DRAFT: 11/30/98
[2,250,000] COMMON UNITS
REPRESENTING LIMITED PARTNER INTERESTS
CROWN PACIFIC PARTNERS, L.P.
UNDERWRITING AGREEMENT
PaineWebber Incorporated December __, 1998
Xxxxxxx Xxxxx Xxxxxx Inc.
c/o PaineWebber Incorporated
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Crown Pacific Partners, L.P., a Delaware limited partnership (the
"Partnership"), proposes to sell common units representing limited partner
interests in the Partnership (the "Common Units") in an aggregate amount of
[2,250,000] Common Units (the "Firm Units") to you (the "Underwriters"). The
Partnership has also agreed to grant to the Underwriters an option (the
"Option") to purchase up to an additional ______ Common Units (the "Option
Units") on the terms and for the purposes set forth in Section 1(b). The Firm
Units and the Option Units are hereinafter referred to as the "Units."
The initial public offering price per Common Unit for the Units and the
purchase price per Common Unit for the Units to be paid by the Underwriters
shall be agreed upon by the Partnership and the Underwriters, and such agreement
shall be set forth in a separate written instrument substantially in the form of
Exhibit A hereto (the "Price Determination Agreement"). The Price Determination
Agreement may take the form of an exchange of any standard form of written
telecommunication among the Partnership and the Underwriters and shall specify
such applicable information as is indicated in Exhibit A hereto. The offering
of the Units will be governed by this Agreement, as supplemented by the Price
Determination Agreement. From and after the date of the execution and delivery
of the Price Determination Agreement, this Agreement shall be deemed to
incorporate, and, unless the context otherwise indicates, all references
contained herein to "this Agreement" and to the phrase "herein" shall be deemed
to include, the Price Determination Agreement.
Crown Pacific Management Limited Partnership, a Delaware limited
partnership (the "Managing General Partner"), is the managing general partner of
the Partnership and the sole general partner of Crown Pacific Limited
Partnership (the "Operating Partnership"), and Crown Pacific, Ltd., an Oregon
corporation (the "Special General Partner" and, with the Managing General
Partner, the "General Partners"), is the special general partner of the
Partnership. The Partnership, the Operating Partnership and the General
Partners are collectively referred to herein as the "Crown Entities." The Crown
Entities confirm as follows their agreements with the Underwriters:
1. AGREEMENT TO SELL AND PURCHASE.
(a) On the basis of the representations, warranties and agreements of
the Crown Entities herein contained and subject to all the terms and conditions
of this Agreement, the Partnership agrees to sell to the Underwriters, and the
Underwriters agrees to purchase from the Partnership, at the purchase price per
Common Unit to be agreed upon by the Underwriters and the Partnership in
accordance with Section 1(c) hereof and set forth in the Price Determination
Agreement, the Firm Units.
(b) Subject to all the terms and conditions of this Agreement, the
Partnership grants the Option to the Underwriters to purchase up to _______
Option Units from the Partnership at the same price per Common Unit as the
Underwriters shall pay for the Firm Units. The Option may be exercised only to
cover over-allotments in the sale of the Firm Units by the Underwriters and may
be exercised in whole or in part at any time (but not more than once) on or
before the 30th day after the date hereof, upon written or telegraphic notice
(the "Option Units Notice") by the Underwriters to the Partnership no later than
12:00 noon, New York City time, at least two and no more than five business days
before the date specified for closing in the Option Units Notice (the "Option
Closing Date") setting forth the aggregate number of Option Units to be
purchased and the time and date for such purchase. On the Option Closing Date,
the Partnership will issue and sell to the Underwriters, and the Underwriters
will purchase, the number of Option Units set forth in the Option Units Notice.
(c) The initial public offering price per Common Unit for the Firm
Units and the purchase price per Common Unit for the Firm Units to be paid by
the Underwriters shall be agreed upon and set forth in the Price Determination
Agreement, which shall be dated the date hereof.
2. DELIVERY AND PAYMENT. Delivery of the Units shall be made by causing
The Depository Trust Company to credit the Units to the account of the
Partnership, against payment of the purchase price by wire transfer of Federal
Funds or similar same day funds to an account designated in writing by the
Partnership to the Underwriters at least one business day prior to the Closing
Date (as hereinafter defined). Such payment shall be made at 10:00 a.m., New
York City time, on the third business day (or fourth business day, if the Price
Determination Agreement is executed after 4:30 p.m.) after the date on which the
first bona fide offering of the Units to the public is made by the Underwriters
or at such time on such other date, not later than ten business days after
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such date, as may be agreed upon by the Partnership and the Underwriters (such
date is hereinafter referred to as the "Closing Date").
To the extent the Option is exercised, delivery of the Option Units against
payment by the Underwriters (in the manner specified above) will take place at
the offices specified above for the Closing Date at the time and date (which may
be the Closing Date) specified in the Option Units Notice.
The cost of original issue tax stamps, if any, in connection with the
issuance and delivery of the Units by the Partnership to the Underwriters shall
be borne by the Partnership. The Partnership will pay and save the Underwriters
and any subsequent holder of the Units harmless from any and all liabilities
with respect to or resulting from any failure or delay in paying Federal and
state stamp and other transfer taxes, if any, which may be payable or determined
to be payable in connection with the original issuance or sale to the
Underwriters of the Firm Units and Option Units.
3. REPRESENTATIONS AND WARRANTIES OF THE CROWN ENTITIES. Each of the
Crown Entities, jointly and severally, represents, warrants and covenants to the
Underwriters that:
(a) The Partnership meets the requirements for use of Form S-3 and a
registration statement (Registration No. 333-27269) on Form S-3 relating to the
Units (and such amendments to such registration statement as may have been
required to the date of this Agreement) has been prepared by the Partnership in
accordance with the requirements of the Securities Act of 1933, as amended (the
"Act"), and the rules and regulations (collectively referred to as the "Rules
and Regulations") of the Securities and Exchange Commission (the "Commission")
thereunder, and has been filed with the Commission. Such registration statement
has been declared effective by the Commission. Copies of such registration
statement and amendments have been delivered to the Underwriters. The term
"Registration Statement" means the registration statement, including all
financial statements and exhibits and all documents incorporated or deemed
incorporated therein by reference, as from time to time amended or supplemented
pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), Rule 430A and Rule 434 of the Rules and Regulations, or otherwise, and
any registration statement filed under Rule 462 of the Rules and Regulations as
such registration statement may be amended from time to time. The term
"Prospectus" means the prospectus constituting a part of the Registration
Statement and any amendments or supplements to such prospectus, including
without limitation the prospectus supplement filed with the Commission in
connection with the proposed sale of Units contemplated by this Agreement (the
"Prospectus Supplement"), through the date of such Prospectus Supplement;
provided, however, that if any revised prospectus or prospectus supplement,
including the Prospectus Supplement, shall be provided to the Underwriters by
the Partnership for use in connection with the offering of the Units that
differs from the Prospectus (whether or not such revised prospectus or
prospectus supplement is required to be filed by the Partnership with the
Commission pursuant to Rule 424(b) of the Rules and Regulations), the term
"Prospectus" shall refer to such revised prospectus or prospectus supplement, as
the case may be, from and after the time it is first provided to the
Underwriters for such use. Any reference herein to the Registration Statement
or the Prospectus shall be deemed to
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refer to and include the documents incorporated by reference therein pursuant to
Item 12 of Form S-3 which were filed under the Exchange Act, on or before the
date hereof or are so filed hereafter. Any reference herein to the terms
"amend," "amendment" or "supplement" with respect to the Registration Statement
or the Prospectus shall be deemed to refer to and include any such document
filed or to be filed under the Exchange Act after the date of the Prospectus,
and deemed to be incorporated therein by reference.
(b) On the date hereof, at all times subsequent to and including the
Closing Date and, if later, the Option Closing Date and when any post-effective
amendment to the Registration Statement becomes effective or any amendment or
supplement to the Prospectus is filed with the Commission, the Registration
Statement and the Prospectus (as amended or as supplemented if the Partnership
shall have filed with the Commission any amendment or supplement thereto),
including the financial statements included or incorporated by reference in the
Prospectus or the Registration Statement, did or will comply, in all material
respects, with all applicable provisions of the Act, the Exchange Act, the rules
and regulations thereunder (the "Exchange Act Rules and Regulations") and the
Rules and Regulations and will contain, in all material respects, all statements
required to be stated therein in accordance with the Act, the Exchange Act, the
Exchange Act Rules and Regulations and the Rules and Regulations. On the date
the Registration Statement was declared effective by the Commission (the
"Effective Date") and when any post-effective amendment to the Registration
Statement becomes effective, no part of the Registration Statement or any such
amendment did or will contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary in order to
make the statements therein not misleading. At the Effective Date, the date the
Prospectus or any amendment or supplement to the Prospectus is filed with the
Commission and at the Closing Date and, if later, the Option Closing Date, the
Prospectus did not or will not contain any untrue statement of a material fact
or omit to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading. In
addition, each of the statements made in such documents within the coverage of
Rule 175(b) of the Rules and Regulations, including (but not limited to) any
statements with respect to future available cash or future cash distributions or
the anticipated ratio of taxable income to distributions, was made or will be
made by the Partnership or the General Partners, as the case may be, with a
reasonable basis and in good faith. The foregoing representations and
warranties in this Section 3(b) do not apply to any statements or omissions made
in reliance on and in conformity with information relating to the Underwriters
furnished in writing to the Partnership by the Underwriters specifically for
inclusion in the Registration Statement or Prospectus or any amendment or
supplement thereto. For all purposes of this Agreement the only information
relating to the Underwriters furnished in writing to the Partnership by the
Underwriters specifically for inclusion in the Registration Statement or the
Prospectus is (i) the number of Common Units to be purchased by the Underwriters
set forth in the section captioned "Underwriting" in the Prospectus Supplement
and (ii) the third, fourth and last paragraphs of the section captioned
"Underwriting" in the Prospectus Supplement. The Partnership has not
distributed any offering material in connection with the offering or sale of the
Units other than the Registration Statement and the Prospectus. There is no
contract or document required to be described in the Registration Statement or
the Prospectus or to be filed as an exhibit to the Registration Statement
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or to a document incorporated by reference into the Registration Statement which
is not described or filed as required.
(c) The documents which are incorporated by reference in the
Registration Statement and the Prospectus or from which information is so
incorporated by reference, when they become effective or were filed with the
Commission, as the case may be, complied in all material respects with the
requirements of the Act or the Exchange Act, as applicable, the Exchange Act
Rules and Regulations and the Rules and Regulations; and any documents so filed
and incorporated by reference subsequent to the Closing Date shall, when they
are filed with the Commission, conform in all material respects with the
requirements of the Act and the Exchange Act, as applicable, the Exchange Act
Rules and Regulations and the Rules and Regulations.
(d) PricewaterhouseCoopers LLP, whose reports are incorporated by
reference in the Prospectus, are independent certified public accountants with
respect to each of the Crown Entities as required by the Act and the Rules and
Regulations. The financial statements (including the related notes and
supporting schedules) included or incorporated by reference in the Registration
Statement and the Prospectus present fairly the financial condition, results of
operations and cash flows of the entities purported to be shown thereby at the
dates and for the periods indicated and have been prepared in accordance with
generally accepted accounting principles applied on a consistent basis
throughout the periods indicated. The selected historical financial data of the
Crown Entities for the four years ended December 31, 1997 included in the
Partnership's Annual Report on Form 10-K for the year ended December 31, 1997
(the "Form 10-K") under the caption "Selected Financial Data" and incorporated
by reference in the Registration Statement and the Prospectus are fairly stated
in relation to the historical financial statements of the Crown Entities from
which they have been derived.
