UNDERWRITING AGREEMENT
August 7, 1997
Burlington Industries, Inc.
0000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Dear Sirs:
We (the "Manager") are acting on behalf of the underwriters (including
ourselves) named below (such underwriters being herein called the
"Underwriters"), and we understand that Burlington Industries, Inc., a Delaware
corporation (the "Company"), proposes to issue and sell $150,000,000 aggregate
principal amount of 7.25% Debentures Due 2027 (the "Offered Securities").
Subject to the terms and conditions set forth or incorporated by reference
herein, the Company hereby agrees to sell to the several Underwriters, and each
Underwriter agrees, severally and not jointly, to purchase from the Company the
respective principal amounts of Offered Securities set forth below opposite
their names at a purchase price of 98.752% of the principal amount thereof, plus
accrued interest, if any, from August 1, 1997, to the date of payment and
delivery (the "Purchase Price"):
Number of
Name Offered Securities
---- ------------------
Xxxxxx Xxxxxxx & Co. Incorporated........................... $50,000,000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated.......... $50,000,000
Salomon Brothers Inc........................................ $50,000,000
Total..................... $150,000,000
============
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The Underwriters will pay for the Offered Securities upon delivery thereof
at the offices of Xxxxx, Xxxx & Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx at 10:00 a.m. (New York time) on August 12, 1997. The time and date of such
payment and delivery are hereinafter referred to as the Closing Date.
The Offered Securities shall have the terms set forth in the Company's
Prospectus Supplement dated August 7, 1997 relating to the Offered Securities
and the Prospectus dated September 8, 1995, including the following:
Terms of Offered Securities
Maturity Date: August 1, 2027
Interest Rate: 7.25%
Redemption Provisions: The Debentures will be redeemable as
a whole or in part, at the option of the
Company at any time on or after
August 2, 2007 (a "Company
Redemption Date"), at a redemption
price equal to the greater of (i) 100%
of the principal amount of such
Debentures to be redeemed and (ii)
the sum of the present values of the
remaining scheduled payments of
principal and interest thereon
discounted to the Company
Redemption Date on a semiannual
basis (assuming a 360-day year
consisting of twelve 30-day months)
at the Treasury Rate plus 15 basis
points, plus, in either case, accrued
and unpaid interest thereon to the date
of redemption.
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The Debentures will be
redeemable on August 1, 2007
(the "Redemption Date"), at
the option of the holders
thereof at 100% of their
principal amount, together
with interest payable on the
Redemption Date. Less than the
entire principal amount of any
Debenture may be redeemed on
the Redemption Date, provided
the principal amount which is
to be redeemed is equal to
$1,000 or an integral multiple
of $1,000.
Interest Payment Dates: February 1 and August 1,
commencing February 1, 1998
Form and Denomination: The Offered Securities will be issued
in the form of global securities in an
aggregate principal amount of
$150,000,000.
Ranking: The Offered Securities will be senior
indebtedness of the Company issued
under the Indenture dated as of
September 1, 1995 between the
Company and The Bank of New York,
as successor to Wachovia Bank of
North Carolina, N.A., as trustee.
Capitalized terms used above and not defined herein shall have the meanings
set forth in the Prospectus and Prospectus Supplement referred to above.
Except as set forth below, all provisions contained in the document
entitled Burlington Industries, Inc. Underwriting Agreement Standard Provisions
(Debt Securities) dated August 7, 1997, a copy of which is attached hereto, are
herein incorporated by reference in their entirety and shall be deemed to be a
part of this Agreement to the same extent as if such provision had been set
forth in full herein, except that if any term defined in such document is
otherwise defined herein, the definition set forth herein shall control.
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Please confirm your agreement by having an authorized officer sign a copy
of this Agreement in the space set forth below.
Very truly yours,
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Salomon Brothers Inc
By: Xxxxxx Xxxxxxx & Co. Incorporated, acting
severally on behalf of itself and the several
Underwriters named herein
By: /s/ Xxxxxxx Xxxxx
------------------------------
Name: Xxxxxxx Xxxxx
Title: Vice President
Accepted:
BURLINGTON INDUSTRIES, INC.
By: /s/ Xxxxxxx X. Xxxxxx, Xx.
----------------------------------
Name: Xxxxxxx X. Xxxxxx, Xx.
Title:Senior Vice President and
Chief Financial Officer
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BURLINGTON INDUSTRIES, INC.
