EXHIBIT 1.1
EXECUTION COPY
Louisiana-Pacific Corporation
Debt Securities
Underwriting Agreement
----------------------
August 8, 2001
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Goldman, Sachs & Co.,
as Independent Underwriter
85 Broad Street
New York, New York 10004
Ladies and Gentlemen:
From time to time Louisiana-Pacific Corporation, a Delaware corporation
(the "Company"), proposes to enter into one or more Pricing Agreements (each a
"Pricing Agreement") in the form of Annex I hereto, with such additions and
deletions as the parties thereto may determine, and, subject to the terms and
conditions stated herein and therein, to issue and sell to the firms named in
Schedule I to the applicable Pricing Agreement (such firms constituting the
"Underwriters" with respect to such Pricing Agreement and the securities
specified therein) certain of its debt securities (the "Securities") specified
in Schedule II to such Pricing Agreement (with respect to such Pricing
Agreement, the "Designated Securities").
The Company and the Underwriters, in accordance with the requirements of
Rule 2710(c)(8) and Rule 2720 ("Rule 2720") of the National Association of
Securities Dealers, Inc. (the "NASD") and subject to the terms and conditions
stated herein and in the applicable Pricing Agreement, also hereby confirm the
engagement of the services of Goldman, Sachs & Co. (the "Independent
Underwriter") as a "qualified independent underwriter" within the meaning of
Section (b)(15) of Rule 2720 in connection with the offering and sale of the
Designated Securities from time to time if and as set forth in the applicable
Pricing Agreement.
The terms and rights of any particular issuance of Designated Securities
shall be as specified in the Pricing Agreement relating thereto and in or
pursuant to the indenture (the "Indenture") identified in such Pricing
Agreement.
1. Particular sales of Designated Securities may be made from time to time
to the Underwriters of such Securities, for whom the firms designated as
representatives of the Underwriters of such Securities in the Pricing Agreement
relating thereto will act as representatives (the "Representatives"). The term
"Representatives" also refers to a single firm acting as sole representative of
the Underwriters and to an Underwriter or Underwriters acting without any firm
being designated as its or their representative. In addition, the Independent
Underwriter may serve as a "qualified independent underwriter" within the
meaning of Section (b)(15) of Rule 2720 with respect to the offering and sale of
Designated Securities from time to time if set forth in the applicable Pricing
Agreement. This
Underwriting Agreement shall not be construed as an obligation of the Company to
sell any of the Securities or as an obligation of any of the Underwriters to
purchase the Securities, and this Underwriting Agreement shall not be construed
as an obligation of the Independent Underwriter to serve as a "qualified
independent underwriter" with respect to any Securities. The obligation of the
Company to issue and sell any of the Securities and the obligation of any of the
Underwriters to purchase any of the Securities shall be evidenced by the Pricing
Agreement with respect to the Designated Securities specified therein. The
obligation of the Independent Underwriter to act as a "qualified independent
underwriter" with respect to any Securities shall be evidenced by the Pricing
Agreement with respect to the Designated Securities specified therein, and the
provisions with respect to the Independent Underwriter set forth in this
Agreement shall not apply with respect to any Designated Securities unless the
Company, the Underwriters and the Independent Underwriter evidence their intent
to have such provisions apply to such Designated Securities by specific
reference thereto in the applicable Pricing Agreement executed by each of such
parties.. Each Pricing Agreement shall specify the aggregate principal amount of
such Designated Securities, the initial public offering price of such Designated
Securities, the purchase price to the Underwriters of such Designated
Securities, the names of the Underwriters of such Designated Securities, the
names of the Representatives of such Underwriters, information with respect to
the Independent Underwriter and the principal amount of such Designated
Securities to be purchased by each Underwriter and shall set forth the date,
time and manner of delivery of such Designated Securities and payment therefor.
The Pricing Agreement shall also specify (to the extent not set forth in the
Indenture and the registration statement and prospectus with respect thereto)
the terms of such Designated Securities. A Pricing Agreement shall be in the
form of an executed writing (which may be in counterparts), and may be evidenced
by an exchange of telegraphic communications or any other rapid transmission
device designed to produce a written record of communications transmitted. The
obligations of the Underwriters under this Agreement and each Pricing Agreement
shall be several and not joint.
2. The Company represents and warrants to, and agrees with, each of the
Underwriters and the Independent Underwriter that:
(a) A registration statement on Form S-3 (File No. 333-73157) (the
"Initial Registration Statement") in respect of the Securities has been
filed with the Securities and Exchange Commission (the "Commission"); the
Initial Registration Statement and any post-effective amendment thereto,
each in the form heretofore delivered or to be delivered to the
Representatives and the Independent Underwriter without exhibits but with
all documents incorporated by reference in the prospectus contained
therein, have been declared effective by the Commission in such form; other
than a registration statement, if any, increasing the size of the offering
(a "Rule 462(b) Registration Statement"), filed pursuant to Rule 462(b)
under the Securities Act of 1933, as amended (the "Act"), which became
effective upon filing, no other document with respect to the Initial
Registration Statement or document incorporated by reference therein has
heretofore been filed or transmitted for filing with the Commission (other
than prospectuses filed pursuant to Rule 424(b) of the rules and
regulations of the Commission under the Act, each in the form heretofore
delivered to the Representatives); and no stop order suspending the
effectiveness of the Initial Registration Statement, any post-effective
amendment thereto or the Rule 462(b) Registration Statement, if any, has
been issued and no proceeding for that purpose has been initiated or
threatened by the Commission (any preliminary prospectus included in the
Initial Registration Statement or filed with the Commission pursuant to
Rule 424(a) under the Act, is hereinafter called a "Preliminary
Prospectus"; the various parts of the Initial Registration Statement, any
post-effective amendment thereto and the Rule 462(b) Registration
Statement, if any, including all exhibits thereto and the documents
incorporated by reference in the prospectus contained in the Initial
Registration Statement at the time such part of the Initial Registration
Statement became effective but excluding Form T-1, each as amended at the
time such part of the Initial Registration Statement became effective or
such part of the Rule 462(b) Registration Statement, if any, became or
hereafter becomes effective, are hereinafter collectively called the
"Registration Statement"; the prospectus relating to the Securities, in the
2
form in which it has most recently been filed, or transmitted for filing,
with the Commission on or prior to the date of this Agreement, is
hereinafter called the "Prospectus"; any reference herein to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include the documents as amended, if applicable, incorporated by reference
therein pursuant to the applicable form under the Act, as of the date of
such Preliminary Prospectus or Prospectus, as the case may be; any
reference to any amendment or supplement to any Preliminary Prospectus or
the Prospectus shall be deemed to refer to and include any documents as
amended, if applicable, filed after the date of such Preliminary Prospectus
or Prospectus, as the case may be, under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and incorporated by reference in
such Preliminary Prospectus or Prospectus, as the case may be; any
reference to any amendment to the Initial Registration Statement shall be
deemed to refer to and include any annual report of the Company filed
pursuant to Sections 13(a) or 15(d) of the Exchange Act after the effective
date of the Initial Registration Statement that is incorporated by
reference in the Registration Statement; and any reference to the
Prospectus as amended or supplemented shall be deemed to refer to the
Prospectus as amended or supplemented in relation to the applicable
Designated Securities in the form in which it is filed with the Commission
pursuant to Rule 424(b) under the Act in accordance with Section 6(a)
hereof, including any documents incorporated by reference therein as of the
date of such filing);
(b) The documents incorporated by reference in the Prospectus, as
amended, when they became effective or were filed with the Commission, as
the case may be (giving retroactive effect to any such amendments),
conformed in all material respects to the requirements of the Act or the
Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder, and none of such documents (as so amended, if
applicable, giving retroactive effect to such amendments) 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; and any further documents so filed and incorporated by
reference in the Prospectus or any further amendment or supplement thereto,
when such documents become effective or are filed with the Commission, as
the case may be, will conform in all material respects to the requirements
of the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder 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; and the statements made therein within the coverage of Rule
175(b) under the Act were made by the Company with a reasonable basis and
in good faith; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an
Underwriter of Designated Securities through the Representatives or the
Independent Underwriter expressly for use in the Prospectus as amended or
supplemented relating to such Securities;
(c) No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and the Registration
Statement and the Prospectus conform, and any further amendments or
supplements to the Registration Statement or the Prospectus will conform,
in all material respects to the requirements of the Act and the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"), and the
rules and regulations of the Commission thereunder and do not and will not,
as of the applicable effective date as to the Registration Statement and
any amendment thereto and as of the applicable filing date as to the
Prospectus and any amendment or supplement thereto, 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; and the statements made therein within the coverage of Rule
175(b) under the Act were made by the Company with a reasonable basis and
in good faith; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an
Underwriter of Designated Securities through the Representatives or the
Independent Underwriter expressly
3
for use in the Prospectus as amended or supplemented relating to such
Securities or to any statements in or omissions from the Statement of
Eligibility of the Trustee under the Indenture;
(d) Neither the Company nor any of its subsidiaries has sustained since
the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any material loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as set forth
or contemplated in the Prospectus as amended or supplemented; and, since
the latest date as of which information is given in the Registration
Statement and the Prospectus as amended or supplemented, there has not been
any change in the capital stock (other than issuances and forfeitures of
capital stock in connection with equity-based compensation plans of the
Company, issuances of stock upon the exercise, conversion or exchange of
any outstanding securities of the Company that are exercisable to purchase,
or convertible into or exchangeable for, capital stock and purchases of
capital stock pursuant to any stock repurchase program disclosed in the
Prospectus as amended or supplemented) or any increase in excess of $40
million in the long-term debt of the Company or any of its subsidiaries
otherwise than as set forth or contemplated in the Prospectus as amended or
supplemented or any material adverse change, or any development involving a
prospective material adverse change, in or affecting the general affairs,
management, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries taken as a whole, otherwise
than as set forth or contemplated in the Prospectus as amended or
supplemented;
(e) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus as
amended or supplemented, and has been duly qualified as a foreign
corporation for the transaction of business and is in good standing under
the laws of each other jurisdiction in which it is required to be so
qualified, except where failure to be so qualified and in good standing
individually or in the aggregate would not have a material adverse effect
on the current or future consolidated financial position, stockholders'
equity or results of operations of the Company and its subsidiaries
("Material Adverse Effect"); and each subsidiary of the Company has been
duly incorporated and is validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation, except where failure
to be duly incorporated, validly existing and in good standing would not,
individually or in the aggregate, have a Material Adverse Effect;
(f) The Company has an authorized capitalization as set forth in the
Prospectus, as amended or supplemented, all of the issued shares of capital
stock of the Company have been duly and validly authorized and issued and
