Exhibit 1.1
UNDERWRITING AGREEMENT
September 5, 2001
Xxxx Xxx Corporation
Three First Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Dear Sirs:
We (the "Managers") are acting on behalf of the underwriters (including
ourselves) named below (such underwriters being herein called the
"Underwriters") and we understand that Xxxx Xxx Corporation, a Maryland
corporation (the "Company"), proposes to issue and sell $250,000,000 aggregate
principal amount of Floating Rate Notes Due 2003 (the "Floating Rate Notes") and
$1,000,000,000 aggregate principal amount of 6 1/4% Notes Due 2011 (the "Fixed
Rate Notes" and, together with the Floating Rate Notes, the "Offered
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 principal amounts of the Offered
Securities set forth below opposite their names at a purchase price equal to
99.650% for the Floating Rate Notes and 98.857% for the Fixed Rate Notes plus
accrued interest, if any, on the Offered Securities from September 10, 2001 to
the date of payment and delivery of the principal amount of the Offered
Securities:
Principal Principal
Amount of Amount of
Floating Fixed
Rate Notes Rate Notes
-------------- ---------------
X.X. Xxxxxx Securities Inc......... $103,750,000 $ 450,000,000
Xxxxxxx Xxxxx Barney Inc........... 103,750,000 360,000,000
Banc One Capital Markets, Inc...... 12,500,000 120,000,000
Banc of America Securities LLC..... 0 60,000,000
Xxxxxxx Securities Inc............. 15,000,000 0
Loop Capital Markets, LLC.......... 15,000,000 0
The Xxxxxxxx Capital Group, L.P.... 0 10,000,000
Total................. $250,000,000 $1,000,000,000
The closing of the purchase and sale of the Offered Securities shall take
place at the office of Xxxxx Xxxx & Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx, at 10:00
A.M. (New York time) on September 10, 2001 or at such other time or on such
other date, not later than September 17, 2001, as shall be designated by the
Managers.
The Offered Securities shall have the terms set forth in the Company's
prospectus dated February 25, 2000, and the prospectus supplement dated
September 5, 2001 (collectively, the "Prospectus"), including the following:
Floating Rate Notes
Title of Securities: Floating Rate Notes due 0000
Xxxxxxxxx principal amount: $250,000,000
Price to Public: 100% of the principal amount, plus accrued
interest, if any, from September 10, 2001
Indenture: Indenture dated as of October 2, 1990 between the
Company and The Bank of New York (as
successor to Continental Bank, N.A.), as Trustee
Maturity: September 10, 2003
Interest Rate: A rate per annum equal to 3 month LIBOR plus 20
basis points, as more fully described in the
Prospectus and the Floating Rate Notes
Interest Payment Dates: March 10, June 10, September 10 and December
10 of each year, commencing December 10, 2001
Optional Redemption
Provisions: None
Sinking Fund Provisions: None
Other Provisions: None
Underwriters' Counsel: Xxxxx Xxxx & Xxxxxxxx
Address for Notices to 000 Xxxx Xxxxxx
Xxxxxxxxxxxx: 0/xx/ Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
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Form of Notes: Book-entry only form represented by one or more
global securities deposited with The Depository
Trust Company ("DTC") or its designated custodian
for trading in the Same Day Funds Settlement
System of DTC, and to be made available for
checking by the Managers at least twenty-four
hours prior to the time of delivery at the office
of DTC
Fixed Rate Notes
Title of Securities: 6 1/4% Notes due 0000
Xxxxxxxxx principal 1,000,000,000
amount:
Price to Public: 99.507% of the principal amount, plus accrued
interest, if any, from September 10, 2001
Indenture: Indenture dated as of October 2, 1990 between the
Company and The Bank of New York (as successor
to Continental Bank, N.A.), as Trustee
Maturity: September 15, 2011
Interest Rate: 6 1/4% per annum
Interest Payment Dates: March 15 and September 15 of each year,
commencing March 15, 2002
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Optional Redemption
Provisions: The Fixed Rate Notes may be redeemed, in whole at
any time or in part from time to time, at the
Company's option, at a redemption price equal to the
greater of: (i) 100% of the principal amount of the
Fixed Rate Notes to be redeemed, and (ii) as
determined by the Quotation Agent (as defined in the
Prospectus), the sum of the present values of the
remaining scheduled payments of principal and
interest on the Fixed Rate Notes to be redeemed (not
including any portion of such payments of interest
accrued to the date of redemption) discounted to the
date of redemption on a semi-annual basis (assuming
a 360-day year consisting of twelve 30-day months)
at the Adjusted Treasury Rate (as defined in the
Prospectus), plus 20 basis points, plus, in each
case, accrued interest on the Fixed Rate Notes to be
redeemed to the date of redemption.
