FORM OF UNDERWRITING AGREEMENT
[$150,000,000]
[Interest Rate] PASS THROUGH TRUST CERTIFICATES, SERIES 1998-A
FORT XXXXX OPERATING COMPANY, ISSUER
FORT XXXXX CORPORATION, GUARANTOR
UNDERWRITING AGREEMENT
Dated: ______________, 1998
[Date]
To the Underwriters
Named in Schedule I Hereto
Dear Sirs:
Fort Xxxxx Operating Company (formerly Xxxxx River Paper
Company), a Virginia corporation (the "Company"), in connection with the sale
and leaseback of the Company's interest in certain [assets] (the "Assets"),
proposes that [Wilmington Trust Company], as trustee (the "Pass Through
Trustee") under the Pass Through Trust Agreement dated as of [
] (the "Pass Through Trust Agreement"), between the Pass Through
Trustee, the Company and Fort Xxxxx Corporation, a Virginia corporation, as
guarantor ("Fort Xxxxx"), issue and sell its pass through trust certificates
(the "Certificates") in the aggregate principal amount and with the interest
rate and final distribution date set forth on Schedule I hereto to the
underwriters named in Schedule II hereto (the "Underwriters"), for whom you (the
"Representatives"), are acting as representatives. If the firm or firms listed
in Schedule II hereto include only the firm or firms listed in Schedule I
hereto, then the terms "Underwriters" and "Representatives", as used herein,
shall each be deemed to refer to such firm or firms.
Fort Xxxxx and the Company have filed with the Securities and
Exchange Commission (the "Commission") a registration statement on Form S-3
(File No. 333-63905), relating to certain pass through trust certificates,
including the Certificates, and the offering thereof from time to time in
accordance with Rule 415 of the Securities Act of 1933, as amended, and the
rules and regulations of the Commission thereunder (collectively the "Securities
Act"). The registration statement as amended at the date hereof, including the
exhibits thereto and the documents incorporated by reference therein, is herein
referred to as the "Registration Statement". The Registration Statement includes
a basic prospectus referred to below which, as supplemented from time to time,
will be used in connection with all offerings of such pass through certificates.
A prospectus supplement or supplements reflecting the terms of the Certificates,
the terms of the offering thereof and other matters relating to the Certificates
has been prepared and has been or will be filed (or mailed for filing) together
with the basic prospectus referred to below pursuant to Rule 424 under the
Securities Act (such prospectus supplement, in the form first filed on or after
the date hereof pursuant to Rule 424, is herein referred to as the "Prospectus
Supplement" and any such prospectus supplement in the form or forms filed prior
to the Prospectus Supplement is herein referred to as a "Preliminary Prospectus
Supplement"). The basic prospectus included in the Registration Statement and
relating to all offerings of pass through certificates under the Registration
Statement, as supplemented by the Prospectus Supplement, is herein called the
"Prospectus", except that, if such basic prospectus is amended on or prior to
the date on which the Prospectus Supplement is first filed (or mailed for
filing) pursuant to Rule 424, the term "Prospectus" shall refer to such basic
prospectus as so amended and as supplemented by the Prospectus Supplement, in
either case including the documents filed by Fort Xxxxx with the
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Commission pursuant to the Securities Exchange Act of 1934, as amended, and the
rules and regulations of the Commission thereunder (collectively, the "Exchange
Act"), that are incorporated by reference therein. Any reference herein to the
terms "amendment" or "supplement" with respect to the Registration Statement, to
the Prospectus, any Preliminary Prospectus Supplement or to any preliminary
prospectus shall be deemed to refer to and include any documents filed with the
Commission under the Exchange Act after the date hereof, the date the Prospectus
is filed (or mailed for filing) with the Commission, or the date of such
Preliminary Prospectus Supplement or preliminary prospectus, as the case may be,
and incorporated therein by reference pursuant to Item 12 of Form S-3 under the
Securities Act.
1. Definitions. As used in this Agreement, capitalized terms not
otherwise defined shall have the meanings specified in the Pass Through Trust
Agreement. The terms which follow, when used in this Agreement, shall have the
meanings indicated. The term "the Effective Date" shall mean each date that
Registration Statement No. 333-63905, any post-effective amendment or amendments
thereto and any Rule 462(b) Registration Statement referred to below became or
become effective. "Execution Time" shall mean the date and time that this
Agreement is executed and delivered by the parties hereto. "Basic Prospectus"
shall mean the prospectus referred to in the immediately preceding paragraph
above contained in Registration Statement No. 333-63905 at its Effective Date.
"Preliminary Final Prospectus" shall mean any preliminary prospectus supplement
to the Basic Prospectus which describes the Certificates and the offering
thereof and is used prior to filing of the Final Prospectus. "Final Prospectus"
shall mean the prospectus supplement relating to the Certificates that is first
filed pursuant to Rule 424(b) after the Execution Time, together with the Basic
Prospectus. "Registration Statement" shall mean the registration statement
referred to in paragraph (a) above, including incorporated documents, exhibits
and financial statements, as amended at the Execution Time (or, if not effective
at the Execution Time, in the form in which it shall become effective) and, in
the event any post-effective amendment thereto becomes effective prior to the
Closing Date (as hereinafter defined), shall also mean such registration
statement as so amended. Such term shall include any Rule 430A Information
deemed to be included therein at the Effective Date as provided by Rule 430A.
"Rule 415", "Rule 424", "Rule 430A" and "Regulation S-K" refer to such rules or
regulations of the Commission under the Securities Act. "Rule 430A Information"
means information with respect to the Certificates and the offering thereof
permitted to be omitted from the Registration Statement when it becomes
effective pursuant to Rule 430A. Any reference herein to the Registration
Statement, the Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus shall be deemed to 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 any Effective Date of the Registration Statement or
the issue date of the Basic Prospectus, any Preliminary Final Prospectus or the
Final Prospectus, as the case may be; and any reference herein to the terms
"amend", "amendment" or "supplement" with respect to the Registration Statement,
the Basic Prospectus, any Preliminary Final Prospectus or the Final Prospectus
shall be deemed to refer to and include the filing of any document under the
Exchange Act on or before any Effective Date of the Registration Statement or
the issue date of the Basic Prospectus, any Preliminary Final Prospectus or the
Final Prospectus, as the case may be, deemed to be incorporated therein
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by reference. Any Registration Statement filed pursuant to Rule 462(b) of the
Securities Act is herein referred to as the "Rule 462(b) Registration
Statement," and after such filing the term "Registration Statement" shall
include the Rule 462(b) Registration Statement. For purposes of this Agreement,
all references to the Registration Statement, any Preliminary Final Prospectus,
the Final Prospectus or any amendment or supplement to the foregoing shall be
deemed to include the copy filed with the Commission pursuant to XXXXX. A
"Non-Delayed Offering" shall mean an offering of securities which is intended to
commence promptly after the effective date of a registration statement, with the
result that, pursuant to Rules 415 and 430A, all information (other than Rule
430A Information) with respect to the securities so offered is required under
the Securities Act to be included in such registration statement at the
effective date thereof. A "Delayed Offering" shall mean an offering of
securities pursuant to Rule 415 which does not commence promptly after the
effective date of a registration statement, with the result that only
information required pursuant to Rule 415 need be included in such registration
statement at the effective date thereof with respect to the securities so
offered. Whether the offering of the Certificates is a Non-Delayed Offering or a
Delayed Offering shall be set forth in Schedule I hereto.
2. Representations and Warranties. Fort Xxxxx and the Company jointly
and severally represent and warrant to, and agree with, each Underwriter as set
forth below in this Section 2.
(a) If the offering of the Certificates is a Delayed Offering
(as specified in Schedule I hereto), paragraph (i) below is applicable
and, if the offering of the Certificates is a Non-Delayed Offering (as
so specified), paragraph (ii) below is applicable.
(i) Fort Xxxxx and the Company meet the requirements
for the use of Form S-3 under the Securities Act, and have
filed with the Securities and Exchange Commission (the
"Commission") a registration statement (file number 333-63905)
on such Form, including a basic prospectus, for registration
under the Act of the offering and sale of the Certificates.