are fully paid and non-assessable; and all of the issued shares of capital
stock of each subsidiary of the Company have been duly and validly
authorized and issued, are fully paid and non-assessable and are owned
directly or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims (except as otherwise disclosed in the
Prospectus as amended or supplemented or where, individually or in the
aggregate, the failure to have been duly and validly authorized and issued,
to be fully paid and non-assessable and to be owned directly or indirectly
by the Company free and clear of liens, encumbrances, equities or claims
would not have a Material Adverse Effect);
(g) The Securities have been duly authorized, and, when the Designated
Securities are issued and delivered pursuant to this Agreement and the
Pricing Agreement with respect to such Designated Securities, such
Designated Securities will have been duly executed, authenticated, issued
and delivered and will constitute valid and legally binding obligations of
the Company entitled to the benefits provided by the Indenture, which will
be substantially in the form filed as an exhibit to the Registration
Statement; the Indenture has been duly authorized and duly qualified under
the Trust Indenture Act and, at the Time of Delivery for such Designated
4
Securities (as defined in Section 5 hereof), the Indenture will constitute
a valid and legally binding instrument, enforceable in accordance with its
terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles, regardless of
whether such enforceability is considered in a proceeding in equity or at
law; and the Indenture conforms in all material respects, and the
Designated Securities will conform in all material respects, to the
descriptions thereof contained in the Prospectus as amended or supplemented
with respect to such Designated Securities;
(h) The issue and sale of the Securities and the compliance by the
Company with all of the provisions of the Securities, the Indenture, this
Agreement and any Pricing Agreement, and the consummation of the
transactions herein and therein contemplated will not conflict with or
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust,
sale/leaseback agreement, loan agreement or other similar financing
agreement or instrument, or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which the Company or
any of its subsidiaries is bound or to which any of the property or assets
of the Company or any of its subsidiaries is subject (except for such
conflicts, breaches, violations and defaults as individually or in the
aggregate would not have a Material Adverse Effect and would not have a
material adverse effect on the ability of the Company to timely perform its
obligations under this Agreement and the Pricing Agreement), nor will such
action result in any violation of the provisions of the Certificate of
Incorporation or By-laws of the Company or any statute or any order, rule
or regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or any of their
properties (except for such violations as individually or in the aggregate
would not have a Material Adverse Effect and would not have a material
adverse effect on the ability of the Company to timely perform its
obligations under this Agreement and the Pricing Agreement); and no
consent, approval, authorization, order, registration or qualification of
or with any such court or governmental agency or body is required for the
issue and sale of the Securities or the consummation by the Company of the
transactions contemplated by this Agreement or any Pricing Agreement or the
Indenture, except such as have been, or will have been prior to the Time of
Delivery, obtained under the Act and the Trust Indenture Act and such
consents, approvals, authorizations, registrations or qualifications as may
be required under state securities or Blue Sky laws or the laws of
jurisdictions outside of the United States in connection with the purchase
and distribution of the Securities by the Underwriters;
(i) The statements set forth in the Prospectus as amended or
supplemented under the captions "Description of Debt Securities" and
"Description of the Notes", insofar as they purport to constitute a summary
of the terms of the Securities, and under the captions "Plan of
Distribution", "Underwriting", "Certain U.S. Federal Tax Considerations",
"Management's Discussion and Analysis of Financial Condition and Results of
Operations - Legal and Environmental Matters" and "Business - Legal
Proceedings", insofar as they purport to describe the provisions of the
laws, documents and proceedings referred to therein, are accurate in all
material respects;
(j) Neither the Company nor any of its subsidiaries is in violation of
its Certificate of Incorporation or By-laws (or comparable governing
documents). Except as set forth in the Prospectus as amended or
supplemented and such violations, defaults and failures as individually or
in the aggregate would not have a Material Adverse Effect, neither the
Company nor any of its subsidiaries (a) is in default, and no event has
occurred which, with notice or lapse of time or both, would constitute such
a default, in the performance or observance of any obligation, agreement,
covenant or condition contained in any indenture, mortgage, deed of trust,
loan agreement, lease or other agreement or instrument to which it is a
party or by which it or any of
5
its properties may be bound, (b) is in violation of any law, ordinance,
governmental rule, regulation or court decree to which it or its property
is subject or (c) has failed to obtain any license, permit, certificate,
franchise or other governmental authorization necessary to the ownership of
its property or to the conduct of its business;
(k) Other than as set forth in the Prospectus as amended or
supplemented, there are no legal or governmental proceedings pending to
which the Company or any of its subsidiaries is a party or of which any
property of the Company or any of its subsidiaries is the subject which, if
determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a Material Adverse Effect; and, to
the Company's knowledge, no such proceedings are threatened or contemplated
by governmental authorities or threatened by others;
(l) The Company is not and, after giving effect to the offering and
sale of the Securities, 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 "Investment Company Act");
(m) Each of Arthur Andersen LLP and Deloitte & Touche LLP, who have
certified certain financial statements of the Company and its subsidiaries,
are independent public accountants as required by the Act and the rules and
regulations of the Commission thereunder; and
(n) Other than as set forth in the Prospectus as amended or
supplemented, the Company (i) is in compliance with, and is not subject to
costs or liabilities under, any and all local, state, provincial, federal
and foreign laws, regulations, rules of common law, orders and decrees, as
in effect as of the date hereof, and any presently effective judgments,
decrees, orders and injunctions issued or promulgated thereunder, in each
case, relating to pollution or protection of public and employee health and
safety and the environment applicable to it or its business or operations
or ownership or use of its property ("Environmental Laws"), other than such
noncompliance or costs or liabilities that would not, either individually
or in the aggregate, result in a Material Adverse Effect, and (ii)
possesses all permits, licenses or other approvals required under
applicable Environmental Laws, other than such permits, licenses or
approvals the lack of which would not, either individually or in the
aggregate, result in a Material Adverse Effect. The statements set forth in
the Prospectus as amended or supplemented or incorporated by reference
therein regarding pending or threatened proceedings, notices of violation
and notices of potential responsibility or liability under Environmental
Laws and other existing environmental conditions with respect to the
Company or its subsidiaries, do 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. The
Company maintains a system of internal environmental management controls
sufficient to provide reasonable assurance that all material sampling,
analytical, record keeping and reporting requirements under applicable
Environmental Laws are implemented, executed and maintained in accordance
with the requirements of such Environmental Laws.
(o) This Agreement has been duly authorized, executed, and delivered by
the Company; and the Pricing Agreement with respect to the Designated
Securities will be duly authorized, executed, and delivered by the Company.
3. Upon the execution of the Pricing Agreement applicable to any
Designated Securities and authorization by the Representatives of the release of
such Designated Securities, the several Underwriters propose to offer such
Designated Securities for sale upon the terms and conditions set forth in the
Prospectus as amended or supplemented.
6
4. (a) Upon the execution of the Pricing Agreement applicable to any
Designated Securities if and as set forth therein, the Company hereby confirms
its engagement of the services of the Independent Underwriter as, and the
Independent Underwriter hereby confirms its agreement with the Company to render
services as, a "qualified independent underwriter" within the meaning of Section
(b)(15) of Rule 2720 with respect to the offering and sale of the Designated
Securities as specified in the Pricing Agreement with respect thereto.
(b) Upon the execution of the Pricing Agreement applicable to any
Designated Securities if and as set forth therein, the Independent
Underwriter hereby represents and warrants to, and agrees with, the Company
and the Underwriters that with respect to the offering and sale of the
Designated Securities as described in the Prospectus as amended or
supplemented:
(i) The Independent Underwriter constitutes a "qualified
independent underwriter" within the meaning of Section (b)(15) of Rule
2720;
(ii) The Independent Underwriter has participated in the
preparation of the Prospectus as amended or supplemented and has
exercised the usual standards of "due diligence" in respect thereto;
(iii) The Independent Underwriter has undertaken the legal
responsibilities and liabilities of an underwriter under the Act
specifically including those inherent in Section 11 thereof;
(iv) Based upon (A) a review of the Company, including an
examination of the Registration Statement, information regarding the
earnings, assets, capital structure and growth rate of the Company and
other pertinent financial and statistical data, (B) inquiries of and
conferences with the management of the Company and its counsel and
independent public accountants regarding the business and operations
of the Company, (C) consideration of the prospects for the industry in
which the Company competes, estimates of the business potential of the
Company, assessments of its management, the general condition of the
securities markets, market prices of the capital stock and debt
securities of, and financial and operating data concerning, companies
believed by the Independent Underwriter to be comparable to the
Company with debt securities of maturity and seniority similar to the
Designated Securities and the demand for securities of comparable
companies similar to the Designated Securities and (D) such other
studies, analyses and investigations as the Independent Underwriter
has deemed appropriate, and assuming that the offering and sale of the
Designated Securities is made as contemplated herein, in the Pricing
Agreement and in the Prospectus as amended or supplemented, the
Independent Underwriter recommends, as of the date of the execution
and delivery of the Pricing Agreement with respect to such Designated
Securities, that the yield on the Designated Securities be not less
than the percentage set forth in Schedule III to the Pricing Agreement
with respect to such Designated Securities (corresponding to an
initial public offering price of the percentage set forth in Schedule
III to the Pricing Agreement with respect to such Designated
Securities), which minimum yield should in no way be considered or
relied upon as an indication of the value of the Designated
Securities; and
(v) Subject to the provisions of Section 8 hereof, the
Independent Underwriter will furnish to the Underwriters at the Time
of Delivery a letter, dated the Time of Delivery, in form and
substance satisfactory to the Underwriters, to the effect of clauses
(i) through (iv) above.
(c) Upon the execution of the Pricing Agreement applicable to any
Designated Securities if and as set forth therein, the Independent
Underwriter hereby agrees with the
7
Company and the Underwriters that, as part of its services hereunder, in
the event of any amendment or supplement to the Prospectus as amended or
supplemented with respect to the Designated Securities, the Independent
Underwriter will render services as a "qualified independent underwriter"
within the meaning of Section (b)(15) of Rule 2720 with respect to the
offering and sale of the Designated Securities as described in the
Prospectus as so further amended or supplemented that are substantially the
same as those services being rendered with respect to the offering and sale
of the Designated Securities as described in the Prospectus as amended or
supplemented (including those described in subsection (b) above).
(d) Upon the execution of the Pricing Agreement applicable to any
Designated Securities if and as set forth therein, the Company, the
Underwriters and the Independent Underwriter agree to comply in all
material respects with all of the requirements of Rule 2720 applicable to
them in connection with the offering and sale of the Designated Securities.
The Company agrees to cooperate with the Underwriters and the Independent
Underwriter to enable the Underwriters to comply with Rule 2720 and the
Independent Underwriter to perform the services contemplated by this
Agreement.
