EXHIBIT 1
BOISE CASCADE CORPORATION
Debt Securities
UNDERWRITING AGREEMENT
1. Introductory. Boise Cascade Corporation, a Delaware corporation
(the "Company"), proposes to issue and sell from time to time certain of
its debt securities registered under the registration statement referred
to in Section 3 ("Registered Securities"). The Registered Securities will
be issued under an indenture, dated as of October 1, 1985 as amended as of
December 20, 1989, and August 1, 1990, ("Indenture"), between the Company
and Xxxxxx Guaranty Trust Company of New York, as trustee, in one or more
series, which series may vary as to interest rates, maturities, redemption
provisions, selling prices and other terms, with all such terms for any
particular series of the Registered Securities being determined at the
time of sale. Particular series of the Registered Securities will be sold
pursuant to a Terms Agreement referred to in Section 3, for resale in
accordance with terms of offering determined at the time of sale.
The Registered Securities involved in any such offering are
hereinafter referred to as the "Securities". The firm or firms which agree
to purchase the Securities are hereinafter referred to as the "Underwriters"
of such Securities, and the representative or representatives of the
Underwriters, if any, specified in a Terms Agreement referred to in
Section 3 are hereinafter referred to as the "Representatives"; provided,
however, that if the Terms Agreement does not specify any representative
of the Underwriters, the term "Representatives", as used in this Agreement
(other than in Sections 2(b), 8 and 14 and the second sentence of
Section 3), shall mean the Underwriters.
2. Representations, Warranties and Agreements of the Company. The
Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) A registration statement (No. 33- ) relating
to a portion of the Registered Securities and a registration
statement (No. 33- ) relating to the remainder of the
Registered Securities, including a prospectus which, as
supplemented from time to time, shall be used in connection
with all sales of the Securities, have been filed with the
Securities and Exchange Commission ("Commission") and have
become effective. The registration statement or statements
relating to the Securities in any offering hereunder
(including the documents incorporated by reference therein),
as amended at the time of any Terms Agreement referred to in
Section 3, are hereinafter collectively referred to as the
"Registration Statement", and the prospectus (including the
documents incorporated by reference therein) included in
such Registration Statement, as supplemented as contemplated
by Section 3 to reflect, among other things, the terms of
the Securities and the terms of the offering thereof, is
hereinafter referred to as the "Prospectus". Any reference
to the Registration Statement or Prospectus as amended or
supplemented shall be deemed to include any documents filed
after the effective date of the registration statement
relating to the Registered Securities under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and
so incorporated by reference in such registration statement
or the prospectus included therein.
(b) When each part of each registration statement
relating to the Registered Securities became effective, such
part and the prospectus included therein contained all
statements which were required to be stated therein in
accordance with the Securities Act of 1933 ("Act"), the
Trust Indenture Act of 1939 ("Trust Indenture Act") and the
rules and regulations of the Commission thereunder ("Rules
and Regulations") and in all respects conformed to the
requirements of the Act, the Trust Indenture Act and the
Rules and Regulations, and did not include 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 on the date of each
Terms Agreement referred to in Section 3, the Registration
Statement and the Prospectus, and at any and all times
subsequent thereto up to and including the Closing Date for
the Securities to which such Terms Agreement relates, the
Registration Statement and the Prospectus as then amended or
supplemented, will contain all statements which are required
to be stated therein in accordance with the Act, the Trust
Indenture Act and the Rules and Regulations and in all
respects will conform to the requirements of the Act, the
Trust Indenture Act and the Rules and Regulations, and will
not include 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;
except that the foregoing does not apply to statements in or
omissions from any such documents that are based upon
written information furnished to the Company by any
Underwriter through the Representatives, if any,
specifically for use therein.
(c) Each document or portion thereof incorporated by
reference in the prospectus included in the registration
statement relating to the Registered Securities at the
effective date of each registration statement conformed,
when filed with the Commission, in all respects to the
requirements of the Exchange Act, and the rules and
regulations of the Commission thereunder ("Exchange Act
Rules and Regulations"), and each document, if any, filed
after such effective date under the Exchange Act and deemed
to be incorporated by reference in the Prospectus in
accordance with Item 12 of Form S-3 conformed or will
conform, as the case may be, when so filed with the
requirements of the Exchange Act and the Exchange Act Rules
and Regulations.
3. Purchase, Sale and Delivery of Purchased Securities. The
obligation of the Underwriters to purchase the Securities will be
evidenced by an exchange of telegraphic or other written communications
("Terms Agreement") at the time the Company determines to sell the
Securities. The Terms Agreement shall incorporate by reference the
provisions of this Agreement, except as otherwise provided therein, and
will specify the firm or firms which will be Underwriters, the names of
any Representatives, the principal amount of Securities to be purchased
by each Underwriter, the purchase price to be paid by the Underwriters
and the terms of the Securities not already specified in the Indenture,
including, but not limited to, interest rate (if any), maturity, any
redemption provisions and any sinking fund requirements and whether any
of the Securities may be sold to institutional purchasers pursuant to
Delayed Delivery Contracts (as defined below) and, if so, the minimum
principal amount of such Securities that may be sold pursuant to any such
Contract and the maximum aggregate principal amount of Registered
Securities that may be sold pursuant to all of such Contracts. The Terms
Agreement will also specify the time and date of delivery and payment
(such time and date, or such other time as the Representatives and the
Company agree as the time for payment and delivery, being herein and in
the Terms Agreement referred to as the "Closing Date"), the place of
delivery and payment and any details of the terms of the offering that
should be reflected in the prospectus supplement relating to the offering
of Securities.
