$150,000,000
X.X. XXXXXX, INC.
SENIOR NOTES DUE 2005
UNDERWRITING AGREEMENT
----------------------
March 15, 2000
Xxxxxx Xxxxxxx & Co.
Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
X.X. Xxxxxx, Inc., a Delaware corporation (the "COMPANY"), proposes to
issue and sell $150,000,000 aggregate principal amount of its Senior Notes due
2005 (the "NOTES")to Xxxxxx Xxxxxxx & Co. Incorporated (the "UNDERWRITER"). The
stated interest rate on the Notes will be set by the Underwriter in accordance
with Section 2 hereof. The Notes are to be issued pursuant to the provisions of
an Indenture dated as of June 7, 1999, as supplemented from time to time by
supplemental indentures (the "INDENTURE"), among the Company, certain
subsidiaries of the Company and the American Stock Transfer and Trust Company,
as Trustee (the "TRUSTEE"). The Company's obligations under the Indenture and
the Notes will be unconditionally guaranteed (the "GUARANTEES"), jointly and
severally, by each of the subsidiaries of the Company listed on the signature
pages hereof (the "GUARANTORS"). The Company and the Guarantors are collectively
referred to herein as the "ISSUERS" and the Notes and the Guarantees are
collectively referred to herein as the "SECURITIES."
1. REGISTRATION STATEMENT AND PROSPECTUS. The Company has prepared and
filed with the Securities and Exchange Commission (the "COMMISSION") in
accordance with the provisions of the Securities Act of 1933, as amended, and
the published rules and regulations of the Commission thereunder
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(collectively, the "ACT"), a registration statement on Form S-3 (No 333-76175),
including a base prospectus relating to the Securities. The registration
statement as amended at the time it became effective on April 16, 1999,
including information (if any) deemed to be part of the registration statement
at the time of effectiveness pursuant to Rule 430A under the Act, is hereinafter
referred to as the "REGISTRATION STATEMENT"; and the base prospectus dated April
16, 1999 (the "BASE PROSPECTUS"), as supplemented by the prospectus supplement
relating to the Securities in the form first used to confirm sales of Securities
(the "PROSPECTUS SUPPLEMENT"), is hereinafter referred to as the "PROSPECTUS."
Any reference herein to the Registration Statement, a preliminary prospectus or
the Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under the Act,
as of the effective date of the Registration Statement or the date of such
preliminary prospectus or the Prospectus (the "INCORPORATED DOCUMENTS"), and,
except as otherwise indicated, when reference is made to information "in"
(including by use of the terms "set forth in," "described in" and similar terms)
the Prospectus or the Registration Statement, such reference shall be deemed to
include information incorporated by reference in the Prospectus or the
Registration Statement, as the case may be.
2. AGREEMENTS TO SELL AND PURCHASE. The Company agrees to issue and sell,
and, on the basis of the representations and warranties contained in this
Underwriting Agreement (the "AGREEMENT") and subject to its terms and
conditions, the Underwriter agrees to purchase from the Company, the entire
principal amount of the Notes at 98.50% of the principal amount thereof (the
"PURCHASE PRICE"). The Underwriter shall determine the stated interest rate on
the Notes not later than 5:00 P.M., New York City time, on March 16, 2000 and
advise the Company in writing thereof; PROVIDED, that, the effective interest
cost on the Notes to the Company shall not exceed 10.771% per annum, and the
stated interest rate on the Notes shall not exceed 10.75% per annum. In the
event that the stated interest rate on the Notes exceeds 10.375% per annum, the
Purchase Price will be increased to an amount such that the effective interest
cost on the Notes to the Company will equal 10.771% per annum.
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3. TERMS OF PUBLIC OFFERING. The Company is advised by the Underwriter
that the Underwriter proposes to make a public offering of the Securities as
soon after the execution and delivery of this Agreement as in judgment of the
Underwriter is advisable on the basis set forth in the Prospectus Supplement.
4. DELIVERY AND PAYMENT. Delivery to the Underwriter of and payment for
the Securities shall be made at 10:00 A.M., New York City time, on the third
business day after the date on which the stated interest rate is designated by
the Underwriter (the "CLOSING DATE"), at such place as you shall designate. The
Closing Date and the location of delivery of and the form of payment for the
Securities may be varied by agreement between you and the Company.
Certificates for the Securities shall be registered in such names and
issued in such denominations as you shall request in writing not later than two
full business days prior to the Closing Date. Such certificates shall be made
available to you for inspection not later than 9:30 A.M., New York City time, on
the business day next preceding the Closing Date. Certificates in definitive
form evidencing the Securities shall be delivered to you on the Closing Date
with any transfer taxes thereon duly paid by the Company, for the account of the
Underwriter, against payment of the Purchase Price therefor by wire or certified
or official bank checks payable in Federal funds to the order of the Company. If
the Securities will be issued in book-entry form, the Company shall deposit the
global certificate(s) representing the Securities with the Depository Trust
Company ("DTC"), or its designated custodian, at the Closing Date, and the
Company will deliver such global certificate(s) to the Underwriter by causing
DTC to credit the Securities to the account of the Underwriter at DTC against
payment therefor as set forth above.
5. AGREEMENTS OF THE ISSUERS. The Issuers, jointly and severally, agree
with the Underwriter as follows:
(a) The Issuers will, if necessary or required by law, file an
amendment to the Registration Statement or, if necessary pursuant to Rule
430A under the Act, a post-
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effective amendment to the Registration Statement, as soon as practicable
after the execution and delivery of this Agreement, and will use their
best efforts to cause the Registration Statement or such post-effective
amendment to become effective at the earliest possible time. The Company
will comply fully and in a timely manner with the applicable provisions
of Rule 424 and Rule 430A under the Act.