(e) As compensation for the services of the Independent Underwriter
hereunder, the Company agrees to pay the Independent Underwriter $10,000 at
the Time of Delivery. In addition, the Company agrees promptly to
reimburse the Independent Underwriter for all out-of-pocket expenses,
including fees and disbursements of counsel, reasonably incurred in
connection with this Agreement and the services to be rendered hereunder.
5. Designated Securities to be purchased by each Underwriter pursuant to
the Pricing Agreement relating thereto, in the form specified in such Pricing
Agreement, and in such authorized denominations and registered in such names as
the Representatives may request upon at least forty-eight hours' prior notice to
the Company, shall be delivered by or on behalf of the Company to the
Representatives for the account of such Underwriter, against payment by such
Underwriter or on its behalf of the purchase price therefor by wire transfer of
Federal (same-day) funds to the account specified by the Company to the
Representatives at least forty-eight hours in advance or at such other place and
time and date as the Representatives and the Company may agree upon in writing,
such time and date being herein called the "Time of Delivery" for such
Securities.
6. The Company agrees with each of the Underwriters of any Designated
Securities and with the Independent Underwriter:
(a) To prepare the Prospectus as amended or supplemented in relation
to the applicable Designated Securities in a form approved by the
Representatives (which approval will not be unreasonably withheld or
delayed) and to file such Prospectus pursuant to Rule 424(b) under the Act
not later than the Commission's close of business on the second business
day following the execution and delivery of the Pricing Agreement relating
to the applicable Designated Securities or, if applicable, such earlier
time as may be required by Rule 424(b); to make no further amendment or any
supplement to the Registration Statement or Prospectus as amended or
supplemented after the date of the Pricing Agreement relating to such
Securities and prior to the Time of Delivery for such Securities which
shall be disapproved by the Representatives or the Independent Underwriter
promptly after reasonable notice thereof (which disapproval, if any, must
not be unreasonable); to advise the Representatives and the Independent
Underwriter promptly of any such amendment or supplement after such Time of
Delivery and furnish the Representatives and the Independent Underwriter
with copies thereof; to file promptly all reports and any definitive proxy
or information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange
Act for so long as the delivery of a prospectus is required in connection
with the offering or sale of such Securities, and during such same period
to advise the Representatives and the Independent
8
Underwriter, promptly after it receives notice thereof, of the time when
any amendment to the Registration Statement has been filed with the
Commission or becomes effective or any supplement to the Prospectus or any
amended Prospectus has been filed with the Commission, of the issuance by
the Commission of any stop order or of any order preventing or suspending
the use of any prospectus relating to the Securities, of the suspension of
the qualification of such Securities for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for any
such purpose, or of any request by the Commission for the amending or
supplementing of the Registration Statement or Prospectus or for additional
information; and, in the event of the issuance of any such stop order or of
any such order preventing or suspending the use of any prospectus relating
to the Securities or suspending any such qualification, to promptly use its
best efforts to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Securities for
offering and sale under the securities laws of such jurisdictions in the
United States as the Representatives may request and to comply with such
laws so as to permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the distribution
of such Securities, provided that in connection therewith the Company shall
not be required to qualify as a foreign corporation or to file a general
consent to service of process in any jurisdiction;
(c) Prior to 10:00 a.m., New York City time, on the New York Business
Day next succeeding the date of the Pricing Agreement relating to the
applicable Designated Securities and from time to time thereafter, to
furnish to the Underwriters and the Independent Underwriter in New York
City copies of the Prospectus as amended or supplemented in relation to
such Securities in such quantities as the Representatives and the
Independent Underwriter may reasonably request, and, if the delivery of a
prospectus is required at any time in connection with the offering or sale
of such Securities and if at such time any event shall have occurred as a
result of which the Prospectus as then amended or supplemented in relation
to such Securities would include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made when the
Prospectus, as so amended or supplemented, is delivered, not misleading,
or, if for any other reason it shall be necessary during such same period
to amend or supplement the Prospectus or to file under the Exchange Act any
document incorporated by reference in the Prospectus in order to comply
with the Act, the Exchange Act or the Trust Indenture Act, to notify the
Representatives and the Independent Underwriter and upon their request to
file such document and to prepare and furnish without charge to each
Underwriter, to the Independent Underwriter and to any dealer in securities
as many copies as the Representatives may from time to time reasonably
request of an amended Prospectus or a supplement to the Prospectus which
will correct such statement or omission or effect such compliance and in
case any Underwriter is required to deliver a prospectus in connection with
sales of any of such Securities at any time nine months or more after the
time of issue of the Prospectus as amended or supplemented in relation
thereto, upon the request and at the expense of such Underwriter, to
prepare and deliver to such Underwriter as many copies as such Underwriter
may request of an amended or supplemented Prospectus complying with Section
10(a)(3) of the Act in relation to such Securities;
(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)
under the Act), an earnings statement of the Company and its subsidiaries
(which need not be audited) complying with Section 11(a) of the Act and the
rules and regulations of the Commission thereunder (including, at the
option of the Company, Rule 158, in which case this Section 6(d) will not
be construed to require the Company to file any report referred to in Rule
158 prior to the time at which such report is otherwise due);
9
(e) During the period beginning from the date of the Pricing Agreement
for such Designated Securities and continuing to and including the later of
(i) the termination of trading restrictions for such Designated Securities,
as notified to the Company by the Representatives and (ii) the Time of
Delivery for such Designated Securities, not to offer, sell, contract to
sell or otherwise dispose of any debt securities of the Company which
mature more than one year after such Time of Delivery and which are
substantially similar to such Designated Securities, without the prior
written consent of the Representatives; and
(f) If the Company elects to rely upon Rule 462(b), the Company shall
file a Rule 462(b) Registration Statement with the Commission in compliance
with Rule 462(b) by 10:00 P.M., Washington, D.C. time, on the date of this
Agreement, and the Company shall at the time of filing either pay to the
Commission the filing fee for the Rule 462(b) Registration Statement or
give irrevocable instructions for the payment of such fee pursuant to Rule
111(b) under the Act.
7. The Company covenants and agrees with the several Underwriters and the
Independent Underwriter that the Company will pay or cause to be paid the
following: (i) the fees, disbursements and expenses of the Company's counsel and
accountants in connection with the registration of the Securities under the Act
and all other expenses in connection with the preparation, printing and filing
of the Registration Statement, any Preliminary Prospectus and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters, the Independent Underwriter and dealers; (ii) the
cost of printing or producing any Agreement among Underwriters, this Agreement,
any Pricing Agreement, any Indenture, any Blue Sky and Legal Investment
Memoranda, closing documents (including any compilations thereof) and any other
documents in connection with the offering, purchase, sale and delivery of the
Securities; (iii) all expenses in connection with the qualification of the
Securities for offering and sale under state securities laws as provided in
Section 6(b) hereof, including the fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection with the
Blue Sky and Legal Investment Surveys; (iv) any fees charged by securities
rating services for rating the Securities; (v) any filing fees incident to, and
the fees and disbursements of counsel for the Underwriters in connection with,
any required review by the NASD of the terms of the sale of the Securities; (vi)
the cost of preparing the Securities; (vii) the fees and expenses of any Trustee
and any agent of any Trustee and the fees and disbursements of counsel for any
Trustee in connection with any Indenture and the Securities; and (viii) all
other costs and expenses incident to the performance of its obligations
hereunder which are not otherwise specifically provided for in this Section. It
is understood, however, that, except as provided in this Section, and Sections
10 and 12 hereof, the Underwriters will pay all of their own costs and expenses,
including the fees of their counsel, transfer taxes on resale of any of the
Securities by them, and any advertising expenses connected with any offers they
may make.
8. The respective obligations of the Underwriters of any Designated
Securities and the Independent Underwriter under this Agreement and the Pricing
Agreement relating to such Designated Securities shall be subject, in the
discretion of the Representatives or the Independent Underwriter, as the case
may be, to the condition that all representations and warranties and other
statements of the Company in or incorporated by reference in the Pricing
Agreement relating to such Designated Securities are, at and as of the Time of
Delivery for such Designated Securities, true and correct, the condition that
the Company shall have performed all of its obligations hereunder theretofore to
be performed, the condition (in the case of the Underwriters) that the
Independent Underwriter shall have furnished to the Underwriters the letter
referred to in clause (v) of Section 4(b) hereof and the following additional
conditions:
(a) The Prospectus as amended or supplemented in relation to the
applicable Designated Securities shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed for
such filing by the rules and regulations under the Act and in accordance
with Section 6(a) hereof; if the Company has elected to rely upon Rule
462(b), the Rule 462(b) Registration Statement shall have become effective
by 10:00 P.M., Washington,
10
D.C. time, on the date of this Agreement; no stop order suspending the
effectiveness of the Registration Statement or any part thereof shall have
been issued and no proceeding for that purpose shall have been initiated or
threatened by the Commission; and all requests for additional information
on the part of the Commission shall have been complied with to the
reasonable satisfaction of the Representatives' or the Independent
Underwriter, as the case may be;
(b) Counsel for the Underwriters shall have furnished to the
Representatives or the Independent Underwriter, as the case may be, their
written opinion, dated the Time of Delivery for such Designated Securities,
in substantially the form of Annex III hereto and such counsel shall have
received such papers and information as they may reasonably request to
enable them to render such opinion;
(c) The General Counsel or other senior in-house counsel of the Company
shall have furnished to the Underwriters or the Independent Underwriter, as
the case may be, his written opinion, dated the Time of Delivery for such
Designated Securities, in substantially the form attached hereto as Annex
IV;
(d) Brobeck, Phleger & Harrison LLP or other counsel for the Company
satisfactory to the Representatives or the Independent Underwriter, as the
case may be, shall have furnished to the Representatives or the Independent
Underwriter, as the case may be, their written opinion, dated the Time of
Delivery for such Designated Securities, in substantially the form attached
hereto as Annex V;
(e) The Trustee, shall have furnished to the Representatives or the
Independent Underwriter, as the case may be, an officer's certificate dated
the Time of Delivery in substantially the form set forth as Annex VI
hereto.