The Securities to be purchased by each Underwriter pursuant to the Terms
Agreement relating thereto shall be in definitive fully registered form
to the extent practicable, and in such authorized denominations and
registered in such names as the Representatives may request upon at
least forty-eight hours' prior notice to the Company, shall be delivered
by or on behalf of the Company to the Representatives for the account of
such Underwriter, against payment by such Underwriter or on its behalf of
the purchase price therefor by certified or official bank check or checks,
payable to the order of the Company in New York Clearing House (next day)
funds. The Company shall make certificates for the Securities available
to the Underwriters for checking and packaging at least one full business
day prior to the Closing Date at the place specified in such Terms
Agreement. The obligations of the Underwriters under this Agreement and
each Terms Agreement shall be several and not joint.
If the Terms Agreement provides for sales of Securities pursuant to
delayed delivery contracts, the Company authorizes the Underwriters to
solicit offers to purchase Securities from investors of the types set
forth in the Prospectus pursuant to delayed delivery contracts
substantially in the form of Exhibit A attached hereto ("Delayed
Delivery Contracts") but with such changes therein as the Company may
approve. The Underwriters will endeavor to make such arrangements and,
as compensation therefor, on the Closing Date, the Company will pay to
the Representatives, for the accounts of the Underwriters, the fee
set forth in such Terms Agreement in respect of the principal amount
of Securities sold pursuant to Delayed Delivery Contracts ("Contract
Securities"). The Company will enter into a Delayed Delivery Contract
in all cases where a sale of Contract Securities arranged by the
Underwriters has been approved by the Company, but, except as the
Company may otherwise agree, such Delayed Delivery Contract must be
for at least the minimum principal amount of Contract Securities set
forth in such Terms Agreement or attachment thereto, and the aggregate
principal amount of Contract Securities may not exceed the maximum
amount set forth in such Terms Agreement or attachment thereto. The
Company will advise the Representatives no later than 10:00 A.M.,
New York City time, on the third business day preceding any Closing
Date (or at such later time as the Representatives may otherwise agree)
of any sales of Contract Securities that have been so approved. The
Underwriters will not have any responsibility in respect of the
validity or performance of Delayed Delivery Contracts.
If the Company executes and delivers Delayed Delivery Contracts,
the Contract Securities will be deducted from the Securities to be
purchased by the several Underwriters and the aggregate principal
amount of Securities to be purchased by each Underwriter will be
reduced pro rata in proportion to the principal amount of Securities
set forth opposite each Underwriter's name in such Terms Agreement or
attachment thereto, except to the extent that the Representatives
determine that such reduction shall be otherwise than pro rata and so
advise the Company; provided, however, that the principal amount of
Securities to be purchased by all Underwriters shall be the total
principal amount of Securities less the aggregate amount of Contract
Securities.
It is understood that any Representative, acting individually and
not in a representative capacity, may (but shall not be obligated to)
make payment to the Company on behalf of any other Underwriter for
Securities to be purchased by such Underwriter. Any such payment by
such Representative shall not relieve any such Underwriter of any of
its obligations hereunder.
4. Offering by Underwriters. It is understood that after the
execution of a Terms Agreement relating to any Securities, the
Underwriters propose to offer such Securities for sale upon the
terms and conditions set forth in the Prospectus.
5. Covenants of the Company. In connection with any offering
of Securities, the Company covenants and agrees with the several
Underwriters that:
(a) The Company will make no further amendment or any
supplement to the Registration Statement or Prospectus,
after the date of the Terms Agreement relating to such
Securities and prior to the Closing Date for such
Securities, which shall be reasonably disapproved by the
Representatives for such Securities promptly after
reasonable notice; will advise the Representatives promptly
of any such amendment or supplement after such Closing Date
and furnish the Representatives with copies thereof; will
file promptly all reports and any definitive proxy or
information statements required to be filed by the Company
with the Commission pursuant to Section 13, 14 or 15(d) of
the Exchange Act for so long as the delivery of a prospectus
is required in connection with the offering or sale of such
Securities; will advise the Representatives, promptly after
it receives notice thereof, of the time when any amendment
to the Registration Statement has become effective or any
supplement to the Prospectus or any amended Prospectus has
been filed, of the issuance by the Commission of any stop
order or of any order preventing or suspending the use of
the Prospectus, any supplement to the Prospectus or any
amended Prospectus and of the initiation of any proceeding
for any such purpose; and in the event of the issuance of
any stop order or of any order preventing or suspending the
use of the Prospectus or any such supplement to the
Prospectus or amended Prospectus, will use promptly its best
efforts to obtain its withdrawal.
(b) If at any time when a prospectus relating to such
Securities is required to be delivered under the Act, any
event occurs as a result of which the Prospectus as then
amended or supplemented would include an untrue statement of
a material fact, or omit to state any material fact
necessary to make the statements therein, in the light of
the circumstances under which they were made, not
misleading, or if it is necessary at any time to amend the
Prospectus to comply with the Act or the Trust Indenture
Act, the Company promptly will (i) prepare and file with the
Commission an amendment or supplement which will correct
such Statement or omission or an amendment which will effect
such compliance, or (ii) prepare and file with the
Commission documents deemed to be incorporated by reference
in the Prospectus as then amended or supplemented which will
correct such statement or omission or effect such compliance.
