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EXHIBIT 1.1
XXXXXXXX HOLDINGS OF DELAWARE, INC.
(a Delaware corporation)
UNDERWRITING AGREEMENT
_________________________
______________, 199__
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UNDERWRITING AGREEMENT
_____________, 199___
Xxxxxxxx Holdings of Delaware, Inc.
Xxx Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000
Dear Sirs:
We (the "Manager") are acting on behalf of the underwriter
or underwriters (including ourselves) named below (such underwriter or
underwriters being herein called the Underwriters"), and we understand that
Xxxxxxxx Holdings of Delaware, Inc., a Delaware corporation (the "Company"),
proposes to issue and sell [indicate currency and amount] aggregate principal
amount of [full title of debt securities] (the "Securities").
Subject to the terms and conditions set forth or
incorporated by reference herein, the Company hereby agrees to sell and the
Underwriters agree to purchase, severally and not jointly, the respective
[principal amounts of Securities] set forth below opposite their names at a
purchase price of [_____%] of the principal amount of such Securities, plus
accrued interest from [Date of Securities] to the date of payment and delivery:
Principal
Amount of
Name Securities
----------
[Insert syndicate list] $
Total . . . . . . . . . . . . . . $
=========
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[The aggregate principal amount of Securities to be
purchased by the several Underwriters may be reduced by the aggregate principal
amount of Securities sold pursuant to delayed delivery contracts.]*
The Underwriters will pay for such Securities (less any
Securities sold pursuant to delayed delivery contracts) upon delivery thereof
at the offices of _________________ at 10:00 a.m. (New York time) on
___________, 199__, or at such other time, not later than ____ (New York time)
on _________, 199__, as shall be jointly designated by the Manager and the
Company.
The Securities shall have the terms set forth in the
Prospectus dated ___________, 199__, and the Prospectus Supplement dated
____________, 199__, including the following:
[Terms of Securities
Maturity: __________ ___, 19__
Interest Rate: ___% per annum
Redemption Provisions:
Interest Payment Dates: _________ ___, and _______ ___
commencing ______ ___, 19__
(Interest accrues from
__________ ___, 19__)
Form and Denomination:
[Other terms:]]
[The fee to be paid to the Underwriters in respect of the
Securities purchased pursuant to delayed delivery contracts arranged by the
Underwriters shall be ___% of the purchase price of the Securities so
purchased] *
All provisions contained in the document entitled Xxxxxxxx
Holdings of Delaware, Inc. Underwriting Agreement Standard Provisions (Debt)
dated ________, 199__, a copy of which we have previously received, are herein
incorporated by reference in their 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.
__________
* To be added only if delayed delivery contracts are contemplated.
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Please confirm your agreement by having an authorized
officer sign a copy of this agreement in the space set forth below and
returning the signed copy to us.
Very truly yours,
[MANAGER]
By [MANAGER]
By __________________________
Acting severally on behalf of
itself and the other several
Underwriters named above
Accepted:
XXXXXXXX HOLDINGS OF DELAWARE, INC.
By _________________________
Title:
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XXXXXXXX HOLDINGS OF DELAWARE, INC.
UNDERWRITING AGREEMENT
STANDARD PROVISIONS (DEBT)
From time to time, Xxxxxxxx Holdings of Delaware, Inc., a
Delaware corporation (the "Company"), may enter into one or more underwriting
agreements that provide for the sale of designated securities to the several
Underwriters named therein. The standard provisions set forth herein may be
incorporated by reference in any such underwriting agreement (an "Underwriting
Agreement"). The Underwriting Agreement, including the provisions incorporated
therein by reference, is herein referred to as this Agreement. Unless
otherwise defined herein, terms defined in the Underwriting Agreement are used
herein as therein defined.
The Company proposes to issue from time to time debt
securities to be issued pursuant to the provisions of a senior debt indenture
dated as of ___________, 199__ (as it may be supplemented or amended from time
to time, the "Senior Debt Indenture") between the Company and Citibank, N.A.,
as Senior Debt Trustee and a subordinated debt indenture dated as of
___________, 199__ (as it may be supplemented or amended from time to time, the
"Subordinated Debt Indenture") between the Company and Citibank, N.A., as
Subordinated Debt Trustee.
The debt securities will have varying designations,
maturities, rates and times of payment of interest, selling prices, redemption
terms and other terms. Any such debt securities are herein sometimes
collectively referred to as the "Securities".
The Company has filed with the Securities and Exchange
Commission (the "Commission"), in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations thereunder
(herein referred to collectively as the "Act"), a registration statement
including a prospectus relating to the Securities [and has filed with, or
mailed for filing to, the Commission a prospectus supplement or supplements
specifically relating to the Securities pursuant to Rule 424 under the Act].
The term Registration Statement means the registration statement as amended to
the date of the Underwriting Agreement. The term Basic Prospectus means the
prospectus included in the Registration Statement. The term Prospectus means
the Basic Prospectus together with the prospectus supplement or abbreviated
term sheet (other than a preliminary prospectus supplement or preliminary
abbreviated term sheet) specifically relating to the Securities. The term
preliminary prospectus means a preliminary prospectus supplement or preliminary
abbreviated term sheet specifically relating to the Securities, together with
the Basic Prospectus. As used herein, the terms "Registration Statement",
"Basic Prospectus", "Prospectus" and "preliminary prospectus" shall include, in
each case, the material, if any, incorporated by reference therein.
The term Contract Securities means the Securities, if
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any, to be purchased pursuant to the delayed delivery contracts substantially
in the form of Schedule I hereto, with such changes therein as the Company may
authorize or approve (the "Delayed Delivery Contracts"). The term
"Underwriters' Securities" means the Securities other than Contract Securities.
The Company and the Underwriters agree as follows:
1. Sale and Purchase. If the Prospectus provides for
sales of Securities pursuant to Delayed Delivery Contracts, the Company hereby
authorizes the Underwriters to solicit offers to purchase Contract Securities
on the terms contained in the Delayed Delivery Contracts. Delayed Delivery
Contracts are to be with institutional investors approved by the Company and of
the types set forth in the Prospectus. On the Closing Date (as hereinafter
defined), the Company will pay the Manager, as compensation for the accounts of
the Underwriters, the commissions set forth in the Underwriting Agreement in
respect of the Contract Securities. The Underwriters will not have any
responsibility in respect of the validity or the performance of Delayed
Delivery Contracts.
If the Company executes and delivers Delayed Delivery
Contracts with institutional investors, the Securities comprising the Contract
Securities shall be deducted from the Securities to be purchased by the several
Underwriters, and the aggregate principal amount of Securities to be purchased
by each Underwriter shall be reduced pro rata in proportion to the principal
amount of Securities set forth opposite each Underwriter's name in the
Underwriting Agreement, except to the extent that the Manager determines that
such reduction shall be otherwise and so advises the Company.
The Company is advised by the Manager that the Underwriters
propose to make a public offering of their respective portions of the
Underwriters' Securities as soon after this Agreement is entered into as in the
Manager's judgment is advisable. The terms of the public offering of the
Underwriters' Securities are set forth in the Prospectus.
2. Payment and Delivery. Payment for the
Underwriters' Securities shall be made by certified or official bank check
payable to the order of the Company in New York Clearing House funds at the
time and place set forth in the Underwriting Agreement, upon delivery to the
Manager for the respective accounts of the several Underwriters of the
Underwriters' Securities registered in such names and in such denominations as
the Manager shall request in writing not less than [two] full business days
prior to the date of delivery. The time and date of such payment and delivery
with respect to the Underwriters' Securities are herein referred to as the
Closing Date.
3. Certain Covenants of the Company. In further
consideration of the agreements of the Underwriters herein contained, the
Company covenants as follows:
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(a) To furnish you, without charge, three signed copies
of the Registration Statement (including exhibits thereto and
documents incorporated therein by reference) and, during the period
mentioned in paragraph (c) below, as many copies of the Prospectus,
any documents incorporated therein by reference, and any supplements
and amendments thereto as you may reasonably request. The terms
"supplement" and "amendment" or "amend" as used in this Agreement
shall include all documents subsequently filed by the Company with the
Commission pursuant to the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), that are deemed to be incorporated by reference
in the Prospectus, including any abbreviated term sheets.
(b) Before amending or supplementing the Registration
Statement or the Prospectus, to furnish you a copy of each such
proposed amendment or supplement and to file no such proposed
amendment or supplement to which you reasonably object in writing;
provided, that the foregoing shall not apply to amendments or
supplements that relate to securities registered under the
Registration Statement that are not Securities.
(c) If, at any time when a Prospectus relating to the
Securities is in the opinion of your counsel required by law to be
delivered under the Act, any event shall occur as a result of which it
is necessary to amend or supplement the Prospectus in order to make
the statements therein, in light of the circumstances when the
Prospectus is delivered to a purchaser, not misleading, or if it is
necessary to amend or supplement the Prospectus to comply with law,
forthwith to prepare and furnish, at its own expense, to the
Underwriters and to the dealers (whose names and addresses you will
furnish to the Company) to which Securities may have been sold by you
on behalf of the Underwriters and to any other dealers upon request,
either amendments or supplements to the Prospectus so that the
statements in the Prospectus as so amended or supplemented will not,
in light of the circumstances when the Prospectus is delivered to a
purchaser, be misleading or so that the Prospectus will comply with
law.
(d) To endeavor to qualify the Securities for offer and
sale under the securities or Blue Sky laws of such jurisdictions as
you shall reasonably request and to pay all expenses (including fees
and disbursements of counsel) in connection therewith as well as all
fees, if any, payable in connection with the review of the offering of
the Securities by the National Association of Securities Dealers,
Inc. and the determination of the eligibility of the Securities for
investment under the laws of such jurisdictions as the Manager may
designate.
(e) To make generally available to the Company's
security holders as soon as practicable an earnings statement or
statements of the Company which shall satisfy
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the provisions of Section 11(a) of the Act.
(f) During the period beginning on the date of this
Agreement and continuing to and including the Closing Date, not to
offer, sell, contract to sell or otherwise dispose of any securities
of the Company substantially similar to the Securities other than the
Securities, without the prior written consent of the Manager.
4. Reimbursement of Underwriters' Expenses. If this
Agreement shall be terminated by the Underwriters or any of them, because of
any failure or refusal on the part of the Company to comply with the terms or
to fulfill any of the conditions of this Agreement in any material respect, or
if for any reason the Company shall be unable to perform its obligations under
this Agreement in any material respect, the Company will reimburse the
Underwriters or such Underwriters as have so terminated this Agreement, with
respect to themselves, severally, for all out-of-pocket expenses (including the
fees and disbursements of their counsel) reasonably incurred by such
Underwriters in connection with the Securities.