(b) The Issuers will advise you promptly and, if requested by you,
will confirm such advice in writing: (i) of the effectiveness of any
amendment to the Registration Statement; (ii) of the transmission to the
Commission for filing of any supplement to the Prospectus (including any
document that would as a result of such filing become an Incorporated
Document) and to furnish you with copies thereof; (iii) of the receipt of
any comments from the Commission that relate to the Registration
Statement or of any request by the Commission for amendment of or a
supplement to the Registration Statement or the Prospectus or for
additional information; (iv) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or
any order preventing or suspending the use of the Prospectus or of the
suspension of qualification of the Securities for offering or sale in any
jurisdiction or the initiation or the threatening of any proceeding for
such purpose; and (v) within the period of time referred to in paragraph
(e) below, of any change in the Company's condition (financial or other),
business, prospects, properties, net worth or results of operations, or
of the happening of any event, which makes any statement of a material
fact made in the Registration Statement or the Prospectus (as then
amended or supplemented) untrue or which requires the making of any
additions to or changes in the Registration Statement or the Prospectus
(as then amended or supplemented) in order to state a material fact
required to be stated therein or necessary in order to make the
statements therein not misleading, or of the necessity to amend or
supplement the Prospectus (as then amended or supplemented) to comply
with the Act or any other law. If at any time any stop order suspending
the effectiveness of the
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Registration Statement or any order preventing or suspending the use of
the Prospectus or suspending any such qualification shall be issued, the
Issuers will promptly use their best efforts to obtain the withdrawal of
such order at the earliest possible time.
(c) The Issuers will furnish to you, without charge, (i) five
copies of the registration statement as originally filed with the
Commission and of each amendment thereto, including all exhibits thereto,
(ii) the Prospectus and any amendment or supplement thereto, (iii) such
number of copies of the registration statement as originally filed and of
each amendment thereto, but without exhibits, as you may request, (iv)
such number of copies of the Incorporated Documents, without exhibits, as
you may request, and (v) five copies of the exhibits to the Incorporated
Documents.
(d) The Issuers will not file any amendment to the Registration
Statement or make any amendment or supplement to the Prospectus or, prior
to the end of the period of time referred to in paragraph (e) below, file
any document which, upon filing becomes an Incorporated Document, of
which you shall not previously have been advised or to which, after you
shall have received a copy of the document proposed to be filed, you
shall reasonably object.
(e) As soon after the execution and delivery of this Agreement as
possible and thereafter from time to time for such period as in the
opinion of counsel for the Underwriter a prospectus is required by the
Act to be delivered in connection with sales by the Underwriter or any
dealer, the Issuers will expeditiously deliver to the Underwriter and
each dealer, without charge, as many copies of the Prospectus (and of any
amendment or supplement thereto) as you may reasonably request. The
Issuers consent to the use of the Prospectus (and of any amendment or
supplement thereto) in accordance with the provisions of the Act and with
the securities or Blue Sky laws of the jurisdictions in which the
Securities are offered by the Underwriter and by all dealers to whom
Securities may be sold, both in connection with the
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offering and sale of the Securities and for such period of time
thereafter as the Prospectus is required by the Act to be delivered in
connection with sales by the Underwriter or any dealer.
(f) If during the period of time referred to in paragraph (e)
above any event shall occur as a result of which, in the judgment of the
Issuers or in the opinion of counsel for the Underwriter, it becomes
necessary to amend or supplement the Prospectus in order to make the
statements therein, in the light of the circumstances when the Prospectus
is delivered to a purchaser, not misleading, or if it is necessary to
amend or supplement the Prospectus to comply with the Act or any other
law, the Issuers will forthwith prepare and, subject to the provisions of
paragraph (d) above, file with the Commission an appropriate amendment or
supplement to the Prospectus so that the statements in the Prospectus, as
so amended or supplemented, will not, in the light of the circumstances
when it is so delivered, be misleading, or so that the Prospectus will
comply with law, and to furnish to the Underwriter and to such dealers as
you shall specify such number of copies thereof as the Underwriter or
such dealers may reasonably request. In the event that the Issuers and
you agree that the Prospectus should be amended or supplemented, the
Issuers, if requested by you, will promptly issue a press release
announcing or disclosing the matters to be covered by the proposed
amendment or supplement.
(g) The Issuers will cooperate with you and with counsel for the
Underwriter in connection with the registration or qualification of the
Securities for offering and sale by the Underwriter and by dealers under
the securities or Blue Sky laws of such jurisdictions as you may
designate and will file such consents to service of process or other
documents necessary or appropriate in order to effect such registration
or qualification; PROVIDED, HOWEVER, that in no event shall any Issuer be
obligated to qualify to do business in any jurisdiction where it is not
now so qualified or to take any action which would subject it to service
of process in suits, other than those arising out of the offering or sale
of
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the Securities, in any jurisdiction where it is not now so subject.
(h) The Issuers will make generally available to its security
holders a consolidated earnings statement, which need not be audited,
covering a twelve-month period commencing after the of the Prospectus and
ending not later than 15 months thereafter, as soon as practicable after
the end of such period, which consolidated earnings statement shall
satisfy the provisions of Section 11(a) of the Act and Rule 158
thereunder, and to advise you in writing when such statement has been
made available.
(i) During the period of five years hereafter, the Issuers will
furnish to you as soon as available, a copy of all public materials
furnished by the Company to its stockholders and all public reports and
financial statements furnished by the Company to the principal national
securities exchange upon which the Common Stock may be listed pursuant to
requirements of or agreements with such exchange or to the Commission.
(j) The Company will apply the net proceeds from the sale of the
Securities in accordance with the description set forth in the Prospectus
under the caption "Use of Proceeds."
(k) Neither the Company nor any of its subsidiaries has taken, or
will take, directly or indirectly, any action designed to or that might
reasonably be expected to cause or result in stabilization or
manipulation of the price of the Securities to facilitate the sale or
resale of the Securities.
(l) The Issuers will pay all costs, expenses, fees and taxes
incident to (i) the preparation, printing, filing and distribution under
the Act of the Registration Statement (including financial statements and
exhibits), and all amendments and supplements thereto prior to or during
the period specified in paragraph (e) above, (ii) the printing and
delivery of the Prospectus and all amendments or supplements thereto
during the period specified in paragraph (e) above, (iii) the printing
and
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delivery of this Agreement, the Preliminary and Supplemental Blue Sky
Memoranda and all other agreements, memoranda, correspondence and other
documents printed and delivered in connection with the offering of the
Securities (including in each case any disbursements of counsel for the
Underwriter relating to such printing and delivery), (iv) the
registration or qualification of the Securities for offer and sale under
the securities or Blue Sky laws of the several states (including in each
case the reasonable fees and disbursements of counsel for the Underwriter
relating to such registration or qualification and memoranda relating
thereto), (v) filings and clearance with the National Association of
Securities Dealers, Inc. in connection with the offering, (vi) the
listing, if any, of the Securities on any national securities exchange,
and (vii) furnishing such copies of the Registration Statement, the
Prospectus and all amendments and supplements thereto as may be requested
for use in connection with the offering or sale of the Securities by the
Underwriter or by dealers to whom Securities may be sold.
(m) The Issuers will not during the period beginning on the date
hereof and continuing to and including the Closing Date, offer, sell,
contract to sell or otherwise dispose of any debt securities of the
Company or any warrants, options or other rights to purchase or acquire
debt securities of the Company or any securities convertible into or
exchangeable for debt securities of the Company (other than (i) the
Securities and (ii) commercial paper issued in the ordinary course of
business), without the prior written consent of the Underwriter.
(n) The Issuers will use their best efforts to do and perform all
things required or necessary to be done and performed under this
Agreement by the Issuers prior to the Closing Date and to satisfy all
conditions precedent to the delivery of the Securities.
6. REPRESENTATIONS AND WARRANTIES OF THE ISSUERS. The Issuers, jointly
and severally, represent and warrant to the Underwriter that:
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(a) Each preliminary prospectus included as part of the
registration statement as originally filed or as part of any amendment or
supplement thereto, or filed pursuant to Rule 424 under the Act, complied
when so filed in all material respects with the provisions of the Act.
The Commission has not issued any order preventing or suspending the use
of any preliminary prospectus.
(b) The Registration statement has become effective and at the
date of the Prospectus (if different), including at the date of any
post-effective amendment or supplement, the Registration Statement will
comply in all material respects with the provisions of the Act, and will
not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading; the Prospectus (and any supplements or
amendments thereto) will at all such times comply in all material
respects with the provisions of the Act and will not at any such time
contain any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
PROVIDED, HOWEVER, that no representation or warranty is made as to
information contained in or omitted from the Registration Statement or
the Prospectus in reliance upon and in conformity with written
information furnished to the Issuers with respect to the Underwriter
specifically for inclusion therein.
(c) The Incorporated Documents, at the time they were filed with
the Commission or, to the extent such documents were subsequently amended
prior to the date hereof, at the time so amended, complied in all
material respects with the requirements of the Act or the Securities
Exchange Act of 1934, as amended, and the published rules and regulations
of the Commission thereunder (collectively, the "EXCHANGE ACT"), as
applicable, and such documents do not on the date hereof and will not on
the Closing Date contain an untrue statement of a material fact and do
not on the date hereof and will not on the Closing Date omit to state a
material fact required to be stated therein or necessary
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to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
(d) The financial statements (including the related notes and
supporting schedules) in the Registration Statement or the Prospectus
present fairly the consolidated financial position and results of
operations of the entities purported to be shown thereby, at the dates
and for the periods indicated, and have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis
throughout the periods involved.
(e) Ernst & Xxxxx, LLP, who have reported on the financial
statements of the Company, are independent public accountants with
respect to the Company and its subsidiaries as required by the Act.
(f) [Reserved]
(g) The Company and each of its subsidiaries have been duly formed
and are validly existing in good standing under the laws of their
respective jurisdictions of organization, are duly qualified to do
business and are in good standing in each jurisdiction in which their
respective ownership or lease of property or the conduct of their
respective businesses requires such qualification except where the
failure to so qualify, singly or in the aggregate, would not have a
material adverse effect on the financial condition, results of
operations, business or prospects of the Company and its subsidiaries
taken as a whole (a "MATERIAL ADVERSE EFFECT"), and have all power and
authority necessary to own or hold their respective properties and to
conduct the businesses in which they are engaged.
(h) The Company has an authorized capitalization as set forth in
the Prospectus; and all of the issued equity interests of each subsidiary
of the Company have been duly authorized and validly issued and, as to
shares of capital stock of any corporation constituting a subsidiary, are
fully paid and non-assessable and (except for directors' qualifying
shares) are owned directly or
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indirectly by the Company, free and clear of all liens, encumbrances,
equities or claims other than restrictions on transfer imposed by
applicable securities laws.
(i) The execution, delivery and performance of this Agreement, the
Indenture and the Securities by the issuers, compliance by the Issuers of
all the provisions hereof and thereof and the consummation of the
transactions contemplated hereby will not conflict with or result in a
breach or violation of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan agreement or
other material agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject, nor will such actions
result in any violation of the provisions of the organizational documents
of the Company or any of its subsidiaries or any statute or any order,
rule or regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or any of their
property or assets; and except for such consents, approvals,
authorizations, registrations or qualifications as may be required under
the Act or applicable state or foreign securities laws in connection with
the purchase and distribution of the Securities by the Underwriter, no
consent, approval, authorization or order of, or filing or registration
with, any such court or governmental agency or body is required for the
execution, delivery and performance of this Agreement, the Indenture and
the Securities by the Issuers, compliance by the Issuers of all the
provisions hereof and thereof and the consummation of the transactions
contemplated hereby.
(j) This Agreement has been duly authorized, executed and
delivered by the Issuers and is a valid and binding agreement of the
Issuers enforceable in accordance with its terms (except as rights to
indemnity and contribution hereunder may be limited by applicable law).
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(k) The Indenture has been duly qualified under the Trust
Indenture Act of 1939, as amended (the "TIA"), and has been duly
authorized, executed and delivered by the Issuers and is a valid and
binding agreement of the Issuers, enforceable in accordance with its
terms except as (i) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (ii) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of general
applicability.
(l) The Notes have been duly authorized and, when executed and
authenticated in accordance with the provisions of the Indenture and
delivered to the Underwriter against payment therefor as provided by this
Agreement, will be entitled to the benefits of the Indenture, and will be
valid and binding obligations of the Company, enforceable in accordance
with their terms except as (i) the enforceability thereof may be limited
by bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (ii) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of general
applicability.
(m) The Guarantees have been duly authorized and, upon endorsement
on the Notes by the Guarantors, execution and authentication of the Notes
in accordance with the provisions of the Indenture and delivery of the
Notes to the Underwriter against payment therefor as provided by this
Agreement, will be entitled to the benefits of the Indenture, and will be
valid and binding obligations of the Guarantors, enforceable in
accordance with their terms except as (i) the enforceability thereof may
be limited by bankruptcy, insolvency or similar laws affecting creditors'
rights generally and (ii) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of general
applicability.
(n) The Securities and the Indenture conform to the description
thereof in the Prospectus.
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(o) Neither the Company nor any of its subsidiaries has sustained,
since the date of the latest audited financial statements in the
Prospectus, any loss or interference with the business of the Company and
its subsidiaries taken as a whole from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute
or court or governmental action, order or decree, otherwise than as set
forth or contemplated in the Prospectus, resulting in a Material Adverse
Effect; and, since such date, there has not been any change in the
capital stock or long-term debt of the Company or any of its subsidiaries
or any material adverse change, or any development involving a
prospective material adverse change, in or affecting the general affairs,
management, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries taken as a whole,
otherwise than as set forth or contemplated in the Prospectus.
(p) There are no contracts, agreements or understandings between
the Company and any person granting such person the right to require the
Company to file a registration statement under the Act with respect to
any securities of the Company owned or to be owned by such person or to
require the Company to include such securities in the securities
registered pursuant to the Registration Statement or in any securities
being registered pursuant to any other registration statement filed by
the Company under the Act.
(q) The Company and its subsidiaries own the items of real
property and personal property purported to be owned by them which are
material to the conduct of the business of the Company and its
subsidiaries taken as a whole, free and clear of all liens, encumbrances
and defects, except such as are described in the Prospectus or such as
would not have a Material Adverse Effect. All real property held under
lease by the Company and its subsidiaries are held by them under valid,
subsisting and enforceable leases, with such exceptions as are described
in the Prospectus or such as would not have a Material Adverse Effect.
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(r) Except as described in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property or assets of the Company
or any of its subsidiaries is the subject which are reasonably likely to
have a Material Adverse Effect; and to the Issuers' knowledge, no such
proceedings are threatened by governmental authorities or by others.
(s) The conditions for use of Form S-3, as set forth in the
General Instructions thereto, have been satisfied.
(t) To the Issuers' knowledge, all real property owned (either
presently or at any time in the past) or presently leased by the Company
and its subsidiaries in connection with the operation of their business,
including, without limitation, any subsurface soils and ground water
(collectively, the "REALTY"), is free of contamination from any substance
or material presently known to be toxic or hazardous, including, without
limitation, any radioactive substance, methane, volatile hydrocarbons or
industrial solvents (each, a "HAZARDOUS SUBSTANCE"), which could
reasonably be expected to materially impair the beneficial use thereof by
the Company and its subsidiaries or constitute or cause a significant
health, safety or other environmental hazard to occupants or users
(except for contaminations which would not have a Material Adverse
Effect); and to the Issuers' knowledge, the Realty does not contain any
underground storage or treatment tanks, active or abandoned water, gas or
oil xxxxx, or any other underground improvements or structures, other
than the foundations, footings or other supports for the improvements
located thereon, the presence of which would have a Material Adverse
Effect. Notwithstanding the foregoing, Hazardous Substances shall be
deemed not to include any supplies or substances maintained, used, stored
or held on the Realty which are (i) naturally occurring, (ii) installed
by public utilities or (iii) used in the ordinary course of the Company's
or its subsidiaries' business, provided that such supplies or substances
are stored, used, maintained and held in all
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material respects in accordance with any applicable governmental
requirements and with restrictions, conditions and standards suggested by
the manufacturer and the Company's insurance carriers.
(u) The Company and its subsidiaries carry, or are covered by,
insurance in such amounts and covering such risks as is adequate for the
conduct of their respective businesses.
(v) The Company and its subsidiaries own or possess adequate
rights to use all material patents, patent applications, trademarks,
service marks, trade names, trademark registrations, service mark
registrations, copyrights and licenses necessary for the conduct of their
respective businesses the absence of which would have a Material Adverse
Effect and have no reason to believe that the conduct of their respective
businesses will conflict with, and have not received any notice of any
claim of conflict with, any such rights of others.
(w) There are no contracts or other documents which are required
to be described in the Prospectus or filed as exhibits to the
Registration Statement by the Act which have not been described in the
Prospectus or filed as exhibits to the Registration Statement or
incorporated therein by reference as permitted by the Act.
(x) No labor disturbance by the employees of the Company or any of
its subsidiaries exists or, to the Issuers' knowledge, is imminent which
could reasonably be expected to have a Material Adverse Effect.
(y) The Company and its subsidiaries have filed all federal, state
and local income and franchise tax returns required to be filed through
the date hereof and has paid all taxes due thereon, except where the
failure to do so has not had and would reasonably not be expected to have
a Material Adverse Effect, and no tax deficiency has been determined
adversely to the Company or any of its subsidiaries which has had (nor
does any Issuer have any knowledge of any tax deficiency which would
reasonably likely have) a Material Adverse Effect.
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(z) Since the date as of which information is given in the
Prospectus, and except as may otherwise be disclosed in the Prospectus,
neither the Company nor any of its subsidiaries has (i) entered into any
material transaction not in the ordinary course of business or (ii)
except for the dividend of $.04 per share declared in January 2000 and
payable on February 17, 2000, declared or paid any dividend on its
capital stock from the date of the Prospectus, neither the Company nor
any of its subsidiaries has incurred any material liability other than in
the ordinary course of business.
(aa) The Company is in full compliance with Section 13(b)(2) of
the Exchange Act.
(bb) Neither the Company nor any of its subsidiaries (i) is in
violation of its organizational documents, (ii) is in default in any
material respect, and no event has occurred which, with notice or lapse
of time or both, would constitute such a default, in the due performance
or observance of any term, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement or other material
agreement or instrument to which it is a party or by which it is bound or
to which any of its properties or assets is subject as a result of which
default there would be a Material Adverse Effect or (iii) is in violation
of any law, ordinance, governmental rule, regulation or court decree to
which it or its property or assets may be subject or has failed to obtain
any license, permit, certificate, franchise or other governmental
authorization or permit necessary to the ownership of its property or to
the conduct of its business which violation or failure would have a
Material Adverse Effect.
(cc) Neither the Company nor any of its subsidiaries is an
"investment company" or an entity "controlled" by an "investment company"
within the meaning of the Investment Company Act of 1940, as amended, and
the rules and regulations of the Commission thereunder.
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7. INDEMNIFICATION. (a) The Issuers, jointly and severally, agree to
indemnify and hold harmless the Underwriter and each person, if any, who
controls the Underwriter within the meaning of Section 15 of the Act or Section
20 of the Exchange Act, from and against any and all losses, claims, damages,
liabilities and judgments caused by any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or the
Prospectus (as amended or supplemented if the Company shall have furnished any
amendments or supplements thereto) or any preliminary prospectus, or caused by
any omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages, liabilities or judgments are
caused by any such untrue statement or omission or alleged untrue statement or
omission based upon information relating to the Underwriter furnished in writing
to the Issuers by or on behalf of the Underwriter expressly for use therein;
PROVIDED, HOWEVER, that the foregoing indemnity agreement with respect to any
preliminary prospectus shall not inure to the benefit of the Underwriter or any
person controlling the Underwriter asserted by a person with respect to any such
losses, claims, damages and liabilities and judgments, if a copy of the
Prospectus (as then amended or supplemented if the Issuers shall have furnished
such amendment or supplement thereto in the requisite quantity on a timely basis
to permit such sending or giving) was not sent or given by or on behalf of the
Underwriter to such person, if required by law so to have been delivered, at or
prior to the written confirmation of the sale of Securities to such person, and
if the Prospectus (as so amended and supplemented) would have cured the defect
giving rise to such loss, claim, damage, liability or judgment. Notwithstanding
anything to the contrary herein, the Underwriter shall not be obligated to send
or give any Incorporated Document, or any amendment or supplement thereto, to
any person in order to benefit from the indemnity provisions herein or
otherwise. The foregoing indemnity agreement shall be in addition to any
liability that the Issuers may otherwise have.
(b) In case any action shall be brought against the Underwriter or any
person controlling the Underwriter, based
-18-
upon any preliminary prospectus, the Registration Statement or the Prospectus or
any amendment or supplement thereto and with respect to which indemnity may be
sought against the Issuers, the Underwriter shall promptly notify the Issuers in
writing and the Issuers shall assume the defense thereof, including the
employment of counsel reasonably satisfactory to such indemnified party and
payment of all fees and expenses. The Underwriter or any such controlling person
shall have the right to employ separate counsel in any such action and
participate in the defense thereof, but the fees and expenses of such counsel
shall be at the expense of the Underwriter or such controlling person unless (i)
the employment of such counsel shall have been specifically authorized in
writing by the Issuers, (ii) the Issuers shall have failed to assume the defense
and employ counsel or (iii) the named parties to any such action (including any
impleaded parties) include both the Underwriter or such controlling person and
the Issuers and the Underwriter or such controlling person shall have been
advised by such counsel that there may be one or more legal defenses available
to it which are different from or additional to those available to the Issuers
(in which case the Issuers shall not have the right to assume the defense of
such action on behalf of the Underwriter or such controlling person, it being
understood, however, that the Issuers shall not, in connection with any one such
action or separate but substantially similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the fees and expenses of more than one separate firm of attorneys (in
addition to any local counsel) for the Underwriter and all such controlling
persons, which firm shall be designated in writing by the Underwriter and that
all such fees and expenses shall be reimbursed as they are incurred). The
Issuers shall not be liable for any settlement of any such action effected
without the Company's written consent but if settled with the written consent of
the Company, the Issuers agree to indemnify and hold harmless the Underwriter
and any such controlling person from and against any loss or liability by reason
of such settlement. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened proceeding in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party, unless such
-19-
settlement includes an unconditional release of such indemnified party from all
liability on claims that are the subject matter of such proceeding.
(c) The Underwriter agrees to indemnify and hold harmless the Issuers,
their directors, their officers who sign the Registration Statement and any
person controlling the Issuers within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, to the same extent as the foregoing indemnity
from the Issuers to the Underwriter but only with reference to information
relating to the Underwriter furnished in writing by or on behalf of the
Underwriter expressly for use in the Registration Statement, the Prospectus or
any preliminary prospectus. In case any action shall be brought against the
Issuers, any of its directors, any such officer or any person controlling the
Issuers based on the Registration Statement, the Prospectus or any preliminary
prospectus and in respect of which indemnity may be sought against the
Underwriter, the Underwriter shall have the rights and duties given to the
Issuers (except that if the Issuers shall have assumed the defense thereof, the
Underwriter shall not be required to do so, but may employ separate counsel
therein and participate in the defense thereof but the fees and expenses of such
counsel shall be at the expense of the Underwriter), and the Issuers, their
directors, any such officers and any person controlling the Issuers shall have
the rights and duties given to the Underwriter, by Section 7(b) hereof.
(d) If the indemnification provided for in this Section 7 is unavailable
to an indemnified party in respect of any losses, claims, damages, liabilities
or judgments referred to therein, then each indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages,
liabilities and judgments (i) in such proportion as is appropriate to reflect
the relative benefits received by the Issuers on the one hand and the
Underwriter on the other hand from the offering of the Securities or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of
-20-
the Issuers and the Underwriter in connection with the statements or omissions
which resulted in such losses, claims, damages, liabilities or judgments, as
well as any other relevant equitable considerations. The relative benefits
received by the Issuers and the Underwriter shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company, and the compensation received by the
Underwriter (based on discount to investors on resale), bear to the sum of such
total net proceeds and such compensation. The relative fault of the Issuers and
the Underwriter shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission to
state a material fact relates to information supplied by the Issuers or the
Underwriter and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The Issuers and the Underwriter agree that it would not be just and
equitable if contribution pursuant to this Section 7(d) were determined by pro
rata allocation or by any other method of allocation which does not take account
of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of the
losses, claims, damages, liabilities or judgments referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, the Underwriter shall not be
required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which the
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
-21-
(e) The Underwriter confirms and the Issuers acknowledge that the
statements with respect to the public offering of the Securities by the
Underwriter set forth in the third paragraph of the section entitled
"Underwriting" in the Prospectus Supplement are correct and constitute the only
information concerning the Underwriter furnished in writing to the Issuers by or
on behalf of the Underwriter specifically for inclusion in the Registration
Statement and the Prospectus.
8. CONDITIONS OF UNDERWRITER'S OBLIGATION. The obligation of the
Underwriter to purchase the Securities under this Agreement is subject to the
satisfaction of each of the following conditions:
(a) All the representations and warranties of the Issuers
contained in this Agreement shall be true and correct on the Closing Date
with the same force and effect as if made on and as of the Closing Date.
The Issuers shall have performed or complied with all of their agreements
herein contained and required to be performed or complied with by them at
or prior to the Closing Date.
(b) (i) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been commenced or shall be pending before or
threatened by the Commission, (ii) every request for additional
information on the part of the Commission shall have been complied with
in all material respects, and (iii) no stop order suspending the sale of
the Securities in any jurisdiction referred to in Section 6(g) shall have
been issued and no proceeding for that purpose shall have been commenced
or shall be pending or threatened which would, in your reasonable
judgment, make it impracticable or inadvisable to market the Securities
or to enforce contracts for the sale of the Securities.
(c) Subsequent to the execution and delivery of this Agreement and
prior to the Closing Date, there shall not have been any downgrading, nor
shall any notice have been given of any intended or potential downgrading
or of
-22-
any review for a possible change that does not indicate the direction of
the possible change, in the rating accorded any Issuer's debt by any
"nationally recognized statistical rating organization," as such term is
defined for purposes of Rule 436(g)(2) under the Act.
(d) (i) Since the date of the latest balance sheet included in the
Registration Statement and the Prospectus, there shall not have been any
material adverse change, or any development involving a prospective
material adverse change, in the condition, financial or otherwise, or in
the earnings, affairs or business prospects, whether or not arising in
the ordinary course of business, of the Company and its subsidiaries
taken as a whole, (ii) since the date of the latest balance sheet
included in the Registration Statement and the Prospectus there shall not
have been any change, or any development involving a prospective material
adverse change, in the capital stock or in the long-term debt of the
Company or any of its subsidiaries from that set forth in the
Registration Statement and Prospectus and (iii) the Company and its
subsidiaries shall have no liability or obligation, direct or contingent,
which is material to the Company and its subsidiaries, taken as a whole,
other than those reflected in the Registration Statement and the
Prospectus.
(e) You shall have received on the Closing Date a certificate
dated the Closing Date, signed by Xxxxxx X. Xxxxxx or Xxxxxx X. Xxxxxxx
and Xxxxxx Xxxxxx, in their capacities as the Chairman of the Board or
Chief Executive Officer and President and Chief Financial Officer of the
Company, respectively, confirming the matters set forth in paragraphs
(a), (b), (c) and (d) of this Section 8.
(f) You shall have received on the Closing Date an opinion
(satisfactory to you and counsel for the Underwriter), dated the Closing
Date, of Xxxxxx Xxxx & Xxxxxxxx LLP, special counsel for the Company, to
the effect that:
-23-
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
State of Delaware, is duly qualified to do business and is in good
standing as a foreign corporation in each jurisdiction in which
its ownership or lease of property or the conduct of its business
requires such qualification, except where the failure to be so
qualified would not have a material adverse effect on the
business, operations or financial condition of the Company and its
subsidiaries taken as a whole, and has all corporate power and
authority necessary to own or hold its properties and conduct its
business as described in the Prospectus.
(ii) To such counsel's knowledge and other than as
described in the Prospectus, there are no legal or governmental
proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property or assets of the
Company or any of its subsidiaries is the subject which is of a
character which is required to be disclosed in the Prospectus;
and, to such counsel's knowledge, no such proceedings are
threatened by governmental authorities or by others.
(iii) The Registration Statement was declared effective
under the Act as of the date and time specified in such opinion,
the Prospectus was filed with the Commission pursuant to the
subparagraph of Rule 424(b) under the Act on the date specified
therein, and, to such counsel's knowledge, no stop order
suspending the effectiveness of the Registration Statement has
been issued and no proceeding for that purpose is pending or
threatened by the Commission.
(iv) The Registration Statement and the Prospectus and any
further amendments or supplements thereto made by the Company
prior to the Closing Date (other than the financial data (and the
related notes thereto) and statistical data and the
-24-
financial statements and related schedules therein, as to which
such counsel need express no opinion) appear on their face to
comply as to form in all material respects with the requirements
of the Act; the documents incorporated by reference in the
Prospectus and any further amendment or supplement to any such
incorporated document made by the Company prior to the Closing
Date (other than the financial data (and the related notes
thereto) and statistical data and the financial statements, and
related schedules therein, as to which such counsel need express
no opinion), when they were filed with the Commission appear on
their face to have been appropriately responsive in all material
respects to the requirements of the Act and the Exchange Act.
(v) To such counsel's knowledge, there are no contracts or
other documents of a character which are required to be described
in the Prospectus or filed as exhibits to the Registration
Statement by the Act which have not been described or filed as
exhibits to the Registration Statement or incorporated therein by
reference as permitted by the Act.
(vi) This Agreement has been duly authorized, executed and
delivered by the Issuers.
(vii) The execution, delivery and performance of this
Agreement, the Indenture and the Securities by the Issuers and the
compliance by the Issuers with all of the provisions of this
Agreement and the consummation by the Issuers of the transactions
contemplated hereby and thereby will not, to such counsel's
knowledge, conflict with or result in a material breach or
violation of any of the terms or provisions of, or constitute a
material default under, any indenture, mortgage, deed of trust,
loan agreement or other material agreement or instrument listed as
an exhibit to its Annual Report on Form 10-K for the fiscal year
ended September 30, 1999 or to any subsequent filing under the
Exchange Act or the Act, nor will such actions result in any
-25-
violation of the provisions of the charter or by-laws of any
Issuer or any statute or, to such counsel's knowledge, any order,
rule or regulation known to such counsel of any court or
governmental agency or body having jurisdiction over any Issuer or
any of their property or assets; and, except for such consents,
approvals, authorizations, registrations or qualifications as may
be required under the Act and applicable state or foreign
securities laws in connection with the purchase and distribution
of the Securities by the Underwriter, no consent, approval,
authorization or order of, or filing or registration with, any
such court or governmental agency or body is required for the
execution, delivery and performance of this Agreement, the
Indenture and the Securities by the Issuers and the valid issuance
and sale of the Securities by the Issuers.
(viii) The Indenture has been duly qualified under the TIA
and has been duly authorized, executed and delivered by the
Issuers and is a valid and binding agreement of the Issuers,
enforceable in accordance with its terms except as (a) the
enforceability thereof may be limited by bankruptcy, insolvency or
similar laws affecting creditors, rights generally and (b) rights
of acceleration and the availability of equitable remedies may be
limited by equitable principles of general applicability.
(ix) The Notes have been duly authorized and executed by
the Company and, when authenticated in accordance with the
provisions of the Indenture and delivered to the Underwriter
against payment therefor as provided by this Agreement, will be
entitled to the benefits of the Indenture, and will be valid and
binding obligations of the Company, enforceable in accordance with
their terms except as (i) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting
creditors' rights generally and (ii) rights of acceleration and
the availability of equitable
-26-
remedies may be limited by equitable principles of general
applicability.
(x) The Guarantees have been duly authorized and endorsed
on the Notes by the Guarantors, and, upon execution and
authentication of the Notes in accordance with the provisions of
the Indenture and delivery thereof to the Underwriter against
payment therefor as provided by this Agreement, will be entitled
to the benefits of the Indenture, and will be valid and binding
obligations of the Guarantors, enforceable in accordance with
their terms except as (i) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting
creditors' rights generally and (ii) rights of acceleration and
the availability of equitable remedies may be limited by equitable
principles of general applicability.
(xi) The Securities and the Indenture conform in all
material respects to the descriptions thereof in the Prospectus.
In rendering such opinion, such counsel may state that its opinion
is limited to the Federal laws of the United States of America, the laws of the
States of Texas and New York and the General Corporation Law of the State of
Delaware. Such counsel shall also have furnished to the Underwriter a written
statement, addressed to the Underwriter and dated the Closing Date, in form and
substance satisfactory to the Underwriter and counsel for the Underwriter, to
the effect that (x) such counsel has acted as special counsel to the Company in
connection with the preparation of the Registration Statement and during the
course of the preparation of the Registration Statement and Prospectus, such
counsel participated in conferences with representatives of the Company, the
Company's internal counsel, and its accountants and the representatives of the
Underwriter and at which conferences the contents of the Registration Statement
and the Prospectus and related matters were discussed, and (y) based on the
foregoing, no facts have come to the attention of such counsel which lead it to
believe that (I) the Registration Statement (except as to financial data (and
related notes
-27-
thereto) and statistical data and the financial statements and related schedules
contained or incorporated by reference therein), as of the date the Registration
Statement became effective, contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary in
order to make the statements therein not misleading, or that the Prospectus
(except as to financial data (and related notes thereto) and statistical data
and the financial statements and related schedules contained or incorporated by
reference therein) contains any untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which they were
made, not misleading or (II) any Incorporated Document or any amendment or
supplement thereto made by the Company prior to such Closing Date, when they
were filed with the Commission, as the case may be, contained (except as to
financial and data (and related notes thereto) and statistical data and the
financial statements and related schedules contained or incorporated by
reference therein) an untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. The foregoing opinion
and statement may be qualified by a statement to the effect that such counsel
has not independently verified the accuracy, completeness or fairness of the
statements contained in the Registration Statement or Prospectus or incorporated
by reference therein, and such counsel is not passing upon and such counsel does
not assume any responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement or the Prospectus.
(g) You shall have received on the Closing Date, an opinion of
Xxxx X. Xxxxxxxxxxxx, Esq., Corporate Counsel for the Company, dated the
Closing Date and addressed to you, to the effect that:
Each Guarantor that is a corporation has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of its state of incorporation, is duly
qualified to do business and is in good standing as a foreign
-28-
corporation in each jurisdiction in which its ownership or lease
of its property or the conduct of its business requires such
qualification, except where the failure to be so qualified would
not have a material adverse effect on the business, operations or
financial condition of the Company and its subsidiaries taken as a
whole, and has all corporate power and authority necessary to own
or hold its properties and conduct its business as described in
the Prospectus. The outstanding shares of capital stock of each
such Guarantor is duly authorized, validly issued, fully paid and
nonassessable and (except for directors' qualifying shares) are
owned of record, directly or indirectly by the Company. Each
Guarantor that is a limited partnership has been duly formed and
is validly existing as a limited partnership in good standing
under the laws of the state of its organization, is duly qualified
to do business and is in good standing as a foreign limited
partnership in each jurisdiction in which its ownership or lease
of its property or the conduct of its business requires such
qualification, except where the failure to be so qualified would
not have a material adverse effect on the business, operation or
financial condition of the Company and its subsidiaries taken as a
whole, and has all partnership power and authority necessary to
own or hold its properties and conduct its business as described
in the Prospectus.
(h) You shall have received on the Closing Date an opinion, dated
the Closing Date, of Xxxxxx Xxxxxx and Xxxxxxx, counsel for the
Underwriter, in form and substance satisfactory to the Underwriter.
(i) You shall have received a letter on and as of the Closing
Date, in form and substance satisfactory to you, from Ernst & Young, LLP,
independent public accountants, with respect to the financial statements
and certain financial information contained in the Registration Statement
and the Prospectus and substantially in the form and substance of the
letter
-29-
delivered to you by Xxxxx & Xxxxx, LLP, on the date of this Agreement.
(j) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements in
the Prospectus any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance,
or from any labor dispute or court or governmental action, order or
decree, otherwise than as set forth or contemplated in the Prospectus or
(ii) since such date there shall not have been any change in the capital
stock, net revenues, per share or total amounts of income before
extraordinary income or of net income or long-term debt of the Company or
any of its subsidiaries or any change, or any development involving a
prospective change, in or affecting the general affairs, management,
financial position, stockholders' equity or results of operations of the
Company and its subsidiaries, otherwise than as set forth or contemplated
in the Prospectus, the effect of which, in any such case described in
clause (i) or (ii), is, in the judgment of the Underwriter, so material
and adverse as to make it impracticable or inadvisable to proceed with
the public offering or the delivery of the Securities being delivered on
the Closing Date on the terms and in the manner contemplated in the
Prospectus.
(k) The Issuers shall have furnished to you such other documents
and certificates as to the accuracy and completeness of any statement in
the Registration Statement or the Prospectus as you reasonably may
request.
(l) You shall have been furnished with such additional documents
and certificates as you or counsel for the Underwriter may reasonably
request.
All such opinions, certificates, letters and other documents will be in
compliance with the provisions hereof only if they are reasonably satisfactory
in form and substance to you and your counsel.
-30-
Any certificate or document signed by any officer of the Issuers
and delivered to you or to your counsel shall be deemed a representation
and warranty by the Issuers to the Underwriter as to the statements made
therein.
9. TERMINATION.
This Agreement may be terminated at any time prior to the Closing Date by
you by written notice to the Issuers if any of the following has occurred: (i)
since the respective dates as of which information is given in the Registration
Statement and the Prospectus, any material adverse change or development
involving a prospective material adverse change in the condition, financial or
otherwise, of the Company and its subsidiaries or the earnings, affairs, or
business prospects of the Company and any of its subsidiaries taken as a whole,
whether or not arising in the ordinary course of business, which would, in your
judgment, make it impracticable to market the Securities on the terms and in the
manner contemplated in the Prospectus, (ii) any outbreak or escalation of
hostilities or other national or international calamity or crisis or change in
economic conditions or in the financial markets of the United States or
elsewhere that, in your judgment, is material and adverse and would, in your
judgment, make it impracticable to market the Securities on the terms and in the
manner contemplated in the Prospectus, (iii) the suspension or material
limitation of trading in securities on the New York Stock Exchange, the American
Stock Exchange or the Nasdaq National Market or limitation on prices for
securities on any such exchange, (iv) the enactment, publication, decree or
other promulgation of any federal or state statute, regulation, rule or order of
any court or other governmental authority which in your opinion materially and
adversely affects, or will materially and adversely affect, the business or
operations of the Company and its subsidiaries taken as a whole, (v) the
declaration of a banking moratorium by either federal or New York State
authorities or (vi) the taking of any action by any federal, state or local
government or agency in respect of its monetary or fiscal affairs which in your
opinion has a material adverse effect on the financial markets in the United
States.
-31-
10. MISCELLANEOUS. Notices given pursuant to any provision of this
Agreement shall be addressed as follows: (a) if to the Issuers, to X.X. Xxxxxx,
0000 Xxxxxxxxx Xxxx., Xxxxx 000 Xxxxxxxxx, Xxxxx 00000, and (b) if to the
Underwriter, to Xxxxxx Xxxxxxx & Co. Incorporated, 1585 Broadway, 27th Floor,
New York, New York 10036, Attention: Syndicate Desk, or in any case to such
other address as the person to be notified may have requested in writing.
The respective indemnities, contribution agreements, representations,
warranties and other statements of the Company, its officers and directors (in
their capacities as such) and of the Underwriter set forth in or made pursuant
to this Agreement shall remain operative and in full force and effect, and will
survive delivery of and payment for the Securities, regardless of (i) any
investigation, or statement as to the results thereof, made by or on behalf of
the Underwriter or by or on behalf of the Company, the officers or directors of
the Company or any controlling person of the Company (in their capacities as
such), (ii) acceptance of the Securities and payment for them hereunder and
(iii) termination of this Agreement.
If this Agreement shall be terminated by the Underwriter because of any
failure or refusal on the part of any Issuer to perform any of its agreements in
this Agreement or to fulfill any of the conditions of Section 8 of this
Agreement, the Issuers, jointly and severally, agree to reimburse the
Underwriter for all out-of-pocket expenses (including the fees and disbursements
of counsel) reasonably incurred by it.
Except as otherwise provided, this Agreement has been and is made solely
for the benefit of and shall be binding upon the Issuers, the Underwriter, any
controlling persons referred to herein and their respective successors and
assigns, all as and to the extent provided in this Agreement, and no other
person shall acquire or have any right under or by virtue of this Agreement. The
term "successors and assigns" shall not include a purchaser of any of the
Securities from the Underwriter merely because of such purchase.
-32-
This Agreement shall be governed and construed in accordance with the
laws of the State of New York.
This Agreement may be signed in various counterparts which together shall
constitute one and the same instrument.
-33-
Please confirm that the foregoing correctly sets forth the agreement
between the Issuers and the Underwriter.
Very truly yours,
X.X. XXXXXX, INC.
By:
------------------------------------
Name:
Title:
-34-
GUARANTORS:
DRHI, Inc.
Xxxxxxx I, Ltd.
Xxxxxxx IX, Inc.
Xxxxxxx X, Inc.
X.X. Xxxxxx, Inc.-Birmingham
X.X. Xxxxxx, Inc.-Chicago
X.X. Xxxxxx, Inc.-Denver
X.X. Xxxxxx, Inc.-Greensboro
X.X. Xxxxxx, Inc.-Louisville
X.X. Xxxxxx, Inc.-Minnesota
X.X. Xxxxxx, Inc.-New Jersey
X.X. Xxxxxx, Inc.-Portland
X.X. Xxxxxx, Inc.-Sacramento
X.X. Xxxxxx, Inc.-San Diego
X.X. Xxxxxx, Inc.-Xxxxxx
X.X. Xxxxxx San Diego Holding Company, Inc.
X.X. Xxxxxx Los Angeles Holding Company,
Inc.
DRH Construction, Inc.
DRH Cambridge Homes, Inc. (formerly X.X.
Xxxxxx Sacramento Management Company,
Inc.)
X. Xxxxxxx Xxxxxx Builders, Inc.
DRH Tucson Construction, Inc.
Continental Homes, Inc.
KDB Homes, Inc.
Continental Residential, Inc.
Continental Homes of Florida, Inc.
CHI Construction Company
CHTEX of Texas, Inc.
By:
----------------------------------------
Name:
Title:
-35-
Xxxxxxx II, Ltd.
CH Investments of Texas, Inc.
By: _________________________
Name: Xxxxxxx Xxxx
Title: President
-36-
SGS COMMUNITIES AT GRANDE QUAY, LLC
By: Xxxxxxx IX, Inc., a member
By:
--------------------------------
Name:
Title:
and
By: Xxxxxxx X, Inc., a member
By:
--------------------------------
Name:
Title:
X.X. XXXXXX MANAGEMENT COMPANY, LTD.
X.X. XXXXXX - TEXAS, LTD.
By: Xxxxxxx I, Ltd.,
its general partner
By:
--------------------------------
Name:
Title:
-37-
CONTINENTAL HOMES OF TEXAS, L.P.
By: CHTEX of Texas, Inc.,
its general partner
By:
--------------------------------
Name:
Title:
-38-
Xxxxxx and accepted as of the
date first written above:
XXXXXX XXXXXXX & CO.
INCORPORATED
By:
-------------------------------
Name:
Title:
