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EXHIBIT 1
BOISE CASCADE OFFICE PRODUCTS CORPORATION
Debt Securities
UNDERWRITING AGREEMENT
1. Introductory. Boise Cascade Office Products Corporation, a Delaware
corporation (the "Company"), proposes to issue and sell from time to time
certain of its debt securities registered under the registration statement
referred to in Section 3 ("Registered Securities"). The Registered Securities
will be issued under an indenture, dated as of March 31, 1998, ("Indenture"),
between the Company and U.S. Bank Trust National Association as trustee, in one
or more series, which series may vary as to interest rates, maturities,
redemption provisions, selling prices and other terms, with all such terms for
any particular series of the Registered Securities being determined at the time
of sale. Particular series of the Registered Securities will be sold pursuant to
a Terms Agreement referred to in Section 3, for resale in accordance with terms
of offering determined at the time of sale.
The Registered Securities involved in any such offering are
hereinafter referred to as the "Securities". The firm or firms which agree to
purchase the Securities are hereinafter referred to as the "Underwriters" of
such Securities, and the representative or representatives of the Underwriters,
if any, specified in a Terms Agreement referred to in Section 3 are hereinafter
referred to as the "Representatives"; provided, however, that if the Terms
Agreement does not specify any representative of the Underwriters, the term
"Representatives", as used in this Agreement (other than in Sections 2 (b),
8 and 14 and the second sentence of Section 3), shall mean the
Underwriters.
2. Representations, Warranties and Agreements of the Company. The
Company represents and warrants to, and agrees with, each of the Underwriters
that:
(a) A registration statement (No. 333- ) relating to the
Registered Securities, including a prospectus which, as supplemented
from time to time, shall be used in connection with all sales of the
Securities, has been filed with the Securities and Exchange Commission
("Commission") and has become effective. The registration statement or
statements relating to the Securities in any offering hereunder
(including the documents incorporated by reference therein), as amended
at the time of any Terms Agreement referred to in Section 3, are
hereinafter collectively
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referred to as the "Registration Statement", and the prospectus
(including the documents incorporated by reference therein) included in
such Registration Statement, as supplemented as contemplated by Section
3 to reflect, among other things, the terms of the Securities and the
terms of the offering thereof, is hereinafter referred to as the
"Prospectus". Any reference to the Registration Statement or Prospectus
as amended or supplemented shall be deemed to include any documents
filed after the effective date of the registration statement relating
to the Registered Securities under the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), and so incorporated by reference in
such registration statement or the prospectus included therein.
(b) When each part of each registration statement relating to the
Registered Securities became effective, such part and the prospectus
included therein contained all statements which were required to be
stated therein in accordance with the Securities Act of 1933 ("Act"),
the Trust Indenture Act of 1939 ("Trust Indenture Act") and the rules
and regulations of the Commission thereunder ("Rules and Regulations")
and in all respects conformed to the requirements of the Act, the Trust
Indenture Act and the Rules and Regulations, and did not include any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading; and on the date of each Terms Agreement
referred to in Section 3, the Registration Statement and the
Prospectus, and at any and all times subsequent thereto up to and
including the Closing Date for the Securities to which such Terms
Agreement relates, the Registration Statement and the Prospectus as
then amended or supplemented, will contain all statements which are
required to be stated therein in accordance with the Act, the Trust
Indenture Act and the Rules and Regulations and in all respects will
conform to the requirements of the Act, the Trust Indenture Act and the
Rules and Regulations, and will not include any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading;
except that the foregoing does not apply to statements in or omissions
from any such documents that are based upon written information
furnished to the
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Company by any Underwriter through the Representatives, if any,
specifically for use therein.
(c) Each document or portion thereof incorporated by reference in
the prospectus included in the registration statement relating to the
Registered Securities at the effective date of each registration
statement conformed, when filed with the Commission, in all respects to
the requirements of the Exchange Act, and the rules and regulations of
the Commission thereunder ("Exchange Act Rules and Regulations"), and
each document, if any, filed after such effective date under the
Exchange Act and deemed to be incorporated by reference in the
Prospectus in accordance with Item 12 of Form S-3 conformed or will
conform, as the case may be, when so filed with the requirements of the
Exchange Act and the Exchange Act Rules and Regulations.
