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Exhibit 1.1
S&C Draft of May 10, 1999
THE XXXXXXX XXXXX GROUP, INC.
__% (EURO) NOTES DUE 2009
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UNDERWRITING AGREEMENT
May __, 1999
Xxxxxxx Xxxxx International,
[INSERT NAMES OF OTHER REPRESENTATIVES],
As representatives of the several Underwriters
named in Schedule I hereto,
c/o Goldman Xxxxx International,
Peterborough Court,
000 Xxxxx Xxxxxx,
Xxxxxx XX0X 0XX, Xxxxxxx
Ladies and Gentlemen:
The Xxxxxxx Xxxxx Group, Inc., a Delaware corporation (the "Company"),
proposes, subject to the terms and conditions stated herein, to issue and sell
to the Underwriters named in Schedule I hereto (the "Underwriters") an aggregate
of (euro)1,000,000,000 principal amount of the Notes specified above (the
"Securities").
The Company succeeded to the business of The Xxxxxxx Xxxxx Group, L.P.,
a Delaware limited partnership ("Group"), in a series of transactions described
in the Prospectuses (as defined in Section 1(a) hereof) under the captions
"Certain Relationships and Related Transactions--Incorporation and Related
Transactions--Incorporation Transactions". Those transactions, which are
hereinafter referred to as the "Incorporation Transactions", were consummated on
May 7, 1999. For purposes of the representations and warranties set forth in
Section 1(d) and the conditions set forth in Section 8(g), references to the
Company with respect to any time before the consummation of the Incorporation
Transactions shall be deemed to be references to Group.
The Registration Statement (as defined in Section 1) contains two forms
of prospectus, one that relates to the initial distribution of the Securities by
the Underwriters in an underwritten public offering and another that relates to
offers and sales of Securities by Xxxxxxx Xxxxx International or any other
affiliates of the Company in secondary transactions. The Underwriters
acknowledge and agree that the Secondary Transactions Prospectus (as defined in
Section 1) and any amendment or supplement thereto will not be used by any
Underwriter except Xxxxxxx Xxxxx International, and Xxxxxxx Xxxxx International
and such other affiliates acknowledge and agree that they will use the Initial
Offering Prospectus (as defined in Section 1) and any amendment or supplement
thereto only in connection with offers and sales of the kind contemplated
therein to be made pursuant to such prospectus and will use the Secondary
Transactions Prospectus and any amendment or supplement thereto only in
connection with offers and sales of the kind contemplated therein to be made
pursuant to such prospectus. The
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Company acknowledges and agrees that Xxxxxxx Xxxxx International are under no
obligation to commence any offers or sales of the kind contemplated by the
Secondary Transactions Prospectus or any amendment or supplement thereto and, if
commenced, Xxxxxxx Xxxxx International may discontinue such offers and sales at
any time without providing any notice to the Company. The term "Underwriter"
includes Xxxxxxx Xxxxx International, whether acting in its capacity as an
Underwriter or acting as contemplated by the Secondary Transactions Prospectus.
1. The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) A registration statement on Form S-1 (File No. 333-77541)
(the "Initial Registration Statement") in respect of the Securities has
been filed with the Securities and Exchange Commission (the
"Commission"); the Initial Registration Statement and any
post-effective amendment thereto, each in the form heretofore delivered
to you, and, excluding exhibits thereto, to you for each of the other
Underwriters, have been declared effective by the Commission in such
form; other than a registration statement, if any, increasing the size
of the offering (a "Rule 462(b) Registration Statement"), filed
pursuant to Rule 462(b) under the U.S. Securities Act of 1933, as
amended (the "Act"), which became or will become effective upon filing,
no other document with respect to the Initial Registration Statement
has heretofore been filed with the Commission; and no stop order
suspending the effectiveness of the Initial Registration Statement, any
post-effective amendment thereto or the Rule 462(b) Registration
Statement, if any, has been issued and no proceeding for that purpose
has been initiated or threatened by the Commission (any preliminary
prospectus included in the Initial Registration Statement or filed with
the Commission pursuant to Rule 424(a) of the rules and regulations of
the Commission under the Act, is hereinafter called a "Preliminary
Prospectus"; the various parts of the Initial Registration Statement
and the Rule 462(b) Registration Statement, if any, including all
exhibits thereto but excluding Form T-1 and including the information
contained in the two forms of final prospectus filed with the
Commission pursuant to Rule 424(b) under the Act in accordance with
Sections 5(a) and 6(a) hereof and deemed by virtue of Rule 430A under
the Act to be part of the Initial Registration Statement at the time it
was declared effective, each as amended at the time such part of the
Initial Registration Statement became effective or such part of the
Rule 462(b) Registration Statement, if any, became or hereafter becomes
effective, are hereinafter collectively called the "Registration
Statement"; and the two forms of final prospectus relating to the
initial distribution of the Securities by the Underwriters in an
underwritten public offering and to offers and sales of Securities by
Xxxxxxx Xxxxx International or any other affiliates of the Company in
secondary transactions, each in the form first filed pursuant to Rule
424(b) under the Act, are hereinafter called the "Initial Offering
Prospectus" and the "Secondary Transactions Prospectus", respectively,
and each is also called, individually, a "Prospectus" and,
collectively, the "Prospectuses");
(b) No order preventing or suspending the use of any
Preliminary Prospectus has been issued by the Commission, and each
Preliminary Prospectus, at the time of filing thereof, conformed in all
material respects to the requirements of the Act and the U.S. Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"), and the
rules and regulations of the Commission thereunder, and did 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, in the light of the circumstances under which they were made,
not misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in
reliance upon
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and in conformity with information furnished in writing to the Company
by an Underwriter through Xxxxxxx Xxxxx International expressly for use
