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EXHIBIT 1(a)(1)
X.X. XXXXXX INDEX FUNDING COMPANY I
$[ ]
Commodity-Indexed Preferred Securities (ComPS), Series [ ] fully
and unconditionally guaranteed, as described herein,
by
X.X. XXXXXX & CO. INCORPORATED
UNDERWRITING AGREEMENT
New York, New York
[ ], 199[ ]
X.X. Xxxxxx Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
X.X. Xxxxxx Index Funding Company I, a Delaware statutory
business trust (the "Trust"), and X.X. Xxxxxx & Co. Incorporated, a Delaware
corporation (the "Company"), as sponsor of the Trust and as guarantor, propose
to issue and sell to the underwriters named in Schedule I (the "Underwriters"),
for whom you (the "Representative") are acting as representative, [ ] of
its Commodity-Indexed Preferred Securities (ComPS), Series [ ] (the "Preferred
Securities" and, together with the Guarantee (as defined) and the Related Note
Guarantee (as defined), the "Securities"). The Preferred Securities will
represent undivided beneficial ownership interests in the assets of the Trust
consisting of the Related Note (as defined below) and the proceeds thereof, will
be guaranteed by the Company as to the payment of distributions, and as to
payments on liquidation or redemption, to the extent set forth in a guarantee
agreement (the "Guarantee") dated as of [ ], 199[ ] between the
Company and First Trust of New York, National Association, as trustee (the
"Guarantee Trustee"). The Securities are to be issued pursuant to the Amended
and Restated Declaration of Trust (the "Declaration") dated as of October 10,
1997. The proceeds of the sale by the Trust of the Securities and its related
Common Securities, Series [ ] (the "Common
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Securities"), are to be loaned to Xxxxxx Guaranty Trust Company of New York
("Xxxxxx Guaranty"), such loan to be evidenced by a note (the "Related Note") to
be issued by Xxxxxx Xxxxxxxx to the Trust having an aggregate principal amount
equal to the aggregate initial public offering price of the Securities and the
Common Securities. Payments of accrued and unpaid distributions that are
required to be paid by Xxxxxx Xxxxxxxx under the Related Note and principal
payable by Xxxxxx Xxxxxxxx under the Related Note will be guaranteed by X.X.
Xxxxxx to the extent set forth in a related note guarantee agreement (the
"Related Note Guarantee") dated as of [ ], 199[ ] by X.X. Xxxxxx in
favor of the Trust, as holder of the Related Note.
1. Representations and Warranties. Each of the Trust and the
Company represents and warrants to the Underwriters as set forth below in this
Section 1.
(a) If the offering of the Securities is a Delayed Offering (as
specified in Schedule I hereto), paragraph (i) below is applicable and,
if the offering of the Securities is a Non-Delayed Offering (as so
specified), paragraph (ii) below is applicable.
(i) The Company and the Trust have complied with the
requirements for the use of Form S-3 under the Securities Act of
1933 (the "Act") and have filed with the Securities and Exchange
Commission (the "Commission") a registration statement (file
numbers 333-01121 and 333-01121-01) on such Form, including a
basic prospectus, for registration under the Act of the offering
and sale of the Securities. The Company and the Trust may have
filed one or more amendments thereto, and may have used a
Preliminary Final Prospectus, each of which has previously been
furnished to you. Such registration statement, as so amended, has
become effective. The offering of the Securities is a Delayed
Offering and, although the Basic Prospectus may not include all
the information with respect to the Securities and the offering
thereof required by the Act and the rules thereunder to be
included in the Final Prospectus, the Basic Prospectus includes
all such information required by the Act and the rules thereunder
to be included therein as of the Effective Date. The Company and
the Trust will next file with the Commission pursuant to Rules
415 and 424(b)(2) or
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(5) a final supplement to the form of prospectus included in such
registration statement relating to the Securities and the
offering thereof. As filed, such final prospectus supplement
shall include all required information with respect to the
Securities and the offering thereof and, except to the extent the
Representative shall agree in writing to a modification, shall be
in all substantive respects in the form furnished to you prior to
the Execution Time or, to the extent not completed at the
Execution Time, shall contain only such specific additional
information and other changes (beyond that contained in the Basic
Prospectus and any Preliminary Final Prospectus) as the Company
has advised you, prior to the Execution Time, will be included or
made therein.
(ii) The Company and the Trust have complied with the
requirements for the use of Form S-3 under the Act and have filed
with the Commission a registration statement (file number
333-01121 and 333-01121-01) on such Form, including a basic
prospectus, for registration under the Act of the offering and
sale of the Securities. The Company and the Trust may have filed
one or more amendments thereto, including a Preliminary Final
Prospectus, each of which has previously been furnished to you.
The Company and the Trust will next file with the Commission
either (x) a final prospectus supplement relating to the
Securities in accordance with Rules 430A and 424(b)(1) or (4), or
(y) prior to the effectiveness of such registration statement, an
amendment to such registration statement, including the form of
final prospectus supplement. In the case of clause (x), the
Company has included in such registration statement, as amended
at the Effective Date, all information (other than Rule 430A
Information) required by the Act and the rules thereunder to be
included in the Final Prospectus with respect to the Securities
and the offering thereof. As filed, such final prospectus supple-
ment or such amendment and form of final prospectus supplement
shall contain all Rule 430A Information, together with all other
such required information, with respect to the Securities and the
offering thereof.
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(b) On the Effective Date, the Registration Statement did or
will, and when the Final Prospectus is first filed (if required) in
accordance with Rule 424(b) and on the Closing Date, the Final Pro-
spectus (and any supplement thereto) will, comply in all material
respects with the applicable requirements of the Act, the Securities
Exchange Act of 1934 (the "Exchange Act") with respect to the documents
incorporated by reference and the Trust Indenture Act of 1939 (the
"Trust Indenture Act") and the respective rules thereunder; on the
Effective Date, the Registration Statement did not or will not contain
any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to make the
statements therein not misleading; on the Effective Date and on the
Closing Date the Indenture did or will comply in all material respects
with the requirements of the Trust Indenture Act and the rules
thereunder; and, on the Effective Date, the Final Prospectus, if not
filed pursuant to Rule 424(b), did not or will not, and on the date of
any filing pursuant to Rule 424(b) and on the Closing Date, the Final
Prospectus (together with any supplement thereto) will not, include 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,
however, that neither the Company nor the Trust makes any
representations or warranties as to (i) that part of the Registration
Statement which shall constitute the Statement of Eligibility and
Qualification (Form T-1) under the Trust Indenture Act of the Trustee or
(ii) the information contained in or omitted from the Registration
Statement or the Final Prospectus (or any supplement thereto) in
reliance upon and in conformity with information furnished in writing to
the Company by or on behalf of any Underwriter through the Representa-
tive specifically for inclusion in the Registration Statement or the
Final Prospectus (or any supplement thereto).
(c) The terms which follow, when used in this Agreement, shall
have the meanings indicated. The term "the Effective Date" shall mean
each date that the Registration Statement and any post-effective
amendment or amendments thereto became or become effective and
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each date after the date hereof on which a document incorporated by
reference in the Registration Statement is filed. "Execution Time" shall
mean the date and time that this Agreement is executed and delivered by
the parties hereto. "Basic Prospectus" shall mean the prospectus
referred to in paragraph (a) above contained in the Registration
Statement at the Effective Date including, in the case of a Non-Delayed
Offering, any Preliminary Final Prospectus. "Preliminary Final
Prospectus" shall mean any preliminary prospectus supplement to the
Basic Prospectus which describes the Securities and the offering thereof
and is used prior to filing of the Final Prospectus. "Final Prospectus"
shall mean the prospectus supplement relating to the Securities that is
first filed pursuant to Rule 424(b) after the Execution Time, together
with the Basic Prospectus or, if, in the case of a Non-Delayed Offering,
no filing pursuant to Rule 424(b) is required, shall mean the form of
final prospectus relating to the Securities, including the Basic
Prospectus, included in the Registration Statement at the Effective
Date. "Registration Statement" shall mean the registration statement
referred to in paragraph (a) above, including incorporated documents,
exhibits and financial statements, as amended at the Execution Time (or,
if not effective at the Execution Time, in the form in which it shall
become effective) and, in the event any post-effective amendment thereto
becomes effective prior to the Closing Date (as hereinafter defined),
shall also mean such registration statement as so amended. Such term
shall include any Rule 430A Information deemed to be included therein at
the Effective Date as provided by Rule 430A. "Rule 415", "Rule 424",
"Rule 430A" and "Regulation S-K" refer to such rules or regulation under
the Act. "Rule 430A Information" means information with respect to the
Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
Any reference herein to the Registration Statement, the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus
shall be deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 which were filed under
the Exchange Act on or before the Effective Date of the Registration
Statement or the issue date of the Basic Prospectus, any Preliminary
Final Prospectus or the Final Prospectus, as the case may be; and any
reference
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herein to the terms "amend", "amendment" or "supplement" with respect to
the Registration Statement, the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus shall be deemed to refer to and
include the filing of any document under the Exchange Act after the
Effective Date of the Registration Statement or the issue date of the
Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus, as the case may be, deemed to be incorporated therein by
reference. A "Non-Delayed Offering" shall mean an offering of securities
which is intended to commence promptly after the effective date of a
registration statement, with the result that, pursuant to Rules 415 and
430A, all information (other than Rule 430A Information) with respect to
the securities so offered must be included in such registration
statement at the effective date thereof. A "Delayed Offering" shall mean
an offering of securities pursuant to Rule 415 which does not commence
promptly after the effective date of a registration statement, with the
result that only information required pursuant to Rule 415 need be
included in such registration statement at the effective date thereof
with respect to the securities so offered. Whether the offering of the
Securities is a Non-Delayed Offering or a Delayed Offering shall be set
forth in Schedule I hereto.
2. Purchase and Sale. (a) Subject to the terms and conditions and
in reliance upon the representations and warranties herein set forth, the Trust
and the Company agree that the Trust will sell to each Underwriter, and each
Underwriter agrees to purchase from the Trust, at a purchase price of $[ ]
per Security, plus accrued distributions, if any, from [ ], 199[ ] to
the Closing Date, the number of Securities set forth opposite such Underwriter's
name in Schedule I hereto.
As compensation for the commitments of the Underwriters contained
in this Section 2, Xxxxxx Xxxxxxxx hereby agrees to pay to the Underwriters an
amount equal to $[ ] per Security times the total number of Securities
purchased by the Underwriters on the Closing Date as commissions for the sale of
such Securities under this Agreement. Such payment will be made on the Closing
Date with respect to the Securities.
3. Delivery and Payment. Delivery of and payment for the
Securities shall be made at [ ] AM, New York City
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time, on [ ], 199[ ], or such later date (not later than [ ],
199[ ]) as the Representative shall designate, which date and time may be
postponed by agreement among the Representative, the Trust and the Company (such
date and time of delivery and payment for the Securities being herein called the
"Closing Date"). Delivery of the Securities shall be made to the Representative
against payment by the Representative of the purchase price thereof to or upon
the order of the Trust by wire transfer drawn and payable in same day funds or
such other manner of payment as may be agreed by the Company, the Trust and the
Representative. Delivery of the Securities shall be made at such location as the
Representative shall reasonably designate at least one business day in advance
of the Closing Date and payment for the Securities shall be made at the office
of the Company, 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx. Certificates for the
Securities shall be registered in such names and in such denominations as the
Representative may request not less than three full business days in advance of
the Closing Date.
The Company agrees to have the Securities available for
inspection, checking and packaging by the Representative in New York, New York,
not later than 1:00 PM on the business day prior to the Closing Date.
4. Agreements. Each of the Trust and the Company agrees with the
several Underwriters that:
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(a) The Company and the Trust will use their best efforts to
cause the Registration Statement, if not effective at the Execution
Time, and any amendment thereto, to become effective. Prior to the
termination of the offering of the Securities, neither the Company nor
the Trust will file any amendment of the Registration Statement or
supplement (including the Final Prospectus or any Preliminary Final
Prospectus) to the Basic Prospectus unless the Company has furnished you
a copy for your review and given a reasonable opportunity to comment on
any such proposed amendment or supplement. Subject to the foregoing
sentence, the Company and the Trust will cause the Final Prospectus,
properly completed, and any supplement thereto to be filed with the
Commission pursuant to the applicable paragraph of Rule 424(b) within
the time period prescribed and will provide evidence satisfactory to the
Representative of such timely filing. The Company will promptly advise
the Representative (i) when the Registration Statement, if not
effective at the Execution Time, and any amendment thereto, shall have
become effective, (ii) when the Final Prospectus, and any supplement
thereto, shall have been filed with the Commission pursuant to Rule
424(b), (iii) when, prior to termination of the offering of the
Securities, any amendment to the Registration Statement shall have been
filed or become effective, (iv) of any request by the Commission for any
amendment of the Registration Statement or supplement to the Final
Prospectus or for any additional information, (v) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any
proceeding for that purpose and (vi) of the receipt by the Company or
the Trust of any notification with respect to the suspension of the
qualification of the Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose. The
Company or the Trust will use their best efforts to prevent the issuance
of any such stop order and, if issued, to obtain as soon as possible the
withdrawal thereof.
(b) If, at any time when a prospectus relating to the Securities
is required to be delivered under the Act, any event occurs as a result
of which the Final Prospectus as then supplemented would include any
untrue statement of a material fact or omit to state
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any material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading, or if
it shall be necessary to amend the Registration Statement or supplement
the Final Prospectus to comply with the Act or the Exchange Act or the
respective rules thereunder, the Company and the Trust promptly will (i)
prepare and file with the Commission, subject to the second sentence of
paragraph (a) of this Section 4, an amendment or supplement which will
correct such statement or omission or effect such compliance and (ii)
supply any supplemented Prospectus to you in such quantities as you may
reasonably request.
(c) As soon as practicable, the Company will make generally
available to its security holders and to the Representative an earnings
statement or statements of the Company and its subsidiaries which will
satisfy the provisions of Section 11(a) of the Act and Rule 158 under
the Act.
(d) The Company will furnish to the Representative and counsel
for the Underwriters, without charge, copies of the Registration
Statement (including exhibits thereto) and, so long as delivery of a
prospectus by an Underwriter or dealer may be required by the Act, as
many copies of any Preliminary Final Prospectus and the Final Prospectus
and any supplement thereto as the Representative may reasonably request.
The Company will pay the expenses of printing or other production of all
documents relating to the offering.
(e) The Company will arrange for the qualification of the
Securities for sale under the laws of such jurisdictions as the
Representative may designate, will maintain such qualifications in
effect so long as required for the distribution of the Securities
(provided that the Company shall not be required in connection therewith
to qualify as a foreign corporation or to execute a general consent to
service of process in any state) and will arrange for the determination
of the legality of the Securities for purchase by institutional
investors.
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5. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Underwriters' Securities shall
be subject to the accuracy of the representations and warranties on the part of
the Company and the Trust contained herein as of the Execution Time and the
Closing Date, to the accuracy of the statements of the Company and the Trust
made in any certificates pursuant to the provisions hereof, to the performance
by the Company and the Trust of their obligations hereunder and to the following
additional conditions:
(a) If the Registration Statement has not become effective prior
to the Execution Time, unless the Representative agree in writing to a
later time, the Registration Statement will become effective not later
than (i) 6:00 PM New York City time, on the date of determination of the
public offering price, if such determination occurred at or prior to
3:00 PM New York City time on such date or (ii) 12:00 Noon on the
business day following the day on which the public offering price was
determined, if such determination occurred after 3:00 PM New York City
time on such date; if filing of the Final Prospectus, or any supplement
thereto, is required pursuant to Rule 424(b), the Final Prospectus, and
any such supplement, shall have been filed in the manner and within the
time period required by Rule 424(b); and no stop order suspending the
effectiveness of the Registration Statement shall have been issued and
no proceedings for that purpose shall have been instituted or
threatened.
(b) The Trust and the Company shall have furnished to the
Underwriters the opinion of Xxxx X. Xxxxxxx, Esq., Vice President and
Assistant General Counsel of the Company, counsel to the Trust and the
Company, in form and scope satisfactory to the Representative.
(c) The Trust and the Company shall have furnished to the
Underwriters the opinion of Xxxxxxx, Swaine & Xxxxx, special tax counsel
to the Trust and the Company, dated the Closing Date, to the effect that
the statements set forth under the heading "Certain United States
Federal Income Consequences" in the Prospectus, insofar as such
statements purport to summarize the United States federal income tax
consequences of the purchase, ownership and disposition
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of the Securities, provide a fair summary of such consequences.
(d) First Trust of New York, National Association shall have
furnished to the Underwriters the opinion of their counsel, dated the
Closing Date, to the effect that:
(i) First Trust of New York, National Association has been
duly incorporated and is validly existing as a National
Association;
(ii) each of the Declaration and the Guarantee has been
duly authorized, executed and delivered by the Property Trustee
and the Guarantee Trustee, respectively, and constitutes a legal,
valid and binding instrument enforceable against the Property
Trustee and the Guarantee Trustee in accordance with its
respective terms (subject, as to the enforcement of remedies, to
applicable bankruptcy, reorganization, insolvency, moratorium or
other laws affecting creditors' rights generally from time to
time in effect);
(iii) no consent, approval, authorization or order of any
federal banking authority is required for the consummation of the
transactions contemplated by the Declaration or the Guarantee by
the Property Trustee or the Guarantee Trustee, respectively; and
(iv) neither the execution and delivery of the Declaration
or the Guarantee, the consummation of any other of the
transactions herein or therein contemplated nor the fulfillment
of the terms hereof or thereof will conflict with, result in a
breach or violation of, or constitute a default under any law or
the charter or by-laws of First Trust of New York, National
Association or the terms of any indenture or other agreement or
instrument known to such counsel and to which First Trust of New
York, National Association is a party or bound or any judgment,
order or decree known to such counsel to be applicable to First
Trust of New York, National Association of any court, regulatory
body, administrative agency, governmental body or arbitrator
having jurisdiction over First Trust of New York, National
Association.
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(e) Wilmington Trust Company shall have furnished to the
Underwriters the opinion of Xxxxxx, Nichols, Arsht & Xxxxxxx, special
counsel to Wilmington Trust Company, dated the Closing Date, to the
effect that Wilmington Trust Company has been duly incorporated and is
validly existing as a banking corporation in good standing under the
laws of the State of Delaware; and has full corporate power and
authority to act as trustee of a statutory business trust under the laws
of the State of Delaware.
(f) The Underwriters shall have received from Cravath, Swaine &
Xxxxx, special counsel to the Underwriters, such opinion or opinions,
dated the Closing Date, with respect to the issuance and sale of the
Securities, and other related matters as the Underwriters may reasonably
require, and the Company shall have furnished to such counsel such
documents as they request for the purpose of enabling them to pass upon
such matters.
(g) Each of the Company and the Trust shall have furnished to the
Underwriters a certificate of the Company and the Trust, as applicable,
signed by an officer of the Company and the Trust, as applicable, dated
the Closing Date, to the effect that the signers of such certificate
have carefully examined the Prospectus, any amendment or supplement to
the Prospectus and this Agreement and that:
(i) the representations and warranties of the Company and
the Trust, as applicable, in this Agreement are true and correct
in all material respects on and as of the Closing Date with the
same effect as if made on the Closing Date, and the Company and
the Trust, as applicable, has complied with all the agreements
and satisfied all the conditions on its part to be performed or
satisfied hereunder at or prior to the Closing Date; and
(ii) in the case of the certificate of the Company, since
the date of the most recent financial statements included in the
Prospectus, there has been no material adverse change in the
financial or business condition or earnings of the Company and
its subsidiaries, considered as a
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whole, whether or not arising from transactions in the ordinary
course of business, except as set forth in or contemplated by
the Prospectus (exclusive of any amendment or supplement
thereto).
(h) At the Closing Date, Price Waterhouse LLP shall have
furnished to the Underwriters a letter or letters, dated as of the
Closing Date, in form and substance satisfactory to the Representative.
(i) Subsequent to the Execution Time or, if earlier, the dates as
of which information is given in the Prospectus, there shall not have
been any change, or any development involving a prospective change, in
or affecting the business or properties of the Company and its
subsidiaries the effect of which, is, in the judgment of the
Representative, so material and adverse as to make it impractical or
inadvisable to market the Securities as contemplated by the Prospectus.
(j) Prior to the Closing Date, the Trust and the Company shall
have furnished to the Underwriters such further information,
certificates and documents as the Underwriters may reasonably request.
If any of the conditions specified in this Section 5 shall not
have been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Representative and Xxxxxxx, Swaine &
Xxxxx, counsel to the Underwriters, this Agreement and all obligations of the
Underwriters hereunder may be canceled at, or at any time prior to, the Closing
Date by the Representative. Notice of such cancellation shall be given to the
Trust and the Company in writing or by telephone or telegraph confirmed in
writing.
The documents required to be delivered by this Section 5 will be
delivered at the offices of the Company, at 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx,
on the Closing Date.
6. Reimbursement of Expenses. If the sale of the Securities
provided for herein is not consummated because any condition to the obligations
of the Underwriters set forth in Section 5 hereof is not satisfied, because of
any
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termination pursuant to Section 8 hereof or because of any refusal, inability or
failure on the part of the Company or the Trust to perform any agreement herein
or comply with any provision hereof other than by reason of a default by the
Underwriters in payment for the Securities on the Closing Date, the Company will
reimburse the Underwriters upon demand for all reasonable out-of-pocket expenses
(including reasonable fees and disbursements of counsel) that shall have been
incurred by it in connection with the proposed purchase and sale of the
Securities.
7. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless each Underwriter and each person, if any, who
controls each Underwriter within the meaning of 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 (including without limitation the legal
fees and other expenses incurred in connection with any suit, action or
proceeding or any claim asserted) caused by any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement or
any amendment thereof or the Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto) 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 not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with
written information furnished to the Company by or on behalf of any Underwriter
through the Representative expressly for use therein.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, its directors, its officers who sign the Registration
Statement and each person who controls the Company within the meaning of Section
15 of the Securities Act and 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 each 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 preliminary
prospectus.
(c) If any suit, action, proceeding (including any governmental
or regulatory investigation), claim or demand shall be brought or asserted
against any person in
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respect of which indemnity may be sought pursuant to either of the two preceding
paragraphs, such person (the "Indemnified Person") shall promptly notify the
person against whom such indemnity may be sought (the "Indemnifying Person") in
writing, and the Indemnifying Person, upon request of the Indemnified Person,
shall retain counsel reasonably satisfactory to the Indemnified Person to
represent the Indemnified Person and any others the Indemnifying Person may
designate in such proceeding and shall pay the fees and expenses of such counsel
related to such proceeding. In any such proceeding, any Indemnified Person 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 Person unless (i) the
Indemnifying Person and the Indemnified Person shall have mutually agreed to the
contrary, (ii) the Indemnifying Person has failed within a reasonable time to
retain counsel reasonably satisfactory to the Indemnified Person or (iii) the
named parties in any such proceeding (including any impleaded parties) include
both the Indemnifying Person and the Indemnified Person 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 Person shall not, in connection with any proceeding or related
proceeding 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 Indemnified
Persons. Any such separate firm for an Underwriter and such control persons of
an Underwriter shall be designated in writing by such Underwriter and any such
separate firm for the Company, its directors, its officers who sign the
Registration Statement and such control persons of the Company shall be
designated in writing by the Company. The Indemnifying Person 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 Person agrees to indemnify any Indemnified
Person from and against any loss or liability by reason of such settlement or
judgment.
(d) If the indemnification provided for in paragraphs (a) or (b)
this Section 7 is unavailable to an Indemnified Person or insufficient in
respect of any losses, claims, damages or liabilities referred to herein, then
each Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person 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
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one hand and the Underwriters on the other from the offering of the Securities
or (ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company on the one hand and the Underwriters on the other in connection with
the statements or omissions that resulted in such losses, claims, damages 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 such Securities shall be deemed
to be in the same respective proportion as the net proceeds from the offering of
such Securities (before deducting expenses) received by the Company and the
total discounts and commissions received by the Underwriters in respect thereof
bear to the aggregate offering price of such Securities. 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
statement of a material fact or the omission or alleged untrue statement of a
material fact relates to information supplied by the Company on the one hand or
by the Underwriters on the other and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
The Company and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this subsection (d) were determined by
pro rata allocation or by any other method of allocation that does not take
account of the equitable considerations referred to above in this subsection
(d). The amount paid or payable by an Indemnified Person as a result of the
losses, claims, damages and liabilities referred to above in this Section 7
shall be deemed to include, subject to the limitations set forth above, any
legal or other expenses incurred by such Indemnified Person in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 7, in no event shall any Underwriter be required to
contribute any amount in excess of the amount by which the total price at which
the Securities referred to in Section 7(d) that were sold by or through such
Underwriter exceeds the amount of any damages that such Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
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fraudulent misrepresentation. The obligation of each Underwriter to contribute
pursuant to this subsection 7(d) is several in proportion to the respective
principal amounts of the Securities purchased by each of the Underwriters and is
not joint.
8. Default by an Underwriter. If any one or more Underwriters
shall fail to purchase and pay for any of the Securities agreed to be purchased
by such Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Securities set
forth opposite their names in Schedule I hereto bears to the aggregate amount of
Securities set forth opposite the names of all the remaining Underwriters) the
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase; provided, however, that in the event that the aggregate amount of
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase shall exceed 10% of the aggregate amount of Securities set forth in
Schedule I hereto, the remaining Underwriters shall have the right to purchase
all, but shall not be under any obligation to purchase any, of the Securities,
and if such nondefaulting Underwriters do not purchase all the Securities, this
Agreement will terminate without liability to any nondefaulting Underwriter or
the Company. In the event of a default by any Underwriter as set forth in this
Section 8, the Closing Date shall be postponed for such period, not exceeding
seven days, as the Representative shall determine in order that the required
changes in the Registration Statement and the Final Prospectus or in any other
documents or arrangements may be effected. Nothing contained in this Agreement
shall relieve any defaulting Underwriter of its liability, if any, to the
Company and any nondefaulting Underwriter for damages occasioned by its default
hereunder.
9. Termination. This Agreement shall be subject to termination in
the absolute discretion of the Representative, by notice given to the Company,
prior to delivery of and payment for the Securities, if prior to such time (i)
trading in any of the Company's securities shall have been suspended by the
Commission or the New York Stock Exchange or trading in securities generally on
the New York Stock Exchange shall have been suspended or limited or minimum
prices shall have been established on the New York Stock Exchange, (ii) a
banking moratorium shall have been declared either by Federal or New York State
authorities or (iii) there shall have occurred any outbreak or escalation
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of hostilities involving the United States or the declaration by the United
States of a national emergency or war or crisis the effect of which on the
financial markets of the United States is such as to make it, in the reasonable
judgment of the Representative, impracticable to proceed with the offering or
delivery of the Securities, or in the reasonable judgment of the Company,
impracticable to issue such Securities as contemplated by the Prospectus.
10. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or the Trust or its officers or Trustees and of the Underwriters set
forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation made by or on behalf of any Underwriter
or the Company or the Trust or any of the officers, directors, trustees or
controlling persons referred to in Section 7 hereof, and will survive delivery
of and payment for the Securities. The provisions of Sections 6 and 7 hereof
shall survive the termination or cancellation of this Agreement.
11. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representative, will be mailed,
delivered or telegraphed and confirmed to it, at 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000; or, if sent to the Company or the Trust, will be mailed, delivered
or telegraphed and confirmed to them at 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000.
12. Successors. This Agreement will inure to the benefit of and
be binding upon the parties hereto and their respective successors and the
officers, directors, trustees and controlling persons referred to in Section 7
hereof, and no other person will have any right or obligation hereunder.
13. Applicable Law. This Agreement will be governed by and
construed in accordance with the laws of the State of New York.
14. Counterparts. This Agreement may be executed in one or more
counterparts, each of which will be deemed to be an original, but all such
counterparts will together constitute one and the same instrument.
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this Agreement and your acceptance shall represent a binding agreement between
the Trust, the Company and the Underwriters.
Very truly yours,
X.X. XXXXXX INDEX FUNDING
COMPANY I, by the undersigned,
solely in [his/her] capacity
as Regular Trustee,
By:
---------------------------------
Name:
Title: Regular Trustee
By:
---------------------------------
Name:
Title: Regular Trustee
X.X. XXXXXX & CO. INCORPORATED
By:
---------------------------------
Name:
Title:
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written:
By: X.X. Xxxxxx Securities Inc.
By:
---------------------------------
Name:
Title:
For itself and the other several
Underwriters named in Schedule I
20
SCHEDULE I
Number of
Securities
Underwriter to be Purchased
----------- ---------------
X.X. Xxxxxx Securities Inc. ........................ [ ]
----------------
Total ..................................... [ ]
This is a Delayed Offering.