Exhibit 1.1
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COMDISCO, INC.
(a Delaware corporation)
Senior Debt Securities
UNDERWRITING AGREEMENT
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February 7, 1996
▇▇▇▇▇ ▇▇▇▇▇▇ INC.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ BROTHERS INC.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED
World Financial Center
North Tower
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
NATIONSBANC CAPITAL MARKETS, INC.
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
SALOMON BROTHERS INC
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Comdisco, Inc. (the "Company") proposes to issue and sell from time to
time its Senior Debt Securities ("Debt Securities") in one or more offerings on
the terms to be determined at the time of sale. The Debt Securities will be
issued under an indenture dated as of December 1, 1995 (the "Indenture"),
between the Company and Yasuda Bank and Trust Company (U.S.A.), as Trustee.
Each issue of Debt Securities may vary, where applicable, as to aggregate
principal amount, maturity, interest rate or rates and timing of payments
thereof, redemption provisions and sinking fund requirements, if any, exercise
provisions and any other variable terms which the Indenture contemplates may be
set forth in the Debt Securities as issued from time to time. As used herein,
"Securities" shall mean the securities covered by the applicable Terms Agreement
(as defined below), and "you" or "your", unless the context otherwise requires,
shall mean such of the parties as are named in the applicable Terms Agreement.
Whenever the Company determines to make an offering of Securities to
be made through one or more of you, it will enter into an agreement (a "Terms
Agreement") providing for the sale of such Securities to, and the purchase and
offering thereof by, one or more of you and such other underwriters, if any,
selected by you as have authorized you to enter into such Terms Agreement on
their behalf (such firms constituting the "Underwriters" with respect to such
Terms Agreement and the securities specified therein; the term "Underwriters"
shall include you and/or those underwriters named therein, whether acting alone
in the sale of Securities or as members of an underwriting syndicate, and shall
also include any underwriter substituted as hereinafter provided in Section 10).
It is understood that the Company may from time to time authorize the issuance
of additional securities and that such securities may be distributed through the
Underwriters pursuant to the terms of this Agreement as though the issuance of
such securities was authorized as of the date hereof.
The Terms Agreement, which shall be substantially in the form of
Exhibit A hereto, may take the form of an exchange of any standard form of
written telecommunication between you and the Company. The Terms Agreement
relating to each offering of Securities shall specify such applicable
information as is indicated in Exhibit A hereto. Each offering of Securities
will be governed by this Agreement, as supplemented by the applicable Terms
Agreement, and this Agreement and such Terms Agreement shall inure to the
benefit of and be binding upon each Underwriter participating in the offering of
such Securities.
The Securities will be represented by either a global security
registered in the name of a nominee of The Depository Trust Company (the
"Depositary"), as Depositary (a "Book-Entry Note"), or a certificate issued in
definitive form, as determined and agreed to by the Company and the Underwriters
and specified in the applicable Terms Agreement. Beneficial interests in Book-
Entry Notes will be shown on, and transfers thereof will be effected only
through, records maintained by the Depositary and its participants. Book-Entry
Notes will not be issuable in definitive form, except under the circumstances
described in the applicable prospectus supplement relating to the Securities.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 33-63823), such
registration statement relating to the Securities and the offering thereof from
time to time in accordance with Rule 415 under the Securities Act of 1933 (the
"1933 Act"), and has filed such amendments thereto as may have been required to
the date hereof. Such registration statement as amended has been declared
effective by the Commission, and the Indenture has been qualified under the
Trust Indenture Act of 1939 (the "1939 Act"). Such registration statement as
amended and the prospectus relating to the sale of Securities by the Company
constituting a part thereof, including all documents incorporated therein by
reference, as from time to time amended or supplemented pursuant to the
Securities Exchange Act of 1934 (the "1934 Act"), the 1933 Act or otherwise, are
collectively referred to herein as the "Registration Statement" and the
"Prospectus", respectively, except that if any revised prospectus shall be
provided to you by the Company for use in connection with the solicitation of
offers to purchase the Securities which differs from the Prospectus on file at
the Commission at the time the Registration Statement becomes effective (whether
or not such revised prospectus is required to be filed by the Company pursuant
to Rule 424(b) under the rules and regulations under the 1933 Act (the "1933 Act
Regulations"), the term "Prospectus" shall refer to such revised prospectus from
and after the time it is first provided to the Underwriters for such use);
provided, however, that a supplement of the Prospectus contemplated by Section
3(a) (a "Prospectus Supplement") shall be deemed to have supplemented the
Prospectus only with respect to the offering of Securities to which it relates.
Section 1. Representations and Warranties. (a) The Company
represents and warrants to each of you as of the date hereof, and to each
Underwriter named in a Terms Agreement as of the date thereof (in each case the
"Representation Date"), as follows:
(i) Due Incorporation and Qualification. The Company has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the State of Delaware with corporate power and authority
to own, lease and operate its properties and conduct its business as
described in the Prospectus; and the Company is duly qualified as a foreign
corporation to transact business and is in good standing in each
jurisdiction in which its ownership or lease of substantial properties or
the conduct of its business requires such qualification and in which the
failure to so qualify and be in good standing would materially adversely
affect the business or financial condition of the Company and its
subsidiaries considered as one enterprise.
(ii) Subsidiaries. No subsidiary of the Company is a "significant
subsidiary" as defined in Rule 405 of Regulation C of the 1933 Act
Regulations.
(iii) Registration Statement and Prospectus. At the time the
Registration Statement became effective, the Registration Statement
complied, and as of the applicable Representation Date will comply, in all
material respects with the requirements of the 1933 Act, the 1933 Act
Regulations and the 1939 Act. The Registration Statement, at the time it
became effective did not, and as of the applicable Representation Date will
not, contain
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an untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading. The Prospectus, at the time the Registration Statement
became effective (unless the term "Prospectus" refers to a prospectus which
has been provided to the Underwriters by the Company for use in connection
with the offering of Securities which differs from the Prospectus on file
at the Commission at the time the Registration Statement became effective,
in which case at the time it is first provided to the Underwriters for such
use), did not, and as of the applicable Representation Date will not,
contain an untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that 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 the Underwriters expressly for use
in the Registration Statement or Prospectus or that part of the
Registration Statement which shall constitute the Statement of Eligibility
under the 1939 Act and the rules and regulations of the Commission
promulgated thereunder.
(iv) Incorporated Documents. The documents incorporated by reference
in 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 thereunder (the
"1934 Act Regulations"), and, when read together and with the other
information in the Prospectus, 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, in the light
of the circumstances under which they were or are made, not misleading;
provided, however, that the representations and warranties in this
subsection shall not apply to any statements and/or omissions from the
Prospectus made in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter expressly for use in
the Prospectus as amended or supplemented.
(v) Accountants. To the best of the Company's knowledge, the
accountants who certified the financial statements included or incorporated
by reference in the Prospectus are independent public accountants as
required by the 1933 Act and the 1933 Act Regulations.
(vi) Financial Statements. The consolidated financial statements of
the Company and its subsidiaries included or incorporated by reference in
the Prospectus present fairly the financial position of the Company and its
subsidiaries as at the dates indicated and the results of their operations
for the periods specified; except as stated therein, said financial
statements have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis throughout the period
or periods involved.