therein;
(c) The Registration Statement conforms, and each Prospectus
and any further amendments or supplements to the Registration Statement
or any Prospectus will conform, in all material respects to the
requirements of the Act and the Trust Indenture Act and the rules and
regulations of the Commission thereunder and do not and will not, as of
the applicable effective date as to the Registration Statement and any
amendment thereto and as of the applicable filing date as to any
Prospectus and any amendment or supplement thereto, contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon
and in conformity with information furnished in writing to the Company
by an Underwriter through Xxxxxxx Xxxxx International expressly for use
therein;
(d) Neither the Company nor any of its subsidiaries that are
listed or that are required to be listed pursuant to the requirements
of Form S-1 in Exhibit 21 to the Registration Statement (the
"Significant Subsidiaries") has sustained since the date of the latest
audited financial statements included in the Prospectuses any material
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; and, since the
respective dates as of which information is given in the Registration
Statement and the Prospectuses, there has not been any change in the
partners' capital or capital stock, as applicable, 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 partners' capital, as applicable, or results of
operations of the Company and its subsidiaries, otherwise than as set
forth or contemplated in the Prospectuses;
(e) The Company and its subsidiaries have good and marketable
title in fee simple to all real property and good and marketable title
to all personal property owned by them, in each case free and clear of
all liens, encumbrances and defects except such as are described in the
Prospectuses or such as do not materially affect the value of such
property and do not interfere with the use made and proposed to be made
of such property by the Company and its subsidiaries; and any real
property and buildings held under lease by the Company and its
subsidiaries are held by them under valid, subsisting and enforceable
leases with such exceptions as are not material and do not interfere
with the use made and proposed to be made of such property and
buildings by the Company and its subsidiaries;
(f) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectuses,
and has been duly qualified as a foreign corporation for the
transaction of business and is in good standing under the laws of each
other jurisdiction in which it owns or leases properties or conducts
any business so as to require such qualification, or is subject to no
material liability or disability by reason of the failure to be so
qualified in any such jurisdiction; each corporate subsidiary of the
Company that is a Significant Subsidiary (a "Corporate Significant
Subsidiary"), each partnership subsidiary of the Company in which the
Company or one of its subsidiaries is a general partner and that is a
Significant Subsidiary (a "Partnership Significant Subsidiary"), each
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unlimited liability company subsidiary of the Company that is a
Significant Subsidiary (a "ULLC Significant Subsidiary") and each
limited liability company in which the Company or one of its
subsidiaries is a managing member that is a Significant Subsidiary (an
"LLC Significant Subsidiary") has been duly incorporated or organized,
as the case may be, and is validly existing as a corporation,
partnership, unlimited liability company or limited liability company,
as the case may be, in good standing under the laws of its jurisdiction
of incorporation or organization, as the case may be, with the power
(corporate, partnership, unlimited liability company or limited
liability company, as the case may be) and authority to own its
properties and conduct its business as described in the Prospectuses;
and the Incorporation Transactions have been consummated and the
Company has succeeded to the business of Group as described in the
Prospectuses;
(g) The Company has an authorized capitalization as set forth
in the Prospectuses, all of the issued shares of capital stock of the
Company have been duly and validly authorized and issued and are fully
paid and non-assessable; all of the issued shares of capital stock of
each Corporate Significant Subsidiary, all of the issued shares of each
ULLC Significant Subsidiary and all of the membership interests in each
LLC Significant Subsidiary have been duly and validly authorized and
issued, are fully paid and, in the case of any Corporate Significant
Subsidiaries and LLC Significant Subsidiaries, are non-assessable and
(except for (A) directors' qualifying shares and (B) interests in
Xxxxxxx Xxxxx Holdings L.L.C.) are owned directly or indirectly by the
Company, free and clear of all liens, encumbrances, equities or claims;
and all of the partnership interests in each Partnership Significant
Subsidiary have been duly and validly created and (except for interests
in Xxxxxxx Xxxxx Mitsui Marine Derivative Products, L.P.) are owned
directly or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims;
(h) The Securities have been duly authorized and, when issued
and delivered pursuant to this Agreement, will have been duly executed,
authenticated, issued and delivered and will constitute valid and
legally binding obligations of the Company entitled to the benefits
provided by the indenture, dated as of May _____, 1999 (the
"Indenture") between the Company and The Bank of New York, as Trustee
(including any successor trustee, the "Trustee"), under which they are
to be issued, which will be substantially in the form filed as an
exhibit to the Registration Statement; the Indenture has been duly
authorized and duly qualified under the Trust Indenture Act and, when
executed and delivered by the Company and the Trustee, will constitute
a valid and legally binding instrument, enforceable in accordance with
its terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles; and the
Securities and the Indenture will conform to the descriptions thereof
in the Prospectuses;
(i) The issue and sale of the Securities and the compliance by
the Company with all of the provisions of the Securities, the Indenture
and this Agreement and the consummation of the transactions herein and
therein contemplated 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
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 action result in any violation
of the provisions of the Amended and Restated Certificate of
Incorporation or Amended and Restated By-laws of the Company or the
organizational documents of any of its Significant 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
