CHEMICAL XXXXXX CORPORATION
$100,000,000
10-3/8% Senior Notes due 2005
PURCHASE AGREEMENT
Dated as of June 10, 1997
$100,000,000
CHEMICAL XXXXXX CORPORATION
(a Pennsylvania corporation)
10-3/8% Senior Notes due 2005
PURCHASE AGREEMENT
June 10, 1997
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Schroder Xxxxxxxx & Co. Incorporated
as Representatives of the several
Initial Purchasers
c/x Xxxxxxx Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
North Tower
World Financial Center
New York, New York 10281-1209
Ladies and Gentlemen:
Chemical Xxxxxx Corporation, a Pennsylvania corporation (the
"Company"), confirms its agreement with Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated ("Xxxxxxx Xxxxx") and each of the other
Initial Purchasers named in Schedule A hereto (collectively, the "Initial
Purchasers," which term shall also include any initial purchaser substituted as
hereinafter provided in Section 11 hereof), for whom Xxxxxxx Xxxxx and Schroder
Xxxxxxxx & Co. Incorporated are acting as representatives (in such capacity, the
"Representatives"), with respect to the issue and sale by the Company and the
purchase by the Initial Purchasers, acting severally and not jointly, of the
respective principal amounts set forth in Schedule A hereto of $100,000,000
aggregate principal amount of the Company's 10-3/8% Senior Notes due 2005 (the
"Securities"). The Securities are to be issued pursuant to an indenture dated as
of June 16, 1997 (the "Indenture") between the Company and First Union National
Bank, as trustee (the "Trustee"). Securities issued in book-entry form will be
issued to Cede & Co. as nominee of The Depository Trust Company ("DTC") pursuant
to a letter agreement, to be dated as of the Closing Time (as defined in Section
2(b) hereof) (the "DTC Agreement"), among the Company, the Trustee and DTC.
The Company understands that the Initial Purchasers propose to
make an offering of the Securities on the terms and in the manner set forth
herein and agrees that the Initial Purchasers may resell, subject to the
conditions set forth herein, all or a portion of the Securities to purchasers
("Subsequent Purchasers") at any time after the date of this Agreement. The
Securities are to be offered and sold through the Initial Purchasers without
being registered under the Securities Act of 1933, as amended (the "1933 Act"),
in reliance upon exemptions therefrom. Pursuant to the terms of the Securities
and the Indenture, investors that acquire Securities may only resell or
otherwise transfer such Securities if such Securities are hereafter registered
under the 1933 Act or if an exemption from the registration requirements of the
1933 Act is available (including the exemption afforded by Rule 144A ("Rule
144A"), Rule 144 ("Rule 144") or Regulation S ("Regulation S") of the rules and
regulations promulgated under the 1933 Act by the Securities and Exchange
Commission (the "Commission")).
The Company has prepared and delivered to each Initial
Purchaser copies of a preliminary offering memorandum dated May 29, 1997 (the
"Preliminary Offering Memorandum") and has prepared and will deliver to each
Initial Purchaser, on the date hereof or the next succeeding day, copies of a
final offering memorandum dated June 10, 1997 (the "Final Offering Memorandum"),
each for use by such Initial Purchaser in connection with its solicitation of
purchases of, or offering of, the Securities. "Offering Memorandum" means, with
respect to any date or time referred to in this Agreement, the most recent
offering memorandum (whether the Preliminary Offering Memorandum or the Final
Offering Memorandum, or any amendment or supplement to either such document),
including exhibits thereto, which has been prepared and delivered by the Company
to the Initial Purchasers in connection with their solicitation of purchases of,
or offering of, the Securities.
The holders of Securities (including the Initial Purchasers
and their direct and indirect transferees) will be entitled to the benefits of a
registration rights agreement, to be dated as of June 16, 1997 (the
"Registration Rights Agreement"), between the Company and the Initial
Purchasers. Pursuant to the Registration Rights Agreement, the Company will
agree to file with the Commission under the circumstances set forth therein (i)
a registration statement under the 1933 Act registering the Exchange Securities
(as defined in the Registration Rights Agreement) to be offered in exchange for
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the Securities and to use its best efforts to cause such registration statement
to be declared effective and/or (ii) a shelf registration statement pursuant to
Rule 415 under the 1933 Act relating to the resale of the Securities by holders
thereof or, if applicable, relating to the resale of Private Exchange Securities
(as defined in the Registration Rights Agreement) by the Initial Purchasers and
to use its best efforts to cause such shelf registration statement to be
declared effective.
This Agreement, the Indenture, the Securities, the Exchange
Securities, the Private Exchange Securities and the Registration Rights
Agreement are sometimes referred to herein collectively as the "Operative
Documents."
All references in this Agreement to financial statements and
schedules and other information which is "contained," "included" or "stated" in
the Offering Memorandum (or other references of like import) shall be deemed to
mean and include all such financial statements and schedules and other
information which are incorporated by reference in the Offering Memorandum.
Capitalized terms used herein and not defined herein shall
have the meanings ascribed in the Indenture.
SECTION 1. Representations and Warranties.
(a) The Company represents and warrants to each Initial
Purchaser as of the date hereof and as of the Closing Time, and agrees with each
Initial Purchaser as follows:
(i) Neither the Company nor any of its affiliates (as
defined in Rule 501(b) under the 1933 Act) ("Affiliates") has, directly
or indirectly, solicited any offer to buy or offered to sell, and will,
directly or indirectly, solicit any offer to buy or offer to sell, in
the United States or to any United States citizen or resident, any
security which is or would be integrated with the sale of the
Securities in a manner that would require the Securities to be
registered under the 1933 Act.
(ii) The Preliminary Offering Memorandum as of its date did
not, and the Final Offering Memorandum as of the date hereof does not,
and at the Closing Time the Final Offering Memorandum will not, include
an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
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circumstances under which they were made, not misleading; provided,
however, that this representation, warranty and agreement shall not
apply to statements in or omissions from the Preliminary Offering
Memorandum or the Final Offering Memorandum made in reliance upon and
in conformity with information furnished to the Company in writing by
any Initial Purchaser through Xxxxxxx Xxxxx expressly for use therein.
(iii) The accountants who certified the financial statements
and supporting schedules included in the Offering Memorandum are
independent certified public accountants with respect to the Company
and its subsidiaries within the meaning of Regulation S-X under the
1933 Act.
(iv) The financial statements, together with the related
schedules and notes, included in the Offering Memorandum present fairly
the financial position of the Company and its consolidated subsidiaries
at the dates indicated and the statement of operations, 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 the Offering Memorandum
present fairly in accordance with GAAP the information required to be
stated therein. The selected consolidated financial data and the
summary consolidated financial data included in the Offering Memorandum
present fairly the information shown therein and have been compiled on
a basis consistent with that of the audited financial statements
included in the Offering Memorandum. The statistical information and
other market-related data included in the Offering Memorandum presents
fairly, in all material respects, the information shown thereby and is
derived from sources which the Company believes is accurate in all
material respects.
(v) Since the respective dates as of which information is
given in the Offering Memorandum, except as otherwise stated therein,
(A) there has been no material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and the Subsidiaries (as defined in
Section 1(a)(vii)) considered as one enterprise, whether or not arising
in the ordinary course of business (a "Material Adverse Change"), (B)
there have been no transactions entered into by the Company or any of
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the Subsidiaries, other than those in the ordinary course of business,
which are material with respect to the Company and the Subsidiaries
considered as one enterprise, and (C) there has been no dividend or
distribution of any kind declared, paid or made by the Company on any
class of its capital stock.
(vi) The Company has been duly organized and is validly
existing as a corporation in good standing under the laws of the
Commonwealth of Pennsylvania and has corporate power and authority to
own, lease and operate its properties and to conduct its business as
described in the Offering Memorandum and to enter into and perform its
obligations under the Operative Documents; and the Company is duly
qualified as a foreign corporation to transact business and is in good
standing in each other 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 have a material adverse effect on the
condition, financial or otherwise, or on the earnings, business affairs
or business prospects of the Company and the Subsidiaries considered as
one enterprise (a "Material Adverse Effect").
(vii) The entities listed on Schedule C hereto are the only
subsidiaries, direct and indirect, of the Company (collectively, the
"Subsidiaries"). Each 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 corporate power and authority to
own, lease and operate its properties and to conduct its business as
described in the Offering Memorandum 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 have a Material Adverse Effect; except as otherwise disclosed in
the Offering Memorandum, all of the issued and outstanding capital
stock of each 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
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outstanding shares of capital stock of the Subsidiaries was issued in
violation of any preemptive or similar rights arising by operation of
law, or under the charter or by-laws of any Subsidiary or under any
agreement to which the Company or any Subsidiary is a party.