(e) None of the Crown Entities has sustained since the date of the
latest audited financial statements incorporated by reference in the Prospectus
any material loss or interference with its business from fire, explosion, flood,
accident or other calamity, whether or not covered by insurance, or from any
labor dispute, or has become a party to or the subject of any material
litigation, court or governmental action, investigation, order or decree, in any
case otherwise than as set forth or contemplated in the Prospectus; and, since
the respective dates as of which information is given in the Prospectus, there
has not been any change in the partners' capital, capital stock or long-term
debt of the Crown Entities, any material adverse change in the short-term debt
of the Crown Entities, or any material adverse change, or any development
involving a prospective material adverse change, in or affecting the general
affairs, operations, business, prospects, management, capitalization, financial
condition, results of operations or net worth of the Crown Entities, otherwise
than as set forth or contemplated in the Prospectus.
(f) The Partnership has been duly formed and is validly existing in
good standing as a limited partnership under the Delaware Revised Uniform
Limited Partnership Act (the "Delaware Act"), with all necessary partnership
power and authority to own or lease its properties and conduct its business, in
each case in all material respects as described in the Prospectus, and is
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duly qualified or registered as a foreign limited partnership for the
transaction of business under the laws of each jurisdiction in which the
character of the business conducted by it or the location of the properties
owned or leased by it make such qualification or registration necessary (except
where the failure to so qualify or register could not reasonably be expected to
have a material adverse effect on the condition (financial or otherwise),
results of operations or business of the Crown Entities, taken as a whole, or to
subject the Partnership or the limited partners of the Partnership to any
material liability or disability).
(g) The Operating Partnership has been duly formed and is validly
existing in good standing as a limited partnership under the Delaware Act, with
all necessary partnership power and authority to own or lease its properties and
conduct its business, in each case in all material respects as described in the
Prospectus, and is duly qualified or registered as a foreign limited partnership
for the transaction of business under the laws of each jurisdiction in which the
character of the business conducted by it or the location of the properties
owned or leased by it make such qualification or registration necessary (except
where the failure to so qualify or register could not reasonably be expected to
have a material adverse effect on the condition (financial or otherwise),
results of operations or business of such Crown Entities, taken as a whole, or
to subject the Operating Partnership or the Partnership to any material
liability or disability). Other than the Operating Partnership itself, neither
the Partnership nor the Operating Partnership has any "Significant Subsidiaries"
as such term is defined under Rule 1-02 of Regulation S-X.
(h) Each of the Special General Partner, HS Corp. of Oregon ("HS
Corp."), CP Acquisition Co. ("CP Acquisition") and CP Air, Inc. ("CP Air") has
been duly incorporated and is validly existing in good standing as a corporation
under the laws of the State of Oregon; Fremont Timber, Inc. ("Fremont Timber")
has been duly incorporated and is validly existing in good standing as a
corporation under the laws of the State of Delaware; the Managing General
Partner has been duly formed and is validly existing in good standing as a
limited partnership under the Delaware Act; each of the Managing General
Partner and the Special General Partner has all necessary partnership or
corporate power and authority to own or lease its properties and conduct its
business and to execute and deliver this Agreement and perform its obligations
hereunder and is duly qualified or registered as a foreign limited partnership
or foreign corporation for the transaction of business (and, with respect to the
Special General Partner, is in good standing) under the laws of each
jurisdiction in which the character of the business conducted by it or the
location of the properties owned or leased by it make such qualification
necessary (except where the failure to so qualify or register could not
reasonably be expected to have a material adverse effect on the condition
(financial or otherwise), results of operations or business of the Crown
Entities, taken as a whole, or to subject the Partnership or the limited
partners of the Partnership to any material liability or disability).
(i) HS Corp. and Fremont Timber are the sole general partners of the
Managing General Partner with 0.3% and 0.7% general partner interests,
respectively; such general partner interests are duly authorized by the Second
Amended and Restated Agreement of Limited Partnership of the Managing General
Partner and were validly issued to each of HS Corp. and Fremont Timber; and,
except as provided in the Purchase Rights Agreement dated as of
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December 22, 1994, as amended (the "Purchase Rights Agreement"), among the
Managing General Partner, the Special General Partner, Fremont Investors, Inc.,
formerly Fremont Group, Inc. ("Fremont"), Bechtel Crown Partners, Fremont
Timber, HS Corp., Xxxxx X. Xxxxx ("Xxxxx") and Xxxxx X. Xxxxx ("Xxxxx"), HS
Corp. and Fremont Timber own such general partner interests in the Managing
General Partner free and clear of all liens, encumbrances, security interests,
equities, charges or claims (except for such liens, encumbrances, security
interests, equities, charges or claims as are not, individually or in the
aggregate, material or as described in the Prospectus).
(j) Fremont Timber, Xxxxx and Xxxxx are the sole limited partners of
the Managing General Partner, with 73.9%, 23.2% and 1.9% limited partner
interests, respectively; such limited partner interests are duly authorized by
the Second Amended and Restated Agreement of Limited Partnership of the Managing
General Partner, were validly issued in accordance therewith and are fully paid;
and, except as provided in the Purchase Rights Agreement, Xxxxx, Xxxxx and
Fremont Timber own their respective limited partner interests in the Managing
General Partner free and clear of all liens, encumbrances, security interests,
equities, charges or claims (except for such liens, encumbrances, security
interests, equities, charges or claims as are not, individually or in the
aggregate, material or as described in the Prospectus).
(k) Except as provided in the Purchase Rights Agreement, all of the
outstanding capital stock of HS Corp. is owned by Xxxxx and Xxxxx free and clear
of all liens, encumbrances, security interests, equities, charges or claims
(except for such liens, encumbrances, security interests, equities, charges or
claims as are not, individually or in the aggregate, material or as described in
the Prospectus). All of the outstanding capital stock of the Special General
Partner is duly authorized and validly issued and is fully paid and
nonassessable and, except as provided in the Purchase Rights Agreement, is owned
by Fremont, Xxxxx and Xxxxx, free and clear of all liens, encumbrances, security
interests, equities, charges or claims (except for such liens, encumbrances,
security interests, equities, charges or claims as are not, individually or in
the aggregate, material or as described in the Prospectus).
(l) All of the outstanding capital stock of CP Acquisition is duly
authorized, validly issued, fully paid and nonassessable and is owned by CP Air
free and clear of all liens, encumbrances, security interests, equities, charges
or claims (except for such liens, encumbrances, security interests, equities,
charges or claims as are not, individually or in the aggregate, material or as
described in the Prospectus). All of the outstanding capital stock of CP Air is
duly authorized, validly issued, fully paid and nonassessable and is owned by
the Partnership free and clear of all liens, encumbrances, security interests,
equities, charges or claims (except for such liens, encumbrances, security
interests, equities, charges or claims as are not, individually or in the
aggregate, material or as described in the Prospectus).
(m) The Managing General Partner and the Special General Partner are
the sole general partners of the Partnership with 0.99% and 0.01%, respectively,
general partner interests in the Partnership; such general partner interests are
duly authorized by the Partnership Agreement, and were validly issued to each
General Partner, and, except as provided in the Purchase Rights
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Agreement, the General Partners own such general partner interests free and
clear of all liens, encumbrances, security interests, equities, charges or
claims (except for such liens, encumbrances, security interests, equities,
charges or claims as are not, individually or in the aggregate, material or as
described in the Prospectus).
(n) The Managing General Partner is the sole general partner of the
Operating Partnership with a 1.0101% general partner interest in the Operating
Partnership; such general partner interest is duly authorized by the Agreement
of Limited Partnership of the Operating Partnership (the "Operating Partnership
Agreement" and, together with the Partnership Agreement, the "Partnership
Agreements") and was validly issued to the Managing General Partner; and the
Managing General Partner owns such general partner interest free and clear of
all liens, encumbrances, security interests, equities, charges or claims (except
for such liens, encumbrances, security interests, equities, charges or claims as
are not, individually or in the aggregate, material or as described in the
Prospectus).
(o) At the Closing Date (as defined in Section 2) after giving effect
to the issuance of the Firm Units, the capitalization of the Partnership will
consist of _____________ Common Units and 5,773,088 units representing
subordinated limited partner interests in the Partnership ("Subordinated
Units"), representing a 99% limited partner interest in the Partnership, a 0.99%
general partner interest held by the Managing General Partner and a 0.01%
general partner interest held by the Special General Partner. All of the
outstanding Subordinated Units and Common Units of the Partnership have been
duly authorized by the Partnership Agreement, are validly issued and are fully
paid and nonassessable (except as nonassessability may be affected by matters
described in the Prospectus under the caption "The Partnership Agreement --
Limited Liability"); the Units to be issued and sold by the Partnership
hereunder and the limited partner interests represented thereby have been duly
authorized by the Partnership Agreement and, when issued and delivered to the
Underwriters against payment therefor in accordance with the terms hereof, will
have been validly issued and will be fully paid and nonassessable (except as
such nonassessability may be affected by matters described in the Prospectus
under the caption "The Partnership Agreement -- Limited Liability").
(p) The Partnership and CP Acquisition are the sole limited partners
of the Operating Partnership, with limited partner interests of 98.1219% and
0.868%, respectively; such limited partner interests have been duly authorized
by the Operating Partnership Agreement, have been validly issued in accordance
with the Operating Partnership Agreement and are fully paid and nonassessable
(except as such nonassessability may be affected by matters described in the
Prospectus under the caption "The Partnership Agreement -- Limited Liability");
and the Partnership and CP Acquisition own such limited partner interests in the
Operating Partnership free and clear of all liens, encumbrances, security
interests, equities, charges or claims (except for such liens, encumbrances,
security interests, equities, charges or claims as are not, individually or in
the aggregate, material or as described in the Prospectus).
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(q) Except as described in the Prospectus or pursuant to the Purchase
Rights Agreement, there are no preemptive rights or other rights to subscribe
for or to purchase, nor any restrictions upon the voting or transfer of, any
limited partner interests or shares in any of the Crown Entities pursuant to any
of the Partnership Agreements, any articles or certificates of incorporation or
other governing documents or any agreement or other instrument to which any of
the Crown Entities is a party or by which any of them may be bound. Neither the
filing of the Registration Statement nor the offering or sale of the Units as
contemplated by this Agreement gives rise to any rights, other than those which
have been waived or satisfied, for or relating to the registration of any Units
or other securities of the Partnership. The Units, when issued and delivered
against payment therefor as provided herein, will conform in all material
respects to the description thereof contained in the Prospectus. Except as
disclosed in the Prospectus, there are no outstanding options or warrants to
purchase any Common Units or Subordinated Units. The Partnership has all
requisite power and authority to issue, sell and deliver the Units to be sold by
it hereunder, in accordance with and upon the terms and conditions set forth in
this Agreement and in the Registration Statement and Prospectus. At the Closing
Date and the Option Closing Date, all action required to be taken by the
Partnership for the authorization, issuance, sale and delivery of the Units
shall have been validly taken.
(r) This Agreement has been duly authorized, executed and delivered
by each of the Crown Entities and constitutes the valid and binding agreement of
each such person, enforceable against such persons in accordance with its terms,
except as the enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or similar laws relating to or
affecting creditors' rights generally and by general equitable principles
(regardless of whether such enforceability is considered in a proceeding in
equity or at law) and except as rights to indemnity and contribution hereunder
may be limited by applicable law.
(s) The Partnership Agreement has been duly authorized, executed and
delivered by the General Partners and the limited partners and is a valid and
legally binding agreement of the General Partners, enforceable against the
General Partners in accordance with its terms; and the Operating Partnership
Agreement has been duly authorized, executed and delivered by the parties
thereto and is a valid and legally binding agreement of such parties,
enforceable against such parties in accordance with its terms; provided that, in
each case, the enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or similar laws relating to or
affecting creditors' rights generally and by general equitable principles
(regardless of whether such enforceability is considered in a proceeding in
equity or at law) and except as rights to indemnity and contribution hereunder
may be limited by applicable law.
(t) Neither the issuance and sale by the Partnership of the Units to
be sold by it hereunder, nor the execution, delivery and performance of this
Agreement by the Crown Entities which are parties thereto, nor the consummation
of the transactions contemplated herein, will (i) conflict with or result in a
breach or violation of any of the terms or provisions of, or constitute a
default under (or an event which, with notice or lapse of time or both, would
constitute such a default), any indenture, mortgage, deed of trust, loan
agreement or other material agreement or
9
instrument to which any of the Crown Entities is a party or by which any of them
is bound or to which any of the property or assets of any of them is subject,
(ii) result in any violation of the provisions of the certificate of
incorporation, bylaws, agreement of limited partnership or other governing
documents of any of the Crown Entities, (iii) result in the violation of any
order of any court or governmental agency or body directed to any of them or any
of their properties in a proceeding to which any of them or their property is a
party, (iv) result in the violation of any order of any court or governmental
agency or body or any law, statute, rule or regulation, the violation of which
would have a material adverse effect upon the condition (financial or
otherwise), results of operation or business of the Crown Entities or on the
purchase and sale of the Units or (v) result in the creation or imposition of
any material lien, charge, claim or encumbrance upon any property or asset of
the Crown Entities. Except (A) for permits, consents, approvals and similar
authorizations required under the Act and the securities or "Blue Sky" laws of
certain jurisdictions, (B) for such permits, consents, approvals and
authorizations which have been obtained and (C) as set forth or contemplated in
the Prospectus, no permit, consent, approval, authorization or order of any
court, governmental agency or body or financial institution is required in
connection with the consummation of the transactions contemplated by this
Agreement.
(u) None of the Crown Entities is in (i) breach or violation of the
provisions of its agreement of limited partnership, charter or bylaws or
(ii) default (and no event has occurred which, with notice or lapse of time or
both, would constitute such a default) in the due performance of any term,
covenant or condition contained in any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which it is a party or by which it
is bound or to which any of its properties are subject, which breach, violation
or default could reasonably be expected to have a material adverse effect on the
condition (financial or otherwise), results of operations or business of the
Crown Entities, taken as a whole. To the actual knowledge of the Partnership
and the General Partners, without independent investigation, no third party to
any indenture, mortgage, deed of trust, loan agreement or other material
agreement or instrument to which it is a party or by which it is bound or to
which any of its properties are subject is in default under any such agreement.
(v) No action has been taken and no statute, rule, regulation or
order has been enacted, adopted or issued by any governmental agency or body
which prevents the issuance, sale or delivery of the Units, or suspends the
effectiveness of the Registration Statement or suspends the sale of the Units in
any jurisdiction referred to in Section 4(d) hereof; no injunction, restraining
order or order of any nature by a federal or state court of competent
jurisdiction has been issued with respect to the Crown Entities which would
prevent or suspend the issuance, sale or delivery of the Units, the
effectiveness of the Registration Statement or the use of any Prospectus in any
jurisdiction referred to in Section 4(d) hereof; no action, suit or proceeding
is pending against or, to the best knowledge of the Partnership and the General
Partners, threatened against or affecting any of the Crown Entities before any
court or arbitrator or any governmental body, agency or official, domestic or
foreign, which, if adversely determined, would materially interfere with or
adversely affect the issuance of the Units or the subject matter of this
Agreement.
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(w) Other than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which any of the Crown Entities is a party
or to which any of their respective properties is the subject which, if
determined adversely to such person, would individually or in the aggregate have
a material adverse effect on the properties, business, general affairs,
management, condition (financial or otherwise), financial position, results of
operations or prospects of the Crown Entities, taken as a whole; and, to the
best knowledge of the Partnership and the General Partners, no such proceedings
are threatened by governmental authorities or threatened by others.
(x) Each of the Crown Entities has good and marketable title to all
real and personal property owned by it, free and clear of all liens, claims,
encumbrances and title defects except (i) as described in the Prospectus and
(ii) such as do not materially interfere with the use of such properties as they
have been used in the past and are proposed to be used in the future as
described in the Prospectus.
(y) Each of the Crown Entities carries, or is covered by, insurance
in such amounts and covering such risks as is customarily obtained by businesses
similarly situated.
(z) None of the Crown Entities is, or at the Closing Date will be,
(i) a "holding company" or a "subsidiary company" of a "holding company" or an
"affiliate" thereof, within the meaning of the Public Utility Holding Company
Act of 1935, as amended, or (ii) an "investment company" or a company
"controlled by" an "investment company" within the meaning of the Investment
Company Act of 1940, as amended (the "Investment Company Act"), and the rules
and regulations thereunder.
(aa) Except as described in the Prospectus, the Crown Entities
possess, and operate in compliance in all material respects with, all
certificates, authorizations or permits issued by the appropriate local, state,
federal or foreign regulatory agencies or bodies necessary to conduct the
business currently (or, as described or contemplated in the Prospectus, to be)
operated by them, except for such certificates, authorizations or permits which,
if not obtained, would not reasonably be expected to have, individually or in
the aggregate, a material adverse effect upon the ability of the Crown Entities
to conduct their businesses in all material respects as currently conducted and
as contemplated by the Prospectus to be conducted; and, except as described in
the Prospectus, none of the Crown Entities has received any notice of
proceedings relating to the revocation or modification of any such certificate,
authorization or permit which, individually or in the aggregate, if the subject
of an unfavorable decision, ruling or finding, would be expected to have a
material adverse effect upon the ability of the Crown Entities to conduct their
businesses in all material respects as currently conducted and as contemplated
by the Prospectus to be conducted.
(bb) None of the Crown Entities has violated any environmental safety
or similar law or regulation applicable to its business relating to the
protection of human health and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants ("Environmental Laws"), lacks
any permits, licenses or other approvals required of them under applicable
Environmental Laws to own, lease and operate their respective properties and to
conduct their
11
businesses in the manner described in the Prospectus, is violating any terms and
conditions of any such permit, license or approval or has permitted to occur any
event that allows, or after notice or lapse of time would allow, revocation or
termination of any such permit, license or approval or results in any other
impairment of their rights thereunder, which in each case might result, singly
or in the aggregate, in a material adverse effect on the condition (financial or
otherwise), results of operations or business of the Crown Entities, taken as a
whole.
(cc) None of the Crown Entities (i) has taken, and none of such
persons shall take, directly or indirectly, any action designed to cause or
result in, or which has constituted or which might reasonably be expected to
constitute, the stabilization or manipulation of the price of the Common Units
to facilitate the sale or resale of the Common Units in violation of any law,
rule or regulation or (ii) since the initial filing of the Registration
Statement, except as contemplated by this Agreement, (A) has sold, bid for,
purchased or paid anyone any compensation for soliciting purchases of the Common
Units or (B) has paid or agreed to pay to any person any compensation for
soliciting another to purchase any other securities of the Partnership, except
for open market purchases of Common Units in connection with the exercise of
options to purchase Common Units under the Partnership's 1994 Unit Option Plan.
(dd) Immediately prior to the Closing Date, the Partnership will have
good and valid title to the Units to be sold by the Partnership hereunder, free
and clear of all liens, encumbrances, equities or claims (except as described in
the Prospectus); and, upon delivery of such Units and payment therefor pursuant
hereto, good and valid title to such Units, free and clear of all liens,
encumbrances, equities or claims (except as described in the Prospectus), will
pass to the Underwriters.
(ee) The Common Units are listed on the New York Stock Exchange (the
"NYSE") and the Units have been approved for listing on the NYSE, subject only
to official notice of issuance.
(ff) From September 30, 1998 through the date hereof, and except as
may otherwise be disclosed in the Prospectus, the Crown Entities have not
(i) issued or granted any securities, (ii) incurred any material liability or
obligation, direct or contingent, other than liabilities and obligations which
were incurred in the ordinary course of business, (iii) entered into any
material transaction not in the ordinary course of business or (iv) declared or
paid any dividend on its capital stock or made any distributions on its units
representing limited partner interests, as the case may be.
(gg) Each of the Crown Entities (i) makes and keeps accurate books and
records and (ii) maintains internal accounting controls which provide reasonable
assurance that (A) transactions are executed in accordance with management's
authorization, (B) transactions are recorded as necessary to permit preparation
of its financial statements in conformity with generally accepted accounting
principles and to maintain accountability for its assets, (C) access to its
assets is permitted only in accordance with management's general or specific
authorization and (D) the
12
recorded accountability for its assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
4. AGREEMENTS OF THE PARTNERSHIP. Each of the Partnership and the
General Partners covenant and agree with the Underwriters as follows:
(a) The Partnership shall comply with the provisions of and make all
requisite filings with the Commission pursuant to Rule 424(b) not later than the
Commission's close of business on the second Business Day following the
execution and delivery of this Agreement or, if applicable, such earlier time as
may be required by Rule 430A(a)(3) of the Rules and Regulations. So long as a
Prospectus is required to be delivered in connection with sales of the Units by
the Underwriters or dealers, the Partnership shall advise the Underwriters,
promptly after it receives notice thereof, of the time when any post-effective
amendment to the Registration Statement becomes effective. The Partnership
shall notify you promptly of any request by the Commission for any amendment of
or supplement to the Registration Statement or the Prospectus or for additional
information; the Partnership shall prepare and file with the Commission,
promptly upon your request, any amendments or supplements to the Registration
Statement or the Prospectus which, in your opinion or our opinion, may be
reasonably necessary or advisable in connection with the distribution of the
Units; and the Partnership shall not file any amendment or supplement to the
Registration Statement or the Prospectus or, so long as a Prospectus is required
to be delivered in connection with sales of the Units by the Underwriters or a
dealer, file any information, documents or reports pursuant to the Exchange Act
without providing you with reasonable notice and opportunity to comment thereon
as permitted by the circumstances. The Partnership shall advise you promptly of
the issuance by the Commission or any State or other regulatory body of any stop
order or other order suspending the effectiveness of the Registration Statement,
suspending or preventing the use of the Prospectus or suspending the
qualification of the Units for offering or sale in any jurisdiction, or of the
institution of any proceedings for any such purpose; and the Partnership shall
use its best efforts to prevent the issuance of any stop order or other such
order and, should a stop order or other such order be issued, to obtain as soon
as possible the lifting thereof.
(b) The Partnership shall furnish to the Underwriters and to counsel
for the Underwriters a signed copy of the Registration Statement as originally
filed and each amendment thereto filed with the Commission, including all
consents and exhibits filed therewith, and shall furnish to the Underwriters
such number of conformed copies of the Registration Statement, as originally
filed and each amendment thereto, the Prospectus and all amendments and
supplements to any of such documents (including any document filed under the
Exchange Act and deemed to be incorporated by reference in the Prospectus), in
each case as soon as available and in such quantities as the Underwriters may
from time to time reasonably request.
(c) Within the time during which the Prospectus relating to the Units
is required to be delivered under the Act, the Partnership shall comply with all
requirements imposed upon it by the Act, as now and hereafter amended, and by
the Rules and Regulations, as from time to time in force, so far as is necessary
to permit the continuance of sales of or dealings in the Units as
13
contemplated by the provisions hereof and by the Prospectus. If during such
period any event occurs as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in the light of
the circumstances then existing, not misleading, or if during such period it is
necessary to amend the Registration Statement or supplement the Prospectus or
file any document to comply with the Act and the Exchange Act, the Partnership
shall promptly notify you and shall amend the Registration Statement or
supplement the Prospectus or file any document (at the expense of the
Partnership) so as to correct such statement or omission or to effect such
compliance.
(d) The Partnership shall take or cause to be taken all necessary
action and furnish to whomever you may direct such information as may be
required in qualifying the Units for sale under the laws of such jurisdictions
in the United States as you shall designate, and to continue such qualifications
in effect for as long as may be necessary for the distribution of the Units;
except that in no event shall the Partnership or the General Partners be
obligated in connection therewith to qualify as a foreign limited partnership or
as a foreign corporation, or to execute a general consent to service of process.
(e) The Partnership shall make generally available to its security
holders (and shall deliver to the Underwriters), in the manner contemplated by
Rule 158(b) under the Act or otherwise, as soon as practicable but in any event
not later than 45 days after the end of its fiscal quarter in which the first
anniversary date of the Effective Date occurs (or not later than 90 days after
the end of such fiscal quarter if such fiscal quarter is the last fiscal quarter
of the fiscal year), an earnings statement satisfying the requirements of
Section 11(a) of the Act and covering a period of at least 12 consecutive months
beginning after the Effective Date.
(f) The Partnership shall timely complete all required filings and
otherwise fully comply in a timely manner with all provisions of the Exchange
Act and the Exchange Act Rules and Regulations.
(g) The Partnership and the General Partners shall not, directly or
indirectly, sell, offer to sell, contract to sell, grant any option to sell or
otherwise dispose of any Common Units or Subordinated Units, or any securities
convertible into or exchangeable for, or any rights to purchase or acquire,
Common Units or Subordinated Units (other than pursuant to the Partnership's
1994 Unit Option Plan), for a period of 60 days after the Effective Date without
the prior written consent of the Underwriters; provided that the Partnership may
issue Common Units under an effective shelf registration statement in connection
with acquisitions.
(h) The Partnership shall apply the net proceeds of the sale of the
Units to be sold by it as set forth in the Prospectus. The Partnership shall
take such steps as shall be necessary to ensure that none of the Crown Entities
shall become an "investment company" within the meaning of such term under the
Investment Company Act and the rules and regulations thereunder.
14
(i) If this Agreement shall terminate or shall be terminated by the
Partnership pursuant to any provisions hereof (other than pursuant to Section 8
hereof) or if this Agreement shall be terminated by the Underwriters because of
any failure or refusal on the part of the Crown Entities to comply with the
terms or fulfill any of the conditions of this Agreement, the Partnership agrees
to reimburse the Underwriters for all out-of-pocket expenses (including fees and
expenses of counsel for the Underwriters) incurred by you in connection
herewith.
(j) The Partnership shall, on or prior to the Closing Date and the
Option Closing Date, cause the Units to be purchased on such date by the
Underwriters to be approved for listing on the NYSE, subject only to official
notice of issuance, and shall take such action as shall be necessary to comply
with the rules and regulations of the NYSE with respect to such Units.
(k) During the period of five years from the Effective Date, the
Partnership shall furnish to the Underwriters copies of all reports or other
communications furnished to unitholders and copies of any reports or financial
statements furnished to or filed with the Commission or the NYSE or any other
national securities exchange on which any class of securities of the Partnership
is listed.
5. CONDITIONS OF THE OBLIGATIONS OF THE UNDERWRITERS. In addition to the
execution and delivery of the Price Determination Agreement, the obligations of
the Underwriters hereunder are subject to the accuracy, as of the date hereof
and the Closing Date (as if made at such Closing Date), of the representations
and warranties of the Crown Entities contained herein, to the performance by the
Partnership and the General Partners of their respective obligations hereunder
and to the following additional conditions:
(a) The Prospectus shall have been filed with the Commission in a
timely fashion in accordance with Section 4(a) hereof, the Registration
Statement and all post-effective amendments to the Registration Statement shall
have become effective, all filings required by Rule 424 and Rule 430A of the
Rules and Regulations shall have been made and no such filings shall have been
made without the consent of the Underwriters; no stop order suspending the
effectiveness of the Registration Statement or any amendment or supplement
thereto or suspending the qualification of the Units for offering or sale in any
jurisdiction shall have been issued; no proceedings for the issuance of any such
order shall have been initiated or, to the Partnership's knowledge, threatened;
and any request of the Commission for additional information (to be included in
the Registration Statement or the Prospectus or otherwise) shall have been
disclosed to you and complied with to your reasonable satisfaction.
(b) The Underwriters shall not have been advised by the Partnership
or the General Partners or shall not have discovered and disclosed to the
Partnership that the Registration Statement or the Prospectus or any amendment
or supplement thereto contains an untrue statement
15
of fact which in your opinion, or in the opinion of counsel to the Underwriters,
is material, or omits to state a fact which, in your opinion, or in the opinion
of counsel to the Underwriters, is material and is required to be stated therein
or is necessary to make the statements therein not misleading.
(c) On or prior to each of the Closing Date and the Option Closing
Date, you shall have received from Xxxxx & Xxxxx, L.L.P., counsel for the
Underwriters, such opinion or opinions with respect to the validity of the Units
and other related matters as you may reasonably request and such counsel shall
have received such documents and information as they reasonably request to
enable them to pass upon such matters.
(d) On each of the Closing Date and the Option Closing Date, there
shall have been furnished to you the opinion (addressed to the Underwriters) of
Xxxxxxx & Xxxxx L.L.P., special counsel for the Partnership and the General
Partners, dated such Closing Date, in form and substance satisfactory to the
Underwriters, with respect to the matters set forth in Exhibit B to this
Agreement.
(e) On each of the Closing Date and the Option Closing Date, there
shall have been furnished to you the opinion (addressed to the Underwriters) of
Ball Xxxxx LLP, counsel to the Partnership and the General Partners, dated such
Closing Date, in form and substance satisfactory to the Underwriters, with
respect to the matters set forth in Exhibit C hereto.
(f) On each of the Closing Date and the Option Closing Date, there
shall have been furnished to you a certificate, dated such Closing Date and
addressed to you, signed on behalf of the Partnership by the President or the
Secretary and General Counsel and the Chief Financial Officer or Treasurer of HS
Corp., the general partner of the Managing General Partner, to the effect that
(i) the representations and warranties of the Partnership contained in this
Agreement are true and correct, as if made at and as of such Closing Date, and
the Partnership has complied with all the agreements and satisfied all the
conditions on its part to be complied with or satisfied at or prior to such
Closing Date; (ii) no stop order suspending the effectiveness of the
Registration Statement has been issued, and, to the best of their knowledge, no
proceeding for that purpose has been initiated or threatened; (iii) the signers
of said certificate have carefully examined the Registration Statement and the
Prospectus, and any amendments or supplements thereto, and such documents
contain all statements and information required to be included therein, and do
not include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading; (iv) since the Effective Date there has occurred no
event required to be set forth in an amendment or supplement to the Registration
Statement or the Prospectus which has not been so set forth; and (v) no event
contemplated by subsection (h) of this Section 5 in respect of the Crown
Entities shall have occurred.
(g) On each of the Closing Date and the Option Closing Date, there
shall have been furnished to you by each of the General Partners a certificate,
dated such Closing Date and addressed to you, signed on behalf of the Special
General Partner by the President or the Secretary and General Counsel and the
Chief Financial Officer or Treasurer of the Special General Partner, and
16
signed on behalf of the Managing General Partner by the President or the
Secretary and General Counsel and the Chief Financial Officer or Treasurer of HS
Corp., the general partner of the Managing General Partner, to the effect that
(i) the representations and warranties of such General Partner contained in this
Agreement are true and correct, as if made at and as of such Closing Date, and
such General Partner has complied with all the agreements and satisfied all the
conditions on its part to be complied with or satisfied at or prior to the
Closing Date and (ii) no event contemplated by subsection (h) of this Section 5
in respect of such General Partner has occurred.
(h) Since the Effective Date, none of the Crown Entities shall have
sustained any material loss or interference with its business by fire, flood,
explosion, accident or other calamity, whether or not covered by insurance, or
shall have become a party to or the subject of any litigation, court or
governmental action, investigation, order or decree which is materially adverse
to the Crown Entities as a whole; nor shall there have been a change in the
partners' capital, capital stock, short-term debt or long-term debt of the Crown
Entities, or any material adverse change, or any development involving a
prospective material adverse change, in or affecting the general affairs,
operations, business, prospects, management, capitalization, financial
condition, results of operations or net worth of the Crown Entities, which loss,
litigation, change or development, in your reasonable judgment, shall be so
material and adverse as to render it impractical or inadvisable to proceed with
the payment for and delivery of the Units on the terms and in the manner
contemplated in the Prospectus.
(i) On each of the Closing Date and the Option Closing Date you shall
have received a letter from PricewaterhouseCoopers LLP, dated such Closing Date
and addressed to you, confirming that they are independent certified public
accountants within the meaning of the Act and the applicable published Rules and
Regulations, and stating, as of the date of such letter (or, with respect to
matters involving changes or developments since the respective dates as of which
specified financial information is given in the Prospectus as of a date not more
than five days prior to the date of such letter), the conclusions and findings
of such firm with respect to the financial information and other matters covered
by its letter delivered to you concurrently with the execution of this
Agreement, and confirming the conclusions and findings set forth in such prior
letter.
(j) On or prior to the date hereof, the Partnership shall have
furnished to you a letter substantially in the form of Exhibit D hereto from
Xxxxx Xxxxx and Xxxxxxx Xxxxxx.
(k) You shall have been furnished by the Crown Entities such
additional documents and certificates as you or counsel for the Underwriters may
reasonably request.
(l) The Units to be purchased on each of the Closing Date and the
Option Closing Date by the Underwriters shall be approved for listing on the
NYSE, subject only to official notice of issuance.
Notwithstanding anything to the contrary provided in this Agreement, (a) if
Fremont Euro-Summit Limited does not purchase the Fremont Units as set forth on
Exhibit E hereto, the number
17
of Firm Units that the Underwriters shall be obligated to purchase from the
Partnership shall be reduced by ______ and all references to Firm Units in this
Agreement shall refer to such lesser number of Common Units; and (b) if Xxxxx X.
Xxxxx or an entity controlled by him does not purchase the Xxxxx Units as set
forth on Exhibit F hereto, the number of Firm Units that the Underwriters shall
be obligated to purchase from the Partnership shall be reduced by ______ and all
references to Firm Units in this Agreement shall refer to such lesser number of
Common Units.
All such opinions, certificates, letters and documents shall be in
compliance with the provisions hereof only if they are reasonably satisfactory
in form and substance to you and to counsel for the Underwriters. The
Partnership shall furnish to you conformed copies of such opinions,
certificates, letters and other documents in such number as you shall reasonably
request. If any of the conditions specified in this Section 5 shall not have
been fulfilled, when and as required by this Agreement, this Agreement and all
obligations of the Underwriters hereunder may be canceled at, or at any time
prior to, each Closing Date, by you. Any such cancellation shall be without
liability of the Underwriters to the Crown Entities or any of their affiliates.
Notice of such cancellation shall be given to the Partnership in writing, or by
telegraph or telephone and confirmed in writing.
6. INDEMNIFICATION. (a) The Crown Entities will, jointly and severally,
indemnify and hold harmless the Underwriters, the directors, officers, employees
and agents of the Underwriters and each person, if any, who controls the
Underwriters within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act from and against any and all losses, claims, liabilities, expenses
and damages (including, but not limited to, any and all investigative, legal and
other expenses reasonably incurred in connection with, and any and all amounts
paid in settlement of, any action, suit or proceeding between any of the
indemnified parties and any indemnifying parties or between any indemnified
party and any third party, or otherwise, or any claim asserted), as and when
incurred, to which the Underwriters, or any such person, may become subject
under the Act, the Exchange Act or other Federal or state statutory law or
regulation, at common law or otherwise, insofar as such losses, claims,
liabilities, expenses or damages arise out of or are based on (i) any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement or the Prospectus or any amendment or supplement to the
Registration Statement or the Prospectus or in any documents filed under the
Exchange Act and deemed to be incorporated by reference into the Prospectus,
(ii) the omission or alleged omission to state in such document a material fact
required to be stated in it or necessary to make the statements in it not
misleading or (iii) any act or failure to act or any alleged act or failure to
act by the Underwriters in connection with, or relating in any manner to, the
Units or the offering contemplated hereby, and which is included as part of or
referred to in any loss, claim, liability, expense or damage arising out of or
based upon matters covered by clause (i) or (ii) above (provided that the Crown
Entities shall not be liable under this clause (iii) to the extent it is finally
judicially determined by a court of competent jurisdiction that such loss,
claim, liability, expense or damage resulted directly from any such acts or
failures to act undertaken or omitted to be taken by the Underwriters through
its gross negligence or willful misconduct); provided that the Crown Entities
will not be liable to the extent that such loss, claim, liability, expense or
damage (A) arises from the sale of the Units in the public offering
18
to any person by the Underwriters and is based on an untrue statement or
omission or alleged untrue statement or omission made in reliance on and in
conformity with information relating to the Underwriters furnished in writing to
the Partnership by or on behalf of the Underwriters expressly for inclusion in
the Registration Statement or the Prospectus or (B) results solely from an
untrue statement of a material fact contained in, or the omission of a material
fact from, such prospectus, which untrue statement or omission was completely
corrected in the Prospectus (as then amended or supplemented) if the
Underwriters sold Units to the person alleging such loss, claim, liability,
expense or damage without sending or giving, at or prior to the written
confirmation of such sale, a copy of the Prospectus (as then amended or
supplemented) if the Crown Entities had previously furnished copies thereof to
the Underwriters within a reasonable amount of time prior to such sale or such
confirmation, and the Underwriters failed to deliver the corrected Prospectus.
This indemnity agreement will be in addition to any liability that the Crown
Entities might otherwise have.
(b) The Underwriters will indemnify and hold harmless the Crown
Entities, each person, if any, who controls the Crown Entities within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, each
director of a General Partner and each officer of the Partnership or any General
Partner who signed the Registration Statement to the same extent as the
foregoing indemnity from the Crown Entities to the Underwriters, but only
insofar as losses, claims, liabilities, expenses or damages arise out of or are
based on any untrue statement or omission or alleged untrue statement or
omission made in reliance on and in conformity with information relating to the
Underwriters furnished in writing to the Partnership by or on behalf of the
Underwriters expressly for use in the Registration Statement or the Prospectus.
This indemnity will be in addition to any liability that the Underwriters might
otherwise have.
(c) Any party that proposes to assert the right to be indemnified
under this Section 6 will, promptly after receipt of notice of commencement of
any action against such party in respect of which a claim is to be made against
an indemnifying party or parties under this Section 6, notify each such
indemnifying party in writing of the commencement of such action, enclosing a
copy of all papers served, but the omission so to notify such indemnifying party
will not relieve it from any liability that it may have to any indemnified party
under the foregoing provisions of this Section 6 unless, and only to the extent
that, such omission results in the forfeiture of substantive rights or defenses
by the indemnifying party. If any such action is brought against any
indemnified party and it notifies the indemnifying party of its commencement,
the indemnifying party will be entitled to participate in and, to the extent
that it elects by delivering written notice to the indemnified party promptly
after receiving notice of the commencement of the action from the indemnified
party, jointly with any other indemnifying party similarly notified, to assume
the defense of the action, with counsel satisfactory to the indemnified party,
and after notice from the indemnifying party to the indemnified party of its
election to assume the defense, the indemnifying party will not be liable to the
indemnified party for any legal or other expenses except as provided below and
except for the reasonable costs of investigation subsequently incurred by the
indemnified party in connection with the defense. Each indemnified party, as a
condition of the indemnity agreements contained in Sections 6(a) and 6(b)
hereof, shall use its reasonable best efforts to
19
cooperate with the indemnifying party in the defense of such action or claim.
The indemnified party will have the right to employ its own counsel in any such
action, but the fees, expenses and other charges of such counsel will be at the
expense of such indemnified party unless (1) the employment of counsel by the
indemnified party has been authorized in writing by the indemnifying party,
(2) the indemnified party has reasonably concluded (based on advice of counsel)
that there may be legal defenses available to it or other indemnified parties
that are different from or in addition to those available to the indemnifying
party, (3) a conflict or potential conflict exists (based on advice of counsel
to the indemnified party) between the indemnified party and the indemnifying
party (in which case the indemnifying party will not have the right to direct
the defense of such action on behalf of the indemnified party) or (4) the
indemnifying party has not in fact employed counsel to assume the defense of
such action within a reasonable time after receiving notice of the commencement
of the action, in each of which cases the reasonable fees, disbursements and
other charges of counsel will be at the expense of the indemnifying party or
parties. It is understood that the indemnifying party or parties shall not, in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the reasonable fees, disbursements and other charges of more than
one separate firm admitted to practice in such jurisdiction at any one time for
all such indemnified party or parties, which firm shall be designated in writing
by such indemnified party or parties. All such fees, disbursements and other
charges will be reimbursed by the indemnifying party promptly as they are
incurred. An indemnifying party will not be liable for any settlement of any
action or claim effected without its written consent (which consent will not be
unreasonably withheld). No indemnifying party shall, without the prior written
consent of each indemnified party, settle or compromise or consent to the entry
of any judgment in any pending or threatened claim, action or proceeding
relating to the matters contemplated by this Section 6 (whether or not any
indemnified party is a party thereto), unless such settlement, compromise or
consent includes an unconditional release of each indemnified party from all
liability arising or that may arise out of such claim, action or proceeding.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in the foregoing
paragraphs of this Section 6 is applicable in accordance with its terms but for
any reason is held to be unavailable from the Crown Entities or the
Underwriters, the Crown Entities and the Underwriters will contribute to the
total losses, claims, liabilities, expenses and damages (including any
investigative, legal and other expenses reasonably incurred in connection with,
and any amount paid in settlement of, any action, suit or proceeding or any
claim asserted, but after deducting any contribution received by the Crown
Entities from persons other than the Underwriters, such as persons who control
the Crown Entities within the meaning of the Act, officers of the Crown Entities
who signed the Registration Statement and directors of the General Partners, who
also may be liable for contribution) to which the Crown Entities and the
Underwriters may be subject in such proportion as shall be appropriate to
reflect the relative benefits received by the Crown Entities on the one hand and
the Underwriters on the other. The relative benefits received by the Crown
Entities 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 Partnership 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
20
Prospectus Supplement. If, but only if, the allocation provided by the
foregoing sentence is not permitted by applicable law, the allocation of
contribution shall be made in such proportion as is appropriate to reflect not
only the relative benefits referred to in the foregoing sentence but also the
relative fault of the Crown Entities, on the one hand, and the Underwriters, on
the other, with respect to the statements or omissions which resulted in such
loss, claim, liability, expense or damage, or action in respect thereof, as well
as any other relevant equitable considerations with respect to such offering.
Such relative fault shall be determined by reference to whether the untrue or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact relates to information supplied by the Crown Entities or
the Underwriters, the intent of the parties and their relative knowledge, access
to information and opportunity to correct or prevent such statement or omission.
The Crown Entities and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this Section 6(d) were to be determined
by pro rata allocation or by any other method of allocation that does not take
into account the equitable considerations referred to herein. The amount paid
or payable by an indemnified party as a result of the loss, claim, liability,
expense or damage, or action in respect thereof, referred to above in this
Section 6(d) shall be deemed to include, for purpose of this Section 6(d), any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 6(d), the Underwriters shall not
be required to contribute any amount in excess of the underwriting discounts and
commissions received by it and no person found guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) will be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 6(d), any person who controls a
party to this Agreement within the meaning of the Act will have the same rights
to contribution as that party, and each officer of the Crown Entities who signed
the Registration Statement will have the same rights to contribution as the
Crown Entities, subject in each case to the provisions hereof. Any party
entitled to contribution, promptly after receipt of notice of commencement of
any action against such party in respect of which a claim for contribution may
be made under this Section 6(d), will notify any such party or parties from whom
contribution may be sought, but the omission so to notify will not relieve the
party or parties from whom contribution may be sought from any other obligation
it or they may have under this Section 6(d). Except for a settlement entered
into pursuant to the last sentence of Section 6(c) hereof, no party will be
liable for contribution with respect to any action or claim settled without its
written consent (which consent will not be unreasonably withheld).
(e) The indemnity and contribution agreements contained in this
Section 6 and the representations and warranties of the Crown Entities contained
in this Agreement shall remain operative and in full force and effect regardless
of (i) any investigation made by or on behalf of the Underwriters,
(ii) acceptance of the Units and payment therefor or (iii) any termination of
this Agreement.
7. TERMINATION. The obligations of the Underwriters under this Agreement
may be terminated at any time on or prior to the Closing Date (or, with respect
to the Option Units, on or prior to the Option Closing Date), without liability
on the part of the Underwriters to the Crown Entities, if, prior to delivery and
payment for the Firm Units (or the Option Units, as the case may
21
be), in the sole judgment of the Underwriters, (i) trading in any of the equity
securities of the Partnership shall have been suspended by the Commission, the
NASD or by the New York Stock Exchange, (ii) trading in securities generally on
the New York Stock Exchange shall have been suspended or materially limited or
minimum or maximum prices shall have been generally established on such
exchange, or additional material governmental restrictions, not in force on the
date of this Agreement, shall have been imposed upon trading in securities
generally by such exchange or by order of the Commission or the NASD or any
court or other governmental authority, (iii) a general banking moratorium shall
have been declared by either Federal or New York State authorities or (iv) any
material adverse change in the financial or securities markets in the United
States or in political, financial or economic conditions in the United States or
any outbreak or material escalation of hostilities or declaration by the United
States of a national emergency or war or other calamity or crisis shall have
occurred the effect of any of which is such as to make it, in the sole judgment
of the Underwriters, impracticable or inadvisable to market the Units on the
terms and in the manner contemplated by the Prospectus.
8. SUBSTITUTION OF UNDERWRITERS. If any one or more of the Underwriters
shall fail or refuse to purchase any of the Firm Units which it or they have
agreed to purchase hereunder, and the aggregate number of Firm Units which such
defaulting Underwriter or Underwriters agreed but failed or refused to purchase
is not more than one-tenth of the aggregate number of Firm Units, the other
Underwriters shall be obligated, severally, to purchase the Firm Units which
such defaulting Underwriter or Underwriters agreed but failed or refused to
purchase, in the proportions which the number of Firm Units which they have
respectively agreed to purchase pursuant to Section 1 bears to the aggregate
number of Firm Units which all such non-defaulting Underwriters have so agreed
to purchase; provided that in no event shall the maximum number of Firm Units
which any Underwriter has become obligated to purchase pursuant to Section 1 be
increased pursuant to this Section 8 by more than one-ninth of the number of
Firm Units agreed to be purchased by such Underwriter without the prior written
consent of such Underwriter. If any Underwriter or Underwriters shall fail or
refuse to purchase any Firm Units and the aggregate number of Firm Units which
such defaulting Underwriter or Underwriters agreed but failed or refused to
purchase exceeds one-tenth of the aggregate number of the Firm Units and
arrangements satisfactory to the Underwriters and the Partnership for the
purchase of such Firm Units are not made within 48 hours after such default,
this Agreement will terminate without liability on the part of any
non-defaulting Underwriter or the Partnership for the purchase or sale of any
Units under this Agreement. In any such case, either the Underwriters or the
Partnership 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 in the Prospectus or in any other documents or
arrangements may be effected. Any action taken pursuant to this Section 8 shall
not relieve any defaulting Underwriter from liability in respect of any default
of such Underwriter under this Agreement.
9. MISCELLANEOUS. Notice given pursuant to any of the provisions of this
Agreement shall be in writing and, unless otherwise specified, shall be mailed
or delivered (a) if to the Crown Entities, at the office of Crown Pacific
Partners, L.P., 000 X.X. Xxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxx, Xxxxxx 00000
Attention: President, or (b) if to the Underwriters, at the offices of
22
PaineWebber Incorporated, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Corporate Finance Department. Any such notice shall be effective
only upon receipt. Any notice under Section 7 hereof may be made by telex or
telephone, but if so made shall be subsequently confirmed in writing.
This Agreement has been and is made solely for the benefit of the
Underwriters, the Crown Entities and of the controlling persons, directors and
officers referred to in Section 6, and their respective successors and assigns,
and no other person shall acquire or have any right under or by virtue of this
Agreement. The term "successors and assigns" as used in this Agreement shall
not include a purchaser, as such purchaser, of Units from the Underwriters.
All representations, warranties and agreements of the Crown Entities
contained herein or in certificates or other instruments delivered pursuant
hereto, shall remain operative and in full force and effect regardless of any
investigation made by or on behalf of the Underwriters or any of its controlling
persons and shall survive delivery of and payment for the Units hereunder.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICT OF LAWS PRINCIPLES
OF SUCH STATE.
This Agreement may be signed in two or more counterparts with the same
effect as if the signatures thereto and hereto were upon the same instrument.
In case any provision in this Agreement shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
This Agreement may not be amended or otherwise modified or any provision
hereof waived except by an instrument in writing signed by the Crown Entities
and the Underwriters.
23
Please confirm that the foregoing correctly sets forth the agreement
between the Crown Entities and the Underwriters.
Very truly yours,
CROWN PACIFIC PARTNERS, L.P.
By: CROWN PACIFIC MANAGEMENT
LIMITED PARTNERSHIP, its
Managing General Partner
By: HS CORP. OF OREGON, its
General Partner
By:
---------------------------------
Name:
---------------------------------
Title:
---------------------------------
CROWN PACIFIC, LTD.
By:
-----------------------------------------
Name:
-----------------------------------------
Title:
-----------------------------------------
CROWN PACIFIC MANAGEMENT LIMITED PARTNERSHIP
By: HS CORP. OF OREGON, its
General Partner
By:
-----------------------------------------
Name:
-----------------------------------------
Title:
-----------------------------------------
24
CROWN PACIFIC LIMITED PARTNERSHIP
By: CROWN PACIFIC MANAGEMENT
LIMITED PARTNERSHIP, its
General Partner
By: HS CORP. OF OREGON, its
General Partner
By:
-----------------------------------------
Name:
-----------------------------------------
Title:
-----------------------------------------
Confirmed and accepted as of
the date first above-mentioned
PAINEWEBBER INCORPORATED
XXXXXXX XXXXX BARNEY INC.
By: PAINEWEBBER INCORPORATED
Name:
---------------------
Title:
---------------------
25
EXHIBIT A
CROWN PACIFIC PARTNERS, L.P.
PRICE DETERMINATION AGREEMENT
December __, 1998
PaineWebber Incorporated
Xxxxxxx Xxxxx Xxxxxx Inc.
c/o PaineWebber Incorporated
1285 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Reference is made to the Underwriting Agreement, dated December __, 1998
(the "Underwriting Agreement"), among the Crown Entities, PaineWebber
Incorporated and Xxxxxxx Xxxxx Barney Inc. (the "Underwriters"). The
Underwriting Agreement provides for the purchase by the Underwriters from Crown
Pacific Partners, L.P. (the "Partnership"), subject to the terms and conditions
set forth therein, of an aggregate of [2,250,000] Common Units representing
limited partner interests in the Partnership (the "Firm Units"). This Agreement
is the Price Determination Agreement referred to in the Underwriting Agreement.
Capitalized terms used herein but not defined shall have the meanings assigned
to such terms in the Underwriting Agreement.
Pursuant to Section 1 of the Underwriting Agreement, the undersigned agree
as follows:
The public offering price per Common Unit for the Firm Units shall be
$______________.
The purchase price per Common Unit for the Firm Units to be paid by the
Underwriters shall be $_______________ representing an amount equal to the
public offering price set forth above, less $___________ per Common Unit.
The Crown Entities represent and warrant to the Underwriters that the
representations and warranties of the Crown Entities set forth in Section 3 of
the Underwriting Agreement are accurate, in all material respects, as though
expressly made at and as of the date hereof.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICT OF LAWS PRINCIPLES
OF SUCH STATE.
A-1
If the foregoing is in accordance with your understanding of the agreement
between the Crown Entities and the Underwriters, please sign and return to the
Partnership a counterpart hereof, whereupon this instrument along with all
counterparts and together with the Underwriting Agreement shall be a binding
agreement between the Crown Entities and the Underwriters in accordance with its
terms and the terms of the Underwriting Agreement.
Very truly yours,
CROWN PACIFIC PARTNERS, L.P.
By: CROWN PACIFIC MANAGEMENT
LIMITED PARTNERSHIP, its
Managing General Partner
By: HS CORP. OF OREGON, its
General Partner
By:
-----------------------------------------
Name:
-----------------------------------------
Title:
-----------------------------------------
CROWN PACIFIC, LTD.
By:
-----------------------------------------
Name:
-----------------------------------------
Title:
-----------------------------------------
CROWN PACIFIC MANAGEMENT LIMITED PARTNERSHIP
By: HS CORP. OF OREGON, its
General Partner
By:
-----------------------------------------
Name:
-----------------------------------------
Title:
-----------------------------------------
A-2
CROWN PACIFIC LIMITED PARTNERSHIP
By: CROWN PACIFIC MANAGEMENT
LIMITED PARTNERSHIP, its
General Partner
By: HS CORP. OF OREGON, its
General Partner
By:
-----------------------------------------
Name:
-----------------------------------------
Title:
-----------------------------------------
Confirmed and accepted as of
the date first above-mentioned
PAINEWEBBER INCORPORATED
XXXXXXX XXXXX XXXXXX INC.
By: PAINEWEBBER INCORPORATED
Name:
--------------------
Title:
--------------------
A-3
EXHIBIT B
OPINION OF XXXXXXX & XXXXX L.L.P.
(a) Each of the Partnership, the Operating Partnership and the
Managing General Partner has been duly formed and is validly existing in good
standing as a limited partnership under the Delaware Act, with all necessary
partnership power and authority to own or lease its properties and conduct its
business, in each case in all material respects as described in the Prospectus.
(b) The Managing General Partner and the Special General Partner
are the sole general partners of the Partnership with 0.99% and 0.01%,
respectively, general partner interests in the Partnership; such general partner
interests are duly authorized by the Partnership Agreement and were validly
issued to each General Partner; and, except as provided in the Purchase Rights
Agreement, the Managing General Partner owns its general partner interest in the
Partnership free and clear of all liens, encumbrances, security interests,
charges or claims (i) in respect of which a financing statement under the
Uniform Commercial Code of the State of Oregon naming the Managing General
Partner as a debtor is on file in the offices of the Secretary of State of the
State of Oregon or (ii) otherwise known to us, without independent
investigation, other than those created by or arising under the Delaware Act.
(c) The Managing General Partner is the sole general partner of
the Operating Partnership with a 1.0101% general partner interest in the
Operating Partnership; such general partner interest is duly authorized by the
Operating Partnership Agreement and was validly issued to the Managing General
Partner; and the Managing General Partner owns such general partner interest
free and clear of all liens, encumbrances, security interests, charges or claims
(i) in respect of which a financing statement under the Uniform Commercial Code
of the State of Oregon naming the Managing General Partner as a debtor is on
file in the offices of the Secretary of State of the State of Oregon or
(ii) otherwise known to us, without independent investigation, other than those
created by or arising under the Delaware Act.
(d) At the Closing Date after giving effect to the issuance of
the Firm Units, the capitalization of the Partnership will consist of
____________ Common Units and 5,773,088 Subordinated Units, representing a 99%
limited partner interest in the Partnership, a 0.99% general partner interest
held by the Managing General Partner and a 0.01% general partner interest held
by the Special General Partner. All of the outstanding Subordinated Units and
Common Units of the Partnership have been duly authorized by the Partnership
Agreement, are validly issued and are fully paid and nonassessable (except as
nonassessability may be affected by matters described in the Prospectus under
the caption "The Partnership Agreement -- Limited Liability"). The
_____________ Units to be issued and sold to the Underwriters by the Partnership
hereunder and the limited partner interests represented thereby are duly
authorized by the Partnership Agreement and, when issued and delivered against
payment therefor as provided in the Underwriting
B-1
Agreement, will be validly issued, fully paid and nonassessable (except as such
nonassessability may be affected by matters described in the Prospectus under
the caption "The Partnership Agreement -- Limited Liability"). The Underwriters
will acquire the Units to be issued and sold by the Partnership free and clear
of any liens, encumbrances, security interests, charges or claims (i) in respect
of which a financing statement under the Uniform Commercial Code of the State of
Oregon naming the Managing General Partner, the Partnership or the Operating
Partnership is on file in the office of the Secretary of State of the State of
Oregon or (ii) otherwise known to us, without independent investigation, except
as created by this Agreement or by the Underwriters for any person who acquires
an interest in the Units through the Underwriters or as provided by the Delaware
Act.
(e) The Partnership and CP Acquisition are the sole limited
partners of the Operating Partnership, with limited partner interests of
98.1219% and 0.868%, respectively; such limited partner interest is duly
authorized by the Operating Partnership Agreement, was validly issued in
accordance with the Operating Partnership Agreement and is fully paid and
nonassessable (except as such nonassessability may be affected by matters
described in the Prospectus under the caption "The Partnership Agreement --
Limited Liability"); and the Partnership and CP Acquisition own such limited
partner interests in the Operating Partnership free and clear of all liens,
encumbrances, security interests, equities, charges or claims (i) in respect of
which a financing statement under the Uniform Commercial Code of the State of
Oregon naming the Partnership as a debtor is on file in the offices of the
Secretary of State of the State of Oregon or (ii) otherwise known to us, without
independent investigation, other than those created by or arising under the
Delaware Act.
(f) Except as described in the Prospectus or pursuant to the
Purchase Rights Agreement, there are no preemptive rights or other rights to
subscribe for or to purchase, nor any restriction upon the voting or transfer
of, any limited partner interests in the Partnership or the Operating
Partnership pursuant to either of the Partnership Agreements or, to our
knowledge, any agreement or other instrument to which the Partnership or the
Operating Partnership is a party or by which either of them may be bound. To
our knowledge, except as described in the Prospectus, neither the filing of the
Registration Statement nor the offering or sale of the Units as contemplated by
this Agreement gives rise to any rights, other than those which have been waived
or satisfied, for or relating to the registration of any Units or other
securities of the Partnership. The Common Units and the Subordinated Units and
the Partnership Agreements conform in all material respects to the descriptions
thereof contained in the Prospectus. To our knowledge, except as disclosed in
the Prospectus, there are no outstanding options or warrants to purchase any
Common Units or Subordinated Units. The Partnership has all requisite power and
authority to issue, sell and deliver the Units to be sold by it, in accordance
with and upon the terms and conditions set forth in this Agreement and in the
Registration Statement and Prospectus. All action required to be taken by the
Partnership for the authorization, issuance, sale and delivery of the Units to
be sold by it has been validly taken.
B-2
(g) This Agreement has been duly authorized, executed and
delivered by the Partnership and the Operating Partnership.
(h) The Partnership Agreement has been duly authorized, executed
and delivered by the General Partners and is a valid and legally binding
agreement of the General Partners, enforceable against the General Partners in
accordance with its terms; the Operating Partnership Agreement has been duly
authorized, executed and delivered by the parties thereto and is a valid and
legally binding agreement of such parties, enforceable against such parties in
accordance with its terms; PROVIDED THAT, with respect to each agreement
described in this paragraph (h), the enforceability thereof may be limited by
(i) bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or
similar laws relating to or affecting creditors' rights and remedies generally,
(ii) public policy, applicable law relating to fiduciary duties and the judicial
imposition of an implied covenant of good faith and fair dealing and
(iii) general equitable principles (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
(i) Neither the issuance and sale by the Partnership of the
Units to be sold by it hereunder, nor the execution, delivery and performance of
this Agreement by the Partnership or the Operating Partnership, as the case may
be, nor the consummation of the transactions contemplated herein and therein at
any Closing Date, will conflict with or result in any violation of the
Partnership Agreement or the Operating Partnership Agreement, nor will such
action result in any violation of any law, statute, rule, regulation or, to our
knowledge, order of any court applicable to any of the Crown Entities or having
jurisdiction over any of them or any of their properties or result in the
creation or imposition of any lien, charge, claim or encumbrance upon any
property or asset of the Crown Entities. No permit, consent, approval,
authorization or order under the Delaware Act or the Delaware General
Corporation Law is required in connection with the consummation by the Crown
Entities of the transactions contemplated hereby, except such as have been
obtained.
(j) None of the Crown Entities is (a) a "holding company" or a
"subsidiary company" of a "holding company" or an "affiliate" thereof, within
the meaning of the Public Utility Holding Company Act of 1935, as amended, or
(b) an "investment company" within the meaning of the Investment Company Act of
1940, and the rules and regulations thereunder.
(k) The Common Units are listed on the NYSE, and the Units have
been approved for listing on the NYSE, subject only to official notice of
issuance and evidence of satisfactory distribution.
(l) The Registration Statement was declared effective under the
Act on October 21, 1997; the Prospectus and Prospectus Supplement were filed
with the Commission pursuant to subparagraph (2) of Rule 424(b) of the Rules and
Regulations on December __, 1998; and to our knowledge no stop order suspending
the effectiveness of the Registration Statement has been issued and no
proceeding for that purpose has been initiated or threatened by the Commission.
B-3
(m) The Registration Statement and the Prospectus and any
further amendments and supplements thereto made by the Partnership prior to the
date hereof (other than the financial statements and related schedules and other
statistical data included therein, as to which such counsel need express no
opinion) comply as to form in all material respects with the requirements of the
Act and the Rules and Regulations.
(n) All summaries and descriptions of statutes, regulations and
case law in the sections of the Prospectus captioned "Conflicts of Interest and
Fiduciary Responsibility" and "The Partnership Agreement" are accurate in all
material respects and fairly present in all material respects the information
required to be shown. To our knowledge, the description of the investigation by
the United States Fish and Wildlife Service in the section of the Form 10-K
captioned "Business - Federal and State Regulation" is accurate in all respects
and fairly presents in all material respects the information required to be
shown. To our knowledge, there is no legal or governmental proceeding pending
or threatened to which the Partnership or the Operating Partnership is a party
or to which any of their respective properties is subject that is required to be
disclosed in the Prospectus and is not so disclosed.
(o) The statements contained in the Prospectus under the caption
"Tax Considerations," insofar as they describe federal statutes, rules and
regulations, constitute a fair summary thereof that is accurate in all material
respects. The opinion of Xxxxxxx & Xxxxx L.L.P. filed as Exhibit 8.1 to the
Registration Statement is confirmed and you may rely upon such opinion as if it
were addressed to you.
In addition, such counsel shall state that it has participated in
conferences with officers and other representatives of the Crown Entities and
the independent public accountants of the Crown Entities and your
representatives, at which the contents of the Registration Statement and the
Prospectus and related matters were discussed and, although such counsel is not
passing upon, and does not assume responsibility for the accuracy, completeness
or fairness of, any portion of the Registration Statement and the Prospectus, as
amended or supplemented (except to the extent specified in such counsel's
opinion), nothing has come to the attention of such counsel that cause such
counsel to believe that, as of its effective date, the Registration Statement or
any further amendment thereto made by the Partnership prior to such Closing Date
(other than (i) the financial statements included or incorporated by reference
therein, including the notes and schedules thereto and the auditors' report
thereon, (ii) the other historical, pro forma and projected financial
information and the statistical and accounting information included or
incorporated by reference therein and (iii) the exhibits thereto, as to which
such counsel need express no opinion) contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading or that, as of its
date and as of the Closing Date, the Prospectus or any further amendment or
supplement thereto made by the Partnership prior to such Closing Date (other
than (i) the financial statements included or incorporated by reference therein,
including the notes and schedules thereto and the auditors' report thereon and
(ii) the other historical, pro forma and projected financial information and the
statistical and accounting information included or incorporated by reference
therein, as to which such counsel
B-4
need express no opinion) contained an untrue statement of a material fact or
omitted to state a material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading.
In rendering such opinion, such counsel may (i) rely in respect of
matters of fact upon certificates of the Partnership and the Operating
Partnership and of officers and employees of the General Partners and upon
information obtained from public officials, (ii) assume that the signatures on
all documents examined by such counsel are genuine and (iii) state that they
express no opinion with respect to state or local taxes or tax statutes to which
any of the limited partners of the Partnership, the General Partners, the
Partnership or the Operating Partnership may be subject, (iv) except to the
extent provided in paragraphs (b), (c), (d) and (e) hereof, with respect to
ownership of partnership interests, state that they express no opinion with
respect to the title of any of the General Partners, the Partnership or the
Operating Partnership to any real or personal property and that such counsel has
not made any review of specific property or facilities or title files relating
to any such properties, (v) state that their opinion is limited to federal laws,
the Delaware Act and the Delaware General Corporation Law and (vi) state that,
with respect to the factual matters on which its opinion in the second sentence
of Paragraph (n) is based, such counsel has relied solely on the facts disclosed
in the memorandum dated ________, 1998 to such counsel from Xxxxx & Gates,
L.L.P. Such counsel may also provide that the foregoing opinions are subject to
the effect of generally applicable rules of law that may, where less than all of
a contract may be enforceable, limit the enforceability of the balance of the
contract to circumstances in which the unenforceable portion is not an essential
part of the agreed exchange.
In rendering such opinion, such counsel shall state that all
references in their opinion to the Underwriting Agreement shall include the
Price Determination Agreement.
B-5
EXHIBIT C
OPINION OF BALL XXXXX LLP
(a) The Partnership is duly qualified or registered as a foreign
limited partnership for the transaction of business under the laws of the States
of Oregon and Idaho and to our knowledge, such jurisdictions are the only
jurisdictions in which the character of the business conducted by the
Partnership or the location of the properties owned or leased by it make such
qualification or registration necessary (except where the failure to so qualify
or register could not reasonably be expected to have a material adverse effect
on the condition (financial or otherwise), results of operations or business of
the Crown Entities, taken as a whole, or to subject the Partnership or the
limited partners of the Partnership to any material liability or disability).
(b) The Operating Partnership is duly qualified or registered as
a foreign limited partnership for the transaction of business under the laws of
the States of California, Colorado, Washington, Oregon, Montana, Utah, Idaho and
Arizona and to our knowledge, such jurisdictions are the only jurisdictions in
which the character of the business conducted by the Operating Partnership or
the location of the properties owned or leased by it make such qualification or
registration necessary (except where the failure to so qualify or register could
not reasonably be expected to have a material adverse effect on the condition
(financial or otherwise), results of operations or business of the Crown
Entities, taken as a whole, or to subject the Operating Partnership or
Partnership to any material liability or disability).
(c) Each of the Special General Partner, HS Corp., CP
Acquisition and CP Air has been duly incorporated and is validly existing in
good standing as a corporation under the laws of the State of Oregon. Each of
the Managing General Partner and the Special General Partner has all necessary
partnership or corporate power and authority to own or lease its properties and
conduct its business and to execute and deliver this Agreement and perform its
obligations hereunder. The Managing General Partner is duly qualified or
registered as a foreign limited partnership for the transaction of business
under the laws of the States of California, Oregon, Utah, Washington, Montana
and Idaho; the Special General Partner is duly qualified or registered as a
foreign corporation for the transaction of business and is in good standing
under the laws of the State of Idaho; and to our knowledge, such jurisdictions
are the only jurisdictions in which the character of the business conducted by
the General Partners or the location of the properties owned or leased by them
make such qualification or registration necessary (except where the failure to
so qualify or register could not reasonably be expected to have a material
adverse effect on the condition (financial or otherwise), results of operations
or business of the Crown Entities, taken as a whole, or to subject the
Partnership or the limited partners of the Partnership to any material liability
or disability).
(d) Except as provided in the Purchase Rights Agreement, the
Special General Partner owns its general partner interest in the Partnership
free and clear of all liens,
C-1
encumbrances, security interests, equities, charges or claims (other than those
created by or arising under the Delaware Act) known to us without independent
investigation other than a search for financing statements under the Uniform
Commercial Code of the State of Oregon on file in the offices of the Secretary
of State of the State of Oregon as of ___________, 1998, naming the Special
General Partner as a debtor.
(e) HS Corp. and Fremont Timber are the sole general partners of
the Managing General Partner with 0.3% and 0.7% general partner interests,
respectively; such general partner interests are duly authorized by the Second
Amended and Restated Agreement of Limited Partnership of the Managing General
Partner and were validly issued to each of HS Corp. and Fremont Timber; and,
except as provided in the Purchase Rights Agreement, HS Corp. owns its general
partner interest in the Managing General Partner free and clear of all liens,
encumbrances, security interests, equities, charges or claims (other than those
created by or arising under the Delaware Act) known to us without independent
investigation other than a search for financing statements under the Uniform
Commercial Code of the State of Oregon on file in the offices of the Secretary
of State of the State of Oregon as of _____________, 1998, naming HS Corp. as a
debtor.
(f) Fremont Timber, Xxxxx and Xxxxx are the sole limited
partners of the Managing General Partner, with 73.9%, 23.2% and 1.9% limited
partner interests, respectively; such limited partner interests are duly
authorized by the Second Amended and Restated Agreement of Limited Partnership
of the Managing General Partner, were validly issued in accordance therewith and
are fully paid; and, except as provided in the Purchase Rights Agreement, Xxxxx
and Xxxxx own their respective limited partner interests in the Managing General
Partner free and clear of all liens, encumbrances, security interests, equities,
charges or claims (other than those created by or arising under the Delaware
Act) known to us without independent investigation other than searches for
financing statements under the Uniform Commercial Code of the State of Oregon on
file in the offices of the Secretary of State of the State of Oregon as of
____________, 1998, naming either of Xxxxx or Xxxxx as a debtor.
(g) Except as provided in the Purchase Rights Agreement, all of
the outstanding capital stock of HS Corp. is owned by Xxxxx and Xxxxx free and
clear of all liens, encumbrances, security interests, equities, charges or
claims known to us without independent investigation other than searches for
financing statements under the Uniform Commercial Code of the State of Oregon on
file in the offices of the Secretary of State of the State of Oregon as of
___________, 1998, naming either of Xxxxx or Xxxxx as a debtor. All of the
outstanding capital stock of the Special General Partner is owned by Fremont,
Xxxxx and Xxxxx, is duly authorized and validly issued and is fully paid and
nonassessable. Except as provided in the Purchase Rights Agreement, all of the
outstanding capital stock of the Special General Partner owned by Xxxxx and
Xxxxx is owned by them free and clear of all liens, encumbrances, security
interests, equities, charges or claims known to us without independent
investigation other than searches for financing statements under the Uniform
Commercial Code of the State of Oregon on file in the offices of the Secretary
of State of the State of Oregon as of ___________, 1998, naming either of Xxxxx
or Xxxxx as a debtor.
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(h) All of the outstanding capital stock of CP Acquisition is
duly authorized, validly issued, fully paid and nonassessable and is owned by CP
Air free and clear of all liens, encumbrances, security interests, equities,
charges or claims known to us without independent investigation other than a
search for financing statements under the Uniform Commercial Code of the State
of Oregon on file in the offices of the Secretary of State of the State of
Oregon as of _____________, 1998, naming CP Air as a debtor. All of the
outstanding capital stock of CP Air is duly authorized, validly issued, fully
paid and nonassessable and is owned by the Partnership free and clear of all
liens, encumbrances, security interests, equities, charges or claims known to us
without independent investigation other than a search for financing statements
under the Uniform Commercial Code of the State of Oregon on file in the offices
of the Secretary of State of the State of Oregon as of ______________, 1998,
naming the Partnership as a debtor.
(i) Except as described in the Prospectus or pursuant to the
Purchase Rights Agreement, there are no preemptive rights or other rights to
subscribe for or to purchase, nor any restrictions upon the voting or transfer
of, any limited partner interests or shares in any of the Crown Entities
pursuant to either of the Partnership Agreements, any articles or certificates
of incorporation or other governing documents or, to our knowledge, any
agreement or other instrument to which any of the Crown Entities is a party or
by which any of them may be bound. To our knowledge, neither the filing of the
Registration Statement nor the offering or sale of the Units as contemplated by
this Agreement gives rise to any rights, other than those which have been waived
or satisfied, for or relating to the registration of any Units or other
securities of the Partnership. To our knowledge, except as disclosed in the
Prospectus, there are no outstanding options or warrants to purchase any Common
Units or Subordinated Units.
(j) This Agreement has been duly authorized, executed and
delivered by each of the General Partners.
(k) Neither the issuance and sale by the Partnership of the
Units to be sold by it hereunder nor the execution, delivery and performance of
this Agreement by the Crown Entities which are parties thereto, nor the
consummation of the transactions contemplated herein, will conflict with or
result in a breach or violation of any of the terms or provisions of, or
constitute a default under (or an event which, with notice or lapse of time or
both, would constitute such a default), any indenture, mortgage, deed of trust,
loan agreement or other material agreement or instrument known to us to which
any of the Crown Entities is a party or by which any of them is bound or to
which any of the property or assets of any of them is subject, nor will such
action result in any violation of the provisions of the certificate of
incorporation, bylaws, agreement of limited partnership (excluding the
Partnership Agreements), or other governing documents of any of the Crown
Entities or any law, statute, rule, regulation or, to our knowledge, order of
any court applicable to any of the Crown Entities or having jurisdiction over
any of them or any of their properties or result in the creation or imposition
of any lien, charge, claim or encumbrance upon any property or asset of the
Crown Entities. Other than (i) permits, consents, approvals and similar
authorizations required under the Act and the securities or "Blue Sky" laws of
certain jurisdictions, (ii) such permits, consents, approvals and authorizations
which have been obtained and (iii) as set
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forth or contemplated in the Prospectus, no permit, consent, approval,
authorization or order of any court, governmental agency or body of the State of
Oregon or the United States is required in connection with the consummation by
the Crown Entities of the transactions contemplated hereby.
(l) To our knowledge, none of the Crown Entities is in
(i) breach or violation of the provisions of its agreement of limited
partnership, charter or bylaws or (ii) default (and no event has occurred which,
with notice or lapse of time or both, would constitute such a default) in the
due performance of any term, covenant or condition contained in any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which it is a party or by which it is bound or to which any of its properties is
subject, which default could reasonably be expected to have a material adverse
effect on the condition (financial or otherwise), results of operations or
business of the Crown Entities, taken as a whole.
(m) To our knowledge, other than as set forth in the Prospectus,
there are no legal or governmental proceedings pending or threatened to which
any of the Crown Entities is a party or of which any of their respective
properties is the subject which, if determined adversely to such person,
(i) would individually or in the aggregate reasonably be expected to have a
material adverse effect on the condition (financial or otherwise), results of
operations or business of the Crown Entities, taken as a whole, or (ii) would
impair or call into question the validity of this Agreement, the performance by
any of the Crown Entities of their obligations under this Agreement or the
transactions contemplated hereby.
(n) Except as described in the Prospectus, to our knowledge,
the Crown Entities possess all certificates, authorizations or permits issued by
the appropriate local, state or federal regulatory agencies or bodies necessary
to conduct the businesses currently (or, as described or contemplated in the
Prospectus, to be) operated by them, except for such certificates,
authorizations or permits which, if not obtained, would not reasonably be
expected to have, individually or in the aggregate, a material adverse effect
upon the condition (financial or otherwise), results of operations or business
of the Crown Entities, taken as a whole; and, to our knowledge, none of the
Crown Entities has received any notice of proceedings relating to the revocation
or modification of any such certificate, authorization or permit which,
individually or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would reasonably be expected to have a material adverse
effect upon the condition (financial or otherwise), results of operations or
business of the Crown Entities, taken as a whole.
(o) All summaries and descriptions of statutes and regulations
pertaining to log export restrictions, endangered species protection and
environmental protection and of governmental proceedings pertaining to the Crown
Entities' sourcing areas in the section of the Prospectus captioned "Risk
Factors -- Risks Inherent in the Partnership's Business," and in the section of
the Form 10-K captioned "Business -- Federal and State Regulation" are accurate
in all material respects and fairly present in all material respects the
information required to be shown. To our knowledge, there is no legal or
governmental proceeding pending or threatened to which any of the Crown Entities
is a party or to which any of their respective properties is subject that is
C-4
required to be disclosed in the Prospectus and is not so disclosed. To our
knowledge, there are no contracts or other documents that are required to be
summarized or described in the Prospectus or filed as exhibits to the
Registration Statement by the Act or by the Rules and Regulations that have not
been summarized or described in the Prospectus or filed as exhibits to the
Registration Statement.
In addition, such counsel shall state that it has participated in
conferences with officers and other representatives of the Crown Entities and
the independent public accountants of the Crown Entities and your
representatives, at which the contents of the Registration Statement and the
Prospectus and related matters were discussed and, although such counsel is not
passing upon, and does not assume responsibility for the accuracy, completeness
or fairness of, any portion of the Registration Statement and the Prospectus, as
amended or supplemented (except to the extent specified in such counsel's
opinion), nothing has come to the attention of such counsel that causes such
counsel to believe that as of its effective date, the Registration Statement or
any further amendment thereto made by the Partnership prior to each Closing Date
(other than (i) the financial statements included or incorporated by reference
therein, including the notes and schedules thereto and the auditors' report
thereon, (ii) the other historical, pro forma and projected financial
information and the statistical and accounting information included or
incorporated by reference therein and (iii) the exhibits thereto, as to which
such counsel need express no opinion) contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading or that, as of its
date and as of each Closing Date, the Prospectus or any further amendment or
supplement thereto made by the Partnership prior to such Closing Date (other
than (i) the financial statements included or incorporated by reference therein,
including the notes and schedules thereto and the auditors' report thereon and
(ii) the other historical, pro forma and projected financial information and the
statistical and accounting information included or incorporated by reference
therein, as to which such counsel need express no opinion) contained an untrue
statement of a material fact or omitted to state a material fact necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading.
In rendering such opinion, such counsel may (i) rely in respect of
matters of fact upon certificates of the Crown Entities and of officers and
employees of the General Partners and upon information obtained from public
officials, (ii) rely with respect to due qualification and good standing in
states other than Oregon on certificates of public officials of such states,
(iii) assume that all documents submitted to them as originals are authentic,
that all copies submitted to them conform to the originals thereof, and that the
signatures on all documents examined by such counsel are genuine, (iv) state
that their opinion is limited to federal laws (excluding, with respect to the
opinions contained in paragraphs (a) - (n) the federal securities laws), and the
laws of the State of Oregon, (v) rely wholly upon (without independent
investigation), and solely with respect to any matters covered by, the opinion
of Saltman & Xxxxxxx addressed to the Underwriters and such counsel with respect
to the opinion contained in paragraph (o) hereof relating to summaries and
descriptions of statutes and regulations pertaining to log export restrictions
and governmental proceedings pertaining to the Crown Entities' sourcing areas,
and (vi) state that any opinion which is given "to
C-5
their knowledge" is based solely upon matters actually known to attorneys of
their firm who are or have been regularly engaged in representation of the Crown
Entities and their predecessors and affiliates.
In rendering such opinion, such counsel shall state that all
references in their opinion to the Underwriting Agreement shall include the
Price Determination Agreement.
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EXHIBIT D
[Letterhead of officer or director]
Crown Pacific Partners, L.P.
PUBLIC OFFERING OF COMMON UNITS
December __, 1998
PaineWebber Incorporated
Xxxxxxx Xxxxx Barney Inc.
c/o PaineWebber Incorporated
1285 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
This letter is being delivered to you in connection with the proposed
Underwriting Agreement (the "Underwriting Agreement") among Crown Pacific
Partners, L.P., a Delaware limited partnership (the "Partnership"), Crown
Pacific, Ltd., Crown Pacific Management Limited Partnership, Crown Pacific
Limited Partnership and you (the "Underwriters"), relating to an underwritten
public offering of common units representing limited partner interests (the
"Common Units"), of the Partnership.
In consideration for the Underwriters entering into the Underwriting
Agreement, the undersigned hereby agrees that the undersigned will not, for a
period of 60 days after the date of the Prospectus (as defined in the
Underwriting Agreement), without the prior written consent of the Underwriters,
offer to sell, sell, contract to sell, grant any option to sell, or otherwise
dispose of, any Common Units or Subordinated Units.
If for any reason the Underwriting Agreement is terminated before the
Closing Date (as defined in the Underwriting Agreement), the agreement set forth
above shall likewise be terminated.
Yours very truly,
[Signature of officer or director]
[Name and address of officer or director]
D-1
EXHIBIT E
PaineWebber Incorporated
Xxxxxxx Xxxxx Xxxxxx Inc.
c/o PaineWebber Incorporated
1285 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
This letter is being delivered to you in connection with the proposed
Underwriting Agreement (the "Underwriting Agreement") among Crown Pacific
Partners, L.P., a Delaware limited partnership (the "Partnership"), Crown
Pacific, Ltd., Crown Pacific Management Limited Partnership, Crown Pacific
Limited Partnership, PaineWebber Incorporated and Xxxxxxx Xxxxx Barney Inc.
(collectively with PaineWebber Incorporated, the "Underwriters"), relating to an
underwritten public offering (the "Offering") of common units representing
limited partner interests (the "Common Units"), of the Partnership.
Simultaneously with the closing of the Offering, the Underwriters agree,
severally, to sell to Fremont Euro-Summit Limited, and Fremont Euro-Summit
Limited agrees to purchase from the Underwriters, at a price of $ ___ per Unit
(which is the purchase price per Common Unit paid by the Underwriters to the
Partnership in the Offering), ________ Common Units (the "Fremont Units").
In consideration for the Underwriters entering into the Underwriting
Agreement, the undersigned hereby agrees that the undersigned will not, for a
period of 60 days after the date of the Prospectus (as defined in the
Underwriting Agreement), without the prior written consent of the Underwriters,
offer to sell, sell, contract to sell, grant any option to sell, or otherwise
dispose of, the Fremont Units, except to affiliates (as defined in Rule 405 of
the Act); provided that such affiliate agrees to execute a similar letter.
Fremont Euro-Summit Limited represents and warrants that it is purchasing the
Fremont Units for investment purposes only and has no present intention to
resell the Fremont Units.
Yours very truly,
FREMONT EURO-SUMMIT LIMITED
By:
Name:
Title:
E-1
PAINEWEBBER INCORPORATED
XXXXXXX XXXXX XXXXXX INC.
By: PAINEWEBBER INCORPORATED
Name:
Title:
E-2
EXHIBIT F
PaineWebber Incorporated
Xxxxxxx Xxxxx Barney Inc.
c/o PaineWebber Incorporated
1285 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
This letter is being delivered to you in connection with the proposed
Underwriting Agreement (the "Underwriting Agreement") among Crown Pacific
Partners, L.P., a Delaware limited partnership (the "Partnership"), Crown
Pacific, Ltd., Crown Pacific Management Limited Partnership, Crown Pacific
Limited Partnership, PaineWebber Incorporated and Xxxxxxx Xxxxx Xxxxxx Inc.
(collectively with PaineWebber Incorporated, the "Underwriters"), relating to an
underwritten public offering (the "Offering") of common units representing
limited partner interests (the "Common Units"), of the Partnership.
Simultaneously with the closing of the Offering, the Underwriters agree,
severally, to sell to Xxxxx X. Xxxxx or an entity wholly owned by him, and
Xxxxx X. Xxxxx agrees to purchase from the Underwriters, at a price of $ ___ per
Unit (which is the purchase price per Common Unit paid by the Underwriters to
the Partnership in the Offering), ________ Common Units (the "Xxxxx Units").
In consideration for the Underwriters entering into the Underwriting
Agreement, the undersigned hereby agrees that the undersigned will not, for a
period of 60 days after the date of the Prospectus (as defined in the
Underwriting Agreement), without the prior written consent of the Underwriters,
offer to sell, sell, contract to sell, grant any option to sell, or otherwise
dispose of, any Common Units (including the Xxxxx Units) or Subordinated Units,
except to affiliates (as defined in Rule 405 of the Act); provided that such
affiliate agrees to execute a similar letter. Xx. Xxxxx represents and warrants
that he is purchasing the Xxxxx Units for investment purposes only and has no
present intention to resell the Xxxxx Units.
Yours very truly,
XXXXX X. XXXXX
------------------------------------------------
F-1
PAINEWEBBER INCORPORATED
XXXXXXX XXXXX BARNEY INC.
By: PAINEWEBBER INCORPORATED
Name:
Title:
F-2