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subsidiaries or any of their properties; and no consent, approval,
authorization, order, registration or qualification of or with any such
court or governmental agency or body is required for the issue and sale
of the Securities by the Company or the consummation by the Company of
the transactions contemplated by this Agreement or the Indenture,
except the registration under the Act of the Securities, such as have
been obtained under the Trust Indenture Act and such consents,
approvals, authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection with the
purchase and distribution of the Securities by the Underwriters;
(j) Neither the Company nor any of its Significant
Subsidiaries is in violation of its organizational documents or in
default in the performance or observance of any material obligation,
covenant or condition contained in any indenture, mortgage, deed of
trust, loan agreement, lease or other agreement or instrument to which
it is a party or by which it or any of its properties may be bound;
(k) The statements set forth in each Prospectus under the
caption "Description of Notes We Are Offering", insofar as they purport
to constitute a summary of the terms of the Securities, and the
statements set forth in the Prospectuses under the caption "United
States Taxation", and in the Initial Offering Prospectus under the
caption "Underwriting", insofar as they purport to describe the
provisions of the laws and documents referred to therein, are accurate,
complete and fair;
(l) Other than as set forth in each 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 of the Company
or any of its subsidiaries is the subject which, if determined
adversely to the Company or any of its subsidiaries, would individually
or in the aggregate have a material adverse effect on the current or
future financial position, stockholders' equity or partners' capital,
as applicable, or results of operations of the Company and its
subsidiaries; and, to the best of the Company's knowledge, no such
proceedings are threatened or contemplated by governmental authorities
or threatened by others;
(m) The Company is not and, after giving effect to the
offering and sale of the Securities, will not be an "investment
company", as such term is defined in the U.S. Investment Company Act of
1940, as amended (the "Investment Company Act");
(n) The Company and its Significant Subsidiaries possess all
concessions, permits, licenses, consents, exemptions, franchises,
authorizations, orders, registrations, qualifications and other
approvals (each, an "Authorization") issued by the appropriate Federal,
state and foreign governments, governmental or regulatory authorities,
self-regulatory organizations and all courts or other tribunals, and
are members in good standing of each Federal, state or foreign
exchange, board of trade, clearing house or association and
self-regulatory or similar organization necessary to conduct their
respective businesses as described in each Prospectus;
(o) The statements set forth in the Prospectuses under the
captions "Management's Discussion and Analysis of Financial Condition
and Results of Operations--Risk Management--Operational and Year 2000
Risks--Year 2000 Readiness Disclosure" and "Risk Factors--Our Computer
Systems and Those of Third Parties May Not Achieve Year 2000
Readiness--Year 2000 Readiness Disclosure" accurately and fairly set
forth the current state of the Company's efforts to address the Year
2000 Problem and the risks and costs relating to the
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Year 2000 Problem. The "Year 2000 Problem" as used herein means any
significant risk that computer hardware or software used in the
receipt, transmission, processing, manipulation, storage, retrieval,
transmission or other utilization of data or in the operation of
mechanical or electrical systems of any kind will not, in the case of
dates or time periods occurring after December 31, 1999, function at
least as effectively as in the case of dates or time periods occurring
prior to January 1, 2000; and
(p) PricewaterhouseCoopers LLP, who have certified certain
financial statements of Group and its subsidiaries, are independent
public accountants as required by the Act and the rules and regulations
of the Commission thereunder.
2. Subject to the terms and conditions herein set forth, the Company
agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Company, at
a purchase price of .....% of the principal amount thereof, plus accrued
interest, if any, from May __, 1999 to the Time of Delivery hereunder, the
principal amount of Securities set forth opposite the name of such Underwriter
in Schedule I hereto.
3. Upon the authorization by you of the release of the Securities, the
several Underwriters propose to offer the Securities for sale upon the terms and
conditions set forth in the Initial Offering Prospectus.
4. (a) Securities to be purchased by each Underwriter hereunder shall
be delivered by or on behalf of the Company to you for the account of such
Underwriter at the office of Xxxxxxx Xxxxx International, Peterborough Court,
000 Xxxxx Xxxxxx, Xxxxxx XX0X 0XX, Xxxxxxx, against payment by such Underwriter
or on its behalf of the purchase price therefor in euros in immediately
available funds (to an account specified by the Company to Xxxxxxx Xxxxx
International at least forty-eight hours in advance), at 2:00 p.m., London time
(9:00 a.m., New York City time), on May__, 1999, or at such other time and date
as you and the Company may agree upon in writing, such time and date being
herein called the "Time of Delivery". The Securities will be delivered by the
Company to Xxxxxxx Xxxxx International in the form of one or more definitive
global Securities in book-entry form, which will be deposited on behalf of the
Underwriters with The Bank of New York Depository (Nominees) Limited, 0 Xxxxxxx
Xxxx, Xxxxxx XX0 X0XX, Xxxxxxx, as a common depositary selected by Xxxxxxx Xxxxx
International for the benefit of Xxxxxx Guaranty Trust Company of New York
(Brussels office) as operator of the Euroclear System ("Euroclear") or CEDEL
S.A. ("CEDEL"), or both, for credit to the respective accounts of the
Underwriters unless otherwise directed by Xxxxxxx Xxxxx International. The
Company will cause the certificates representing the Securities to be made
available to Xxxxxxx Xxxxx International for checking at least twenty-four hours
prior to the Time of Delivery at the office of Xxxxxxxx & Xxxxxxxx, St. Xxxxx'x
House, 0 Xxxxxxxxxx Xxxx, Xxxxxx XX0X 0XX, Xxxxxxx, or at the office of the
common depositary specified above (the "Designated Office").