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
(DEBT SECURITIES)
August 7, 1997
From time to time, Burlington Industries, Inc., a Delaware corporation (the
"Company"), may enter into one or more underwriting agreements that provide for
the sale of designated securities to the several underwriters named therein. The
standard provisions set forth herein may be incorporated by reference in any
such underwriting agreement (an "Underwriting Agreement"). The Underwriting
Agreement, including the provisions incorporated therein by reference, is herein
sometimes referred to as this "Agreement". Terms defined in the Underwriting
Agreement are used herein as therein defined.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement, including a prospectus, relating to the
Debt Securities and has filed with, or transmitted for filing to, or shall
promptly hereafter file with or transmit for filing to, the Commission a
prospectus supplement (the "Prospectus Supplement") specifically relating to the
Offered Securities pursuant to Rule 424 under the Securities Act of 1933, as
amended (the "Securities Act"). The term "Registration Statement" means the
registration statement, including the exhibits thereto, as amended to the date
of this Agreement. The term "Basic Prospectus" means the prospectus included in
the Registration Statement. The term "Prospectus" means the Basic Prospectus
together with the Prospectus Supplement. The term "preliminary prospectus" means
a preliminary prospectus supplement specifically relating to the Offered
Securities, together with the Basic Prospectus. As used herein, the terms "Basic
Prospectus," "Prospectus" and "preliminary prospectus" shall include in each
case the documents, if any, incorporated by reference therein. The terms
"supplement", "amendment" and "amend" as used herein shall include all documents
deemed to be incorporated by reference in the Prospectus that are filed
subsequent to the date of the Basic Prospectus by the Company with the
Commission pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act").
The term "Contract Securities" means the Offered Securities, if any, to be
purchased pursuant to the delayed delivery contracts substantially in the form
of Schedule I hereto, with such changes therein as the Company may approve (the
"Delayed Delivery Contracts"). The term "Underwriters' Securities" means the
Offered Securities other than Contract Securities.
1. Representations and Warranties. The Company represents and warrants to
and agrees with each of the Underwriters that:
(a) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect,
and no proceedings for such purpose are pending before or threatened by the
Commission.
(b) (i) Each document, if any, filed or to be filed pursuant to the
Exchange Act and incorporated by reference in the Prospectus complied or
will comply when so filed in all material respects with the Exchange Act
and the applicable rules and regulations of the Commission thereunder, (ii)
each part of the Registration Statement, when such part became effective,
did not contain, and each such part, as amended or supplemented, if
applicable, will not contain any 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, (iii) the Registration
Statement and the Prospectus comply, and, as amended or supplemented, if
applicable, will comply in all material respects with the Securities Act
and the applicable rules and regulations of the Commission thereunder and
(iv) the Prospectus does not contain and, as amended or supplemented, if
applicable, will not contain any 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,
except that the representations and warranties set forth in this paragraph
do not apply (A) to statements or omissions in the Registration Statement
or the Prospectus based upon information relating to any Underwriter
furnished to the Company in writing by such Underwriter through the Manager
expressly for use therein or (B) to that part of the Registration Statement
that constitutes the Statement of Eligibility (Form T-1) under the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"), of the
Trustee.
(c) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the State of Delaware, has
the corporate power and authority to own its property and to conduct its
business as described in the Prospectus and is duly qualified to transact
business and is in good standing in each jurisdiction in which the conduct
of its business or its ownership or leasing of property requires such
2
qualification, except to the extent that the failure to be so qualified or
be in good standing would not have a material adverse effect on the Company
and its subsidiaries, taken as a whole.
(d) Each of Burlington Fabrics Inc., a Delaware corporation
("Fabrics") and B.I. Funding, Inc., a Delaware corporation ("Funding", and
together with Fabrics, collectively, the "Material Subsidiaries") has been
duly incorporated, is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, has the corporate
power and authority to own its property and to conduct its business as
described in the Prospectus and is duly qualified to transact business and
is in good standing in each jurisdiction in which the conduct of its
business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or
be in good standing would not have a material adverse effect on the Company
and its subsidiaries, taken as a whole.
(e) This Agreement has been duly authorized, executed and delivered by
the Company.
(f) The Indenture dated as of September 1, 1995 between the Company
and The Bank of New York, as successor to Wachovia Bank of North Carolina,
N.A., as trustee (the "Indenture") has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed and delivered by the
Company and is a valid and binding agreement of the Company, enforceable in
accordance with its terms except as (i) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting creditors'
rights generally and (ii) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of general
applicability.
(g) The Delayed Delivery Contracts, if any, have been duly authorized,
executed and delivered by the Company and are valid and binding agreements
of the Company, enforceable in accordance with their respective terms
except as (i) the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights generally and (ii)
the availability of equitable remedies may be limited by equitable
principles of general applicability.
(h) The Offered Securities have been duly authorized and, when
executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Underwriters in accordance
with the terms of the Underwriting Agreement, in the case of the
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Underwriters' Securities, or by institutional investors in accordance with
the terms of the Delayed Delivery Contracts, in the case of the Contract
Securities, will be entitled to the benefits of the Indenture, and will be
valid and binding obligations of the Company, enforceable in accordance
with their respective terms except as (A) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting creditors'
rights generally and (B) rights of acceleration, if any, and the
availability of equitable remedies may be limited by equitable principles
of general applicability.
(i) The execution and delivery by the Company of, and the performance
by the Company of its obligations under, this Agreement, the Indenture, the
Offered Securities and the Delayed Delivery Contracts will not contravene
any provision of applicable law or the certificate of incorporation or
by-laws of the Company or any agreement or other instrument binding upon
the Company or any of its subsidiaries that is material to the Company and
its subsidiaries, taken as a whole, or any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Company or
any subsidiary, and no consent, approval, authorization or order of, or
qualification with, any governmental body or agency is required for the
performance by the Company of its obligations under this Agreement, the
Indenture, the Offered Securities or the Delayed Delivery Contracts, except
such as may be required by the securities or Blue Sky laws of the various
states in connection with the offer and sale of the Offered Securities.
(j) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, from that
set forth in the Prospectus (exclusive of any amendments or supplements
thereto subsequent to the date of this Agreement).
(k) There are no legal or governmental proceedings pending or, to the
knowledge of the Company, threatened to which the Company or any of its
subsidiaries is a party or to which any of the properties of the Company or
any of its subsidiaries is subject that are required to be described in the
Registration Statement or the Prospectus and are not so described or any
statutes, regulations, contracts or other documents that are required to be
described in the Registration Statement or the Prospectus or to be filed or
incorporated by reference as exhibits to the Registration Statement that
are not described, filed or incorporated as required.
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(l) Each of the Company and its subsidiaries has all necessary
consents, authorizations, approvals, orders, certificates and permits of
and from, and has made all declarations and filings with, all federal,
state, local and other governmental authorities, all self-regulatory
organizations and all courts and other tribunals, to own, lease, license
and use its properties and assets and to conduct its business in the manner
described in the Prospectus, except to the extent that the failure to
obtain or file would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole.
(m) The Company has complied with all provisions of Section 517.075,
Florida Statutes relating to doing business with the Government of Cuba or
with any person or affiliate located in Cuba.
2. Delayed Delivery Contracts. If the Prospectus provides for sales of
Offered Securities pursuant to Delayed Delivery Contracts, the Company hereby
authorizes the Underwriters to solicit offers to purchase Contract Securities on
the terms and subject to the conditions set forth in the Prospectus pursuant to
Delayed Delivery Contracts. Delayed Delivery Contracts may be entered into only
with institutional investors approved by the Company of the types set forth in
the Prospectus. On the Closing Date, the Company will pay to the Manager as
compensation for the accounts of the Underwriters the commission set forth in
the Underwriting Agreement in respect of the Contract Securities. The
Underwriters will not have any responsibility in respect of the validity or the
performance of any Delayed Delivery Contracts.
If the Company executes and delivers Delayed Delivery Contracts with
institutional investors, the aggregate amount of Offered Securities to be
purchased by the several Underwriters shall be reduced by the aggregate amount
of Contract Securities; such reduction shall be applied to the commitment of
each Underwriter pro rata in proportion to the amount of Offered Securities set
forth opposite such Underwriter's name in the Underwriting Agreement, except to
the extent that the Manager determines that such reduction shall be applied in
other proportions and so advises the Company; provided, however, that the total
amount of Offered Securities to be purchased by all Underwriters shall be the
aggregate amount set forth above, less the aggregate amount of Contract
Securities.
3. Terms of Public Offering. The Company is advised by the Manager that the
Underwriters propose to make a public offering of their respective portions of
the Underwriters' Securities as soon after this Agreement has been entered into
as in the Manager's judgment is advisable. The terms of the public offering of
the Underwriters' Securities are set forth in the Prospectus.
5
4. Payment and Delivery. Payment for the Underwriters' Securities shall be
made in Federal or other funds immediately available in New York City at the
time and place set forth in the Underwriting Agreement, upon delivery to the
Manager for the respective accounts of the several Underwriters of the
Underwriters' Securities registered in such names and in such denominations as
the Manager shall request in writing not less than two full business days prior
to the date of delivery, with any transfer taxes payable in connection with the
transfer of the Underwriters' Securities to the Underwriters duly paid.
Delivery on the Closing Date of any Underwriters' Securities that are Debt
Securities in bearer form shall be effected by delivery of a single temporary
global Debt Security without coupons (the "Global Debt Security") evidencing the
Offered Securities that are Debt Securities in bearer form to a common
depositary for Xxxxxx Guaranty Trust Company of New York, Brussels office, as
operator of the Euro-clear System ("Euro-clear"), and for Centrale de Livraison
de Valeurs Mobilieres S.A. ("Cedel") for credit to the respective accounts at
Euro-clear or Cedel of each Underwriter or to such other accounts as such
Underwriter may direct. Any Global Debt Security shall be delivered to the
Manager not later than the Closing Date, against payment of funds to the Company
in the net amount due to the Company for such Global Debt Security by the method
and in the form set forth in the Underwriting Agreement. The Company shall cause
definitive Debt Securities in bearer form to be prepared and delivered in
exchange for such Global Debt Security in such manner and at such time as may be
provided in or pursuant to the Indenture; provided, however, that the Global
Debt Security shall be exchangeable for definitive Debt Securities in bearer
form only on or after the date specified for such purpose in the Prospectus.
5. Conditions to the Underwriters' Obligations. The several obligations of
the Underwriters are subject to the following conditions:
(a) Subsequent to the execution and delivery of the Underwriting
Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any
notice have been given of any intended or potential downgrading or of
any review for a possible change that does not indicate the direction
of the possible change, in the rating accorded any of the Company's
securities by any "nationally recognized statistical rating
organization," as such term is defined for purposes of Rule 436(g)(2)
under the Securities Act; and
6
(ii) there shall not have occurred any change, or any development
involving a prospective change, in the condition, financial or
otherwise, or in the earnings, business or operations of the Company
and its subsidiaries, taken as a whole, from that set forth in the
Prospectus (exclusive of any amendments or supplements thereto
subsequent to the date of this Agreement) that, in the judgment of the
Manager, is material and adverse and that makes it, in the judgment of
the Manager, impracticable to market the Offered Securities on the
terms and in the manner contemplated in the Prospectus.
(b) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer of
the Company, to the effect set forth in Section 5(a)(i) and to the effect
that the representations and warranties of the Company contained in this
Agreement are true and correct in all material respects as of the Closing
Date and that the Company has complied with all of the agreements and
satisfied all of the conditions on its part to be performed or satisfied
hereunder on or before the Closing Date.
The officer signing and delivering such certificate may rely upon the
best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an
opinion of Xxxx X. Xxxxxx, counsel for the Company, dated the Closing Date,
to the effect that:
(i) the Company has been duly incorporated, is validly existing
as a corporation in good standing under the laws of the State of
Delaware, has the corporate power and authority to own its property
and to conduct its business as described in the Prospectus and is duly
qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent
that the failure to be so qualified or be in good standing would not
have a material adverse effect on the Company and its subsidiaries,
taken as a whole;
(ii) each of the Material Subsidiaries of the Company has
been duly incorporated, is validly existing as a corporation in
good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its
property and to conduct its business as described in the
Prospectus and is duly
7
qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification,
except to the extent that the failure to be so qualified or be in
good standing would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole;
(iii) the Company and each of its Material Subsidiaries has
all necessary consents, authorizations, approvals, orders,
certificates and permits of and from, and has made all
declarations and filings with, all federal, state, local and
other governmental authorities, all self-regulatory organizations
and all courts and other tribunals, to own, lease, license and
use its properties and assets and to conduct its business in the
manner described in the Prospectus, except to the extent that the
failure to obtain or file would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole;
(iv) this Agreement has been duly authorized, executed and
delivered by the Company;
(v) the Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement of
the Company, enforceable in accordance with its terms except as
(A) the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights generally
and (B) rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general
applicability;
(vi) the Delayed Delivery Contracts, if any, have been duly
authorized, executed and delivered by the Company and are valid
and binding agreements of the Company, enforceable in accordance
with their respective terms except as (A) the enforceability
thereof may be limited by bankruptcy, insolvency or similar laws
affecting creditors' rights generally and (B) the availability of
equitable remedies may be limited by equitable principles of
general applicability;
(vii) the Offered Securities have been duly authorized and,
when executed and authenticated in accordance with the provisions
of the Indenture and delivered to and paid for by the
Underwriters in accordance with the terms of the Underwriting
Agreement, in
8
the case of Underwriters' Securities, or by institutional
investors in accordance with the terms of the Delayed Delivery
Contracts, in the case of the Contract Securities, will be
entitled to the benefits of the Indenture and will be valid and
binding obligations of the Company, enforceable in accordance
with their terms except as (1) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting
creditors' rights generally and (2) rights of acceleration, if
any, and the availability of equitable remedies may be limited by
equitable principles of general applicability;
(viii) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, this
Agreement, the Indenture, the Offered Securities and the Delayed
Delivery Contracts will not contravene any provision of the law
of the State of New York, the General Corporation Law of the
State of Delaware or the Federal laws of the United States
applicable to the Company or any Material Subsidiary, or the
certificate of incorporation or by-laws of the Company or, to the
best of such counsel's knowledge, any agreement or other
instrument binding upon the Company or any of its subsidiaries
that is material to the Company and its subsidiaries, taken as a
whole, or, to the best of such counsel's knowledge, any judgment,
order or decree of any governmental body, agency or court having
jurisdiction over the Company or any Material Subsidiary, and no
consent, approval, authorization or order of, or qualification
with, any governmental body or agency is required for the
performance by the Company of its obligations under this
Agreement, the Indenture, the Offered Securities or the Delayed
Delivery Contract , except such as may be required by the
securities or Blue Sky laws of the various states in connection
with the offer and sale of the Offered Securities and except such
as have been obtained or made on or prior to the Closing Date;
(ix) the statements (A) in the Prospectus under the captions
"Description of Senior Debt Securities," "Plan of Distribution",
and "Description of the Debentures" (B) in the Registration
Statement under Item 15, (C) in "Item 3 - Legal Proceedings" of
the Company's most recent annual report on Form 10-K incorporated
by reference in the Prospectus and (D) in "Item 1 - Legal
Proceedings" of Part II of the Company's quarterly reports on
Form 10-Q, if any, filed since such annual report, in each case
insofar as such statements constitute summaries of the
9
legal matters, documents or proceedings referred to therein,
fairly present the information called for with respect to such
legal matters, documents and proceedings and fairly summarize the
matters referred to therein;
(x) such counsel does not know of any legal or governmental
proceedings pending or threatened to which the Company or any of
its subsidiaries is a party or to which any of the properties of
the Company or any of its subsidiaries is subject that are
required to be described in the Registration Statement or the
Prospectus and are not so described or of any statutes,
regulations, contracts or other documents that are required to be
described in the Registration Statement or the Prospectus or to
be filed or incorporated by reference as exhibits to the
Registration Statement that are not described, filed or
incorporated as required;
(xi) such counsel (A) is of the opinion that each document,
if any, filed pursuant to the Exchange Act and incorporated by
reference in the Prospectus (except for financial statements,
financial schedules and other financial or statistical data
included therein as to which such counsel need not express any
opinion) complied when so filed as to form in all material
respects with the Exchange Act and the applicable rules and
regulations of the Commission thereunder, (B) has no reason to
believe that (except for financial statements, financial
schedules and other financial or statistical data as to which
such counsel need not express any belief and except for that part
of the Registration Statement that constitutes the Form T-1
heretofore referred to) each part of the Registration Statement,
when such part became effective, contained and, as of the date
such opinion is delivered, contains any untrue statement of a
material fact or omitted or omits to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, (C) is of the opinion that the
Registration Statement and Prospectus (except for financial
statements, financial schedules and other financial or
statistical data included therein as to which such counsel need
not express any opinion) comply as to form in all material
respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder and (D) has no reason to
believe that (except for financial statements, financial
schedules and other financial or statistical data as to which
such counsel need not express any belief) the Prospectus as of
the date such opinion is delivered contains any untrue statement
of a material fact or omits
10
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.
(d) The Underwriters shall have received on the Closing Date an
opinion of Xxxxx Xxxx & Xxxxxxxx, special counsel for the Underwriters,
dated the Closing Date, covering the matters referred to in Sections
5(c)(iv), 5(c)(v), 5(c)(vi) and 5(c)(vii) (but only as to the statements in
the Prospectus under "Description of Debt Securities", "Plan of
Distribution" and "Description of the Debentures") and clauses 5(c)(xi)(B),
5(c)(xi)(C) and 5(c)(xi)(D) above.
With respect to clauses 5(c)(xi)(B), 5(c)(xi)(C) and 5(c)(xi)(D)
above, Xxxxx Xxxx & Xxxxxxxx may state that their opinion and belief are
based upon their participation in the preparation of the Registration
Statement and Prospectus and any amendments or supplements thereto (but not
including documents incorporated therein by reference) and review and
discussion of the contents thereof (including documents incorporated
therein by reference), but are without independent check or verification,
except as specified.
(e) The Underwriters shall have received on the Closing Date a letter,
dated the Closing Date, in form and substance satisfactory to the
Underwriters, from the Company's independent public accountants, 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 or incorporated by reference
into the Prospectus.
6. Covenants of the Company. In further consideration of the agreements of
the Underwriters herein contained, the Company covenants with each Underwriter
as follows:
(a) To furnish the Manager, without charge, a conformed copy of the
Registration Statement (including exhibits thereto) and for delivery to
each other Underwriter a conformed copy of the Registration Statement
(without exhibits thereto) and, during the period mentioned in Section 6(c)
below, as many copies of the Prospectus, any documents incorporated by
reference therein and any supplements and amendments thereto or to the
Registration Statement as the Manager may reasonably request.
(b) Before amending or supplementing the Registration Statement or the
Prospectus with respect to the Offered Securities, to
11
furnish to the Manager a copy of each such proposed amendment or supplement
and not to file any such proposed amendment or supplement to which the
Manager reasonably objects.
(c) If, during such period after the first date of the public offering
of the Offered Securities as in the opinion of counsel for the Underwriters
the Prospectus is required by law to be delivered in connection with sales
by an Underwriter or dealer, any event shall occur or condition exist as a
result of which it is necessary to amend or supplement the Prospectus in
order to make the statements therein, in the light of the circumstances
when the Prospectus is delivered to a purchaser, not misleading, or if, in
the opinion of counsel for the Underwriters, it is necessary to amend or
supplement the Prospectus to comply with applicable law, forthwith to
prepare, file with the Commission and furnish, at its own expense, to the
Underwriters and to the dealers (whose names and addresses the Manager will
furnish to the Company) to which Offered Securities may have been sold by
the Manager on behalf of the Underwriters and to any other dealers upon
request, either amendments or supplements to the Prospectus so that the
statements in the Prospectus as so amended or supplemented will not, in the
light of the circumstances when the Prospectus is delivered to a purchaser,
be misleading or so that the Prospectus, as amended or supplemented, will
comply with law and to cause such amendments or supplements to be filed
promptly with the Commission.
(d) To endeavor to qualify the Offered Securities for offer and sale
under the securities or Blue Sky laws of such jurisdictions as the Manager
shall reasonably request and to maintain such qualification for as long as
the Manager shall reasonably request.
(e) To make generally available to the Company's security holders and
to the Manager as soon as practicable an earning statement covering a
twelve month period beginning on the first day of the first full fiscal
quarter after the date of this Agreement, which earning statement shall
satisfy the provisions of Section 11(a) of the Securities Act and the rules
and regulations of the Commission thereunder. If such fiscal quarter is the
last fiscal quarter of the Company's fiscal year, such earning statement
shall be made available not later than 90 days after the close of the
period covered thereby and in all other cases shall be made available not
later than 45 days after the close of the period covered thereby.
(f) During the period beginning on the date of the Underwriting
Agreement and continuing to and including the Closing Date, not to offer,
sell, contract to sell or otherwise dispose of any debt securities of the
12
Company or warrants to purchase debt securities of the Company
substantially similar to the Offered Securities (other than (i) the Offered
Securities and (ii) commercial paper issued in the ordinary course of
business), without the prior written consent of the Manager.
(g) Whether or not any sale of the Offered Securities is consummated,
to pay all expenses incident to the performance of its obligations under
this Agreement, including: (i) the preparation and filing of the
Registration Statement and the Prospectus and all amendments and
supplements thereto; (ii) the preparation, issuance and delivery of the
Offered Securities; (iii) the fees and disbursements of the Company's
Counsel and accountants and of the Trustee and its counsel; (iv) the
qualification of the Offered Securities under state securities or Blue Sky
laws in accordance with the provisions of Section 6(d), including filing
fees and the fees and disbursements of counsel for the Underwriters in
connection therewith and in connection with the preparation of any Blue Sky
or Legal Investment Memoranda; (v) the printing and delivery to the
Underwriters in quantities as hereinabove stated of copies of the
Registration Statement and all amendments thereto and of any preliminary
prospectus and the Prospectus and any amendments or supplements thereto;
(vi) the printing and delivery to the Underwriters of copies of any Blue
Sky or Legal Investment Memoranda; (vii) any fees charged by rating
agencies for the rating of the Offered Securities; (viii) the filing fees
and expenses, if any, incurred with respect to any filing with the National
Association of Securities Dealers, Inc. made in connection with the Offered
Securities; (ix) any expenses incurred by the Company in connection with a
"road show" presentation to potential investors and (x) all document
production charges and expenses of counsel to the Underwriters (but not
including their fees for professional services) incurred in connection with
the preparation of this Agreement.
7. Covenants of the Underwriters.
Each of the several Underwriters represents and agrees with the Company
that:
(a) except to the extent permitted under U.S. Treas. Reg. Section
1.163-5(c)(2)(i)(D) (the "D Rules"), (A) it has not offered or sold, and
during the restricted period will not offer or sell, Debt Securities in
bearer form (including any Debt Security in global form that is
exchangeable for Debt Securities in bearer form) to a person who is within
the United States or its possessions or to a United States person and (B)
it has not delivered
13
and will not deliver within the United States or its possessions definitive
Debt Securities in bearer form that are sold during the restricted period;
(b) it has, and throughout the restricted period will have, in effect
procedures reasonably designed to ensure that its employees or agents who
are directly engaged in selling Debt Securities in bearer form are aware
that such Debt Securities may not be offered or sold during the restricted
period to a person who is within the United States or its possessions or to
a United States person, except as permitted by the D Rules;
(c) if it is a United States person, it is acquiring the Debt
Securities in bearer form for purposes of resale in connection with their
original issuance and if it retains Debt Securities in bearer form for its
own account, it will only do so in accordance with the requirements of U.S.
Treas. Reg. Section 1.163-5(c)(2)(i)(D)(6);
(d) if it transfers to any affiliate Debt Securities in bearer form
for the purpose of offering or selling such Debt Securities during the
restricted period, it will either (A) obtain from such affiliate for the
benefit of the Company the representations and agreements contained in
Sections 7(a), 7(b) and 7(c) or (B) repeat and confirm the representations
and agreements contained in Sections 7(a), 7(b) and 7(c) on such
affiliate's behalf and obtain from such affiliate the authority to so
obligate it;
(e) it will obtain for the benefit of the Company the representations
and agreements contained in Sections 7(a), 7(b), 7(c) and 7(d) from any
person other than its affiliate with whom it enters into a written
contract, as defined in U.S. Treas. Reg. Section 1.163-5(c)(2)(i)(D)(4) for
the offer or sale during the restricted period of Debt Securities in bearer
form; and
(f) it will comply with or observe any other restrictions or
limitations set forth in the Prospectus on persons to whom, or the
jurisdictions in which, or the manner in which, the Debt Securities may be
offered, sold, resold or delivered.
All other terms used in the preceding paragraph have the meaning given to
them by the U.S. Internal Revenue Code (the "Code") and regulations
thereunder, including the D Rules. The restricted period is defined at U.S.
Treas. Reg. Section 1.163-5(c)(2)(i)(D)(7).
8. Indemnification and Contribution. (a) The Company agrees to indemnify
and hold harmless each Underwriter and each person, if any, who
14
controls any Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act from and against any and all
losses, claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred by any Underwriter or any such
controlling person in connection with defending or investigating any such action
or claim) caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or any amendment thereof,
any preliminary prospectus or the Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto), or caused
by any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages or liabilities are caused by any
such untrue statement or omission or alleged untrue statement or omission based
upon information relating to any Underwriter furnished to the Company in writing
by such Underwriter through the Manager expressly for use therein; provided,
however, that the foregoing indemnity agreement with respect to any preliminary
prospectus shall not inure to the benefit of any Underwriter from whom the
person asserting any such losses, claims, damages or liabilities purchased
Offered Securities, or any person controlling such Underwriter, if a copy of the
Prospectus (as then amended or supplemented if the Company shall have furnished
any amendments or supplements thereto) was not sent or given by or on behalf of
such Underwriter to such person, if required by law so to have been delivered,
at or prior to the written confirmation of the sale of the Offered Securities to
such person, and if the Prospectus (as so amended or supplemented) would have
cured the defect giving rise to such losses, claims, damages or liabilities.
(b) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, its directors, its officers who sign the
Registration Statement and each person, if any, who controls the Company
within the meaning of either Section 15 of the Securities Act or Section 20
of the Exchange Act to the same extent as the foregoing indemnity from the
Company to such Underwriter, but only with reference to information
relating to such Underwriter furnished to the Company in writing by such
Underwriter through the Manager expressly for use in the Registration
Statement, any preliminary prospectus, the Prospectus or any amendments or
supplements thereto.
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may
be sought pursuant to either Section 8(a) or 8(b), such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party and any others the
15
indemnifying party may designate in such proceeding and shall pay the fees
and disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of such
counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified
party and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them.
It is understood that the indemnifying party shall not, in respect of the
legal expenses of any indemnified party in connection with any proceeding
or related proceedings in the same jurisdiction, be liable for the fees and
expenses of more than one separate firm (in addition to any local counsel)
for all such indemnified parties and that all such fees and expenses shall
be reimbursed as they are incurred. Such firm shall be designated in
writing by the Manager, in the case of parties indemnified pursuant to
Section 8(a) above, and by the Company, in the case of parties indemnified
pursuant to Section 8(b) above. The indemnifying party shall not be liable
for any settlement of any proceeding effected without its written consent,
but if settled with such consent or if there be a final judgment for the
plaintiff, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or
judgment.
(d) To the extent the indemnification provided for in Section 8(a) or
8(b) is unavailable to an indemnified party or insufficient in respect of
any losses, claims, damages or liabilities referred to therein, then each
indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect
the relative benefits received by the Company on the one hand and the
Underwriters on the other hand from the offering of the Offered Securities
or (ii) if the allocation provided by clause 8(d)(i) above is not permitted
by applicable law, in such proportion as is appropriate to reflect not only
the relative benefits referred to in clause 8(d)(i) above but also the
relative fault of the Company on the one hand and of the Underwriters on
the other hand in connection with the statements, omissions or actions that
resulted in such losses, claims, damages or liabilities, as well as any
other relevant equitable considerations. The relative benefits received by
the Company on the one hand and the Underwriters on the other hand in
connection with the offering of the Offered Securities shall be deemed to
be in the same respective proportions as the net proceeds from the offering
of such Offered Securities (before deducting expenses) received by the
Company and the total underwriting discounts and commissions received by
the Underwriters, in each case as set forth in the table on the cover of
the Prospectus Supplement, bear to the aggregate public offering
16
price of the Offered Securities. The relative fault of the Company on the
one hand and the Underwriters on the other hand shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company or by the
Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission. The Underwriters' respective obligations to contribute pursuant
to this Section 8 are several in proportion to the respective principal
amounts of Offered Securities they have purchased hereunder, and not joint.
(e) The Company and the Underwriters agree that it would not be just
or equitable if contribution pursuant to this Section 8 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 that does not take
account of the equitable considerations referred to in Section 8(d). The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this Section 8, no Underwriter
shall be required to contribute any amount in excess of the amount by which
the total price at which the Offered Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of
any damages that such Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The remedies provided for in this Section 8 are not
exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this
Section 8 and the representations, warranties and other statements of the
Company contained in this Agreement shall remain operative and in full
force and effect regardless of (i) any termination of this Agreement, (ii)
any investigation made by or on behalf of any Underwriter or any person
controlling any Underwriter or the Company, its officers or directors or
any person controlling the Company and (iii) acceptance of and payment for
any of the Offered Securities.
9. Termination. This Agreement shall be subject to termination by notice
given by the Manager to the Company, if (a) after the execution and delivery of
the Underwriting Agreement and prior to the Closing Date (i) trading
17
generally shall have been suspended or materially limited on or by, as the case
may be, any of the New York Stock Exchange, the American Stock Exchange, the
National Association of Securities Dealers, Inc., the Chicago Board of Options
Exchange, the Chicago Mercantile Exchange or the Chicago Board of Trade, (ii)
trading of any securities of the Company shall have been suspended on any
exchange or in any over-the-counter market, (iii) a general moratorium on
commercial banking activities in New York shall have been declared by either
Federal or New York State authorities or (iv) there shall have occurred any
outbreak or escalation of hostilities or any change in financial markets or any
calamity or crisis that, in the judgment of the Manager, is material and adverse
and (b) in the case of any of the events specified in clauses 9(a)(i) through
9(a)(iv), such event, singly or together with any other such event, makes it, in
the judgment of the Manager, impracticable to market the Offered Securities on
the terms and in the manner contemplated in the Prospectus.
10. Defaulting Underwriters. If, on the Closing Date, any one or more of
the Underwriters shall fail or refuse to purchase Underwriters' Securities that
it has or they have agreed to purchase hereunder on such date, and the aggregate
amount of Underwriters' Securities which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase is not more than one-tenth
of the aggregate amount of the Underwriters' Securities to be purchased on such
date, the other Underwriters shall be obligated severally in the proportions
that the amount of Underwriters' Securities set forth opposite their respective
names in the Underwriting Agreement bears to the aggregate amount of
Underwriters' Securities set forth opposite the names of all such non-defaulting
Underwriters, or in such other proportions as the Manager may specify, to
purchase the Underwriters' Securities which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date; provided
that in no event shall the amount of Underwriters' Securities that any
Underwriter has agreed to purchase pursuant to this Agreement be increased
pursuant to this Section 10 by an amount in excess of one-ninth of such amount
of Underwriters' Securities without the written consent of such Underwriter. If,
on the Closing Date, any Underwriter or Underwriters shall fail or refuse to
purchase Underwriters' Securities and the aggregate amount of Underwriters'
Securities with respect to which such default occurs is more than one-tenth of
the aggregate amount of Underwriters' Securities to be purchased on such date,
and arrangements satisfactory to the Manager and the Company for the purchase of
such Underwriters' Securities are not made within 36 hours after such default,
this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter or the Company. In any such case either the Manager
or the Company shall have the right to postpone the Closing Date, but in no
event for longer than seven days, in order that the required changes, if any, in
the Registration Statement and in the Prospectus or in any other documents or
18
arrangements may be effected. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of them,
because of any failure or refusal on the part of the Company to comply with the
terms or to fulfill any of the conditions of this Agreement, or if for any
reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and disbursements of their counsel)
reasonably incurred by such Underwriters in connection with this Agreement or
the offering contemplated hereunder.
11. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers,
directors and controlling persons referred to in Section 8, and no other person
will have any right or obligation hereunder.
12. Counterparts. This Agreement may be signed in two or more counterparts,
each of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument.
13. Applicable Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York.
14. Headings. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
19
SCHEDULE I
DELAYED DELIVERY CONTRACT
________, 199_
Dear Sirs and Mesdames:
The undersigned hereby agrees to purchase from Burlington Industries, Inc.,
a Delaware corporation (the "Company"), and the Company agrees to sell to the
undersigned the Company's securities described in Schedule A annexed hereto (the
"Securities"), offered by the Company's Prospectus dated __________, 19__ and
Prospectus Supplement dated __________, 19__, receipt of copies of which are
hereby acknowledged, at a purchase price stated in Schedule A and on the further
terms and conditions set forth in this Agreement. The undersigned does not
contemplate selling Securities prior to making payment therefor.
The undersigned will purchase from the Company Securities in the principal
amount and numbers on the delivery dates set forth in Schedule A. Each such date
on which Securities are to be purchased hereunder is hereinafter referred to as
a "Delivery Date."
Payment for the Securities which the undersigned has agreed to purchase on
each Delivery Date shall be made to the Company in Federal or other funds
immediately available in New York City at the office of
______________________________, New York, N.Y., at 10:00 a.m. (New York City
time) on the Delivery Date, upon delivery to the undersigned of the Securities
to be purchased by the undersigned on the Delivery Date, in such denominations
and registered in such names as the undersigned may designate by written or
telegraphic communication addressed to the Company not less than three full
business days prior to the Delivery Date.
The obligation of the undersigned to take delivery of and make payment for
the Securities on the Delivery Date shall be subject to the conditions that (1)
the purchase of Securities to be made by the undersigned shall not at the time
of delivery be prohibited under the laws of the jurisdiction to which the
undersigned is subject and (2) the Company shall have sold, and delivery shall
have taken place to the underwriters (the "Underwriters") named in the
Prospectus Supplement referred to above of, such part of the Securities as is to
be sold to them. Promptly after completion of sale and delivery to the
Underwriters, the Company will mail or deliver to the undersigned as its address
set forth below
notice to such effect, accompanied by a copy of the opinion of counsel for the
Company delivered to the Underwriters in connection therewith.
Failure to take delivery of and make payment for Securities by any
purchaser under any other Delayed Delivery Contract shall not relieve the
undersigned of its obligations under this agreement.
This Agreement will inure to the benefit of and be binding upon the parties
hereto and their respective successors, but will not be assignable by either
party hereto without the written consent of the other.
If this Agreement is acceptable to the Company, it is requested that the
Company sign the form of acceptance below and mail or deliver one of the
counterparts hereof to the undersigned at its address set forth below. This will
become a binding agreement, as of the date first above written, between the
Company and the undersigned when such counterpart is so mailed or delivered.
This Agreement shall be governed by and construed in accordance with the
internal laws of the State of New York.
Very truly yours,
(Purchaser)
By:
(Title)
(Address)
Accepted:
Burlington Industries, Inc.
By:
Name:
Title:
2
PURCHASER -- PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone and department of the representative of the
Purchaser with whom details of delivery on the Delivery Date may be discussed is
as follows: (Please print.)
Telephone No.
Name (Including Area Code) Department
-------------------------- --------------------- -----------------------
--------------------------------------------------------------------------------
3
SCHEDULE A
Securities:
Principal Amounts or Numbers to be Purchased:
Purchase Price:
Delivery:
