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EXHIBIT 1
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SEMCO ENERGY, INC.
$30,000,000 principal amount of 8% Senior Notes due 2010
UNDERWRITING AGREEMENT
Dated: April 12, 2000
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TABLE OF CONTENTS
Page
SECTION 1. REPRESENTATIONS AND WARRANTIES................................................1
SECTION 2. SALE AND DELIVERY TO UNDERWRITER; CLOSING.....................................8
SECTION 3. COVENANTS AND AGREEMENTS......................................................9
SECTION 4. PAYMENT OF EXPENSES..........................................................11
SECTION 5. CONDITIONS OF UNDERWRITER'S OBLIGATIONS......................................12
SECTION 6. INDEMNIFICATION..............................................................13
SECTION 7. CONTRIBUTION.................................................................16
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY...............17
SECTION 9. TERMINATION OF AGREEMENT.....................................................17
SECTION 10. DEFAULT BY THE COMPANY.......................................................17
SECTION 11. NOTICES......................................................................18
SECTION 12. PARTIES......................................................................18
SECTION 13. GOVERNING LAW AND TIME.......................................................18
SECTION 14. EFFECT OF HEADINGS...........................................................18
SCHEDULES
Schedule A - Terms........................................................Sch A-1
Schedule B - List of Subsidiaries.........................................Sch B-1
EXHIBITS
Exhibit A - Form of Opinion of Company's Counsel................................A-1
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SEMCO ENERGY, INC.
(a Michigan corporation)
$30,000,000
8% Senior Notes Due 2010
UNDERWRITING AGREEMENT
April 12, 2000
Xxxxxx X. Xxxxx & Co., L.P.
00000 Xxxxxxxxxx Xxxx
Xx. Xxxxx, XX 00000-0000
Ladies and Gentlemen:
SEMCO Energy, Inc., a Michigan corporation (the "Company"), agrees with
Xxxxxx X. Xxxxx & Co., L.P. (the "Underwriter") to issue and sell to the
Underwriter pursuant to the terms and conditions stated herein $30,000,000
principal amount of 8% Senior Notes due 2010. The Senior Notes are hereinafter
referred to as the "Securities". The Securities will be issued under an
Indenture dated as of October 23, 1998, as supplemented from time to time,
between the Company and Bank One Trust Company, National Association, successor
to NBD Bank, as Trustee (the "Indenture"). Certain rights and terms of the
Securities are set forth in Schedule A hereto.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company. The Company
represents and warrants to the Underwriter as of the date hereof and as of the
Closing Time referred to in Section 2(b) hereof, and agrees with the
Underwriter, as follows:
(i) Compliance with Registration Requirements. The Company
meets the requirement for use of Form S-3 under the Securities Act of
1933, as amended (the "Act") and the rules and regulations promulgated
by the Securities and Exchange Commission (the "Commission") thereunder
(the "Act Regulations"). A registration statement on Form S-3, as
amended, with respect to the Securities and certain other securities
(File No. 333-91815), including a prospectus (any preliminary
prospectus included in such registration statement being hereinafter
referred to as a "Preliminary Prospectus"), copies of which have been
delivered to you, has been prepared and filed by the Company and the
Semco Capital Trusts I, II and III with the Commission and, as amended,
has been declared effective under the Act. No stop order suspending the
effectiveness of such registration statement, as amended, has been
issued and no
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proceeding for that purpose has been initiated or, to the best
knowledge of the Company, threatened by the Commission. Such
registration statement (including all documents filed as part thereof
or incorporated by reference therein, but excluding any Forms T-1, as
amended), as amended and supplemented at the time it became effective,
is hereinafter referred to as to the "Registration Statement." The
Prospectus contained in the Registration Statement at the time that the
Registration Statement was declared effective is hereinafter referred
to as the "Basic Prospectus."
The prospectus included in the Registration Statement, as
amended and supplemented to the date of this Agreement (including all
documents then incorporated by reference therein and including the
Preliminary Supplemented Prospectus (hereinafter defined) as further
supplemented by the Final Supplemented Prospectus (hereinafter
defined)), is hereinafter referred to as the "Prospectus". Any
reference herein to the Registration Statement, the Prospectus, a
Preliminary Prospectus, the Basic Prospectus, the Preliminary
Supplemented Prospectus or the Final Supplemented Prospectus shall be
deemed to refer to and include the documents incorporated by reference
therein, or deemed to be incorporated by reference therein, and filed
under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), on or before the date of such Registration Statement,
Prospectus, Preliminary Prospectus, Basic Prospectus, Preliminary
Supplemented Prospectus or Final Supplemented Prospectus. Any reference
herein to the terms "amend", "amendment" or "supplement" with respect
to the Registration Statement or the Prospectus shall be deemed to
refer to and include, without limitation, the filing of any document
under the Exchange Act deemed to be incorporated therein by reference
after the date of such Registration Statement or Prospectus.
A prospectus supplement, subject to completion, dated April 4,
2000 (the "Preliminary Supplemented Prospectus") has been prepared and
was filed pursuant to Rule 424(b) under the Act ("Rule 424(b)") on
April 4, 2000. A prospectus supplement, dated the date hereof, setting
forth the terms of the Securities and of their sale and distribution
(the "Final Supplemented Prospectus") has been prepared and will be
filed pursuant to Rule 424(b).
The Preliminary Supplemented Prospectus was, and the
Prospectus delivered to the Underwriter for use in connection with this
offering will be, identical to the electronically transmitted copies
thereof filed with the Commission pursuant to XXXXX, except to the
extent permitted by Regulation S-T.
(ii) Conformity to Requirements of the Act and TIA. On the
effective date of the Registration Statement, the Registration
Statement, as amended and supplemented at that time, conformed in all
material respects to the requirements of the Act and the Trust
Indenture Act of 1939, as amended (the "TIA"), and the applicable rules
and regulations of the Commission thereunder, and did not include any
untrue statement of a material fact or omit to state
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any material fact required to be stated therein or necessary to make
the statements therein not misleading; on the date of the Preliminary
Supplemented Prospectus, the Preliminary Supplemented Prospectus
conformed in all material respects to the requirements of the Act and
the applicable rules and regulations of the Commission thereunder, and
did not include any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to
make the statements therein not misleading; and on the date of this
Agreement, the Registration Statement and the Prospectus conform, and
at the Closing Time (hereinafter defined) they will conform, in all
material respects to the requirements of the Act and the TIA and the
applicable rules and regulations of the Commission thereunder, and on
the date of this Agreement do not, and at the Closing Time will not,
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading.
(iii) Incorporated Documents. Each document filed or to be
filed pursuant to the Exchange Act and incorporated by reference, or
deemed to be incorporated by reference, in the Prospectus (including
any document to be filed pursuant to the Exchange Act which will
constitute an amendment to the Prospectus) conformed or, when so filed,
will conform in all material respects to the requirements of the
Exchange Act and the applicable rules and regulations of the Commission
thereunder, and none of such documents included or, when so filed, will
include any untrue statement of a material fact or omitted or, when so
filed, will omit to state any material fact required to be stated
therein or necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
(iv) Independent Accountants. The accountants who certified
the financial statements and supporting schedules incorporated by
reference in the Registration Statement are independent public
accountants as required by the Act and the Act Regulations.
(v) Financial Statements. The financial statements
incorporated by reference in the Registration Statement and the
Prospectus, together with the related schedules and notes, present
fairly the financial position of (1) the Company and its consolidated
subsidiaries and (2) ENSTAR Natural Gas Company (a division of the
Company) and Alaska Pipeline Company (a subsidiary of the Company)
(collectively, "ENSTAR") at the dates indicated and the statements of
income, changes in shareholders' investment and cash flows of the
Company and its consolidated subsidiaries and the statements of income
and cash flows of ENSTAR for the periods specified; said financial
statements have been prepared in conformity with generally accepted
accounting principles ("GAAP") applied on a consistent basis throughout
the periods involved, other than as noted therein. The supporting
schedules, if any, incorporated by reference in the Registration
Statement present fairly in accordance with GAAP the information
required to be stated therein. The pro forma financial information, and
the related notes thereto, incorporated by reference in the
Registration Statement and the Prospectus, has been prepared in
accordance with the applicable published rules and regulations of the
Commission with respect to pro forma financial information, and the
assumptions used in preparing such information are reasonable. The
selected financial information and the financial data on (1) gas sales
revenue and gas transportation revenue, (2) operating revenues for the
construction services, engineering services, and propane, pipelines and
storage business segments and (3) consolidated ratios of earnings to
fixed charges 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 incorporated
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by reference in the Registration Statement and the Prospectus subject
to year end audit adjustments.
(vi) No Material Adverse Change in Business. Since the
respective dates as of which information is given in the Registration
Statement and 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 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 quarterly dividends on the
common stock in amounts per share that are consistent with past
practice, there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital
stock.
(vii) 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 Michigan 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 this Agreement and the Indenture; and the Company
is duly qualified as a foreign corporation to transact business and is
in good standing in Alaska and 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 so to qualify or to be in good standing would not result in a
Material Adverse Effect.
(viii) Good Standing of Subsidiaries. Each "significant
subsidiary" of the Company (as such term is defined in Rule 1-02 of
Regulation S-X) (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 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 capital stock
of each such Subsidiary has been duly authorized and validly issued, is
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 the preemptive or similar rights of any securityholder of
such Subsidiary. The only subsidiaries of the Company are (a) the
Subsidiaries listed on Schedule B hereto and (b) certain other
subsidiaries which considered in the aggregate as a single subsidiary,
do not constitute a "significant subsidiary" as defined in Rule 1-02 of
Regulation S-X.
(ix) Authorization of Agreement. This Agreement has been
duly authorized,
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executed and delivered by the Company.
(x) Absence of Defaults and Conflicts. Neither the Company
nor any of its subsidiaries is, or will, as the result of the
transaction contemplated hereby, be 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
subsidiary is subject (collectively, "Agreements and Instruments")
except for such defaults that would not result in a Material Adverse
Effect.
(xi) Absence of Labor Dispute. No labor dispute with the
employees of the Company or any subsidiary exists or, to the knowledge
of the Company, is imminent which may reasonably be expected to result
in a Material Adverse Effect.
(xii) 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 subsidiary, which is required to be disclosed in the
Registration Statement (other than as disclosed therein, if any), or
which might reasonably be expected to result in a Material Adverse
Effect, or which might reasonably be expected to materially and
adversely affect the properties or assets thereof or the consummation
of the transactions contemplated in this Agreement or the performance
by the Company of their respective obligations hereunder; the aggregate
of all pending legal or governmental proceedings to which the Company
or any subsidiary is a party or of which any of their respective
property or assets is the subject which are not described in the
Registration Statement, including ordinary routine litigation
incidental to the business, could not reasonably be expected to result
in a Material Adverse Effect.
(xiii) 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.
(xiv) Possession of Intellectual Property. The Company and
its subsidiaries own or possess, or can acquire on reasonable terms,
adequate patents, patent rights, licenses, inventions, copyrights,
know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or
procedures), trademarks, service marks, trade names or other
intellectual property (collectively, "Intellectual Property") necessary
to carry on the business now operated by them, 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
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Material Adverse Effect.
(xv) Possession of Licenses and Permits. The Company and
its subsidiaries possess 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 them except
where the failure to possess such a Governmental License would not,
singly or in the aggregate, have a Material Adverse Effect; 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, have a Material Adverse Effect;
all of the Governmental Licenses are valid and in full force and
effect, except when the invalidity of such Governmental Licenses or the
failure of such Governmental Licenses to be in full force and effect
would not have a Material Adverse Effect; and 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.
(xvi) Title to Property. The Company and its subsidiaries
have good and marketable title to all real property owned by the
Company and its subsidiaries and good title to all other properties
material to the business of the Company and its subsidiaries considered
as one enterprise, in each case, free and clear of all mortgages,
pledges, liens, security interests, claims, restrictions or
encumbrances of any kind except such as (a) are described in the
Prospectus or (b) 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; and 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 subsidiary has any notice of
any material claim of any sort that has been asserted by anyone adverse
to the rights of the Company or any subsidiary under any of the leases
or subleases mentioned above, or affecting or questioning the rights of
the Company or such subsidiary to the continued possession of the
leased or subleased premises under any such lease or sublease.
(xvii) Investment Company Act - Company. The Company is not,
and upon the issuance and sale of the Securities as herein contemplated
and the application of the net proceeds therefrom as described in the
Prospectus will not be, an "investment company" or an entity
"controlled" by an "investment company" as such terms are defined in
the Investment Company Act of 1940, as amended.
(xviii) Environmental Laws. Except as described in the
Registration Statement 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 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
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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"), (B) the Company and its subsidiaries have all
permits, authorizations and approvals required under any applicable
Environmental Laws and are each in compliance with their requirements,
(C) there are no pending or to 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) 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.
(xix) Authorization, etc., of the Indenture and the
Securities. The Indenture has been duly authorized, executed and
delivered by the Company and is a valid and legally binding agreement
of the Company, enforceable against the Company in accordance with its
terms, except as enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
the enforcement of creditors' rights generally or by general equitable
principles (regardless of whether enforcement is considered in a
proceeding in equity or at law); the Securities have been duly
authorized by the Company for offer, sale, issuance and delivery
pursuant to this Agreement and, when issued, authenticated and
delivered in the manner provided for in the Indenture and delivered
against payment of the consideration therefor, will constitute valid
and legally binding obligations of the Company, enforceable against the
Company in accordance with their terms, except as enforcement thereof
may be limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting the enforcement of creditors' rights
generally or by general equitable principles (regardless of whether
enforcement is considered in a proceeding in equity or at law); the
Securities will be substantially in a form contemplated by the
Indenture; and each holder of Securities will be entitled to the
benefits of the Indenture.
(xx) Company Consummation of Transactions. The issuance by
the Company of the Securities, the compliance by the Company with all
of the provisions of this Agreement, the Securities and the Indenture,
the execution, delivery and performance by the Company of this
Agreement, and the consummation of the transactions contemplated herein
and therein and in the Registration Statement (including the use of the
proceeds from the sale of the Securities as described in the Prospectus
under the caption "Use of Proceeds") do not and will not, whether with
or without the giving of notice or passage of time or both, conflict
with or result in a breach or violation of any of the terms or
provisions of, or constitute a default or Repayment Event (as defined
herein) under, or result in the creation of or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or any
subsidiary pursuant to, the Agreements and
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Instruments, nor will such action result in any violation of the
provisions of the Restated Articles of Incorporation or By-laws of the
Company or any subsidiary or any existing law or statute or any order,
rule, regulation, judgment, writ or decree of any court, government or
governmental agency or body having jurisdiction over the Company or any
Subsidiary or any of their assets, properties or operations; the
Commission has issued an order under the Act declaring the Registration
Statement effective and qualifying the Indenture under the TIA, and no
other filing with, or consent, approval, authorization, license, order,
registration, qualification or decree of or with any such court or
governmental authority, agency or body, domestic or foreign, is
necessary or required in connection with the due authorization,
execution and delivery of this Agreement by the Company or the
issuance, sale and delivery of the Securities or the consummation by
the Company of the other transactions contemplated by this Agreement or
the Securities, except such as have already been obtained under the Act
or the Act Regulations or may be required under state securities or
Blue Sky laws. As used herein, a "Repayment Event" means any event or
condition which gives the holder of any note, debenture or other
evidence of indebtedness (or any person acting on such holder's behalf)
the right to require the repurchase, redemption or repayment of all or
a portion of such indebtedness by the Company or any Subsidiary;
(b) Officer's Certificates. Any certificate signed by any officer of
the Company or any of its subsidiaries delivered to the Underwriter or to
counsel for the Underwriter shall be deemed a representation and warranty by the
Company, to the Underwriter as to the matters covered thereby.
SECTION 2. Sale and Delivery to Underwriter; Closing.
(a) Sale to Underwriter. The Company agrees to issue and sell to the
Underwriter $30,000,000 principal amount of the Securities, and on the basis of
the representations, warranties, covenants and agreements herein contained, but
subject to the terms and conditions herein set forth, the Underwriter agrees to
purchase the Securities from the Company, at a purchase price of 97.60% of the
principal amount thereof, plus accrued interest from April 17, 2000 to the
Closing Time.
(a) Payment. The Securities will be represented by one or more
definitive global Securities in book-entry form which will be deposited with The
Depository Trust Company ("DTC") or its designated custodian. The Company will
deliver the Securities, against payment by or on behalf of the Underwriter of
the purchase price therefor by wire transfer as set forth below, by causing DTC
to credit the Securities to the account of the Underwriter. The time and date of
such delivery and payment shall be 10:00 A.M., New York City time, on April 17,
2000, or such other time not later than ten business days after such date as
shall be agreed upon by the Underwriter and the Company (such time and date of
payment and delivery being herein called the "Closing Time").
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account located in the United States and designated in
writing at least forty-eight hours prior to the Closing Time by the Company to
the Underwriter.
The documents to be delivered at the Closing Time by or on behalf of
the parties hereto pursuant to Section 5 hereof, including the cross-receipt for
the Securities and any additional documents requested by the Underwriter
pursuant to Section 5(g) hereof, will be delivered at such time and date at the
offices of Xxxxx Xxxxxxxxxx LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx
00000, or at such other place as shall be agreed upon by the Underwriter and the
Company.
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(b) Denominations; Registration. Global certificates for the Securities
shall be in such denominations and registered in such names as the Underwriter
may request in writing at least one full business day before the Closing Time.
The certificates for the Securities will be made available for examination by
the Underwriter at the office of DTC or its designated custodian not later than
10:00 A.M. (Eastern time) on the business day prior to the Closing Time.
SECTION 3. Covenants and Agreements.
The Company covenants and agrees with the Underwriter as follows:
(a) Delivery of Prospectus. The Company will furnish without charge to
the Underwriter, the Preliminary Supplemented Prospectus and the Prospectus, any
documents incorporated by reference therein at or after the date thereof
(including documents from which information has been so incorporated) and any
supplements and amendments thereto the Underwriter may reasonably request so
long as the Underwriter is required to deliver a prospectus. The Prospectus and
any amendments or supplements thereto will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to XXXXX.
(b) Filing. The Company will cause the Final Supplemented Prospectus to
be filed pursuant to, and in compliance with, Rule 424(b) and will promptly
advise the Underwriter (i) when any amendment to the Registration Statement
shall have been filed; provided, that, with respect to documents filed pursuant
to the Exchange Act and incorporated by reference into the Registration
Statement, such notice shall only be required during such time as the
Underwriter is required in the reasonable opinion of Xxxxx Xxxxxxxxxx LLP,
counsel for the Underwriter, to deliver a prospectus, (ii) of any request by the
Commission for any amendment of the Registration Statement, (iii) of the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any proceeding for
that purpose, and (iv) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose. So long as any Underwriter is required in the reasonable opinion of
Xxxxx Xxxxxxxxxx LLP to deliver a prospectus, the Company will not file any
amendment to the Registration Statement or supplement to the Prospectus unless
the Company has furnished one copy of such amendment or supplement to the
Underwriter and to Xxxxx Xxxxxxxxxx LLP, and, if such amendment or supplement is
to be filed on or prior to the Closing Time, or under circumstances where the
Underwriter is required in the reasonable opinion of Xxxxx Xxxxxxxxxx LLP, to
deliver a Prospectus, the Underwriter or Xxxxx Xxxxxxxxxx LLP, shall not
reasonably have objected thereto. If the Commission shall issue a stop order
suspending the effectiveness of the Registration Statement, the Company will
take such steps to obtain the lifting of that order as in the best judgment of
the Company are not contrary to the interests of the Company.
(c) Continual Compliance with Securities Laws. That if, at any time
when in the reasonable opinion of Xxxxx Xxxxxxxxxx LLP the Prospectus is
required by law to be delivered by an Underwriter or a dealer, any event shall
occur as a result of which it is necessary, in the reasonable opinion of Xxxxx
Xxxxxxxxxx LLP or counsel for the Company, to amend or supplement the Prospectus
or modify the information incorporated by reference therein in order to make the
statements therein, in light of the circumstances existing when the Prospectus
is delivered to a purchaser, not misleading, or if it shall be necessary in the
reasonable opinion of any such counsel, to amend or supplement the Prospectus or
modify such information to comply with law, the Company will forthwith (i)
prepare and furnish, at its own expense, to the Underwriter and to the dealers
(whose names and addresses the Underwriter will furnish to the Company) to whom
Securities may have been sold by the Underwriter and to any other dealers upon
reasonable request, either amendments or supplements to the Prospectus or (ii)
file with the Commission documents incorporated by reference in the Prospectus,
which shall be so supplied to the Underwriter and such dealers, in either case
so that the statements in the Prospectus as so amended, supplemented or modified
will not, in light of the circumstances when the Prospectus is delivered to a
purchaser, be misleading or so that the Prospectus will comply with law.
(d) Delivery of Registration Statements. The Company will furnish or
will deliver to the Underwriter and counsel for the Underwriter, without charge,
conformed 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 photo copies of all consents and certificates of
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experts. The copies of the Registration Statement and each amendment thereto
furnished to the Underwriter will be identical to the electronically transmitted
copies thereof filed with the Commission pursuant to XXXXX, except to the extent
permitted by Regulation S-T.
(e) Blue Sky Qualifications. The Company will use its best efforts, in
cooperation with the Underwriter, to qualify the Securities for offering and
sale under the applicable securities laws of such states and other jurisdictions
as the Underwriter may designate and to maintain such qualifications in effect
for a period of not less than one year from the effective date of the
Registration Statement; 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 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 effective date of the Registration Statement.
(f) Rule 158. The Company will timely file such reports pursuant to the
Exchange 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 Act (including Rule 158 thereunder).
(g) Use of Proceeds. The Company will use the net proceeds received by
it from the sale of the Securities in the manner specified in the Prospectus
under "Use of Proceeds".
(h) Restriction on Sale of Securities. During a period of 45 days from
the date of the Prospectus, the Company will not, without the prior written
consent of the Underwriter, (i) directly or indirectly, offer, pledge, sell,
contract to sell, sell any option or contract to purchase, purchase any option
or contract to sell, grant any option, right or warrant to purchase or otherwise
transfer or dispose of any securities substantially similar to the Securities or
file any registration statement under the Act with respect to any of the
foregoing or (ii) enter into any swap or any other agreement or any transaction
that transfers, in whole or in part, directly or indirectly, the economic
consequence of ownership of the Securities, whether any such swap or transaction
described in clause (i) or (ii) above is to be settled by delivery of Securities
or such other securities, in cash or otherwise. The foregoing sentence shall not
apply to the Securities to be issued hereunder.
(i) Reporting Requirements. The Company, during the period when the
Prospectus is required to be delivered under the Act or the Exchange Act, will
file all documents required to be filed with the Commission pursuant to the
Exchange Act within the time periods required by the Exchange Act and the rules
and regulations of the Commission thereunder.
SECTION 4. Payment of Expenses.
(a) Expenses. The Company covenants and agrees with the Underwriter
that the Company will pay or cause to be paid all expenses incident to the
performance of its obligations under this Agreement, including, without
limitation, (i) the preparation, printing and filing of the Registration
Statement (including financial statements and exhibits) as originally filed and
of each amendment thereto, (ii) the printing and delivery to the Underwriter of
this Agreement, and such other documents as may be required in connection with
the offering, purchase, sale, issuance or delivery of the Securities, (iii) the
preparation, issuance and delivery of the certificates for the Securities to the
Underwriter, including any fees and expenses relating to the eligibility and
issuance of the Securities in book-entry form and the cost of obtaining CUSIP or
other identification numbers for the Securities, (iv) the fees and disbursements
of the Company's counsel, accountants and other advisors, (v) the qualification
of the Securities, under securities laws in accordance with the provisions of
Section 3(e) hereof, including filing fees and the reasonable fees and
disbursements of counsel for the Underwriter in connection therewith and in
connection with the preparation of the Blue Sky Survey and any supplement
thereto, (vi) the preparation, printing, mailing and delivery to the Underwriter
of copies of the Preliminary Supplemental Prospectus, and of the Prospectus and
any amendments or supplements thereto, (vii) the preparation, printing and
delivery to the Underwriter of copies of the Blue Sky Survey and any supplement
thereto, (viii) the fees and expenses of any transfer agent or registrar for the
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Securities, (ix) any fees charged by securities rating services for rating the
Securities and (x) the fees and expenses of the Trustee under the Indenture and
any agent of the Trustee and the fees and disbursements of counsel for the
Trustee.
(b) Termination of Agreement. If this Agreement is terminated by the
Underwriter in accordance with the provisions of Section 5, Section 9(a)(i) or
Section 10 hereof, the Company shall reimburse the Underwriter for all of its
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriter.
SECTION 5. Conditions of Underwriter's Obligations.
The obligations of the Underwriter hereunder are subject to the accuracy of the
representations and warranties of the Company contained in Section 1 hereof or
in certificates of officers of the Company 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 has become effective and at Closing Time no stop order
suspending the effectiveness of the Registration Statement shall have
been issued under the Act or proceedings therefor initiated 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 Underwriter. A prospectus
containing information relating to the description of the Securities,
the specific method of distribution and similar matters shall have been
filed with the Commission in accordance with Rule 424(b).
(b) Opinion of Counsel for Company. At Closing Time, the
Underwriter shall have received the favorable opinion, dated as of
Closing Time, of Xxxxxxxxx Xxxxxx PLLC, special counsel for the
Company, and Xxxxxx X. Xxxxxxx, General Counsel to the Company, in form
and substance satisfactory to counsel for the Underwriter, in
combination, substantially to the effect set forth in Exhibit A hereto
and to such further effect as counsel to the Underwriter may reasonably
request. Such counsel may 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. In giving such opinion such counsel
may rely, as to all matters governed by the law of the State of New
York, upon the opinion of Xxxxx Xxxxxxxxxx LLP, counsel for the
Underwriter.
(c) Opinion of Counsel for Underwriter. At Closing Time, the
Underwriter shall have received the favorable opinion, dated as of
Closing Time, of Xxxxx Xxxxxxxxxx LLP, counsel for the Underwriter,
with respect to such matters as it 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 and
the federal law of the United States, upon the opinions of counsel to
the Company. 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) No Adverse Occurrences and Officers' Certificates. At
Closing Time, there shall not have been, since the date hereof or since
the respective dates as of which information is given in the
Prospectus, any Material Adverse Effect, and the Underwriter shall have
received a certificate of the President or a Vice President of the
Company and of the chief financial or chief accounting officer of the
Company, dated as of the Closing Time, to the effect that (i) there has
been no such Material Adverse Effect, (ii) the representations and
warranties in Section 1(a) hereof are true and correct with the same
force and effect as though expressly made at and as of Closing Time,
(iii) the Company has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied at or prior to
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 instituted or are pending or, to such officer's
knowledge, are contemplated by the Commission.
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(e) Accountants' Comfort Letter. At the time of the execution of
this Agreement, the Underwriter shall have received from each of
Xxxxxx Xxxxxxxx LLP and KPMG LLP a letter dated such date, in form and
substance satisfactory to the Underwriter, containing statements and
information of the type ordinarily included in accountants' "comfort
letters" to underwriters with respect to the financial statements and,
in the case of Xxxxxx Xxxxxxxx LLP, certain financial information
contained or incorporated by reference in the Registration Statement
and the Prospectus.
(f) Bring-down Comfort Letter. At Closing Time, the Underwriter
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,
except that the specified date referred to shall be a date not more
than three business days prior to Closing Time.
(g) Additional Documents. At Closing Time counsel for the
Underwriter shall have been furnished with such documents and opinions
as they may require for the purpose of enabling them to pass upon the
issuance and sale of the 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 Securities as herein contemplated shall
be satisfactory in form and substance to the Underwriter and counsel
for the Underwriter.
(h) Termination of Agreement. If any condition specified in this
Section shall not have been fulfilled when and as required to be
fulfilled, this Agreement may be terminated by the Underwriter by
notice to the Company at any time at or prior to 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.
SECTION 6. Indemnification.
(a) Indemnification of Underwriter. The Company agrees to indemnify
and hold harmless the Underwriter and each person, if any, who controls the
Underwriter within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement
or alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto) or the omission or
alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading or
arising out of any untrue statement or alleged untrue statement of a
material fact included in any preliminary prospectus, the Basic
Prospectus, the Registration Statement, the Preliminary Supplemented
Prospectus, the Final Supplemented 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;
(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
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(iii) against any and all expense whatsoever, as incurred
(including the reasonable fees and disbursements of counsel chosen by
the Underwriter), reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or proceeding
by any governmental agency or body, commenced or threatened, or any
claim whatsoever based upon any such untrue statement or omission, or
any such alleged untrue 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 the
Underwriter expressly for use in the Registration Statement (or any amendment
thereto).
(b) Indemnification of Company, Directors and Officers. The
Underwriter severally agrees to indemnify and hold harmless the Company, each of
the Company's directors, each of the Company's officers who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act against
any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a) of this 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),
Preliminary Supplemented Prospectus, the Final Supplemented Prospectus or the
Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Company by the Underwriter
expressly for use in the Registration Statement (or any amendment thereto) or
such Preliminary Supplemented Prospectus, the Final Supplemented 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. An indemnifying party will be entitled to participate at
its own expense in the defense, or, if it so elects, to assume the defense of
any suit brought to enforce any liability required to be indemnified hereunder,
but, if such indemnifying party elects to assume the defense, such defense shall
be conducted by counsel chosen by the Guarantor in the case of parties
indemnified pursuant to Section 6(a) above and by the Underwriter in the case of
parties indemnified pursuant to Section 6(b) above. In the event that such
indemnifying party elects to assume the defense of any such suit and retain such
counsel, the indemnified party in the suit may retain additional counsel but
shall bear the fees and expenses of such counsel unless (i) such indemnifying
party shall have specifically authorized the retaining of such counsel or (ii)
the parties to such suit include the indemnified parties and the indemnified
parties have been advised by such counsel that one or more legal defenses may be
available to them which may not be available to such indemnifying party, in
which case such indemnifying party shall not be entitled to assume the defense
of such suit on behalf of the indemnified parties, notwithstanding its
obligation to bear the reasonable fees and expenses of such counsel, it being
understood, however, that such indemnifying party shall not, in connection with
any one such suit or proceeding or separate but substantially similar or related
actions or proceedings in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and expenses of
more than one separate firm of attorneys at any time for all of the indemnified
parties, which firm shall be designated in writing by the Underwriter in the
case of parties indemnified pursuant to Section 6(a) above and by the Guarantor
in the case of parties indemnified pursuant to Section 6(b) above. Except as
specified in Section 6(d) below, such indemnifying party shall not be liable to
indemnify any person for any settlement of any such claim effected without such
indemnifying party's consent. 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
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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 for which indemnity is
available hereunder, such indemnifying party agrees that it shall be liable for
any settlement of the nature contemplated by Section 6(a) 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.
SECTION 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 on the one hand and the
Underwriter on the other hand from the offering of the Securities pursuant to
this Agreement or (ii) if the allocation provided by clause (i) is not permitted
by applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company on the one hand and of the Underwriter on the other hand in
connection with the statements or omissions which resulted in such losses,
liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
The relative benefits received by the Company on the one hand and the
Underwriter on the other hand in connection with the offering of the Securities
pursuant to this Agreement shall be deemed to be in the same respective
proportions as the total net proceeds from the offering of the Securities
pursuant to this Agreement received by the Company and the total underwriting
commission received by the Underwriter, in each case as set forth on the cover
of the Prospectus, bear to each other.
The relative fault of the Company on the one hand and the Underwriter
on the other hand shall be determined by reference to, among other things,
whether any such untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriter and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company and the Underwriter agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation 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
party in
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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, the Underwriter
shall not be required to contribute any amount in excess of the amount by which
the total price at which the Securities underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages which
the Underwriter has otherwise been required to pay by reason of any such untrue
or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls the
Underwriter within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act shall have the same rights to contribution as the 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 Act or Section 20 of the Exchange Act shall
have the same rights to contribution as the Company.
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery.
All representations, warranties and agreements contained in this
Agreement of officers of the Company or any of its subsidiaries submitted
pursuant hereto, shall remain operative and in full force and effect, regardless
of any investigation made by or on behalf of the Underwriter or controlling
person, or by or on behalf of the Company and shall survive delivery of the
Securities to the Underwriter.
SECTION 9. Termination of Agreement.
(a) Termination; General. The Underwriter may terminate this
Agreement, by notice to the Company, at any time at or prior to Closing Time (i)
if there has been, since the time of execution of this Agreement or since the
respective dates as of which information is given in the Prospectus, any
Material Adverse Effect, or (ii) if there has occurred any material adverse
change in the financial markets in the United States, any outbreak of
hostilities or escalation thereof or other calamity or crisis or any change or
development involving a prospective change in national or international
political, financial or economic conditions, in each case the effect of which is
such as to make it, in the judgment of the Underwriter, impracticable to market
the Securities or to enforce contracts for the sale of the Securities, or (iii)
if 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 American Stock Exchange or the New York Stock Exchange or in
the Nasdaq National Market has been suspended or materially limited, or minimum
or maximum prices for trading have been fixed, or maximum ranges for prices have
been required, by any of said exchanges or by such system or by order of the
Commission, the National Association of Securities Dealers, Inc. or any other
governmental authority, or (iv) if a banking moratorium has been declared by
either Federal or New York authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any other
party, and provided that Sections 1, 4, 6, 7 and 8 shall survive such
termination and remain in full force and effect.
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SECTION 10. Default by the Company.
If the Company shall fail at Closing Time to sell the number of
Securities that it is obligated to sell hereunder, then this Agreement shall
terminate without any liability on the part of any non-defaulting party;
provided, however, that the provisions of Sections 1, 4, 6, 7 and 8 shall remain
in full force and effect. No action taken pursuant to this Section shall relieve
the Company from liability, if any, in respect of such default.
SECTION 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 Underwriter shall be directed to
Xxxxxx X. Xxxxx & Co., L.P., 00000 Xxxxxxxxxx Xxxx, Xx. Xxxxx, Xxxxxxxx
00000-0000, attention of Xxx Xxxxxxxx; notices to the Company shall be directed
to it at 000 Xxxxx Xxxxxx, Xxxx Xxxxx, Xxxxxxxx 00000, attention of Xxxxxxxxx
Xxxxxxx.
SECTION 12. Parties.
This Agreement shall each inure to the benefit of and be binding upon
the Underwriter and the Company and their respective successors. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any person, firm or corporation, other than the Underwriter 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 Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the Underwriter and the Company 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 Securities from the Underwriter shall be deemed to
be a successor by reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK. SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY
TIME.
SECTION 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.
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
among the Underwriter and the Company in accordance with its terms.
Very truly yours,
SEMCO ENERGY, INC.
By:
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXX X. XXXXX & CO., L.P.
By:
Authorized Signatory
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SCHEDULE A
Title of Securities: 8% Senior Notes due 2010]
Maturity: April 30, 2010
Interest Rate: 8% per annum
Interest Payment Dates: Semi-annually on each April 30 and
October 31
Price to Public: 100% of principal amount, plus accrued
interest from April 17, 2000.
Company's Redemption Provision: Redeemable, in whole or in part, on or
after April 30, 2003 at a redemption
price of 101% of the principal amount
thereof prior to April 30, 2004, and
100% of the principal amount thereof
thereafter, plus accrued and unpaid
interest to the date of redemption;
Note Holders' Redemption Provision: Subject to limited right of redemption
upon the death of the holder, as
described in the Prospectus.
Sinking Funding Provisions: None
Sch A-1
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SCHEDULE B
List of subsidiaries of SEMCO Energy, Inc.
SEMCO Energy Ventures, Inc.
Alaska Pipeline Company
Sch B-21
22
Exhibit A
FORMS 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 Michigan;
(ii) The Company has corporate power 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, the
Indenture and the Securities;
(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 Subsidiary has been duly incorporated 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 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 capital stock of each
Subsidiary has been duly authorized and validly issued, is fully paid and
non-assessable and, to the best of our 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
shares of capital stock of any Subsidiary was issued in violation of the
preemptive or similar rights of any securityholder of such Subsidiary;
(v) The Underwriting Agreement has been duly authorized, executed and
delivered by the Company;
(vi) The Registration Statement has been declared effective under the
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 has been issued under the Act and no proceedings for that
purpose have been instituted or are pending or threatened by the Commission;
(vii) The Registration Statement, the Prospectus, excluding the
documents incorporated by reference therein, 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 supporting schedules included therein or
omitted therefrom, as to which we express no opinion) complied as to form in all
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material respects with the requirements of the Act and the Act Regulations;
(viii) The documents incorporated by reference in the Prospectus (other
than the financial statements and supporting schedules included therein or
omitted therefrom, as to which we express no opinion), when they were filed with
the Commission complied as to form in all material respects with the
requirements of the Exchange Act and the rules and regulations of the Commission
thereunder;
(ix) To the best of our knowledge, 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 properties or assets thereof or the consummation of the
transactions contemplated in the Underwriting Agreement or the performance by
the Company of its obligations thereunder;
(x) The information in the Final Supplemented Prospectus under the
caption "Description of the Senior Notes" and in the attached Basic Prospectus
under the caption "Description of Debt Securities" accurately summarizes in all
material respects the terms of the Securities and the Indenture;
(i) The Securities conform as to legal matters in all material
respects to the descriptions thereof contained in the Final Supplemented
Prospectus under the caption "Description of the Senior Notes" and in the
attached Basic Prospectus under the caption "Description of Debt Securities";
(xi) All descriptions in the Registration Statement of contracts and
other documents 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 or referred to in the Registration
Statement or to be filed as exhibits thereto other than those described or
referred to therein or filed or incorporated by reference as exhibits thereto,
and the descriptions thereof or references thereto are correct in all material
respects;
(xii) The description of statutes and regulations set forth in Part I
of the Company's Annual Report on Form 10-K for the fiscal year ended December
31, 1999 under the captions "Business--Gas Distribution--Rates and Regulation"
and "--Environmental Matters" fairly describe in all material respects the
portions of the statutes and regulations addressed thereby;
(xiii) 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, mortgage, loan agreement, note, lease or other agreement or
instrument that is described or referred to in the Registration Statement or the
Prospectus or filed or incorporated by reference as an exhibit to the
Registration Statement;
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(xiv) No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any court or governmental
authority or agency, domestic or foreign (other than under the Act and the Act
Regulations, 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 (1) the due
authorization, execution and delivery of the Underwriting Agreement, (2) the
offering, issuance, sale and delivery of the Securities by the Company or (3)
the consummation by the Company of the transactions contemplated in the
Underwriting Agreement;
(i) The issuance and sale by the Company of the Securities, the
compliance by the Company with all of the provisions of the Underwriting
Agreement, the Securities and the Indenture, the execution, delivery and
performance by the Company of the Underwriting Agreement and the Indenture, and
the consummation of the transactions contemplated therein and in the
Registration Statement (including the use of the proceeds from the sale of the
Securities as described in the Prospectus under the caption "Use of Proceeds")
do not and will not, whether with or without the giving of notice or passage of
time or both, conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default or Repayment Event under, or
result in the creation of or imposition of any lien, charge or encumbrance upon
any property or assets of the Company or any subsidiary pursuant to, the
Agreements and Instruments, nor will such action result in any violation of the
provisions of the Restated Articles of Incorporation or By-laws of the Company
or any subsidiary or any existing law or statute or any order, rule, regulation,
judgment, writ or decree of any court, government or governmental agency or body
having jurisdiction over the Company or any Subsidiary or any of their assets,
properties or operations;
(i) The Company is not, and upon the issuance and sale of the
Securities as contemplated in the Underwriting Agreement and the application of
the net proceeds therefrom as described in the Prospectus will not be, an
"investment company" or an entity "controlled" by an "investment company," as
such terms are defined in the Investment Company Act of 1940, as amended;
(xv) The Securities are in the form prescribed in or pursuant to the
Indenture, have been duly and validly authorized for issuance and sale by all
necessary corporate action on the part of the Company and, when executed and
delivered by the Company and authenticated by the Trustee under the Indenture as
specified in or pursuant to the Indenture, will be valid and binding obligations
of the Company, enforceable in accordance with their terms, except as such
enforceability is subject to the effect of any applicable bankruptcy,
insolvency, reorganization or other law relating to or affecting creditors'
rights generally and to general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law);
(xvi) The Indenture has been duly authorized, executed and delivered by
the Company and constitutes the valid and binding obligation of the Company,
enforceable in accordance with its terms, except as such enforceability is
subject to the effect of any applicable bankruptcy, insolvency, reorganization
or other law relating to or affecting creditors' rights generally and to general
principles of equity (regardless of whether such enforceability is considered in
proceeding in equity or at law); and
(xvii) The Indenture has been duly qualified under the TIA.
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Nothing has come to our attention that would lead us to believe that
the Registration Statement or any amendment thereto, (except for financial
statements and schedules and other financial data included or incorporated by
reference therein or omitted therefrom, as to which we need make no comment), 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 (except for financial statements and
schedules and other financial data included or incorporated by reference therein
or omitted therefrom, as to which we need make no comment), at the time the
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).
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