(f) On or prior to the date of the Pricing Agreement for any Designated
Securities and at the Time of Delivery for such Designated Securities, each
of the independent accountants of the Company who have certified the
financial statements of the Company and its subsidiaries included or
incorporated by reference in the Registration Statement shall have
furnished to the Representatives and the Independent Underwriter, as the
case may be, a letter to the effect set forth in Annex II(a) hereto, and a
letter dated such Time of Delivery to the effect set forth in Annex II(b)
hereto, respectively, and with respect to such letter dated such Time of
Delivery, as to such other matters as the Representatives and the
Independent Underwriter, as the case may be, may reasonably request and in
form and substance satisfactory to the Representatives and the Independent
Underwriter, as the case may be;
(g) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus as amended or
supplemented prior to the date of the Pricing Agreement relating to the
Designated Securities any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or
from any labor dispute or court or governmental action, order or decree,
otherwise than as set forth or contemplated in the Prospectus as amended or
supplemented prior to the date of the Pricing Agreement relating to the
Designated Securities, and (ii) since the latest date as of which
information is given in the Prospectus as amended or supplemented prior to
the date of the Pricing Agreement relating to the Designated Securities
there shall not have been any change in the capital stock (other than
issuances and forfeitures of capital stock in connection with equity-based
compensation plans of the company and issuances of stock upon the exercise,
conversion or exchange of any outstanding securities of the Company that
are excisable to purchase, or convertible into or exchangeable for, capital
stock and purchases of capital stock pursuant to any stock repurchase
program disclosed in the Prospectus as amended or supplemented) or any
increase in excess of $40 million in the
11
long-term debt of the Company or any of its subsidiaries otherwise than as
set forth or contemplated in the Prospectus as so amended or supplemented
or any change, or any development involving a prospective change, in or
affecting the general affairs, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries taken as a whole, otherwise than as set forth or contemplated
in the Prospectus as amended or supplemented prior to the date of the
Pricing Agreement relating to the Designated Securities, the effect of
which, in any such case described in clause (i) or (ii), is in the judgment
of the Representatives so material and adverse as to make it impracticable
or inadvisable to proceed with the public offering or the delivery of the
Designated Securities on the terms and in the manner contemplated in the
Prospectus as amended or supplemented;
(h) On or after the date of the Pricing Agreement relating to the
Designated Securities (i) no downgrading shall have occurred in the rating
accorded the Company's debt securities or preferred stock by any
"nationally recognized statistical rating organization", as that term is
defined by the Commission for purposes of Rule 436(g)(2) under the Act, and
(ii) no such organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, its rating of
any of the Company's debt securities or preferred stock;
(i) On or after the date of the Pricing Agreement relating to the
Designated Securities there shall not have occurred any of the following:
(i) a suspension or material limitation in trading in securities generally
on the New York Stock Exchange; (ii) a suspension or material limitation in
trading in the Company's securities on the New York Stock Exchange; (iii) a
general moratorium on commercial banking activities declared by either
Federal or New York State authorities; or (iv) the outbreak or escalation
of hostilities involving the United States or the declaration by the United
States of a national emergency or war, if the effect of any such event
specified in this clause (iv) in the judgment of the Representatives makes
it impracticable or inadvisable to proceed with the public offering or the
delivery of the Designated Securities on the terms and in the manner
contemplated in the Prospectus as first amended or supplemented relating to
the Designated Securities;
(j) The Company shall have complied with the provisions of Section 6(c)
hereof with respect to the furnishing of prospectuses on the New York
Business Day next succeeding the date of the Pricing Agreement relating to
such Designated Securities; and
(k) The Company shall have furnished or caused to be furnished to the
Representatives and the Independent Underwriter at the Time of Delivery for
the Designated Securities a certificate or certificates signed on behalf of
the Company by the Chief Executive Officer or Chief Financial Officer and
another senior officer of the Company substantially in the form of Annex
VII hereto (including any additional matters as the Representatives or the
Independent Underwriter, as the case may be, may reasonably request) and
otherwise satisfactory to the Representatives, the Independent Underwriter
and their counsel.
9. Upon the execution by the Independent Underwriter as such of the
Pricing Agreement applicable to any Designated Securities, the Independent
Underwriter consents to the references to it as set forth under the caption
"Underwriting" in the Prospectus as amended or supplemented with respect to such
Designated Securities and in any further amendment or supplement thereto made in
accordance with Section 6(a) hereof.
10. (a) The Company will indemnify and hold harmless each Underwriter and
the Independent Underwriter, as the case may be, against any losses, claims,
damages or liabilities, joint or several, to which such Underwriter or the
Independent Underwriter, as the case may be, may become subject, under the Act
or otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a
12
material fact contained in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and will
reimburse each Underwriter or the Independent Underwriter, as the case may be,
for any legal or other expenses reasonably incurred by such Underwriter or the
Independent Underwriter, as the case may be, in connection with investigating or
defending any such action or claim as such expenses are incurred; provided,
however, that the Company shall not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in any Preliminary Prospectus, any preliminary prospectus supplement, the
Registration Statement, the Prospectus as amended or supplemented and any other
prospectus relating to the Securities, or any such amendment or supplement in
reliance upon and in conformity with written information furnished to the
Company by any Underwriter of Designated Securities through the Representatives
or the Independent Underwriter, as the case may be, expressly for use in the
Prospectus as amended or supplemented relating to such Securities or constitutes
a reference to the Independent Underwriter consented to by it pursuant to
Section 9 hereof.
(b) Each Underwriter will indemnify and hold harmless the Company and
the Independent Underwriter, as the case may be, against any losses,
claims, damages or liabilities to which the Company or the Independent
Underwriter, as the case may be, may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, any preliminary prospectus supplement, the
Registration Statement, the Prospectus as amended or supplemented and any
other prospectus relating to the Securities, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary
to make the statements therein not misleading, in each case to the extent,
but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration
Statement, the Prospectus as amended or supplemented and any other
prospectus relating to the Securities, or any such amendment or supplement
in reliance upon and in conformity with written information furnished to
the Company by such Underwriter through the Representatives expressly for
use therein; and will reimburse the Company or the Independent Underwriter,
as the case may be, for any legal or other expenses reasonably incurred by
the Company or the Independent Underwriter, as the case may be, in
connection with investigating or defending any such action or claim as such
expenses are incurred.
(c) The Independent Underwriter will indemnify and hold harmless the
Company and each Underwriter, as the case may be, against any losses,
claims, damages or liabilities to which the Company or such Underwriter, as
the case may be, may become subject, under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Prospectus, any
preliminary prospectus supplement, the Registration Statement, the
Prospectus as amended or supplemented and any other prospectus relating to
the Securities, or any amendment or supplement thereto, or arise out of or
are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent,
that such untrue statement or alleged untrue statement or omission or
alleged omission was made in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement or the Prospectus as
amended or supplemented and any other prospectus relating to the
Securities, or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by the
Independent Underwriter expressly for use therein or constitutes a
reference to the Independent Underwriter consented to
13
by it pursuant to Section 9 hereof; and will reimburse the Company or each
Underwriter, as the case may be, for any legal or other expenses reasonably
incurred by the Company or such Underwriter, as the case may be, in
connection with investigating or defending any such action or claim as such
expenses are incurred.
(d) Promptly after receipt by an indemnified party under subsection
(a), (b) or (c) above of 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; 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. In case any such action shall be brought against any
indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof,
with counsel satisfactory to such indemnified party (who shall not, except
with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified
party of its election so to assume the defense thereof, the indemnifying
party shall not be liable to such indemnified party under such subsection
for any legal expenses of other counsel or any other expenses, in each case
subsequently incurred by such indemnified party, in connection with the
defense thereof other than reasonable costs of investigation. No
indemnifying party shall, without the written consent of the indemnified
party, effect the settlement or compromise of, or consent to the entry of
any judgment with respect to, any pending or threatened action or claim in
respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified party is an actual or potential party to
such action or claim) unless such settlement, compromise or judgment (i)
includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to act,
by or on behalf of any indemnified party.
(e) If the indemnification provided for in this Section 10 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a), (b) or (c) above in respect of any losses, claims, damages
or liabilities (or actions in respect thereof) referred to therein, then
each indemnifying party 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 each party to the
Pricing Agreement with respect to the Designated Securities from the
offering of the Designated Securities to which such loss, claim, damage or
liability (or action in respect thereof) relates. If, however, 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 subsection (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 each party to the Pricing Agreement with respect
to the Designated Securities 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, the
Underwriters and the Independent Underwriter shall be deemed to be in the
same proportion as the total net proceeds from such offering (before
deducting expenses) received by the Company, the total underwriting
discounts and commissions received by such Underwriters and the fee payable
to the Independent Underwriter pursuant to the first sentence of Section
4(e) hereof, respectively, bear to the sum of the total proceeds from the
sale of the Designated Securities (before deducting expenses) in the
offering and the fee payable to the Independent Underwriter pursuant to the
first sentence of Section 4(e) hereof. 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
14
omission to state a material fact relates to information supplied by the
Company on the one hand or either the Underwriters or the Independent
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, the Underwriters and the Independent Underwriter
agree that it would not be just and equitable if contribution pursuant to
this subsection (e) were determined by pro rata allocation (even if the
Underwriters and the Independent Underwriter were treated as one entity for
such purpose) or by any other method of allocation which does not take
account of the equitable considerations referred to above in this
subsection (e). 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 subsection (e) 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 subsection (e), neither any
Underwriter nor the Independent Underwriter shall be required to contribute
any amount in excess of the amount by which the total price at which the
applicable Designated Securities underwritten by it and distributed to the
public were offered to the public, and the Independent Underwriter shall
not be required to contribute any amount in excess of the amount by which
the total price at which the Designated Securities underwritten by the
Underwriters and distributed to the public were offered to the public,
exceeds the amount of any damages which such Underwriter or the Independent
Underwriter, as the case may be, have 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 Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
obligations of the Underwriters of Designated Securities in this subsection
(e) to contribute are several in proportion to their respective
underwriting obligations with respect to such Securities and not joint.
(f) The obligations of the Company under this Section 10 shall be in
addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls any Underwriter or the Independent Underwriter within the meaning
of the Act; the obligations of the Underwriters under this Section 10 shall
be in addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to
each officer and director of the Company including any person who, with his
or her consent, is named in the Registration Statement as about to become a
director of the Company and to each person, if any, who controls the
Company or the Independent Underwriter within the meaning of the Act; and
the obligations of the Independent Underwriter under this Section 10 shall
be in addition to any liability which the Independent Underwriter may
otherwise have and shall extend, upon the same terms and conditions, to
each officer and director of the Company (including any person who, with
his or her consent, is named in the Registration Statement as about to
become a director of the Company) and to each person, if any, who controls
the Company or any Underwriter within the meaning of the Act.
