[Draft--8/15/95]
XXXXX XXXXXX GROUP INC.
Underwriting Agreement
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, 199
To the Representative(s)
named in Schedule I
hereto of the Underwriters
named in Schedule II hereto
Dear Sirs:
Xxxxx Xxxxxx Group Inc., a Delaware corporation
(the "Company"), proposes to issue and sell to the under-
writers, including you, named in Schedule II hereto (the
"Underwriters") for whom (if more than you) you are acting
as representatives (the "Representatives"), the principal
amount of its securities identified in Schedule I hereto to
be issued under an Indenture dated as of March 15, 1988, as
supplemented by a First Supplemental Indenture dated as of
September 22, 1989, and by a Second Supplemental Indenture
dated as of March 22, 1991 (as so supplemented, the
"Indenture"), between the Company and ,
as trustee (the "Trustee"). All or part, as the context may
require, of such securities are hereinafter called the
"Securities". If the firm or firms listed in Schedule II
hereto include only the firm or firms listed in Schedule I
hereto, then the terms "Underwriters" and "Representatives"
shall each be deemed to refer to such firm or firms.
1. Sale and Purchase of the Securities. The
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Company agrees to sell to each Underwriter, and each Under-
writer, on the basis of the representations, warranties and
agreements herein contained, but subject to the terms and
conditions herein stated, agrees to purchase from the
Company, at the purchase price set forth in Schedule I
hereto the principal amount of Securities set forth opposite
the name of such Underwriter in Schedule II hereto except
that if Schedule I hereto provides for the sale of Securi-
ties pursuant to delayed delivery arrangements, the respec-
tive principal amounts of Securities to be purchased by the
Underwriters shall be as set forth in Schedule II hereto,
less the respective amounts of Contract Securities deter-
mined as provided below. Securities to be purchased by the
Underwriters are herein sometimes called the "Underwriters'
Securities" and Securities to be purchased pursuant to
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Delayed Delivery Contracts (as hereinafter defined) are
herein called "Contract Securities". The obligations of the
Underwriters under this Agreement are several and not joint.
If so provided in Schedule I hereto, the Under-
writers are authorized to solicit offers to purchase Securi-
ties from the Company pursuant to delayed delivery contracts
("Delayed Delivery Contracts"), substantially in the form of
Schedule III hereto, but with such changes therein as the
Company may authorize or approve. The Underwriters will
endeavor to make such arrangements, and, as compensation
therefor, the Company will pay to the Representatives, for
the account of the Underwriters, on the Closing Date (as
hereinafter defined), the fee set forth in Schedule I hereto
with respect to the principal amount of Securities for which
Delayed Delivery Contracts are made. Delayed Delivery
Contracts are to be with corporations or institutions. The
Company will make Delayed Delivery Contracts in all cases
where sales of Contract Securities arranged by the Under-
writers have been approved by the Company but, except as the
Company may otherwise agree, each such Delayed Delivery
Contract must be for not less than the minimum principal
amount set forth in Schedule I hereto and the total princi-
pal amount of Contract Securities may not exceed the maximum
principal amount set forth in Schedule I hereto. The
Underwriters will not have any responsibility in respect of
the validity or performance of Delayed Delivery Contracts.
The principal amount of Securities to be purchased by each
Underwriter as set forth in Schedule II hereto shall be
reduced by an amount which shall bear the same proportion to
the total principal amount of Contract Securities as the
principal amount of Securities set forth opposite the name
of such Underwriter bears to the total principal amount of
Securities set forth in Schedule II hereto, except to the
extent that you determine that such reduction shall be
otherwise than in such proportion and so advise the Company
in writing; provided, however, that the total principal
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amount of Securities to be purchased by all Underwriters
shall be the total principal amount set forth in Schedule II
hereto less the total principal amount of Contract Securi-
ties.
2. Payment and Delivery. Delivery by the Company
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of the Underwriters' Securities to the Representatives for
the respective accounts of the several Underwriters and
payment by the Underwriters therefor by certified or offi-
cial bank check or checks payable in New York Clearing House
funds to the Company shall take place at the office, on the
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date and at the time specified in Schedule I hereto, which
date and time may be postponed by agreement between the
Representatives and the Company or as provided in Section 10
hereof (such date and time of delivery and payment for the
Underwriters' Securities being herein called the "Closing
Date").
The Underwriters' Securities shall be registered
in such names and shall be in such denominations as the
Representatives shall request at least three full business
days prior to the Closing Date and shall be made available
to the Representatives for checking and packaging, at such
place as is designated by the Representatives, at least one
full business day prior to the Closing Date.
3. Registration Statements and Prospectus; Public
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Offering. The Company represents and warrants to each
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Underwriter that the Company meets the requirements for the
use of Form S-3 under the Securities Act of 1933, as
amended, and the rules and regulations adopted thereunder
(respectively, the "Securities Act" and the "Rules"), and
has carefully prepared and filed with the Securities and
Exchange Commission (the "Commission") one or more
registration statements on Form S-3 (the file numbers of
which are set forth in Schedule I hereto), which have become
effective, for the registration under the Securities Act of
the Securities. Such registration statements, as amended by
any amendment which has become effective at the date of this
Agreement, meet the requirements set forth in Rule 415(a)
under the Securities Act and comply in all other material
respects with such Rule. The Company proposes to file with
the Commission pursuant to Rule 424(b) under the Securities
Act ("Rule 424(b)") a supplement to the form of prospectus
included in such registration statements relating to the
Securities and the plan of distribution thereof and has
previously advised you of all further information (financial
and other) with respect to the Company to be set forth
therein. The registration statements, each as amended by
any amendment which has become effective at the date of this
Agreement, including the exhibits thereto and all documents
incorporated therein by reference pursuant to Item 12 of
Form S-3 (the "Incorporated Documents"), are hereinafter
referred to as the "Registration Statements", and the form
of prospectus included in such Registration Statements as
then amended, including the Incorporated Documents, is
hereinafter referred to as the "Basic Prospectus"; and such
supplemented form of prospectus, in the form in which it
shall be filed with the Commission pursuant to Rule 424(b)
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(including the Basic Prospectus as so supplemented) is
hereinafter referred to as the "Final Prospectus". Any
preliminary form of the Final Prospectus which has
heretofore been filed pursuant to Rule 424(b) is hereinafter
called the "Interim Prospectus". Any reference herein to
the Registration Statements, the Basic Prospectus, any
Interim Prospectus or the Final Prospectus shall be deemed
to refer to and include the Incorporated Documents which
were filed under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), on or before the date of this
Agreement or the issue date of the Basic Prospectus, any
Interim Prospectus or the Final Prospectus, as the case may
be; and any reference herein to the terms "amend", "amend-
ment" or "supplement" with respect to the Registration
Statements, the Basic Prospectus, any Interim Prospectus or
the Final Prospectus shall be deemed to refer to and include
the filing of any Incorporated Documents under the Exchange
Act after the date of this Agreement or the issue date of
the Basic Prospectus, any Interim Prospectus or the Final
Prospectus, as the case may be.
The Company hereby confirms that the Underwriters
and dealers have been authorized to distribute or cause to
be distributed any Interim Prospectus and are authorized to
distribute the Final Prospectus (as from time to time
amended or supplemented if the Company furnishes amendments
or supplements thereto to the Underwriters).
4. Representations and Warranties. The Company
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represents and warrants to each Underwriter that:
(a) The Commission has not issued an order
preventing or suspending the use of the Basic Prospec-
tus or any Interim Prospectus.
(b) The Basic Prospectus and any Interim Prospec-
tus have complied in all material respects with the
requirements of the Securities Act and of the Rules
and, as of their respective dates, did not include any
untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein
not misleading.
(c) As of the date hereof, when the Final Pro-
spectus is first filed with the Commission pursuant to
Rule 424(b), when, before the Closing Date, any amend-
ment to either of the Registration Statements becomes
effective, when, before the Closing Date, any document
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incorporated by reference in either of the Registration
Statements is filed with the Commission, when any
supplement to the Final Prospectus is filed with the
Commission and on the Closing Date, the Registration
Statements, the Final Prospectus and any such amendment
or supplement will comply in all material respects with
the requirements of the Securities Act and the Rules,
the Incorporated Documents will comply in all material
respects with the requirements of the Exchange Act and
the rules and regulations adopted by the Commission
thereunder, and the Registration Statements 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, the Indenture will comply in
all material respects with the requirements of the
Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), and the rules thereunder and 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 this representation
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and warranty does not apply to (i) statements or
omissions in either of the Registration Statements or
the Final Prospectus (or in amendments or supplements
thereto) made in reliance upon information furnished in
writing to the Company by the Representatives on behalf
of any Underwriter expressly for use therein or
(ii) that part of either Registration Statement which
shall constitute the Statement of Eligibility and
Qualification of the Trustee under the Trust Indenture
Act on Form T-1, except statements or omissions therein
made in reliance upon information furnished in writing
to the trustee by or on behalf of the Company for use
therein.
(d) The certificate delivered pursuant to
paragraph (e) of Section 5 hereof will be on the date
on which it is to be delivered in all material respects
true and complete.
(e) No consent, approval, authorization or order
of any court or governmental agency or body is required
for the consummation by the Company of the transactions
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contemplated by this Agreement, except those which have
been obtained or which may be required under the
Securities Act and such qualifications as may be
required under state laws in connection with the
purchase and distribution of the Securities by the
Underwriters, and consummation of such transactions
will not result in the breach of any terms of, or
constitute a default under, any other agreement or
undertaking of the Company.
5. Conditions of the Underwriters' Obligations.
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The obligations of the Underwriters hereunder are subject to
the following conditions:
(a) Pursuant to Rule 424(b), the Final Prospectus
shall have been filed with the Commission no later than
the second business day following the earlier of the
date of the determination of the offering price of the
Securities or the date it is first used after
effectiveness in connection with a public offering or
sales, or transmitted by a means reasonably calculated
to result in filing with the Commission by that date.
(b) No order suspending the effectiveness of
either of the Registration Statements, as amended from
time to time, shall be in effect and no proceedings for
such purpose shall be pending before or threatened by
the Commission and any requests for additional
information on the part of the Commission (to be
included in either of the Registration Statements or
the Final Prospectus or otherwise) shall have been
complied with to the reasonable satisfaction of the
Representatives.
(c) Since the respective dates as of which
information is given in the Registration Statements and
the Final Prospectus, (i) there shall not have been any
material change in the capital stock or long-term debt
of the Company and its subsidiaries, (ii) there shall
not have been any material adverse change in the
general affairs, management, financial position or
results of operations of the Company and its subsidiar-
ies taken as a whole, whether or not arising from
transactions in the ordinary course of business, in
each case other than as set forth in or contemplated by
the Final Prospectus and (iii) the Company and its
subsidiaries shall not have sustained any material loss
or interference with their business taken as a whole
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from fire, explosion, flood or other calamity, whether
or not covered by insurance, or from any labor dispute
or any court or legislative or other governmental
action, order or decree that is not set forth in the
Final Prospectus if, in the judgment of the Representa-
tives, any such development referred to in clauses (i),
(ii) or (iii) makes it impracticable or inadvisable to
proceed with the offering and delivery of the Securi-
ties as contemplated by the Registration Statements and
the Final Prospectus.
(d) The representations and warranties of the
Company contained herein shall be true and correct as
of the date hereof, as of the date of the effectiveness
of any amendment to either of the Registration
Statements filed before the Closing Date, as of the
date of filing of any document incorporated by
reference therein before the Closing Date and on and as
of the Closing Date and the Company shall have
performed all covenants and agreements herein contained
to be performed on its part at or prior to the Closing
Date.
(e) The Representatives shall have received on
the Closing Date a certificate, dated the Closing Date,
of the chief executive officer or a vice president and
of the principal financial or accounting officer of the
Company, which shall certify that (i) no order suspend-
ing the effectiveness of either of the Registration
Statements or prohibiting the sale of the Securities
has been issued and no proceedings for such purpose are
pending before or, to the knowledge of such officers,
threatened by the Commission and (ii) the
representations and warranties of the Company contained
herein are true and correct on and as of the Closing
Date and the Company has performed all covenants and
agreements herein contained to be performed on its part
at or prior to the Closing Date.
(f) The Representatives shall have received on
the Closing Date a signed letter (which may refer to
letters previously delivered to one or more of the
Representatives) from Ernst & Young, dated the Closing
Date, substantially in the form of Exhibit A hereto.
In addition, unless otherwise provided in
Schedule I hereto, at the time this Agreement is executed,
such firm of accountants shall have furnished to the Repre-
8
sentatives a letter or letters, dated the date of this
Agreement, in form and substance satisfactory to the Repre-
sentatives, to the effect set forth in Schedule I hereto, in
the introductory paragraph to Exhibit A hereto, in
clauses (a) and (b)(2) of Exhibit A hereto and, to the
extent referring to information contained in Exchange Act
reports incorporated in the Registration Statements and the
Final Prospectus, in clauses (b)(1) and (c) of Exhibit A
hereto.
(g) The Representatives shall have received on
the Closing Date from the General Counsel of the
Company, an opinion and a letter, each dated the
Closing Date, substantially identical to the proposed
form of opinion and form of letter set forth in
Exhibit B hereto.
(h) The Representatives shall have received on
the Closing Date from Cravath, Swaine & Xxxxx, counsel
for the Underwriters, an opinion and a letter, each
dated the Closing Date, with respect to the Company,
the Indenture, the Securities, the Registration
Statements, the Final Prospectus, this Agreement and
any Delayed Delivery Contracts and the form and
sufficiency of all proceedings taken in connection with
the authorization, sale and delivery of the Securities.
Such opinion, letter and proceedings shall be
reasonably satisfactory in all respects to the
Representatives, and the Company shall have furnished
to counsel for the Underwriters such documents as they
may reasonably request for the purpose of enabling them
to render such opinion and letter.
(i) Subsequent to the execution of this Agree-
ment, there shall not have been any decrease in the
ratings of any of the Company's debt securities by
Xxxxx'x Investors Service, Inc. or Standard & Poor's
Corporation.
(j) The Company shall have accepted Delayed
Delivery Contracts in any case where sales of Contract
Securities arranged by the Underwriters have been
approved by the Company.
(k) Subsequent to the execution of this Agree-
ment, the Company shall not have filed an Incorporated
Document under the Exchange Act unless a copy thereof
shall have first been submitted to the Representatives
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within a reasonable period of time prior to the filing
thereof and the Representatives shall not have rea-
sonably objected thereto in writing.
6. Covenants. The Company covenants and agrees
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as follows:
(a) Before the termination of the offering of the
Securities, not to file any amendment or supplement
(including the Final Prospectus) to either of the
Registration Statements relating to the Securities or
the Basic Prospectus (other than an Incorporated
Document filed under the Exchange Act) unless a copy
thereof shall have first been submitted to the
Representatives within a reasonable period of time
prior to the filing thereof and the Representatives
shall not have reasonably objected thereto in writing.
Subject to the foregoing sentence, the Company will
cause the Final Prospectus to be filed with the
Commission or transmitted for filing with the
Commission in accordance with the requirements of
Rule 424(b).
(b) As soon as the Company is advised thereof, to
advise the Representatives (i) when the Final Prospec-
tus shall have been filed with the Commission or mailed
to the Commission for filing pursuant to Rule 424(b),
(ii) when any amendment to either of the Registration
Statements relating to the Securities shall have become
effective, (iii) of the initiation or threatening by
the Commission of any proceedings for the issuance of
any order suspending the effectiveness of either of the
Registration Statements, or the qualification of the
Indenture, (iv) of receipt by the Company or any
representative of or attorney for the Company of any
other communication from the Commission relating to the
Company (except for routine communications relating to
the broker-dealer business of the Company), either of
the Registration Statements (except for communications
relating to securities other than the Securities), the
Basic Prospectus, any Interim Prospectus or the Final
Prospectus and (v) of the receipt by the Company or any
representative of or attorney for the Company of any
notification with respect to the suspension of the
qualification of the Securities for sale in any juris-
diction or the initiation or threatening of any pro-
ceeding for such purpose. The Company will make every
reasonable effort to prevent the issuance of an order
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suspending the effectiveness of either of the
Registration Statements or the qualification of the
Indenture and if any such order is issued to obtain as
soon as possible the lifting thereof.
(c) To deliver to the Representatives, without
charge, (i) upon request and to the extent not
previously delivered, signed copies of the Registration
Statements and of any amendments thereto (including all
exhibits filed with, or incorporated by reference in,
any such document) and (ii) as many conformed copies of
the Registration Statements and of any amendments
thereto which shall become effective on or before the
Closing Date (excluding exhibits) as the
Representatives may reasonably request.
(d) During such period as a prospectus is
required by law to be delivered by an Underwriter or
dealer, to deliver, without charge to the Representa-
tives and to Underwriters and dealers, at such office
or offices as the Representatives may designate, as
many copies of any Interim Prospectus and the Final
Prospectus as the Representatives may reasonably
request.
(e) During the period in which copies of the
Final Prospectus are to be delivered as provided in
paragraph (d) above, if any event occurs as a result of
which it shall be necessary to amend or supplement the
Final Prospectus in order to ensure that no part of the
Final Prospectus contains an untrue statement of a
material fact or omits to state a material fact neces-
sary to make the statements therein, in light of the
circumstances existing when the Final Prospectus is to
be delivered to a purchaser, not misleading, forthwith
to prepare, submit to the Representatives, file with
the Commission and deliver without charge, to the
Underwriters and to dealers (to the extent requested
and at the addresses furnished by the Representatives
to the Company) to whom Securities may have been sold
by the Underwriters, and to other dealers upon request,
either amendments or supplements to the Final Prospec-
tus so that the statements in the Final Prospectus, as
so amended or supplemented, will comply with the
standard set forth in this paragraph (e). Delivery by
Underwriters of any such amendments or supplements to
the Final Prospectus shall not constitute a waiver of
any of the conditions set forth in Section 5 hereof.
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(f) To make generally available to the Company's
security holders, as soon as practicable but in no
event later than 45 days after the end of the 12-month
period beginning at the end of the current fiscal
quarter of the Company, an earnings statement that
satisfies the provisions of Section 11(a) of the
Securities Act and Rule 158 thereunder.
(g) To take such action as the Representatives
may request in order to qualify the Securities for
offer and sale under the securities or "blue sky" laws
of such jurisdictions as the Representatives may
reasonably request; provided that in no event shall the
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Company be obligated to subject itself to taxation or
to qualify to do business in any jurisdiction where it
is not now so qualified or to take any action that
would subject it to service of process in suits, other
than those arising out of the offering or sale of the
Securities, in any jurisdiction where it is not now so
subject.
(h) For so long as any of the Securities remain
outstanding, to supply to the Representatives and to
each other Underwriter who may so request in writing
copies of such financial statements and other periodic
and special reports as the Company may from time to
time distribute generally to its lenders or to the
holders of any class of its capital stock and to
furnish to the Representatives copies of each annual or
other report it shall be required to file with the
Commission.
(i) To pay, or reimburse if paid by the Represen-
tatives, whether or not the transactions contemplated
hereby are consummated or this Agreement is terminated,
all costs and expenses incident to the performance of
the obligations of the Company under this Agreement,
including those relating to (i) the preparation,
printing and filing of the Registration Statements and
exhibits thereto, the Basic Prospectus, any Interim
Prospectus and the Final Prospectus, all amendments and
supplements to the Registration Statements, any Interim
Prospectus and the Final Prospectus, and the
preparation and printing or other reproduction of this
Agreement, the Indenture and any agreement among
underwriters and agreements with dealers relating to
the offering of the Securities, (ii) the issuance of
the Securities and the preparation and delivery of
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certificates for the Securities, (iii) the registration
or qualification of the Securities for offer and sale
under the securities or "blue sky" laws of the various
jurisdictions referred to in paragraph (g) above,
including the fees and disbursements of counsel for the
Underwriters in connection therewith and the prepara-
tion and printing of "blue sky" memoranda and legal
investment memoranda, (iv) the furnishing to the
Representatives and the Underwriters of copies of any
Interim Prospectus and the Final Prospectus and all
amendments or supplements to any Interim Prospectus and
the Final Prospectus, and of the several documents
required by this Section 6 to be so furnished, includ-
ing costs of shipping and mailing, (v) the filing
requirements, if any, of the National Association of
Securities Dealers, Inc., in connection with its review
of corporate financings, (vi) the furnishing to the
Representatives and to the Underwriters of copies of
all reports and information required by paragraph (h)
above, including costs of shipping and mailing,
(vii) all transfer taxes, if any, with respect to the
sale and delivery of the Securities by the Company to
the several Underwriters, (viii) the fees charged by
rating agencies in connection with the rating of the
Securities, (ix) the fees and expenses of the Trustee
and (ix) the fee, if any, for listing the Securities on
any national securities exchange.
(j) For a period beginning at the time of execu-
tion of this Agreement and ending on the later of the
Closing Date or the date on which any price restric-
tions on the sale of the Securities are terminated,
without the prior consent of the Underwriters or the
Representatives, not publicly to offer, sell, contract
to sell or otherwise dispose of any debt securities of
the Company.
(k) If the Final Prospectus states that the
Securities will be listed on a stock exchange, to use
its best efforts to cause the Securities to be listed
on such stock exchange.
7. Indemnification. (a) The Company agrees to
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indemnify and hold harmless each Underwriter and each
person, if any, who controls any Underwriter within the
meaning of either the Securities Act or the Exchange Act
against any and all losses, claims, damages and liabilities,
joint or several (including any investigation, legal and
13
other expenses incurred in connection with, and any amount
paid in settlement of, any action, suit or proceeding or any
claim asserted), to which they, or any of them, may become
subject under the Securities Act, the Exchange Act or other
Federal or state statutory law or regulation, at common law
or otherwise, insofar as such losses, claims, damages or
liabilities arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact
contained in either of the Registration Statements, the
Basic Prospectus, any Interim Prospectus or the Final
Prospectus, or any amendment or supplement thereto, or the
omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as any
such untrue statement or omission or alleged untrue
statement or omission was made in (i) either of the
Registration Statements, the Basic Prospectus, any Interim
Prospectus or the Final Prospectus, or such amendment or
supplement, in reliance upon and in conformity with
information furnished in writing to the Company by the
Representatives on behalf of any Underwriter expressly for
use therein or (ii) that part of either of the Registration
Statements which shall constitute the Statement of
Eligibility and Qualification on Form T-1 of the Trustee
under the Trust Indenture Act, except statements or
omissions in such Registration Statement made in reliance
upon information furnished in writing to the Trustee by or
on behalf of the Company for use therein; provided, however,
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that such indemnity with respect to the Basic Prospectus or
any Interim Prospectus shall not inure to the benefit of any
Underwriter (or any person controlling such Underwriter)
from whom the person asserting any such loss, claim, damage
or liability purchased Securities that are the subject
thereof if such person did not receive a copy of the Final
Prospectus (not including the Incorporated Documents) at or
prior to the confirmation of the sale of such Securities to
such person in any case where such delivery is required by
the Securities Act and the untrue statement or omission of a
material fact contained in the Basic Prospectus or any
Interim Prospectus was corrected in the Final Prospectus,
unless such failure to deliver the Final Prospectus was a
result of noncompliance by the Company with Section 6(d)
hereof.
(b) Each Underwriter agrees to indemnify and hold
harmless the Company, each person, if any, who controls the
Company within the meaning of either the Securities Act or
the Exchange Act, each director of the Company and each
14
officer of the Company who signs either of the Registration
Statements to the same extent as the foregoing indemnity
from the Company to each Underwriter, but only insofar as
such losses, claims, damages or liabilities arise out of or
are based upon any untrue statement or omission or alleged
untrue statement or omission that was made in either of the
Registration Statements, the Basic Prospectus, any Interim
Prospectus or the Final Prospectus, or any amendment or
supplement thereto, in reliance upon and in conformity with
information furnished in writing to the Company by the
Representatives on behalf of such Underwriter expressly for
use therein; provided, however, that the obligation of each
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Underwriter to indemnify the Company hereunder shall be
limited to the total price at which the Securities purchased
by such Underwriter hereunder were offered to the public.
The Company acknowledges that the statements set forth in
the last paragraph of the cover page, under the headings
"Underwriting" and "Plan of Distribution" and, if Schedule I
hereto provides for sales of Securities pursuant to delayed
delivery arrangements, under the heading "Delayed Delivery
Arrangements", in any Interim Prospectus or the Final
Prospectus constitute the only information furnished in
writing by or on behalf of the several Underwriters for
inclusion in the documents referred to in the foregoing
indemnity and you, as the Representatives, confirm that such
statements are correct.
(c) Any party that proposes to assert the right
to be indemnified under this Section 7 will, promptly after
receipt of notice of commencement of any action, suit or
proceeding against any such party in respect of which a
claim is to be made against an indemnifying party under this
Section 7, notify each such indemnifying party of the
commencement of such action, suit or proceeding, enclosing a
copy of all papers served, but the omission so to notify
such indemnifying party of any such action, suit or proceed-
ing (i) shall not relieve it from liability under this
Section 7 unless and to the extent it did not otherwise
learn of such action and such failure results in the
forfeiture by the indemnifying party of substantial rights
and defenses and (ii) shall not relieve it from any
liability that it may have to any indemnified party
otherwise than under this Section 7. In case any such
action, suit or proceeding shall be brought against any
indemnified party and it shall notify the indemnifying party
of the commencement thereof, such indemnifying party or
parties shall be entitled to participate in, and, to the
extent that it or they shall wish, jointly with any other
15
indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified
party, and after notice from the indemnifying party or
parties to such indemnified party of its or their election
so to assume the defense thereof, the indemnifying party or
parties shall not be liable to such indemnified party for
any legal or other expenses, other than reasonable costs of
investigation subsequently incurred by such indemnified
party in connection with the defense thereof. The
indemnified party shall have the right to employ its counsel
in any such action, but the fees and expenses of such
counsel shall be at the expense of such indemnified party
unless (i) the employment of counsel by such indemnified
party has been authorized by the indemnifying party or
parties, (ii) the indemnified party shall have reasonably
concluded that there may be a conflict of interest between
the indemnifying party or parties and the indemnified party
in the conduct of the defense of such action (in which case
the indemnifying party or parties shall not have the right
to direct the defense of such action on behalf of the
indemnified party) or (iii) the indemnifying party or
parties shall not in fact have employed counsel to assume
the defense of such action, in each of which cases the fees
and expenses of counsel shall be at the expense of the
indemnifying party or parties. An indemnifying party shall
not be liable for any settlement of any action or claim
effected without its written consent.
8. Contribution. In order to provide for just
-------------
and equitable contribution in circumstances in which the
indemnification provided for in Section 7(a) is applicable
but for any reason is held to be unavailable from the
Company, the Company and the Underwriters agree to
contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably
incurred in connection with investigating or defending same)
(collectively "Losses") to which the Company and one or more
of the Underwriters may be subject in such proportion as is
appropriate to reflect the relative benefits received by the
Company and by the Underwriters from the offering of the
Securities; provided, however, that in no case shall any
-------- -------
Underwriter (except as may be provided in any agreement
among underwriters relating to the offering of the
Securities) be responsible for any amount in excess of the
underwriting discount or commission applicable to the
Securities purchased by such Underwriter hereunder. If the
allocation provided by the immediately preceding sentence is
unavailable for any reason, the Company and the Underwriters
16
shall contribute in such proportion as is appropriate to
reflect not only such relative benefits but also the
relative fault of the Company and of the Underwriters in
connection with the statements or omissions which resulted
in such Losses as well as any other relevant equitable
considerations. Benefits received by the Company shall be
deemed to be equal to the total net proceeds from the
offering (before deducting expenses), and benefits received
by the Underwriters shall be deemed to be equal to the total
underwriting discounts and commissions, in each case as set
forth on the cover page of the Final Prospectus. Relative
fault shall be determined by reference to whether any
alleged untrue statement or omission relates to information
provided by the Company or the Underwriters. The Company
and the Underwriters agree that it would not be just and
equitable if contribution were determined by pro rata
allocation or any other method of allocation which does not
take into account the equitable considerations referred to
above. Notwithstanding the provisions of this Section 8, no
person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. For purposes of this
Section 8, each person who controls an Underwriter within
the meaning of either the Securities Act or the Exchange Act
shall have the same rights to contribution as such
Underwriter, and each person who controls the Company within
the meaning of either the Securities Act or the Exchange
Act, each officer of the Company who shall have signed the
Registration Statements and each director of the Company
shall have the same rights to contribution as the Company,
subject in each case to the applicable terms and conditions
of this Section 8. Any party entitled to contribution will,
promptly after receipt of notice of commencement of any
action, suit or proceeding against such party in respect of
which a claim for contribution may be made against another
party or parties under this Section 8, notify such party or
parties from whom contribution may be sought, but the
omission so to notify such party or parties (i) shall not
relieve such party or parties from liability under this
Section 8 unless and to the extent it or they did not
otherwise learn of such action and such failure results in
the forfeiture by such party or parties of substantial
rights and defenses and (ii) shall not relieve such party or
parties from any other obligation it or they may have
hereunder or otherwise than under this Section 8. No party
shall be liable for contribution with respect to any action
or claim settled without its consent.
17
9. Termination. This Agreement may be terminated
------------
by the Representatives or by Underwriters who have agreed to
purchase in the aggregate at least 50% of the principal
amount of the Securities by notifying the Company at any
time,
(a) prior to the earliest of (i) 5:00 p.m., New
York time, on the day the Final Prospectus is
transmitted for filing with the Commission pursuant to
Rule 424(b) (or the actual time of such filing, if such
filing in fact occurs prior to 5:00 p.m., New York
time, on such date), (ii) the time of release by the
Representatives for publication of the first newspaper
advertisement that is subsequently published with
respect to the Securities or (iii) the time when the
Securities are first generally offered by the
Representatives to dealers by letter or telegram;
(b) at or prior to the Closing Date if, in the
judgment of the Representatives or in the judgment of
such Underwriters, as the case may be, payment for and
delivery of the Securities is rendered impracticable or
inadvisable because (i) additional material governmen-
tal restrictions, not in force and effect on the date
hereof, shall have been imposed upon trading in securi-
ties generally or minimum or maximum prices shall have
been generally established on the New York Stock
Exchange, or trading in the Company's Common Stock
shall have been suspended by the Commission or the New
York Stock Exchange or trading in securities generally
shall have been suspended on such Exchange or a general
banking moratorium shall have been established by
Federal or New York authorities, (ii) any event shall
have occurred or shall exist which makes untrue or
incorrect in any material respect any material
statement or information contained in either of the
Registration Statements or the Final Prospectus or
which is not reflected in either of the Registration
Statements or the Final Prospectus but should be
reflected therein in order to make the statements or
information contained therein not misleading in any
material respect or (iii) any outbreak or escalation of
hostilities, declaration by the United States of a
national emergency or war or other calamity or crisis
shall have occurred or shall have accelerated to such
an extent as, in the judgment of the Representatives,
to affect adversely the marketability of the
Securities; or
18
(c) at or prior to the Closing Date, if any of the
conditions specified in Section 5 hereof shall not have
been fulfilled when and as required by this Agreement.
If this Agreement is terminated pursuant to any of
the provisions hereof, the Company shall not be under any
liability (except as otherwise provided herein) to any
Underwriter and no Underwriter shall be under any liability
to the Company, except that (a) if this Agreement is termi-
nated by the Representatives or the Underwriters because of
any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this
Agreement, the Company will reimburse the Underwriters for
all reasonable out-of-pocket expenses (including the fees
and disbursements of their counsel) incurred by them and
(b) no Underwriter who shall have failed or refused to
purchase the Securities agreed to be purchased by it
hereunder, without some reason sufficient hereunder to
justify its cancelation or termination of its obligations
hereunder, shall be relieved of liability to the Company or
to the other Underwriters for damages occasioned by its
default.
10. Default of Underwriters. If one or more of
------------------------
the Underwriters shall fail (other than for a reason suffi-
cient to justify the termination of this Agreement) to
purchase on the Closing Date the Securities agreed to be
purchased by such Underwriter or Underwriters, the Represen-
tatives may find one or more substitute underwriters to
purchase such Securities or make such other arrangements as
the Representatives may deem advisable or one or more of the
remaining Underwriters may agree to purchase such Securities
in such proportions as may be approved by the Representa-
tives in each case upon the terms herein set forth. If no
such arrangements have been made within 24 hours after the
Closing Date, and
(a) the aggregate principal amount of Securities
to be purchased by the defaulting Underwriters on the
Closing Date shall not exceed 10% of the total princi-
pal amount of Securities that the Underwriters are
obligated to purchase on the Closing Date, each of the
nondefaulting Underwriters shall be obligated to
purchase such Securities on the terms herein set forth
in proportion to their respective obligations hereun-
der; or
19
(b) the aggregate principal amount of Securities
to be purchased by the defaulting Underwriters on the
Closing Date shall exceed 10% of the total principal
amount of Securities that the Underwriters are
obligated to purchase on the Closing Date, the Company
shall be entitled to an additional period of 24 hours
within which to find one or more substitute
underwriters satisfactory to the Representatives to
purchase such Securities upon the terms set forth
herein.
In any such case, either the Representatives or
the Company shall have the right to postpone the Closing
Date for a period of not more than five business days in
order that the necessary changes and arrangements may be
effected by the Representatives and the Company. If the
aggregate principal amount of Securities to be purchased on
the Closing Date by such defaulting Underwriter or Under-
writers shall exceed 10% of the total principal amount of
Securities that the Underwriters are obligated to purchase
on the Closing Date, and neither the nondefaulting Under-
writers nor the Company shall make arrangements pursuant to
this Section 10 within the period stated for the purchase of
the Securities that the defaulting Underwriter or Underwrit-
ers agreed to purchase, this Agreement shall terminate
without liability on the part of any nondefaulting Under-
writer to the Company and without liability on the part of
the Company except, in both cases, as provided in Sec-
tions 6(i) and 9 hereof. The provisions of this Section 10
shall not in any way affect the liability of any defaulting
Underwriter to the Company or the nondefaulting Underwriters
arising out of such default. A substitute underwriter
hereunder shall become an Underwriter for all purposes of
this Agreement.
11. Miscellaneous. The reimbursement, indemnifi-
--------------
cation and contribution agreements contained in Sec-
tions 6(i), 7, 8 and 9 hereof and the representations,
warranties and agreements of the Company in this Agreement
shall remain in full force and effect regardless of (a) any
termination of this Agreement except insofar as such termi-
nation renders the performance of such agreements, other
than those in Sections 6(i), 7, 8 and 9, inappropriate,
(b) any investigation made by or on behalf of any
Underwriter or controlling person or by or on behalf of the
Company or any controlling person, director or officer and
(c) delivery of and payment for the Securities under this
Agreement.
20
This Agreement has been and is made solely for the
benefit of the Underwriters and the Company, and their
respective successors and assigns, and, to the extent
expressed herein, for the benefit of persons controlling any
of the Underwriters or the Company, directors and officers
of the Company and their respective successors and assigns,
and no other person, partnership, association or corporation
shall acquire or have any right under or by virtue of this
Agreement. The term "successors and assigns" shall not
include any purchaser of Securities from any Underwriter
merely because of such purchase. This Agreement may be
executed in counterparts, all of which, when taken together,
shall constitute one original.
12. Notices. All notices and communications
--------
hereunder shall be in writing and mailed or delivered, or by
telephone or telegraph if subsequently confirmed in writing,
to the Representatives at the address specified in Schedule
I hereto and to the Company at 0000 Xxxxxx xx xxx Xxxxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, attention of the agent for service
shown on the cover page of the most recent Registration
Statement.
13. Applicable Law. This Agreement shall be
---------------
governed by, and construed in accordance with, the laws of
the State of New York.
Please confirm that the foregoing correctly sets
forth the agreement between us.
Very truly yours,
XXXXX XXXXXX GROUP INC.
By______________________
Confirmed:
[name of Representative],
By________________________
21
[name of Representative],
By_________________________
Acting on behalf of themselves
and the several Underwriters
named in Schedule II annexed hereto.
SCHEDULE I
Underwriting Agreement dated
Registration Statement No[s]. [insert 33-51149 or 33-
52695/52695-0 or both, as applicable].
Representative(s):
[include address(es) for notices]
Title, Purchase Price and Description of Securities:
Title:
Principal Amount:
Purchase Price (include accrued interest or
amortization, if any):
Sinking fund provision:
Redemption provisions:
Other provisions:
Closing Date, Time and Location:
Delayed Delivery Arrangements:
Fee:
Minimum principal amount of each Contract:
Maximum aggregate principal amount of all
Contracts: $
Modification of items to be covered by the letter from
Ernst & Young delivered pursuant to Section 5(f) at the time
this Agreement is executed or statement that no such letter
is to be delivered:
Stock Exchange Listing:
SCHEDULE II
Principal
Amount
of Securities
to
Underwriters be Purchased
------------ -------------
$
Total . . . . . . . . . . . . . . . $ ____________
SCHEDULE III
Delayed Delivery Contract
-------------------------
, 199
[Insert name and address of lead Representative]
Dear Sirs:
The undersigned hereby agrees to purchase from
Xxxxx Xxxxxx Group Inc. (the "Company"), and the Company
agrees to sell to the undersigned, on ,
199 (the "Delivery Date"), $ principal amount of the
Company's (the "Securities") offered
by the Company's Prospectus dated , and
related Prospectus Supplement dated , receipt
of a copy of which is hereby acknowledged, at a purchase
price of % of the principal amount thereof, plus [accrued
interest or amortization of original issue discount], if
any, thereon from , 199 , to the date of
payment and delivery, and on the further terms and
conditions set forth in this contract.
Payment for the Securities to be purchased by the
undersigned shall be made on or before 11:00 a.m., New York
City time, on the Delivery Date to or upon the order of the
Company in New York Clearing House (next day) funds, at your
office or at such other place as shall be agreed between the
Company and the undersigned upon delivery to the undersigned
of the Securities in definitive fully registered form and in
such authorized denominations and registered in such names
as the undersigned may request by written or telegraphic
communication addressed to the Company not less than five
full business days prior to the Delivery Date. If no
request is received, the Securities will be registered in
the name of the undersigned and issued in a denomination
equal to the aggregate principal amount of Securities to be
purchased by the undersigned on the Delivery Date.
The obligation of the undersigned to take delivery
of and make payment of Securities on the Delivery Date, and
the obligation of the Company to sell and deliver Securities
on the Delivery Date, shall be subject to the conditions
2
(and neither party shall incur any liability by reason of
the failure thereof) that (1) the purchase of Securities to
be made by the undersigned, which purchase the undersigned
represents is not prohibited on the date hereof, shall not
on the Delivery Date be prohibited under the laws of the
jurisdiction to which the undersigned is subject, and
(2) the Company, on or before the Delivery Date, shall have
sold to certain underwriters (the "Underwriters") such
principal amount of the Securities as is to be sold to them
pursuant to the Underwriting Agreement referred to in the
Prospectus and Prospectus Supplement mentioned above.
Promptly after completion of such sale to the Underwriters,
the Company will mail or deliver to the undersigned at its
address set forth below notice to such effect, accompanied
by a copy of the opinion of counsel for the Company
delivered to the Underwriters in connection therewith. The
obligation of the undersigned to take delivery of and make
payment for the Securities, and the obligation of the
Company to cause the Securities to be sold and delivered,
shall not be affected by the failure of any purchaser to
take delivery of and make payment for the Securities
pursuant to other contracts similar to this contract.
This contract will inure to the benefit of and be
binding upon the parties hereto and their respective
successors, but will not be assignable by either party
hereto without the written consent of the other.
It is understood that acceptance of this contract
and other similar contracts is in the Company's sole
discretion and, without limiting the foregoing, need not be
on a first come, first served basis. If this contract is
acceptable to the Company, it is required that the Company
sign the form of acceptance below and mail or deliver one of
the counterparts hereof to the undersigned at its address
set forth below. This will become a binding contract
between the Company and the undersigned, as of the date
first above written, when such counterpart is so mailed or
delivered.
3
This agreement shall be governed by and construed
in accordance with the laws of the State of New York.
Very truly yours,
______________________________
(Name of Purchaser)
By
____________________________
(Signature and Title
of Officer)
____________________________
(Address)
Accepted:
XXXXX XXXXXX GROUP INC.
By ____________________________
(Authorized Signature)
EXHIBIT A
At the Closing Date, 1/ Ernst & Young shall
-
furnish to the Representatives a letter or letters (which
may refer to letters previously delivered to one or more of
the Representatives), dated as of the Closing Date, in form
and substance satisfactory to the Representatives, confirm-
ing that they are independent certified public accountants
within the meaning of the Securities Act and the Exchange
Act and the respective applicable published rules and
regulations thereunder, that the response to Item 10 of the
Registration Statements is correct insofar as it relates to
them and stating in effect that:
(a) in their opinion the consolidated financial
statements and schedules examined by them and incorpor-
ated by reference in the Registration Statements and
the Final Prospectus and reported on by them comply in
form in all material respects with the applicable
accounting requirements of the Securities Act and the
Exchange Act and the related published rules and
regulations;
(b) on the basis of a reading of the "Selected
Financial Data", if any, included or incorporated in
the Registration Statements and the Final Prospectus
and of the latest unaudited consolidated condensed
financial statements made available by the Company and
its consolidated subsidiaries; carrying out certain
specified procedures (but not an examination in
accordance with generally accepted auditing standards)
which would not necessarily reveal matters of
significance with respect to the comments set forth in
such letter; a reading of the minutes of the meetings
of the stockholders, directors and audit and executive
committees of the Company; and inquiries of certain
officials of the Company who have responsibility for
financial and accounting matters of the Company and its
subsidiaries as to transactions and events subsequent
to the date of the most recent financial statements
included or incorporated in the Registration Statements
____________________
1/ All capitalized terms used herein shall have the
-
meanings ascribed to them in the Underwriting Agreement of
which this Exhibit A is a part.
2
and the Final Prospectus, nothing came to their
attention which caused them to believe that:
(1) the amounts in the unaudited "Summary
Financial Information", if any, included in the
Final Prospectus, and the amounts in the "Selected
Financial Data", if any, included or incorporated
in the Registration Statements and the Final
Prospectus, do not agree with the corresponding
amounts in the audited financial statements from
which such amounts were derived;
(2) any unaudited financial statements
included or incorporated in the Registration
Statements and the Final Prospectus do not comply
as to form in all material respects with applic-
able accounting requirements and with the pub-
lished rules and regulations of the Commission
with respect to financial statements included or
incorporated in quarterly reports on Form 10-Q
under the Exchange Act or any material
modifications should be made to such unaudited
financial statements for them to be presented in
conformity with such generally accepted accounting
principles;
(3) with respect to the period subsequent to
the date of the most recent financial statements
included or incorporated in the Registration
Statement and the Final Prospectus, there were any
changes, at a specified date not more than five
business days prior to the date of the letter, in
the consolidated long-term debt or non-convertible
redeemable preferred stock of the Company and its
subsidiaries or capital stock of the Company
(excluding retained earnings and foreign currency
translation adjustment) as compared with the
amounts shown on the most recent consolidated
balance sheet included or incorporated in the
Registration Statements and the Final Prospectus,
except in all instances for changes disclosed in
such letter or letters; or
(4) if any unaudited pro forma financial
statements are included or incorporated in the
Registration Statement and the Final Prospectus,
on the basis of a reading of the unaudited pro
forma financial statements, carrying out certain
3
specified procedures, inquiries of certain
officials of the Company and the acquired company
who have responsibility for financial and
accounting matters, and proving the arithmetic
accuracy of the application of the pro forma
adjustments to the historical amounts in the pro
forma financial statements, nothing came to their
attention which caused them to believe that the
pro forma financial statements do not comply in
form in all material respects with the applicable
accounting requirements of Rule 11-02 of
Regulation S-X or that the pro forma adjustments
have not been properly applied to the historical
amounts in the compilation of such statements; and
(c) they have performed certain other specified
procedures as a result of which they determined that
certain information of an accounting, financial or
statistical nature (which is limited to accounting,
financial or statistical information derived from the
general accounting records of the Company) set forth in
the Registration Statements, and the Final Prospectus,
as amended or supplemented, and in Exhibit 12 to the
Registration Statements, including specified informa-
tion, if any, included or incorporated from the Compa-
ny's Annual Report on Form 10-K incorporated therein or
specified information, if any, included or incorporated
from any of the Company's Quarterly Reports on Form
10-Q incorporated therein, agrees with the accounting
records of the Company and its subsidiaries, excluding
any questions of legal interpretation.
EXHIBIT B
The Company 1/ shall furnish to the
-
Representatives the opinion of the General Counsel of the
Company, dated the Closing Date, to the effect that:
(i) each of the Company and PaineWebber Incorpo-
rated, Xxxxxxxx Xxxxxxxx Asset Management Inc. and
PaineWebber Real Estate Securities Inc., wholly owned
subsidiaries (individually a "Subsidiary" and
collectively the "Subsidiaries"), has been duly
incorporated and is validly existing as a corporation
in good standing under the laws of the jurisdiction in
which it is chartered or organized, with full corporate
power and authority to own its properties and conduct
its business as described in the Final Prospectus, and
is duly qualified to do business as a foreign
corporation and is in good standing under the laws of
each jurisdiction in which the failure to qualify and
be in good standing would materially and adversely
affect the business or condition of the Company and its
consolidated subsidiaries, considered as a whole;
(ii) all the outstanding shares of capital stock
of each Subsidiary have been duly and validly
authorized and issued and are fully paid and
nonassessable, and are owned by the Company either
directly or through wholly owned subsidiaries free and
clear of any perfected security interest and, to the
knowledge of such counsel, after due inquiry of
appropriate officers of the Company, any other security
interests, claims, liens or encumbrances, except for
restrictions on sales of capital stock contained in
debt instruments;
(iii) the Securities conform to the description
thereof contained in the Final Prospectus; and, if the
Securities are to be listed on the New York Stock
Exchange, authorization thereof has been given, subject
to official notice of issuance and evidence of satis-
factory distribution, or the Company has filed a
preliminary listing application and all required
supporting documents with respect to the Securities
with the New York Stock Exchange and such counsel has
no reason to believe that the Securities will not be
________________
1/ All capitalized terms used and not otherwise defined
-
herein shall have the meanings ascribed to them in the
Underwriting Agreement of which this Exhibit B is a part.
2
authorized for listing, subject to official notice of
issuance and evidence of satisfactory distribution;
(iv) the Indenture has been duly authorized,
executed and delivered by the Company, has been duly
qualified under the Trust Indenture Act and constitutes
a legal, valid and binding instrument enforceable
against the Company in accordance with its terms
(subject to applicable bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and
other similar laws affecting creditors' rights
generally from time to time in effect, and subject, as
to enforceability, to general principles of equity,
regardless of whether such enforceability is considered
in a proceeding in equity or at law); and the
Securities have been duly authorized and, when executed
and authenticated in accordance with the provisions of
the Indenture and delivered to and paid for by the
Underwriters pursuant to the Underwriting Agreement of
which this Exhibit B is a part (the "Underwriting
Agreement"), in the case of the Underwriters'
Securities, or by the purchasers thereof pursuant to
Delayed Delivery Contracts, in the case of any Contract
Securities, will constitute legal, valid and binding
obligations of the Company entitled to the benefits of
the Indenture enforceable in accordance with their
terms (subject to applicable bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium or
other similar laws affecting creditors' rights
generally from time to time in effect, and subject, as
to enforceability, to general principles of equity,
regardless of whether such enforceability is considered
in a proceeding in equity or at law);
(v) to the best knowledge of such counsel, there
is no pending or threatened action, suit or proceeding
before any court or governmental agency, authority or
body or any arbitrator involving the Company or any of
its subsidiaries, of a character required to be dis-
closed in the Registration Statements which are not
adequately disclosed in the Final Prospectus; there is
no franchise, contract or other document of a character
required to be described in the Registration Statements
or Final Prospectus, or to be filed as an exhibit,
which is not described or filed as required; and the
statements included or incorporated in the Final
Prospectus describing any legal proceedings or material
3
contracts or agreements relating to the Company fairly
summarize such matters;
(vi) the Registration Statements and any
amendments thereto relating to the Securities have
become effective under the Securities Act; any required
filing of the Basic Prospectus, any Interim Prospectus
and the Final Prospectus, and any supplements thereto,
pursuant to Rule 424(b) has been made in the manner and
within the time period required by Rule 424(b); to the
best knowledge of such counsel, no stop order
suspending the effectiveness of the Registration
Statements, as amended, has been issued, no proceedings
for that purpose have been instituted or are pending or
contemplated under the Securities Act;
(vii) the Underwriting Agreement and any Delayed
Delivery Contracts have been duly authorized, executed
and delivered by the Company;
(viii) the information required to be set forth in
each of the Registration Statements in answer to
Item 10 (insofar as it relates to such counsel) of
Form S-3, to the best knowledge of such counsel, is
accurately set forth in such Registration Statement in
all material espects or no response is required with
respect to such Item; and the authorized equity
capitalization of the Company is as described in the
documents incorporated by reference in the Final
Prospectus;
(ix) no consent, approval, authorization or order
of any court or governmental agency or body is required
for the consummation by the Company of the transactions
contemplated in the Underwriting Agreement or in any
Delayed Delivery Contract, except such as have been
obtained under the Securities Act and the Trust Inden-
ture Act and such as may be required under the "blue
sky" laws of any jurisdiction in connection with the
purchase and distribution of the Securities by the
Underwriters and such other approvals (specified in
such opinion) as have been obtained;
(x) none of the issue and sale of the Securities,
the consummation by the Company of any other of the
transactions contemplated in the Underwriting Agreement
or in any Delayed Delivery Contract or the fulfillment
of the terms of the Underwriting Agreement or of any
4
Delayed Delivery Contract will conflict with,
result in a breach of, or constitute a default under the
Restated Certificate of Incorporation, as amended, or
By-laws of the Company or the terms of any indenture or other
agreement or instrument known to such counsel and to
which the Company or any of its subsidiaries is a party
or bound, or any order or regulation known to such
counsel to be applicable to the Company or any of its
Subsidiaries of any court, regulatory body, admin-
istrative agency, governmental body or arbitrator
having jurisdiction over the Company or any of its
Subsidiaries; and
(xi) to the knowledge of such counsel, no holder
of securities of the Company has rights to the regis-
tration of such securities under the Registration
Statement.
In rendering such opinion, such counsel may rely
as to matters involving the application of laws of any
jurisdiction other than the States of Delaware and New York
or the United States, to the extent deemed proper and
specified in such opinion, upon the opinion of other counsel
of good standing believed to be reliable and who are satis-
factory to counsel for the Underwriters.
(B) The Company shall furnish to the Underwriters
a letter from the General Counsel of the Company, dated the
Closing Date to the effect that such counsel has no reason
to believe that: (i) either Registration Statement and the
Final Prospectus (except the Statements of Eligibility
(Form T-1) included as exhibits to the Registration
Statements, as to which he need not express any view) were
not appropriately responsive in all material respects to the
requirements of the Securities Act and the Trust Indenture
Act and the respective applicable rules and regulations of
the Securities and Exchange Commission thereunder and
(ii) the Registration Statements, at the respective times
they became effective, contained an untrue statement of a
material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements
therein not misleading, or that the Prospectus, at the date
of the letter, includes an untrue statement of a material
fact or omits 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.