Sinking Fund Provisions: None
Other Provisions: None
Underwriters' Counsel: Xxxxx Xxxx & Xxxxxxxx
Address for Notices to
Underwriters: 000 Xxxx Xxxxxx
0/xx/ Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Form of Notes: Book-entry only form represented by one or more
global securities deposited with DTC or its
designated custodian for trading in the Same Day
Funds Settlement System of DTC, and to be made
available for checking by the Managers at least
twenty-four hours prior to the time of delivery at
the office of DTC.
All provisions contained in the Company's Underwriting Agreement Standard
Provisions (Debt) dated September 5, 2001 (the "Provisions") attached hereto as
Annex A, are herein incorporated by reference in their entirety and shall be
deemed to
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be a part of this Agreement to the same extent as if such provisions had been
set forth in full herein, unless superceded by the provisions hereof and except
as follows:
The term "Managers" shall mean X.X. Xxxxxx Securities Inc. and Xxxxxxx
Xxxxx Xxxxxx Inc.
For purposes of this Agreement, Section V paragraph (D) of the Provisions
shall be revised to read in its entirety:
"The Managers shall have received on the date hereof and on the
Closing Date letters, dated such dates, in form and substance satisfactory
to the Managers, from Xxxxxx Xxxxxxxx LLP, 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 contained in or
incorporated by reference into the Registration Statement and Prospectus
relating to the Company and from PricewaterhouseCoopers LLP, independent
public accountants, with respect to the financial statements and certain
financial information contained in or incorporated by reference in the
Registration Statement and Prospectus relating to The Earthgrains Company."
The underwriters agree to reimburse the Company at the closing for $312,500
of expenses associated with the offering of the Notes.
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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.
Very truly yours,
X.X. XXXXXX SECURITIES INC.
XXXXXXX XXXXX XXXXXX INC.
BANC ONE CAPITAL MARKETS, INC.
BANC OF AMERICA SECURITIES LLC
XXXXXXX SECURITIES INC.
LOOP CAPITAL MARKETS, LLC
THE XXXXXXXX CAPITAL GROUP, L.P.
Acting severally on behalf of themselves
and the several Underwriters named above
By: X.X. XXXXXX SECURITIES INC.
By: /s/ Xxxx X. Xxxxxxx
--------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
By: XXXXXXX XXXXX XXXXXX INC.
By: /s/ Xxxxxxx Xxxxxxxxxx
--------------------------
Name: Xxxxxxx Xxxxxxxxxx
Title: Vice President
Accepted:
XXXX XXX CORPORATION
By: /s/ Xxxxx X. Xxxxxxxx
----------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President and Treasurer
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Annex A
XXXX XXX CORPORATION
(a Maryland corporation)
UNDERWRITING AGREEMENT
STANDARD PROVISIONS (DEBT)
September 5, 2001
From time to time, Xxxx Xxx Corporation, a Maryland 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.
I. The Company proposes to issue from time to time debt securities (the
"Securities") to be issued pursuant to the provisions of the Indenture dated as
of October 2, 1990, (the "Indenture") between the Company and The Bank of New
York, as successor to Continental Bank, N.A., as Trustee (the "Trustee"). The
Securities will have varying designations, maturities, rates and times of
payment of interest, selling prices, redemption terms and other terms.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement including a prospectus relating to the
Securities and has filed with, or transmitted for filing with, the Commission a
prospectus supplement or supplements specifically relating to the Offered
Securities pursuant to Rule 424 under the Securities Act of 1933, as amended
(the "Securities 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
(other than a preliminary prospectus supplement) specifically relating to the
Offered Securities as filed with, or transmitted for filing with, the Commission
pursuant to Rule 424. The term preliminary prospectus means any preliminary form
of the Prospectus used in connection with the offering of the Offered
Securities. 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 Underwriters' Securities means the Offered Securities to be
purchased by the Underwriters herein. The term Contract Securities means the
Offered Securities, if any, to be purchased pursuant to the delayed delivery
contracts referred to below.
II. If the Prospectus provides for sales of Offered Securities pursuant
to delayed delivery contracts, the Company hereby authorizes the Underwriters to
solicit offers to purchase Contract Securities on the terms and subject to the
conditions set forth in the Prospectus pursuant to delayed delivery contracts
substantially in the form of Schedule I attached hereto ("Delayed Delivery
Contracts") but with such changes therein as the Company may authorize or
approve. 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 defined in IV below), the Company will pay the Managers as
compensation, for the accounts of the Underwriters, the fee 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 Contract Securities shall be deducted from the
Offered Securities to be purchased by the several Underwriters and the aggregate
principal amount of Offered Securities to be purchased by each Underwriter shall
be reduced pro rata in proportion to the principal amount of Offered Securities
set forth opposite each Underwriter's name in the Underwriting Agreement, except
to the extent that the Managers determine that such reduction shall be otherwise
and so advises the Company.
III. The Company is advised by the Managers 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 Managers'
judgment is advisable. The terms of the public offering of the Underwriters'
Securities are set forth in the Prospectus.
IV. Payment for the Underwriters' Securities shall be made by wire
transfer payable in same-day funds to an account specified by the Company at the
time and place set forth in the Underwriting Agreement, upon delivery to the
Managers for the respective accounts of the several Underwriters of the
Underwriters' Securities registered in such names and in such denominations as
the Managers 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.
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V. The several obligations of the Underwriters hereunder are subject to
the following conditions:
A. 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 and there shall have been no
material adverse change in the financial condition of the Company and its
subsidiaries, taken as a whole, from that set forth in the Registration
Statement and the Prospectus; and the Managers shall have received, on the
Closing Date, a certificate, dated the Closing Date and signed by an
executive officer of the Company, to the foregoing effect. The officer
making such certificate may rely upon the best of his knowledge as to
proceedings pending or threatened.
B. The Managers shall have received on the Closing Date an opinion
of Xxxxxxxx X. Xxxxxxx, Senior Vice President, Secretary and General
Counsel of the Company or other counsel satisfactory to the Managers, dated
the Closing Date, to the effect set forth in Exhibit A and an opinion from
Sidley Xxxxxx Xxxxx & Xxxx, outside counsel for the Company, dated the
Closing Date to the effect set forth in Exhibit B.
C. The Managers shall have received on the Closing Date an opinion of
counsel for the Underwriters, dated the Closing Date, to the effect set
forth in Exhibit C.
D. The Managers shall have received on the Closing Date, a letter
dated the Closing Date in form and substance satisfactory to the Managers,
from Xxxxxx Xxxxxxxx LLP, 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 contained in or incorporated by reference
into the Registration Statement and the Prospectus.
E. Subsequent to the execution and delivery of this Agreement and
prior to the Closing Date, there shall not have occurred any downgrading in
the rating accorded the Company's debt securities by any "nationally
recognized statistical rating organization," as such term is defined for
purposes of Rule 436(g)(2) under the Securities Act or any public
announcement that any such organization has under surveillance or review
its rating of any debt securities of the Company (other than an
announcement with positive implications of a possible upgrading, or an
announcement with no implication of a possible downgrading, of such
rating).
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VI. In further consideration of the agreements of the Underwriters
contained in this Agreement, the Company covenants as follows:
A. To furnish the Managers, without charge, three signed copies of
the Registration Statement including exhibits and materials, if any,
incorporated by reference therein and, during the period mentioned in
paragraph C below, as many copies of the Prospectus, any documents
incorporated by reference therein and any supplements and amendments
thereto as the Managers may reasonably request. The terms "supplement" and
"amendment" or "amend" as used in this Agreement shall include all
documents filed by the Company with the Commission subsequent to the date
of the Basic Prospectus, pursuant to the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), which are deemed to be incorporated by
reference in the Prospectus.
B. Before amending or supplementing the Registration Statement or the
Prospectus with respect to the Offered Securities, to furnish the Managers
a copy of each such proposed amendment or supplement.
C. If, during such period after the first date of the public offering
of the Offered Securities as in the opinion of counsel for the Underwriters
the Prospectus is required by law to be delivered, 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 the light of the circumstances
when the Prospectus is delivered to a purchaser, not misleading, or if it
is necessary to amend or to supplement the Prospectus to comply with law,
forthwith to prepare and furnish, at its own expense, to the Underwriters,
either amendments or supplements to the Prospectus so that the statements
in the Prospectus as so amended or supplemented will not, in the 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 qualify the Offered Securities for offer and sale under the
securities or Blue Sky laws of such jurisdictions as the Managers shall
reasonably request and to pay all expenses (including reasonable fees and
disbursements of counsel) in connection with such qualification and in
connection with the determination of the eligibility of the Offered
Securities for investment under the laws of such jurisdictions as the
Managers may designate; provided, however, that in no event shall the
Company be required to qualify as a foreign corporation or be obligated to
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file a general consent to service of process in any jurisdiction in which
it is not now so registered.
E. To make generally available to the Company's security holders as
soon as practicable an earnings statement covering a twelve-month period
beginning after the date of the Underwriting Agreement, which shall satisfy
the provisions of Section 11(a) of the Securities Act.
F. During the period beginning on the date of the Underwriting
Agreement and continuing to and including the Closing Date, not to offer,
sell, contract to sell or otherwise dispose of any debt securities of the
Company substantially similar to the Offered Securities without the prior
written consent of the Managers.
VII. The Company represents and warrants to each Underwriter that (i)
each document, if any, filed or to be filed pursuant to the Exchange Act and
incorporated by reference in the Prospectus complied or will comply when so
filed in all material respects with such Act and the rules and regulations
thereunder, (ii) each part of the Registration Statement (including the
documents incorporated by reference therein), filed with the Commission pursuant
to the Securities Act relating to the Offered Securities, when such part became
effective, did 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, (iii) each preliminary prospectus, if any,
filed pursuant to Rule 424 under the Securities Act complied when so filed in
all material respects with such Act and the applicable rules and regulations
thereunder, (iv) the Registration Statement and the Prospectus comply and, as
amended or supplemented, if applicable, will comply in all material respects
with the Securities Act and the applicable rules and regulations thereunder and
(v) the Registration Statement and the Prospectus do not contain and, as amended
or supplemented, if applicable, will 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 the light of the circumstances under which they were
made, not misleading; except that these representations and warranties do not
apply to (i) the part of the Registration Statement which constitutes the
Statement of Eligibility and Qualification (Form T-1) under the Trust Indenture
Act of 1939, as amended, of the Trustee and (ii) statements or omissions in the
Registration Statement, any preliminary prospectus or the Prospectus based upon
information furnished to the Company in writing by any Underwriter expressly for
use therein.
The Company agrees to indemnify and hold harmless each Underwriter and each
person, if any, who controls such Underwriter within the meaning of
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either Section 15 of the Securities 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, any preliminary prospectus or the Prospectus (if used
within the period set forth in paragraph C of Article VI hereof and as amended
or supplemented if the Company shall have furnished any amendments or
supplements thereto), 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 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 in writing
to the Company by any Underwriter expressly for use therein.
Each Underwriter agrees to indemnify and hold harmless the Company, its
directors, its officers who sign the Registration Statement and any person
controlling the Company 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 in writing by such Underwriter expressly for use in
the Registration Statement, any preliminary prospectus or the Prospectus.
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 (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (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 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 reasonable 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 shall be reimbursed as they are
incurred. Such firm shall be designated in writing by the Managers in the case
of parties indemnified pursuant to the second preceding paragraph and by the
Company in the case of parties
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indemnified pursuant to the first preceding paragraph. 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.
If the indemnification provided for in this Article VII is unavailable to
an indemnified party under the second or third paragraphs hereof or insufficient
in respect of any losses, claims, damages or liabilities referred to therein,
then each indemnifying party, in lieu of indemnifying such indemnified party,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company on the
one hand and the Underwriters on the other from the offering of the Offered
Securities or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Company on the one hand and of the Underwriters on the other 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 on the one hand
and the Underwriters on the other in connection with the offering of the Offered
Securities shall be deemed to be in the same proportions as the total net
proceeds from the offering of such Offered Securities (before deducting
expenses) received by the Company bear to the total underwriting discounts and
commissions received by the Underwriters in respect thereof. The relative fault
of the Company on the one hand and of the Underwriters on the other 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.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Article VII 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 the immediately preceding paragraph. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses (including expenses of local counsel)
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Article VII, no Underwriter shall be
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required to contribute any amount in excess of the amount by which the total
price at which the Offered Securities underwritten and distributed to the public
by such Underwriter 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 Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The Underwriters' obligations
to contribute pursuant to this Article VII are several, in proportion to the
respective principal amounts of Offered Securities purchased by each of such
Underwriters, and not joint.
The indemnity and contribution agreements contained in this Article VII and
the representations and warranties of the Company in this Agreement shall remain
operative and in full force and effect regardless of (i) any termination of this
Agreement, (ii) any investigation made by any Underwriter or on behalf of any
Underwriter or any person controlling any Underwriter or by or on behalf of the
Company, its directors or officers or any person controlling the Company and
(iii) acceptance of and payment for any of the Offered Securities.
VIII. This Agreement shall be subject to termination in the absolute
discretion of the Managers, by notice given to the Company, if prior to the
Closing Date (i) trading in securities generally on the New York Stock Exchange
shall have been suspended or materially limited, (ii) a general moratorium on
commercial banking activities in New York shall have been declared by either
Federal or New York State authorities or (iii) there shall have occurred any
material outbreak or escalation of hostilities or other calamity or crisis the
effect of which on the financial markets of the United States is such as to make
it, in the judgment of the Managers, impracticable to market the Offered
Securities.
IX. If, on the Closing Date, any one or more of the Underwriters shall
fail or refuse to purchase Offered Securities which it or they have agreed to
purchase hereunder, and the aggregate principal amount of Offered Securities
which such defaulting Underwriter or Underwriters agreed but failed or refused
to purchase is not more than one-tenth of the aggregate principal amount of the
Offered Securities to be purchased, each non-defaulting Underwriter shall be
obligated severally in the proportion which the principal amount of Offered
Securities set forth opposite its name in the Underwriting Agreement pursuant to
which the Offered Securities are being purchased bears to the aggregate
principal of Offered Securities set forth opposite the names of all such non-
defaulting Underwriters, or in such other proportions as the Managers may
specify, to purchase the Offered Securities which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase; provided, however, that
in
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no event shall the principal amount of Offered Securities which any Underwriter
has agreed to purchase pursuant to such Underwriting Agreement be increased
pursuant to this Article IX by an amount in excess of one-ninth of such
principal amount of Offered Securities without the written consent of such
Underwriter. If, on the Closing Date, any Underwriter or Underwriters shall fail
or refuse to purchase Offered Securities and the aggregate principal amount of
Offered Securities with respect to which such default occurs is more than one-
tenth of the aggregate principal amount of Offered Securities to be purchased,
and arrangements satisfactory to the Managers and the Company for the purchase
of such Offered Securities are not made within 36 hours after such default, this
Agreement will terminate without liability on the part of any non-defaulting
Underwriter or the Company. In any such case the non-defaulting Underwriters
shall have the right to postpone the Closing Date, but in no event for longer
than seven days, in order that the required changes, if any, in the Registration
Statement and in the Prospectus or in any other documents or arrangements may be
effected. Any action taken under this paragraph shall not relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement.
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 or if for any reason
the Company shall be unable to perform its obligations under this Agreement, 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 Offered
Securities.
This Agreement may be signed in any number of counterparts, each of which
shall be an original, with the same effect as if the signatures thereto and
hereto were upon the same instrument.
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York.
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SCHEDULE I
DELAYED DELIVERY CONTRACT
, 200_
Dear Sirs:
The undersigned hereby agrees to purchase from Xxxx Xxx Corporation, a
Maryland corporation (the "Company"), and the Company agrees to sell to the
undersigned
$____________
principal amount of the Company's [state title of issue] (the
"Securities"), offered by the Company's prospectus dated ________________, 200_
and Prospectus Supplement dated _______________, 200_, receipt of copies of
which are hereby acknowledged, at a purchase price of ___% of the principal
amount thereof plus accrued interest thereon from the dates 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 Securities in the principal
amounts and on the delivery dates set forth below:
Plus Accrued
Delivery Date Principal Amount Interest From:
-------------- -------------------- -------------
______________ $ __________________ _____________
______________ $ __________________ _____________
______________ $ __________________ _____________
Each such date on which Securities are to be purchased hereunder is
hereinafter referred to as a "Delivery Date."
Payment for the Securities which the undersigned has 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, N.Y., at 10:00 A.M. (New York time)
on the Delivery Date, upon delivery to the undersigned of the Securities to be
purchased by the undersigned on the 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 the Delivery Date.
The obligation of the undersigned to take delivery of and make payment for
the Securities on the 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 delivery shall
have taken place to the underwriters (the "Underwriters") named in the
Prospectus Supplement referred to above of, 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 a copy of the opinion 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.
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.
2
If this contract is acceptable to the Company, it is requested that the
Company sign the form of acceptance below and mail or deliver one of the
counterparts hereof to the undersigned at its address set forth below. This will
become a binding contract, 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
---------------------------
-----------------------------
Name:
Title:
-----------------------------
-----------------------------
(Address)
Accepted:
XXXX XXX CORPORATION
By
----------------------------
Name:
Title:
3
PURCHASER--PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone and department of the representative of the
Purchaser with whom details of delivery on the Delivery Date may be discussed is
as follows: (Please print.)
Telephone No.
Name (Including Area Code) Department
---------- ---------------------- -----------
---------- ---------------------- -----------
---------- ---------------------- -----------
---------- ---------------------- -----------
4
EXHIBIT A
Opinion of Xxxxxxxx X. Xxxxxxx,
Senior Vice President, General Counsel and Secretary of the Company
The opinion of Xxxxxxxx X. Xxxxxxx, Senior Vice President, General Counsel
and Secretary of the Company, to be delivered pursuant to the Underwriting
Agreement shall be to the effect that:
(i) the Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Maryland and
is duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or the ownership or
leasing of property requires such qualification, except where the failure
to obtain such qualification or be in good standing would not reasonably be
expected to have a material adverse effect on the present consolidated
financial condition of the Company and its consolidated subsidiaries, taken
as a whole;
(ii) each "significant subsidiary" (as defined in Regulation S-X of
the Securities and Exchange Commission) of the Company has been duly
incorporated and 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 the ownership or leasing of
property requires such qualification, except where the failure to obtain
such qualification or be in good standing would not reasonably be expected
to have a material adverse effect on the present consolidated financial
condition of the Company and its consolidated subsidiaries, taken as a
whole; and all of the issued and outstanding capital stock of each such
subsidiary has been duly and validly issued and is fully paid and non-
assessable and the Company owns its interest in the capital stock of each
such subsidiary free and clear of any mortgage, pledge, lien, encumbrance,
claim or equity;
(iii) the Indenture has been duly authorized, executed and delivered
by the Company;
(iv) the Offered Securities have been duly authorized by the
Company;
(v) the Underwriting Agreement has been duly authorized, executed
and delivered by the Company;
A-1
(vi) the Delayed Delivery Contracts, if any, have been duly
authorized, executed and delivered by the Company;
(vii) the execution, delivery and performance by the Company of the
Underwriting Agreement and the sale of the Offered Securities as provided
therein will not result in any violation or contravention of any provisions
of (1) to the best of such counsel's knowledge, applicable law, (2) the
charter or by-laws of the Company or (3) any indenture, mortgage or other
agreement known to such counsel to which the Company or any of its
subsidiaries is bound, except, with respect to (3), violations or
contraventions which would not reasonably be expected to have a material
adverse effect on the present consolidated financial condition of the
Company and its consolidated subsidiaries, taken as a whole; and, to the
best of such counsel's knowledge, no consent, approval or authorization of
any governmental body is required, except such as are specified and have
been obtained; and
(viii) such counsel (1) is of the opinion that each document, if any,
filed pursuant to the Securities Exchange Act of 1934 and incorporated by
reference in the Prospectus (except for financial statements contained or
incorporated by reference therein, as to which such counsel need not
express any opinion) complied when so filed as to form in all material
respects with such Act and the rules and regulations thereunder, and (2) is
of the opinion that the Registration Statement (except for financial
statements contained or incorporated by reference therein, as to which such
counsel need not express any opinion), when it became effective, and the
Prospectus (except for financial statements contained therein, as to which
such counsel need not express any opinion), as amended or supplemented, if
applicable, on the date of the Underwriting Agreement, complied as to form
in all material respects with the Securities Act of 1933 and the rules and
regulations thereunder.
In addition, such counsel shall state that such counsel or lawyers on
his staff participated in the preparation of the Registration Statement,
the Prospectus and the documents incorporated by reference in the
Prospectus and nothing has come to such counsel's attention that leads him
to believe that either the Registration Statement (except for financial
statements, financial data and supporting schedules contained or
incorporated by reference therein, as to which such counsel need not
express any belief), at the time it became effective, or, if an amendment
to the Registration Statement or an Annual Report on Form 10-K has been
filed with the Securities and Exchange Commission subsequent to the
effectiveness of the Registration Statement, then at the time such
amendment became
A-2
effective or at the time of the most recent such filing, contained 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, or the Prospectus (except for financial statements,
financial data and supporting schedules contained or incorporated by
reference therein, as to which such counsel need not express any belief),
as of the date of the Prospectus and on the Closing Date, included or
includes 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.
A-3
EXHIBIT B
Opinion of Sidley Xxxxxx Xxxxx & Xxxx
The opinion of Sidley Xxxxxx Xxxxx & Xxxx, special counsel to the Company,
to be delivered pursuant to the Underwriting Agreement shall be to the effect
that:
(i) the Indenture has been duly qualified under the Trust Indenture
Act of 1939, as amended, and, assuming the due authorization, execution and
delivery thereof by the Company and the Trustee, constitutes the legal,
valid and binding obligation of the Company enforceable against the Company
in accordance with its terms, except to the extent enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer or other similar laws of general applicability relating to or
affecting the enforcement of creditors' rights and by the effect of general
principles of equity (regardless of whether enforceability is considered in
a proceeding in equity or at law);
(ii) assuming that the Offered Securities have been duly authorized
by the Company, when duly executed and authenticated in accordance with the
provisions of the Indenture and delivered to and paid for by the Managers
in accordance with the terms of the Underwriting Agreement, the Offered
Securities will constitute legal, valid and binding obligations of the
Company enforceable against the Company in accordance with their respective
terms, except to the extent enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer or other
similar laws of general applicability relating to or affecting the
enforcement of creditors' rights and by the effect of general principles of
equity (regardless of whether enforceability is considered in a proceeding
in equity or at law);
(iii) assuming that the Delayed Delivery Contracts, if any, have been
duly authorized, executed and delivered by the Company and each other party
thereto, the Delayed Delivery Contracts, if any, constitute legal, valid
and binding obligations of the Company enforceable against the Company in
accordance with their terms, except to the extent enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer or other similar laws of general applicability relating to or
affecting the enforcement of creditors' rights and by the effect of general
principles of equity (regardless of whether enforceability is considered in
a proceeding in equity or at law);
B-1
(iv) the Offered Securities and the Indenture conform as to legal
matters in all material respects to the descriptions thereof contained in
the Prospectus; and the statements in the Prospectus under the captions
"Description of Debt Securities" (except for the statements set forth under
"--Form and Exchange of Debt Securities"), "Plan of Distribution,"
"Description of the Notes" (except for the statements set forth under "--
Book Entry System; Delivery and Form") and "Underwriting," to the extent
that such statements constitute summaries of certain provisions of the
Offered Securities, the Indenture and the Underwriting Agreement, have been
reviewed by such counsel and are correct in all material respects;
(v) such counsel is of the opinion that the Registration Statement
(other than the financial statements, financial data, statistical data and
supporting schedules included or incorporated by reference therein, as to
which such counsel need not express any opinion), at the time it became
effective, complied as to form in all material respects with the
requirements of the Securities Act of 1933 and the rules and regulations
thereunder.
In addition, such counsel shall state that they have participated in
conferences with officers and other representatives of the Company,
including its independent public accountants, in the preparation of (A) the
Registration Statement and (B) the Prospectus (which representatives of the
Managers and counsel to the Managers participated in) and, except as set
forth in (iv) above, although such counsel are not passing upon, and do not
assume responsibility for, the accuracy, completeness or fairness of the
statements contained in the Registration Statement or Prospectus and have
not made any independent check or verification thereof, nothing has come to
such counsel's attention that causes them to believe that either the
Registration Statement (other than the financial statements, financial
data, statistical data and supporting schedules included or incorporated by
reference therein, as to which such counsel need not express any belief),
at the time it became effective, or, if an amendment to the Registration
Statement or an Annual Report on Form 10-K has been filed with the
Securities and Exchange Commission subsequent to the effectiveness of the
Registration Statement, then at the time such amendment became effective or
at the time of the most recent such filing, contained 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, or the
Prospectus (other than the financial statements, financial data,
statistical data and supporting schedules included or incorporated by
reference therein, as to which such counsel need not express any belief),
as
B-2
of the date of the Prospectus and on the Closing Date, included or includes
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.
Such counsel may limit their opinion letter to the federal laws of the
United States and the laws of the State of New York.
B-3
EXHIBIT C
Opinion of Counsel for the Underwriters
The opinion of counsel for the Underwriters, to be delivered pursuant to
Article V, paragraph C of the document entitled Xxxx Xxx Corporation
Underwriting Agreement Standard Provisions (Debt) shall be to the effect that:
(i) the Indenture has been duly authorized, executed and delivered
by the Company and is a valid and binding agreement of the Company and has
been duly qualified under the Trust Indenture Act of 1939,
(ii) the Offered 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, if any, pursuant to Delayed Delivery Contracts,
will be valid and binding obligations of the Company in accordance with
their terms,
(iii) the Underwriting Agreement has been duly authorized, executed
and delivered by the Company and is a valid and binding agreement of the
Company, except as rights to indemnity thereunder may be limited by
applicable law,
(iv) the Delayed Delivery Contracts, if any, have been duly
authorized, executed and delivered by the Company and are valid and binding
agreements of the Company,
(v) the statements in the Prospectus under "Description of Debt
Securities", "Plan of Distribution", "Description of the Notes" and
"Underwriting", insofar as such statements constitute a summary of the
documents or proceedings referred to therein, fairly present the
information called for with respect to such documents and proceedings and
(vi) such counsel (1) is of the opinion that the Registration
Statement and Prospectus, as amended or supplemented, if applicable (except
as to financial statements contained therein, as to which such counsel need
not express any opinion) comply as to form in all material respects with
the Securities Act and the rules and regulations thereunder and (2)
believes that (except for the financial statements contained therein, as to
which such counsel need not express any belief) the Registration
C-1
Statement and the Prospectus on the date of the Underwriting Agreement did
not, and the Prospectus, as amended or supplemented, if applicable, on the
Closing Date does 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 the light of the circumstances under which they were made, not
misleading; provided that such counsel may state that their opinion and
belief is based upon their participation in the preparation of the
Registration Statement and the Prospectus and any amendments and
supplements thereto (other than the documents incorporated by reference
therein) and review and discussion of the contents thereof, but is without
independent check or verification except as specified.
C-2
