EXHIBIT [ ]
X.X. XXXXXX INDEX FUNDING COMPANY, LLC
X.X. XXXXXX & CO. INCORPORATED
Preferred Securities
--------------------
Underwriting Agreement
, 199
To the Underwriters
to be named in the applicable
Pricing Agreement
supplemental hereto
Ladies and Gentlemen:
From time to time X.X. Xxxxxx Index Funding Company, LLC, a
limited liability company formed under the laws of Delaware (the
"Company"), and X.X. Xxxxxx & Co. Incorporated, a Delaware corporation
("X.X. Xxxxxx"), as guarantor and provider of certain backup obligations,
propose to enter into one or more Pricing Agreements (each a "Pricing
Agreement") in the form of Annex I hereto, with such additions and
deletions as the parties thereto may determine and subject to the terms and
conditions stated herein and therein, pursuant to which the Company will
issue to the firms named in Schedule I to the applicable Pricing Agreement
(such firms constituting the "Underwriters" with respect to such Pricing
Agreement and the securities specified therein) its Preferred Limited
Liability Company Interests (the "Preferred Securities"), in one or more
series, guaranteed by X.X. Xxxxxx to the extent set forth in the prospectus
and registration statement described herein and to sell such Preferred
Securities (with respect to such Pricing Agreement, the "Firm Designated
Preferred Securities"). If specified in such Pricing Agreement, the Company
may grant to the Underwriters the right to purchase at their election an
additional number of Preferred Securities, specified in such Pricing
Agreement as provided in Section 3 hereof (the "Optional Designated
Preferred
Securities"). The Firm Designated Preferred Securities and any Optional
Designated Preferred Securities are collectively called the "Designated
Preferred Securities".
The terms and rights of any particular issuance of Designated
Preferred Securities shall be as specified in the Pricing Agreement
relating thereto (to the extent not set forth in the registration statement
or prospectus with respect thereto) and in or pursuant to the resolution or
resolutions adopted by X.X. Xxxxxx and X.X. Xxxxxx Ventures Corporation, in
their capacity as the members (the "Managing Members") of the Company that
hold all the Common Limited Liability Company Interests (the "Common
Securities"). The Company will loan the proceeds of the offering of the
Designated Preferred Securities to Xxxxxx Guaranty Trust Company of New
York ("Xxxxxx Guaranty"), such loan to be evidenced by a note (the "Senior
Note") to be issued by Xxxxxx Guaranty to the Company.
1. Particular sales of Designated Preferred Securities may be
made from time to time to the Underwriters of such Designated Preferred
Securities, for whom the firms designated as representatives of the
Underwriters of such Designated Preferred Securities in the Pricing
Agreement relating thereto will act as representatives (the
"Representatives"). The term "Representatives" also refers to a single firm
acting as sole representative of the Underwriters and to Underwriters who
act without any firm being designated as their representative. Except as
incorporated by reference into a Pricing Agreement, this Underwriting
Agreement shall not be construed as an obligation of the Company to issue
any Preferred Securities or sell any Preferred Securities or as an
obligation of any of the Underwriters to purchase any of the Preferred
Securities. The obligation of the Company to issue any Preferred Securities
and to sell any Preferred Securities and the obligation of any of the
Underwriters to purchase any of the Preferred Securities shall be evidenced
by the Pricing Agreement with respect to the Designated Preferred
Securities specified therein.
Each Pricing Agreement shall specify, among other things, the
number of Firm Designated Preferred Securities, the maximum number of
Optional Designated Preferred Securities, if any, the initial public
offering price of such Firm and Optional Designated Preferred Securities or
the manner of determining such price, the purchase price to the
Underwriters of such Designated Preferred Securities,
the amount of any compensation to be paid to the Underwriters by X.X.
Xxxxxx for their services thereunder ("Underwriters' Compensation"), the
names of the Underwriters of such Designated Preferred Securities, the
names of the Representatives of such Underwriters, the number of such
Designated Preferred Securities to be purchased by each Underwriter and the
commission, if any, payable to the Underwriters with respect thereto and
shall set forth the date, time and manner of delivery of such Firm and
Optional Preferred Securities and payment therefor. The Pricing Agreement
shall also specify (to the extent not set forth in the registration
statement or prospectus with respect thereto) the terms of such Designated
Preferred Securities. A Pricing Agreement shall be in the form of an
executed writing (which may be in counterparts) and may be evidenced by an
exchange of telegraphic communications or any other rapid transmission
device designed to produce a written record of communications transmitted.
The obligations of the Underwriters under this Agreement and each Pricing
Agreement shall be several and not joint.
2. Each of the Company and X.X. Xxxxxx, jointly and severally,
represents and warrants to, and agrees with, each of the Underwriters that:
(a) A registration statement in respect of the Preferred
Securities has been filed with, or mailed for filing to, the
Securities and Exchange Commission (the "Commission"); such
registration statement and any post-effective amendments thereto, each
in the form heretofore delivered or to be delivered to the
Representatives (with exhibits thereto) for delivery to each of the
other Underwriters (without exhibits thereto), have been declared
effective by the Commission in such form; no other document with
respect to such registration statement or document incorporated by
reference therein has been filed or transmitted for filing with the
Commission prior to the effective date of the registration statement;
and no stop order suspending the effectiveness of such registration
statement has been issued and no proceeding for that purpose has been
initiated or, to the knowledge of the Company or X.X. Xxxxxx,
threatened by the Commission. Any preliminary prospectus included in
such registration statement or filed with the Commission pursuant to
Rule 424(a) of the rules and regulations of the Commission under the
Securities Act of 1933, as amended (the "Act"), is hereinafter
collectively called
a "Preliminary Prospectus"; the various parts of such
registration statement, including all exhibits thereto and the
information, if any, deemed to be part of such registration statement
at the time of effectiveness pursuant to Rule 430A under the Act, but
excluding Form T-1, each as amended at the time such part of the
registration statement became effective, are hereinafter collectively
called the "Registration Statement"; the prospectus relating to the
Preferred Securities, in the form in which it has most recently been
filed, or transmitted for filing, with the Commission on or prior to
the date of this Agreement is hereinafter called the "Prospectus"; any
reference herein to any Preliminary Prospectus or the Prospectus shall
be deemed to refer to and include the documents incorporated by
reference therein pursuant to the applicable form under the Act, as of
the date of such Preliminary Prospectus or Prospectus, as the case may
be; any reference to any amendment or supplement to any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include
any documents filed with the Commission after the date of such
Preliminary Prospectus or Prospectus, as the case may be, under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
incorporated by reference in such Preliminary Prospectus or
Prospectus, as the case may be; any reference to any amendment to the
Registration Statement shall be deemed to refer to and include any
annual report of X.X. Xxxxxx filed pursuant to Section 13(a) or 15(d)
of the Exchange Act after the effective date of the Registration
Statement that is incorporated by reference in the Registration
Statement; and any reference to the Prospectus as amended or
supplemented shall be deemed to refer to the Prospectus as amended or
supplemented in relation to the applicable Designated Preferred
Securities in the form in which it is first filed with the Commission
pursuant to Rule 424(b) under the Act in accordance with Section 5(a)
hereof, including any documents incorporated by reference therein as
of the date of such filing.
(b) The Registration Statement and the Prospectus conform, and
any further amendments or supplements to the Registration Statement or
the Prospectus will conform, in all material respects to the
requirements of the Act, and the rules and regulations of the
Commission thereunder do not and will not, as of the
applicable effective date as to the Registration Statement and
any amendment thereto and as of the applicable filing date as to the
Prospectus and any amendment or supplement thereto, contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein (i)
in the case of the Registration Statement, not misleading and (ii) in
the case of the Prospectus, in light of the circumstances under which
they were made, not misleading; provided, however, that this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company or X.X. Xxxxxx by an Underwriter
of Designated Preferred Securities through the Representatives for use
in the Prospectus as amended or supplemented relating to such
Designated Preferred Securities.
(c) X.X. Xxxxxx has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware.
(d) The Company has been duly formed and is validly existing as a
limited liability company in good standing under the laws of the State
of Delaware.
(e) The Preferred Securities have been duly authorized and, when
the terms of the Designated Preferred Securities have been established
by resolutions adopted by the Managing Members and such Designated
Preferred Securities have been issued, delivered and paid for pursuant
to this Agreement and the Pricing Agreement with respect to such
Designated Preferred Securities, such Designated Preferred Securities
will be validly issued, fully paid and nonassessable limited liability
company interests in the Company, as to which the members of the
Company who hold such Designated Preferred Securities (the "Preferred
Securityholders"), in their capacity as members of the Company, will
have no liability solely by reason of being Preferred Securityholders
in excess of their share of the Company's assets and undistributed
profits (subject to any obligation of a Preferred Securityholder to
repay any funds wrongfully distributed to it); and the Designated
Preferred Securities will conform, in all material respects, to the
descriptions thereof contained in the Prospectus as
amended or supplemented with respect to such Designated Preferred
Securities.
(f) The Limited Liability Company Agreement of the Company ("LLC
Agreement"), which is in substantially the form filed as an exhibit to
the Registration Statement, constitutes a valid and legally binding
agreement of the Company, enforceable against the Company by the
members of the Company that hold Preferred Securities in accordance
with its terms, subject to (i) bankruptcy, insolvency, reorganization,
fraudulent transfer, moratorium and other similar laws now of
hereafter in effect relating to or affecting creditors' rights
generally, (ii) general principles of equity (regardless of whether
considered in a proceeding at law or in equity) and (iii) applicable
laws relating to fiduciary duties.
(g) Each of the guarantee of certain obligations of the Company
by X.X. Xxxxxx for the benefit of the holders from time to time of the
Preferred Securities (the "Guarantee Agreement") and the guarantee by
X.X. Xxxxxx of certain liabilities of the Company for the benefit of
persons other than such holders (the "Expense Agreement"), each of
which is substantially in the form filed as an exhibit to the
Registration Statement, has been duly authorized, executed and
delivered by X.X. Xxxxxx and, in the case of the Expense Agreement,
the Company and constitutes a valid and legally binding agreement of
X.X. Xxxxxx enforceable against X.X. Xxxxxx in accordance with its
terms, subject to (i) bankruptcy, insolvency, reorganization,
fraudulent transfer, moratorium and other similar laws now or
hereafter in effect relating to or affecting creditors' rights
generally and (ii) general principles of equity (regardless of whether
considered in a proceeding at law or in equity); and each of the
Guarantee Agreement and the Expense Agreement conforms, in all
material respects, to the description thereof contained in the
Prospectus as amended or supplemented with respect to the Designated
Preferred Securities.
(h) The Senior Note has been duly authorized by Xxxxxx Guaranty,
and, when the Senior Note is issued, executed, authenticated,
delivered and paid for, such Senior Note will be duly issued, executed
and delivered and will constitute a valid and legally binding
obligation of Xxxxxx Guaranty enforceable against Xxxxxx Guaranty
in accordance with its terms, subject to (i) bankruptcy, insolvency,
reorganization, fraudulent transfer, moratorium and other similar laws
now or hereafter in effect relating to or affecting creditors' rights
generally and the rights of creditors of New York State chartered
banks generally and (ii) general principles of equity (regardless of
whether considered in a proceeding at law or in equity); and the
Senior Note will conform, in all material respects, to the description
thereof contained in the Prospectus as amended or supplemented with
respect to such Designated Preferred Securities.
(i) The issue and sale of the Designated Preferred Securities and
the performance by the Company, X.X. Xxxxxx and Xxxxxx Guaranty of
their respective obligations under this Agreement, any Pricing
Agreement, the Senior Notes, the Guarantee Agreement, the Expense
Agreement and each Over-Allotment Option (as defined in Section 3
hereof), if any, and the consummation of the transactions herein and
therein contemplated will not result in any violation of (A) the
provisions of the Certificate of Formation of the Company or the LLC
Agreement, the Certificate of Incorporation or By-laws of X.X. Xxxxxx
or the Charter of Xxxxxx Guaranty or (B) any statute of the United
States or the State of New York or Delaware or any order, rule or
regulation of any court or governmental agency or body of the United
States or the State of New York or Delaware having jurisdiction over
the Company, X.X. Xxxxxx or Xxxxxx Guaranty or any of their respective
properties; provided, however, that, in the case of clause (B) of this
paragraph 2(i), this representation and warranty shall not extend to
such violations as would not have a material adverse effect on the
financial condition of X.X. Xxxxxx and its subsidiaries taken as a
whole or would not have a material adverse effect on the issuance or
sale of the Designated Preferred Securities; provided further that,
insofar as this representation and warranty relates to the performance
by the Company, X.X. Xxxxxx or Xxxxxx Guaranty of each of their
respective obligations under this Agreement, the Pricing Agreement
relating to the Designated Preferred Securities, the Designated
Preferred Securities, the Senior Notes, the Guarantee Agreement and
the Expense Agreement, such performance is subject to bankruptcy,
insolvency, reorganization,
fraudulent transfer, moratorium and other similar laws now or
hereafter in effect relating to or affecting creditors' rights
generally and the rights of creditors of New York State chartered
banks generally.
3. Upon the execution of the Pricing Agreement applicable to any
Designated Preferred Securities the several Underwriters propose to offer
the Firm Designated Preferred Securities for sale upon the terms and
conditions set forth in the Prospectus as amended or supplemented.
The Company may specify in the Pricing Agreement applicable to
any Designated Preferred Securities that the Company thereby grants to the
Underwriters the right (an "Over-Allotment Option") to purchase at their
election up to the number of Optional Designated Preferred Securities set
forth in such Pricing Agreement, at the terms set forth in the paragraph
above, for the sole purpose of covering over-allotments in the sale of the
Firm Designated Preferred Securities. Any such election to purchase
Optional Designated Preferred Securities may be exercised only by written
notice from the Representatives to the Company and X.X. Xxxxxx, given
within a period specified in the Pricing Agreement, setting forth the
aggregate number of Optional Designated Preferred Securities to be
purchased and the date on which such Optional Designated Preferred
Securities are to be delivered, as determined by the Representatives but in
no event earlier than the First Time of Delivery (as defined in Section 4
hereof) or, unless the Representatives, X.X. Xxxxxx and the Company
otherwise agree in writing, earlier than or later than the respective
number of business days after the date of such notice set forth in such
Pricing Agreement.
The number of Optional Designated Preferred Securities to be
added to the number of Firm Designated Preferred Securities to be purchased
by each Underwriter as set forth in Schedule I to the Pricing Agreement
applicable to such Designated Preferred Securities shall be, in each case,
the number of Optional Designated Preferred Securities which each of the
Company and X.X. Xxxxxx has been advised by the Representatives have been
attributed to such Underwriter; provided that, if each of the Company and
X.X. Xxxxxx has not been so advised, the number of Optional Designated
Preferred Securities to be so added shall be, in each case, that proportion
of Optional Designated Preferred Securities which the number of Firm
Designated Preferred
Securities to be purchased by such Underwriter under such Pricing Agreement
bears to the aggregate number of Firm Designated Preferred Securities
(rounded as the Representatives may determine to the nearest 100
securities). The total number of Designated Preferred Securities to be
purchased by all the Underwriters pursuant to such Pricing Agreement shall
be the aggregate number of Firm Designated Preferred Securities set forth
in Schedule I to such Pricing Agreement plus the aggregate number of the
Optional Designated Preferred Securities which the Underwriters elect to
purchase.
4. Unless otherwise specified in the applicable Pricing
Agreement, global certificates for the Firm Designated Preferred Securities
and Optional Designated Preferred Securities to be purchased by each
Underwriter pursuant to such Pricing Agreement, registered in the name of
"Cede & Co.", shall be delivered by or on behalf of the Company to the
Representatives for the account of such Underwriter, against payment by
such Underwriter or on its behalf of the purchase price therefor by
certified or official bank check or checks, payable to the order of the
Company or, if so requested by the Company, by wire transfer to a bank
account specified by the Company and specified in Schedule II, in the funds
specified in such Pricing Agreement. The place, time and date of delivery
of and payment for Firm Designated Preferred Securities and Optional
Designated Preferred Securities shall be as specified in such Pricing
Agreement or at such other place, time and date as the Representatives,
X.X. Xxxxxx and the Company may agree upon in writing. Such time and date
for delivery of Firm Designated Preferred Securities pursuant to the
Pricing Agreement relating thereto is herein called the "First Time of
Delivery", such time and date for delivery of Optional Designated Preferred
Securities, if not the First Time of Delivery, is herein called the "Second
Time of Delivery" and each such time and date is herein called the "Time of
Delivery".
5. Each of the Company and X.X. Xxxxxx, jointly and severally,
agrees with each of the Underwriters of any Designated Preferred Securities
to furnish the Underwriters with copies of the Prospectus as amended or
supplemented in such quantities as the Representatives may from time to
time reasonably request and, if the delivery of a prospectus is required at
any time in connection with the offering or sale of the Designated
Preferred Securities and if at such time any event shall have occurred as a
result of which the
Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances
under which they were made when such Prospectus is delivered, not
misleading or, if for any other reason it shall be necessary during such
same period to amend or supplement the Prospectus in order to comply with
the Act or the Exchange Act, to notify the Representatives and to file such
document and to prepare and furnish without charge to each Underwriter and
to any dealer in securities as many copies as the Representatives may from
time to time reasonably request of any amended Prospectus or a supplement
to the Prospectus which will correct such statement or omission or effect
such compliance; provided, however, that, in case any Underwriter is
required under the Act to deliver a prospectus in connection with the
offering or sale of the Designated Preferred Securities at any time more
than nine months after the date of the Pricing Agreement relating to the
Designated Preferred Securities, the costs of such preparation and
furnishing such amended or supplemented Prospectus shall be borne by the
Underwriters of such Designated Preferred Securities.
6. The obligations of the Underwriters of any Designated
Preferred Securities under the Pricing Agreement relating to such
Designated Preferred Securities shall be subject, in the discretion of the
Representatives, to the condition that all representations and warranties
and other statements of each of the Company and X.X. Xxxxxx in or
incorporated by reference in the Pricing Agreement relating to such
Designated Preferred Securities are, at and as of the respective Time of
Delivery for such Designated Preferred Securities, true and correct, the
condition that each of the Company and X.X. Xxxxxx shall have performed in
all material respects all of its obligations hereunder theretofore to be
performed, and the following additional conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement or any part thereof shall have been issued and
no proceeding for that purpose shall have been initiated or, to the
knowledge of the Company or X.X. Xxxxxx, threatened by the Commission.
(b) Cravath, Swaine & Xxxxx, counsel for the Underwriters, shall
have furnished to the Representatives such opinion or opinions, dated
the
respective Time of Delivery for such Designated Preferred
Securities, with respect to the incorporation of X.X. Xxxxxx and the
Company, the Guarantee Agreement, the Expense Agreement, the Senior
Notes, the Registration Statement, the Prospectus as amended or
supplemented, the Investment Company Act of 1940, as amended, the
validity of such Designated Preferred Securities and other related
matters as the Representatives may reasonably request, and such
counsel shall have received such papers and information as they may
reasonably request to enable them to pass upon such matters.
(c) Xxxxxxxx X. Xxxxx, Vice President, Assistant General Counsel
and Assistant Secretary of X.X. Xxxxxx, shall have furnished to the
Representatives such counsel's written opinion, dated the respective
Time of Delivery for such Designated Preferred Securities, in form and
substance satisfactory to the Representatives, to the effect that:
(i) X.X. Xxxxxx has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
State of Delaware;
(ii) Xxxxxx Guaranty has been duly incorporated and is
validly existing as a chartered New York State trust company in
good standing under the laws of the State of New York;
(iii) this Agreement and the Pricing Agreement with respect
to the Designated Preferred Securities have been duly authorized,
executed and delivered by X.X. Xxxxxx;
(iv) each of the Guarantee Agreement and the Expense
Agreement has been duly authorized, executed and delivered by
X.X. Xxxxxx and, in the case of the Expense Agreement, assuming
the due authorization, execution and delivery thereof by the
Company, constitutes a valid and legally binding agreement of
X.X. Xxxxxx enforceable in accordance with its terms, subject to
(1) bankruptcy, insolvency, reorganization, fraudulent transfer,
moratorium and other similar laws now or hereafter in effect
relating to or affecting creditors' rights generally and the
rights of creditors of bank holding companies
generally and (2) general principles of equity (regardless
of whether considered in a proceeding at law or in equity);
(v) the Senior Notes have been duly authorized by Xxxxxx
Guaranty, and, when the Senior Notes are issued, executed,
authenticated, delivered and paid for, such Senior Notes will be
duly issued, executed and delivered and will constitute valid and
legally binding obligations of Xxxxxx Guaranty enforceable
against Xxxxxx Guaranty in accordance with their terms, subject
to (1) bankruptcy, insolvency, reorganization, fraudulent
transfer, moratorium and other similar laws now or hereafter in
effect relating to or affecting creditors rights generally and
the rights of creditors of New York State chartered banks
generally and (2) general principles of equity (regardless of
whether considered in a proceeding at law or in equity);
(vi) the issue and sale of the Designated Preferred
Securities being delivered at such Time of Delivery and the
performance by each of X.X. Xxxxxx and Xxxxxx Guaranty of its
respective obligations under the Senior Notes, the Guarantee
Agreement, the Expense Agreement, this Agreement, and the Pricing
Agreement with respect to the Designated Preferred Securities
will not result in any violation of (A) the provisions of the
Certificate of Incorporated or By-Laws of X.X. Xxxxxx or the
Charter of Xxxxxx Guaranty or (B) any statute of the United
States or the State of New York having jurisdiction over X.X.
Xxxxxx, Xxxxxx Guaranty or any properties of either, except with
respect to clause (B) of this Paragraph (vii)(2), such violations
as would not have a material adverse effect on the financial
condition of X.X. Xxxxxx and its subsidiaries taken as a whole or
would not have a material adverse effect on the issuance or sale
of the Designated Preferred Securities (and except that for
purposes of this paragraph (vii) such counsel need not express
any opinion as to any violation of any fraudulent transfer laws
or other antifraud laws or as to any violation of any federal or
state securities laws or blue sky or banking laws; and except
that insofar as performance by each of
X.X. Xxxxxx and Xxxxxx Guaranty of its respective
obligations under the Senior Notes, the Guarantee Agreement, the
Expense Agreement, this Agreement and the Pricing Agreement
relating to the Designated Preferred Securities is concerned,
such counsel need not express any opinion as to bankruptcy,
insolvency, reorganization, moratorium and other similar laws now
or hereafter in effect relating to or affecting creditors' rights
generally and the rights of creditors of New York chartered banks
generally);
(vii) under the laws of the State of Delaware and under the
Federal laws of the United States, no consent, approval,
authorization, order, registration, filing or qualification of or
with any court or governmental agency or body is required for the
issue and sale of the Designated Preferred Securities being
delivered at such Time of Delivery in accordance with this
Agreement or the Pricing Agreement relating to the Designated
Preferred Securities, except for such consents, approvals,
authorizations, orders, registrations, filings or qualifications
as have been obtained under the Act and such consents, approvals,
authorizations, orders, registrations, filings or qualifications
as may be required under state securities or Blue Sky laws of any
such jurisdiction in connection with the purchase and sale and
distribution of the Designated Preferred Securities by the
Underwriters, and except those which, if not obtained, will not
have a material adverse effect on the financial condition of X.X.
Xxxxxx and its subsidiaries taken as a whole.
In rendering this opinion required by subsection (c) of this
Section, Xx. Xxxxx may state that she is admitted to the Bar of the
State of New York and she does not expect any opinion as to the laws
of any other jurisdiction other than the Federal laws of the United
States of America. Xx. Xxxxx may rely (A) to the extent specified in
such opinion, upon the opinions of other counsel in good standing
which counsel Xx. Xxxxx believes to be reliable, provided that Xx.
Xxxxx shall state that she and you are justified in relying on such
opinions and (B) as to matters of fact, upon certificates of officers
and representatives of X.X. Xxxxxx, Xxxxxx Guaranty and of
public officials, and may state that she has not verified
independently the accuracy or completeness of information or documents
furnished to her with respect to the Registration Statement or the
Prospectus.
(d) [Cravath, Swaine & Xxxxx], special counsel for the Company
and X.X. Xxxxxx, shall have furnished to the Representative their
written opinion, dated the respective Time of Delivery for such
Designated Preferred Securities, in form and substance satisfactory to
the Representatives, to the effect that:
(i) the Company has been duly formed and is validly existing
as a limited liability company in good standing under the laws of
Delaware;
(ii) the Designated Preferred Securities being delivered at
such Time of Delivery have been duly authorized and validly
issued and are fully paid and nonassessable limited liability
company interests in the Company, as to which the Preferred
Securityholders, in their capacity as members of the Company,
will have no liability solely by reason of being Preferred
Securityholders in excess of their share of the Company's assets
and undistributed profits (subject to any obligation of a
Preferred Securityholder to repay any funds wrongfully
distributed to it); and the Preferred Securities conform, in all
material respects, to the descriptions thereof contained in the
Prospectus as amended or supplemented with respect to such
Designated Preferred Securities;
(iii) the Common Securities issued to the Managing Members
have been duly authorized and are validly issued;
(iv) the LLC Agreement constitutes a valid and legally
binding agreement of the Company, enforceable against the Company
by the members of the Company that hold Preferred Securities in
accordance with its terms, subject to (1) bankruptcy, insolvency,
reorganization, fraudulent transfer, moratorium and other similar
laws now or hereafter in effect relating to or affecting
creditors' rights generally, (2) general
principles of equity (regardless of whether considered in a
proceeding at law or in equity) and (3) applicable law relating
to fiduciary duties;
(v) this Agreement and the Pricing Agreement with respect to
such Designated Preferred Securities have been duly executed and
delivered by each of X.X. Xxxxxx and the Company;
(vi) each of the Guarantee Agreement and the Expense
Agreement have been duly authorized, executed and delivered by
X.X. Xxxxxx and, in the case of the Expense Agreement, the
Company and constitutes a valid and legally binding agreement of
X.X. Xxxxxx enforceable against X.X. Xxxxxx in accordance with
its terms, subject to (1) bankruptcy, insolvency, reorganization,
fraudulent transfer, moratorium and other laws now or hereafter
in effect relating to or affecting creditors' rights generally
and the rights of creditors of bank holding companies generally
and (2) general principles of equity (regardless of whether
considered in a proceeding at law or in equity);
(vii) the Senior Notes have been duly authorized by Xxxxxx
Guaranty, and, when the Senior Notes are issued, executed,
authenticated, delivered and paid for, such Senior Notes will be
duly issued, executed and delivered and will constitute valid and
legally binding obligations of Xxxxxx Guaranty enforceable
against Xxxxxx Guaranty in accordance with their terms, subject
to (1) bankruptcy, insolvency, reorganization, fraudulent
transfer, moratorium and other similar laws now or hereafter in
effect relating to or affecting creditors' rights generally and
the rights of creditors of New York State chartered banks
generally and (2) general principles of equity (regardless of
whether considered in a proceeding at law or in equity);
(viii) the issue and sale of the Designated Preferred
Securities being delivered at such Time of Delivery and the
performance by the Company of its obligations under this
Agreement and the Pricing Agreement with respect to the
Designated
Preferred Securities will not result in any violation of (A)
the provisions of the Certificate of Formation of the Company or
the LLC Agreement or (B) any statute of Delaware or any order,
rule or regulation known to such counsel of any court or
governmental agency or body of Delaware having jurisdiction over
the Company or any of its properties, except with respect to
clause (B) of this Paragraph (viii)(2), such violations as would
not have a material adverse effect on the financial condition of
the Company or would not have a material adverse effect on the
issuance or sale of the Designated Preferred Securities (and
except that for purposes of this paragraph (viii) such counsel
need not express any opinion as to any violation of any
fraudulent transfer laws or other antifraud laws; and except
that, insofar as performance by the Company of its obligation
under this Agreement and the Pricing Agreement relating to the
Designated Preferred Securities is concerned, such bankruptcy,
insolvency, reorganization, moratorium and other similar laws now
or hereafter in effect relating to or affecting creditors' rights
generally);
(ix) under the laws of Delaware, no consent, approval,
authorization, order, registration, filing or qualification of or
with any court or governmental agency or body is required for the
issue and sale of the Designated Preferred Securities being
delivered at such Time of Delivery in accordance with this
Agreement or the Pricing Agreement relating to the Designated
Preferred Securities being delivered at such Time of Delivery;
(x) the Company is has obtained an exemption pursuant to
Section 6(c) of the Investment Company Act of 1940, as amended,
and such exemption is valid as of the date of such opinion;
(xi) the statements contained in the Prospectus under the
captions "Description of All Preferred Securities", "Description
of the Guarantee", "Description of the Senior Notes", and "Plan
of Distribution" and the corresponding sections in any prospectus
supplement relating to the description of the Designated
Preferred
Securities or their distribution, insofar as such statements
constitute summaries of certain provisions of the documents
referred to therein, accurately summarize the material provisions
of such documents required to be stated therein; and
(xii) (1) such counsel is of the opinion that the
Registration Statement, as amended, and the Prospectus, as
amended or supplemented, as of the First Time of Delivery for the
Designated Preferred Securities (other than the financial
statements and related notes, information as to reserves, the
financial statement schedules and the other financial data
included therein or omitted therefrom, as to which such counsel
need express no opinion), comply as to form in all material
respects with the Act and the rules and regulations of the
Commission thereunder, (2) nothing has come to the attention of
such counsel that would cause such counsel to believe that the
Registration Statement or the Prospectus, as amended or
supplemented, as of the date of the Pricing Agreement with
respect to the Designated Preferred Securities and the First Time
of Delivery for the Designated Preferred Securities (other than
the financial statements and related notes, information as to
reserves, the financial statement schedules and the other
financial data included therein or omitted therefrom, as to which
such counsel need express no belief), contained or contains an
untrue statement of a material fact or omitted or omits to state
a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading.
With respect to clause (xii) of subsection (d) of this Section,
[Cravath, Swaine & Xxxxx] may state that their opinion and belief are
based upon their participation in the preparation of the Registration
Statement and Prospectus and any amendments or supplements thereto and
review and discussion of the contents thereof, but are without
independent check or verification except as specified. In rendering
the opinion required by subsection (d) of this Section, [Cravath,
Swaine & Xxxxx] may rely upon the accuracy of matters (A) involving
the application of laws of any jurisdiction other than the United
States or New York
and, to the extent specified in such opinion, upon the opinions
of other counsel reasonably satisfactory to you (including without
limitation, as to matters of Delaware law, on the opinion of Xxxxxxxx,
Xxxxxx & Finger, P.A.), and (B) of fact upon certificates of officers
and representatives of the Company and X.X. Xxxxxx and of public
officials.
(e) On the date of the Pricing Agreement for such Designated
Preferred Securities and at the respective Time of Delivery for such
Designated Preferred Securities, Price Waterhouse LLP shall have
furnished to the Representatives a letter, dated the date of the
Pricing Agreement and a letter dated the First Time of Delivery,
respectively, to the effect set forth in Annex II hereto, and with
respect to such letter dated such First Time of Delivery, as to such
other matters as the Representatives may reasonably request and in
form and substance satisfactory to the Representatives.
(f) Since the respective dates as of which information is given
in the Prospectus as amended or supplemented as of the date of the
Pricing Agreement until the respective Time of Delivery of the
Designated Preferred Securities there shall not have been any adverse
change or a development involving a prospective material adverse
change in the financial position, stockholders' equity or results of
operations of X.X. Xxxxxx and its subsidiaries considered as a whole,
otherwise than as set forth or contemplated in such Prospectus as
amended or supplemented, the effect of which, in any such case
described above, is in the reasonable judgment of the Representatives,
after consultation with the Company and X.X. Xxxxxx, so material and
adverse as to make it impracticable to proceed with the public
offering or the delivery of the Designated Preferred Securities on the
terms and in the manner contemplated in such Prospectus as amended or
supplemented.
(g) On or after the date of the Pricing Agreement relating to the
Designated Preferred Securities until the respective Time of Delivery
of the Designated Preferred Securities, there shall not have occurred
any of the following: (i) a suspension or material limitation in
trading in securities generally on the [New York Stock Exchange]; (ii)
a general moratorium on commercial banking activities in New York
declared by
either Federal or New York State authorities; or (iii) the
outbreak or material escalation of hostilities involving the United
States or the declaration by the United States of a national emergency
or war, if the effect of any of the above such events, in the
reasonable judgment of the Representatives, after consultation with
the Company and X.X. Xxxxxx, makes it impracticable to proceed with
the public offering or the delivery of the Designated Preferred
Securities on the terms and in the manner contemplated by the
Prospectus as amended or supplemented.
(h) X.X. Xxxxxx shall have furnished or caused to be furnished to
the Representatives at the respective Time of Delivery for the
Designated Preferred Securities a certificate or certificates of the
[CFO] or the Treasurer as to the accuracy of the representations and
warranties of the Company and X.X. Xxxxxx herein at and as of such
Time of Delivery, as to the performance by the Company and X.X. Xxxxxx
of all of their obligations hereunder to be performed at or prior to
such Time of Delivery, as to the matters set forth in subsections (a)
and (f) of this Section.
8. (a) Each of the Company and X.X. Xxxxxx, jointly and
severally, will indemnify and hold harmless each Underwriter against any
losses, claims, damages or liabilities to which such Underwriter may become
subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) are caused by an
untrue statement or alleged untrue statement of a material fact contained
in any Preliminary Prospectus, any preliminary prospectus supplement, the
Registration Statement, the Prospectus as amended or supplemented and any
other prospectus relating to the Designated Preferred Securities, or any
amendment or supplement thereto, or are caused by the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein (i) in the case of the
Registration Statement, not misleading, and (ii) in the case of any
Prospectus, in light of the circumstances in which they were made, not
misleading, and will reimburse each Underwriter for any legal or other
expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such action or claim as such expenses are
incurred; provided, however, that neither the Company nor X.X. Xxxxxx shall
be liable in any such case to
the extent that any such loss, claim, damage or liability is caused by an
untrue statement or alleged untrue statement or omission or alleged
omission made in any Preliminary Prospectus, any preliminary prospectus
supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Designated Preferred
Securities, or any such amendment or supplement, in reliance upon and in
conformity with written information furnished to the Company or X.X. Xxxxxx
by any Underwriter of Designated Preferred Securities through the
Representatives for inclusion therein; and provided further, that neither
the Company nor X.X. Xxxxxx shall be liable to any Underwriter under this
subsection (a) with respect to any Preliminary Prospectus or any
preliminary prospectus supplement to the extent that any such loss, claim,
damage or liability of such Underwriter results from the fact such
Underwriter sold Designated Preferred Securities to a person to whom there
was not sent or given, at or prior to the written confirmation of such
sale, a copy of the Prospectus (excluding documents incorporated by
reference) or of the Prospectus as then amended or supplemented (excluding
documents incorporated by reference) in any case where such delivery is
required by the Act if the Company or X.X. Xxxxxx has previously furnished
copies thereof to such Underwriter (or to the Representatives) and the
loss, claim, damage or liability of such Underwriter results from an untrue
or alleged untrue statement or omission or alleged omission of a material
fact contained in the Preliminary Prospectus or any preliminary prospectus
supplement which was corrected in the Prospectus (or the Prospectus as
amended or supplemented).
(b) Each Underwriter will indemnify and hold harmless the Company
and X.X. Xxxxxx against any losses, claims, damages or liabilities to which
the Company or X.X. Xxxxxx may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration
Statement, the Prospectus as amended or supplemented and any other
prospectus relating to the Designated Preferred Securities, or any
amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein (i) in the
case of the Registration Statement, not misleading and (ii) in
the case of any Prospectus, in light of the circumstances under which they
were made, not misleading, in each case to the extent that such untrue
statement or alleged untrue statement or omission or alleged omission was
made in any Preliminary Prospectus, any preliminary prospectus supplement,
the Registration Statement, the Prospectus as amended or supplemented and
any other prospectus relating to the Designated Preferred Securities, or
any such amendment or supplement, in reliance upon and in conformity with
written information furnished to the Company or X.X. Xxxxxx by such
Underwriter through the Representatives for inclusion therein; and will
reimburse the Company and X.X. Xxxxxx for any legal or other expenses
reasonably incurred by the Company or X.X. Xxxxxx in connection with
investigating or defending any such action or claim as such expenses are
incurred.
(c) Promptly after receipt by an indemnified party under
subsection (a) and (b) above of notice of the commencement of any action,
such indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under such subsection, notify the
indemnifying party in writing of the commencement thereof; but the omission
so to notify the indemnifying party shall not relieve it from any liability
which it may have to any indemnified party otherwise than under such
subsection. In case any such action shall be brought against any
indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof,
with counsel reasonably satisfactory to such indemnified party (who shall
not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under such
subsection for any legal expenses of other counsel or any other expenses,
in each case subsequently incurred by such indemnified party, in connection
with the defense thereof other than reasonable costs of investigation. In
no event shall any indemnifying party be liable for the fees and expenses
of more than one counsel (in addition to local counsel) separate from their
own counsel for all indemnified parties in connection with any one action
or separate but similar or related actions in the same jurisdiction arising
out of the same general
allegations or circumstances. In no event shall an indemnifying party be
liable with respect to any action or claim settled without its written
consent. No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been
a party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter
of such proceeding.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party, 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 (or actions in
respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company and X.X. Xxxxxx on the one hand
and the Underwriters of the Designated Preferred Securities on the other
from the offering of the Designated Preferred Securities to which such
loss, claim, damage or liability (or action in respect thereof) relates.
If, however, the allocation provided by the immediately preceding sentence
is not permitted by applicable law or if the indemnified party is not
entitled to receive the indemnification provided for in subsection (a)
above because of the second proviso thereof or if the indemnified party
failed to give the notice required under subsection (c) above, then each
indemnifying party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not only
such relative benefits but also the relative fault of the Company and X.X.
Xxxxxx on the one hand and the Underwriters of the Designated Preferred
Securities on the other in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities (or actions
in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company and X.X.
Xxxxxx on the one hand and such Underwriters on the other shall be deemed
to be in the same proportion as the total proceeds from such offering
(before deducting expenses) received by the Company less the total
underwriting compensation paid by X.X. Xxxxxx bear to the
total underwriting discounts and commissions received by such Underwriters.
The relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to
information supplied by the Company and X.X. Xxxxxx on the one hand or such
Underwriters on the other and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement
or omission, including with respect to any Underwriter, the extent to which
such losses, claims, damages or liabilities (or actions in respect thereof)
with respect to any Preliminary Prospectus or any preliminary prospectus
supplement result from the fact that the Underwriter sold Designated
Preferred Securities to a person to whom there was not sent or given, at or
prior to the written confirmation of such sale, a copy of the Prospectus
(excluding documents incorporated by reference) or of the Prospectus as
then amended or supplemented (excluding documents incorporated by
reference), if the Company or X.X. Xxxxxx have previously furnished copies
thereof to such Underwriters. The Company, X.X. Xxxxxx and the Underwriters
agree that it would not be just and equitable if contribution pursuant to
this subsection (d) were determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable
considerations referred to above in this subsection (d). The amount paid or
payable by an indemnified party as a result of the losses, claims, damages
or liabilities (or actions in respect thereof) referred to above in this
subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. The obligations of the Underwriters
of Designated Preferred Securities in this subsection (d) to contribute are
several in proportion to their respective underwriting obligations with
respect to such Designated Preferred Securities and not joint. No
indemnifying party will be liable for contribution with respect to any
action or claim settled without its written consent.
(e) The obligations of the Company and X.X. Xxxxxx under this
Section 8 shall be in addition to any
liability which the Company and X.X. Xxxxxx may otherwise have and shall
extend or not extend, as the case may be, upon the same terms and
conditions, to each person, if any, who controls any Underwriting within
the meaning of the Act; and the obligations of the Underwriters under this
Section 8 shall be in addition to any liability which the respective
Underwriters may otherwise have and shall extend or not extend, as the case
may be, upon the same terms and conditions, to each officer and director of
X.X. Xxxxxx and the Company and to each person, if any, who controls X.X.
Xxxxxx or the Company within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to
purchase the Firm Designated Preferred Securities or Optional Designated
Preferred Securities which it has agreed to purchase under the Pricing
Agreement relating to such Preferred Securities, the Representatives may in
their discretion arrange for themselves or another party or other parties
to purchase such Preferred Securities on the terms contained herein. If
within 36 hours after such default by any Underwriter the Representatives
do not arrange for the purchase of such Firm Designated Preferred
Securities or Optional Designated Preferred Securities, as the case may be,
then the Company and X.X. Xxxxxx shall be entitled to a further period of
36 hours within which to procure another party or other parties reasonably
satisfactory to the Representatives to purchase such Preferred Securities
on such terms. In the event that, within the respective prescribed period,
the Representatives notify the Company and X.X. Xxxxxx that they have so
arranged for the purchaser of such Preferred Securities, or the Company or
X.X. Xxxxxx notifies the Representatives that it has so arranged for the
purchaser of such Preferred Securities, the Representatives, X.X. Xxxxxx or
the Company shall have the right to postpone the Time of Delivery for such
Preferred Securities for a period of not more than seven days in order to
effect whatever changes may thereby be made necessary in the Registration
Statement or the Prospectus as amended or supplemented, or in any other
documents or arrangements, and the Company and X.X. Xxxxxx agree to file
promptly any amendments or supplements to the Registration Statement or the
Prospectus which in the opinion of the Representatives may thereby be made
necessary. The term "Underwriter" as used in this Agreement shall include
any person substituted under this Section with like effect as if such
person had originally been a party to the Pricing Agreement with respect to
such Designated Preferred Securities.
(b) If, after giving effect to any arrangement for the purchase
of the Firm Designated Preferred Securities or Optional Designated
Preferred Securities, as the case may be, of a defaulting Underwriter or
Underwriters by the Representatives, the Company or X.X. Xxxxxx as provided
in subsection (a) above, the aggregate amount of Designated Preferred
Securities which remains unpurchased does not exceed one-tenth of the
aggregate number of Firm Designated Preferred Securities or Optional
Designated Preferred Securities, as the case may be, to be purchased at the
respective Time of Delivery, then the Company and X.X. Xxxxxx shall have
the right to require each nondefaulting Underwriter to purchase the number
of Firm Designated Preferred Securities or Optional Designated Firm
Securities, as the case may be, which such Underwriter agreed to purchase
under the Pricing Agreement relating to such Designated Preferred
Securities and, in addition, to require each nondefaulting Underwriter to
purchase its pro rata share (based on the number of Firm Designated
Preferred Securities or Optional Designated Preferred Securities, as the
case may be, which such Underwriter agreed to purchase under such Pricing
Agreement) of the Firm Designated Preferred Securities or the Optional
Designated Preferred Securities, as the case may be, of such defaulting
Underwriter or Underwriters for which such arrangements have not been made;
but nothing herein shall relieve a defaulting Underwriter from any
liability for its default.
(c) If, after giving effect to any arrangement for the purchaser
of the Firm Designated Preferred Securities or Optional Designated
Preferred Securities, as the case may be, of a defaulting Underwriter or
Underwriters by the Representatives, X.X. Xxxxxx or the Company as provided
in subsection (a) above, the aggregate amount of Firm Designated Preferred
Securities or the Optional Designated Preferred Securities, as the case may
be, which remains unpurchased exceeds one-tenth of the aggregate number of
Firm Designated Preferred Securities or Optional Designated Preferred
Securities, as the case may be, to be purchased at the respective Time of
Delivery, as referred to in subsection (b) above, or if the Company or X.X.
Xxxxxx shall not exercise the right described in subsection (b) above to
require nondefaulting Underwriters to purchase Firm Designated Preferred
Securities or Optional Designated Preferred Securities, as the case may be,
of a defaulting Underwriter or Underwriters, then the Pricing Agreement
relating to such Firm Designated Preferred Securities or Over-Allotment
Option relating to such Optional Designated
Preferred Securities, as the case may be, shall thereupon terminate,
without liability on the part of any nondefaulting Underwriter, X.X. Xxxxxx
or the Company, except for the expenses to be borne by the Company, X.X.
Xxxxxx and the Underwriters as provided in Section 6 hereof and the
indemnity and contribution agreements in Section 8 hereof; but nothing
herein shall relieve a defaulting Underwriter from any liability for its
default.
10. The respective indemnities, agreements, representations,
warranties and other statements of the Company and X.X. Xxxxxx and the
several Underwriters, as set forth in this Agreement or made by or on
behalf of them, respectively, pursuant to this Agreement, shall remain in
full force and effect, regardless of any investigation (or any statement as
to the results thereof) made by or on behalf of any Underwriter or any
controlling person of any Underwriter, or the Company or X.X. Xxxxxx, or
any officer or director or controlling person of the Company or X.X.
Xxxxxx, and shall survive delivery of and payment for the Designated
Preferred Securities.
11. In all dealings hereunder the Representatives of the
Underwriters of Designated Preferred Securities shall act on behalf of each
of such Underwriters, and the parties hereto shall be entitled to act and
rely upon any statement, request, notice or agreement on behalf of any
Underwriter made or given by such Representatives jointly or by such of the
Representatives, if any, as may be designated for such purpose in the
Pricing Agreement.
All statements, requests, notices and agreements hereunder shall
be in writing, and if to the Underwriters shall be delivered or sent by
mail, telex or facsimile transmission to the address of the Representatives
as set forth in the Pricing Agreement; and if to the Company or X.X. Xxxxxx
shall be delivered or sent by mail, telex or facsimile transmission to the
address of the Company and X.X. Xxxxxx set forth in the Registration
Statement; Attention: Secretary; provided, however, that any notice to an
Underwriter pursuant to Section 8(c) hereof shall be delivered or sent by
mail, telex or facsimile transmission to such Underwriter at its address
set forth in its Underwriters' Questionnaire, or telex constituting such
Questionnaire, which address will be supplied to the Company and X.X.
Xxxxxx by the Representatives upon request. Any such statements, requests,
notices or agreements shall take effect upon receipt thereof.
12. This Agreement and each Pricing Agreement shall be binding
upon, and inure solely to the benefit of, the Underwriters, the Company and
X.X. Xxxxxx and, to the extent provided in Section 8 and Section 10 hereof,
the officers and directors of the Company and X.X. Xxxxxx and each person
who controls the Company and X.X. Xxxxxx or any Underwriter, and their
respective heirs, executors, administrators, successors and assigns, and no
other person shall acquire or have any right under or by virtue of this
Agreement or any such Pricing Agreement. No purchaser of any of the
Preferred Securities from any Underwriter shall be deemed a successor or
assign by reason merely of such purchase.
13. Time shall be of the essence for each Pricing Agreement. As
used herein, "business day" shall mean any day when the Commissioner's
office in Washington, D.C., is open for business.
14. This Agreement and each Pricing Agreement shall be governed
by and construed in accordance with the laws of the State of New York,
without giving effect to the conflict of law provisions thereof.
15. This Agreement and each Pricing Agreement may be executed by
any one or more of the parties hereto and thereto in any number of
counterparts, each of which shall be deemed to be an original, but all of
which counterparts together constitute one and the same agreement.
Very truly yours,
X.X. XXXXXX INDEX FUNDING
COMPANY, LLC,
by X.X. XXXXXX & CO.
INCORPORATED, as Managing
Member,
by
---------------------------------
Name:
Title:
X.X. XXXXXX & CO.
INCORPORATED,
by
--------------------------
Name:
Title:
ANNEX I
PRICING AGREEMENT
[X.X. Xxxxxx Securities Inc.]
As Representatives
of the several
Underwriters named in Schedule I hereto,
, 1996
Ladies and Gentlemen:
X.X. Xxxxxx Index Funding Company, LLC, a limited liability
company formed under the laws of the State of Delaware (the "Company"),
proposes, subject to the terms and conditions stated herein and in the
Underwriting Agreement, dated , 1996 (the "Underwriting Agreement"), to
issue and sell to the Underwriters named in Schedule I hereto (the
"Underwriters") the Preferred Securities specified in Schedule II hereto
(the "Designated Preferred Securities" consisting of Firm Designated
Preferred Securities and any Optional Designated Preferred Securities the
Underwriters may elect to purchase) of ( )% [ ] Preferred Securities,
Series [ ], of the Company, guaranteed by X.X. Xxxxxx & Co. Incorporated, a
Delaware corporation, to the extent set forth in the Prospectus and
Registration Statement relating to the Preferred Securities. Each of the
provisions of the Underwriting Agreement is incorporated herein by
reference in its entirety, and shall be deemed to be a part of this
Agreement to the same extent as if such provisions had been set forth in
full herein; and each of the representations and warranties set forth
therein shall be deemed to have been made at and as of the date of this
Pricing Agreement, except that each representation and warranty that refers
to the Prospectus in Section 2 of the Underwriting Agreement shall be
deemed to be a representation or warranty as of the date of the
Underwriting Agreement in relation to the Prospectus (as therein defined),
and also a representation and warranty as of the date of this Pricing
Agreement in relation to the Prospectus as amended or supplemented relating
to the Designated Preferred Securities which are the subject of this
Pricing Agreement. Each reference to the Representatives herein and in the
provisions of the Underwriting Agreement so incorporated by reference shall
be
deemed to refer to you. Unless otherwise defined herein, terms defined in
the Underwriting Agreement are used herein as therein defined. The
Representatives designated to act on behalf of each of the Underwriters of
the Designated Preferred Securities pursuant to Section 12 of the
Underwriting Agreement and the address of the Representatives referred to
in such Section 12 are set forth at the end of Schedule II hereto.
An amendment to the Registration Statement, or a supplement to
the Prospectus, as the case may be, relating to the Designated Preferred
Securities, in the form heretofore delivered to you is now proposed to be
filed with the Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, (a) the Company
agrees to issue and to sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the
Company, at the time and place and at the purchase price to the
Underwriters set forth in Schedule II hereto, the number of Firm Designated
Preferred Securities set forth opposite the name of such Underwriter in
Schedule I hereto and (b) in the event and to the extent that the
Underwriters shall exercise the election to purchase Optional Designated
Preferred Securities, as provided below, the Company agrees to issue and
sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company at the purchase
price to the Underwriters set out in Schedule II hereto that portion of the
number of Optional Designated Preferred Securities as to which such
election shall have been exercised.
The Company hereby grants to each of the Underwriters the right
to purchase at their election up to the number of Optional Designated
Preferred Securities set forth opposite the name of such Underwriter in
Schedule I hereto on the terms referred to in the paragraph above for the
sole purpose of covering over-allotments in the sale of the Firm Designated
Preferred Securities. Any such election to purchase Optional Designated
Preferred Securities may be exercised by written notice from the
Representatives to the Company and X.X. Xxxxxx given within a period of
calendar days after the date of this Pricing Agreement, setting forth the
aggregate number of Optional Designated Preferred Securities to be
purchased and the date on which such Optional Designated Preferred
Securities are to be
delivered, as determined by the Representatives but in no event earlier
than the First Time of Delivery or, unless the Representatives, X.X. Xxxxxx
and the Company otherwise agree in writing, no earlier than two or later
than 10 business days after the date of such notice.
If the foregoing is in accordance with your understanding, please
sign and return to us counterparts hereof, and upon acceptance hereof by
you, on behalf of each of the Underwriters, this letter and such acceptance
hereof, including the provisions of the Underwriting Agreement incorporated
herein by reference, shall constitute a binding agreement between each of
the Underwriters, the Company and X.X. Xxxxxx. It is understood that your
acceptance of this letter on behalf of each of the Underwriters is or will
be pursuant to the authority set forth in a form of Agreement among
Underwriters, the form of which shall be submitted to the Company and X.X.
Xxxxxx for examination upon request.
X.X. XXXXXX INDEX FUNDING
COMPANY, LLC,
by X.X. XXXXXX & CO.
INCORPORATED, as Managing
Member,
by
--------------------------
Name:
Title:
X.X. XXXXXX & CO.
INCORPORATED,
by
------------------------------
Name:
Title:
Accepted as of the
date hereof:
[X.X. XXXXXX SECURITIES INC.,]
On behalf of each
of the Underwriters,
by
------------------------
Name:
Title:
SCHEDULE I
Maximum Number
Number of Firm of Optional
Designated Designated
Preferred Preferred Securities
Securities Which
Underwriter To Be Purchased May Be Purchased
----------- --------------- --------------------
[X.X. Xxxxxx
Securities Inc.]
Total . . . . . . .
SCHEDULE II
Title of Designated Preferred Securities: ( )% [ ]
Preferred Securities, Series :
Date of Resolution Adopted by the Managing Members To Fix the Terms and
Conditions of the Designated Preferred Securities:
, 199
Number of Designated Preferred Securities:
Number of Firm Designated Preferred Securities:
Maximum Number of Optional Designated Preferred
Securities:
Initial Offering Price to Public:
$ per security, plus accrued dividends, if any,
from , 199
Purchase Price by Underwriters (including the Optional Designated
Preferred Securities):
$ per security, plus accrued dividends, if any,
from , 199
Underwriters' Compensation:
$ per security
Specified Funds for Payment of Purchase Price and
Underwriters' Compensation:
((New York) Clearing House Funds)
(Immediately Available Funds)
Dividend Rate:
$ per annum
Dividend Payment Dates:
(insert language from Prospectus and Prospectus
Supplement)
Liquidation Preference:
Redemption and Exchange Provisions:
(insert language from Prospectus and Prospectus
Supplement)
(First) Time of Delivery:
, 19
Closing Location:
Names and addresses of Representatives:
Designated Representatives:
Address for Notices, etc.:
(Other Terms) :
-------------------
A description of particular tax, accounting or other unusual
features of the Designated Preferred Securities should be set forth,
or referenced to an attached and accompanying description, if necessary,
to ensure agreement as to the terms of the Designated Preferred Securities
to be purchased and sold. Such a description might appropriately be in the
form in which such features will be described in the Prospectus Supplement
for the offering.
ANNEX II
Pursuant to Section 7(e) of the Underwriting Agreement, the
accountants shall furnish letters to the Underwriters to the effect that:
(i) they are independent, certified public accountants with
respect to X.X. Xxxxxx and its subsidiaries within the meaning of the
Act and the applicable published rules and regulations thereunder;
(ii) in their opinion, the financial statements and any
supplementary financial information and schedules audited by them and
included or incorporated by reference in the Registration Statement or
the Prospectus comply as to form in all material respects with the
applicable accounting requirements of the Act or the Exchange Act, as
applicable, and the related, published rules and regulations
thereunder; and, if applicable, they have made a review in accordance
with standards established by the American Institute of Certified
Public Accountants of the consolidated interim financial statements
and selected financial data derived from audited financial statements
of X.X. Xxxxxx for the periods specified in such letter, as indicated
in their reports thereon, copies of which have been furnished to the
representative of the Underwriters (the "Representatives");
(iii) the unaudited, selected financial information with respect
to the consolidated results of operations and financial position of
X.X. Xxxxxx for the five most recent fiscal years included in the
Prospectus and included or incorporated by reference in Item 6 of X.X.
Xxxxxx'x Annual Report on Form 10-K for the most recent fiscal year
agrees with the corresponding amounts (after restatement where
applicable) in the audited, consolidated financial statements for five
such fiscal years which were included or incorporated by reference in
X.X. Xxxxxx'x Annual Reports on Form 10-K for such fiscal years;
(iv) on the basis of limited procedures, not constituting an
audit in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and
other information referred to below, a reading of the latest available
interim financial statements of X.X. Xxxxxx and its subsidiaries,
inspection of the minute books of X.X. Xxxxxx and its subsidiaries
since the date of the latest
audited financial statements included or incorporated by
reference in the Prospectus, inquiries of officials of X.X. Xxxxxx and
its subsidiaries responsible for financial and accounting matters and
such other inquiries and procedures as may be specified in such
letter, nothing came to their attention that caused them to believe
that:
(a) the unaudited condensed consolidated statements of
income, consolidated balance sheets and consolidated statements
of cash flows including or incorporated by reference in X.X.
Xxxxxx'x Quarterly Reports on Form 10-Q incorporated by reference
in the Prospectus do not comply as to form in all material
respects with the applicable accounting requirements of the
Exchange Act as it applies to Form 10-Q and the related published
rules and regulations thereunder or, if no report has been issued
by such accountants on the consolidated interim financial
statements as set forth in (ii) above, based on a review under
the applicable professional standards, that any material
modifications should be made to such condensed consolidated
financial statements for them to be in conformity with generally
accepted accounting principles;
(b) any other unaudited income statement data and balance
sheet items included in the Prospectus do not agree with the
corresponding items in the unaudited consolidated financial
statements from which such data and items were derived, and any
such unaudited data and items were not determined on a basis
substantially consistent with the basis for the corresponding
amounts in the audited consolidated financial statements included
or incorporated by reference in X.X. Xxxxxx'x Annual Report on
Form 10-K for the most recent fiscal year; and
(c) the unaudited financial statements which were not
included in the Prospectus but from which were derived the
unaudited condensed financial statements referred to in clause
(a) above and any unaudited income statement data and balance
sheet items included in the Prospectus and referred to in clause
(b) above were not determined on a basis substantially consistent
with the basis for the audited financial statements included or
incorporated by reference in X.X. Xxxxxx'x Annual Report on Form
10-K for the most recent fiscal year.
(v) in addition to the audit referred to in their report(s)
included or incorporated by reference in the Prospectus and the
limited procedures, inspection of minute books, inquiries and other
procedures referred to in paragraphs (iii) and (iv) above, they have
carried out certain specified procedures, not constituting an audit in
accordance with generally accepted auditing standards, with respect to
certain amounts, percentages and financial information specified by
the Representatives which are derived from the general accounting
records of X.X. Xxxxxx and its subsidiaries, which appear in the
Prospectus (excluding documents incorporated by reference), or in Part
II of, or in exhibits and schedules to, the Registration Statement
specified by the Representatives or in documents incorporated by
reference in the Prospectus specified by the Representatives, and have
compared certain of such amounts, percentages and financial
information with the accounting records of or schedules prepared by
X.X. Xxxxxx and its subsidiaries and have found them to be in
agreement; and
(vi) if pro forma financial statements and other pro forma
financial information (the "Pro Forma Disclosure") are required to be
included in the Registration Statement, such letter shall further
state that although they are unable to and do not express any opinion
on such Pro Forma Disclosure or on the pro forma adjustments applied
to the historical amounts included in that statement, for purposes of
such letter they have:
(a) read the Pro Forma Disclosure;
(b) made inquiries of certain officials of X.X. Xxxxxx who
have responsibility for financial and accounting matters about
the basis for their determination of the pro forma adjustments
and whether the Pro Forma Disclosure above complies in form in
all material respects with the applicable accounting requirements
of Rule 11-02 of Regulation S-X; and
(c) provided the arithmetic accuracy of the application of
the pro forma adjustments to the historical amounts in the Pro
Forma Disclosure; and
on the basis of such procedures, and such other inquiries and
procedures as may be specified in such
letter, nothing came to their attention that caused them to
believe that the Pro Forma Disclosure included in the
Registration Statement does not comply in form in all material
respects with the applicable requirements of Rule 11-02 of
Regulation S-X and that the pro forma adjustments have not been
properly applied to the historical amounts in the compilation of
that statement.
All references in this Annex II to the Prospectus shall be deemed
to refer to the Prospectus (including the documents incorporated by
reference therein) as defined in the Underwriting Agreement as of the date
of the letter delivered on the date of the Pricing Agreement for purposes
of such letter and to the Prospectus as amended or supplemented
(including the documents incorporated by reference therein) in relation to
the applicable Designated Preferred Securities for purposes of the letter
delivered at the Time of Delivery for such Designated Preferred Securities.