(vii) Material Changes or Material Transactions. Since the respective
dates as of which information is given in the Registration Statement and
the Prospectus, except as otherwise stated therein or contemplated thereby,
(a) there has been no material adverse change, or any material development
known to management which is likely to result in a material adverse change,
in the condition, financial or otherwise, of the Company and its
subsidiaries considered as one enterprise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary course
of business, and (b) there have been no transactions considered material to
the Company and its subsidiaries considered as one enterprise entered into
by the Company or any of its subsidiaries other than those in the ordinary
course of business.
(viii) No Defaults, Breaches, Liens; Regulatory Approvals. The
Company is not in violation of its charter or in default in the performance
or observance of any material obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, loan agreement, note, lease
or other instrument to which it is a party or by which it or any of its
properties may be bound; and the execution and delivery of this Agreement,
the Indenture and each applicable Terms Agreement, if any, and the
consummation of the transactions contemplated herein and therein have been
duly authorized by all necessary corporate action and
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will not conflict with or constitute a breach of, or default under, or
result in the creation or imposition of any lien, charge or encumbrance
upon any property or assets of the Company pursuant to any contract,
indenture, mortgage, loan agreement, note, lease or other instrument to
which the Company is a party or by which it may be bound or to which any of
the property or assets of the Company is subject, nor will such action
result in any violation of the provisions of the charter or by-laws of the
Company or, to the best of its knowledge, any law, administrative
regulation or administrative or court order or decree; and no consent,
approval, authorization, order or decree of any court or governmental
agency or body is required for the consummation by the Company of the
transactions contemplated by this Agreement, except such as may be required
under the 1933 Act, the 1939 Act, the 1933 Act Regulations or state
securities or Blue Sky laws.
(ix) Legal Proceedings; Contracts. Except as may be set forth in the
Prospectus, there is no action, suit or proceeding before or by any court
or governmental agency or body, domestic or foreign, now pending, with
respect to which the Company has been served, or, to the knowledge of the
Company, threatened against or affecting, the Company or any of its
subsidiaries, which might, in the opinion of the Company, result in any
material adverse change in the condition, financial or otherwise, of the
Company and its subsidiaries considered as one enterprise, or in the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, or might materially and
adversely affect the properties or assets thereof or might materially and
adversely affect the consummation of this Agreement or any Terms Agreement;
and there are no material contracts or documents of the Company or any of
its subsidiaries which are required to be filed as exhibits to the
Registration Statement by the 1933 Act or by the 1933 Act Regulations which
have not been so filed.
(x) Material Licenses and Other Authorizations. The Company owns or
possesses or has obtained all governmental licenses, permits, consents,
orders, approvals and other authorizations necessary to lease or own, as
the case may be, and to operate its properties and to carry on its business
as presently conducted except where the failure to possess any such
licenses, permits, consents, orders, approvals or authorizations would not
have a material adverse effect on the financial condition, or the earnings
or business of the Company.
(xi) Trademarks, Service Marks and Trade Names. The Company owns or
possesses, or can acquire on reasonable terms, adequate trademarks, service
marks and trade names necessary to conduct the business now operated by it,
and the Company has not received any notice of infringement of or conflict
with asserted rights of others with respect to any trademarks, service
marks or trade names which, singly or in the aggregate, if the subject of
an unfavorable decision, ruling or finding, would materially adversely
affect the conduct of the business, operations, financial condition or
income of the Company and its subsidiaries considered as one enterprise.
(xii) Authorization and Validity of the Securities. The Securities
have been duly authorized for issuance and sale pursuant to this Agreement
and, when issued, authenticated and delivered pursuant to the provisions of
this Agreement and of the Indenture against payment of the consideration
therefor specified herein or in any Terms Agreement, the Securities will
constitute valid and legally binding obligations of the Company enforceable
in accordance with their terms, except as enforcement thereof may be
limited by bankruptcy, insolvency or other laws relating to or affecting
creditors' rights generally or by general equity principles, and will be
entitled to the benefits provided by the Indenture, which will be
substantially in the form heretofore delivered to the Underwriters; and the
Securities and the Indenture conform in all material respects to all
statements relating thereto contained in the Prospectus.
(b) Additional Certifications. Any certificate signed by any officer of
the Company and delivered to you or to counsel for the Underwriters in
connection with an offering of Securities shall be deemed a representation and
warranty by the Company to each Underwriter as to the matters covered thereby.
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Section 2. Purchase and Sale. The several commitments of the Underwriters
to purchase Securities pursuant to any Terms Agreements shall be deemed to have
been made on the basis of the representations and warranties herein contained
and shall be subject to the terms and conditions herein set forth.
Payment of the purchase price for, and delivery of, any Securities to be
purchased by the Underwriters shall be made (i) in the case of Securities in
registered form, at the office of ▇▇▇▇▇ & ▇▇▇▇, One World Trade Center, 58th
Floor, New York, New York 10048, or (ii) in the case of Securities in bearer
form, at the office of ▇▇▇▇▇ & Wood, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇ or at such other place as shall be agreed upon by you and the Company,
at 10:00 A.M., New York City time, on the third business day (unless postponed
in accordance with the provisions of Section 10) following the date of the
applicable Terms Agreement or such other time as shall be agreed upon by you and
the Company (each such time and date being referred to as a "Closing Time").
Payment shall be made to the Company by certified or official bank check or
checks in New York Clearing House or similar next day funds payable to the order
of the Company against delivery to you for the respective accounts of the
Underwriters of the Securities to be purchased by them (unless such Securities
are issuable only in the form of a single global Security registered in the name
of a depository or a nominee of a depository, in which event the Underwriters'
interest in such global certificate shall be noted in a manner satisfactory to
the Underwriters and their counsel). Such Securities shall be in such
authorized denominations and registered in such names as you may request in
writing at least two business days prior to the applicable Closing Time. Such
Securities, which may be in temporary form, will be made available for
examination and packaging by you on or before the first business day prior to
Closing Time.
If authorized by the applicable Terms Agreement, the Underwriters named
therein may solicit offers to purchase Securities from the Company pursuant to
delayed delivery contracts ("Delayed Delivery Contracts") substantially in the
form of Exhibit B hereto with such changes therein as the Company may approve.
As compensation for arranging Delayed Delivery Contracts, the Company will pay
at Closing Time, for the accounts of the Underwriters, a fee relating to the
principal amount of Securities for which Delayed Delivery Contracts are made at
Closing Time as is specified in the applicable Terms Agreement. Any Delayed
Delivery Contracts are to be with institutional investors of the types set forth
in the Prospectus. At Closing Time the Company will enter into Delayed Delivery
Contracts (for not less than the minimum principal amount of Securities per
Delayed Delivery Contract specified in the applicable Terms Agreement) with all
purchasers proposed by the Underwriters and previously approved by the Company
as provided below, but not for an aggregate principal amount of Securities in
excess of that specified in the applicable Terms Agreement. The Underwriters
will not have any responsibility for the validity or performance of Delayed
Delivery Contracts.
You are to submit to the Company, at least three business days prior to
Closing Time, the names of any institutional investors with which it is proposed
that the Company will enter into Delayed Delivery Contracts and the principal
amount of Securities to be purchased by each of them, and the Company will
advise you, at least two business days prior to Closing Time, of the names of
the institutions with which the making of Delayed Delivery Contracts is approved
by the Company and the principal amount of Securities to be covered by each such
Delayed Delivery Contract.
The principal amount of Securities agreed to be purchased by the respective
Underwriters pursuant to the applicable Terms Agreement shall be reduced by the
principal amount of Securities covered by Delayed Delivery Contracts, as to each
Underwriter as set forth in a written notice delivered by you to the Company;
provided, however, that the total principal amount of Securities to be purchased
by all Underwriters shall be the total amount of Securities covered by the
applicable Terms Agreement, less the principal amount of Securities covered by
Delayed Delivery Contracts.
Section 3. Covenants of the Company. The Company covenants with each of
you, and with each Underwriter participating in the applicable offering of
Securities, as follows:
(a) Prospectus Supplements. Immediately following the execution of each
Terms Agreement, the Company will prepare a Prospectus Supplement setting forth
the principal amount of Securities covered thereby and their terms not otherwise
specified in the Indenture, the names of the Underwriters participating in the
offering and the principal amount of Securities which each severally has agreed
to purchase, the names of the Underwriters acting as co-managers in
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connection with the offering, the price at which the Securities are to be
purchased by the Underwriters from the Company, the initial public offering
price, the selling concession and reallowance, if any, any delayed delivery
arrangements, and such other information as you and the Company deem appropriate
in connection with the offering of the Securities. The Company will promptly
transmit copies of the Prospectus Supplement to the Commission for filing
pursuant to Rule 424 of the 1933 Act Regulations and will furnish to the
Underwriters named therein as many copies of the Prospectus and such Prospectus
Supplement as you shall reasonably request.
(b) Notice of Certain Events. The Company will notify each of you
immediately and confirm the notice in writing, (i) of the effectiveness of any
amendment to the Registration Statement (including any post-effective
amendment), (ii) of the mailing or the delivery to the Commission for filing of
any supplement to the Prospectus or any document to be filed pursuant to the
1934 Act which will be incorporated by reference in the Prospectus, (iii) of the
receipt of any comments from the Commission with respect to the Registration
Statement or Prospectus, (iv) 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, (v) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose. 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.
(c) Notice of Certain Proposed Filings. The Company will give you notice
of its intention to file any additional Registration Statement with respect to
the registration of additional Securities, any amendment to the Registration
Statement (including any post-effective amendment) or any amendment or
supplement to the Prospectus (including any revised Prospectus which the Company
proposes for use by you in connection with the offering of the Securities which
differs from the prospectus on file at the Commission at the time the
Registration Statement becomes effective, whether or not such revised prospectus
is required to be filed pursuant to Rule 424(b) of the 1933 Act Regulations),
whether by the filing of documents pursuant to the 1934 Act, the 1933 Act or
otherwise, and will furnish you with copies of any such amendment or supplement
or other documents proposed to be filed or used a reasonable time in advance of
such filing or use, and will not file any such amendment or supplement or other
documents in a form to which you or your counsel shall reasonably object.
(d) Copies of Registration Statement, Prospectus. The Company will deliver
to you as many signed and conformed copies of the Registration Statement (as
originally filed) and of each amendment thereto (including exhibits filed
therewith or incorporated by reference therein and documents incorporated by
reference in the Prospectus) as you may reasonably request. The Company will
furnish to you as many copies of the Prospectus (as amended or supplemented) as
you shall reasonably request so long as any Underwriter is required to deliver a
Prospectus in connection with sales or solicitations of offers to purchase the
Securities.
(e) Revisions of Prospectus -- Material Changes. If at any time when the
Prospectus is required by the 1933 Act to be delivered in connection with sales
of the Securities any event shall occur or condition exist as a result of which
it is necessary, in the reasonable opinion of the Underwriters' counsel or
counsel for the Company, to further amend or supplement the Prospectus in order
that the Prospectus will not include an untrue statement of a material fact or
omit to state any 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 reasonable
opinion of either such counsel, at any such time to amend or supplement the
Registration Statement or the Prospectus in order to comply with the
requirements of the 1933 Act or the 1933 Act Regulations, immediate notice shall
be given, and confirmed in writing, to each of the Underwriters to cease sales
of any Securities, and the Company will promptly prepare and file with the
Commission such amendment or supplement, whether by filing documents pursuant to
the 1934 Act, the 1933 Act or otherwise, as may be necessary to correct such
untrue statement or omission or to make the Registration Statement comply with
such requirements; provided that, the cost of furnishing such an amendment or
supplement (other than an amendment or supplement filed pursuant to the ▇▇▇▇
▇▇▇) after 6 months following the Closing shall be paid by the Underwriters if
all of the Securities have not been previously offered to the public.
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(f) Section 11(a) Earnings Statements. The Company will make generally
available to its security holders as soon as practicable, but not later than 90
days after the close of the period covered thereby, earnings statements (in form
complying with the provisions of Rule 158 under the ▇▇▇▇ ▇▇▇) covering twelve-
month periods beginning, in each case, not later than the first day of the
Company's fiscal quarter next following the "effective date" (as defined in such
Rule 158) of the Registration Statement with respect to each sale of Securities.
(g) Copies of Financial Reports. So long as this Agreement is in effect,
the Company will furnish to the Underwriters, at the earliest time the Company
makes the same available to others, copies of its annual reports and other
financial reports furnished or made available to the public generally.
(h) Blue Sky Qualifications. The Company will endeavor, in cooperation
with the Underwriters, to qualify the Securities for offering and sale under the
applicable securities laws of such states and other jurisdictions of the United
States as the Underwriters may reasonably designate, and will maintain such
qualifications in effect for as long as may be required for the distribution of
the Securities; the Company will file such statements and reports as may be
required by the laws of each jurisdiction in which the Securities have been
qualified as above provided; provided, however, that the Company shall not be
obligated to file any general consent to service of process or to qualify as a
foreign corporation in any jurisdiction in which it is not so qualified or as a
dealer in securities in any jurisdiction in which it is not so qualified or to
subject itself to taxation in respect of doing business in any jurisdiction in
which it is not otherwise so subject or expend amounts in excess of $1,000 for
filing fees in any one jurisdiction.
(i) 1934 Act Filings. The Company, during the period when the Prospectus
is required to be delivered under the 1933 Act, will file promptly all documents
required to be filed with the Commission pursuant to Sections 13(a), 13(c), 14
or 15(d) of the 1934 Act.
(j) Stand-Off Agreement. Between the date of any Terms Agreement and the
Closing Time with respect to such Terms Agreement, the Company will not, without
the prior consent of the Underwriter(s), offer or sell, or enter into any
agreement to sell, any debt securities of the Company (other than the Securities
which are to be sold pursuant to such Terms Agreement and commercial paper, tax-
exempt securities or other securities in the ordinary course of its business,
including, but not limited to, securities issued by the Company in connection
with the non-recourse financing of lease receivables), except as may otherwise
be provided in any such Terms Agreement.