11. (a) If any Underwriter shall default in its obligation to purchase
the Designated Securities which it has agreed to purchase under the Pricing
Agreement relating to such Designated Securities, the Representatives may in
their discretion arrange for themselves or another party or other parties to
purchase such Designated Securities on the terms contained herein. If within
thirty-six hours after such default by any Underwriter the Representatives do
not arrange for the purchase of such Designated Securities, then the Company
shall be entitled to a further period of thirty-six hours within which to
procure another party or other parties satisfactory to the Representatives to
purchase such Designated Securities on such terms. In the event that, within the
respective prescribed periods, the Representatives notify the Company that they
have so arranged for the purchase of such Designated Securities, or the Company
notifies the Representatives that it has so arranged for the purchase of such
Designated Securities, the Representatives or the Company shall have the right
to postpone the Time of
15
Delivery for such Designated Securities for a period of not more than seven
days, in order to effect whatever changes may thereby be made necessary in the
Registration Statement or the Prospectus as amended or supplemented, or in any
other documents or arrangements, and the Company agrees to file promptly any
amendments or supplements to the Registration Statement or the Prospectus which
in the opinion of the Representatives may thereby be made necessary. The term
"Underwriter" as used in this Agreement shall include any person substituted
under this Section with like effect as if such person had originally been a
party to the Pricing Agreement with respect to such Designated Securities.
(b) If, after giving effect to any arrangements for the purchase of the
Designated Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of such Designated Securities which remains
unpurchased does not exceed one-eleventh of the aggregate principal amount
of the Designated Securities, then the Company shall have the right to
require each non-defaulting Underwriter to purchase the principal amount of
Designated Securities which such Underwriter agreed to purchase under the
Pricing Agreement relating to such Designated Securities and, in addition,
to require each non-defaulting Underwriter to purchase its pro rata share
(based on the principal amount of Designated Securities which such
Underwriter agreed to purchase under such Pricing Agreement) of the
Designated Securities of such defaulting Underwriter or Underwriters for
which such arrangements have not been made; but nothing herein shall
relieve a defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Designated Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of Designated Securities which remains
unpurchased exceeds one-eleventh of the aggregate principal amount of the
Designated Securities, as referred to in subsection (b) above, or if the
Company shall not exercise the right described in subsection (b) above to
require non-defaulting Underwriters to purchase Designated Securities of a
defaulting Underwriter or Underwriters, then the Pricing Agreement relating
to such Designated Securities shall thereupon terminate, without liability
on the part of any non-defaulting Underwriter, the Independent Underwriter
or the Company, except for the expenses to be borne by the Company and the
Underwriters as provided in the second sentence of Section 4(e) hereof and
Section 7 hereof and the indemnity and contribution agreements in Section
10 hereof; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
12. The respective indemnities, agreements, representations, warranties
and other statements of the Company, the several Underwriters and the
Independent Underwriter, as set forth in this Agreement or made by or on behalf
of them, respectively, pursuant to this Agreement, shall remain in full force
and effect, regardless of any investigation (or any statement as to the results
thereof) made by or on behalf of any Underwriter, the Independent Underwriter or
any controlling person of any Underwriter, the Independent Underwriter or the
Company, or any officer or director or controlling person of the Company, and
shall survive delivery of and payment for the Securities.
13. If any Pricing Agreement shall be terminated pursuant to Section 11
hereof, the Company shall not then be under any liability to any Underwriter or
the Independent Underwriter with respect to the Designated Securities covered by
such Pricing Agreement except as provided in the second sentence of Section 4(e)
hereof and Sections 7 and 10 hereof; but, if for any other reason Designated
Securities are not delivered by or on behalf of the Company as provided herein,
the Company will reimburse the Underwriters through the Representatives for all
out-of-pocket expenses approved in writing by the Representatives, including
fees and disbursements of counsel, reasonably incurred by the Underwriters in
making preparations for the purchase, sale and delivery of such Designated
Securities, but the Company shall then be under no further liability to any
Underwriter or the Independent Underwriter with respect to
16
such Designated Securities except as provided in the second sentence of Section
4(e) hereof and Sections 7 and 10 hereof.
14. In all dealings hereunder, the Representatives of the Underwriters of
Designated Securities shall act on behalf of each of such Underwriters, and the
parties hereto shall be entitled to act and rely upon any statement, request,
notice or agreement on behalf of any Underwriter made or given by such
Representatives jointly or by such of the Representatives, if any, as may be
designated for such purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Representatives as set forth in the
Pricing Agreement; if to the Independent Underwriter shall be delivered or sent
by mail, telex or facsimile transmission to the name and address of the
Independent Underwriter as set forth in the Pricing Agreement; and if to the
Company shall be delivered or sent by mail, telex or facsimile transmission to
the address of the Company set forth in the Registration Statement: Attention:
General Counsel; provided, however, that any notice to an Underwriter pursuant
to Section 10(d) hereof shall be delivered or sent by mail, telex or facsimile
transmission to such Underwriter at its address set forth in its Underwriters'
Questionnaire, or telex constituting such Questionnaire, which address will be
supplied to the Company by the Representatives upon request. Any such
statements, requests, notices or agreements shall take effect upon receipt
thereof.
15. This Agreement and each Pricing Agreement shall be binding upon, and
inure solely to the benefit of, the Underwriters, the Independent Underwriter,
the Company and, to the extent provided in Sections 10 and 12 hereof, the
officers and directors of the Company and each person who controls the Company,
the Independent Underwriter or any Underwriter, and their respective heirs,
executors, administrators, successors and assigns, and no other person shall
acquire or have any right under or by virtue of this Agreement or any such
Pricing Agreement. No purchaser of any of the Securities from any Underwriter
shall be deemed a successor or assign by reason merely of such purchase.
16. Time shall be of the essence of each Pricing Agreement. As used herein,
"business day" shall mean any day when the Commission's office in Washington,
D.C. is open for business.
17. This Agreement and each Pricing Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
17
18. This Agreement and each Pricing Agreement may be executed by any one
or more of the parties hereto and thereto in any number of counterparts, each of
which shall be deemed to be an original, but all such respective counterparts
shall together constitute one and the same instrument.
If the foregoing is in accordance with your understanding, please sign
and return to us one for the Company, each of the Representatives and the
Independent Underwriter, if any, plus one for each counsel counterparts hereof.
Very truly yours,
Louisiana-Pacific Corporation
By: /s/ Curtis M. Stevens
-----------------------------------------------
Name: Curtis M. Stevens
Title: Vice-President and Chief Financial Officer
Accepted as of the date hereof:
Goldman, Sachs & Co.
Banc of America Securities LLC
By Goldman, Sachs & Co.
By: /s/ Goldman, Sachs & Co.
-----------------------------
(Goldman, Sachs & Co.)
Independent Underwriter:
Goldman, Sachs & Co.
By: /s/ Goldman, Sachs & Co.
-----------------------------
(Goldman, Sachs & Co.)
ANNEX I
Pricing Agreement
Goldman, Sachs & Co., and
Banc of America Securities LLC
[Other co-representatives]
As Representatives of the several
Underwriters named in Schedule I hereto,
c/o Goldman, Sachs & Co.,
85 Broad Street,
New York, New York 10004
[Goldman, Sachs & Co.,
As Independent Underwriter
85 Broad Street
New York, New York 10004]
, 2001
Ladies and Gentlemen:
Louisiana-Pacific Corporation, a Delaware corporation (the "Company"),
proposes, subject to the terms and conditions stated herein and in the
Underwriting Agreement, dated August __, 2001 (the "Underwriting Agreement"),
between the Company on the one hand and Goldman, Sachs & Co. and Banc of America
Securities LLC, and the Independent Underwriter, on the other hand, to issue and
sell to the Underwriters named in Schedule I hereto (the "Underwriters") the
Securities specified in Schedule II hereto (the "Designated Securities"). Each
of the provisions of the Underwriting Agreement is incorporated herein by
reference in its entirety [(other than the provisions relating to the
Independent Underwriter as such)], and shall be deemed to be a part of this
Agreement to the same extent as if such provisions had been set forth in full
herein; and each of the representations and warranties set forth therein [(other
than the representations and warranties of the Independent Underwriter as such)]
shall be deemed to have been made at and as of the date of this Pricing
Agreement, except that each representation and warranty which refers to the
Prospectus in Section 2 of the Underwriting Agreement shall be deemed to be a
representation or warranty as of the date of the Underwriting Agreement in
relation to the Prospectus (as therein defined), and also a representation and
warranty as of the date of this Pricing Agreement in relation to the Prospectus
as amended or supplemented relating to the Designated Securities which are the
subject of this Pricing Agreement. Each reference to the Representatives herein
and in the provisions of the Underwriting Agreement so incorporated by reference
shall be deemed to refer to you. Unless otherwise defined herein, terms defined
in the Underwriting Agreement are used herein as therein defined. The
Representatives designated to act on behalf of the Representatives and on behalf
of each of the Underwriters of the Designated Securities pursuant to Section 14
of the Underwriting Agreement and the address of the Representatives referred to
in such Section 14 are set forth at the end of Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees to
issue and sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company, at the time and place
and at the purchase price to the Underwriters set forth in Schedule II hereto,
the principal amount of Designated Securities set forth opposite the name of
such Underwriter in Schedule I hereto. [Subject to the terms and conditions set
forth herein and in the Underwriting Agreement incorporated herein by
reference, upon the execution of this Agreement, the Company hereby confirms its
engagement of the services of the Independent Underwriter as, and the
Independent Underwriter hereby confirms its agreement with the Company to render
services as, a "qualified independent underwriter" within the meaning of Section
(b)(15) of Rule 2720 with respect to the offering and sale of the Designated
Securities specified herein, and all provisions with respect to the Independent
Underwriter contained in the Underwriting Agreement are incorporated herein in
their entirety.]
If the foregoing is in accordance with your understanding, please sign
and return to us one for the Company, each of the Representatives and the
Independent Underwriter, if any, plus one for each counsel counterparts hereof,
and upon acceptance hereof by you, on behalf of each of the Underwriters, [and
by the Independent Underwriter,] this letter and such acceptance hereof,
including the provisions of the Underwriting Agreement incorporated herein by
reference, shall constitute a binding agreement between each of the
Underwriters[, the Independent Underwriter] and the Company. It is understood
that your acceptance of this letter on behalf of each of the Underwriters is or
will be pursuant to the authority set forth in a form of Agreement among
Underwriters, the form of which shall be submitted to the Company for
examination upon request, but without warranty on the part of the
Representatives as to the authority of other Underwriters party thereto.
Very truly yours,
Louisiana-Pacific Corporation
By: _______________________________
Name:
Title:
Accepted as of the date hereof:
Goldman, Sachs & Co.
Banc of America Securities LLC,
on behalf of each of the Underwriters
By Goldman, Sachs & Co.
By:_______________________________
Goldman, Sachs & Co.
[Independent Underwriter:
Goldman, Sachs & Co.
By:_______________________________
Goldman, Sachs & Co.]