3. Purchase, Sale and Delivery of Purchased Securities. The obligation
of the Underwriters to purchase the Securities will be evidenced by an exchange
of telegraphic or other written communications ("Terms Agreement") at the time
the Company determines to sell the Securities. The Terms Agreement shall
incorporate by reference the provisions of this Agreement, except as otherwise
provided therein, and will specify the firm or firms which will be Underwriters,
the names of any Representatives, the principal amount of Securities to be
purchased by each Underwriter, the purchase price to be paid by the Underwriters
and the terms of the Securities not already specified in the Indenture,
including, but not limited to, interest rate (if any), maturity, any redemption
provisions and any sinking fund requirements and whether any of the Securities
may be sold to institutional purchasers pursuant to Delayed Delivery Contracts
(as defined below) and, if so, the minimum principal amount of such Securities
that may be sold pursuant to any such Contract and the maximum aggregate
principal amount of Registered Securities that may be sold pursuant to all of
such Contracts. The Terms Agreement will also specify the time and date of
delivery and payment (such time and date, or such other time as the
Representatives and the Company agree as the time for payment and delivery,
being herein and in the Terms Agreement referred to as the "Closing Date"), the
place of delivery and payment and any details of the terms of the offering that
should be reflected in the prospectus
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supplement relating to the offering of Securities. The Securities to be
purchased by each Underwriter pursuant to the Terms Agreement relating thereto
shall be in definitive fully registered form to the extent practicable, 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 certified or
official bank check or checks, payable to the order of the Company in New York
Clearing House (next day) funds. The Company shall make certificates for the
Securities available to the Underwriters for checking and packaging at least one
full business day prior to the Closing Date at the place specified in such Terms
Agreement. The obligations of the Underwriters under this Agreement and each
Terms Agreement shall be several and not joint.
If the Terms Agreement provides for sales of Securities pursuant to
delayed delivery contracts, the Company authorizes the Underwriters to solicit
offers to purchase Securities from investors of the types set forth in the
Prospectus pursuant to delayed delivery contracts substantially in the form of
Exhibit A attached hereto ("Delayed Delivery Contracts") but with such changes
therein as the Company may approve. The Underwriters will endeavor to make such
arrangements and, as compensation therefor, on the Closing Date, the Company
will pay to the Representatives, for the accounts of the Underwriters, the fee
set forth in such Terms Agreement in respect of the principal amount of
Securities sold pursuant to Delayed Delivery Contracts ("Contract Securities").
The Company will enter into a Delayed Delivery Contract in all cases where a
sale of Contract Securities arranged by the Underwriters has been approved by
the Company, but, except as the Company may otherwise agree, such Delayed
Delivery Contract must be for at least the minimum principal amount of Contract
Securities set forth in such Terms Agreement or attachment thereto, and the
aggregate principal amount of Contract Securities may not exceed the maximum
amount set forth in such Terms Agreement or attachment thereto. The Company will
advise the Representatives no later than 10:00 A.M., New York City time, on the
third business day preceding any Closing Date (or at such later time as the
Representatives may otherwise agree) of any sales of Contract Securities that
have been so approved. The Underwriters will not have any responsibility
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in respect of the validity or performance of Delayed Delivery Contracts.
If the Company executes and delivers Delayed Delivery
Contracts, the Contract Securities will be deducted from the Securities to be
purchased by the several Underwriters and the aggregate principal amount of
Securities to be purchased by each Underwriter will be reduced pro rata in
proportion to the principal amount of Securities set forth opposite each
Underwriter's name in such Terms Agreement or attachment thereto, except to the
extent that the Representatives determine that such reduction shall be otherwise
than pro rata and so advise the Company; provided, however, that the principal
amount of Securities to be purchased by all Underwriters shall be the total
principal amount of Securities less the aggregate amount of Contract Securities.
It is understood that any Representative, acting individually
and not in a representative capacity, may (but shall not be obligated to) make
payment to the Company on behalf of any other Underwriter for Securities to be
purchased by such Underwriter. Any such payment by such Representative shall not
relieve any such Underwriter of any of its obligations hereunder.
4. Offering by Underwriters. It is understood that after the
execution of a Terms Agreement relating to any securities, the Underwriters
propose to offer such Securities for sale upon the terms and conditions set
forth in the Prospectus.
5. Covenants of the Company. In connection with any offering of
Securities, the Company covenants and agrees with the several Underwriters that:
(a) The Company will make no further amendment or any
supplement to the Registration Statement or Prospectus, after the
date of the Terms Agreement relating to such Securities and prior
to the Closing Date for such Securities, which shall be reasonably
disapproved by the Representatives for such Securities promptly
after reasonable notice; will advise the Representatives promptly
of any such amendment or supplement after such Closing Date and
furnish the Representatives with copies thereof; will file promptly
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all reports and any definitive proxy or information statements
required to be filed by the Company with the Commission pursuant to
Section 13, 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; will advise the
Representatives, promptly after it receives notice thereof, of the
time when any amendment to the Registration Statement has become
effective or any supplement to the Prospectus or any amended
Prospectus has been filed, of the issuance by the Commission of any
stop order or of any order preventing or suspending the use of the
Prospectus, any supplement to the Prospectus or any amended
Prospectus and of the initiation of any proceeding for any such
purpose; and in the event of the issuance of any stop order or of
any order preventing or suspending the use of the Prospectus or any
such supplement to the Prospectus or amended Prospectus, will use
promptly its best efforts to obtain its withdrawal.
(b) If at any time when a prospectus relating to such
securities is required to be delivered under the Act, any event
occurs as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact,
or omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading, or if it is necessary at any time to amend
the Prospectus to comply with the Act or the Trust Indenture Act,
the Company promptly will (i) prepare and file with the Commission
an amendment or supplement which will correct such Statement or
omission or an amendment which will effect such compliance, or (ii)
prepare and file with the Commission documents deemed to be
incorporated by reference in the Prospectus as then amended or
supplemented which will correct such statement or omission or
effect such compliance.
