XXXX ATLANTIC -- PENNSYLVANIA, INC.
DEBT SECURITIES
UNDERWRITING AGREEMENT
New York, New York
December 2, 1998
To the Representatives
named in Schedule I
hereto of the Underwriters
named in Schedule II hereto
Dear Sirs:
Xxxx Atlantic -- Pennsylvania, Inc., a Pennsylvania corporation
("Company"), may issue and sell from time to time series of its debt securities
registered under the registration statement referred to in Paragraph 1(a) hereof
("Securities" and individually "Security"). The Company proposes to sell to the
underwriters named in Schedule II hereto ("Underwriters"), for whom you are
acting as representatives ("Representative"), a series of Securities, of the
designation, with the terms and in the aggregate principal amount specified in
Schedule I hereto ("Underwritten Securities" and individually "Underwritten
Security"). 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
"Representative" shall each be deemed to refer to such firm or firms.
1. The Company represents, warrants and agrees that:
(a) Registration statements (Nos. 33-50869 and 33-55252), including a
prospectus, with respect to the Securities have been prepared by the
Company in conformity with the requirements of the Securities Act of
1933, as amended ("Act"), and the rules and regulations ("Rules and
Regulations") of the Securities and Exchange Commission ("Commission")
thereunder and have become effective. As used in this Agreement, (i)
"Registration Statement" means each such registration statement, as
amended and supplemented to the date hereof; (ii) "Preliminary
Prospectus" means each prospectus (including all documents incorporated
therein by reference) included in the most recently filed Registration
Statement, or amendments or supplements thereof, before it became
effective under the Act, including any prospectus filed with the
Commission pursuant to Rule 424(a) of the Rules and Regulations; (iii)
"Basic Prospectus" means the prospectus included in the most recently
filed Registration Statement, and (iv) "Prospectus" means the Basic
Prospectus, together with any prospectus amendment or supplement
(including in each case all documents incorporated therein by reference)
specifically relating to the Underwritten Securities, as filed with the
Commission pursuant to paragraph (b) of Rule 424 of the Rules and
Regulations. The Commission has not issued any order preventing or
suspending the use of any Prospectus, and no proceedings for such
purposes have been instituted or are pending or, to the knowledge of the
Company, are contemplated by the
2
Commission, and any request on the part of the Commission for additional
information has been complied with.
(b) The Registration Statements and each Prospectus contain, and (in
the case of any amendment or supplement to any such document, or any
material incorporated by reference in any such document, filed with the
Commission after the date as of which this representation is being made)
will contain at all times during the period specified in Paragraph 7(c)
hereof, all statements which are required by the Act, the Securities
Exchange Act of 1934, as amended ("Exchange Act"), the Trust Indenture
Act of 1939, as amended ("Trust Indenture Act"), and the rules and
regulations of the Commission under such Acts; the indenture, including
any amendments and supplements thereto, pursuant to which the
Underwritten Securities will be issued ("Indenture") will conform with
the requirements of the Trust Indenture Act and the rules and
regulations of the Commission thereunder; and the Registration
Statements and each Prospectus do not, and (in the case of any amendment
or supplement to any such document, or any material incorporated by
reference in any such document, filed with the Commission after the date
as of which this representation is being made) will not, at any time
during the period specified in Paragraph 7(c) hereof, contain 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; provided that the Company makes no representation or
warranty as to information contained in or omitted from any Registration
Statement or any Prospectus in reliance and based upon information
furnished to the Company through the Representative by or on behalf of
any Underwriter, or as to any statements in or omissions from the
Statement of Eligibility of the Trustee under the Indenture.
(c) Neither the Company nor any of its subsidiaries (as defined in
Paragraph 14 hereof) is in violation of its corporate charter or by-laws
or in default under any agreement, indenture or instrument, except for
such defaults that would not result in a material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs
or business prospects of the Company or the Company and its subsidiaries
taken as a whole, whether or not arising in the ordinary course of
business (a "Material Adverse Effect"); and the execution, delivery and
performance of this Agreement, the Indenture, the Underwritten
Securities, and any Delayed Delivery Contracts (as defined in Paragraph
3 hereof) and the consummation of the transactions contemplated herein,
and in the Prospectus (including the issuance and sale of the
Underwritten Securities and the use of the proceeds from the sale
thereof as described in the Prospectus under the caption "Use of
Proceeds") have been duly authorized by all necessary corporate action
and do not and will not conflict with or constitute a breach of, or
default under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or any
of its subsidiaries pursuant to, any material agreement, indenture or
instrument to which the Company or any of its subsidiaries is a party or
by which any of them is bound or to which any of their respective
properties or assets is subject, nor will such action result in a
material violation of the charter or by-laws of the Company or any of
its subsidiaries or any order, rule or regulation of any court or
governmental agency having jurisdiction over the Company,
3
any of its subsidiaries or their respective properties; and except as
required by the Act, the Trust Indenture Act, the Exchange Act and
applicable state securities laws and except as set forth in Paragraph
1(m) hereof, no consent, authorization or order of, or filing or
registration with, any court or governmental agency is required for the
execution, delivery and performance of this Agreement, the Delayed
Delivery Contracts and the Indenture or the consummation of the
transactions contemplated hereby and thereby.
(d) Except as described in or contemplated by the Registration
Statements and each Prospectus, there has been no Material Adverse
Effect from the dates as of which information is given in the
Registration Statements and each Prospectus.
(e) PricewaterhouseCoopers (formerly Coopers & Xxxxxxx), whose report
appears in the Company's most recent Annual Report on Form 10-K which is
incorporated by reference in each Prospectus, are independent
accountants as required by the Act and the Rules and Regulations.
(f) On the Delivery Date (as defined in Paragraph 6 hereof) (i) the
Indenture will have been validly authorized, executed and delivered by
the Company and duly qualified under the Trust Indenture Act and will
constitute the legally binding obligation of the Company, (ii) the
Underwritten Securities will have been validly authorized and executed
and, upon payment therefor as provided in this Agreement, will be
validly issued and outstanding, and will constitute legally binding
obligations of the Company entitled to the benefits of the Indenture,
and (iii) the Underwritten Securities and the Indenture will conform to
the descriptions thereof contained in the Prospectus.