(viii) The authorized, issued and outstanding capital stock of
the Company is as set forth in the Offering Memorandum in the column
entitled "Actual" under the caption "Capitalization"; all of the issued
and outstanding shares of the capital stock of the Company has been
duly authorized and validly issued, is fully paid and non-assessable;
none of the issued and outstanding shares of capital stock of the
Company was issued in violation of any preemptive rights or similar
rights arising by operation of law or under the charter or by-laws of
the Company or under any agreement to which the Company is a party.
(ix) This Agreement has been duly authorized, executed and
delivered by the Company.
(x) The Indenture has been duly authorized by the Company
and, at the Closing Time, will have been duly executed and delivered by
the Company and will constitute a 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).
(xi) The Registration Rights Agreement has been duly
authorized by the Company and, at the Closing Time, will have been duly
executed and delivered by the Company and will constitute a valid and
binding agreement of the Company, enforceable against the Company in
accordance with its terms, except (i) 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)
and (ii) as the enforcement of rights to indemnification and
contribution thereunder may be limited by federal or state securities
laws or regulations or the public policy underlying such laws or
regulations.
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(xii) The Securities have been duly authorized by the Company
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 as provided in
this Agreement, will constitute 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 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.
(xiii) The Exchange Securities and the Private Exchange
Securities have been duly authorized by the Company and, when executed
by the Company and authenticated in the manner provided for in the
Indenture and delivered in exchange for the Securities in accordance
with the terms of the Registration Rights Agreement, will constitute
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 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) The New Revolving Credit Facility has been duly
authorized by the Company and, at the Closing Time, will have been duly
executed and delivered by the Company and will constitute a 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).
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(xv) The Securities, the Exchange Securities, the
Registration Rights Agreement and the Indenture will conform in all
material respects to the respective statements relating thereto
contained in the Offering Memorandum.
(xvi) Neither the Company nor any of the 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 the 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 the Subsidiaries is subject (collectively, the
"Agreements and Instruments"), except for such defaults that would not
have, individually or in the aggregate, a Material Adverse Effect; and
the execution, delivery and performance of each of the Operative
Documents and the New Revolving Credit Facility 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 Offering Memorandum and the consummation of the
transactions contemplated herein and in the Offering Memorandum
(including the issuance and sale of the Securities and the use of the
proceeds from the sale of the Securities as described in the Offering
Memorandum under the caption "Use of Proceeds" and the issuance and
delivery of the Exchange Securities and the Private Exchange
Securities, if any) and compliance by the Company with its obligations
hereunder and thereunder have been duly authorized by all necessary
corporate action and do not and will not, whether with or without the
giving of notice or passage of time or both, conflict with or
constitute a breach of, or default or a Repayment Event (as defined
below) under, or a violation of or result in the creation or imposition
of any lien, charge or encumbrance upon any property or assets of the
Company or any of the Subsidiaries pursuant to, the Agreements and
Instruments, the charter or by-laws of the Company or any of the
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 respective
assets or properties. As used herein, a "Repayment Event" means any
event or condition which gives the holder of any note, debenture or
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other evidence of indebtedness (or any person acting on such xxxxxx'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 the
Subsidiaries.
(xvii) (A) No labor dispute with the employees of the Company
or any of the Subsidiaries exists or, to the knowledge of the Company,
is imminent, and (B) the Company is not aware of any existing or
imminent labor disturbance by the employees of any of its or any of the
Subsidiaries' principal suppliers, manufacturers, customers or
contractors, which, in the case of either (A) or (B), would have a
Material Adverse Effect.
(xviii) Except as disclosed in the Offering Memorandum, there
is no action, suit, proceeding, inquiry or investigation before or by
any court or governmental agency or body, domestic or foreign, now
pending, or, to the knowledge of the Company, threatened, against or
affecting the Company or any of the Subsidiaries or any of their
respective properties or assets which would have, individually or in
the aggregate, a Material Adverse Effect, or which would materially and
adversely affect the properties or assets of the Company or any of the
Subsidiaries or the performance by the Company of its obligations under
the Operative Documents and the New Revolving Credit Facility. The
aggregate of all pending legal or governmental proceedings to which the
Company or any of the Subsidiaries is a party or of which any of their
respective property or assets is the subject which are not described in
the Offering Memorandum, including ordinary routine litigation
incidental to the business, would not have, individually or in the
aggregate, a Material Adverse Effect.
(xix) The Company and the Subsidiaries own or possess, or can
acquire on reasonable terms, adequate patents, patent rights, licenses,
inventions, copyrights, know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential information,
systems or procedures), trademarks, service marks, trade names or other
intellectual property (collectively, "Intellectual Property") necessary
to carry on the business now operated by them, and neither the Company
nor any of the 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 the
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Subsidiaries therein, and which infringement or conflict (if the
subject of any unfavorable decision, ruling or finding) or invalidity
or inadequacy would have, individually or in the aggregate, a Material
Adverse Effect.
(xx) Subject to the assumptions set forth in Section
1(a)(xxxi) below, no filing with, or authorization, approval, consent,
license, order, registration, qualification or decree of, any court or
governmental authority or agency is necessary or required in connection
with the offering, issuance or sale of the Securities, the Exchange
Securities or the Private Exchange Securities, the performance by the
Company of its obligations under the Operative Documents or the
consummation of the transactions contemplated thereby, except as may be
required (A) in connection with the registration of the Exchange
Securities or the Private Exchange Securities under the 1933 Act or the
qualification of the Indenture under the 1939 Act (as defined in
paragraph (xxxi) below) pursuant to the Registration Rights Agreement
or (B) pursuant to state securities or "blue sky" laws.
(xxi) The Company and the 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 (including, without
limitation, the U.S. Department of Transportation ("DOT"), the Federal
Highway Administration, the Surface Transportation Board and any
applicable state highway and transportation agencies), that are
necessary to conduct the business now operated by them; the Company and
the 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 when the invalidity of such Governmental Licenses or the
failure of such Governmental Licenses to be in full force and effect
would not have, individually or in the aggregate, a Material Adverse
Effect; neither the Company nor any of the Subsidiaries has received
any notice of proceedings relating to the revocation or modification of
any such Governmental Licenses that, if the subject of an unfavorable
decision, ruling or finding, would have, individually or in the
aggregate, a Material Adverse Effect.
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(xxii) Neither the Company nor any of the Subsidiaries is in
violation of any law, ordinance, administrative or governmental rule or
regulation or court decree applicable to it or any of its properties or
assets, except for such violations that would not, individually or in
the aggregate, have a Material Adverse Effect.
(xxiii) The Company and the Subsidiaries have good and
marketable title to all real and other property owned by the Company
and the Subsidiaries, in each case, after giving effect to the
transactions contemplated herein, free and clear of all mortgages,
pledges, liens, security interests, claims, restrictions or
encumbrances of any kind, except such as (a) are described in the
Offering Memorandum or (b) do not, individually or in the aggregate,
materially affect the value of such property and do not interfere with
the use made and proposed to be made (including the sale thereof) of
such property by the Company or any of the Subsidiaries; and all of the
leases and subleases material to the business of the Company and the
Subsidiaries, considered as one enterprise, and under which the Company
or any of the Subsidiaries holds properties described in the Offering
Memorandum, are in full force and effect, and neither the Company nor
any of the Subsidiaries has any notice of any material claim of any
sort that has been asserted by anyone adverse to the rights of the
Company or any of the Subsidiaries under any of the leases or subleases
mentioned above, or affecting or questioning the rights of the Company
or any of the Subsidiaries to the continued possession of the leased or
subleased premises under any such lease or sublease, except for such
claims that would not, individually or in the aggregate, have a
Material Adverse Effect.
(xxiv) The Company and the 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 for
which adequate reserves have been made in accordance with GAAP; and
adequate charges, accruals and reserves have been provided for in the
financial statements included in the Offering Memorandum 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 the Subsidiaries has not
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been finally determined or remains open to examination by applicable
taxing authorities.
(xxv) Other than as disclosed in the Offering Memorandum,
none of the Company nor any of the Subsidiaries has any profit sharing,
deferred compensation, stock option, stock purchase, phantom stock or
similar plans, including agreements evidencing rights to purchase
securities or to share in the profits of the Company or any of the
Subsidiaries, which would be required to be disclosed in a registration
statement on Form S-1 under the 1933 Act.