5. Certain Covenants of the Underwriters.
Each of the several Underwriters agrees with the Company
that:
(a) it will not offer, sell, resell, or deliver,
directly or indirectly, any Securities in bearer form (including any
Security in global form that is exchangeable for Securities in bearer
form) within the United States of America, its territories and
possessions and other areas subject to its jurisdiction and the
Commonwealth of Puerto Rico (the "United States") in connection with
their original issuance or during the period set forth in the
Prospectus;
(b) it will not offer, sell, resell or deliver, directly
or indirectly, Securities in bearer form, in connection with their
original issuance or during such period, to a United States Person
(which term, as used herein, means any citizen, national or resident
of the United States, any corporation, partnership or other entity
created or organized in or under the laws of the United States or any
political subdivision thereof or any estate or trust the income of
which is subject to United States federal income taxation regardless
of its source) other than to an office located outside the United
States of a financial institution as defined in Section
1.165-12(c)(1)(v) of the Treasury Department Regulations, purchasing
for its own account or for the account of a customer and that provides
a written statement that it will comply with Section 165(j)(3)(A), (B)
or (C) of the Internal Revenue Code of 1986, as amended from time to
time, and the regulations thereunder, which financial institution, as
a condition of the purchase, agrees to provide on delivery of such
Securities (or on issuance of such Securities if not in
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definitive form) the certificate required in paragraph (c) below;
(c) it will deliver to each purchaser from it of any
Securities in bearer form (including Securities initially represented
by a temporary global certificate) a written confirmation stating
substantially the following:
"By your purchase of Securities in bearer form you represent
that you are not a United States Person or, if you are a United States Person,
that you are a financial institution as defined in Section 1.165-12(c)(1)(v) of
the Treasury Department Regulations, purchasing for your own account or for the
account of a customer and that you will comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as amended from
time to time, and the regulations thereunder. Furthermore, if you are a
dealer, you agree that you will deliver a confirmation containing this entire
paragraph to purchasers of such Securities from you. For purposes of this
statement, 'United States Person' means any citizen, national or resident of
the United States, any corporation, partnership or other entity created or
organized in or under the laws of the United States or any political
subdivision thereof or any estate or trust the income of which is subject to
United States federal income taxation regardless of its source, and 'United
States' means the United States of America, its territories and possessions and
other areas subject to its jurisdiction and the Commonwealth of Puerto Rico."
(d) it will deliver Securities in definitive bearer form
to the person entitled to delivery thereof (or transfer of interests
therein) only outside the United States and upon receipt of a written
confirmation stating substantially the following:
"This confirms as of the date hereof that none of the Securities
issued in bearer form delivered or credited to you for our account are being
acquired by or on behalf of, or for offer to resell or for resale to, a United
States Person, or any person inside the United States, or, if a beneficial
interest in such Securities issued in bearer form is being acquired by a United
States Person, that such person is a financial institution as defined in
Section 1.165- 12(c)(1)(v) of the Treasury Department Regulations, or is
acquiring such Securities through such a financial institution and that such
Securities are held by a financial institution that has agreed to comply with
Section 165 (j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as
amended from time to time, and the regulations thereunder, and is not
purchasing for offer to resell or for resale inside the United States. As used
herein, 'United States Person' means any citizen, national or resident of the
United States, any corporation, partnership or other entity created or
organized in or under the laws of the United States or any political
subdivision thereof or any estate or trust the income of which is subject to
United States federal income taxation regardless of
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its source, and 'United States' means the United States of America, its
territories and possessions and other areas subject to its jurisdiction and the
Commonwealth of Puerto Rico.";
provided, however, that (i) if it has actual knowledge that the information
contained in any confirmation delivered pursuant to (c) or (d) above is false,
it shall not deliver any Securities in bearer form to, or, if applicable, cause
a transfer of an interest in any Global Security to the account of, the person
who signed or delivered the confirmation referred to in (d) above
notwithstanding the delivery of such confirmation to it, and (ii) when a
certificate is provided by a clearing organization, it must be based on
statements provided to it by its member organizations. As used herein, a
"clearing organization" is an entity that is in the business of holding
obligations for member organizations and transferring obligations among such
members by credit or debit to the account of a member without the necessity of
physical delivery of the obligation; and
(e) it will comply with or observe any other
restrictions or limitations set forth in the Prospectus on persons to
whom, or the jurisdictions in which, or the manner in which, the
Securities may be offered, sold, resold or delivered.
If Underwriters' Securities are to be distributed through a selling
group consisting of banks, brokers or dealers, the Manager agrees that it shall
cause each member of such selling group to enter into an agreement that it will
comply with this Section 5.
6. Conditions of Underwriters' Obligations. The
several obligations of the Underwriters to purchase and pay for any issue of
Underwriters' Securities hereunder are subject to the following conditions:
(a) That, at the Closing Date, the Company shall furnish
to the Manager an opinion of Xxxxxxx xxx Xxxxx, Esq., General Counsel
of the Company, dated the Closing Date, in substantially the form set
forth as Exhibit A.
(b) That, at the Closing Date, the Manager shall receive
an opinion of Xxxxx Xxxx & Xxxxxxxx, counsel for the Underwriters, dated
the Closing Date, in substantially the form set forth as Exhibit B.
(c) That, at the Closing Date, the Company shall furnish
to the Manager a letter addressed to the Underwriters and dated the
Closing Date, in form and substance satisfactory to the Manager, from
Ernst & Young, independent public accountants, containing statements
and information of the type ordinarily included in accountants'
"comfort letters" to underwriters with respect to the financial
statements and certain financial information relating to the Company
contained in or incorporated by reference into the Registration
Statement and the
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Prospectus.
(d) That, at the Closing Date, the Company shall have
furnished to the Manager a certificate dated the Closing Date and
signed by an officer of the Company, to the effect set forth below.
The officer signing and delivering such certificate may rely upon the
best of his knowledge as to proceedings threatened.
(i) the representations and warranties of the
Company contained herein are true and correct in all
material respects as of the Closing Date;
(ii) no stop order suspending the effectiveness
of the Registration Statement shall be in effect, and no
proceedings for such purpose shall be pending before or
threatened by the Commission;
(iii) subsequent to the execution and delivery of
this Agreement and prior to the Closing Date, there shall
not have occurred any downgrading, nor shall any notice have
been given of (A) any intended or potential downgrading or
(B) any review or possible change that does not indicate the
direction of a possible change, in the rating accorded any
of the Company's securities by any "nationally recognized
statistical rating organization," as such term is defined
for purposes of Rule 436(g)(2) under the Act; and
(iv) there has not occurred any material adverse
change, or any development which could reasonably be
expected to result in a prospective material adverse change,
in the financial condition, or in the earnings, business or
operations, of the Company and its subsidiaries, taken as a
whole, from that set forth in the Registration Statement and
the Prospectus.
(e) That, the Company shall have performed in all
material respects such of its obligations under this Agreement as are
to be performed by the terms hereof at or before the time of purchase.
(f) That, the Company shall have accepted Delayed
Delivery Contracts, if any, in any case in which sales of Contract
Securities arranged by the Underwriters have been approved by the
Company.
7. Termination of Agreement. If the sale to the
Underwriters of the Underwriters' Securities, as contemplated in this
Agreement, is not carried out by the Underwriters for any reasons permitted
hereunder, or if such sale is not carried out because the Company shall be
unable to comply with any of the terms hereof, the Company shall not be under
any obligation or liability under this Agreement (except to the extent provided
in
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Sections 4 and 10 hereof), and the Underwriters shall be under no obligation or
liability to the Company under the agreement (except to the extent provided in
Section 10 hereof) or to one another hereunder.
If the Manager or any group of Underwriters elect to
terminate this Agreement as provided in this Section 7, the Company and each
other Underwriter shall be notified promptly by letter, telecopier or telegram.
8. Defaulting Underwriters. If any Underwriter or
Underwriters shall default in its or their obligation to take up and pay for
the Securities to be purchased by it or them hereunder, the non-defaulting
Underwriters shall take up and pay for (in addition to the principal amount of
Securities they are obligated to purchase hereunder) the principal amount of
Securities agreed to be purchased by all such defaulting Underwriters as
hereinafter set forth; provided, however, that in the event that the principal
amount of Securities which all Underwriters so defaulting shall have agreed but
failed to take up and pay for shall exceed 10% of the total principal amount of
Securities, the non-defaulting Underwriters shall have the right to purchase
all, but shall not be under any obligation to purchase any of the Securities,
and if such non-defaulting Underwriters do not purchase all the Securities,
this Agreement will terminate without liability to any non-defaulting
Underwriter or the Company. If non-defaulting Underwriters take up and pay for
all Securities agreed to be purchased by all such defaulting Underwriters, such
Securities shall be taken up and paid for by such non-defaulting Underwriter or
Underwriters in such amount or amounts as the Manager may designate with the
consent of each Underwriter so designated or, in the event no such designation
is made, such Securities shall be taken up and paid for by all non-defaulting
Underwriters pro rata in proportion to the aggregate principal amount of
Securities set opposite the names of such non-defaulting Underwriters herein.
Without relieving any defaulting Underwriter from its
obligations hereunder, the Company agrees with the non-defaulting Underwriters
that it will not sell any Securities hereunder unless all of the Underwriters'
Securities are purchased by the Underwriters (or by substituted underwriters
selected by the Manager with the approval of the Company or selected by the
Company with the Manager's approval).
If a new underwriter or underwriters are substituted by the
Underwriters or by the Company for a defaulting Underwriter or Underwriters in
accordance with the foregoing provisions, the Company or the Manager shall have
the right to postpone the Closing Date for a period not exceeding five business
days in order that necessary changes in the Registration Statement and
Prospectus and other documents may be effected.
The term Underwriter as used in this Agreement shall refer
to and include any underwriter substituted under this Section 8 with like
effect as if such substituted underwriter had
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originally been named herein.
9. Representations and Warranties. The Company
represents and warrants to each of the Underwriters that:
(a) each document filed or to be filed pursuant to the
Securities Exchange Act of 1934 (the "Exchange Act") and incorporated
by reference in the Registration Statement and the Prospectus,
complied or will comply when so filed in all material respects with
the Exchange Act and the applicable rules and regulations thereunder;
(b) each part of the Registration Statement and the
Prospectus filed as part of the Registration Statement as originally
filed or as part of any amendment thereto, or filed pursuant to Rule
424 under the Act, complied when so filed in all material respects
with the Act;
(c) the Registration Statement and the Prospectus (as
amended or supplemented if the Company shall have furnished any
amendments or supplements thereto) will comply in all material
respects with the Act and will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in light of
circumstances under which the statements are made, not misleading;
(d) the representations and warranties set forth in this
Section 9 do not apply (1) to statements or omissions in the
Registration Statement or the Prospectus based upon information
furnished to the Company in writing by any Underwriter expressly for
use therein or (2) to that part of the Registration Statement that
constitutes a Statement of Eligibility and Qualification (Form T-1)
under the Trust Indenture Act of 1939, as amended, of the Trustee
referred to in the Registration Statement.
10. Indemnification and Contribution. (a) The Company
agrees to indemnify and hold harmless each Underwriter and each
person, if any, who controls any Underwriter within the meaning of
either Section 15 of the Act, or Section 20 of the Exchange Act, from
and against any and all losses, claims, damages and liabilities caused
by any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement or the Prospectus (as amended
or supplemented if the Company shall have furnished any amendments or
supplements thereto) or any Basic Prospectus or any preliminary
prospectus, or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which
made, not misleading, except insofar as such losses, claims, damages
or liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon information furnished
to the Company in writing by any Underwriter expressly for use
therein.
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(b) Each Underwriter agrees, severally and not jointly,
to indemnify and hold harmless the Company, its directors, its
officers who sign the Registration Statement and each person, if any,
who controls the Company within the meaning of either Section 15 of
the Act, or Section 20 of the Exchange Act, to the same extent as the
foregoing indemnity from the Company to each Underwriter, but only
with reference to information relating to such Underwriter furnished
to the Company in writing by such Underwriter expressly for use in the
Registration Statement, the Prospectus, any amendment or supplement
thereto, or any Basic Prospectus or any preliminary prospectus.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of
which indemnity may be sought pursuant to either of the two preceding
paragraphs, such person (hereinafter called the indemnified party)
shall promptly notify the person against whom such indemnity may be
sought (hereinafter called the indemnifying party) in writing and the
indemnifying party, upon request of the indemnified party, shall
retain counsel reasonably satisfactory to the indemnified party to
represent the indemnified party and any others the indemnifying party
may designate in such proceeding and shall pay the reasonable fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the
expense of such indemnified party unless (i) the indemnifying party
and the indemnified party shall have mutually agreed to the retention
of such counsel or (ii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying party
and the indemnified party and representation of both parties by the
same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the
indemnifying party shall not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the fees
and expenses of more than one separate firm (in addition to any local
counsel) for all such indemnified parties, and that all such fees and
expenses as shall be reasonable shall be reimbursed as they are
incurred. In the case of any such separate firm for the Underwriters
and such control persons of Underwriters, such firm shall be
designated in writing by the Manager. In the case of any such
separate firm for the Company, and such directors, officers and
control persons of the Company, such firm shall be designated in
writing by the Company. The indemnifying party shall not be liable
for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party agrees to indemnify
the indemnified party from and against any loss or liability by reason
of such settlement or judgment. Notwithstanding the foregoing
sentence, if at any time an indemnified party shall have requested an
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indemnifying party to reimburse the indemnified party for fees and
expenses of counsel as contemplated by the third sentence of this
paragraph, the indemnifying party agrees that it shall be liable for
any settlement of any proceeding effected without its written consent
if (i) such settlement is entered into more than 30 days after receipt
by such indemnifying party of the aforesaid request and (ii) such
indemnifying party shall not have reimbursed the indemnified party in
accordance with such request prior to the date of such settlement. No
indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional
release of such indemnified party from all liability on claims that
are the subject matter of such proceeding.
(d) If the indemnification provided for in paragraphs
(a) or (b) of this Section 10 is unavailable to an indemnified party
in respect of any losses, claims, damages or liabilities referred to
therein, then each indemnifying party under such paragraph, in lieu of
indemnifying such indemnified party thereunder, shall contribute to
the amount paid or payable by such indemnified party as a result of
such losses, claims, damages or liabilities (i) in such proportion as
is appropriate to reflect the relative benefits received by the
Company and the Underwriters from the offering of the Securities or
(ii) if the allocation provided by clause (i) above is not permitted
by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also
the relative fault of the Company and of the Underwriters in
connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities, as well as any other relevant
equitable considerations. The relative benefits received by the
Company and the Underwriters shall be deemed to be in the same
respective proportions as the net proceeds from the offering (before
deducting expenses) received by the Company and the total underwriting
commissions received by the Underwriters, in each case as set forth in
the table on the cover of the Prospectus, bear to the aggregate public
offering price of the Securities. The relative fault of the Company
and the Underwriters 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 by the Underwriters
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
(e) The Company and the Underwriters agree that it would
not be just and equitable if contribution pursuant to
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this Section 10 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 in paragraph (d) above. The
amount paid or payable by an indemnified party as a result of the
losses, claims, damages and liabilities referred to in paragraph (d)
above shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any
such action or claim. Notwithstanding the provisions of this Section
10, no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Securities
underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of such untrue 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 misrepresenta-tion. The Underwriters'
obligations to contribute pursuant to this Section 10 are several in
proportion to their respective underwriting percentages determined by
the ratio which the original purchase obligation of any Underwriter
appearing in the Underwriting Agreement (or such amount increased as
provided in Section 8 above) bears to the total purchase obligations
of the Underwriters set forth therein.
(f) The indemnity and contribution agreements contained in
this Section 10 and the representations and warranties of the Company
contained herein shall remain operative and in full force and effect
regardless of (1) any termination of this Agreement, (2) any
investigation made by or on behalf of any Underwriter or any person
controlling any Underwriter or by or on behalf of the Company, its
officers or directors or any other person controlling the Company and
(3) acceptance of and payment for any of the Securities.
11. Termination in Certain Events. This Agreement shall be
subject to termination in the Manager's absolute discretion, by notice given to
the Company, if (a) after the execution and delivery of this Agreement and
prior to the Closing Date (i) trading generally shall have been suspended or
materially limited on or by, as the case may be, any of the New York Stock
Exchange, the American Stock Exchange, the National Association of Securities
Dealers, Inc., the Chicago Board of Options Exchange, the Chicago Mercantile
Exchange or the Chicago Board of Trade, (ii) trading of any securities of The
Xxxxxxxx Companies, Inc. shall have been suspended on any exchange or in any
over-the-counter market, (iii) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal or New York
State authorities, or (iv) there shall have occurred any outbreak or escalation
of
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17
hostilities or any change in financial markets or any calamity or crisis that,
in the judgment of the Manager, is material and adverse and (b) in the case of
any of the events specified in clauses (a)(i) through (iv), such event singly
or together with any other such event makes it, in the judgment of the Manager,
impracticable to market the Securities on the terms and in the manner
contemplated in the Prospectus.
12. Counterparts. This Agreement may be signed by the
parties in counterparts which together shall constitute one and the same
agreement between the parties and shall become effective at such time as each
of the parties shall have signed such counterparts and shall have notified the
other party thereof.
13. Construction. This Agreement shall be governed by,
and construed in accordance with, the laws of the State of New York.
14. Parties at Interest. This Agreement has been and is
made solely for the benefit of the Underwriters and the Company, and the
controlling persons, directors and officers referred to in Section 10 hereof,
and their respective successors, assigns, executors and administrators. No
other person shall acquire or have any right under or by virtue of this
Agreement.
15. Section Headings. The Section headings in this
Agreement have been inserted as a matter of convenience of reference and are
not a part of this Agreement.
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18
SCHEDULE I
DELAYED DELIVERY CONTRACT
Xxxxxxxx Holdings of Delaware, Inc.
Xxx Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000
Attention:
Dear Sirs:
The undersigned hereby agrees to purchase from Xxxxxxxx
Holdings of Delaware, Inc., a Delaware corporation (the "Company"), and the
Company agrees to sell to the undersigned
$______________________________________________
principal amount of the Company's [title of issue] (the "Securities") offered
by the Company's Prospectus dated , 199__ and Prospectus Supplement or
abbreviated term sheet dated , 199__, receipt of copies of which are hereby
acknowledged, at a purchase price equal to ______% of the principal amount of
such Securities [plus accrued interest on the Securities from ,
199 , to the delivery date or dates thereof] [and accrued amortization of
original issue discount from _____________, 199__ to the date of payment and
delivery] and on the further terms and conditions set forth in this contract.
The undersigned does not contemplate selling Securities prior to making payment
therefor.
The undersigned will purchase from the Company the principal
amounts of Securities on the delivery dates (the "Delivery Dates") set forth
below:
[Plus Accrued
Interest From] [and]
[Amortization of
[Principal Amount] Original Issue
Discount From]
__________________ $___________________ ____________________
__________________ $___________________ ____________________
__________________ $___________________ ____________________
Payment for the Securities which the undersigned has
19
agreed to purchase on each Delivery Date shall be made to the Company or its
order by certified or official bank check in New York Clearing House funds at
the office of __________________________, New York, New York (or at such other
place as the undersigned and the Company shall agree) at 10:00 A.M., New York
City time, on such Delivery Date, upon delivery to the undersigned of the
Securities to be purchased by the undersigned on such Delivery Date, in such
denominations and registered in such names as the undersigned may designate by
written or telegraphic communication addressed to the Company not less than
five full business days prior to such Delivery Date.
The obligation of the undersigned to take delivery of and
make payment for the Securities on each Delivery Date shall be subject to the
conditions that (1) the purchase of Securities to be made by the undersigned
shall not at the time of delivery be prohibited under the laws of the
jurisdiction to which the undersigned is subject and (2) the Company shall have
sold and had delivered to the underwriters (the "Underwriters") named in the
Prospectus Supplement referred to above such part of the Securities as is to be
sold to them.
Promptly after completion of sale and delivery to the
Underwriters, the Company will mail or deliver to the undersigned at its
address set forth below notice to such effect, accompanied by copies of the
opinions of counsel for the Company delivered to the Underwriters in connection
therewith.
Failure to take delivery of and make payment for Securities
by any purchaser under any other Delayed Delivery Contract shall not relieve
the undersigned of its obligations under this contract.
The undersigned represents and warrants that, (a) as of the
date of this contract, the undersigned is not prohibited under the laws of the
jurisdictions to which the undersigned is subject from purchasing the
Securities hereby agreed to be purchased and (b) the undersigned does not
contemplate selling the Securities which it has agreed to purchase hereunder
prior to the Delivery Date therefor.
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 shall be governed by and construed in accordance with the laws of
the State of New York. This contract may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
It is understood that the acceptance of any Delayed Delivery
Contract is in the Company's sole discretion and, without limiting the
foregoing, need not be on a first-come, first-served basis. If the contract is
acceptable to the Company, it is requested that the Company sign the form of
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20
acceptance below and mail or deliver one of the counterparts hereof to the
undersigned at its address set forth below. This will become a binding
contract, as of the date first above written, between the Company and the
undersigned when such counterpart is so mailed or delivered.
Yours very truly,
_______________________________________
Purchaser
By: ___________________________________
_______________________________________
(Title)
_______________________________________
(Address)
Accepted, as of the date
first above written:
Xxxxxxxx Holdings of Delaware, Inc.
By: _______________________
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21
PURCHASER--PLEASE COMPLETE AT TIME OF SIGNING
The name, telephone number and department of the
representative of the Purchaser with whom details of delivery on the Delivery
Date may be discussed are as follows:
(Please print.)
Name (Including Area Code) Department
---- --------------------- ----------
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22
EXHIBIT A
FORM OF
OPINION OF
GENERAL COUNSEL OF THE COMPANY
______________, 19______
[MANAGER]
as Manager for the several Underwriters
[ADDRESS] ________
__________________
__________________
Dear Sirs:
I have acted as counsel to Xxxxxxxx Holdings of Delaware,
Inc., a Delaware corporation (the "Company"), in connection with the
Underwriting Agreement dated _____________, 199__ (the "Underwriting
Agreement") between you and the Company, pursuant to which the Underwriters
severally agree to purchase from the Company an aggregate of [$] [symbol for
foreign currency or currency unit] __________ principal amount of the
debtsecurities of the Company (the "Securities") issued or to be issued
pursuant to a [senior] [subordinated] indenture dated as of ____________ ___,
199__ (the Indenture") between the Company and Citibank, N.A., as Trustee (the
"Trustee") to be issued pursuant to the Indenture. I, or persons responsible
to me, have examined originals or copies, certified or otherwise identified to
my satisfaction, and such documents, corporate records, certificates of public
officials and other instruments as I have deemed necessary or advisable for the
purpose of rendering this opinion. Defined terms herein unless otherwise
specified shall have the meaning specified in the Underwriting Agreement.
I have also examined copies of the Registration Statement on
Form S-3 (File No. 33- ) relating to up to $ aggregate principal amount of
securities filed with the Securities and Exchange Commission (the "Commission")
under the Securities Act of 1933, as amended (the "Securities Act"), exhibits
thereto and documents incorporated by reference therein. Such Registration
Statement is now effective, and is herein called the "Registration Statement".
The prospectus constituting a part thereof, in the form filed with the
Commission pursuant to Rule 424 of the rules and regulations under the Act,
together with the [prospectus supplement] [abbreviated term sheet] (other than
a [preliminary prospectus supplement] [abbreviated term sheet]) specifically
relating to the Securities, as filed with,
23
or mailed for filing to, the Commission pursuant to Rule 424, is herein called
the "Prospectus".
Based upon the foregoing, I am of the opinion that:
(1) The Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the State of
Delaware and is duly qualified to do business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or leasing
of property requires such qualification, except to the extent that the failure
to be so qualified or be in good standing would not have a material adverse
effect upon the Company and its subsidiaries, taken as a whole.
(2) Each of [Xxxxxxxx Field Services Group, Inc., Xxxxxxxx
Pipe Line Company, Xxxxxxxx Energy Services Company, Xxxxxxxx Energy Ventures,
Inc., Xxxxxxxx Telecommunications Services, Inc., and Vyvx, Inc.] (the
"Material Subsidiaries") has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation and is duly qualified to transact business and is in good
standing in each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would not
have a material adverse effect on the Company and its subsidiaries, taken as a
whole.
(3) Each of the Company and the Material Subsidiaries has all
consents, authorizations, approvals, orders, certificates and permits of and
from, and has made all declarations and filings with, all federal, state, local
and other governmental authorities, and all courts or other tribunals,
necessary to conduct its business in the manner described in the Prospectus,
except to the extent that the lack of such consents, authorizations, approvals,
orders, certificates or permits would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole.
(4) The Indenture has been duly authorized, executed and
delivered by the Company and, assuming due authorization, execution and
authentication by the Trustee is a valid and binding agreement of the Company
enforceable in accordance with its terms subject, as to enforcement, to
bankruptcy, insolvency, reorganization, and other laws of general applicability
relating to or affecting creditors' rights and to general equity principles.
The Indenture has been duly qualified under the Trust Indenture Act of 1939.
(5) The Securities have been duly authorized and, when
executed and authenticated in accordance with the provisions of the Indenture,
and delivered to and paid for by the Underwriters [or by institutional
investors pursuant to Delayed Delivery Contracts] will be valid and binding
obligations of the Company, enforceable in accordance with their respective
terms subject, as
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24
to enforcement, to bankruptcy, insolvency, reorganization, and other laws of
general applicability relating to or affecting creditors' rights and to general
equity principles, and will be entitled to the benefits of such Indenture.
(6) The Underwriting Agreement has been duly authorized,
executed and delivered by the Company and is a valid and binding agreement of
the Company, enforceable in accordance with its terms subject, as to
enforcement, to bankruptcy, insolvency, reorganization, and other laws of
general applicability relating to or affecting creditors' rights and to general
equity principles, and except as rights to indemnity and contribution
thereunder may be limited under applicable law.
(7) The execution, delivery and performance of the
Underwriting Agreement and the Indenture and any applicable terms agreement
will not contravene any provision of applicable law or the Certificate of
Incorporation or By-laws of the Company or any material agreement or other
material instrument binding upon the Company, and no consent, approval or
authorization of any governmental body or agency other than pursuant to any
state securities or Blue Sky law is required for the performance of the
Underwriting Agreement and the issuance and sale of the Securities pursuant to
the Underwriting Agreement;
(8) The statements (1) in the Prospectus [under the captions
"Description of Debt Securities" (in the Prospectus Supplement), "Description
of Debt Securities" (in the Basic Prospectus) and "Plan of Distribution" (in
the Prospectus Supplement and in the Basic Prospectus)], (2) in the
Registration Statement under Item 15 and (3) in the Company's [Form 10] [most
recent Annual Report on Form 10-K under "Business" and "Legal Proceedings" and
in "Note 8 - Contingent Liabilities" in the Company's most recent quarterly
report on Form 10-Q], in each case insofar as such statements constitute
summaries of the legal matters, documents or proceedings referred to therein,
fairly present the information called for with respect to such legal matters,
documents and proceedings and fairly summarize the matters referred to therein;
(9) After due inquiry, I do not know of any legal or
governmental proceeding pending or threatened to which the Company or any of
its subsidiaries is a party or to which any of the properties of the Company or
any of its subsidiaries is subject which is required to be described or of any
contract or other document which is required to be described in the
Registration Statement or the Prospectus or to be filed as an exhibit to the
Registration Statement which is not described or filed as required; and
(10) I (a) am of the opinion that (except as to financial
statements included therein, as to which I do not express any opinion) each
document, if any, filed pursuant to the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and incorporated by reference in the Registration
Statement and the Prospectus complied when so filed as to form in all material
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25
respects with the Exchange Act and the rules and regulations of the Commission
thereunder, (b) am of the opinion that the Registration Statement and
Prospectus, as amended or supplemented, if applicable (except as to financial
statements included therein, as to which I do not express any opinion), comply
as to form in all material respects with the Securities Act and the applicable
rules and regulations thereunder, (c) believe that (except as to financial
statements and except for that part of the Registration Statement that
constitutes a Statement of Eligibility and Qualification (Form T-1) under the
Trust Indenture Act of 1939, as amended, as to which I do not express any
belief), each part of the Registration Statement when such part became
effective or was incorporated by reference into the Registration Statement did
not contain, and as of the date this opinion is delivered, does not contain,
any 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 (d) believe that (except as to financial statements, and except
for that part of the Registration Statement that constitutes a Form T-1
heretofore referred to as to which I do not express any belief) the
Registration Statement and the Prospectus, as amended or supplemented, if
applicable, do not contain any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading.
Yours very truly,
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26
[DP&W Letterhead]
EXHIBIT B
_______, 199__
[Manager]
as Manager for the
Several Underwriters
[ADDRESS]_____________
______________________
______________________
Dear Sirs:
We have acted as special counsel for you, as Manager for the
several underwriters (the "Underwriters") named in the Underwriting Agreement,
dated _____________, 199__ (the "Underwriting Agreement"), with Xxxxxxxx
Holdings of Delaware, Inc., a Delaware corporation (the "Company"), in
connection with purchase by the several Underwriters of [$] [symbol for foreign
currency or currency unit] _________ principal amount of [Full Title of
Securities] (the "Debt Securities") of the Company to be issued pursuant to the
[senior] [subordinated] indenture, dated as of ________, 199__ (the
"Indenture") between the Company and Citibank, N.A., as Trustee.
This opinion is being furnished pursuant to Section 6(b) of the
Underwriting Agreement.
In connection with this opinion, we have examined originals or
copies, certified or otherwise identified to our satisfaction, of (i) the
Registration Statement on Form S-3 (File No. 33-____) relating to $400,000,000
aggregate principal amount of Debt Securities filed with the Securities and
Exchange Commission (the "Commission") on ____________ , 1995 under the
Securities Act of 1933, as amended (the "Act"), and [list all amendments
thereto] (such Registration Statement, as amended to the date of the
Underwriting Agreement, being hereinafter referred to as the "Registration
Statement"); (ii) the order of the Commission declaring the Registration
Statement effective under the Act and the Indenture qualified under the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"); (iii) the
documents incorporated by reference in the Registration Statement; (iv) the
Prospectus, dated __________________ (the "Prospectus"), as supplemented by the
[Prospectus Supplement][Abbreviated Term Sheet], dated ___________________ (the
"Prospectus Supplement"), filed with the Commission pursuant to Rule 424 of the
General Rules and Regulations under the Act (the "Rules and Regulations"); (v)
the Statement of Eligibility and Qualification under the Trust Indenture Act on
Form T-1 of the Trustee (the "Form T-1"); (vi) an executed copy of the
Indenture; (vii) an executed copy of the Underwriting Agreement; (viii) the
27
form of the Debt Securities and specimen certificates thereof; (ix) the
Certificate of Incorporation and By-laws of the Company, in each case, as
amended to date; and (x) certain resolutions of the Board of Directors of the
Company [and a Pricing Committee [of] [appointed by] the Board of Directors of
the Company]. We have also examined the originals or copies, certified or
otherwise identified to our satisfaction, of such records of the Company and
such agreements, certificates of public officials, certificates of officers or
other representatives of the Company and others, and such other documents,
certificates and records as we have deemed necessary or appropriate as a basis
for the opinions set forth herein.
In our examination, we have assumed the legal capacity of all
natural persons, the genuineness of all signatures, the authenticity of all
documents submitted to us as originals, the conformity to original documents of
all documents submitted to us as certified or photostatic copies and the
authenticity of the originals of such latter documents. In making our
examination of documents executed by parties other than the Company, we have
assumed that such parties had the power, corporate or other, to enter into and
perform all obligations thereunder and have also assumed the due authorization
by all requisite action, corporate or other, and execution and delivery by such
parties of such documents and the validity and binding effect thereof. As to
any facts material to the opinions expressed herein which were not
independently established or verified, we have relied upon oral or written
statements and representations of officers and other representatives of the
Company and others.
Members of our firm are admitted to the bar in the States of
New York and Delaware and we do not express any opinion as to the laws of any
other jurisdiction other than the laws of the United States of America to the
extent referred to specifically herein.
Based upon and subject to the limitations, qualifications,
exceptions and assumptions set forth herein, we are of the opinion that:
1. The Indenture has been duly authorized, executed and
delivered by the Company and, assuming due authorization, execution
and delivery thereof by the Trustee, is a valid and binding agreement
of the Company enforceable against the Company in accordance with its
terms, except to the extent that enforcement thereof may be limited by
(i) bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance or other similar laws now or hereafter in effect relating
to creditors' rights generally and (ii) general principles of equity
(regardless of whether enforceability is considered in a proceeding at
law or in equity).
2. The Debt Securities have been duly authorized and, when
executed and authenticated in accordance with the provisions of the
Indenture, and delivered to and paid for by the Underwriters [or by
institutional investors pursuant to
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28
Delayed Delivery Contracts] will be valid and binding obligations of
the Company entitled to the benefits of such Indenture and enforceable
against the Company in accordance with their respective terms except
to the extent that enforcement thereof may be limited by (i)
bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance or other similar laws now or hereafter in effect relating
to creditors' rights generally and (ii) general principles of equity
(regardless of whether enforceability is considered in a proceeding at
law or in equity).
3. The Underwriting Agreement has been duly authorized,
executed and delivered by the Company and is a valid and binding
agreement of the Company, enforceable against the Company in
accordance with its terms except to the extent that (a) enforcement
thereof may be limited by (i) bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance or other similar laws now or
hereafter in effect relating to creditors' rights generally and (ii)
general principles of equity (regardless of whether enforceability is
considered in a proceeding at law or in equity) and (b) the
indemnification and contribution provisions thereof may be limited by
Federal or state securities laws or the public policy underlying such
laws.
4. The Registration Statement, as of its effective date, and
the Prospectus as amended and supplemented by the Prospectus
Supplement, as of the date of the Prospectus Supplement, appeared on
their face to be appropriately responsive in all material respects to
the requirements of the Act and the Rules and Regulations, except that
in each case we express no opinion as to the financial statements,
schedules and other financial and statistical data included therein or
excluded therefrom, the documents incorporated by reference therein or
the exhibits to the Registration Statement, including the Form T-1,
and we do not assume any responsibility for the accuracy, completeness
or fairness of the statements contained in the Registration Statement,
the Prospectus or the Prospectus Supplement.
In addition, we have participated in conferences with officers
and other representatives of the Company, counsel for the Company,
representatives of the independent accountants of the Company and you at which
the contents of the Registration Statement, the Prospectus and the Prospectus
Supplement and related matters were discussed and, although we are not passing
upon, and do not assume any responsibility for, the accuracy, completeness or
fairness of the statements contained in the Registration Statement or the
Prospectus as supplemented by the Prospectus Supplement and have made no
independent check or verification thereof, on the basis of the foregoing, no
facts have come to our attention that have led us to believe that the
Registration Statement, at the time it became effective, contained an untrue
statement of a material fact or omitted to state any material fact required to
be stated therein or necessary to make the statements therein not misleading or
that the Prospectus as supplemented by the Prospectus Supple-
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29
ment, as of the date of the Prospectus Supplement and as of the date hereof,
contained or contains an untrue statement of a material fact or omitted or
omits to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading, except that we express no opinion or belief with respect to the
financial statements, schedules and other financial and statistical data
included therein or excluded therefrom or the exhibits to the Registration
Statement, including the Form T-1.
This opinion is furnished to you solely for your benefit in
connection with the closing under the Underwriting Agreement occurring today
and is not to be used, circulated, quoted or otherwise referred to for any
other purpose without our express written permission.
Very truly yours,
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