(g) This Agreement has been validly authorized, executed and
delivered by the Company.
(h) The Company and each of its subsidiaries have been duly
incorporated and are validly existing and remain subsisting corporations
under the laws of their respective jurisdictions of incorporation, are
duly qualified to do business and in good standing as foreign
corporations in each jurisdiction in which their respective ownership of
properties or the conduct of their respective businesses requires such
qualification, except where the failure to so qualify would not have a
Material Adverse Effect, and have power and authority necessary to own
or hold their respective properties and to conduct the businesses in
which they are engaged and, with respect to the Company, to enter into
and perform its obligations under this Agreement.
(i) There is no material action, suit or proceeding before any court
or governmental agency or body, domestic or foreign, now pending, or, to
the knowledge of the Company, threatened, against or affecting the
Company or any of its subsidiaries, which is required to be disclosed in
any Prospectus (other than as disclosed therein), or which might
reasonably be expected to result in a Material Adverse Effect, or which
might reasonably be expected to materially and adversely affect the
properties or assets
4
thereof or the consummation of the transactions contemplated in this
Agreement or the performance by the Company of its obligations
hereunder.
(j) The financial statements filed as part of the Registration
Statements or included in any Preliminary Prospectus present, or (in the
case of any amendment or supplement to any such document, or any
material incorporated by reference in any such document, filed with the
Commission after the date as of which this representation is being made)
will present at all times during the period specified in Paragraph 7(c)
hereof, fairly, the financial condition and results of operations of the
Company and its consolidated subsidiaries, at the dates and for the
periods indicated, and have been, and (in the case of any amendment or
supplement to any such document, or any material incorporated by
reference in any such document, filed with the Commission after the date
as of which this representation is being made) will be at all times
during the period specified in Paragraph 7(c) hereof, prepared in
conformity with generally accepted accounting principles ("GAAP")
applied on a consistent basis throughout the periods involved. The
supporting schedules incorporated by reference in any Prospectus present
fairly in accordance with GAAP the information required to be stated
therein. The pro forma financial statements and the related notes
thereto incorporated by reference in the Registration Statements and any
Prospectus present fairly the information shown therein, have been
prepared in accordance with the Commission's rules and guidelines with
respect to pro forma financial statements and have been properly
compiled on the bases described therein, and the assumptions used in the
preparation thereof are reasonable and the adjustments used therein are
appropriate to give effect to the transactions and circumstances
referred to therein.
(k) The documents incorporated by reference into any Preliminary
Prospectus or Prospectus have been, and (in the case of any amendment or
supplement to any such document, or any material incorporated by
reference in any such document, filed with the Commission after the date
as of which this representation is being made) will be at all times
during the period specified in Paragraph 7(c) hereof, prepared by the
Company in conformity with the applicable requirements of the Act and
Rules and Regulations and the Exchange Act and the rules and regulations
of the Commission thereunder and such documents have been, or (in the
case of any amendment or supplement to any such document, or any
material incorporated by reference in any such document, filed with the
Commission after the date as of which this representation is being made)
will be at all times during the period specified in Paragraph 7(c)
hereof, timely filed as required thereby.
(l) There are no contracts or other documents which are required to
be filed as exhibits to the Registration Statements by the Act or by the
Rules and Regulations, or which were required to be filed as exhibits to
any document incorporated by reference in any Prospectus by the Exchange
Act or the rules and regulations of the Commission thereunder, which
have not been filed as exhibits to the Registration Statements or to
such document or incorporated therein by reference as permitted by the
Rules and
5
Regulations or the rules and regulations of the Commission under the
Exchange Act as required.
(m) The Company has filed with the Commonwealth of Pennsylvania
Public Utilities Commission ("PUC") an application with respect to the
issue and sale of securities, including the Underwritten Securities. The
PUC has entered its order authorizing the issuance and sale thereof,
subject to the limitations on the terms and conditions of such issuance
and sale set forth in such order and such order has become final and has
not been appealed.
(n) The Company and each of its subsidiaries has good and valid title
to all or substantially all of their respective properties.
(o) The Company is not, and upon the issuance and sale of the
Underwritten Securities as herein contemplated and the application of
the net proceeds therefrom as described in the Prospectus will not be,
an "investment company" or an entity "controlled" by an "investment
company" as such terms are defined in the Investment Company Act of
1940, as amended (the "1940 Act").
2. Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company agrees to sell to
each Underwriter, severally and not jointly, and each Underwriter agrees,
severally and not jointly, to purchase from the Company, at the purchase price
and on the other terms set forth in Schedule I hereto, the principal amount of
the Underwritten Securities set forth opposite its name in Schedule II hereto.
3. Any offer to purchase Underwritten Securities by institutional
investors solicited by the Underwriters for delayed delivery shall be made
pursuant to contracts substantially in the form of Exhibit A attached hereto,
with such changes therein as the Company and the Representative may approve
("Delayed Delivery Contracts"). The Company shall have the right, in its sole
discretion, to approve or disapprove each such institutional investor.
Underwritten Securities which are subject to Delayed Delivery Contracts are
herein sometimes called "Delayed Delivery Underwritten Securities" and
Underwritten Securities which are not subject to Delayed Delivery Contracts are
herein sometimes called "Immediate Delivery Underwritten Securities".
Contemporaneously with the purchase on the Delivery Date by the
Underwriters of the Immediate Delivery Underwritten Securities pursuant to this
Agreement, the Company will pay to the Representative, for the account of the
Underwriters, the compensation specified in Schedule I hereto for arranging the
sale of Delayed Delivery Underwritten Securities. The Underwriters shall have no
responsibility with respect to the validity or performance of any Delayed
Delivery Contracts.