(c) As soon as practicable, but not later than
16 months, after the date of each Terms Agreement, the
Company will make generally available to its securityholders
an earnings statement covering a period of at least
12 months beginning after the later of (i) the effective
date of the registration statement relating to the
Registered Securities, (ii) the effective date of the most
recent post-effective amendment to the Registration
Statement to become effective prior to the date of such
Terms Agreement and (iii) the date of the Company's most
recent Annual Report on Form 10-K filed with the Commission
prior to the date of such Terms Agreement, which will
satisfy the provisions of Section 11(a) of the Act. It is
understood that compliance by the Company with Rule 158
under the Act will satisfy the Company's obligations
pursuant to this Section 5(c).
(d) The Company will furnish to the Representatives
copies of the Registration Statement, any related
preliminary prospectus (which, including documents
incorporated by reference therein, is hereinafter referred
to as a "Preliminary Prospectus"), any related preliminary
prospectus supplement, the Prospectus, and all amendments
and supplements to such documents, and all documents
incorporated by reference in any of the foregoing documents,
in each case as soon as available and in such quantities as
the Representatives may reasonably request. A copy of each
document prepared or filed by the Company on or prior to the
date of each Terms Agreement shall be furnished to the
Representatives on behalf of the Underwriters prior to their
execution of such Terms Agreement; provided, however, that
if such documents are not available, the Company shall
furnish to such Representatives the information included or
to be included therein, except that in such case the Company
need not furnish such Representatives with information to be
included in the prospectus supplement relating to the
Securities as to the terms of the Securities and their
manner of distribution.
(e) The Company will cooperate with the Underwriters
in qualifying such Securities for offering and sale and in
determining their eligibility for investment under the laws
of such jurisdictions as the Representatives designate and
will continue such qualifications in effect so long as
required for the distribution of such Securities; provided,
however, that the Company shall not be obligated to file any
general consent to service, or to qualify as a foreign
corporation in any state in which it is not now so qualified.
(f) During a period of five years from the date of any
Terms Agreement relating to such Securities, the Company
will promptly furnish to the Representatives, and upon
request, to each of the other Underwriters, if any, a copy
of its annual report for each fiscal year and current
reports of the Company for each quarterly period, in each
case in the forms and at the times furnished to shareholders
of the Company, and, as soon as available, a copy of each
report of the Company filed with the Commission; and, during
a period of three years from the date of the Terms Agreement
relating to such Securities, the Company will furnish to the
Representatives such other information concerning the
Company as the Representatives may reasonably request.
(g) The Company will use its best efforts to obtain
the listing of such Securities, subject to notice of
issuance, on such national securities exchanges, if any, as
are indicated in the Terms Agreement relating to such
Securities, and the registration thereof under the Exchange
Act, in each case prior to the Closing Date for such Securities.
(h) The Company will not, without the prior consent of
the Representatives, offer, sell, contract to sell or
otherwise dispose of any debt securities of the Company
having a maturity of more than one year, during the period
beginning from and including the date of execution of the
Terms Agreement with respect to such Securities and
continuing to and including the earlier of (i) the date
30 days after the date of execution of such Terms Agreement
and (ii) the date on which any trading restrictions on the
sale of such Securities are terminated.
6. Expenses. The Company agrees with each Underwriter of any
Securities that the Company will pay or cause to be paid the following:
(a) The fees, disbursements and expenses of the
Company's counsel and accountants in connection with the
registration of the Registered Securities under the Act and
all other expenses in connection with the preparation,
printing and filing of the Registration Statement, any
Preliminary Prospectus, any preliminary prospectus
supplement, the Prospectus and any amendments and
supplements thereto and the mailing and delivery of copies
thereof to the Underwriters and dealers;
(b) The cost of printing this Agreement and any Terms
Agreement, any agreement among Underwriters, any Delayed
Delivery Contract, any Indenture, and any other documents in
connection with the offering, purchase, sale and delivery of
the Securities;
(c) All expenses in connection with the qualification
of the Registered Securities for offering and sale as
provided in Section 5(e) hereof, including the fees and
disbursements of counsel for the Underwriters in connection
with such qualification;
(d) Any fees charged by securities rating services for
rating the Securities;
(e) The cost of preparing the Securities;
(f) The fees and expenses of the Trustee and any agent
of the Trustee and the fees and disbursements of counsel for
the Trustee in connection with the Indenture and the Securities;
(g) Any filing fees payable to the National Association
of Securities Dealers, Inc. with respect to the Registered
Securities;
(h) Out-of-pocket expenses incurred in distributing
any Preliminary Prospectuses or preliminary prospectus
supplements to the Underwriters; and
(i) All other costs and expenses incident to the
performance of its obligations hereunder which are not
otherwise specifically provided for in this Section 6.
It is understood, however, that, except as provided in this
Section 6, the Underwriters will pay all of their own costs and expenses,
including the fees of their counsel, transfer taxes on resale of any of
the Securities by them, and any advertising expenses connected with any
offers they may make.