Section 4. Conditions of Underwriters' Obligations. The obligations of
the Underwriters to purchase Securities pursuant to any Terms Agreement are
subject to the accuracy of the representations and warranties on the part of the
Company herein contained, to the accuracy of the statements of the Company's
officers made in any certificate furnished pursuant to the provisions hereof, to
the performance by the Company of all of its covenants and other obligations
hereunder and to the following further conditions:
(a) At the applicable Closing Time (i) no stop order suspending the
effectiveness of the Registration Statement shall have been issued under
the 1933 Act, no order suspending trading or striking or withdrawing any
Securities to be listed on a national securities exchange from listing and
registration under the 1934 Act shall be in effect, and no proceedings
under the 1933 Act or 1934 Act therefor shall have been initiated or
threatened by the Commission, or, with respect to the filing of any Form
8-A, by any national securities exchange, (ii) the rating assigned by any
nationally recognized securities rating agency indicated in the applicable
Terms Agreement to any debt securities or other obligations of the Company
as of the date of the applicable Terms Agreement shall not have been
lowered since the execution of such Terms Agreement nor shall any such
rating agency have publicly announced that it has placed any obligations of
the Company on what is commonly termed a "watch list" for possible
downgrading, (iii) any Securities for which application has been made to
list on a national securities exchange shall have been approved for
listing, subject to official notice of issuance and (iv) there shall not
have come to your attention any facts that would cause you to believe that
the Prospectus, together with the applicable Prospectus Supplement, at the
time it was required to be delivered to a purchaser of the Securities,
contained an untrue statement of a material fact or omitted to state a
material fact
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necessary in order to make the statements therein, in the light of the
circumstances existing at such time, not misleading.
(b) At the applicable Closing Time you shall have received:
(1) The favorable opinion, dated as of the applicable Closing Time, of
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq., Senior Vice President/Legal, of the Company, or
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esq., Vice President and General Counsel of the
Company, in form and substance satisfactory to you, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware.
(ii) The Company has corporate power and authority to own, lease
and operate its properties and conduct its business as described in
the Prospectus.
(iii) To the best of such counsel's knowledge, the Company is
duly qualified as a foreign corporation to transact business and is in
good standing in each jurisdiction in which its ownership or lease of
substantial properties or the conduct of its business requires such
qualifications and in which failure of the Company to be so qualified
and in good standing would have a material adverse effect upon the
Company and its subsidiaries considered as a single enterprise.
(iv) This Agreement and the applicable Terms Agreement have been
duly authorized, executed and delivered by the Company.
(v) The Indenture has been duly authorized, executed and
delivered by the Company and (assuming the Indenture has been duly
authorized, executed and delivered by the Trustee) constitutes a valid
and binding agreement of the Company, enforceable in accordance with
its terms, except as enforcement thereof may be limited by bankruptcy,
insolvency, or other laws relating to or affecting creditors' rights
generally or by general equity principles.
(vi) The Securities are in the form contemplated by the
Indenture, have been duly authorized by all necessary corporate action
and, when executed and authenticated as specified in the Indenture and
delivered against payment of the consideration therefor in accordance
with this Agreement, as supplemented by the applicable Terms
Agreement, if any, will be valid and binding obligations of the
Company, enforceable in accordance with their terms, except as
enforcement thereof may be limited by bankruptcy, insolvency, or other
laws relating to or affecting creditors' rights generally, or by
general equity principles, and each holder of Securities will be
entitled to the benefits of the Indenture.
(vii) The statements in the Prospectus under the caption
"Description of Debt Securities" and the Prospectus Supplement under
the caption "Description of the Notes", insofar as they purport to
summarize certain provisions of documents specifically referred to
therein, are accurate summaries of such provisions.
(viii) The Indenture is qualified under the 1939 Act.
(ix) The Registration Statement is effective under the 1933 Act,
and, to the best of such counsel's knowledge, no stop order suspending
the effectiveness of the Registration Statement has been issued under
the 1933 Act or proceedings therefor initiated or threatened by the
Commission.
(x) At the time the Registration Statement became effective, the
Registration Statement (other than the financial statements and other
financial or statistical data included or incorporated by
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reference therein, as to which no opinion need be rendered) complied
as to form in all material respects with the requirements of the 1933
Act, the 1939 Act and the regulations under each of those Acts.
(xi) To the best of such counsel's knowledge, there are no legal
or governmental proceedings pending or threatened which are required
to be disclosed in the Registration Statement, other than those
disclosed therein, and all pending legal or governmental proceedings
which the Company or any subsidiary is a party or of which any of
their property is the subject which are not described in the
Prospectus, including ordinary routine litigation incidental to the
business, are, considered in the aggregate, not material.
(xii) To the best of such counsel's knowledge and information,
there are no 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, the descriptions thereof or
references thereto are correct, and, except for certain minor matters
which, either individually or in the aggregate, will not or do not
have a material adverse effect on the Company or its business, no
default exists in the due performance or observance of any material
obligation, agreement, covenant or condition contained in any
contract, indenture, loan agreement, note, lease or other instrument
so described, referred to, filed or incorporated by reference.
(xiii) No consent, approval, authorization, or order of any court
or governmental authority or agency is required in connection with the
sale of the Securities, except such as may be required under the 1933
Act, the 1939 Act, the 1933 Act Regulations or state securities laws;
and, to the best of such counsel's knowledge and information, the
execution and delivery of this Agreement, the applicable Terms
Agreement and the Indenture and the consummation of the transactions
contemplated herein and therein will not conflict with or constitute a
breach of, or default under, or result in the creation or imposition
of any lien, charge or encumbrance upon any property or assets of the
Company pursuant to, any contract, indenture, mortgage, loan
agreement, note, lease or other instrument known to such counsel and
to which the Company is a party or by which it may be bound or to
which any of the property or assets of the Company is subject, or any
law, administrative regulation or administrative or court decree known
to such counsel to be applicable to the Company of any court or
governmental agency, authority or body or any arbitrator having
jurisdiction over the Company, except that counsel need not express an
opinion as to any state securities laws or regulations; nor will such
action result in any violation of the provisions of the charter or by-
laws of the Company.
(xiv) Each document filed pursuant to the 1934 Act and
incorporated by reference in the Prospectus (except for the financial
statements and other financial or statistical data included therein or
omitted therefrom, as to which counsel need not comment), appeared on
its face to comply, when filed, as to form in all material respects
with the 1934 Act and the 1934 Act Regulations.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of the State of New York, to the extent deemed
proper and specified in such opinion, upon the opinion of ▇▇▇▇▇ & ▇▇▇▇, counsel
for the Underwriters, delivered pursuant to subsection (b)(2) hereof and (B) as
to matters of fact, to the extent deemed proper, on certificates of responsible
officers of the Company and public officials.
(2) Opinion of Counsel to the Underwriters. The opinion of ▇▇▇▇▇ & Wood,
counsel to the Underwriters, dated as of such Closing Time, covering the matters
referred to in subparagraph (1) under the subheadings (i) and (iv) to (x),
inclusive.
(3) In giving their opinions required by subsection (b)(1) and (b)(2) of
this Section, ▇▇. ▇▇▇▇▇ or ▇▇. ▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ & ▇▇▇▇ shall each
additionally state that nothing has come to their attention that would lead them
-9-
to believe that the Registration Statement (except for the financial statements
and other financial or statistical data included therein or omitted therefrom,
as to which counsel need not comment), at the time it became effective, or if an
amendment to the Registration Statement or an Annual Report on Form 10-K has
been filed by the Company with the Commission subsequent to the effectiveness of
the Registration Statement, at the time of the most recent such amendment or
filing, contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus, as amended or supplemented at the
Closing Date or the date of such opinion, as the case may be, contains an untrue
statement of a material fact 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.
(c) Officer's Certificate. At the Closing Time there shall not have been,
since the respective dates as of which information is given in the Registration
Statement and the Prospectus or since the date of the Terms Agreement, any
material adverse change in the condition, financial or otherwise, of the Company
and its subsidiaries considered as one enterprise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries considered as
one enterprise, whether or not arising in the ordinary course of business; and
the Underwriters shall have received a certificate of the President and the
Chief Financial Officer of the Company at the Closing Time, dated as of the
Closing Time to the effect that (i) there has been no such material adverse
change, (ii) the other representations and warranties of the Company contained
in Section 1 are true and correct with the same force and effect as though
expressly made at and as of the date of such certificate, (iii) the Company has
complied with all agreements and satisfied all conditions on its part to be
performed or satisfied at or prior to the date of such certificate, and (iv) no
stop order suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been initiated or threatened by
the Commission.
(d) Comfort Letter. The Underwriters shall have received a letter from
KPMG Peat Marwick LLP, dated as of the date hereof or the date of the most
recent report filed with the Commission containing financial statements or
unaudited consolidated information and incorporated by reference in the
Registration Statement, if the date of such report is later than the date
hereof, and delivered at such time, in form and substance satisfactory to the
Underwriters to the effect that:
(i) They are independent public accountants with respect to the
Company and its subsidiaries within the meaning of the 1933 Act and the
1933 Act Regulations.
(ii) In their opinion, the consolidated financial statements and
supporting schedule(s) audited by them and incorporated by reference in the
Registration Statement comply as to form in all material respects with the
applicable accounting requirements of the 1933 Act and the 1933 Act
Regulations with respect to registration statements on Form S-3 and the
1934 Act and the 1934 Act Regulations.
(iii) based upon limited procedures set forth in detail in such
letter (which shall include, without limitation, the procedures specified
by the American Institute of Certified Public Accountants for a review of
interim financial information as described in SAS No. 71, Interim Financial
Information, with respect to the unaudited consolidated financial
statements of the Company and its subsidiaries included in the Registration
Statement), nothing has come to their attention which causes them to
believe that:
(A) any material modifications should be made to the unaudited
consolidated financial statements included in the Registration
Statement for them to be in conformity with generally accepted
accounting principles; or
(B) the unaudited consolidated financial statements included in
the Registration Statement do not comply as to form in all material
respects with the applicable accounting requirements of the 1933 Act
and the related published rules and regulations; or
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(C) at a specified date not more than five days prior to the date
of such letter, there was any change in the capital stock or any
increase in the long term debt of the Company and its subsidiaries
consolidated or any decrease in consolidated net assets, in each case
as compared with amounts shown in the most recent consolidated balance
sheet incorporated by reference in the Registration Statement, except
in each case for changes, increases or decreases which the
Registration Statement and the Prospectus disclose have occurred or
may occur; or
(D) for the period from the date of the most recent interim
period financial statements incorporated by reference in the
Registration Statement to a specified date not more than five days
prior to the date of such letter, there were any decreases, as
compared with the corresponding period in the preceding year, in
consolidated revenues or net earnings, except in each case for
decreases which the Registration Statement and the Prospectus disclose
have occurred or may occur.
(iv) In addition to the examination referred to in their report
incorporated by reference in the Registration Statement and the Prospectus,
they have carried out certain other specified procedures, not constituting
an audit, with respect to certain amounts, percentages and financial
information which are included in the Registration Statement and the
Prospectus and which are specified by the Underwriters and have found such
amounts, percentages and financial information to be in agreement with the
relevant accounting, financial and other records of the Company and its
subsidiaries identified in such letter.
(e) Bring-down Comfort Letter. You shall have received from KPMG Peat
Marwick LLP, or other independent certified public accountants acceptable to you
a letter, dated as of the applicable Closing Time, reconfirming or updating the
letter required by subsection (d) of this Section to the extent that may be
reasonably requested.
(f) Other Documents. At the date hereof and at the Closing Time, counsel
to the Underwriters shall have been furnished with such documents and opinions
as such counsel may reasonably require for the purpose of enabling such counsel
to pass upon the issuance and sale of Securities as herein contemplated and
related proceedings, or in order to evidence the accuracy and completeness of
any of the representations and warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Company in
connection with the issuance and sale of Securities as herein contemplated shall
be satisfactory in form and substance to the Underwriters and to the
Underwriters' counsel.
(g) Further Condition. The obligations of each of the Underwriters to
purchase Securities pursuant to any Terms Agreement will be subject to the
further condition that there shall not have come to the Underwriters' attention
any facts that would cause them to believe that the Prospectus, at the time it
was required to be delivered to a purchaser of Securities, contained an untrue
statement of a material fact or omitted to state a material fact necessary in
order to make the statements therein, in the light of the circumstances existing
at such time, not misleading.
If any condition specified in this Section shall not have been fulfilled,
this Agreement and any Terms Agreement may be terminated by the Underwriters by
notice to the Company at any time at or prior to the Closing Time, and such
termination shall be without liability of any party to any other party, except
as provided in Section 5.
Section 5. Payment of Expenses. The Company will pay all expenses
incident to the performance of its obligations under this Agreement, including
(i) the preparation and filing of the Registration Statement and all amendments
thereto and the Prospectus and any amendments or supplements thereto, (ii) the
preparation, issuance and delivery of the Securities to the Underwriters, (iii)
the fees and disbursements of the Company's accountants and of the Trustee and
its counsel, (iv) the qualification of the Securities under the securities laws
in accordance with the provisions of Section 3(h), including filing fees and the
reasonable fees and disbursements of counsel for the Underwriters in connection
therewith and in connection with the preparation of any Blue Sky Surveys and any
Legal Investment Survey, (v) the printing and delivery to the Underwriters in
quantities as hereinabove stated of copies of the Registration Statement and any
amendments thereto, and of the Prospectus and any amendments or supplements
thereto, and the delivery by the
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Underwriters of the Prospectus and any amendments or supplements thereto in
connection with solicitations or confirmations of sales of the Securities, (vi)
the printing and delivery to the Underwriters of copies of the Indenture and any
Blue Sky Survey and Legal Investment Survey, (vii) any fees charged by rating
agencies for the rating of the Securities, (viii) the fees and expenses, if any,
incurred in connection with the listing of the Securities on the New York Stock
Exchange or any other national exchange, (ix) the fees and expenses, if any,
incurred with respect to any filing with the National Association of Securities
Dealers, Inc., and (x) any advertising and other out-of-pocket expenses incurred
with the approval of the Company.
If a Terms Agreement is terminated by you in accordance with the provisions
of Section 4 or Section 9(i), the Company shall reimburse the Underwriters named
in such Terms Agreement for all of their out-of-pocket expenses, including the
reasonable fees and disbursements of counsel for the Underwriters.
Section 6. Indemnification. (a) The Company agrees to indemnify and hold
harmless each Underwriter and each person, if any, who controls any Underwriter
within the meaning of Section 15 of the 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
as originally filed (or any amendment thereto), or the omission or alleged
omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading or arising out of
any untrue statement or alleged untrue statement of a material fact
contained in the Prospectus (if used within the period set forth in Section
3(e) hereof and as amended or supplemented if the Company shall have
furnished any amendments or supplements 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; provided, however, that the Company will not be
liable in any such case to the extent that any such loss, claim, damage,
liability or expense arises out of or is based upon any untrue statement or
omission or such alleged untrue statement or omission (A) which has been
made therein or omitted therefrom in reliance upon and in conformity with
written information furnished to the Company by any Underwriter through you
expressly for use in the registration statement as originally filed (or any
amendment thereto) or the Prospectus as originally filed (or any amendment
or supplement thereto) or (B) which has been made or omitted from the
Statement of Eligibility of the Trustee on Form T-1, other than any such
untrue statement or omission or alleged untrue statement or omission made
therein or omitted therefrom in reliance upon information furnished in
writing to the Trustee by the Company for use therein; the foregoing
indemnification with respect to any preliminary prospectus shall not inure
to the benefit of any Underwriter from whom the person asserting any such
losses, claims, damages or liabilities purchased Securities, or any person
controlling such Underwriter, if a copy of the Prospectus (as then amended
or supplemented if the Company shall have furnished any amendments or
supplements thereto) was not sent or given by or on behalf of such
Underwriter to such person, if such delivery is required by law, at or
prior to the written confirmation of the sale of such Securities to such
person and if the Prospectus (as so amended or supplemented) would have
cured the defect giving rise to such loss, claim, damage or liability;
(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 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, if 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 you), reasonably incurred
in investigating, preparing or defending against any litigation, or
investigation or proceeding by any governmental agency or body, commenced
or threatened, or any claim
-12-
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.
Insofar as this indemnity may permit indemnification for liabilities under
the 1933 Act of any person who is a partner of an Underwriter or who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act and who, at the date of this Agreement, is a director, officer or
controlling person of the Company, such indemnity agreement is subject to the
undertaking of the Company in the Registration Statement.
(b) Each Underwriter severally agrees to indemnify and hold harmless the
Company, its directors, each of its officers who signed the registration
statement as originally filed (or any amendment thereto), and each person, if
any, who controls the Company within the meaning of Section 15 of the 1933 Act
or Section 20 of the 1934 Act against any and all loss, liability, claim, damage
and expense to the same extent 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 or
omitted from the Registration Statement (or any amendment thereto) 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 you expressly for use in the Registration Statement (or any amendment
thereto) or the Prospectus (or any amendment or supplement thereto).
(c) The Company agrees to indemnify and hold harmless each Underwriter
against any documentary stamp or similar issue tax and any related interest or
penalties on the issue or sale of the Securities to the Underwriters which are
due in the United States of America, the United Kingdom or any other
jurisdiction.
(d) Promptly after receipt by an indemnified party under subsection (a) or
(b) above of written notice of the commencement of any action such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof, and in the event that such indemnified
party shall not so notify the indemnifying party within 30 days following
receipt of any such notice by such indemnified party, the indemnifying party
shall have no further liability under such subdivision to such indemnified party
unless such indemnifying party shall have received other notice addressed and
delivered in the manner provided in Section 11 hereof of the commencement of
such action; but the omission so to notify the indemnifying party shall not
relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection. Any indemnified party or any such
controlling person shall have the right to employ separate counsel in any such
action and participate in the defense thereof, but the fees and expenses of such
counsel shall be at the expense of such indemnified party unless (i) the
employment of such counsel has been specifically authorized in writing by the
indemnifying party, (ii) the indemnifying party has failed to assume the defense
and employ counsel or (iii) the named parties to any such action (including any
impleaded parties) include both such indemnified party and the indemnifying
party and such indemnified party has been advised by such counsel that there may
be one or more legal defenses available to it which are different from or
additional to those available to the indemnifying party (in which case the
indemnifying party shall not have the right to assume the defense of such action
on behalf of such indemnified party, it being understood, however, that the
indemnifying party shall not, in connection with any one such action or separate
but substantially similar or related action in the same jurisdiction arising out
of the same general allegations or circumstances, be liable for the reasonable
fees and expenses of more than one separate firm of attorneys (in addition to
local counsel) for all such indemnified parties, which firm shall be designated
in writing by you).
Section 7. Contribution. If the indemnification provided for in Section 6
is unavailable to or insufficient to hold harmless an indemnified party in
respect of any losses, claims, damages or liabilities (or actions in respect
thereof) referred to therein, then the Company and the contributing Underwriter
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions in respect
thereof) in such proportion as is appropriate to reflect the relative benefits
received by the Company on the one hand and the contributing Underwriter on the
other from the offering of the Securities to which such loss, claim, damage or
liability (or action in respect thereof) relates. If, however, the
indemnification provided for in Section 6 is unavailable to or insufficient to
hold harmless an indemnified party in respect of any losses, claims, damages or
liabilities (or actions in respect thereof)
-13-
referred to therein, if the allocation provided by the immediately preceding
sentence is not permitted by applicable law or if the indemnified party failed
to give the notice required under Section 6(d) above, then each indemnifying
party shall contribute to such amount paid or payable by such indemnified party
in such proportion as is appropriate to reflect not only such relative benefits
but also the relative fault of the Company on the one hand and the contributing
Underwriter on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities (or actions in respect
thereof), as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and the contributing
Underwriter on the other shall be deemed to be in the same proportion as the
total net proceeds from the sale of Securities (before deducting expenses)
received by the Company bear to the total commissions or discounts received by
the contributing Underwriter in respect thereof. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact required to be stated therein or necessary in order to make the
statements therein not misleading relates to information supplied by the Company
on the one hand or by the contributing Underwriter on the other and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company and the contributing Underwriter
agree that it would not be just and equitable if contribution pursuant to this
Section 7 were determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable considerations referred
to above in this Section 7. The amount paid or payable by an indemnified party
as a result of the losses, claims, damages or liabilities (or actions in respect
thereof) referred to above in this Section 7 shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Securities purchased by or through such Underwriter were sold
exceeds the amount of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution
from any person who is not guilty of such fraudulent misrepresentation. For
purposes of this Section, each person, if any, who controls an Underwriter
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
shall have the same rights to contribution as such Underwriter, and each
director of the Company, each officer of the Company who signed the Registration
Statement, and each person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same
rights to contribution as the Company. Any amounts to be paid a party pursuant
to this Section 7 for losses, claims, damages or liabilities (or actions in
respect thereof) referred to above in this Section 7 shall be paid as incurred;
provided, however, that amounts so paid shall be returned to the paying party in
the event that it is ultimately determined that the party that received payment
was not entitled to such payment.
Section 8. Indemnities, Contributions, Representations, Warranties and
Agreements to Survive Delivery. The indemnity and contribution agreements
contained in Sections 6 and 7 and all representations, warranties and agreements
contained in this Agreement, or contained in certificates of officers of the
Company submitted pursuant hereto, shall remain operative and in full force and
effect, regardless of any termination of this Agreement, or any investigation
made by or on behalf of any Underwriter or controlling person, or by or on
behalf of the Company, and shall survive the delivery of any Securities to the
Underwriters.
Section 9. Termination. Prior to the execution of any Terms Agreement
hereunder, this Agreement may be terminated for any reason at any time by either
the Company or a majority of the Underwriters upon the giving of three days'
written notice of such termination to the other parties hereto. Each
Underwriter who may be named in any Terms Agreement may also terminate such
Terms Agreement, immediately upon notice to the Company, at any time at or prior
to the applicable Closing Time (i) if there has been, since the date of such
Terms Agreement or since the respective dates as of which information is given
in the Registration Statement, any material adverse change in the condition,
financial or otherwise, of the Company and its subsidiaries considered as one
enterprise, 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
outbreak or material escalation of hostilities or other calamity or crisis the
effect of which on the financial markets of the United States is such as to make
it, in the judgment of such of you as are named in such Terms Agreement,
impracticable to market the Securities or enforce contracts for the sale of the
Securities,
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or (iii) if trading in the Common Stock of the Company has been suspended by the
Commission or a national securities exchange, or if trading generally on either
the American Stock Exchange or the New York Stock Exchange has been suspended,
or minimum or maximum prices for trading have been fixed, or maximum ranges for
prices for securities have been required, by either of said exchanges or by
order of the Commission or any other governmental authority, if a banking
moratorium in the United States generally or in the City or the State of New
York has been declared by either Federal or New York authorities or if a banking
moratorium has been declared by the relevant authorities in the country or
countries of origin of any foreign currency or currencies underlying the
Securities, or (iv) if the rating assigned by any nationally recognized
securities rating agency indicated in the applicable Terms Agreement to any debt
securities or other obligations of the Company as of the date of any applicable
Terms Agreement shall have been lowered since that date or if any such rating
agency shall have publicly announced that it has placed any debt securities or
other obligations of the Company on what is commonly termed a "watch list" for
possible downgrading. In the event of any such termination, the covenant set
forth in Section 3(f), the provisions of Section 5, the indemnity agreement set
forth in Section 6, the contribution provisions set forth in Section 7, and the
provisions of Sections 8 and 13 shall remain in effect.
Section 10. Default. If one or more of the Underwriters participating in
an offering of Securities shall fail at the applicable Closing Time to purchase
the Securities which it or they are obligated to purchase hereunder and under
the applicable Terms Agreement (the "Defaulted Securities"), then such of you as
are named therein 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, during such 24 hours you shall not have completed such
arrangements for the purchase of all of the Defaulted Securities, then:
(a) if the aggregate principal amount of Defaulted Securities does not
exceed 10% of the aggregate principal amount of the Securities to be
purchased pursuant to such Terms Agreement, the non-defaulting Underwriters
named in such Terms Agreement shall be obligated to purchase the full
amount thereof in the proportions that their respective underwriting
obligations hereunder bear to the underwriting obligations of all such
non-defaulting Underwriters, or
(b) if the aggregate principal amount of Defaulted Securities exceeds
10% of the aggregate principal amount of the Securities to be purchased
pursuant to such Terms Agreement, the applicable Terms Agreement shall
terminate, without any liability on the part of any non-defaulting
Underwriter or the Company.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement and the applicable Terms Agreement.
In the event of a default by any Underwriter or Underwriters as set forth
in this Section which does not result in a termination of this Agreement, either
you or the Company shall have the right to postpone the applicable Closing Time
for a period not exceeding seven days in order that any required changes in the
Registration Statement or Prospectus or in any other documents or arrangements
may be effected.
Section 11. Covenants of the Underwriters. Each Underwriter severally
agrees with the Company that:
(a) It will not offer, sell, resell or deliver, directly or indirectly
in connection with the original issuance of the Securities, in the United
States (as hereinafter defined) or to any United Sates person (as
hereinafter defined), other than a financial institution (as hereinafter
defined), any Securities in bearer form (whether temporary or definitive).
As used herein, "financial institution" means a branch located outside the
United States of a qualified financial institution as defined in Section
1.165-12(c)(1)(v) of the Treasury Department Regulations that agrees to
comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the
Internal Revenue Code of 1986 and the regulations thereunder.
-15-
(b) It will deliver to each purchaser from it of Securities in bearer
form (whether temporary or definitive) acquired by it during the original
issuance of the Securities a written confirmation stating substantially the
following:
"You represent that you are not a United States person, or, if
you are a United States person, that you are a financial institution
that will comply with the requirements of Section 165(j)(3)(A), (B) or
(C) of the Internal Revenue Code of 1986 and the regulations
thereunder. Furthermore, if you are a dealer, you agree that you will
deliver a confirmation containing this entire paragraph to purchasers
of such Securities from you. As used herein, "United States person"
means a citizen or resident of the United States of America, its
territories, its possessions or any area subject to its jurisdiction
("United States"), or a corporation, partnership or other entity
created or organized in or under the laws of the United States or any
political subdivision thereof, or an estate or trust the income of
which is subject to United States Federal income taxation regardless
of its source."
Section 12. 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 you as follows: ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, attention of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.;
▇▇▇▇▇▇ Brothers Inc., ▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇, attention
of ▇▇▇▇▇▇▇ Stake; ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated, North Tower, 10th Floor, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇-▇▇▇▇, attention of ▇▇▇▇▇ ▇▇▇▇▇▇; NationsBanc Capital Markets, Inc., ▇▇▇ ▇.
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, attention of ▇▇▇▇ ▇▇▇▇;
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Inc, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, attention of
▇▇▇▇ ▇▇▇▇▇▇; or, in respect of any Terms Agreement, to such other person and
place as may be specified therein; notices to the Company shall be directed to
it at Comdisco, Inc., ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, attention
of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Vice President and Treasurer, with a copy to the General
Counsel at the same address.
Section 13. Parties. This Agreement shall inure to the benefit of and be
binding upon you and the Company, and any Terms Agreement shall inure to the
benefit of and be binding upon the Company and any Underwriter who becomes a
party to a Terms Agreement, and their respective successors. Nothing expressed
or mentioned in this Agreement or a Terms Agreement is intended or shall be
construed to give any person, firm or corporation, other than the parties hereto
or thereto and their respective successors and the controlling persons and
officers and directors referred to in Section 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 a Terms Agreement or any provision herein or
therein contained. This Agreement and any Terms Agreement and all conditions
and provisions hereof and thereof are intended to be for the sole and exclusive
benefit of the parties and their respective successors and said controlling
persons and officers and directors and their heirs and legal representatives,
and for the benefit of no other person, firm or corporation. No purchaser of
Securities from any Underwriter shall be deemed to be a successor by reason
merely of such purchase.
Section 14. Governing Law. This Agreement and each Terms Agreement shall
be governed by and construed in accordance with the laws of the State of New
York applicable to agreements made and to be performed in such State.
Section 15. Counterparts. This Agreement may be executed in one or more
counterparts, and when a counterpart has been executed by each party hereto all
such counterparts taken together shall constitute one and the same Agreement.
-16-
[SIGNATURE PAGE FOR FEBRUARY 7, 1996 UNDERWRITING AGREEMENT]
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
instrument along with all counterparts will become a binding agreement between
you and us in accordance with its terms.
Very truly yours,
COMDISCO, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Vice President and Treasurer
CONFIRMED AND ACCEPTED,
as of the dated first above written:
▇▇▇▇▇ ▇▇▇▇▇▇ INC. ▇▇▇▇▇▇ BROTHERS INC.
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------- ---------------------------------
Its: Authorized Signatory Its: Authorized Signatory
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO. NATIONSBANC CAPITAL MARKETS, INC.
▇▇▇▇▇▇▇ LYNCH, PIERCE,
▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------- ---------------------------------
Its: Authorized Signatory Its: Authorized Signatory
SALOMON BROTHERS INC
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------------
Its: Authorized Signatory
-17-
EXHIBIT A
COMDISCO, INC.
(A DELAWARE CORPORATION)
SENIOR DEBT SECURITIES
TERMS AGREEMENT
---------------
To: COMDISCO, INC.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: Underwriting Agreement dated February 7, 1996
SENIOR DEBT SECURITIES
----------------------
Title of Senior Debt Securities:
Principal amount to be issued: $
Current ratings:
Interest rate: Payable:
Date of Maturity:
[Currency of Denomination:
Currency of Payment:
Form and Denomination:
Overseas Paying Agent:]
Redemption provisions:
Sinking Fund requirements:
Delayed Delivery Contracts [authorized] [not authorized]
Delivery Date:
Minimum Contract:
Maximum aggregate principal amount:
Fee: %
[Public offering price: %, plus accrued interest, or amortized original issue
discount if any, from , 19 ].
A-1
Purchase price: %, plus accrued interest, or amortized original issue discount,
if any, from , 19 (payable in next day funds).
---------------
Closing date and location with respect to registered Securities:
Closing date and location with respect to bearer Securities:
Rating Agencies applicable to Sections 4 and 9 of the Underwriting Agreement:
[▇▇▇▇▇'▇ Investors Service]
[Standard & Poor's Ratings Group]
[Duff & ▇▇▇▇▇▇]
Additional co-managers, if any:
[Additional Termination Events: To the list of termination events included
in Section 9 of the Underwriting Agreement is added the following:
[(v) a general moratorium in foreign exchange trading, or a moratorium
in or U.S. dollar trading, by major international banks or persons has been
declared, or exchange controls have been imposed or proposed, affecting the
or the U.S. dollar by any competent governmental authority in the United
States or ; or]
(vi) there shall be pending any legal proceedings against the Company
or the Underwriters relating to the Securities]
[Additional Agreement of the Underwriters: To the agreements of the
Underwriters included in Section 11 of the Underwriting Agreement is added
to the following:
The Underwriters agree that they will not offer, sell, resell or deliver,
directly or indirectly, any Securities in or to residents of , or to
others for the reoffering, resale or delivery of any Securities directly or
indirectly in or to any resident of .]
[Exceptions, if any, to Section 3(j) of the Underwriting Agreement: The
provisions of such Section are hereby waived.]
[Consents pursuant to Section 3(j) of the Underwriting Agreement may be
executed by [name(s) of underwriter(s)].]
All notices to the Underwriters in respect of this Agreement shall be
directed to the undersigned as follows:
Each Underwriter severally agrees, subject to the terms and provisions of the
above referenced Underwriting Agreement, which is incorporated herein in its
entirety and made a part hereof, to purchase the principal amount of Securities
set forth opposite its name.
A-2
Principal
Amount of
Name Securities
---- --------------
$
-------------
[$ ]
A-3
[SIGNATURE PAGE FOR __________ TERMS AGREEMENT]
▇▇▇▇▇ ▇▇▇▇▇▇ INC. ▇▇▇▇▇▇ BROTHERS INC.
By:_______________________________ By: _______________________________
Its:______________________________ Its:_______________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO. NATIONSBANC CAPITAL MARKETS, INC.
▇▇▇▇▇▇▇ LYNCH, PIERCE,
▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED
By:_______________________________ By:_________________________________
Its:______________________________ Its:________________________________
SALOMON BROTHERS INC
By:_______________________________
Its:______________________________
Accepted:
COMDISCO, INC.
By:
_______________________________
A-4
EXHIBIT B
COMDISCO, INC.
(A DELAWARE CORPORATION)
SENIOR DEBT SECURITIES
DELAYED DELIVERY CONTRACT
-------------------------
____________, 19__
COMDISCO, INC.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: _________________
Dear Sirs:
The undersigned hereby agrees to purchase from Comdisco, Inc. (the
"Company"), and the Company agrees to sell to the undersigned on 19
(the "Delivery Date"),
principal amount of the Company's [insert title of security] (the "Securities")
offered by the Company's Prospectus dated , 19 , as supplemented by its
Prospectus Supplement dated , 19 , receipt of which is hereby acknowledged,
at a purchase price of % of the principal amount of Securities, plus accrued
interest from , 19 , to the Delivery Date and on the further terms
and conditions set forth in this contract.
Payment for the Securities which the undersigned has agreed to
purchase on the Delivery Date shall be made to the Company or its order by
certified or official bank check in New York Clearing House funds, at the office
of Comdisco, Inc., ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ on the
Delivery Date, upon delivery to the undersigned of the Securities to be
purchased by the undersigned in definitive form and in such denominations and
registered in such names as the undersigned may designate by written or
telegraphic communication addressed to the Company not less than five full
business days prior to the Delivery Date.
The obligation of the undersigned to take delivery of and make
payments for Securities on the Delivery Date shall be subject to only the
conditions that (1) the purchase of Securities to be made by the undersigned
shall not on the Delivery Date be prohibited under the laws of the jurisdiction
to which the undersigned is subject and (2) the Company, on or before ,
19 shall have sold to the Underwriters of the Securities (the
"Underwriters") such principal amount of the Securities as is to be sold to them
pursuant to the Terms Agreement dated , 19 between the Company and
the Underwriters. The obligation of the undersigned to take delivery of and
make payment for Securities shall not be affected by the failure of any
purchaser to take delivery of and make payment for Securities pursuant to other
contracts similar to this contract. The undersigned represents and warrants to
you that its investment in the Securities is not, as of the date hereof,
prohibited under the laws of any jurisdiction to which the undersigned is
subject and which govern such investment.
Promptly after completion of the sale to the Underwriters, the Company
will mail or deliver to the undersigned at its address set forth below notice to
such effect, accompanied by a copy of the opinion of counsel for the Company
delivered to the Underwriters in connection therewith.
B-1
By the execution hereof, the undersigned represents and warrants to
the Company that all necessary corporate action for the due execution and
delivery of this contract and the payment for and purchase of the Securities has
been taken by it and no further authorization or approval of any governmental or
other regulatory authority is required for such execution, delivery, payment or
purchase, and that, upon acceptance hereof by the Company and mailing or
delivery of a copy as provided below, this contract will constitute a valid and
binding agreement of the undersigned in accordance with its terms.
This contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
It is understood that the Company will not accept Delayed Delivery
Contracts for an aggregate amount of Securities in excess of $ and
that the acceptance of any Delayed Delivery Contracts is in the Company's sole
discretion and, without limiting the foregoing, need not be on a first-come,
first-served basis. If this contract is acceptable to the Company, it is
requested that the Company sign the form of acceptance on a copy hereof and mail
or deliver a signed copy hereof to the undersigned at its address set forth
below. This will become a binding contract between the Company and the
undersigned when such copy is so mailed or delivered.
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York applicable to agreements made and to be
performed in such State.
Very truly yours,
------------------------------
(Name of Purchaser)
By:
---------------------------
(Title)
---------------------------
---------------------------
(Address)
Accepted as of the date first above written.
COMDISCO, INC.
By:
---------------------------
B-2
PURCHASER-PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone number of the representative of the Purchaser with whom
details of delivery on the Delivery Date may be discussed are as follows:
(Please print).
Name Telephone No. (including area code)
---- -----------------------------------
B-3