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Exhibit 99.1
XXXXXX X. XXXXXXX & SONS, INC.
GUARANTEED DEBT SECURITIES
GUARANTEED AS TO PAYMENT OF PRINCIPAL AND INTEREST, IF ANY, BY
THE SEAGRAM COMPANY LTD.
UNDERWRITING AGREEMENT
GENERAL TERMS AND PROVISIONS
XXXXXX X. XXXXXXX & SONS, INC., an Indiana corporation (the "Company"),
proposes to enter into a Pricing Agreement In the form of Annex I hereto which
incorporates by reference these Underwriting Agreement General Terms and
Provisions (the "Pricing Agreement"), and, subject to the terms and conditions
stated herein and therein, to issue and sell to the firms named in Schedule I to
the Pricing Agreement (such firms constituting the "Underwriters" with respect
to the Pricing Agreement and the securities specified therein) certain of its
debt securities specified in Schedule II to the Pricing Agreement (the
"Securities") in the aggregate principal amounts set forth in the second column
of Schedule I to the Pricing Agreement (the "Firm Designated Securities"), and
in the event and to the extent that the Underwriters shall exercise the election
to purchase Securities having up to the aggregate principal amounts set forth in
the third column of Schedule II to the Pricing Agreement (the "Optional
Designated Securities" and, together with the Firm Designated Securities, the
"Designated Securities"), such Optional Designated Securities as to which such
election shall have been exercised, determined by multiplying such number of
Optional Designated Securities by a fraction, the numerator of which is the
maximum number of Optional Designated Securities which such Underwriter is
entitled to purchase as set forth opposite the name of such Underwriter in
Schedule I hereto and the denominator of which is the maximum number of Optional
Designated Securities that all of the Underwriters are entitled to purchase
hereunder, less (c) the principal amount of Designated Securities covered by
Delayed Delivery Contracts (as defined in Section 3 hereof), if any, as provided
in Section 3 hereof and as may be specified in Schedule II to the Pricing
Agreement (with respect to the Pricing Agreement, any Designated Securities to
be covered by Delayed Delivery Contracts being herein sometimes referred to as
"Contract Securities" and the Designated Securities to be purchased by the
Underwriters (after giving effect to the deduction, if any, for Contract
Securities) being herein sometimes referred to as "Underwriters' Securities").
The Securities will be guaranteed (the "Guarantees") as to payment of principal
and interest, if any, by THE SEAGRAM COMPANY LTD., a Canadian corporation (the
"Guarantor").
The term and rights of the Designated Securities and related Guarantees
shall be as specified in the Pricing Agreement and in or pursuant to the
indenture (the "Indenture") identified in the Pricing Agreement.
1. The firms designated as representatives of the Underwriters of the
Designated Securities in the Pricing Agreement will act as representatives (the
"Representatives"). The term "Representatives" also refers to a single firm
acting as sole representative of the Underwriters and to Underwriters who act
without any firm being designated as their representative. The obligation of the
Company to issue and sell any of the Securities and the obligation of any of the
Underwriters to purchase any of the Securities shall be evidenced by the Pricing
Agreement with respect to the Designated Securities. The Pricing Agreement shall
specify the aggregate principal amount of the Designated Securities, the initial
public offering price of the Designated Securities, the purchase
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price to the Underwriters of the Designated Securities, the names of the
Underwriters of the Designated Securities, the names of the Representatives of
such Underwriters, the principal amount of the Designated Securities to be
purchased by each Underwriter and whether any of the Designated Securities shall
be covered by Delayed Delivery Contracts and the commission payable to the
Underwriters with respect thereto and shall set forth the date, time and manner
of delivery of the Designated Securities and payment therefor. The Pricing
Agreement shall also specify (to the extent not set forth in the Indenture and
the registration statement and prospectus with respect thereto) the terms of the
Designated Securities and the related Guarantees. The Pricing Agreement also may
specify such additional terms and conditions as the parties may agree. The
Pricing Agreement shall be in the form of an executed writing (which may be in
counterparts), and may be evidenced by an exchange of telegraphic communications
or any other rapid transmission device designed to produce a written record of
communications transmitted. The obligations of the Underwriters under the
Pricing Agreement shall be several and not joint.
2. The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) One or more registration statements in respect of the
Securities and the Guarantees have been filed with the Securities
and Exchange Commission (the "Commission") and have been declared
effective by the Commission, and no stop order suspending the
effectiveness of such registration statements has been issued and no
proceeding for that purpose has been initiated or threatened by the
Commission; copies of such registration statements and amendments
thereto on or prior to the date of the Pricing Agreement have been
delivered to the Representatives and, excluding exhibits to such
registration statements but including all documents incorporated by
reference in the latest prospectus contained therein, to the
Representatives for each of the other Underwriters (any preliminary
prospectus included in such registration statements being
hereinafter called a "Preliminary Prospectus", the various parts of
each such registration statement, including all exhibits thereto but
excluding Form T-1, each as amended or supplemented at the time such
part became effective, being hereinafter collectively called a
"Registration Statement", and all such registration statements being
hereinafter collectively called the "Registration Statements", the
prospectus relating to the Securities and the Guarantees, in the
form in which it has most recently been filed, or mailed for filing,
with the Commission on or prior to the date of the Pricing
Agreement, which prospectus is now proposed to be supplemented by a
supplement relating to the Designated Securities to be filed, or
mailed for filing, with the Commission pursuant to Rule 424 under
the Act, in the form in which it is first so filed or mailed for
filing, being hereinafter called the "Prospectus"; any reference
herein to any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include the documents incorporated by
reference therein pursuant to the applicable form under the
Securities Act of 1933, as amended (the "Act"), as of the date of
such Preliminary Prospectus or Prospectus, as the case may be; and
any reference to any amendment or supplement to any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include
any documents filed after the date of such Preliminary Prospectus or
Prospectus, as the case may be, under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and so incorporated by
reference);
(b) The documents, if any, incorporated by reference in the
Prospectus, when they became effective or were filed with the
Commission, as the case may be, complied as to form in all material
respects with the requirements of the Act or the Exchange Act, as
applicable, and the applicable rules and regulations of the
Commission thereunder, and none of such documents, as of their
respective effective or filing dates, contained an untrue statement
of a material fact or omitted to state a material fact required to
be stated therein
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or necessary to make the statements therein not misleading; and any
further documents so filed and incorporated by reference in the
Prospectus, when such documents become effective or are filed with
the Commission, as the case may be, will comply as to form in all
material respects with the requirements of the Act or the Exchange
Act, as applicable, and the applicable rules and regulations of the
Commission thereunder, and will not, as of their respective
effective or filing dates, 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;
provided, however, that this representation and warranty shall apply
only to documents so filed and incorporated by reference during the
period that a prospectus relating to the Designated Securities is
required to be delivered in connection with sales of such Securities
by any Underwriter (such period being hereinafter sometimes referred
to as the "prospectus delivery period"); and provided, further, that
this representation and warranty shall not apply to any statements
or omissions made in reliance upon and in conformity with
information furnished in writing to the Company or the Guarantor by
an Underwriter of the Designated Securities through the
Representatives expressly for use in the Prospectus;
(c) Each Registration Statement and any amendment thereto, as
of its respective effective date, and the Prospectus and, if the
Prospectus is amended or supplemented, the Prospectus as amended or
supplemented, as of their respective issue dates, complied as to
form in all material respects with the requirements of the Act and
the Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act"), and the applicable rules and regulations of the Commission
thereunder, and no Registration Statement or any amendment thereto,
as of its respective effective date (and, with respect to any
Registration Statement as to which an Annual Report on Form 10-K of
the Guarantor has been filed subsequent to the effective date
thereof, as of the date of filing of the most recent such Annual
Report on Form 10-K), contained or will 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 or, if the Prospectus is amended or
supplemented, the Prospectus as amended or supplemented, does not
and will not, as of its issue date, contain an untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that this
representation and warranty shall apply only to amendments or
supplements filed or made during the prospectus delivery period; and
provided, further, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company or
the Guarantor by an Underwriter of the Designated Securities through
the Representatives expressly for use in the Prospectus;
(d) Neither the Guarantor nor any of its subsidiaries has
sustained since the date of the latest audited financial statements
of the Guarantor included or incorporated by reference in the
Prospectus, and, to the knowledge of the Company, neither PolyGram
("PolyGram"), nor any of its subsidiaries has sustained since the
date of the latest audited financial statements of PolyGram included
or incorporated by reference in the Prospectus, any loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree which is
material to the Guarantor and its subsidiaries taken as a whole,
otherwise than as set forth or contemplated in the Prospectus; and,
since the respective dates as of which information is given in the
Registration Statements and the Prospectus, there has not been any
material decrease in the capital stock or increase in long-term debt