7. Conditions of the Obligations of the Underwriters. The
obligations of the several Underwriters to purchase and pay for
any Securities will be subject to the accuracy of the representations
and warranties on the part of the Company herein, to the accuracy of
the statements of the Company officers made in any certificate
furnished pursuant to the provisions hereof, to the performance by
the Company of its obligations hereunder and to the following
additional conditions precedent:
(a) Prior to such Closing Date no stop order
suspending the effectiveness of the Registration Statement
shall have been issued and no proceedings for that purpose
shall have been instituted, or to the knowledge of the
Company or the Representatives, shall be contemplated by the
Commission.
(b) The Representatives shall not have advised the
Company or been advised by the Company or the Commission
that the Registration Statement or Prospectus or any
amendment or supplement thereto contains an untrue statement
of fact or omits to state a fact which the Representatives
have concluded, after conferring with Xxxxxxxx & Xxxxxxxx,
counsel for the Underwriters, is in either case material and
in the case of an omission is required to be stated therein
or is necessary to make the statements therein not misleading.
(c) The Representatives shall have received an opinion
or opinions of the General Counsel or an Associate General
Counsel for the Company, dated such Closing Date, to the
effect set forth in Exhibit B hereto.
(d) The Representatives shall have received from
Xxxxxxxx & Xxxxxxxx, counsel for the Underwriters, such
opinion or opinions, dated such Closing Date, with respect
to the incorporation of the Company, the validity of the
Securities, the Registration Statement, the Prospectus and
such other related matters as the Representatives may
reasonably require, and the Company shall have furnished to
such counsel such documents as they reasonably request for
the purpose of enabling them to pass upon such matters.
(e) The Representatives shall have received a
certificate of either the Chairman of the Board of
Directors, the President or a Vice President of the Company,
and of either the principal financial or accounting officer
of the Company, dated such Closing Date, to the effect that
the representations and warranties on the part of the
Company herein are true and correct as of such Closing Date
with the same force and effect as if made on that date, and
that the Company has performed all its obligations hereunder
to be performed at or prior to that date, and as to such
other matters as the Representatives may reasonably request.
(f) The Representatives shall have received a signed
letter or letters from Xxxxxx Xxxxxxxx & Co., dated such
Closing Date, addressed to the Company and to the
Underwriters, with conformed copies for each of the
Underwriters, in form and substance satisfactory to the
Representatives.
(g) The Company shall have furnished to the
Representatives such further information and documents as
the Representatives shall have reasonably requested.
(h) Between the time of execution of such Terms
Agreement and such Closing Date there shall not have
occurred any of the following: (i) a general suspension or
material limitation in trading of securities on the New York
Stock Exchange; (ii) a declaration of a bank moratorium by
authorities of the United States or of the State of New
York; (iii) the general establishment of minimum prices by
the New York Stock Exchange or by the Commission; or
(iv) the outbreak or escalation of major hostilities
involving Armed Forces of the United States or the
declaration by the United States of a national emergency or
war, if, in the good faith judgment of the Representatives,
the effect of any event described in this clause (iv) on the
financial markets is such that it is impracticable or
inadvisable to proceed with completion of the sale of and
payment for the securities.
(i) Between the time of execution of such Terms
Agreement and such Closing Date there shall not have been
any change in the capital stock or short-term or long-term
indebtedness for borrowed money of the Company and its
subsidiaries on a consolidated basis, or any change
(financial or otherwise) in, or any development involving a
prospective change (financial or otherwise) in or affecting,
the financial position, stockholders' equity or results of
operations of the Company and its subsidiaries on a
consolidated basis or the general affairs of the Company and
its subsidiaries considered as a whole, except as set forth
or contemplated in the Prospectus as of the date of such
Terms Agreement, which in the judgment of the Representatives
is material and adverse.
(j) Between the time of execution of such Terms
Agreement and such Closing Date no downgrading shall have
occurred in the rating accorded the Company's senior debt
securities by any "nationally recognized statistical rating
organization," as that term is defined by the Commission for
purposes of Rule 436(g)(1) of Regulation C.
The Company will furnish the Representatives with such conformed
copies of such opinions, certificates, letters and documents as the
Representatives reasonably request.
In the event that the purchase of such Securities does not occur
by reason of subsection (h), (i) or (j) of this Section 7, the Company
shall have no liability to the Underwriters except for expenses to be
paid or reimbursed as set forth in Section 6 and its obligations under
Section 8.
8. Indemnification and Contribution. (a) The Company will
indemnify and hold harmless each Underwriter and each person, if any,
who controls any Underwriter within the meaning of the Act against
any losses, claims, damages or liabilities, joint or several, to which
such Underwriter or such controlling person may become subject, under
the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof arise out of or are based
upon any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement, any Preliminary
Prospectus, the Prospectus, or any amendment or supplement thereto,
or any related preliminary prospectus supplement, or arise out of or
are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make
the statements therein not misleading, and will reimburse each
Underwriter and each such controlling person for any legal or other
expenses reasonably incurred by such Underwriter and each such
controlling person in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however,
that the Company will not be liable in any such case to the extent
that any such loss, claim, damage, liability or action arises out of
or is based upon an untrue statement or alleged untrue statement in
or omission or alleged omission from any of such documents in reliance
upon and in conformity with written information furnished to the
Company by any Underwriter through the Representatives, if any,
specifically for use therein; and provided, further, that the
indemnity agreement contained in this paragraph in respect of any
Preliminary Prospectus shall not inure to the benefit of any
Underwriter (or of any person controlling such Underwriter) on
account of any such losses, claims, damages, or liabilities (or
actions in respect thereof), arising from the sale of Securities
to any person if such Underwriter shall have failed to send or
give to such person (i) with or prior to the written confirmation
of such sale, a copy of the Prospectus or the Prospectus as amended
or supplemented, if any amendments or supplements thereto shall have
been furnished at or prior to the time of written confirmation of
the sale involved, or (ii) with or prior to the delivery of such
Securities to such person, a copy of any amendment or supplement to
the Prospectus which shall have been furnished subsequent to such
written confirmation and prior to the delivery of such Securities
to such person, to the extent that any such loss, claim, damage, or
liability results from an untrue statement or an omission which was
corrected in the Prospectus or the Prospectus as amended or
supplemented. This indemnity agreement will be in addition to any
liability which the Company may otherwise have.