SCHEDULE I
Underwriter Principal
----------- Amount of
Designated
Securities to be
Purchased
-------------------
Goldman, Sachs & Co. $
Banc of America Securities LLC
[Name(s) of Co-Representatives]
[Names of other Underwriters]
-------------------
Total $
===================
SCHEDULE II
Title of Designated Securities:
[ %] [Floating Rate] [Zero Coupon] [Notes]
[Debentures] due ,
Aggregate principal amount:
[$]
Price to Public:
% of the principal amount of the Designated Securities, plus accrued
interest[, if any,] from to [and accrued
amortization[, if any,] from to ]
Purchase Price by Underwriters:
% of the principal amount of the Designated Securities, plus accrued interest
from
to [and accrued amortization[, if any,] from
to ]
Form of Designated Securities:
[Definitive form to be made available for checking and packaging at least
twenty-four hours prior to the Time of Delivery at the office of [The
Depository Trust Company or its designated custodian] [the Representatives]]
[Book-entry only form represented by one or more global securities deposited
with The Depository Trust Company ("DTC") or its designated custodian, to be
made available for checking by the Representatives at least twenty-four hours
prior to the Time of Delivery at the office of DTC.]
Specified funds for payment of purchase price:
Federal (same day) funds
Time of Delivery:
a.m. (New York City time), , 20
Indenture:
Indenture dated April 2, 1999, between the Company and , as Trustee
Maturity:
Interest Rate:
[ %] [Zero Coupon] [See Floating Rate Provisions]
Interest Payment Dates:
[months and dates, commencing ....................., 20..]
Redemption Provisions:
[No provisions for redemption]
[The Designated Securities may be redeemed, otherwise than through the
sinking fund, in whole or in part at the option of the Company, in the amount
of [$ ] or an integral multiple thereof,[on or after , at
the following redemption prices (expressed in percentages of principal
amount). If [redeemed on or before , %, and if] redeemed during
the 12-month period beginning ,
Year Redemption
---- Price
-----
and thereafter at 100% of their principal amount, together in each case
with accrued interest to the redemption date.]
[on any interest payment date falling on or after , ,
at the election of the Company, at a redemption price equal to the
principal amount thereof, plus accrued interest to the date of
redemption.]]
[Other possible redemption provisions, such as mandatory redemption upon
occurrence of certain events or redemption for changes in tax law]
[Restriction on refunding]
Sinking Fund Provisions:
[No sinking fund provisions]
[The Designated Securities are entitled to the benefit of a sinking fund to
retire [$ ] principal amount of Designated Securities on in
each of the years through
at 100% of their principal amount plus accrued interest[, together with
[cumulative] [noncumulative] redemptions at the option of the Company to
retire an additional [$ ] principal amount of Designated Securities
in the years through at 100% of their principal amount
plus accrued interest.]
[If Designated Securities are extendable debt securities, insert--
Extendable provisions:
Designated Securities are repayable on , [insert date and
years], at the option of the holder, at their principal amount with accrued
interest. The initial annual interest rate will be %, and thereafter
the annual interest rate will be adjusted on , and
to a rate not less than % of the effective annual interest rate on U.S.
Treasury obligations with -year maturities as of the [insert date 15
days prior to maturity date] prior to such [insert maturity date].]
[If Designated Securities are floating rate debt securities, insert--
Floating rate provisions:
Initial annual interest rate will be % through [and thereafter
will be adjusted [monthly] [on each , , and
] [to an annual rate of % above the average rate for -year
[month][securities][certificates of deposit] issued by
and [insert names of banks].] [and the annual interest rate
[thereafter] [from
through ] will be the interest yield equivalent of the weekly
average per annum market discount rate for -month Treasury bills
plus % of Interest Differential (the excess, if any, of (i) the then
current weekly average per annum secondary market yield for -month
certificates of deposit over (ii) the then current interest yield equivalent
of the weekly average per annum market discount rate for -month
Treasury bills); [from and thereafter the rate will be the then current
interest yield equivalent plus % of Interest Differential].]
Defeasance provisions:
Closing location for delivery of Designated Securities:
Additional Closing Conditions:
Paragraph 8(g) of the Underwriting Agreement should be modified in the event
that the Securities are denominated in, indexed to, or principal or interest
are paid in, a currency other than the U.S. dollar, more than one currency or
in a composite currency. The country or countries issuing such currency
should be added to the banking moratorium and hostilities clauses and the
following additional clause should be added to the paragraph (the entire
paragraph should be restated, as amended):
"; ( ) the imposition of the proposal of exchange controls by any
governmental authority in [insert the country or countries issuing such
currency, currencies or composite currency]".
Names and addresses of Representatives:
Designated Representatives:
Address for Notices, etc.:
[Other Terms]* :
Name and address of Independent Underwriter:
- ---------------------
* A description of particular tax, accounting or other unusual features (such
as the addition of event risk provisions) of the Designated Securities should be
set forth, or referenced to an attached and accompanying description, if
necessary, to ensure agreement as to the terms of the Designated Securities to
be purchased and sold. Such a description might appropriately be in the form in
which such features will be described in the Prospectus Supplement for the
offering.
[SCHEDULE III
Based upon clauses (A) through (D) of Section 4(b)(iv) of the Underwriting
Agreement and assuming that the offering and sale of the Designated Securities
is made as contemplated by the Underwriting Agreement, the Pricing Agreement and
the Prospectus as amended or supplemented, the minimum yield on the Designated
Securities recommended by the Independent Underwriter is __% (corresponding to
an initial public offering price of __%), which minimum yield should in no way
be considered or relied upon as an indication of the value of the Designated
Securities.]
ANNEX II(a)
FORM OF AUDITORS' COMFORT LETTER
Pursuant to Section 8(f) of the Underwriting Agreement, the
accountants shall furnish letters to the Underwriters or the Independent
Underwriter, as the case may be, to the effect that:
(i) They are independent certified public accountants with respect to the
Company and its subsidiaries within the meaning of the Act and the
applicable rules and regulations adopted by the Commission;
(ii) In their opinion, the financial statements and any supplementary
financial information and schedules audited (and, if applicable,
financial forecasts and/or pro forma financial information) examined
by them and included or incorporated by reference in the Registration
Statement or the Prospectus comply as to form in all material
respects with the applicable accounting requirements of the Act or
the Exchange Act, as applicable, and the related rules and
regulations; and, if applicable, they have made a review in
accordance with standards established by the American Institute of
Certified Public Accountants of the consolidated interim financial
statements, selected financial data, pro forma financial information,
financial forecasts and/or condensed financial statements derived
from audited financial statements of the Company for the periods
specified in such letter, as indicated in their reports thereon,
copies of which have been furnished to the representative or
representatives of the Underwriters (the "Representatives") such term
to include an Underwriter or Underwriters who act without any firm
being designated as its or their representatives or the Independent
Underwriter, as the case may be, and are attached to such letters;
(iii) They have made a review in accordance with standards established by
the American Institute of Certified Public Accountants of the
unaudited condensed consolidated statements of income, consolidated
balance sheets and consolidated statements of cash flows included in
the Prospectus and/or included in the Company's quarterly report on
Form 10-Q incorporated by reference into the Prospectus as indicated
in their reports thereon copies of which are attached to such
letters; and on the basis of specified procedures including inquiries
of officials of the Company who have responsibility for financial and
accounting matters regarding whether the unaudited condensed
consolidated financial statements referred to in paragraph (vi)(A)(i)
below comply as to form in all material respects with the applicable
accounting requirements of the Act and the Exchange Act and the
related rules and regulations, nothing came to their attention that
caused them to believe that the unaudited condensed consolidated
financial statements do not comply as to form in all material
respects with the applicable accounting requirements of the Act and
the Exchange Act and the related rules and regulations adopted by the
Commission;
(iv) The unaudited selected financial information with respect to the
consolidated results of operations and financial position of the
Company for the five most recent fiscal years included in the
Prospectus and included or incorporated by reference in Item 6 of the
Company's Annual Report on Form 10-K for the most recent fiscal year
agrees with the corresponding amounts (after restatement where
applicable) in the audited consolidated financial statements for five
such fiscal years included or incorporated by reference in the
Company's Annual Reports on Form 10-K for such fiscal years;
(v) They have compared the information in the Prospectus under selected
captions with the disclosure requirements of Regulation S-K and on
the basis of limited procedures specified in such letter nothing came
to their attention as a result of the foregoing procedures that
caused them to believe that this information does not conform in all
material respects with the disclosure requirements of Items 301, 302,
402 and 503(d), respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not constituting an examination
in accordance with generally accepted auditing standards, consisting
of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available
interim financial statements of the Company and its subsidiaries,
inspection of the minute books of the Company and its subsidiaries
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus, inquiries of officials
of the Company and its subsidiaries responsible for financial and
accounting matters and such other inquiries and procedures as may be
specified in such letter, nothing came to their attention that caused
them to believe that:
(A) (i) the unaudited condensed consolidated statements of
income, consolidated balance sheets and consolidated statements of
cash flows included in the Prospectus and/or included or incorporated
by reference in the Company's Quarterly Reports on Form 10-Q
incorporated by reference in the Prospectus do not comply as to form
in all material respects with the applicable accounting requirements
of the Exchange Act and the published rules and regulations adopted
by the Commission, or (ii) any material modifications should be made
to the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included in the Prospectus or included in the Company's Quarterly
Reports on Form 10-Q incorporated by reference in the Prospectus for
them to be in conformity with generally accepted accounting
principles;
(B) any other unaudited income statement data and balance sheet
items included in the Prospectus do not agree with the corresponding
items in the unaudited consolidated financial statements from which
such data and items were derived, and any such unaudited data and
items were not determined on a basis substantially consistent with
the basis for the corresponding amounts in the audited consolidated
financial statements included or incorporated by reference in the
Company's Annual Report on Form 10-K for the most recent fiscal year;
(C) the unaudited financial statements which were not included
in the Prospectus but from which were derived the unaudited condensed
financial statements referred to in clause (A) and any unaudited
income statement data and balance sheet items included in the
Prospectus and referred to in clause (B) were not determined on a
basis substantially consistent with the basis for the audited
financial statements included or incorporated by reference in the
Company's Annual Report on Form 10-K for the most recent fiscal year;
(D) any unaudited pro forma consolidated condensed financial
statements included or incorporated by reference in the Prospectus do
not comply as to form in all material respects with the applicable
accounting requirements of the Act and the rules and regulations
adopted by the Commission thereunder or the pro forma adjustments
have not been properly applied to the historical amounts in the
compilation of those statements;
(E) as of a specified date not more than five days prior to the
date of such letter, there have been any changes in the consolidated
capital stock (other than issuances of capital stock upon exercise of
options and stock appreciation rights, upon earn-outs of performance
shares and upon conversions of convertible securities, in each case
which were outstanding on the date of the latest balance sheet
included or incorporated by reference in the Prospectus) or any
increase in the consolidated long-term debt of the Company and its
subsidiaries, or any decreases in consolidated net current assets or
stockholders' equity or other items specified by the Representatives
or the Independent Underwriter, as the case may be, or any increases
in any items specified by the Representatives or the Independent
Underwriter, as the case may be, in each case as compared with
amounts shown in the latest balance sheet included or incorporated by
reference in the Prospectus, except in each case for changes,
increases or decreases which the Prospectus discloses have occurred
or may occur or which are described in such letter; and
(F) for the period from the date of the latest financial
statements included or incorporated by reference in the Prospectus to
the specified date referred to in clause (E) there were any decreases
in consolidated net revenues or operating profit or the total or per
share amounts of consolidated net income or other items specified by
the Representatives or the Independent Underwriter, as the case may
be, or any increases in any items specified by the Representatives or
the Independent Underwriter, as the case may be, in each case as
compared with the comparable period of the preceding year and with
any other period of corresponding length specified by the
Representatives or the Independent Underwriter, as the case may be,
except in each case for increases or decreases which the Prospectus
discloses have occurred or may occur or which are described in such
letter; and
(vii) In addition to the audit referred to in their report(s) included or
incorporated by reference in the Prospectus and the limited
procedures, inspection of minute books, inquiries and other
procedures referred to in paragraphs (iii) and (vi) above, they have
carried out certain specified procedures, not constituting an audit
in accordance with generally accepted auditing standards, with
respect to certain amounts, percentages and financial information
specified by the Representatives or the Independent Underwriter, as
the case may be, which are derived from the general accounting
records of the Company and its subsidiaries, which appear in the
Prospectus (excluding documents incorporated by reference), or in
Part II of, or in exhibits and schedules to, the Registration
Statement specified by the Representatives or the Independent
Underwriter, as the case may be, or in documents incorporated by
reference in the Prospectus specified by the Representatives or the
Independent Underwriter, as the case may be, and have compared
certain of such amounts, percentages and financial information with
the accounting records of the Company and its subsidiaries and have
found them to be in agreement.