of the Guarantor and its subsidiaries taken as a whole or, to the
Company's knowledge, of PolyGram and its subsidiaries taken as a
whole, or any material adverse
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change, or any development involving a prospective material adverse
change, in or affecting the general affairs, management, financial
position, shareholders' equity or results of operations of the
Guarantor and its subsidiaries taken as a whole or, to the Company's
knowledge, of PolyGram and its subsidiaries taken as a whole,
otherwise than as set forth or contemplated in the Prospectus;
(e) Each of the Company and the Guarantor has been duly
incorporated and is validly existing as a corporation and, in the
case of the Guarantor, in good standing (in this Section 2
references to the good standing of any Canadian corporation refer
only to the fact that such corporation has a current certificate of
compliance) under the laws of the jurisdiction of its incorporation,
with power and authority to own its properties and conduct its
business as described in the Prospectus; each of the following
subsidiaries of the Guarantor has been duly incorporated and is
validly existing as a corporation in good standing under the laws of
its jurisdiction of incorporation, such subsidiaries being
hereinafter sometimes referred to as the "Specified Subsidiaries":
X. X. Xxxxxxx Corp., JES Developments, Inc., Universal Studios
Holding I Corp., and Universal Studios, Inc. ("Universal");
(f) All of the issued shares of capital stock of the Company
and each of the Specified Subsidiaries have been duly and validly
authorized and issued, are fully paid and non-assessable and, except
with respect to Universal, are owned directly or indirectly by the
Guarantor, free and clear of all liens, encumbrances, equities or
claims. The Guarantor indirectly owns 83.95% of the capital stock of
Universal Studios Holding I Corp., which indirectly holds all of the
capital stock of Universal, free and clear of all liens,
encumbrances, equities or claims;
(g) The Securities have been duly authorized, and, when the
Designated Securities are issued and delivered pursuant to the
Pricing Agreement and, in the case of any Contract Securities,
pursuant to Delayed Delivery Contracts with respect to such Contract
Securities, the Designated Securities will have been duly executed,
authenticated, issued and delivered and will constitute valid and
legally binding obligations of the Company enforceable in accordance
with their terms and entitled to the benefits provided by the
Indenture, which Indenture will be substantially in the form filed
as an exhibit to a Registration Statement; the Guarantees have been
duly authorized, and, upon the due execution, authentication,
issuance and delivery of the Designated Securities and due
endorsement of the Guarantees thereon, such Guarantees will have
been duly executed, issued and delivered and will constitute valid
and binding obligations of the Guarantor enforceable in accordance
with their terms and entitled to the benefits provided by the
Indenture; the Indenture has been duly authorized by the Company and
the Guarantor and, at each Time of Delivery (as defined in Section 4
hereof), the Indenture will be duly qualified under the Trust
Indenture Act and will constitute a valid and legally binding
instrument of the Company and the Guarantor, enforceable in
accordance with its terms; in each case subject to the qualification
that enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally, by general equitable
principles (regardless of whether such enforceability is considered
in a proceeding in equity or at law), by an implied covenant of good
faith and fair dealing and, in the case of the Guarantor, by the
provisions of the Currency Act (Canada) or the provisions of the
Code of Civil Procedure of Quebec relating to exclusive jurisdiction
of Quebec courts and imperative rules of law in certain matters; and
the Securities, the Guarantees and the Indenture conform to the
descriptions thereof in the Prospectus;
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(h) In the event any of the Designated Securities are
purchased pursuant to Delayed Delivery Contracts, each of such
Delayed Delivery Contracts has been duly authorized by the Company
and, when executed and delivered by the Company and the purchaser
named therein, will constitute a valid and legally binding agreement
of the Company enforceable in accordance with its terms, subject to
the qualification that enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally, by general
equitable principles (regardless of whether such enforceability is
considered in a proceeding in equity or at law), by an implied
covenant of good faith and fair dealing; and any Delayed Delivery
Contracts conform to the description thereof in the Prospectus;
(i) The issue and sale of the Securities, the issue of the
Guarantees and the compliance by the Company and the Guarantor, as
the case may be, with all of the provisions of the Securities, the
Guarantees, the Indenture, each of the Delayed Delivery Contracts,
if any, and the Pricing Agreement, and the consummation of the
transactions therein contemplated, will not conflict with or result
in a breach of any of the terms or provisions of, or constitute a
default under, or result in the creation or imposition of any lien,
charge or encumbrance upon any of the property or assets of the
Guarantor or any of its subsidiaries pursuant to the terms of, any
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Guarantor or any of its
subsidiaries is a party or by which the Guarantor or any of its
subsidiaries is bound or to which any of the property or assets of
the Guarantor or any of its subsidiaries is subject, nor will such
action result in any violation of the provisions of the charter
documents, as amended, or the By-Laws of the Guarantor or the
Company or any statute or any order, rule or regulation of any court
or governmental agency or body having jurisdiction over the
Guarantor or any of its subsidiaries or any of their respective
properties; and no consent, approval, authorization, order,
registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale of
the Securities, the issue of the Guarantees or the consummation by
the Company or the Guarantor of the other transactions contemplated
by the Pricing Agreement, the Indenture or any Delayed Delivery
Contract, except such as have been, or will have been prior to the
Time of Delivery, obtained or made under the Act, the Trust
Indenture Act, the Exchange Act and the Canada Business Corporations
Act and such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue Sky
laws in connection with the purchase and distribution of the
Designated Securities by the Underwriters; and
(j) Other than as set forth or contemplated in the Prospectus,
there are no legal or governmental proceedings pending to which the
Guarantor or any of its subsidiaries is a party or of which any
property of the Guarantor or any of its subsidiaries is the subject
which, if determined adversely to the Guarantor or any of Its
subsidiaries, would individually or in the aggregate have a material
adverse effect on the consolidated financial position, shareholders'
equity or results of operations of the Guarantor and its
subsidiaries; and, to the best of the Guarantor's and the Company's
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others.
3. Upon the execution of the Pricing Agreement applicable to the
Designated Securities and authorization by the Representatives of the release of
the Underwriters' Securities, the several Underwriters propose to offer the
Underwriters' Securities for sale upon the terms and conditions set forth in the
Prospectus. The several Underwriters also agree to comply with applicable
Canadian selling restrictions with respect to the Designated Securities.
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The Company may specify in Schedule II to the Pricing Agreement applicable
to any Designated Securities that the Underwriters are authorized to solicit
offers to purchase Designated Securities from the Company pursuant to delayed
delivery contracts (herein called "Delayed Delivery Contracts"), substantially
in the form of Annex II attached hereto but with such changes therein as the
Representatives and the Company may authorize or approve. If so specified, the
Underwriters will endeavor to make such arrangements, and as compensation
therefor the Company will pay to the Representatives, for the accounts of the
Underwriters, at the Time of Delivery, such commission, if any, as may be set
forth in such Pricing Agreement. Delayed Delivery Contracts, if any, are to be
with investors of the types described in the Prospectus and subject to other
conditions therein set forth. The Underwriters will not have any responsibility
in respect of the validity or performance of any Delayed Delivery Contracts.
The principal amount of Contract Securities to be deducted from the
principal amount of Designated Securities to be purchased by each Underwriter as
set forth In Schedule I to the Pricing Agreement applicable to such Designated
Securities shall be, in each case, the principal amount of Contract Securities
which the Company has been advised by the Representatives have been attributed
to such Underwriter, provided that, if the Company has not been so advised, the
amount of Contract Securities to be so deducted shall be, in each case, that
proportion of Contract Securities which the principal amount of Designated
Securities to be purchased by such Underwriter under such Pricing Agreement
bears to the total principal amount of the Designated Securities (rounded as the
Representatives may determine). The total principal amount of Underwriters'
Securities to be purchased by all the Underwriters pursuant to such Pricing
Agreement shall be the total principal amount of Designated Securities set forth
in Schedule I to such Pricing Agreement less the principal amount of the
Contract Securities. The Company will deliver to the Representatives not later
than 3:30 p.m., New York time, on the third business day preceding the Time of
Delivery (or such other time and date as the Representatives and the Company may
agree upon in writing) a written notice setting forth the principal amount of
Contract Securities.
4. Underwriters' Securities to be purchased by each Underwriter pursuant
to the Pricing Agreement, in definitive form to the extent practicable, and in
such authorized denominations and registered in such names as the
Representatives may request upon at least two business days' prior notice to the
Company, shall be delivered by or on behalf of the Company to the
Representatives for the account of such Underwriter, against payment by such
Underwriter or on its behalf of the purchase price therefor by the method and in
the funds specified in the Pricing Agreement, all at (a) the place and time and
date specified in the Pricing Agreement as the "First Time of Delivery" or at
such other place and time and date as the Representatives and the Company may
agree upon in writing or (b) with respect to any Optional Designated Securities,
the date specified in a notice delivered by Xxxxxxx, Xxxxx & Co. and Xxxxxx
Xxxxxxx & Co. Incorporated as described under "Time of Delivery" in the Pricing
Agreement, each such time and date being herein called a "Time of Delivery."
Concurrently with the delivery of and payment for the Underwriters'
Securities, the Company will deliver to the Representatives for the accounts of
the Underwriters a check payable to the order of the party designated in the
Pricing Agreement in the amount of any compensation payable by the Company to
the Underwriters in respect of any Delayed Delivery Contracts as provided in
Section 3 hereof and in the Pricing Agreement.
5. The Company agrees with each of the Underwriters of the Designated
Securities, and the Company has been advised by the Guarantor that the Guarantor
agrees for the benefit of such Underwriters:
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(a) To make no further amendment or any supplement to any
Registration Statement or Prospectus after the date of the Pricing
Agreement and prior to the Time of Delivery which shall be
disapproved by the Representatives promptly after reasonable notice
thereof; to advise the Representatives promptly of any such
amendment or supplement after the Time of Delivery and to furnish
the Representatives with copies thereof; in the case of the
Guarantor, to file promptly all reports and any definitive proxy or
information statements required to be filed by the Guarantor with
the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act subsequent to the date of the Prospectus and during the
prospectus delivery period; and during such same period to advise
the Representatives, promptly after it receives notice thereof, of
the time when any amendment to any Registration Statement has been
filed or has become effective or any supplement to the Prospectus or
any amended Prospectus has been filed or mailed for filing, of the
issuance by the Commission of any stop order or of any order
preventing or suspending the use of any prospectus relating to the
Securities, of the suspension of the qualification of the Securities
or the Guarantees for offering or sale in any jurisdiction, of the
initiation or threatening of any proceeding for any such purpose, or
of any request by the Commission for the amending or supplementing
of any Registration Statement or the Prospectus or for additional
information; and, in the event of the issuance at any such stop
order or of any such order preventing or suspending the use of any
prospectus relating to the Securities or suspending any such
qualification, to use promptly its best efforts to obtain its
withdrawal;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify the Designated
Securities and the related Guarantees for offering and sale under
the securities laws of such jurisdiction in the United States as the
Representatives may request and to comply with such laws so as to
permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the
distribution of such Securities and Guarantees, provided that in
connection therewith neither the Company nor the Guarantor shall be
required to qualify as a foreign corporation or to file a general
consent to service of process in any jurisdiction;
(c) To furnish the Underwriters with copies of the Prospectus
in such quantities as the Representatives may from time to time
reasonably request, and, if the delivery of a prospectus is required
at any time prior to the expiration of nine months after the time of
issue of such Prospectus in connection with the offering or sale of
the Designated Securities and if at such time any event shall have
occurred as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made when such Prospectus is delivered, not misleading,
or, if for any other reason it shall be necessary during such same
period to amend or supplement the Prospectus or to file under the
Exchange Act any document incorporated by reference in the
Prospectus in order to comply with the Act, the Exchange Act or the
Trust Indenture Act, to notify the Representatives and upon their
request to prepare and file with the Commission an amendment,
supplement or document which will correct such statement or omission
or effect such compliance and to furnish without charge to each
Underwriter as many copies as the Representatives may from time to
time reasonably request of any such amended Prospectus or supplement
to the Prospectus; and in case any Underwriter is required to
deliver a prospectus in connection with sales of any such Securities
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 as the Representatives may request of an
amended or supplemented Prospectus complying with Section 10(a)(3)
of the Act;
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(d) To make generally available to its security holders as
soon as practicable, but in any event not later than eighteen months
after the effective date of each Registration Statement, earning
statements of the Company and its subsidiaries and of the Guarantor
and its subsidiaries (which need not be audited in either case)
complying with Section 11(a) of the Act and the rules and
regulations of the Commission thereunder (including, at the option
of the Company and the Guarantor, Rule 158); and
(e) During the period beginning on the date of the Pricing
Agreement and continuing to and including the earlier of (i) the
termination of trading restrictions for the Designated Securities,
as notified to the Company by the Representatives, and (ii) the Time
of Delivery, without the prior written consent of the
Representatives, not to offer, sell, contract to sell or otherwise
dispose of (A) any debt securities of the Guarantor or the Company
which mature more than one year after such Time of Delivery and
which are substantially similar to the Designated Securities or (B)
any guarantees of the Guarantor of such debt securities of the
Company.
6. The Company covenants and agrees with the several Underwriters that the
Company will pay or cause to be paid the following: (i) the fees, disbursements
and expenses of the Company's and the Guarantor's counsel and accountants in
connection with the registration of the Securities and the Guarantees under the
Act and all other expenses in connection with the preparation, printing and
filing of the Registration Statements, any Preliminary Prospectus and the
Prospectus and amendments and supplements (except as otherwise expressly
provided in Section 5(c) hereof) thereto and the mailing and delivering of
copies thereof to the Underwriters and dealers; (ii) the cost of printing or
producing any Agreement among Underwriters, these Underwriting Agreement General
Terms and Conditions, the Pricing Agreement, the Indenture, any Delayed Delivery
Contracts, any Blue Sky and Legal Investment Memoranda and any other documents
in connection with the offering, purchase, sale and delivery of the Securities;
(iii) all expenses in connection with the qualification of the Securities and
the Guarantees for offering and sale under state securities laws as provided in
Section 5(b) hereof, including the fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection with the
Blue Sky and Legal Investment Memoranda and any other similar documents in
connection with the offering, purchase, sale and delivery of the Securities;
(iv) any fees charged by securities rating services for rating the Securities;
(v) any filing fees incident to any required review by the National Association
of Securities Dealers, Inc. of the terms of the sale of the Securities; (vi) the
cost of preparing the Securities and the Guarantees; (vii) the fees and expenses
of any Trustee and any agent of any Trustee and the fees and disbursements of
counsel for any Trustee in connection with the Indenture, the Securities and the
Guarantees; and (viii) all other costs and expenses incident to the performance
of its obligations hereunder and under any Delayed Delivery Contracts which are
not otherwise specifically provided for in this Section. It is understood,
however, that, except as provided in this Section, Section 5(c), Section 8 and
Section 11 hereof, the Underwriters will pay all of their own costs and
expenses, including the fees of their counsel, transfer taxes on resale of any
of the Securities by them, and any advertising expenses connected with any
offers they may make.
7. The obligations of the Underwriters as to the Designated Securities to
be delivered at each Time of Delivery under the Pricing Agreement shall be
subject, in the discretion of the Representatives, to the condition that all
representations and warranties and other statements of the Company in or
incorporated in the Pricing Agreement are, at and as of such Time of Delivery,
true and correct, the condition that the Company and the Guarantor shall have
performed all of their respective obligations hereunder theretofore to be
performed, and the following additional conditions:
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(a) No stop order suspending the effectiveness of the
Registration Statements shall have been issued and no proceeding for
that purpose shall have been initiated or threatened by the
Commission; and all requests for additional information on the part
of the Commission shall have been complied with to the
Representatives' reasonable satisfaction;
(b) Xxxxxxxx & Xxxxxxxx, United States counsel for the
Underwriters, shall have furnished to the Representatives such
opinion or opinions, dated such Time of Delivery, with respect to
the incorporation of the Company, the validity of the Indenture, the
Designated Securities, the related Guarantees, the Delayed Delivery
Contracts, if any, the Registration Statements, the Prospectus as
amended or supplemented and other related matters as the
Representatives may reasonably request, and such counsel shall have
received such papers and information as they may reasonably request
to enable them to pass upon such matters (such counsel being
entitled to state that they have assumed that any document referred
to in their opinion and executed by the Guarantor has been duly
authorized, executed and delivered pursuant to Canadian law and
being entitled to rely, as to all matters of Canadian law, upon the
opinion of Canadian counsel described in paragraph (d) of this
Section 7, and, as to all matters of law of the State of Indiana,
upon an opinion of Xxxxxx & Xxxxxxxxx);
(c) Xxxxxxx Xxxxxxx & Xxxxxxxx, United States counsel for the
Company and the Guarantor, shall have furnished to the
Representatives their written opinion, dated such Time of Delivery,
in form and substance satisfactory to the Representatives (such
counsel being entitled to state that they have assumed that any
document referred to in their opinion and executed by the Guarantor
has been duly authorized, executed and delivered pursuant to
Canadian law and being entitled to assume the correctness, as to all
matters of Canadian law, of the opinion of Canadian counsel
described in paragraph (d) of this Section 7) (such counsel also
being entitled to rely in respect of matters of law other than of
United States federal or New York law solely upon opinions of local
counsel and as to matters of fact upon certificates of public
officials and of officers of the Company or the Guarantor or their
respective subsidiaries, provided that such counsel shall state that
they believe that both the Representatives and they are justified in
relying upon such opinions and certificates), to the effect that:
(i) The Company has been duly incorporated and is
validly existing and in good standing as a corporation
under the laws of the State of Indiana; and each of X. X.
Xxxxxxx Corp., JES Developments, Inc. and Universal
Studios, Inc. has been duly incorporated and is validly
existing and in good standing as a corporation under the
laws of the State of Delaware;
(ii) The Company has been duly qualified as a foreign
corporation for the transaction of business and is in good
standing under the laws of the State of New York;
(iii) All of the outstanding shares of capital stock of
the Company have been duly authorized by the Company and are
validly issued, fully paid and non-assessable and are owned
indirectly by the Guarantor, to the knowledge of such counsel,
free and clear of any adverse claim; all of the outstanding
shares of capital stock of X. X. Xxxxxxx Corp. have been duly
authorized by X.X. Xxxxxxx Corp. and are validly issued, are
fully paid and non-assessable and are owned indirectly by the
Guarantor, to the knowledge of such counsel, free and clear of
any adverse claim; and all of the outstanding shares of
capital stock of JES Developments, Inc. have been duly
authorized by JES Developments, Inc. and are validly issued,
are
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fully paid and non-assessable, and are owned indirectly by the
Company, to the knowledge of such counsel, free and clear of
any adverse claim; and all of the outstanding shares of
capital stock of Universal Studios, Inc. have been duly
authorized by Universal Studios, Inc. and are validly issued,
are fully paid and non-assessable, and such that are owned by
the Guarantor are owned, to the knowledge of such counsel,
free and clear of any adverse claim;
(iv) To such counsel's knowledge there are no legal or
governmental proceedings pending to which the Guarantor or any
of its subsidiaries is a party or of which any property of the
Guarantor or any of its subsidiaries is the subject which are
required to be described in the Prospectus which are not
described as required, and to such counsel's knowledge, no
such proceedings have been asserted by governmental
authorities or by others;
(v) The Pricing Agreement has been duly authorized,
executed and delivered by the Company;
(vi) In the event any of the Designated Securities are
to be purchased pursuant to Delayed Delivery Contracts, each
of such Delayed Delivery Contracts has been duly authorized,
executed and delivered by the Company and, assuming such
Contract has been duly executed and delivered by the purchaser
named therein, constitutes a valid and legally binding
agreement of the Company enforceable against the Company in
accordance with its terms; and any Delayed Delivery Contracts
conform to the description thereof in the Prospectus;
(vii) The Designated Securities have been duly
authorized, executed and delivered and, assuming the due
authentication thereof by the Trustee, and upon payment and
delivery in accordance with the Pricing Agreement, will
constitute valid and legally binding obligations of the
Company enforceable against the Company in accordance with
their terms and entitled to the benefits of the Indenture; the
Contract Securities, if any, when executed, authenticated and
issued pursuant to the Indenture and Delayed Delivery
Contracts, and upon payment and delivery in accordance with
the Delayed Delivery Contracts, will constitute valid and
legally binding obligations of the Company enforceable against
the Company in accordance with their terms and entitled to the
benefits of the Indenture; assuming the Guarantees relating to
the Designated Securities have been duly authorized, endorsed
on the Designated Securities and executed, issued and
delivered in accordance with Canadian law, the Guarantees will
constitute valid and legally binding obligations of the
Guarantor enforceable in accordance with their terms and
entitled to the benefits of the Indenture; and the Designated
Securities, such Guarantees and the Indenture conform to the
descriptions thereof in the Prospectus;
(viii) The Indenture has been duly authorized, executed
and delivered by the Company and duly qualified under the
Trust Indenture Act and, assuming the due authorization,
execution and delivery thereof by the Guarantor and the
Trustee (other than Section 516 thereof as to which such
counsel need not express any opinion), constitutes a valid and
legally binding instrument of the Company and the Guarantor
enforceable in accordance with its terms;
(ix) The issue and sale of the Designated Securities
being delivered at such Time of Delivery and the compliance by
the Company with all of the
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provisions of the Pricing Agreement will not breach or result
in a default under any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument filed as an
exhibit to the Registration Statement or any document or
filing incorporated by reference therein to which the
Guarantor or any of its subsidiaries is a party or by which
the Guarantor or any of its subsidiaries is bound or to which
any of the property or assets of the Guarantor or any of its
subsidiaries is subject, nor will such action violate the
charter documents, as amended, or the By-Laws of the Company
or, with respect to the United States and the States of New
York and Indiana, any statute or, to the knowledge of such
counsel, any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the
Guarantor or any of its subsidiaries or any of their
properties; and, with respect to the United States and the
States of New York and Indiana, no consent, approval,
authorization, order, registration or qualification of or with
any such court or governmental agency or body is required for
the issue and sale of the Designated Securities, the issue of
the related Guarantees and the compliance by the Company and
the Guarantor with the provisions of the Pricing Agreement,
except such as have been obtained or made under the Act, the
Trust Indenture Act and the Exchange Act, and such consents,
approvals, authorizations, registrations or qualifications as
may be required under state securities or Blue Sky laws in
connection with the purchase and distribution of the
Designated Securities by the Underwriters;
(x) Neither the Company nor the Guarantor is an
"investment company" within the meaning of the Investment
Company Act of 1940, as amended; and
(xi) Such counsel does not know of any contracts or
other documents of a character required to be filed as an
exhibit to any of the Registration Statements or required to
be incorporated by reference into the Prospectus or required
to be described in any of the Registration Statements or in
the Prospectus which are not filed or incorporated by
reference or described as required.
Such opinion shall also include a paragraph to the effect that such
counsel has not independently verified the accuracy, completeness or fairness of
the statements made or included in the Registration Statements, the Prospectus
and the documents incorporated by reference in the Prospectus and that such
counsel takes no responsibility therefor. Such opinion shall also state that in
the course of the preparation by the Company and the Guarantor of the
Registration Statements and the Prospectus, such counsel participated in
conferences with certain officers and employees of the Company and the Guarantor
and with representatives of the independent accountants of the Guarantor. Such
opinion shall state that such counsel did not prepare the documents incorporated
by reference in the Prospectus; however, such counsel discussed such documents
with the Guarantor prior to their filing with the Commission, and that based
upon such counsel's examination of the Registration Statements, the Prospectus
and the documents incorporated by reference in the Prospectus, such counsel's
investigations made in connection with the preparation of the Registration
Statements and the Prospectus and such counsel's participation in the
conferences referred to above, (i) such counsel is of the opinion that each
Registration Statement and any amendment thereto, as of its respective effective
date, and the Prospectus and any amendment or supplement thereto, as of their
respective issue dates, complied as to form in all material respects with the
requirements of the Act and the Trust Indenture Act and the applicable rules and
regulations of the Commission thereunder, and that the documents incorporated by
reference in the Prospectus and any amendment or supplement thereto complied as
to form when they became effective or were filed in all material respects with
the requirements of the Act or the Exchange Act, as the case may
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be, and the applicable rules and regulations of the Commission thereunder,
except that in each case such counsel need express no opinion with respect to
the financial statements or other financial data contained or incorporated by
reference in any Registration Statement or any amendment thereto, the Prospectus
or any amendment or supplement thereto, or the documents incorporated by
reference in the Prospectus or any amendment or supplement thereto, and (ii)
such counsel has no reason to believe that any Registration Statement or any
amendment thereto (including the documents incorporated by reference in the
Prospectus), as of its respective effective date (or, with respect to any
Registration Statement as to which an Annual Report on Form 10-K of the
Guarantor has been filed subsequent to the effective date thereof and is deemed
to be incorporated by reference therein, as of the date of filing of the most
recent such Annual Report on Form 10-K) contained any untrue statement of a
material fact or omitted to state any material fact required to be stated
therein or necessary in order to make the statements therein not misleading or
that the Prospectus or any amendment at supplement thereto (including the
documents incorporated by reference therein) contains any untrue statement of a
material fact or omits to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, except that in each case such counsel need express no
opinion with respect to the financial statements or other financial data
contained or incorporated by reference in any Registration Statement or any
amendment thereto, the Prospectus or any amendment or supplement thereto, or the
documents incorporated by reference in the Prospectus or any amendment or
supplement thereto.
Such opinion may also state that the opinions set forth in paragraphs
(vi), (vii) and (viii) above with respect to the Company's and the Guarantor's
obligations under the Delayed Delivery Contracts, the Designated Securities, the
Contract Securities, the Guarantees and the Indenture are subject to the effects
of bankruptcy, insolvency, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally and by general equitable
principles (regardless of whether such enforceability is considered in a
proceeding in equity or at law), by an implied covenant of good faith and fair
dealing, and, in the case of the Guarantor, to any limitations under Canadian
law set forth in the opinion described in paragraph (d) of this Section 7.
(d) Xxxxxxx Xxxxxxxx & Xxxxxxxx, Canadian counsel for the Guarantor, shall
have furnished to the Representatives their written opinion, dated such Time of
Delivery, in form and substance satisfactory to the Representatives (such
counsel being entitled to state that they have assumed that any document
referred to in their opinion and executed by the Company has been duly
authorized, executed and delivered pursuant to United States and United States
state law and being entitled to rely, as to all matters of United States or
United States state law, solely upon the opinion of United States counsel
described in paragraph (c) of this Section 7) (such counsel also being entitled
to rely in respect of matters of non-Canadian law solely upon opinions of local
counsel and as to matters of fact upon certificates of officers of the Company
or the Guarantor or its subsidiaries, provided that such counsel shall state
that they believe both the Representatives and they are justified in relying
thereon) to the effect that:
(i) The Guarantor has been duly incorporated and is validly
existing as a corporation under the laws of Canada with corporate
power and authority to own its properties and conduct its business
as described in the Prospectus, and has received a certificate of
compliance under the Canada Business Corporation Act;
(ii) The Guarantor has been duly qualified for the transaction
of business under the laws of the Province of Quebec;
(iii) The authorized capital of the Guarantor consists of such
shares as are at the Time of Delivery set forth in such counsel's
opinion, of which, as at the close of
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business on a specified date within 60 days of the Time of Delivery,
such number of shares as are set forth in such counsel's opinion
were outstanding;
(iv) To the best of such counsel's knowledge and other than as
set forth or contemplated in the Prospectus, there are no legal or
governmental proceedings pending in Canada to which the Guarantor or
any of its subsidiaries is a party or of which any property of the
Guarantor or any of its subsidiaries is the subject, which, if
determined adversely to the Guarantor or any of its subsidiaries,
would individually or in the aggregate be, in the opinion of such
counsel, material to the Guarantor and its subsidiaries taken as a
whole; and to the best of such counsel's knowledge, no such
proceedings have been threatened by governmental authorities or by
others;
(v) The Guarantees of the Underwriters' Securities and the
Contract Securities, if any, have been duly authorized; the
Guarantees of the Underwriters' Securities have been duly endorsed
on the Underwriters' Securities and executed, and upon the due
execution, authentication, issuance and delivery of the
Underwriters' Securities pursuant to the Pricing Agreement and the
Indenture, such Guarantees will have been duly issued and delivered;
the Guarantees of the Contract Securities, if any, when endorsed on
the Contract Securities and executed, and upon the execution,
authentication, issuance and delivery of the Contract Securities
pursuant to the Indenture and the Delayed Delivery Contracts, if
any, will have been duly issued and delivered; and, assuming that
the Guarantees of the Underwriters' Securities and the Contract
Securities, if any, constitute valid and legally binding obligations
of the Guarantor enforceable in accordance with their terms under
the laws of the State of New York, such Guarantees will constitute
valid and legally binding obligations of the Guarantor under the
laws of the Province of Quebec and the laws of Canada applicable
therein, and, subject to the matters referred to in paragraph (vii)
below, will be entitled to the benefits provided by the Indenture;
and such Guarantees will be enforceable in accordance with their
terms under the laws of the Province of Quebec and the laws of
Canada applicable therein, subject, as to enforcement, to general
principles of equity or principles to substantially the same effect
in civil law to bankruptcy, insolvency, reorganization, moratorium
and other laws relating to affecting creditors' rights generally,
subject to the qualification that specific performance and
injunction are remedies which are available only in the discretion
of the court before which any proceedings therefor may be brought,
subject to the provisions of the Currency Act (Canada), which
preclude a court in Canada from giving a judgment in a currency
other than Canadian currency and subject to the provisions of the
Criminal Code (Canada) which preclude the enforcement of any
obligation to pay interest at an effective annual rate of interest
that exceeds 60%;
(vi) The Indenture has been duly authorized, executed and
delivered by the Guarantor and, assuming that the Indenture has been
duly authorized, executed and delivered by the Company and the
Trustee and is binding on the Company and the Trustee, and assuming
that the Indenture constitutes a valid and legally binding
instrument of the Guarantor enforceable in accordance with its terms
under the laws of the State of New York, the Indenture (other than
Section 516 thereof, as to which such counsel need express no
opinion) constitutes a valid and legally binding instrument of the
Guarantor under the laws of the Province of Quebec and the laws of
Canada applicable therein, enforceable in accordance with its terms
under the laws of the Province of Quebec and the laws of Canada
applicable therein, subject, as to enforcement, to general
principles of equity or principles to substantially the same effect
in civil law, to bankruptcy, insolvency, reorganization, moratorium
and other laws relating to or affecting creditors' rights generally,
subject to the qualification that specific performance and
injunction are remedies which are available only in the discretion
of the court before which any proceedings therefor may be brought,
subject
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to the provisions of the Currency Act (Canada), which preclude a
court in Canada from giving a judgment in a currency other than
Canadian currency and subject to the provisions of the Criminal Code
(Canada) which preclude the enforcement of any obligation to pay
interest at an effective annual rate of interest that exceeds 60%;
and all taxes and fees required under the laws of Canada or the
Province of Quebec to be paid with respect to the execution of the
Indenture and the issuance of the Guarantees relating to the
Designated Securities have been paid;
(vii) The issue and sale of the Designated Securities being
delivered at such Time of Delivery and the related Guarantees and
the compliance by the Guarantor with all of the provisions of the
Designated Securities, the related Guarantees and the Indenture and
the consummation of the transactions therein contemplated will not
conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any
of the property or assets of the Guarantor or any of its
subsidiaries pursuant to the terms of, any indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument known to
such counsel to which the Guarantor or any of its subsidiaries is a
party or by which the Guarantor or any of its subsidiaries is bound
or to which any of the property or assets of the Guarantor or any of
its subsidiaries is subject, nor will such action result in any
violation of the provisions of the charter documents, as amended, or
the By-Laws of the Guarantor or, with respect to Canada or the
Province of Quebec (or, insofar as such orders are concerned, any
other Province thereof), any statute or, to the knowledge of such
counsel, any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Guarantor or any of its
subsidiaries or any of their properties; and no consent, approval,
authorization, order, registration or qualification of or with any
such court or governmental agency or body of Canada or the Province
of Quebec is required for the issue and sale outside Canada of the
Designated Securities and the related Guarantees or the consummation
by the Company or the Guarantor of the other transactions
contemplated by the Pricing Agreement, each of the Delayed Delivery
Contracts, if any, or the Indenture, other than those which have
been obtained or made;
(viii) No filing or registration of the Registration
Statements, any Preliminary Prospectus or the Prospectus is
necessary under the laws of Canada or the Province of Quebec in
connection with the issue and sale outside Canada of the Designated
Securities and the related Guarantees pursuant to the Pricing
Agreement except for those which have been made;
(ix) No tax or stamp duty under the laws of Canada or the
Province of Quebec is payable in connection with the creation, issue
and delivery to the Underwriters of the Designated Securities or the
related Guarantees;
(x) Under the laws of Canada and of the Province of Quebec
currently in force and under current practice of the courts of the
Province of Quebec at the date of such opinion, such courts would
give effect to the choice of New York law as the law governing the
Securities, the Guarantees and the Indenture, subject to proof of
such laws as a question of fact; provided that such choice of law is
bona fide, (in the sense that it was not made with a view to
avoiding the consequences of the laws of any other jurisdiction) and
provided that such choice of law is not contrary to public order, as
that term is applied by the courts in the Province of Quebec. Such
opinion shall also state that in such counsel's opinion, there are
no reasons under the laws of the Province of Quebec or the laws of
Canada applicable therein for disregarding the choice of New York
law to govern the Securities, the Guarantees and the Indenture;
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(xi) A holder in respect of a Security and the Guarantee
endorsed xxxxxxx, and the Trustee in respect of the Indenture, is
each entitled (subject to the terms of the Indenture) to sue as
plaintiff in the courts of the Province of Quebec for the
enforcement of its respective rights against the Guarantor; and such
access will not be subject to any conditions which are not
applicable to nationals or residents of Canada or domestic
corporations, except as described in such opinion and reasonably
acceptable to the Representatives; and
(xii) Any statements with respect to matters of Canadian law
and regulations set forth in the Prospectus are accurate in all
material respects. Such opinion shall also state that (i) such
counsel did not prepare the Registrations Statements, the Prospectus
or any documents incorporated by reference in the Prospectus and
(ii) such counsel has no reason to believe that any Registration
Statement or any amendment thereto (including the documents
incorporated by reference in the Prospectus), as of its respective
effective date (or, with respect to any Registration Statement as to
which an Annual Report on Form 10-K of the Guarantor has been filed
subsequent to the effective date thereof and is deemed to be
incorporated by reference therein, as of the date of filing of the
most recent such Annual Report on Form 10-K) (other than the
financial statements and other financial and statistical information
contained therein, as to which such counsel need express no belief)
contained any untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary in
order to make the statements therein concerning the Guarantor not
misleading or that the Prospectus or any amendment or supplement
thereto (including the documents incorporated by reference in the
Prospectus) contains any untrue statement of a material fact or
omits to state any material fact necessary in order to make the
statements therein, in the light of circumstances under which they
were made, not misleading; except that in each case such counsel
need express no opinion with respect to the financial statements or
other financial or statistical data contained or incorporated by
reference in the Registration Statement or the Prospectus or as to
the accuracy, completeness or fairness of the statements contained
in the Registration Statement or the Prospectus and have made no
independent verification or investigation thereof, except to the
extent set forth in the first sentence of this paragraph.
Such opinion shall also state that any final and conclusive judgment
obtained against the Guarantor in the United States in respect of the Guarantees
or the Indenture would be recognized and enforced by the courts of the Province
of Quebec provided that (A) the United States court rendering such judgment had
jurisdiction over the Guarantor, as determined under the relevant provisions of
the laws of the Province of Quebec; (B) such judgment is not subject to ordinary
remedies (such as appeal or judicial review) and is final and enforceable in the
United States; (C) such judgment was not rendered in contravention of the
fundamental principles of procedure (such as notice of fair hearing, right to be
heard, right to an independent and impartial tribunal and rules against bias);
(D) there were no proceedings pending in the Province of Quebec and no judgment
rendered in the Province of Quebec or in another jurisdiction meeting the
necessary conditions for recognition in the Province of Quebec between the same
parties, based on the same facts and having the same object; (E) such judgment
is not manifestly inconsistent with public order as understood in international
relations; (F) such judgment does not enforce obligations arising from foreign
revenue laws, unless there is reciprocity, or arising from other laws of a
public nature, such as expropriatory or penal laws; (G) the action to enforce
such judgment is commenced in the Province of Quebec within three years after
the date of such judgment; and (H) such judgment is not contrary to any order
made by the Attorney-General of Canada under the Foreign Extra-territorial
Measures Act (Canada) or by the Competition Tribunal under the Competition Act
(Canada). Such opinion may also include other assumptions and exclusions as are
consistent with the laws of the Province of Quebec and are satisfactory to the
Underwriters.
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(e) At the Time of Delivery, the independent accountants of the
Guarantor who have certified the financial statements of the Guarantor and its
subsidiaries included or incorporated by reference in the Registration
Statement, and the independent accountants of PolyGram who have certified the
financial statements of PolyGram and its subsidiaries included or incorporated
by reference in the Registration Statement, shall each have furnished to the
Representatives letters dated the date hereof and the Time of Delivery 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 other financial
information included in the Registration Statement and Prospectus;
(f) (i) Neither the Guarantor nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements of the
Guarantor included or incorporated by reference in the Prospectus, and neither
PolyGram nor any of its subsidiaries shall have sustained since the date of the
latest audited financial statements of PolyGram included or incorporated by
reference in the Prospectus, any loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by insurance,
or from any labor dispute or court or governmental action, order or decree,
otherwise than as set forth or contemplated in the Prospectus as amended or
supplemented, and (ii) since the respective dates as of which information is
given in the Prospectus there shall not have been any change in the capital
stock or long-term debt of the Guarantor or any of its subsidiaries or any
change, or any development involving a prospective change, in or affecting the
general affairs, management, financial position, shareholders' equity or results
of operations of the Guarantor and its subsidiaries or of PolyGram and its
subsidiaries, otherwise than as set forth or contemplated in the Prospectus, the
effect of which, in any such case described in Clause (i) or (ii), is in the
judgment of the Representatives so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the delivery
of the Designated Securities on the terms and in the manner contemplated in the
Prospectus;
(g) Subsequent to the date of the Pricing Agreement there shall not
have occurred any of the following: (i) a suspension or material limitation in
trading in securities generally on the New York Stock Exchange; (ii) a general
moratorium on commercial banking activities in Canada or New York declared by
Canadian federal, Canadian Provincial, United States federal or New York State
authorities; (iii) a change or development involving a prospective change in
United States or Canadian taxation directly affecting the Underwriters'
Securities or the related Guarantees or the imposition of exchange controls by
the United States or Canada, the effect of which in the judgment of the
Representatives after consultation with the Guarantor makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Underwriters' Securities, including the related Guarantees, on the terms and in
the manner contemplated in the Prospectus; or (iv) the outbreak or escalation of
hostilities involving the United States or Canada or the declaration by the
United States or Canada of a national emergency or war if the effect of any such
event specified in this Clause (iv) in the judgment of the Representatives makes
it impracticable or inadvisable to proceed with the public offering or the
delivery of the Underwriters' Securities on the terms and in the manner
contemplated in the Prospectus; and
(h) The Company and the Guarantor shall have furnished or caused to be
furnished to the Representatives at such Time of Delivery certificates of
officers of the Company and the Guarantor satisfactory to the Representatives as
to the accuracy of the representations and warranties of the Company herein at
and as of such Time of Delivery, as to the performance by them of all of their
obligations hereunder to be performed at or prior to such Time of Delivery and
as to the matters set forth in subsections (a) and (f) of this Section.
8. (a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter may become
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subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, any preliminary prospectus supplement, any Registration
Statement, the Prospectus or any other prospectus relating to the Securities, or
any amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
will reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or defending any
such action or claim as such expenses are incurred; provided, however, that the
Company shall not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in any Preliminary
Prospectus, any preliminary prospectus supplement, any Registration Statement,
the Prospectus or any other prospectus relating to the Securities, or any such
amendment or supplement, in reliance upon and in conformity with written
information furnished to the Company or the Guarantor by any Underwriter of
Designated Securities through the Representatives expressly for use therein.
(b) Each Underwriter will indemnify and hold harmless the Company and
the Guarantor against any losses, claims, damages or liabilities to which the
Company or the Guarantor may become subject, under the Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue statement
of a material fact contained in any Preliminary Prospectus, any preliminary
prospectus supplement, any Registration Statement, the Prospectus or any other
prospectus relating to the Securities, or any amendment or supplement thereto,
or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made in any Preliminary Prospectus, any preliminary
prospectus supplement, any Registration Statement, the Prospectus or any other
prospectus relating to the Securities, or any such amendment or supplement in
reliance upon and in conformity with written information furnished to the
Company or the Guarantor by such Underwriter through the Representatives
expressly for use therein; and will reimburse the Company and the Guarantor for
any legal or other expenses reasonably incurred by the Company or the Guarantor
in connection with investigating or defending any such action or claim as such
expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a)
or (b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and,
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under such subsection for any legal expenses of
other counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than reasonable
costs of investigation. In no event shall the indemnifying party be liable for
the fees and expenses of more than one 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
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allegations or circumstances, provided that this sentence shall not impair any
right of an indemnified party to be indemnified for its reasonable costs of
investigation. An indemnifying party shall not be liable for any settlement of
any action or claim for monetary damages which an indemnified party may effect
without the indemnifying party's consent, which consent shall not be
unreasonably withheld.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect, in
the case of the Company and the Guarantor, the relative benefits received by the
Company (the same also being attributable to the Guarantor) and, in the case of
the Underwriters of the Designated Securities, the compensation received by them
from the offering of the Designated Securities, respectively, to which such
loss, claim, damage or liability (or action in respect thereof) relates. If,
however, the allocation provided by the immediately preceding sentence is not
permitted by applicable law or if the indemnified party failed to give the
notice required under subsection (c) above, then each indemnifying party shall
contribute to such amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative benefits and
compensation but also the relative fault of the Company and the Guarantor on the
one hand and the Underwriters of the Designated Securities on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as any
other relevant equitable considerations. The relative benefits received by the
Company on the one hand and the compensation received by such Underwriters on
the other shall be deemed to be in the same proportion as the total net proceeds
from such offering (before deducting expenses) received by the Company bear to
the total underwriting discounts and commissions received by such Underwriters.
The relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or the Guarantor on the one hand or such Underwriters on
the other and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company and
the Underwriters agree that it would not be just and equitable if contribution
pursuant to this subsection (d) 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 subsection (d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or liabilities (or
actions in respect thereof) referred to above in this subsection (d) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this subsection (d), no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the Designated Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The obligations of the Underwriters
of Designated Securities in this subsection (d) to contribute are several in
proportion to their respective underwriting obligations with respect to such
Securities and not joint.
