 6 with respect to any preliminary
prospectus shall not inure to the benefit of any Underwriter (or to the benefit
of any person controlling such Underwriter) if (a) the person asserting any such
loss, claim, damage or expense does so based upon an untrue statement or alleged
untrue statement of material fact or the omission or alleged omission thereof in
such preliminary prospectus which is eliminated or remedied in the Prospectus
(as amended or supplemented if the Company shall have furnished any amendments
or supplements thereto); and (b) such Prospectus (as amended or supplemented and
exclusive of any documents incorporated by reference therein) had not been sent
or given to such person within the time required by the 1933 Act and the Company
has satisfied its obligation pursuant to Section 3(d) hereof to furnish such
Underwriter with copies of the Prospectus (as amended or supplemented) prior to
the to the confirmation of the sale of the Securities.
(b) INDEMNIFICATION OF COMPANY, DIRECTORS AND OFFICERS. Each
Underwriter severally agrees to indemnify and hold harmless the Company, its
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,
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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 Information, 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 Representative 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 Representative, and,
in the case of parties indemnified pursuant to Section 6(b) above, counsel to
the indemnified parties shall be selected by the Company. An indemnifying party
may participate at its own expense in the defense of any such action; provided,
however, that counsel to the indemnifying party shall not (except with the
consent of the indemnified party) also be counsel to the indemnified party. In
no event shall the indemnifying parties be liable for fees and expenses of more
than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or Section
7 hereof (whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party.
(d) SETTLEMENT WITHOUT CONSENT IF FAILURE TO REIMBURSE. If at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement effected without its written
consent if (i) such settlement is entered into more than 45 days after receipt
by such indemnifying party of the aforesaid request and (ii) such indemnifying
party shall not have reimbursed such indemnified party in accordance with such
request prior to the date of such settlement; PROVIDED, HOWEVER, that the
indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent if (x) such indemnifying party reimburses
such indemnified party in accordance with such aforesaid request to the extent
the indemnifying party in good faith considers such request to be reasonable;
and (y) such indemnifying party provides written notice to the indemnified party
stating that in good faith the
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indemnifying party believes the unpaid balance to be unreasonable and
substantiating the reasons therefor, in each case prior to the date of such
settlement.
SECTION 7. CONTRIBUTION. If the indemnification provided for in Section
6 hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the Underwriters on the other hand from the offering of the Securities
pursuant to this 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 Securities
pursuant to this Agreement shall be deemed to be in the same respective
proportions as the total net proceeds from the offering of the Securities
pursuant to this Agreement (before deducting expenses) received by the Company
and the total underwriting discounts and commissions 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 the 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
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 Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of any such untrue or
alleged untrue statement or omission or alleged omission.
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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 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.
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY. All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company or any of its
subsidiaries submitted pursuant hereto, shall remain operative and in full force
and effect, regardless of any investigation made by or on behalf of any
Underwriter or controlling person, or by or on behalf of the Company, and shall
survive delivery of the Securities to the Underwriters.
SECTION 9. TERMINATION OF AGREEMENT.
(a) TERMINATION; GENERAL. The Representative may terminate this
Agreement, by notice to the Company, at any time at or prior to Closing Time (i)
if there has been, since the time of execution of this Agreement or since the
respective dates as of which information is given in the Prospectus, any
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, the effect of which, in the judgment of the
Representative, makes it impracticable or inadvisable to proceed with the public
offering or delivery of the Securities at the Closing Time on the terms and in
the manner contemplated in the Prospectus, or (ii) if there has occurred any
material adverse change in the financial markets in the United States or the
international financial markets, any outbreak of hostilities or escalation
thereof or other calamity or crisis or any change or development involving a
prospective change in national or international political, financial or economic
conditions, in each case the effect of which is such as to make it, in the
judgment of the Representative, impracticable to market the Securities or to
enforce contracts for the sale of the Securities, or (iii) if trading in any
securities of the Company has been suspended or materially limited by the
Commission or the New York Stock Exchange, or if trading generally on the
American Stock Exchange or the New York Stock Exchange or in the Nasdaq National
Market has been suspended or materially limited, or minimum or maximum prices
for trading have been fixed, or maximum ranges for prices have been required, by
any of said exchanges or by such system or by order of the Commission, the
National Association of Securities Dealers, Inc. or any other governmental
authority, or (iv) if a banking moratorium has been declared by either Federal
or New York authorities.
(b) LIABILITIES. If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof, and provided further that Sections
1, 6, 7 and 8 shall survive such termination and remain in full force and
effect.
18
<PAGE>
SECTION 10. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS. If one or more
of the Underwriters shall fail at Closing Time to purchase the Securities which
it or they are obligated to purchase under this Agreement (the "Defaulted
Securities"), the Representative 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 Representative shall not have completed
such arrangements within such 24-hour period, then:
(i) if the number of Defaulted Securities does not exceed 10%
of the aggregate principal amount of the Securities to be purchased
hereunder, each of 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 hereunder
bear to the underwriting obligations of all non-defaulting
Underwriters, or
(ii) if the number of Defaulted Securities exceeds 10% of the
aggregate principal amount of the Securities to be purchased hereunder,
this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination
of this Agreement, either the Representative or the Company shall have the right
to postpone Closing Time for a period not exceeding seven days in order to
effect any required changes in the Registration Statement or Prospectus or in
any other documents or arrangements. As used herein, the term "Underwriter"
includes any person substituted for an Underwriter under this Section 10.
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 Underwriters at 10900 Wilshire Boulevard,
Suite 900, Los Angeles, California 90024, attention of Matthew Pendo; and
notices to the Company shall be directed to it at 2100 East Grand Avenue, El
Segundo, California 90245, attention of Hayward D. Fisk, Esq. and Stephen E.
Johnson, Esq.
SECTION 12. PARTIES. This Agreement shall each inure to the benefit of
and be binding upon the Underwriters and the Company and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Underwriters and the Company and their respective successors and the controlling
persons and officers and directors referred to in Sections 6 and 7 and their
heirs and legal representatives, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision herein contained. This
Agreement and all conditions and provisions hereof are intended to be for the
sole and exclusive benefit of the Underwriters and the Company 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 Securities from any Underwriter
shall be deemed to be a successor by reason merely of such purchase.
19
<PAGE>
SECTION 13. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT
GIVING EFFECT TO THE CONFLICTS OF LAWS PROVISIONS HEREOF. EXCEPT AS OTHERWISE
SET FORTH HEREIN, 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.
20
<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
between the Underwriters and the Company in accordance with its terms.
Very truly yours,
COMPUTER SCIENCES CORPORATION
By
----------------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER
& SMITH INCORPORATED
GOLDMAN, SACHS & CO.
J.P. MORGAN SECURITIES INC.
MORGAN STANLEY & CO. INCORPORATED
By: MERRILL LYNCH, PIERCE, FENNER
& SMITH INCORPORATED
By
---------------------------------------
Name:
Title:
21
<PAGE>
SCHEDULE A
<TABLE>
<CAPTION>
PRINCIPAL
UNDERWRITER AMOUNT
----------- ---------------
<S> <C>
Merrill Lynch, Pierce, Fenner &
Smith Incorporated......................................................... $
Goldman, Sachs & Co..........................................................
J. P. Morgan Securities Inc..................................................
Morgan Stanley & Co. Incorporated............................................
Total..................................................... $ 300,000,000
===============
</TABLE>
Sch A - 1
<PAGE>
SCHEDULE B
COMPUTER SCIENCES CORPORATION
$300,000,000 __% NOTES DUE 20__
1. The initial public offering price of the Securities shall be __% of
the principal amount thereof, plus accrued interest, if any, from the date of
issuance.
2. The purchase price to be paid by the Underwriters for the Securities
shall be __% of the principal amount thereof.
3. The interest rate on the Securities shall be __% per annum.
Sch B - 1
<PAGE>
SCHEDULE C
JURISDICTION OF DESIGNATED SUBSIDIARIES
<TABLE>
<S> <C>
1. CSC Consulting, Inc. 2. CSC Credit Services, Inc.
Alabama Delaware
Arizona Florida
California Illinois
Colorado Indiana
Connecticut Iowa
Delaware Kansas
Florida Kentucky
Georgia Louisiana
Illinois Minnesota
Indiana Missouri
Iowa Nebraska
Kentucky New York
Maine North Carolina
Maryland North Dakota
Michigan Ohio
Minnesota Oklahoma
Missouri Oregon
Nevada Pennsylvania
New Hampshire South Dakota
New Jersey Tennessee
New York Virginia
North Carolina Wisconsin
North Dakota
Ohio 3. CSC Outsourcing Inc.
Oklahoma
Oregon Arizona
Pennsylvania California
Rhode Island Connecticut
South Carolina Florida
South Dakota Illinois
Tennessee Maine
Texas Massachusetts
Vermont Louisiana
Virginia Maryland
Washington Michigan
Washington D.C. Minnesota
West Virginia Mississippi
Wisconsin Missouri
New Jersey
New York
North Carolina
Ohio
Pennsylvania
Sch C - 1
<PAGE>
Rhode Island Puerto Rico
South Carolina Rhode Island
Tennessee South Carolina
Texas South Dakota
Utah Tennessee
Vermont Texas
Virginia Utah
Washington D.C. Vermont
Virginia
4. CSC Healthcare, Inc. Washington
Washington D.C.
Alabama West Virginia
Alaska Wisconsin
Arizona Wyoming
Arkansas
Colorado
Connecticut
Delaware
Florida
Georgia
Hawaii
Idaho
Illinois
Indiana
Iowa
Kansas
Kentucky
Louisiana
Maine
Maryland
Massachusetts
Michigan
Minnesota
Mississippi
Missouri
Montana
Nebraska
Nevada
New Hampshire
New Jersey
New Mexico
New York
North Carolina
North Dakota
Ohio
Oklahoma
Oregon
Pennsylvania
</TABLE>
Sch C - 2
<PAGE>
EXHIBIT A
FORM OF OPINION OF COMPANY'S INSIDE COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
1. The Company is a Nevada corporation duly qualified as a foreign
corporation to transact business in each of the other 49 states of the United
States and is in good standing in all 50 states. CSC Enterprises has been duly
formed and is validly existing as a general partnership under the laws of the
State of Delaware. CSC Enterprises has the requisite partnership power and
authority to own, lease and operate its properties and to conduct its business
as it is presently being conducted.
2. The authorized, issued and outstanding capital stock of the
Company is as set forth in the Prospectus in the column entitled "Actual"
under the caption "Capitalization" (except for subsequent issuances or
subsequent repurchases, if any, pursuant to employee benefit or option plans
referred to in the Company's amended Annual Report on Form 10-K for the
period ended March 31, 2000, or subsequent repurchases or cancellations, if
any, of restricted stock awards that do not vest upon termination of
employment, or subsequent issuances of cash in lieu of fractional shares in
connection with the Company's acquisition of The Continuum Company, Inc.).
3. Each Designated Subsidiary has been duly organized and is validly
existing as a corporation, in good standing under the laws of the
jurisdiction of its incorporation, has power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus and is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure so to qualify
or to be in good standing would not result in a Material Adverse Effect (all
such jurisdictions are listed on Schedule I hereto); except as otherwise
disclosed in the Prospectus, all of the issued and outstanding capital stock
of each such Designated Subsidiary has been duly authorized and validly
issued, is fully paid and non assessable and is owned by the Company,
directly or through subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity; none of the outstanding
shares of capital stock of any Designated Subsidiary was issued in violation
of any preemptive or similar rights arising by operation of law, or under the
charter or by-laws of any Designated Subsidiary or under any agreement to
which the Company or any Designated Subsidiary is a party.
4. The execution, delivery and performance of the Purchase
Agreement, the Indenture and the Notes, and the consummation of the
transactions contemplated in the Purchase Agreement and in the Prospectus
(including the issuance and sale of the Notes and the use of the proceeds
from the sale of the Notes as described in the Prospectus under the caption
"Use of Proceeds"), and compliance by the Company with its obligations under
the Purchase Agreement, the Indenture and the Notes, do not and will not,
whether with or without the giving of notice or lapse of time or both,
conflict with or constitute a breach of, or default or Repayment Event
Ex A-1
<PAGE>
under or result in the creation or imposition of any lien, charge or encumbrance
upon any property or assets of the Company or any of its subsidiaries pursuant
to any contract, indenture, mortgage, deed of trust, loan or credit agreement
note, lease or any other agreement or instrument, known to me, to which the
Company or any of its subsidiaries is a party or by which it or any of them may
be bound, or to which any of the property or assets of the Company or any of its
subsidiaries is subject (except for such conflicts, breaches or defaults 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 applicable
organizational documents, charter or by-laws of any of the subsidiaries of the
Company.
5. The documents incorporated by reference in the Prospectus (other
than the financial statements and supporting schedules included therein or
omitted therefrom, as to which I express no opinion), when they became effective
or were filed with the Commission, as the case may be, complied as to form in
all material respects with the requirements of the 1933 Act or the 1934 Act, as
amended, as applicable, and the rules and regulations of the Commission
thereunder.
6. There are no franchises, contracts, indentures, mortgages, loan
agreements, notes, leases or other instruments required to be described or
referred to in the Prospectus or to be filed as exhibits thereto other than
those described or referred to therein or filed or incorporated by reference as
exhibits thereto, and the descriptions thereof or references thereto are correct
in all material respects.
7. The Company and its subsidiaries possess such Governmental Licenses
issued by the appropriate federal, state, local or foreign regulatory agencies
or bodies necessary to conduct the business now operated by them, except where
the failure to have any such Governmental License would not, either individually
or in the aggregate, have a Material Adverse Effect; the Company and its
subsidiaries are in compliance with the terms and conditions of all such
Governmental Licenses, except where the failure so to comply would not,
individually or in the aggregate, have a Material Adverse Effect; all of the
Governmental Licenses are valid and in full force and effect, except where the
invalidity of such Governmental Licenses or the failure of such Governmental
Licenses to be in full force and effect would not have a Material Adverse
Effect; and neither the Company nor any of its subsidiaries has received any
notice of proceedings relating to the revocation or modification of any such
Governmental Licenses which, individually or in the aggregate, if the subject of
an unfavorable decision, ruling or finding, would result in a Material Adverse
Effect.
I have participated in conferences with officers and representatives
of the Company, representatives of the independent public accountants for the
Company and the Underwriters and their counsel at which the contents of the
Registration Statement and Prospectus and related matters were discussed.
Except as set forth in paragraph 7, I have not undertaken to determine
independently the accuracy, completeness or fairness of the statements
contained in the Registration Statement or Prospectus (including, without
limitation, the financial statements, notes thereto, financial statement
schedules, other financial or accounting data included or incorporated by
reference in the Registration Statement or omitted therein or information
derived therefrom, as to which I make no comment), and because of the
limitations inherent in the examination made by me and knowledge available to
me and the nature and extent of my participation in such
Ex A-2
<PAGE>
conferences, except as set forth in paragraph 7, I am not passing upon and am
unable to assume, explicitly or implicitly, and, except as set forth in
paragraph 7, I do not assume, any responsibility for the accuracy,
completeness or fairness of such statements and I can give no assurance that
such examination, knowledge and participation in such conferences would
necessarily reveal matters of significance with respect to the items
discussed in the remainder of this paragraph. However, based on and subject
to the foregoing, nothing has come to my attention that would lead me to
believe that the Registration Statement (except for financial statements,
notes thereto, financial statement schedules, other financial or accounting
data included or incorporated by reference in the Registration Statement or
omitted therefrom or information derived therefrom, as to which I make no
statement), at the time it became effective contained an untrue statement of
a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading or that
the Prospectus or any amendment or supplement thereto (except for financial
statements, notes thereto, financial statement schedules, other financial or
accounting data included or incorporated by reference therein or omitted
therefrom or information derived therefrom, as to which I make no statement),
as of the date of the Prospectus, at the time any such amendment or
supplement thereto was issued or at the Closing Time, contained an untrue
statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading (it being understood
that I make no statement and express no belief with respect to that part of
the Registration Statement that constitutes the Form T-1).
Ex A-3
<PAGE>
EXHIBIT B
FORM OF OPINION OF COMPANY'S OUTSIDE COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
1. The Company has been duly incorporated and is validly existing and
in good standing as a corporation under the laws of the State of Nevada.
2. The Company has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under the Purchase
Agreement.
3. The Purchase Agreement has been duly authorized, executed and
delivered by the Company.
4. The Indenture has been duly authorized, executed and delivered by
the Company and (assuming the due authorization, execution and delivery thereof
by the Trustee) constitutes a legally valid and binding agreement of the
Company, enforceable against the Company in accordance with its terms. The
Indenture has been duly qualified under the Trust Indenture Act of 1939, as
amended.
5. The Securities are in the form contemplated by the Indenture, have
been duly authorized, executed and delivered by the Company and, assuming that
the Securities have been duly authenticated by the Trustee in the manner
described in the authentication order delivered to the Trustee by the Company on
the date hereof upon payment therefor, the Securities have been duly issued and
delivered by the Company and constitute legally valid and binding obligations of
the Company, enforceable against the Company in accordance with their terms and
will be entitled to the benefits of the Indenture.
6. The Securities and the Indenture conform in all material respects to
the descriptions thereof contained in the Prospectus and the Registration
Statement.
7. The information set forth in the Registration Statement under the
heading "Indemnification of Directors and Officers," insofar as such statements
constitute a summary of the legal matters, documents or proceedings referred to
therein, fairly present the information called for with respect to such legal
matters, documents or proceedings.
8. No filing with, or authorization, approval, consent, license, order,
registration, qualification or decree of, any court or governmental authority or
agency, other than under the blue sky laws of the various states and/or foreign
jurisdictions (as to which we render no opinion), is necessary or required in
connection with the due authorization, execution and delivery of the Purchase
Agreement or the due execution, delivery or performance of the Indenture by the
Company or for the offering, issuance, sale or delivery of the Securities,
except
Ex B-1
<PAGE>
such authorization, approval, consent, license, order, registration,
qualification or decree as have been obtained under the 1933 Act and the Trust
Indenture Act of 1939, as amended.
9. The execution, delivery and performance of the Purchase
Agreement, the Indenture and the Securities and the consummation of the
transactions contemplated in the Purchase Agreement and compliance by the
Company with its obligations under the Purchase Agreement, the Indenture and
the Securities do not and will not, whether with or without the giving of
notice or lapse of time or both, conflict with, constitute a breach of or
result in any violation of, the provisions of the charter or by-laws of the
Company, or any applicable law, statute, rule, regulation, judgment, order,
writ or decree, known to us, of any government, government instrumentality or
court having jurisdiction over the Company or any of its subsidiaries or any
of its properties, assets or operations.
10. The Company is not an "investment company," as such term is defined
in the Investment Company Act of 1940, as amended.
11. The Registration Statement, including any Rule 462(b) Registration
Statement, the Rule 430A Information and the Rule 434 Information, as
applicable, the Prospectus, excluding the documents incorporated by reference
therein, and each amendment or supplement to the Registration Statement and
Prospectus, excluding the documents incorporated by reference therein, as of
their respective effective or issue dates (other than the financial statements
and supporting schedules included therein or omitted therefrom, and the
Trustee's Statement of Eligibility on Form T-1 (the "Form T-1"), as to which we
need express no opinion) complied as to form in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations.
We have participated in conferences with officers and
representatives of the Company, representatives of the independent public
accountants for the Company and the Underwriters and their counsel at which
the contents of the Registration Statement and Prospectus and related matters
were discussed. Except as set forth in paragraph 7, we have not undertaken to
determine independently the accuracy, completeness or fairness of the
statements contained in the Registration Statement or Prospectus, (including,
without limitation, the financial statements, notes thereto, financial
statement schedules, other financial, statistical or accounting data included
or incorporated by reference therein or omitted therein or information
derived therefrom, as to which we make no comment) and because of the
limitations inherent in the examination made by us and knowledge available to
us and the nature and extent of our participation in such conferences, except
as set forth in paragraph 7, we are not passing upon and are unable to
assume, explicitly or implicitly, and, except as set forth in paragraph 7, we
do not assume, any responsibility for the accuracy, completeness or fairness
of such statements and we can give no assurance that such examination,
knowledge and participation in such conferences would necessarily reveal
matters of significance with respect to the items discussed in the remainder
of this paragraph. However, based on and subject to the foregoing, nothing
has come to our attention that would lead us to believe that the Registration
Statement (except for financial statements, notes thereto, financial
statement schedules, other financial, statistical or accounting data,
including, without limitation, valuations of contracts, included or
incorporated by reference in the Registration Statement or omitted therefrom
or information derived therefrom, as to which we make no statement), at the
time it became effective, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein
Ex B-2
<PAGE>
or necessary to make the statements therein not misleading or that the
Prospectus or any amendment or supplement thereto (except for financial
statements, notes thereto, financial statement schedules, other financial,
statistical or accounting data including, without limitation, valuations of
contracts, included or incorporated by reference in the Registration
Statement or omitted therefrom or information derived therefrom, statement),
as of the date of the Prospectus, at the time any such amendment or
supplement thereto was issued or at the Closing Time, contained an untrue
statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading (it being understood
that we make no statement and express no belief with respect to that part of
the Registration Statement that constitutes the Form T-1).
Ex B-3