All references in this Annex II(a) to the Prospectus shall be deemed
to refer to the Prospectus (including the documents incorporated by reference
therein) as defined in the Underwriting Agreement as of the date of the letter
delivered on the date of the Pricing Agreement for purposes of such letter.
ANNEX II(b)
FORM OF "BRING-DOWN" COMFORT LETTER
Pursuant to Section 8(f) of the Underwriting Agreement the accountants
shall furnish letters to the Underwriters or the Independent Underwriter, as the
case may be, to the effect that:
(i) They confirm that they are independent certified public accountants
with respect to the Company and its subsidiaries within the meaning of
the Act and the applicable rules and regulations adopted by the
Commission; and
(ii) They confirm, as of the date of the bring-down letter (or, with
respect to matters involving changes or developments since the
respective dates of which specified financial information is given in
the Prospectus, as of a date not more than five days prior to the date
of the bring-down letter), in all material respects the conclusions
and findings of such accountants with respect to the financial
information and other matters covered by their letter delivered to the
Underwriters pursuant to Section 8(f) of the Underwriting Agreement on
or prior to the date of the Pricing Agreement with respect to the
Designated Securities.
All references in this Annex II(b) to the Prospectus shall be deemed
to refer to the Prospectus (including the documents incorporated by reference
therein) as defined in the Underwriting Agreement as of the date of the letter
delivered on the date of the Time of Delivery for purposes of such letter.
ANNEX III
FORM OF OPINION OF UNDERWRITERS' COUNSEL
Pursuant to Section 8(b) of the Underwriting Agreement counsel for the
Underwriters shall furnish a letter to the Underwriters or the Independent
Underwriter, as the case may be, to the effect that:
1. The Company has been duly incorporated and is validly existing and in
good standing as a corporation under the laws of the State of Delaware.
2. The Indenture has been duly authorized, executed and delivered by the
Company and duly qualified under the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act"), and, assuming the Indenture is the valid and
legally binding obligation of the Trustee, constitutes a valid and legally
binding instrument of the Company enforceable against the Company in accordance
with its terms.
3. The Designated Securities have been duly authorized, executed and
issued by the Company and, assuming due authentication thereof by the Trustee
and upon payment and delivery in accordance with the Pricing Agreement related
thereto, will constitute valid and legally binding obligations of the Company
enforceable against the Company in accordance with their terms and entitled to
the benefits of the Indenture.
4. The statements made in the Prospectus under the captions "Description
of Debt Securities," and "Description of the Notes," insofar as they purport to
constitute summaries of certain terms of documents referred to therein,
constitute accurate summaries of the terms of such documents in all material
respects.
5. Each of the Underwriting Agreement and the Pricing Agreement has been
duly authorized, executed and delivered by the Company.
Such counsel shall also state that based upon such counsel's
examination of the Registration Statement and the Prospectus, such counsel's
investigations made in connection with the preparation of the Registration
Statement and the Prospectus Supplement (excluding any documents incorporated by
reference therein (the "Exchange Act Documents") and such counsel's
participation in the conferences referred to above, (i) such counsel is of the
opinion that the Registration Statement, as of its effective date, and the
Prospectus, as of the Time of Delivery, complied as to form in all material
respects with the requirements of the Act, the Trust Indenture Act and the
applicable rules and regulations of the Commission thereunder and that the
Exchange Act Documents complied as to form when filed in all material respects
with the requirements of the Exchange Act and the applicable rules and
regulations of the Commission thereunder, except that in each case such counsel
expresses no opinion with respect to the financial statements or other financial
data contained or incorporated by reference in the Registration Statement, the
Prospectus or the Exchange Act Documents, and (ii) such counsel has no reason to
believe that the Registration Statement, as of its effective date (including the
Exchange Act Documents on file with the Commission on such effective date),
contained any untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary in order to make the
statements therein not misleading or that the Prospectus (including the Exchange
Act Documents) as of its date and as of the date hereof contains any untrue
statement of a material fact or omits to state any material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading, except that in each case such counsel
expresses no belief with respect to the financial statements or other financial
data contained or incorporated by reference in the Registration Statement, the
Prospectus or the Exchange Act Documents.
ANNEX IV
FORM OF OPINION OF GENERAL COUNSEL
Pursuant to Section 8(c) of the Underwriting Agreement the General
Counsel or other senior in-house counsel of the Company shall furnish a letter
to the Underwriters or the Independent Underwriter, as the case may be, to the
effect that:
1. 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 its properties and conduct its business as
described in the Prospectus, as amended or supplemented prior to the date
hereof.
2. Each of the Company's Significant Subsidiaries (as such term is
defined in Rule 1-02(w) of Regulation S-X under the Act) incorporated under the
laws of the State of Delaware has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Delaware.
3. The Company has been duly qualified as a foreign corporation for the
transaction of business and is in good standing under the laws of each other
jurisdiction in which it is required to be so qualified, except for such
failures to be so qualified and in good standing as individually or in the
aggregate would not have a Material Adverse Effect.
4. To such counsel's knowledge, except as otherwise disclosed in the
Prospectus, as amended or supplemented prior to the date hereof, there are no
legal or governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or any of its
subsidiaries is the subject which, if determined adversely to the Company or any
of its subsidiaries, is reasonably likely individually or in the aggregate to
have a Material Adverse Effect; and, to such counsel's knowledge, no such
proceedings are threatened or contemplated by governmental authorities or
threatened by others.
5. The issue and sale of the Designated Securities and the compliance by
the Company with all of the provisions of the Designated Securities, the
Indenture, the Underwriting Agreement, and the Pricing Agreement and the
consummation of the transactions therein contemplated will not conflict with or
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust,
sale/leaseback agreement, loan agreement, or other financing agreement or any
other agreement or instrument known to me to which the Company or any of its
subsidiaries is a party or by which the Company or any of its subsidiaries is
bound or to which any of the property or assets of the Company or any of its
subsidiaries is subject, except for such conflicts, breaches, violations, and
defaults as individually or in the aggregate would not have a Material Adverse
Effect and would not have a material adverse effect on the ability of the
Company to timely perform its obligations under the Underwriting Agreement and
the Pricing Agreement, nor will such action result in (a) any violation of the
provisions of the Certificate of Incorporation or By-laws of the Company or any
of its subsidiaries or (b) any violation of any statute, order, rule, or
regulation of any court or governmental agency or body having jurisdiction over
the Company or any of its subsidiaries or any of their properties, except, with
respect to this clause (b) only, for such violations, defaults, and failures as
individually or in the aggregate would not have a Material Adverse Effect and
would not have a material adverse effect on the ability of the Company to timely
perform its obligations under the Underwriting Agreement and the Pricing
Agreement, it being understood that no opinion is expressed in this paragraph 5
with respect to any matter governed by the Securities Act, the Exchange Act, the
Trust Indenture Act, or any state's or other jurisdiction's securities or Blue
Sky laws.
6. The Underwriting Agreement, the Indenture and the Pricing Agreement
have been duly authorized, executed, and delivered by the Company.
7. The Company has an authorized capitalization as set forth in the
Prospectus as amended or supplemented prior to the date hereof.
8. To such counsel's knowledge, neither the Company nor any of its
subsidiaries is (a) in violation of its certificate of incorporation or by-laws
(or comparable governing documents), or (b) in default in the performance or
observance of any obligation, agreement, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement, lease or other agreement or
instrument known to me after due inquiry to which it is a party or by which it
or any of its properties may be bound, except in the case of (b) above for such
defaults as individually or in the aggregate would not have a Material Adverse
Effect.
9. To such counsel's knowledge, there is no amendment to the Registration
Statement required to be filed, or any contracts or other documents of a
character required to be filed as an exhibit to the Registration Statement or
required to be incorporated by reference into the Prospectus as amended or
supplemented or required to be described in the Registration Statement or the
Prospectus as amended or supplemented, which have not been filed or incorporated
by reference or described as so required.
Such counsel has participated in the preparation of the Registration
Statement and the Prospectus and, based on such participation, no facts have
come to such counsel's attention which cause such counsel to believe that, as of
the effective date, the Registration Statement, as amended or supplemented prior
to the date hereof (other than the financial statements and related schedules
and other financial data contained or incorporated by reference therein, as to
which such counsel expresses no belief), 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, as of its
date, the Prospectus, as amended or supplemented prior to the date hereof (other
than the financial statements and related schedules and other financial data
contained or incorporated by reference therein, as to which such counsel
expresses no belief), contained an untrue statement of a material fact or
omitted to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading or
that, as of the date hereof, either the Registration Statement or the
Prospectus, as amended or supplemented prior to the date hereof (other than the
financial statements and related schedules and other financial data contained or
incorporated by reference therein, as to which such counsel expresses no
belief), contains an untrue statement of a material fact or omits to state a
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading. However, such counsel
has not independently verified, and such counsel assumes no responsibility for,
the accuracy, completeness, or fairness of the Registration Statement or the
Prospectus, as amended or supplemented prior to the date hereof (including any
documents incorporated or deemed to be incorporated by reference therein).
To such counsel's knowledge, the representations and warranties of the
Company contained in Section 2(n) of the Underwriting Agreement are true and
correct as of the date hereof.
ANNEX V
FORM OF OPINION OF COUNSEL TO COMPANY
Pursuant to Section 8(d) of the Underwriting Agreement the counsel to
the Company shall furnish a letter to the Underwriters or the Independent
Underwriter, as the case may be, to the effect that:
1. The Company is duly incorporated and validly existing as a corporation
in good standing under the laws of the State of Delaware and has the corporate
power and authority to own its properties and conduct its business as described
in the Prospectus as amended or supplemented prior to the date hereof;
2. The Underwriting Agreement and the Pricing Agreement have been duly
authorized, executed, and delivered by the Company;
3. The Designated Securities have been duly authorized, executed,
authenticated, issued, and delivered and constitute valid and binding
obligations of the Company enforceable against the Company in accordance with
their terms and entitled to the benefits provided by the Indenture; and the
Designated Securities and the Indenture conform in all material respects to the
descriptions thereof in the Prospectus as amended or supplemented prior to the
date hereof;
4. The Indenture has been duly authorized, executed, and delivered by the
Company and constitutes a valid and binding obligation of the Trustee,
constitutes a valid and binding obligation of the Company, enforceable against
the Company in accordance with its terms; and the Base Indenture has been duly
qualified under the Trust Indenture Act;
5. No consent, approval, authorization, order, registration, or
qualification of or with any court or governmental agency or body is required by
or on behalf of the Company for the sale of the Designated Securities as
contemplated by the Underwriting Agreement and the Pricing Agreement or the
consummation by the Company of the transactions contemplated by the Underwriting
Agreement, the Pricing Agreement or the Indenture, except such as have been
obtained under the Act, the Exchange Act, and the Trust Indenture Act, and such
consents, approvals, authorizations, orders, registrations, or qualifications as
may be required under state securities or Blue Sky laws or under the laws of any
jurisdiction outside of the United States in connection with the purchase and
distribution of the Designated Securities;
6. The statements set forth in the Prospectus as amended or supplemented
prior to the date hereof under the captions "Description of Debt Securities,"
"Description of the Notes," "Plan of Distribution" and "Underwriting," insofar
as they purport to summarize the provisions of the laws and agreements to which
the Company or any of its affiliates is a party referred to therein, constitute
accurate summaries of such provisions in all material respects;
7. The statements set forth in the Prospectus as amended or supplemented
prior to the date hereof under the caption "Certain U.S. Federal Tax
Considerations," insofar as they constitute statements of law or legal
conclusions, are correct in all material respects; and
8. The Company is not an "investment company" or an entity "controlled"
by an "investment company," as such terms are defined in the Investment Company
Act.
In addition, such counsel participated in conferences with certain
officers and other representatives of the Company, its independent public
accountants, the Underwriters and the Underwriters' counsel at which the
contents of the Registration Statement and the Prospectus as amended or
supplemented and related matters were discussed. Such counsel is not, however,
passing upon, and does not assume any responsibility for, and, except as set
forth in paragraph (6) above, such counsel has
not independently checked or verified, the accuracy, completeness or fairness of
the information contained in the Registration Statement or the Prospectus as
amended or supplemented. Such counsel shall state, however, that based upon its
participation as described in the preceding paragraph: (i) such counsel is of
the opinion that (A) the documents of the Company incorporated by reference in
the Prospectus or any amendment or supplement thereto made by the Company prior
to the date hereof (other than the financial statements and related notes and
schedules and other financial or statistical data contained or incorporated by
reference therein, as to which such counsel expresses no opinion), when they
were filed with the Commission (giving retroactive effect to any such
amendments), complied as to form in all material respects with the requirements
of the Exchange Act and the rules and regulations of the Commission thereunder,
and (B) the Registration Statement and the Prospectus, as amended or
supplemented prior to the date hereof (other than the financial statements and
related notes and schedules and other financial or statistical data contained or
incorporated by reference therein, as to which such counsel expresses no
opinion), comply as to form in all material respects with the requirements of
the Act and the Trust Indenture Act and the rules and regulations thereunder;
(ii) such counsel confirms that such counsel has no reason to believe that, at
the time the Registration Statement became effective, the Registration
Statement, as amended or supplemented prior to the date hereof (other than the
financial statements and related notes and schedules and other financial or
statistical data included or incorporated by reference therein, as to which such
counsel expresses no belief), contained any 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; (iii) such counsel confirms that
such counsel has no reason to believe that the Prospectus, as amended or
supplemented prior to the date hereof (other than the financial statements and
related notes and schedules and other financial or statistical data included or
incorporated by reference therein, as to which such counsel expresses no
belief), as of its date, contained any untrue statement of a material fact or
omitted to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading; and (iv) such counsel confirms that such counsel has no reason to
believe that, as of the date hereof, either the Registration Statement or the
Prospectus, as supplemented or amended prior to the date hereof (other than the
financial statements and related notes and schedules and other financial or
statistical data included or incorporated by reference therein, as to which such
counsel expresses no belief), contains an untrue statement of a material fact or
omits to state a fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
ANNEX VI
BANK ONE TRUST COMPANY, N.A.
TRUSTEE'S CERTIFICATE
I, the undersigned officer of Bank One Trust Company, N.A. (as
successor in interest to The First National Bank of Chicago), as trustee (the
"Trustee"), under that certain Indenture dated as of April 2, 1999, as
supplemented by the Third Supplemental Trust Indenture dated as of August __,
2001 (collectively, the "Indenture") between Louisiana-Pacific Corporation (the
"Company") and the Trustee, pursuant to which Indenture the Company is issuing
on the date hereof its ____% Senior [Subordinated] Notes due 20__ in the
original aggregate principal amount of $_________ (the "Notes"), do hereby
certify as follows:
1. The Trustee is a national banking association duly organized, validly
existing and in good standing under the national banking laws of the United
States of America, is authorized to carry out corporate trust powers and has
full power and authority to execute, deliver and perform the obligations of
Trustee under the Indenture.
2. The execution and delivery of and the performance by the Trustee under
the Indenture and the authentication and delivery of the Notes have been duly
authorized by all necessary corporate action on the part of the Trustee, and the
Indenture constitutes a valid and legally binding obligation of the Trustee
enforceable in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws relating to or affecting
creditors' rights generally and to general principles of equity. The Trustee has
authenticated the Notes in the manner required by the Indenture and delivered
them to, or pursuant to the order of, the Company.
3. Each person who, on behalf of the Trustee, executed and delivered the
Indenture or authenticated the Notes was, at the date thereof, a duly elected,
appointed or authorized, qualified and acting officer of the Trustee and was
duly authorized to perform such acts at the respective times of such acts and
the signatures of such persons appearing on such documents are their genuine
signatures; and attached hereto is a true and correct copy of a certificate
endorsing the incumbency of such persons.
4. As of the date hereof, the Trustee is eligible to act as Trustee
under the Indenture pursuant to the provisions thereof and pursuant to the
provisions of the Trust Indenture Act of 1939, as amended.
5. Attached hereto as Exhibit A is a true and complete copy of an
extract of the By-Laws of the Trustee, which By-Laws have been in full force and
effect at all times since November 30, 1999, and are in effect on the date
hereof.
6. Attached hereto as Exhibit B is a true and complete copy of an extract
of the By-Laws of The First National Bank of Chicago, which By-Laws were in full
force and effect at all times since July 12, 1996, until the succession by the
present Trustee on September 13, 1999.
IN WITNESS WHEREOF, BANK ONE TRUST COMPANY, N.A., has caused this
certificate to be executed in its corporate name by an officer thereunto duly
authorized and its corporate seal to be affixed hereto.
DATED: August __, 2001
BANK ONE TRUST COMPANY, N.A., as Trustee
By: ______________________________
Name:
Title: Vice President
(SEAL)
ANNEX VII
Louisiana Pacific Corporation
Officers' Certificate
---------------------
The undersigned, __________, [title], and __________, [title] of
Louisiana Pacific Corporation, a Delaware corporation (the "Company"), pursuant
to Section 8(k) of the Underwriting Agreement, dated as of August __, 2001 (the
"Underwriting Agreement"; unless otherwise defined herein, terms defined in the
Underwriting Agreement are used herein as defined therein), among the Company
and Goldman, Sachs & Co., as representative of the underwriters named therein
and as Independent Underwriter, each hereby certifies, on behalf of the Company,
that, to the best of his knowledge and belief, after reasonable investigation:
1. The representations and warranties of the Company in Section 2 of the
Underwriting Agreement are true and correct in all material respects
as of the date hereof;
2. The Company has complied with all of its agreements and performed all
its obligations required to be performed on or prior to the date
hereof contained in the Underwriting Agreement;
3. The Prospectus has been timely filed with the Commission in
accordance with Section 8(a) of the Underwriting Agreement; no stop
order suspending the effectiveness of the Registration Statement or
any part thereof has been issued and no proceeding for that purpose
or suspending the qualification of the Indenture has been initiated
or threatened by the Commission; and any request of the Commission
for inclusion of additional information in the Registration or the
Prospectus or otherwise has been complied with; and the conditions
set forth in Section 8(g) of the Underwriting Agreement have been
fulfilled; and
4. The undersigned, having carefully examined the Registration Statement
and the Prospectus, certifies that, (A) as of the effective date of
the Registration Statement and the date of the Prospectus, neither
such document included any untrue statement of a material fact and
did not omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, and (B)
since such dates, no event has occurred which should have been set
forth in a supplement or amendment to the Registration Statement or
the Prospectus.
5. At the date hereof, since the dates of the Prospectus there have not
occurred any event or events that, individually or in the aggregate,
would have a Material Adverse Effect.
6. The sale of the Securities under the Underwriting Agreement, and each
respective pricing agreement, has not been enjoined temporarily or
permanently.
7. Counsel for the Underwriters is entitled to rely on this certificate
in connection with the opinions that such firms are rendering
pursuant to clause (b) of Section 8 of the Underwriting Agreement.
Dated: , 2001
By:
---------------------------------------
Name:
Title
By:
---------------------------------------
Name:
Title: