Exhibit 1(a)
Terms Agreement
(Attaching Underwriting Agreement Basic Provisions)
Dated as of
______________, 199__
between
XXXXXX & XXXXX CORPORATION
and
[Underwriters]
Debt Securities
XXXXXX & XXXXX CORPORATION
[ ]% [Notes] [Debentures] due [ ]
Terms Agreement
________ __, 199_
Xxxxxx & Xxxxx Corporation
0000 X&X Xxxxxxxxx
Xxxxxxx, Xxxxxxxxx 00000
Ladies and Gentlemen:
We understand that Xxxxxx & Xxxxx Corporation (the "Company")
proposes to issue and sell $_____________ aggregate principal amount of its
[ ]% [Notes] [Debentures] due ____ (the "Offered Securities"). Subject to
the terms and conditions set forth or incorporated by reference herein, the
underwriters named below (the "Underwriters") offer to purchase, severally and
not jointly, the principal amount of Offered Securities set forth below
opposite their respective names at the purchase price set forth below.
Principal Amount Underwriting Proceeds
of Discounts and to the
Underwriters Offered Securities Commissions Company
------------------- -------------------- --------------- ----------
________________... $_____________ % $_____
________________... $_____________ % $_____
Total........ $_____________ $_________ $_____
The Offered Securities shall have the following terms:
Title of Offered Securities: [ ]% [Notes] [Debentures] due _______
Principal amount to be issued: $___________________
Public offering price: [100]%, plus accrued interest from ___________, ______
Purchase price: [ ]% plus accrued interest from ______ (payable in same day
funds)
Current ratings: Xxxxx'x Investors Service, Inc. [ ];
Standard & Poor's Corporation [ ]
Interest Rate: [ ]%
Interest Payable: ____ and _____, commencing _____, ____
Closing date, time and
location: ____________, ______, 10:00 A.M., New York City time
Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Location for checking
Offered Securities: New York, New York
Wire Transfer of Funds in Settlement:
Listing requirement: [None]
Date of maturity:
Redemption or repayment provisions:
Sinking fund requirements:
Number of Option Securities, if any, that may be
purchased by the Underwriters:
Other terms and conditions:
The Offered Securities will be issued in fully registered,
book-entry only form through the facilities of The Depository
Trust Company, and each issue of the Offered Securities shall be
represented by a separate global security.
Exceptions, if any, to Section 3(i) of the
Underwriting Agreement Basic Provisions:
All provisions contained in the document attached as Annex A
hereto entitled "Xxxxxx & Xxxxx Corporation -- Debt Securities -- Underwriting
Agreement Basic Provisions" (the "Basic Provisions") are hereby incorporated by
reference in their entirety herein and shall be deemed to be a part of this
Terms Agreement to the same extent as if such provisions had been set forth in
full herein. For purposes of the Basic Provisions, references to the
"Representative" shall be deemed to refer ______________________. Terms
defined in the Basic Provisions are used herein as therein defined.
Please accept this offer by signing a copy of this Terms
Agreement in the space set forth below and returning the signed copy to us.
Very truly yours,
[UNDERWRITERS]
By: ____________________________
Name:
Title:
Acting on behalf of themselves and the
other named Underwriters
Accepted:
XXXXXX & XXXXX CORPORATION
By: _____________________________
Name:
Title:
August __, 1998
Annex A
---------------
XXXXXX & XXXXX CORPORATION
(a Tennessee Corporation)
Debt Securities
UNDERWRITING AGREEMENT BASIC PROVISIONS
---------------------------------------
Xxxxxx & Xxxxx Corporation (the "Company"), proposes to issue
and sell up to $600 million aggregate principal amount of its debt securities
(the "Debt Securities") from time to time on terms to be determined at the
time of sale (the "Offered Securities"). The Debt Securities will be issued
under an indenture dated as of August 1, 1998 (the "Indenture") between the
Company and The Bank of New York, acting not in its individual capacity, but
solely as trustee (the "Trustee"). Each issue of Debt Securities may vary, as
applicable, as to aggregate principal amount, maturity date, currency,
interest rate or formula and timing of payments thereof, any redemption or
sinking fund requirements and any other variable terms as the Indenture
contemplates and as may be set forth in the Debt Securities issued from time
to time.
This is to confirm the arrangements with respect to the
purchase of Offered Securities from the Company by the Representative and the
several Underwriters listed in the applicable terms agreement entered into
between the Representative and the Company of which this Underwriting
Agreement is Annex A thereto (the "Terms Agreement"). With respect to any
particular Terms Agreement, the Terms Agreement, together with the provisions
hereof incorporated therein by reference, is herein referred to as the
"Agreement". Terms defined in the Terms Agreement are used herein as therein
defined.
The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (No.
333-________) for the registration of certain debt securities and other
securities, including the Offered Securities, under the Securities Act of
1933, as amended (the "1933 Act"), and the offering thereof from time to time
in accordance with Rule 415 of the rules and regulations of the Commission
under the 1933 Act (the "1933 Act Regulations") and has filed such amendments
thereto as may have been required to the date of the Term Agreement. Such
registration statement, as amended, has been declared effective by the
Commission and the Indenture has been qualified under the Trust Indenture Act
of 1939, as amended (the "1939 Act").
The Company has, pursuant to Rule 424 under the 1933 Act, filed
with, or transmitted for filing to, or shall within the required period of
time hereafter file with or transmit for filing to, the Commission a
prospectus supplement (the "Prospectus Supplement") specifically relating to
the Offered Securities, together with a revised and restated prospectus
relating to debt securities covered by the above-referenced registration
statement.
The term "Registration Statement" refers to such registration
statement in the form in which it became effective, including the exhibits
thereto and the documents incorporated by reference therein, as amended to the
date hereof. The term "Basic Prospectus" means the above-referenced revised
and restated prospectus relating to debt securities. The term "Prospectus"
means the Basic Prospectus supplemented by the Prospectus Supplement. The
term "Preliminary Prospectus" means a preliminary prospectus supplement
specifically relating to the Offered Securities together with the Basic
Prospectus. As used herein, the terms "Basic Prospectus," "Prospectus" and
"Preliminary Prospectus" shall include in each case the documents, if any,
incorporated by reference therein. The terms "supplement" and "amendment" or
"amend" as used herein shall include all documents deemed to be incorporated
by reference in the Prospectus that have been filed subsequent to the date of
the Basic Prospectus by the Company with the Commission pursuant to the
Securities Exchange Act of 1934, as amended (the "1934 Act").
If the Company has filed an abbreviated registration statement
to register additional shares of Debt Securities pursuant to Rule 462(b) under
the 1933 Act, then any reference herein to the term "Registration Statement"
shall include such Rule 462(b) registration statement.
Capitalized terms used but not otherwise defined in this
Agreement shall have the meanings specified in or pursuant to the Indenture.
Section 1. Representations and Warranties of the Company.
(a) The Company represents and warrants to the Representative and
to each Underwriter named in a Terms Agreement, as of the date thereof (the
"Representation Date"), as follows:
(i) Due Incorporation and Qualification. The
Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of
Tennessee, has the corporate power and authority to own, lease
and operate its properties and to conduct its business as
described in the Prospectus; and is duly qualified to do business
and is in good standing in each jurisdiction in which such
qualification is required, except where the failure to so qualify
would not have a material adverse effect on the condition,
financial or otherwise, or the earnings, business affairs or
business prospects of the Company and its subsidiaries considered
as one enterprise.
(ii) Subsidiaries. Each subsidiary of the Company
which is a significant subsidiary as defined in Rule 405 of
Regulation C of the 1933 Act Regulations (each a "Significant
Subsidiary") has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has corporate power and
authority to own, lease and operate its properties and to conduct
its business as described in the Prospectus and is duly qualified
as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is
required, except where the failure to so qualify would not have a
material adverse effect on the condition, financial or otherwise,
or the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise; and
all of the issued and outstanding capital stock of each
Significant Subsidiary has been duly authorized and validly
issued, is fully paid and non-assessable and, except for
directors' qualifying shares (except as otherwise stated in the
Registration Statement), is owned by the Company, directly or
through subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity.
(iii) Registration Statement and Prospectus. The
Registration Statement and the Prospectus, at the time the
Registration Statement became effective and as of the applicable
Representation Date, complied in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations and the
1939 Act and the rules and regulations of the Commission
promulgated thereunder. The Registration Statement, at the time
it became effective and as of the applicable Representation Date,
did not and will not, 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 not
misleading. The Prospectus, at the time the Registration
Statement became effective and as of the applicable
Representation Date, did not, and will not, contain an 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 the representations and warranties in
this subsection shall not apply to statements in or omissions
from the Registration Statement or Prospectus made in reliance
upon and in conformity with information furnished to the Company
in writing by an Underwriter expressly for use in the
Registration Statement or Prospectus or to those parts of the
Registration Statement which constitutes a Statement of
Eligibility and Qualification of Trustee (Form T-1) under the
1939 Act.
No stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
initiated or threatened by the Commission.
(iv) Incorporated Documents. The documents
incorporated by reference in the Prospectus, at the time they
were or hereafter are filed with the Commission, complied and
will comply in all material respects with the requirements of the
1934 Act and the rules and regulations promulgated thereunder
(the "1934 Act Regulations"), and, when read together and with
the other information in the Prospectus, did not and will not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order
to make the statements therein, in the light of the circumstances
under which they were or are made, not misleading.
(v) Accountants. The accountants who certified the
financial statements included or incorporated by reference in the
Prospectus are independent public accountants as required by the
1933 Act and the 1933 Act Regulations.
(vi) Financial Statements. The financial statements
of the Company included or incorporated by reference in the
Prospectus and the Registration Statement present fairly the
financial position of the Company as of the dates thereof and the
results of operations, changes in common stockholders' investment
and cash flows of the Company, for the respective periods covered
thereby, all in conformity with generally accepted accounting
principles applied on a consistent basis throughout the entire
period involved; and the financial schedules included or
incorporated by reference in the Registration Statement meet the
requirements of the 1933 Act Regulations or the 1934 Act
Regulations, as applicable.
(vii) Material Changes or Material Transactions.
Except as stated in the Prospectus, subsequent to the respective
dates as of which information is given in the Registration
Statement and the Prospectus, the Company has not incurred any
liabilities or obligations, direct or contingent, or entered into
any transactions which are material to the Company, and there has
not been any material adverse change in the capital stock or
short-term debt, or any material increase in long-term debt of
the Company, or any material adverse change, or any development
involving a prospective material adverse change, in the condition
(financial or other), business, prospects, net worth or results
of operations of the Company and its subsidiaries considered as
one entity.
(viii) No Defaults; Regulatory Approvals. Neither the
Company nor any of its subsidiaries is in violation of its
charter or in default in the performance or observance of any
material obligation, agreement, covenant or condition contained
in any contract, indenture, mortgage, loan agreement, note, lease
or other instrument to which it is a party or by which it or any
of them or their properties may be bound.
The execution and delivery of this Agreement and the Indenture
and the consummation of the transactions contemplated herein and therein have
been duly authorized by all necessary corporate action and executed by the
Company and will not conflict with or constitute a breach of, or default under,
or result in the creation or imposition of any lien, charge or encumbrance upon
any property or assets of the Company or any of its subsidiaries pursuant to,
any contract, indenture, mortgage, loan agreement, note, lease or other
instrument to which the Company or any such subsidiary is a party or by which
it or any of them may be bound or to which any of the property or assets of
the Company or any such subsidiary is subject, which conflict, breach or
default would have, individually or in the aggregate with any other such
instances, a material adverse effect on the condition (financial or other),
business, prospects, net worth or results of operations of the Company and its
subsidiaries considered as one entity, nor will such action result in any
material violation of the provisions of the charter or by-laws of the Company
or any law, administrative regulation or administrative or court order or
decree currently in effect or in effect at the time of execution and delivery
of this Agreement and the Indenture and applicable to the Company or any of its
subsidiaries.
No consent, approval, authorization, order or decree of any
court or governmental agency or body is required for the consummation by the
Company of the transactions contemplated by this Agreement or the Indenture,
except such as may be required under the 1933 Act, the 1939 Act and the 1933
Act Regulations or state securities or Blue Sky laws.
(ix) Legal Proceedings; Contracts. Except for matters
described in the Prospectus (as to which the Company can express
no opinion at this time concerning the Company's liability (if
any) or the effect of any adverse determination upon the
business, condition (financial or otherwise) or operations of the
Company), there is no pending, or to the best knowledge of any
financial officer of the Company, threatened action or proceeding
before any court or administrative agency which individually (or
in the aggregate in the case of any group of related lawsuits) is
expected to have a material adverse effect on the financial
condition of the Company or the ability of the Company and its
subsidiaries considered as one entity to perform its obligations
under the Indenture.
(x) Compliance with Laws. The Company's business and
operations comply in all material respects with all laws and
regulations applicable thereto and there are no known, proposed
or threatened changes in any laws or regulations which would have
a material adverse effect on the Company or the manner in which
it conducts its business. The Company possesses all valid and
effective certificates, licenses and permits required to conduct
its business as now conducted, except for instances which
individually or in the aggregate do not, or will not, have a
material adverse effect on the condition (financial or other),
business, prospects or results of operations of the Company and
its subsidiaries considered as one entity.
(xi) Enforceability. The Indenture has been duly
authorized by the Company, will be substantially in the form
heretofore supplied to the Representative and each Underwriter
and, when duly executed and delivered by the Company and the
other parties thereto, will constitute a valid and binding
obligation of the Company, enforceable against the Company in
accordance with its terms.
(xii) Validity of the Offered Securities. When
executed, issued, authenticated and delivered pursuant to the
provisions of the Indenture and sold and paid for as provided in
this Agreement, each thereof Offered Securities will constitute
valid and legally binding obligations of the Company enforceable
in accordance with their terms; and the Holders of such Offered
Securities will be entitled to the benefits provided by such
Indenture.
The representations and warranties made by the Company as to the
enforceability of the Indenture and the Offered Securities, set forth in
subparagraphs (xi) and (xii) above are limited by bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or affecting
enforcement of creditors' rights or by general equity principles, and the
enforceability of the Indenture is also limited by applicable laws which may
affect the remedies provided therein but which do not affect the validity of
such Indenture or make such remedies inadequate for the practical realization
of the benefits intended to be provided thereby.
(b) Additional Certifications. Any certificate signed by any
officer of the Company and delivered to the Representative and counsel for the
Underwriters in connection with an offering of the Offered Securities shall be
deemed a representation and warranty by the Company to each Underwriter
participating in such offering as to the matters covered thereby on the date of
such certificate unless subsequently amended or supplemented subsequent
thereto.
Section 2. Purchase and Sale. (a) The obligations of the
Underwriters to purchase, and the Company to sell, the Offered Securities
shall be evidenced by the Term Agreement. The Terms Agreement specifies the
principal among of the Offered Securities, the names of the Underwriters
participating in the offering and the principal amount of Offered Securities
which each Underwriter severally has agreed to purchase, the purchase price
to be paid by the Underwriters for the Offered Securities, the public offering
price and any terms of the Offered Securities not already specified (including,
but not limited to, designations, denominations, current ratings, interest
rates or formulas and payment dates, maturity dates, listing requirements,
redemption and repayment provisions and sinking fund requirements).
The several commitments of the underwriters to purchase Offered
Securities pursuant to the Terms Agreement shall be deemed to have been made
on the basis of the representations and warranties herein contained and shall
be subject to the terms and conditions herein set forth.]
(b) Subject to the terms and conditions herein set forth, the
Company may grant, if so provided in the Terms Agreement relating thereto, an
option to the Underwriters, severally and not jointly, to purchase additional
Debt Securities to cover over-allotments, if any (the "Option Securities").
If the Terms Agreement so provides, the Underwriters may purchase up to the
amount of Option Securities set forth therein at the same price as is
applicable to the Offered Securities. As used herein, the term "Offered
Securities" shall include Option Securities. Such option, if granted, will
expire 30 days after the date of this Agreement, and may be exercised in whole
or in part from time to time only for the purpose of covering over-allotments
which may be made in connection with the offering and distribution of the
Offered Securities upon notice by the Representative to the Company setting
forth the number of Option Securities as to which the several Underwriters are
then exercising the option and the time and date of payment and delivery for
such Option Securities.
Any such time and date of delivery shall be determined by the
Representative, but shall not be later than four business days and not be
earlier that two business days after the exercise of said option, nor in any
event prior to Closing Time, unless otherwise agreed upon by the
Representative and the Company.
If the option is exercised as to all or any portion of the
Option Securities, each Underwriter, acting severally and not jointly, will
purchase that proportion of the total number of Option Securities then being
purchased which the number of Offered Securities each such Underwriter has
agreed to purchase as set forth in the Terms Agreement bears to the total
number of Offered Securities, subject to such adjustments as the
Representative shall make to eliminate any sales or purchases of fractional
Debt Securities.
(c) Payment of the purchase price for any Offered Securities to be
purchased by the Underwriters shall be made to the Company at either the
Company's offices in Memphis, Tennessee or the office of Xxxxx Xxxx &
Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other
place as shall be agreed upon by the Representative and the Company, at 10:00
A.M., New York City time, on the third business day (unless postponed in
accordance with the provisions of Section 10) following the date of the Terms
Agreement or at such other date, time or location specified in the Terms
Agreement, or as otherwise shall be agreed upon by the Representative and the
Company (such time and date being referred to as a "Closing Time").
Delivery of the Offered Securities shall be made for the
account of the Underwriters as specified in the Terms Agreement against
payment by such Underwriters of the purchase price thereof to the Company (or
such other person as the Company may direct) by wire transfer of immediately
available funds. Unless otherwise indicated in the Terms Agreement, such
Offered Securities shall be registered in the name of Cede & Co., as nominee
for The Depository Trust Company, and in such denominations, as the
Representative may request in writing at least two business days prior to the
Closing Time. Such Offered Securities will be made available for examination
and packaging by the Representative in New York, New York, on or before the
first business day prior to the Closing Time or at such other time and place
specified in the Terms Agreement.
Section 3. Covenants of the Company.
The Company covenants with the Representative and with each
other Underwriter as follows:
(a) Prospectus Supplement. Immediately following the execution of
this Agreement, the Company will prepare a Prospectus Supplement in connection
with the offering of the Offered Securities. The Company will promptly
transmit copies of the Prospectus Supplement to the Commission for filing
pursuant to Rule 424 of the 1933 Act Regulations.
(b) Notice of Certain Events. The Company will notify the
Representative promptly (i) of the effectiveness of any amendment to the
Registration Statement, (ii) of the transmittal to the Commission for filing of
any supplement to the Prospectus or any document to be filed pursuant to the
1934 Act which will be incorporated by reference in the Prospectus, (iii) of
the receipt of any comments from the Commission with respect to the
Registration Statement, the Prospectus or the Prospectus Supplement relating
in any way to the offer and sale of the Offered Securities, (iv) of any
request by the Commission for any amendment to the Registration Statement or
any amendment or supplement to the Prospectus or for additional information,
and (v) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the initiation of any
proceedings for that purpose.
(c) Notice of Certain Proposed Filings. The Company will give the
Representative notice of its intention to file or prepare any amendment to the
Registration Statement or any amendment or supplement to the Prospectus, and
will furnish the Representative with copies of any such amendment or
supplement or other documents proposed to be filed or prepared a reasonable
time in advance of such proposed filing or preparation, as the case may be.
(d) Copies of the Registration Statement and the Prospectus. The
Company will deliver to the Representative as many signed and conformed copies
of the Registration Statement (as originally filed) and of each amendment
thereto (including exhibits filed therewith or incorporated by reference
therein and documents incorporated by reference in the Prospectus) as the
Representative may reasonably request. The Company will furnish to the
Representative as many copies of the Prospectus (as amended or supplemented)
as the Representative shall reasonably request so long as the Underwriters are
required to deliver a Prospectus in connection with sales or solicitations of
offers to purchase the Offered Securities.
(e) Revisions of Prospectus -- Material Changes. If at any time
when the Prospectus is required by the 1933 Act to be delivered in connection
with sales of the Offered Securities any event shall occur or condition exist
as a result of which it is necessary, in the reasonable opinion of counsel for
the Company, to further amend or supplement the Prospectus in order that the
Prospectus will not include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein not
misleading in the light of the circumstances existing at the time it is
delivered to a purchaser, or if it shall be necessary, in the reasonable
opinion of such counsel, at any such time to amend or supplement the
Registration Statement or the Prospectus in order to comply with the
requirements of the 1933 Act or the 1933 Act Regulations the Company will
promptly prepare and file with the Commission such amendment or supplement,
whether by filing documents pursuant to the 1934 Act, the 1933 Act or
otherwise, as may be necessary to correct such untrue statement or omission or
to make the Registration Statement and Prospectus comply with such
requirements.
(f) Earnings Statements. The Company will make generally available
to its security holders as soon as practicable after the close of the period
covered thereby, an earnings statement (in form complying with the provisions
of Rule 158 under the 0000 Xxx) covering each twelve-month period beginning,
in each case, not later than the first day of the Company's fiscal quarter
next following the "effective date" (as defined in such Rule 158) of the
Registration Statement with respect to each sale of Offered Securities.
(g) Blue Sky Qualifications. The Company will endeavor, in
cooperation with the Underwriters, to qualify the Offered Securities for
offering and sale under the applicable securities laws of such states and other
jurisdictions of the United States as the Underwriters may designate, and will
maintain such qualifications in effect for so long as may be required for the
distribution of the Offered Securities; provided, however, that the Company
shall not be obligated to file any general consent to service of process or to
qualify as a foreign corporation or to subject itself to taxation as doing
business in any jurisdiction in which it is not otherwise required to be so
qualified. The Company will file such statements and reports as may be
required by the laws of each jurisdiction in which the Offered Securities have
been qualified as provided above.
(h) 1934 Act Filings. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act, will file promptly
all documents required to be filed with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the 1934 Act.
(i) Stand-Off Agreement. The Company will not, between the date of
the Terms Agreement and the Closing Time, without the consent of the
Representative, offer or sell, or enter into any agreement to sell, any debt
securities of the Company pursuant to a public offering of securities
registered under the 1933 Act (other than the Offered Securities which are to
be sold pursuant hereto and commercial paper in the ordinary course of
business).
Section 4. Payment of Expenses.
The Company will pay all expenses incident to the performance
of its obligations under this Agreement, including:
(i) the preparation and filing of the
Registration Statement and all amendments thereto, the
Preliminary Prospectus, if any, and the Prospectus and any
amendments or supplements thereto;
(ii) the filing of this Agreement;
(iii) the preparation, issuance and delivery of the
Offered Securities;
(iv) the reasonable fees and disbursements of the
Company's accountants and counsel, of the Trustee and its
counsel, and of any registrar, paying agent and authenticating
agent;
(v) the qualification of the Offered Securities
under securities laws in accordance with the provisions of
Section 3(g), including filing fees and the reasonable fees and
disbursements of counsel to the Underwriters in connection
therewith and in connection with the preparation of any Blue Sky
Survey;
(vi) the printing and delivery to the
Underwriters in quantities as hereinabove stated of copies of the
Registration Statement and any amendments thereto, and of the
Prospectus and any amendments or supplements thereto, and the
delivery by the Underwriters of the Prospectus and any amendments
or supplements thereto in connection with solicitations or
confirmations of sales of the Offered Securities;
(vii) the preparation and delivery to the
Underwriters of copies of the Indenture; and
(viii) any fees charged by rating agencies for the
rating of the Offered Securities.
If this Agreement is terminated by the Representative in
accordance with the provisions of Section 5 or clause (i) of Section 9 hereof,
the Company shall reimburse upon demand the Underwriters for all of their
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriters that shall have been incurred by the Underwriters
in connection with the proposed purchase and sale of the Offered Securities.
Section 5. Conditions of Underwriters' Obligations.
The several obligations of the Underwriters to purchase the
Offered Securities pursuant to the Terms Agreement will be subject at all
times to the accuracy of the representations and warranties on the part of the
Company herein, to the accuracy of the statements of the Company's officers
made in any certificate furnished pursuant to the provisions hereof, to the
performance and observance by the Company of all covenants and agreements
contained herein or in the Terms Agreement, on its part to be performed and
observed and to the following additional conditions precedent:
(a) Stop Order; Ratings Change; etc. At the Closing Time, (i) no
stop order suspending the effectiveness of the Registration Statement shall
have been issued under the 1933 Act or proceedings therefor initiated or
threatened by the Commission, (ii) the rating assigned as of the date of this
Agreement by any "nationally recognized statistical rating organization," as
such term is defined for purposes of Rule 436(g) under the 1933 Act
Regulations, to any debt securities of the Company (including for purposes of
this Section 5(a)(ii) any rating indicated by the Company as of the date of
this Agreement as the rating orally confirmed to the Company by any such
rating organization as the rating to be assigned to the Offered Securities)
shall not have been lowered since the execution of this Agreement nor shall
any such rating organization have publicly announced that it has placed any
debt securities of the Company on what is commonly termed a "watch list" for
possible downgrading, and (iii) there shall not have come to the attention of
the Representative any facts that would cause the Representative to believe
that the Prospectus, including the Prospectus Supplement, at the time it was
required to be delivered to a purchaser of the Offered Securities, contained
an untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances existing at such time, not misleading.
(b) Legal Opinions. At the Closing Time, the Representative shall
have received the following documents:
(1) Opinion of Company Counsel. The opinion of the Vice
President-General Counsel and Secretary of the Company or the Assistant
Secretary and Corporate Counsel of the Company, dated as of such date, in form
and substance reasonably satisfactory to the Representative, to the effect as
set forth in Exhibit A.
(2) Opinion of Counsel to the Underwriters. The opinion of
__________________________________, counsel to the Underwriters, with respect
to such matters as the Representative may reasonably request.
(c) Officer Certificate. At the Closing Time, there shall not have
been, since the respective dates as of which information is given in the
Registration Statement and the Prospectus, any material adverse change in the
condition (financial or otherwise) of the Company, or in the earnings or
business affairs of the Company; and the Representative shall have received a
certificate of any Vice President of the Company, dated as of the Closing
Time, to the effect (i) that there has been no such material adverse change,
(ii) that the other representations and warranties of the Company contained in
Section 1 are true and correct in all material respects with the same force and
effect as though expressly made at and as of the date of such certificate,
except to the extent that such representations and warranties expressly relate
to an earlier date or later date (in which case such representations and
warranties are true and correct on and as of such earlier date or will be true
and correct on and as of such later date, as the case may be), (iii) that the
Company has made or caused to be made any required filing of the Prospectus
pursuant to Rule 424(b) in the manner and within the time period required by
Rule 424(b), and (iv) that the Company has complied with all material
agreements and satisfied all material conditions on its part to be performed
or satisfied at or prior to the date of such certificate. The officer signing
and delivering this certificate may rely upon the best of his or her knowledge
as to proceedings threatened.
(d) Comfort Letter. At the time of the execution of the Terms
Agreement and at the Closing Time, the Representative shall have received a
letter from KPMG Peat Marwick LLP or their successors as the Company's
independent accountants (the "Independent Accountants"), dated as of the date
of the Terms Agreement and of the Closing Time, as the case may be, in form
and substance satisfactory to the Representative to the effect that:
(i) they are independent public accountants within the
meaning of the 1933 Act and the 1933 Act Regulations;
(ii) in their opinion the Company's financial statements and
schedules included or incorporated by reference in the
Registration Statement and Prospectus and covered by their
reports included or incorporated therein comply as to form in all
material respects with the applicable accounting requirements of
the 1933 Act and the 1933 Act Regulations or the 1934 Act and the
1934 Act Regulations, as the case may be;
(iii) they have conducted reviews of the unaudited interim
consolidated financial information of the Company included in the
Company's Quarterly Reports on Form 10-Q incorporated in the
Registration Statement and Prospectus in compliance with the
standards for such reviews promulgated by the American Institute
of Certified Public Accountants;
(iv) on the basis of a reading of the financial statements
and schedules of the Company included or incorporated in the
Prospectus and the Registration Statement, and the latest
available unaudited interim financial statements of the Company,
inquiries of officials of the Company responsible for financial
and accounting matters, and other specified procedures and
inquiries, nothing has come to their attention that caused them
to believe that:
(A) the unaudited financial statements of the Company
included or incorporated in the Prospectus and the
Registration Statement do not comply as to form in all
material respects with the applicable accounting
requirements of the 1933 Act and the 1933 Act Regulations or
the 1934 Act and the 1934 Act Regulations thereunder, as the
case may be, or that such unaudited financial statements are
not presented fairly in conformity with generally accepted
accounting principles;
(B) with respect to the period subsequent to the date
of the most recent financial statements incorporated in the
Registration Statement and the Prospectus, as of a specified
date not more than five business days prior to the date of
delivery of such letter, there has been any change in the
common or preferred stock or long-term debt of the Company
or, as of such date, there has been any decrease in assets
or common stockholders' investment, in each case as compared
with amounts shown in the most recent consolidated balance
sheet of the Company included or incorporated in the
Registration Statement and the Prospectus, except in each
case for changes or decreases which the Prospectus discloses
have occurred or may occur or which are described in such
letter; or
(C) for the period from the date of the most recent
financial statements incorporated in the Registration
Statement and the Prospectus to such specified date, there
was any decrease in operating revenues, operating income,
income before taxes or net income of the Company in each
case as compared with the comparable period of the preceding
year, except in each case for decreases which the Prospectus
discloses have occurred or may occur or which are described
in such letter; and
(v) in addition to their audit referred to in their reports
included or incorporated by reference in the Registration
Statement and the Prospectus and the reviews, inquiries and
procedures referred to in clauses (iii) and (iv) above, such
letter shall state that KPMG Peat Marwick LLP has performed other
specified procedures, with respect to certain numerical data and
information included or incorporated in the Registration
Statement and the Prospectus, as are requested by the
Representative and specified in such letter and have found such
data and information to be in agreement with the accounting
records of or analyzes prepared by the Company.
(e) Other Documents. At the Closing Time, counsel for the
Underwriters shall have been furnished with such documents and opinions as
such counsel may reasonably require for the purpose of enabling such counsel
to pass upon the issuance and sale of Offered Securities as herein contemplated
and related proceedings, or in order to evidence the accuracy and completeness
of any of the representations and warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Company in
connection with the issuance and sale of Offered Securities as herein
contemplated shall be satisfactory in form and substance to the
Representative.
Section 6. Indemnification.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, arising out of any untrue statement of a
material fact contained in the Registration Statement (or any
amendment thereto), or the omission therefrom of a material fact
required to be stated therein or necessary to make the statements
therein not misleading or arising out of or based upon any untrue
statement of a material fact contained in the Prospectus (or any
amendment or supplement thereto) or the omission therefrom of a
material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, to the extent of the aggregate amount paid in
settlement of any litigation, or investigation or proceeding by
any governmental agency or body, commenced or threatened, or of
any claim whatsoever arising out of or based upon any such untrue
statement or omission, if such settlement is effected with the
written consent of the Company; and
(iii) against any and all expense whatsoever, reasonably
incurred in investigating, preparing or defending against any
litigation, or investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever
arising out of or based upon any such untrue statement or
omission, to the extent that any such expense is not paid under
(i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission made in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representative expressly for use in the Registration Statement (or any
amendment thereto) or the Prospectus (or any amendment or supplement thereto),
or made in reliance upon the Statement of Eligibility and Qualification of
Trustee (Form T-1) under the 1939 Act filed as exhibits to the Registration
Statement; and provided, further, that the foregoing indemnity agreement, with
respect to any Preliminary Prospectus shall not inure to the benefit of any
Underwriter from whom the person asserting any such losses, claims, damages or
liabilities purchased Offered Securities, or any person controlling such
Underwriter, if a copy of the Prospectus (as then amended or supplemented if
the Company shall have furnished any amendments or supplements thereto) was not
sent or given by or on behalf of such Underwriter to such person, if required
by law so to have been delivered, at or prior to the written confirmation of
the sale of the Offered Securities to such person, and if the Prospectus (as so
amended or supplemented) would have cured the defect giving rise to such
losses, claims, damages or liabilities.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, its directors and officers and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act against
any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a) of this Section, as incurred, but only
with respect to untrue statements or omissions made in the Registration
Statement (or any amendment thereto) or the Prospectus (or any amendment or
supplement thereto) in reliance upon and in conformity with written
information furnished to the Company by such Underwriters through the
Representative expressly for use in the Registration Statement (or any
amendment thereto) or the Prospectus (or any amendment or supplement thereto).
(c) Each indemnified party shall give prompt notice to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any liability which it may
have otherwise than on account of this indemnity agreement. An indemnifying
party may participate at its own expense in the defense of such action. In no
event shall the indemnifying parties be liable for the fees and expenses of
more than one counsel (in addition to any 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.
Section 7. Contribution.
In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in Section 6 is
for any reason held to be unenforceable by the indemnified parties although
applicable in accordance with its terms, the Company and the Underwriters of
each offering of Offered Securities shall contribute to the aggregate losses,
liabilities, claims, damages and expenses of the nature contemplated by said
indemnity agreement incurred by the Company and one or more of the
Underwriters in respect of such offering, as incurred, in such proportions
that the Underwriters are responsible for that portion represented by the
percentage that the underwriting discount appearing on the cover page of the
Prospectus in respect of such offering bears to the initial public offering
price appearing thereon and the Company is responsible for the balance;
provided, however, that no person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 0000 Xxx) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
For purposes of this Section, each person, if any, who controls
an Underwriter within the meaning of Section 15 of the 1933 Act shall have the
same rights to contribution as such Underwriter, and each director of the
Company, each officer of the Company who signed the Registration Statement,
and each person, if any, who controls the Company within the meaning of
Section 15 of the 1933 Act shall have the same rights to contribution as the
Company.
Section 8. Representations, Warranties and Agreements to
Survive Delivery.
All representations, warranties and agreements contained in this
Agreement, or contained in certificates of officers of the Company submitted
pursuant hereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or
controlling person, or by or on behalf of the Company, and shall survive each
delivery of and payment for any of the Offered Securities.
Section 9. Termination of Agreement.
The Representative may terminate this Agreement, immediately
upon notice to the Company, at any time prior to the Closing Time if: (i)
there has been, since the date hereof or since the respective dates as of which
information is given in the Registration Statement, any material adverse change
in the condition, financial or otherwise, or in the earnings or business
affairs of the Company, (ii) there shall have occurred any material adverse
change in the financial markets in the United States or any outbreak or
escalation of hostilities or other national or international calamity or
crisis, the effect of which shall be such as to make it, in the judgment of
the Representative, impracticable to market the Offered Securities or enforce
contracts for the sale of the Offered Securities, or (iii) trading in any
securities of the Company shall have been suspended by the Commission or a
national securities exchange, or if trading generally on either the American
Stock Exchange or the New York Stock Exchange shall have been suspended, or
minimum or maximum prices for trading shall have been fixed, or maximum ranges
for prices for securities shall have been required, by either of said
exchanges or by order of the Commission or any other governmental authority,
or if a banking moratorium shall have been declared by either federal or New
York authorities.
In the event of any termination of this Agreement, the covenant
set forth in Section 3(f) hereof, the provisions of Section 4 hereof, the
indemnity and contribution agreements set forth in Sections 6 and 7 hereof,
and the provisions of Sections 8 and 13 hereof shall remain in effect.
Section 10. Default by One Underwriter.
If any Underwriter shall fail at the Closing Time to purchase
the Offered Securities which it is obligated to purchase hereunder (the
"Defaulted Securities"), and the aggregate amount of Defaulted Securities is
not more than one-tenth of the aggregate amount of the Offered Securities to be
purchased on such date, the other Underwriters shall be obligated severally in
the proportions that the amount of the Offered Securities set forth opposite
their respective names in Schedule I hereto bears to the aggregate amount of
Offered Securities set forth opposite the names of all such non-defaulting
underwriters to purchase the Defaulted Securities; provided that in no event
shall the amount of Defaulted Securities that any Underwriter has agreed to
purchase pursuant to this Agreement be increased by an amount in excess of
one-ninth of such amount of Offered Securities without the written consent of
such Underwriter. If the aggregate amount of Defaulted Securities is more
than one-tenth of the aggregate amount of the Offered Securities to be
purchased on the Closing Date, and arrangements satisfactory to the
Underwriters and the Company for the purchase of such Defaulted Securities are
not made within 36 hours after such default, this Agreement shall terminate
without liability on the part of any non-defaulting Underwriters or the
Company.
No action taken pursuant to this Section shall relieve a
defaulting Underwriter from liability in respect of its default under this
Agreement.
In the event of any such default which does not result in a
termination of this Agreement, either the non-defaulting Underwriters or the
Company shall have the right to postpone the Closing Time for a period not
exceeding seven days in order to effect any required changes in the
Registration Statement or Prospectus or in any other documents or arrangements.
Section 11. Notices.
All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed, delivered by an
express courier service or transmitted by any facsimile communication.
Notices to the Underwriters shall be directed to the Representative at the
address specified in the Terms Agreement, with copies thereof directed to
[Designated Underwriters counsel]. Notices to the Company shall be directed
to it at 0000 X&X Xxxxxxxxx, Xxxxxxx, Xxxxxxxxx 00000, Attention: Vice
President-Finance and Treasurer, with copies thereof directed to the Legal
Department of the Company at 0000 X&X Xxxxxxxxx, Xxxxxxx, Xxxxxxxxx 00000,
Attention: Vice President-General Counsel and Secretary.
Section 12. Parties.
This Agreement shall inure to the benefit of and be binding
upon the Company and any Underwriter who becomes a party hereto and their
respective successors. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any person, firm or corporation, other
than the parties hereto and their respective successors and the controlling
persons and officers and directors referred to in Sections 6 and 7 and their
heirs and legal representatives, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision herein contained. This
Agreement and all conditions and provisions hereof are intended to be for the
sole and exclusive benefit of the parties hereto their respective successors
and said controlling persons and officers and directors and their heirs and
legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Offered Securities from any Underwriter shall be
deemed to be a successor by reason merely of such purchase.
Section 13. Governing Law.
This Agreement and the rights and obligations of the parties
created hereby and thereby shall be governed by and construed in accordance
with the laws of the State of New York applicable to agreements made and to be
performed in such state. Any suit, action or proceeding brought by the
Company against an Underwriter in connection with or arising under this
Agreement shall be brought solely in the state or federal court of appropriate
jurisdiction located in the Borough of Manhattan, The City of New York.
Exhibit A
Form of Opinion of Company Counsel
----------------------------------
____________, ______
[UNDERWRITERS]
Re: Xxxxxx & Xxxxx Corporation
Debt Securities (the "Offered Securities")
------------------------------------------
Ladies and Gentlemen:
This opinion is directed to the Underwriters pursuant to
Section 5(b)(1) of the Underwriting Agreement Basic Provisions and the Terms
Agreement (of which the Underwriting Agreement Basic Provisions is Annex A
thereto) dated ________________,199__ (collectively, the "Underwriting
Agreement"), among the Company and you, with respect to the offer and sale of
the Offered Securities. All terms defined or used in the Underwriting
Agreement have the same meaning when used herein, unless otherwise noted.
I am Vice President-General Counsel and Secretary of the Company
and have acted as such in connection with the Offered Securities and the
Underwriting Agreement. I or attorneys under my supervision have made such
examination and investigation as we have deemed necessary in order to give the
following opinion.
Based on the foregoing, it is my opinion that:
(i) The Company is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Tennessee and has
full corporate power and authority under such laws to own its properties and to
conduct its business as described in the Prospectus; the Company is duly
qualified to do business and is in good standing in each jurisdiction in which
it owns or leases real property or in which the conduct of its business
requires such qualification, except for such instances which in the aggregate
will not have a material adverse effect on the Company;
(ii) Each subsidiary of the Company which is a significant
subsidiary as defined in Rule 405 of Regulation C of the 1933 Act Regulations
(each a "Significant Subsidiary") has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the jurisdiction
of its incorporation, has corporate power and authority to own, lease and
operate its properties and conduct its business as described in the
Registration Statement, and, to the best of my knowledge, is duly qualified to
do business and is in good standing in each jurisdiction in which such
qualification is required, except where the failure to so qualify would not
have a material adverse effect on the condition, financial or otherwise, or
the earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise; all of the issued and outstanding
capital stock of each Significant Subsidiary has been duly authorized and
validly issued and is fully paid and non-assessable, and all of such capital
stock, except for directors' qualifying shares, is owned by the Company,
directly or through subsidiaries, free and clear of any mortgage, pledge,
lien, encumbrance, claim or equity;
(iii) Except for matters described in the Prospectus (as to which I
can express no opinion at this time concerning the Company's liability (if
any) or the effect of any adverse determination upon the business, condition
(financial or otherwise) or operations of the Company), there is no pending,
or to my knowledge, threatened action or proceeding before any court or
administrative agency which individually (or in the aggregate in the case of
any group of related lawsuits) is expected to have a material adverse effect
on the financial condition of the Company or the ability of the Company to
perform its obligations under the Indenture;
(iv) The Indenture has been duly qualified under the 1939 Act and
duly and validly authorized, executed and delivered by the Company and
(assuming the Indenture has been duly authorized, executed and delivered by
the Trustee) constitutes a valid and binding agreement of the Company,
enforceable in accordance with its terms;
(v) The Offered Securities are in due and proper form and have been
duly and validly authorized by all necessary corporate action and, when
executed and authenticated as specified in the Indenture and delivered against
payment of the consideration therefor determined in accordance with the
Underwriting Agreement, will be valid and binding obligations of the Company,
enforceable in accordance with their terms, and each holder of the Offered
Securities will be entitled to the benefits of the Indenture;
(vi) The Company possesses all permits, approvals, franchises and
other rights which are requisite for the conduct of its business as described
in the Prospectus or for the actions contemplated by the Underwriting Agreement
and the offering contemplated by the Prospectus;
(vii) I have reviewed or caused to be reviewed by attorneys under my
supervision the Registration Statement, the Prospectus and each amendment and
supplement thereto (including the documents incorporated by reference) and
have no reason to believe that, as of their respective effective or issue
dates, as of the date of the Terms Agreement or as of the Closing Time, either
the Registration Statement or the Prospectus or any such amendment or
supplement (or any such documents incorporated by reference) 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;
(viii) I do not know of any statute or regulation or legal or
governmental proceeding required to be described in the Prospectus which is
not described as required, nor of any contract or document of a character
required to be described in the Registration Statement or the Prospectus or to
be filed as exhibits to the Registration Statement which is not described and
filed as required; and the descriptions in the Registration Statement and the
Prospectus of the contracts and other documents therein described are accurate
and fairly present the information required to be shown;
(ix) The execution and delivery by the Company of the Underwriting
Agreement and the consummation by the Company of the transactions herein and
therein contemplated and compliance with the terms of the Underwriting
Agreement do not and will not conflict with or result in a breach of any of the
terms of the Charter or By-laws of the Company, and will not conflict with or
result in a breach of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan, credit or note
agreement, lease or other agreement or instrument material to the Company to
which the Company is a party or by which it or any or its properties are
bound, or any existing applicable law, rule, regulation, judgment, order or
decree of any government, governmental instrumentality or court, having
jurisdiction over the Company or any of its properties;
(x) No authorization, approval, consent or license of any
regulatory body or authority (other than under the 1933 Act, the 1939 Act and
the securities or Blue Sky laws of the various states) is required for the
valid authorization, issuance, sale and delivery of the Offered Securities as
herein contemplated or the valid authorization, execution, delivery and
performance by the Company of the Underwriting Agreement and the Indenture or
the consummation by the Company of the transactions contemplated herein or
therein, or, if so required, all such authorizations, approvals, consents and
licenses, specifying the sale, have been obtained and are in full force and
effect;
(xi) The Registration Statement has become effective under the 1933
Act and, to the best of my knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued and no proceedings
for that purpose have been instituted or are pending or contemplated under the
1933 Act; the Registration Statement and the Prospectus, and each amendment
or supplement thereto (except for the financial statements and schedules
included therein, as to which I express no opinion), comply as to form in all
material respects to the requirements of the 1933 Act and the 1933 Act
Regulations and, as to documents incorporated therein, to the requirements of
the 1934 Act and the 1934 Act Regulations in effect at the time such documents
were filed with the Commission; and
(xii) The Underwriting Agreement has been duly and validly
authorized, executed and delivered by the Company and constitutes a valid and
binding agreement of the Company, enforceable in accordance with its terms.
(xii) The Underwriting Agreement has been duly and validly
authorized, executed and delivered by the Company and constitutes a valid and
binding agreement of the Company, enforceable in accordance with its terms.
My opinions as to the enforceability of the Indenture, the
Offered Securities and Underwriting Agreement set forth in subparagraphs (iv),
(v) and (xii) above, are limited by bankruptcy, insolvency, reorganization and
other laws of general applicability relating to or affecting enforcement of
creditors' rights or by general equity principles and subject to any
principles of public policy limiting the right to enforce the indemnification
and contribution provisions contained in Sections 6 and 7 of the Underwriting
Agreement.
In rendering the foregoing opinion, we have assumed that (i) all
signatures on all documents examined by us are genuine and that where any such
signature (other than a signature purporting to have been made on behalf of
the Company) purports to have been made in a corporate, governmental,
fiduciary or other capacity, the person who affixed such signature had the due
authority to do so, (ii) certain factual matters contained in certificates of
public officials are accurate, true and correct, and (iii) photostat copies of
such documents, records and certificates conform to the originals.
This opinion is intended solely for the benefit of the
Underwriters and is not to be relied on by, and no copies of it are to be
delivered to, any other person without my prior written consent, except that
Underwriters' counsel may rely upon this opinion as to all matters of
Tennessee law in rendering its opinion of even date herewith. I am not
assuming any professional responsibility to any other person by rendering this
opinion. It is understood that this opinion speaks as of the date given,
notwithstanding any delivery as contemplated above on any other date.
Very truly yours,