(xxvi) Except as described in the Offering Memorandum and
except as would not have, individually or in the aggregate, a Material
Adverse Effect, (A) neither the Company nor any of the Subsidiaries is
in violation of, or has received any notice that it is subject to
liability under, any federal, state, local or foreign statute, law,
rule, regulation, ordinance, code, or rule of common law and any
judicial or administrative interpretation thereof including any
judicial or administrative order, decree, judgment or injunction,
relating to pollution or protection of human health or the environment
(including, without limitation, ambient air, indoor air, surface water,
groundwater, land surface or subsurface strata and natural resources),
including, without limitation, those relating to the release or
threatened release of chemicals, pollutants, contaminants, wastes,
toxic substances, hazardous substances or constituents, petroleum or
petroleum products or any other substances or materials subject to
regulation under Environmental Laws (collectively, "Hazardous
Materials") or to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of Hazardous
Materials (collectively, "Environmental Laws"), (B) the Company and the
Subsidiaries have, or have filed timely application for, all permits,
licenses, authorizations and approvals required under any applicable
Environmental Laws, all of which are in full force and effect, and are
each in compliance with their requirements, (C) there are no pending
or, to the knowledge of the Company, threatened administrative,
regulatory or judicial actions, suits, demands, demand letters, claims,
liens, notices of noncompliance, violation or potential responsibility
or liability, investigation or proceedings pursuant to any
Environmental Law against the Company or any of the Subsidiaries, or to
the knowledge of the Company, any of their respective
predecessors-in-interest for which the Company or any of the
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Subsidiaries is liable and (D) there are no past or present events,
conditions or circumstances which would reasonably be expected to form
the basis of an order to conduct response or corrective action, or an
action, suit or proceeding by any private party or governmental agency,
against or affecting, or requiring capital or operating expenditures
by, the Company or any of the Subsidiaries pursuant to any
Environmental Laws.
(xxvii) Except as described in the Offering Memorandum, neither
the Company nor any of the Subsidiaries has incurred any liability for
any prohibited transaction or funding deficiency or any complete or
partial withdrawal liability with respect to any pension, profit
sharing or other plan which is subject to the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), to which the Company
or the Subsidiaries makes or ever has made a contribution and in which
any employee of the Company or any such Subsidiary is or has ever been
a participant, which in the aggregate would have a Material Adverse
Effect. With respect to such plans, each of the Company and the
Subsidiaries is in compliance in all respects with all applicable
provisions of ERISA, except where the failure to so comply would not,
individually or in the aggregate, have a Material Adverse Effect.
(xxviii) 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 Offering Memorandum, 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 "1940 Act").
(xxix) The Securities are eligible for resale pursuant to Rule
144A and will not be, at the Closing Time, of the same class as
securities listed on a national securities exchange registered under
Section 6 of the Securities Exchange Act of 1934, as amended (the "1934
Act"), or quoted in a U.S. automated interdealer quotation system.
(xxx) None of the Company, its Affiliates, or any person
acting on its or any of their behalf (other than the Initial
Purchasers, as to which the Company makes no representation) has
engaged or will engage, in connection with the offering of the
Securities, in any form of general solicitation or general advertising
within the meaning of Rule 502(c) under the 1933 Act or has offered or
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will offer the Securities in any manner involving a public offering
within the meaning of Section 4(2) of the 1933 Act.
(xxxi) Assuming that the representations and warranties of the
Initial Purchasers contained in Section 2(c) are true, correct and
complete, and assuming compliance by the Initial Purchasers with their
covenants in Section 6, and assuming that the representations and
warranties contained in the Transferee Letters of Representation
substantially in the form of Annex A to the Offering Memorandum (the
"Transferee Letters") completed by Institutional Accredited Investors
(as defined in Section 6(a)(i)) purchasing Securities from the Initial
Purchasers are true and correct as of the Closing Time, and assuming
compliance by such Institutional Accredited Investors with the
agreements in the Transferee Letters, it is not necessary in connection
with the offer, sale and delivery of the Securities to the Initial
Purchasers and to each Subsequent Purchaser in the manner contemplated
by this Agreement and the Offering Memorandum to register the
Securities under the 1933 Act or to qualify the Indenture under the
Trust Indenture Act of 1939, as amended (the "1939 Act").
(xxxii) With respect to those Securities sold in reliance on
Regulation S, (A) none of the Company, its Affiliates or any person
acting on its or their behalf (other than the Initial Purchasers, as to
whom the Company makes no representation) has engaged or will engage in
any directed selling efforts within the meaning of Regulation S and (B)
each of the Company and its Affiliates and any person acting on its or
their behalf (other than the Initial Purchasers, as to whom the Company
makes no representation) has complied and will comply with the offering
restrictions requirement of Regulation S.
(xxxiii) Neither the consummation of the transactions
contemplated hereby nor the sale, issuance, execution or delivery of
the Securities, nor the application of the proceeds therefrom (if
applied as described in the Offering Memorandum under the caption "Use
of Proceeds"), will violate Regulation G (12 C.F.R. Part 207), T (12
C.F.R. Part 220), U (12 C.F.R. Part 221) or X (12 C.F.R. Part 224) of
the Board of Governors of the Federal Reserve System.
(xxxiv) Neither the Company nor any of the Subsidiaries nor any
of their respective directors, officers or controlling persons has
taken, directly or indirectly, any action designed, or which might
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reasonably be expected to cause or result, under the 1934 Act, in, or
which has constituted, stabilization or manipulation of the price of
any security of the Company to facilitate the sale or resale of the
Securities, the Exchange Securities or the Private Exchange Securities.
(b) Any certificate signed by any officer of the Company or
any of the Subsidiaries delivered to the Representatives or to counsel for the
Initial Purchasers shall be deemed a representation and warranty by the Company
to each Initial Purchaser as to the matters covered thereby.
SECTION 2. Sale and Delivery to Initial Purchasers; Closing.
(a) 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 Initial Purchaser, severally and not jointly, and each
Initial Purchaser, severally and not jointly, agrees to purchase from the
Company, at the price set forth in Schedule B hereto, the aggregate principal
amount of Securities set forth in Schedule A hereto opposite the name of such
Initial Purchaser, plus any additional principal amount of Securities which such
Initial Purchaser may become obligated to purchase pursuant to the provisions of
Section 11 hereof.
(b) Payment of the purchase price for, and delivery of
certificates in definitive form for, the Securities shall be made at the offices
of Xxxxxx Xxxxxx & Xxxxxxx, 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such
other place as shall be agreed upon by Xxxxxxx Xxxxx and the Company, at 9:00
A.M. (New York City time) on June 16, 1997 (unless postponed in accordance with
the provisions of Section 11), or such other time not later than ten business
days after such date as shall be agreed upon by Xxxxxxx Xxxxx and the Company
(such time and date of payment and delivery being herein called the "Closing
Time").
Payment shall be made to the Company by wire transfer of
immediately available funds to a bank account designated by the Company, against
delivery to Xxxxxxx Xxxxx for the respective accounts of the Initial Purchasers
of certificates for the Securities to be purchased by them. It is understood
that each Initial Purchaser has authorized Xxxxxxx Xxxxx, for its account, to
accept delivery of, receipt for, and make payment of the purchase price for, the
Securities which it has agreed to purchase. Xxxxxxx Xxxxx, individually and not
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as representative of the Initial Purchasers, may (but shall not be obligated to)
make payment of the purchase price for the Securities to be purchased by any
Initial Purchaser whose funds have not been received by, the Closing Time, but
such payment shall not relieve such Initial Purchaser from its obligations
hereunder. The certificates representing the Securities shall be registered in
such names and in such denominations as the Initial Purchasers may request not
less than two full business days in advance of Closing Time and shall be made
available for examination and packaging by the Initial Purchasers in New York,
New York not later than 10:00 A.M. (New York City time) on the last business day
prior to the Closing Time.
(c) Each Initial Purchaser severally and not jointly
represents and warrants to, and agrees with, the Company that it is a "qualified
institutional buyer" within the meaning of Rule 144A under the 1933 Act (a
"Qualified Institutional Buyer") and an "accredited investor" within the meaning
of Rule 501(a) under the 1933 Act (an "Accredited Investor").
SECTION 3. Covenants of the Company. The Company covenants
with each Initial Purchaser as follows:
(a) The Company has furnished or, as promptly as possible,
will furnish to each Initial Purchaser, without charge, such number of
copies of the Preliminary Offering Memorandum, the Final Offering
Memorandum and any amendments and supplements thereto as such Initial
Purchaser may reasonably request.
(b) The Company will immediately notify each Initial
Purchaser, and confirm such notice in writing, of (x) any filing made
by the Company of information relating to the offering of the
Securities with any securities exchange or any other regulatory body in
the United States or any other jurisdiction, and (y) prior to the
completion of the placement of the Securities by the Initial Purchasers
as evidenced by a notice in writing from the Initial Purchasers to the
Company (from the date hereof to such completion, the "Offering
Period"), any material changes in or affecting the earnings, business
affairs or business prospects of the Company and the Subsidiaries which
(i) make any statement in the Offering Memorandum false or misleading
or (ii) are not disclosed in the Offering Memorandum. In such event or
if during the Offering Period any event shall occur as a result of
which it is necessary, in the reasonable opinion of the Company, its
counsel, the Initial Purchasers or counsel for the Initial Purchasers,
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to amend or supplement the Offering Memorandum in order that the
Offering Memorandum not include any untrue statement of a material fact
or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances then existing,
not misleading or if, in the opinion of the Company, its counsel, the
Initial Purchasers, or counsel for the Initial Purchasers, such
amendment or supplement is necessary to comply with applicable law, the
Company will (subject to Section 3(c) hereof) forthwith amend or
supplement the Offering Memorandum by preparing and furnishing to each
Initial Purchaser an amendment or amendments of, or a supplement or
supplements to, the Offering Memorandum (in such number as the Initial
Purchasers may reasonably request), at its own expense, so that, as so
amended or supplemented, the Offering Memorandum will not include an
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances existing at the time it is delivered to a Subsequent
Purchaser, not misleading or so that the Offering Memorandum, as so
amended or supplemented, shall comply with applicable law, as the case
may be. The Company agrees to notify the Initial Purchasers in writing
to suspend use of the Offering Memorandum as promptly as practicable
after the occurrence of an event specified in clause (y) of this
paragraph (b), and the Initial Purchasers hereby agree as promptly as
practicable after receipt of such notice from the Company to suspend
use of the Offering Memorandum until the Company has amended or
supplemented the Offering Memorandum to correct such misstatement or
omission or to effect such compliance.
