$100,000,000
LA QUINTA INNS, INC.
___% Senior Notes due 2005
UNDERWRITING AGREEMENT
September __, 1995
Xxxxxx Xxxxxxx & Co.
Incorporated
Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation
NationsBanc Capital Markets, Inc.
c/x Xxxxxx Xxxxxxx & Co.
Incorporated
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs and Mesdames:
La Quinta Inns, Inc., a Texas corporation (the "Company"), proposes to
issue and sell to the several Underwriters named in Schedule I hereto (the
"Underwriters") $100,000,000 principal amount of its ____% Senior Notes due
2005 (the "Securities") to be issued pursuant to the provisions of an
Indenture dated as of September ___, 1995 (the "Indenture") between the
Company and U.S. Trust Company of Texas, N.A., as Trustee (the "Trustee").
The Company wishes to confirm as follows its respective agreements with
you and the other several Underwriters on whose behalf you are acting, in
connection with the several purchases of the Securities by the Underwriters.
1. REGISTRATION STATEMENT AND PROSPECTUS. The Company has prepared and
filed with the Securities and Exchange Commission (the "Commission") in
accordance with the provisions of the Securities Act of 1933, as amended, and
the rules and regulations of the Commission thereunder (collectively, the
"Act"), a registration statement on Form S-3 under the Act (the "registration
statement"), including a prospectus subject to completion relating to the
Securities. The term "Registration Statement" as used in this Agreement
means the registration
statement (including all financial schedules and exhibits), as amended at the
time it becomes effective or, if the registration statement became effective
prior to the execution of this Agreement, as supplemented or amended prior to
the execution of this Agreement. If it is contemplated, at the time this
Agreement is executed, that a post-effective amendment to the registration
statement will be filed and must be declared effective before the offering of
the Securities may commence, the term "Registration Statement", as used in
this Agreement, means the registration statement as amended by said
post-effective amendment. The term "Registration Statement" shall also
include any registration statement relating to the Securities that is filed
and declared effective pursuant to Rule 462(b) under the Act. The term
"Prospectus" as used in this Agreement means the prospectus in the form
included in the Registration Statement or, if the prospectus included in the
Registration Statement omits information in reliance on Rule 430A under the
Act and such information is included in a prospectus filed with the
Commission pursuant to Rule 424(b) under the Act, the term "Prospectus" as
used in this Agreement means the prospectus in the form included in the
Registration Statement as supplemented by the addition of the Rule 430A
information contained in the prospectus filed with the Commission pursuant to
Rule 424(b), PROVIDED that if a prospectus that meets the requirements of
Section 10(a) of the Act is delivered pursuant to Rule 434(c) under the Act,
then (i) the term "Prospectus" as used in this Agreement means the prospectus
subject to completion (as defined in Rule 434(g) under the Act) as
supplemented by (A) the addition of Rule 430A or other information contained
in the form of prospectus filed pursuant to Rule 434(c)(2) under the Act and
(B) the information contained in the abbreviated term sheet described in Rule
434(c)(3) under the Act, and (ii) the date of such Prospectus shall be deemed
to be the date of such abbreviated term sheet. The term "Prepricing
Prospectus" as used in this Agreement means the prospectus subject to
completion in the form included in the registration statement at the time of
the initial filing of the registration statement with the Commission, and as
such prospectus shall have been amended from time to time prior to the date
of the Prospectus. Any reference in this Agreement to the registration
statement, the Registration Statement, any Prepricing Prospectus or the
Prospectus shall be deemed to refer to and include the documents incorporated
by reference therein pursuant to Item 12 of Form S-3 under the Act as of the
date of the registration statement, the Registration Statement, such
Prepricing Prospectus or the Prospectus, as the case may be, and any
reference to any amendment or supplement to the registration statement, the
Registration Statement, any Prepricing Prospectus or the Prospectus shall be
deemed to refer to and include any documents filed after such date under the
Securities Exchange Act of 1934, as amended, and the rules and regulations of
the Commission thereunder (collectively, the "Exchange Act"), that, upon
filing, are incorporated by reference therein, as required by paragraph (b)
of Item 12 of Form S-3. As used herein, the
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term "Incorporated Documents" means, at any time, the documents that at such
time are incorporated by reference in the registration statement, the
Registration Statement, any Prepricing Prospectus, the Prospectus, or any
amendment or supplement thereto.
2. AGREEMENTS TO SELL AND PURCHASE. The Company hereby agrees, subject
to all the terms and conditions set forth herein, to sell to each Underwriter
and, upon the basis of the representations, warranties and agreements of the
Company herein contained and subject to all the terms and conditions set
forth herein, each Underwriter agrees, severally and not jointly, to purchase
from the Company the principal amount of Securities set forth opposite the
name of such Underwriter in Schedule I hereto (or such principal amount of
Securities increased as set forth in Section 10 hereof) at ___% of such
principal amount plus accrued interest, if any, from September ___, 1995, to
the date of payment and delivery.
3. TERMS OF PUBLIC OFFERING. The Company has been advised by you that
the Underwriters propose to make a public offering of their respective
portions of the Securities as soon after the Registration Statement and this
Agreement have both become effective as in your judgment is advisable and
initially to offer the Securities upon the terms set forth in the Prospectus.
The Company is further advised by you that the Securities are to be offered
to the public initially at ____% of their principal amount (the "Public
Offering Price") plus accrued interest, if any, from September ___, 1995 to
the date of payment and delivery and to certain dealers selected by you at a
price that represents a concession not in excess of ____% of their principal
amount under the Public Offering Price, and that any Underwriter may allow,
and such dealers may reallow, a concession, not in excess of ____% of their
principal amount, to any Underwriter or to certain other dealers.
4. DELIVERY OF THE SECURITIES AND PAYMENT THEREFOR. Payment for the
Securities shall be made by wire transfer to an account specified by the
Company in immediately available funds at 10:00 A.M., New York city time on
September ___, 1995, or at such other time on the same or such other date,
not later than September ___, 1995, as shall be designated in writing by you.
The time and date of such payment are hereinafter referred to as the
"Closing Date."
Payment for the Securities shall be made against delivery to you for the
respective accounts of the several Underwriters of the one or more global
certificates representing the Securities registered in the name of Cede & Co.
with any transfer taxes payable in connection with the transfer of the
Securities to the Underwriters duly paid.
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5. AGREEMENTS OF THE COMPANY. The Company agrees with the several
Underwriters as follows:
(a) The Company shall, if, at the time this Agreement is executed
and delivered, it is necessary for the Registration Statement or a post-
effective amendment thereto to be declared effective before the offering
of the Securities may commence, use its best efforts to cause the
Registration Statement or such post-effective amendment to become
effective at the earliest possible time. The Company shall comply fully
and in a timely manner with the applicable provisions of Rule 424,
Rule 430A and Rule 434 under the Act.
(b) The Company shall advise you promptly and, if requested by any
of you, confirm such advice in writing, (i) when the Registration
Statement has become effective, if and when the Prospectus or form of
prospectus is sent for filing pursuant to Rule 424 under the Act and when
any post-effective amendment to the Registration Statement becomes
effective, (ii) of the receipt of any comments from the Commission that
relate to the Registration Statement or any request by the Commission for
amendment of or a supplement to the Registration Statement, any Prepricing
Prospectus or the Prospectus or for additional information, (iii) of the
issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement, or of the suspension of qualification of
the Securities for offering or sale in any jurisdiction, or the initiation
of any proceeding for such purpose by the Commission or any state
securities commission or other regulatory authority, and (iv) during the
period referred to in subsection (f) below, (A) of any change in the
Company's condition (financial or other), business, prospects, properties,
net worth or results of operations, or of the happening of any event,
including the filing of any information, document or report pursuant to
the Exchange Act, that makes any statement of a material fact made in the
Registration Statement untrue or that requires the making of any additions
to or changes in the Registration Statement in order to state a material
fact required by the Act to be stated therein or to make the statements
therein not misleading or that makes any statement of a material fact made
in the Prospectus (as then amended or supplemented) untrue or that
requires the making of any additions to or changes in the Prospectus (as
then amended or supplemented) in order to state a material fact required
by the Act to be stated therein or in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, and (B) of the necessity to amend or supplement the Prospectus
(as then amended or supplemented) to comply with the Act or any other law.
If at any time the Commission shall issue any stop order suspending the
effectiveness of the Registration
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Statement, or any state securities commission or other regulatory
authority shall issue an order suspending the qualification or exemption
of the Securities under any state securities or Blue Sky laws, the
Company shall use every reasonable effort to obtain the withdrawal or
lifting of such order at the earliest possible time.
(c) The Company shall furnish to each of you without charge (i) two
(2) conformed copies (plus one (1) additional similarly conformed copy to
your legal counsel) of the Registration Statement as first filed with the
Commission and of each amendment to it, including all exhibits filed
therewith, (ii) such number of conformed copies of the Registration
Statement as so filed and of each amendment to it, without exhibits, as
you may reasonably request, (iii) such number of copies of the
Incorporated Documents, without exhibits, as you may request, and (iv)
two (2) copies of each of the exhibits to the Incorporated Documents.
(d) The Company shall not file any amendment or supplement to the
Registration Statement, whether before or after the time when it becomes
effective, or make any amendment or supplement to the Prospectus, or,
prior to the end of the period of time referred to in subsection (f)
below, file any document pursuant to the Exchange Act that will, upon
filing, become an Incorporated Document, of which you shall not previously
have been advised and provided a copy within two business days (or such
reasonable amount of time as is necessitated by the exigency of such
amendment, supplement or document) prior to the filing thereof and to
which you shall reasonably object in writing.
(e) Prior to the execution and delivery of this Agreement, the
Company has delivered to you, without charge, in such quantities as you
have requested, copies of each form of the Prepricing Prospectus. The
Company consents to the use, in accordance with the provisions of the Act
and with the state securities or Blue Sky laws of the jurisdictions in
which the Securities are offered by the several Underwriters and by
dealers, prior to the date of the Prospectus, of each Prepricing
Prospectus so furnished by the Company.
(f) Promptly after the Registration Statement becomes effective,
and from time to time thereafter for such period as in the reasonable
opinion of counsel for the Underwriters a prospectus is required by the
Act to be delivered in connection with sales by any Underwriter or dealer,
the Company shall expeditiously furnish to each Underwriter and each
dealer, without charge, as many copies of the Prospectus (and of any
amendment or supplement to the Prospectus) as you may reasonably request
for the purposes
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contemplated by the Act. The Company consents to the use of the
Prospectus and any amendment or supplement thereto by you or any
dealer in accordance with the provisions of the Act and with the state
securities or Blue Sky laws of the jurisdictions in which the Securities
are offered by the several Underwriters and by all dealers to whom
Securities may be sold, both in connection with the offering or sale of
the Securities and for such period of time thereafter as a prospectus is
required by the Act to be delivered in connection therewith.
(g) If during the period specified in subsection (f) above any event
shall occur as a result of which it becomes necessary, in the judgment of
the Company or in the reasonable opinion of counsel for the Underwriters,
to amend or supplement the Prospectus (as them amended or supplemented) in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading, or if it is necessary to amend
or supplement the Prospectus to comply with the Act or any other law, the
Company shall, as promptly as practicable, prepare and, subject to the
provisions of subsection (d) above, file with the Commission an
appropriate amendment or supplement to the Prospectus so that the
statements in the Prospectus, as so amended or supplemented, will not, in
the light of the circumstances under which they were made, be misleading,
and the Prospectus, as so amended or supplemented, will comply with the
Act or such other law, and shall expeditiously furnish to you without
charge such number of copies thereof as you may reasonably request.
(h) Prior to any public offering of the Securities, the Company
shall cooperate with you and with counsel for the Underwriters in
connection with the registration or qualification of the Securities for
offering and sale by the Underwriters and by dealers under the state
securities or Blue Sky laws of such jurisdictions as you may request
(provided, that the Company shall not be obligated to qualify as a
foreign corporation in any jurisdiction in which it is not so qualified
or to take any action that would subject it to consent to service of
process in suits, other than those arising out of the offering or sale of
the Securities, in any jurisdiction in which it is not now so subject).
The Company shall continue such qualification in effect so long as
required by law for distribution of the Securities and shall file such
consents to service of process or other documents as may be necessary or
appropriate in order to effect such registration or qualification
(provided, that the Company shall not be obligated to take any action
that would subject it to consent to service of process in suits, other
than those arising out of the offering or sale of the Securities, in
any jurisdiction in which it is not now so subject).
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(i) The Company shall make generally available to its security
holders as soon as reasonably practicable a consolidated earnings
statement covering a period of at least 12 months beginning after the
"effective date" (as defined in Rule 158 under the Act) of the
Registration Statement (but in no event later than 90 days after such
date) that shall satisfy the provisions of Section 11(a) of the Act.
(j) (i) For so long as any of the Securities are outstanding, the
Company shall mail to each of you without charge as soon as available, a
copy of each report of the Company mailed to stockholders or filed with
the Commission, and (ii) during the period specified in subsection (f)
above, from time to time such other information concerning the Company as
you may reasonably request.
(k) During the period beginning on the date hereof and continuing
to and including the Closing Date, the Company shall not offer, sell,
contract to sell or otherwise dispose of any debt securities of the
Company or warrants to purchase debt securities of the Company
substantially similar to the Securities (other than (i) the Securities and
(ii) commercial paper issued in the ordinary course of business), without
the prior written consent of Xxxxxx Xxxxxxx & Co. Incorporated, which
shall not be unreasonably withheld.
(l) The Company shall use the proceeds from the sale of the
Securities in the manner described in the Prospectus under the heading
"Use of Proceeds".
(m) The Company shall not voluntarily claim, and shall actively
resist any attempt to claim, the benefit of any usuary laws against the
holders of the Securities.
(n) If this Agreement shall terminate or shall be terminated after
execution pursuant to any provision hereof (otherwise than pursuant to the
second paragraph of Section 10 hereof or by notice given by you
terminating this Agreement pursuant to Section 10 or Section 11 hereof) or
if this Agreement shall be terminated by the Underwriters because of any
failure or refusal on the part of the Company to comply with the terms or
fulfill any of the conditions of this Agreement, the Company agrees to
reimburse you for all reasonable out-of-pocket expenses (including
reasonable fees and expenses of counsel for the Underwriters) incurred by
you in connection herewith.
6. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to each Underwriter that:
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(a) The Company and the transactions contemplated by this Agreement
meet the requirements for using Form S-3 under the Act. The registration
statement in the form in which it became or becomes effective and also in
such form as it may be when any post-effective amendment thereto shall
become effective and the Prospectus and any supplement or amendment
thereto when filed with the Commission under Rule 424(b) under the Act,
complied or will comply in all material respects with the provisions of
the Act; the Registration Statement does not and will not at any such
time contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; and the Prospectus and any supplement
or amendment thereto will not at any such time contain an untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
except that this representation and warranty does not apply (A) to
statements in or omissions from the registration statement or the
Prospectus made in reliance upon and in conformity with information
relating to any Underwriter furnished to the Company in writing by or on
behalf of any Underwriter through you expressly for use therein or (B) to
that part of the Registration Statement that constitutes the Statement of
Eligibility (Form T-1) under the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act"), of the Trustee (the "Form T-1").
(b) Each Prepricing Prospectus included as part of the registration
statement as originally filed or as part of any amendment or supplement
thereto, or filed pursuant to Rule 424 under the Act, complied when so
filed in all material respects with the provisions of the Act.
(c) The Incorporated Documents heretofore filed, when they were
filed (or, if any amendment with respect to any such document was filed,
when such amendment was filed), conformed in all material respects with
the requirements of the Exchange Act, and any further Incorporated
Documents so filed will, when they are filed, conform in all material
respects with the requirements of the Exchange Act; no such document
when it was filed (or, if an amendment with respect to any such document
was filed, when such amendment was filed), contained an untrue statement
of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading;
and no such further document, when it is filed, will contain an untrue
statement of a material fact or will omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading.
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(d) All of the Company's subsidiaries (collectively, the
"Subsidiaries") are listed in an exhibit to the Company's Annual Report on
Form 10-K for the year ended December 31, 1994, which is incorporated by
reference into the Registration Statement. The Company and each of the
Subsidiaries that is a "significant subsidiary" (as defined in Regulation
S-X under the Act) (collectively, the "Significant Subsidiaries") has been
duly organized, is validly existing (if applicable, as a corporation in
good standing) under the laws of its jurisdiction of organization and has
full corporate (or partnership) power and authority to carry on its
business as it is currently being conducted (and, in the case of the
Company, to execute, deliver and perform this Agreement) and to own,
lease and operate its properties, and each is duly qualified and is in
good standing as a foreign corporation authorized to do business in each
jurisdiction in which the nature of its business or its ownership or
leasing of property requires such qualification, except where the failure
to be so qualified could not reasonably be expected to have a material
adverse effect, singly or in the aggregate, on the condition (financial
or other), business, properties, net worth or results of operations of
the Company and the Subsidiaries, taken as a whole (a "Material Adverse
Effect").
(e) All of the issued and outstanding shares of capital stock of, or
other ownership interests in, each Significant Subsidiary have been duly
authorized and validly issued, and certain shares of capital stock of each
Significant Subsidiary are owned, directly or through Subsidiaries, by the
Company as set forth on Exhibit 21 to the Company's annual report on
Form 10-K for the fiscal year ended December 31, 1994. All such shares or
other ownership interests in each Significant Subsidiary are fully paid
and nonassessable, and are free and clear of any security interest,
mortgage, pledge, claim, lien or encumbrance (each, a "Lien"), except for
Liens that are in the aggregate immaterial to the business of the Company
and the Subsidiaries, taken as a whole. There are no outstanding
subscriptions, rights, warrants, options, calls, convertible securities,
commitments of sale, or Liens related to or entitling any person to
purchase or otherwise to acquire any shares of the capital stock of any
Significant Subsidiary.
(f) Neither the Company nor any of the Significant Subsidiaries is
in violation of or in default in the performance of any of their
respective charters or bylaws (or partnership agreements, as the case may
be) or any bond, debenture, note or any other evidence of indebtedness or
any indenture, mortgage, deed of trust or other contract, lease or other
instrument to which the Company or any of the Significant Subsidiaries is
a party or by which it or any of them is bound, or to which any of the
property or assets of
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the Company or any of the Significant Subsidiaries is subject, except as
could not, singly or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
(g) This Agreement has been duly and validly executed and delivered
by the Company, and constitutes a legal, valid and binding agreement of
the Company, enforceable against the Company in accordance with its terms
(assuming the due execution and delivery thereof by you), except as rights
to indemnity and contribution hereunder may be limited by Federal or state
securities laws, court decisions or public policy.
(h) The Indenture has been duly qualified under the Trust Indenture
Act and has been duly authorized by all necessary corporate action of the
Company, and when duly executed and delivered by the Company in accordance
with its terms (assuming the due execution and delivery thereof by the
Trustee), will be a legal, valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, except to
the extent that a waiver of rights under any usury laws may be
unenforceable and subject to applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and similar laws, now or hereafter
in effect, relating to or affecting creditors' rights and remedies
generally and to general principles of equity (regardless of whether
enforcement is sought at law or in equity).
(i) The Securities have been duly authorized by the Company and on
the Closing Date, the Indenture and the Securities will have been duly
executed by the Company and will conform in all material respects to the
descriptions thereof in the Prospectus. When the Securities are issued,
executed and authenticated in accordance with the Indenture and paid for
in accordance with the terms of this Agreement, the Securities will be
legal, valid and binding obligations of the Company enforceable against
the Company in accordance with their terms and entitled to the benefits
of the Indenture, except to the extent that a waiver of rights under any
usury laws may be unenforceable and subject to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium or similar
laws, now or hereafter in effect, relating to or affecting creditors'
rights and remedies generally and to general principles of equity
(regardless of whether enforcement is sought at law or in equity).
(j) The execution and delivery of this Agreement, the Indenture and
the Securities by the Company and the performance of this Agreement, the
Indenture and the Securities (i) does not require any consent, approval,
authorization or order of or registration or filing with any
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court, regulatory body, administrative agency or other
governmental body, agency or official (except such as may be
required for the registration of the Securities under the
Act and the Trust Indenture Act and compliance with the
state securities or Blue Sky laws of various jurisdictions,
all of which have been or will be effected in accordance
with this Agreement) and (ii) will not conflict with or
result in a breach of any of the terms or provisions of, or
constitute a default or cause an acceleration of any
obligation under, any of the respective charters or bylaws
(or partnership agreements, as the case may be) of the
Company or any of the Significant Subsidiaries or any
material bond, note, debenture or other evidence of
indebtedness or any material indenture, mortgage, deed of
trust or other material contract, lease or other instrument
to which the Company or any of the Significant Subsidiaries
is a party or by which any of them is bound, or to which any
of the property or assets of the Company or any of the
Significant Subsidiaries is subject, or any order of any
court or governmental agency or authority entered in any
proceeding to which the Company or any of the Significant
Subsidiaries was or is a party or by which any of them is
bound or (solely with respect to actions by the Company or
the Significant Subsidiaries) violate any applicable
Federal, state or local law, rule, administrative regulation
or ordinance or administrative or court decree, any of the
foregoing of which could, singly or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
(k) Except as disclosed in the Registration Statement
and the Prospectus, there is no action, suit or proceeding
before or by any court or governmental agency or body,
domestic or foreign, pending against the Company or any of
the Significant Subsidiaries that is required to be
disclosed in the Registration Statement or the Prospectus,
or that could, singly or in the aggregate, reasonably be
expected to have a Material Adverse Effect or materially and
adversely to affect the performance of the Company's
obligations pursuant to this Agreement, the Indenture or the
Securities and, to the best of the Company's knowledge, no
such proceedings are contemplated or threatened. No action
has been taken with respect to the Company or any of the
Significant Subsidiaries, and no statute, rule or regulation
or order has been enacted, adopted or issued by any
governmental agency that suspends the effectiveness of the
Registration Statement, prevents or suspends the use of any
Prepricing Prospectus or suspends the sale of the Securities
in any jurisdiction referred to in Section 5(h) hereof; no
injunction, restraining order or order of any nature by a
Federal or state court of competent jurisdiction has been
issued with respect to the Company or any of the Significant
Subsidiaries that suspends the effectiveness of the
Registration Statement, prevents or suspends the use of any
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Prepricing Prospectus or suspends the sale of the Securities
in any jurisdiction referred to in Section 5(h) hereof;
other than the litigation matters or proceedings described
in the Prospectus under the captions "Business -- Legal
Proceedings", no action, suit or proceeding before any court
or arbitrator or any governmental body, agency or official
(domestic or foreign), is pending against or, to the best of
the Company's knowledge, threatened against, the Company or
any of the Significant Subsidiaries that, if adversely
determined, could, singly or in the aggregate, reasonably be
expected in any manner to invalidate this Agreement, the
Indenture or the Securities; and every request of the
Commission, or any securities authority or agency of any
jurisdiction, for additional information (to be included in
the Registration Statement or the Prospectus or otherwise)
has been complied with in all material respects. No
contract or document of a character required to be described
in the Registration Statement or the Prospectus or to be
filed as an exhibit to or incorporated by reference in the
Registration Statement is not so described or filed or
incorporated by reference as required.
(l) The firm of accountants that has certified or
shall certify the applicable consolidated financial
statements and supporting schedules of the Company filed or
to be filed with the Commission as part of the Registration
Statement and the Prospectus are independent public
accountants with respect to the Company and the
Subsidiaries, as required by the Act and the Exchange Act.
The consolidated financial statements, together with related
notes, set forth in the Prospectus and the Registration
Statement comply as to form in all material respects with
the requirements of the Act and the Exchange Act and fairly
present, in all material respects, the financial position of
the Company and the Subsidiaries at the respective dates
indicated and the results of their operations and their cash
flows for the respective periods indicated, in accordance
with generally accepted accounting principles in the United
States of America consistently applied throughout such
periods, except as disclosed in the notes to such financial
statements; and the other financial and statistical
information and the supporting schedules included in the
Prospectus and in the Registration Statement present fairly,
in all material respects, the information required to be
stated therein.
(m) Except as disclosed in the Registration Statement,
subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus,
(i) neither the Company nor any of the Significant
Subsidiaries has incurred any liabilities or obligations,
direct or contingent, that are material to the Company and
the Subsidiaries, taken as a whole, nor entered into any
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transaction not in the ordinary course of business that is
material to the Company and the Subsidiaries, taken as a
whole, (ii) there has been no decision or judgment in the
nature of litigation adverse to the Company or any of the
Significant Subsidiaries, and (iii) there has been no
material adverse change in the condition (financial or
other), business, net worth or results of operations of the
Company and the Subsidiaries, taken as a whole (any of the
above, a "Material Adverse Change").
(n) Neither the Company nor any of the Subsidiaries is
involved in any labor dispute nor, to the best of the
Company's knowledge, is any labor dispute imminent, other
than routine disciplinary and grievance matters, and the
Company is not aware (without any independent verification)
of any existing or imminent labor disturbance by the
employees of any of its principal suppliers, manufacturers
or contractors, that could reasonably be expected to result
in a Material Adverse Effect.
(o) The Company and each of the Significant
Subsidiaries possess such licenses, certificates,
authorizations, approvals, franchises, trademarks, service
marks, trade names, permits and other rights issued by
local, state, federal or foreign regulatory agencies or
bodies as are necessary to conduct the businesses now
conducted by them and the lack of which could reasonably be
expected to have a Material Adverse Effect on the Company
and the Subsidiaries, taken as a whole, and neither the
Company nor any of the Significant Subsidiaries has, to be
the best of the Company's knowledge, received any notice of
proceedings relating to the revocation or modification of
any such certificate, authorization, approval, franchise,
trademark, service mark, trade name, permit or right that,
if the subject of any unfavorable decision, ruling or
finding, could reasonably be expected to have a Material
Adverse Effect.
(p) The Company has not and, to the best of the
Company's knowledge, none of the Subsidiaries nor any
employee or agent of the Company has, directly or
indirectly, paid or delivered any fee, commission or other
sum of money or item or property, however characterized, to
any finder, agent, government official or other party, in
the United States or any other country, that is in any
manner related to the business or operations of the Company
that the Company knows or has reason to believe to have been
illegal under any federal, state or local laws of the United
States or any other country having jurisdiction; and the
Company has not participated, directly or indirectly, in any
boycotts or other similar practices in contravention of law
affecting any of its actual or potential customers.
- 13 -
(q) All material tax returns required to be filed by
the Company or any of the Subsidiaries in any jurisdiction
have been filed, other than those filings being contested in
good faith, and all material taxes, including withholding
taxes, penalties and interest, assessments, fees and other
charges due or claimed to be due from such entities have
been paid, other than those being contested in good faith or
for which adequate reserves have been provided or those
currently payable without penalty or interest.
(r) Except as disclosed in the Prospectus or except as
could not, singly or in the aggregate, reasonably be
expected to have a Material Adverse Effect, (a) to the best
of the Company's knowledge, neither the Company nor the
Subsidiaries is in violation of any Federal, state or local
law or regulation relating to pollution or protection of
public heath or welfare or the environment, including,
without limitation, the storage, handling, transportation,
emissions, discharges, releases or threatened releases of
pollutants, contaminates, hazardous or toxic materials,
substances or wastes, or petroleum or petroleum products
("Environmental Laws"), (b) the Company and each of the
Subsidiaries have received all permits, licenses or other
approvals required of them under applicable Environmental
Laws to conduct their respective businesses, and the Company
and each of the Subsidiaries are in compliance with all
terms and conditions of any such permit, license or approval
and (c) neither the Company nor, to the best of the
Company's knowledge, any of the Subsidiaries, has received
any notice or communication from any governmental agency or
any written notice from any other person regarding violation
of or liability under Environmental Laws and (d) there is no
pending action or proceeding, or to the best of the
Company's knowledge, pending or threatened claim or
investigation against the Company or any of the Subsidiaries
regarding violation of or liability under Environmental Laws.
(s) To the best of the Company's knowledge, there are
no costs and liabilities associated with Environmental Laws
that could, in the aggregate, reasonably be expected to have
a Material Adverse Effect.
(t) To the best of the Company's knowledge, neither
the Company nor any of the Subsidiaries has (A) violated any
Federal or state law relating to discrimination in the
hiring, promotion or pay of employees nor any applicable
wage or hour laws, nor any provisions of the Employee
Retirement Income Security Act of 1974 ("ERISA") or the
rules and regulations promulgated thereunder, or (B) engaged
in any unfair labor practice that, with respect to any
matter specified in clause (A) or (B) above, could
reasonably be expected to result, singly or in the
- 14 -
aggregate, in a Material Adverse Effect. There is (i) no
significant unfair labor practice complaint pending against
the Company or any of the Subsidiaries or, to the best of
the Company's knowledge, threatened against any of them,
before the National Labor Relations Board or any state or
local labor relations board, and no significant grievance or
significant arbitration proceeding arising out of or under
any collective bargaining agreement is so pending against
the Company or any of the Subsidiaries or, to the best of
the Company's knowledge, threatened against any of them and
(ii) to the best of the Company's knowledge, no union
representation question existing with respect to the
employees of the Company or any of the Subsidiaries and, to
the best of the Company's knowledge, no union organizing
activities are taking place, except (with respect to any
matter specified in clause (i) or (ii) above) such as would
not, singly or in the aggregate, have a Material Adverse
Effect.
(u) To the best of the Company's knowledge, (i) each
of the Company and the Subsidiaries has good and marketable
title to all property (real and personal) described in the
Prospectus as being owned by it, in fee simple in the case
of real property (other than in the case of certain
buildings the land under which is leased to the Company
pursuant to long-term leases that are valid, subsisting and
enforceable against the Company), free and clear of all
liens, claims, security interests or other encumbrances
except such as are described in the Registration Statement
and the Prospectus or in a document filed as an exhibit to
the Registration Statement and (ii) all the property
described in the Registration Statement and the Prospectus
as being held under lease by each of the Company and the
Significant Subsidiaries is held by it under valid,
subsisting and enforceable leases, except (with respect to
any matter specified in clause (i) or (ii) above) such as
would not, singly or in the aggregate, have a Material
Adverse Effect.
(v) Other than as described in the Registration
Statement and the Prospectus, no holder of any security of
the Company has any right to require registration of any
security of the Company because of the filing of the
registration statement or consummation of the transactions
contemplated by this Agreement, except such rights as have been
satisfied or waived.
(w) The Company has complied with all provisions of
Florida Statutes, Section 517.075, relating to issuers doing
business with Cuba.
7. INDEMNIFICATION AND CONTRIBUTION. (a) The
Company agrees to indemnify and hold harmless each of you and
each other Underwriter and each person, if any, who controls any
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Underwriter within the meaning of Section 15 of the Act or
Section 20(a) of the Exchange Act from and against any and all
losses, claims, damages, liabilities and expenses (including
reasonable costs of investigation) arising out of or based upon
any untrue statement or alleged untrue statement of a material
fact contained in any Prepricing Prospectus or in the
Registration Statement or the Prospectus or in any amendment or
supplement thereto, or arising out of or based upon any omission
or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein (in
the case of the any Prepricing Prospectus or the Prospectus, in
the light of the circumstances under which they were made) not
misleading, except insofar as such losses, claims, damages,
liabilities or expenses arise out of or are based upon any untrue
statement or omission or alleged untrue statement or omission
that has been made therein or omitted therefrom in reliance upon
and in conformity with the information relating to such
Underwriter furnished in writing to the Company by or on behalf
of any Underwriter through you expressly for use in connection
therewith; provided, however, that the indemnification contained
in this subsection (a) with respect to any Prepricing Prospectus
shall not inure to the benefit of any Underwriter (or to the
benefit of any person controlling such Underwriter) on account of
any such loss, claim, damage, liability or expense arising from
the sale of the Securities by such Underwriter to any person if a
copy of the Prospectus shall not have been delivered or sent to
such person within the time required by the Act and the
regulations thereunder, and the untrue statement or alleged
untrue statement or omission or alleged omission of a material
fact contained in such Prepricing Prospectus was corrected in the
Prospectus, provided that the Company has delivered the
Prospectus to the several Underwriters in requisite quantity on a
timely basis to permit such delivery or sending. The foregoing
indemnity agreement shall be in addition to any liability that
the Company may otherwise have.
(b) If any action, suit or proceeding shall be brought
against any Underwriter or any person controlling any Underwriter
in respect of which indemnity may be sought against the Company,
such Underwriter or such controlling person shall promptly notify
the parties against whom indemnification is being sought (the
"indemnifying parties"), and such indemnifying parties shall
assume the defense thereof, including the employment of counsel
and payment of all fees and expenses. Such Underwriter or any
such controlling person shall have the right to employ separate
counsel in any such action, suit or proceeding and to participate
in the defense thereof, but the fees and expenses of such counsel
shall be at the expense of such Underwriter or such controlling
person unless (i) the indemnifying parties have agreed in writing
to pay such fees and expenses, (ii) the indemnifying parties have
failed to assume the defense and employ counsel, or (iii) the
named parties to any such action, suit or proceeding (including
any impleaded parties) include both such Underwriter or such
- 16 -
controlling person and the indemnifying parties and such
Underwriter or such controlling person shall have been advised by
its counsel that representation of such indemnified party and any
indemnifying party by the same counsel would be inappropriate
under applicable standards of professional conduct (whether or
not such representation by the same counsel has been proposed)
due to actual or potential differing interests between them (in
which case the indemnifying party shall not have the right to
assume the defense of such action, suit or proceeding on behalf
of such Underwriter or such controlling person). It is
understood, however, that the indemnifying parties shall, in
connection with any one such action, suit or proceeding or
separate but substantially similar or related actions, suits or
proceedings in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the
reasonable fees and expenses of only one separate firm of
attorneys (in addition to any local counsel) at any time for all
such Underwriters and controlling persons, which firm shall be
designated in writing by Xxxxxx Xxxxxxx & Co. Incorporated, and
that all such fees and expenses shall be reimbursed as they are
incurred. The indemnifying parties shall not be liable for any
settlement of any such action, suit or proceeding effected
without their written consent, but if settled with such written
consent, or if there be a final judgment for the plaintiff in any
such action, suit or proceeding, the indemnifying parties agree
to indemnify and hold harmless any Underwriter, to the extent
provided in the preceding paragraph, and any such controlling
person from and against any loss, claim, damage, liability or
expense by reason of such settlement or judgment.
(c) Each Underwriter agrees, severally and not
jointly, to indemnify and hold harmless the Company, its
directors, its officers who sign the Registration Statement and
any person who controls the Company within the meaning of
Section 15 of the Act or Section 20(a) of the Exchange Act, to
the same extent as the foregoing indemnity from the Company to
each Underwriter, but only with respect to information relating
to such Underwriter furnished in writing by or on behalf of such
Underwriter through you expressly for use in the Registration
Statement, the Prospectus or any Prepricing Prospectus, or any
amendment or supplement thereto. If any action, suit or
proceeding shall be brought against the Company, any of its
directors, any such officer or any such controlling person based
on the Registration Statement, the Prospectus or any Prepricing
Prospectus, or any amendment or supplement thereto, and in
respect of which indemnity may be sought against any Underwriter
pursuant to this subsection (c), such Underwriter shall have the
rights and duties given to the indemnifying parties by subsection
(b) above (except that if the Company shall have assumed the
defense thereof such Underwriter shall not be required to do so,
but may employ separate counsel therein and participate in the
defense thereof, but the fees and expenses of such counsel shall
be at such Underwriter's expense), and the Company, its
- 17 -
directors, any such officer and any such controlling person shall
have the rights and duties given to the Underwriters by
subsection (b) above. The foregoing indemnity agreement shall be
in addition to any liability that any Underwriter may otherwise
have.
(d) If the indemnification provided for in this
Section 7 is unavailable to an indemnified party under subsection
(a) or (c) above in respect of any losses, claims, damages,
liabilities or expenses referred to therein, then an indemnifying
party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages, liabilities or
expenses (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the
Underwriters on the other hand from the offering of the
Securities, or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company
on the one hand and the Underwriters on the other in connection
with the statements or omissions that resulted in such losses,
claims, damages, liabilities or expenses, as well as any other
relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Underwriters on
the other shall be deemed to be in the same proportion as the
total net proceeds from the offering (before deducting expenses)
received by the Company bear to the total underwriting discounts
and commissions received by the Underwriters, in each case as set
forth in the table on the cover page of the Prospectus. The
relative fault of the Company on the one hand and the Under-
writers on the other hand shall be determined by reference to,
among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the
Company on the one hand or by the Underwriters on the other hand
and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement
or omission.
(e) The Company and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this
Section 7 were determined by a pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by
any other method of allocation that does not take account of the
equitable considerations referred to in subsection (d) above.
The amount paid or payable by an indemnified party as a result of
the losses, claims, damages, liabilities and expenses referred to
in subsection (d) above shall be deemed to include, subject to
the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating any claim or defending any such action, suit or
proceeding. Notwithstanding the provisions of this Section 7, no
- 18 -
Underwriter shall be required to contribute any amount in excess
of the amount by which the total price of the Securities
underwritten by it and distributed to the public exceeds the
amount of any damages that such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f)
of the Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations to contribute pursuant to this Section
7 are several in proportion to the respective principal amounts
of Securities set forth opposite their names in Schedule I hereto
(or such principal amounts of securities increased as set forth
in Section 10 hereof) and not joint.
(f) No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement
of any pending or threatened action, suit or proceeding in
respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all
liability on claims that are the subject matter of such action,
suit or proceeding.
(g) Any losses, claims, damages, liabilities or
expenses for which an indemnified party is entitled to
indemnification or contribution under this Section 7 shall be
paid by the indemnifying party to the indemnified party as such
losses, claims, damages, liabilities or expenses are incurred.
The indemnity and contribution agreements contained in this
Section 7 and the representations and warranties of the Company
set forth in this Agreement shall remain operative and in full
force and effect, regardless of (i) any investigation made by or
on behalf of any Underwriter or any person controlling any
Underwriter, the Company, its directors or officers or any person
controlling the Company, (ii) acceptance of any Securities and
payment therefor hereunder, and (iii) any termination of this
Agreement. A successor to any Underwriter or any person
controlling any Underwriter, or to the Company, its directors or
officers, or any person controlling the Company, shall be
entitled to the benefits of the indemnity, contribution and
reimbursement agreements contained in this Section 7.
8. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The
several obligations of the Underwriters to purchase the
Securities hereunder are subject to the following conditions:
(a) If, at the time this Agreement is executed and
delivered, it is necessary for the registration statement or
a post-effective amendment thereto to be declared effective
before the offering of the Securities may commence, the
registration statement or such post-effective amendment
- 19 -
shall have become effective not later than 5:30 P.M., New
York City time, on the date hereof, or at such later date
and time as shall be consented to in writing by you, and all
filings, if any, required by Rules 424, 430A and 434 under
the Act shall have been timely made; no stop order
suspending the effectiveness of the registration statement
shall have been issued and no proceeding for that purpose
shall have been instituted or, to the knowledge of the
Company or any Underwriter, threatened by the Commission,
and any request of the Commission for additional information
(to be included in the registration statement or the
Prospectus or otherwise) shall have been complied with to
your satisfaction.
(b) Subsequent to the effective date of this
Agreement, there shall not have occurred (i) any downgrading
or any notice of any intended or potential downgrading or of
any review for a possible change that does not indicate the
direction of the possible change, in the rating accorded any
of the Company's securities by any "nationally recognized
statistical rating organization," as such term is defined
for purposes of Rule 436(g)(2) under the Securities Act,
(ii) any change in or affecting the condition (financial or
other), business, properties, net worth, or results of
operations of the Company or the Subsidiaries not
contemplated by the Prospectus, that, in your reasonable
opinion, would materially adversely affect the market for
the Securities, or (iii) any event or development relating
to or involving the Company or any officer or director of
the Company that makes any statement made in the Prospectus
untrue in any material respect or that, in the opinion of
the Company and its counsel or the Underwriters and their
counsel, requires the making of any addition to or change in
the Prospectus in order to state a material fact required by
the Act or any other law to be stated therein or necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, if
amending or supplementing the Prospectus to reflect such
event or development would, in your reasonable opinion,
materially adversely affect the market for the Securities.
(c) You shall have received on the Closing Date, an
opinion of Xxxxxx & Xxxxxxx, counsel for the Company, dated
the Closing Date and addressed to the several Underwriters,
to the effect that:
(i) the Securities, when executed and
authenticated in accordance with the terms of the
Indenture and delivered to and paid for by you in
accordance with the terms of this Agreement, will
constitute valid and binding obligations of the Company
enforceable against the Company in accordance with
their terms, subject to applicable bankruptcy,
- 20 -
insolvency, fraudulent conveyance, reorganization,
moratorium and similar laws then or thereafter in
effect relating to or affecting rights and remedies of
creditors, and to general principles of equity
(regardless of whether enforcement is sought in a
proceeding at law or in equity) and to the discretion
of the court before which any proceeding therefor may
be brought;
(ii) the Indenture, assuming due authorization,
execution and delivery thereof by the Trustee, will be
a valid and binding agreement of the Company,
enforceable against the Company in accordance with its
terms, subject to applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and
similar laws then or thereafter in effect relating to
or affecting rights and remedies of creditors, and to
general principles of equity (regardless of whether
enforcement is sought in a proceeding at law or in
equity) and to the discretion of the court before which
any proceeding therefor may be brought;
(iii) the Securities and the Indenture conform in
all material respects to the descriptions thereof
contained in the Registration Statement and the
Prospectus under the heading "Description of Senior Notes";
(iv) The Registration Statement and all post-effective
amendments, if any, have become effective under the Act and,
to the best of such counsel's knowledge, no stop order suspending
the effectiveness of the Registration Statement has been issued
under the Act and no proceedings therefor have been initiated by
the Commission; and any required filing of the Prospectus, and any
supplements thereto, pursuant to Rule 424(b) or Rule 434 under the
Act has been made in the manner and within the time period required
by Rule 424(b) and Rule 430A under the Act; the Indenture has
been duly qualified under the Trust Indenture Act;
(v) To the best of such counsel's knowledge no
consent, approval, authorization or order of, or filing
with, any federal or New York court or governmental
agency or body is required to be obtained or made by
the Company for the consummation of the sale of the
Securities by the Company pursuant to this Agreement,
except (A) such as have been obtained under the Act and
the Trust Indenture Act and (B) such as may be required
under the state securities laws in connection with the
purchase and distribution of the Securities by the Underwriters;
-21-
(vi) The Registration Statement and the Prospectus
comply as to form in all material respects with the
requirements for registration statements on Form S-3
under the Act and the rules and regulations of the
Commission thereunder; it being understood, however,
that such counsel need express no opinion with respect
to (A) the financial statements, schedules and other
financial and statistical data included in the
Registration Statement or the Prospectus or
incorporated therein or (B) the Form T-1. In passing
upon the compliance as to form of the Registration
Statement and the Prospectus, such counsel may assume
that the statements made and incorporated by reference
therein are correct and complete;
(vii) Neither the purchase of the Securities by the
Underwriters nor the sale of the Securities by the
Company pursuant to the terms of this Agreement will
result in the breach of or a default under those
agreements identified to such counsel by an officer of
the Company as material to the Company; and
(viii) The statements set forth in the Prospectus in
the first, second and seventh paragraphs under the
heading "Underwriters", insofar as such statements
constitute a summary of legal matters, are accurate in
all material respects.
Such opinion may be limited to the internal laws of the
State of New York and the Federal laws of the United States.
Such counsel may rely as to factual matters on certificates
of officers of the Company and of state officials, in which
case their opinion shall state that they are so doing. Such
opinion also shall take further exceptions that shall be
reasonably acceptable to the Underwriters.
In addition, such counsel shall state that such counsel
has participated in conferences with officers and other
representatives of the Company, representatives of the
independent public accountants for the Company,
representatives of the Underwriters and their counsel, at
which the contents of the Registration Statement and
Prospectus and related matters were discussed and, although
such counsel need not pass upon and need not assume any
responsibility for, the accuracy, completeness or fairness
of the statements contained in the Registration Statement
and the Prospectus and such counsel may state that they have
made no independent check or verification thereof, during
the course of such participation, (relying as to materiality
to a large extent upon the statements of officers and other
representatives of the Company), no facts came to such
counsel's attention that caused such counsel to believe that
the Registration Statement (as amended or supplemented, if
-22-
applicable, and including the Incorporated Documents), at
the time such Registration Statement or any post-effective
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 (including
the Incorporated Documents) as amended or supplemented, as
of its date and as of the Closing Date, contained an untrue
statement of a material fact or omitted to state a material
fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made,
not misleading; it being understood that such counsel need
express no belief with respect to (i) the financial
statements, schedules and other financial and statistical
data included in the Registration Statement or the
Prospectus or incorporated therein or (ii) the Form T-1.
(d) You shall have received on the Closing Date, an
opinion of Xxxx X. Xxxxxxx, Esq., Vice President and General
Counsel of the Company, dated the Closing Date and addressed
to the several Underwriters, to the effect that:
(i) To the best of such counsel's knowledge, no
authorization, approval, consent or order of, or
registration or filing with, any court or governmental
authority or agency is required to be obtained or made
by the Company for the valid sale of the Securities to
you, except (A) such as have been obtained under the
Act and the Trust Indenture Act and (B) such as may be
required under the state securities or Blue Sky laws or
regulations of any jurisdiction in the United States in
connection with the purchase and distribution of the
Securities by the Underwriters;
(ii) The Company has corporate power and authority
to enter into this Agreement, the Indenture and the
Securities and each of this Agreement, the Indenture
and the Securities has been duly authorized by all
necessary corporate action by the Company, and each of
this Agreement and the Indenture has been duly executed
and delivered by the Company;
(iii) Neither the purchase of the Securities by the
Underwriters nor the sale of the Securities by the
Company pursuant to the terms of this Agreement will
conflict with or constitute a breach of or a default
under the certificate or articles of incorporation or
bylaws, or other organizational documents, of the
Company or any of the Significant Subsidiaries or the
terms of any material agreement or instrument to which
the Company or any of the Significant Subsidiaries is a
party or by which any of them is bound, or to which any
of the properties of the Company or any of the
-23-
Significant Subsidiaries is subject, or will result in
the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company
or any of the Significant Subsidiaries, or result in
any violation of any statute, rule or regulation
applicable to the Company or, to the best of such
counsel's knowledge, any judgment, injunction, order or
decree of any court or governmental agency or body
having jurisdiction over the Company or any of the
Significant Subsidiaries or any of their respective
properties;
(iv) Each of the Company and, to the best of such
counsel's knowledge, the Significant Subsidiaries that
is a corporation has been duly incorporated and is
validly existing and is a corporation in good standing
under the laws of its jurisdiction of its
incorporation, and each of the Company and, to the best
of such counsel's knowledge, the Significant
Subsidiaries has the corporate (or partnership) power
and authority and all necessary governmental
authorizations, approvals, orders, licenses,
certificates, franchises and permits of and from all
governmental regulatory officials and bodies to own and
operate its properties and to conduct its business as
described in the Registration Statement and the
Prospectus and is duly qualified to do business as a
foreign corporation and is in good standing under the
laws of each jurisdiction in which such qualification
is required wherein it owns or leases material property
or conducts business, except where the failure so to
qualify could not reasonably be expected to have a
Material Adverse Effect;
(v) All of the issued and outstanding capital
stock of, or other ownership interests in, each
Significant Subsidiary has been duly authorized and
validly issued, and is fully paid and nonassessable
and, except as otherwise set forth in the Registration
Statement and the Prospectus, certain shares of capital
stock of, or other ownership interests in, each
Significant Subsidiary are owned by the Company, either
directly or through Subsidiaries, as set forth on
Exhibit 21 to the Company's annual report on Form 10-K
for the fiscal year ended December 31, 1994, free and
clear of any perfected security interest or, to the
best of such counsel's knowledge, any other security
interests, claims, liens, equities or encumbrances;
(vi) Except as described in the Registration
Statement and the Prospectus, there is no holder of any
security of the Company or any other person who has the
right, contractual or otherwise, to cause the Company
-24-
to sell or otherwise issue to them, or to permit them
to underwrite the sale of, the Securities or the right
to have any securities of the Company included in the
registration statement or the right, as a result of the
filing of the registration statement, to require
registration under the Act of any securities of the
Company, except such rights as have been satisfied or
waived;
(vii) To the best of such counsel's knowledge
(A) there are no franchises, contracts, indentures,
mortgages, leases, loan agreements, notes or other
agreements or instruments to which the Company or any
Significant Subsidiary is a party or by which any of
them may be bound that are required to be described in
the Registration Statement or the Prospectus or to be
filed as exhibits to or incorporated by reference in
the Registration Statement other than those described
therein or filed or incorporated by reference as
exhibits thereto, (B) no default exists in the due
performance or observance of any obligation, agreement,
covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or
other instrument, except for defaults that would not,
singly or in the aggregate, have a Material Adverse
Effect and (C) the statements in the Prospectus under
the caption "Business -- Legal Proceedings" insofar as
they relate to statements of law or legal conclusions,
are accurate in all material respects;
(viii) The Company and the Significant Subsidiaries
own all patents, trademarks, trademark registrations,
service marks, service mark registrations, trade names,
copyrights, licenses, inventions, trade secrets and
rights described in the Prospectus as being owned by
them or any of them or necessary for the conduct of
their respective businesses, and such counsel is not
aware of any claim to the contrary or any challenge by
any other person to the rights of the Company and the
Significant Subsidiaries with respect to the foregoing;
(ix) To the best of such counsel's knowledge,
there is no current, pending or threatened action, suit
or proceeding before any court or governmental agency,
authority or body or any arbitrator involving the
Company or any of the Significant Subsidiaries or any
of their respective properties of a character required
to be disclosed in the Registration Statement and the
Prospectus that is not adequately so disclosed;
(x) At the time it became effective and on the
Closing Date, the Registration Statement (except for
(A) financial statements, the notes thereto and related
schedules and other financial, numerical, statistical
-25-
or accounting data included or incorporated therein or
omitted therefrom and (B) the Form T-1, as to which no
opinion need be expressed) and the Prospectus complied and
complies as to form in all material respects with the
applicable requirements of the Act; and each of the
Incorporated Documents (except for financial
statements, the notes thereto and related schedules and
other financial, numerical, statistical or accounting
data included therein or omitted therefrom, as to which
no opinion need be expressed) complies as to form in
all material respects with the Exchange Act;
(xi) The statements in the Registration Statement
and the Prospectus, insofar as they are descriptions of
contracts, agreements or other legal documents, or
refer to statements of law or legal conclusions, are
accurate and present fairly the information required to
be shown; and
(xii) Neither the Company nor any of the
Subsidiaries is an "investment company" required to be
registered under Section 8 of the Investment Company
Act of 1940, as amended (the "Investment Company Act"),
or an entity "controlled by an investment company"
required to be registered under Section 8 of the
Investment Company Act.
Such opinion may be limited to the internal laws of the
State of Texas and the Federal laws of the United States.
Such opinion shall take further exceptions that shall be
reasonably acceptable to the Underwriters.
In addition, such counsel shall state that such counsel
has participated in conferences with officers and other
representatives of the Company, representatives of the
independent public accountants for the Company, your
representatives and your counsel, at which the contents of
the Registration Statement and Prospectus (including the
Incorporated Documents) and related matters were discussed
and, although such counsel is not passing upon and does not
assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration
Statement and the Prospectus, on the basis of the foregoing,
relying as to the factual matters underlying the
determination of materiality to a large extent upon the
statements of officers and other representatives of the
Company, no facts came to such counsel's attention that
caused such counsel to believe that the Registration
Statement (as amended or supplemented, if applicable, and
including the Incorporated Documents), at the time such
Registration Statement or any post-effective amendment
became effective, contained an untrue statement of a
material fact or omitted to state a material fact required
-26-
to be stated therein or necessary to make the statements
therein not misleading (other than information omitted
therefrom in reliance on Rule 430A under the Act), or the
Prospectus, as amended or supplemented, as of its date and
as of the Closing Date, contained an untrue statement of a
material fact or omitted to state a material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; it
being understood that such counsel need express no belief
with respect to (i) the financial statements, schedules and
other financial and statistical data included in the
Registration Statement or the Prospectus or incorporated
therein or (ii) the Form T-1.
(e) You shall have received on the Closing Date an
opinion of Xxxxx Xxxx & Xxxxxxxx, counsel for the
Underwriters, dated the Closing Date and addressed to the
several Underwriters, with respect to the matters referred
to in clauses (i), (ii), (iii), (iv), (v), (vi) and (viii)
and in the last paragraph of subsection (c) above and such
other related matters as you may request.
(f) You shall have received letters addressed to the
several Underwriters, and dated the date hereof and the
Closing Date from KPMG Peat Marwick LLP, independent
certified public accountants, substantially in the forms
heretofore approved by you.
(g) (i) No stop order suspending the effectiveness of
the Registration Statement shall have been issued and no
proceedings for that purpose shall have been taken or, to
the knowledge of the Company, shall be contemplated by the
Commission at or prior to the Closing Date; (ii) there shall
not have been any change in the capital stock of the Company
nor any material increase in the short-term or long-term
debt of the Company (other than in the ordinary course of
business) from that set forth or contemplated in the
Prospectus (or any amendment or supplement thereto);
(iii) there shall not have been, since the respective dates
as of which information is given in the Registration
Statement and the Prospectus (or any amendment or supplement
thereto), except as may otherwise be stated in the
Registration Statement and the Prospectus (or any amendment
or supplement thereto), any Material Adverse Change;
(iv) the Company and the Subsidiaries shall not have any
liabilities or obligations, direct or contingent (whether or
not in the ordinary course of business), that are material
to the Company and the Subsidiaries, taken as a whole, other
than those reflected in the Registration Statement and the
Prospectus (or any amendment or supplement thereto); and
(v) all the representations and warranties of the Company
contained in this Agreement shall be true and correct in all
-27-
material respects on and as of the date hereof and on and as
of the Closing Date as if made on and as of the Closing
Date, and you shall have received a certificate, dated the
Closing Date and signed by the chief executive officer and
the chief financial officer of the Company (or such other
officers as are acceptable to you), to the effect set forth
in this Section 8(g) and in Sections 8(b)(i) and 8(h) hereof.
(h) The Company shall not have failed at or prior to
the Closing Date to have performed or complied in all
material respects with any of its agreements herein
contained and required to be performed or complied with by
it hereunder at or prior to the Closing Date.
(i) The Company shall have furnished or caused to be
furnished to you such further certificates and documents as
you shall have reasonably requested.
(j) The Underwriters shall have received evidence
reasonably satisfactory to them that all liens, claims,
security interests and other encumbrances in favor of the
lenders under the Company Credit Facility (as defined in the
Prospectus under the caption "Use of Proceeds") to which any
property (real or personal) described in the Prospectus as being
owned by the Company is subject shall have been terminated by
such lenders prior to or simultaneously with the closing
hereunder.
All such opinions, certificates, letters and other
documents will be in compliance with the provisions hereof only
if they are reasonably satisfactory in form and substance to you
and your counsel.
Any certificate or document signed by any officer of
the Company and delivered to the Underwriters, or to counsel for
the Underwriters, shall be deemed a representation and warranty
by the Company to each Underwriter as to the statements made
therein.
9. EXPENSES. The Company agrees to pay the following
costs and expenses and all other costs and expenses incident to
the performance by the Company of its obligations hereunder:
(i) the preparation, printing or reproduction, and filing with
the Commission of the registration statement (including financial
statements and exhibits thereto), each Prepricing Prospectus, the
Prospectus, and each amendment or supplement to any of them;
(ii) the printing (or reproduction) and delivery (including
postage, air freight charges and charges for counting and
packaging) of such copies of the registration statement, each
Prepricing Prospectus, the Prospectus, the Incorporated
Documents, and all amendments or supplements to any of them, as
may be reasonably requested for use in connection with the
-28-
offering and sale of the Securities; (iii) the preparation,
printing, authentication, issuance and delivery of the
Securities, including any stamp taxes in connection with the
original issuance and sale of the Securities; (iv) the printing
(or reproduction) and delivery of this Agreement, the Indenture,
the preliminary and supplemental Blue Sky Memoranda and all other
agreements or documents printed (or reproduced) and delivered in
connection with the offering of the Securities; (v) the
registration or qualification of the Securities for offer and
sale under the state securities or Blue Sky laws of the several
states as provided herein (including the reasonable fees,
expenses and disbursements of counsel for the Underwriters
relating to the preparation, printing or reproduction, and
delivery of the preliminary and supplemental Blue Sky Memoranda
and such registration and qualification); (vi) the filing fees
and the fees and expenses of counsel for the Underwriters in
connection with any filings required to be made with the National
Association of Securities Dealers, Inc.; (vii) the transportation
and other expenses incurred by or on behalf of Company
representatives in connection with presentations to prospective
purchasers of the Securities; and (viii) the fees and expenses of
the Company's accountants and the fees and expenses of counsel
(including local and special counsel) for the Company.
10. EFFECTIVE DATE OF AGREEMENT. This Agreement shall
become effective: (i) upon the execution and delivery hereof by
the parties hereto; or (ii) if, at the time this Agreement is
executed and delivered, it is necessary for the registration
statement or a post-effective amendment thereto to be declared
effective before the offering of the Securities may commence,
when notification of the effectiveness of the registration
statement or such post-effective amendment has been released by
the Commission. Until such time as this Agreement shall have
become effective, it may be terminated by the Company by
notifying you, or by you, on behalf of the several Underwriters,
by notifying the Company.
If any one or more of the Underwriters shall fail or
refuse to purchase Securities that it or they are obligated to
purchase hereunder on the Closing Date, and the aggregate
principal amount of Securities that such defaulting Underwriter
or Underwriters are obligated but fail or refuse to purchase is
not more than one-tenth of the aggregate principal amount of
Securities that the Underwriters are obligated to purchase on the
Closing Date, each non-defaulting Underwriter shall be obligated,
severally, in the proportion that the principal amount of
Securities set forth opposite its name in Schedule I hereto bears
to the aggregate principal amount of Securities set forth
opposite the names of all non-defaulting Underwriters or in such
other proportion as you may specify, to purchase the Securities
that such defaulting Underwriter or Underwriters are obligated,
but fail or refuse, to purchase; PROVIDED that in no event shall
the principal amount of Securities that any Underwriter has
-29-
agreed to purchase pursuant to this Agreement be increased
pursuant to this Section 10 by an amount in excess of one-ninth
of such principal amount of Securities without the written
consent of such Underwriter. If any one or more of the
Underwriters shall fail or refuse to purchase Securities that it
or they are obligated to purchase on the Closing Date and the
aggregate principal amount of Securities with respect to which
such default occurs is more than one-tenth of the aggregate
principal amount of Securities that the Underwriters are
obligated to purchase on the Closing Date and arrangements
satisfactory to you and the Company for the purchase of such
Securities by one or more non-defaulting Underwriters or other
party or parties approved by you and the Company are not made
within 36 hours after such default, this Agreement shall
terminate without liability on the part of any non-defaulting
Underwriter or the Company. In any such case that does not
result in termination of this Agreement, any of you or the
Company shall have the right to postpone the Closing Date, but in
no event for longer than seven days, in order that the required
changes, if any, in the Registration Statement and the Prospectus
or any other documents or arrangements may be effected. Any
action taken under this paragraph shall not relieve any
defaulting Underwriter from liability in respect of any such
default of any such Underwriter under this Agreement. The term
"Underwriter" as used in this Agreement includes, for all
purposes of this Agreement, any party not listed in Schedule I
hereto who, with your approval and the approval of the Company
purchases Securities that a defaulting Underwriter is obligated,
but fails or refuses, to purchase.
Any notice under this Section 10 may be given by
telegram, telecopy or telephone but shall be subsequently
confirmed by letter.
11. TERMINATION OF AGREEMENT. This Agreement shall be
subject to termination in your absolute discretion, without
liability on the part of any Underwriter to the Company by notice
to the Company if prior to the Closing Date (i) trading in
securities generally on the New York Stock Exchange, the American
Stock Exchange or the Nasdaq National Market shall have been
suspended or materially limited, (ii) a general moratorium on
commercial banking activities in New York or Texas shall have
been declared by either federal or state authorities, or
(iii) there shall have occurred any outbreak or escalation of
hostilities or other international or domestic calamity, crisis
or change in political, financial or economic conditions, the
effect of which on the financial markets of the United States is
such as to make it, in your reasonable judgment, impracticable or
inadvisable to commence or continue the offering of the
Securities at the offering price to the public set forth on the
cover page of the Prospectus or to enforce contracts for the
resale of the Securities by the Underwriters. Notice of such
-30-
termination may be given to the Company by telegram, telecopy or
telephone and shall be subsequently confirmed by letter.
12. INFORMATION FURNISHED BY THE UNDERWRITERS. The
statements set forth in the last paragraph on the cover page, the
stabilization legend on the inside cover page, and the statements
in the third paragraph under the caption "Underwriters" in any
Prepricing Prospectus and in the Prospectus constitute the only
information furnished by or on behalf of the Underwriters through
you expressly for use therein as such information is referred to
in Sections 6(a) and 7 hereof.
13. MISCELLANEOUS. Except as otherwise provided in
Sections 5, 10 and 11 hereof, notice given pursuant to any
provision of this Agreement shall be in writing and shall be
delivered (i) if to the Company, at the office of the Company at
Weston Centre, 000 X. Xxxxx Xxxxxx, P.O. Box 2636, San Antonio,
Texas 78299-2636, Attention: Xxxx X. Xxxxxxx, Esq., Vice
President and General Counsel; or (ii) if to the Underwriters,
care of Xxxxxx Xxxxxxx & Co. Incorporated, 0000 Xxxxxx xx xxx
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: [ ].
This Agreement has been and is made solely for the
benefit of the several Underwriters, the Company, its directors
and officers and the other controlling persons referred to in
Section 7 hereof and their respective successors and assigns, to
the extent provided herein, and no other person shall acquire or
have any right under or by virtue of this Agreement. Neither the
term "successor" nor the term "successors and assigns" as used in
this Agreement shall include a purchaser from any Underwriter of
any of the Securities in his status as such purchaser.
13. APPLICABLE LAW; COUNTERPARTS. This Agreement
shall be governed by and construed in accordance with the laws of
the State of New York applicable to contracts made and to be
performed within the State of New York.
This Agreement may be signed in various counterparts
that together constitute one and the same instrument. If signed
in counterparts, this Agreement shall not become effective unless
at least one counterpart hereof shall have been executed and
delivered on behalf of each party hereto.
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Please confirm that the foregoing correctly sets forth the agreement
among the Company and the several Underwriters.
Very truly yours,
LA QUINTA INNS, INC.
By:__________________________________
Name:
Title:
Accepted as of the date hereof
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation
NationsBanc Capital Markets, Inc.
Acting severally on behalf
of themselves and on behalf
of the other several
Underwriters named herein.
By Xxxxxx Xxxxxxx & Co.
Incorporated
By:_____________________________
Name:
Title:
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SCHEDULE I
LA QUINTA INNS, INC.
Principal Amount
Underwriters of Securities
------------ -----------------
Xxxxxx Xxxxxxx & Co. Incorporated. . . . . . . . . .
Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation. . . . . . . . . . . . . . .
NationsBanc Capital Markets, Inc. . . . . . . . . . .
[NAMES OF OTHER UNDERWRITERS] . . . . . . . . . . . . -----------------
Total . . . . . . . . . . . . . . . . . . . . . . . =================
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