For the purposes of determining the principal amount of Immediate
Delivery Underwritten Securities to be purchased by each Underwriter, there
shall be deducted from the principal amount of Underwritten Securities to be
purchased by such Underwriter as set forth in Schedule II hereto that portion of
the aggregate principal amount of Delayed Delivery
6
Underwritten Securities that the principal amount of Underwritten Securities to
be purchased by such Underwriter as set forth in Schedule II hereto bears to the
aggregate principal amount of Underwritten Securities set forth there to be
purchased by all of the Underwriters (in each case as adjusted by the
Representative to avoid fractions of the minimum principal amount in which the
Underwritten Securities may be issued), except to the extent that the
Representative determines, in its discretion, that such deduction shall be
otherwise than in such proportion and so advises the Company.
4. The Company shall not be obligated to deliver any Underwritten
Securities except upon payment for all Immediate Delivery Underwritten
Securities to be purchased pursuant to this Agreement as hereinafter provided.
5. If any Underwriter defaults in the performance of its obligations
under this Agreement, the remaining non-defaulting Underwriters, if any, shall
be obligated to purchase the Immediate Delivery Underwritten Securities which
the defaulting Underwriter agreed but failed to purchase in the respective
proportions which the principal amount of Underwritten Securities set forth in
Schedule II hereto to be purchased by each remaining non-defaulting Underwriter
set forth therein bears to the aggregate principal amount of Underwritten
Securities set forth therein to be purchased by all the remaining non-defaulting
Underwriters; provided that the remaining non-defaulting Underwriters shall not
be obligated to purchase any Immediate Delivery Underwritten Securities if the
aggregate principal amount of Immediate Delivery Underwritten Securities which
the defaulting Underwriter or Underwriters agreed but failed to purchase exceeds
9.09% of the total principal amount of Underwritten Securities, and any
remaining non-defaulting Underwriter shall not be obligated to purchase more
than 110% of the principal amount of Underwritten Securities set forth in
Schedule II hereto to be purchased by it. If the foregoing maximums are
exceeded, the remaining non-defaulting Underwriters, or those other underwriters
satisfactory to the Representative who so agree, shall have the right, but shall
not be obligated, to purchase, in such proportion as may be agreed upon among
them, all the Immediate Delivery Underwritten Securities. If the remaining
Underwriters or other underwriters satisfactory to the Representative do not
elect to purchase the Immediate Delivery Underwritten Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase, this
Agreement shall terminate without liability on the part of any non-defaulting
Underwriter or the Company, except that the Company will continue to be liable
for the payment of expenses as set forth in Paragraph 7(k) hereof.
Nothing contained in this Paragraph 5 shall relieve a defaulting
Underwriter of any liability it may have to the Company for damages caused by
its default. If other underwriters are obligated or agree to purchase the
Immediate Delivery Underwritten Securities of a defaulting or withdrawing
Underwriter, either the Representative or the Company may postpone the Delivery
Date for up to seven full business days in order to effect any changes that in
the opinion of counsel for the Company or counsel for the Underwriters may be
necessary in the Registration Statements, any Prospectus or in any other
document or arrangement.
6. Delivery of and payment for the Immediate Delivery Underwritten
Securities shall be made at such address, date and time as may be specified in
Schedule I hereto. This date and time
7
are sometimes referred to as the "Delivery Date". On the Delivery Date the
Company shall deliver the Immediate Delivery Underwritten Securities to The
Depository Trust Company, on behalf of the Representative, for the account of
each Underwriter against payment to the Company by wire transfer of immediately
available funds to a bank account designated by the Company. Time shall be of
the essence, and delivery at the time and place specified pursuant to this
Agreement is a further condition of the obligation of each Underwriter
hereunder. Upon delivery, the Immediate Delivery Underwritten Securities shall
be in registered form and in such denominations as may be set forth on Schedule
I hereto. The certificates representing the Immediate Delivery Underwritten
Securities shall be registered in the name of Cede & Co. and shall be made
available for inspection by the Representative in New York, New York not later
than 2:00 P.M., local time, on the business day prior to the Delivery Date.
7. The Company agrees:
(a) To furnish promptly to the Representative and to counsel for the
Underwriters a conformed copy of each Registration Statement as
originally filed and each amendment or supplement thereto filed prior to
the date hereof or relating to or covering the Underwritten Securities,
and a copy of each Prospectus filed with the Commission, including all
documents incorporated therein by reference and all consents and
exhibits filed therewith;
(b) To deliver promptly to the Representative such reasonable number
of the following documents as the Representative may request: (i)
conformed copies of the Registration Statements (excluding exhibits
other than the computation of the ratio of earnings to fixed charges,
the Indenture and this Agreement), (ii) each Prospectus and (iii) any
documents incorporated by reference in the Prospectus;
(c) During such period following the date hereof as, in the opinion
of counsel for the Underwriters, any Prospectus is required by law to be
delivered, to comply with the Act, the Exchange Act, the Trust Indenture
Act and the rules and regulations under each thereof, so as to permit
the completion of the distribution of the Underwritten Securities as
contemplated in this Agreement and in each Prospectus. If at any time
when a prospectus is required by the Act to be delivered in connection
with sales of the Underwritten Securities, any event shall occur or
condition shall exist as a result of which it is necessary, in the
reasonable opinion of counsel for the Underwriters or for the Company,
to amend any Registration Statement or amend or supplement any
Prospectus in order that such Prospectus will not include any untrue
statements of a material fact or omit to state a material fact necessary
in order to make the statements therein not misleading in the light of
the circumstances existing at the time it is delivered to a purchaser,
or if it shall be necessary, in the opinion of such counsel, at any such
time to amend any Registration Statement or amend or supplement any
Prospectus in order to comply with the requirements of the Act or the
Rules and Regulations, the Company will promptly prepare and file with
the Commission, subject to Paragraph (d) below, such amendment or
supplement as may be necessary to correct such statement or omission or
to make any such Registration Statement or any such Prospectus comply
with such
8
requirements, and the Company will furnish to the Underwriters such
number of copies of such amendment or supplement as the Underwriters may
reasonably request.