(c) The Company will advise each Initial Purchaser promptly of
any proposal to amend or supplement the Offering Memorandum during the
Offering Period and will not effect such amendment or supplement
without the prior written consent of the Initial Purchasers. Neither
the consent of the Initial Purchasers, nor the Initial Purchaser's
delivery of any such amendment or supplement, shall constitute a waiver
of any of the conditions set forth in Section 5 hereof.
(d) The Company will use its best efforts, in cooperation with
the Initial Purchasers, to qualify the Securities for offering and sale
under the applicable securities laws of such jurisdictions as the
Representatives may designate and will maintain such qualifications in
effect as long as required for the resale of the Securities by the
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Initial Purchasers as contemplated herein; 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.
(e) The Company shall take all reasonable action necessary to
enable Standard & Poor's Ratings Group, a division of McGraw Hill, Inc.
("S&P"), and Xxxxx'x Investors Service, Inc. ("Moody's") to provide
their respective credit ratings of the Securities.
(f) The Company will cooperate with the Representatives and
use its best efforts to permit the Securities to be eligible for
clearance and settlement through the facilities of DTC and to be
designated as PORTAL Securities in accordance with the rules and
regulations of the National Association of Securities Dealers, Inc.
(g) The Company will use the net proceeds received by it from
the sale of the Securities in the manner specified in the Offering
Memorandum under the heading "Use of Proceeds."
(h) The Company will, so long as the Securities or Exchange
Securities or Private Exchange Securities are outstanding, furnish to
the Trustee on a timely basis, pursuant to the Indenture, whether or
not the Company has a class of securities registered under the 1934 Act
(i) audited year-end consolidated financial statements of the Company
(including a balance sheet, income statement and statement of changes
of cash flow) prepared in accordance with GAAP and substantially in the
form required under Regulation S-X under the 1933 Act and the
information described in Item 303 of Regulation S-K under the 1933 Act
with respect to such period and (ii) unaudited quarterly consolidated
financial statements of the Company (including a balance sheet, income
statement and statement of cash flows) prepared in accordance with GAAP
and substantially in the form required by Regulation S-X under the 1933
Act and the information described in Item 303 of Regulation S-K under
the 1933 Act with respect to such period and will furnish to the
Initial Purchasers copies of all such reports and information, together
with such other documents, reports and information as shall be
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furnished by the Company to the holders of the Securities or to the
Trustee. In the event the Company is not subject to Section 13 or 15(d)
of the 1934 Act, the Company will furnish to holders of Securities and
prospective purchasers of Securities designated by such holders, upon
request of such holders or such prospective purchasers, the information
required to be delivered pursuant to Rule 144A(d)(4) under the 1933 Act
to permit compliance with Rule 144A in connection with resales of the
Securities.
(i) Prior to the Closing Time, the Company, will furnish on a
confidential basis to the Initial Purchasers, if and promptly after
they have been prepared, a copy of any unaudited interim consolidated
financial statements of the Company for any period subsequent to the
period covered by the most recent financial statements of the Company
appearing in the Offering Memorandum which have been prepared in the
ordinary course of business.
(j) Until the expiration of two years after the original
issuance of the Securities, the Company will not, and will cause its
Affiliates not to, purchase or agree to purchase or otherwise acquire
any Securities which are "restricted securities" (as such term is
defined under Rule 144(a)(3) under the 1933 Act), whether as beneficial
owner or otherwise (except as agent acting as a securities broker on
behalf of and for the account of customers in the ordinary course of
business in unsolicited broker's transactions) unless, upon any such
purchase, the Company or any such Affiliate shall submit such
Securities to the Trustee for cancellation.
(k) During a period of 180 days from the date of the Offering
Memorandum, the Company will not, without the prior written consent of
Xxxxxxx Xxxxx, directly or indirectly, issue, sell, offer or agree to
sell, grant any option for the sale of, or otherwise dispose of, any
other debt securities of the Company or securities of the Company that
are convertible into, or exchangeable for, the Securities or such other
debt securities (it being understood that this paragraph (k) does not
prohibit the Company from incurring indebtedness under the New
Revolving Credit Facility).
SECTION 4. Payment of Expenses.
(a) Whether or not the transactions contemplated by this
Agreement are consummated, the Company will pay all expenses incident to the
performance of its obligations under this Agreement, including (i) the
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preparation, printing and any filing of the Preliminary Offering Memorandum and
the Final Offering Memorandum (including financial statements and any schedules
or exhibits) and of each amendment or supplement thereto, (ii) the preparation,
printing and delivery to the Initial Purchasers of this Agreement, any Agreement
among Initial Purchasers, the Indenture, the Registration Rights Agreement and
such other documents as may be required in connection with the offering,
purchase, sale and delivery of the Securities, the Exchange Securities and the
Private Exchange Securities, (iii) the preparation, issuance and delivery of the
certificates for the Securities, the Exchange Securities and the Private
Exchange Securities to the Initial Purchasers, including any charges of DTC in
connection therewith, (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(d) hereof,
including filing fees and the reasonable fees and disbursements of counsel for
the Initial Purchasers in connection therewith and in connection with the
preparation of the Blue Sky Survey, any supplement thereto and any Legal
Investment Survey, (vi) 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, the Exchange Securities and the Private Exchange Securities,
(vii) any fees payable in connection with the rating of the Securities, (viii)
any fees payable to the review by the National Association of Securities
Dealers, Inc. (the "NASD") in connection with the initial and continued
designation of the Securities as PORTAL securities, (ix) all expenses (including
travel expenses) of the Company in connection with any meetings with prospective
investors in the Securities, and (x) one-half of the expenses related to the
charter or use of any aircraft used in connection with any meetings with
prospective investors in the Securities.
(b) If this Agreement is terminated by Xxxxxxx Xxxxx in
accordance with the provisions of Section 5 hereof or Section 10(a)(i) hereof,
the Company shall reimburse the Initial Purchasers for all of their
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Initial Purchasers.
SECTION 5. Conditions of Initial Purchasers' Obligations. The
obligations of the several Initial Purchasers 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 of the
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Subsidiaries delivered pursuant to the provisions hereof as of the date of this
Agreement and the Closing Time, to the performance by the Company of its
covenants and other obligations hereunder, and to the following further
conditions:
(a) At the Closing Time, the Representatives shall have
received the favorable opinion, dated as of the Closing Time, of Pepper,
Xxxxxxxx & Xxxxxxx LLP, counsel for the Company, in form and substance
satisfactory to counsel for the Initial Purchasers, together with signed or
reproduced copies of such letter for each of the other Initial Purchasers, to
the effect substantially set forth in Exhibit A hereto.
(b) At the Closing Time, the Representatives shall have
received the favorable opinion, dated the Closing Date, of Xxxxxxx, Xxxx &
Xxxxxxxxx, environmental counsel for the Company, in form and substance
satisfactory to counsel for the Initial Purchasers, together with signed or
reproduced copies of such letter for each of the other Initial Purchasers, to
the effect substantially set forth in Exhibit B hereto.
(c) At the Closing Time, the Representatives shall have
received the favorable opinion, dated as of the Closing Time, of Scopelitis,
Garvin, Light & Xxxxxx, regulatory counsel for the Company, in form and
substance satisfactory to counsel for the Initial Purchasers, together with
signed or reproduced copies of such letter for each of the other Initial
Purchasers, to the effect substantially set forth in Exhibit C hereto.
(d) At the Closing Time, the Representatives shall have
received the favorable opinion, dated as of the Closing Time, of Xxxxxx Xxxxxx &
Xxxxxxx, counsel for the Initial Purchasers, together with signed or reproduced
copies of such letter for each of the other Initial Purchasers, with respect to
the matters set forth in paragraphs (vii) through (xi), inclusive, and paragraph
(xvii) of Exhibit A hereto. In giving such opinion such counsel may rely, as to
all matters governed by the laws of jurisdictions other than the law of the
State of New York, the federal law of the United States and the General
Corporation Law of the State of Delaware, upon the opinions of counsel
satisfactory to the Representatives. Such counsel may also state that, insofar
as such opinion involves factual matters, they have relied, to the extent they
deem proper, upon certificates of officers of the Company and the Subsidiaries
and certificates of public officials.
