$100,000,000
XXXXXX XXXXX CORP.
% Senior Subordinated Debentures due 2007
FORM OF DEBT UNDERWRITING AGREEMENT
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, 1997
XXXXX XXXXXX INC.
CIBC WOOD GUNDY SECURITIES CORP.
PAINEWEBBER INCORPORATED
As Representatives of the Several Underwriters
c/o XXXXX XXXXXX INC.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Xxxxxx Xxxxx Corp., a New York corporation (together with its successor by
merger to Xxxxxx Xxxxx Inc., a Pennsylvania corporation that upon effectiveness
of the merger will change its name to Xxxxxx Xxxxx Corp., the "Company"),
proposes, upon the terms and conditions set forth herein, to issue and sell
$100,000,000 aggregate principal amount of its % Senior Subordinated Debentures
due 2007 (the "Debentures") to the several Underwriters named in Schedule I
hereto (the "Underwriters"). The Debentures will be issued pursuant to the
provisions of an Indenture to be dated as of , 1997 (the "Indenture") between
the Company and The Bank of New York, as Trustee (the "Trustee").
The Company wishes to confirm as follows its agreement with you (the
"Representatives") and the other several Underwriters on whose behalf you are
acting, in connection with the several purchases of the Debentures by the
Underwriters.
1. Registration Statement and Prospectus. The Company has prepared and
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filed with the Securities and Exchange Commission (the "Commission") in
accordance with the provisions of the Securities Act of 1933, as amended, and
the rules and regulations of the Commission thereunder (collectively, the
"Act"), a registration statement on Form S-1 under the Act (the "registration
statement"), including a prospectus subject to completion relating to the
Debentures. The term "Registration Statement" as used in this Agreement means
the registration statement (including all financial schedules and exhibits), as
amended at the time it becomes effective, or, if the registration statement
became effective prior to the execution of this Agreement, as supplemented or
amended prior to the execution of this Agreement. If it is contemplated, at the
time this Agreement is executed, that a post-effective amendment to the
registration statement will be filed and must be declared effective before the
offering of the Debentures may commence, the term "Registration Statement" as
used in this Agreement means the registration statement as amended by said post-
effective amendment. If an abbreviated registration statement
is prepared and filed with the Commission in accordance with Rule 462(b) under
the Act ("an Abbreviated Registration Statement"), the term "Registration
Statement" as used in this Agreement includes the Abbreviated Registration
Statement. The term "Prospectus" as used in this Agreement means the prospectus
in the form included in the Registration Statement, or, if the prospectus
included in the Registration Statement omits information in reliance on Rule
430A under the Act and such information is included in a prospectus filed with
the Commission pursuant to Rule 424(b) under the Act, the term "Prospectus" as
used in this Agreement means the prospectus in the form included in the
Registration Statement as supplemented by the addition of the Rule 430A
information contained in the prospectus filed with the Commission pursuant to
Rule 424(b). The term "Prepricing Prospectus" as used in this Agreement means
the prospectus subject to completion in the form included in the registration
statement at the time of the initial filing of the registration statement with
the Commission, and as such prospectus shall have been amended from time to time
prior to the date of the Prospectus.
2. Agreements to Sell and Purchase. The Company hereby agrees, subject
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to all the terms and conditions set forth herein, to issue and sell to each
Underwriter and, upon the basis of the representations, warranties and
agreements of the Company herein contained and subject to all the terms and
conditions set forth herein, each Underwriter agrees, severally and not jointly,
to purchase from the Company, at a purchase price of % of the principal
amount thereof, the principal amount of Debentures set forth opposite the name
of such Underwriter in Schedule I hereto (or such principal amount of Debentures
increased as set forth in Section 10 hereof).
3. Terms of Public Offering. The Company has been advised by you that
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the Underwriters propose to make a public offering of their respective portions
of the Debentures as soon after the Registration Statement and this Agreement
have become effective as in your judgment is advisable and initially to offer
the Debentures upon the terms set forth in the Prospectus.
4. Delivery of the Debentures and Payment Therefor. Delivery to the
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Underwriters of and payment for the Firm Debentures shall be made at the office
of Xxxxx Xxxxxx Inc., 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000, at 10:00 A.M.,
New York City time, on , 1997 (the "Closing Date"). The place of
closing for the Debentures and the Closing Date may be varied by agreement
between you and the Company.
The Debentures will be delivered to you for the accounts of the several
Underwriters against payment of the purchase price therefor in immediately
available funds to the order of the Company and registered in such names and in
such denominations as you shall request by written notice, it being understood
that a facsimile transmission shall be deemed written notice, prior to 9:30
A.M., New York City time, on the second business day preceding the Closing Date.
The Debentures to be delivered to the Underwriters
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shall be made available to you in New York City for inspection and packaging not
later than 9:30 A.M., New York City time, on the business day next preceding the
Closing Date or the Option Closing Date, as the case may be.
5. Agreements of the Company. The Company agrees with the several
-------------------------
Underwriters as follows:
(a) If, at the time this Agreement is executed and delivered, it is
necessary for the Registration Statement or a post-effective amendment thereto
to be declared effective before the offering of the Debentures may commence, the
Company will endeavor to cause the Registration Statement or such post-effective
amendment to become effective as soon as possible and will advise you promptly
and, if requested by you, will confirm such advice in writing, when the
Registration Statement or such post-effective amendment has become effective.
(b) The Company will advise you promptly and, if requested by you,
will confirm such advice in writing: (i) of any request by the Commission for
amendment of or a supplement to the Registration Statement, any Prepricing
Prospectus or the Prospectus or for additional information; (ii) of the issuance
by the Commission of any stop order suspending the effectiveness of the
Registration Statement or of the suspension of qualification of the Debentures
for offering or sale in any jurisdiction or the initiation of any proceeding for
such purpose; and (iii) within the period of time referred to in paragraph (f)
below, of any change in the Company's condition (financial or other), business,
prospects, properties, net worth or results of operations, or of the happening
of any event, including the filing of any information, documents or reports
pursuant to the Exchange Act, which makes any statement of a material fact made
in the Registration Statement or the Prospectus (as then amended or
supplemented) untrue or which requires the making of any additions to or changes
in the Registration Statement or the Prospectus (as then amended or
supplemented) in order to state a material fact required by the Act or the
regulations thereunder to be stated therein or necessary in order to make the
statements therein not misleading, or of the necessity to amend or supplement
the Prospectus (as then amended or supplemented) to comply with the Act or any
other law. If at any time the Commission shall issue any stop order suspending
the effectiveness of the Registration Statement, the Company will make every
reasonable effort to obtain the withdrawal of such order at the earliest
possible time.
(c) The Company will furnish to you, without charge (i) three signed
copies of the Registration Statement as originally filed with the Commission and
of each amendment thereto, including financial statements and all exhibits to
the Registration Statement, (ii) such number of conformed copies of the
Registration Statement as originally filed and of each amendment thereto, but
without exhibits, as you may reasonably request, and (iii) such number of copies
of the Indenture as you may reasonably request.
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(d) The Company will not (i) file any amendment to the Registration
Statement or make any amendment or supplement to the Prospectus of which you
shall not previously have been advised or to which you shall reasonably object
in writing after being so advised or (ii) so long as, in the written opinion of
counsel for the Underwriters (a copy of which will be delivered to the Company),
a Prospectus is required to be delivered in connection with sales by any
Underwriter or dealer, file any information, documents or reports pursuant to
the Exchange Act, without delivering a copy of such information, documents or
reports to you, as Representatives of the Underwriters, prior to or concurrently
with such filing.
(e) Prior to the execution and delivery of this Agreement, the Company
has delivered or will deliver to you, without charge, in such quantities as you
have reasonably requested or may hereafter reasonably request, copies of each
form of the Prepricing Prospectus. The Company consents to the use, in
accordance with the provisions of the Act and with the securities or Blue Sky
laws of the jurisdictions in which the Debentures are offered by the several
Underwriters and by dealers, prior to the date of the Prospectus, of each
Prepricing Prospectus so furnished by the Company.
