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Exhibit 1
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IBP, INC.
DEBT SECURITIES
UNDERWRITING AGREEMENT
_______, 199_
To the several Underwriters named
in the respective Terms Agreements
hereinafter described
Dear Ladies and Gentlemen:
IBP, inc., a Delaware corporation ("IBP" or the "Company"),
proposes to issue and sell its senior unsecured debt securities (the "Debt
Securities") in one or more offerings on the terms and conditions determined at
the time of sale. The Debt Securities will be issued pursuant to an indenture
dated as of _______, 199_ (the "Indenture") between the Company and The Bank of
New York, as trustee (the "Trustee").
From time to time, the Company may enter into one or more terms
agreements (each a "Terms Agreement") that provide for the sale of such
designated Debt Securities to, and the purchase and offering thereof by, the
underwriter or underwriters named therein (the "Underwriters" or "you", which
terms shall include the underwriter or underwriters named therein whether acting
alone in the sale of Debt Securities or as members of an underwriting syndicate)
and the provisions set forth herein (except for provisions which relate to
securities other than Debt Securities designated in the applicable Terms
Agreement) shall be incorporated by reference in any such Terms Agreement. The
applicable Terms Agreement, including the provisions incorporated therein by
reference, is herein referred to as "this Agreement."
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1. Representations, Warranties and Agreements of the
Company. The Company represents, warrants and agrees that:
(a) A registration statement on Form S-3 (No.
33-64459), including a prospectus relating to the Debt
Securities of the Company for the registration of such
securities under the Securities Act of 1933, as amended (the
"Securities Act"), has (i) been prepared by the Company in
material conformity with the requirements of the Securities Act
and the rules and regulations (the "Rules and Regulations") of
the United States Securities and Exchange Commission (the
"Commission") thereunder, (ii) been filed with the Commission
under the Securities Act and (iii) become effective under the
Securities Act; and the Indenture has been qualified under the
Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act"). Copies of such registration statement and any amendments
thereto have been delivered by the Company to you. As used in
this Agreement, "Effective Date" means the date and the time as
of which such registration statement, or the most recent
post-effective amendment thereto, if any, was declared
effective by the Commission; "Registration Statement" means the
registration statement as amended to the date of this Agreement
including all documents incorporated by reference or deemed to
be incorporated by reference therein and the exhibits thereto;
"Basic Prospectus" means the prospectus included in the
Registration Statement; "Preliminary Prospectus" means any
preliminary form of Prospectus (as defined herein) specifically
relating to designated Debt Securities, in the form first filed
with, or transmitted for filing to, the Commission pursuant to
Rule 424 of the Rules and Regulations; "Prospectus Supplement"
means any prospectus supplement specifically relating to
designated Debt Securities, in the form first filed with, or
transmitted for filing to, the Commission pursuant to Rule 424
under the Securities Act; "Prospectus" means the Basic
Prospectus together with the Prospectus Supplement except that
if such Basic Pro
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spectus is amended or supplemented on or prior to the date on
which the Prospectus Supplement was first filed pursuant to
Rule 424, the term "Prospectus" shall refer to the Basic
Prospectus as so amended or supplemented and as supplemented by
the Prospectus Supplement; "Basic Prospectus," "Prospectus",
"Preliminary Prospectus" and "Prospectus Supplement" shall
include in each case the documents, if any, filed by the
Company with the Commission pursuant to the United States
Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and incorporated by reference therein; and "supplement"
and "amendment", shall be deemed to refer to and include any
documents incorporated by reference pursuant to Item 12 of Form
S-3 under the Securities Act that are filed subsequent to the
date of the Basic Prospectus by the Company with the Commission
pursuant to the Exchange Act. Any reference to any amendment to
the Registration Statement shall be deemed to include any
annual report of the Company filed with the Commission pursuant
to Section 13(a) or 15(d) of the Exchange Act after the
Effective Date that is incorporated by reference in the
Registration Statement.
(b) The Registration Statement conforms in all
material respects, and the Prospectus and any further
amendments or supplements to the Registration Statement or the
Prospectus will, when they become effective or are filed with
the Commission, as the case may be, conform in all material
respects, to the requirements of the Securities Act and the
Rules and Regulations thereunder and do not and will not, as of
the applicable Effective Date (as to the Registration Statement
and any amendment thereto) and as of the applicable filing date
(as to the Prospectus and any amendment or supplement thereto)
contain an untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to
make the statements therein (in the case of the Prospectus, in
light of the circumstances in which they were made) not
misleading; provided, however, that no representation or
warranty is
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made as to (i) that part of the Registration Statement which shall
constitute the Statement of Eligibility on Form T-1 under the Trust
Indenture Act of the Trustee, and (ii) information contained in or
omitted from the Registration Statement or the Prospectus in reliance
upon and in conformity with written information furnished to the
Company by or on behalf of any Underwriter specifically for use in the
Registration Statement or the Prospectus.
(c) The Indenture conforms in all material respects to the
requirements of the Trust Indenture Act and the applicable rules and
regulations thereunder.
(d) The documents incorporated or deemed to be incorporated by
reference in the Prospectus, when they became effective or were filed
with the Commission, as the case may be, conformed in all material
respects with the requirements of the Securities Act or the Exchange
Act, as applicable, and the rules and regulations of the Commission
thereunder, and, when read together with the Prospectus on the filing
date of the Prospectus and any amendment or supplement thereto, none of
such documents contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; and any
further documents so filed and incorporated by reference in the
Prospectus, when such documents become effective or are filed with the
Commission, as the case may be, will conform in all material respects
to the requirements of the Securities Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission thereunder
and, when read together with the Prospectus on the dates such documents
become effective or are filed with the Commission, as the case may be,
will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading.
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(e) The Company and each of its subsidiaries have been
duly incorporated and are validly existing as corporations in
good standing under the laws of their respective jurisdictions
of incorporation, are duly qualified to do business and are in
good standing as foreign corporations in each jurisdiction in
which their respective ownership or lease of property or the
conduct of their respective businesses requires such
qualification except where the failure to be so qualified and
in good standing would not be reasonably expected to have a
material adverse effect on the consolidated financial
condition, stockholders' equity, results of operations or
business of the Company and its subsidiaries, taken as a whole
(a "Material Adverse Effect"), and where so qualified have all
corporate power and authority necessary to own, lease or
operate their respective properties and to conduct the
businesses in which they are engaged as described in the
Prospectus.
(f) The Debt Securities have been duly and validly
authorized by the Company and, when duly executed, issued and
delivered by the Company, and authenticated by the Trustee
pursuant to the provisions of the Indenture, against payment
therefor as provided in this Agreement, will constitute valid
and legally binding obligations of the Company entitled to the
benefits of the Indenture and enforceable against the Company
in accordance with their terms, except as the enforceability
thereof may be subject to (i) bankruptcy, insolvency,
reorganization, fraudulent conveyance or transfer, moratorium
or similar laws affecting creditors' rights generally and (ii)
general principles of equity (regardless of whether such
enforceability is considered in a proceeding at law or in
equity); and the Debt Securities, when issued and delivered,
will conform in all material respects to the description
thereof contained in the Prospectus.
(g) The Indenture has been duly authorized by the
Company, and when duly executed by
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the proper officers of the Company (assuming due execution and
delivery by the Trustee) and delivered by the Company, will
constitute a valid and legally binding obligation of the
Company enforceable against the Company in accordance with its
terms, except as the enforceability thereof may be subject to
(i) bankruptcy, insolvency, reorganization, fraudulent
conveyance or transfer, moratorium or similar laws affecting
creditors' rights generally and (ii) general principles of
equity (regardless of whether such enforceability is considered
in a proceeding at law or in equity); and the Indenture
conforms in all material respects to the description thereof
contained in the Prospectus.
(h) This Agreement has been duly authorized, executed
and delivered by the Company.
(i) The execution, delivery and performance of this
Agreement and the Indenture by the Company, and the
consummation of the transactions contemplated hereby and
thereby, and the issuance and delivery of the Debt Securities
will not conflict with or result in a breach or violation of
any of the terms or provisions of, or constitute a default
under any indenture, lien, charge or encumbrance upon any
property or mortgage, deed of trust, loan agreement, or other
agreement or instrument to which the Company or any of its
subsidiaries is a party or by which it or any of them is bound
or to which any of the property or assets of the Company or any
of its subsidiaries is subject except for such conflicts,
breaches, violations or defaults which would not have a
Material Adverse Effect; nor will such action result in any
violation of the provisions of the charter or by-laws of the
Company or any of its subsidiaries; nor will such action result
in any violation of the provisions of any statute or any order,
rule or regulation of any court or governmental agency or body
having jurisdiction over the Company or any of its subsidiaries
or any of their material properties or assets except for
violations which
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would not have a Material Adverse Effect; and except for the
registration of the Debt Securities under the Securities Act,
the qualification of the Indenture under the Trust Indenture
Act, and such consents, approvals, authorizations,
registrations or qualifications as may be required under the
Exchange Act and applicable state securities laws in connection
with the purchase and distribution of the Debt Securities by
the Underwriters, no consent, approval, authorization or order
of, or filing, registration or qualification of or with, any
such court or governmental agency or body is required for the
execution, delivery and performance of this Agreement or the
Indenture by the Company and the consummation by the Company of
the transactions contemplated hereby and thereby.
(j) Except as described or incorporated by reference
in the Registration Statement or the Prospectus, there are no
agreements or understandings between the Company and any person
granting such person the right to require the Company to file a
registration statement under the Securities Act with respect to
any securities of the Company owned or to be owned by such
person or to require the Company to include such securities in
the securities registered pursuant to the Registration
Statement or in any securities being registered pursuant to any
other registration statement filed by the Company under the
Securities Act.
(k) Neither the Company nor any of its subsidiaries
has sustained, since the date of the latest financial
statements included or incorporated by reference in the
Prospectus, any loss or interference with its business from
fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or
governmental action, order or decree in any such case, which
would have a Material Adverse Effect, otherwise than as set
forth or contemplated in the Prospectus; and, since such date,
there has not been any change in the capital stock or long
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term debt of the Company or any of its subsidiaries or any
material adverse change, or any development involving a
prospective material adverse change, in or affecting the
general affairs, management, financial condition, stockholders'
equity or results of operations of the Company and its
subsidiaries taken as a whole, otherwise than as set forth or
contemplated in the Prospectus.
(l) Price Waterhouse L.L.P., which has certified
certain financial statements of the Company, which statements
appear in the Prospectus or are incorporated by reference
therein, and Coopers and Xxxxxxx L.L.P., which has delivered
the initial letter referred to in Section 7(g) hereof, are each
independent public accountants as required by the Securities
Act and the Rules and Regulations.
(m) The financial statements (including the related
notes and supporting schedules) filed as part of the
Registration Statement or included or incorporated by reference
in the Prospectus present fairly in all material respects 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 prepared in conformity with
United States generally accepted accounting principles applied
on a consistent basis throughout the periods involved, except
as otherwise expressly set forth therein.
(n) Except as described in the Registration Statement,
Prospectus or in documents incorporated therein by reference,
there are no legal or governmental proceedings pending to which
the Company or any of its subsidiaries is a party or of which
any material property or assets of the Company or any of its
subsidiaries is the subject which is required to be disclosed
in the Registration Statement, Prospectus or in documents
incorporated therein by reference or which would reasonably be
expected to have a Material Adverse Effect; and to the
Company's knowledge, no such proceedings are
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threatened by governmental authorities or by others.
(o) There are no contracts or other documents which
are required to be described in the Prospectus or filed as
exhibits to the Registration Statement by the Securities Act or
by the Rules and Regulations which have not been described in
the Prospectus or filed as exhibits to the Registration
Statement or incorporated therein by reference under the Rules
and Regulations.
(p) Neither the Company nor any of its subsidiaries is
(i) in violation of its charter or by-laws, or (ii) in default
in any material respect, and no event has occurred which, with
notice or lapse of time or both, would constitute such a
default, in the due performance or observance of any term,
covenant or condition contained in any material indenture,
mortgage, deed of trust, loan agreement or other agreement to
which the Company or any of its subsidiaries is a party or by
which it or any of them is or may be bound or to which any of
the properties or assets of the Company or any of its
subsidiaries is subject, except for such default which would
not have a Material Adverse Effect or (iii) in violation in any
material respect of any law, ordinance, governmental rule,
regulation or court decree to which the Company or any of its
subsidiaries or its or any of their property or assets may be
subject or has failed to obtain any material license, permit,
certificate, franchise or other governmental authorization or
permit necessary to the ownership of its or their property or
to the conduct of its or their business, except for such
violation or failure which would not have a Material Adverse
Effect.
(q) Neither the Company nor, to the Company's
knowledge, any of its subsidiaries, any director, officer,
agent, employee or other person associated with or acting on
behalf of the Company or any of its subsidiaries, has used any
corporate funds for any unlawful con
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tribution, gift, entertainment or other unlawful expense
relating to political activity; made any direct or indirect
unlawful payment to any foreign or domestic government official
or employee from corporate funds; or violated or is in
violation in any material respect of any provision of the
Foreign Corrupt Practices Act of 1977.
(r) Neither the Company nor any subsidiary is an
"investment company" within the meaning of such term under the
Investment Company Act of 1940, as amended (the "Investment
Act"), and the rules and regulations of the Commission
thereunder.
(s) Neither the ____ nor ____ senior debt rating
assigned to the Company in 1995 by Standard & Poor's
Corporation and by Xxxxx'x Investor Services, Inc.,
respectively, has been lowered or, to the Company's knowledge,
threatened to be lowered by either such rating agency nor, to
the Company's knowledge, has it been placed under surveillance
or review by either such rating agency.
(t) Any certificate signed by any officer of the
Company and delivered to the Underwriters or to counsel for the
Underwriters pursuant to this Agreement shall be deemed a
representation and warranty by the Company to each Underwriter
as to the matters covered thereby.
2. Purchase of the Debt Securities by the Underwriters. On the
basis of the representations and warranties contained herein, and subject to
the terms and conditions set forth herein, the Company agrees to sell to the
Underwriters and each of the Underwriters, severally and not jointly, agrees to
purchase from the Company, at the price and/or principal amount, as the case may
be, set forth in the Terms Agreement attached hereto as the Schedule together
with interest thereon accrued from the date specified in the Terms Agreement and
in the respective amounts of the designated Debt Securities set forth opposite
the name of each such Underwriter in Exhibit A to such Terms Agreement.
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3. Offering of the Debt Securities by the Underwriters. The
Underwriters propose to offer the Debt Securities for sale upon the terms and
conditions set forth in the Prospectus and any amendment or supplement thereto
relating to the Debt Securities.
4. Delivery of and Payment for the Debt Securities. Delivery of
and payment for the Debt Securities shall be made at such location as may be
agreed upon by the Underwriters and the Company at 10:00 a. m. New York City
time, on the third business day following the date of this Agreement, or at such
other time and date as shall be agreed upon (each such date and time of payment
and delivery being herein called the "Closing Date") in the manner set forth in
the applicable Terms Agreement. 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 Debt
Securities shall be registered in such names and in such denominations as the
Underwriters shall request in writing not less than two full business days prior
to the Closing Date. For the purpose of expediting the checking and packaging of
the certificates for the Debt Securities, the Company shall make the
certificates representing the Debt Securities available for inspection by the
Underwriters in New York, New York, not later than 2:00 P.M., New York City
time, on the business day prior to the Closing Date.
The Debt Securities of a series may be issued in whole or in
part in the form of one or more global securities in book-entry form that will
be deposited with, or on behalf of, a depository, or its nominee, identified in
the Prospectus Supplement relating to such series. In such a case, the manner of
delivery of such global securities will be set forth in the applicable Terms
Agreement.
5. Further Agreements of the Company. The Company agrees:
(a) To prepare the Prospectus in a form reasonably
acceptable to the Underwriters and to file such Prospectus
pursuant to Rule 424(b) under the Securities Act not later than
the Commission's close of business on the second Business Day
following the execution and deliv
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ery of this Agreement [or, if applicable, such earlier time as
may be required by Rule 430A(a)(3) under the Securities Act];
to make no further amendment or supplement to the Registration
Statement or to the Prospectus prior to the applicable Closing
Date except as permitted herein; to advise the Underwriters,
promptly after it receives notice thereof, of the time when any
amendment to the Registration Statement has been filed or
becomes effective or any supplement to the Prospectus or any
amended Prospectus has been filed and to furnish the
Underwriters with copies thereof; to file promptly all reports
and any definitive proxy or information statements required to
be filed by the Company with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the
date of the Prospectus and for so long as the delivery of a
prospectus is required in connection with the offering or sale
of the Debt Securities; to advise the Underwriters, promptly
after it receives notice thereof, of the issuance by the
Commission of any stop order or of any order preventing or
suspending the use of any Preliminary Prospectus or the
Prospectus, of the suspension of the qualification of the Debt
Securities for offering or sale in any jurisdiction, of the
initiation or threatening of any proceeding for any such
purpose, of any request by the Commission for the amending or
supplementing of the Registration Statement or the Prospectus
or for additional information; and, in the event of the
issuance of any stop order or of any order preventing or
suspending the use of any Preliminary Prospectus or the
Prospectus or suspending any such qualification, to use
promptly its best efforts to obtain its withdrawal;
(b) To furnish promptly to the Underwriters and to
counsel for the Underwriters a copy of the Registration
Statement as originally filed with the Commission, and each
amendment thereto filed with the Commission, including all
consents and exhibits (other than those incorporated by
reference) filed therewith;
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(c) To deliver promptly to the Underwriters such
number of the following documents as the Underwriters shall
reasonably request: (i) conformed copies of the Registration
Statement as originally filed with the Commission and each
amendment thereto (in each case excluding exhibits other than
this Agreement, the Indenture and such other exhibits as the
Underwriters may reasonably request), (ii) each Preliminary
Prospectus, the Prospectus and any amended or supplemented
Prospectus and (iii) any document incorporated by reference in
the Prospectus (excluding exhibits thereto); and, if the
delivery of a prospectus is required at any time after the
Effective Date in connection with the offering or sale of the
Debt Securities and if at such time any events shall have
occurred as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material
fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances
under which they were made when such Prospectus is delivered,
not misleading, or, if for any other reason it shall be
necessary to amend or supplement the Prospectus (or to file
under the Exchange Act any document incorporated by reference
in the Prospectus) in order to comply with the Securities Act
or the Exchange Act, to notify the Underwriters and, upon the
reasonable request of the Underwriters, to file such document
and to prepare and furnish without charge to each Underwriter
as many copies as the Underwriters may from time to time
reasonably request of an amended or supplemented Prospectus
which will correct such statement or omission or effect such
compliance;
(d) To file promptly with the Commission any amendment
to the Registration Statement or the Prospectus or any
supplement to the Prospectus that may, in the judgment of the
Company and the Underwriters, be required by the Securities Act
or requested by the Commission;
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(e) Prior to filing with the Commission any amendment
to the Registration Statement or supplement to the Prospectus,
and promptly after filing with the Commission any document
incorporated by reference in the Prospectus or any Prospectus
pursuant to Rule 424 of the Rules and Regulations, to furnish a
copy thereof to the Underwriters and counsel for the
Underwriters;
(f) As soon as practicable after the date of this
Agreement and every Terms Agreement relating to designated Debt
Securities, to make generally available to its securityholders
an earnings statement of the Company and its subsidiaries
(which need not be audited) complying with Section 11(a) of the
Securities Act and the Rules and Regulations (including, at the
option of the Company, Rule 158);
(g) For a period of five years following the
applicable Closing Date, to furnish to the Underwriters copies
of all materials furnished by the Company to all of its
stockholders and all public reports and all reports and
financial statements furnished by the Company to the principal
national securities exchange upon which the Company's common
stock and any Debt Securities may be listed pursuant to
requirements of or agreements with such exchange or to the
Commission pursuant to the Exchange Act or any rules or
regulations of the Commission thereunder;
(h) Promptly from time to time, to use its best
efforts, to take such action as the Underwriters may reasonably
request to qualify the Debt Securities for offering and sale
under the securities laws of such jurisdictions as the
Underwriters may reasonably request and to comply with such
laws so as to permit the continuance of sales and dealings
therein in such jurisdictions for as long as may be necessary
to complete the distribution of the Debt Securities; provided,
however, that in connection therewith the Company shall not be
required to qualify as a foreign corporation, to file a
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general consent to service of process in any jurisdiction where
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;
(i) If, and to the extent specified in the Terms
Agreement attached hereto as the Schedule, designated Debt
Securities are to be duly authorized for listing on a national
securities exchange, to apply for any listing of such
designated Debt Securities on such national securities exchange
and to use its best efforts to complete that listing, subject
only to official notice of issuance, prior to the relevant
Closing Date; and
(j) To apply the net proceeds from the sale of the
Debt Securities being sold by the Company as set forth in the
Prospectus.
6. Expenses. The Company agrees to pay all costs, expenses,
fees and taxes incident to (i) the preparation, printing, filing and
distribution under the Securities Act of the Registration Statement (including
financial statements and exhibits), each Preliminary Prospectus and all
amendments and supplements thereto, (ii) the printing and delivery of the
Prospectus and all amendments or supplements thereto, (iii) the printing and
delivery of this Agreement, the Blue Sky Memorandum and all other agreements,
memoranda, correspondence and other documents printed and delivered in
connection with the offering of the Debt Securities (including in each case any
reasonable disbursements of counsel for the Underwriters relating to such
printing and delivery), (iv) the registration or qualification of the Debt
Securities for offer and sale under the securities or Blue Sky Laws of the
several states (including in each case the reasonable fees and disbursements of
counsel for the Underwriters relating to such registration or qualification and
memoranda relating thereto), (v) filings and clearance with the NASD in
connection with the offering, if applicable, and (vi) furnishing such copies of
the Registration Statement, the Prospectus and all amendments and supplements
thereto as may be requested for use in connection with the offering or sale of
the Debt Securities by the Underwriters.
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7. Conditions of Underwriters' Obligations. The obligations of
the Underwriters to purchase and pay for any Debt Securities are subject to the
accuracy in all material respects, when made, and on each Closing Date, of the
representations and warranties of the Company contained herein, to the
performance by the Company of its obligations hereunder and under the Terms
Agreement attached hereto as the Schedule, and to each of the following
additional terms and conditions:
(a) At the applicable Closing Date, the Prospectus
shall have been timely filed with the Commission in accordance
with Section 5(a); no stop order suspending the effectiveness
of the Registration Statement or any part thereof shall have
been issued and no proceeding for that purpose shall have been
initiated or threatened by the Commission; and any request of
the Commission for inclusion of additional information in the
Registration Statement or the Prospectus or otherwise shall
have been complied with to the Underwriters' reasonable
satisfaction.
(b) Xxxxxx X. Xxxxxxx, General Counsel to the Company,
shall have furnished to the Underwriters his opinion, as
general counsel to the Company, addressed to the Underwriters
and dated the Closing Date, in form and substance reasonably
satisfactory to counsel for the Underwriters to the effect
that:
(i) The Company's subsidiaries have been duly
incorporated and are validly existing as corporations
in good standing under the laws of their respective
jurisdictions of incorporation; and the Company is
duly qualified to do business and is in good standing
as a foreign corporation in each jurisdiction in which
its ownership or lease of property or the conduct of
its business requires such qualification and where the
failure to be so qualified and in good standing would
have a Material Adverse Effect, and where so
qualified, has all corporate power and authority
necessary to own, lease or operate its prop
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erties and to conduct businesses as described or
incorporated by reference in the Prospectus;
(ii) To such counsel's knowledge, there are no
contracts or other documents which are required to be
described in the Prospectus or filed as exhibits to
the Registration Statement by the Securities Act or by
the Rules and Regulations which have not been
described in the Prospectus or filed as exhibits to
the Registration Statement or incorporated therein by
reference under the Rules and Regulations;
(iii) The documents incorporated by reference
in the Prospectus (other than the financial statements
and related schedules therein and all other financial
and statistical data included or incorporated by
reference therein or omitted therefrom, as to which
such counsel need express no opinion), when they were
filed with the Commission complied as to form in all
material respects with the requirements of the
Exchange Act and the rules and regulations of the
Commission thereunder;
(iv) To such counsel's knowledge, and other
than as set forth in the Registration Statement, the
Prospectus, or any documents incorporated by
reference, there are no legal or governmental
proceedings pending to which the Company or any of its
subsidiaries is a party or of which any material
property or assets of the Company or any of its
subsidiaries is the subject which, if determined
adversely to the Company or any of its subsidiaries,
would have a Material Adverse Effect; and to such
counsel's knowledge, no such proceedings are
threatened by governmental authorities or others; and
(v) The issuance and sale of the Debt
Securities being delivered on the
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Closing Date by the Company and the compliance by the
Company with all of the provisions of this Agreement
and the Indenture and the consummation of the
transactions contemplated hereby and thereby, will not
conflict with or result in a breach or violation of
any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement known to such
counsel 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 the property or assets of the
Company or any of its subsidiaries is subject except
for such conflicts, breaches, violations or defaults
which would not have a Material Adverse Effect nor
will such actions result in any violation of the
provisions of any state or federal statute or any
order, rule or regulation known to such counsel of any
court or governmental agency or body having
jurisdiction over the Company or any of its
subsidiaries or any of their material properties or
assets, except for such violations as would not have a
Material Adverse Effect.
(c) Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx, special
counsel to the Company, shall have furnished to the
Underwriters their opinion, as counsel to the Company,
addressed to the Underwriters and dated the Closing Date, in
form and substance reasonably satisfactory to counsel for the
Underwriters, to the effect that:
(i) The Company has been duly
incorporated and is validly existing as a corporation
in good standing under the laws of Delaware;
(ii) The Debt Securities have been duly and
validly authorized by the Company and, when duly
executed, issued and delivered by the Company, and
authenticated by the Trustee pursuant to the
provisions of
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the Indenture, against payment therefor as provided in
this Agreement, will constitute valid and legally
binding obligations of the Company entitled to the
benefits of the Indenture and enforceable against the
Company in accordance with their terms, except as the
enforceability thereof may be subject to (i)
bankruptcy, insolvency, reorganization, fraudulent
conveyance or transfer, moratorium or similar laws
affecting creditors' rights generally and (ii) general
principles of equity (regardless of whether such
enforceability is considered in a proceeding at law or
in equity); and the Debt Securities, when issued and
delivered, will conform in all material respects to
the description thereof contained in the Prospectus;
(iii) The Indenture has been duly authorized
by the Company, and when duly executed by the proper
officers of the Company (assuming due execution and
delivery by the Trustee) and delivered by the Company
will constitute a valid and legally binding obligation
of the Company enforceable against the Company in
accordance with its terms, except as the
enforceability thereof may be subject to (i)
bankruptcy, insolvency, reorganization, fraudulent
conveyance or transfer, moratorium or similar laws
affecting creditors' rights generally and (ii) general
principles of equity (regardless of whether such
enforceability is considered in a proceeding at law or
in equity); and the Indenture conforms in all material
respects to the description thereof contained in the
Prospectus;
(iv) This Agreement has been duly authorized,
executed and delivered by the Company;
(v) The Company is not an "investment
company" within the meaning of such term under the
Investment Act and the
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rules and regulations of the Commission thereunder;
(vi) The Registration Statement was declared
effective under the Securities Act and the Indenture
was qualified under the Trust Indenture Act as of the
date and time specified in such opinion, the
Prospectus was filed with the Commission pursuant to
subparagraph of Rule 424 specified in such opinion on
the date specified therein and no stop order
suspending the effectiveness of the Registration
Statement has been issued and, to the knowledge of
such counsel, no proceeding for that purpose is
pending or threatened by the Commission;
(vii) The statements contained in the
Prospectus under the captions relating to the Debt
Securities insofar as they describe federal statutes,
rules and regulations, or portions thereof, constitute
accurate descriptions thereof in all material
respects;
(viii) The Registration Statement, as of the
Effective Date, and the Prospectus, as of the date it
was filed with the Commission, and any further
amendments or supplements thereto made by the Company
prior to the applicable Closing Date (other than the
financial statements and related schedules therein and
all other financial and statistical data included or
incorporated by reference therein or omitted therefrom
and other than the T-1, as to which such counsel need
express no opinion) appears on its face to comply as
to form in all material respects with the requirements
of the Securities Act and the Rules and Regulations;
and the Indenture conforms in all material respects to
the requirements of the Trust Indenture Act and the
applicable rules and regulations thereunder; and
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(ix) The issuance and sale of the Debt
Securities being delivered on the Closing Date by the
Company and the compliance by the Company with all of
the provisions of this Agreement and the Indenture and
the consummation of the transactions contemplated
hereby and thereby, will not result in any violation
of the provisions of the charter or by-laws of the
Company; and will not result in any violation of the
provisions of any state or federal statute or any
order, rule or regulation known to such counsel of any
state or federal court or governmental agency or body
having jurisdiction over the Company except for such
violations as would not have a Material Adverse
effect; and, except for the registration of the Debt
Securities under the Securities Act and such
consents, approvals, authorizations, registrations or
qualifications as may be required under the Exchange
Act, the Trust Indenture Act and applicable state
securities laws in connection with the purchase and
distribution of the Debt Securities by the
Underwriters, no consent, approval, authorization or
order of, or filing or registration with, any such
court or governmental agency or body is required for
the execution delivery and performance of this
Agreement and the Indenture by the Company and the
consummation by the Company of the transactions
contemplated hereby and thereby.
In rendering the opinions required by subsections (b) and (c)
of this section, Xxxxxx X. Xxxxxxx and Xxxx, Weiss, Rifkind, Xxxxxxx &
Xxxxxxxx, respectively, may (i) state that their opinion is limited to
matters governed by the federal laws of the United States of America,
the laws of the State of New York or the General Corporation Law of the
State of Delaware and (ii) rely (to the extent such counsel deems
proper and specifies in their opinion) as to matters involving the
application of laws covered by supporting opinion upon the opinion of
other counsel of good standing, provided that such
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other counsel is reasonably satisfactory to counsel for the
Underwriters and furnishes a copy of its opinion to the Underwriters.
Such counsel may also state that, insofar as such opinion involves
factual matters, they have relied upon certificates of officers of the
Company and its subsidiaries and certificates of public officials. In
addition, Xxxxxx X. Xxxxxxx, in rendering the opinions required by
clauses (i) and (ii) of subsection (b) with respect to subsidiaries,
may rely on opinions rendered by counsel employed by such subsidiaries.
Each of Xxxxxx X. Xxxxxxx and Xxxx, Weiss, Rifkind, Xxxxxxx &
Xxxxxxxx shall have furnished to the Underwriters written statements,
addressed to the Underwriters and dated the Closing Date, in form and
substance reasonably satisfactory to the Underwriters, to the effect
that such counsel has acted as counsel to the Company in connection
with the preparation of the Registration Statement, and based on the
foregoing, such counsel does not believe that the Registration
Statement (other than the financial statements and related schedules
and all other financial data included or incorporated by reference
therein or omitted therefrom, and other than the Form T-1, as to which
such counsel shall express no opinion or belief), as of the Effective
Date, contained any 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 that the
Prospectus (other than the financial statements and related schedules
and all other financial and statistical data included or incorporated
by reference therein or omitted therefrom, and other than the Form T-1,
as to which such counsel shall express no opinion or belief), as of its
date and the applicable Closing Date, contains any untrue statement of
a material fact or omits to state a material fact required to be stated
therein or necessary in order to make the statements therein, in light
of the circumstances under which they were made, not misleading. Xxxxxx
X. Xxxxxxx shall also have furnished to the Underwriters a written
statement, addressed to the Underwriters and dated the Closing Date, in
form and substance reasonably satisfactory to the Underwriters, to the
effect that he does not
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believe that any document incorporated by reference in the Prospectus
(other than the financial statements and related schedules and all
other financial and statistical data included or incorporated by
reference therein or omitted therefrom, and other than the Form T-1, as
to which such counsel shall express no opinion or belief) contained an
untrue statement of a material fact or omitted 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. The foregoing
opinions and statements may be qualified by statements to the effect
that (i) such counsel does not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus except for the statements made
in the Prospectus under the captions relating to the designated Debt
Securities, insofar as such statements relate to the Debt Securities
and concern legal matters and (ii) as to facts necessary to the
determination of materiality, such counsel is relying upon the opinions
of officers and other representatives of the Company.
(d) The Underwriters shall have received from counsel
for the Underwriters such opinion or opinions, dated the
Closing Date, with respect to the issuance and sale of the Debt
Securities, the Registration Statement, the Prospectus and
other related matters as the Underwriters may reasonably
require.
(e) At the Closing Date, counsel for the Underwriters
shall have been furnished with such documents, certificates and
information as they may reasonably require for the purpose of
enabling them to pass upon the issuance and sale of the Debt
Securities as contemplated herein and in each Terms Agreement
and related proceedings, or in order to evidence the accuracy
of any of the representations or warranties, or the fulfillment
of any of the conditions, herein and therein contained.
(f) At the time of execution of this Agreement and
each Terms Agreement, the Underwriters shall have received from
Coopers &
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Xxxxxxx L.L.P., with respect to the Company, letters, in form
and substance reasonably satisfactory to the Underwriters,
addressed to the Underwriters and dated the date hereof and
thereof (i) confirming that they are independent public
accountants with respect to the Company and its subsidiaries
within the meaning of the Securities Act, (ii) stating, as of
the date hereof and thereof (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 hereof or thereof), the conclusions and findings of such
firm with respect to the financial information and other
matters as provided in SAS No. 72.
(g) With respect to the letters of Coopers & Xxxxxxx
L.L.P. referred to in the preceding paragraph and delivered to
the Underwriters concurrently with the execution of this
Agreement (the "initial letter") and each Terms Agreement, the
Company shall have furnished to the Underwriters letters (the
"bring-down letters") of such accountants, addressed to the
Underwriters and dated the Closing Date (i) confirming that
they are independent public accountants within the meaning of
the Securities Act and the Rules and Regulations, (ii) stating,
as of the date of the bring-down 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 business days
prior to the date of the bring-down letter), the conclusions
and findings of such firm with respect to the financial
information and other matters covered by the initial letter and
(iii) confirming in all material respects the conclusions and
findings set forth in the initial letter.
(h) At each Closing Date, there shall not have been,
since the date hereof or since the respective dates as of which
information is given in the Registration Statement and the
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Prospectus, any material adverse change in the
consolidated financial condition, stockholders' equity,
results of operations or business of the Company and its
subsidiaries, taken as a whole, whether or not arising in the
ordinary course of business, and the Company shall have
furnished to the Underwriters a certificate, dated the Closing
Date of its Chairman of the Board, its President or a Vice
President of the Company, on the one hand, and its Chief
Financial Officer (or any person acting in such capacity) or
its Treasurer, on the other hand, stating that:
(i) The representations and warranties of the
Company in Section 1 are true and correct as of such
Closing Date; the Company has complied with its
agreements contained in this Agreement and the
conditions set forth in Section 7(a) and 7(i) have
been fulfilled in each case, in all material respects;
(ii) They have carefully examined the
Registration Statement and the Prospectus and in their
opinion (A) as of the Effective Date, the Registration
Statement and Prospectus did not include any untrue
statement of a material fact and did not omit to state
a material fact required to be stated therein or
necessary to make the statements therein, (in the case
of the Prospectus, in light of the circumstances in
which they were made) not misleading, and (B) since
the Effective Date no event has occurred which should
have been set forth or incorporated by reference in a
supplement or amendment to the Registration Statement
or the Prospectus which has not been so set forth; and
(iii) no stop order suspending the
effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been
initiated or threatened by the Commission.
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(i) (i) Neither the Company nor any of its
subsidiaries shall have sustained since the respective dates as
of which information is given in the Registration Statement or
the Prospectus or in any document incorporated by reference
therein any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth,
contemplated or incorporated by reference in the Prospectus or
in any of the documents incorporated by reference therein, or
(ii) since such date there shall not have been any change in
the capital stock or long-term debt of the Company or any of
its subsidiaries except as set forth in the letters described
in paragraphs (f) or (g) of this Section 7, or any material
change in the financial condition, stockholders' equity or
results of operations of the Company and its subsidiaries taken
as a whole, otherwise than as set forth or contemplated or
incorporated by reference in the Prospectus or in any of the
documents incorporated by reference therein, the effect of
which, in any such case described in clause (i) or (ii), is, in
the reasonable judgment of the Underwriters, so material and
adverse as to make it impracticable or inadvisable to proceed
with the public offering or the delivery of the Debt Securities
being delivered on such Closing Date on the terms and in the
manner contemplated in the Prospectus.
(j) Subsequent to the execution and delivery of this
Agreement and prior to the Closing Date, (i) no downgrading
shall have occurred in the rating accorded the Company's
securities by any "nationally recognized statistical rating
organization", as that term is defined by the Commission for
purposes of Rule 436(g)(2) of the Rules and Regulations and
(ii) no such organization shall have publicly announced that it
has under surveillance or review, with possible negative
implications, its rating of any of the Company's securities.
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(k) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred any of the following:
(i) trading in securities generally on the New York Stock
Exchange, the American Stock Exchange, the NASDAQ National
Market or in the over-the-counter market, or trading in any
securities of the Company on any exchange or in the
over-the-counter market, shall have been suspended or minimum
prices shall have been established on any such exchange or such
market by the Commission, by such exchange or by any other
regulatory body or governmental authority having jurisdiction,
(ii) a general banking moratorium shall have been declared by
federal or New York state authorities, (iii) the United States
shall have become engaged in hostilities, there shall have been
an escalation in hostilities involving the United States or
there shall have been a declaration of a national emergency or
war by the United States, if the effect of any event specified
in this clause (iii) in the judgment of the Underwriters makes
it impracticable or inadvisable to proceed with the public
offering or delivery of the Debt Securities on the terms and in
the manner contemplated in the Prospectus, (iv) any federal or
state statute, regulation, rule or order of any court or other
governmental authority shall have been enacted, published,
decreed or otherwise promulgated which in the judgment of the
Underwriters materially and adversely affects, or will
materially and adversely affect, the business or operations of
the Company and any subsidiaries, taken as a whole, (v) any
federal, state or local government or agency shall take any
action in respect of its monetary or fiscal affairs which in
the judgment of the Underwriters has a material adverse effect
on the financial markets in the United States, or (vi) there
shall have occurred such a material adverse change in general
economic or financial conditions (or such a material adverse
change in international conditions the effect of which on the
financial markets in the United States shall be such) as to
make it, in the reasonable judgment of the Underwriters,
impracticable or
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inadvisable to proceed with the public offering or delivery of
the Debt Securities being delivered on such Closing Date on the
terms and in the manner contemplated in the Prospectus.
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 substance reasonably satisfactory to
counsel for the Underwriters. The Company may rely on any waiver of such
conditions given by the Underwriters or counsel to the Underwriters as if given
by the Underwriters.
8. Indemnification and Contribution.
(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 Securities
Act or Section 20 of the Exchange Act, from and against any and
all losses, claims, damages, liabilities and judgments caused
by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or the
Prospectus (as amended or supplemented if the Company shall
have furnished any amendments or supplements thereto) or any
Preliminary Prospectus, or caused by any omission or alleged
omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not
misleading, except insofar as such losses, claims, damages,
liabilities or judgments are caused by any such untrue
statement or omission or alleged untrue statement or omission
based upon information relating to any Underwriters furnished
in writing to the Company by or on behalf of any Underwriter
expressly for use therein, and except further that the Company
shall not be liable with respect to any losses, claims,
damages, liabilities or judgments arising out of or based on
any untrue statements or alleged untrue statement or omission
or alleged omission to state a material fact in any Preliminary
Prospectus which is corrected in the Prospectus if the person
or entity asserting
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such loss, claim, damage, liability or judgment purchased Debt
Securities from such Underwriter, but was not sent or given a
copy of the Prospectus at or prior to the written confirmation
of the sale of such Debt Securities to such person or entity in
any case where such delivery is required by the Act if the
Company has previously furnished copies thereof in sufficient
quantity to such Underwriter and the loss, claim, damage,
liability or judgment of such Underwriter results from an
untrue statement or omission of a material fact contained in
the Preliminary Prospectus.
(b) In case any action shall be brought against any
Underwriter or any person controlling such Underwriter, based
upon any Preliminary Prospectus, the Registration Statement or
the Prospectus or any amendment or supplement thereto and with
respect to which indemnity may be sought against the Company,
such Underwriter shall promptly notify the Company in writing
and the Company shall assume the defense thereof, including the
employment of counsel reasonably satisfactory to such
indemnified party and payments of all fees and expenses. Any
Underwriter or any such controlling person shall have the right
to employ separate counsel in any such action and participate
in the defense thereof, but the fees and expenses of such
counsel shall be at the expense of such Underwriter or such
controlling person unless (i) the employment of such counsel
shall have been specifically authorized in writing by the
Company, (ii) the Company shall have failed to assume the
defense and employ counsel or (iii) the named parties to any
such action (including any impleaded parties) include both such
Underwriter or such controlling person and the Company and such
Underwriter or such controlling person shall have been advised
by such counsel that there may be one or more legal defenses
available to it which are different from or additional to those
available to the Company (in which case the Company shall not
have the right to assume the defense of such action on behalf
of such Underwriter or such controlling
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person, it being understood, however, that the Company shall
not, in connection with any one such action or separate but
substantially similar or related actions in the same
jurisdiction arising out of the same general allegations or
circumstances, be liable for the fees and expenses of more than
one separate firm of attorneys (in addition to any local
counsel) for all such Underwriters and controlling persons,
which firm shall be designated in writing by the
representatives and that all such fees and expenses shall be
reimbursed as they are incurred). The Company shall not be
liable for any settlement of any such action effected without
its written consent, but, if settled with the written consent
of the Company, the Company agrees to indemnify and hold
harmless any Underwriters and any such controlling person from
and against any loss or liability by reason of such settlement.
Notwithstanding the immediately preceding sentence, if in any
case where the fees and expenses of counsel are at the expense
of the indemnifying party and an indemnified party shall have
requested the indemnifying party to reimburse the indemnified
party for such fees and expenses of counsel as incurred, such
indemnifying party agrees that it shall be liable for any
settlement of any action effected without its written consent
if (i) such settlement is entered into more than thirty days
after the receipt by such indemnifying party of the aforesaid
request and (ii) such indemnifying party shall have failed to
reimburse the indemnified party in accordance with such request
for reimbursement prior to the date of such settlement. No
indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or
threatened proceeding in respect of which any indemnified party
is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such
settlement includes an unconditional release of such
indemnified party from all liability on claims that are the
subject matter of such proceeding.
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(c) Each Underwriter agrees, severally and not
jointly, to indemnify and hold harmless the Company, its
directors, its officers who sign the Registration Statement,
and any person controlling the Company within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange
Act, to the same extent as the foregoing indemnity from the
Company to each Underwriter but only with reference to
information relating to such Underwriter furnished in writing
by or on behalf of such Underwriter expressly for use in the
Registration Statement, the Prospectus or any Preliminary
Prospectus. In case any action shall be brought against the
Company, any of its directors, any such officer or any person
controlling the Company based on the Registration Statement,
the Prospectus or any Preliminary Prospectus and in respect of
which indemnity may be sought against any Underwriter, the
Underwriter shall have the rights and duties given to the
Company (except that if the Company shall have assumed the
defense thereof, such Underwriter shall not be required to do
so, but may employ separate counsel therein and participate in
the defense thereof but the fees and expenses of such counsel
shall be at the expense of such Underwriter), and the Company,
its directors, any such officers and any person controlling the
Company shall have the rights and duties given to the
Underwriter by Section 8(b) hereof.
(d) If the indemnification provided for in this
Section 8 is unavailable to an indemnified party in respect of
any losses, claims, damages, liabilities or judgments referred
to therein, then each indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the
amount paid or payable by such indemnified party as a result of
such losses, claims, damages, liabilities and judgements (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 Debt
Securities or (ii) if the allocation provided by clause (i)
above is not permitted by
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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 and the Underwriters
in connection with the statements or omissions which resulted
in such losses, claims, damages, liabilities or judgments, as
well as any other relevant equitable considerations. The
relative benefits received by the Company and the Underwriters
shall be deemed to be in the same proportion as the total net
proceeds from the offering (before deducting expenses) received
by the Company, and the total underwriting discounts and
commissions received by the Underwriters, bear to the total
price to the public of the Debt Securities, in each case as set
forth in the table on the cover page of the Prospectus. The
relative fault of the Company and the Underwriters shall be
determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates
to information supplied by the Company or 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
Section 8(d) 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 in the
immediately preceding paragraph. The amount paid or payable by
an indemnified party as a result of the losses, claims,
damages, liabilities or judgments referred to in the
immediately preceding paragraph shall be deemed to include,
subject to the limitations set forth above, any legal or other
expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this
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Section 8, no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at
which the Debt 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 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
Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
The Underwriters' obligations to contribute pursuant to this
Section 8(d) are several in proportion to the respective number
of Debt Securities purchased by each of the Underwriters
hereunder and not joint.
9. Defaulting Underwriters. If on the applicable
Closing Date, any Underwriter defaults in the performance of its obligations
under this Agreement, the remaining non-defaulting Underwriters shall be
obligated to purchase (in addition to the principal amount of Debt Securities
which such Underwriters are obligated to purchase pursuant to Section 2) the
Debt Securities which the defaulting Underwriter agreed but failed to purchase
on such Closing Date in the respective proportions to the principal amount of
Debt Securities set opposite the names of each remaining non-defaulting
Underwriter in Exhibit A to the applicable Terms Agreement bears to the
principal amount of the Debt Securities set opposite the names of all the
remaining non-defaulting Underwriters in Exhibit A to the applicable Terms
Agreement; provided, however, that the remaining non-defaulting Underwriters
shall not be obligated to purchase any of the Debt Securities on such Closing
Date if the total number of Debt Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase on such date exceeds 10% of the total
principal amount of the Debt Securities to be purchased on such Closing Date. If
the foregoing maximum percentage is exceeded, the remaining non-defaulting
Underwriters, or those other underwriters satisfactory to the Underwriters 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 Debt
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Securities to be purchased on such Closing Date. If the foregoing maximum
percentage is exceeded, the remaining non-defaulting Underwriters which have
agreed to purchase in the aggregate 50% or more of the aggregate principal
amount of Debt Securities (other than the Debt Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase on the Closing Date)
may, at any time after 72 hours immediately following the failure of the
defaulting Underwriter or Underwriters to purchase the Debt Securities set forth
opposite the name of such Underwriter or Underwriters, terminate this Agreement
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
to the extent set forth in Sections 6 and 11. As used in this Agreement, the
term "Underwriter" includes, for all purposes of this Agreement unless the
context requires otherwise, any party not listed in Exhibit A to any applicable
Terms Agreement who, pursuant to this Section 9, purchases Debt Securities which
a defaulting Underwriter agreed but failed to purchase.
Nothing contained herein 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 Debt Securities of
a defaulting Underwriter, either the Underwriters or the Company may postpone
the applicable Closing Date for up to seven full business days in order to
effect any changes that in the reasonable opinion of counsel for the Company or
counsel for the Underwriters may be necessary in the Registration Statement, the
Prospectus or in any other document or arrangement necessary to consummate the
transactions described herein.
10. Termination. Except as provided in the applicable
Prospectus Supplement, the obligations of the Underwriters hereunder may be
terminated by the Underwriters which have agreed to purchase in the aggregate
50% or more of the aggregate principal amount of Debt Securities by notice given
to and received by the Company prior to delivery of and payment for the Debt
Securities if, prior to that time, any of the events described in Sections
7(i),(j) and (k) shall have occurred or if the Underwriters shall decline to
purchase the Debt Securities as permitted by Section 9.
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11. Reimbursement of Underwriters' Expenses. If the
Company shall fail to tender the Debt Securities for delivery to the
Underwriters by reason of any failure, refusal or inability on the part of the
Company to perform any agreement on its part to be performed, or because any
other condition of the Underwriters' obligations hereunder required to be
fulfilled by the Company is not fulfilled (other than Section 7(k)), the Company
will reimburse the Underwriters for all reasonable out-of-pocket expenses
(including reasonable fees and disbursements of counsel) incurred by the
Underwriters in connection with this Agreement and the proposed purchase of the
Debt Securities, and upon demand the Company shall pay the full amount thereof
to the Underwriters. If this Agreement is terminated pursuant to Section 9 by
reason of the default of one or more Underwriters, the Company shall not be
obligated to reimburse any defaulting Underwriter for any of its expenses
incurred in connection with this Agreement.
12. Notices, etc. All statements, requests, notices and
agreements hereunder shall be in writing, and:
(a) if to the Underwriters, shall be delivered or sent
by mail, telex or facsimile transmission as shall be directed
in the Terms Agreement attached hereto as the Schedule; and
(b) if to the Company, shall be delivered or sent by
mail, telex or facsimile transmission to the address of the
Company set forth in the Registration Statement, Attention:
General Counsel (Fax: (000) 000-0000).
Any such statements, requests, notices or agreements shall take effect at the
time of receipt thereof. The Company shall be entitled to act and rely upon any
request, consent, notice or agreement given or made on behalf of the
Underwriters by the lead Underwriter.
13. Persons Entitled to Benefit of Agreement. This Agreement
shall inure to the benefit of and 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,
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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 Securities Act and (B)
the indemnity agreement of the Underwriters contained in Section 8(b) of this
Agreement shall be deemed to be for the benefit of the directors of the Company,
officers of the Company and any person controlling the Company within the
meaning of Section 15 of the Securities Act. Nothing in this Agreement is
intended or shall be construed to give any person, other than the persons
referred to in this Section 13, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision contained herein.
14. Survival. The respective indemnities,
representations, warranties and agreements of the Company and the Underwriters
contained in this Agreement or made by or on behalf of them, respectively,
pursuant to this Agreement, shall survive the delivery of and payment for any
Debt Securities and shall remain in full force and effect, regardless of any
investigation made by or on behalf of any of them or any person controlling any
of them.
15. Definition of the Term "Business Day". For purposes of this
Agreement, (a) "business day" means any day on which the New York Stock
Exchange, Inc. is open for trading.
16. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
17. Counterparts. This Agreement may be executed in
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
18. Headings. The headings herein are inserted for convenience
of reference only and are not intended to be part of, or to affect the meaning
or interpretation of, this Agreement.
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If the foregoing correctly sets forth the agreement between the
Company and the Underwriters please indicate your acceptance in the space
provided for that purpose below.
Very truly yours,
IBP, inc.
By
-----------------------------
Name:
Title:
Confirmed and accepted
as of the date first
above written:
By [Representative]
By
-----------------------------
Acting severally on behalf of
themselves and the several
Underwriters named in
Exhibit A to the Schedule hereto
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SCHEDULE
TERMS AGREEMENT