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In addition, such counsel shall additionally state that such
counsel has participated in conferences with officers and other representatives
of the Company and representatives of the independent accountants for the
Company at which conferences the contents of the Offering Memorandum and related
matters were discussed, and although such counsel has not verified and does not
pass upon and does not assume any responsibility for the accuracy, completeness
or fairness of the statements contained in the Offering Memorandum, on the basis
of the foregoing (relying as to materiality to the extent such counsel deems
appropriate upon the representations and opinions of officers and other
representatives of the Company), no facts have come to the attention of such
counsel which lead such counsel to believe that the Offering Memorandum, at the
date thereof or as of the Closing Time, contained or contains an untrue
statement of a material fact or omitted or omits to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading (it being understood that such
counsel need express no comment with respect to the financial statements,
including the notes thereto, or any other financial or statistical data found in
or derived from the internal accounting or other records of the Company and the
Subsidiaries set forth or referred to in the Offering Memorandum).
(e) At the Closing Time, there shall not have been, since the
date hereof or since the respective dates as of which information is given in
the Offering Memorandum, any Material Adverse Change, and the Representatives
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 the Closing Time, to the effect that (i) there has been no such
Material Adverse Change, (ii) the representations and warranties in Section 1
hereof are true and correct with the same force and effect as though expressly
made at and as of the Closing Time, and (iii) the Company has complied with all
agreements and satisfied all conditions on its part to be performed or satisfied
at or prior to the Closing Time.
(f) At the time of the execution of this Agreement, the
Representatives shall have received from Xxxxxx Xxxxxxxx LLP a letter dated such
date, in form and substance satisfactory to the Representatives and counsel for
the Initial Purchasers, together with signed or reproduced copies of such letter
for each of the other Initial Purchasers, containing statements and information
of the type ordinarily included in accountants' "comfort letters" to Initial
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Purchasers with respect to the financial statements and certain financial
information contained in the Offering Memorandum.
(g) At the Closing Time, the Representatives shall have
received from Xxxxxx Xxxxxxxx LLP a letter, dated as of the Closing Time, in
form and substance satisfactory to the Representatives and counsel for the
Initial Purchasers, to the effect that they reaffirm the statements made in the
letter furnished pursuant to subsection (f) of this Section 5, except that the
specified date referred to shall be a date not more than three business days
prior to the Closing Time.
(h) At the Closing Time, the Securities shall be rated at
least B2 by Moody's and B by S&P, and the Company shall have delivered to the
Representatives a letter dated the Closing Time, from each such rating agency,
or other evidence satisfactory to the Representatives, confirming that the
Securities have such ratings; and since the date of this Agreement, there shall
not have occurred any downgrading in the rating assigned to the Securities or
any of the Company's other securities by any nationally recognized securities
rating agency, and no such securities rating agency shall have publicly
announced that it has under surveillance or review, with possible negative
implications, its rating of the Securities or any of the Company's other
securities.
(i) At the Closing Time, the Securities shall have been
designated for trading on PORTAL.
(j) The Company and the Trustee shall have entered into the
Indenture.
(k) The Company and the Initial Purchasers shall have entered
into the Registration Rights Agreement.
(l) The Company and CoreStates Bank, N.A. shall have entered
into the New Revolving Credit Facility in form and substance reasonably
satisfactory to the Representatives and counsel for the Initial Purchasers, and
the Representatives shall have received an executed original thereof.
(m) At the Closing Time, counsel for the Initial Purchasers
shall have been furnished with such documents and opinions as they may
reasonably require for the purpose of enabling them to pass upon the issuance
and sale of the 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
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connection with the issuance and sale of the Securities as herein contemplated
shall be satisfactory in form and substance to the Representatives and counsel
for the Initial Purchasers.
If any condition specified in this Section 5 shall not have
been fulfilled when and as required to be fulfilled, this Agreement may be
terminated by Xxxxxxx Xxxxx by notice to the Company at any time at or prior to
the 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,
7, 8, 12, 13 and 14 shall survive any such termination and remain in full force
and effect.
SECTION 6. Subsequent Offers and Resales of the Securities.
(a) Each of the Initial Purchasers and the Company hereby
establish and agree to observe the following procedures in connection with the
offer and sale of the Securities:
(i) Offers and sales of the Securities will be made only by
the Initial Purchasers or Affiliates thereof qualified to do so in the
jurisdictions in which such offers or sales are made. Each such offer
or sale shall only be made (A) to persons whom the offeror or seller
reasonably believes to be Qualified Institutional Buyers, (B) to a
limited number of persons whom the offeror or seller reasonably
believes to be institutional accredited investors (as such term is
defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the
1933 Act) ("Institutional Accredited Investors") that deliver a
Transferee Letter or (C) to non-U.S. persons outside the United States
to whom the offeror or seller reasonably believes offers and sales of
the Securities may be made in reliance upon Regulation S under the 1933
Act.
(ii) The Securities will be offered by approaching
prospective Subsequent Purchasers on an individual basis. No general
solicitation or general advertising (within the meaning of Rule 502(c)
under the 1933 Act) will be used in the United States in connection
with the offering of the Securities.
(iii) In the case of a non-bank Subsequent Purchaser of a
Security acting as a fiduciary for one or more third parties, in
connection with an offer and sale to such purchaser pursuant to clause
(a) above, each third party shall, in the judgment of the applicable
-24-
Initial Purchaser, be an Institutional Accredited Investor or a
Qualified Institutional Buyer or a non-U.S. person outside the United
States.
(iv) Each Initial Purchaser acknowledges and will take
reasonable steps to inform, and cause each of its U.S. affiliates to
take reasonable steps to inform, persons acquiring Securities from such
Initial Purchaser or affiliate, as the case may be, in the United
States that the Securities (A) have not been and will not be registered
under the 1933 Act, (B) are being sold to them without registration
under the 1933 Act in reliance on Rule 144A or in accordance with
another exemption from registration under the 1933 Act, as the case may
be, and (C) may not be offered, sold or otherwise transferred prior to
(x) the date which is two years (or such shorter time as is permitted
by Rule 144(k) under the 1933 Act or any successor provision
thereunder) after the later of the date of the original issue of the
Securities and the last date on which the Company or any affiliate of
the Company was the owner of such Securities or any predecessor thereto
or (y) such later date, if any, as may be required by applicable law,
except (1) to the Company, (2) inside the United States to an
Institutional Accredited Investor that is acquiring such Securities for
its own account or for the account of an Institutional Accredited
Investor for investment purposes and not with a view to, or for offer
or sale in connection with, and distribution in violation of the 1933
Act and that, prior to such transfer, furnishes to the Trustee a signed
letter containing certain representations and agreements (the form of
which a letter can be obtained from the Trustee), (3) for so long as
such Securities are eligible for resale pursuant to Rule 144A, to a
person it reasonably believes is a Qualified Institutional Buyer that
purchases such Securities for its own account or for the account of a
Qualified Institutional Buyer to whom notice is given that the transfer
is being made in reliance on Rule 144A, (4) pursuant to offers and
sales to non-U.S. Persons that occur outside the United States pursuant
to Regulation S under the 1933 Act, (5) pursuant to an effective
registration statement under the 1933 Act or (6) pursuant to another
available exemption from the registration requirements of the 1933 Act.
(v) No sale of the Securities to any one Subsequent
Purchaser will be for less than $100,000 principal amount and no
Security will be issued in a smaller principal amount. If any
-25-
Subsequent Purchaser is a non-bank fiduciary acting on behalf of
others, each person for whom it is acting must purchase at least U.S.
$100,000 principal amount of the Securities.
(vi) The transfer restrictions and the other provisions set
forth in the Indenture, including the legend required thereby, shall
apply to the Securities except as otherwise agreed by the Company and
the Initial Purchasers. Following the sale of the Securities by the
Initial Purchasers to Subsequent Purchasers pursuant to and in
compliance with the terms hereof, the Initial Purchasers shall not be
liable or responsible to the Company for any losses, damages or
liabilities suffered or incurred by the Company, including any losses,
damages or liabilities under the 1933 Act, arising from or relating to
any resale or transfer of any Security occurring after such sale by the
Initial Purchasers.
(vii) Each Initial Purchaser will deliver to each purchaser
of the Securities from such Initial Purchaser, in connection with its
original distribution of the Securities, a copy of the Offering
Memorandum, as amended and supplemented at the date of such delivery.
(b) The Company covenants with each Initial Purchaser as
follows:
(i) In connection with the original distribution of the
Securities, the Company agrees that, prior to any offer or resale of
the Securities by the Initial Purchasers, the Initial Purchasers and
counsel for the Initial Purchasers shall have the right to make
reasonable inquiries into the business of the Company and the
Subsidiaries. The Company also agrees to provide answers to each
prospective Subsequent Purchaser of Securities who so requests
concerning the Company and the Subsidiaries (to the extent that such
information is available or can be acquired and made available to
prospective Subsequent Purchasers without unreasonable effort or
expense and to the extent the provision thereof is not prohibited by
applicable law and would not involve the disclosure of confidential
information of the Company) and the terms and conditions of the
offering of the Securities, as provided in the Offering Memorandum.
(ii) The Company agrees that it will not and will cause its
Affiliates not to make any offer or sale of securities of the Company
of any class if, as a result of the doctrine of "integration" referred
-26-
to in Rule 502 under the 1933 Act, such offer or sale would render
invalid (for the purpose of (i) the sale of the Securities by the
Company to the Initial Purchasers, (ii) the resale of the Securities by
the Initial Purchasers to Subsequent Purchasers or (iii) the resale of
the Securities by such Subsequent Purchasers to others) the exemption
from the registration requirements of the 1933 Act provided by Section
4(2) thereof or by Rule 144A or by Regulation S thereunder or
otherwise.
(iii) The Company agrees that, in order to render the
Securities eligible for resale pursuant to Rule 144A under the 1933
Act, while any of the Securities remain outstanding, it will make
available, upon request, to any holder of Securities or prospective
purchasers of Securities the information specified in Rule 144A(d)(4),
unless the Company furnishes information to the Commission pursuant to
Section 13 or 15(d) of the 1934 Act (such information, whether made
available to holders or prospective purchasers or furnished to the
Commission, is herein referred to as "Additional Information").
(iv) Until the expiration of two years after the original
issuance of the Securities, the Company will not, and will cause its
Affiliates not to, purchase or agree to purchase or otherwise acquire
any Securities which are "restricted securities" (as such term is
defined under Rule 144(a)(3) under the 1933 Act), whether as beneficial
owner or otherwise (except as agent acting as a securities broker on
behalf of and for the account of customers in the ordinary course of
business in unsolicited broker's transactions) unless, immediately upon
any such purchase, the Company or any such Affiliate shall submit such
Securities to the Trustee for cancellation.
(c) Each Initial Purchaser understands that the Securities
have not been and will not be registered under the 1933 Act and may not be
offered or sold within the United States or to, or for the account or benefit
of, U.S. persons except in accordance with Regulation S under the 1933 Act or
pursuant to an exemption from the registration requirements of the 1933 Act.
Each Initial Purchaser represents and agrees, that, except as permitted by
Section 6(a) above, it has offered and sold Securities and will offer and sell
Securities (i) as part of its distribution at any time and (ii) otherwise until
forty days after the later of the date upon which the offering of the Securities
commences and the Closing Time, only in accordance with Rule 903 of Regulation
S, Rule 144A under the 1933 Act or any other available exemption under the 1933
-27-
Act. Accordingly, neither the Initial Purchasers, their affiliates nor any
persons acting on their behalf have engaged or will engage in any directed
selling efforts with respect to Securities, and the Initial Purchasers, their
affiliates and any person acting on their behalf have complied and will comply
with the offering restriction requirements of Regulation S. Each Initial
Purchaser agrees that, at or prior to confirmation of a sale of Securities
(other than a sale of Securities pursuant to Rule 144A or to an Institutional
Accredited Investor), it will have sent to each distributor, dealer or person
receiving a selling concession, fee or other remuneration that purchases
Securities from it or through it during the restricted period a confirmation or
notice to substantially the following effect:
"The Securities covered hereby, have not been registered under the
United States Securities Act of 1933 (the "Securities Act") and may not
be offered or sold within the United States or to or for the account or
benefit of U.S. persons (i) as part of their distribution at any time
and (ii) otherwise until forty days after the later of the date upon
which the offering of the Securities commenced and the date of closing,
except in either case in accordance with Regulation S or Rule 144A
under the Securities Act. Terms used above have the meaning given to
them by Regulation S."
Terms used in the above paragraph have the meanings given to them by Regulation
S.
Each Initial Purchaser severally represents and agrees that it
has not entered and will not enter into any contractual arrangements with
respect to the distribution of the Securities, except with its affiliates or
with the prior written consent of the Company.
SECTION 7. Indemnification.
(a) The Company agrees to indemnify and hold harmless each
Initial Purchaser and each person, if any, who controls any Initial Purchaser
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in any
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Preliminary Offering Memorandum or the Final Offering Memorandum (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;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission; provided
that (subject to Section 7(d) below) any such settlement is effected
with the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by Xxxxxxx
Xxxxx), reasonably incurred in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, to the extent that any such
expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission (i) made in
reliance upon and in conformity with written information furnished to the
Company by any Initial Purchaser through Xxxxxxx Xxxxx expressly for use in the
Preliminary Offering Memorandum or the Final Offering Memorandum (or any
amendment or supplement thereto) or (ii) contained in the Preliminary Offering
Memorandum if the Initial Purchasers failed to send or deliver a copy of the
Final Offering Memorandum (in the form it was first provided to such parties for
confirmation of sales or as amended or supplemented pursuant to Section 3(b)
prior to such confirmation of sales) to the person asserting such losses,
claims, damages or expenses on or prior to the delivery of written confirmation
of any sale of Securities covered thereby to such person in any case where such
delivery is required by the Securities Act and a court of competent jurisdiction
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in a judgment not subject to appeal or final review shall have determined that
such Final Offering Memorandum would have corrected such untrue statement or
omission.
(b) Each Initial Purchaser severally agrees to indemnify and
hold harmless the Company, its directors and each person, if any, who controls
the Company within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act against any and all loss, liability, claim, damage and expense
described in the indemnity contained in subsection (a) of this Section 7, as
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Preliminary Offering Memorandum or
the Final Offering Memorandum (or any amendment or supplement thereto) in
reliance upon and in conformity with written information furnished to the
Company by such Initial Purchaser through Xxxxxxx Xxxxx expressly for use in the
Preliminary Offering Memorandum or the Final Offering Memorandum (or any
amendment or supplement thereto).
(c) 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 7(a) above, counsel to the indemnified
parties shall be selected by Xxxxxxx Xxxxx, and, in the case of parties
indemnified pursuant to Section 7(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
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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 7 or Section 8 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) If at any time an indemnified party shall have requested
an indemnifying party to reimburse the indemnified party for fees and expenses
of counsel to which such indemnified party is entitled pursuant to Section 7(a)
or (b), such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 7(a)(ii) 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, (ii) such
indemnifying party shall have received notice of the terms of such settlement at
least 30 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement.
SECTION 8. Contribution. If the indemnification provided for
in Section 7 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 Initial Purchasers 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
Initial Purchasers 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 Initial Purchasers 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
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Securities pursuant to this Agreement (before deducting expenses) received by
the Company and the total underwriting discount received by the Initial
Purchasers, bear to the aggregate initial offering price of the Securities.
The relative fault of the Company on the one hand and the
Initial Purchasers 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 Initial Purchasers and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
The Company and the Initial Purchasers agree that it would not
be just and equitable if contribution pursuant to this Section 8 were determined
by pro rata allocation (even if the Initial Purchasers 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
8. The aggregate amount of losses, liabilities, claims, damages and expenses
incurred by an indemnified party and referred to above in this Section 8 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 8, no Initial
Purchaser 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 Subsequent Purchasers were offered exceeds the amount of any damages which
such Initial Purchaser has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 8, each person, if any, who
controls an Initial Purchaser 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
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Initial Purchaser, and each director of the Company and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act shall have the same rights to contribution as the Company.
The Initial Purchasers' respective obligations to contribute pursuant to this
Section 8 are several in proportion to the principal amount of Securities set
forth opposite their respective names in Schedule A hereto and not joint.
SECTION 9. Representations, Warranties and Agreements to
Survive Delivery. All representations, warranties and agreements contained in
this Agreement or in certificates of officers of the Company submitted pursuant
hereto, shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of any Initial Purchaser or controlling
person, or by or on behalf of the Company, and shall survive delivery of the
Securities to the Initial Purchasers.
SECTION 10. Termination of Agreement.
(a) Xxxxxxx Xxxxx may terminate this Agreement, by notice to
the Company, at any time at or prior to the 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 Offering Memorandum, any Material Adverse
Change, (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 Xxxxxxx Xxxxx,
impracticable to market the Securities or to enforce contracts for the sale of
the Securities, (iii) if trading in any securities of the Company has been
suspended or limited by the Commission, if trading generally on the American
Stock Exchange or the New York Stock Exchange or in the NASDAQ National Market
System has been suspended or 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.
-33-
(b) If this Agreement is terminated pursuant to this Section
10, 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, 7,
8, 12, 13 and 14 shall survive such termination and remain in full force and
effect.
SECTION 11. Default by One or More of the Initial Purchasers.
If one of the Initial Purchasers shall fail at the Closing Time to purchase the
Securities which it is obligated to purchase under this Agreement (the
"Defaulted Securities"), Xxxxxxx Xxxxx shall have the right, within 24 hours
thereafter, to make arrangements for the non-defaulting Initial Purchaser, or
any other Initial Purchaser, 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, Xxxxxxx Xxxxx shall not have completed such
arrangements within such 24-hour period, then this Agreement shall terminate
without liability on the part of the non-defaulting Initial Purchaser.
No action taken pursuant to this Section 11 shall relieve any
defaulting Initial Purchaser 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 Xxxxxxx Xxxxx or the Company shall have
the right to postpone the Closing Time for a period not exceeding seven days in
order to effect any required changes in the Offering Memorandum or in any other
documents or arrangements. As used herein, the term "Initial Purchaser" includes
any person substituted for an Initial Purchaser under this Section 11.
SECTION 12. 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
Initial Purchasers shall be directed to Xxxxxxx Xxxxx at North Tower, World
Financial Center, New York, New York 10281-1201, attention: High Yield Corporate
Finance; and notices to the Company shall be directed to it at 000 Xxxxxxxxx
Xxx, Xxxxx, Xxxxxxxxxxxx 00000, attention: Xxxxx Xxxxxxx, Senior Vice President
and Chief Financial Officer, with a copy to Pepper, Xxxxxxxx & Xxxxxxx LLP, 3000
Two Xxxxx Square, 18th & Arch Streets, Philadelphia, PA 19103, attention: Xxxxx
X. Xxxxxxx.
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13. Information Supplied by the Initial Purchasers. The
statements set forth in the last paragraph on the front cover page and in the
third and fifth paragraphs and in the last sentence of the sixth paragraph under
the heading "Plan of Distribution" in the Offering Memorandum (in each case, to
the extent such statements relate to the Initial Purchasers) constitute the only
information furnished by the Initial Purchasers to the Company for use in the
Offering Memorandum for the purposes of Sections 1, 7 and 8 hereof.
SECTION 14. Parties. This Agreement shall each inure to the
benefit of and be binding upon the Initial Purchasers 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 Initial Purchasers and the Company and their respective successors and
the controlling persons and directors referred to in Sections 7 and 8 hereof 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 Initial Purchasers and the Company and
their respective successors, and said controlling persons 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 Initial Purchaser shall
be deemed to be a successor by reason merely of such purchase.
SECTION 15. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS THEREOF. SPECIFIED TIMES
OF DAY REFER TO NEW YORK CITY TIME.
SECTION 16. Effect of Headings. The Section headings herein
are for convenience only, and shall not affect the construction hereof.
17. Counterparts. This Agreement may be executed in one or
more counterparts and, when each party has executed a counterpart, all such
counterparts taken together shall constitute one and the same agreement.
[Signature Pages Follow]
-35-
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 Initial Purchasers and the Company in accordance with its
terms.
Very truly yours,
CHEMICAL XXXXXX CORPORATION
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXXX LYNCH, XXXXXX, XXXXXX & XXXXX
INCORPORATED
SCHRODER XXXXXXXX & CO. INCORPORATED
By: XXXXXXX XXXXX, XXXXXX, XXXXXX & XXXXX
INCORPORATED
By: /s/ Xxxx Xxxxx
----------------------------
Name: Xxxx Xxxxx
Title: Vice President
For themselves and as Representatives of the Initial Purchasers named in
Schedule A hereto.
S-1
SCHEDULE A
Principal
Amount of
Name of Initial Purchaser Securities
------------------------- ----------
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx
Incorporated.......................... $ 75,000,000
Schroder Xxxxxxxx & Co. Incorporated....................... 25,000,000
------------
Total...................................................... $100,000,000
============
SCHEDULE B
CHEMICAL XXXXXX CORPORATION
$100,000,000 Senior Notes Due 2005
1. The initial offering price of the Securities shall be 99.5%
of the principal amount thereof, plus accrued interest, if any, from the date of
issuance.
2. The purchase price to be paid by the Initial Purchasers for
the Securities shall be 96.5% of the principal amount thereof.
3. The interest rate on the Securities shall be 10-3/8% per
annum.
4. The Securities will mature on June 15, 2005. Interest on
the Notes will be payable semi-annually on each June 15 and December 15,
commencing December 15, 1997.
5. The Securities will be redeemable at the option of the
Company, in whole or in part, at any time on or after June 15, 2001, at the
redemption prices (expressed as percentages of principal amount) set forth
below, plus accrued and unpaid interest thereon, if any, to the date of
redemption, if redeemed during the 12-month period beginning on June 15 of the
years indicated below:
Redemption
Year Price
---- ----------
2001............................................ 105.188%
2002............................................ 103.458%
2003............................................ 101.729%
2004 and thereafter............................. 100.000%
6. On or prior to June 15, 2000, the Company may, at its
option, use the net proceeds of a Public Equity Offering (as defined in the
Offering Memorandum) to redeem up to 25% of the originally issued aggregate
principal amount of the Securities, at a redemption price in cash equal to
110.375% of the principal amount thereof, plus accrued and unpaid interest
thereon, if any, to the date of redemption; provided, however, that not less
than $75 million in aggregate principal amount of Securities is outstanding
following such redemption.
SCHEDULE C
Subsidiaries
Subsidiary State of Incorporation
---------- ----------------------
Chemical Properties, Inc. Pennsylvania
Capacity Management Systems, Inc. Pennsylvania
Core Logistics Management, Inc. Delaware
EnviroPower, Inc. Delaware
Xxxxxx Air Services, Inc. Delaware
Xxxxxxxxx Way Funding Corp. Delaware
Power Purchasing, Inc. Delaware
Chemical Xxxxxx Tank Lines, Inc. Delaware
Fleet Transport Company, Inc. Delaware
Quala Systems, Inc. Delaware
American Transinsurance Group, Inc. Delaware
Exhibit A
FORM OF OPINION OF XXXXXX, XXXXXXXX & XXXXXXX LLP
TO BE DELIVERED PURSUANT TO
SECTION 5(a)
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the Commonwealth of
Pennsylvania.
(ii) The Company has corporate power and authority to own,
lease and operate its properties and to conduct its business as described in the
Offering Memorandum and to enter into and perform its obligations under the
Operative Documents.
(iii) The Company is duly qualified as a foreign
corporation to transact business and is in good standing in the jurisdictions
set forth on Schedule I attached to such counsel's opinion.
(iv) The authorized, issued and outstanding capital stock
of the Company is as set forth in the Offering Memorandum in the column entitled
"Actual" under the caption "Capitalization"; the shares of issued and
outstanding capital stock of the Company have been duly authorized and validly
issued and are fully paid and nonassessable.
(v) Each Subsidiary has been duly incorporated and is
validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has corporate power and authority to own,
lease and operate its properties and to conduct its business as described in the
Offering Memorandum and is duly qualified as a foreign corporation to transact
business and is in good standing in the jurisdictions set forth on Schedule I
attached to such counsel's opinion; all of the issued and outstanding shares of
capital stock of each Subsidiary has been duly authorized and validly issued, is
fully paid and non-assessable and, to the best of our knowledge, is owned by the
Company, directly or indirectly, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity.
(vi) The Purchase Agreement has been duly authorized,
executed and delivered by the Company.
A-1
(vii) 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 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).
(viii) The Registration Rights Agreement has been duly
authorized, executed and delivered by the Company and (assuming the due
authorization, execution and delivery thereof by the Initial Purchasers)
constitutes a valid and binding agreement of the Company, enforceable against
the Company in accordance with its terms, except (i) 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) and (ii) as the enforcement
of rights to indemnification and contribution thereunder may be limited by
federal or state securities laws or regulations or the public policy underlying
such laws or regulations.
(ix) The Securities are in the form contemplated by the
Indenture, have been duly authorized by the Company and, when executed by the
Company and authenticated by the Trustee in the manner provided in the Indenture
(assuming the due authorization, execution and delivery of the Indenture by the
Trustee) and delivered against payment of the purchase price therefor, will
constitute valid and binding obligations of the Company entitled to the benefits
of the Indenture, 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
transfers), reorganization, moratorium or other similar laws relating to or
affecting enforcement of creditor's rights generally, or by general principles
of equity (regardless of whether enforcement is considered in a proceeding in
equity or at law).
A-2
(x) The Exchange Securities and the Private Exchange
Securities have been duly authorized by the Company and, when executed by the
Company and authenticated in the manner provided for in the Indenture and
delivered in exchange for the Securities in accordance with the terms of the
Registration Rights Agreement, will constitute valid and binding obligations of
the Company, enforceable against the Company in accordance with their terms and
entitled to the benefits of the Indenture, 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).
(xi) The Securities, the Exchange Securities, the Indenture
and the Registration Rights Agreement conform in all material respects to the
descriptions thereof contained in the Offering Memorandum.
(xii) The execution, delivery and performance of each of
the Operative Documents and the consummation of the transactions contemplated
thereby (including the issuance and sale of the Securities and the use of the
proceeds therefrom as described in the Offering Memorandum under the caption
"Use Of Proceeds") and compliance by the Company with its obligations thereunder
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 (as
defined in Section l(a)(xvi) of the Purchase Agreement) under, or a violation
of, or result in the creation or imposition of any lien, charge or encumbrance
upon any property or assets of the Company or any Subsidiary pursuant to, (i)
any contract, indenture, mortgage, deed of trust, loan or credit agreement,
note, lease or any other agreement or instrument, known to us, to which the
Company or any of the 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
Subsidiary is subject, (ii) the charter or by-laws of the Company or any of the
Subsidiaries, or (iii) any applicable law, statute, rule or regulation of the
United States, the State of New York or the Commonwealth of Pennsylvania, or any
judgment, order, writ or decree, known to us, of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over the
Company or any of the Subsidiaries or any of their respective properties or
assets.
A-3
(xiii) No filing with, or authorization, approval, consent,
license, order, registration, qualification or decree of, any court or
governmental authority or agency is necessary or required in connection with the
offering, issuance or sale of the Securities, the Exchange Securities or the
Private Exchange Securities, if any, the performance by the Company of its
obligations under the Operative Documents or the consummation of the
transactions contemplated thereby, except as may be required (A) in connection
with the registration of the Exchange Securities or the Private Exchange
Securities, if any, under the 1933 Act or the qualification of the Indenture
under the 1939 Act pursuant to the Registration Rights Agreement or (B) pursuant
to state securities or "blue sky" laws, as to which no opinion is rendered
hereby.
(xiv) To the best of our knowledge, there is no pending or
threatened action, suit, proceeding, inquiry or investigation (collectively,
"Legal Proceedings"), to which the Company or any Subsidiary is a party, or to
which the property of the Company or any Subsidiary is subject, before or by any
court or governmental agency or body, that would be required to be described in
a registration statement on Form S-1 under the 1933 Act that is not described or
referred to in the Offering Memorandum or that would question the validity of
any of the Operative Documents, other than any Legal Proceeding based on or
arising out of an Environmental Law, as to which no opinion is rendered hereby.
(xv) The information in the Offering Memorandum under the
headings "Business -- Regulation", "Certain U.S. Federal Income Tax
Considerations" and in the second paragraph under the heading "Business -- Legal
Proceedings", to the extent that it constitutes summaries of legal matters,
legal proceedings or legal conclusions, fairly summarizes such matters in all
material respects.
(xvi) All descriptions in the Offering Memorandum of
contracts and other documents to which the Company or any of the Subsidiaries is
a party are accurate in all material respects; to the best of our knowledge,
there are no franchises, contracts, indentures, mortgages, loan agreements,
notes, leases or other instruments that would be required to be described in a
registration statement on Form S-1 under the 1933 Act that are not described or
referred to in the Offering Memorandum.
(xvii) Assuming that the representations and warranties of
the Initial Purchasers in Section 2(c) of the Purchase Agreement are true,
A-4
correct and complete, and assuming compliance by the Initial Purchasers with
their covenants in Section 6 of the Purchase Agreement, and assuming that the
representations and warranties contained in the Transferee Letters of
Representation substantially in the form of Annex A to the Offering Memorandum
(the "Transferee Letters") completed by Institutional Accredited Investors
purchasing Securities are true and correct as of the Closing Time, and assuming
compliance by such Institutional Accredited Investors with the agreements in the
Transferee Letters, it is not necessary in connection with the offer, sale and
delivery of the Securities to the Initial Purchasers and to each Subsequent
Purchaser in the manner contemplated by the Purchase Agreement and the Offering
Memorandum to register the Securities under the 1933 Act or to qualify the
Indenture under the Trust Indenture Act.
(xviii) The Company is not an "investment company" or an
entity "controlled" by an "investment company," as such terms are defined in the
1940 Act.
(xix) Neither the consummation of the transactions
contemplated hereby nor the sale, issuance, execution or delivery of the
Securities, nor the application of the proceeds therefrom (if applied as
described in the Offering Memorandum under the caption "Use of Proceeds"), will
violate Regulation G (12 C.F.R. Part 207), T (12 C.F.R. Part 220), U (12 C.F.R.
Part 221) or X (12 C.F.R. Part 224) of the Board of Governors of the Federal
Reserve System.
We further advise you that, because the primary purpose of our
engagement was not to establish or confirm factual matters or financial or
accounting matters and because of the wholly or partially non-legal character of
many of the statements contained in the Offering Memorandum, we are not passing
upon and do not assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Offering Memorandum (except as
indicated in paragraphs (xi) and (xv)), and we have not independently verified
the accuracy, completeness or fairness of such statements (except as indicated
in paragraphs (xi) and (xv)). Without limiting the foregoing, we further advise
you that we assume no responsibility for and have not independently verified the
accuracy, completeness or fairness of the financial statements and schedules and
other financial data included in the Offering Memorandum and have not examined
the accounting or financial records from which such financial statements,
schedules and related data are derived. However, we have participated in
conferences with officers and other representatives and legal counsel of the
Company, representatives of the independent public accountants of the Company
A-5
and representatives of the Initial Purchasers at which the contents of the
Offering Memorandum were discussed. Based upon such participation and review, we
advise you that no facts have come to our attention that have caused us to
believe that the Offering Memorandum, on the date thereof or on the date hereof,
contained or contains an untrue statement of a material fact or omitted or omits
to state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading, except that we express no comment or belief with respect to the
financial statements or schedules or any other financial information included in
the Offering Memorandum.
In rendering such opinion, such counsel may rely, as to
matters of fact (but not as to legal conclusions), to the extent they deem
proper, on certificates of responsible officers of the Company and public
officials. Such opinion shall not state that it is to be governed or qualified
by, or that it is otherwise subject to, any treatise, written policy or other
document relating to legal opinions, including, without limitation, the Legal
Opinion Accord of the ABA Section of Business Law (1991).
A-6
Exhibit B
FORM OF OPINION OF XXXXXXX, XXXX & XXXXXXXXX
TO BE DELIVERED PURSUANT TO SECTION 5(b)
(i) Except as disclosed in the Offering Memorandum, there is no
pending or threatened action, suit, proceeding, inquiry or investigation in
which we have acted for the Company, to which the Company or any Subsidiary is a
party, or to which the property of the Company or any Subsidiary is subject,
before or by any court or governmental agency or body, which is based on or
arising out of any Environmental Law and which would reasonably be expected to
have a Material Adverse Effect (as defined in the Purchase Agreement).
(ii) The information in the Offering Memorandum under the headings
"Risk Factors -- Environmental Considerations", "Business -- Environmental
Matters" and in the first paragraph under the heading "Business -- Legal
Proceedings" to the extent that it constitutes summaries of legal matters, legal
proceedings or legal conclusions in matters which we have acted for the Company,
fairly summarizes such matters in all material respects.
Nothing has come to our attention that would lead us to
believe that the Offering Memorandum (except for financial statements and
schedules and other financial data included therein as to which we make no
statement), at the date the Offering Memorandum was issued or as of the date
hereof, included or includes 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.
In rendering such opinion, such counsel may rely, as to
matters of fact (but not as to legal conclusions), to the extent they deem
proper, on certificates of responsible officers of the Company and public
officials. Such opinion shall not state that it is to be governed or qualified
by, or that it is otherwise subject to, any treatise, written policy or other
document relating to legal opinions, including, without limitation, the Legal
Opinion Accord of the ABA Section of Business Law (1991).
B-1
Exhibit C
FORM OF OPINION OF SCOPELITIS, XXXXXX, LIGHT &
XXXXXX TO BE DELIVERED PURSUANT TO SECTION 5(c)
Each of Chemical Xxxxxx Tank Lines, Inc. ("CLTL") and Fleet
Transport Company, Inc. ("Fleet") possess such Governmental Licenses issued by
the appropriate federal, state, local or foreign regulatory agencies or bodies
(including the DOT, the Federal Highway Administration, the Surface
Transportation Board and any applicable state highway and transpiration
agencies), that are necessary to conduct the business now operated by it as
described in the Offering Memorandum; each of CLTL and Fleet is, to our
knowledge, in compliance with the terms and conditions of all such Governmental
Licenses, except where the failure so to comply would not 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; neither CLTL nor Fleet, to our knowledge, has received
any notice of proceedings relating to the revocation or modification of any such
Governmental Licenses that, if the subject of an unfavorable decision, ruling or
finding, could reasonably be expected to have a Material Adverse Effect.
In rendering such opinion, such counsel may rely, as to
matters of fact (but not as to legal conclusions), to the extent they deem
proper, on certificates of responsible officers of the Company and public
officials. Such opinion shall not state that it is to be governed or qualified
by, or that it is otherwise subject to, any treatise, written policy or other
document relating to legal opinions, including, without limitation, the Legal
Opinion Accord of the ABA Section of Business Law (1991).
C-1