(b) Each Underwriter will indemnify and hold harmless the
Company, each of its directors, each of its officers who have
signed the Registration Statement and each person, if any, who
controls the Company within the meaning of the Act, against any
losses, claims, damages or liabilities to which the Company or
any such director, officer or controlling person may become
subject, under the Act or otherwise insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of
or are based upon any untrue statement or alleged untrue statement
of any material fact contained in the Registration Statement, or
any Preliminary Prospectus, the Prospectus, or any amendment or
supplement thereto, or any related preliminary prospectus
supplement, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein
not misleading, in each case to the extent, but only to the extent,
that such untrue statement or alleged untrue statement or omission
or alleged omission was made therein in reliance upon and in
conformity with written information furnished to the Company by
such Underwriter through the Representatives, if any, specifically
for use therein; and will reimburse any legal or other expenses
reasonably incurred by the Company or any such director, officer
or controlling person in connection with investigating or defending
any such loss, claim, damage, liability or action. This indemnity
agreement will be in addition to any liability which such Underwriter
may otherwise have.
(c) Promptly after receipt by an indemnified party under
this Section of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be
made against the indemnifying party under this Section, notify
the indemnifying party of the commencement thereof; but the omission
so to notify the indemnifying party will not relieve it from any
liability which it may have to any indemnified party otherwise than
under this Section. In case any such action is brought against any
indemnified party and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly with
any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who will
not, except with the consent of the indemnified party, be counsel to
the indemnifying party), and after notice from the indemnifying party
to such indemnified party of its election so to assume the defense
thereof, the indemnifying party will not be liable to such indemnified
party under this Section for any legal or other expenses subsequently
incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation. No indemnifying
party shall be liable for any compromise or settlement of any such
action effected without its consent.
(d) If the indemnification provided for in subsection (a)
or (b) above is for any reason, other than as specified in such
subsections, held by a court to be unavailable and the Company or
any Underwriter has been required to pay damages as a result of a
determination by a court that the Registration Statement, any
Preliminary Prospectus, the Prospectus, or any amendment or
supplemental thereto, or any related preliminary prospectus
supplement, contains an untrue statement of a material fact or
omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, then the
Company shall contribute to the damages paid by the Underwriters,
and the Underwriters shall contribute to the damages paid by the
Company, but in each case only to the extent that such damages
arise out of or are based upon such untrue statement or omission,
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 from the offering of the Securities,
and the relative fault of the Company on the one hand and the
Underwriters on the other in connection with the statements or
omissions which resulted in such damages 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 shall be deemed to be in the same proportion as the
total net proceeds from the offering (before deducting expenses)
received by the Company bear to the total underwriting discounts
and commissions received by the Underwriters, in each case as set
forth in the Prospectus. The relative fault of the Company on
the one hand and the Underwriters on the other shall be
determined by reference to, among other things, whether the
untrue statement of a material fact or the omission to state a
material fact relates to information supplied by the Company or
the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such
untrue statement or omission. The Company and the Underwriters
agree that it would not be just and equitable if their respective
obligations to contribute pursuant to this subsection (d) were to
be determined by pro rata allocation of the aggregate damages
(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 in the first
sentence of this subsection (d). For purposes of this
subsection (d), the term "damages" shall include any legal or
other expenses reasonably incurred by the Company or any of the
Underwriters in connection with investigating or defending
against any action or claim which is the subject of the
contribution provisions of this subsection (d). Notwithstanding
the provisions of this subsection (d), 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 such untrue statement or
omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The Underwriters' obligations
in this subsection (d) to contribute are several in proportion to
their respective underwriting obligations and not joint.
9. Default of Underwriters. If any Underwriter or
Underwriters default in their obligations to purchase Securities
which they may have agreed to purchase under the Terms Agreement
relating to such Securities and the aggregate principal amount of
such Securities that such defaulting Underwriter or Underwriters
agreed but failed to purchase does not exceed 10% of the total
principal amount of the Securities to be purchased under such
Terms Agreement, the other Underwriters shall be obligated
severally, in proportion to their respective commitments under
this Agreement and such Terms Agreement, to purchase the
Securities that such defaulting Underwriters agreed but failed to
purchase. If any Underwriter or Underwriters so default and the
aggregate principal amount of the Securities with respect to
which such default or defaults occur is more than 10% of the
total principal amount of the Securities to be purchased under
such Terms Agreement, and arrangements satisfactory to the
Representatives and the Company for the purchase of such
Securities by other persons are not made within 36 hours after
such default, such Terms Agreement will terminate without
liability on the part of any non-defaulting Underwriter or the
Company, except for the expenses to be paid or reimbursed by the
Company pursuant to Section 6 and the respective obligations of
the Company and the Underwriters pursuant to Section 8. As used
in this Agreement, the term "Underwriter" includes any person
substituted for an Underwriter under this Section 9. Nothing
herein will relieve a defaulting Underwriter from liability for
its default.
10. Reimbursement of Underwriters' Expenses. If the sale
of the Securities pursuant to this Agreement and the Terms
Agreement relating to such Securities is not consummated because
any condition to the Underwriters' obligations hereunder and
thereunder is not timely satisfied, or because of any failure or
inability on the part of the Company to perform any agreement on
its part contained herein or therein, then, unless otherwise
provided in the last paragraph of Section 7, the Company will
reimburse the Underwriters or cause them to be reimbursed upon
demand for all out-of-pocket expenses (including reasonable fees
and disbursements of their counsel) that shall have been incurred
by them in connection with the offering of such Securities, and
the Company shall have no further liability hereunder except as
provided in Sections 6 and 8.
11. Representations and Indemnities to Survive Delivery.
The respective indemnities, agreements, representations,
warranties, and other statements of the Company or its officers
and of the several Underwriters set forth in or made pursuant to
this Agreement or any Terms Agreement relating to the Securities
will remain in full force and effect, regardless of any investigation,
or statement as to the results thereof, made by or on behalf of any
Underwriter or the Company or any of its officers, directors or
controlling persons and will survive delivery of and payment for
the Securities.
12. Notices. All communications hereunder will be in
writing, and, if sent to the Underwriters, will be mailed, delivered
or telegraphed and confirmed to the Representatives at the address
or addresses set forth in the Terms Agreement, or, if sent to the
Company, will be mailed, delivered or telegraphed and confirmed to
it at Boise Cascade Corporation, 0000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxx,
Xxxxx 00000, Attention: General Counsel.
13. Successors. This Agreement and each Terms Agreement
will inure to the benefit of and be binding upon the Company,
such Underwriters as are identified in Terms Agreements and their
respective successors and, to the extent provided in Section 8,
the officers, directors and controlling persons referred to in
Section 8, and no other person will have any right or obligation
hereunder.
14. Representation of Underwriters. In all dealings with
the Company under this Agreement and any applicable Terms Agreement,
the Representatives represent that they shall act on behalf of each
of the Underwriters and that any action under this Agreement and such
Terms Agreement taken by the Representatives will be binding upon all
the Underwriters.
15. Governing Law. This Agreement and each Terms Agreement
shall be governed by, and construed in accordance with, the laws of
the State of New York.
16. Counterparts. Each Terms Agreement may be executed in
counterparts, all of which, taken together, shall constitute a single
agreement.
JL40708A
EXHIBIT A
(Three copies of this Delayed Delivery Contract should be signed
and returned to the address shown below so as to arrive not later
than 9:00 a.m., New York Time, on _______________, ______.*)
DELAYED DELIVERY CONTRACT
[Insert date of initial public offering.]
BOISE CASCADE CORPORATION
c/o [Insert name(s) of Representative(s)
of the Underwriters]
Gentlemen:
The undersigned hereby agrees to purchase from Boise Cascade
Corporation, a Delaware corporation (the "Company"), and the
Company agrees to sell to the undersigned, [if one delayed
closing, insert: as of the date hereof, for delivery on
__________, (the "Delivery Date")]
$_______________ principal amount of the Company's [Insert
title of securities] ("Securities"), offered by the Company's
Prospectus dated _______________, and a Prospectus Supplement
dated _______________, relating thereto, receipt of copies of
which is hereby acknowledged, at ___% of the principal amount
thereof plus accrued interest, if any, and on the further terms
and conditions set forth in this Delayed Delivery Contract
("Contract").
[If two or more delayed closings, insert the following:
The undersigned will purchase from the Company as of the
date hereof for delivery on the dates set forth below, Debt
Securities in the principal amounts set forth below:
Delivery Date Principal Amount
Each of such delivery dates is hereinafter referred to as a
Delivery Date.]
Payment for the Securities which the undersigned has agreed
to purchase for delivery on-the-each-Delivery Date shall be made
to the Company or its order by immediately available funds at the
office of ____________________ at __________.m., New York Time,
on-the-such-Delivery Date upon delivery to the undersigned of the
Securities to be purchased by the undersigned -- for delivery on
such Delivery Date -- in definitive form and in such denominations
and registered in such names as the undersigned may designate by
written or telegraphic communication addressed to the Company not
less than five full business days prior to-the-such-Delivery Date.
It is expressly agreed that the purchase hereunder of
Securities is to be regarded in all respects as a purchase as of
the date of this Contract; that the obligation of the Company to
make delivery of and accept payment for, and the obligation of
the undersigned to take delivery of and make payment for, the
Securities on-the-each-Delivery Date shall be subject only to the
conditions that (1) the purchase of the Securities shall not-at-
the-such-Delivery Date be prohibited under the laws of any
jurisdiction in the United States to which the undersigned is
subject and (2) the Company shall have sold to the Underwriters
the total principal amount of the Securities less the principal
amount thereof covered by this and other similar Contracts.**
The undersigned represents that its investment in such Securities
is not, as of the date hereof, prohibited under the laws of any
jurisdiction to which the undersigned is subject.
__________
* Insert date which is third full business day prior to
Closing Date under Terms Agreement.
** Modify appropriately if the Underwriters may be obligated to
take less than all of the Securities under the Terms
Agreement.
__________
Promptly after completion of the sale of Securities to the
Underwriters, the Company will mail or deliver to the undersigned
at its address set forth below notice to such effect, accompanied
by a copy of the opinion of counsel for the Company delivered to
the Underwriters in connection therewith.
This Contract will inure to the benefit of, and be binding
upon, the parties hereto and their respective successors, but
will not be assignable by either party hereto without the written
consent of the other.
This Contract may be executed by either of the parties
hereto in any number of counterparts each of which shall be
deemed to be an original, but all such counterparts shall
constitute one and the same instrument.
It is understood that the acceptance of any such Contract is
in the Company's sole discretion and without limiting the
foregoing, need not be on a first-come, first-served basis. If
this Contract is acceptable to the Company, it is requested that
the Company sign the form of acceptance below and mail or deliver
one of the counterparts hereof to the undersigned at its address
set forth below. This will become a binding contract between the
Company and the undersigned when such counterpart is so mailed or
delivered.
Very truly yours,
_________________________
(Name of Purchaser)
By_______________________
_________________________
(Title of Signatory)
_________________________
__________________________
(Address of Purchaser)
BOISE CASCADE CORPORATION
Accepted as of the above date.
By:_____________________________
Title:
JP40708D
EXHIBIT B
OPINION OF GENERAL COUNSEL
OR ASSOCIATE GENERAL COUNSEL
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
state of Delaware, with corporate power and authority under such
laws to own its properties and conduct its business as described
in the Prospectus;
(ii) The Securities have been duly authorized, executed,
authenticated, issued and delivered and constitute valid and
legally binding obligations of the Company entitled to the
benefits provided by the Indenture, enforceable in accordance
with their terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium, and similar laws of general
applicability relating to or affecting creditors' rights and to
general equity principles;
[--if delayed delivery--(ii) The Securities have been duly
authorized and (a) the Securities (other than Contract
Securities) have been duly authorized, executed, authenticated,
issued and delivered and constitute valid and legally binding
obligations of the Company entitled to the benefits provided by
the Indenture, enforceable in accordance with their terms,
subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium, and similar laws of general
applicability relating to or affecting creditors' rights and to
general equity principles and (b) the Contract Securities when
executed, authenticated, issued and delivered against payment in
accordance with the Delayed Delivery Contracts will constitute,
valid and legally binding obligations of the Company entitled to
the benefits provided by the Indenture, enforceable in accordance
with their terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium, and similar laws of general
applicability relating to or affecting creditors' rights and to
general equity principles.]
(iii) The Indenture has been duly authorized, executed and
delivered by the Company, and has been duly qualified under the
Trust Indenture Act, and the Indenture constitutes a valid and
legally binding instrument, enforceable in accordance with its
terms subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium, and similar laws relating to or
affecting creditors' rights and by general equity principles;
(iv) This Agreement [,] [and] the Terms Agreement [and any
Delayed Delivery Contracts] relating to such Purchased Securities
have been duly authorized, executed and delivered to the Company;
(v) The Registration Statement has become effective under
the Act, and, to the best of the knowledge of such counsel, no
stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose
have been instituted or are pending or contemplated by the
Commission;
(vi) When each part of the Registration Statement relating
to the Securities became effective, such part and the Prospectus
included therein complied as to form in all material respects
with the requirements of the Act, the Trust Indenture Act and the
Rules and Regulations, and while such counsel has not
independently verified the accuracy, completeness or fairness of
such statements and takes no responsibility therefor, such
counsel has no reason to believe that such documents contained
any untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to make
the statements therein not misleading; and on the date of the
Terms Agreement and on the Closing Date for the Securities to
which such Terms Agreement relates, the Registration Statement
and the Prospectus as then amended or supplemented complied or
complies, as the case may be, as to form in all material respects
with the requirements of the Act, the Trust Indenture Act and the
Rules and Regulations and while such counsel has not
independently verified the accuracy, completeness or fairness of
such statements and takes no responsibility therefor, such
counsel has no reason to believe that such documents contained or
contains, as the case may be, any untrue statement of a material
fact or omitted or omits to state any material fact required to
be stated therein or necessary to make the statements therein not
misleading; it being understood that such counsel need express no
opinion or belief as to the financial statements or financial
data contained in the Registration Statement or the Prospectus or
any such amendment or supplement;
(vii) Each document incorporated by reference in the
Registration Statement or Prospectus or any amendment or
supplement thereto, at the time such document was filed or became
effective under the Act, as the case may be, complied as to form
in all material respects with the requirements of the Exchange
Act and the Rules and Regulations;
(viii) The Company has the power and authority (corporate
and other) to own its properties and conduct its business in all
material respects as described in the Prospectus; and
(ix) The descriptions in the Registration Statement and
Prospectus of statutes, legal and governmental proceedings and
contracts and other documents are accurate and fairly present the
information required to be shown and such counsel does not know
of any legal or governmental proceedings required to be described
in the Prospectus which are not described as required in all
material respects, nor of any contract or documents of a
character required to be described in the Registration Statement
or Prospectus which are not described as required in all material
respects.
JP40708E
BOISE CASCADE CORPORATION
("Company")
Debt Securities
TERMS AGREEMENT
[Date]
[Names of Representative(s) or Underwriters (if no
Representatives)]
[As Representative(s) of
the several Underwriters,]
[Address of Representative(s)]
Dear Sirs:
Boise Cascade Corporation (the "Company") proposes, subject
to the terms and conditions stated herein and in the Underwriting
Agreement, as filed as an Exhibit to the Company's registration
statement on Form S-3 (No. 33- ) (the "Underwriting
Agreement"), to issue and sell to the Underwriters named in
Schedule I hereto the securities specified in Schedule II hereto
(the "Securities"). Each of the provisions of the Underwriting
Agreement is incorporated herein by reference in its entirety,
and shall be deemed to be a part of this Terms Agreement to the
same extent as if such provision had been set forth in full
herein. [Each reference to the Representatives herein and in the
provisions of the Underwriting Agreement so incorporated by
reference shall be deemed to refer to you.] You will act for the
several Underwriters in connection with this financing, and any
action taken under the Underwriting Agreement or this Terms
Agreement by you will be binding upon all the Underwriters.
Unless otherwise defined herein, terms defined in the Underwriting
Agreement are used herein as therein defined.
An amendment to the Registration Statement, or a supplement
to the Prospectus, as the case may be, relating to the Securities,
in the form heretofore delivered to you is now proposed to be filed,
or in the case of a supplement, mailed for filing, with the Commission.
Subject to the terms and conditions set forth herein and in
the Underwriting Agreement, the Company agrees to issue and sell
to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company, at a
purchase price to the Underwriters set forth in Schedule II hereto,
the principal amount of Securities set forth opposite the name of
such Underwriter in Schedule I hereto, less the principal amount of
Securities covered by Delayed Delivery Contracts, if any, as may be
specified in such Schedule II.
We confirm that, to the best of our knowledge after reasonable
investigation, the representations and warranties of the undersigned
in the Underwriting Agreement are true and correct, no stop order
suspending the effectiveness of the Registration Statement (as
defined in the Underwriting Agreement) or of any part thereof has
been issued and no proceedings for the purpose have been instituted
or, to the knowledge of the undersigned, are contemplated by the
Securities and Exchange Commission and, subsequent to the respective
dates of the most recent financial statements in the Prospectus (as
defined in the Underwriting Agreement), there has been no material
adverse change in the financial position or results of operations of
the undersigned and its subsidiaries except as set forth in or
contemplated by the Prospectus.
If the foregoing is in accordance with your understanding,
kindly sign and return to us two counterparts hereof, and upon
acceptance hereof by you, on behalf of each of the Underwriters,
this letter and such acceptance hereof, including the provisions
of the Underwriting Agreement incorporated herein by reference,
shall constitute a binding agreement between each of the
Underwriters and the Company.
Very truly yours,
BOISE CASCADE CORPORATION
By___________________________
Title:
Accepted as of the date hereof:
[Names of Representative(s)]
On behalf of each of the Underwriters
By_________________________________
Title:
If the Securities are denominated in a currency other than
United States dollars, make appropriate modifications to provisions
of the Terms Agreement and the schedules thereto (e.g., type of funds
specified under "Specified Funds for Payment of Purchase Price") and
consider including in the Terms Agreement such changes and additions
to the Underwriting Agreement as may be appropriate in the circumstances,
e.g., expanding Section 7(h) to cover debt securities denominated in
the currency in which the Securities are denominated, expanding
Section 7(h)(iv) to cover a banking moratorium declared by authorities
in the country of such currency, expanding Section 7(h) to cover a
change or prospective change in, or governmental action affecting,
exchange controls applicable to such currency, and modifying Section iv
of the Opinion of General Counsel (Exhibit B to the Underwriting
Agreement) to permit a statement to the effect that enforcement of the
Indenture and the Securities is subject to provisions of law which may
require that a judgment for money damages rendered by a court in the
United States be expressed only in United States dollars and appropriate
exceptions as to any provisions requiring payment of additional amounts.
Also consider requiring an opinion of counsel for the Company confirming
information as to United States tax matters in the Prospectus and an
opinion of foreign counselor the Company regarding such matters as
foreign consents, approvals, authorizations, licenses, waivers,
withholding taxes, transfer or stamp taxes and any information as
to foreign laws in the Prospectus.
JP40708F
SCHEDULE I
Principal
Amount
of Purchased
Securities
Underwriter to be Purchased
[Name(s) of Representatives]....................$
[Name(s) of other Underwriters].................$
Total...........................................$
SCHEDULE II
Title of Securities:
Principal Amount:
Expected Reoffering Price: % of principal amount, subject to change
by the Representatives
Purchase Price: % of principal amount, plus accrued interest
[ , if any,] from , 19 .
Maturity:
Interest: [ % per annum, from , 19 , payable semiannually
on and , commencing , 19 , to the holders of record
on the proceeding or , as the case may be. [Zero coupon.]
Redemption Provisions:
Sinking Fund Provisions:
Stock Exchange Listing:
Place for Checking and Packaging Purchased Securities:
Closing Date and Time:
Closing Location:
[Delayed Delivery Contracts: [None.] [Delivery Date[s] shall be
, 19 . Underwriters' fee is % of the principal amount
of the Contract Securities.]
Minimum amount of each Contract:
Maximum amount of all Contracts:]
Address for Notices per Section 12:
Other Terms:
JP40708G
