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CB Xxxxxxx Xxxxx Services, Inc.
(a Delaware corporation)
UNDERWRITING AGREEMENT
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Dated: May 20, 1998
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TABLE OF CONTENTS
PAGE
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UNDERWRITING AGREEMENT...................................................................... -1-
SECTION 1. Representations and Warranties................................................... -3-
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a. Representations and Warranties by the Company................................ -3-
i. Compliance with Registration Requirements.......................... -3-
ii. Incorporated Documents............................................. -5-
iii. Independent Accountants............................................ -5-
iv. Financial Statements............................................... -5-
v. No Material Adverse Change in Business............................. -6-
vi. Good Standing of the Company....................................... -6-
vii. Good Standing of Subsidiaries...................................... -6-
viii. Capitalization..................................................... -7-
ix. Authorization of this Underwriting Agreement and
Terms Agreement.................................................... -7-
x. Authorization of Debt Securities................................... -7-
xi. Authorization of the Indenture..................................... -7-
xii. Descriptions of the Debt Securities................................ -8-
xiii. Absence of Defaults and Conflicts.................................. -8-
xiv. Absence of Labor Dispute........................................... -9-
xv. Absence of Proceedings............................................. -9-
xvi. Accuracy of Exhibits............................................... -9-
xvii. Absence of Further Requirements.................................... -9-
xviii. Possession of Intellectual Property................................ -10-
xix. Possession of Licenses and Permits................................. -10-
xx. Title to Property.................................................. -10-
xxi. Commodity Exchange Act............................................. -11-
xxii. Investment Company Act............................................. -11-
xxiii. Environmental Laws................................................. -11-
xxiv. Registration Rights................................................ -12-
xxv. Solvency........................................................... -12-
xxvi. Stabilization...................................................... -12-
xxvii. Distribution of Offering Material.................................. -12-
b. Officers' Certificates....................................................... -13-
2. Sale and Delivery to Underwriters; Closing....................................... -13-
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a. Debt Securities.............................................................. -13-
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b. Payment...................................................................... -13-
c. Denominations; Registration.................................................. -13-
3. Covenants of the Company.......................................................... -14-
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a. Compliance with Securities Regulations and Commission Requests............... -14-
b. Filing of Amendments......................................................... -14-
c. Delivery of Registration Statements.......................................... -15-
d. Delivery of Prospectuses..................................................... -15-
e. Continued Compliance with Securities Laws.................................... -15-
f. Blue Sky Qualifications...................................................... -16-
g. Earnings Statement........................................................... -16-
h. Use of Proceeds.............................................................. -16-
i. Restriction on Sale of Securities............................................ -16-
j. Reporting Requirements....................................................... -17-
4. Payment of Expenses............................................................... -17-
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a. Expenses..................................................................... -17-
b. Termination of Agreement..................................................... -18-
5. Conditions of Underwriters' Obligations........................................... -18-
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a. Effectiveness of Registration Statement...................................... -18-
b. Opinions of Counsel for Company and General Counsel.......................... -18-
c. Opinion of Counsel for Underwriters.......................................... -19-
d. Officers' Certificate........................................................ -19-
e. Accountant's Comfort Letter.................................................. -19-
f. Bring-down Comfort Letter.................................................... -20-
g. Ratings...................................................................... -20-
h. Lock-up Agreements........................................................... -20-
i. Officer's Certificate........................................................ -20-
j. Credit Agreements............................................................ -20-
k. Additional Documents......................................................... -21-
l. Termination of Terms Agreement............................................... -21-
6. Indemnification................................................................... -21-
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a. Indemnification of Underwriters.............................................. -21-
b. Indemnification of Company, Directors and Officers........................... -23-
c. Actions against Parties; Notification........................................ -23-
d. Settlement without Consent if Failure to Reimburse........................... -24-
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7. Contribution...................................................................... -24-
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8. Representations, Warranties and Agreements
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to Survive Delivery............................................................... -26-
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9. Termination....................................................................... -26-
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a. Underwriting Agreement........................................................ -26-
b. Terms Agreement............................................................... -26-
c. Liabilities................................................................... -27-
10. Default by One or More of the Underwriters........................................ -27-
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11. Notices........................................................................... -28-
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12. Parties........................................................................... -28-
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13. GOVERNING LAW AND TIME............................................................ -29-
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14. Effect of Headings................................................................ -29-
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CB XXXXXXX XXXXX SERVICES, INC.
(a Delaware corporation)
UNDERWRITING AGREEMENT
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May 20, 1998
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
CB Xxxxxxx Xxxxx Services, Inc., a Delaware corporation (the "Company"),
proposes to issue and sell up to $175,000,000 aggregate principal amount of
senior subordinated debt securities (the "Debt Securities") as described in more
detail in the attached Terms Agreement (as defined below).
The Debt Securities will be issued under an indenture as supplemented by
the First Supplemental Indenture (the "Indenture") between the Company and a
trustee to be named therein (the "Trustee").
Whenever the Company determines to make an offering of Debt Securities
pursuant to the attached Terms Agreement through Xxxxxxx Xxxxx & Co., Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated ("Xxxxxxx Xxxxx"), or through an
underwriting syndicate managed by Xxxxxxx Xxxxx, the Company will enter into the
attached Terms Agreement (the "Terms Agreement") providing for the sale of such
Debt Securities to, and the purchase and offering thereof by, Xxxxxxx Xxxxx and
such other underwriters, set forth in such Terms Agreement (the "Underwriters,"
which
term shall include any Underwriter substituted pursuant to Section 10 hereof).
The Terms Agreement shall specify the aggregate principal amount of Debt
Securities to be issued, the name of each Underwriter participating in such
offering (subject to substitution as provided in Section 10 hereof) and the name
of any Underwriter other xxxx Xxxxxxx Xxxxx acting as co-manager in connection
with such offering, the aggregate principal amount, of Debt Securities which
each such Underwriter severally agrees to purchase, whether such offering is on
a fixed or variable price basis and, if on a fixed price basis, the initial
offering price, the price at which the Debt Securities are to be purchased by
the Underwriters, the form, time, date and place of delivery and payment of the
Debt Securities and any other material variable terms of the Debt Securities.
The Terms Agreement, which shall be substantially in the form of Exhibit A
hereto, may take the form of an exchange of any standard form of written
telecommunication between the Company and Xxxxxxx Xxxxx acting as representative
of any other Underwriters.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-48875) for the
registration of among other securities the Debt Securities under the Securities
Act of 1933, as amended (the "1933 Act"), and the offering thereof from time to
time in accordance with Rule 415 of the rules and regulations of the Commission
under the 1933 Act (the "1933 Act Regulations"), and the Company has filed such
post-effective amendments thereto as may be required prior to the execution of
the Terms Agreement. Such registration statement (as so amended, if applicable)
has been declared effective by the Commission and the Indenture has been duly
qualified under the Trust Indenture Act of 1939, as amended (the "1939 Act").
Such registration statement (as so amended, if applicable), including the
information, if any, deemed to be a part thereof pursuant to Rule 430A(b) of the
1933 Act Regulations (the "Rule 430A Information") or Rule 434(d) of the 1933
Act Regulations (the "Rule 434 Information"), is referred to herein as the
"Registration Statement"; and the final prospectus and the final prospectus
supplement relating to the offering of the Debt Securities, in the form first
furnished to the Underwriters by the Company for use in connection with the
offering of the Debt Securities, are collectively referred to herein as the
"Prospectus"; provided, however, that all references to the "Registration
theStatement" and the "Prospectus" shall also be deemed to include all documents
incorporated therein by reference pursuant to the Securities Exchange Act of
1934, as amended (the "1934 Act"), prior to the execution of the Terms
Agreement; provided, further, that if the Company files a registration statement
with the Commission pursuant to Rule 462(b) of the 1933 Act Regulations (the
"Rule 462 Registration Statement"), then, after such filing, all references to
"Registration Statement" shall also be deemed to include the Rule 462
Registration Statement; and
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provided, further, that if the Company elects to rely upon Rule 434 of the 1933
Act Regulations, then all references to "Prospectus" shall also be deemed to
include the final or preliminary prospectus and the applicable term sheet or
abbreviated term sheet (the "Term Sheet"), as the case may be, in the form first
furnished to the Underwriters by the Company in reliance upon Rule 434 of the
1933 Act Regulations, and all references in this Underwriting Agreement to the
date of the Prospectus shall mean the date of the Term Sheet. A "preliminary
prospectus" shall be deemed to refer to any prospectus used before the
registration statement became effective and any prospectus that omitted, as
applicable, the Rule 430A Information, the Rule 434 Information or other
information to be included upon pricing in a form of prospectus filed with the
Commission pursuant to Rule 424(b) of the 1933 Act Regulations, that was used
after such effectiveness and prior to the execution and delivery of the Terms
Agreement. For purposes of this Underwriting Agreement, all references to the
Registration Statement, Prospectus, Term Sheet or preliminary prospectus or to
any amendment or supplement to any of the foregoing shall be deemed to include
any copy filed with the Commission pursuant to its Electronic Data Gathering,
Analysis and Retrieval system ("XXXXX").
All references in this Underwriting Agreement to financial statements and
schedules and other information which is "contained," "included" or "stated" (or
other references of like import) in the Registration Statement, Prospectus or
preliminary prospectus shall be deemed to mean and include all such financial
statements and schedules and other information which is incorporated by
reference in the Registration Statement, Prospectus or preliminary prospectus,
as the case may be; and all references in this Underwriting Agreement to
amendments or supplements to the Registration Statement, Prospectus or
preliminary prospectus shall be deemed to mean and include the filing of any
document under the 1934 Act which is incorporated by reference in the
Registration Statement, Prospectus or preliminary prospectus, as the case may
be.
1. Representations and Warranties.
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a. Representations and Warranties by the Company. Each of the Company
and CB Xxxxxxx Xxxxx, Inc., a Delaware corporation and wholly owned subsidiary
of the Company ("CB Xxxxxxx Xxxxx"), represents and warrants to Xxxxxxx Xxxxx,
as of the date hereof, and to each Underwriter named in the Terms Agreement, as
of the date thereof, as of the Closing Time (as defined below), as follows:
i. Compliance with Registration Requirements. The Company meets the
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requirements for use of Form S-3 under the 1933 Act pursuant to the
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standards for that form prior to October 21, 1992. Each of the Registration
Statement and any Rule 462(b) Registration Statement has become effective under
the 1933 Act and no stop order suspending the effectiveness of the Registration
Statement or any Rule 462(b) Registration Statement has been issued under the
1933 Act and no proceedings for that purpose have been instituted or are pending
or, to the knowledge of the Company, are contemplated by the Commission, and any
request on the part of the Commission for additional information has been
complied with. In addition, the Indenture has been duly qualified under the 1939
Act.
At the respective times the Registration Statement, any Rule 462(b)
Registration Statement and any post-effective amendments thereto (including the
filing of the Company's most recent Annual Report on Form 10-K with the
Commission (the "Annual Report on Form 10-K")) became effective and at the
Closing Time, the Registration Statement, any Rule 462(b) Registration Statement
and any amendments and supplements thereto complied and will comply in all
material respects with the requirements of the 1933 Act and the 1933 Act
Regulations and the 1939 Act and the rules and regulations of the Commission
under the 1939 Act (the "1939 Act Regulations") and did not and 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.
At the date of the Prospectus, at the Closing Time, the Prospectus and any
amendments and supplements thereto did not and will not include an untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading. If the Company elects to rely upon Rule 434 of
the 1933 Act Regulations, the Company will comply with the requirements of Rule
434. Notwithstanding the foregoing, the representations and warranties in this
subsection shall not apply to statements in or omissions from the Registration
Statement or the Prospectus made in reliance upon and in conformity with
information furnished to the Company in writing by any Underwriter through
Xxxxxxx Xxxxx expressly for use in the Registration Statement or the Prospectus.
Each preliminary prospectus and prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment thereto,
or filed pursuant to Rule 424 under the 1933 Act, complied when so filed in all
material respects with the 1933 Act Regulations and each preliminary prospectus
and the Prospectus delivered to the Underwriters for use in connection with the
offering of Debt Securities will, at the time of such delivery, be identical to
any electronically transmitted copies thereof filed with the Commission pursuant
to XXXXX, except to the extent permitted by Regulation S-T.
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ii. Incorporated Documents. The documents incorporated or deemed to
----------------------
be incorporated by reference in the Registration Statement and the Prospectus,
when they became effective or at the time they were or hereafter are filed with
the Commission, complied and will comply in all material respects with the
requirements of the 1934 Act and the rules and regulations of the Commission
thereunder (the "1934 Act Regulations") and, when read together with the other
information in the Prospectus, at the date of the Prospectus and at the Closing
Time, did not and will not include an untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
iii. Independent Accountants. The accountants who certified the
-----------------------
financial statements and any supporting schedules thereto included in the
Registration Statement and the Prospectus are independent public accountants as
required by the 1933 Act and the 1933 Act Regulations.
iv. Financial Statements. The historical financial statements of the
--------------------
Company included in the Registration Statement and the Prospectus, together with
the related schedules and notes, as well as those financial statements,
schedules and notes of any other entity included therein, present fairly the
financial position of the Company and its consolidated subsidiaries, or such
other entity, as the case may be, at the dates indicated and the statement of
operations, stockholders' equity and cash flows of the Company and its
consolidated subsidiaries, or such other entity, as the case may be, for the
periods specified. Such financial statements have been prepared in conformity
with generally accepted accounting principles ("GAAP") applied on a consistent
basis throughout the periods involved. The supporting schedules, if any,
included in the Registration Statement and the Prospectus present fairly in
accordance with GAAP the information required to be stated therein. The
selected financial data and the summary financial information included in the
Prospectus present fairly the information shown therein and have been compiled
on a basis consistent with that of the audited financial statements included in
the Registration Statement and the Prospectus. In addition, any pro forma
financial statements of the Company and its consolidated subsidiaries or such
other entity, as the case may be, and the related notes thereto included in the
Registration Statement and the 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.
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v. No Material Adverse Change in Business. Since the respective
--------------------------------------
dates as of which information is given in the Registration Statement and the
Prospectus, and with respect to information as to which no date is given, since
the date of the Prospectus, except as otherwise stated therein, (A) there has
been no material adverse change in the condition, financial or otherwise, or in
the earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business (a "Material Adverse Effect"), (B) there have been
no transactions entered into by the Company or any of its subsidiaries, other
than those arising in the ordinary course of business, which are material with
respect to the Company and its subsidiaries considered as one enterprise and (C)
except for regular dividends on the Company's Common Stock or preferred stock,
in amounts per share that are consistent with past practice or the applicable
charter document or supplement thereto, respectively, there has been no dividend
or distribution of any kind declared, paid or made by the Company on any class
of its capital stock.
vi. Good Standing of the Company. The Company has been duly
----------------------------
organized and is validly existing as a corporation in good standing under the
laws of the State of Delaware and has corporate power and authority to own,
lease and operate its properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under, or as
contemplated under, this Underwriting Agreement and the Terms Agreement. The
Company is duly qualified as a foreign corporation to transact business and is
in good standing in each other jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure to so qualify or be in good
standing would not result in a Material Adverse Effect.
vii. Good Standing of Subsidiaries. Each "significant subsidiary" of
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the Company (as such term is defined in Rule 1-02 of Regulation S-X promulgated
under the 0000 Xxx) (each, a "Subsidiary" and, collectively, the "Subsidiaries")
has been duly organized and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation, has corporate
power and authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus and is duly qualified as a foreign
corporation to transact business and is in good standing in each jurisdiction in
which such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the failure to so
qualify or be in good standing would not result in a Material Adverse Effect.
Except as otherwise stated in the Registration Statement and the Prospectus, all
of the issued and outstanding capital stock of each
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Subsidiary has been duly authorized and is validly issued, fully paid and non-
assessable and is owned by the Company, directly or through subsidiaries, free
and clear of any security interest, mortgage, pledge, lien, encumbrance, claim
or equity. None of the outstanding shares of capital stock of any Subsidiary was
issued in violation of preemptive rights of any securityholder of such
Subsidiary.
viii. Capitalization. The authorized, issued and outstanding shares
--------------
of capital stock of the Company is as set forth in the column entitled "Actual"
under such section entitled "Capitalization" (except for subsequent issuances
thereof, if any, contemplated under this Underwriting Agreement, pursuant to
reservations, agreements or employee benefit plans or compensation programs
referred to in the Prospectus or pursuant to the exercise of convertible
securities or options referred to in the Prospectus). Such shares of capital
stock have been duly authorized and validly issued by the Company and are fully
paid and non-assessable, and none of such shares of capital stock was issued in
violation of preemptive rights of any securityholder of the Company.
ix. Authorization of this Underwriting Agreement and Terms
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Agreement. Each of the Underwriting Agreement and the Terms Agreement has been
duly authorized, executed and delivered by the Company and CB Xxxxxxx Xxxxx.
x. Authorization of Debt Securities. The Debt Securities have been
--------------------------------
duly authorized by the Company for issuance and sale pursuant to this
Underwriting Agreement and the Terms Agreement. The Debt Securities, when
issued and authenticated in the manner provided for in the Indenture and
delivered against payment of the consideration therefor specified in the Terms
Agreement, will constitute valid and legally binding obligations of the Company,
enforceable against the Company in accordance with their terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting creditors' rights
generally or by general equitable principles. The Debt Securities will be in
the form contemplated by, and each registered holder thereof is entitled to the
benefits of, the Indenture.
xi. Authorization of the Indenture. The Indenture has been, or
------------------------------
prior to the issuance of the Debt Securities thereunder will have been, duly
authorized, executed and delivered by the Company and, upon such authorization,
execution and delivery, will constitute a valid and legally binding agreement of
the Company, enforceable against the Company in accordance with its terms,
except as the enforcement thereof may be limited by bankruptcy, insolvency,
reorganization,
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moratorium or other similar laws relating to or affecting creditors' rights
generally or by general equitable principles.
xii. Descriptions of the Debt Securities. The Debt Securities and
-----------------------------------
Indenture, as of the date of the Prospectus, will conform in all material
respects to the statements relating thereto contained in the Prospectus and will
be in substantially the form filed or incorporated by reference, as the case may
be, as an exhibit to the Registration Statement.
xiii. Absence of Defaults and Conflicts. Neither the Company nor any
---------------------------------
of its subsidiaries is in violation of its charter or by-laws or in default in
the performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, deed of trust, loan or
credit agreement, note, lease or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which it or any of them may
be bound, or to which any of the property or assets of the Company or any of its
subsidiaries is subject (collectively, "Agreements and Instruments"), except for
such violations and defaults that would not result in a Material Adverse Effect.
The execution, delivery and performance of this Underwriting Agreement, the
Terms Agreement and the Indenture, and any other agreement or instrument entered
into or issued or to be entered into or issued by the Company in connection with
the transactions contemplated hereby or thereby or in the Registration Statement
and the Prospectus, and the consummation of the transactions contemplated herein
and in the Registration Statement and the Prospectus (including the issuance and
sale of the Debt Securities and the use of the proceeds from the sale of the
Debt Securities as described under the caption "Use of Proceeds") and compliance
by the Company with its obligations hereunder and thereunder have been duly
authorized by all necessary corporate action and do not and will not, whether
with or without the giving of notice or passage of time or both, conflict with
or constitute a breach of, or default or Repayment Event (as defined below)
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any assets, properties or operations of the Company or any of
its subsidiaries pursuant to, any Agreements and Instruments (except for such
conflicts, breaches, defaults or liens, charges or encumbrances that would not
result in a Material Adverse Effect) nor will any such action result in any
violation of the provisions of the charter or by-laws of the Company or any of
its subsidiaries or any applicable law, statute, rule, regulation, judgment,
order, writ or decree of any government, government instrumentality or court,
domestic or foreign, having jurisdiction over the Company or any if its
subsidiaries or any of their assets, properties or operations (except for such
violations that would not result in a Material Adverse Effect). As used herein,
a "Repayment Event" means any event or
-8-
condition which gives the holder of any note, debenture or other evidence of
indebtedness (or any person acting on such holder's behalf) the right to require
the repurchase, redemption or repayment of all or a portion of such indebtedness
by the Company or any of its subsidiaries.
xiv. Absence of Labor Dispute. (a) No labor dispute with the
------------------------
employees of the Company or any of its subsidiaries exists or, to the knowledge
of the Company, is imminent, and (b) the Company is not aware of any existing or
imminent labor disturbance by the employees of any of its or any subsidiary's
principal customers or contractors, which, in either (a) or (b) above, may
reasonably be expected to result in a Material Adverse Effect.
xv. Absence of Proceedings. There is no action, suit, proceeding,
----------------------
inquiry or investigation before or brought by 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 the Registration Statement and the 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 assets, properties or operations thereof or the
consummation of the transactions contemplated under this Underwriting Agreement,
the Terms Agreement or the Indenture, or the performance by the Company of its
obligations hereunder and thereunder. The aggregate of all pending legal or
governmental proceedings to which the Company or any of its subsidiaries is a
party or of which any of their respective assets, properties or operations is
the subject which are not described in the Registration Statement and the
Prospectus, including ordinary routine litigation incidental to the business,
could not reasonably be expected to result in a Material Adverse Effect.
xvi. Accuracy of Exhibits. There are no contracts or documents which
--------------------
are required to be described in the Registration Statement, the Prospectus or
the documents incorporated by reference therein or to be filed as exhibits
thereto which have not been so described and filed as required.
xvii. Absence of Further Requirements. No filing with, or
-------------------------------
authorization, approval, consent, license, order registration, qualification or
decree of, any court or governmental authority or agency, domestic or foreign,
is necessary or required for the performance by the Company of its obligations
under this Underwriting Agreement or the Terms Agreement or in connection with
the transactions contemplated under this Underwriting Agreement, the Terms
Agreement or the
-9-
Indenture, except such as have been already obtained or as may be required under
the 1933 Act or the 1933 Act Regulations, the 1934 Act or the 1934 Act
Regulations, or state securities laws.
xviii. Possession of Intellectual Property. The Company, either in
-----------------------------------
its own right or through its subsidiaries, owns or possesses, or can acquire on
reasonable terms, copyrights, licenses, trademarks, service marks, trade names
or other intellectual property (including trade secrets and other unpatented
and/or unpatentable proprietary or confidential information, systems or
procedures) (collectively, "Intellectual Property") necessary to carry on the
business now operated by the Company and its subsidiaries, and neither the
Company nor any of its subsidiaries has received any notice or is otherwise
aware of any infringement of or conflict with asserted rights of others with
respect to any Intellectual Property or of any facts or circumstances which
would render any Intellectual Property invalid or inadequate to protect the
interest of the Company or any of its subsidiaries therein, and which
infringement or conflict (if the subject of any unfavorable decision, ruling or
finding) or invalidity or inadequacy, singly or in the aggregate, would result
in a Material Adverse Effect.
xix. Possession of Licenses and Permits. The Company, either in its
----------------------------------
own right or through its subsidiaries, possesses such permits, licenses,
approvals, consents and other authorizations (collectively, "Governmental
Licenses") issued by the appropriate federal, state, local or foreign regulatory
agencies or bodies necessary to conduct the business now operated by the Company
and its subsidiaries. The Company and its subsidiaries are in compliance with
the terms and conditions of all such Governmental Licenses, except where the
failure so to comply would not, singly or in the aggregate, result in a Material
Adverse Effect. All of the Governmental Licenses are valid and in full force
and effect, except where the invalidity of such Governmental Licenses or the
failure of such Governmental Licenses to be in full force and effect would not
result in a Material Adverse Effect. Neither the Company nor any of its
subsidiaries has received any notice of proceedings relating to the revocation
or modification of any such Governmental Licenses which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or finding, would
result in a Material Adverse Effect.
xx. Title to Property. The Company, either in its own right or
-----------------
through its subsidiaries, has good and marketable title to all real property
owned by the Company or its subsidiaries and good title to all other properties
owned by any of them, in each case, free and clear of all mortgages, pledges,
liens, security interests, claims, restrictions or encumbrances of any kind,
except (A) as otherwise stated in
-10-
the Registration Statement and the Prospectus or (B) those which do not, singly
or in the aggregate, materially affect the value of such property and do not
interfere with the use made and proposed to be made of such property by the
Company or any of its subsidiaries. All of the leases and subleases material to
the business of the Company and its subsidiaries considered as one enterprise,
and under which the Company or any of its subsidiaries holds properties
described in the Prospectus, are in full force and effect, and neither the
Company nor any of its subsidiaries has received any notice of any material
claim of any sort that has been asserted by anyone adverse to the rights of the
Company or any of its subsidiaries under any of the leases or subleases
mentioned above, or affecting or questioning the rights of the Company or such
subsidiary of the continued possession of the leased or subleased premises under
any such lease or sublease.
xxi. Commodity Exchange Act. The Debt Securities, upon issuance,
----------------------
will be excluded or exempted under, or beyond the purview of, the Commodity
Exchange Act, as amended (the "Commodity Exchange Act"), and the rules and
regulations of the Commodity Futures Trading Commission under the Commodity
Exchange Act (the "Commodity Exchange Act Regulations").
xxii. Investment Company Act. The Company is not, and upon the
----------------------
issuance and sale of the Debt Securities as herein contemplated and the
application of the net proceeds therefrom as described in the Prospectus will
not be, an "investment company" within the meaning of the Investment Company Act
of 1940, as amended (the "1940 Act").
xxiii. Environmental Laws. Except as otherwise stated in the
------------------
Registration Statement and the Prospectus and except as would not, singly or in
the aggregate, result in a Material Adverse Effect, (A) neither the Company nor
any of its subsidiaries is in violation of any federal, state, local or, to the
best of its knowledge, foreign statute, law, rule, regulation, ordinance, code,
policy or rule of common law or any judicial or administrative interpretation
thereof including any judicial or administrative order, consent, decree or
judgment, relating to pollution or protection of human health, the environment
(including, without limitation, ambient air, surface water, groundwater, land
surface or subsurface strata) or wildlife, including, without limitation, laws
and regulations relating to the release or threatened release of chemicals,
pollutants, contaminants, wastes, toxic substances, hazardous substances,
petroleum or petroleum products (collectively, "Hazardous Materials") or to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of Hazardous Materials (collectively, "Environmental
Laws") that are applicable to actions or the omissions of the Company and its
-11-
subsidiaries, (B) the Company and its subsidiaries have all permits,
authorizations and approvals required under any Environmental Laws that are
applicable to the business of the Company and its subsidiaries and are each in
compliance with their requirements, (C) there are no pending or, to the best of
the Company's knowledge, threatened administrative, regulatory or judicial
actions, suits, demands, demand letters, claims, liens, notices of noncompliance
or violation, investigation or proceedings relating to any Environmental Law
against the Company or any of its subsidiaries and (D) to the best of the
Company's knowledge, there are no events or circumstances that might reasonably
be expected to form the basis of an order for clean-up or remediation, or an
action, suit or proceeding by any private party or governmental body or agency,
against or affecting the Company or any of its subsidiaries relating to
Hazardous Materials or any Environmental Laws.
xxiv. Registration Rights. Except as described in the Registration
-------------------
Statement and the Prospectus, no persons have rights to have any securities
registered pursuant to the Registration Statement or otherwise registered by the
Company under the 1933 Act.
xxv. Solvency. The Company is, and immediately after the Closing
--------
Time will be, Solvent. As used herein, the term "Solvent" means, with respect to
the Company on a particular date, that on such date (A) the fair market value of
the assets of the Company is greater than the total amount of liabilities
(including contingent liabilities) of the Company, (B) the present fair salable
value of the assets of the Company is greater than the amount that will be
required to pay the probable liabilities of the Company on its debts as they
become absolute and matured, (C) the Company is able to realize upon its assets
and pay its debts and other liabilities, including contingent obligations, as
they mature, and (D) the Company does not have unreasonably small capital.
xxvi. Stabilization. Neither the Company nor any of its officers,
-------------
directors or controlling persons has taken, directly or indirectly, any action
designed to cause or to result in, or that has constituted or which might
reasonably be expected to constitute, the stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale of the
Debt Securities.
xxvii. Distribution of Offering Material. The Company has not
---------------------------------
distributed and, prior to the later to occur of (i) the Closing Time and (ii)
completion of the distribution of the Debt Securities, will not distribute any
offering material in connection with the offering and sale of the Debt
Securities other than the Registra-
-12-
tion Statement, any preliminary prospectus, the Prospectus or other materials,
if any, permitted by the 1933 Act and approved by Xxxxxxx Xxxxx.
b. Officers' Certificates. Any certificate signed by any officer of the
Company or any of its subsidiaries and delivered to any Underwriter or to
counsel for the Underwriters in connection with the offering of the Debt
Securities shall be deemed a representation and warranty by the Company to each
Underwriter as to the matters covered thereby on the date of such certificate.
2. Sale and Delivery to Underwriters; Closing.
------------------------------------------
a. Debt Securities. The several commitments of the Underwriters to
purchase the Debt Securities pursuant to the Terms Agreement shall be deemed to
have been made on the basis of the representations and warranties herein
contained and shall be subject to the terms and conditions herein set forth.
b. Payment. Payment of the purchase price for, and delivery of, the Debt
Securities shall be made at the offices of Pillsbury Madison & Sutro LLP, New
York, New York, or at such other place as shall be agreed upon by Xxxxxxx Xxxxx
and the Company, at 7:00 A.M. (California time) on the third (fourth, if the
pricing occurs after 4:30 P.M. (Eastern time) on any given day) business day
after the date of the Terms Agreement (unless postponed in accordance with the
provisions of Section 10 hereof), or such other time not later than ten business
days after such date as shall be agreed upon by Xxxxxxx Xxxxx and the Company
(such time and date of payment and delivery being herein called "Closing Time").
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery to
Xxxxxxx Xxxxx for the respective accounts of the Underwriters of the Debt
Securities to be purchased by them. It is understood that each Underwriter has
authorized Xxxxxxx Xxxxx, for its account, to accept delivery of, receipt for,
and make payment of the purchase price for, the Debt Securities which it has
severally agreed to purchase. Xxxxxxx Xxxxx, individually and not as
representative of the Underwriters, may (but shall not be obligated to) make
payment of the purchase price for the Debt Securities to be purchased by any
Underwriter whose funds have not been received by the Closing Time, but such
payment shall not relieve such Underwriter from its obligations hereunder.
c. Denominations; Registration. The Debt Securities or certificates for
the Debt Securities shall be in such denominations and registered in such names
as
-00-
Xxxxxxx Xxxxx may request in writing at least one full business day prior to
the Closing Time. The Debt Securities or certificates for the Debt Securities
will be made available for examination and packaging by Xxxxxxx Xxxxx in The
City of New York not later than 10:00 A.M. (Eastern time) on the business day
prior to the Closing Time.
3. Covenants of the Company. The Company covenants with Xxxxxxx Xxxxx and
------------------------
with each Underwriter participating in the offering of the Debt Securities, as
follows:
a. Compliance with Securities Regulations and Commission Requests. The
Company, subject to Section 3(b), will comply with the requirements of Rule 430A
of the 1933 Act Regulations and/or Rule 434 of the 1933 Act Regulations, if and
as applicable, and will notify Xxxxxxx Xxxxx immediately, and confirm the notice
in writing, of (i) the effectiveness of any post effective amendment to the
Registration Statement or the filing of any supplement or amendment to the
Prospectus, (ii) the receipt of any comments from the Commission, (iii) any
request by the Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or for additional information, and
(iv) the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing or
suspending the use of any preliminary prospectus, or of the suspension of the
qualification of the Debt Securities for offering or sale in any jurisdiction,
or of the initiation or threatening of any proceedings for any of such purposes.
The Company will promptly effect the filings necessary pursuant to Rule 424 and
will take such steps as it deems necessary to ascertain promptly whether the
Prospectus transmitted for filing under Rule 424 was received for filing by the
Commission and, in the event that it was not, it will promptly file the
Prospectus. The Company will make every reasonable effort to prevent the
issuance of any stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
b. Filing of Amendments. The Company will give Xxxxxxx Xxxxx notice of
its intention to file or prepare any amendment to the Registration Statement
(including any filing under Rule 462(b) of the 1933 Act Regulations), any Term
Sheet or any amendment, supplement or revision to either the prospectus included
in the Registration Statement at the time it became effective or to the
Prospectus, whether pursuant to the 1933 Act, the 1934 Act or otherwise, will
xxxxxxx Xxxxxxx Xxxxx with copies of any such documents a reasonable amount of
time prior to such proposed filing or use, as the case may be, and, in
connection with the issuance of
-14-
the Debt Securities, will not file or use any such document to which Xxxxxxx
Xxxxx or counsel for the Underwriters shall object.
c. Delivery of Registration Statements. The Company has furnished or
will deliver to Xxxxxxx Xxxxx and counsel for the Underwriters, without charge,
signed copies of the Registration Statement as originally filed and of each
amendment thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated or deemed to be incorporated by
reference therein) and conformed copies of all consents and certificates of
experts, and will also deliver to Xxxxxxx Xxxxx, without charge, a conformed
copy of the Registration Statement as originally filed and of each amendment
thereto (without exhibits) for each of the Underwriters. Copies of the
Registration Statement and each amendment thereto furnished to the Underwriters
will be identical to any electronically transmitted copies thereof filed with
the Commission pursuant to XXXXX, except to the extent permitted by Regulation
S-T.
d. Delivery of Prospectuses. The Company will deliver to each
Underwriter, without charge, as many copies of each preliminary prospectus as
such Underwriter may reasonably request, and the Company hereby consents to the
use of such copies for purposes permitted by the 1933 Act. The Company will
furnish to each Underwriter, without charge, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, such
number of copies of the Prospectus as such Underwriter may reasonably request.
The Prospectus and any amendments or supplements thereto furnished to the
Underwriters will be identical to any electronically transmitted copies thereof
filed with the Commission pursuant to XXXXX, except to the extent permitted by
Regulation S-T.
e. Continued Compliance with Securities Laws. The Company will comply
with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act
Regulations so as to permit the completion of the distribution of the Debt
Securities as contemplated in this Underwriting Agreement and the Terms
Agreement and in the Registration Statement and the Prospectus. If at any time
when the Prospectus is required by the 1933 Act or the 1934 Act to be delivered
in connection with sales of the Debt Securities, any event shall occur or
condition shall exist as a result of which it is necessary, in the opinion of
counsel for the Underwriters or for the Company, to amend the Registration
Statement in order that the Registration Statement 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 or to
amend or supplement the Prospectus in order that the Prospectus will not include
an untrue statement of a material fact or omit to state a material fact
-15-
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
the Registration Statement or amend or supplement the Prospectus in order to
comply with the requirements of the 1933 Act or the 1933 Act Regulations, the
Company will promptly prepare and file with the Commission, subject to Section
3(b), such amendment or supplement as may be necessary to correct such statement
or omission or to make the Registration Statement or the Prospectus comply with
such requirements, and the Company will furnish to the Underwriters, without
charge, such number of copies of such amendment or supplement as the
Underwriters may reasonably request.
f. Blue Sky Qualifications. The Company will use its best efforts, in
cooperation with the Underwriters, to qualify the Debt Securities for offering
and sale under the applicable securities laws of such states and other
jurisdictions (domestic or foreign) as Xxxxxxx Xxxxx may designate and to
maintain such qualifications in effect for a period of not less than one year
from the date of the Terms Agreement; 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. In
each jurisdiction in which the Debt Securities have been so qualified, the
Company will file such statements and reports as may be required by the laws of
such jurisdiction to continue such qualification in effect for a period of not
less than one year from the date of the Terms Agreement.
g. Earnings Statement. The Company will timely file such reports
pursuant to the 1934 Act as are necessary in order to make generally available
to its securityholders as soon as practicable an earnings statement for the
purposes of, and to provide the benefits contemplated by, the last paragraph of
Section 11(a) of the 1933 Act.
h. Use of Proceeds. The Company will use the net proceeds received by it
from the sale of the Debt Securities in the manner specified in the Prospectus
under "Use of Proceeds."
i. Restriction on Sale of Securities. Between the date of the Terms
Agreement and the Closing Time or such other date specified in such Terms
Agreement, the Company will not, without the prior written consent of Xxxxxxx
Xxxxx,
-16-
directly or indirectly, issue, sell, offer to sell, grant any option for the
sale of, or otherwise dispose of, the securities specified in the Terms
Agreement.
j. Reporting Requirements. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, will
file all documents required to be filed with the Commission pursuant to the 1934
Act within the time periods required by the 1934 Act and the 1934 Act
Regulations.
4. Payment of Expenses.
-------------------
a. Expenses. The Company will pay all expenses incident to the
performance of its obligations under this Underwriting Agreement and the Terms
Agreement, including (i) the preparation, printing and filing of the
Registration Statement (including financial statements and exhibits) as
originally filed and of each amendment thereto (excluding Underwriters'
counsel's fees), (ii) the preparation, printing and delivery to the Underwriters
of this Underwriting Agreement, the Terms Agreement, any Agreement among
Underwriters, the Indenture and such other documents as may be required in
connection with the offering, purchase, sale, issuance or delivery of the Debt
Securities (excluding Underwriters' counsel's fees), (iii) the preparation,
issuance and delivery of the Debt Securities, any certificates for the Debt
Securities to the Underwriters, including any transfer taxes and any stamp or
other duties payable upon the sale, issuance or delivery of the Debt Securities
to the Underwriters, (iv) the fees and disbursements of the Company's counsel,
accountants and other advisors or agents (including transfer agents and
registrars), as well as the fees and disbursements of the Trustee, and its
counsel, (v) the qualification of the Debt Securities under state securities
laws in accordance with the provisions of Section 3(f) hereof, including filing
fees and the reasonable fees and disbursements of counsel for the Underwriters
in connection therewith and in connection with the preparation, printing and
delivery of the Blue Sky Survey and any Legal Investment Survey, and any
amendment thereto, (vi) the printing and delivery to the Underwriters of copies
of each preliminary prospectus, any Term Sheet, and the Prospectus and any
amendments or supplements thereto, (vii) the fees charged by nationally
recognized statistical rating organizations for the rating of the Debt
Securities, (viii) the filing fees incident to, and the reasonable fees and
disbursements of counsel to the Underwriters in connection with, the review, if
any, by the National Association of Securities Dealers, Inc. (the "NASD") of the
terms of the sale of the Debt Securities, and (ix) the fees and expenses of any
Underwriter acting in the capacity of a "qualified independent underwriter" (as
defined in Section 2(l) of Schedule E of the bylaws of the NASD), if applicable.
-17-
b. Termination of Agreement. If the Terms Agreement is terminated by
Xxxxxxx Xxxxx in accordance with the provisions of Section 5 (except for Section
5(c)) or Section 9(b)(i) or 9(b)(iii) hereof, the Company shall reimburse the
Underwriters for all of their out-of-pocket expenses, including the reasonable
fees and disbursements of counsel for the Underwriters.
5. Conditions of Underwriters' Obligations. The obligations of the
---------------------------------------
Underwriters to purchase and pay for the Debt Securities pursuant to the Terms
Agreement are subject to the accuracy of the representations and warranties of
the Company contained in Section 1 hereof or in certificates of any officer of
the Company or any of its subsidiaries delivered pursuant to the provisions
hereof, to the performance by the Company of its covenants and other obligations
hereunder, and to the following further conditions:
a. Effectiveness of Registration Statement. The Registration Statement,
including any Rule 462(b) Registration Statement, has become effective under the
1933 Act and no stop order suspending the effectiveness of the Registration
Statement shall have been issued under the 1933 Act and no proceedings for that
purpose shall have been initiated or be pending or threatened by the Commission,
and any request on the part of the Commission for additional information shall
have been complied with to the reasonable satisfaction of counsel to the
Underwriters. A prospectus containing information relating to the description
of the Debt Securities, the specific method of distribution and similar matters
shall have been filed with the Commission in accordance with Rule 424(b)(1),
(2), (3), (4) or (5), as applicable (or any required post-effective amendment
providing such information shall have been filed and declared effective in
accordance with the requirements of Rule 430A), or, if the Company has elected
to rely upon Rule 434 of the 1933 Act Regulations, a Term Sheet including the
Rule 434 Information shall have been filed with the Commission in accordance
with Rule 424(b)(7).
b. Opinions of Counsel for Company and General Counsel. At Closing Time,
Xxxxxxx Xxxxx shall have received the favorable opinion, dated as of Closing
Time, of each of Pillsbury Madison & Sutro LLP, counsel for the Company, and
Xxxxxx X. Xxxxxxxx, General Counsel to the Company, in form and substance
satisfactory to counsel for the Underwriters, together with signed or reproduced
copies of such letters for each of the other Underwriters, to the effect set
forth in Exhibits B and C hereto, respectively, and to such further effect as
counsel to the Underwriters may reasonably request. In giving such opinion,
such counsel may rely, as to all matters governed by the laws of jurisdictions
other than the law of the State of New York, the federal law of the United
States and the General Corporation
-18-
Law of the State of Delaware, upon the opinions of counsel satisfactory to
Xxxxxxx Xxxxx. Such counsel may also state that, insofar as such opinion
involves factual matters, they have relied, to the extent they deem proper, upon
certificates of officers of the Company and its subsidiaries and certificates of
public officials.
c. Opinion of Counsel for Underwriters. At Closing Time, Xxxxxxx Xxxxx
shall have received the favorable opinion, dated as of Closing Time, of Skadden,
Arps, Slate, Xxxxxxx & Xxxx, LLP, counsel for the Underwriters, together with
signed or reproduced copies of such letter for each of the other Underwriters,
with respect to the matters set forth in (i), (ii), (iv), (v), (vi), (vii),
(viii), (ix) and (xiv) (solely as to the information in the Prospectus under
"Description of the Notes"), and the penultimate paragraph of Exhibit B hereto.
In giving such opinion, such counsel may rely, as to all matters governed by the
laws of jurisdictions other than the law of the State of New York, the federal
law of the United States and the General Corporation Law of the State of
Delaware, upon the opinions of counsel satisfactory to Xxxxxxx Xxxxx. Such
counsel may also state that, insofar as such opinion involves factual matters,
they have relied, to the extent they deem proper, upon certificates of officers
of the Company and its subsidiaries and certificates of public officials.
d. Officers' Certificate. At Closing Time, there shall not have been,
since the date of the Terms 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 and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, and
Xxxxxxx Xxxxx shall have received a certificate of the Chief Executive Officer
or a Senior Executive Vice President of each of the Company and CB Xxxxxxx Xxxxx
and of the chief financial officer or chief accounting officer of each of the
Company and CB Xxxxxxx Xxxxx, dated as of Closing Time, to the effect that (i)
there has been no such material adverse change, (ii) the representations and
warranties in Section 1 are true and correct with the same force and effect as
though expressly made at and as of the Closing Time, (iii) each of the Company
and CB Xxxxxxx Xxxxx has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied at or prior to the Closing
Time, and (iv) 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.
e. Accountant's Comfort Letter. At the time of the execution of the
Terms Agreement, Xxxxxxx Xxxxx shall have received from Xxxxxx Xxxxxxxx LLP a
letter dated such date, in form and substance satisfactory to Xxxxxxx Xxxxx,
together
-19-
with signed or reproduced copies of such letter for each of the other
Underwriters, containing statements and information of the type ordinarily
included in accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in the
Registration Statement and the Prospectus.
f. Bring-down Comfort Letter. At Closing Time, Xxxxxxx Xxxxx shall have
received from Xxxxxx Xxxxxxxx LLP a letter, dated as of Closing Time, to the
effect that they reaffirm the statements made in the letter furnished pursuant
to subsection (e) of this Section 5, except that the specified date referred to
shall be a date not more than three business days prior to the Closing Time.
g. Ratings. At Closing Time, the Debt Securities shall have the ratings
accorded by any "nationally recognized statistical rating organization," as
defined by the Commission for purposes of Rule 436(g) (2) of the 1933 Act
Regulations, if and as specified in the Terms Agreement, and the Company shall
have delivered to Xxxxxxx Xxxxx a letter, dated as of such date, from each such
rating organization, or other evidence satisfactory to Xxxxxxx Xxxxx, confirming
that the Debt Securities have such ratings. Since the time of execution of the
Terms Agreement, there shall not have occurred a downgrading in the rating
assigned to the Debt Securities or any of the Company's other securities by any
such rating organization, and no such rating organization shall have publicly
announced that it has under surveillance or review its rating of the Debt
Securities or any of the Company's other securities.
h. Lock-up Agreements. On the date of the Terms Agreement, Xxxxxxx Xxxxx
shall have received, in form and substance satisfactory to it, each lock-up
agreement, if any, specified in the Terms Agreement as being required to be
delivered by the persons listed therein.
i. Officer's Certificate. The Company shall have delivered a
certificate, signed by an officer of the Company, in form and substance
reasonably satisfactory to the Company, the Underwriters and Counsel for the
Underwriters, with respect to certain information set forth in the Registration
Statement.
j. Credit Agreements. The Company shall have entered into the Amended
and Restated Credit Agreement with the Bank of America National Trust and
Savings Association, as Agent and Letter of Credit Issuing Bank, the agents and
co-agents named therein, and the other financial institutions party thereto,
prior to or contemporaneously with the Closing Time, substantially in the form
described in the Prospectus.
-20-
k. Additional Documents. At Closing Time, counsel for the Underwriters
shall have been furnished with such documents and opinions as they may
reasonably require for the purpose of enabling them to pass upon the issuance
and sale of the Debt Securities as herein contemplated, or in order to evidence
the accuracy of any of the representations or warranties, or the fulfillment of
any of the conditions, herein contained; and all proceedings taken by the
Company in connection with the issuance and sale of the Debt Securities as
herein contemplated shall be satisfactory in form and substance to Xxxxxxx Xxxxx
and counsel for the Underwriters.
l. Termination of Terms Agreement. In addition to the termination
provisions provided in Section 9 hereof, if any condition specified in this
Section 5 shall not have been fulfilled when and as required to be fulfilled,
the Terms Agreement may be terminated by Xxxxxxx Xxxxx by notice to the Company
at any time at or prior to the Closing Time, and such termination shall be
without liability of any party to any other party except as provided in Section
4 and except that Sections 1, 6, 7 and 8 shall survive any such termination and
remain in full force and effect.
6. Indemnification.
---------------
a. Indemnification of Underwriters. Subject to Section 6(c) below, the
Company and CB Xxxxxxx Xxxxx jointly and severally agree to indemnify and hold
harmless each Underwriter and each person, if any, who controls any Underwriter
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 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 the Registration Statement (or any
amendment thereto), including the Rule 430A Information and the Rule 434
Information deemed to be a part thereof, if applicable, 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 included in any
preliminary prospectus or the 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;
-21-
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 Section 6(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 reasonable fees and disbursements of counsel chosen by Xxxxxxx Xxxxx), 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 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 Xxxxxxx Xxxxx expressly for use in the Registration
Statement (or any amendment thereto), including the Rule 430A Information and
the Rule 434 Information deemed to be a part thereof, if applicable, or any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto). In addition, neither the Company nor CB Xxxxxxx Xxxxx will be liable
to any Underwriter with respect to any Preliminary Prospectus to the extent that
any such loss, liability, claim, damage or expense resulted from the fact that
such Underwriter, in contravention of a requirement of this Agreement or
applicable law, sold Debt Securities to a person to whom such Underwriter failed
to send or give, at or prior to the Closing Time, a copy of the Prospectus, as
then amended or supplemented, if the Company has previously furnished copies
thereof (sufficiently in advance of the Closing Time to allow for distribution
by the Closing Time) to the Underwriter and the loss, liability, claim, damage
or expense of such Underwriter resulted from an untrue statement or omission of
a material fact contained in or omitted from the Preliminary Prospectus which
was corrected in the Prospectus as, if applicable, amended or supplemented prior
to the Closing Time and such Prospectus was required by law to be delivered at
or prior to the written confirmation of sale to such person.
-22-
b. Indemnification of Company, Directors and Officers. Each Underwriter
severally agrees to indemnify and hold harmless the Company, its directors, each
of its officers who signed the Registration Statement, and each person, if any,
who controls the Company within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act against any and all loss, liability, claim, damage
and expense described in the indemnity contained in subsection (a) of this
Section, as incurred, but only with respect to untrue statements or omissions,
or alleged untrue statements or omissions, made in the Registration Statement
(or any amendment thereto), including the Rule 430A Information and the Rule 434
Information deemed to be a part thereof, if applicable, or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with written information furnished to the
Company by such Underwriter through Xxxxxxx Xxxxx expressly for use in the
Registration Statement (or any amendment thereto) or such preliminary prospectus
or the Prospectus (or any amendment or supplement thereto).
c. Actions against Parties; Notification. 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. Except as set forth below, in the case of parties indemnified
pursuant to Section 6(a) above, counsel to the indemnified parties shall be
selected by Xxxxxxx Xxxxx, and, in the case of parties indemnified pursuant to
Section 6(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. If any indemnifying party so elects to participate
in the defense of such action within a reasonable time after receipt of notice
of an action commenced against an indemnified party, an indemnifying party,
jointly with any other indemnifying parties receiving such notice, may assume
the defense of such action with counsel chosen by it and approved by the
indemnified
-23-
parties defendant in such action, unless such indemnified parties reasonably
object to such assumption on the ground that there may be legal defenses
available to them which are different from or in addition to those available to
such indemnifying party. If an indemnifying party assumes the defense of such
action, the indemnifying parties shall not be liable for any fees and expenses
of counsel for the indemnified parties incurred thereafter in connection with
such action. 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 Section 6 or Section
7 hereof (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 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. Settlement without Consent if Failure to Reimburse. 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. Notwithstanding the immediately preceding sentence, if at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, an indemnifying party shall
not be liable for any settlement of the nature contemplated by Section 6(a)(ii)
effected without its consent if such indemnifying party (i) reimburses such
indemnified party in accordance with such request to the extent it considers
such request to be reasonable and (ii) provides written notice to the
indemnified party substantiating the unpaid balance as unreasonable, in each
case prior to the date of such settlement.
7. Contribution. If the indemnification provided for in Section 6 hereof 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 and CB
Xxxxxxx Xxxxx, on the one hand, and the Underwriters, on the other hand, from
the offering of the Debt Securities pursuant to the Terms
-24-
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 and CB Xxxxxxx Xxxxx, 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 and CB Xxxxxxx Xxxxx, on the
one hand, and the Underwriters, on the other hand, in connection with the
offering of the Debt Securities pursuant to the Terms Agreement shall be deemed
to be in the same respective proportions as the total net proceeds from the
offering of such Debt Securities (before deducting expenses) received by the
Company and the total underwriting discount received by the Underwriters, in
each case as set forth on the cover of the Prospectus, or, if Rule 434 is used,
the corresponding location on the Term Sheet bear to the aggregate initial
public offering price of such Debt Securities as set forth on such cover.
The relative fault of the Company and CB Xxxxxxx Xxxxx, 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 and CB Xxxxxxx Xxxxx 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 CB Xxxxxxx Xxxxx and the Underwriters agree that it would
not be just and equitable if contribution pursuant to this Section 7 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 Section
7. The aggregate amount of losses, liabilities, claims, damages and expenses
incurred by an indemnified party and referred to above in this Section 7 shall
be deemed to include any legal or other expenses reasonably incurred by such
indemnified parry 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 Section 7, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at
-25-
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 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 0000 Xxx) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall
have the same rights to contribution as the Company. The Underwriters'
respective obligations to contribute pursuant to this Section 7 are several in
proportion to the aggregate principal amount, of Debt Securities set forth
opposite their respective names in the Terms Agreement, and not joint.
8. Representations, Warranties and Agreements to Survive Delivery. All
--------------------------------------------------------------
representations, warranties and agreements contained in this Underwriting
Agreement and the Terms Agreement or in certificates of officers of the Company
submitted pursuant hereto or thereto shall remain operative and in full force
and effect, regardless of any investigation made by or on behalf of any
Underwriter or controlling person, or by or on behalf of the Company, and shall
survive delivery of and payment for the Debt Securities.
9. Termination
-----------
a. Underwriting Agreement. This Underwriting Agreement (excluding the
Terms Agreement) may be terminated for any reason at any time by the Company or
by Xxxxxxx Xxxxx upon the giving of 30 days' prior written notice of such
termination to the other party hereto.
b. Terms Agreement. Xxxxxxx Xxxxx may terminate the Terms Agreement, by
notice to the Company, at any time at or prior to the Closing Time, if (i) there
has been, since the time of execution of the Terms 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
-26-
affairs or business prospects of the Company and its subsidiaries considered as
one enterprise, whether or not arising in the ordinary course of business, or
(ii) there has occurred any material adverse change in the financial markets in
the United States, or 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 Xxxxxxx
Xxxxx, impracticable to market the Debt Securities or to enforce contracts for
the sale of the Debt Securities, or (iii) trading in any securities of the
Company has been suspended or materially limited by the Commission or the New
York Stock Exchange or if trading generally on the New York Stock Exchange or
the American Stock Exchange or in the Nasdaq National Market has been suspended
or limited, or minimum or maximum prices for trading have been fixed, or maximum
ranges for prices have been required, by either of said exchanges or by such
system or by order of the Commission, the NASD or any other governmental
authority, or (iv) a banking moratorium has been declared by either Federal or
New York authorities.
c. Liabilities. If this Underwriting Agreement or the Terms Agreement is
terminated pursuant to this Section 9, such termination shall be without
liability of any party to any other party except as provided in Section 4
hereof, and provided further that Sections 1, 6, 7 and 8 shall survive such
termination and remain in full force and effect.
10. Default by One or More of the Underwriters. If one or more of the
------------------------------------------
Underwriters shall fail at the Closing Time, to purchase the Debt Securities
which it or they are obligated to purchase under the Terms Agreement (the
"Defaulted Securities"), then Xxxxxxx Xxxxx shall have the right, within 24
hours thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth; if, however, Xxxxxxx Xxxxx shall not have completed such
arrangements within such 24-hour period, then:
a. if the number or aggregate principal amount, as the case may be, of
Defaulted Securities does not exceed 10% of the aggregate principal amount, of
Debt Securities to be purchased on such date pursuant to the Terms Agreement,
the non-defaulting Underwriters shall be obligated, severally and not jointly,
to purchase the full amount thereof in the proportions that their respective
underwriting obligations under the Terms Agreement bear to the underwriting
obligations of all non-defaulting Underwriters, or
-27-
b. if the aggregate principal amount of Defaulted Securities exceeds 10%
of the aggregate principal amount of Debt Securities to be purchased on such
date pursuant to the Terms Agreement, the Terms Agreement shall terminate
without liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section 10 shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination of
the Terms Agreement, either Xxxxxxx Xxxxx or the Company shall have the right to
postpone the Closing Time, for a period not exceeding seven days in order to
effect any required changes in the Registration Statement or the Prospectus or
in any other documents or arrangements.
11. Notices. All notices and other communications hereunder shall be in
-------
writing and shall be deemed to have been duly given if mailed or transmitted by
any standard form of telecommunication. Notices to the Underwriters shall be
directed to Xxxxxxx Xxxxx at World Financial Center, Xxxxx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000-0000, attention of Xxxxxx X. Xxxxxxxx, III; and notices to the
Company shall be directed to it at 000 Xxxxxxx Xxxxxx, Xxx Xxxxxxx, XX 00000,
attention of Xxxxxx X. Xxxxxxxx.
12. Parties. This Underwriting Agreement and the Terms Agreement shall each
-------
inure to the benefit of and be binding upon the Company, Xxxxxxx Xxxxx and, upon
execution of the Terms Agreement, any other Underwriters and their respective
successors. Nothing expressed or mentioned in this Underwriting Agreement or
the Terms Agreement is intended or shall be construed to give any person, firm
or corporation, other than the Underwriters and the Company and their respective
successors and the controlling persons and officers and directors referred to in
Sections 6 and 7 and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this Underwriting
Agreement or the Terms Agreement or any provision herein or therein contained.
This Underwriting Agreement and the Terms Agreement and all conditions and
provisions hereof and thereof are intended to be for the sole and exclusive
benefit of the parties hereto and thereto and their respective successors, and
said controlling persons and officers and directors and their heirs and legal
representatives, and for the benefit of no other person, firm or corporation.
No purchaser of Debt Securities from any Underwriter shall be deemed to be a
successor by reason merely of such purchase.
-28-
13. GOVERNING LAW AND TIME. THIS UNDERWRITING AGREEMENT AND THE TERMS
----------------------
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK. EXCEPT AS OTHERWISE SET FORTH HEREIN, SPECIFIED TIMES OF DAY
REFER TO NEW YORK CITY TIME.
14. Effect of Headings. The Article and Section headings herein and the
------------------
Table of Contents are for convenience only and shall not affect the construction
hereof.
-29-
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company a counterpart hereof, whereupon this
Underwriting Agreement, along with all counterparts, will become a binding
agreement between Xxxxxxx Xxxxx and the Company in accordance with its terms.
Very truly yours,
XXXXXXX XXXXX
SERVICES, INC.
By: _____________________________
Name:
Title:
CB XXXXXXX XXXXX, INC.
By: _____________________________
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first
above written:
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By: _________________________________
Authorized Signatory
-30-
Exhibit A
TERMS AGREEMENT
---------------
May 20, 1998
To: CB Xxxxxxx Xxxxx Services, Inc.
000 Xxxxx Xxxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Ladies and Gentlemen:
We understand that CB Xxxxxxx Xxxxx Services, Inc., a Delaware corporation
(the "Company"), proposes to issue and sell $175,000,000 aggregate principal
amount of its senior subordinated debt securities (the "Debt Securities") (such
securities also being hereinafter referred to as the "Underwritten Securities").
Subject to the terms and conditions set forth or incorporated by reference
herein, the underwriters named below (the "Underwriters") offer to purchase,
severally and not jointly, the principal amount of Underwritten Securities set
forth opposite their names below at the purchase price set forth below.
Principal Amount
Underwriters of Underwritten Securities
------------ --------------------------
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated................ $103,425,000
BancAmerica Xxxxxxxxx Xxxxxxxx.......... 47,775,000
NationsBanc Xxxxxxxxxx Securities LLC... 23,800,000
------------
TOTAL $175,000,000
------------
A-1
Independent Underwriter
-----------------------
The Company hereby confirms its engagement of Xxxxxxx Lynch, Pierce, Xxxxxx
& Xxxxx Incorporated ("Xxxxxxx Xxxxx") as, and Xxxxxxx Xxxxx hereby confirms its
agreement with the Company to render services as, a "qualified independent
underwriter" within the meaning of Rule 2720 of the Conduct Rules of the
National Association of Securities Dealers, Inc. (the "NASD Conduct Rules") with
respect to the offering and sale of the Debt Securities. Xxxxxxx Xxxxx, solely
in its capacity as qualified independent underwriter and not otherwise, is
referred to herein as the "Independent Underwriter."
In addition to and without limitation of the obligations of the Company and
CB Xxxxxxx Xxxxx, Inc., a Delaware corporation and a wholly owned subsidiary of
the Company ("CB Xxxxxxx Xxxxx"), to indemnify Xxxxxxx Xxxxx as an Underwriter,
the Company and CB Xxxxxxx Xxxxx also agree to indemnify and hold harmless the
Independent Underwriter and each person, if any, who controls the Independent
Underwriter within the meaning of Section 15 of the Securities Act of 1933 (the
"1933 Act"), as amended or Section 20 of the Exchange Act of 1934 (the "1934
Act"), as amended, from and against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, incurred as a result of the Independent
Underwriter's participation as a "qualified independent underwriter" within the
meaning of Rule 2720 of the NASD Conduct Rules in connection with the offering
of the Underwritten Securities. If indemnity is sought pursuant to this
paragraph, the Company and CB Xxxxxxx Xxxxx shall be liable for the reasonable
fees and expenses of not more than one counsel (in addition to any local
counsel) separate from their own counsel and that of other parties entitled to
indemnification under the Underwriting Agreement, dated the date hereof, among
the Company, CB Xxxxxxx Xxxxx and Xxxxxxx Xxxxx, for the Independent Underwriter
in its capacity as a "qualified independent underwriter" and all persons, if
any, who control the Independent Underwriter within the meaning of Section 15 of
the 1933 Act or Section 20 of 1934 Act 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 if, in the reasonable judgment of
the Independent Underwriter, there may exist a conflict of interest between the
Independent Underwriter and the other indemnified parties. Any such separate
counsel for the Independent Underwriter and such control persons of the
Independent Underwriter shall be designated in writing by the Independent
Underwriter.
The Company, CB Xxxxxxx Xxxxx and the Underwriters agree that Xxxxxxx Xxxxx
will not receive any additional benefits hereunder for serving as the
Independ-
A-2
ent Underwriter in connection with the offering and sale of the Underwritten
Securities.
Restriction on Sale of Securities
---------------------------------
During a period of 180 days from the date hereof, the Company will not
cause or permit any of its Subsidiaries to, without the prior written consent of
Xxxxxxx Xxxxx, sell, offer to sell, grant any option for the sale of, or
otherwise dispose of, the Underwritten Securities or any other debt securities
of the Company or any of its Subsidiaries, or any securities convertible into or
exchangeable or exercisable for any of the Underwritten Securities or any such
other debt securities, except for Underwritten Securities sold to the
Underwriters pursuant to the terms hereof and except for certificates of deposit
and repurchase agreements and reverse repurchase agreements entered into in the
ordinary course of business.
Debt Securities
---------------
The Underwritten Securities shall have the following terms:
TITLE: 8 7/8% Senior Subordinated Notes due 2006
RANK: The Underwritten Securities are expressly subordinated in right of
payment to the prior payment in full of all Senior Indebtedness (as defined in
the Indenture) of the Company. The Underwritten Securities rank equal in right
of payment with all future senior subordinated indebtedness of the Company and
senior in right of payment to all future subordinated indebtedness of the
Company. The Underwritten Securities are also effectively subordinated to all
existing and future indebtedness and other liabilities of the Company's
subsidiaries.
RATINGS: At Closing Time, the Underwritten Securities shall be rated "Ba3" by
Moody's Investor's Service, Inc. and "B+" by Standard & Poor's Ratings Group.
AGGREGATE PRINCIPAL AMOUNT: $175,000,000
DENOMINATIONS: $1,000
CURRENCY OF PAYMENT: U.S. Dollars
INTEREST RATE OR FORMULA: 8.875%
A-3
INTEREST PAYMENT DATES: June 1 and December 1
REGULAR RECORD DATES: May 15 and November 15
STATED MATURITY DATE: June 1, 2006
REDEMPTION PROVISIONS: The Underwritten Securities are redeemable at the option
of the Company, in whole or in part, at any time on or after June 1, 2002, at
the redemption prices (expressed as percentages of principal amount) set forth
below, plus accrued and unpaid interest thereon, if any, to the date of
redemption, if redeemed during the 12-month period beginning on June 1 of the
years indicated below:
Year Redemption Price
---- ----------------
2002.................................. 104.438%
2003.................................. 102.958%
2004.................................. 101.479%
2005 and thereafter................... 100.000%
On or prior to June 1, 2001, the Company may redeem, at any time or from
time to time, up to 35% of the aggregate principal amount of the Underwritten
Securities originally issued at a redemption price equal to 108 7/8% of the
principal amount thereof, plus accrued and unpaid interest thereon, if any, to
the date of redemption, with the net cash proceeds of one or more Public Equity
Offerings (as defined in the Indenture), provided, however, that at least
$113.75 million in aggregate principal amount of Underwritten Securities remains
outstanding immediately after giving effect to each such redemption.
SINKING FUND REQUIREMENTS: None.
CONVERSION PROVISIONS: None.
LISTING REQUIREMENTS: None.
FIXED OR VARIABLE PRICE OFFERING: Fixed Price Offering
If Fixed Price Offering, initial public offering price per Note: 98.736%
of the principal amount, plus accrued interest, if any, from May 26, 1998.
A-4
PURCHASE PRICE PER NOTE: 98.736% of principal amount, plus accrued interest, if
any, from May 26, 1998.
FORM: Book Entry Only
OTHER TERMS AND CONDITIONS: As set forth in the Prospectus under the caption
"Description of the Notes."
CLOSING DATE AND LOCATION: May 26, 1998, New York, New York
All of the provisions contained in the document attached as Annex I hereto
entitled "Underwriting Agreement" are hereby incorporated by reference in their
entirety herein and shall be deemed to be a part of this Terms Agreement to the
same extent as if such provisions had been set forth in full herein. Terms
defined in such document are used herein as therein defined.
Please accept this offer no later than 4 o'clock P.M. (New York City time)
on May 20, 1998 by signing a copy of this Terms Agreement in the space set forth
below and returning the signed copy to us.
Very truly yours,
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By _______________________________________________
Authorized Signatory
Acting on behalf of itself and the other named Underwriters.
A-5
Accepted:
CB XXXXXXX XXXXX SERVICES, INC.
By _____________________
Name:
Title:
CB XXXXXXX XXXXX, INC.
By: _____________________________
Name:
Title:
A-6
EXHIBIT B
FORM OF OPINION OF COMPANY'S COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
i. The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Delaware.
ii. The Company has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under the Underwriting
Agreement and the Terms Agreement.
iii. The Company is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure so to qualify or
to be in good standing would not result in a Material Adverse Effect.
iv. Each of the Underwriting Agreement and the Terms Agreement has
been duly authorized, executed and delivered by the Company and CB Xxxxxxx
Xxxxx, as applicable.
v. The Debt Securities have been duly authorized by the Company for
issuance and sale pursuant to the Underwriting Agreement. The Debt Securities,
when issued and authenticated in the manner provided for in the Indenture and
delivered against payment of the consideration therefor specified in the
Underwriting Agreement and the Terms Agreement, will constitute valid and
legally binding obligations of the Company, enforceable against the Company in
accordance with their terms and the terms of the Indenture, except as the
enforcement thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting creditors' rights
generally or by general equitable principles. The Debt Securities are in the
form contemplated by, and each registered holder thereof is entitled to the
benefits of, the Indenture.
vi. The Indenture has been duly authorized, executed and delivered by
the Company.
B-1
vii. The Debt Securities being sold pursuant to the Underwriting
Agreement, Terms Agreement and the Indenture conform in all material respects to
the statements relating thereto contained in the Prospectus and are in
substantially the form filed or incorporated by reference, as the case may be,
as an exhibit to the Registration Statement.
viii. The Registration Statement, including any Rule 462(b)
Registration Statement, has been declared effective under the 1933 Act; any
required filing of the Prospectus pursuant to Rule 424(b) has been made in the
manner and within the time period required by Rule 424(b); and, to the best of
our knowledge, no stop order suspending the effectiveness of the Registration
Statement or any Rule 462(b) Registration Statement has been issued under the
1933 Act and, to the best of our knowledge, no proceedings for that purpose have
been instituted or are pending or threatened by the Commission.
ix. The Registration Statement, including any Rule 462(b)
Registration Statement, the Rule 430A Information and the Rule 434 Information,
as applicable, the Prospectus and each amendment or supplement to the
Registration Statement and Prospectus, excluding the documents incorporated by
reference therein, as of their respective effective or issue dates (other than
the financial statements and notes thereto, other financial information and
supporting schedules included therein or omitted therefrom and the Trustee's
Statement of Eligibility on Form T-1 (the "Form T-1"), as to which we need
express no opinion) complied as to form in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations; provided, however
that in passing upon the compliance as to form of the Registration Statement and
the Prospectus, we have assumed that the statements therein are correct and
complete.
x. The documents incorporated by reference in the Prospectus (other
than the financial statements and notes thereto and supporting schedules therein
or omitted therefrom, as to which we express no opinion), when they became
effective or were filed with the Commission, as the case may be, complied as to
form in all material respects with the requirements of the 1933 Act or the 1934
Act, as applicable, and the rules and regulations of the Commission thereunder.
xi. The Debt Securities, upon issuance, will be excluded or exempted
under, or beyond the purview of, the Commodity Exchange Act, as amended (the
"Commodity Exchange Act"), and the rules and regulations of the
B-2
Commodity Futures Trading Commission under the Commodity Exchange Act (the
"Commodity Exchange Act Regulations").
xii. If Rule 434 has been relied upon, the Prospectus was not
"materially different," as such term is used in Rule 434, from the prospectus
included in the Registration Statement at the time it became effective.
xiii. To the best of our knowledge, except as disclosed in the
Prospectus, there is not pending or threatened any action, suit, proceeding,
inquiry or investigation, to which the Company or any subsidiary is a party, or
to which the property of the Company or any subsidiary is subject, before or
brought by any court or governmental agency or body, domestic or foreign, which
might reasonably be expected to result in a Material Adverse Effect, or which
might reasonably be expected to materially and adversely affect the consummation
of the transactions contemplated by the Underwriting Agreement or the
performance by the Company of its obligations under the Underwriting Agreement.
xiv. The information in the Prospectus under "Description of the
Notes" and "Description of Certain Other Indebtedness" and in the Registration
Statement under Item 15, to the extent that it constitutes matters of law,
summaries of legal matters, summaries of the Company's charter and by-laws or
legal conclusions, has been reviewed by us and is correct in all material
respects.
xv. To the best of our knowledge, there are no California, New York
or federal statutes or regulations that are required to be described in the
Prospectus that are not described or incorporated therein as required.
xvi. All descriptions in the Registration Statement of material
contracts and other documents which are described individually to which the
Company or its Subsidiaries are a party are accurate in all material respects;
to the best of our knowledge, there are no franchises, contracts, indentures,
mortgages, loan agreements, notes, leases or other instruments required to be
described in the Registration Statement or to be filed as exhibits thereto other
than those described therein or filed or incorporated by reference as exhibits
thereto, and the descriptions thereof are correct in all material respects.
xvii. To the best of our knowledge, neither the Company nor any
Subsidiary is in violation of its charter or by-laws and no default by the
Company or any Subsidiary exists in the due performance or observance of any
material obligation, agreement, covenant or condition contained in any contract,
indenture, mort-
B-3
gage, loan agreement, note, lease or other agreement or instrument that is
individually described in the Registration Statement or the Prospectus or filed
or incorporated by reference and currently in effect as an exhibit to the
Registration Statement, except for such violations or defaults that would not
reasonably be expected to have a Material Adverse Effect.
xvii. To the best of our knowledge, no filing with, or authorization,
approval, consent, license, order, registration, qualification or decree of, any
court or governmental authority or agency, (other than under the 1933 Act and
the 1933 Act Regulations and the 1939 Act, which have been obtained, or as may
be required under the securities or blue sky laws of the various states, as to
which we need express no opinion) is necessary or required in connection with
the due authorization, execution and delivery of the Underwriting Agreement and
the Terms Agreement or for the offering, issuance or sale of the Debt
Securities.
xix. The execution, delivery and performance of the Underwriting
Agreement, the Terms Agreement and the Indenture and the consummation of the
transactions contemplated in the Underwriting Agreement, the Terms Agreement,
the Indenture and in the Registration Statement (including the issuance and sale
of the Debt Securities and the use of the proceeds from the sale of the Debt
Securities as described in the Prospectus under the caption "Use Of Proceeds")
and compliance by the Company with its obligations under the Underwriting
Agreement and the Terms Agreement do not and will not, whether with or without
the giving of notice or lapse of time or both, conflict with or constitute a
breach of, or default or Repayment Event under or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of the
Company or any Subsidiary pursuant to any material contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, lease or any other
agreement or instrument, known to us, to which the Company or any Subsidiary is
a party or by which it or any of them may be bound, or to which any of the
property or assets of the Company or any Subsidiary is subject (except for such
conflicts, breaches or defaults, Repayment Events or liens, charges or
encumbrances that would not have a Material Adverse Effect), except that (i)
borrowings under the Company's credit agreements are guaranteed by CB Xxxxxxx
Xxxxx, (ii) all the capital stock of CB Xxxxxxx Xxxxx is pledged to secure the
guarantee, and (iii) substantially all assets of the Company and its
subsidiaries are pledged to its lenders under the credit agreements as described
in the Prospectus; nor will any such action result in any violation of the
provisions of the charter or by-laws of the Company or any Subsidiary, or any
applicable law, statute, rule, regulation, judgment, order, writ or decree,
known to us, of any state or U.S. federal government, government instrumentality
or court (other than ordinances and regulations of
B-4
counties and political subdivisions thereof), having jurisdiction over the
Company or any Subsidiary or any of their respective properties, assets or
operations which, in our experience, is normally applicable to transactions of
the type contemplated by the Underwriting Agreement and the Terms Agreement
(except state securities laws as to which we need to express no opinion).
xx. To the best of our knowledge, except as described in the
Prospectus, there are no persons with rights to have any securities registered
pursuant to the Registration Statement or otherwise registered by the Company
under the 1933 Act.
xxi. The Company is not an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in the 1940
Act.
Nothing has come to our attention that would lead us to believe that the
Registration Statement or any amendment thereto, including the Rule 430A
Information and Rule 434 Information (if applicable), (except for financial
statements, including the notes thereto, and related schedules and other
financial and accounting data included therein or omitted therefrom, as to which
we need make no statement), at the time such Registration Statement or any such
amendment became effective, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading or that the Prospectus or any
amendment or supplement thereto (except for financial statements, including the
notes thereto, and related schedules and other financial and accounting data
included therein or omitted therefrom, as to which we need make no statement),
at the time the Prospectus was issued, at the time any such amended or
supplemented prospectus was issued or at the Closing Time, included or includes
an untrue statement of a material fact or omitted or omits to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
In rendering such opinion, such counsel may rely as to matters of fact (but
not as to legal conclusions), to the extent they deem proper, on certificates of
responsible officers of the Company and public officials. Such opinion shall
not state that it is to be governed or qualified by, or that it is otherwise
subject to, any treatise, written policy or other document relating to legal
opinions, including, without limitation, the Legal Opinion Accord of the ABA
Section of Business Law (1991).
B-5
EXHIBIT C
FORM OF OPINION OF COMPANY'S GENERAL COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
i. Each of CB Xxxxxxx Xxxxx, Inc., formerly known as CB Commercial
Real Estate Group, Inc. ("Real Estate Group"), X.X. Xxxxxx & Company, and
Westmark Realty Advisors L.L.C. ("Westmark"), and Xxxx Real Estate Services
(collectively, the "Subsidiaries") has been duly incorporated, or, in the case
of Westmark, duly formed, and is validly existing as a corporation, or, in the
case of Westmark, is validly existing as a limited liability company, in good
standing under the laws of the jurisdiction of its incorporation or, in the case
of Westmark, its jurisdiction of formation, has corporate power and authority to
own, lease and operate its properties and to conduct its business as described
in the Prospectus and is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure so to qualify or
to be in good standing would not result in a Material Adverse Effect; except as
otherwise disclosed in the Registration Statement, all of the issued and
outstanding equity securities of any Subsidiary has been duly authorized and
validly issued, is fully paid and non-assessable and, to the best of my
knowledge, is owned by the Company, directly or through subsidiaries, free and
clear of any security interest, mortgage, pledge, lien, encumbrance, claim or
equity; none of the outstanding equity securities of each Subsidiary was issued
in violation of the preemptive rights of any securityholder of each Subsidiary
arising by operation of law or the subsidiary's charter or bylaws, provided,
however, that all of the outstanding equity securities of the Subsidiaries
(except for Westmark) are pledged to secure outstanding indebtedness of the
Company under the credit agreements as described in the Prospectus.
Nothing has come to my attention that would lead me to believe that the
Registration Statement or any amendment thereto, including the Rule 430A
Information and Rule 434 Information (if applicable), (except for financial
statements, including the notes thereto, and related schedules and other
financial and accounting data included therein or omitted therefrom, as to which
I need make no statement), at the time such Registration Statement or any such
amendment became effective, contained an untrue statement of a material fact or
omitted to state a material fact
C-1
required to be stated therein or necessary to make the statements therein not
misleading or that the Prospectus or any amendment or supplement thereto (except
for financial statements, including the notes thereto, and related schedules and
other financial and accounting data included therein or omitted therefrom, as to
which I need make no statement), at the time the Prospectus was issued, at the
time any such amended or supplemented prospectus was issued or at the Closing
Time, included or includes an untrue statement of a material fact or omitted or
omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
In rendering such opinion, such counsel may rely as to matters of fact (but
not as to legal conclusions), to the extent they deem proper, on certificates of
responsible officers of the Company and public officials. Such opinion shall
not state that it is to be governed or qualified by, or that it is otherwise
subject to, any treatise, written policy or other document relating to legal
opinions, including, without limitation, the Legal Opinion Accord of the ABA
Section of Business Law (1991).
C-2