Fort Xxxxx and the Company may have filed one or more
amendments thereto, and may have used a Preliminary Final
Prospectus, each of which has previously been furnished to
you. The registration statement, as so amended, and any Rule
462(b) Registration Statement has become effective and no stop
order suspending the effectiveness of the Registration
Statement or any Rule 462(b) Registration Statement has been
issued under the Securities Act and no proceedings for that
purpose have been instituted or are pending or, to the
knowledge of Fort Xxxxx or the Company, are contemplated by
the Commission. The offering of the Certificates is a Delayed
Offering and, although the Basic Prospectus may not include
all the information with respect to the Certificates and the
offering thereof required by the Securities Act to be included
in the Final Prospectus, the Basic Prospectus includes all
such material information required by the Securities Act to be
included therein as of the Effective Date; provided, however,
that neither Fort Xxxxx nor the Company makes any
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representations or warranties as to (i) that part of the
Registration Statement which shall constitute the Statement of
Eligibility and Qualification (Form T-1) under the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act")
of the Trustee or (ii) the information contained in or omitted
from the Registration Statement or the Final Prospectus (or
any supplement thereto) in reliance upon and in conformity
with information furnished in writing to Fort Xxxxx or the
Company by or on behalf of any Underwriter through the
Representatives specifically for use in connection with the
preparation of the Registration Statement or the Final
Prospectus (or any supplement thereto). Fort Xxxxx and the
Company will next file with the Commission pursuant to Rules
415 and 424(b)(2) or (5) a final supplement to the form of
prospectus included in Registration Statement No. 333-63905
relating to the Certificates and the offering thereof. As
filed, such final prospectus supplement shall include all
required material information with respect to the Certificates
and the offering thereof.
(ii) Fort Xxxxx and the Company meet the requirements
for the use of Form S-3 under the Securities Act and have
filed with the Commission a registration statement (file
number 333-63905) on such Form, including a basic prospectus,
for registration under the Securities Act of the offering and
sale of the Certificates. Fort Xxxxx and the Company may have
filed one or more amendments thereto, including a Preliminary
Final Prospectus, each of which has previously been furnished
to you. Fort Xxxxx and the Company will next file with the
Commission either (x) a final prospectus supplement relating
to the Certificates in accordance with Rules 430A and
424(b)(2) or (5), or (y) prior to the effectiveness of the
registration statement, an amendment to such registration
statement, including the form of final prospectus supplement.
In the case of clause (x), Fort Xxxxx and the Company have
included in such registration statement, as amended at the
Effective Date, all material information (other than Rule 430A
Information) required by the Securities Act to be included in
the Final Prospectus with respect to the Certificates and the
offering thereof; provided, however, that neither Fort Xxxxx
nor the Company makes any representations or warranties as to
(i) that part of the Registration Statement which shall
constitute the Statement of Eligibility and Qualification
(Form T-1) under the Trust Indenture Act of the Trustee or
(ii) the information contained in or omitted from the
Registration Statement or the Final Prospectus (or any
supplement thereto) in reliance upon and in conformity with
information furnished in writing to Fort Xxxxx or the Company
by or on behalf of any Underwriter through the Representatives
specifically for use in connection with the preparation of the
Registration Statement or the Final Prospectus (or any
supplement thereto). As filed, such final prospectus
supplement or such amendment and form of final prospectus
supplement shall contain all Rule 430A Information, together
with all other such required material information, with
respect to the Certificates and the offering thereof.
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(b) On the Effective Date, the Registration Statement did or
will, and when the Final Prospectus is first filed (if required) in
accordance with Rule 424(b) and on the Closing Date, the Final
Prospectus (and any supplement thereto) will, comply in all material
respects with the applicable requirements of the Securities Act, the
Exchange Act, and the Trust Indenture Act; on the Effective Date and on
the Closing Date, the Registration Statement did not or will not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to
make the statements therein not misleading; on the Effective Date and
on the Closing Date the Pass Through Trust Agreement did or will comply
in all material respects with the requirements of the Trust Indenture
Act and the rules of the Commission thereunder; and, on the Effective
Date, the Final Prospectus, if not filed pursuant to Rule 424(b), did
not or will not, and on the date of any filing pursuant to Rule 424(b)
and on the Closing Date, the Final Prospectus (together with any
supplement thereto) will not, include any untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that neither
Fort Xxxxx nor the Company makes any representations or warranties as
to (i) that part of the Registration Statement which shall constitute
the Statement of Eligibility and Qualification (Form T-1) under the
Trust Indenture Act of the Trustee or (ii) the information contained in
or omitted from the Registration Statement or the Final Prospectus (or
any supplement thereto) in reliance upon and in conformity with
information furnished in writing to Fort Xxxxx or the Company by or on
behalf of any Underwriter through the Representatives specifically for
use in connection with the preparation of the Registration Statement or
the Final Prospectus (or any supplement thereto). Each Preliminary
Final Prospectus and the Final Prospectus delivered to the Underwriters
for use in connection with the offering was identical to the
electronically transmitted copies thereof filed with the Commission
pursuant to the Commission's Electronic Data Gathering, Analysis and
Retrieval System ("XXXXX") except to the extent permitted by Regulation
S-T.
(c) The Company, Fort Xxxxx Fiber Company ("FJFC") and Fort
Xxxxx N.V. (each a "Significant Subsidiary," and collectively the
"Significant Subsidiaries") and Fort Xxxxx Maine, Inc., are the only
directly-owned "significant subsidiaries" of Fort Xxxxx (as such term
is defined in Regulation S-X).
(d) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as
otherwise stated therein, (i) there has been no material adverse change
in the condition, financial or otherwise, or in the earnings or
business affairs of Fort Xxxxx and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business
(a "Material Adverse Effect"), and (ii) there have been no transactions
entered into by Fort Xxxxx or any of its subsidiaries, other than those
in the ordinary course of business, which are material with respect to
Fort Xxxxx and its subsidiaries considered as one enterprise.
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(e) This Agreement has been duly authorized, executed and
delivered by Fort Xxxxx and the Company and constitutes a valid and
binding obligation of Fort Xxxxx and the Company. The Pass Through
Trust Agreement has been duly qualified under the Trust Indenture Act
and the Pass Through Trust Agreement, the Parent Guaranty (as defined
in the Basic Prospectus) and each other Operative Document to which
Fort Xxxxx and/or the Company is, or is to be a party, have each been
duly authorized by Fort Xxxxx and/or the Company, as the case may be,
and, when duly executed and delivered by Fort Xxxxx and/or the Company,
as the case may be, constitute valid and binding agreements of Fort
Xxxxx and/or the Company, enforceable against Fort Xxxxx and/or the
Company in accordance with their terms, subject to (i) bankruptcy,
insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or similar laws
affecting enforcement of creditors' rights generally, (ii) general
principles of equity (whether considered in a proceeding in equity or
at law), and (iii) public policy considerations, which may limit the
enforceability of certain indemnities and other provisions (clauses
(i), (ii) and (iii) being referred to collectively hereinafter as the
"Enforceability Exceptions"). The enforceability of the Leases may be
limited by applicable law which may affect the remedies provided
therein, which laws, however, do not make such remedies inadequate for
the practical realization of the rights and benefits intended to be
provided thereby.
(f) The Pass Through Trust Agreement has been duly authorized,
and, at the Closing Date, will have been duly executed by the Pass
Through Trustee and, when delivered will constitute the valid and
binding agreement of the Pass Through Trustee in accordance with its
terms, except as such enforceability may be limited by the
Enforceability Exceptions.
(g) The Certificates have been duly authorized and, at the
Closing Date, will have been duly executed by the Pass Through Trustee
and, when authenticated, issued and delivered in the manner provided
for in the Pass Through Trust Agreement and delivered against payment
of the purchase price therefor as provided in this Agreement, will
constitute valid and binding obligations of the Pass Through Trustee,
enforceable against the Pass Through Trustee in accordance with their
terms, subject to the Enforceability Exceptions, and will be in the
form contemplated by, and entitled to the benefits of, the Pass Through
Trust Agreement. The Certificates and the Pass Through Trust Agreement
will conform in all material respects to the respective statements
relating thereto contained in the Basic Prospectus and the Final
Prospectus and will be in substantially the respective forms filed or
incorporated by reference, as the case may be, as exhibits to the
Registration Statement.