(c) As soon as practicable, but not later than 16 months,
after the date of each Terms Agreement, the Company will make
generally available to its securityholders an earnings statement
covering a period of at least 12 months beginning after the later
of (i) the effective date of the registration statement relating to
the Registered Securities, (ii) the
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effective date of the most recent post-effective amendment to the
Registration Statement to become effective prior to the date of
such Terms Agreement and (iii) the date of the Company's most
recent Annual Report on Form 10-K filed with the Commission prior
to the date of such Terms Agreement, which will satisfy the
provisions of Section 11(a) of the Act. It is understood that
compliance by the Company with Rule 158 under the Act will satisfy
the Company's obligations pursuant to this Section 5(c).
(d) The Company will furnish to the Representatives copies
of the Registration Statement, any related preliminary prospectus
(which, including documents incorporated by reference therein, is
hereinafter referred to as a "Preliminary Prospectus"), any related
preliminary prospectus supplement, the Prospectus, and all
amendments and supplements to such documents, and all documents
incorporated by reference in any of the foregoing documents, in
each case as soon as available and in such quantities as the
Representatives may reasonably request. A copy of each document
prepared or filed by the Company on or prior to the date of each
Terms Agreement shall be furnished to the Representatives on behalf
of the Underwriters prior to their execution of such Terms
Agreement; provided, however, that if such documents are not
available, the Company shall furnish to such Representatives the
information included or to be included therein, except that in such
case the Company need not furnish such Representatives with
information to be included in the prospectus supplement relating to
the Securities as to the terms of the Securities and their manner
of distribution.
(e) The Company will cooperate with the Underwriters in
qualifying such Securities for offering and sale and in determining
their eligibility for investment under the laws of such
jurisdictions as the Representatives designate and will continue
such qualifications in effect so long as required for the
distribution of such Securities; provided, however, that the
Company shall not be obligated to file any general consent to
service, or to qualify as a foreign corporation in any state in
which it is not now so qualified.
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(f) During a period of five years from the date of any
Terms Agreement relating to such Securities, the Company will
promptly furnish to the Representatives, and upon request, to each
of the other Underwriters, if any, a copy of its annual report for
each fiscal year and current reports of the Company for each
quarterly period, in each case in the forms and at the times
furnished to shareholders of the Company, and, as soon as
available, a copy of each report of the Company filed with the
Commission; and, during a period of three years from the date of
the Terms Agreement relating to such Securities, the Company will
furnish to the Representatives such other information concerning
the Company as the Representatives may reasonably request.
(g) The Company will use its best efforts to obtain the
listing of such Securities, subject to notice of issuance, on such
national securities exchanges, if any, as are indicated in the
Terms Agreement relating to such Securities, and the registration
thereof under the Exchange Act, in each case prior to the Closing
Date for such securities.
(h) The Company will not, without the prior consent of the
Representatives, offer, sell, contract to sell or otherwise dispose
of any debt securities of the Company having a maturity of more
than one year, during the period beginning from and including the
date of execution of the Terms Agreement with respect to such
Securities and continuing to and including the earlier of (i) the
date 30 days after the date of execution of such Terms Agreement
and (ii) the date on which any trading restrictions on the sale of
such Securities are terminated.
6. Expenses. The Company agrees with each Underwriter of any
Securities that the Company will pay or cause to be paid the following:
(a) The fees, disbursements and expenses of the Company's
counsel and accountants in connection with the registration of the
Registered Securities under the Act and all other expenses in
connection with the preparation, printing and filing of the
Registration
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Statement, any Preliminary Prospectus, any preliminary prospectus
supplement, the Prospectus and any amendments and supplements
thereto and the mailing and delivery of copies thereof to the
Underwriters and dealers;
(b) The cost of printing this Agreement and any Terms
Agreement, any agreement among Underwriters, any Delayed Delivery
Contract, any Indenture and any other documents in connection with
the offering, purchase, sale and delivery of the Securities;
(c) All expenses in connection with the qualification of
the Registered Securities for offering and sale as provided in
Section 5(e) hereof, including the fees and disbursements of
counsel for the Underwriters in connection with such qualification;
(d) Any fees charged by securities rating services for
rating the Securities;
(e) The cost of preparing the Securities;
(f) The fees and expenses of the Trustee and any agent of
the Trustee and the fees and disbursements of counsel for the
Trustee in connection with the Indenture and the Securities;
(g) Any filing fees payable to the National Association of
Securities Dealers, Inc. with respect to the Registered Securities;
(h) Out-of-pocket expenses incurred in distributing any
Preliminary Prospectuses or preliminary prospectus supplements to
the Underwriters; and
(i) All other costs and expenses incident to the
performance of its obligations hereunder which are not otherwise
specifically provided for in this Section 6.
It is understood, however, that, except as provided in this
Section 6, 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.
