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USFREIGHTWAYS CORPORATION
(a Delaware corporation)
Guaranteed Notes due 2009
PURCHASE AGREEMENT
------------------
Dated: April 29, 1999
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TABLE OF CONTENTS
PURCHASE AGREEMENT............................................................1
SECTION 1. Representations and Warranties..................................3
(a) Representations and Warranties by the Company and the
Guarantors....................................................3
(i) Compliance with Registration Requirements..............3
(ii) Incorporated Documents.................................4
(iii) Independent Accountants................................4
(iv) Financial Statements...................................4
(v) No Material Adverse Change in Business.................4
(vi) Good Standing of the Company...........................5
(vii) Good Standing of the Guarantors........................5
(viii) Capitalization.........................................5
(ix) Authorization of Agreement.............................5
(x) Authorization of the Indenture.........................5
(xi) Authorization of the Securities........................6
(xii) Description of the Securities and the Indenture........6
(xiii) Absence of Defaults and Conflicts......................6
(xiv) Absence of Labor Dispute...............................7
(xv) Absence of Proceedings.................................7
(xvi) Accuracy of Exhibits...................................7
(xvii) Possession of Intellectual Property....................7
(xviii) Absence of Further Requirements........................8
(xix) Possession of Licenses and Permits.....................8
(xx) Title to Property......................................8
(xxi) Compliance with Cuba Act...............................9
(xxii) Investment Company Act.................................9
(xxiii) Environmental Laws.....................................9
(b) Officer's Certificates..........................................9
SECTION 2. Sale and Delivery to Underwriters; Closing.....................10
(a) Securities.....................................................10
(b) Payment........................................................10
(c) Denominations; Registration....................................10
SECTION 3. Covenants of the Company and the Guarantors....................11
(a) Compliance with Securities Regulations and
Commission Requests..........................................11
(b) Filing of Amendments...........................................11
(c) Delivery of Registration Statements............................11
(d) Delivery of Prospectuses.......................................12
(e) Continued Compliance with Securities Laws......................12
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(f) Blue Sky Qualifications........................................12
(g) Rule 158.......................................................13
(h) Use of Proceeds................................................13
(i) Reporting Requirements.........................................13
SECTION 4. Payment of Expenses............................................13
(a) Expenses.......................................................13
(b) Termination of Agreement.......................................13
SECTION 5. Conditions of Underwriters' Obligations........................13
(a) Effectiveness of Registration Statement........................14
(b) Opinions of Counsel for Company................................14
(c) Opinion of Counsel for Underwriters............................14
(d) Officers' Certificate..........................................14
(e) Accountant's Comfort Letter....................................15
(f) Bring-down Comfort Letter......................................15
(g) Maintenance of Rating..........................................15
(h) Additional Documents...........................................15
(i) Termination of Agreement.......................................16
SECTION 6. Indemnification................................................16
(a) Indemnification of Underwriters................................16
(b) Indemnification of Company, Guarantors, Directors
and Officers.................................................17
(c) Actions against Parties; Notification..........................17
(d) Settlement without Consent if Failure to Reimburse.............17
SECTION 7. Contribution...................................................18
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery.....................................................19
SECTION 9. Termination of Agreement.......................................19
(a) Termination; General...........................................19
(b) Liabilities....................................................20
SECTION 10. Default by One or More of the Underwriters.....................20
SECTION 11. Notices........................................................20
SECTION 12. Parties........................................................21
SECTION 13. GOVERNING LAW AND TIME.........................................21
SECTION 14. Effect of Headings.............................................21
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SCHEDULES
Schedule A - List of Underwriters.......................Sch A-1
Schedule B - Pricing Information........................Sch B-1
Schedule C - List of Guarantors.........................Sch C-1
EXHIBITS
Exhibit A - Form of Opinion of Company's Counsel
and Form of Opinion of Company's
Vice President and General Counsel.............A-1
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USFREIGHTWAYS CORPORATION
(a Delaware corporation)
$100,000,000
Guaranteed Notes due 2009
PURCHASE AGREEMENT
------------------
April 29, 1999
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Credit Suisse First Boston Corporation
as Representative(s) of the several Underwriters
x/x Xxxxxxx Xxxxx & Xx.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
USFreightways Corporation, a Delaware corporation (the "Company"),
confirms its agreement with Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated ("Xxxxxxx Xxxxx") and each of the other Underwriters named in
Schedule A hereto (collectively, the "Underwriters", which term shall also
include any underwriter substituted as hereinafter provided in Section 10
hereof), for whom Xxxxxxx Xxxxx and Credit Suisse First Boston Corporation are
acting as representative(s) (in such capacity, the "Representative(s)"), with
respect to the issue and sale by the Company and the purchase by the
Underwriters, acting severally and not jointly, of the respective principal
amounts set forth in said Schedule A of $100,000,000 aggregate principal amount
of the Company's 62% Guaranteed Notes due May 1, 2009 (the "Notes"). The Notes
and Guarantees (as defined herein) are to be issued pursuant to an indenture
dated as of May 5, 1999 (the "Indenture") among the Company, the Guarantors (as
defined herein) and NBD Bank, as trustee (the "Trustee"). The Notes will be
fully and unconditionally guaranteed on a senior basis pursuant to the terms of
the Indenture (the "Guarantees" and, together with the Notes, the "Securities")
by the persons listed on Schedule C hereto (each, a "Guarantor," and
collectively, the "Guarantors"). The term
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"Indenture," as used herein, includes the Officers' Certificate (as defined in
the Indenture) establishing the form and terms of the Notes pursuant to Sections
102 and 301 of the Indenture.
The Company understands that the Underwriters propose to make a public
offering of the Securities as soon as the Representative(s) deem(s) advisable
after this Agreement has been executed and delivered and the Indenture has been
qualified under the Trust Indenture Act of 1939, as amended (the "1939 Act").
The Company and the Guarantors have filed with the Securities and
Exchange Commission (the "Commission") a registration statement on Form S-3 (No.
333-76217) covering the registration of the Securities under the Securities Act
of 1933, as amended (the "1933 Act"), including the related preliminary
prospectus or prospectuses. Promptly after execution and delivery of this
Agreement, the Company will either (i) prepare and file a prospectus in
accordance with the provisions of Rule 430A ("Rule 430A") of the rules and
regulations of the Commission under the 1933 Act (the "1933 Act Regulations")
and paragraph (b) of Rule 424 ("Rule 424(b)") of the 1933 Act Regulations or
(ii) if the Company has elected to rely upon Rule 434 ("Rule 434") of the 1933
Act Regulations, prepare and file a term sheet (a "Term Sheet") in accordance
with the provisions of Rule 434 and Rule 424(b). The information included in
such prospectus or in such Term Sheet, as the case may be, that was omitted from
such registration statement at the time it became effective but that is deemed
to be part of such registration statement at the time it became effective (a)
pursuant to paragraph (b) of Rule 430A is referred to as "Rule 430A Information"
or (b) pursuant to paragraph (d) of Rule 434 is referred to as "Rule 434
Information." Each prospectus used before such registration statement became
effective, and any prospectus that omitted, as applicable, the Rule 430A
Information or the Rule 434 Information, that was used after such effectiveness
and prior to the execution and delivery of this Agreement, is herein called a
"preliminary prospectus." Such registration statement, including the exhibits
thereto, schedules thereto, if any, and the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the 1933 Act, at the time it
became effective and including the Rule 430A Information and the Rule 434
Information, as applicable, is herein called the "Registration Statement." Any
registration statement filed pursuant to Rule 462(b) of the 1933 Act Regulations
is herein referred to as the "Rule 462(b) Registration Statement," and after
such filing the term "Registration Statement" shall include the Rule 462(b)
Registration Statement. The final prospectus, including the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933
Act, in the form first furnished to the Underwriters for use in connection with
the offering of the Securities is herein called the "Prospectus." If Rule 434 is
relied on, the term "Prospectus" shall refer to the preliminary prospectus dated
April 23, 1999 together with the Term Sheet and all references in this Agreement
to the date of the Prospectus shall mean the date of the Term Sheet. For
purposes of this Agreement, all references to the Registration Statement, any
preliminary prospectus, the Prospectus or any Term Sheet or any amendment or
supplement to any of the foregoing shall be deemed to include the copy filed
with the Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval system ("XXXXX").
All references in this Agreement to financial statements and schedules
and other information which is "contained," "included" or "stated" in the
Registration Statement, any preliminary prospectus or the Prospectus (or other
references of like import) shall be deemed to mean and include
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all such financial statements and schedules and other information which is
incorporated by reference in the Registration Statement, any preliminary
prospectus or the Prospectus, as the case may be; and all references in this
Agreement to amendments or supplements to the Registration Statement, any
preliminary prospectus or the Prospectus shall be deemed to mean and include the
filing of any document under the Securities Exchange Act of 1934 (the "1934
Act") which is incorporated by reference in the Registration Statement, such
preliminary prospectus or the Prospectus, as the case may be.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company and the Guarantors.
The Company and the Guarantors, jointly and severally, represent and warrant to
each Underwriter as of the date hereof, as of the Closing Time referred to in
Section 2(b) hereof, and agree with each Underwriter, as follows:
(i) Compliance with Registration Requirements. The Company
meets the requirements for use of Form S-3 under the 1933 Act. Each of
the Registration Statement and any Rule 462(b) Registration Statement
has become effective under the 1933 Act and no stop order suspending
the effectiveness of the Registration Statement or any Rule 462(b)
Registration Statement has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are pending or, to
the knowledge of the Company, are contemplated by the Commission, and
any request on the part of the Commission for additional information
has been complied with. At the respective times the Registration
Statement, any Rule 462(b) Registration Statement and any
post-effective amendments thereto became effective and at the Closing
Time, the Registration Statement, the Rule 462(b) Registration
Statement and any amendments and supplements thereto complied and will
comply in all material respects with the requirements of the 1933 Act
and the 1933 Act Regulations and the 1939 Act and the rules and
regulations of the Commission under the 1939 Act (the "1939 Act
Regulations"), and did not and will not contain an untrue statement of
a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading.
Neither the Prospectus nor any amendments or supplements thereto, at
the time the Prospectus or any such amendment or supplement was issued
and at the Closing Time, included or will include an untrue statement
of a material fact or omitted or will omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. If Rule 434
is used, the Company will comply with the requirements of Rule 434. The
representations and warranties in this subsection shall not apply to
statements in or omissions from the Registration Statement or
Prospectus made in reliance upon and in conformity with information
furnished to the Company in writing by any Underwriter through Xxxxxxx
Xxxxx expressly for use in the Registration Statement or Prospectus.
Each preliminary prospectus and the prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the 1933 Act, complied
when so filed in all material respects
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with the 1933 Act Regulations and each preliminary prospectus and the
Prospectus delivered to the Underwriters for use in connection with
this offering was identical to the electronically transmitted copies
thereof filed with the Commission pursuant to XXXXX, except to the
extent permitted by Regulation S-T.
(ii) Incorporated Documents. The documents incorporated or
deemed to be incorporated by reference in the Registration Statement
and the Prospectus, at the time they were or hereafter are filed with
the Commission, complied and will comply in all material respects with
the requirements of the 1934 Act and the rules and regulations of the
Commission thereunder (the "1934 Act Regulations"), and, when read
together with the other information in the Prospectus, at the time the
Registration Statement became effective, at the time the Prospectus was
issued and at the Closing Time, did not and will not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading.
(iii) Independent Accountants. The accountants who certified
the financial statements and supporting schedules included in the
Registration Statement are independent public accountants as required
by the 1933 Act and the 1933 Act Regulations.
(iv) Financial Statements. The financial statements included
in the Registration Statement and the Prospectus, together with the
related schedules and notes, present fairly the financial position of
the Company and its consolidated subsidiaries at the dates indicated
and the statement of operations, stockholders' equity and cash flows of
the Company and its consolidated subsidiaries 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. The supporting
schedules, if any, included in the Registration Statement present
fairly in accordance with GAAP the information required to be stated
therein. The selected financial data and the summary financial
information included in the Prospectus present fairly the information
shown therein and have been compiled on a basis consistent with that of
the audited financial statements included in the Registration
Statement.
(v) 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, par value $.01 per share, of the Company (the "Common
Stock") in amounts per share that are consistent with past practice,
there has been no dividend or
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distribution of any kind declared, paid or made by the Company on any
class of its capital stock.
(vi) Good Standing of the Company. The Company has been duly
organized and is validly existing as a corporation in good standing
under the laws of the State of Delaware and has corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus and to enter into and perform
its obligations under this Agreement; the Company is duly qualified as
a foreign corporation to transact business and is in good standing in
each other jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure so to qualify or to be in
good standing would not result in a Material Adverse Effect.
(vii) Good Standing of the Guarantors. Each subsidiary of the
Company listed on Schedule C hereto (each a "Guarantor" and,
collectively, the "Guarantors") 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 Guarantor 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 Guarantor. The only subsidiaries of the
Company are (a) the subsidiaries listed on Schedule C 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.
(viii) Capitalization. The shares of issued and outstanding
capital stock of the Company have been duly authorized and validly
issued and are fully paid and non-assessable; none of the outstanding
shares of capital stock of the Company was issued in violation of the
preemptive or other similar rights of any securityholder of the
Company.
(ix) Authorization of Agreement. This Agreement has been duly
authorized, executed and delivered by the Company and the Guarantors.
(x) Authorization of the Indenture. The Indenture has been
duly authorized by the Company and each Guarantor and duly qualified
under the 1939 Act and, when duly executed and delivered by the
Company, each Guarantor and the Trustee, will constitute a valid and
binding agreement of the Company and each Guarantor, enforceable
against the
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Company and each Guarantor in accordance with its terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar laws affecting
enforcement of creditors' rights generally and except as enforcement
thereof is subject to general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity or at
law).
(xi) Authorization of the Securities. The Notes have been duly
authorized and, at the Closing Time, will have been duly executed by
the Company and, when authenticated, issued and delivered in the manner
provided for in the Indenture and delivered against payment of the
purchase price therefor as provided in this Agreement, will constitute
valid and binding obligations of the Company, enforceable against the
Company in accordance with their terms; the Guarantees have been duly
authorized and, at the Closing Time, will have been duly executed by
each Guarantor and, when authenticated, issued and delivered in the
manner provided for in the Indenture and delivered against payment of
the purchase price for the Notes as provided in this Agreement, will
constitute valid and binding obligations of each Guarantor, enforceable
against each Guarantor in accordance with their terms; except as the
enforcement of the Securities may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar laws affecting
enforcement of creditors' rights generally and except as enforcement
thereof is subject to general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity or at law),
and will be in the form contemplated by, and entitled to the benefits
of, the Indenture.
(xii) Description of the Securities and the Indenture. The
Securities and the Indenture will conform in all material respects to
the respective statements relating thereto contained in the Prospectus
and will be in substantially the respective forms filed or incorporated
by reference, as the case may be, as exhibits to the Registration
Statement.
(xiii) Absence of Defaults and Conflicts. Neither the Company
nor any of the Guarantors is in violation of its charter or by-laws or
in default in the performance or observance of any obligation,
agreement, covenant or condition contained in any contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, lease or other
agreement or instrument to which the Company or any of the Guarantors
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 Guarantor is subject
(collectively, "Agreements and Instruments") except for such defaults
that would not result in a Material Adverse Effect; and the execution,
delivery and performance of this Agreement, the Indenture and the
Securities and the consummation of the transactions contemplated herein
and in the Registration Statement (including the issuance and sale of
the Securities and the use of the proceeds from the sale of the
Securities as described in the Prospectus under the caption "Use of
Proceeds") and compliance by the Company and each Guarantor with its
respective obligations hereunder and under the Indenture and the
Securities have been duly authorized by all necessary corporate action
and
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do not and will not, whether with or without the giving of notice
or passage of time or both, conflict with or constitute a breach of, or
default or Repayment Event (as defined below) under, or result in the
creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any Guarantor pursuant to, the
Agreements and Instruments (except for such conflicts, breaches or
defaults or liens, charges or encumbrances that would not result in a
Material Adverse Effect), nor will such action result in any violation
of the provisions of the charter or by-laws of the Company or any
Guarantor or any applicable law, statute, rule, regulation, judgment,
order, writ or decree of any government, government instrumentality or
court, domestic or foreign, including, without limitation, the Federal
Highway Administration ("FHA"), the United States Department of
Transportation ("DOT") or any applicable state highway and
transportation agency, having jurisdiction over the Company or any
Guarantor or any of their assets, properties or operations. As used
herein, a "Repayment Event" means any event or condition that 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 Guarantor.
(xiv) Absence of Labor Dispute. No labor dispute with the
employees of the Company or any Guarantor exists or, to the knowledge
of the Company, is imminent, and the Company is not aware of any
existing or imminent labor disturbance by the employees of any of its
or any Guarantor's principal suppliers, manufacturers, customers or
contractors, which, in either case, may reasonably be expected to
result in a Material Adverse Effect.
(xv) Absence of Proceedings. Except as disclosed in the
Registration Statement, there is no action, suit, proceeding, inquiry
or investigation before or brought by any court or governmental agency
or body, domestic or foreign, including, without limitation, the FHA,
the DOT or any applicable state highway and transportation agency, now
pending, or, to the knowledge of the Company, threatened, against or
affecting the Company or any subsidiary, that is required to be
disclosed in the Registration Statement (other than as disclosed
therein), or that might reasonably be expected to result in a Material
Adverse Effect, or that 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 or each Guarantor of its 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 that
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.
(xvi) Accuracy of Exhibits. There are no contracts or
documents that 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 that have not been so
described and filed as required.
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(xvii) 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 that would render any Intellectual Property invalid or
inadequate to protect the interest of the Company or any of its
subsidiaries therein, and which infringement or conflict (if the
subject of any unfavorable decision, ruling or finding) or invalidity
or inadequacy, singly or in the aggregate, would result in a Material
Adverse Effect.
(xviii) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or
agency is necessary or required for the performance by the Company or
the Guarantors of their respective obligations hereunder, in connection
with the offering, issuance or sale of the Securities hereunder or the
consummation of the transactions contemplated by this Agreement or for
the due execution, delivery or performance of the Indenture by the
Company and the Guarantors, except such as have been already obtained
or as may be required under the 1933 Act or the 1933 Act Regulations or
state securities laws and except for the qualification of the Indenture
under the 1939 Act.
(xix) 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, including, without limitation, the FHA, the DOT and any
applicable state highway and transportation agencies, that are
necessary to conduct the business now operated by them; 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; 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 that
singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would result in a Material Adverse Effect; and
neither the Company nor any of its subsidiaries is in violation of any
law, ordinance, administrative or governmental rule or regulation or
court decree applicable to it, including, without limitation, the FHA,
the DOT and any applicable state highway and transportation agency,
that singly or in the aggregate would result in a Material Adverse
Effect.
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(xx) 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 owned by them,
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, result in a Material Adverse Effect; 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.
(xxi) Compliance with Cuba Act. The Company has complied with,
and is and will be in compliance with, the provisions of that certain
Florida act relating to disclosure of doing business with Cuba,
codified as Section 517.075 of the Florida statutes, and the rules and
regulations thereunder (collectively, the "Cuba Act") or is exempt
therefrom.
(xxii) Investment Company Act. The Company and each Guarantor
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 (the "1940
Act").
(xxiii) Environmental Laws. Except as described in the
Registration Statement or 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
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 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
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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.
(b) Officer's Certificates. Any certificate signed by any officer of
the Company or any Guarantor delivered to the Representative(s) or to counsel
for the Underwriters shall be deemed a representation and warranty by the
Company and such Guarantor to each Underwriter as to the matters covered
thereby.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Securities. On the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, the
Company agrees to sell to each Underwriter, severally and not jointly, and each
Underwriter, severally and not jointly, agrees to purchase from the Company, at
the price set forth in Schedule B, the aggregate principal amount of Securities
set forth in Schedule A opposite the name of such Underwriter, plus any
additional principal amount of Securities that such Underwriter may become
obligated to purchase pursuant to the provisions of Section 10 hereof.
(b) Payment. Payment of the purchase price for, and delivery of
certificates for, the Securities shall be made at the offices of Xxxxxxxx &
Xxxxxx, Ltd., 00 X. Xxxxxx Xx., 00xx Xxxxx, Xxxxxxx, Xxxxxxxx, or at such other
place as shall be agreed upon by the Representative(s) and the Company, at 9:00
A.M. (Eastern time) on the third (fourth, if the pricing occurs after 4:30 P.M.
(Eastern time) on any given day) business day after the date hereof (unless
postponed in accordance with the provisions of Section 10), or such other time
not later than ten business days after such date as shall be agreed upon by the
Representative(s) and the Company (such time and date of payment and delivery
being herein called "Closing Time").
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery to
the Representative(s) for the respective accounts of the Underwriters of
certificates for the Securities to be purchased by them. It is understood that
each Underwriter has authorized the Representative(s), for its account, to
accept delivery of, receipt for, and make payment of the purchase price for, the
Securities that it has agreed to purchase. Xxxxxxx Xxxxx, individually and not
as representative of the Underwriters, may (but shall not be obligated to) make
payment of the purchase price for the Securities to be purchased by any
Underwriter whose funds have not been received by the Closing Time, but such
payment shall not relieve such Underwriter from its obligations hereunder.
(c) Denominations; Registration. Certificates for the Notes shall be in
such denominations ($1,000 or integral multiples thereof) and registered in such
names as the Representative(s) may request in writing at least one full business
day before the Closing Time. The certificates for the Securities, if any, will
be made available for examination and packaging by the Representative(s) in The
City of New York not later than 10:00 A.M. (Eastern time) on the business
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day prior to the Closing Time.
SECTION 3. Covenants of the Company and the Guarantors. The Company
and each Guarantor, jointly and severally, covenants with each Underwriter as
follows:
(a) Compliance with Securities Regulations and Commission
Requests. The Company and each Guarantor, subject to Section 3(b), will
comply with the requirements of Rule 430A or Rule 434, as applicable,
and will notify the Representative(s) immediately, and confirm the
notice in writing, (i) when any post-effective amendment to the
Registration Statement shall become effective, or any supplement to the
Prospectus or any amended Prospectus shall have been filed, (ii) of the
receipt of any comments from the Commission, (iii) of any request by
the Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or for additional
information, and (iv) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or of
any order preventing or suspending the use of any preliminary
prospectus, or of the suspension of the qualification of the Securities
for offering or sale in any jurisdiction, or of the initiation or
threatening of any proceedings for any of such purposes. The Company
and the Guarantors will promptly effect the filings necessary pursuant
to Rule 424(b) and will take such steps as it deems necessary to
ascertain promptly whether the form of prospectus transmitted for
filing under Rule 424(b) was received for filing by the Commission and,
in the event that it was not, it will promptly file such prospectus.
The Company will make every reasonable effort to prevent the issuance
of any stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
(b) Filing of Amendments. The Company will give the
Representative(s) notice of its intention to file or prepare any
amendment to the Registration Statement (including any filing under
Rule 462(b)), any Term Sheet or any amendment, supplement or revision
to either the prospectus included in the Registration Statement at the
time it became effective or to the Prospectus, whether pursuant to the
1933 Act, the 1934 Act or otherwise, will furnish the Representative(s)
with copies of any such documents a reasonable amount of time prior to
such proposed filing or use, as the case may be, and will not file or
use any such document to which the Representative(s) or counsel for the
Underwriters shall object.
(c) Delivery of Registration Statements. The Company has
furnished or will deliver to the Representative(s) and counsel for the
Underwriters, without charge, signed copies of the Registration
Statement as originally filed and of each amendment thereto (including
exhibits filed therewith or incorporated by reference therein and
documents incorporated or deemed to be incorporated by reference
therein) and signed copies of all consents and certificates of experts,
and will also deliver to the Representative(s), without charge, a
conformed copy of the Registration Statement as originally filed and of
each amendment thereto (without exhibits) for each of the Underwriters.
The copies of the Registration Statement and each amendment thereto
furnished to the Underwriters will be
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identical to the electronically transmitted copies thereof filed with
the Commission pursuant to XXXXX, except to the extent permitted by
Regulation S-T.
(d) Delivery of Prospectuses. The Company has delivered to
each Underwriter, without charge, as many copies of each preliminary
prospectus as such Underwriter reasonably requested, and the Company
hereby consents to the use of such copies for purposes permitted by the
1933 Act. The Company will furnish to each Underwriter, without charge,
during the period when the Prospectus is required to be delivered under
the 1933 Act or the 1934 Act, such number of copies of the Prospectus
(as amended or supplemented) as such Underwriter may reasonably
request. The Prospectus and any amendments or supplements thereto
furnished to the Underwriters 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) Continued Compliance with Securities Laws. The Company and
each Guarantor will comply with the 1933 Act and the 1933 Act
Regulations, the 1934 Act and the 1934 Act Regulations and the 1939 Act
and the 1939 Act Regulations so as to permit the completion of the
distribution of the Securities as contemplated in this Agreement and in
the Prospectus. If at any time when a prospectus is required by the
1933 Act to be delivered in connection with sales of the Securities,
any event shall occur or condition shall exist as a result of which it
is necessary, in the opinion of counsel for the Underwriters or for the
Company, to amend the Registration Statement or amend or supplement the
Prospectus in order that the Prospectus will not include any untrue
statements of a material fact or omit to state a material fact
necessary in order to make the statements therein not misleading in the
light of the circumstances existing at the time it is delivered to a
purchaser, or if it shall be necessary, in the opinion of such counsel,
at any such time to amend the Registration Statement or amend or
supplement the Prospectus in order to comply with the requirements of
the 1933 Act or the 1933 Act Regulations, the Company and the
Guarantors will promptly prepare and file with the Commission, subject
to Section 3(b), such amendment or supplement as may be necessary to
correct such statement or omission or to make the Registration
Statement or the Prospectus comply with such requirements, and the
Company will furnish to the Underwriters such number of copies of such
amendment or supplement as the Underwriters may reasonably request.
(f) Blue Sky Qualifications. The Company will use its best
efforts, in cooperation with the Underwriters, to qualify the
Securities for offering and sale under the applicable securities laws
of such states and other jurisdictions (domestic or foreign) as the
Representative(s) may designate and to maintain such qualifications in
effect for a period of not less than one year from the later of the
effective date of the Registration Statement and any Rule 462(b)
Registration Statement; provided, however, that the Company and the
Guarantors 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
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in which it is not otherwise so subject. In each jurisdiction in which
the Securities have been so qualified, the Company and the Guarantors
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 and any Rule 462(b) Registration Statement. The
Company will also supply the Underwriters with such information as is
necessary for the determination of the legality of the Securities for
investment under the laws of such jurisdictions as the Underwriters
may request.
(g) Rule 158. The Company and each Guarantor will timely file
such reports pursuant to the 1934 Act as are necessary in order to make
generally available to its securityholders as soon as practicable an
earnings statement for the purposes of, and to provide the benefits
contemplated by, the last paragraph of Section 11(a) of the 1933 Act.
(h) Use of Proceeds. The Company will use the net proceeds
received by it from the sale of the Securities in the manner specified
in the Prospectus under "Use of Proceeds".
(i) Reporting Requirements. The Company and each Guarantor,
during the period when the Prospectus is required to be delivered under
the 1933 Act or the 1934 Act, will file all documents required to be
filed with the Commission pursuant to the 1934 Act within the time
periods required by the 1934 Act and the 1934 Act Regulations.
SECTION 4. Payment of Expenses.
(a) Expenses. The Company will pay all expenses incident to the
performance of its and the Guarantors' respective obligations under this
Agreement, including (i) the preparation, printing and filing of the
Registration Statement (including financial statements and exhibits) as
originally filed and of each amendment thereto, (ii) the preparation, printing
and delivery to the Underwriters of this Agreement, any Agreement among
Underwriters, the Indenture and such other documents as may be required in
connection with the offering, purchase, sale, issuance or delivery of the
Securities, (iii) the preparation, issuance and delivery of the certificates for
the Securities to the Underwriters, (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(f) hereof, including filing fees and the reasonable fees and disbursements of
counsel for the Underwriters in connection therewith and in connection with the
preparation of the Blue Sky Survey and any supplement thereto, (vi) the printing
and delivery to the Underwriters of copies of each preliminary prospectus, any
Term Sheets and of the Prospectus and any amendments or supplements thereto,
(vii) the preparation, printing and delivery to the Underwriters of copies of
the Blue Sky Survey and any supplement thereto, (viii) the fees and expenses of
the Trustee, including the fees and disbursements of counsel for the Trustee in
connection with the Indenture and the Securities and (ix) any fees payable in
connection with the rating of the Securities.
(b) Termination of Agreement. If this Agreement is terminated by the
Representative(s) in accordance with the provisions of Section 5 or Section
9(a)(i) hereof, the Company shall reimburse the Underwriters for all of their
out-of-pocket expenses, including the reasonable fees and
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disbursements of counsel for the Underwriters.
SECTION 5. Conditions of Underwriters' Obligations. The obligations
of the several Underwriters hereunder are subject to the accuracy of the
representations and warranties of the Company and each Guarantor contained in
Section 1 hereof or in certificates of any officer of the Company or any
Guarantor delivered pursuant to the provisions hereof, to the performance by the
Company and each Guarantor of its respective covenants and other obligations
hereunder, and to the following further conditions:
(a) Effectiveness of Registration Statement. The Registration
Statement, including any Rule 462(b) Registration Statement, has become
effective and at Closing Time no stop order suspending the
effectiveness of the Registration Statement shall have been issued
under the 1933 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 Underwriters. A prospectus containing
the Rule 430A Information shall have been filed with the Commission in
accordance with Rule 424(b) (or a post-effective amendment providing
such information shall have been filed and declared effective in
accordance with the requirements of Rule 430A) or, if the Company has
elected to rely upon Rule 434, a Term Sheet shall have been filed with
the Commission in accordance with Rule 424(b).
(b) Opinions of Counsel for Company. At Closing Time, the
Representative(s) shall have received the favorable opinions, dated as
of Closing Time, of (i) Xxxxxxxx & Xxxxxx, Ltd., counsel for the
Company, and (ii) Xxxxxxx X. Xxxxxx, Vice President and General Counsel
for the Company, in form and substance satisfactory to counsel for the
Underwriters, together with signed or reproduced copies of such letter
for each of the other Underwriters to the effect set forth in Exhibit A
hereto and to such further effect as counsel to the Underwriters may
reasonably request.
(c) Opinion of Counsel for Underwriters. At Closing Time, the
Representative(s) shall have received the favorable opinion, dated as
of Closing Time, of Winston & Xxxxxx, counsel for the Underwriters,
together with signed or reproduced copies of such letter for each of
the other Underwriters with respect to the matters set forth in clauses
(i), (ii), (vi) through (xii), inclusive, and the penultimate paragraph
of Exhibit A hereto. In giving such opinion such counsel may rely, as
to all matters governed by the laws of jurisdictions other than the law
of the State of New York, and the federal law of the United States and
the General Corporation Law of the State of Delaware, upon the opinions
of counsel satisfactory to the Representative(s). Such counsel may also
state that, insofar as such opinion involves factual matters, they have
relied, to the extent they deem proper, upon certificates of officers
of the Company and its Subsidiaries and certificates of public
officials.
(d) Officers' Certificate. At Closing Time, there shall not
have been, since the date hereof or since the respective dates as of
which information is given in the Prospectus, any material adverse
change in the condition, financial or otherwise, or in the earnings,
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business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in
the ordinary course of business, and the Representative(s) 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 Closing Time, to the effect that (i) there has
been no such material adverse change, (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 and each Guarantor 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 are
contemplated by the Commission.
(e) Accountant's Comfort Letter. At the time of the execution
of this Agreement, the Representative(s) shall have received from
Xxxxxx Xxxxxxxx LLP a letter dated such date, in form and substance
satisfactory to the Representative(s), together with signed or
reproduced copies of such letter for each of the other Underwriters
containing statements and information of the type ordinarily included
in accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in the
Registration Statement and the Prospectus.
(f) Bring-down Comfort Letter. At Closing Time, the
Representative(s) 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) Maintenance of Rating. At Closing Time, the Securities
shall be rated at least A3 by Moody's Investor's Service Inc. and A-
by Standard & Poor's Ratings Group, a division of XxXxxx-Xxxx, Inc.,
and the Company shall have delivered to the Representative(s) a letter
dated the Closing Time, from each such rating agency, or other evidence
satisfactory to the Representative(s), confirming that the Securities
have such ratings; and since the date of this Agreement, there shall
not have occurred a downgrading in the rating assigned to the
Securities, any of the Company's other debt securities or any of the
Guarantors' debt securities by any "nationally recognized statistical
rating agency", as that term is defined by the Commission for purposes
of Rule 436(g)(2) under the 1933 Act, and no such organization shall
have publicly announced that it has under surveillance or review its
rating of the Securities or any of the Company's other debt securities.
(h) Additional Documents. At Closing Time, counsel for the
Underwriters 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
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Company and each Guarantor in connection with the issuance and sale of
the Securities as herein contemplated shall be satisfactory in form
and substance to the Representative(s) and counsel for the
Underwriters.
(i) 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 Representative(s) 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 Underwriters. The Company and each Guarantor,
jointly and severally, agrees to indemnify and hold harmless each Underwriter
and each person, if any, who controls any Underwriter within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 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), including the Rule
430A Information and the Rule 434 Information, if applicable, or the
omission or alleged omission therefrom of a material fact required to
be stated therein or necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged untrue
statement of a material fact included in any preliminary prospectus or
the Prospectus (or any amendment or supplement thereto), or the
omission or alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission; provided
that (subject to Section 6(d) below) any such settlement is effected
with the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by Xxxxxxx
Xxxxx), 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
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or expense to the extent arising out of any untrue statement or omission or
alleged untrue statement or omission made in reliance upon and in conformity
with written information furnished to the Company by any Underwriter through
Xxxxxxx Xxxxx expressly for use in the Registration Statement (or any amendment
thereto), including the Rule 430A Information and the Rule 434 Information, if
applicable, or any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto).
(b) Indemnification of Company, Guarantors, Directors and Officers.
Each Underwriter severally agrees to indemnify and hold harmless the Company and
each Guarantor, their directors, each of their officers who signed the
Registration Statement, and each person, if any, who controls the Company or any
Guarantor within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act against any and all loss, liability, claim, damage and expense
described in the indemnity contained in subsection (a) of this Section, as
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any
amendment thereto), including the Rule 430A Information and the Rule 434
Information, if applicable, or any preliminary prospectus or the Prospectus (or
any amendment or supplement thereto) in reliance upon and in conformity with
written information furnished to the Company by such Underwriter through Xxxxxxx
Xxxxx expressly for use in the Registration Statement (or any amendment thereto)
or such preliminary prospectus or the Prospectus (or any amendment or supplement
thereto).
(c) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability that it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by Xxxxxxx Xxxxx, and, in
the case of parties indemnified pursuant to Section 6(b) above, counsel to the
indemnified parties shall be selected by the Company. An indemnifying party may
participate at its own expense in the defense of any such action; provided,
however, that counsel to the indemnifying party shall not (except with the
consent of the indemnified party) also be counsel to the indemnified party. In
no event shall the indemnifying parties be liable for fees and expenses of more
than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or Section
7 hereof (whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not include
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a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(ii) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
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 and the Guarantors on the one hand and the Underwriters 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 and
the Guarantors on the one hand and of the Underwriters on the other hand in
connection with the statements or omissions which resulted in such losses,
liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
The relative benefits received by the Company and the Guarantors on the
one hand and the Underwriters 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 (before deducting expenses) received by
the Company and the total underwriting discount received by the Underwriters, in
each case as set forth on the cover of the Prospectus, or, if Rule 434 is used,
the corresponding location on the Term Sheet, bear to the aggregate initial
public offering price of the Securities as set forth on such cover.
The relative fault of the Company and the Guarantors on the one hand
and the Underwriters on the other hand shall be determined by reference to,
among other things, whether any such untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the Company or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Company, the Guarantors and the Underwriters agree that it would
not be just and equitable if contribution pursuant to this Section 7 were
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation
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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 investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall
be required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of any such untrue or
alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 0000 Xxx) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each director of the Company or any Guarantor, each officer of the Company or
any Guarantor who signed the Registration Statement, and each person, if any,
who controls the Company or any Guarantor within the meaning of Section 15 of
the 1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as the Company and the Guarantors. The Underwriters' respective
obligations to contribute pursuant to this Section 7 are several in proportion
to the principal amount of Securities set forth opposite their respective names
in Schedule A hereto and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company or any Guarantor
submitted pursuant hereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or
controlling person, or by or on behalf of the Company or any Guarantor, and
shall survive delivery of the Securities to the Underwriters.
SECTION 9. Termination of Agreement.
(a) Termination; General. The Representative(s) 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 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, or (ii) if there has occurred any material adverse
change in the financial markets in the United States, any outbreak of
hostilities or
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escalation thereof or other calamity or crisis or any change or development
involving a prospective change in national or international political, financial
or economic conditions, in each case the effect of which is such as to make it,
in the judgment of the Representative(s), 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 Nasdaq National Market, 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 except as provided in Section 4 hereof, and provided further that Sections
1, 6, 7 and 8 shall survive such termination and remain in full force and
effect.
SECTION 10. Default by One or More of the Underwriters. If one or
more of the Underwriters shall fail at Closing Time to purchase the Securities
that it or they are obligated to purchase under this Agreement (the "Defaulted
Securities"), the Representative(s) shall have the right, within 24 hours
thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth; if, however, the Representative(s) shall not have
completed such arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10%
of the aggregate principal amount of the Securities to be purchased
hereunder, each of the non-defaulting Underwriters shall be obligated,
severally and not jointly, to purchase the full amount thereof in the
proportions that their respective underwriting obligations hereunder
bear to the underwriting obligations of all non-defaulting
Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the
aggregate principal amount of the Securities to be purchased hereunder,
this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination
of this Agreement, either the Representative(s) or the Company shall have the
right to postpone Closing Time for a period not exceeding seven days in order to
effect any required changes in the Registration Statement or Prospectus or in
any other documents or arrangements. As used herein, the term "Underwriter"
includes any person substituted for an Underwriter under this Section 10.
-20-
25
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
Underwriters shall be directed to the Representative(s) at Xxxxx Xxxxx, Xxxxx
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000 and notices to the Company or
the Guarantors shall be directed to the Company at 0000 Xxxxxxx Xxxx, Xxxxx 000,
Xxxxxxxx, Xxxxxxxx 00000, attention of Xxxx Xxxxxxxx Xxxxxxx.
SECTION 12. Parties. This Agreement shall each inure to the benefit
of and be binding upon the Underwriters, the Company, the Guarantors 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 Underwriters, the Company, the Guarantors 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
Underwriters, the Company, the Guarantors, 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 any 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.
-21-
26
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.
[signature pages follow]
-22-
27
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
between the Underwriters, the Company and the Guarantors in accordance with its
terms.
Very truly yours,
USFREIGHTWAYS CORPORATION
By /s/ XXXX XXXXXXXX XXXXXXX
------------------------------------
Name: Xxxx Xxxxxxxx Xxxxxxx
Title: Chief Executive Officer
AIRGO FREIGHT INC.
By /s/ XXXXXXXXXXX X. XXXXX
------------------------------------
Name: Xxxxxxxxxxx X. Xxxxx
Title: Vice President
XXXXX AMERICA, INC.
By /s/ XXXXXXXXXXX X. XXXXX
------------------------------------
Name: Xxxxxxxxxxx X. Xxxxx
Title: Vice President
DDE INVESTORS LLC
By /s/ XXXXXXXXXXX X. XXXXX
------------------------------------
Name: Xxxxxxxxxxx X. Xxxxx
Title: Vice President
XXXX XXXXX TRANSPORT, INC.
By /s/ XXXXXXXXXXX X. XXXXX
------------------------------------
Name: Xxxxxxxxxxx X. Xxxxx
Title: Vice President
GOLDEN EAGLE CUSTOMS BROKERS, INC.
By /s/ XXXXXXXXXXX X. XXXXX
------------------------------------
Name: Xxxxxxxxxxx X. Xxxxx
Title: Vice President
GOLDEN EAGLE GROUP, INC.
By /s/ XXXXXXXXXXX X. XXXXX
------------------------------------
Name: Xxxxxxxxxxx X. Xxxxx
Title: Vice President
GOLDEN EAGLE INTERNATIONAL
FORWARDING, INC.
By /s/ XXXXXXXXXXX X. XXXXX
------------------------------------
Name: Xxxxxxxxxxx X. Xxxxx
Title: Vice President
G.M.T. SERVICES, INC.
By /s/ XXXXXXXXXXX X. XXXXX
------------------------------------
Name: Xxxxxxxxxxx X. Xxxxx
Title: Vice President
28
XXXXX & SON CO.
By /s/ XXXXXXXXXXX X. XXXXX
------------------------------------
Name: Xxxxxxxxxxx X. Xxxxx
Title: Vice President
PROCESSORS TRADING, LTD.
By: PROCESSORS TRADING OPERATING
COMPANY, its general partner
By /s/ XXXXXXXXXXX X. XXXXX
------------------------------------
Name: Xxxxxxxxxxx X. Xxxxx
Title: Vice President
PROCESSORS TRADING OPERATING COMPANY
By /s/ XXXXXXXXXXX X. XXXXX
------------------------------------
Name: Xxxxxxxxxxx X. Xxxxx
Title: Vice President
PROCESSORS UNLIMITED COMPANY, LTD.
By: PROCESSORS UNLIMITED OPERATING
COMPANY, its general partner
By /s/ XXXXXXXXXXX X. XXXXX
------------------------------------
Name: Xxxxxxxxxxx X. Xxxxx
Title: Vice President
PROCESSORS UNLIMITED OPERATING
COMPANY
By /s/ XXXXXXXXXXX X. XXXXX
------------------------------------
Name: Xxxxxxxxxxx X. Xxxxx
Title: Vice President
USF BESTWAY INC.
By /s/ XXXXXXXXXXX X. XXXXX
------------------------------------
Name: Xxxxxxxxxxx X. Xxxxx
Title: Vice President
USF BESTWAY LEASING INC.
By /s/ XXXXXXXXXXX X. XXXXX
------------------------------------
Name: Xxxxxxxxxxx X. Xxxxx
Title: Vice President
USF CARIBBEAN SERVICES INC.
By /s/ XXXXXXXXXXX X. XXXXX
------------------------------------
Name: Xxxxxxxxxxx X. Xxxxx
Title: Vice President
USF COAST CONSOLIDATORS INC.
By /s/ XXXXXXXXXXX X. XXXXX
------------------------------------
Name: Xxxxxxxxxxx X. Xxxxx
Title: Vice President
29
USF DISTRIBUTION SERVICES INC.
By /s/ XXXXXXXXXXX X. XXXXX
------------------------------------
Name: Xxxxxxxxxxx X. Xxxxx
Title: Vice President
USF XXXXX INC.
By /s/ XXXXXXXXXXX X. XXXXX
------------------------------------
Name: Xxxxxxxxxxx X. Xxxxx
Title: Vice President
USF HOLLAND INC.
By /s/ XXXXXXXXXXX X. XXXXX
------------------------------------
Name: Xxxxxxxxxxx X. Xxxxx
Title: Vice President
USF LOGISTICS INC.
By /s/ XXXXXXXXXXX X. XXXXX
------------------------------------
Name: Xxxxxxxxxxx X. Xxxxx
Title: Vice President
USF LOGISTICS (IMC) INC.
By /s/ XXXXXXXXXXX X. XXXXX
------------------------------------
Name: Xxxxxxxxxxx X. Xxxxx
Title: Vice President
USF LOGISTICS (TRICOR) INC.
By /s/ XXXXXXXXXXX X. XXXXX
------------------------------------
Name: Xxxxxxxxxxx X. Xxxxx
Title: Vice President
USF LOGISTICS SERVICES INC.
By /s/ XXXXXXXXXXX X. XXXXX
------------------------------------
Name: Xxxxxxxxxxx X. Xxxxx
Title: Vice President
USF NEWCO INC.
By /s/ XXXXXXXXXXX X. XXXXX
------------------------------------
Name: Xxxxxxxxxxx X. Xxxxx
Title: Vice President
USF PROPERTIES NEW JERSEY INC.
By /s/ XXXXXXXXXXX X. XXXXX
------------------------------------
Name: Xxxxxxxxxxx X. Xxxxx
Title: Vice President
USF REDDAWAY INC.
By /s/ XXXXXXXXXXX X. XXXXX
------------------------------------
Name: Xxxxxxxxxxx X. Xxxxx
Title: Vice President
30
USF RED STAR INC.
By /s/ XXXXXXXXXXX X. XXXXX
------------------------------------
Name: Xxxxxxxxxxx X. Xxxxx
Title: Vice President
USF SALES CORPORATION
By /s/ XXXXXXXXXXX X. XXXXX
------------------------------------
Name: Xxxxxxxxxxx X. Xxxxx
Title: Vice President
USF SEKO WORLDWIDE INC.
By /s/ XXXXXXXXXXX X. XXXXX
------------------------------------
Name: Xxxxxxxxxxx X. Xxxxx
Title: Vice President
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
CREDIT SUISSE FIRST BOSTON CORPORATION
By: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By /s/ XXXXXXX X. XXXXXX
-------------------------------
Authorized Signatory
For themselves and as Representative(s) of the other Underwriters named in
Schedule A hereto.
31
SCHEDULE A
Principal
Amount of
Name of Underwriter Notes
------------------- -----
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated........................................ $ 80,000,000
Credit Suisse First Boston Corporation..................... $ 20,000,000
-------------
Total $ 100,000,000
=============
32
SCHEDULE B
USFREIGHTWAYS CORPORATION
$100,000,000 Guaranteed Notes due May 1, 2009
1. The initial public offering price of the Notes shall be 99.192% of the
principal amount thereof, plus accrued interest, if any, from the date of
issuance.
2. The purchase price to be paid by the Underwriters for the Notes shall be
98.542% of the principal amount thereof.
3. The interest rate on the Notes shall be 6 1/2% per annum.
33
SCHEDULE C
List of Guarantors
------------------
Airgo Freight Inc.
Xxxxx America, Inc.
DDE Investors LLC
Xxxx Xxxxx Transport, Inc.
Golden Eagle Customs Brokers, Inc.
Golden Eagle Group, Inc.
Golden Eagle International Forwarding, Inc.
G.M.T. Services, Inc.
Xxxxx & Son Co.
Processors Trading, Ltd.
Processors Trading Operating Company
Processors Unlimited Company, Ltd.
Processors Unlimited Operating Company
USF Bestway Inc.
USF Bestway Leasing Inc.
USF Caribbean Services Inc.
USF Coast Consolidators Inc.
USF Distribution Services Inc.
USF Xxxxx Inc.
USF Holland Inc.
USF Logistics Inc.
USF Logistics (IMC) Inc.
USF Logistics (Tricor) Inc.
USF Logistics Services Inc.
USF Newco Inc.
USF Properties New Jersey Inc.
USF Reddaway Inc.
USF Red Star Inc.
USF Sales Corporation
USF Seko Worldwide Inc.
34
Exhibit A
FORM OF OPINION OF COMPANY'S COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(i The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Delaware.
(ii The Company has corporate power and authority to own,
lease and operate its properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under the Purchase
Agreement.
(iii The Company is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in which such
qualification is required, except where the failure so to qualify or to be in
good standing would not result in a Material Adverse Effect.
(iv The authorized, issued and outstanding capital stock of
the Company is as set forth in the Prospectus in the column entitled "Actual"
under the caption "Capitalization" (except for subsequent issuances, if any,
pursuant to the Purchase Agreement or pursuant to reservations, agreements or
employee benefit plans referred to in the Prospectus or pursuant to the exercise
of convertible securities or options referred to in the Prospectus); the shares
of issued and outstanding capital stock of the Company have been duly authorized
and validly issued and are fully paid and non-assessable; and none of the
outstanding shares of capital stock of the Company was issued in violation of
the preemptive or other similar rights of any securityholder of the Company.
(v Each Guarantor (as such term is defined in the Purchase
Agreement) (A) has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, (B) has corporate power and authority to own, lease and operate
its properties and to conduct its business as described in the Prospectus and to
enter into and perform its obligations under the Purchase Agreement and (C) is
duly qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is required, except
where the failure so to qualify or to be in good standing would not result in a
Material Adverse Effect (as such term is defined in the Purchase Agreement); all
of the issued and outstanding capital stock of each Guarantor 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.
(vi The Purchase Agreement has been duly authorized,
executed and delivered by the Company and each Guarantor.
35
(vii The Indenture has been duly authorized, executed and
delivered by the Company and each Guarantor and (assuming the due authorization,
execution and delivery thereof by the Trustee) constitutes a valid and binding
agreement of the Company and each Guarantor, enforceable against the Company and
each Guarantor in accordance with its terms, except as the enforcement thereof
may be limited by bankruptcy, insolvency (including, without limitation, all
laws relating to fraudulent transfers), reorganization, moratorium or similar
laws affecting enforcement of creditors' rights generally and except as
enforcement thereof is subject to general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity or at law).
(viii The Notes are in the form contemplated by the Indenture,
have been duly authorized by the Company and, assuming that the Notes have been
duly authenticated by the Trustee in the manner described in its certificate
delivered to you today (which fact such counsel need not determine by an
inspection of the Notes), the Notes have been duly executed, issued and
delivered by the Company and constitute valid and binding obligations of the
Company, enforceable against the Company in accordance with their terms; the
Guarantees are in the form contemplated by the Indenture, have been duly
authorized by each of the Guarantors and have been duly executed, issued and
delivered by each of the Guarantors and constitute valid and binding obligations
of each of the Guarantors, enforceable against the Guarantors in accordance with
their terms; except as the enforcement of the Securities may be limited by
bankruptcy, insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or similar laws affecting
enforcement of creditors' rights generally and except as enforcement thereof is
subject to general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law), and will be entitled to the
benefits of the Indenture.
(ix The Indenture has been duly qualified under the 1939
Act.
(x The Securities and the Indenture conform as to legal
matters in all material respects to the descriptions thereof contained in the
Prospectus.
(xi The Registration Statement, including any Rule 462(b)
Registration Statement, has been declared effective under the 1933 Act; any
required filing of the Prospectus pursuant to Rule 424(b) has been made in the
manner and within the time period required by Rule 424(b); and, to the best of
our knowledge, no stop order suspending the effectiveness of the Registration
Statement or any Rule 462(b) Registration Statement has been issued under the
1933 Act and no proceedings for that purpose have been instituted or are pending
or threatened by the Commission.
(xii The Registration Statement, including any Rule 462(b)
Registration Statement, the Rule 430A Information and the Rule 434 Information,
as applicable, 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
36
supporting schedules included therein or omitted therefrom, and the Trustee's
Statement of Eligibility on Form T-1 (the "Form T-1"), as to which we need
express no opinion) complied as to form in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations.
(xiii 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 need express no opinion),
when they were filed with the Commission complied as to form in all material
respects with the requirements of the 1934 Act and the rules and regulations of
the Commission thereunder.
(xiv To the best of our knowledge, except as disclosed in
the Prospectus, there is not pending or threatened any action, suit, proceeding,
inquiry or investigation, to which the Company or any Guarantor is a party, or
to which the property of the Company or any Guarantor is subject, before or
brought by any court or governmental agency or body, domestic or foreign, that
might reasonably be expected to result in a Material Adverse Effect, or that
might reasonably be expected to materially and adversely affect the properties
or assets thereof or the consummation of the transactions contemplated in the
Purchase Agreement or the performance by the Company and each Guarantor of its
respective obligations thereunder.
(xv The information in "Description of the Guaranteed
Notes" and in the Registration Statement under Item 15, to the extent that it
constitutes matters of law, summaries of legal matters, the Company's Restated
Certificate of Incorporation and By-laws or legal proceedings, or legal
conclusions, has been reviewed by us and is correct in all material respects
(xvi To the best of our knowledge, there are no statutes or
regulations that are required to be described in the Prospectus that are not
described as required.
(xvii All descriptions in the Registration Statement of
contracts and other documents to which the Company or the Guarantors 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.
(xviii To the best of our knowledge, neither the Company nor
any Guarantor is in violation of its charter, certificate or articles of
incorporation or by-laws and no default by the Company or any Guarantor 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.
37
(xix 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 1933
Act and the 1933 Act Regulations, which have been obtained, or as may be
required under the securities or blue sky laws of the various states and except
for the qualification of the Indenture under the 1939 Act, or other than the
Federal Highway Administration ("FHA"), the Department of Transportation ("DOT")
or any applicable state highway and transportation agency, as to which we need
express no opinion) is necessary or required in connection with the due
authorization, execution and delivery of the Purchase Agreement or the due
execution, delivery or performance of the Indenture by the Company or for the
offering, issuance, sale or delivery of the Securities.
(xx The execution, delivery and performance of the
Purchase Agreement, the Indenture and the Securities and the consummation of the
transactions contemplated in the Purchase Agreement and in the Registration
Statement (including the issuance and sale of the Securities and the use of the
proceeds from the sale of the Securities as described in the Prospectus under
the caption "Use Of Proceeds") and compliance by the Company and each Guarantor
with its respective obligations under the Purchase Agreement, the Indenture and
the Securities do not and will not, whether with or without the giving of notice
or lapse of time or both, conflict with or constitute a breach of, or default or
Repayment Event (as defined in Section 1(a)(xiii) of the Purchase Agreement)
under or result in the creation or imposition of any lien, charge or encumbrance
upon any property or assets of the Company or any Guarantor pursuant to any
contract, indenture, mortgage, deed of trust, loan or credit agreement, note,
lease or any other agreement or instrument, known to us, to which the Company or
any Guarantor 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 Guarantor is subject (except
for such conflicts, breaches or defaults or liens, charges or encumbrances that
would not have a Material Adverse Effect), nor will such action result in any
violation of the provisions of the charter, certificate or articles of
incorporation or by-laws of the Company or any Guarantor, or any applicable
Illinois law, United States Federal law or regulation or Delaware corporate law
(except we do not opine on highway or transportation laws relating to the
regulation of the Company, its Guarantors or their businesses by the FHA, the
DOT or any applicable state highway and transportation agency), having
jurisdiction over the Company or any of its Guarantors or any of their
properties.
(xxi Neither the Company nor any Guarantor is an
"investment company" or an entity "controlled" by an "investment company," as
such terms are defined in the 1940 Act.
Nothing has come to our attention that would lead us to believe that
the Registration Statement or any amendment thereto, including the Rule 430A
Information and Rule 434 Information (if applicable), (except for financial
statements and schedules and other financial data included or incorporated by
reference therein or omitted therefrom and the Form T-1, as to which we need
make no statement), at the time such Registration Statement or any such
amendment became effective, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading or that the
38
Prospectus or any amendment or supplement thereto (except for financial
statements and schedules and other financial data included or incorporated by
reference therein or omitted therefrom and the Form T-1, as to which we need
make no statement), at the time the Prospectus was issued, at the time any such
amended or supplemented prospectus was issued or at the Closing Time, included
or includes an untrue statement of a material fact or omitted or omits to state
a material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
In rendering such opinion, such counsel may rely, as to matters of fact
(but not as to legal conclusions), to the extent they deem proper, on
certificates of responsible officers of the Company and public officials. Such
opinion shall not state that it is to be governed or qualified by, or that it is
otherwise subject to, any treatise, written policy or other document relating to
legal opinions, including, without limitation, the Legal Opinion Accord of the
ABA Section of Business Law (1991).
39
FORM OF OPINION OF COMPANY'S
VICE PRESIDENT AND GENERAL COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(B)
(i No consent, approval, authorization, order, registration
or qualification of the FHA, the DOT or any applicable state highway and
transportation agency having jurisdiction over the Company or any of the
Guarantors is required with respect to the due authorization, execution and
delivery of the Purchase Agreement or for the offering, issuance, sale or
delivery of the Securities (such counsel may rely on the opinions of local
counsel).
(ii The execution, delivery and performance of the Purchase
Agreement and the consummation of the transactions contemplated in the Purchase
Agreement and in the Registration Statement (including the issuance and sale of
the Securities and the use of the proceeds from the sale of the Securities as
described in the Prospectus under the caption "Use Of Proceeds") and compliance
by the Company and each Guarantor with its respective obligations under the
Purchase Agreement do not and will not result in a violation of any law,
ordinance, administrative or governmental rule or regulation or court decree
applicable to it of the FHA, the DOT or any applicable state highway and
transportation agency.
(iii Each Guarantor to the best of my knowledge holds all
licenses, franchises, permits, authorizations, approvals and orders of and from
all governmental regulatory officials and bodies, including the FHA, the DOT or
any applicable state highway and transportation agencies, that are necessary to
own or lease their properties and conduct their businesses as described in the
Prospectus and are material to the consolidated financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, taken as a whole.
(iv To the best of my knowledge and other than as set forth
in the Prospectus, neither the Company nor any of the Guarantors is in violation
of any law, ordinance, administrative or governmental rule or regulation or
court decree applicable to it of the FHA, the DOT or any applicable state
highway and transportation agency, or is not in compliance with any term or
condition of, or has failed to obtain, any license, permit, franchise or other
administrative or governmental authorization of the FHA, the DOT or any
applicable state highway and transportation agency, which violation,
non-compliance or failure to obtain would individually or in the aggregate have
a material adverse effect on the consolidated financial position, shareholder's
equity or results or operations of the Company and its subsidiaries, taken as a
whole.
40
Annex A
FORM OF ACCOUNTANTS' COMFORT LETTER PURSUANT TO SECTION 5(e)
We are independent public accountants with respect to the Company within the
meaning of the 1933 Act and the applicable published 1933 Act Regulations
(i in our opinion, the audited financial statements and the
related financial statement schedules included or incorporated by
reference in the Registration Statement and the Prospectus comply as to
form in all material respects with the applicable accounting
requirements of the 1933 Act and the published rules and regulations
thereunder;
(ii on the basis of procedures (but not an examination in
accordance with generally accepted auditing standards) consisting a
reading of the latest available unaudited interim consolidated
financial statements of the Company, a reading of the minutes of all
meetings of the stockholders and directors of the Company and its
subsidiaries and the committees of the Company's Board of Directors
since January 1, 1999, inquiries of certain officials of the Company
responsible for financial and accounting matters, a review of interim
financial information in accordance with standards established by the
American Institute of Certified Public Accountants in Statement on
Auditing Standards No. 71, Interim Financial Information ("SAS 71"),
with respect to the three month periods ended March 31, 1998 and March
31, 1999 and such other inquiries and procedures as may be specified in
such letter, nothing came to our attention that caused us to believe
that:
(A at April __, 1999 there was any change in the
capital stock, increase in consolidated long-term debt, or any
decreases in consolidated net current assets or stockholder's
equity of the Company as compared with amounts shown in the
latest balance sheet included in the Registration Statement,
except in each case for changes, decreases or increases that
the Registration Statement discloses have occurred or may
occur; or
(B for the period from December 31, 1998 to April __,
1999, there were any decreases in consolidated net sales or
operating profit, or in the total or per share amounts of
consolidated net income, in each case as compared with the
comparable period in the preceding year, except in each case
for any decreases that the Registration Statement discloses
have occurred or may occur and except as disclosed herein;
(iii based upon the procedures set forth in clause (ii) above
and a reading of the Selected Consolidated Financial Data incorporated
by reference in the Registration Statement and a reading of the
financial statements from which such data were derived, nothing came to
our attention that caused us to believe that the Selected Consolidated
Financial Data incorporated by reference in the Registration Statement
do not comply as to form in all
41
material respects with the disclosure requirements of Item 301 of
Regulation S-K of the 1933 Act, that the amounts included in the
Selected Consolidated Financial Data are not in agreement with the
corresponding amounts in the audited consolidated financial statements
for the respective periods or that the financial statements not
included in the Registration Statement from which certain of such data
were derived are not in conformity with generally accepted accounting
principles;
(iv we have compared the information in the Registration
Statement under selected captions with the disclosure requirements of
Regulation S-K of the 1933 Act and on the basis of limited procedures
specified herein, nothing came to our attention that caused us to
believe that this information does not comply as to form in all
material respects with the disclosure requirements of Items 302, 402
and 503(d), respectively, of Regulation S-K;
(v based upon the procedures set forth in clause (ii)
above, a reading of the unaudited consolidated financial statements of
the Company for the period ended March 31, 1999 that have not been
included in the Registration Statement and a review of such financial
statements in accordance with SAS 71, nothing came to our attention
that caused us to believe that the unaudited amounts for consolidated
net sales or operating profit, or in the total or per share amounts of
consolidated net income for the period ended March 31, 1999 do not
agree with the amounts set forth in the unaudited consolidated
financial statements for those periods or that such unaudited amounts
were not determined on a basis substantially consistent with that of
the corresponding amounts in the audited consolidated financial
statements; and
(vi in addition to the procedures referred to in clause (ii)
above, we have performed other procedures, not constituting an audit,
with respect to certain amounts, percentages, numerical data and
financial information appearing in the Registration Statement, which
are specified herein, and have compared certain of such items with, and
have found such items to be in agreement with, the accounting and
financial records of the Company.