(d) Prior to filing with the Commission during the period referred to
in (c) above (i) any amendment or supplement to any Registration
Statement, (ii) any Prospectus or any amendment or supplement thereto or
(iii) any document incorporated by reference in any of the foregoing or
any amendment or supplement to such incorporated document, to furnish a
copy thereof to the Representative and to counsel for the Underwriters
and not to file any document that shall have been disapproved by the
Representative;
(e) To advise the Representative promptly (i) when any post-effective
amendment to any Registration Statement relating to or covering the
Underwritten Securities becomes effective or any supplement to any
Prospectus shall have been filed, (ii) of any comments from the
Commission or any request or proposed request by the Commission for an
amendment or supplement to any Registration Statement (insofar as the
amendment or supplement relates to or covers the Underwritten
Securities), to any Prospectus, to any document incorporated by
reference in any of the foregoing or for any additional information,
(iii) of the issuance by the Commission of any stop order suspending the
effectiveness of any Registration Statement or any order directed to any
Prospectus or any document incorporated therein by reference or the
initiation or threat of any stop order proceeding or of any challenge to
the accuracy or adequacy of any document incorporated by reference in
any Prospectus, (iv) of receipt by the Company of any notification with
respect to the suspension of the qualification of the Underwritten
Securities for sale in any jurisdiction or the initiation or threat of
any proceeding for that purpose and (v) of the happening of any event
which makes untrue any statement of a material fact made in any
Registration Statement (insofar as such Registration Statement relates
to or covers the Underwritten Securities) or any Prospectus or which
requires the making of a change in any Registration Statement or any
Prospectus in order to make any material statement therein not
misleading;
(f) If, during the period referred to in (c) above, the Commission
shall issue a stop order suspending the effectiveness of any
Registration Statement, to make every reasonable effort to obtain the
lifting of that order at the earliest possible time;
(g) As soon as practicable, to make generally available to its
security holders and to deliver to the Representative an earnings
statement, conforming with the requirements of Section 11(a) of the Act,
covering a period of at least twelve months beginning after the latest
of (i) the most recent effective date of the registration statement
relating to part of the Underwritten Securities, (ii) the effective date
of the most recent post-effective amendment to the Last Registration
Statement that became effective prior to the date of this Agreement and
(iii) the date of the Company's most recent Annual Report on Form 10-K
filed with the Commission prior to the date of this Agreement.
(h) So long as any of the Underwritten Securities are outstanding, to
furnish to the Representative copies of all reports and financial
statements furnished by the Company to
9
each securities exchange on which securities issued by the Company may
be listed pursuant to requirements of or agreements with such exchange
or to the Commission pursuant to the Exchange Act or any rule or
regulation of the Commission thereunder;
(i) To endeavor to qualify the Underwritten Securities for offer and
sale under the securities laws of such jurisdictions as the
Representative may reasonably request and to maintain such
qualifications in effect for as long as may be required for the
distribution of the Underwritten Securities; provided, however, that the
Company shall not be obligated to file any general consent to service of
process or to qualify as a foreign corporation or as a dealer in
securities in any jurisdiction in which it is not so qualified or to
subject itself to taxation in respect of doing business in any
jurisdiction in which it is not otherwise so subject;
(j) To use its best efforts to obtain the listing of the Underwritten
Securities on the securities exchange, if any, set forth on Schedule I
("Stock Exchange") on or prior to the Delivery Date and to cause such
listing to be continued so long as any amount of the Securities remains
outstanding; to furnish from time to time any and all documents,
instruments, information and undertakings that may be necessary in order
to effect such listing; and to maintain the same until none of the
Underwritten Securities is outstanding or until such time as payment of
principal of and premium, if any, and interest on all the Underwritten
Securities has been duly provided for, whichever is earlier; provided
that if the Company can no longer reasonably maintain such listing, the
Company shall use its best efforts to obtain and maintain the quotation
for, or listing of, the Underwritten Securities on such other securities
exchange or exchanges as the Company may, with the approval of the
Representative, determine;
(k) To pay the costs incident to the authorization, issuance, sale
and delivery of the Underwritten Securities and any taxes payable in
that connection; the costs incident to the preparation, printing and
filing under the Act of the Registration Statements and any amendments,
supplements and exhibits thereto; the costs incident to the preparation,
printing and filing of any document and any amendments and exhibits
thereto required to be filed by the Company under the Exchange Act; the
costs of distributing the Registration Statements as originally filed
and each amendment and post-effective amendment thereof (including
exhibits), any Preliminary Prospectus, each Prospectus and any documents
incorporated by reference in any of the foregoing documents; the costs
of printing this Agreement and the Delayed Delivery Contracts, if any;
the fees and disbursements of the Company's counsel, accountants and
other advisors; the fees and expenses of the Trustee, including the fees
and disbursements of counsel for the Trustee in connection with the
Indenture and the Underwritten Securities, to the extent the Trustee or
its counsel, as the case may be, requires reimbursement thereof; the
costs of any filings with the National Association of Securities
Dealers, Inc.; fees paid to rating agencies in connection with the
rating of the Securities, including the Underwritten Securities; the
fees and expenses of qualifying the Underwritten Securities under the
securities laws of the several jurisdictions as provided in this
Paragraph and of preparing and printing a Blue Sky Memorandum (including
fees of counsel to the Underwriters);
10
the cost of listing the Underwritten Securities on the Stock Exchange;
and all other costs and expenses incident to the performance of the
Company's obligations under this Agreement; provided that, except as
provided in this Paragraph and in Paragraph 11 hereof, the Underwriters
shall pay their own costs and expenses, including the fees and expenses
of their counsel, any transfer taxes on the Underwritten Securities
which they may sell and the expenses of advertising any offering of the
Underwritten Securities made by the Underwriters;
(l) Until the termination of the offering of the Underwritten
Securities, to timely file all documents, and any amendments to
previously filed documents, required to be filed by the Company pursuant
to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act; and
(m) During the period beginning on the date hereof and continuing to
the Delivery Date, without the consent of the Representative, not to
offer, sell, contract to sell or otherwise dispose of any debt
securities of the Company with maturities longer than one year, other
than the Underwritten Securities to the Underwriters.
8. (a) The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in any Registration
Statement (or any amendment thereto) or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary
to make the statements therein not misleading or arising out of any
untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus or 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 incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to
Paragraph 8(d) below) any such settlement is effected with the written
consent of the Company; and
(iii) against any and all expense whatsoever, as incurred (including
the fees and disbursements of outside counsel chosen by the
Representative), reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue
11
statement or omission, to the extent that any such expense is not paid
under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through the Representative expressly for use in any Registration
Statement (or any amendment thereto) or any Preliminary Prospectus or Prospectus
(or any amendment or supplement thereto).
(b) Each Underwriter severally agrees to indemnify and hold harmless the
Company, its directors, each of its officers who signed any Registration
Statement, and each person, if any, who controls the Company within the meaning
of Section 15 of the Act or Section 20 of the Exchange Act against any and all
loss, liability, claim, damage and expense described in the indemnity contained
in subsection (a) of this Paragraph 8, as incurred, but only with respect to
untrue statements or omissions, or alleged untrue statements or omissions, made
in any Registration Statement (or any amendment thereto) or any Preliminary
Prospectus or Prospectus (or any amendment or supplement thereto) in reliance
upon and in conformity with written information furnished to the Company by such
Underwriter through the Representative expressly for use in any Registration
Statement (or any amendment thereto) or such Preliminary Prospectus or
Prospectus (or any amendment or supplement thereto).
(c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any liability
hereunder to the extent it is not materially prejudiced as a result thereof and
in any event shall not relieve it from any liability which it may have otherwise
than on account of this indemnity agreement. In the case of parties indemnified
pursuant to Paragraph 8(a) above, counsel to the indemnified parties shall be
selected by the Representative, and, in the case of parties indemnified pursuant
to Paragraph 8(b) above, counsel to the indemnified parties shall be selected by
the Company. An indemnifying party may participate at its own expense in the
defense of any such action; provided, however, that counsel to the indemnifying
party shall not (except with the consent of the indemnified party) also be
counsel to the indemnified party. In no event shall the indemnifying parties be
liable for fees and expenses of more than one counsel (in addition to any local
counsel) separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related actions in the
same jurisdiction arising out of the same general allegations or circumstances.
No indemnifying party shall, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be sought
under this Paragraph 8 (whether or not the indemnified parties are actual or
potential parties thereto), unless such settlement, compromise or consent (i)
includes an unconditional release of each indemnified party from all liability
arising out of such litigation, investigation, proceeding or
12
claim and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act by or on behalf of any indemnified party.
(d) If at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 6(a)(ii) effected without its
written consent if (i) such settlement is entered into more than 45 days after
receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such settlement at
least 30 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement.
(e) If the indemnification provided for in this Paragraph 8 is for any
reason unavailable to or insufficient to hold harmless an indemnified party in
respect of any losses, liabilities, claims, damages or expenses referred to
therein, then each indemnifying party shall contribute to the aggregate amount
of such losses, liabilities, claims, damages and expenses incurred by such
indemnified party, as incurred, (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand and the
Underwriters on the other hand from the offering of the Underwritten Securities
pursuant to this Agreement or (ii) if the allocation provided by clause (i) is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Company on the one hand and of the Underwriters on the
other hand in connection with the statements or omissions which resulted in such
losses, liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
The relative benefits received by the Company on the one hand and the
Underwriters on the other hand in connection with the offering of the
Underwritten Securities pursuant to this Agreement shall be deemed to be in the
same respective proportions as the total net proceeds from the offering of the
Underwritten Securities pursuant to this Agreement (before deducting expenses)
received by the Company and the total underwriting discount received by the
Underwriters, bear to the aggregate initial offering price of the Underwritten
Securities.
The relative fault of the Company on the one hand and the Underwriters
on the other hand shall be determined by reference to, among other things,
whether any such untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Paragraph 8(e) were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Paragraph 8(e). The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Paragraph 8(e) shall be deemed
to include any
13
legal or other expenses reasonably incurred by such indemnified party in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Paragraph 8(e), no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the Underwritten Securities 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.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation.
For purposes of this Paragraph 8(e), each person, if any, who controls
an Underwriter within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company who signed any
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act shall
have the same rights to contribution as the Company. The Underwriters'
respective obligations to contribute pursuant to this Paragraph 8(e) are several
in proportion to the principal amount of Underwritten Securities set forth
opposite their respective names in Schedule II hereto and not joint.
(f) The indemnity agreements contained in this Paragraph and the
representations, warranties and agreements of the Company in Paragraph 1 and
Paragraph 7 hereof shall survive the delivery of the Underwritten Securities and
shall remain in full force and effect, regardless of any termination or
cancellation of this Agreement or any investigation made by or on behalf of any
indemnified party.
9. (a) The Representative may terminate this Agreement, by notice to the
Company, at any time at or prior to the delivery of and payment for the
Immediate Delivery Underwritten Securities, (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 Prospectus, any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company or the Company and its subsidiaries taken as a
whole, whether or not arising in the ordinary course of business, the effect of
which is such as to make it, in the judgment of the Representative,
impracticable to market the Underwritten Securities or to enforce contracts for
the sale of the Underwritten Securities, 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 Representative,
impracticable to market the Underwritten Securities or to enforce contracts for
the sale of the Underwritten Securities, or
14
(iii) if trading in any securities of the Company or Xxxx Atlantic Corporation
has been suspended or materially limited by the Commission, 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.
(b) If this Agreement is terminated pursuant to this Paragraph 9, such
termination shall be without liability of any party to any other party except as
provided in Paragraph 11 hereof, and provided further that Paragraphs 1 and 8
shall survive such termination and remain in full force and effect.
10. The respective obligations of the Underwriters under the Agreement
with respect to the Underwritten Securities are subject to the accuracy, on the
date hereof and on the Delivery Date, of the representations and warranties of
the Company contained herein, to performance by the Company of its obligations
hereunder, and to each of the following additional terms and conditions
applicable to the Underwritten Securities.
(a) At or before the Delivery Date, no stop order suspending the
effectiveness of any Registration Statement nor any order directed to
any document incorporated by reference in any Prospectus shall have been
issued and prior to that time no stop order proceeding shall have been
initiated or threatened by the Commission and no challenge shall have
been made to the accuracy or adequacy of any document incorporated by
reference in any Prospectus; any request of the Commission for inclusion
of additional information in any Registration Statement or any
Prospectus or otherwise shall have been complied with; and after the
date hereof the Company shall not have filed with the Commission any
amendment or supplement to any Registration Statement or any Prospectus
(or any document incorporated by reference therein) that shall have been
disapproved by the Representative.
(b) No Underwriter shall have discovered and disclosed to the Company
on or prior to the Delivery Date that any Registration Statement or any
Prospectus contains an untrue statement of a fact which, in the opinion
of counsel for the Underwriters, is material or omits to state a fact
which, in the opinion of such counsel, is material and is required to be
stated therein or is necessary to make the statements therein not
misleading.
(c) All corporate proceedings and other legal matters incident to the
authorization, form and validity of this Agreement, the Underwritten
Securities and the Indenture and the form of the Registration
Statements, each Prospectus (other than financial statements and other
financial data) and all other legal matters relating to this Agreement
and the transactions contemplated hereby shall be satisfactory in all
respects to Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the Underwriters,
and the Company shall have furnished to such
15
counsel all documents and information that such counsel may reasonably
request to enable it to pass upon such matters.
(d) The General Counsel of the Company shall have furnished to the
Representative his opinion addressed to the Underwriters and dated the
Delivery Date, as General Counsel of the Company, to the effect that:
(i) The Company has been duly incorporated and is
validly existing and remains a subsisting corporation under the laws
of the Commonwealth of Pennsylvania;
(ii) The Company is duly qualified to do business and is
in good standing as a foreign corporation in all jurisdictions in
which its ownership of property or the conduct of its business
requires such qualification (except where the failure to so qualify
would not have a Material Adverse Effect), and has all power and
authority necessary to own its properties and conduct the business in
which it is engaged as described in the Prospectus;
(iii) The Indenture has been duly authorized, executed and
delivered by the Company and duly qualified under the Trust Indenture
Act and, assuming due authentication, execution and delivery by the
Trustee, constitutes a valid and legally binding instrument of the
Company enforceable in accordance with its terms;
(iv) The Immediate Delivery Underwritten Securities have
been duly authorized, executed and issued by the Company and,
assuming due authentication thereof by the Trustee and upon payment
and delivery in accordance with this Agreement, will constitute valid
and legally binding obligations of the Company enforceable in
accordance with their terms and entitled to the benefits of the
Indenture;
(v) The Delayed Delivery Underwritten Securities, if
any, have been duly authorized and, when duly executed and issued by
the Company and, assuming due authentication thereof by the Trustee
and upon payment and delivery by the respective purchasers thereof in
accordance with the terms of the related Delayed Delivery Contracts,
will constitute valid and legally binding obligations of the Company,
enforceable in accordance with their terms and entitled to the
benefits of the Indenture;
(vi) The Delayed Delivery Contracts, if any, have been
duly authorized, executed and delivered by the Company and, assuming
due authorization, execution and delivery by the purchasers
thereunder, are valid and legally binding obligations of the parties
thereto;
(vii) The statements made in each Prospectus under the
caption "Description of Securities" (or a comparable caption),
insofar as they purport to
16
constitute summaries of the documents referred to therein, constitute
accurate summaries of the terms of such documents in all material
respects;
(viii) Each Registration Statement is effective under the
Act and, to the knowledge of such counsel, no stop order suspending
its effectiveness has been issued and no proceeding for that purpose
is pending or threatened by the Commission;
(ix) No order issued by the Commission directed to any
document incorporated by reference in any Prospectus has been issued
and, to the knowledge of such counsel, no challenge has been made by
the Commission to the accuracy or adequacy of any such document;
(x) Such counsel does not know of any litigation or any
governmental proceeding pending or threatened against the Company
which would affect the subject matter of this Agreement or is
required to be disclosed in any Prospectus (including the documents
incorporated by reference therein) which is not disclosed and
correctly summarized therein;
(xi) To the best of such counsel's knowledge, the Company
is not in violation of its corporate charter or by-laws, or in
default under any material agreement, indenture or instrument;
(xii) This Agreement has been duly authorized, executed
and delivered by the Company;
(xiii) The execution, delivery and performance of this
Agreement and the Delayed Delivery Contracts, if any, and compliance
by the Company with the provisions of the Underwritten Securities and
the Indenture will not constitute a breach of, or result in the
creation or imposition of any lien, charge or encumbrance upon any of
the assets of the Company pursuant to the terms of, or constitute a
default under, any agreement, indenture or instrument known to such
counsel, or result in a violation of the corporate charter or by-laws
of the Company or, to the best of such counsel's knowledge, any
order, rule or regulation of any court or governmental agency having
jurisdiction over the Company or its property;
(xiv) All legally required proceedings in connection with
the authorization, issue and validity of the Underwritten Securities
and the sale of the Underwritten Securities by the Company in
accordance with this Agreement have been taken, and all legally
required orders, consents or other authorizations or approvals of the
PUC and of any other public boards or bodies have been obtained and
all conditions precedent to the issue of the Underwritten Securities
in any such order, consent, authorization or approval have been
fulfilled, except such as may be required under state securities or
Blue Sky laws; and
17
(xv) The Company is not an "investment company" or an
entity "controlled" by an "investment company," as such terms are
defined in the 1940 Act.
In giving such opinion, such counsel may rely on the opinion of New York
counsel satisfactory to counsel for the Underwriters as to matters of New York
law. In giving such opinion, such counsel need not express any opinion regarding
any order, consent or other authorization or approval which may be legally
required pursuant to any state securities law.
Such counsel may state that the opinions set forth in paragraphs (iii),
(iv), (v) and (vi) above are subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing.
Such opinion shall also state that the Registration Statements and each
Prospectus as of their respective effective and issue dates complied as to form
in all material respects with the requirements of the Act and the Trust
Indenture Act and the rules and regulations of the Commission under said Acts
(except that no opinion need be expressed as to the financial statements and
other financial data contained herein) and each document incorporated by
reference in each Prospectus as filed under the Exchange Act complied when so
filed as to form in all material respects with the applicable requirements of
the Exchange Act and the rules and regulations of the Commission thereunder
(except that no opinion need be expressed as to the financial statements and
other financial data contained therein).
Such opinion shall also contain a statement that such counsel has no
reason to believe that (i) any Registration Statement, on the date it became
effective (or, with respect to such Registration Statement, if the Company has
filed an Annual Report on Form 10-K since its effective date, the date of the
Company's most recent Annual Report on Form 10-K), contained an untrue statement
of a material fact or omitted to state a material fact required to be stated
therein or necessary in order to make the statements therein not misleading, or
(ii) the Prospectus, as of its date and as of the Delivery Date, contains an
untrue statement of a material fact or omits to state a material fact necessary
in order to make the statements therein, in light of the circumstances under
which they were made, not misleading.
(e) At the Delivery Date, there shall not have been, since the date
hereof or since the respective dates as of which information is given in the
Prospectus, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Company or the Company and its subsidiaries taken as a whole, whether or not
arising in the ordinary course of business, and the Representative shall have
received a certificate of the Chairman of the Board, the President, the Chief
Financial Officer or a Vice President of the Company, and the Treasurer or an
Assistant Treasurer of the Company, dated the Delivery Date, to the effect that
(i) there has been no such material adverse change, (ii) the representations and
warranties in Paragraph 1 hereof are true and correct with the same force and
effect as though expressly made at and as of the Delivery Date, (iii) the
Company has complied with all agreements and satisfied all conditions on its
part to be performed or satisfied at or prior to the
18
Delivery Date, and (iv) no stop order suspending the effectiveness of any
Registration Statement has been issued and no proceedings for that purpose have
been instituted or are pending or are contemplated by the Commission.
(f) If Underwritten Securities in bearer form are being delivered by the
Company on the Delivery Date in a jurisdiction other than the United States, the
Company shall have furnished to the Representative such legal opinion or
opinions as the Representative may reasonably request addressed to the
Underwriters and dated the Delivery Date, with respect to matters relating to
the offering, sale and delivery of the Underwritten Securities in such
jurisdiction.
(g) The Company shall have furnished to the Representative (i) a letter
of PricewaterhouseCoopers, addressed to the Underwriters and dated the date
hereof of the type described in the American Institute of Certified Public
Accountants' Statement on Auditing Standards No. 72 and covering such specified
financial statement items as counsel for the Underwriters may reasonably have
requested and (ii) a letter of PricewaterhouseCoopers, addressed to the
Underwriters and dated the Delivery Date, 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 referred to in subclause (i)
above, confirming in all material respects the conclusions and findings set
forth in such prior letter.
(h) Xxxxxxx Xxxxxxx & Xxxxxxxx shall have furnished to the
Representative its opinion addressed to the Underwriters and dated the Delivery
Date, as counsel for the Underwriters, covering the matters set forth in
Paragraph 10(d), except clauses (ii), (viii), (ix), (x), (xi) and (xiii)
thereof.
(i) The PUC shall have granted authorization, and on the Delivery Date
such authorization shall be in full force and effect and non-appealable,
permitting the issuance and sale of the Underwritten Securities upon the terms
and conditions hereunder set forth or contemplated and containing no provision
unacceptable to the Underwriters, and all conditions precedent to the issuance
and sale of the Underwritten Securities contained therein shall have been
fulfilled.
(j) The Underwritten Securities shall have been accepted for listing on
the Stock Exchange (if any), subject to official notice of issuance.
(k) At the Delivery Date, the Underwritten Securities shall be rated at
least "Aa2" by Moody's Investor's Service Inc., "AA" by Standard & Poor's
Ratings Group, a division of XxXxxx-Xxxx, Inc., and "AA+" by Duff & Xxxxxx
Credit Rating Co., and the Company shall have delivered to the Representative a
letter dated the Delivery Date, from each such rating agency, or other evidence
satisfactory to the Representative, confirming that the Underwritten Securities
have such ratings; and since the date of this Agreement, there shall not have
occurred a downgrading in the rating assigned to the Underwritten Securities or
any of the Company's other debt securities by any such rating agency, and no
such rating agency shall have publicly
19
announced that it has withdrawn or has put under surveillance or review with
negative implications, including putting on what is commonly termed a "watch
list," its rating of the Underwritten Securities or any of the Company's other
debt securities.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance satisfactory to counsel
for the Underwriters.
11. If the Company shall fail to tender the Immediate Delivery
Underwritten Securities for delivery to the Underwriters for any reason
permitted under this Agreement, or if the Underwriters shall decline to purchase
the Immediate Delivery Underwritten Securities for any reason permitted under
this Agreement (other than pursuant to Paragraph 5 hereof). the Company shall
reimburse the Underwriters for reasonable fees and expenses of their counsel and
for such other out-of-pocket expenses as shall have been incurred by them in
connection with this Agreement and the proposed purchase of Immediate Delivery
Underwritten Securities and the solicitation of any purchases of the Delayed
Delivery Underwritten Securities, and upon demand the Company shall pay the full
amount thereof to the Representative. If this Agreement is terminated pursuant
to Paragraph 5 hereof by reason of the default of one or more Underwriters, the
Company shall not be obligated to reimburse any defaulting Underwriter on
account of those expenses.
12. The Company shall be entitled to act and rely upon any request,
consent, notice or agreement by, or on behalf of, the Representative. Any notice
by the Company to the Underwriters shall be sufficient if given in writing or by
telegraph addressed to the Representative at its address set forth in Schedule I
hereto, and any notice by the Underwriters to the Company shall be sufficient if
given in writing or by telegraph addressed to the Company at 0000 Xxxxxx xx xxx
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention of the Treasurer.
13. This Agreement shall be binding upon the Underwriters, the Company,
and their respective successors. This Agreement and the terms and provisions
hereof are for the sole benefit of only those persons, except that (a) the
representations, warranties, indemnities and agreements of the Company contained
in this Agreement shall also be deemed to be for the benefit of the person or
persons, if any, who control any Underwriter within the meaning of Section 15 of
the Act, and (b) the indemnity agreement of the Underwriters contained in
Paragraph 8 hereof shall be deemed to be for the benefit of directors of the
Company, officers of the Company who have signed any Registration Statement and
any person controlling the Company. Nothing in this Agreement is intended or
shall be construed to give any person, other than the persons referred to in
this Paragraph, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision contained herein.
14. For purposes of this Agreement, (a) "business day" means any day on
which the New York Stock Exchange, Inc. is open for trading and (b) "subsidiary"
has the meaning set forth in Rule 405 of the Rules and Regulations.
20
15. This Agreement shall be governed by and construed in accordance with
the laws of New York.
21
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this Agreement shall represent a binding agreement among the Company and the
several Underwriters.
Very truly yours,
XXXX ATLANTIC -- PENNSYLVANIA, INC.
By /s/ Xxxx X. Xxxxx
-------------------------------
Name: Xxxx X. Xxxxx
Title: Treasurer
The foregoing Agreement is hereby confirmed
and accepted as of the date first above
written.
XXXXXXX LYNCH, PIERCE, XXXXXX
& XXXXX INCORPORATED
By /s/ Xxxxxxxxx Xxx
--------------------------------
Name: Xxxxxxxxx Xxx
Title: Vice President
For itself and as Representative of the other Underwriters named in Schedule II
to the foregoing Agreement.
SCHEDULE I
Underwriting Agreement dated December 2, 1998.
Registration Statement Nos. 33-50869 and 33-55252.
Representatives and Addresses: Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Underwritten Securities
Designation: Thirty Year 6% Debentures due
December 1, 2028
Principal amount: $125,000,000
Indenture: Indenture, dated as of September 1, 0000,
xxxxxxx Xxxx Xxxxxxxx-Xxxxxxxxxxxx, Inc.
and The Chase Manhattan Bank, as successor
Trustee.
Date of Maturity: December 1, 2028
Interest Rate: 6% per annum, payable June 1 and
December 1 of each year, commencing
June 1, 1999, to holders of record at the
close of business on May 15 or November 15
prior to the payment date.
Purchase Price: 98.85% of the principal amount thereof.
Redemption Provisions: The Debentures are not redeemable prior to
maturity.
Authorized Denominations: $1,000 and integral multiples thereof.
Stock Exchange Listing: None.
Delivery Date, Time and Location: December 9, 1998 at 9:30 a.m., at the
offices of Xxxxxxx Xxxxxxx & Xxxxxxxx,
000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000.
SCHEDULE II
Principal
Amount of
Underwritten
Securities
---------------------
Name of Underwriter
-----------------------------------------------------
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated.... $40,000,000
PaineWebber Incorporated.............................. $40,000,000
Prudential Securities Incorporated.................... $25,000,000
Chase Securities Inc. ............................... $10,000,000
Xxxxxxxx Capital Partners, L.P. ..................... $10,000,000
------------
Total $125,000,000
============
EXHIBIT A
$
XXXX ATLANTIC -- PENNSYLVANIA, INC.
DEBT SECURITIES
DELAYED DELIVERY CONTRACT
[DATE]
XXXX ATLANTIC -- PENNSYLVANIA, INC.
0000 Xxxxxx xx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
The undersigned hereby agrees to purchase from Xxxx Atlantic --
Pennsylvania, Inc., a Pennsylvania corporation ("Company"), and the Company
hereby agrees to sell to the undersigned,
$
principal amount of the Company's above-captioned securities ("Securities"),
offered by the Company's prospectus dated , 199 , as supplemented by the
prospectus supplement dated , 199 (collectively, the "Prospectus"), receipt of a
copy of which is hereby acknowledged, at a purchase price of % of the principal
amount thereof plus accrued interest from , 199 to the Delivery Date (as defined
in the next paragraph) and on the further terms and conditions set forth in this
Contract.
Payment for and delivery of the Securities to be purchased by the
undersigned shall be made on , 199 , herein called the "Delivery Date".
At 10:00 A.M., New York time, on the Delivery Date, the Securities to be
purchased by the undersigned hereunder will be delivered by the Company to the
undersigned, and the undersigned will accept delivery of such Securities and
will make payment to the Company of the purchase price therefor, at the office
of . Payment will be certified or official bank check payable in next-day funds
settled through the New York Clearing House to or upon the order of the Company.
This Contract will terminate and be of no further force and effect after
, 199 , unless (i) on or before such date it shall have been executed and
delivered by both parties hereto or (ii) the Company shall have sold to the
Underwriters named in the Prospectus the Immediate Delivery Underwritten
Securities (as defined in the Underwriting Agreement referred to in the
Prospectus) and the Company shall have mailed or delivered to the undersigned at
its address set forth below a notice to that effect, stating the date of the
occurrence thereof, accompanied by
1
copies of the opinion of counsel for the Company delivered to such Underwriters
pursuant to Paragraph 10(d) of the Underwriting Agreement.
The obligation of the undersigned to accept delivery and make payment
for the Securities on the Delivery Date will be subject to the condition that
the Securities shall not, on the Delivery Date, be an investment prohibited by
the laws of the jurisdiction to which the undersigned is subject, the
undersigned hereby representing that such an investment is not so prohibited on
the date hereof. This Contract will inure to the benefit of and be binding upon
the parties hereto and their respective successors but will not be assignable by
either party hereto without the written consent of the other.
It is understood that acceptance of any Delayed Delivery Contract (as
defined in said Underwriting Agreement) is in the Company's sole discretion and,
without limiting the foregoing, need not be on a first-come, first-served basis.
If this Contract is acceptable to the Company, it is requested that the Company
sign the form of acceptance below and mail or deliver one of the counterparts
hereof to the undersigned at its address set forth below. This will become a
binding contract between the Company and the undersigned when such counterpart
is so mailed or delivered.
Very truly yours,
By _________________________
____________________________
Title
____________________________
Address
Accepted as of , .
XXXX ATLANTIC -- PENNSYLVANIA, INC.
By ____________________________
Title