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7. Conditions of the Obligations of the Underwriters. The
obligations of the several Underwriters to purchase and pay for any Securities
will be subject to the accuracy of the representations and warranties on the
part of the Company herein, to the accuracy of the statements of the Company
officers made in any certificate furnished pursuant to the provisions hereof, to
the performance by the Company of its obligations hereunder and to the following
additional conditions precedent:
(a) Prior to such Closing Date no stop order suspending the
effectiveness of the Registration Statement shall have been issued
and no proceedings for that purpose shall have been instituted, or
to the knowledge of the Company or the Representatives, shall be
contemplated by the Commission.
(b) The Representatives shall not have advised the Company
or been advised by the Company or the Commission that the
Registration Statement or Prospectus or any amendment or supplement
thereto contains an untrue statement of fact or omits to state a
fact which the Representatives have concluded, after conferring
with Sullivan & Cromwell, counsel for the Underwriters, is in
either case material and in the case of an omission is required to
be stated therein or is necessary to make the statements therein
not misleading.
(c) The Representatives shall have received an opinion or
opinions of the General Counsel or an Associate General Counsel for
the Company, dated such Closing Date, to the effect set forth in
Exhibit B hereto.
(d) The Representatives shall have received from Sullivan &
Cromwell, counsel for the Underwriters, such opinion or opinions,
dated such Closing Date, with respect to the incorporation of the
Company, the validity of the Securities, the Registration
Statement, the Prospectus and such other related matters as the
Representatives may reasonably require, and the Company shall have
furnished to such counsel such documents as they reasonably request
for the purpose of enabling them to pass upon such matters.
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(e) The Representatives shall have received a certificate
of either the Chairman of the Board of Directors, the President or
a Vice President of the Company, and of either the principal
financial or accounting officer of the Company, dated such Closing
Date, to the effect that the representations and warranties on the
part of the Company herein are true and correct as of such Closing
Date with the same force and effect as if made on that date, and
that the Company has performed all its obligations hereunder to be
performed at or prior to that date, and as to such other matters as
the Representatives may reasonably request.
(f) The Representatives shall have received a signed letter
or letters from Arthur Andersen & Co., dated such Closing Date,
addressed to the Company and to the Underwriters, with conformed
copies for each of the Underwriters, in form and substance
satisfactory to the Representatives.
(g) The Company shall have furnished to the Representatives
such further information and documents as the Representatives shall
have reasonably requested.
(h) Between the time of execution of such Terms Agreement
and such Closing Date there shall not have occurred any of the
following: (i) a general suspension or material limitation in
trading of securities on the New York Stock Exchange; (ii) a
declaration of a bank moratorium by authorities of the United
States or of the State of New York; (iii) the general establishment
of minimum prices by the New York Stock Exchange or by the
Commission; 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 good faith judgment of the
Representatives makes it impracticable or inadvisable to proceed
with the public offering or the delivery of the Securities on the
terms and in the manner contemplated in the Prospectus.
(i) Between the time of execution of such Terms Agreement
and such Closing Date there shall not have been any change in the
capital stock or short-term or
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long-term indebtedness for borrowed money of the Company and its
subsidiaries on a consolidated basis, or any change (financial or
otherwise) in, or any development involving a prospective change
(financial or otherwise) in or affecting, the financial position,
stockholders' equity or results of operations of the Company and
its subsidiaries on a consolidated basis or the general affairs of
the Company and its subsidiaries considered as a whole, except as
set forth or contemplated in the Prospectus as of the date of such
Terms Agreement, which in the judgment of the Representatives is
material and adverse.
(j) Between the time of execution of such Terms Agreement
and such Closing Date (i) no downgrading shall have occurred in the
rating accorded the Company's debt securities 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.
The Company will furnish the Representatives with such conformed
copies of such opinions, certificates, letters and documents as the
Representatives reasonably request.
In the event that the purchase of such Securities does not occur by
reason of subsection (h), (i) or (j) of this Section 7, the Company shall have
no liability to the Underwriters except for expenses to be paid or reimbursed as
set forth in Section 6 and its obligations under Section 8.
8. Indemnification and Contribution. (a) The Company will indemnify
and hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of the Act against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter or such controlling
person 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 any untrue statement or alleged untrue statement of a material
fact contained in the Registration
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Statement, any Preliminary Prospectus, the Prospectus, or any amendment or
supplement thereto, or any related preliminary prospectus supplement, 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 and each such
controlling person for any legal or other expenses reasonably incurred by such
Underwriter and each such controlling person in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the Company will not be liable in any such case to the extent that any such
loss, claim, damage, liability or action arises out of or is based upon an
untrue statement or alleged untrue statement in or omission or alleged omission
from any of such documents in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representatives, if any, specifically for use therein; and provided, further,
that the indemnity agreement contained in this paragraph in respect of any
Preliminary Prospectus shall not inure to the benefit of any Underwriter (or of
any person controlling such Underwriter) on account of any such losses, claims,
damages, or liabilities (or actions in respect thereof), arising from the sale
of Securities to any person if such Underwriter shall have failed to send or
give to such person (i) with or prior to the written confirmation of such sale,
a copy of the Prospectus or the Prospectus as amended or supplemented, if any
amendments or supplements thereto shall have been furnished at or prior to the
time of written confirmation of the sale involved, or (ii) with or prior to the
delivery of such Securities to such person, a copy of any amendment or
supplement to the Prospectus which shall have been furnished subsequent to such
written confirmation and prior to the delivery of such Securities to such
person, to the extent that any such loss, claim, damage, or liability results
from an untrue statement or an omission which was corrected in the Prospectus or
the Prospectus as amended or supplemented. This indemnity agreement will be in
addition to any liability which the Company may otherwise have.
(b) Each Underwriter will indemnify and hold harmless the
Company, each of its directors, each of its officers who have
signed the Registration Statement and each person, if any, who
controls the Company
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within the meaning of the Act, against any losses, claims, damages
or liabilities to which the Company or any such director, officer
or controlling person 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 any
untrue statement or alleged untrue statement of any material fact
contained in the Registration Statement, or any Preliminary
Prospectus, the Prospectus, or any amendment or supplement thereto,
or any related preliminary prospectus supplement, 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 therein
in reliance upon and in conformity with written information
furnished to the Company by such Underwriter through the
Representatives, if any, specifically for use therein; and will
reimburse any legal or other expenses reasonably incurred by the
Company or any such director, officer or controlling person in
connection with investigating or defending any such loss, claim,
damage, liability or action. This indemnity agreement will be in
addition to any liability which such Underwriter may otherwise
have.
(c) Promptly after receipt by an indemnified party under
this Section of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made
against the indemnifying party under this Section, notify the
indemnifying party of the commencement thereof; but the omission so
to notify the indemnifying party will not relieve it from any
liability which it may have to any indemnified party otherwise than
under this Section. In case any such action is brought against any
indemnified party and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly
with any other indemnifying party similarly notified, to assume the
defense thereof, with counsel satisfactory to such indemnified
party (who will not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and after notice from
the
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indemnifying party to such indemnified party of its election so
to assume the defense thereof, the indemnifying party will not be
liable to such indemnified party under this Section for any legal
or other expenses subsequently incurred by such indemnified party
in connection with the defense thereof other than reasonable costs
of investigation. No indemnifying party shall be liable for any
compromise or settlement of any such action effected without its
consent.
(d) If the indemnification provided for in subsection (a)
or (b) above is for any reason, other than as specified in such
subsections, held by a court to be unavailable and the Company or
any Underwriter has been required to pay damages as a result of a
determination by a court that the Registration Statement, any
Preliminary Prospectus, the Prospectus, or any amendment or
supplement thereto, or any related preliminary prospectus
supplement, contains an untrue statement of a material fact or
omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, then the
Company shall contribute to the damages paid by the Underwriters,
and the Underwriters shall contribute to the damages paid by the
Company, but in each case only to the extent that such damages
arise out of or are based upon such untrue statement or omission,
in such Proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the
Underwriters on the other from the offering of the Securities, and
the relative fault of the Company on the one hand and the
Underwriters on the other in connection with the statements or
omissions which resulted in such damages as well as any other
relevant equitable considerations. The relative benefits received
by the Company on the one hand and the Underwriters on the other
shall be deemed to be in the same proportion as the total net
proceeds from the offering (before deducting expenses) received by
the Company bear to the total underwriting discounts and
commissions received by the Underwriters in each case as set forth
in the Prospectus. The relative fault of the Company on the one
hand and the Underwriters on the other shall be determined by
reference to, among other things, whether the untrue statement of a
material fact or the omission to state a material fact relates to
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information supplied by the Company or the Underwriters and the
parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or
omission. The Company and the Underwriters agree that it would not
be just and equitable if their respective obligations to contribute
pursuant to this subsection (d) were to be determined by pro rata
allocation of the aggregate damages (even if the Underwriters 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 in the first sentence of this subsection
(d). For purposes of this subsection (d), the term "damages" shall
include any legal or other expenses reasonably incurred by the
Company or any of the Underwriters in connection with investigating
or defending against any action or claim which is the subject of
the contribution provisions of this subsection (d). Notwithstanding
the provisions of this subsection (d), no Underwriter shall be
required to contribute any amount in excess of the amount by which
the total price at which the Securities underwritten by it and
distributed to the public were offered to the public exceeds the
amount of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue statement or 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 Underwriters' obligations in this subsection (d) to contribute
are several in proportion to their respective underwriting
obligations and not joint.
9. Default of Underwriters. If any Underwriter or Underwriters
default in their obligations to purchase Securities which they may have agreed
to purchase under the Terms Agreement relating to such Securities and the
aggregate principal amount of such Securities that such defaulting Underwriter
or Underwriters agreed but failed to purchase does not exceed 10% of the total
principal amount of the Securities to be purchased under such Terms Agreement,
the other Underwriters shall be obligated severally, in proportion to their
respective commitments under this Agreement and such Terms Agreement, to
purchase the Securities that such defaulting Underwriters agreed but
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failed to purchase. If any Underwriter or Underwriters so default and the
aggregate principal amount of the Securities with respect to which such default
or defaults occur is more than 10% of the total principal amount of the
Securities to be purchased under such Terms Agreement, and arrangements
satisfactory to the Representatives and the Company for the purchase of
such Securities by other persons are not made within 36 hours after such
default, such Terms Agreement will terminate without liability on the part of
any non-defaulting Underwriter or the Company, except for the expenses to be
paid or reimbursed by the Company pursuant to Section 6 and the respective
obligations of the Company and the Underwriters pursuant to Section 8. As used
in this Agreement, the term "Underwriter" includes any person substituted for
an Underwriter under this Section 9. Nothing herein will relieve a defaulting
Underwriter from liability for its default.
10. Reimbursement of Underwriters' Expenses. If the sale of the Securities
pursuant to this Agreement and the Terms Agreement relating to such Securities
is not consummated because any condition to the Underwriters' obligations
hereunder and thereunder is not timely satisfied, or because of any failure or
inability on the part of the Company to perform any agreement on its part
contained herein or therein, then, unless otherwise provided in the last
paragraph of Section 7, the Company will reimburse the Underwriters or cause
them to be reimbursed upon demand for all out-of-pocket expenses (including
reasonable fees and disbursements of their counsel) that shall have been
incurred by them in connection with the offering of such Securities, and the
Company shall have no further liability hereunder except as provided in Sections
6 and 8.
11. Representations and Indemnities to Survive Delivery. The respective
indemnities, agreements, representations, warranties, and other statements of
the Company or its officers and of the several Underwriters set forth in or made
pursuant to this Agreement or any Terms Agreement relating to the Securities
will remain in full force and effect, regardless of any investigation, or
statement as to the results thereof, made by or on behalf of any Underwriter or
the Company or any of its officers, directors or controlling persons and will
survive delivery of and payment for the Securities.
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12. Notices. All communications hereunder will be in writing, and, if sent
to the Underwriters, will be mailed, faxed or electronically conveyed to the
Representatives at the delivery address(es) set forth in the Terms Agreement or
otherwise provided by the Representatives, or, if sent to the Company, will be:
MAILED TO:
Boise Cascade Office Products Corporation
800 West Bryn Mawr Avenue
Itasca, IL 60143
Attn: Chief Financial Officer
WITH A COPY TO:
Boise Cascade Office Products Corporation
P.O. Box 50
Boise, ID 83728-0001
Attn: General Counsel
or will be faxed or electronically conveyed to the address(es) provided by the
Company.
13. Successors. This Agreement and each Terms Agreement will inure to the
benefit of and be binding upon the Company, such Underwriters as are identified
in such Terms Agreement and their respective successors and, to the extent
provided in Section 8, the officers, directors and controlling persons referred
to in Section 8, and no other person will have any right or obligation
hereunder.
14. Representation of Underwriters. In all dealings with the Company under
this Agreement and any applicable Terms Agreement, the Representatives represent
that they shall act on behalf of each of the Underwriters and that any action
under this Agreement and such Terms Agreement taken by the Representatives will
be binding upon all the Underwriters.
15. Governing Law. This Agreement and each Terms Agreement shall be
governed by, and construed in accordance with, the laws of the State of New
York.
16. Counterparts. Each Terms Agreement may be
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executed in counterparts, all of which, taken together, shall constitute a
single agreement.
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EXHIBIT A
(Three copies of this Delayed Delivery Contract should be signed and returned to
the address shown below so as to arrive not later than 9:00 a.m., New York Time,
on _______________, __________.*)
DELAYED DELIVERY CONTRACT
[Insert date of initial public offering.]
BOISE CASCADE OFFICE PRODUCTS CORPORATION
c/o [Insert name(s) of Representative(s)
of the Underwriters]
Gentlemen:
The undersigned hereby agrees to purchase from Boise Cascade
Office Products Corporation, a Delaware corporation (the "Company"), and the
Company agrees to sell to the undersigned, [if one delayed closing, insert: as
of the date hereof, for delivery on ______, (the "Delivery Date")]
$ ___________ principal amount of the Company's [Insert title
of securities] ("Securities"), offered by the Company's Prospectus dated
___________, and a Prospectus Supplement dated _____________, relating thereto,
receipt of copies of which is hereby acknowledged, at ___% of the principal
amount thereof plus accrued interest, if any, and on the further terms and
conditions set forth in this Delayed Delivery Contract ("Contract").
[If two or more delayed closings, insert the following:
The undersigned will purchase from the Company as of the date
hereof for delivery on the dates set forth below, Debt Securities in the
principal amounts set forth below:
DELIVERY DATE PRINCIPAL AMOUNT
Each of such delivery dates is hereinafter referred to as
21
a Delivery Date.]
Payment for the Securities which the undersigned has agreed to
purchase for delivery on-the-each-Delivery Date shall be made to the Company or
its order by immediately available funds at the office of ______________at
___________. m., New York Time, on-the-such-Delivery Date upon delivery to the
undersigned of the Securities to be purchased by the undersigned -- for
delivery on such Delivery Date -- in definitive form and in such denominations
and registered in such names as the undersigned may designate by written or
telegraphic communication addressed to the Company not less than five full
business days prior to-the-such-Delivery Date.
It is expressly agreed that the purchase hereunder of
Securities is to be regarded in all respects as a purchase as of the date of
this Contract; that the obligation of the Company to make delivery of and accept
payment for, and the obligation of the undersigned to take delivery of and make
payment for, the Securities on-the-each-Delivery Date shall be subject only to
the conditions that (1) the purchase of the Securities shall
not-at-the-such-Delivery Date be prohibited under the laws of any jurisdiction
in the United States to which the undersigned is subject and (2) the Company
shall have sold to the Underwriters the total principal amount of the Securities
less the principal amount thereof covered by this and other similar Contracts.**
The undersigned represents that its investment in such Securities is not, as of
the date hereof, prohibited under the laws of any jurisdiction to which the
undersigned is subject.
________________________
* Insert date which is third full business day prior to Closing Date
under Terms Agreement.
** Modify appropriately if the Underwriters may be obligated to take less
than all of the Securities under the Terms Agreement.
____________________
Promptly after completion of the sale of Securities to the
Underwriters, the Company will mail or deliver to the undersigned at its address
set forth below
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notice to such effect, accompanied by a copy of the opinion of counsel for the
Company delivered to the Underwriters in connection therewith.
This Contract will inure to the benefit of, and be binding
upon, the parties hereto and their respective successors, but will not be
assignable by either party hereto without the written consent of the other.
This Contract may be executed by either of the parties hereto
in any number of counterparts each of which shall be deemed to be an original,
but all such counterparts shall constitute one and the same instrument.
It is understood that the acceptance of any such Contract is
in the Company's sole discretion and without limiting the foregoing, need not be
on a first-come, first-served basis. If this Contract is acceptable to the
Company, it is requested that the Company sign the form of acceptance below and
mail or deliver one of the counterparts hereof to the undersigned at its address
set forth below. This will become a binding contract between the Company and the
undersigned when such counterpart is so mailed or delivered.
Very truly yours,
(Name of Purchaser)
By:
-------------------------------
Title:
(Address of Purchaser)
BOISE CASCADE OFFICE PRODUCTS CORPORATION
Accepted as of the above date.
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By:
---------------------
Title:
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EXHIBIT B
OPINION OF GENERAL COUNSEL
OR ASSOCIATE GENERAL COUNSEL
(i) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the state of Delaware, with
corporate power and authority under such laws to own its properties and conduct
its business as described in the Prospectus;
(ii) The Securities have been duly authorized, executed, authenticated,
issued and delivered and constitute valid and legally binding obligations of the
Company entitled to the benefits provided by the Indenture, enforceable in
accordance with their terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium, and similar laws of general applicability
relating to or affecting creditors' rights and to general equity principles;
[--if delayed delivery--(ii) The Securities have been duly authorized
and (a) the Securities (other than Contract Securities) have been duly
authorized, executed, authenticated, issued and delivered and constitute valid
and legally binding obligations of the Company entitled to the benefits provided
by the Indenture, enforceable in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium, and
similar laws of general applicability relating to or affecting creditors' rights
and to general equity principles and (b) the Contract Securities when executed,
authenticated, issued and delivered against payment in accordance with the
Delayed Delivery Contracts will constitute, valid and legally binding
obligations of the Company entitled to the benefits provided by the Indenture,
enforceable in accordance with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium, and similar laws of general
applicability relating to or affecting creditors' rights and to general equity
principles.)]
(iii) The Indenture has been duly authorized, executed and delivered by the
Company, and has been duly qualified under the Trust Indenture Act, and the
Indenture constitutes a valid and legally binding instrument, enforceable in
25
accordance with its terms subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium, and similar laws relating to or affecting
creditors' rights and by general equity principles;
(iv) This Agreement [,] [and] the Terms Agreement [and any Delayed Delivery
Contracts] relating to such Purchased Securities have been duly authorized,
executed and delivered to the Company;
(v) The Registration Statement has become effective under the Act, and, to
the best of the knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement has been issued and no proceedings
for that purpose have been instituted or are pending or contemplated by the
Commission;
(vi) When each part of the Registration Statement relating to the Securities
became effective, such part and the Prospectus included therein complied as to
form in all material respects with the requirements of the Act, the Trust
Indenture Act and the Rules and Regulations, and while such counsel has not
independently verified the accuracy, completeness or fairness of such statements
and takes no responsibility therefor, such counsel has no reason to believe that
such documents contained any untrue statement of a material fact or omitted to
state any material fact required to be stated therein or necessary to make the
statements therein not misleading; and on the date of the Terms Agreement and on
the Closing Date for the Securities to which such Terms Agreement relates, the
Registration Statement and the Prospectus as then amended or supplemented
complied or complies, as the case may be, as to form in all material respects
with the requirements of the Act, the Trust Indenture Act and the Rules and
Regulations and while such counsel has not independently verified the accuracy,
completeness or fairness of such statements and takes no responsibility
therefor, such counsel has no reason to believe that such documents contained or
contain, as the case may be, any untrue statement of a material fact or omitted
or omit to state any material fact required to be stated therein or necessary to
make the statements therein not misleading; it being understood that such
counsel need express no opinion or belief as to the financial statements or
financial data contained in the Registration Statement or the Prospectus or any
such amendment or supplement;
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(vii) Each document incorporated by reference in the Registration Statement
or Prospectus or any amendment or supplement thereto, at the time such document
was filed or became effective under the Act, as the case may be, complied as to
form in all material respects with the requirements of the Exchange Act and the
Rules and Regulations;
(viii) The Company has the power and authority (corporate and other) to own
its properties and conduct its business in all material respects as described in
the Prospectus; and
(ix) The descriptions in the Registration Statement and Prospectus of
statutes, legal and governmental proceedings and contracts and other documents
are accurate and fairly present the information required to be shown and such
counsel does not know of any legal or governmental proceedings required to be
described in the Prospectus which are not described as required in all material
respects, nor of any contract or documents of a character required to be
described in the Registration Statement or Prospectus which are not described as
required in all material respects.
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BOISE CASCADE OFFICE PRODUCTS CORPORATION
("Company")
Debt Securities
TERMS AGREEMENT
[Date]
[Names of Representative(s) or Underwriters (if no Representatives)]
[As Representative(s) of
the several Underwriters,]
[Address of Representative(s)]
Dear Sirs:
Boise Cascade Office Products Corporation (the "Company")
proposes, subject to the terms and conditions stated herein and in the
Underwriting Agreement, as filed as an Exhibit to the Company's registration
statement on Form S-3 (No. 333- ) (the "Underwriting Agreement"), to
issue and sell to the Underwriters named in Schedule I hereto the securities
specified in Schedule II hereto (the "Securities"). Each of the provisions of
the Underwriting Agreement is incorporated herein by reference in its entirety,
and shall be deemed to be a part of this Terms Agreement to the same extent as
if such provision had been set forth in full herein. (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.) You will act for the
several Underwriters in connection with this financing, and any action taken
under the Underwriting Agreement or this Terms Agreement by you will be binding
upon all the Underwriters. Unless otherwise defined herein, terms defined in the
Underwriting Agreement are used herein as therein defined.
An amendment to the Registration Statement, or a supplement to
the Prospectus, as the case may be, relating to the 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, 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 a purchase price to the Underwriters set forth in
Schedule II hereto, the principal
28
amount of Securities set forth opposite the name of such Underwriter in
Schedule I hereto, less the principal amount of Securities covered by Delayed
Delivery Contracts, if any, as may be specified in such Schedule II.
We confirm that, to the best of our knowledge after reasonable
investigation, the representations and warranties of the undersigned in the
Underwriting Agreement are true and correct, no stop order suspending the
effectiveness of the Registration Statement (as defined in the Underwriting
Agreement) or of any part thereof has been issued and no proceedings for that
purpose have been instituted or, to the knowledge of the undersigned, are
contemplated by the Securities and Exchange Commission and, subsequent to the
respective dates of the most recent financial statements in the Prospectus (as
defined in the Underwriting Agreement) there has been no material adverse change
in the financial position or results of operations of the undersigned and its
subsidiaries except as set forth in or contemplated by the Prospectus.
If the foregoing is in accordance with your understanding,
kindly sign and return to us two counterparts hereof, and upon acceptance hereof
by you, on behalf of each of the Underwriters, 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 and the Company.
Very truly yours,
BOISE CASCADE OFFICE PRODUCTS
CORPORATION
By
-----------------------------------
Title:
Accepted as of the date hereof:
[Names of Representative(s)]
on behalf of each of the Underwriters
By
--------------------------
Title:
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SCHEDULE I
Principal
Amount
of Purchased
Securities
Underwriter to be Purchased
----------- ---------------
[Name(s) of Representatives]............................................$
[Name(s) of other underwriters].........................................$
Total...................................................................$
30
SCHEDULE II
Title of Securities:
Principal Amount:
Expected Reoffering Price: % of principal amount, subject to change by the
Representatives
Purchase Price: % of principal amount, plus accrued interest [ ,
if any,] from , 19 .
Maturity:
Interest: [% per annum, from ,19 ,payable semiannually on and
commencing ,19 , to the holders of record on the preceding or ,
as the case may be. [Zero coupon.]
Redemption Provisions:
Sinking Fund Provisions:
Stock Exchange Listing:
Place for Checking and Packaging Purchased Securities:
Closing Date and Time:
Closing Location:
[Delayed Delivery Contracts: [None.] [Delivery Date(s) shall be , 19 .
Underwriters' fee is % of the principal amount of the Contract Securities.]
Minimum amount of each Contract:
Maximum amount of all Contracts:]
Address for Notices per Section 12:
Other Terms: