EXHIBIT 1
$100,000,000
XXXXXX XXXXX CORP.
% Senior Subordinated Notes due 2007
DEBT UNDERWRITING AGREEMENT
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June , 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 Pennsylvania corporation (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 Notes due 2007 (the
"Notes") to the several Underwriters named in Schedule I hereto (the
"Underwriters"). The Notes will be issued pursuant to the provisions of an
Indenture to be dated as of July __, 1997 (the "Indenture") between the Company
and The Bank of New York, as Trustee (the "Trustee"). The Notes are secured by
a pledge, on a third priority basis, of 65% of the capital stock of Xxxxxx Xxxxx
Command Company, a Nova Scotia unlimited liability company and Canadian
subsidiary of the Company (the "Canadian Subsidiary") pursuant to an amended and
restated pledge agreement dated July __, 1997 (the "Pledge Agreement") among PLC
Command I, L.P., a Pennsylvania limited partnership ("PLC I"), PLC Command II,
L.P., a Pennsylvania limited partnership ("PLC II", and together with PLC I, the
"Pledgors"), the Canadian Imperial Bank of Commerce, New York Agency as
collateral agent (the "Collateral Agent"), the Canadian Imperial Bank of
Commerce, New York Agency, as administrative agent (the "Administrative Agent"),
the United States Trust Company of New York, as trustee under the 1996 Notes (as
defined in the Registration Statement) (the "1996 Trustee") and 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 Notes 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 Notes. 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 Notes 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 to
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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 Notes set forth opposite the name of
such Underwriter in Schedule I hereto (or such principal amount of Notes
increased as set forth in Section 10 hereof).
3. Terms of Public Offering. The Company has been advised by you that the
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Underwriters propose to make a public offering of their respective portions of
the Notes as soon after the Registration Statement and this Agreement have
become effective as in your judgment is advisable and initially to offer the
Notes upon the terms set forth in the Prospectus.
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4. Delivery of the Notes and Payment Therefor. Delivery to the
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Underwriters of and payment for the Notes 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 Notes and the Closing Date may be varied by agreement between you and the
Company.
The Notes 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 Notes to be delivered to the Underwriters 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.
5. Agreements of the Company. The Company agrees with the several
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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 Notes 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 Notes 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
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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.
(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 Notes 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 for a period of nine months after the date of this
Agreement; provided, however, that if a request for copies of the Prospectus is
made by any Underwriter or dealer after such nine-month period, the costs
associated with the preparing and filing of any post-effective amendment to the
Registration Statement or any amendment or supplement to the Prospectus and
delivery of the Prospectus (and of any amendment or supplement thereto) shall be
borne by such Underwriter or dealer. The Company consents to the use of the
Prospectus (and of any amendment or supplement thereto) in
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accordance with the provisions of the Act and with the securities or Blue Sky
laws of the jurisdictions in which the Notes are offered by the several
Underwriters and by all dealers to whom Notes may be sold, both in connection
with the offering and sale of the Notes 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 and this paragraph (f), 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. Each Underwriter agrees that
after receipt of any supplement or amendment to the Prospectus, it will not
deliver the Prospectus other than as so supplemented or amended. 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
reasonably requested by you, will promptly issue a press release announcing or
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 Notes
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 Notes, 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 11(a) of the Act.
(i) So long as any of the Notes 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.
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(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 Notes
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 Notes listed,
subject to notice of issuance, on the New York 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
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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 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 (i) the enforceability 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 and the Indenture been (or will have been) duly qualified under the 1939
Act and conforms to the description thereof in the Registration Statement and
the Prospectus.
(d) The Notes 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 (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 and the Notes will conform to the description thereof in the Registration
Statement and the Prospectus.
(e) The Pledge Agreement has been duly and validly authorized and,
upon execution and delivery by the Pledgors, execution of acknowledgement and
consent (the "Acknowledgement and Consent") by the Canadian Subsidiary, and
assuming due execution and delivery by the Collateral Agent, the Administrative
Agent, the 1996 Trustee and the Trustee, will be a valid and binding agreement
of the Pledgors enforceable in accordance with its terms, except (i) the
enforceability thereof may be limited by bankruptcy, insolvency, reorganization,
fruadulent 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
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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 and the Pledge Agreement conforms to the description
thereof in the Registration Statement and the Prospectus.
(f) The Acknowledgement and Consent has been duly and validly
authorized and, upon execution and delivery by the Canadain Subsidiary, will be
a valid and binding agreement of the Canadian Subsidiary enforceable in
accordance with its terms, except (i) the enforceability thereof may be limited
by bankruptcy, insolvency, reorganization, fruadulent 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.
(g) The authorized and outstanding capital stock of the Company is as
set forth under the caption "Capitalization" in the Prospectus.
(h) The Company is a corporation duly organized 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. Within fourteen
days of the Closing Date, the Company will be duly registered and qualified to
conduct its business and in good standing in each jurisdiction 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 (1)
have a material adverse effect on the condition (financial or other), business,
properties, shareholders' equity or results of operations of the Company and the
Subsidiaries (as hereinafter defined), taken as a whole, (2) materially
adversely affect the issuance, validity or enforceability of the Shares or (3)
materially adversely affect the consummation of any of the transactions
contemplated by this Agreement (each of (1), (2) and (3) above, a "Material
Adverse Effect").
(i) 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, power and authority to own, lease
and operate its properties and to conduct its business as described
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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 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 99% or greater 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, other than
the pledge of such shares pursuant to the Pledge and Intercreditor Agreement, as
amended, and the Credit Facility (as defined in the Registration Statement).
(j) 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.
(k) 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 (except where any such default or
defaults in the aggregate would not have a Material Adverse Effect).
(l) Other than as will be obtained, waived or otherwise corrected
prior to the Closing Date, neither the issuance and sale of the Notes, 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 Notes under the Act and the
Exchange Act (which has been effected), qualification of the Indenture under the
1939 Act, and such as may be required under state securities or foreign laws) or
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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 Notes under the Act and the Exchange Act (which has been
effected) and such as may be required under state securities or foreign 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, the 1996
Notes (as defined in the Registration Statement) and the Notes.
(m) 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.
(n) 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 information
are reasonable; and the other historical and pro forma
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financial and statistical information and data set forth in the Registration
Statement and the Prospectus (and any amendment or supplement thereto) are
accurately presented in all material respects and prepared on a basis consistent
with the books and records of the Company and the Subsidiaries.
(o) 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.
(p) Except as disclosed or contemplated 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 result in a Material Adverse Effect.
(q) 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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(r) 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 Notes,
will not distribute any offering material in connection with the offering and
sale of the Notes other than the Registration Statement, the Prepricing
Prospectus, the Prospectus or other materials, if any, permitted by the Act.
(s) 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.
(t) 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.
(u) 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.
(v) The Company and, to the Company's knowledge, each of the
Subsidiaries have filed all tax returns required to be filed or obtained
extensions therefor, 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.
(w) 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
12
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.
(x) 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.
(y) The Company is not and, upon sale of the Notes 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 (the "1940 Act").
(z) The Company and, to the Company's knowledge, each of its
Subsidiaries are insured by insurers of recognized financial responsibility
against such losses and risks and in such amounts as the Company deems prudent
and customary to cover replacement costs of real and personal property; subject
to certain limitations and deductibles, such policies also cover extraordinary
expenses associated with business interruption and damage or loss from fire,
flood or earthquakes (in certain geographic areas), and losses at the Company's
facilities up to approximately $225 million; neither the Company nor, to the
knowledge of the Company, any such Subsidiary has been refused any insurance
coverage sought or applied for; and neither the Company nor, to the knowledge of
the Company, 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 by the Prospectuses.
(aa) 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.
13
(bb) 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.
(cc) 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 are reasonably likely to 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 are reasonably likely to have
a Material Adverse Effect.
(dd) 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 reasonably likely to 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.
(ee) The Company and, to the Company's knowledge, the Subsidiaries are
(i) (A) in 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 them under applicable Environmental Laws to
conduct their respective businesses, and (C) and are in compliance with all
terms and conditions of any such permit, license or approval, except, in each
case, 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 Adverse Effect; (ii) except as disclosed in
the Registration Statement or the Prospectuses, there is no civil, criminal or
administrative action, suit, demand, hearing, notice of violation or deficiency,
investigation, proceeding or notice of potential responsibility or liability or
demand letter or request for information pending, or to the knowledge of the
Company, threatened against the Company or any of its Subsidiaries under any
Environmental Laws which, if determined adversely to the Company or any such
Subsidiary, would, individually or in the aggregate, be reasonably likely to
result in a Material Adverse Effect. Neither the Company nor, to the
14
Company's knowledge, 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 any 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 Notes 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 that the Company has delivered the Prospectus to the
several Underwriters in requisite quantity on a timely basis to permit such
delivery or sending. The foregoing indemnity agreement shall be in addition to
any liability which the Company may otherwise have.
(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
15
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 in the event that one or
more persons seeking indemnity exercises its right to employ separate counsel
pursuant to the preceding sentence, 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 one local
counsel in each such jurisdiction) at any time for all such Underwriters and
controlling persons, 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 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,
insofar as such losses, claims, damages, liabilities and expenses arise out of
or are based upon the untrue statement or alleged untrue statement of a material
fact contained in any Prepricing Prospectus or in the Registration Statement,
the Prospectus or any amendment or supplement thereto, or arise out of or are
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, in each case to the extent that such untrue statement or alleged
untrue statement or omission or alleged omission was made in reliance upon and
in conformity with written information furnished to the Company by such
Underwriter through you specifically for use therein. 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
16
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.
The foregoing indemnity agreement shall be in addition to any liability which
any Underwriter may otherwise have.
(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 Notes, 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. 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
17
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 Notes 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 Notes
set forth opposite their names in Schedule I hereto (or such principal amounts
of Notes 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, its directors or officers or any person
controlling the Company, (ii) acceptance of any Notes and payment therefor
hereunder, and (iii) any termination of this Agreement. Notwithstanding any
other provisions of this Agreement, if this Agreement terminates prior to the
purchase of the Notes by the Underwriters, the Company shall not be liable for
any lost profits. 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 Notes 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
18
post-effective amendment thereto to be declared effective before the offering of
the Notes 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 and the
Subsidiaries taken as a whole not contemplated by the Prospectus, which in your
reasonable opinion, as Representatives of the several Underwriters, would
materially adversely affect the market for the Notes, 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 Notes.
(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:
(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 in the process of qualifying in the jurisdictions set forth
on Annex A to such opinion;
(ii) Each of the Subsidiaries organized under the laws of
the United States or any State thereof (the "U.S. 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;
19
(iii) The authorized and, to such counsel's knowledge, 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 Notes to the
Underwriters as provided herein, and this Agreement has been duly authorized,
executed and delivered by the Company;
(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 (i) the enforceability 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 and the Indenture has
been duly qualified under the 1939 Act;
(vi) The Pledge Agreement has been duly and validly authorized and,
upon execution and delivery by the Pledgors, execution of acknowledgement and
consent (the "Acknowledgement and Consent") by the Canadian Subsidiary, and
assuming due execution and delivery by the Collateral Agent, the Administrative
Agent, the 1996 Trustee and the Trustee, will be a valid and binding agreement
of the Pledgors enforceable in accordance with its terms, except (i) the
enforceability thereof may be limited by bankruptcy, insolvency, reorganization,
fruadulent 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.
(vii) The Notes have been duly and validly authorized and executed by
the Company and, assuming due authentication of the Notes 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;
20
(viii) 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, to such counsel's knowledge, any
required filing of the Prospectus pursuant to Rule 424(b) has been made in
accordance with Rule 424(b);
(ix) Neither the Company nor, to the knowledge of such counsel, any
of the U.S. 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 that is filed as an exhibit to the Registration
Statement, 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;
(x) None of the offer, issuance, sale or delivery of the Notes,
the execution, delivery or performance by the Company of this Agreement and the
Indenture, compliance by the Company with the provisions hereof and thereof, or
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 U.S. Subsidiaries or any
material agreement, indenture, lease or other instrument to which the Company is
a party or by which it or any of its properties is bound that is filed as an
exhibit to the Registration Statement or, except as disclosed in the
Registration Statement, will, to such counsel's knowledge, result in the
creation or imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any of the U.S. Subsidiaries under any such agreement,
indenture, lease or other instrument, or, to such counsel's knowledge, nor will
any such action result in any violation of any existing law or regulation
(assuming compliance with all applicable state securities or Blue Sky laws and
foreign 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 U.S. Subsidiaries or any of their respective properties;
(xi) No 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 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 and
foreign laws) for the valid issuance and sale of the Notes to the Underwriters
as contemplated by this Agreement;
21
(xii) 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;
(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 U.S.
Subsidiaries, or to which the Company or any of the U.S. 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 U.S. 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;
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,
completeness or fairness of the statements in the Registration Statement (except
to the extent set forth in paragraph (iii)), 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, 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, 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 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.
22
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 Blake,
Xxxxxxx & Xxxxxxx and/or Xxxxxxx XxXxxxxx Stirling Seals (as appropriate),
Canadian counsel for the Canadian Subsidiary, dated the Closing Date and
addressed to you, as Representatives of the several Underwriters, to the effect
that:
(i) The Canadian Subsidiary is a corporation duly organized
and validly existing under the laws of the jurisdiction of its organization with
fully corporate power and authority to own, lease, and operate its properties
and to conduct its business as described in the Registration Statement and the
Prospectuses (and any amendment or supplement thereto); and all the outstanding
shares of capital stock of the Subsidiary have been duly authorized and validly
issued, are fully paid and nonassessable, and are 99% indirectly owned by the
Company registered in the name of _______.
(ii) The Canadian Subsidiary is not (A) in violation of its
respective certificate of incorporation or bylaws or other organizational
documents.
(iii) Neither the offer, issuance, sale or delivery of the
Underwritten Shares, nor the execution, delivery or performance by the Company
of this Agreement or the U.S. Underwriting Agreement or compliance by the
Company with all provisions of this Agreement and the U.S. Underwriting
Agreement, nor consummation by the Company of the transactions contemplated
hereby or by the U.S. Underwriting Agreement 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 document, of the Canadian
Subsidiary or to such counsel's knowledge 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 Canadian Subsidiary
under any material agreement, indenture, lease or other instrument, nor, to such
counsel's knowledge, will any such action result in any violation of any
existing law, regulation, ruling (assuming compliance with all applicable state
securities or Blue Sky laws and foreign 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 Canadian Subsidiary
or any of its respective properties.
(iv) The Acknowledgement and Consent has been duly and validly
authorized by the Canadian Subsidiary and, upon execution and delivery by the
Canadian Subsidiary, will be a valid and binding agreement of the Canadian
Subsidiary enforceable in accordance with its terms, except (i) the
enforceability 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
23
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 thereunder may be limited by federal or state securities laws
or the public policy underlying such laws.
(e) 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 Representatives of the several Underwriters, with
respect to the matters referred to in clause (v), (viii), (x) and the paragraph
immediately following clause (xiv) of the foregoing paragraph (c) and such other
related matters as you may request.
(f) 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, independent certified public accountants,
substantially in the forms heretofore approved by you.
(g) (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.
(h) The Company shall not have failed at or prior to the Closing Date
to have performed or complied in all material respects
24
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.
(i) 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 with
negative implications, or direction not determined.
(j) Prior to commencement of the offering of the Notes, the Notes
shall have been listed, subject to notice of issuance, on the New York Stock
Exchange.
(k) 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.
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 Notes; (ii) the preparation,
printing (or reproduction), execution and delivery of the Indenture and the
preparation, printing, authentication, issuance and delivery of the Notes,
including any stamp taxes in connection with the original issuance of the Notes;
(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 Notes; (iv) the registration of the Notes under the Exchange Act and the
listing of the Notes on the New York Stock Exchange; (v) the registration or
qualification of the Notes 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 Underwriters
relating to the preparation,
25
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
Notes 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 Notes; 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 Notes 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
Notes which it or they are obligated to purchase hereunder on the Closing Date,
and the aggregate principal amount of Notes 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 Notes 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 Notes
set forth opposite its name in Schedule I hereto bears to the aggregate
principal amount of Notes 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 Notes 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 Notes which it or they are
obligated to purchase on the Closing Date and the aggregate principal amount of
Notes with respect to which such default occurs is more than one-tenth of the
aggregate principal amount of Notes which the Underwriters are obligated to
purchase on the Closing Date and arrangements satisfactory to you and the
Company for the purchase of such Notes 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 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
26
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 which, with your approval and the approval of the Company,
purchases Notes 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 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 Notes
on the terms set forth on the cover page of the Prospectus or to enforce
contracts for the resale of the Notes 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 through fourth 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: President; or
(ii) if to you, as Representatives of the several Underwriters, care of Xxxxx
Xxxxxx Inc., 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Manager,
Investment Banking Division.
27
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 Notes 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.
28
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 ........................
Name:
Title:
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.
By ..........................
Managing Director
29
SCHEDULE I
NAME OF COMPANY
Principal Amount Principal Amount
Underwriter of Notes Underwriter of Notes
----------- -------- ----------- --------
Xxxxx Xxxxxx Inc. ....
CIBC Wood Gundy Securities Corp.
PaineWebber Incorporated
Total.....
30
