<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 17, 1996
REGISTRATION NO. 333-11727
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 2
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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PLUM CREEK TIMBER COMPANY, L.P.
(Exact name of registrant as specified in its charter)
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<S> <C> <C>
DELAWARE 2400 91-1443693
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer Identification
incorporation or organization) Classification Code Number) No.)
</TABLE>
999 THIRD AVENUE, SUITE 2300, SEATTLE, WASHINGTON 98104-4096 (206) 467-3600
(Address, including zip code and telephone number, including area
code, of registrant's principal executive offices)
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JAMES A. KRAFT
VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
999 THIRD AVENUE, SUITE 2300
SEATTLE, WASHINGTON 98104-4096
(206) 467-3600
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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COPIES TO:
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ANDREWS & KURTH L.L.P. SKADDEN, ARPS, SLATE, MEAGHER & FLOM
4200 TEXAS COMMERCE TOWER 300 SOUTH GRAND AVENUE, SUITE 3400
HOUSTON, TEXAS 77002 LOS ANGELES, CALIFORNIA 90071
(713) 220-4200 (213) 687-5000
ATTENTION: DAVID J. GRAHAM ATTENTION: GREGG A. NOEL
</TABLE>
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
AS SOON AS PRACTICABLE AFTER THIS REGISTRATION STATEMENT BECOMES EFFECTIVE.
------------------------------------
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, please check the following box. / /
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
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CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS AMOUNT TO AGGREGATE OFFERING AGGREGATE OFFERING AMOUNT OF
OF SECURITIES TO BE REGISTERED BE REGISTERED PRICE PER UNIT PRICE (1)(2) REGISTRATION FEE
- ----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Depositary Units representing
Limited Partner Interests........ 5,750,000 $26.56 $152,720,000 $52,662*
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Limited Partner Interests (3)...... 5,750,000 -- -- None
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* Previously paid.
(1) Includes 750,000 Units issuable upon exercise of the Underwriters'
over-allotment option.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) under the Securities Act of 1933, based on the
average of the high and low sale price of the Units on the New York Stock
Exchange on September 6, 1996.
(3) These Limited Partner Interests are being offered as part of the Units and
no separate price will be payable therefor.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON
SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a), MAY
DETERMINE.
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<PAGE> 2
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
Set forth below are the expenses (other than underwriting discounts and
commissions) expected to be incurred in connection with the issuance and
distribution of the securities registered hereby. With the exception of the
Securities and Exchange Commission registration fee and the NASD filing fee, the
amounts set forth below are estimates.
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<S> <C>
Securities and Exchange Commission registration fee...................... $ 52,662
NASD filing fee.......................................................... 15,772
The New York Stock Exchange, Inc. listing fee............................ 17,500
Printing and engraving expenses.......................................... 300,000
Legal fees and expenses.................................................. 375,000
Accounting fees and expenses............................................. 45,000
Blue Sky fees and expenses............................................... 15,000
Transfer agent fees and expenses......................................... 5,000
Miscellaneous expenses................................................... 24,066
----------
Total.......................................................... $ 850,000
==========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Section of the Prospectus entitled "The Partnership
Agreement--Indemnification" is incorporated herein by reference.
Reference is made to Section 6 of the Purchase Agreement filed as Exhibit
1.1 to this Registration Statement.
Subject to the terms, conditions or restrictions set forth in the
Partnership Agreement, the Delaware Act empowers a Delaware limited partnership
to indemnify and hold harmless any partner or other person from and against
claims and demands incurred in its capacity as a partner or other representative
of the Partnership.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
a. Exhibits
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EXHIBIT
NO. DESCRIPTION
- ------- ------------------------------------------------------------------------------------
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*1.1 Form of Purchase Agreement.
3.1 Certificate of Limited Partnership of Plum Creek Timber Company, L.P., as filed with
the Secretary of State of the state of Delaware on April 12, 1989 (Form S-1, Regis.
No. 33-028094, filed May 1989).
3.2 Amended and Restated Agreement of Limited Partnership of Plum Creek Timber Company,
L.P. dated June 8, 1989, as amended and restated through October 17, 1995 (Form
10-Q, No. 1-10239, filed November 1995).
4.1 Deposit Agreement by and among Plum Creek Timber Company, L.P. and The First
National Bank of Boston, dated as of May 1989 (Form S-1, Regis. No. 33-28094, filed
May 1989).
4.2 Form of Transfer Application (Form S-1, Regis. No. 33-28094, filed May 1989).
</TABLE>
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<CAPTION>
EXHIBIT
NO. DESCRIPTION
- ------- ------------------------------------------------------------------------------------
<C> <S>
4.3 Senior Note Agreement, dated May 31, 1989, 11 1/8 percent Senior Notes due June 8,
2007, Plum Creek Timber Company, L.P. (Form 10-Q, No. 1-10239, filed August, 1989).
Amendment No. 1, consent and waiver dated January 1, 1991 to Senior Note Agreement,
dated May 31, 1989, 11 1/8 percent Senior Notes due June 8, 2007, Plum Creek Timber
Company, L.P. (Form 8 Amendment No. 1, filed April 1991). Amendment No. 2, consent
and waiver dated September 1, 1993 to the Mortgage Note Agreement (Form 8 Amendment
No. 1, filed April 1991). Amendment No. 2, consent and waiver dated September 1,
1993 to the Senior Note Agreement (Form 10-K/A, Amendment No. 1, filed April 1994).
Amendment No. 3, Senior Note Agreement Amendment dated May 20, 1994 (Form 10-Q, No.
1-10239, filed November 1995). Senior Note Agreement Amendment, dated May 31, 1996
(Form 10-Q, No. 1-10239, filed August 1996).
4.4 Mortgage Note Agreement, dated May 31, 1989, 11 1/8 percent First Mortgage Notes due
June 8, 2007, Plum Creek Manufacturing, Inc. (Form 10-Q, No. 1-10239, filed August
1989). Amendment No. 1, consent and waiver dated January 1, 1991 to Mortgage Note
Agreement, dated May 31, 1989, 11 1/8 percent First Mortgage Notes due June 8, 2007,
Plum Creek Manufacturing, Inc., now Plum Creek Manufacturing, L.P. (Form 8 Amendment
No. 1, filed April 1991). Amendment No. 2, consent and waiver dated September 1,
1993 to the Mortgage Note Agreement (Form 10-K/A, Amendment No. 1, filed April
1994). Amendment No. 3, Mortgage Note Agreement Amendment dated May 20, 1994 (Form
10-K/A, Amendment No. 1, filed April 1995). Amendment to Mortgage Note Agreement
dated June 15, 1995 (Form 10-Q, No. 1-10239, filed November 1995). Mortgage Note
Agreement Amendment, dated May 31, 1996 (Form 10-Q, No. 1-10239, filed August 1996).
4.5 Senior Note Agreement, dated August 1, 1994, 8.73% Senior Notes due August 1, 2009,
Plum Creek Timber Company, L.P. (Form 10-Q, No. 1-10239, filed November 1995).
Senior Note Agreement Amendment, dated as of October 15, 1995 (Form 10-K, No.
1-10239, filed March 1996). Senior Note Agreement Amendment, dated May 31, 1996
(Form 10-Q, No. 1-10239, filed August 1996).
*5.1 Opinion of Andrews & Kurth L.L.P., as to the legality of the securities being
registered.
*8.1 Opinion of Andrews & Kurth L.L.P. relating to tax matters.
**23.1 Consent of Coopers & Lybrand L.L.P.
**23.2 Consent of Coopers & Lybrand L.L.P.
*23.3 Consent of Andrews & Kurth L.L.P. (included in Exhibits 5.1 and 8.1).
</TABLE>
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* Filed herewith.
** Previously filed.
b. Financial Statement Schedules.
All financial statement schedules are omitted because the information is
not required, is not material or is otherwise included in the financial
statements or related notes thereto.
ITEM 17. UNDERTAKINGS
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers or controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses incurred
or
II-2
<PAGE> 4
paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part
of this registration statement in reliance upon Rule 430A and contained in
a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
II-3
<PAGE> 5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Seattle, Washington, on the 17th day of October,
1996.
PLUM CREEK TIMBER COMPANY, L.P.
By: PLUM CREEK MANAGEMENT COMPANY, L.P.,
Its General Partner
By: /s/ DIANE M. IRVINE
------------------------------------
Name: Diane M. Irvine
Title: Vice President and Chief
Financial Officer
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED,
THIS REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES INDICATED ON OCTOBER 17, 1996.
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SIGNATURE TITLE
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<C> <S>
/s/ RICK R. HOLLEY President, Chief Executive Officer and Director
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Rick R. Holley
/s/ * Chairman of the Board and Director
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David D. Leland
/s/ * Executive Vice President and Director
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Charles P. Grenier
/s/ * Director
- ----------------------------------------
Ian B. Davidson
/s/ * Director
- ----------------------------------------
George M. Dennison
/s/ * Director
- ----------------------------------------
William E. Oberndorf
/s/ * Director
- ----------------------------------------
William J. Patterson
/s/ * Director
- ----------------------------------------
John H. Scully
*By: /s/ RICK R. HOLLEY
- ----------------------------------------
Attorney-in-Fact
</TABLE>
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Exhibit
No. Description
- ------- -----------
1.1 Form of Purchase Agreement.
5.1 Opinion of Andrews & Kurth L.L.P., as to the legality of the
securities being registered.
8.1 Opinion of Andrews & Kurth L.L.P. relating to tax matters.
<PAGE> 1
EXHIBIT 1.1
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5,000,000 Depositary Units
PLUM CREEK TIMBER COMPANY, L.P.
(a Delaware limited partnership)
Depositary Units
Representing Limited Partner Interests
PURCHASE AGREEMENT
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
DEAN WITTER REYNOLDS INC.
PAINEWEBBER INCORPORATED
SMITH BARNEY INC.
D.A. DAVIDSON & CO.
October __, 1996
- --------------------------------------------------------------------------------
<PAGE> 2
5,000,000 Depositary Units
PLUM CREEK TIMBER COMPANY, L.P.
(a Delaware limited partnership)
Depositary Units
(representing limited partner interests)
PURCHASE AGREEMENT
October , 1996
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
DEAN WITTER REYNOLDS INC.
PAINEWEBBER INCORPORATED
SMITH BARNEY INC.
D.A. DAVIDSON & CO.
as Representatives of the several Underwriters
c/o Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
North Tower
World Financial Center
New York, New York 10281-1209
Ladies and Gentlemen:
Plum Creek Timber Company, L.P., a Delaware limited
partnership (the "Partnership"), confirms its agreement with Merrill Lynch &
Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated (collectively, "Merrill
Lynch"), Dean Witter Reynolds Inc., PaineWebber Incorporated, Smith Barney Inc.,
D.A. Davidson & Co. and each of the other Underwriters named in Exhibit A hereto
(collectively, the "Underwriters," which term shall
2
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also include any underwriter substituted as hereinafter provided in Section 10
hereof), for whom Merrill Lynch, Dean Witter Reynolds Inc., PaineWebber
Incorporated, Smith Barney Inc. and D.A. Davidson & Co. are acting as
representatives (in such capacity, Merrill Lynch, Dean Witter Reynolds Inc.,
PaineWebber Incorporated, Smith Barney Inc. and D.A. Davidson & Co. shall
hereinafter be referred to as the "Representatives"), with respect to the sale
by the Partnership and the purchase by the Underwriters, acting severally and
not jointly, of an aggregate of 5,000,000 depositary units representing limited
partner interests in the Partnership ("Depositary Units") in the respective
numbers set forth in Exhibit A, and with respect to the grant by the Partnership
to the Underwriters, acting severally and not jointly, of the option described
in Section 2(b) hereof to purchase all or any part of 750,000 additional
Depositary Units to cover over-allotments, if any (the "Additional Units"). The
5,000,000 Depositary Units are referred to herein as the "Firm Units." The Firm
Units and the Additional Units, if purchased, are collectively referred to
herein as the "Units."
Capitalized terms used but not defined herein shall have the
meaning ascribed to them in the Registration Statement and the Prospectus (each
as defined herein). Unless the context otherwise requires, all references herein
to "the Partnership" shall be deemed to give effect to the Riverwood Acquisition
at or prior to the consummation of the issuance of the Firm Units. Prior to or
concurrently with the offering of the Firm Units, the Partnership is proposing
to enter into the New Bank Facilities in order to finance in part the Riverwood
Acquisition, and to consummate the Newport Asset Sale.
Prior to the purchase and public offering of the Firm Units by
the several Underwriters, the Partnership and the Representatives, acting on
behalf of the several Underwriters, shall enter into an agreement substantially
in the form of Exhibit B hereto (the "Pricing Agreement"). The Pricing Agreement
may take the form of an exchange of any standard form of written
telecommunication between the Partnership and the Representatives and shall
specify the initial public offering price, the purchase price with respect to
the Firm Units and such other applicable information as is indicated in Exhibit
B hereto. The offering of the Firm Units will be governed by this Agreement, as
supplemented by the Pricing Agreement. From and after the date of the execution
and delivery of the Pricing Agreement, this Agreement shall be deemed to
incorporate the Pricing Agreement.
The Partnership has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (No.
333-11727) covering the registration of the Units under the Securities Act of
1933, as amended (the "1933 Act"), including the related preliminary prospectus
or prospectuses. Promptly after execution and delivery of this Agreement, the
Company will either (i) prepare and file a prospectus in accordance with the
provisions of Rule 430A ("Rule 430A") of the rules and regulations of the
Commission under
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the 1933 Act (the "1933 Act Regulations") and paragraph (b) of Rule 424 ("Rule
424(b)") of the 1933 Act Regulations or (ii) if the Partnership has elected to
rely upon Rule 434 ("Rule 434") of the 1933 Act Regulations, prepare and file a
term sheet (a "Term Sheet") in accordance with the provisions of Rule 434 and
Rule 424(b). The information included in such prospectus or in such Term Sheet,
as the case may be, that was omitted from such registration statement at the
time it became effective but that is deemed to be part of such registration
statement at the time it became effective (A) pursuant to paragraph (b) of Rule
430A is referred to as "Rule 430A Information" or (B) pursuant to paragraph (d)
of Rule 434 is referred to as "Rule 434 Information." Each prospectus used
before such registration statement became effective, and any prospectus that
omitted, as applicable, the Rule 430A Information or the Rule 434 Information
that was used after such effectiveness and prior to the execution and delivery
of this Agreement, is herein called a "preliminary prospectus." Such
registration statement (as amended, if applicable), including the exhibits
thereto, schedules thereto, if any, and the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the 1933 Act, at the time it
became effective and including the Rule 430A Information and the Rule 434
Information, as applicable, is herein called the "Registration Statement." Any
registration statement filed pursuant to Rule 462(b) of the 1933 Act Regulations
is herein referred to as the "Rule 462b Registration Statement," and after such
filing the term "Registration Statement" shall include the Rule 462(b)
Registration Statement. The final prospectus, including the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933
Act, in the form first furnished to the Underwriters for use in connection with
the offering of the Units, is herein called the "Prospectus." If Rule 434 is
relied on, the term "Prospectus" shall refer to the preliminary prospectus dated
October __, 1996 together with the Term Sheet and all references in this
Agreement to the date of the Prospectus shall mean the date of the Term Sheet.
For purposes of this Agreement, all references to the Registration Statement,
the Prospectus or any term sheet or any amendment or supplement to any of the
foregoing shall be deemed to include the copy filed with the Commission pursuant
to its Electronic Data Gathering, Analysis and Retrieval system ("EDGAR").
All references in this Agreement to the financial statements
and schedules and other information (financial and otherwise) that is
"contained," "included," "described" or "stated" in the Registration Statement,
any preliminary prospectus or the Prospectus (or other references of like
import) shall be deemed to mean and include all such financial statements and
schedules and other information which is incorporated by reference in the
Registration Statement, any preliminary prospectus or the Prospectus, as the
case may be; and all references in this Agreement to amendments or supplements
to the Registration Statement, any preliminary prospectus or the Prospectus
shall be deemed to mean and include the filing of any document under the
Securities Exchange Act of 1934 (the "1934 Act") which is incorporated
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by reference in the Registration Statement, any preliminary prospectus or the
Prospectus, as the case may be.
The Partnership understands that the Underwriters propose to
make a public offering of the Units as soon as the Representatives deem
advisable after the Pricing Agreement has been executed and delivered.
SECTION 1. Representations and Warranties.
(a) Each of Plum Creek Management Company, L.P., a Delaware limited
partnership (the "General Partner"), the Partnership, Plum Creek Manufacturing,
L.P., a Delaware limited partnership ("Manufacturing"), and Plum Creek
Marketing, Inc., a Delaware corporation ("Marketing" and, collectively with the
General Partner, the Partnership and Manufacturing, the "Companies"), jointly
and severally represents and warrants to each Underwriter as of the date hereof,
as of the Closing Time (as defined below) and, if applicable, as of each Date of
Delivery (as defined below) (in each case, a "Representation Date"), as follows:
(i) Compliance with Registration Requirements. The Partnership
meets the requirements for use of Form S-3 under the 1933 Act. The
Registration Statement has become effective under the 1933 Act and no
stop order suspending the effectiveness of the Registration Statement
has been issued under the 1933 Act and no proceedings for that purpose
have been instituted or are pending or, to the knowledge of the General
Partner, are contemplated by the Commission, and any request on the
part of the Commission for additional information has been complied
with.
At the time the Registration Statement became effective and at
each Representation Date, the Registration Statement complied and will
comply in all material respects with the requirements of the 1933 Act
and the 1933 Act Regulations and did not and will not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading. Each preliminary prospectus, at the time of filing thereof,
and the Prospectus, at each Representation Date, complied and will
comply in all material respects with the requirements of the 1933 Act
and the 1933 Act Regulations and did not and will not include an untrue
statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. If Rule 434
is used, the Partnership will comply with the requirements of Rule 434.
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The representations and warranties in this subsection shall
not apply to statements in or omissions from the Registration Statement
or the Prospectus made in reliance upon and in conformity with
information furnished to the Partnership in writing by any Underwriter
through Merrill Lynch expressly for use in the Registra- tion Statement
or the Prospectus. Each of the Companies acknowledges that the only
information furnished to the Partnership in writing by any Underwriter
through Merrill Lynch expressly for use in the Registration Statement
or the Prospectus are the statements with respect to underwriting
discounts and commissions on the cover page of the Prospectus, the last
full text paragraph on the cover page of the Prospectus, the legend
concerning stabilization on the inside front cover page of the
Prospectus and the second and sixth full text paragraphs of the
"Underwriting" section of the Prospectus (such information is herein
referred to as the "Underwriting Information").
(ii) Incorporated Documents. The documents incorporated or
deemed to be incorporated by reference in the Registration Statement
and the Prospectus, at the time they were or hereafter are filed with
the Commission (the "Incorporated Documents"), complied and will comply
in all material respects with the requirements of the 1934 Act and the
rules and regulations of the Commission under the 1934 Act (the "1934
Act Regulations"), and, when read together with the other information
in the Prospectus, at the date of the Prospectus and at each
Representation Date, will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(iii) Independent Accountants. The accountants who certified
the financial statements and supporting schedules included in the
Registration Statement are independent public accountants as required
by the 1933 Act and the 1933 Act Regulations.
(iv) Financial Statements. The financial statements included
in the Registration Statement and the Prospectus, together with the
related schedules and notes, present fairly the financial position of
the Partnership and its consolidated subsidiaries as of the dates
indicated and the results of their operations and cash flows for the
periods specified. Said financial statements have been prepared in
conformity with generally accepted accounting principles ("GAAP")
applied on a consistent basis throughout the periods involved. The
supporting schedules, if any, included in the Registration Statement
present fairly in accordance with GAAP the information required to be
stated therein. The selected financial data and the summary financial
information included in the Prospectus have been compiled on a basis
consistent with that of the audited and unaudited historical financial
statements and pro forma financial statements from which they have been
derived. The pro forma financial statements and the related notes
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<PAGE> 7
thereto included in the Registration Statement and the Prospectus
present fairly the information shown therein, have been prepared in
accordance with the Commission's rules and guidelines with respect to
pro forma financial statements (including the applicable accounting
requirements of Rule 11-02 of Regulation S-X of the Commission) and
have been properly compiled on the bases described therein, and the
assumptions used in the preparation thereof are, in the judgment of the
General Partner, reasonable and the adjustments used therein are, in
the judgment of the General Partner, appropriate to give effect to the
transactions and circumstances referred to therein. Any other financial
and statistical information and data not otherwise described in this
paragraph and included in the Registration Statement and the Prospectus
are accurate in all material respects and present, in accordance with
GAAP (to the extent applicable) and on a basis consistent with the
books and records of the Partnership, the information required to be
stated therein.
(v) No Material Adverse Change in Business. Since the
respective dates as of which information is given in the Registration
Statement and the Prospectus, (A) there has been no material adverse
change in the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Partnership and its
subsidiaries considered as one enterprise, whether or not arising in
the ordinary course of business, (B) except as otherwise stated in the
Registration Statement and the Prospectus, there have been no
transactions entered into by any of the Companies, other than those in
the ordinary course of business, which are material with respect to the
Partnership and its subsidiaries considered as one enterprise, and (C)
there has been no distribution of any kind declared, paid or made by
the Partnership on any class of its equity interests, except for the
Partnership's declaration of its cash distribution to holders of
Depositary Units with respect to the quarter ending September 30, 1996,
which will be paid on or before November 29, 1996 to holders of record
on or about November 15, 1996.
(vi) Good Standing of the Companies. Each of the Partnership
and Manufacturing has been duly formed and is validly existing as a
limited partnership in good standing under the Delaware Revised Uniform
Limited Partnership Act (the "Delaware Act"), with all partnership
power and authority to (x) own, lease and operate its properties and
conduct its business as described in the Prospectus and (y) enter into
and perform its obligations under this Agreement. Each of the
Partnership and Manufacturing is duly qualified or registered as a
foreign limited partnership authorized to do business and is in good
standing in each jurisdiction in which qualification or registration is
required, whether by reason of the ownership or leasing of property or
the conduct of business, except where the failure to so qualify or
register or be in good standing would not have a material adverse
effect on the condition, financial or other-
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<PAGE> 8
wise, or on the earnings, business affairs or business prospects of the
Partnership and its subsidiaries considered as one enterprise, whether
or not arising in the ordinary course of business (a "Material Adverse
Effect") or would not subject its partners to any material liability or
disability.
The General Partner has been duly formed and is validly
existing as a limited partnership in good standing under the Delaware
Act, with all partnership power and authority to (x) own, lease and
operate its properties and conduct its business as described in the
Prospectus, (y) act as the general partner of the Partnership and
Manufacturing and as a stockholder of Marketing, and (z) enter into and
perform its obligations under this Agreement. The General Partner is
duly qualified or registered as a foreign limited partnership
authorized to do business and is in good standing under the laws of
each jurisdiction in which qualification or registration is required,
whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure to so qualify or register
or be in good standing would not have a Material Adverse Effect or a
material adverse effect on the General Partner's condition (financial
or otherwise), earnings, business affairs or business prospects.
Marketing has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the state of
Delaware, with all corporate power and authority to (x) own, lease and
operate its properties and conduct its business as described in the
Prospectus and (y) enter into and perform its obligations under this
Agreement. Marketing is duly qualified as a foreign corporation
authorized to do business and is in good standing under the laws of
each jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify would not have a
Material Adverse Effect.
(vii) Capitalization. The capitalization of the Partnership as
of June 30, 1996 is as set forth in the Prospectus in the column
entitled "Historical" under the caption "Capitalization." At June 30,
1996, the Partnership would have had on a pro forma basis after giving
effect to the Transactions the capitalization set forth in the
Prospectus in the column entitled "Pro forma as adjusted" under the
caption "Capitalization." The General Partner is the sole general
partner of the Partnership, with a 2.0% general partner interest in the
Partnership pursuant to the Amended and Restated Agreement of Limited
Partnership of the Partnership, dated as of October 17, 1995 (the
"Partnership Agreement"), among the General Partner and the limited
partners described therein. Such general partner interest has been duly
authorized and validly issued to the General Partner, is fully paid and
is owned by the General Partner free and clear of any security
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interest, mortgage, pledge, lien, encumbrance, claim or equity
(collectively, "Encumbrances") except as described in the Prospectus.
The General Partner is the sole general partner and the
Partnership is the sole limited partner of Manufacturing, with a 2.0%
general partner interest and a 98.0% limited partner interest,
respectively, in Manufacturing pursuant to the Agreement of Limited
Partnership of Manufacturing, dated as of December 27, 1990 (the
"Manufacturing Partnership Agreement"), among the General Partner and
the Partnership. Such general partner and limited partner interests
have been duly authorized and validly issued to the General Partner and
the Partnership, respectively, are fully paid and are owned by the
General Partner and the Partnership, respectively, free and clear of
any Encumbrance. None of the outstanding equity interests of
Manufacturing were issued in violation of preemptive or similar rights
of any person or entity. Manufacturing has issued no rights, warrants
or options to acquire or instruments convertible into or exchangeable
for, and none of the Companies is a party to any agreements or
understandings with respect to the sale or issuance of, any equity
interest in Manufacturing.
The General Partner owns 4.0% and the Partnership owns 96.0%
of the issued and outstanding capital stock of Marketing. Such capital
stock has been duly authorized and validly issued to the General
Partner and the Partnership, is fully paid and non-assessable and is
owned by the General Partner and the Partnership free and clear of any
Encumbrance. None of the outstanding shares of capital stock of
Marketing was issued in violation of preemptive or similar rights of
any person or entity. Marketing has issued no rights, warrants or
options to acquire or instruments convertible into or exchangeable for,
and none of the Companies is a party to any agreements or
understandings with respect to the sale and issuance of, any equity
interest in Marketing.
Manufacturing and Marketing are the only subsidiaries of the
Partnership.
(viii) Authorization and Description of Units. The Units to be
purchased by the Underwriters from the Partnership have been duly
authorized for issuance and sale to the Underwriters pursuant to this
Agreement and, when issued and delivered by the Partnership pursuant to
this Agreement against payment of the consideration set forth herein,
will be validly issued and fully paid and nonassessable (except as such
non-assessability may be affected as described in the Prospectus) and
will be acquired by the Underwriters free and clear of all
Encumbrances. The Units conform in all material respects to all
statements relating thereto contained or incorporated by reference in
the Prospectus and such description conforms to the rights set forth in
the
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instruments defining the same. No holder of the Units will be subject
to personal liability by reason of being such a holder, except as
described in the Prospectus. The issuance of the Units is not subject
to preemptive or other similar rights of any person or entity. On the
Closing Date, assuming that the Underwriters have purchased the Firm
Units and have not purchased any Additional Units, the Partnership will
have 45,608,300 Units outstanding, representing a 98.0% limited partner
interest in the Partnership. Except as described in the Prospectus, the
Partnership has not issued or created any rights, warrants or options
to acquire or instruments convertible into or exchangeable for, and
none of the Companies is a party to any agreements or understandings
with respect to the sale or issuance of, any equity interest in the
Partnership.
(ix) Authorization of Agreement. This Agreement has been duly
authorized, executed and delivered by each of the Companies and,
assuming its due authorization, execution and delivery by the
Underwriters, constitutes a valid and legally binding agreement of each
of the Companies, enforceable against each of them in accordance with
its terms, except as the enforceability thereof may be limited by (a)
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium
or other similar laws now or hereafter in effect relating to or
affecting creditors' rights generally, (b) public policy, applicable
law relating to fiduciary duties and the judicial imposition of an
implied covenant of good faith and fair dealing and except as rights to
indemnity or contribution may be limited by applicable law or (c)
general principles of equity (regardless of whether such enforceability
is considered in a proceeding at law or in equity). The Pricing
Agreement has been duly authorized, executed and delivered by the
Partnership and, assuming due authorization, execution and delivery by
the Underwriters, constitutes a valid and legally binding agreement of
the Partnership, enforceable against the Partnership in accordance with
its terms, except as the enforceability thereof may be limited by (a)
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium
or other similar laws now or hereafter in effect relating to or
affecting creditors' rights generally, (b) public policy, applicable
law relating to fiduciary duties and the judicial imposition of an
implied covenant of good faith and fair dealing or (c) general
principles of equity (regardless of whether such enforceability is
considered in a proceeding at law or in equity).
(x) Authorization of Partnership Agreements. The Partnership
Agreement has been duly authorized, executed and delivered by the
General Partner and is a valid and legally binding agreement of the
General Partner, enforceable against the General Partner in accordance
with its terms, except as the enforceability thereof may be limited by
(a) bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium
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or other similar laws now or hereafter in effect relating to or
affecting creditors' rights generally, (b) public policy, applicable
law relating to fiduciary duties and the judicial imposition of an
implied covenant of good faith and fair dealing or (c) general
principles of equity (regardless of whether such enforceability is
considered in a proceeding at law or in equity). The Manufacturing
Partnership Agreement has been duly authorized, executed and delivered
by the General Partner and the Partnership and is a valid and legally
binding agreement of the General Partner and the Partnership,
enforceable against each of them in accordance with its terms, except
as the enforceability thereof may be limited by (a) bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium or other
similar laws now or hereafter in effect relating to or affecting
creditors' rights generally, (b) public policy, applicable law relating
to fiduciary duties and the judicial imposition of an implied covenant
of good faith and fair dealing or and (c) general principles of equity
(regardless of whether such enforceability is considered in a
proceeding at law or in equity).
(xi) Authorization of Deposit Agreement. The Deposit Agreement
has been duly authorized, executed and delivered by the Partnership
and, assuming its due authorization, execution and delivery by each of
the other parties thereto, is a valid and legally binding agreement of
the Partnership, enforceable against the Partnership in accordance with
its terms, except as the enforceability thereof may be limited by (a)
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium
or other similar laws now or hereafter in effect relating to or
affecting creditors' rights generally, (b) public policy, applicable
law relating to fiduciary duties and the judicial imposition of an
implied covenant of good faith and fair dealing or (c) general
principles of equity (regardless of whether such enforceability is
considered in a proceeding at law or in equity).
(xii) Properties. The Partnership and its subsidiaries have
good and marketable title to all real property and good title to all
other properties described in the Prospectus as being owned by them
(including, without limitation, the Timberlands and the Conversion
Facilities), free and clear of all Encumbrances of any kind except such
as (a) are described in the Prospectus, (b) do not, singly or in the
aggregate, materially interfere with the use made and proposed to be
made of such property by the Partnership or any of its subsidiaries,
(c) secure obligations under the First Mortgage Notes or (d) relate to
reservations of mineral rights. All of the leases and subleases
material to the business of the Partnership and its subsidiaries,
considered as one enterprise, and under which the Partnership or any of
its subsidiaries holds properties described in the Prospectus are in
full force and effect, and neither the Partnership nor any of its
subsidiaries has any actual notice of any material claim of any sort
that has been
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asserted by anyone adverse to the rights of the Partnership or any
subsidiary under any of the leases or subleases mentioned above, or
affecting or questioning the rights of the Partnership or such
subsidiary to the continued possession of the leased or subleased
premises under any such lease or sublease.
(xiii) Absence of Defaults and Conflicts. None of the
Companies is in violation of any of its organizational documents,
including (as applicable) its agreement of limited partnership, charter
or by-laws, or in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note,
lease or other agreement or instrument to which it is a party or by
which it may be bound, or to which any of its property or assets is
subject (collectively, "Agreements and Instruments") except for such
violations or defaults that would not result in a Material Adverse
Effect; and the execution, delivery and performance of this Agreement
and the consummation of the Transactions and compliance by the
Companies with their obligations hereunder have been duly authorized by
all necessary partnership and corporate action, as applicable, and do
not and will not, whether with or without the giving of notice or
passage of time or both, conflict with or constitute a breach of, or
default or Repayment Event (as defined below) under, or result in the
creation or imposition of any Encumbrance upon any property or assets
of any of the Companies pursuant to, the Agreements and Instruments
(except for such conflicts, breaches, defaults or Encumbrances that
would not result in a Material Adverse Effect), nor will such action
result in any violation of the provisions of the organizational
documents of any of the Companies or any applicable law, statute, rule,
regulation, judgment, order, writ or decree of any government,
government instrumentality or court, domestic or foreign, having
jurisdiction over any of the Companies or any of their assets,
properties or operations. As used herein, a "Repayment Event" means any
event or condition which gives the holder of any note, debenture or
other evidence of indebtedness (or any person acting on such holder's
behalf) the right to require the repurchase, redemption or repayment of
all or a portion of such indebtedness by any of the Companies.
(xiv) Absence of Further Requirements. No filing with, notice
to, or authorization, approval, consent, license, order, registration,
qualification or decree of, any court, governmental authority or
agency, financial institution or other person is necessary or required
for the performance of the Companies of their obligations hereunder, in
connection with the offering, issuance or sale of the Units hereunder
or in connection with the consummation of the Transactions, except such
as have been already made or obtained or as may be required under the
1933 Act, the 1933 Act Regulations or state securities laws.
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(xv) Absence of Labor Disputes. No labor dispute with the
employees of any of the Companies exists or, to the knowledge of the
General Partner, is imminent, and the General Partner is not aware of
any existing or imminent labor disturbance by the employees of any of
the principal suppliers, manufacturers, customers or contrac- tors of
the Partnership or any of its subsidiaries which would reasonably be
expected to have a Material Adverse Effect.
(xvi) Absence of Proceedings. There is no action, suit,
proceeding, inquiry or investigation before or by any court or
governmental agency or body, domestic or foreign, now pending or, to
the knowledge of the General Partner, threatened against or affecting
any of the Companies, (a) which is required to be disclosed in the
Registration Statement (other than as disclosed therein), (b) which
would reasonably be expected to result in a Material Adverse Effect, or
(c) which would reasonably be expected to materially and adversely
affect the performance by the Companies of their obligations hereunder
or the consummation of the Transactions. All pending legal or
governmental proceedings to which any of the Companies is a party or of
which any of their property or assets is the subject which are not
described in the Registration Statement, other than ordinary routine
litigation incidental to the business, would not reasonably be expected
to have a Material Adverse Effect.
(xvii) Accuracy of Exhibits. There are no contracts or
documents that are required to be described in the Registration
Statement, the Prospectus or the documents to be filed as exhibits
thereto which have not been so described and filed as required, and the
descriptions thereof are accurate in all material respects.
(xviii) Possession of Licenses and Permits. Each of the
Companies possesses such permits, licenses, approvals, consents and
other authorizations (collectively, "Governmental Licenses") issued by
the appropriate federal, state, local or foreign regulatory agencies or
bodies necessary to conduct the business operated by them as described
in the Prospectus, except as set forth therein. Each of the Companies
is in compliance with the terms and conditions of all such Governmental
Licenses, except where the failure so to comply would not, singly or in
the aggregate, have a Material Adverse Effect. All of the Governmental
Licenses are valid and in full force and effect, except when the
invalidity of such Governmental Licenses or the failure of such
Governmental Licenses to be in full force and effect would not have a
Material Adverse Effect. None of the Companies has received any actual
notice of proceedings relating to the revocation or modification of any
such Governmental Licenses which,
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singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would reasonably be expected to result in a Material
Adverse Effect.
(xix) Compliance with Cuba Act. Each of the Companies is in
compliance with the provisions of that certain Florida act relating to
disclosure of doing business with Cuba, codified as Section 517.075 of
the Florida statutes, and the rules and regulations thereunder
(collectively, the "Cuba Act") or is exempt therefrom.
(xx) Investment Company Act. None of the Companies is, and
upon the issuance and sale of the Units as herein contemplated, the
application of the net proceeds therefrom as described in the
Prospectus and the consummation of the other Transactions, none of the
Companies will be, an "investment company" or an entity "controlled" by
an "investment company" within the meaning of the Investment Company
Act of 1940, as amended, and the rules and regulations thereunder.
(xxi) Environmental Matters.
(a) Except as would not, singly or in the aggregate, result in
a Material Adverse Effect or otherwise would require disclosure in the
Prospectus, (i) none of the Companies nor any other person or entity
for whom any of them is or may be liable is in violation of any
federal, state, local or foreign laws or regulations relating to
pollution or protection of human health or the environment (including,
without limitation, ambient air, surface water, ground water, land
surface, subsurface strata, flora, or fauna), including, without
limitation, laws and regulations relating to emissions, discharges,
releases or threatened releases of chemicals, pollutants, contaminants,
wastes, toxic substances, hazardous substances, petroleum or petroleum
products, asbestos or asbestos-containing materials, or polychlorinated
biphenyls ("Materials of Environmental Concern"), or otherwise relating
to the manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of Materials of Environmental Concern,
or relating to protection of wildlife, endangered species, wetlands or
natural resources (collectively, "Environmental Laws"); (ii) none of
the Companies has received any communication (written or oral), whether
from a governmental authority, citizens' group, employee or otherwise,
alleging that any of the Companies or any other person or entity for
whom any of them is or may be liable is not in full compliance with any
Environmental Laws, or permit or authorization required thereunder, and
there are no circumstances that may prevent or interfere with such full
compliance in the future; (iii) there is no claim, action, cause of
action, investigation or notice (written or oral) by any person or
entity alleging potential liability (including, without limitation,
potential liability for investigatory costs, natural
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resources damages, property damages, personal injuries, fines or
penalties) arising out of, based on or resulting from (x) the presence
in or release into the environment of any Materials of Environmental
Concern at any location owned, leased or operated, now or in the past,
by any of the Companies or any other person or entity for whom any of
them is or may be liable, or (y) circumstances forming the basis of any
violation or alleged violation of any Environmental Law (collectively,
"Environmental Claims") pending or threatened against any of the
Companies or any other person or entity whose liability for any
Environmental Claim any of the Companies has retained or assumed either
contractually or by operation of law; and (iv) there are no past or
present actions, activities, circumstances, conditions, events or
incidents, including, without limitation, the release, emission,
discharge, presence or disposal of any Materials of Environmental
Concern, that could form the basis of any Environmental Claim against
any of the Companies with respect to property owned, leased or operated
by or for any of them, now or in the past, or against any person or
entity whose liability for any Environmental Claim any of the Companies
has retained or assumed either contractually or by operation of law.
(b) In the ordinary course of their business, the Companies
conduct a periodic review of the effect of current and proposed
Environmental Laws on the business, operations and properties of the
Companies, in the course of which they identify and evaluate associated
costs and liabilities (including, without limitation, any capital or
operating expenditures required for cleanup, closure of properties or
compliance with such Environmental Laws, or any permit, license or
approval required thereunder, any related constraints on operating
activities, and any potential liabilities to third parties). On the
basis of such review, the General Partner has reasonably concluded that
such associated costs and liabilities would not, singly or in the
aggregate, result in a Material Adverse Effect or otherwise require
disclosure in the Prospectus.
(xxii) Employee Benefit Plans; ERISA.
(a) With respect to each bonus, deferred compensation,
incentive compensation, stock purchase, stock option, employment,
consulting, severance or termination pay, hospitalization or other
medical, life or other insurance, supplemental unemployment benefits,
profit-sharing, pension or retirement plan, program, agreement or
arrangement, and each other "employee benefit plan" (within the meaning
of Section 3(3) of the Employee Retirement Income Security Act of 1974
as amended, and the rules and regulations promulgated thereunder
("ERISA")), whether formal or informal, written or oral and whether
legally binding or not, that is sponsored, maintained or contributed to
or was, within the last six years, sponsored, maintained or contributed
to
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by the Companies or by any trade or business, whether or not
incorporated, which together with the Companies would be deemed a
"single employer" within the meaning of Section 4001 of ERISA (an
"ERISA Affiliate"), for the benefit of any employee, former employee,
consultant, officer, or director of the Companies (a "Company Benefit
Plan"): (1) each of the Companies is in compliance in all material
respects with all presently applicable provisions of ERISA and of the
Internal Revenue Code of 1986, as amended, including the regulations
and published interpretations thereunder (the "Code"); (2) no
"reportable event" (as defined in ERISA) has occurred with respect to
any "pension plan" (as defined in ERISA) for which any of the Companies
could reasonably be expected to have any material liability under Title
IV of ERISA; the Companies have not incurred and, to the knowledge of
the General Partner, there is no pending or threatened material
liability of any of the Companies under (A) Title IV of ERISA with
respect to termination of, or withdrawal from, any "pension plan" or
(B) Sections 412 or 4971 of the Code; (3) each Company Benefit Plan
with respect to which any of the Companies has any contribution
obligation (whether primary or contingent), or material liability, with
the exception of any multiemployer plan within the meaning of Sections
3(37) and 4001(a)(3) of ERISA, has at all times been maintained, by its
terms and in operation, in accordance with all applicable laws; and (4)
each Company Benefit Plan that is intended to be qualified under
Section 401(a) of the Code has been determined by the Internal Revenue
Service to be so qualified in all material respects and to the
knowledge of the General Partner nothing has occurred, whether by
action or by failure to act, which would cause the loss of such
qualification.
(b) None of the Companies nor any ERISA Affiliate maintains,
or is obligated, or has been during the preceding six (6) years
obligated, to make contributions to or under any multiemployer plan (as
defined in section 3(37) and section 4001(a)(3) of ERISA).
(xxiii) Taxes. Each of the Companies has filed all Federal
income tax returns and all other material tax returns, domestic or
foreign, required to be filed through the date hereof and all such
returns are true, correct, and complete in all material respects. Each
of the Companies has paid all material taxes and assessments for which
it is liable, except for such taxes or assessments being contested in
good faith and for which adequate reserves have been provided in
accordance with GAAP.
(xxiv) Stabilization. None of the Companies has (A) taken,
directly or indirectly, any action designed to cause or to result in,
or that has constituted or which might reasonably be expected to
constitute, the stabilization or manipulation of the price of the
Units, to facilitate the sale or resale of the Units or (B) since the
initial
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filing of the Registration Statement, except as contemplated by this
Agreement, (i) sold, bid for, purchased or paid anyone any compensation
for soliciting purchases of, the Units or (ii) paid or agreed to pay to
any person any compensation for soliciting another to purchase any
other securities of the Partnership.
(xxv) NYSE Listing. The Depositary Units are listed on the New
York Stock Exchange, Inc. (the "NYSE"), and the Units have been
approved for listing on the NYSE, subject only to official notice of
issuance.
(xxvi) Net Worth of General Partner. At each Representation
Date, the General Partner will have (excluding its interests in the
Partnership, Manufacturing and Marketing and any notes or receivables
from or payable to any of them) a net worth of at least $5,000,000. For
purposes of this representation, assets will be valued at fair market
value, and the General Partner's interest in the Partnership,
Manufacturing and Marketing (as general partner, limited partner,
stockholder and creditor, as applicable) shall not be taken into
account except as an offset to the Partnership's, Manufacturing's or
Marketing's liabilities that are taken into account in computing such
net worth.
(b) Any certificate signed by any officer of the Companies and
delivered to the Representatives or to counsel for the Underwriters on or after
the date hereof in connection with this Agreement shall be deemed a
representation and warranty by the Companies to each Underwriter as to the
matters covered thereby.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) On the basis of the representations and warranties herein contained
and subject to the terms and conditions herein set forth, the Partnership agrees
to sell to each Underwriter, severally and not jointly, and each Underwriter,
severally and not jointly, agrees to purchase from the Partnership, at the price
per Unit set forth in the Pricing Agreement, the number of Firm Units set forth
in Exhibit A opposite the name of such Underwriter (except as otherwise provided
in the Pricing Agreement), plus any additional number of Firm Units which such
Underwriter may become obligated to purchase pursuant to the provisions of
Section 10 hereof.
(b) In addition, on the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, the
Partnership hereby grants an option to the Underwriters, severally and not
jointly, to purchase up to all of the Additional Units at the price per Unit set
forth in the Pricing Agreement. The option hereby granted will expire 30 days
after the date hereof and may be exercised in whole or in part from time to time
only for
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the purpose of covering over-allotments which may be made in connection with the
offering and distribution of the Firm Units upon notice by the Representatives
to the Partnership setting forth the number of Additional Units as to which the
several Underwriters are then exercising the option and the time and date of
payment and delivery for such Additional Units. Any such time and date of
delivery (a "Date of Delivery") shall be determined by the Representatives, but
shall not be later than seven full business days after the exercise of said
option, nor in any event prior to the Closing Time, as hereinafter defined,
unless otherwise agreed by the Representatives and the Partnership. If the
option is exercised as to all or any portion of the Additional Units, each of
the Underwriters, acting severally and not jointly, will purchase that
proportion of the total number of Additional Units then being purchased which
the number of Firm Units set forth in Exhibit A opposite the name of such
Underwriter bears to the total number of Firm Units (except as otherwise
provided in the Pricing Agreement), subject in each case to such adjustments as
the Representatives in their discretion shall make to eliminate any sales or
purchases of fractional shares.
(c) Payment of the purchase price for, and delivery of certificates
for, the Firm Units shall be made at the office of Skadden, Arps, Slate, Meagher
& Flom, 300 South Grand Avenue, Los Angeles, California 90071, at 6:00 A.M. Los
Angeles time on the third (fourth, if the pricing occurs after 4:30 P.M. New
York time on any given day) business day after the date hereof, or at such other
place and time as shall be agreed upon by the Representatives and the
Partnership or unless postponed in accordance with the provisions of Section 10
(such time and date of payment and delivery being herein called "Closing Time").
In addition, in the event that any or all of the Additional Units are
purchased by the Underwriters, payment of the purchase price for, and delivery
of certificates for, such Additional Units shall be made at the above-mentioned
offices, or at such other place as shall be agreed upon by the Representatives
and the Partnership, on each Date of Delivery as specified in the notice from
the Representatives to the Partnership.
Payment shall be made to the Partnership by wire transfer payable in
same-day funds to the order of the Partnership against delivery to the
Representatives for the respective accounts of the Underwriters of certificates
for the Units to be purchased by them. Certificates for the Firm Units and the
Additional Units, if any, shall be in such denominations and registered in such
names as the Representatives may request in writing at least two full business
days before the Closing Time or the relevant Date of Delivery, as the case may
be. The certificates for the Firm Units and the Additional Units, if any, will
be made available for examination and packaging by the Representatives in The
City of New York not later than 2:00 P.M. New York time on the business day
prior to the Closing Time or the relevant Date of Delivery, as the case may be.
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It is understood that each Underwriter has authorized the
Representatives, for its account, to accept delivery of, receipt for, and make
payment of the purchase price for, the Firm Units and the Additional Units, if
any, which it has agreed to purchase. Merrill Lynch, individually and not as
representative of the Underwriters, may (but shall not be obligated to) make
payment of the purchase price for the Firm Units and the Additional Units, if
any, to be purchased by any Underwriter whose funds have not been received by
the Closing Time or the relevant Date of Delivery, as the case may be, but such
payment shall not relieve such Underwriter from its obligations hereunder.
SECTION 3. Covenants of the Partnership and the General Partner. Each
of the Partnership and the General Partner covenants with each Underwriter as
follows:
(a) To notify the Representatives promptly, and, if requested by the
Representatives, confirm the notice in writing, (i) of the effectiveness of the
Registration Statement and any amendment thereto (including any post-effective
amendment), (ii) of the receipt of any comments from the Commission, (iii) of
any request by the Commission for any amendment to the Registration Statement or
any amendment or supplement to the Prospectus or for additional information and
(iv) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing or
suspending the use of any preliminary prospectus, or of the suspension by any
state securities commission of the qualification of the Units for offering or
sale in any jurisdiction, or the initiation or threatening of any proceedings
for such purposes; to make every reasonable effort to prevent the issuance of
any such stop order or suspension and, if any such stop order or suspension is
issued, to obtain the lifting thereof at the earliest reasonably possible
moment; if necessary, to file (i) an amendment to the Registration Statement or
(ii) a post-effective amendment to the Registration Statement, if required,
pursuant to Rule 430A under the 1933 Act Regulations, as soon as practicable
after the execution and delivery of this Agreement and to use its reasonable
best efforts to cause the Registration Statement or such post-effective
amendment to become effective at the earliest possible time; to prepare and file
with the Commission, promptly upon the Representatives' reasonable request, any
amendment to the Registration Statement or amendments or supplements to the
Prospectus that may be necessary or advisable in connection with the
distribution of the Units by the several Underwriters and to use its reasonable
best efforts to cause the same to become effective as promptly as possible.
(b) To give the Representatives notice of the intention to file or
prepare any amendment to the Registration Statement (including any
post-effective amendment) or the Prospectus, whether pursuant to the 1933 Act or
otherwise (including any revised prospectus which the Partnership proposes for
use by the Underwriters in connection with the offering of the Units which
differs from the Prospectus on file at the Commission at the time the
Registra-
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tion Statement becomes effective or any Term Sheet, whether or not such revised
prospectus or such Term Sheet is required to be filed pursuant to Rule 424(b) or
Rule 434 of the 1933 Act Regulations), to furnish the Representatives with
copies of any such documents a reasonable amount of time prior to such proposed
filing or use, as the case may be, and not to file or use any such documents to
which the Representatives or counsel for the Underwriters shall reasonably
object within two business days after receiving a copy thereof.
(c) To deliver to each of the Representatives and counsel for the
Underwriters, without charge, one copy of the Registration Statement as
originally filed and of each amend- ment thereto (including exhibits filed
therewith or incorporated by reference therein and documents incorporated or
deemed to be incorporated by reference therein) and one signed copy of all
consents and certificates of experts, and to also deliver to the
Representatives, without charge, a conformed copy of the Registration Statement
as originally filed and of each amendment thereto (without exhibits) for each of
the Underwriters. If applicable, the copies of the Registration Statement and
each amendment thereto furnished to the Underwriters will be identical to the
electronically transmitted copies thereof filed with the Commission pursuant to
EDGAR, except to the extent permitted by Regulation S-T.
(d) To furnish to each Underwriter, without charge, from time to time
during the period when the Prospectus is required to be delivered (the "Delivery
Period") under the 1933 Act or the 1934 Act, such number of copies of the
Prospectus (as amended or supplemented) and the Term Sheet, if any, as such
Underwriter may reasonably request. If applicable, the Prospectus and any
amendments or supplements thereto furnished to the Underwriters will be
identical to the electronically transmitted copies thereof filed with the
Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
(e) To comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act
and the 1934 Act Regulations so as to permit the completion of the distribution
of the Units as contemplated by this Agreement and the Prospectus. If at any
time prior to the expiration of nine months after the time of issue of the
Prospectus in connection with the offering or sale of the Units any event shall
occur or condition shall exist as a result of which it is necessary, in the
opinion of counsel for the Partnership or for the Underwriters, to amend the
Registration Statement or amend or supplement the Prospectus in order that the
Prospectus will not include any untrue statements of a material fact or omit to
state a material fact necessary in order to make the statements therein not
misleading in light of the circumstances existing at the time it is delivered to
a purchaser, or if it shall be necessary, in the opinion of such counsel, at any
such time to amend the Registration Statement or amend or supplement the
Prospectus in order to comply with the requirements of the 1933 Act or the 1933
Act Regulations, to promptly prepare and file with the Commission, subject to
Section 3(b), such amendment or supplement
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<PAGE> 21
as may be necessary to correct such statement or omission or to make the
Registration Statement or the Prospectus comply with such requirements, and the
Partnership will furnish to the Underwriters such number of copies of such
amendment or supplement as the Representatives may reasonably request, and in
case any Underwriter is required to deliver a prospectus in connection with any
sales of the Units at any time nine months or more after the time of issue of
the Prospectus, upon the request of the Representatives, but at the expense of
such Underwriter, to prepare and deliver to such Underwriter as many copies of
such amended or supplemented Prospectus as the Representatives may request.
(f) If, at the time that the Registration Statement becomes effective,
any information shall have been omitted therefrom in reliance upon Rule 430A of
the 1933 Act Regulations, then following the execution of the Pricing Agreement,
to prepare and timely file or transmit for filing with the Commission in
accordance with Rule 430A and Rule 424(b) and Rule 434 of the 1933 Act
Regulations, copies of the amended Prospectus and Term Sheet, if any, or, if
required by such Rule 430A, a post-effective amendment to the Registration
Statement (including an amended Prospectus), containing all information so
omitted and to use its reasonable best efforts to cause such post-effective
amendment to be declared effective as promptly as practicable.
(g) To use its best efforts, in cooperation with the Underwriters, to
qualify the Units for offering and sale under the applicable securities laws of
such states and other jurisdictions of the United States as the Representatives
may designate, and to maintain such qualifications in effect for so long as may
be required for the distribution of the Units as contemplated by this Agreement
and the Prospectus, provided, however, that none of the Companies shall be
obligated to file any general consent to service of process, subject itself (or
its partners) to taxation in any such jurisdiction in which it (or its partners)
are not so subject, or qualify or register as a foreign corporation or limited
partnership, as the case may be, in any jurisdiction in which it is not so
qualified or registered; in each jurisdiction in which the Units have been so
qualified, to file such statements and reports as may be required by the laws of
such jurisdiction to continue such qualification in effect for so long as may be
required in connection with the distribution of the Units as contemplated by
this Agreement and the Prospectus; and to supply the Representatives with such
information regarding the Companies as may be necessary for the determination of
the legality of the Units for investment under the laws of any of such
jurisdictions as the Representatives may reasonably request.
(h) To timely file such reports pursuant to the 1934 Act as are
necessary in order to make generally available to the securityholders of the
Partnership as soon as practicable an earnings statement for the purposes of,
and to provide the benefits contemplated by, the last paragraph of Section 11(a)
of the 1933 Act.
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(i) To use the net proceeds from the Financings in the manner described
in the Prospectus under the caption "Use of Proceeds."
(j) During a period of 120 days from the date of the Prospectus, the
Partnership and the General Partner will not, without the prior written consent
of Merrill Lynch, (i) directly or indirectly, offer, pledge, sell, contract to
sell, sell any option or contract to purchase, purchase any option or contract
to sell, grant any option, right or warrant to purchase or otherwise transfer or
dispose of any Depositary Units or any securities convertible into or
exercisable or exchangeable for Depositary Units or file any registration
statement under the 1933 Act with respect to any of the foregoing or (ii) enter
into any swap or any other agreement or any transaction that transfers, in whole
or in part, directly or indirectly, the economic consequence of ownership of
Depositary Units, whether any such swap or transaction described in clause (i)
or (ii) above is to be settled by delivery of Depositary Units or such other
securities, in cash or otherwise. The foregoing sentence shall not apply to (a)
the Units to be sold hereunder or (b) any Depositary Units issued by the
Partnership pursuant to the Partnership's incentive plans existing on the date
hereof.
(k) In accordance with the Cuba Act and without limitation to the
provisions of Sections 6 and 7 hereof, to indemnify and hold harmless each
Underwriter from and against any and all losses, liabilities, claims, damages
and expenses whatsoever (including fees and disbursements of counsel), as
incurred, arising out of any violation by any of the Companies of the Cuba Act.
(l) During the Delivery Period, to file all documents required to be
filed with the Commission pursuant to the 1934 Act within the time periods
required by the 1934 Act and the 1934 Act Regulations.
(m) To comply with all the provisions of any undertakings contained in
the Registration Statement.
(n) To ensure that the issuance of the New Notes is exempt from the
registration requirements of the 1933 Act and the securities laws of any state
having jurisdiction with respect thereto, and that none of the Companies take
any action (including, without limitation, a general solicitation) that would
cause the loss of such exemption.
SECTION 4. Payment of Expenses. The Partnership will pay all expenses
incident to the performance of the Companies' obligations under this Agreement,
including (i) the preparation, printing and filing of the Registration Statement
(including financial statements
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<PAGE> 23
and exhibits) as originally filed and of each amendment thereto, (ii) the
preparation, printing and delivery to the Underwriters of this Agreement, any
Agreement among Underwriters, the Pricing Agreement and such other documents as
may be required in connection with the offering, purchase, sale and delivery of
the Units, (iii) the preparation, issuance and delivery of the certificates for
the Units to the Underwriters, including any transfer taxes, duties or similar
taxes payable upon the sale of the Units to the Underwriters, (iv) the fees and
disbursements of the Companies' counsel, accountants and other advisors, (v) the
qualification of the Units under securities laws in accordance with the
provisions of Section 3(g) hereof, including filing fees and the reasonable fees
and disbursements of counsel for the Underwriters in connection therewith and in
connection with the preparation of the Blue Sky memoranda and any supplement
thereto, (vi) the printing and delivery to the Underwriters of copies of each
preliminary prospectus, any Term Sheets and of the Prospectus and any amendments
or supplements thereto, (vii) the preparation, printing and delivery to the
Underwriters of copies of the Blue Sky memoranda and any supplement thereto,
(viii) the fees and expenses of any transfer agent, depositary agent or
registrar for the Units, (ix) the filing fees incident to, and the reasonable
fees and disbursements of counsel to the Underwriters in connection with, the
review by the National Association of Securities Dealers, Inc. (the "NASD") of
the terms of the sale of the Units, (x) the reasonable fees and expenses of any
Underwriter acting in the capacity of a "qualified independent underwriter" as
defined in Rule 2720(b)(15) of the NASD's Conduct Rules, (xi) the fees and
expenses incurred in connection with the listing of the Units on the NYSE and
(xii) the performance by the Companies of their other obligations under this
Agreement and the Pricing Agreement.
If this Agreement is terminated by the Representatives in accordance
with the provisions of Section 5(b) or Section 9(a)(i) hereof, the Partnership
shall reimburse the Underwriters for all of their out-of-pocket expenses,
including the reasonable fees and disbursements of counsel for the Underwriters.
Except as expressly provided in this Agreement, all other fees and expenses
incurred by or on behalf of the Underwriters shall be borne by the Underwriters.
SECTION 5. Conditions of Underwriters' Obligations.
(a) The obligations of the several Underwriters hereunder are subject
to the accuracy in all material respects of the representations and warranties
of each of the Companies herein contained or in certificates of any officer of
the Companies delivered pursuant to the provisions hereof, to the performance by
each of the Companies of its obligations hereunder, and to the following further
conditions:
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<PAGE> 24
(i) The Registration Statement, including any Rule 462(b)
Registration Statement, shall have become effective and at Closing Time
no stop order suspending the effectiveness of the Registration
Statement shall have been issued under the 1933 Act or proceedings
therefor initiated or threatened by the Commission, and any request on
the part of the Commission for additional information shall have been
complied with to the reasonable satisfaction of counsel for the
Underwriters. A prospectus containing the Rule 430A Information shall
have been filed with the Commission in accordance with Rule 424(b) (or
a post-effective amendment providing such information shall have been
filed and declared effective in accordance with the requirements of
Rule 430A) or, if the Partnership has elected to rely upon Rule 434, a
Term Sheet shall have been filed with the Commission in accordance with
Rule 424(b).
(ii) At Closing Time the Representatives shall have received
an opinion reasonably satisfactory to the Underwriters of Skadden,
Arps, Slate, Meagher & Flom, counsel to the Underwriters, covering such
matters as are customarily covered in such opinions.
(iii) At Closing Time the Representatives shall have received:
A. The favorable opinion, dated as of the Closing
Time, of Andrews & Kurth L.L.P., counsel for the Partnership,
in form and substance reasonably satisfactory to counsel for
the Underwriters, to the effect that:
1. The Registration Statement, the Rule 430A
Information and the Rule 434 Information, as applicable, the
Prospectus, excluding the documents incorporated by reference
therein, and each amendment or supplement to the Registration
Statement and Prospectus, excluding the documents incorporated
by reference therein, as of their respective effective dates
or issue dates (other than financial statements or other
financial or statistical data, as to which no opinion need be
rendered), complied as to form in all material respects with
the requirements of the 1933 Act and the 1933 Act Regulations.
2. The documents incorporated by reference in the
Prospectus (other than financial statements or other financial
or statistical data, as to which no opinion need be rendered),
when they were filed with the Commission, complied as to form
in all material respects with the requirements of the 1934 Act
and the 1934 Act Regulations.
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3. The form of certificate used to evidence the
Depositary Units complies in all material respects with all
applicable statutory requirements, with any applicable
requirements of the Partnership Agreement and the Depositary
Agreement and the requirements of the NYSE.
4. The Units to be purchased by the Underwriters from
the Partnership have been duly authorized for issuance and
sale to the Underwriters pursuant to this Agreement and, when
issued and delivered by the Partnership pursuant to this
Agreement against payment of the consideration set forth
herein, will be validly issued and fully paid and
nonassessable, except as such nonassessability may be affected
as described in the Prospectus. The Units conform as to legal
matters in all material respects to the description thereof
contained in the Prospectus. The issuance of the Units is not
subject to preemptive or, to the best of such counsel's
knowledge, other similar rights of any person or entity and to
such counsel's knowledge, except as described in the
Prospectus, the Partnership has not issued or created any
rights, warrants or options to acquire or instruments
convertible into or exchangeable for, and none of the
Companies is a party to any agreements or understandings with
respect to the sale or issuance of, any equity interest in the
Partnership.
5. This Agreement been duly authorized, executed and
delivered by each of the Partnership and the General Partner.
The Pricing Agreement has been duly authorized, executed and
delivered by the Partnership.
6. The Deposit Agreement is a valid and legally
binding agreement of the Partnership, enforceable against the
Partnership in accordance with its terms, except to the extent
that the enforceability thereof may be limited by (1)
bankruptcy, insolvency, reorganization, fraudulent transfer,
moratorium or other similar laws now or hereafter in effect
relating to or affecting creditors' rights generally, (2)
public policy, applicable law relating to fiduciary duties and
the judicial imposition of an implied covenant of good faith
and fair dealing and (3) general principles of equity
(regardless of whether such enforceability is considered in a
proceeding at law or in equity).
7. No filing with, notice to, or authorization,
approval, consent, license, order, registration, qualification
or decree of, any court, governmental authority or agency of
the State of Delaware or the United States having jurisdiction
over any of the Companies is necessary or required for the
performance of the Companies of their obligations hereunder,
in connection with the
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<PAGE> 26
offering, issuance or sale of the Units hereunder or the
consummation of the Transactions, except such as (1) have been
already made or obtained, (2) are specifically identified in
the Prospectus as not having been made or obtained, (3) relate
to easements, licenses, leases, franchises, permits or rights
of way matters, as to which such counsel need express no
opinion, (4) may be required under the 1933 Act, the 1933 Act
Regulations or state securities laws or (5) if not so made or
obtained would not, individually or in the aggregate, result
in a Material Adverse Effect.
8. To such counsel's knowledge, there are no
contracts or documents that are required to be described or
referred to in the Registration Statement or to be filed as
exhibits thereto other than those described or referred to
therein or filed as exhibits thereto and the descriptions
thereof or references thereto are accurate in all material
respects.
9. The information in the Prospectus under "Cash
Distribution Policy -- Quarterly Distributions of Available
Cash," "Cash Distribution Policy -Distributions of Cash Upon
Liquidation," "Conflicts of Interest -- Fiduciary Duties of
the General Partner; Indemnification," "Description of the
Units," "Summary Description of the Partnership Agreement" and
"Investment in the Partnership by Employee Benefit Plans," to
the extent that it constitutes matters of law, summaries of
legal matters, the Companies' respective organizational
documents or legal proceedings, or legal conclusions, has been
reviewed by such counsel and is accurate in all material
respects.
10. None of the Companies is, and upon the issuance
and sale of the Units as herein contemplated, the application
of the net proceeds therefrom as described in the Prospectus
and the consummation of the other Transactions, none of the
Companies will be, an "investment company" or an entity
"controlled" by an "investment company" within the meaning of
the Investment Company Act of 1940, as amended, and the rules
and regulations thereunder.
11. The opinion of Andrews & Kurth L.L.P. filed as
Exhibit 8.1 to the Registration Statement is confirmed, and
the Underwriters may rely upon such opinion as if it were
addressed to them.
In addition Andrews & Kurth L.L.P. shall state that the
Commission has advised such counsel that the Registration Statement was
declared effective under the 1933 Act on October __, 1996; the
Prospectus was filed with the Commission pursuant
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<PAGE> 27
to Rule 424(b) of the 1933 Act Regulations on October __, 1996; and to
such counsel's knowledge, no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceeding for that
purpose has been initiated or threatened by the Commission.
(B) The favorable opinion, dated as of the Closing
Time, of James Kraft, general counsel of the Partnership, in
form and substance reasonably satisfactory to counsel for the
Underwriters, to the effect that:
1. Each of the Partnership and Manufacturing has been
duly formed and is validly existing as a limited partnership
in good standing under the Delaware Act, with all partnership
power and authority to (x) own, lease and operate its
properties and conduct its business as described in the
Prospectus and (y) enter into and perform its obligations
under this Agreement. Each of the Partnership and
Manufacturing is duly qualified or registered as a foreign
limited partnership authorized to do business and is in good
standing under the laws of the states of Washington, Idaho,
Montana, Texas, Arkansas and Louisiana and, to the knowledge
of such counsel, there are no other jurisdictions in which the
failure to so qualify or register would have a Material
Adverse Effect or subject its partners to any material
liability or disability.
2. Marketing has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the state of Delaware, with all corporate power and
authority to (x) own, lease and operate its properties and
conduct its business as described in the Prospectus and (y)
enter into and perform its obligations under this Agreement.
Marketing is duly qualified as a foreign corporation
authorized to do business and is in good standing in all
jurisdictions in which the failure to so qualify or register
would have a Material Adverse Effect.
3. The General Partner is the sole general partner of
the Partnership, with a 2.0% general partner interest in the
Partnership pursuant to the Partnership Agreement. After
giving effect to the sale of the Firm Units contemplated by
this Agreement, the Partnership will have outstanding
45,608,300 Units. The general partner interest of the General
Partner in the Partnership has been duly authorized and
validly issued to the General Partner, is fully paid and owned
by the General Partner free and clear of any Encumbrance (A)
of record (x) created by or arising under the Delaware Act or
(y) in respect of which a financing statement under the
Uniform Commercial Code of the State of
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<PAGE> 28
Washington (the "Washington UCC") naming the General Partner
as debtor is on file in the office of the Secretary of State
of the State of Washington (the "Washington Secretary of
State") or (B) otherwise known, without investigation, to such
counsel. To such counsel's knowledge, except as described in
the Prospectus, the Partnership has not issued or created any
rights, warrants or options to acquire or instruments
convertible into or exchangeable for, and none of the
Companies is a party to any agreements or understandings with
respect to the sale and issuance of, any equity interest in
the Partnership.
4. The General Partner is the sole general partner
and the Partnership is the sole limited partner of
Manufacturing, with a 2.0% general partner interest and a
98.0% limited partner interest, respectively, in Manufacturing
pursuant to the Manufacturing Partnership Agreement. Such
general partner and limited partner interests have been duly
authorized and validly issued to the General Partner and the
Partnership, respectively, are fully paid and owned by the
General Partner and the Partnership, respectively, free and
clear of any Encumbrance (A) of record (x) created by or
arising under the Washington Act or (y) in respect of which a
financing statement under the Washington UCC naming the
General Partner or the Partnership as debtor is on file in the
office of the Washington Secretary of State or (B) otherwise
known, without investigation, to such counsel. To such
counsel's knowledge, Manufacturing has not issued or created
any rights, warrants or options to acquire or instruments
convertible into or exchangeable for, and none of the
Companies is a party to any agreements or understandings with
respect to the sale or issuance of, any equity interest in
Manufacturing.
5. The General Partner owns 4.0% and the Partnership
owns 96.0% of the issued and outstanding capital stock of
Marketing. Such capital stock has been duly authorized and
validly issued to the General Partner and the Partnership, is
fully paid and non-assessable and is owned by the General
Partner and the Partnership free and clear of Encumbrance (A)
of record (x) created by or arising under the Washington Act
or (y) in respect of which a financing statement under the
Washington UCC naming the General Partner or the Partnership
as debtor is on file in the office of the Washington Secretary
of State or (B) otherwise known, without investigation, to
such counsel. To the best of such counsel's knowledge,
Marketing has not issued or created any rights, warrants or
options to acquire or instruments convertible into or
exchangeable for, and none of the Companies is a party to any
agreements or understandings with respect to the sale or
issuance of, any equity interest in Marketing.
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6. The Partnership Agreement has been duly
authorized, executed and delivered by the General Partner and
is a valid and legally binding agreement of the General
Partner, enforceable against the General Partner in accordance
with its terms. The Agreement of Limited Partnership of PC
Advisory Partners I, L.P., a Delaware limited partnership
("Partners I"), dated November 16, 1992 (the "Partners I
Partnership Agreement"), between PC Advisory Corp. I, a
Delaware corporation ("Corp. I"), and the limited partners
named therein. The Partners I Partnership Agreement has been
duly authorized, executed and delivered by Corp. I and is a
valid and legally binding agreement of Corp. I, enforceable
against Corp. I in accordance with its terms. The General
Partner Partnership Agreement has been duly authorized,
executed and delivered by Partners I and is a valid and
legally binding agreement of Partners I, enforceable against
Partners I in accordance with its terms. The Manufacturing
Partnership Agreement has been duly authorized, executed and
delivered by the General Partner and the Partnership and is a
valid and legally binding agreement of the General Partner and
the Partnership, enforceable against each of them in
accordance with its terms; provided, however, that the
enforceability of each agreement referenced in this paragraph
may be limited by (a) bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium or other similar laws now or
hereafter in effect relating to or affecting creditors' rights
generally, (b) public policy, applicable law relating to
fiduciary duties and the judicial imposition of an implied
covenant of good faith and fair dealing and (c) general
principles of equity (regardless of whether such
enforceability is considered in a proceeding at law or in
equity).
7. To such counsel's knowledge, none of the Companies
is in violation of any of its organizational documents,
including (as applicable) its agreement of limited
partnership, charter or by-laws, or in default in the
performance or observance of any obligation, agreement,
covenant or condition contained in any of the Agreements and
Instruments which are exhibits to the Registration Statement
or any Incorporated Document, except for such defaults that
would not result in a Material Adverse Effect.
8. The execution, delivery and performance of this
Agreement and the consummation of the Transactions and
compliance by the Partnership and the General Partner with
their obligations hereunder have been duly authorized by all
necessary partnership and corporate action, as applicable, and
do not and will not, whether with or without the giving of
notice or passage of time or both, conflict with or constitute
a breach of, or default or Repayment Event
29
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under, or result in the creation or imposition of any
Encumbrance upon any property or assets of any of the
Companies pursuant to, the Agreements and Instruments which
are exhibits to the Registration Statement or any Incorporated
Document (except for such conflicts, breaches or defaults or
Encumbrances that would not result in a Material Adverse
Effect), nor will such action result in any violation of the
provisions of the organizational documents of any of the
Companies or any applicable law, statute, rule, regulation,
judgment, order, writ or decree known to such counsel of any
government, government instrumentality or court, domestic or
foreign, having jurisdiction over any of the Companies or any
of their assets, properties or operations.
9. To such counsel's knowledge, there is no action,
suit, proceeding, inquiry or investigation before or by any
court or governmental agency or body, domestic or foreign, now
pending or threatened against or affecting any of the
Companies, (a) which is required to be disclosed in the
Registration Statement (other than as disclosed therein), (b)
which would reasonably be expected to result in a Material
Adverse Effect, or (c) which might reasonably be expected to
materially and adversely affect the performance by the Partner
ship or the General Partner of their obligations hereunder or
the consummation of the Transactions.
(C) The favorable opinion, dated as of the Closing
Time, of Phil Gordon, general counsel of Corp. I, in form and
substance reasonably satisfactory to counsel for the
Underwriters, to the effect that:
1. Each of Partners I and the General Partner has
been duly formed and is validly existing as a limited
partnership in good standing under the Delaware Act, with all
partnership power and authority to (x) own, lease and operate
its properties and conduct its business as described in the
Prospectus, (y) with respect to Partners I, act as the general
partner of the General Partner, and with respect to the
General Partner, act as the general partner of the Partnership
and Manufacturing and as a stockholder of Marketing, and (z)
with respect to the General Partner, enter into and perform
its obligations under this Agreement. Each of Partners I and
the General Partner is duly qualified or registered as a
foreign limited partnership authorized to do business and is
in good standing in all jurisdictions in which the failure to
so qualify or register would have a Material Adverse Effect or
a material adverse effect on its condition (financial or
otherwise), earnings, business affairs or business prospects.
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2. Corp. I has been duly incorporated and is validly
existing as a corporation in good standing under the laws of
the state of Delaware, with all corporate power and authority
to (x) own, lease and operate its properties and conduct its
business as described in the Prospectus and (y) act as the
general partner of Partners I. Corp. I is duly qualified as a
foreign corporation authorized to do business and is in good
standing in all jurisdictions in which the failure to so
qualify or register would have a Material Adverse Effect or a
material adverse effect on its condition (financial or
otherwise), earnings, business affairs or business prospects.
3. Corp. I is the sole general partner of Partners I,
with a [ ]% general partner interest in Partners I pursuant to
the Partners I Partnership Agreement, between Corp. I and the
limited partners named therein. Such general partner interest
has been duly authorized and validly issued to Corp. I, and is
fully paid and owned by Corp. I.
4. Partners I is the sole general partner of the
General Partner, with a [ ]% general partner interest in the
General Partner pursuant to the Agreement of Limited
Partnership of the General Partner, dated December 29, 1992,
between Partners I and PCMC Intermediate Holdings, L.P. Such
general partner interest has been duly authorized and validly
issued to Partners I, and is fully paid and owned by Partners
I.
5. The Partners I Partnership Agreement has been duly
authorized, executed and delivered by Corp. I and is a valid
and legally binding agreement of Corp. I, enforceable against
Corp. I in accordance with its terms; provided, however, that
the enforceability of each agreement referenced in this
paragraph may be limited by (1) bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or other
similar laws now or hereafter in effect relating to or
affecting creditors' rights generally, (2) public policy,
applicable law relating to fiduciary duties and the judicial
imposition of an implied covenant of good faith and fair
dealing and (3) general principles of equity (regardless of
whether such enforceability is considered in a proceeding at
law or in equity).
In rendering such opinions, counsel may rely as to factual matters upon
certificates or written statements from officers or other appropriate
representatives of the Companies or upon certificates of public officials and
need not express any opinion with regard to the laws of any
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jurisdiction other than the federal law of the United States, the Delaware Act
and the Delaware General Corporation Law.
In giving the opinions required by subsection (iii)(A) of this Section
5(a), Andrews & Kurth L.L.P. shall additionally state that such counsel
participated in meetings with representatives of the Companies, the
Representatives, representatives of the Underwriters and representatives of
Coopers & Lybrand LLP at which the contents of the Registration Statement, the
Prospectus and related matters were discussed and, although such counsel is not
passing upon, and does not assume responsibility for the accuracy, completeness
or fairness of, any portion of the Registration Statement or the Prospectus, as
amended or supplemented (except to the extent specified in such counsel's
opinion), no facts have come to such counsel's attention that would lead them to
believe that the Registration Statement or any amendment thereto, at the time
such Registration Statement or any such amendment became effective, contained an
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not misleading,
or that the Prospectus or any amendment or supplement thereto, at the time the
Prospectus was issued, at the time any such amended or supplemented prospectus
was issued or at the Closing Time, 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, except that such counsel need express no opinion or belief with
respect to the historical and pro forma financial statements, financial
information or other financial or statistical data contained in the Registration
Statement or the Prospectus, as so amended or supplemented.
(iv) At Closing Time there shall not have been, since the date
hereof or since the respective dates as of which information is given
in the Prospectus, any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or
business prospects of the Partnership and its subsidiaries considered
as one enterprise, whether or not arising in the ordinary course of
business, and the Representatives shall have received a certificate of
the President or a Vice President of the General Partner and of the
chief financial or chief accounting officer of the General Partner,
dated as of Closing Time, to the effect that (i) there has been no such
material adverse change, (ii) the representations and warranties in
Section 1(a) hereof are true and correct in all material respects with
the same force and effect as though expressly made at and as of Closing
Time, (iii) the Companies have complied with all agreements and
satisfied all conditions on their part to be performed or satisfied at
or prior to Closing Time, and (iv) no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or are pending or
contemplated by the Commission.
32
<PAGE> 33
(v) At the time of the execution of this Agreement, the
Representatives shall have received from Coopers & Lybrand LLP a letter
dated such date, in form and substance satisfactory to the
Representatives, containing statements and information of the type
ordinarily included in accountants' "comfort letters" to underwriters
with respect to the financial statements and certain financial
information contained in the Registration Statement and the Prospectus.
(vi) At Closing Time the Representatives shall have received
from Coopers & Lybrand LLP a bring-down letter, dated as of Closing
Time, to the effect that Coopers & Lybrand LLP reaffirms the statements
made in the letter furnished pursuant to subsection (v) of this Section
5(a), except that the specified date referred to shall be a date not
more than two business days prior to Closing Time.
(vii) At Closing Time the Units shall have been approved for
listing on the NYSE, subject only to official notice of issuance.
(viii) The NASD shall not have raised any objection with
respect to the fairness and reasonableness of the underwriting terms
and arrangements.
(ix) At the date of this Agreement, the Representatives shall
have received an agreement substantially in the form of Exhibit C
hereto signed by the persons and entities listed on Schedule 5(a)(ix)
hereto.
(x) Simultaneously with or prior to the sale of the Firm Units
at Closing Time, each of the other Transactions shall have been
consummated and shall conform in all material respects to the
description thereof in the Registration Statement and the Prospectus.
(xi) At the time of the execution of this Agreement, the
Representatives shall have received a certificate of the Secretary or
an Assistant Secretary of Corp. I, dated as of the date hereof, to the
effect that:
A. Corp. I has been duly incorporated and is validly
existing as a corporation in good standing under the laws of
the state of Delaware, with all corporate power and authority
to (x) own, lease and operate its properties and conduct its
business as described in the Prospectus and (y) act as the
general partner of Partners I. Corp. I is duly qualified as a
foreign corporation authorized to do business and is in good
standing under the laws of each jurisdiction
33
<PAGE> 34
in which such qualification is required, whether by reason of
the ownership or leasing of property or the conduct of
business, except where the failure to so qualify would not
have a Material Adverse Effect or a material adverse effect on
its condition (financial or otherwise), earnings, business
affairs or business prospects.
B. Corp. I is the sole general partner of Partners I,
with a [ ]% general partner interest in Partners I pursuant to
the Partners I Partnership Agreement. Such general partner
interest has been duly authorized and validly issued to Corp.
I, and is fully paid and owned by Corp. I. The Partners I
Partnership Agreement has been duly authorized, executed and
delivered by Corp. I and is a valid and legally binding
agreement of Corp. I, enforceable against Corp. I in
accordance with its terms.
(xii) At the time of the execution of this Agreement, the
Representatives shall have received a certificate of the Secretary or
an Assistant Secretary of Partners I, dated as of the date hereof, to
the effect that:
A. Partners I has been duly formed and is validly
existing as a limited partnership in good standing under the
Delaware Act, with all partner- ship power and authority to
(x) own, lease and operate its properties and conduct its
business as described in the Prospectus and (y) act as the
general partner of the General Partner. Partners I is duly
qualified or registered as a foreign limited partnership
authorized to do business and is in good standing under the
laws of each jurisdiction in which qualification or
registration is required, whether by reason of the ownership
or leasing of property or the conduct of business, except
where the failure to so qualify or register or be in good
standing would not have a Material Adverse Effect or a
material adverse effect on Partners I's condition (financial
or otherwise), earnings, business affairs or business
prospects.
B. Partners I is the sole general partner of the
General Partner, with a [ ]% general partner interest in the
General Partner pursuant to the General Partner Partnership
Agreement. Such general partner interest has been duly
authorized and validly issued to Partners I, is fully paid and
is owned by Partners I. The General Partner Partnership
Agreement has been duly authorized, executed and delivered by
Partners I and is a valid and legally binding agreement of
Partners I, enforceable against Partners I in accordance with
its terms.
34
<PAGE> 35
(xiii) At Closing Time the Representatives shall have received
a certificate of the officers of Corp. I specified in Section 5(a)(xi)
above, confirming that the certificate delivered at the time of the
execution of this Agreement pursuant to Section 5(a)(xi) hereof remains
true and correct as of Closing Time.
(xiv) At Closing Time the Representatives shall have received
a certificate of the officers of Partners I specified in Section
5(a)(xii) above, confirming that the certificate delivered at the time
of the execution of this Agreement pursuant to Section 5(a)(xii) hereof
remains true and correct as of Closing Time.
(xv) In the event that the Representatives exercise their
option provided in Section 2(b) hereof to purchase all or any portion
of the Additional Units, the representations and warranties of each of
the Companies contained herein and the statements in any certificates
furnished by the Companies hereunder shall be true and correct as of
each Date of Delivery (except to the extent any relate to a specific
date) and, at the relevant Date of Delivery, the Representatives shall
have received:
(1) Certificates, dated such Date of Delivery, of the officers
of the General Partner specified in Section 5(a)(v) above, confirming
that the certificate delivered at the Closing Time pursuant to Section
5(a)(v) hereof remains true and correct as of such Date of Delivery.
(2) Certificates, dated such Date of Delivery, of the officers
of Corp. I specified in Section 5(a)(xi) above, confirming that the
certificate delivered at the time of the execution of this Agreement
pursuant to Section 5(a)(xi) hereof remains true and correct as of such
Date of Delivery.
(3) Certificates, dated such Date of Delivery, of the officers
of Partners I specified in Section 5(a)(xii) above, confirming that the
certificate delivered at the time of the execution of this Agreement
pursuant to Section 5(a)(xii) hereof remains true and correct as of
such Date of Delivery.
(4) The favorable opinion of the several counsel specified in
Section 5(a)(iii) hereof, in form and substance satisfactory to counsel
for the Underwriters, dated such Date of Delivery, relating to the
Additional Units to be purchased on such Date of Delivery and otherwise
to the same effect as the respective opinions required by Section
5(a)(iii) hereof.
35
<PAGE> 36
(5) The favorable opinion of Skadden, Arps, Slate, Meagher &
Flom, counsel for the Underwriters, dated such Date of Delivery,
relating to the Additional Units to be purchased on such Date of
Delivery.
(6) A letter from Coopers & Lybrand LLP, in form and substance
satisfactory to the Representatives and dated such Date of Delivery,
substantially the same in form and substance as the letter furnished to
the Representatives pursuant to Section 5(a)(vii) hereof, except that
the "specified date" in the letter furnished pursuant to this paragraph
shall be a date not more than two business days prior to such Date of
Delivery.
(xvi) At Closing Time and at each Date of Delivery, if any,
counsel for the Underwriters shall have been furnished with such
documents and opinions as they may reasonably require for the purpose
of enabling them to pass upon the issuance and sale of the Units as
herein contemplated and related proceedings, or in order to evidence
the accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained; and all
proceedings taken by the Companies in connection with the issuance and
sale of the Units as herein contemplated shall be reasonably
satisfactory in form and substance to the Representatives and counsel
for the Underwriters.
(b) If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement, or, in the case
of any condition to the purchase of Additional Units on a Date of Delivery which
is after the Closing Time, the obligations of the several Underwriters to
purchase the relevant Additional Units, may be terminated by the Representatives
by notice to the Partnership at any time at or prior to Closing Time or such
Date of Delivery, as the case may be, and such termination shall be without
liability of any party to any other party except as provided in Section 4 and
except that Sections 1, 3(k), 6 and 7 shall survive any such termination and
remain in full force and effect.
SECTION 6. Indemnification.
(a) The Partnership and the General Partner jointly and severally agree
to indemnify and hold harmless each Underwriter, each person, if any, who
controls any Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act and each officer, director and employee of each
Underwriter and of any such controlling person as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material
36
<PAGE> 37
fact contained in the Registration Statement (or any amendment
thereto), including the Rule 430A Information or the Rule 434
Information, if applicable, or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary
to make the statements therein not misleading or arising out of any
untrue statement or alleged untrue statement of a material fact
contained in any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto), or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, provided
that (subject to Section 6(d) hereof) any such settlement is effected
with the written consent of the Partnership; and
(iii) against any and all expense whatsoever, as incurred
(including, subject to Section 6(c) hereof, the reasonable fees and
disbursements of counsel chosen by Merrill Lynch), reasonably incurred
in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under (i) or
(ii) above;
provided, however, that this indemnity agreement (A) shall not apply to
any loss, liability, claim, damage or expense to the extent arising out
of any untrue statement or omission or alleged untrue statement or
alleged omission made in reliance upon and in conformity with any
Underwriting Information and (B) with respect to any preliminary
prospectus shall not inure to the benefit of any Underwriter (or to the
benefit of any person controlling such Underwriter or any officer or
director of such Underwriter or of any such controlling person) on
account of any such loss, claim, damage, liability or expense arising
from the sale of the Units by such Underwriter to any person if the
Partnership shall sustain the burden of proving that the Prospectus or
any subsequent amendment or supplement to such Prospectus (whether or
not filed with the Commission pursuant to Rule 424(b) of the 1933 Act
Regulations) shall not have been delivered or sent to such person
within the time required by the 1933 Act or the 1933 Act Regulations
and the untrue statement contained in or omission from such preliminary
prospectus was corrected in the Prospectus, provided that the
Partnership
37
<PAGE> 38
has delivered the Prospectus to the several Underwriters in compliance
with Section 3(d) hereon in reasonably requested quantities and on a
timely basis to permit such delivery or sending.
(b) Each Underwriter severally, but not jointly, agrees to indemnify
and hold harmless the Partnership, the General Partner, each officer of the
General Partner who signed the Registration Statement, and each person, if any,
who controls any of the Companies within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act against any and all loss, liability, claim,
damage and expense described in the indemnity contained in subsection (a) of
this Section, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto) or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with any Underwriting Information.
(c) Each indemnified party shall give written notice as promptly as
reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, but failure to
so notify an indemnifying party shall not relieve such indemnifying party from
any liability hereunder to the extent it is not materially prejudiced as a
result thereof and in any event shall not relieve it from any liability which it
may have otherwise than on account of this indemnity agreement. In the case of
parties indemnified pursuant to Section 6(a) above, counsel to the indemnified
parties shall be selected by Merrill Lynch, and, in the case of parties
indemnified pursuant to Section 6(b) above, counsel to the indemnified parties
shall be selected by the Partnership. An indemnifying party may participate at
its own expense in the defense of any such action; provided, however, that
counsel to the indemnifying party shall not (except with the consent of the
indemnified party) also be counsel to the indemnified party. In no event shall
the indemnifying parties be liable for fees and expenses of more than one
counsel (in addition to any local counsel) separate from their own counsel for
all indemnified parties in connection with any one action or separate but
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances. No indemnifying party shall, without the
prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever in respect of which indemnification or
contribution could be sought under this Section 6 or Section 7 hereof (whether
or not the indemnified parties are actual or potential parties thereto), unless
such settlement, compromise or consent (i) includes an unconditional release of
each indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
38
<PAGE> 39
(d) If any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 6(c) hereof effected without
its written consent if (i) such settlement is entered into more than 45 days
after receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such settlement at
least 30 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement.
SECTION 7. Contribution. If the indemnification provided for in Section
6 hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Partnership, on the
one hand, and the Underwriters, on the other hand, from the offering of the
Units pursuant to this Agreement or (ii) if the allocation provided by clause
(i) is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but also
the relative fault of the Partnership, on the one hand, and of the Underwriters,
on the other hand, in connection with the statements or omissions which resulted
in such losses, liabilities, claims, damages or expenses, as well as any other
relevant equitable considerations.
The relative benefits received by the Partnership, on the one
hand, and the Underwriters, on the other hand, in connection with the offering
of the Units pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the Units
pursuant to this Agreement (before deducting expenses) received by the
Partnership and the total underwriting discount received by the Underwriters, in
each case as set forth on the cover of the Prospectus, or, if Rule 434 is used,
the corresponding location on the Term Sheet, bear to the aggregate initial
public offering price of the Units as set forth on such cover or Term Sheet, as
the case may be.
The relative fault of the Partnership, on the one hand, and
the Underwriters, on the other hand, shall be determined by reference to, among
other things, whether any such untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact relates to
information supplied by the Partnership or the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
39
<PAGE> 40
Each of the Partnership and the Underwriters agrees that it
would not be just and equitable if contribution pursuant to this Section 7 were
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this Section
7. The aggregate amount of losses, liabilities, claims, damages and expenses
incurred by an indemnified party and referred to above in this Section 7 shall
be deemed to include any legal or other expenses reasonably incurred by such
indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Units underwritten by it and distributed
to the public were offered to the public exceeds the amount of any damages which
such Underwriter has otherwise been required to pay by reason of any such untrue
or alleged untrue statement or omission.
No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who
controls an Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as such
Underwriter, and each officer of the General Partner who signed the Registration
Statement, and each person, if any, who controls any of the Partnership or the
General Partner within the meaning of Section 15 of the 1933 Act or Section 20
of the 1934 Act shall have the same rights to contribution as the Partnership.
The Underwriters' respective obligations to contribute pursuant to this Section
7 are several in proportion to the number of Units set forth opposite their
respective names in Exhibit A hereto and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties, indemnities and agreements contained
in this Agreement and the Pricing Agreement, or contained in certificates of
officers of the Companies submitted pursuant hereto, shall remain operative and
in full force and effect, regardless of any investigation made by or on behalf
of any Underwriter or controlling person, or by or on behalf of the Partnership,
and shall survive delivery of and payment for the Units.
40
<PAGE> 41
SECTION 9. Termination of Agreement.
(a) The Representatives may terminate this Agreement, by notice to the
Partnership, at any time at or prior to Closing Time (i) if there has been,
since the time of execution of this Agreement or since the respective dates as
of which information is given in the Prospectus, any material adverse change in
the condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Partnership and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, or (ii)
if there has occurred any material adverse change in the financial markets in
the United States or the international financial markets, any outbreak of
hostilities or escalation thereof or other calamity or crisis or any change or
development involving a prospective change in national or international
political, financial or economic conditions, in each case the effect of which is
such as to make it, in the judgment of the Representatives, impracticable to
market the Units or to enforce contracts for the sale of the Units, or (iii) if
trading in any securities of the Partnership has been suspended or limited by
the Commission or NYSE, or if trading generally on the American Stock Exchange
or the NYSE or in the Nasdaq National Market has been suspended or limited, or
minimum or maximum prices for trading have been fixed, or maximum ranges for
prices have been required, by any of said exchanges or by such system or by
order of the Commission, the NASD or any other governmental authority, or (iv)
if a banking moratorium has been declared by any Federal, Washington or New York
authority.
(b) If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party except as
provided in Section 4 hereof, and provided further that Sections 1, 3(k), 6 and
7 shall survive such termination and remain in full force and effect.
SECTION 10. Default by One or More of the Underwriters. If one or more
of the Underwriters shall fail at Closing Time or a Date of Delivery to purchase
the Units which it or they are obligated to purchase under this Agreement and
the Pricing Agreement (the "Defaulted Units"), the Representatives shall have
the right, within 24 hours thereafter, to make arrangements for one or more of
the non-defaulting Underwriters, or any other underwriters, to purchase all, but
not less than all, of the Defaulted Units in such amounts as may be agreed upon
and upon the terms herein set forth; if, however, the Representatives shall not
have completed such arrangements within such 24-hour period, then:
(a) if the number of Defaulted Units does not exceed 10% of
the number of Units to be purchased on such date, each of the
non-defaulting Underwriters shall be obligated, severally and not
jointly, to purchase the full amount thereof in the
41
<PAGE> 42
proportions that their respective underwriting obligations hereunder
bear to the underwriting obligations of all non-defaulting
Underwriters; or
(b) if the number of Defaulted Units exceeds 10% of the number
of Units to be purchased on such date, this Agreement shall terminate
without liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination
of this Agreement, either the Representatives or the Partnership shall have the
right to postpone Closing Time or a Date of Delivery for a period not exceeding
seven days in order to effect any required changes in the Registration Statement
or Prospectus or in any other documents or arrangements. As used herein, the
term "Underwriter" includes any person substituted for an Underwriter under this
Section 10.
SECTION 11. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Representatives at Merrill Lynch & Co.,
North Tower, World Financial Center, New York, New York 10281-1201, attention of
Edward Higgins, with a copy to Wood Steinberg, Senior Counsel, Investment
Banking Group, North Tower, World Financial Center, New York, New York
10281-1327, or to such other address designated in a notice so delivered; and
notices to the Partnership shall be directed to it at Plum Creek Timber Company,
L.P., 999 Third Avenue, Seattle, Washington 98014-4096, attention of Diane M.
Irvine, with a copy to James A. Kraft at Plum Creek Timber Company, L.P., 999
Third Avenue, Seattle, Washington 98014-4096, and to Andrews & Kurth L.L.P.,
4200 Texas Commerce Tower, Houston, Texas 77002, attention of David J. Graham,
or to such other address designated in a notice so delivered.
SECTION 12. Parties. This Agreement and the Pricing Agreement shall
each inure to the benefit of and be binding upon the Underwriters and the
Companies and their respective successors. Nothing expressed or mentioned in
this Agreement or the Pricing Agreement is intended or shall be construed to
give any person, firm or corporation, other than the Underwriters, the Companies
and their respective successors and the controlling persons and officers and
directors referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or the Pricing Agreement or any provision herein or
therein contained. This Agreement and the Pricing Agreement and all conditions
and provisions hereof and thereof are intended to be for
42
<PAGE> 43
the sole and exclusive benefit of the Underwriters, the Companies and their
respective successors, and said controlling persons and officers and directors
and their heirs and legal representatives, and for the benefit of no other
person, firm or corporation. No purchaser of Units from an Underwriter shall be
deemed to be a successor by reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS AGREEMENT AND THE PRICING
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN SAID
STATE. EXCEPT AS OTHERWISE SET FORTH HEREIN SPECIFIED TIMES OF DAY REFER TO NEW
YORK CITY TIME.
43
<PAGE> 44
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us a counterpart hereof, whereupon this
instrument, along with all counterparts, will become a binding agreement between
the Underwriters and the Companies in accordance with its terms.
Very truly yours,
PLUM CREEK TIMBER COMPANY, L.P.
By: Plum Creek Management Company,
L.P., its general partner
By: ________________________
Name:
Title:
PLUM CREEK MANAGEMENT COMPANY, L.P.
By: ______________________________
Name:
Title:
<PAGE> 45
CONFIRMED AND ACCEPTED,
as of the date first above written:
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
DEAN WITTER REYNOLDS INC.
PAINEWEBBER INCORPORATED
SMITH BARNEY INC.
D.A. DAVIDSON & CO.
By: MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
By: ___________________________________
Name:
Title:
For themselves and as Representatives of the other
Underwriters named in Exhibit A hereto.
<PAGE> 46
<TABLE>
<CAPTION>
EXHIBIT A TO PURCHASE AGREEMENT
Name of Underwriter Number of Firm Units
- ------------------- --------------------
<S> <C>
Merrill Lynch, Pierce, Fenner & Smith Incorporated...........................................
Dean Witter Reynolds Inc.....................................................................
PaineWebber Incorporated.....................................................................
Smith Barney Inc.............................................................................
D.A. Davidson & Co...........................................................................
Total........................................................................................ 5,000,000
=========
</TABLE>
A-1
<PAGE> 47
EXHIBIT B TO PURCHASE AGREEMENT
5,000,000 Firm Units
PLUM CREEK TIMBER COMPANY, L.P.
(a Delaware limited partnership)
Depositary Units
(representing Limited Partner Interests)
Pricing Agreement
October __, 1996
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
DEAN WITTER REYNOLDS INC.
PAINEWEBBER INCORPORATED
SMITH BARNEY INC.
D.A. DAVIDSON & CO.
as Representatives of the several Underwriters
named in the within-mentioned Purchase Agreement
c/o Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
North Tower
World Financial Center
New York, New York 10281-1209
Dear Ladies and Gentlemen:
Reference is made to the Purchase Agreement dated October __,
1996 (the "Purchase Agreement") relating to the purchase by the several
Underwriters named in Exhibit A thereto, for whom Merrill Lynch & Co., Merrill
Lynch, Pierce, Fenner & Smith Incorporated, Dean Witter Reynolds Inc.,
PaineWebber Incorporated, Smith Barney Inc. and
B-1
<PAGE> 48
D.A. Davidson & Co. are acting as representatives (the "Representatives"), of
the above Units (the "Firm Units"), of Plum Creek Timber Company, L.P., a
Delaware limited partnership (the "Partnership").
Pursuant to Section 2 of the Purchase Agreement, the
Partnership agrees with each Underwriter as follows:
1. The initial public offering price per Firm Unit, determined
as provided in said Section 2, shall be $[ ].
2. The purchase price per Firm Unit to be paid by the several
Underwriters shall be $[ ], being an amount equal to the initial public
offering price set forth above less $[ ] per Firm Unit.
B-2
<PAGE> 49
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE
AND TO BE PERFORMED IN SAID STATE.
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to the Partnership a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement between the Underwriters and the Partnership in accordance with its
terms.
Very truly yours,
PLUM CREEK TIMBER COMPANY, L.P.
By: Plum Creek Management Company, L.P.,
its general partner
By: _______________________
Name:
Title:
B-3
<PAGE> 50
CONFIRMED AND ACCEPTED,
as of the date first above written:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
DEAN WITTER REYNOLDS INC.
PAINEWEBBER INCORPORATED
SMITH BARNEY INC.
D.A. DAVIDSON & CO.
By: MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By:____________________________
Name:
Title:
For themselves and as Representatives of the other
Underwriters named in Exhibit A to the Purchase Agreement.
B-4
<PAGE> 51
EXHIBIT C TO PURCHASE AGREEMENT
October __, 1996
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
DEAN WITTER REYNOLDS INC.
PAINEWEBBER INCORPORATED
SMITH BARNEY INC.
D.A. DAVIDSON & CO.
as Representatives of the several
Underwriters to be named in the
within-mentioned Purchase Agreement
c/o Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
North Tower
World Financial Center
New York, New York 10281-1209
Re: Proposed Public Offering by Plum Creek Timber Company, L.P.
Ladies and Gentlemen:
The undersigned, a beneficial owner of Depositary Units (as
defined below) of Plum Creek Timber Company, L.P., a Delaware limited
partnership (the "Partnership"), understands that Merrill Lynch & Co., Merrill
Lynch, Pierce, Fenner & Smith Incorporated (collectively, "Merrill Lynch"), Dean
Witter Reynolds Inc., PaineWebber Incorporated, Smith Barney Inc. and D.A.
Davidson & Co. propose to enter into a Purchase Agreement (the "Purchase
Agreement") with the Partnership providing for the public offering of depositary
units representing limited partner interests in the Partnership ("Depositary
Units"). In recognition of the benefit that such an offering will confer upon
the undersigned as a holder of Depositary Units and as an officer of the General
Partner and/or as a director of Corp. I, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
undersigned agrees with each underwriter to be named in the Purchase Agreement
that, during a period of 120 days from the date of the Purchase Agreement, the
undersigned will not, without the prior written consent of Merrill Lynch,
directly or indirectly, offer, pledge, sell, contract to sell, sell any option
or contract to purchase, purchase any option or
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contract to sell, grant any option, right or warrant for the sale of, or
otherwise dispose of or transfer any Depositary Units or any securities
convertible into or exchangeable or exercisable for Depositary Units, whether
now owned or hereafter acquired by the undersigned or with respect to which the
undersigned has or hereafter acquires the power of disposition, or file any
registration statement under the Securities Act of 1933, as amended, with
respect to any of the foregoing or enter into any swap or any other agreement or
any transaction that transfers, in whole or in part, directly or indirectly, the
economic consequence of ownership of Depositary Units, whether any such swap or
transaction described above is to be settled by delivery of Depositary Units or
other securities, in cash or otherwise.
Very truly yours,
Signature:_________________________
Print Name:________________________
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SCHEDULE 5(A)(IX) TO PURCHASE AGREEMENT
PC Advisory Corp. I
PC Advisory Partners I, L.P.
William R. Brown
Ian B. Davidson
George M. Dennison
Charles P. Grenier
Rick R. Holley
Diane M. Irvine
James A. Kraft
David D. Leland
William E. Oberndorf
William J. Patterson
John H. Scully
[OTHERS TO COME FROM A&K]
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<PAGE> 1
EXHIBIT 5.1
[ANDREWS & KURTH LETTERHEAD]
October 17, 1996
Plum Creek Timber Company, L.P.
999 Third Avenue, Suite 2300
Seattle, Washington 98104-4096
Ladies and Gentlemen:
We have acted as special counsel to Plum Creek Timber Company,
L.P. (the "Partnership") in connection with the Registration Statement on Form
S-3 (the "Registration Statement") relating to the registration under the
Securities Act of 1933, as amended (the "Securities Act"), of the offering and
sale of up to 5,750,000 units representing limited partner interests (the
"Units") of the Partnership. The Units include 750,000 Units which may be sold
pursuant to an over-allotment option granted to the underwriters (the
"Underwriters") named in the Registration Statement by the Partnership. This
opinion also relates to any registration statement (including any amendment
thereto) for the offering that is to be effective upon filing pursuant to Rule
462(b) under the Securities Act.
As the basis for the opinion hereinafter expressed, we have
examined such statutes, regulations, partnership records and documents,
certificates of the Partnership and of public officials and other instruments as
we have deemed necessary or advisable for the purposes of this opinion. In such
examination, we have assumed the authenticity of all documents submitted to us
as originals and the conformity with the original documents of all documents
submitted to us as copies.
Based on the foregoing and on such legal considerations as we
deem relevant, we are of the opinion that the Units to be issued by the
Partnership, when issued and sold by the Partnership as contemplated by the
Registration Statement and any registration statement relating to the offering
filed pursuant to Rule 462(b) of the Securities Act, will constitute legally
issued, fully paid and non-assessable Units of the Partnership, with no personal
liability attaching to the ownership thereof, except with respect to the matters
described under the caption "Summary Description of the Partnership Agreement --
Limited Liability" in the Registration Statement.
We hereby consent to the reference to our firm under the
heading "Legal Matters" in the Registration Statement and the filing of this
opinion as an exhibit to the Registration Statement.
Very truly yours,
ANDREWS & KURTH L.L.P.
<PAGE> 1
EXHIBIT 8.1
[ANDREWS & KURTH LETTERHEAD]
October 17, 1996
Plum Creek Timber Company, L.P.
999 Third Avenue, Suite 2300
Seattle, Washington 98104
Gentlemen:
We have acted as special counsel to Plum Creek Timber Company, L.P.
(the "Partnership") in connection with the Registration Statement on Form S-3
(the "Registration Statement") of the Partnership relating to registration under
the Securities Act of 1933, as amended (the "Securities Act"), of the offering
and sale of up to 5,750,000 units representing limited partner interests (the
"Units") of the Partnership. The Units include 750,000 Units which may be sold
pursuant to an over-allotment option granted to the underwriters named in the
Registration Statement by the Partnership. This opinion also relates to any
registration statement (including any amendment thereto) for the offering that
is to be effective upon filing pursuant to Rule 462(b) under the Securities Act.
All statements of legal conclusions contained in the discussion under
the caption "Tax Considerations" in the prospectus included in the Registration
Statement (the "Prospectus"), unless otherwise noted, reflect our opinion with
respect to the matters set forth therein.
In addition, we are of the opinion that the federal income tax
discussion in the Prospectus with respect to those matters as to which no legal
conclusions are provided is an accurate discussion of such federal income tax
matters (except for the representations and statements of fact of the
Partnership and its general partners included in such discussion, as to which we
express no opinion).
We hereby consent to the references to our firm and this opinion
contained in the Prospectus.
Very truly yours,
ANDREWS & KURTH L.L.P.