(h) The execution, delivery and performance of this Agreement,
the Pass Through Trust Agreement, the Parent Guaranty and each other
Operative Document to which Fort Xxxxx and/or the Company is, or is to
be a party, by Fort Xxxxx and/or the Company and the consummation of
the transactions contemplated herein and in the
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Registration Statement (including the issuance and sale of the
Certificates and the use of the proceeds from the sale of the
Certificates as described in the Prospectus under the caption "Use of
Proceeds") and compliance by Fort Xxxxx and the Company with their
obligations hereunder and under the Pass Through Trust Agreement, the
Parent Guaranty, and each other Operative Document to which Fort Xxxxx
and/or the Company is, or is to be a party, and the Certificates have
been duly authorized by all necessary corporate action and do not and
will not, whether with or without the giving of notice or passage of
time or both, conflict with or constitute a breach of, or default or
Repayment Event (as defined below) under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or
assets of Fort Xxxxx or the Significant Subsidiaries pursuant to, any
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note,
lease or other agreement or instrument to which Fort Xxxxx or any of
the Significant Subsidiaries is a party or by which it or any of them
may be bound, or to which any of the property or assets of Fort Xxxxx
or any Significant Subsidiary is subject (except for such conflicts,
breaches or defaults or liens, charges or encumbrances that would not
result in a Material Adverse Effect), nor will such action result in
any violation of the provisions of the charter or by-laws of Fort Xxxxx
or any Significant Subsidiary, or any applicable law, statute, rule,
regulation, judgment, order, writ or decree of any government,
government instrumentality or court, domestic or foreign, known to Fort
Xxxxx or the Company having jurisdiction over Fort Xxxxx or any
Significant Subsidiary or any of their respective assets, properties or
operations which would result in a Material Adverse Effect. As used
herein, a "Repayment Event" means any event or condition which gives
the holder of any note, debenture or other evidence of indebtedness (or
any person acting on such holder's behalf) the right to require the
repurchase, redemption or repayment of all or a portion of such
indebtedness by Fort Xxxxx or any subsidiary.
(i) No filing with, or authorization, approval, consent,
license, order, registration, qualification or decree of, any court or
governmental authority or agency is necessary or required for the
performance by Fort Xxxxx or the Company of their obligation hereunder,
in connection with the offering, issuance or sale of the Certificates
hereunder or the consummation of the transactions contemplated by this
Agreement or for the due execution, delivery or performance of the Pass
Through Trust Agreement, the Parent Guaranty, and each other Operative
Document to which Fort Xxxxx and/or the Company is, or is to be a
party, by Fort Xxxxx and/or the Company, as the case may be, except
such as have been already obtained, and except for such that would not
reasonably be expected to have a Material Adverse Effect or as may be
required under the Securities Act or state securities laws and except
for the qualification of the Pass Through Trust Agreement under the
Trust Indenture Act.
(j) Except as disclosed in the Registration Statement
(including the documents incorporated therein by reference), or as
would not, individually or in the aggregate, have a Material Adverse
Effect:
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(i) Fort Xxxxx and the Significant Subsidiaries (A)
are in compliance with all, and are not subject to any
asserted liability or, to Fort Xxxxx or the Company's
knowledge, any liability, in each case with respect to any,
applicable Environmental Laws (as defined below), (B) hold or
have applied for all Environmental Permits (as defined below)
and (C) are in compliance with their respective Environmental
Permits;
(ii) neither Fort Xxxxx nor any Significant
Subsidiary has received any written notice, demand, letter,
claim or request for information alleging that Fort Xxxxx or
any of its subsidiaries may be in violation of, or liable
under, any Environmental Law;
(iii) neither Fort Xxxxx nor any Significant
Subsidiary (A) has entered into or agreed to any consent
decree or order or is subject to any judgment, decree or
judicial order relating to compliance with Environmental Laws,
Environmental Permits or the investigation, sampling,
monitoring, treatment, remediation, removal or cleanup of
Hazardous Materials (as defined below) and, to the knowledge
of Fort Xxxxx, no investigation, litigation or other
proceeding is pending or threatened in writing with respect
thereto, or (B) is an indemnitor in connection with any
threatened or asserted claim by any third-party indemnitee for
any liability under any Environmental Law or relating to any
Hazardous Materials; and
(iv) none of the real property owned or leased by
Fort Xxxxx or any Significant Subsidiary is listed or, to the
knowledge of the Company, proposed for listing on the
"National Priorities List" under CERCLA, as updated through
the date hereof, or any similar state or foreign list of sites
requiring investigation or cleanup.
For purposes of this Agreement:
"CERCLA" means Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended as of the date hereof.
"Environmental Laws" means any federal, state, local or foreign
statute, law, ordinance, regulation, rule, code, treaty, writ or order and any
enforceable judicial or administrative interpretation thereof, including any
judicial or administrative order, consent decrees, judgment, stipulation,
injunction, permit, authorization, policy, opinion, or agency requirement, in
each case having the force and effect of law, relating to the pollution,
protection, investigation or restoration of the environment, health and safety
or natural resources, including, without limitation, those relating to the use,
handling, presence, transportation, treatment, storage, disposal, release,
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threatened release or discharge of Hazardous Materials or noise, odor, wetlands,
pollution, contamination or any injury or threat of injury to persons or
property.
"Environmental Permits" means any permit, approval, identification
number, license and other authorization required under any applicable
Environmental Law.
"Hazardous Materials" means (a) any petroleum, petroleum by-products or
breakdown products, radioactive materials, asbestos-containing materials or
polychlorinated biphenyls or (b) any chemical, material or other substance
defined or regulated as toxic or hazardous or as a pollutant or contaminant or
waste under any applicable Environmental Law.
3. Purchase and Sale. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, Fort Xxxxx
and the Company agree to cause the Pass Through Trustee to sell to each
Underwriter, and each Underwriter agrees, severally and not jointly, to purchase
from the Pass Through Trustee, at the purchase price set forth in Schedule I
hereto the principal amount of the Certificates set forth opposite each
Underwriter's name in Schedule II hereto, plus any additional principal amount
of Certificates which such Underwriter may become obligated to purchase pursuant
to the provisions of Section 9 hereof, except that, if Schedule I hereto
provides for the sale of Certificates pursuant to delayed delivery arrangements,
the respective principal amounts of Certificates to be purchased by the
Underwriters shall be as set forth in Schedule II hereto less the respective
amounts of Contract Securities determined as provided below. Certificates to be
purchased by the Underwriters are herein sometimes called the "Underwriters'
Securities" and Certificates to be purchased pursuant to Delayed Delivery
Contracts as hereinafter provided are herein called "Contract Securities".
If so provided in Schedule I hereto, the Underwriters are
authorized to solicit offers to purchase Certificates from the Company pursuant
to delayed delivery contracts ("Delayed Delivery Contracts"), [substantially in
the form of Schedule III hereto but with such changes therein as the Company may
authorize or approve.] The Underwriters will endeavor to make such arrangements
and, as compensation therefor, the Company will pay to the Representatives, for
the account of the Underwriters, on the Closing Date, the percentage set forth
in Schedule I hereto of the principal amount of the Certificates for which
Delayed Delivery Contracts are made. Delayed Delivery Contracts are to be with
institutional investors, including commercial and savings banks, insurance
companies, pension funds, investment companies and educational and charitable
institutions. The Company will enter into Delayed Delivery Contracts in all
cases where sales of Contract Securities arranged by the Underwriters have been
approved by the Company but, except as the Company may otherwise agree, each
such Delayed Delivery Contract must be for not less than the minimum principal
amount set forth in Schedule I hereto and the aggregate principal amount of
Contract Securities may not exceed the maximum aggregate principal amount set
forth in Schedule I hereto. The Underwriters will not have any responsibility in
respect of the validity or performance of Delayed Delivery Contracts. The
principal amount of Certificates to be purchased by each Underwriter as set
forth in Schedule II hereto shall be reduced by an amount which shall bear the
same proportion to the total principal
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amount of Contract Securities as the principal amount of Certificates set forth
opposite the name of such Underwriter bears to the aggregate principal amount
set forth in Schedule II hereto, except to the extent that you determine that
such reduction shall be otherwise than in such proportion and so advise the
Company in writing; provided, however, that the total principal amount of
Certificates to be purchased by all Underwriters shall be the aggregate
principal amount set forth in Schedule II hereto less the aggregate principal
amount of Contract Securities.
4. Delivery and Payment. Delivery of and payment for the Underwriters'
Securities shall be made on the date and at the time specified in Schedule I
hereto, which date and time may be postponed by agreement between Fort Xxxxx,
the Representatives and the Company or as provided in Section 9 hereof (such
date and time of delivery and payment for the Underwriters' Securities being
herein called the "Closing Date"). Delivery of the Underwriters' Securities
shall be made to the Representatives for the respective accounts of the several
Underwriters against payment by the several Underwriters through the
Representatives of the purchase price thereof to the Pass Through Trustee by
wire transfer of immediately available funds to a bank account designated by the
Pass Through Trustee. Delivery of the Underwriters' Securities shall be made at
such location as the Representatives shall reasonably request at least one
business day in advance of the Closing Date and payment for the Certificates
shall be made at the office specified in Schedule I hereto. Certificates for the
Underwriters' Securities shall be registered in such names and in such
denominations as the Representatives may request not less than two full business
days in advance of the Closing Date. Documents required to be delivered on the
Closing Date shall be delivered at the offices of [ ].
Fort Xxxxx and the Company agree to have the Underwriters'
Securities available for inspection, checking and packaging by the
Representatives in New York, New York, not later than 1:00 PM on the business
day prior to the Closing Date.
5. Agreements. Fort Xxxxx and the Company agree with the several
Underwriters that:
(a) Fort Xxxxx and the Company will use their best efforts to
qualify the Pass Through Trust Agreement under the Trust Indenture Act
and to cause the Registration Statement, if not effective at the
Execution Time, and any amendment thereto, to become effective. Prior
to the termination of the offering of the Certificates, the Company
will not file any amendment of the Registration Statement or supplement
(including the Final Prospectus or any Preliminary Final Prospectus) to
the Basic Prospectus (other than (i) subject to Section 5(f), any
prospectus supplement relating to the offering of other securities
registered under the Registration Statement and (ii) other than any
document required to be filed under the Exchange Act that upon filing
is deemed to be incorporated by reference therein, except for such
documents required to be filed during the period from the Execution
Time through the Closing Date) unless Fort Xxxxx or the Company has
furnished you a copy for your review prior to filing and will not file
any such proposed amendment or supplement to which you reasonably
object. Subject to the foregoing
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sentence, Fort Xxxxx and the Company will cause the Final Prospectus,
properly completed, and any supplement thereto and the Preliminary
Final Prospectus to be filed with the Commission pursuant to the
applicable paragraph of Rule 424(b) within the time period prescribed
and will provide evidence reasonably satisfactory to the
Representatives of such timely filing. Fort Xxxxx and the Company will
advise the Representatives promptly after it shall receive notice or
obtain knowledge thereof (i) when the Registration Statement, if not
effective at the Execution Time, and any amendment thereto, including
any Post-Effective Amendment, shall have become effective and the Pass
Through Trust Agreement so qualified, (ii) when the Final Prospectus,
and any supplement thereto, and any Preliminary Final Prospectus shall
have been filed with the Commission pursuant to Rule 424(b), (iii)
when, prior to termination of the offering of the Certificates, any
amendment to the Registration Statement, including any Rule 462(b)
Registration Statement, shall have been filed or become effective, (iv)
of any request by the Commission for any amendment of the Registration
Statement or supplement to the Final Prospectus or for any additional
information, (v) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose, (vi) of
the receipt by Fort Xxxxx or the Company of any notification with
respect to the suspension of the qualification of the Certificates for
sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose; and (vii) during the period when a
prospectus relating to the Certificates is required to be delivered
under the Securities Act, of the mailing or the delivery to the
Commission for filing by Fort Xxxxx or the Company of any document to
be filed pursuant to the Exchange Act. Fort Xxxxx and the Company will
use its best efforts to prevent the issuance of any such stop order
and, if issued, to obtain the withdrawal thereof.
(b) If, at any time when a prospectus relating to the
Certificates is required to be delivered under the Securities Act, any
event occurs as a result of which the Final Prospectus as then
supplemented would include any untrue statement of a material fact or
omit to state any material fact necessary to make the statements
therein in the light of the circumstances under which they were made
not misleading, or if it shall be necessary to amend the Registration
Statement or supplement the Final Prospectus to comply with the
Securities Act or the Exchange Act, Fort Xxxxx and the Company promptly
will prepare and file with the Commission, subject to the second
sentence of paragraph (a) of this Section 5, an amendment or supplement
which will correct such statement or omission or effect such
compliance.
(c) As soon as practicable, Fort Xxxxx will make generally
available to its security holders and to the Representatives an earning
statement or statements of Fort Xxxxx and its subsidiaries which will
satisfy the provisions of Section 11(a) and Rule 158 of the Securities
Act.
(d) Fort Xxxxx and the Company will furnish to the
Representatives and counsel for the Underwriters, without charge, five
copies of the Registration Statement
11
(including exhibits thereto) and, so long as delivery of a prospectus
by an Underwriter or dealer may be required by the Securities Act, as
many copies of any Preliminary Final Prospectus and the Final
Prospectus and any supplement thereto as the Representatives may
reasonably request. Copies of the Registration Statement and each
amendment thereto, any Preliminary Final Prospectus and the Final
Prospectus furnished to the Underwriters will be identical to the
electronically transmitted copies thereof filed with the Commission
pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(e) Fort Xxxxx and the Company will use its best efforts to
qualify the Certificates for sale under the laws of such jurisdictions
as the Representatives may reasonably designate, will maintain such
qualifications in effect so long as required for the distribution of
the Certificates, except that neither Fort Xxxxx nor the Company shall
be required in connection therewith to qualify as a foreign
corporation, to execute a general consent to service of process in any
state or to otherwise subject itself to taxation (other than stock
transfer taxes) in connection with any such qualification, and will
arrange for the determination of the legality of the Certificates for
purchase by institutional investors.
(f) Except to the extent specified on Schedule I hereto, until
the business date set forth on Schedule I hereto, Fort Xxxxx and the
Company will not, without the consent of the Representatives, offer,
sell or contract to sell, or otherwise dispose of, directly or
indirectly, or announce the offering of, any debt securities issued or
guaranteed by Fort Xxxxx or the Company (other than the Certificates or
other securities issued in the ordinary course of business).
6. Conditions to the Obligations of the Underwriters. The obligations
of the underwriters to purchase the Underwriters' Securities shall be subject to
the accuracy of the representations and warranties on the part of Fort Xxxxx and
the Company contained herein as of the Execution Time and Closing Date, to the
accuracy of the statements of Fort Xxxxx and the Company made in any
Certificates pursuant to the provisions hereof, to the performance of Fort Xxxxx
and the Company of its obligations hereunder and to the following additional
conditions:
(a) The Registration Statement has become effective and no
stop order suspending the effectiveness of the Registration Statement
shall have been issued and no proceedings for that purpose shall have
been instituted or threatened; if filing of the Final Prospectus, or
any supplement thereto, is required pursuant to Rule 424(b), the Final
Prospectus, and any such supplement, shall have been filed in the
manner and within the time period required by Rule 424(b).
(b) Fort Xxxxx and the Company, shall have furnished to the
Representatives an opinion of counsel for Fort Xxxxx and the Company,
dated the Closing Date, to the effect that:
12
(i) Each of Fort Xxxxx and the Company has been duly
organized and is validly existing and in good standing under
the laws of the Commonwealth of Virginia; each of the
Significant Subsidiaries (except for Fort Xxxxx N.V., as to
which you are receiving the opinion of Debrauw Blackstone
Westbroek dated February 19, 1998 (the "Debrauw Opinion")) has
been duly organized and is validly existing and, if
applicable, in good standing under the laws of the
jurisdiction of its incorporation; Fort Xxxxx and each
Significant Subsidiary (except for Fort Xxxxx N.V., as to
which you are receiving the Debrauw Opinion) has corporate
power and authority to conduct its business as described in
the Final Prospectus; Fort Xxxxx and each Significant
Subsidiary (other than Fort Xxxxx N.V., as to which you're
receiving the Debrauw Opinion) is, if applicable, duly
qualified to do business and is, if applicable, in good
standing in each jurisdiction in which it owns or leases a
material amount of real property;
(ii) The authorized capital stock of the Company is
as set forth in the Final Prospectus; and the Certificates
conform to the description thereof contained in the Final
Prospectus;
(iii) The Pass Through Trust Agreement and the
Certificates have been duly authorized; the Pass Through Trust
Agreement has been duly qualified under the Trust Indenture
Act; the Pass Through Trust Agreement has been executed and
delivered by the Pass Through Trustee and constitutes a valid
and legally binding obligation of the Pass Through Trustee
enforceable in accordance with its terms, subject to
bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting creditors'
rights and to general equity principles; the Certificates have
been duly executed, issued and delivered by the Pass Through
Trustee as provided in the Pass Through Trust Agreement and
when the Certificates have been duly delivered and paid for by
the Underwriters pursuant to this Agreement, in the case of
Underwriters Securities, or by the purchasers thereof pursuant
to Delayed Delivery Contracts, in the case of any Contract
Securities, the Certificates will constitute valid and legally
binding obligations of the Pass Through Trustee entitled to
the benefits of the Pass Through Trust Agreement and
enforceable in accordance with their terms, subject to
bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting creditors'
rights and to general equity principles;
(iv) All of the outstanding shares of capital stock
of the Significant Subsidiaries (except for Fort Xxxxx N.V.,
as to which you are receiving the Debrauw Opinion) have been
duly authorized and validly issued, are fully paid and
non-assessable and are owned
13
beneficially, directly or indirectly, (except as otherwise
stated in the Final Prospectus) by the Company subject to no
perfected mortgage, pledge, lien, encumbrance, charge or
adverse claim and, to the knowledge of such counsel, any other
mortgage, pledge, lien, encumbrance, charge or adverse claim;
(v) Such counsel has been advised by the staff of the
Commission that the Registration Statement has become
effective under the Securities Act; any required filing of the
Basic Prospectus, any Preliminary Final Prospectus and the
Final Prospectus, and any supplements thereto, pursuant to
Rule 424(b) has been made in the manner and within the time
period required by Rule 424(b); and to the best knowledge of
such counsel no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for
that purpose has been issued and no proceeding for that
purpose has been instituted or, to the knowledge of such
counsel, threatened under the Securities Act;
(vi) The Registration Statement, including any Rule
462(b) Registration Statement, and the Final Prospectus, and
any amendment or supplement thereto (other than the financial
statements and other financial data therein, as to which such
counsel need express no opinion), comply as to form in all
material respects with the requirements of the Securities Act
and the Trust Indenture Act and the rules of the Commission
thereunder;
(vii) The descriptions in the Registration Statement
and the Final Prospectus of statutes, legal and governmental
proceedings, contracts and other documents are accurate in all
material respects and fairly represent the information
required to be shown; and such counsel does not know of any
statutes or legal proceedings required to be described as
required, or of any contracts or documents of a character
required to be described in the Registration Statement or
Final Prospectus (or required to be filed under the Exchange
Act if upon such filing they would be incorporated, in whole
or in part, by reference therein) or to be filed as exhibits
to the Registration Statement that are not described and filed
as required;
(viii) This Agreement, any Delayed Delivery
Contracts, the Pass Through Trust Agreement, the Parent
Guaranty and each other Operative Document have been duly
authorized, executed and delivered by Fort Xxxxx and/or the
Company, as the case may be, and constitute a valid and
legally binding agreement of Fort Xxxxx and/or the Company
enforceable in accordance with its terms, subject to
bankruptcy, insolvency, reorganization and other laws of
general equity principles, and except that rights to
indemnification or contribution may be limited by Federal or
State securities laws or public policy relating thereto; Fort
Xxxxx and/or the Company's execution, delivery and performance
of this Agreement, any Delayed Delivery Contracts, the
Certificates, the Pass Through Trust Agreement, the
14
Parent Guaranty and each other Operative Document, or the
consummation of the transactions herein contemplated and Fort
Xxxxx and/or the Company's compliance with its obligations
under this Agreement, the Pass Through Trust Agreement, the
Parent Guaranty, and each other Operative Document to which
Fort Xxxxx and/or the Company is or is to be a party, and the
Certificates, will not result in a breach or violation of any
of the terms and provisions of, or constitute a default under,
any statute, any agreement or instrument known to such counsel
to which Fort Xxxxx or any Significant Subsidiary is a party
or by which it is bound or to which any of the property of
Fort Xxxxx or any Significant Subsidiary is subject, Fort
Xxxxx' or any Significant Subsidiary's Articles of
Incorporation, as amended to date, or by-laws, or any order,
rule or regulation known to such counsel of any court or
governmental agency or body having jurisdiction over Fort
Xxxxx Company or any Significant Subsidiary or any of their
respective properties; and no consent, approval, authorization
or order of, or filing with, any court or governmental agency
or body is required for the consummation of the transactions
contemplated by this Agreement or in any Delayed Delivery
Contract, except such as have been obtained under the
Securities Act or the Trust Indenture Act and such as may be
required under state Certificates laws in connection with the
purchase and distribution of such Certificates by the
Underwriters; provided that no opinion is called for with
respect to any such consent, approval, authorization or order
required to be obtained under the Securities Act or the Trust
Indenture Act that have been obtained or as may be required
under state Certificates laws or Blue Sky Laws of the various
states. The form of the Pass Through Trust Agreement, the
Parent Guaranty and each other Operative Document filed as an
exhibit to the Registration Statement conforms to the
descriptions thereof contained in the Prospectus in all
material respects;
(ix) Assuming that the Certificates have been duly
and validly authorized, executed and authenticated in
accordance with the Pass Through Trust Agreement and have been
duly issued and delivered to and paid for by the Underwriter,
the holders of the Certificates are entitled to the benefits
of the Pass Through Trust Agreement;
(x) The statements in the Prospectus under the
caption "Certain Federal Income Tax Consequences" to the
extent that they constitute matters of law or legal
conclusions with respect thereto, have been prepared or
reviewed by such counsel and are correct in all material
respects and such counsel is of the opinion ascribed to it in
the Prospectus under the caption "Federal Income Tax
Consequences";
(xi) Based upon current law, the Pass Through Trust
for federal income tax purposes should be classified as a
grantor trust under subpart E, Part I of Subchapter J of the
Internal Revenue Code of 1986, as amended, and each
15
Certificate holder should be treated as the beneficial owner
of a pro rata undivided interest in each Secured Note and any
other property held in the Pass Through Trust; and
(xii) The Pass Through Trust Agreement has been duly
qualified under the Trust Indenture Act.
Such counsel shall also state that: they have no reason to
believe that at the Effective Date the Registration Statement contained
any untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading or that the Final Prospectus at the
time the Final Prospectus is issued or at the Closing Date includes any
untrue statement of a material fact or omits to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and the
documents from which information is incorporated by reference in the
Final Prospectus, when they became effective or were filed with the
Commission, as the case may be, complied as to form in all material
respects with the requirements of the Securities Act and of the
Exchange Act, as applicable; it being understood that such counsel need
express no opinion as to (i) the financial statements or other
financial information included in any of the documents mentioned in
this sentence or (ii) the Statement of Eligibility on Form T-1 of the
Pass Through Trustee.
References to the Final Prospectus in this paragraph (e)
include any supplements thereto at the Closing Date.
(f) The Representatives shall have received the opinion of
Xxxxxxxx, Xxxxxx & Finger, counsel to [Wilmington Trust Company] in its
individual capacity ("Wilmington Trust") and in its capacity as the
Pass Through Trustee, to the effect that:
(i) The Certificates have been duly and validly
authorized, executed and authenticated in accordance with the
Pass Through Trust Agreement and have been duly issued and
delivered to, and, assuming that the Certificates have been
paid for by, the Underwriter, the Certificates constitute
valid obligations of the Pass Through Trust entitling the
Certificateholders to the benefits of the Pass Through Trust
Agreement;
(ii) [Wilmington Trust] is a banking corporation duly
incorporated and validly existing in good standing under the
laws of the State of [Delaware], and has the corporate power
and authority under the laws of the State of [Delaware],
individually or as Pass Through Trustee, as the case may be,
to execute, deliver and perform the Pass Through Trust
Agreement and the Participation Agreement;
16
(iii) Assuming the Pass Through Trustee has duly
authorized, executed and delivered the Pass Through Trust
Agreement, the Pass Through Trust Agreement constitutes a
legal, valid and binding obligation of the Company enforceable
against Fort Xxxxx and/or the Company in accordance with its
terms, except as enforcement thereof may be limited by (i)
bankruptcy, insolvency, moratorium, receivership, fraudulent
conveyance and similar laws relating to or affecting the
rights and remedies of creditors generally and (ii) principles
of equity (regardless of whether enforcement is considered in
a proceeding in equity or law);
(iv) [Wilmington Trust] or the Pass Through Trustee,
as the case may be, has duly authorized, executed and
delivered the Pass Through Trust Agreement and the
Participation Agreement and the Pass Through Trust Agreement
constitutes a legal, valid and binding obligation of
[Wilmington Trust] or the Pass Through Trustee, as the case
may be, enforceable against [Wilmington Trust] or the Pass
Through Trustee, as the case may be, in accordance with its
terms, except as enforcement thereof may be limited by (i)
bankruptcy, insolvency, moratorium, receivership, fraudulent
conveyance and similar laws relating to or affecting the
rights and remedies of creditors generally and (ii) principles
of equity (regardless of whether enforcement is considered in
a proceeding in equity or law);
(v) Neither the execution, delivery and performance
by [Wilmington Trust] or the Pass Through Trustee, as the case
may be, of the Pass Through Trust Agreement and the
Participation Agreement, nor the authentication by the Pass
Through Trustee of the Certificates is in violation of the
charter or by-laws of [Wilmington Trust] or of any law,
governmental rule or regulation of the State of Delaware or
the United States governing the banking or trust powers of
[Wilmington Trust] or, to our knowledge, of any indenture,
mortgage, bank credit agreement, note or bond purchase
agreement, long-term lease, license or other agreement or
instrument to which it is a party or by which it is bound or
to our knowledge of any judgment or order applicable to
[Wilmington Trust] or the Pass Through Trustee;
(vi) Neither the authorization, consent or approval
of, the giving of notice to or registration with, nor the
taking of any other action in respect of, any governmental
authority or agency of the State of Delaware or the United
States governing the banking or trust powers of [Wilmington
Trust] is required for the execution, delivery or performance
by the Pass Through Trustee or [Wilmington Trust], as the case
may be, of the Pass Through Trust Agreement or Participation
Agreement; and
(vii) Assuming that (A) the assets are not used in
the State of Delaware and are not physically located in the
State of Delaware at the commencement or termination of, or
during the term of, the Leases, (B) in connection with any
sale
17
of the Assets, the Assets will not be physically delivered in
the State of Delaware and are not shipped from a point within
the State of Delaware to a buyer, and (C) the Pass Through
Trust will not be taxable as a corporation, but, rather will
be classified as a grantor trust under subpart E, Part I of
Subchapter J of the Code for federal income tax purposes, and
(D) the Depository Trust Company is the Certificateholder
holding the Certificates as custodian on behalf of the
Certificate Owners, then under existing Delaware law as of the
date hereof (i) the Pass Through Trust will not be classified
as an association taxable as a corporation for purposes of
franchise and income taxation by the State of Delaware or any
political subdivision thereof; (ii) a Certificateholder will
be treated as owners of an undivided interest in the assets of
the Pass Through Trust for purposes of franchise and income
taxation by the State of Delaware and any political
subdivision thereof; (iii) the Pass Through Trust will not be
subject to taxation or any other governmental fee or charge by
the State of Delaware or any political subdivision thereof;
and (iv) neither the Secured Notes nor the Pass Through
Certificates will be subject to ad valorem taxation or any
other tax on intangible property by the State of Delaware or
any political subdivision thereof; (v) neither the delivery of
the Secured Notes to the Pass Through Trust nor the
acquisition, ownership or disposition of the interest of any
Certificateholder in any Pass Through Certificate will be
subject directly or indirectly to any sales, use or transfer
taxes imposed by the State of Delaware or any political
subdivision thereof; and (vi) a Certificateholder and
Certificate Owner will not be subject to taxation or any
governmental fee or charge by the State of Delaware or any
political subdivision thereof, if the Certificateholders or
Certificate Owners are not residents of the State of Delaware,
or otherwise subject to any tax, governmental charge or fee
imposed by the State of Delaware or any political subdivision
thereof.
(g) The Representatives shall have received from Shearman &
Sterling, counsel for the Underwriters, such opinion or opinions, dated
the Closing Date, with respect to the issuance and sale of the
Certificates, the Pass Through Trust Agreement, the Guaranty, each
other Operative Document to which Fort Xxxxx and/or the Company is, or
is to be a party, any Delayed Delivery Contracts, the Registration
Statement, the Final Prospectus (together with any supplement thereto)
and other related matters as the Representatives may reasonably
require, and such counsel shall have received such papers and
information as they request for the purpose of enabling them to pass
upon such matters.
(h) Fort Xxxxx and the Company shall have furnished to the
Representatives a certificate or certificates of Fort Xxxxx and the
Company, signed by the Chairman, Chief Executive Officer, an Executive
Vice President, a Senior Vice President or a Vice President and by the
principal financial or accounting officer or treasurer of each Fort
Xxxxx and the Company, dated the Closing Date, to the effect that, to
the best of their knowledge, based upon reasonable investigation:
18
(i) the representations and warranties of Fort Xxxxx
and the Company in this Agreement are true and correct, as if
made at and as of the Closing Date, and Fort Xxxxx and the
Company has complied with all the agreements and satisfied all
the conditions on their part to be performed or satisfied at
or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of
the Registration Statement has been issued, and no proceeding
for that purpose has been instituted or is threatened, by the
Commission; and
(iii) since the date of the most recent financial
statements included in the Final Prospectus (exclusive of any
supplement thereto), there has been no material adverse change
or development involving a prospective material adverse change
in the condition (financial or other), earnings, business or
properties of Fort Xxxxx and the Company and its subsidiaries,
whether or not arising from transactions in the ordinary
course of business, except as set forth in or contemplated in
the Final Prospectus (exclusive of any supplement thereto).
(i) At the Execution Time and on the Closing Date,
PricewaterhouseCoopers LLP shall have furnished to the Representatives
a letter or letters, dated as of the Execution Time and the Closing
Date, in form and substance satisfactory to the Representatives, which
confirms that they are independent certified public accountants with
respect to Fort Xxxxx within the meaning of the Securities Act and
containing statements and information of the type ordinarily included
in accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in the
Registration Statement and Final Prospectus.
(j) Subsequent to the Execution Time, there shall not have
been any decrease in the rating of any of either Fort Xxxxx' or the
Company's debt securities by any "nationally recognized statistical
rating organization" (as defined for purpose of Rule 436(g) under the
Securities Act) or any notice given of any intended or potential
decrease in any such rating or of a possible change in any such rating
that does not indicate the direction of the possible change.
(k) Prior to the Closing Date, the Company shall have
furnished to the Representatives such further information, certificates
and documents as the Representatives may reasonably request.
(l) The Company shall have accepted Delayed Delivery Contracts
in any case where sales of Contract Certificates arranged by the
Underwriters have been approved by the Company.
19
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and counsel for the Underwriters, this
Agreement and all obligations of the Underwriters hereunder may be canceled at,
or at any time prior to, the Closing Date by the Representatives. Notice of such
cancellation shall be given to Fort Xxxxx and the Company in writing or by
telephone or fax confirmed in writing.
7. Expenses. Whether or not any sale of the Certificates is consummated
(a) Fort Xxxxx will pay, or cause the Owner Trustee to pay, all expenses
incident to the performance of its obligations under this Agreement and the Pass
Through Trust Agreement, including (i) the preparation, printing and filing of
the Registration Statement (including financial statements and exhibits) as
originally filed and of each amendment thereto (including any post-effective
amendment thereto), (ii) the preparation, printing and delivery to the
Underwriters of this Agreement, any Agreement among Underwriters to which Fort
Xxxxx or the Company is a party, the Pass Through Trust Agreement, the Guaranty
and each of the Operative Documents as may be required in connection with the
offering, purchase, sale, issuance or delivery of the Certificates, (iii) the
preparation, issuance and delivery of the Certificates to the Underwriters, (iv)
the fees and disbursements of Fort Xxxxx' and the Company's counsel, accountants
and other advisors, (v) the qualification of the Certificates under securities
laws in accordance with the provisions of Section 5(e) hereof, including filing
fees and the reasonable fees and disbursements of counsel for the Underwriters
in connection therewith and in connection with the preparation of the Blue Sky
Survey and any supplement thereto, (vi) the printing and delivery to the
Underwriters of copies of each Preliminary Final Prospectus and of the Final
Prospectus and any amendments or supplements thereto, (vii) the reasonable fees
and expenses of the Pass Through Trustee, including the fees and disbursements
of counsel for the Pass Through Trustee in connection with the Pass Through
Trust Agreement and the Certificates, (viii) any fees payable in connection with
the rating of the Certificates, and (ix) the filing fees incident to, and the
reasonable fees and disbursements of counsel to the Underwriters in connection
with the review by the National Association of Certificates Dealers, Inc. (the
"NASD") of the terms of the sale of the Certificates, which in the case of this
paragraph (ix), shall be paid by the Owner Trustee.
(b) If the sale of the Certificates provided for herein is not
consummated because any condition to the obligations of the Underwriters set
forth in Section 6 hereof is not satisfied, because of any termination pursuant
to Section 10 hereof or because of any refusal, inability or failure on the part
of Fort Xxxxx or the Company to perform any agreement herein or comply with any
provision hereof other than by reason of a default by any of the Underwriters,
Fort Xxxxx and the Company jointly and severally will reimburse the Underwriters
severally upon demand for all out-of-pocket expenses (including reasonable fees
and disbursements of counsel) that shall have been incurred by them in
connection with the proposed purchase and sale of the Certificates.
20
8. Indemnification and Contribution. (a) Fort Xxxxx and the Company
jointly and severally agree to indemnify and hold harmless each Underwriter, the
directors, officers, employees and agents of each Underwriter and each person
who controls any Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act as follows: (i) against any and
all losses, claims, damages or liabilities, joint or several, to which they or
any of them may become subject under the Securities Act, the Exchange Act or
other Federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the registration statement for the
registration of the Certificates as originally filed or in any amendment thereof
(including any post-effective amendment), or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, or
arise out of any untrue statement or alleged untrue statement of a material fact
included in any Preliminary Final Prospectus or the Final Prospectus (or any
amendment or supplement thereto), or the omission or alleged omission therefrom
of a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading; (ii)
against any and all loss, liability, claim, damage and expense whatsoever, as
reasonably incurred, to the extent of the aggregate amount paid in settlement of
any litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or of any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or omission
of a material fact required to be stated therein or necessary to make the
statements therein not misleading, provided that any such settlement is effected
with the written consent of Fort Xxxxx and the Company in the sole discretion of
Fort Xxxxx and the Company; and (iii) agree to reimburse each such indemnified
party, as incurred, for any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that neither Fort Xxxxx nor the Company
will be liable in any such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission of a material fact required to
be stated therein or necessary to make the statements therein not misleading in
reliance upon and in conformity with written information furnished to Fort Xxxxx
or the Company by or on behalf of any Underwriter through the Representatives
specifically for use in connection with the preparation thereof; and provided
further that neither Fort Xxxxx nor the Company shall be liable in any such case
to any such Underwriter to the extent that any such loss, claim, damage or
liability results from the fact that such Underwriter sold Certificates to a
person to whom there was not given or sent, at or prior to the written
confirmation of such sale, a copy of the Final Prospectus, as then amended or
supplemented (excluding the documents incorporated by reference therein) if Fort
Xxxxx or the Company has previously furnished copies thereof to such Underwriter
and has otherwise complied with Section 5(b), and if Fort Xxxxx and the Company
has sustained the burden of proof that, with respect to statements or omissions,
other than those made in reliance upon and in conformity with written
information furnished to Fort Xxxxx or the Company by or on behalf of any
Underwriter through the Representatives specifically for use in connection with
the preparation of the documents referred to in the foregoing indemnity, such
21
Final Prospectus, or any amendment or supplement thereto (including the
documents incorporated by reference therein) corrected the untrue statement or
alleged untrue statement or omission of a material fact required to be stated
therein or necessary to make the statements therein not misleading or alleged
omission giving rise to such loss, claim, damage or liability. This indemnity
agreement will be in addition to any liability which Fort Xxxxx or the Company
may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold harmless
Fort Xxxxx and the Company, each of their directors, each of their officers who
signs the Registration Statement, and each person who controls Fort Xxxxx or the
Company within the meaning of either Section 15 of the Securities Act or Section
20 of the Exchange Act, to the same extent as the foregoing indemnity from Fort
Xxxxx or the Company to each Underwriter, but only with respect to untrue
statements or omissions, or alleged untrue statements of a material fact
required to be stated therein or necessary to make the statements therein not
misleading or omissions made in the documents referred to in the foregoing
indemnity in reliance on and in conformity with written information relating to
such Underwriter furnished to Fort Xxxxx or the Company by or on behalf of such
Underwriter through the Representatives specifically for use in connection with
the preparation of the documents referred to in the foregoing indemnity, and
agrees to reimburse each such indemnified party, as incurred, for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action. This indemnity
agreement will be in addition to any liability which any Underwriter may
otherwise have.
(c) Promptly after receipt by an indemnified party under this Section 8
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 8, notify the indemnifying party in writing of the commencement thereof,
but the failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the forfeiture by the
indemnifying party of substantial rights and defenses and (ii) will not, in any
event, relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification and reimbursement obligations provided in
paragraph (a) or (b) above. The indemnifying party shall be entitled to appoint
counsel of the indemnifying party's choice at the indemnifying party's expense
to represent the indemnified party and any others the indemnifying party may
designate in such proceeding in any action for which indemnification is sought
(in which case the indemnifying party shall not thereafter be responsible for
the fees and expenses of any separate counsel retained by the indemnified party
or parties except as set forth below); provided, however, that such counsel
shall be reasonably satisfactory to the indemnified party. Notwithstanding the
indemnifying party's election to appoint counsel to represent the indemnified
party in an action, the indemnified party shall have the right to employ
separate counsel (including not more than two local counsels), and the
indemnifying party shall bear the reasonable fees, costs and expenses of such
separate counsel if (i) the use of counsel chosen by the indemnifying party to
represent the indemnified party would present such counsel with a conflict of
interest, (ii) the actual or potential defendants in, or targets
22
of, any such action include both the indemnified party and the indemnifying
party and the indemnified party shall have reasonably concluded that there may
be legal defenses available to it and/or other indemnified parties which are
different from or additional to those available to the indemnifying party, (iii)
the indemnifying party shall not have employed counsel reasonably satisfactory
to the indemnified party to represent the indemnified party within a reasonable
time after notice of the institution of such action or (iv) the indemnifying
party shall authorize in writing the indemnified party to employ separate
counsel at the expense of the indemnifying party. The indemnifying party shall
not be liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability by reason
of such settlement. An indemnifying party will not, without the prior written
consent of the indemnified parties, settle or compromise or consent to the entry
of any judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding and does not include a
statement as to or an admission of fault, culpability or a failure to act by or
on behalf of any indemnified party.
(d) In the event that the indemnity provided in paragraph (a) or (b) of
this Section 8 is unavailable to or insufficient to hold harmless an indemnified
party for any reason, Fort Xxxxx, the Company and the Underwriters agree to
contribute to the aggregate losses, claims, damages and liabilities (including
legal or other expenses reasonably incurred in connection with investigating or
defending same) (collectively "Losses") to which Fort Xxxxx, the Company and one
or more of the Underwriters may be subject in such proportion as is appropriate
to reflect the relative benefits received by Fort Xxxxx, the Company and by the
Underwriters from the offering of the Certificates; provided, however, that no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Certificates underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
any such untrue or alleged untrue statement or omission or alleged omission. If
the allocation provided by the immediately preceding sentence is unavailable for
any reason, Fort Xxxxx, the Company and the Underwriters shall contribute in
such proportion as is appropriate to reflect not only such relative benefits but
also the relative fault of Fort Xxxxx, the Company and of the Underwriters in
connection with the statements or omissions which resulted in such Losses as
well as any other relevant equitable considerations. Benefits received by Fort
Xxxxx or the Company shall be deemed to be equal to the total net proceeds from
the offering (before deducting expenses) received by the Pass Through Trustee,
and benefits received by the Underwriters shall be deemed to be equal to the
total underwriting discounts and commissions, in each case as set forth on the
cover page of the Final Prospectus. Relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by Fort Xxxxx or the Company on the one hand or
the Underwriters on the other and the parties' relative intent, knowledge,
access to information and
23
opportunity to correct or prevent such untrue statement or omission. Fort Xxxxx,
the Company and the Underwriters agree that it would not be just and equitable
if contribution were determined by pro rata allocation (even if the Underwriters
were treated as one entity for such purpose) or any other method of allocation
which does not take account of the equitable considerations referred to above.
Any party entitled to contribution will, promptly after receipt of notice of
commencement of any action, suit or proceeding against such party in respect of
which a claim for contribution may be made against another party or parties
under this paragraph (d), notify such party or parties from whom contribution
may be sought, but the omission to so notify such party or parties shall not
relieve the party or parties from whom contribution may be sought from any other
obligation it or they may have hereunder (other than under this paragraph (d))
or otherwise. Notwithstanding the provisions of this paragraph (d), no person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. For purposes of this Section 8,
each person who controls an Underwriter within the meaning of either Section 15
of the Securities Act or Section 20 of the Exchange Act and each director,
officer, employee and agent of an Underwriter shall have the same rights to
contribution as such Underwriter, and each person who controls Fort Xxxxx or the
Company within the meaning of either Section 15 of the Securities Act or Section
20 of the Exchange Act, each officer of Fort Xxxxx or the Company who shall have
signed the Registration Statement and each director of Fort Xxxxx or the Company
shall have the same rights to contribution as Fort Xxxxx or the Company, subject
in each case to the applicable terms and conditions of this paragraph (d).
The Underwriters' respective obligations to contribute pursuant to this
Section are several in proportion to the principal amount of Certificates set
forth opposite their respective names in Schedule II hereto and not joint.
9. Default by an Underwriter. If any one or more Underwriters shall
fail to purchase and pay for any of the Certificates agreed to be purchased by
such Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Certificates set
forth opposite their names in Schedule II hereto bears to the aggregate amount
of Certificates set forth opposite the names of all the remaining Underwriters)
the Certificates which the defaulting Underwriter or Underwriters agreed but
failed to purchase; provided, however, that in the event that the aggregate
amount of Certificates which the defaulting Underwriter or Underwriters agreed
but failed to purchase shall exceed 10% of the aggregate amount of Certificates
set forth in Schedule II hereto, the remaining Underwriters shall have the right
to purchase all, but shall not be under any obligation to purchase any, of the
Certificates, and if such nondefaulting Underwriters do not purchase all the
Certificates, this Agreement will terminate without liability to any
nondefaulting Underwriter, Fort Xxxxx or the Company. In the event of a default
by any Underwriter as set forth in this Section 9, the Closing Date shall be
postponed for such period, not exceeding seven days, as the Representatives
shall determine in order that the required changes in the Registration Statement
and the Final Prospectus or in any other documents or arrangements may be
effected.
24
Nothing contained in this Agreement shall relieve any defaulting Underwriter of
its liability, if any, to Fort Xxxxx or the Company and any nondefaulting
Underwriter for damages occasioned by its default hereunder.
10. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Representatives, by notice given to Fort Xxxxx and
the Company prior to delivery of and payment for the Certificates, if after the
Execution Time and prior to such time (a) (i) if there has been, since the time
of execution of this Agreement or since the respective dates as of which
information is given in the Final Prospectus, a material adverse change or any
development involving a prospective material adverse change in the condition,
financial or otherwise, or in the earnings or business affairs of Fort Xxxxx and
its subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) if there has occurred any material adverse
change in the financial markets in the United States, any outbreak of
hostilities or escalation thereof or other calamity or crisis or any change or
development involving a prospective change in national or international
political, financial or economic conditions, in each case the effect of which is
such as to make it, in the judgment of the Representatives, impracticable to
market the Certificates, or (iii) if trading in any securities of Fort Xxxxx or
the Company has been suspended or materially limited by the Commission or the
New York Stock Exchange, or if trading generally on the American Stock Exchange
or the New York Stock Exchange or in the NASDAQ National Market has been
suspended or materially limited, or minimum or maximum prices for trading have
been fixed, or maximum ranges for prices have been required, by any of said
exchanges or by such system or by order of the Commission, the National
Association of Securities Dealers, Inc. or any other governmental authority, or
(iv) if a banking moratorium has been declared by either federal or New York
authorities; and (b) in the case of any of the events specified in clauses
(a)(i) through (iv), such event singly or together with any other such event
makes it in your judgment, impracticable to market the Certificates on the terms
and in the manner contemplated in the Prospectus.
11. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of
Fort Xxxxx, the Company or their officers and of the Underwriters set forth in
or made pursuant to this Agreement will remain in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter, Fort
Xxxxx or the Company or any of the officers, directors or controlling persons
referred to in Section 8 hereof, and will survive delivery of and payment for
the Certificates. The provisions of Sections 7 and 8 hereof shall survive the
termination or cancellation of this Agreement.
12. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representatives, will be mailed,
delivered or telecopied and confirmed to them, at the address specified in
Schedule I hereto; or, if sent to Fort Xxxxx, will be mailed, delivered or
telegraphed and confirmed to it at 0000 Xxxx Xxxx Xxxx, Xxxxxxxxx, Xxxxxxxx
00000- 0000, telefax number (000) 000-0000, attention of the Senior Vice
President and General Counsel; or if sent to the Company, will be mailed,
delivered or telegraphed and confirmed to it at
25
c/o Fort Xxxxx Corporation, 0000 Xxxx Xxxx Xxxx, Xxxxxxxxx, Xxxxxxxx 00000-0000,
telefax number (000) 000-0000, attention of the Senior Vice President and
General Counsel.
13. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 8 hereof, and no
other person will have any right or obligation hereunder.
In all dealings with Fort Xxxxx and the Company under this Agreement,
you shall act on behalf of each of the several Underwriters, and any action
under this Agreement taken by you or by any one of you designated in Schedule II
hereto will be binding upon all the Underwriters.
14. Applicable Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York.
26
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among Fort Xxxxx, the Company and the several Underwriters. Alternatively, the
execution of this Agreement by Fort Xxxxx and the Company and its acceptance by
or on behalf of the Underwriters may be evidenced by an exchange of telecopied
or other written communications.
Very truly yours,
Fort Xxxxx Operating Company
By: _____________________________
Title:
Fort Xxxxx Corporation
By: _____________________________
Title:
The foregoing Agreement
is hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
The Representatives named in Schedule I hereto of the Underwriters named in
Schedule II hereto.
By: [Xxxxxx Xxxxxxx & Co. Incorporated]
By: __________________________________________
Authorized Signatory
For themselves and as
Representatives of the other
Underwriters, named in
Schedule II to the
foregoing Agreement.
SCHEDULE I
Underwriting Agreement dated:
Registration Statement No. 333-63905
Representatives:
Title, Purchase Price and Description of Certificates:
Title:
Principal amount:
Interest:
Purchase price (including accrued interest, if any):
(i) to Underwriters:
(ii) to Public:
Other provisions:
Closing Date, Time and Location:
(i) Office for Checking Certificates:
(ii) Office for Payment of Certificates:
(iii) Date and Time of Closing:
Type of offering:
Delayed Delivery arrangements: None
Fee:
Minimum principal amount of each contract:
Maximum aggregate principal amount of all contracts:
28
Date referred to in Section 5(f) after which the
Company may offer or sell debt securities
issued or guaranteed by the Company without
the consent of the Representatives:
Modification of Section 5(f): The parties agree that the
term debt securities does not include, among other
items, bank loans, commercial paper, bid notes, money
market notes, any debt securities with a maturity of
less than two years, leveraged sale leasebacks and
letter of credit arrangements
29
SCHEDULE II
Principal Amount of
[interest rate] Pass
Through Trust
Certificates, Series
1998-A to
Underwriters be Purchased
$
Total
Total Underwriters:
30