(f) As soon after the execution and delivery of this Agreement as
possible and thereafter from time to time for such period as in the written
opinion of counsel for the Underwriters a Prospectus is required by the Act to
be delivered in connection with sales by any Underwriter or dealer, the Company
will expeditiously deliver to each Underwriter and each dealer, without charge,
as many copies of the Prospectus (and of any amendment or supplement thereto) as
you may reasonably request. The Company consents to the use of the Prospectus
(and of any amendment or supplement thereto) in accordance with the provisions
of the Act and with the securities or Blue Sky laws of the jurisdictions in
which the Debentures are offered by the several Underwriters and by all dealers
to whom Debentures may be sold, both in connection with the offering and sale of
the Debentures and for such period of time thereafter as the Prospectus is
required by the Act to be delivered in connection with sales by any Underwriter
or dealer. If during such period of time any event shall occur that in the
judgment of the Company or in the written opinion of counsel for the
Underwriters is required to be set forth in the Prospectus (as then amended or
supplemented) or should be set forth therein in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, or if it is necessary to supplement or amend the Prospectus to
comply with the Act or any other law, the Company will make every reasonable
effort to prepare and, subject to the provisions of paragraph (d) above, file
with the Commission an appropriate supplement or amendment thereto, and will
expeditiously furnish to the Underwriters and dealers a reasonable number of
copies thereof. In the event that the Company and you, as Representatives of
the several Underwriters, agree that the Prospectus should be amended or
supplemented, the Company, if requested by you, will promptly issue a press
release announcing or
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disclosing the matters to be covered by the proposed amendment or supplement.
(g) The Company will cooperate with you and with counsel for the
Underwriters in connection with the registration or qualification of the
Debentures for offering and sale by the several Underwriters and by dealers
under the securities or Blue Sky laws of such jurisdictions as you may
reasonably designate and will file such consents to service of process or other
documents necessary or appropriate in order to effect such registration or
qualification; provided that in no event shall the Company be obligated to
qualify to do business in any jurisdiction where it is not now so qualified or
to take any action which would subject it to taxation or to service of process
in suits, other than those arising out of the offering or sale of the
Debentures, in any jurisdiction where it is not now so subject.
(h) The Company will make generally available to its security holders
a consolidated earnings statement, which need not be audited, covering a twelve-
month period commencing after the effective date of the Registration Statement
and ending not later than 15 months thereafter, as soon as reasonably
practicable after the end of such period, which consolidated earnings statement
shall satisfy the provisions of Section ll(a) of the Act.
(i) So long as any of the Debentures are outstanding, the Company will
furnish to you (i) as soon as available, a copy of each report of the Company
mailed to stockholders or filed with the Commission, and (ii) from time to time
such other information concerning the Company as you may reasonably request.
(j) If this Agreement shall terminate or shall be terminated after
execution pursuant to any provisions hereof (otherwise than pursuant to the
second paragraph of Section 10 hereof or by notice given by you terminating this
Agreement pursuant to Section 10 or Section 11 hereof) or if this Agreement
shall be terminated by the Underwriters because of any failure or refusal on the
part of the Company to comply with the terms or fulfill, in any material
respect, any of the conditions of this Agreement, the Company agrees to
reimburse the Representatives for all reasonable out-of-pocket expenses
(including reasonable fees and expenses of counsel for the Underwriters)
incurred by you in connection herewith.
(k) The Company will apply the net proceeds from the sale of the
Debentures substantially in accordance with the description set forth in the
Prospectus.
(l) If Rule 430A of the Act is employed, the Company will make every
reasonable effort to timely file the Prospectus pursuant to Rule 424(b) under
the Act and will advise you of the time and manner of such filing.
(m) The Company will use its best efforts to have the Debentures
listed, subject to notice of issuance, on the New York
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Stock Exchange on or before the Closing Date.
6. Representations and Warranties of the Company. The Company represents
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and warrants to each Underwriter that:
(a) Each Prepricing Prospectus included as part of the registration
statement as originally filed or as part of any amendment or supplement thereto,
or filed pursuant to Rule 424 under the Act, complied when so filed in all
material respects with the provisions of the Act except that this representation
and warranty does not apply to statements in or omissions from such Prepricing
Prospectus (or any amendment or supplement thereto) made in reliance upon and in
conformity with information relating to any Underwriter furnished to the Company
in writing by an Underwriter through the Representatives expressly for use
therein. The Commission has not issued any order preventing or suspending the
use of any Prepricing Prospectus.
(b) The Registration Statement in the form in which it became or
becomes effective, including the information deemed to be part of the
Registration Statement at the time of effectiveness pursuant to Rule 430A(b),
and also in such form as it may be when any post-effective amendment thereto
shall become effective and the Prospectus and any supplement or amendment
thereto when filed with the Commission under Rule 424(b) under the Act, complied
or will comply in all material respects with the provisions of the Act and will
not at any such times contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, except that this representation and warranty
does not apply to statements in or omissions from the Registration Statement or
the Prospectus made in reliance upon and in conformity with (i) information
relating to any Underwriter furnished to the Company in writing by or on behalf
of any Underwriter through you expressly for use therein, or (ii) the Trustee's
Statement of Eligibility and Qualification (Form T-1) under the Trust Indenture
Act of 1939, as amended (the "1939 Act").
(c) The execution and delivery of, and the performance by the Company
of its obligations under, this Agreement have been duly and validly authorized
by the Company, and this Agreement has been duly executed and delivered by the
Company and constitutes the valid and legally binding agreement of the Company,
enforceable against the Company in accordance with its terms, except as rights
to indemnity and contribution hereunder may be limited by federal or state
securities laws.
(d) The Indenture has been duly and validly authorized and, upon its
execution and delivery by the Company and assuming due execution and delivery by
the Trustee, will be a valid and binding agreement of the Company, enforceable
in accordance with its terms, except as enforcement thereof may be limited by
bankruptcy, insolvency or other similar laws affecting creditors' rights
generally, and has been (or will have been) duly qualified under the 1939 Act
and conforms to the description thereof in the
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Registration Statement and the Prospectus.
(e) The Debentures have been duly authorized and, when executed by the
Company and authenticated by the Trustee in accordance with the Indenture and
delivered to you against payment therefor in accordance with the terms hereof,
will have been validly issued and delivered, and will constitute valid and
binding obligations of the Company entitled to the benefits of the Indenture and
enforceable in accordance with their terms, except as enforcement thereof may be
limited by bankruptcy, insolvency or other similar laws affecting the
enforcement of creditors' rights generally, and the Debentures will conform to
the description thereof in the Registration Statement and the Prospectus.
(f) The authorized and outstanding capital stock of the Company is as
set forth under the caption "Capitalization" in the Prospectus.
(g) The Company is a corporation duly organized and validly existing
in good standing under the laws of the State of New York, and within fourteen
days of the Closing Date will be a corporation duly organized and validly
subsisting under the Commonwealth of Pennsylvania with full corporate power and
authority to own, lease and operate its properties and to conduct its business
as described in the Registration Statement and the Prospectus, and is duly
registered and qualified to conduct its business and is in good standing in each
jurisdiction or place where the nature of its properties or the conduct of its
business requires such registration or qualification, except where the failure
so to register or qualify does not and will not (1) have a material adverse
effect on the condition (financial or other), business affairs, prospects,
properties, shareholder's equity or results of operations of the Company and the
Subsidiaries (as hereinafter defined), taken as a whole, (2) adversely affect
the issuance, validity or enforceability of the Shares or (3) adversely affect
the consummation of any of the transactions contemplated by this Agreement (each
of (1), (2) and (3) above, a "Material Adverse Effect").
(h) All the Company's subsidiaries (as defined in Rule 1-02(x) of
Regulation S-X and as required to be identified by Item 601(b)(21) of Regulation
S-K) are listed in an exhibit to the Registration Statement (collectively, the
"Subsidiaries"). Each Subsidiary is either (i) a corporation duly organized,
validly existing and in good standing in the jurisdiction of its incorporation,
or (ii) a partnership duly organized and validly existing under the applicable
laws of the Commonwealth of Pennsylvania. Each Subsidiary has the requisite
corporate or partnership, as the case may be, and authority to own, lease and
operate its properties and to conduct its business as described in the
Registration Statement and the Prospectus, and is duly registered and qualified
to conduct its business and is in good standing in each jurisdiction or place
where the nature of its properties or the conduct of its business requires such
registration or qualification, except where the failure so to
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register or qualify does not and will not individually or in the aggregate have
a Material Adverse Effect. All the outstanding shares of capital stock of each
of the corporate Subsidiaries have been duly authorized and validly issued, are
fully paid and nonassessable, and are owned by the Company directly, or
indirectly through one or more of the other Subsidiaries, free and clear of any
lien, adverse claim, security interest, equity or other encumbrance, except that
Xxxxxx Xxxxx Command Company is only 99% owned (indirectly) by the Company.
(i) There are no legal or governmental proceedings pending or, to the
knowledge of the Company, threatened, against the Company or any of its
Subsidiaries which are materially adverse to the Company and its Subsidiaries,
taken as a whole, or to which any of their respective properties is subject
which are material to the Company and its Subsidiaries, taken as a whole, that
are required to be described in the Registration Statement or the Prospectus but
are not described as required, and there are no agreements, contracts,
indentures, leases or other instruments relating to the Company that are
required to be described in the Registration Statement or the Prospectus or to
be filed as an exhibit to the Registration Statement that are not described or
filed as required by the Act or the Exchange Act. The descriptions of the terms
of any such agreements, contracts, indentures, leases or other instruments
contained in the Registration Statement or the Prospectuses are correct in all
material respects.
(j) Neither the Company nor any of the Subsidiaries is (i) in
violation of its certificate or articles of incorporation or by-laws, or other
organizational documents, (ii) in violation of any statute, law, ordinance,
administrative or governmental rule or regulation applicable to the Company or
any of the Subsidiaries or of any ruling, judgment, injunction, order or decree
of any court or governmental agency or body having jurisdiction over the Company
or any of the Subsidiaries, (except where any such violation or violations in
the aggregate would not have a Material Adverse Effect), or (iii) in default in
any material respect in the performance of any obligation, agreement or
condition contained in any bond, debenture, note or any other evidence of
indebtedness or in any material agreement, indenture, lease or other instrument
to which the Company or any of the Subsidiaries is a party or by which any of
them or any of their respective properties may be bound and no condition or
state of facts exists, which with the passage of time or the giving of notice or
both, would constitute such a default (except where any such default or defaults
in the aggregate would not have a Material Adverse Effect).
(k) Neither the issuance and sale of the Debentures, the execution,
delivery or performance of this Agreement and the Indenture by the Company, nor
the consummation by the Company of the transactions contemplated hereby and
thereby (i) requires any consent, approval, authorization or other order of or
registration or filing with, any court, regulatory body, administrative agency
or other governmental body, agency or official (except such as may be required
for the registration of the Debentures under the Act and
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the Exchange Act (which has been effected), qualification of the Indenture under
the 1939 Act, and such as may be required under state or foreign securities laws
or conflicts or will conflict with or constitutes or will constitute a breach
of, or a default under, the certificate or articles of incorporation or bylaws,
or other organizational documents, of the Company or any of the Subsidiaries or
(ii) conflicts or will conflict with or constitutes or will constitute a breach
of, or a default under, any agreement, indenture, lease or other instrument to
which the Company or any of the Subsidiaries is a party or by which any of them
or any of their respective properties may be bound, or violates or will violate
any statute, law, regulation or filing (except as may be required for the
registration of the Shares under the Act and the Exchange Act (which has been
effected) and such as may be required under state or foreign securities laws) or
judgment, injunction, order or decree applicable to the Company or any of the
Subsidiaries or any of their respective properties, or will 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 terms of any
agreement or instrument to which any of them is a party or by which any of them
may be bound or to which any of the property or assets of any of them is subject
other than security interests granted pursuant to the Credit Agreement.
(l) The accountants, Xxxxxx Xxxxxxxx LLP and Deloitte & Touche LLP,
who have certified or shall certify the financial statements filed or to be
filed as part of the Registration Statement and the Prospectus (or any amendment
or supplement thereto) are independent public accountants as required by the
Act.
(m) The historical consolidated financial statements of the Company,
together with related schedules and notes, forming part of the Registration
Statement and the Prospectus (and any amendment or supplement thereto) and, to
the knowledge of the Company, the historical financial statements of Security
Archives, Inc. and Records Management Services, Inc., together with related
schedules and notes forming part of the Registration Statement and the
Prospectus (and any amendment or supplement thereto) comply with the
requirements of the Act and, present fairly the consolidated financial position,
results of operations, cash flows and changes in financial position of the
Company and the Subsidiaries and Security Archives, Inc. and Records Management
Services, Inc., as the case may be, on the basis stated in the Registration
Statement at the respective dates or for the respective periods to which they
apply; the statements and related schedules and notes of the Company and, to the
knowledge of the Company, the statements and related schedules and notes of
Security Archives, Inc. and Records Management Services, Inc., have been
prepared in accordance with generally accepted accounting principles
consistently applied throughout the periods involved, except as disclosed
therein; the pro forma financial information, and the related notes thereto,
included in the Registration Statement and the Prospectus (and any amendment or
supplement thereto) have been prepared in accordance with the applicable
requirements of the Act and the assumptions used in preparing such
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information are reasonable; and the other historical and pro forma financial and
statistical information and data set forth in the Registration Statement and the
Prospectus (and any amendment or supplement thereto) are accurately presented
and prepared on a basis consistent with the books and records of the Company and
the Subsidiaries.
(n) The execution and delivery of, and the performance by the Company
of its obligations under this Agreement has been duly and validly authorized by
the Company, and this Agreement has been duly executed and delivered by the
Company and constitutes the valid and legally binding agreement of the Company,
enforceable against the Company in accordance with its terms, except (i) the
enforceability hereof or thereof may be limited by bankruptcy, insolvency,
reorganization, fraudulent conveyance moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally, (ii) the remedy of
specific performance and other forms of equitable relief may be subject to
certain equitable defenses and to the discretion of the court before which the
proceedings may be brought and (iii) rights to indemnity and contribution
hereunder or thereunder may be limited by federal or state securities laws or
the public policy underlying such laws.
(o) Except as disclosed in the Registration Statement and the
Prospectus (or any amendment or supplement thereto), subsequent to the
respective dates as of which such information is given in the Registration
Statement and the Prospectus (or any amendment or supplement thereto), neither
the Company nor any of the Subsidiaries has incurred any liability or
obligation, direct or contingent, or entered into any transaction, not in the
ordinary course of business, that is material to the Company and the
Subsidiaries taken as a whole, and there has not been any change in the capital
stock of the Company, or material increase in the short-term debt or long-term
debt, of the Company or any of the Subsidiaries, or any development having or
which may reasonably be expected to have, a prospective Material Adverse Effect.
(p) Each of the Company and the Subsidiaries has good and valid title
to all property (real and personal) described in the Prospectus as being owned
by it which is material to the business of the Company and its Subsidiaries
taken as a whole, free and clear of all liens, claims, security interests or
other encumbrances except such as are described in the Registration Statement
and the Prospectus or in a document filed as an exhibit to the Registration
Statement and all the property described in the Prospectus as being held under
lease by each of the Company and the Subsidiaries which is material to the
business of the Company and the Subsidiaries, taken as a whole is held by it
under valid, subsisting and enforceable leases with only such exceptions as in
the aggregate do not interfere in any material respect with the conduct of the
business of the Company and the Subsidiaries, taken as a whole or the use made
or proposed to be made of such property by the Company or its Subsidiaries.
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(q) The Company has not distributed and, prior to the later to occur
of (i) the Closing Date and (ii) completion of the distribution of the
Debentures, will not distribute any offering material in connection with the
offering and sale of the Debentures other than the Registration Statement, the
Prepricing Prospectus, the Prospectus or other materials, if any, permitted by
the Act.
(r) Except as described in clause (d) above, the Company and each of
the Subsidiaries has such permits, licenses, franchises and authorizations of
governmental or regulatory authorities ("Permits") as are necessary to own its
respective properties and to conduct its business in the manner described in the
Prospectus except where the failure to so possess would not, individually or in
the aggregate, have a Material Adverse Effect and, subject to such
qualifications as may be set forth in the Prospectus; the Company and each of
the Subsidiaries has fulfilled and performed all its material obligations with
respect to such Permits and no event has occurred that allows, or after notice
or lapse of time would allow, revocation or termination thereof or results in
any other material impairment of the rights of the holder of any such Permit,
subject in each case to such qualification as may be set forth in the Prospectus
except where any such revocation, termination or impairment would not have a
Material Adverse Effect; and, except as described in the Prospectus, none of
such Permits contains any restriction that is materially burdensome to the
Company or any of the Subsidiaries.
(s) The Company maintains a system of internal accounting controls
sufficient to provide reasonable assurances that (i) transactions are executed
in accordance with management's general or specific authorization; (ii)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to
maintain accountability for assets; (iii) access to assets is permitted only in
accordance with management's general or specific authorization; and (iv) the
recorded accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(t) To the Company's knowledge, neither the Company nor any of its
Subsidiaries nor any employee or agent of the Company or any Subsidiary has made
any payment of funds of the Company or any Subsidiary or received or retained
any funds in violation of any law, rule or regulation, which payment, receipt or
retention of funds is of a character required to be disclosed in the Prospectus.
(u) The Company and, to the Company's knowledge, each of the
Subsidiaries have filed all tax returns or extensions therefor required to be
filed, which returns are true and correct in all material respects, and neither
the Company nor any Subsidiary is in default in the payment of any taxes which
were payable pursuant to said returns or any assessments with respect thereto
except where the failure to file such returns or to pay such taxes is not
reasonably likely to have a Material Adverse Effect.
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(v) Except as described in the Prospectus, no holder of any security
of the Company has any right to require registration of shares of Common Stock
or any other security of the Company because of the filing of the Registration
Statement or consummation of the transactions contemplated by this Agreement or
otherwise. Except as described in or contemplated by the Prospectuses, there
are no outstanding options, warrants or other rights calling for the issuance
of, and there are no commitments, plans or arrangements to issue, any shares of
Common Stock of the Company or any security convertible into or exchangeable or
exercisable for Common Stock of the Company.
(w) The Company and the Subsidiaries own or possess all patents,
trademarks, trademark registration, service marks, service xxxx registrations,
trade names, copyrights, licenses, inventions, trade secrets and rights
described in the Prospectus as being owned by them or any of them or necessary
for the conduct of their respective businesses except where the lack of such
ownership or possession would not, individually or in the aggregate, have a
Material Adverse Effect, and the Company is not aware of any claim to the
contrary or any challenge by any other person to the rights of the Company and
the Subsidiaries with respect to the foregoing.
(x) The Company is not and, upon sale of the Debentures to be issued
and sold in accordance herewith and upon application of the net proceeds to the
Company from such sale as described in the Prospectus under the caption "Use of
Proceeds," will not be an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
(y) The Company and the Subsidiaries have complied with all provisions
of Florida Statutes, (S) 517.075, relating to issuers doing business with Cuba.
(z) The businesses of the Company and the Subsidiaries as presently
conducted and as described in the Prospectuses comply with all statutes, laws,
ordinances, administrative or governmental rules or regulations applicable to
the Company or any of the Subsidiaries (collectively, "Laws") and with all
orders, rulings, judgments, injunctions or decrees of any court or governmental
agency or body having jurisdiction over the Company or any of the Subsidiaries,
except for any failure to comply which would not, individually or in the
aggregate, have a Material Adverse Effect.
(aa) The Company and each of its Subsidiaries are insured by insurers
of recognized financial responsibility against such losses and risks and in such
amounts as are prudent and customary in the businesses in which they are
engaged; neither the Company nor any such Subsidiary has been refused any
insurance coverage sought or applied for; and neither the Company nor any such
Subsidiary has any reason to believe that it will not be able to renew its
existing insurance coverage as and when such coverage expires or to obtain
similar coverage from similar insurers as may be necessary to continue its
business at a cost that would not have a Material Adverse Effect, except as
described in or contemplated
12
by the Prospectuses.
(ab) No Subsidiary of the Company is currently prohibited, directly or
indirectly, from paying any dividends to the Company, from making any other
distribution on such Subsidiary's capital stock, from repaying to the Company
any loans or advances to such Subsidiary from the Company or from transferring
any of such Subsidiary's property or assets to the Company or any other
Subsidiary of the Company, except as described in or contemplated by the
Prospectuses.
(ac) Except for the shares of capital stock or partnership interests
of each of the Subsidiaries owned by the Company and such Subsidiaries, neither
the Company nor any such Subsidiary owns any shares of stock or any other equity
securities of any corporation or has any equity interest in any firm,
partnership, association or other entity, except as described in or contemplated
by the Prospectuses.
(ad) There are no labor disputes with the Company's employees or with
employees of the Subsidiaries that exist or, to the Company's knowledge, are
imminent that could materially adversely affect the Company and the Subsidiaries
taken as a whole, and the Company is not aware of any existing or imminent labor
disturbance by any of its or the Subsidiaries' principal suppliers, contractors
or customers that could be expected to have a Material Adverse Effect.
(ae) With respect to each employee benefit plan, program and
arrangement (including, without limitation, any "employee benefit plan" as
defined in Section 3(3) of the Employee Retirement Income Security Act of 1974,
as amended ("ERISA")), maintained or contributed to by the Company or the
Subsidiaries, or with respect to which the Company or the Subsidiaries could
incur any liability under ERISA (collectively, the "Benefit Plans"), no event
has occurred and there exists no condition or set of circumstances in connection
with which the Company or the Subsidiaries could be subject to any liability
under the terms of such Benefit Plan or applicable law (including, without
limitation, ERISA and the Internal Revenue Code of 1986, as amended (the
"Code")) that could have a Material Adverse Effect.
(af) The Company and the Subsidiaries are (i) (A) in full compliance
with any and all applicable foreign, federal, state and local laws and
regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("Environmental Laws"), (B) have received all permits, licenses or
other approvals required of then under applicable Environmental Laws to conduct
their respective businesses, and (C) and are in full compliance with all terms
and conditions of any such permit, license or approval, except where such
noncompliance with Environmental Laws, failure to receive required permits,
licenses or other approvals or failure to comply with the terms and conditions
of such permits, licenses or approvals would not, singly or in the aggregate,
have a Material
13
Adverse Effect; (ii) except as disclosed in the Registration Statement and the
Prospectuses, there are no past or present actions, activities, circumstances,
conditions, events or incidents, including, without limitation, the release,
threatened release, or disposal of any material (including radiation and noise),
that could form the basis of any claim (whether by a governmental authority or
other person or entity) under Environmental Laws for cleanup costs, damages,
penalties, fines, or otherwise, against any of the Company or the Subsidiaries,
or against any person or entity whose liability for such claim may have been
retained by any of the Company or the Subsidiaries, whether by contract or law;
and (iii) the Company and the Subsidiaries have fully disclosed to the
Underwriters and their counsel all studies, reports, assessments, audits and
other information in their possession or control relating to any pollution or
release, threatened release or disposal of materials regulated under
Environmental Laws on, at, under, from or transported from any of their
currently or formerly owned, leased or operated properties, including, without
limitation, all information relating to underground storage tanks and asbestos
containing materials. Neither the Company nor any of the Subsidiaries has been
named as a "potentially responsible party" under the Comprehensive Environmental
Response Compensation and Liability Act of 1980, as amended ("CERCLA").
7. Indemnification and Contribution. (a) The Company agrees to
--------------------------------
indemnify and hold harmless each of you and each other Underwriter and each
person, if any, who controls any Underwriter within the meaning of Section 15 of
the Act or Section 20(a) of the Exchange Act from and against any and all
losses, claims, damages, liabilities and expenses (including reasonable costs of
investigation) arising out of or based upon any untrue statement or alleged
untrue statement of a material fact contained in any Prepricing Prospectus or in
the Registration Statement or the Prospectus or in any amendment or supplement
thereto, or arising out of or based upon any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, except insofar as such losses, claims,
damages, liabilities or expenses arise out of or are based upon any untrue
statement or omission or alleged untrue statement or omission which has been
made therein or omitted therefrom in reliance upon and in conformity with the
information relating to such Underwriter furnished in writing to the Company by
or on behalf of any Underwriter through you expressly for use in connection
therewith; provided, however, that the indemnification contained in this
paragraph (a) with respect to any Prepricing Prospectus shall not inure to the
benefit of any Underwriter (or to the benefit of any person controlling such
Underwriter) on account of any such loss, claim, damage, liability or expense
arising from the sale of the Debentures by such Underwriter to any person if a
copy of the Prospectus shall not have been delivered or sent to such person
within the time required by the Act and the regulations thereunder, and the
untrue statement or alleged untrue statement or omission or alleged omission of
a material fact contained in such Prepricing Prospectus was corrected in the
Prospectus, provided
14
that the Company has delivered the Prospectus to the several Underwriters in
requisite quantity on a timely basis to permit such delivery or sending.
(b) If any action, suit or proceeding shall be brought against any
Underwriter or any person controlling any Underwriter in respect of which
indemnity may be sought against the Company, such Underwriter or such
controlling person shall promptly notify the Company and the Company shall
assume the defense thereof, including the employment of counsel and payment of
all fees and expenses; provided, however, that the failure so to notify the
Company shall not relieve the Company from any obligation or liability except to
the extent that the Company has been prejudiced materially by such failure.
Such Underwriter or any such controlling person shall have the right to employ
separate counsel in any such action, suit or proceeding and to participate in
the defense thereof, but the fees and expenses of such counsel shall be at the
expense of such Underwriter or such controlling person unless (i) the Company
has agreed in writing to pay such fees and expenses, (ii) the Company has failed
to assume the defense and employ counsel, or (iii) the named parties to any such
action, suit or proceeding (including any impleaded parties) include both such
Underwriter or such controlling person and the Company and such Underwriter or
such controlling person shall have been advised by its counsel in writing that
representation of such indemnified party and the Company by the same counsel
would be inappropriate under applicable standards of professional conduct
(whether or not such representation by the same counsel has been proposed) due
to actual or potential differing interests between them (in which case the
Company shall not have the right to assume the defense of such action, suit or
proceeding on behalf of such Underwriter or such controlling person). It is
understood, however, that the Company shall, in connection with any one such
action, suit or proceeding or separate but substantially similar or related
actions, suits or proceedings in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the reasonable fees and
expenses of only one separate firm of attorneys (in addition to any local
counsel) at any time for all such Underwriters and controlling persons not
having actual or potential differing interests with you or among themselves,
which firm shall be designated in writing by Xxxxx Xxxxxx Inc., and that all
such fees and expenses as required to be paid by the Company hereunder shall be
reimbursed as they are incurred. The Company shall not be liable for any
settlement of any such action, suit or proceeding effected without its written
consent, but if settled with such written consent, or if there be a final
judgment for the plaintiff in any such action, suit or proceeding, the Company
agrees to indemnify and hold harmless any Underwriter, to the extent provided in
the preceding paragraph, and any such controlling person from and against any
loss, claim, damage, liability or expense by reason of such settlement or
judgment.
(c) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, its directors, its officers who sign the
Registration Statement, and any person who
15
controls the Company within the meaning of Section 15 of the Act or Section
20(a) of the Exchange Act, to the same extent as the foregoing indemnity from
the Company to each Underwriter, but only with respect to information relating
to such Underwriter furnished in writing by or on behalf of such Underwriter
through you expressly for use in the Registration Statement, the Prospectus or
any Prepricing Prospectus, or any amendment or supplement thereto. If any
action, suit or proceeding shall be brought against the Company, any of its
directors, any such officer, or any such controlling person, based on the
Registration Statement, the Prospectus or any Prepricing Prospectus, or any
amendment or supplement thereto, and in respect of which indemnity may be sought
against any Underwriter pursuant to this paragraph (c), such Underwriter shall
have the rights and duties given to the Company by paragraph (b) above (except
that if the Company shall have assumed the defense thereof such Underwriter
shall not be required to do so, but may employ separate counsel therein and
participate in the defense thereof, but the fees and expenses of such counsel
shall be at such Underwriter's expense), and the Company, its directors, any
such officer, and any such controlling person, shall have the rights and duties
given to the Underwriters by paragraph (b) above.
(d) If the indemnification provided for in this Section 7 is
unavailable to an indemnified party under paragraphs (a) or (c) hereof in
respect of any losses, claims, damages, liabilities or expenses referred to
therein, then an indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages, liabilities or expenses (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and the Underwriters on the other hand from the offering
of the Debentures, or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Company on the one hand and the Underwriters on the other in
connection with the statements or omissions that resulted in such losses,
claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company bear to the total underwriting discounts and
commissions received by the Underwriters, in each case as set forth in the table
on the cover page of the Prospectus; provided that, in the event that the
Underwriters shall have purchased any Additional Debentures hereunder, any
determination of the relative benefits received by the Company or the
Underwriters from the offering of the Debentures shall include the net proceeds
(before deducting expenses) received by the Company and the underwriting
discounts and commissions received by the Underwriters, from the sale of such
Additional Debentures, in each case computed on the basis of the respective
amounts set forth in the notes to the table on the cover page of the
16
Prospectus. The relative fault of the Company on the one hand and the
Underwriters on the other hand shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company on the one hand or by the Underwriters on the other hand
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
(e) The Company and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this Section 7 were determined by a
pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation that does not take account of
the equitable considerations referred to in paragraph (d) above. The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages, liabilities and expenses referred to in paragraph (d) above shall be
deemed to include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating any claim or defending any such action, suit or proceeding.
Notwithstanding the provisions of this Section 7, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price of the Debentures underwritten by it and distributed to the public exceeds
the amount of any damages which such Underwriter has otherwise been required to
pay by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Underwriters'
obligations to contribute pursuant to this Section 7 are several in proportion
to the respective principal amounts of Debentures set forth opposite their names
in Schedule I hereto (or such principal amounts of Debentures increased as set
forth in Section 10 hereof) and not joint.
(f) No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
action, suit or proceeding in respect of which any indemnified party is or could
have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such action, suit or proceeding.
(g) Any losses, claims, damages, liabilities or expenses for which an
indemnified party is entitled to indemnification or contribution under this
Section 7 shall be paid by the indemnifying party to the indemnified party as
such losses, claims, damages, liabilities or expenses are incurred. The
indemnity and contribution agreements contained in this Section 7 and the
representations and warranties of the Company set forth in this Agreement shall
remain operative and in full force and effect, regardless of (i) any
investigation made by or on behalf of any Underwriter or any person controlling
any Underwriter, the Company,
17
its directors or officers or any person controlling the Company, (ii) acceptance
of any Debentures and payment therefor hereunder, and (iii) any termination of
this Agreement. A successor to any Underwriter or any person controlling any
Underwriter, or to the Company, its directors or officers, or any person
controlling the Company, shall be entitled to the benefits of the indemnity,
contribution and reimbursement agreements contained in this Section 7.
8. Conditions of Underwriters' Obligations. The several obligations of
---------------------------------------
the Underwriters to purchase the Firm Debentures hereunder are subject to the
following conditions:
(a) If, at the time this Agreement is executed and delivered, it is
necessary for the Registration Statement or a post-effective amendment thereto
to be declared effective before the offering of the Debentures may commence, the
Registration Statement or such post-effective amendment shall have become
effective not later than 5:30 P.M., New York City time, on the date hereof, or
at such later date and time as shall be consented to in writing by you, and all
filings, if any, required by Rules 424 and 430A under the Act shall have been
timely made; no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceeding for that purpose shall have
been instituted or, to the knowledge of the Company or any Underwriter,
threatened by the Commission, and any request of the Commission for additional
information (to be included in the Registration Statement or the Prospectus or
otherwise) shall have been complied with to your reasonable satisfaction.
(b) Subsequent to the effective date of this Agreement, there shall
not have occurred (i) any change, or any development involving a prospective
change, in or affecting the condition (financial or other), business,
properties, net worth, or results of operations of the Company or the
Subsidiaries not contemplated by the Prospectus, which in your opinion, as
Representatives of the several Underwriters, would materially adversely affect
the market for the Debentures, or (ii) any event or development relating to or
involving the Company or any officer or director of the Company which makes any
statement made in the Prospectus untrue or which, in the opinion of the Company
and its counsel or the Underwriters and their counsel, requires the making of
any addition to or change in the Prospectus in order to state a material fact
required by the Act or any other law to be stated therein or necessary in order
to make the statements therein not misleading, if amending or supplementing the
Prospectus to reflect such event or development would, in your opinion, as
Representatives of the several Underwriters, materially adversely affect the
market for the Debentures.
(c) You shall have received on the Closing Date, an opinion of Cozen
and X'Xxxxxx, counsel for the Company, dated the Closing Date and addressed to
you, as Representatives of the several Underwriters, to the effect that:
18
(i) The Company is a corporation duly incorporated and validly
subsisting under the laws of the Commonwealth of Pennsylvania with full
corporate power and authority to own, lease and operate its properties and to
conduct its business as described in the Registration Statement and the
Prospectus, and is duly registered and qualified to conduct its business and is
in good standing in each jurisdiction or place where the nature or the conduct
of the business transacted or property owned or leased by it makes such
registration or qualification necessary, except where the failure so to register
or qualify or be in good standing would not have a Material Adverse Effect;
(ii) Each of the Subsidiaries is either (A) a corporation duly
organized and validly existing under the laws of the jurisdiction of its
organization, or (B) a limited partnership duly organized under the laws of the
Commonwealth of Pennsylvania; [with full corporate power and authority to own,
lease, and operate its properties and to conduct its business as described in
the Registration Statement and the Prospectus (and any amendment or supplement
thereto); and all the outstanding shares of capital stock of each of the
Subsidiaries have been duly authorized and validly issued, are fully paid and
nonassessable, and are owned by the Company directly free and clear of any
perfected security interest, or, to the best knowledge of such counsel after
reasonable inquiry, any other security interest, lien, adverse claim, equity or
other encumbrance];
(iii) The authorized and outstanding capital stock of the Company is
as set forth under the caption "Capitalization" in the Prospectuses; and the
authorized capital stock of the Company conforms in all material respects as to
legal matters to the description thereof contained in the Prospectuses under the
caption "Description of Capital Stock";
(iv) The Company has the requisite corporate power and authority to
enter into this Agreement and to issue, sell and deliver the Debentures to the
Underwriters as provided herein, and this Agreement has been duly authorized,
executed and delivered by the Company and is a valid, legal and binding
agreement of the Company, enforceable against the Company in accordance with its
terms, except as enforcement of rights to indemnity and contribution hereunder
may be limited by Federal or state securities laws or principles of public
policy [and subject to the qualification that the enforceability of the
Company's obligations hereunder may be limited by bankruptcy, fraudulent
conveyance, insolvency, reorganization, moratorium, and other laws relating to
or affecting creditors' rights generally and by general equitable principles];
(v) The Indenture has been duly and validly authorized, executed and
delivered by the Company and, assuming due execution and delivery by the
Trustee, is a valid and binding agreement of the Company, enforceable in
accordance with its terms, except as enforcement thereof may be limited by
bankruptcy, insolvency or other similar laws affecting creditors' rights
19
generally, and has been duly qualified under the 1939 Act;
(vi) The Debentures have been duly and validly authorized and
executed by the Company and, assuming due authentication of the Debentures by
the Trustee, upon delivery to the Underwriters against payment therefor in
accordance with the terms hereof, will have been validly issued and delivered,
and will constitute valid and binding obligations of the Company entitled to the
benefits of the Indenture;
(vii) The Registration Statement and all post-effective amendments,
if any, have become effective under the Act and, to the knowledge of such
counsel, no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose are pending before
or contemplated by the Commission; and any required filing of the Prospectus
pursuant to Rule 424(b) has been made in accordance with Rule 424(b);
(viii) Neither the Company nor any of the Subsidiaries is (A) in
violation of its respective certificate of incorporation or bylaws, or other
organizational documents, or (B) to the knowledge of such counsel, in default in
the performance of any material obligation, agreement or condition contained in
any bond, debenture, note or other evidence of indebtedness, except as may be
disclosed in the Prospectuses or where any such default or defaults in the
aggregate would not, singularly or in the aggregate, have a Material Adverse
Effect;
(ix) Neither the offer, issuance sale or delivery of the Debentures,
the execution, delivery or performance of this Agreement and the Indenture,
compliance by the Company with the provisions hereof and thereof, nor
consummation by the Company of the transactions contemplated hereby and thereby,
conflicts or will conflict with or constitutes or will constitute a breach of,
or a default under, the certificate of incorporation or bylaws, or other
organizational documents, of the Company or any of the Subsidiaries or any
material agreement, indenture, lease or other instrument known to such counsel
to which the Company or any of the Subsidiaries is a party or by which any of
them or any of their respective properties is bound [that is an exhibit to the
Registration Statement or, except as disclosed in the Registration Statement],
will 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 under any
such agreement, indenture, lease or other instrument, nor, to such counsel's
knowledge, nor will any such action result in any violation of any existing law,
regulation, ruling (assuming compliance with all applicable state securities and
Blue Sky laws), or any ruling, judgment, injunction, order or decree of any
court or governmental entity or instrumentality known to such counsel and
applicable to the Company, the Subsidiaries or any of their respective
properties;
(x) No consent, approval, authorization or other order of, or
registration or filing with, any court,
20
regulatory body, administrative agency or other governmental body, agency, or
official is required on the part of the Company (except as have been obtained
under the Act, the Exchange Act, the 1939 Act, and such as may be required under
state securities or Blue Sky laws) governing the purchase and distribution of
the Debentures for the valid issuance and sale of the Debentures to the
Underwriters as contemplated by this Agreement;
(xi) The Registration Statement and the Prospectus and any
supplements or amendments thereto (except for the financial statements,
schedules and the notes thereto and other financial and statistical data
included therein, as to which such counsel need not express any opinion) comply
as to form in all material respects with the requirements of the Act and the
rules and regulations of the Commission thereunder;
(xii) The statements in the Registration Statement and Prospectus,
insofar as they are descriptions of contracts, agreements or other legal
documents, or refer to statements of law or legal conclusions, are accurate and
present fairly the information required to be shown;
(xiii) To the knowledge of such counsel, (A) other than as described
or contemplated in the Prospectus, there are no legal or governmental
proceedings pending or threatened against the Company or any of the
Subsidiaries, or to which the Company or any of the Subsidiaries, or any of
their property, is subject, which are required to be described in the
Registration Statement or Prospectus (or any amendment or supplement thereto)
and (B) there are no agreements, contracts, indentures, leases or other
instruments relating to the Company or any of the Subsidiaries, of a character,
that are required to be described in the Registration Statement or the
Prospectus (or any amendment or supplement thereto) or to be filed as an exhibit
to the Registration Statement that are not described or filed as required, as
the case may be;
(xiv) To the best knowledge of such counsel after reasonable inquiry
and except as set forth in the Prospectus, neither the Company nor any of the
Subsidiaries is in violation of any laws or of any ruling, judgment, injunction,
order or decree of any court or governmental agency or body having jurisdiction
over the Company or any of the Subsidiaries which violation or violations would
not, singularly or in the aggregate, have a Material Adverse Effect;
[(xv) The Company and each of the Subsidiaries has all necessary
orders, consents, approvals, permits, licenses, franchises and authorizations of
and from all regulatory authorities to conduct their respective business as
described in the Registration Statement and Prospectus, except, in any case,
where the failure to so possess would not, singularly or in the aggregate, have
a Material Adverse Effect, and to the best of such counsel's knowledge after due
inquiry, neither the Company nor the Subsidiaries has received any actual
notification from any
21
regulatory authority to the effect that any additional approval is required to
be obtained by the Company or the Subsidiaries;]
(xvi) The Company and the Subsidiaries own or possess all patents,
trademarks, trademark registrations, service marks, service xxxx registrations,
trade names, copyrights, licenses, inventions, trade secrets and rights
described in the Prospectus as being owned by them or any of them or necessary
for the conduct of their respective businesses, and is not aware of any claim to
the contrary or any challenge by any other person to the rights of the Company
and the Subsidiaries with respect to the foregoing;
In addition, such counsel shall state that although counsel has not
undertaken, except as otherwise indicated in their opinion, to determine
independently, and does not assume any responsibility for, the accuracy or
completeness of the statements in the Registration Statement [(except to the
extent set forth in paragraphs (iii) and (xii) above)], such counsel has
participated in the preparation of the Registration Statement and the
Prospectus, including general review and discussion of the contents thereof, and
nothing has come to the attention of such counsel that would lead them to
believe that the Registration Statement at the time the Registration Statement
became effective, or the Prospectus, as of its date and as of the Closing Date
or the Option Closing Date, as the case may be, contained an untrue statement of
a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein, in the case of the
Prospectus, in the light of the circumstances under which they were made, not
misleading or that any amendment or supplement to the Prospectus, as of its
respective date, and as of the Closing Date or the Option Closing Date, as the
case may be, contained any untrue statement of a material fact or omitted to
state a material fact required to be stated in the Prospectus or necessary in
order to make the statements therein, in the case of the Prospectus, in the
light of the circumstances under which they were made, not misleading (it being
understood that such counsel need express no statement with respect to the
financial statements, financial schedules, pro forma financial statements and
the notes thereto and the schedules and other financial and statistical data
included in the Registration Statement or the Prospectus).
In rendering their opinion as aforesaid, counsel may, as to factual
matters, rely, to the extent such counsel deems proper, upon written
certificates or statements of officers of the Company and, as to matters of the
law, may rely upon an opinion or opinions, each dated the Closing Date, of other
counsel retained by them or the Company as to laws of any jurisdiction other
than the United States or the Commonwealth of Pennsylvania. The foregoing
opinion may be limited to the federal laws of the United States of America and
the Commonwealth of Pennsylvania.
(d) You shall have received on the Closing Date an opinion of
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, dated
the Closing Date and addressed to you, as
22
Representatives of the several Underwriters, with respect to the matters
referred to in clauses ( ) through ( ) and clauses ( ), ( ), and ( ) of the
foregoing paragraph (c) and such other related matters as you may request.
(e) You shall have received letters addressed to you, as
Representatives of the several Underwriters, and dated the date hereof and the
Closing Date from Xxxxxx Xxxxxxxx LLP and Deloitte & Touche LLP, independent
certified public accountants, substantially in the forms heretofore approved by
you.
(f) (i) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been taken or, to the knowledge of the Company, shall be
contemplated by the Commission at or prior to the Closing Date; (ii) there shall
not have been any material change in the capital stock of the Company nor any
material increase in the short-term or long-term debt of the Company (other than
in the ordinary course of business) from that set forth or contemplated in the
Registration Statement or the Prospectus (or any amendment or Supplement
thereto); (iii) there shall not have been, since the respective dates as of
which information is given in the Registration Statement and the Prospectus (or
any amendment or supplement thereto), except as may otherwise be stated or
contemplated in the Registration Statement and Prospectus (or any amendment or
supplement thereto), any material adverse change in the condition (financial or
other), business, prospects, properties, net worth or results of operations of
the Company and the Subsidiaries taken as a whole; (iv) the Company and the
Subsidiaries shall not have any liabilities or obligations, direct or contingent
(whether or not in the ordinary course of business), that are material to the
Company and the Subsidiaries, taken as a whole, other than those reflected in
the Registration Statement or the Prospectus (or any amendment or supplement
thereto); and (v) all the representations and warranties of the Company
contained in this Agreement shall be true and correct [in all material respects]
on and as of the date hereof and on and as of the Closing Date as if made on and
as of the Closing Date, and you shall have received a certificate, dated the
Closing Date and signed by the chief executive officer and the chief financial
officer of the Company (or such other officers as are acceptable to you), to the
effect set forth in this Section 8(g) and in Section 8(h) hereof.
(g) The Company shall not have failed at or prior to the Closing Date
to have performed or complied with any of its agreements herein contained and
required to be performed or complied with by it hereunder at or prior to the
Closing Date.
(h) There shall not have been any announcement by any "nationally
recognized statistical rating organization", as defined for purposes of Rule
436(g) under the Act, that (i) it is downgrading its rating assigned to any debt
securities of the Company, or (ii) it is reviewing its rating assigned to any
debt securities of the Company with a view to possible downgrading, or
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with negative implications, or direction not determined.
(i) Prior to commencement of the offering of the Debentures, the
Debentures shall have been listed, subject to notice of issuance, on the New
York Stock Exchange.
(j) The Company shall have furnished or caused to be furnished to you
such further certificates and documents as you shall have reasonably requested.
All such opinions, certificates, letters and other documents will be in
compliance with the provisions hereof only if they are reasonably satisfactory
in form and substance to you and your counsel.
Any certificate or document signed by any officer of the Company and
delivered to you, as Representatives of the Underwriters, or to counsel for the
Underwriters, shall be deemed a representation and warranty by the Company to
each Underwriter as to the statements made therein.
The several obligations of the Underwriters to purchase Additional
Debentures hereunder are subject to the satisfaction on and as of any Option
Closing Date of the conditions set forth in this Section 8, except that, if any
Option Closing Date is other than the Closing Date, the certificates, opinions
and letters referred to in paragraphs (c) through (g) shall be dated the Option
Closing Date in question and the opinions called for by paragraphs (c), (d) and
(e) shall be revised to reflect the sale of Additional Debentures.
9. Expenses. The Company agrees to pay the following costs and expenses
--------
and all other costs and expenses incident to the performance by it of its
obligations hereunder: (i) the printing (or reproduction), and filing with the
Commission and delivery (including postage, air freight (or reproduction) for
counting and packaging) of such copies of the Registration Statement, each
Prepricing Prospectus, the Prospectus, each amendment or supplement to any of
them, this Agreement, the Indenture and the Statement of Eligibility and
Qualification of the Trustee as may be reasonably requested for use in
connection with the offering and sale of the Debentures; (ii) the preparation,
printing (or reproduction), execution and delivery of the Indenture and the
preparation, printing, authentication, issuance and delivery of the Debentures,
including any stamp taxes in connection with the original issuance of the
Debentures; (iii) the printing (or reproduction) and delivery of this Agreement,
the preliminary and supplemental Blue Sky Memoranda and all other agreements or
documents printed (or reproduced) and delivered in connection with the offering
of the Debentures; (iv) the registration of the Debentures under the Exchange
Act and the listing of the Debentures on the New York Stock Exchange; (v) the
registration or qualification of the Debentures for offer and sale under the
securities or Blue Sky laws of the several states as provided in Section 5(g)
hereof (including the reasonable fees, expenses and disbursements of counsel for
the
24
Underwriters relating to the preparation, printing (or reproduction), and
delivery of the preliminary and supplemental Blue Sky Memoranda and such
registration and qualification); (vi) the filing fees in connection with any
filings required to be made with the National Association of Securities Dealers,
Inc.; (vii) the fees and expenses of the Trustee; (viii) the fees and expenses
associated with obtaining ratings for the Debentures from nationally recognized
statistical rating organizations; (ix) the transportation and other expenses
incurred by or on behalf of Company representatives in connection with
presentations to prospective purchasers of the Debentures; and (x) the fees and
expenses of the Company's accountants and the fees and expenses of counsel
(including local and special counsel) for the Company.
10. Effective Date of Agreement. This Agreement shall become effective:
---------------------------
(i) upon the execution and delivery hereof by the parties hereto; or (ii) if, at
the time this Agreement is executed and delivered, it is necessary for the
registration statement or a post-effective amendment thereto to be declared
effective before the offering of the Debentures may commence, when notification
of the effectiveness of the registration statement or such post-effective
amendment has been released by the Commission. Until such time as this
Agreement shall have become effective, it may be terminated by the Company, by
notifying you, or by you, as Representatives of the several Underwriters, by
notifying the Company.
If any one or more of the Underwriters shall fail or refuse to purchase
Debentures which it or they are obligated to purchase hereunder on the Closing
Date, and the aggregate principal amount of Debentures which such defaulting
Underwriter or Underwriters are obligated but fail or refuse to purchase is not
more than one-tenth of the aggregate principal amount of Debentures which the
Underwriters are obligated to purchase on the Closing Date, each non-defaulting
Underwriter shall be obligated, severally, in the proportion which the principal
amount of Debentures set forth opposite its name in Schedule I hereto bears to
the aggregate principal amount of Debentures set forth opposite the names of all
non-defaulting Underwriters or in such other proportion as you may specify in
accordance with Section 20 of the Master Agreement Among Underwriters of Xxxxx
Xxxxxx Inc., to purchase the Debentures which such defaulting Underwriter or
Underwriters are obligated, but fail or refuse, to purchase. If any one or more
of the Underwriters shall fail or refuse to purchase Debentures which it or they
are obligated to purchase on the Closing Date and the aggregate principal amount
of Debentures with respect to which such default occurs is more than one-tenth
of the aggregate principal amount of Debentures which the Underwriters are
obligated to purchase on the Closing Date and arrangements satisfactory to you
and the Company for the purchase of such Debentures by one or more non-
defaulting Underwriters or other party or parties approved by you and the
Company are not made within 36 hours after such default, this Agreement will
terminate without liability on the part of any non-defaulting Underwriter or the
Company. In any such case which does not result in termination of this
Agreement, either you or the
25
Company shall have the right to postpone the Closing Date, but in no event for
longer than seven days, in order that the required changes, if any, in the
Registration Statement and the Prospectus or any other documents or arrangements
may be effected. Any action taken under this paragraph shall not relieve any
defaulting Underwriter from liability in respect of any such default of any such
Underwriter under this Agreement. The term "Underwriter" as used in this
Agreement includes, for all purposes of this Agreement, any party not listed in
Schedule I hereto who, with your approval and the approval of the Company,
purchases Debentures which a defaulting Underwriter is obligated, but fails or
refuses, to purchase.
Any notice under this Section 10 may be made by telegram, telecopy or
telephone but shall be subsequently confirmed by letter.
11. Termination of Agreement. This Agreement shall be subject to
------------------------
termination in your absolute discretion, without liability on the part of any
Underwriter to the Company by notice to the Company, if prior to the Closing
Date, (i) trading in the Common Stock of the Company shall be suspended or
subject to any restriction or limitation not in effect on the date of this
Agreement; (ii) trading in securities generally on the New York Stock Exchange,
the American Stock Exchange or the Nasdaq National Market shall have been
suspended or materially limited, (iii) a general moratorium on commercial
banking activities in New York or Pennsylvania shall have been declared by
either federal or state authorities, or (iv) there shall have occurred any
outbreak or escalation of hostilities or other international or domestic
calamity, crisis or change in political, financial or economic conditions, the
effect of which on the financial markets of the United States is such as to make
it, in your judgment, impracticable or inadvisable to commence or continue the
offering of the Debentures on the terms set forth on the cover page of the
Prospectus or to enforce contracts for the resale of the Debentures by the
Underwriters. Notice of such termination may be given to the Company by
telegram, telecopy or telephone and shall be subsequently confirmed by letter.
12. Information Furnished by the Underwriters. The statements set forth
-----------------------------------------
in the last paragraph on the cover page, the stabilization legend on the inside
cover page, and the statements in the [first] and [third] paragraphs under the
caption "Underwriting" in any Prepricing Prospectus and in the Prospectus,
constitute the only information furnished by or on behalf of the Underwriters
through you as such information is referred to in Sections 6(b) and 7 hereof.
13. Miscellaneous. Except as otherwise provided in Sections 5, 10 and 11
-------------
hereof, notice given pursuant to any provision of this Agreement shall be in
writing and shall be delivered (i) if to the Company, at the office of the
Company at 000 Xxxx Xxxxxx, Xxxx xx Xxxxxxx, XX 00000, Attention: [insert name
and title]; or (ii) if to you, as Representatives of the several Underwriters,
care of
26
Xxxxx Xxxxxx Inc., 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Manager, Investment Banking Division.
This Agreement has been and is made solely for the benefit of the several
Underwriters, the Company, its directors and officers, and the other controlling
persons referred to in Section 7 hereof and their respective successors and
assigns, to the extent provided herein, and no other person shall acquire or
have any right under or by virtue of this Agreement. Neither the term
"successor" nor the term "successors and assigns" as used in this Agreement
shall include a purchaser from any Underwriter of any of the Debentures in his
status as such purchaser.
14. Applicable Law; Counterparts. This Agreement shall be governed by and
----------------------------
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed within the State of New York.
This Agreement may be signed in various counterparts which together
constitute one and the same instrument. If signed in counterparts, this
Agreement shall not become effective unless at least one counterpart hereof
shall have been executed and delivered on behalf of each party hereto.
Please confirm that the foregoing correctly sets forth the agreement
between the Company and the several Underwriters.
Very truly yours,
XXXXXX XXXXX CORP.
By ........................
Chairman of the Board
Confirmed as of the date first
above mentioned on behalf of
themselves and the other several
Underwriters named in Schedule I
hereto.
XXXXX XXXXXX INC.
CIBC WOOD GUNDY SECURITIES CORP.
PAINEWEBBER INCORPORATED
As Representatives of the Several Underwriters
By XXXXX XXXXXX INC.
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By ..........................
Managing Director
28
SCHEDULE I
NAME OF COMPANY
Principal Amount Principal Amount
Underwriter of Debentures Underwriter of Debentures
----------- ------------- ----------- -------------
Xxxxx Xxxxxx Inc. ....
CIBC Wood Gundy Securities Corp.
PaineWebber Incorporated
Total.....
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