(e) The obligations of the Company under this Section 8 shall be in
addition to any liability which the Company and the Guarantor may otherwise have
and shall extend, upon the same terms and conditions, to each person, if any,
who controls any Underwriter within the meaning of
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the Act; and the obligations of the Underwriters under this Section 8 shall be
in addition to any liability which the respective Underwriters may otherwise
have and shall extend, upon the same terms and conditions, to each officer and
director of the Company or the Guarantor and to each person, if any, who
controls the Company or the Guarantor within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase
the Underwriters' Securities which it has agreed to purchase under the Pricing
Agreement, the Representatives may in their discretion arrange for themselves or
another party or other parties to purchase such Underwriters' Securities on the
terms contained herein. If within thirty-six hours after such default by any
Underwriter the Representatives do not arrange for the purchase of such
Underwriters' Securities, then the Company shall be entitled to a further period
of thirty-six hours within which to procure another party or other parties
satisfactory to the Representatives to purchase such Underwriters' Securities on
such terms. In the event that, within the respective prescribed periods, the
Representatives notify the Company that they have so arranged for the purchase
of such Underwriters' Securities, or the Company notifies the Representatives
that it has so arranged for the purchase of such Underwriters' Securities, the
Representatives or the Company shall have the right to postpone such Time of
Delivery for a period of not more than seven days, in order to effect whatever
changes may thereby be made necessary in any Registration Statement or the
Prospectus, or in any other documents or arrangements, and the Company agrees to
file promptly any amendments or supplements to any Registration Statement or the
Prospectus which in the opinion of the Representatives may thereby be made
necessary. The term "Underwriter" as used in the Pricing Agreement shall include
any person substituted under this Section with like effect as if such person had
originally been a party to the Pricing Agreement.
(b) If, after giving effect to any arrangements for the purchase of the
Underwriters' Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of such Underwriters' Securities which remains
unpurchased does not exceed one-eleventh of the aggregate principal amount of
the Designated Securities to be purchased at such Time of Delivery, then the
Company shall have the right to require each non-defaulting Underwriter to
purchase the principal amount of Underwriters' Securities which such Underwriter
agreed to purchase under the Pricing Agreement and, in addition, to require each
non-defaulting Underwriter to purchase its pro rata share (based on the
principal amount of Designated Securities which such Underwriter agreed to
purchase at such Time of Delivery under the Pricing Agreement) of the
Underwriters' Securities of such defaulting Underwriter or Underwriters for
which such arrangements have not been made; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Underwriters' Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of Underwriters' Securities which remains unpurchased
exceeds one-eleventh of the aggregate principal amount of the Designated
Securities, as referred to in subsection (b) above, or if the Company shall not
exercise the right described in subsection (b) above to require non-defaulting
Underwriters to purchase Underwriters' Securities of a defaulting Underwriter or
Underwriters, then the Pricing Agreement shall thereupon terminate, without
liability on the part of any non-defaulting Underwriter or the Company, except
for the expenses to be borne by the Company and the Underwriters as provided in
Section 6 hereof and the indemnity and contribution agreements in Section 8
hereof; but nothing herein shall relieve a defaulting Underwriter from liability
for its default.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Company and the Guarantor and the several
Underwriters, as set forth or incorporated by reference in the Pricing Agreement
or made by or on behalf of them, respectively,
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pursuant to the Pricing Agreement, shall remain in full force and effect,
regardless of any investigation (or any statement as to the results thereof)
made by or on behalf of any Underwriter or any controlling person of any
Underwriter, or the Company or the Guarantor, or any officer or director or
controlling person thereof, and shall survive delivery of and payment for the
Securities.
Anything herein to the contrary notwithstanding, the indemnity
agreement of the Company in subsection (a) of Section 8 hereof, the
representations and warranties in subsections (b) and (c) of Section 2 hereof
and any representation or warranty as to the accuracy of the Registration
Statement or the Prospectus contained in any certificate furnished by the
Company or the Guarantor pursuant to Section 7 hereof, insofar as they may
constitute a basis for indemnification for liabilities (other than payment by
the Company of expenses incurred or paid in the successful defense of any
action, suit or proceeding) arising under the Act, shall not extend to the
extent of any interest therein of a controlling person or partner of an
Underwriter who was a director, officer or controlling person of the Guarantor
when any Registration Statement became effective (or when any amendment thereto
made by the Company prior to the Time of Delivery became effective), except in
each case to the extent that an interest of such character shall have been
determined by a court of appropriate jurisdiction as not against public policy
as expressed in the Act. Unless in the opinion of counsel for the Company and
the Guarantor the matter has been settled by controlling precedent, the Company
will, if a claim for such indemnification is asserted, submit to a court of
appropriate jurisdiction the question whether such interest is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
11. If the Pricing Agreement shall be terminated pursuant to Section 9
hereof, the Company shall not then be under any liability to any Underwriter
with respect to the Designated Securities covered by the Pricing Agreement
except as provided in Section 6 and Section 8 hereof; but, if for any other
reason any Underwriters' Securities are not delivered by or on behalf of the
Company as provided herein, the Company will reimburse the Underwriters through
the Representatives for all out-of-pocket expenses approved in writing by the
Representatives, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and
delivery of such Designated Securities not so delivered, but the Company shall
then be under no further liability to any Underwriter with respect to such
Designated Securities except as provided in Section 6 and Section 8 hereof.
12. In all dealings under the Pricing Agreement, the Representatives of
the Underwriters of Designated Securities shall act on behalf of each of such
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by such Representatives jointly by such of the Representatives, if any, as
may be designated for such purpose in such Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be in
writing or by telegram if promptly confirmed in writing, and if to the
Underwriters shall be sufficient in all respects if delivered or sent by
registered mail to the address of the Representatives as set forth in the
Pricing Agreement; and if to the Company shall be sufficient in all respects if
delivered or sent by registered mail to the address of the Company set forth in
the most recent Registration Statement, Attention: Executive Vice President,
Finance; provided, however, that any notice to an Underwriter pursuant to
Section 8(c) hereof shall be delivered or sent by registered mail to such
Underwriter at its address set forth in its Underwriters' Questionnaire, or
telex constituting such Questionnaire, which address will be supplied to the
Company by the Representatives upon request.
13. The Pricing Agreement shall be binding upon, and inure solely to
the benefit of, the Underwriters, the Company, the Guarantor, and, to the extent
provided in Section 8 and Section 10 hereof, the officers and directors of the
Company or of the Guarantor and each person who controls
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the Company, the Guarantor or any Underwriter, and their respective heirs,
executors, administrators, successors and assigns, and no other person shall
acquire or have any right under or by virtue of such Pricing Agreement. No
purchaser of any of the Securities from any Underwriter shall be deemed a
successor or assign by reason merely of such purchase.
14. Time shall be of the essence of the Pricing Agreement.
15. The Pricing Agreement shall be construed in accordance with the
laws of the State of New York.
16. The Pricing Agreement may be executed by any one or more of the
parties hereto and thereto in any number of counterparts, each of which shall be
deemed to be an original, but all such respective counterparts shall together
constitute one and the same instrument.
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ANNEX I
PRICING AGREEMENT
[NAMES(S) OF REPRESENTATIVES]
[as representatives of the several
Underwriters named in Schedule I hereto,]
[Address of Representatives]
Dear Sirs:
XXXXXX X. XXXXXXX & SONS, INC., an Indiana corporation (the "Company"),
proposes, subject to the terms and conditions stated herein and in the
Underwriting Agreement General Terms and Conditions attached hereto, to issue
and sell to the Underwriters named in Schedule I hereto (the "Underwriters") the
Securities specified in Schedule II hereto (the "Designated Securities"). The
Designated Securities will be guaranteed (the "Guarantees") as to payment of
principal, premium, if any, and interest, if any, by The Seagram Company Ltd., a
Canadian corporation (the "Guarantor"). Each of the provisions of the
Underwriting Agreement General Terms and Conditions is incorporated herein by
reference in its entirety, and shall be deemed to be a part of this Agreement to
the same extent as if such provisions had been set forth in full herein; and
each of the representations and warranties set forth therein shall be deemed to
have been made at and as of the date of this Pricing Agreement. Each reference
to the Representatives herein and in the provisions of the Underwriting
Agreement General Terms and Conditions so incorporated by reference shall be
deemed to refer to you. Terms defined in the Underwriting Agreement General
Terms and Conditions are used herein as therein defined. The Representatives
designated to act on behalf of each of the Underwriters of the Designated
Securities pursuant to Section 12 of the Underwriting Agreement General Terms
and Conditions and the address of the Representatives referred to in such
Section 12 are set forth in Schedule II hereto.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement General Terms and Conditions incorporated herein by
reference, the Company agrees to issue and sell to each of the Underwriters, and
each of the Underwriters agrees, severally and not jointly, to purchase from the
Company, at the time and place and at the purchase price to the Underwriters set
forth in Schedule II hereto, the principal amount of Designated Securities set
forth opposite the name of such Underwriter in Schedule I hereto, less the
principal amount of Designated Securities covered by Delayed Delivery Contracts,
if any, as may be specified in such Schedule II.
If the foregoing is in accordance with your understanding, please sign and
return to us six counterparts hereof, and upon acceptance hereof by you, on
behalf of each of the Underwriters, this letter and such acceptance hereof,
including the provisions of the Underwriting Agreement General Terms and
Conditions incorporated herein by reference, shall constitute a binding
agreement between each of the Underwriters and the Company. It is understood
that your acceptance of this letter on behalf of each of the Underwriters is or
will be pursuant to the authority set forth in a form of Agreement among
Underwriters, the form of which shall be submitted to the Company for
examination, upon request, but without warranty on the part of the
Representatives as to the authority of the signers thereof.
Very truly yours,
XXXXXX X. XXXXXXX & SONS, INC.
By________________________
Accepted as of the date hereof:
[ __________________________________ ]
(Name of Representative Partnership)
[Name of Representative Corporation]
By: ________________________________
(Title)
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SCHEDULE I
Principal Amount of
Designated Securities
Underwriter to be Purchase
----------- --------------
[Name(s) of Representatives]..................... $
[Names of other Underwriters]....................
Total.......................... $
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24
SCHEDULE II
TITLE OF DESIGNATED SECURITIES:
[ %] [Floating Rate] [Zero Coupon] [Guaranteed] [Notes] [Debentures] due
AGGREGATE PRINCIPAL AMOUNT:
[$]
FORM AND DENOMINATIONS:
[Registered Securities] [$]
[Bearer Securities] [$]
[Global Securities] [$]
PRICE TO PUBLIC:
% of principal amount of the Designated Securities, plus accrued interest
from to [and accrued amortization, if any, from to
]
PURCHASE PRICE BY UNDERWRITERS:
% of the principal amount of the Designated Securities, plus accrued
interest from to [and accrued amortization, if any, from to
]
SPECIFIED METHOD AND FUNDS FOR PAYMENT OF PURCHASE PRICE:
[By certified or official bank check or checks, payable to the order of
the Company in [New York] Clearing House funds.]
[By wire transfer to a bank account specified by the Company in next
day funds]
INDENTURE:
Indenture, dated as of , 1991, among the Company, the
Guarantor and The Bank of New York, as Trustee.
TIME OF DELIVERY:
[Time and date], 199 .
CLOSING LOCATION:
NAME AND ADDRESS OF REPRESENTATIVES:
Designated Representatives
Address for Notices, etc.:
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DEPOSITARY:
[None]
SECURITIES EXCHANGE:
[Securities to be listed on the [New York] Stock Exchange]
DELAYED DELIVERY:
[None] [Underwriters' commission shall be % of the principal amount of
Designated Securities for which Delayed Delivery Contracts have been entered
into. Such commission shall be payable to the order of .]
MATURITY:
INTEREST RATE:
INTEREST PAYMENT DATES:
[months and dates]
REDEMPTION PROVISIONS:
[No provisions for redemption]
[The Designated Securities may be redeemed, otherwise than through the
sinking fund, in whole or in part at the option of the Company, in the amount of
$ or an integral multiple thereof, ]
[on or after , at the following
redemption prices (expressed in percentages of principal amount). If [redeemed
on or before , %, and if] redeemed during the
12-month period beginning
Redemption
Year Price
---- ----------
and thereafter at 100% of their principal amount, together in each case with
accrued interest to the redemption date.]
[on any interest payment date falling on or after , ,
at the election of the Company, at a redemption price equal to the principal
amount thereof, plus accrued interest to the date of redemption.]
[Other possible redemption provisions, such as mandatory redemption
upon occurrence of certain events or redemption for changes in tax law]
[Restriction on refunding]
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SINKING FUND PROVISIONS:
[No sinking fund provisions]
[The Designated Securities are entitled to the benefit of a sinking
fund to retire $ principal amount of Designated Securities on in each
of the years through at 100% of their principal amount plus accrued
interest] [, together with [cumulative] [non-cumulative] redemptions at the
option of the Company to retire an additional $ principal amount of
Designated Securities in the years through at 100% of their
principal amount plus accrued interest.]
GUARANTEES:
SATISFACTION AND DISCHARGE:
[Satisfaction and discharge provisions if other than as specified in
Section 401].
DEFEASANCE:
[The provisions of Section 1008 of the Indenture relating to defeasance
shall apply to the Designated Securities.]
OTHER TERMS:
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ANNEX II
DELAYED DELIVERY CONTRACT
XXXXXX X. XXXXXXX & SONS, INC.,
c/o [Name of Representatives]
[Address of Representatives]
Attention:
Dear Sirs:
The undersigned hereby agrees to purchase from Xxxxxx X. Xxxxxxx &
Sons, Inc., an Indiana corporation (hereinafter called the "Company"), and the
Company agrees to sell to the undersigned,
[$] ...................
principal amount of the Company's [Title of Designated Securities] (hereinafter
called the "Designated Securities"), guaranteed as to payment of principal,
premium, if any, and interest, if any, by The Seagram Company Ltd., a Canadian
corporation (the "Guarantor"), offered by the Company's Prospectus dated
, 199 , as amended or supplemented, receipt of a copy of which is
hereby acknowledged, at a purchase price of % of the principal amount thereof [,
plus accrued interest from the date from which interest accrues as set forth
below,] [and accrued amortization, if any, from [.....] [the date from which
interest accrues as set forth below]] and on the further terms and conditions
set forth in this contract.
The undersigned will purchase the Designated Securities from the
Company on , 199 (the "Delivery Date") [and interest on the
Designated Securities so purchased will accrue from , 199 ].
[The undersigned will purchase the Designated Securities from the
Company on the delivery date or dates and in the principal amount or amounts set
forth below:
Principal Date from Which
Delivery Date Amount [Interest] Accrues
, 199 [$] , 199
, 199 [$] , 199
Each such date on which Designated Securities are to be purchased hereunder is
hereinafter referred to as a "Delivery Date".]
Payment for the Designated Securities which the undersigned has agreed
to purchase on [the] [each] Delivery Date shall be made to the Company or its
order by [specify method and funds of payment] [certified or official bank check
in [New York] Clearing House funds] at the office of , , or
by wire transfer to a bank account specified by the Company, on [the] [such]
Delivery Date upon delivery to the undersigned of the Designated Securities then
to be purchased by the undersigned in definitive fully registered form and in
such denominations and registered in such names as the undersigned may designate
by written or
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telegraphic communication addressed to the Company not less than five full
business days prior to [the] [such] Delivery Date.
The obligation of the undersigned to take delivery of and make payment
for Designated Securities on [the] [each] Delivery Date shall be subject to the
condition that the purchase of Designated Securities to be made by the
undersigned shall not on [the] [such] Delivery Date be prohibited under the laws
of the jurisdiction to which the undersigned is subject. The obligation of the
undersigned to take delivery of and make payment for Designated Securities shall
not be affected by the failure of any purchaser to take delivery of and make
payment for Designated Securities pursuant to other contracts similar to this
contract.
[The undersigned understands that underwriters (the "Underwriters") are
also purchasing Designated Securities from the Company, but that the obligations
of the undersigned hereunder are not contingent on such purchases.] [Promptly
after completion of the sale to the Underwriters the Company will mail or
deliver to the undersigned at its address set forth below notice to such effect,
accompanied by a copy of the Opinions of Counsel for the Company and the
Guarantor delivered to the Underwriters in connection therewith.]
The undersigned represents and warrants that, as of the date of this
contract, the undersigned is not prohibited from purchasing the Designated
Securities hereby agreed to be purchased by it under the laws of the
jurisdiction to which the undersigned is subject.
This contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
This contract may be executed by either of the parties hereto in any
number of counterparts, each of which shall be deemed to be an original, but all
such counterparts shall together constitute one and the same instrument.
It is understood that the acceptance by the Company of the Delayed
Delivery Contract (including this contract) is in the Company's sole discretion
and that, without limiting the foregoing, acceptances of such contracts need not
be on a first-come, first-served basis. If this contract is acceptable to the
Company, it is requested that the Company sign the form of acceptance below
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29
and mail or deliver one of the counterparts hereof to the undersigned at its
address set forth below. This will become a binding contract between the Company
and the undersigned when such counterpart is so mailed or delivered by the
Company.
Yours very truly,
__________________________________
(Name of Purchaser)
By________________________________
(Signature)
__________________________________
(Name and Title)
__________________________________
(Address)
Accepted, ________________, 199 .
XXXXXX X. XXXXXXX & SONS, INC.
By______________________________
[Title]
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