(b) The documents to be delivered at the Time of Delivery by or on
behalf of the parties hereto pursuant to Section 8 hereof, including the
cross-receipt for the Securities and any additional documents requested by the
Underwriters pursuant to Section 8(k) hereof, will be delivered at the offices
of Xxxxxxxx & Xxxxxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Closing
Location"), and the Securities will be delivered at the Designated Office, all
at the Time of Delivery. A meeting will be held at the Closing Location at 2:30
p.m., New York City time, on the New York Business Day next preceding the Time
of Delivery, at which meeting the final drafts of the documents to be delivered
pursuant to the preceding sentence will be available for review by the parties
hereto. For the purposes of this Section 4, "New York Business Day" shall mean
each Monday, Tuesday, Wednesday, Thursday and Friday which
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is not a day on which banking institutions in New York City are generally
authorized or obligated by law or executive order to close.
5. The Company agrees with each of the Underwriters:
(a) To prepare the Initial Offering Prospectus in a form
approved by you and to file the Initial Offering Prospectus pursuant to
Rule 424(b) under the Act not later than the Commission's close of
business on the second business day following the execution and
delivery of this Agreement, or, if applicable, such earlier time as may
be required by Rule 430A(a)(3) under the Act; to make no further
amendment or any supplement to the Registration Statement or the
Initial Offering Prospectus which shall be disapproved by you promptly
after reasonable notice thereof; to advise you, promptly after it
receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective or any
supplement to the Initial Offering Prospectus or any amended Initial
Offering Prospectus has been filed and to furnish you with copies
thereof; to advise you, promptly after it receives notice thereof, of
the issuance by the Commission of any stop order or of any order
preventing or suspending the use of any Preliminary Prospectus or
prospectus, of the suspension of the qualification of the Securities
for offering or sale in any jurisdiction, of the initiation or
threatening of any proceeding for any such purpose, or of any request
by the Commission for the amending or supplementing of the Registration
Statement or Initial Offering Prospectus or for additional information;
and, in the event of the issuance of any stop order or of any order
preventing or suspending the use of any Preliminary Prospectus or
prospectus or suspending any such qualification, to promptly use its
best efforts to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as you may
reasonably request to qualify the Securities for offering and sale
under the securities laws of such jurisdictions as you may request and
to comply with such laws so as to permit the continuance of sales and
dealings therein in such jurisdictions for as long as may be necessary
to complete the distribution of the Securities, provided that in
connection therewith the Company shall not be required to qualify as a
foreign corporation or to file a general consent to service of process
in any jurisdiction;
(c) Prior to 10:00 a.m., New York City time, on the New York
Business Day next succeeding the date of this Agreement and from time
to time, to furnish the Underwriters with copies of the Initial
Offering Prospectus in New York City in such quantities as you may
reasonably request, and, if the delivery of a prospectus is required at
any time prior to the expiration of nine months after the time of issue
of the Initial Offering Prospectus in connection with the offering or
sale of the Securities (other than any offering or sale by Xxxxxxx
Sachs International of the kind contemplated in the Secondary
Transactions Prospectus) and if at such time any event shall have
occurred as a result of which the Initial Offering Prospectus as then
amended or supplemented would include an untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in light of the circumstances under which they were
made when such Initial Offering Prospectus is delivered, not
misleading, or, if for any other reason it shall be necessary during
such same period to amend or supplement the Initial Offering Prospectus
in order to comply with the Act or the Trust Indenture Act, to notify
you and upon your request to prepare and furnish without charge to each
Underwriter and to any dealer in securities as many copies as you may
from time to time reasonably request of an amended Initial Offering
Prospectus or a supplement to the Initial Offering Prospectus which
will correct such statement or omission or effect such compliance; and
in case any Underwriter is required to deliver a prospectus in
connection with sales of any of the Securities at any time nine
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months or more after the time of issue of the Initial Offering
Prospectus (other than any sales by Xxxxxxx Xxxxx International of the
kind contemplated in the Secondary Transactions Prospectus), upon your
request but at the expense of such Underwriter, to prepare and deliver
to such Underwriter as many copies as you may request of an amended or
supplemented Initial Offering Prospectus complying with Section
10(a)(3) of the Act;
(d) To make generally available to its securityholders as soon
as practicable, but in any event not later than eighteen months after
the effective date of the Registration Statement (as defined in Rule
158(c) under the Act), an earnings statement of the Company and its
subsidiaries (which need not be audited) complying with Section 11(a)
of the Act and the rules and regulations of the Commission thereunder
(including, at the option of the Company, Rule 158 under the Act);
(e) During the period beginning from the date hereof and
continuing to and including the later of the Time of Delivery and such
earlier time as you may notify the Company, not to offer, sell,
contract to sell or otherwise dispose of, except as provided hereunder,
any securities of the Company that are substantially similar to the
Securities;
(f) To use the net proceeds received by it from the sale of
the Securities pursuant to this Agreement in the manner specified in
the Initial Offering Prospectus under the caption "Use of Proceeds";
(g) To use its best efforts to list, subject to notice of
issuance, the Securities on the Luxembourg Stock Exchange; and
(h) If the Company elects to rely upon Rule 462(b) under the
Act, to file a Rule 462(b) Registration Statement with the Commission
in compliance with Rule 462(b) by 10:00 P.M., Washington, D.C. time, on
the date of this Agreement and, at the time of filing, either pay to
the Commission the filing fee for the Rule 462(b) Registration
Statement or give irrevocable instructions for the payment of such fee
pursuant to Rule 111(b) under the Act.
6. The Company agrees with Xxxxxxx Xxxxx International:
(a) (i) To prepare the Secondary Transactions
Prospectus in a form approved by Xxxxxxx Xxxxx International and to
file such Prospectus pursuant to Rule 424(b) under the Act not later
than the Commission's close of business on the second business day
following the execution and delivery of this Agreement, or, if
applicable, such earlier time as may be required by Rule 430A(a)(3)
under the Act;
(ii) to make no further amendment or any supplement
to the Registration Statement or the Secondary Transactions Prospectus
during the Secondary Transactions Period (as defined in the last
sentence of this Section 6(a)) which shall be disapproved by Xxxxxxx
Sachs International promptly after reasonable notice thereof, it being
understood that, when Form S-2 or S-3 under the Act is available to the
Company, the Company may amend the Registration Statement so as to be
on such form or may file a new registration statement on such form and
have it declared effective by the Commission, and thereafter any
information required to be included in the Registration Statement or
the Secondary Transactions Prospectus may be incorporated therein by
reference as permitted by such form, provided that:
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(w) if a new registration statement is filed
and becomes effective, any reference herein to the
Registration Statement or the Secondary Transactions
Prospectus (including as one of the Prospectuses)
shall thereafter include, respectively, such new
registration statement and the prospectus contained
therein in the form first filed pursuant to Rule
424(b) under the Act;
(x) if a new registration statement is filed
and becomes effective, the Company shall be deemed to
have made the representations and warranties in
Sections 1(a) (excluding the last parenthetical
clause thereof) and 1(c) to Xxxxxxx Xxxxx
International with respect to such new registration
statement, as of its effective date, and such
prospectus contained therein in such form, as of its
date;
(y) if a new registration statement is filed
and becomes effective, any reference in this
Agreement to any Preliminary Prospectus or the
Secondary Transactions Prospectus (including as one
of the Prospectuses) shall thereafter be deemed to
refer to and include any documents filed after the
date of such Preliminary Prospectus or Prospectus, as
the case may be, under the U.S. Securities Exchange
Act of 1934, as amended (the "Exchange Act") and
incorporated by reference in such Preliminary
Prospectus or Prospectus, as the case may be; and
(z) whether or not a new registration
statement is filed and becomes effective, any
reference in this Agreement to any amendment to the
Registration Statement shall thereafter be deemed to
refer to and include any annual report of the Company
filed pursuant to Section 13(a) or 15(d) of the
Exchange Act after the effective date of the
Registration Statement that is incorporated by
reference in the Registration Statement;
(iii) to advise Xxxxxxx Xxxxx International, promptly
after the Company receives notice thereof, of the time when the
Registration Statement, or any amendment thereto, has been filed or
becomes effective during the Secondary Transactions Period, or any
supplement to the Secondary Transactions Prospectus or any amended
Secondary Transactions Prospectus has been filed during such period,
and to furnish Xxxxxxx Xxxxx International with copies thereof;
(iv) to advise Xxxxxxx Xxxxx International, promptly
after the Company receives notice thereof during the Secondary
Transactions Period, of the issuance by the Commission of any stop
order or of any order preventing or suspending the use of any
Preliminary Prospectus or prospectus, of the suspension of the
qualification of the Securities for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for
any such purpose or of any request by the Commission for the amending
or supplementing of the Registration Statement or any Prospectus or for
additional information; and
(v) in the event of the issuance of any stop order or
of any order preventing or suspending the use of any Preliminary
Prospectus or prospectus or suspending any such qualification during
the Secondary Transactions Period, to use promptly its reasonable
efforts to obtain the withdrawal of such order.
As used in this Agreement, the term "Secondary Transactions Period"
means the period beginning on the date hereof and continuing for as
long as may be required under applicable law,
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in the reasonable judgment of Xxxxxxx Xxxxx International after
consultation with the Company, in order to offer and sell the
Securities as contemplated by the Secondary Transactions Prospectus.
(b) Promptly from time to time to take such action as Xxxxxxx
Sachs International may reasonably request to qualify the Securities
for offering and sale during the Secondary Transactions Period under
the securities laws of such jurisdictions as Xxxxxxx Xxxxx
International may request and to comply with such laws so as to permit
the continuance of sale and dealings therein in such jurisdictions
during such period, provided that in connection therewith the Company
shall not be required to qualify as a foreign corporation or to file a
general consent to service of process in any jurisdiction; and to
comply with all applicable securities and other laws, rules and
regulations in each such jurisdiction;
(c) To furnish Xxxxxxx Xxxxx International with copies of the
Secondary Transactions Prospectus in such quantities as Xxxxxxx Xxxxx
International may from time to time reasonably request during the
Secondary Transactions Period, and, if at any time during such period
any event shall have occurred as a result of which the Secondary
Transactions Prospectus as then amended or supplemented would include
an untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made when such Prospectus is to
be delivered during such period, not misleading, or, if for any other
reason it shall be necessary during such period to amend or supplement
the Secondary Transactions Prospectus or to amend the Registration
Statement in order to comply with the Act or to file under the Exchange
Act any document incorporated by reference in such Prospectus in order
to comply with the Act or the Exchange Act, to notify Xxxxxxx Xxxxx
International and upon its request to file such document and to prepare
and furnish without charge to Xxxxxxx Xxxxx International as many
copies as it may from time to time during such period reasonably
request of an amended Secondary Transactions Prospectus or a supplement
to the Secondary Transactions Prospectus which will correct such
statement or omission or effect such compliance;
(d) During the Secondary Transactions Period, to furnish to
Xxxxxxx Xxxxx International copies of all reports or other
communications (financial or other) furnished to stockholders
generally, and to deliver to Xxxxxxx Xxxxx International (i) as soon as
they are available, copies of any reports and financial statements
furnished to or filed with the Commission or any national securities
exchange on which the Securities or any class of securities of the
Company is listed; and (ii) such additional information concerning the
business and financial condition of the Company as Xxxxxxx Xxxxx
International may from time to time reasonably request (such financial
statements to be on a consolidated basis to the extent the accounts of
the Company and its subsidiaries are consolidated in reports furnished
to its stockholders generally or to the Commission); and
(e) Each time the Registration Statement or the Secondary
Transactions Prospectus shall be amended or supplemented during the
Secondary Transactions Period, to furnish or cause to be furnished to
Xxxxxxx Xxxxx International, upon its request, written opinions of
counsel for the Company, a letter from the independent accountants who
have certified the financial statements included in the Registration
Statement as then amended and certificates of officers of the Company,
in each case in form and substance reasonably satisfactory to you, all
to the effect specified in subsections (c), (d), (e), (f) and (k),
respectively, of Section 8 hereof (as
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modified to relate to the Registration Statement and the Secondary
Transactions Prospectus as then amended or supplemented).
Notwithstanding the foregoing provisions, if at any time the Company
determines that it is in possession of material, non-public information
that it would not be required to disclose publicly in the absence of
registration of the Securities under the Act, the Company may, upon
notice to Xxxxxxx Xxxxx International, cease to comply with any of its
obligations under this Section 6, but only for a period or periods that
the Company reasonably determines are necessary in order to avoid such
premature disclosure and in any event not to exceed 90 days in the
aggregate during any period of 12 consecutive calendar months. Upon
receipt of any such notice, Xxxxxxx Xxxxx International shall cease
using the Secondary Transactions Prospectus or any amendment or
supplement thereto until it receives notice from the Company that it
may resume using such document.
7. The Company covenants and agrees with the several Underwriters that
the Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Securities under the Act and all other
expenses in connection with the preparation, printing and filing of the
Registration Statement, any Preliminary Prospectus and the Prospectuses and
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the cost of printing or producing
any Agreement among Underwriters, this Agreement, the Indenture, closing
documents (including any compilations thereof) and any other documents in
connection with the offering, purchase, sale and delivery of the Securities;
(iii) all expenses in connection with the qualification of the Securities for
offering and sale under state securities laws as provided in Section 5(b) and
Section 6(b) hereof, including the fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection with the
Blue Sky and legal investment surveys; (iv) any fees charged by securities
rating services for rating the Securities; (v) the filing fees incident to, and
the fees and disbursements of counsel for the Underwriters in connection with,
any required review by the National Association of Securities Dealers, Inc. of
the terms of the sale of the Securities by the Underwriters pursuant to the
Initial Offering Prospectus; (vi) the cost of preparing the Securities; (vii)
the fees and expenses of the Trustee and any agent of the Trustee and the fees
and disbursements of counsel for the Trustee in connection with the Indenture
and the Securities; (viii) all reasonable fees, disbursements and expenses
incident to the performance of its obligations under Section 6(e); and (ix) all
other costs and expenses incident to the performance of its obligations
hereunder which are not otherwise specifically provided for in this Section. It
is understood, however, that, except as provided in this Section, and Sections 9
and 12 hereof, the Underwriters will pay all of their own costs and expenses,
including the fees of their counsel, transfer taxes on resale of any of the
Securities by them, and any advertising expenses connected with any offers they
may make.
8. The obligations of the several Underwriters hereunder shall be
subject, in their discretion, to the condition that all representations and
warranties and other statements of the Company herein are, at and as of the Time
of Delivery, true and correct, the condition that the Company shall have
performed all of its obligations hereunder theretofore to be performed and the
following additional conditions:
(a) The Initial Offering Prospectus shall have been filed with
the Commission pursuant to Rule 424(b) within the applicable time
period prescribed for such filing by the rules and regulations under
the Act and in accordance with Section 5(a) hereof; if the Company has
elected to rely upon Rule 462(b) under the Act, the Rule 462(b)
Registration Statement shall have become effective by 10:00 P.M.,
Washington, D.C. time, on the date of this Agreement; no stop
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order suspending the effectiveness of the Registration Statement or any
part thereof shall have been issued and no proceeding for that purpose
shall have been initiated or threatened by the Commission; and all
requests for additional information on the part of the Commission shall
have been complied with to your reasonable satisfaction;
(b) Xxxxxx, Xxxxxxxx, Xxxxx & Xxxxxxxx, counsel for the
Underwriters, shall have furnished to you such written opinion and
letter (drafts of such opinion and letter are attached as Xxxxx XX(a)
hereto), dated the Time of Delivery, to the effect that the matters set
forth in the Prospectuses under the caption "United States Taxation",
insofar as they purport to describe the provisions of the laws referred
to therein, are accurate, complete and fair and with respect to the
matters covered in paragraphs (i), (ii), (vi), (vii), (viii), (xi) and
(xii) of subsection (d) below as well as such other related matters as
you may reasonably request, and such counsel shall have received such
papers and information as they may reasonably request to enable them to
pass upon such matters;
(c) Xxxxxxxx & Xxxxxxxx, counsel for the Company, shall have
furnished to you their written opinion (a draft of such opinion is
attached as Xxxxx XX(b) hereto), dated the Time of Delivery, in form
and substance satisfactory to you, to the effect that:
(i) The Company has been duly incorporated and is an
existing corporation in good standing under the laws of the
State of Delaware;
(ii) All the shares of common stock of the Company
that were outstanding immediately after the closing of the
Company's initial public offering of common stock on May 7,
1999 have been duly authorized and validly issued and are
fully paid and non-assessable;
(iii) All regulatory consents, authorizations,
approvals and filings required to be obtained or made by the
Company under the Federal laws of the United States, the laws
of the State of New York and the General Corporation Law of
the State of Delaware for the issuance, sale and delivery of
the Securities by the Company to you have been obtained or
made;
(iv) The issuance of the Securities in accordance
with the Indenture and the sale of the Securities by the
Company to the Underwriters pursuant to this Agreement do not,
and the performance by the Company of its obligations under
the Securities, the Indenture and this Agreement will not, (a)
violate the Amended and Restated Certificate of Incorporation
or Amended and Restated By-laws of the Company, (b) result in
a default under or breach of the agreements listed in Part II,
Item 16(a), as Exhibits 2.1 and 10.1 through 10.34 of the
Registration Statement, (c) violate any court orders listed in
the certificate of Xxxxxx X. Xxxx, a General Counsel of the
Company, dated the Time of Delivery and delivered to you in
connection with the offering of the Securities or (d) violate
any Federal law of the United States or law of the State of
New York applicable to the Company; provided, however, that
for the purposes of this paragraph (iv), such counsel may
state that they express no opinion with respect to Federal or
state securities laws, fraudulent transfer laws, other
antifraud laws and the Employee Retirement Income Security Act
of 1974, as amended ("ERISA") and related laws; and provided,
further, that such counsel may also state that insofar as
performance by the Company of its obligations under this
Agreement, the Indenture and the Securities is concerned, they
are
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expressing no opinion as to bankruptcy, insolvency,
reorganization, moratorium or similar laws of general
applicability relating to or affecting creditors' rights;
(v) This Agreement has been duly authorized, executed
and delivered by the Company;
(vi) The Indenture has been duly authorized, executed
and delivered by the Company and duly qualified under the
Trust Indenture Act; the Securities have been duly authorized,
executed, authenticated, issued and delivered; and the
Indenture and the Securities constitute valid and legally
binding obligations of the Company enforceable in accordance
with their terms, subject to bankruptcy, insolvency,
reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general
equity principles; and
(vii) The Company is not, and after giving effect to
the offering and sale of the Securities will not be, an
"investment company" as such term is defined in the Investment
Company Act.
Such counsel shall also furnish you with a letter to the
effect that, as counsel to the Company, they reviewed the Registration
Statement and the Prospectuses, participated in discussions with your
representatives and those of the Company and its accountants and
advised the Company as to the requirements of the Act and the
applicable rules and regulations thereunder; between the date of the
Prospectuses and the Time of Delivery, such counsel participated in
further discussions with your representatives and those of the Company
and its accountants in which the contents of certain portions of the
Prospectuses and related matters were discussed and reviewed certain
certificates of certain officers of the Company, an opinion of a
General Counsel of the Company and letters from the Company's
independent accountants delivered to you in connection with the initial
offering of the Securities; on the basis of the information that such
counsel gained in the course of the performance of the services
referred to above, considered in the light of such counsel's
understanding of the applicable law and the experience such counsel
have gained through their practice under the Act, they will confirm to
you that, in such counsel's opinion, the Registration Statement and the
Prospectuses, as of the effective date of the Registration Statement,
appeared on their face to be appropriately responsive in all material
respects to the requirements of the Act and the Trust Indenture Act and
the applicable rules and regulations of the Commission thereunder;
nothing that came to such counsel's attention in the course of such
review has caused such counsel to believe that the Registration
Statement, as of its effective date, contained any untrue statement of
a material fact or omitted to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading; nothing that came to the attention of such counsel in the
course of the procedures described in the second clause of this
paragraph has caused such counsel to believe that the Prospectuses, as
of their date or as of the Time of Delivery, contained or contain any
untrue statement of a material fact or omitted 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;
such counsel may state that the limitations inherent in the independent
verification of factual matters and the character of determinations
involved in the registration process are such, however, that such
counsel does not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the
Registration Statement or the Prospectuses except for those made under
the captions "Description of Notes We Are Offering" in the Prospectuses
and "Underwriting" in the Initial Offering Prospectus, in each case,
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insofar as they relate to provisions of documents therein described,
and except for those made under the caption "United States Taxation" in
the Prospectuses, insofar as they relate to provisions of U.S. Federal
income tax law therein described; such counsel need express no opinion
or belief as to the financial statements or other financial data
derived from accounting records contained in the Registration Statement
or the Prospectuses, or as to the statement of the eligibility and
qualification of the Trustee under the Indenture; and such counsel may
assume that any Rule 462(b) Registration Statement was filed with the
Commission prior to the time that any confirmations of the sale of any
of the Securities were sent or given to investors. In addition, such
counsel shall state that they do not know of any litigation instituted
or threatened against the Company that would be required to be
disclosed in the Prospectuses that is not so disclosed, provided that
such counsel may also state that they call to your attention that the
Company has an internal legal department and that, while such counsel
represents the Company and its affiliates on a regular basis, such
counsel's engagement has been limited to specific matters as to which
it was consulted and, accordingly, such counsel's knowledge with
respect to litigation instituted or threatened against the Company is
limited; and that they do not know of any documents that are required
to be filed as exhibits to the Registration Statement that are not so
filed.
In rendering such opinion, such counsel may state that they
express no opinion as to the laws of any jurisdiction other than the
Federal laws of the United States, the laws of the State of New York
and the General Corporation Law of the State of Delaware; that, insofar
as such opinion involves factual matters, they have relied upon
certificates of officers of the Company and its subsidiaries and
certificates of public officials and other sources believed by such
counsel to be responsible; that such counsel have assumed that the
Indenture has been duly authorized, executed and delivered by the
Trustee, that the Securities conform to the form thereof examined by
them, that the Trustee's certificates of authentication of the
Securities have been manually signed by one of the Trustee's authorized
signatories and that the signatures on all documents examined by them
are genuine (assumptions that they have not independently verified);
and that a judgment for money in an action based on any Security
denominated in a foreign currency may not be enforced in such currency.
(d) Xxxxxxx X. Xxxx, Esq., a General Counsel for the Company,
shall have furnished to you his written opinion (a draft of such
opinion is attached as Xxxxx XX(c) hereto), dated the Time of Delivery,
in form and substance satisfactory to you, to the effect that:
(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, with corporate power and
authority to own its properties and conduct its business as
described in the Prospectuses;
(ii) The Company has an authorized capitalization as
set forth in the Prospectuses, and all of the issued shares of
capital stock of the Company have been duly and validly
authorized and issued and are fully paid and non-assessable;
(iii) The Company has been duly qualified as a
foreign corporation for the transaction of business and is in
good standing under the laws of each other jurisdiction in
which it owns or leases properties or conducts any business so
as to require such qualification, or is subject to no material
liability or disability by reason of failure to be so
qualified in any such jurisdiction; provided, however, that
for the purposes of this
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paragraph (iii), such counsel may state that he expresses no
opinion as to the qualification of the Company as a foreign
corporation under the laws of the States of Texas or Illinois
(such counsel being entitled to rely in respect of the opinion
in this clause upon opinions of local counsel and in respect
of matters of fact upon certificates of officers of the
Company, provided that such counsel shall state that he
believes that you and he are justified in relying upon such
opinions and certificates);
(iv) Each of Xxxxxxx, Xxxxx & Co. and X. Xxxx &
Company has been duly organized and is validly existing as a
limited partnership and general partnership, respectively, in
good standing under the laws of its jurisdiction of formation;
and the general and limited partnership interests in Xxxxxxx,
Sachs & Co., and the general partnership interests in X. Xxxx
& Company, have been duly and validly created and are owned
directly or indirectly by the Company, free and clear of all
liens, encumbrances, equities and claims (such counsel being
entitled to rely in respect of the opinion in this clause upon
opinions of local counsel and in respect of matters of fact
upon certificates of officers of the Company or its
subsidiaries, provided that such counsel shall state that he
believes that you and he are justified in relying upon such
opinions and certificates);
(v) To the best of such counsel's knowledge and other
than as set forth in the Prospectuses, 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 of the
Company or any of its subsidiaries is the subject that is
reasonably likely, individually or in the aggregate, to have a
material adverse effect on the current or future consolidated
financial position, stockholders' equity or results of
operations of the Company and its subsidiaries; and, to the
best of such counsel's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or
threatened by others;
(vi) This Agreement has been duly authorized,
executed and delivered by the Company;
(vii) The Securities have been duly authorized,
executed, authenticated, issued and delivered and constitute
valid and legally binding obligations of the Company entitled
to the benefits provided by the Indenture; and the Securities
and the Indenture conform to the descriptions thereof in the
Prospectuses;
(viii) The Indenture has been duly authorized,
executed and delivered by the Company and constitutes a valid
and legally binding instrument enforceable in accordance with
its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and
to general equity principles; and the Indenture has been duly
qualified under the Trust Indenture Act.
(ix) The issue and sale of the Securities by the
Company, the compliance by the Company with all of the
provisions of the Securities, the Indenture and this Agreement
and the consummation by the Company of the transactions herein
and therein contemplated 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 material indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument
known to such counsel 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
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its subsidiaries is subject, nor will such action result in
any violation of the provisions of the Amended and Restated
Certificate of Incorporation or Amended and Restated By-laws
of the Company or any statute or any order, rule or regulation
known to such counsel of any court or governmental agency or
body having jurisdiction over the Company or any of its
subsidiaries or any of their properties; provided, however,
that, for the purposes of this paragraph (ix), such counsel
need not express any opinion with respect to Federal or state
securities laws, fraudulent transfer laws, other antifraud
laws and ERISA and related laws; and provided, further, that
insofar as the compliance by the Company with all of the
provisions of the Securities, the Indenture and this Agreement
and the consummation of the transactions herein and therein
contemplated are concerned, such counsel need not express any
opinion as to bankruptcy, insolvency, reorganization,
moratorium and similar laws of general applicability relating
to or affecting creditors' rights;
(x) No consent, approval, authorization, order,
registration or qualification of or with any court or
governmental agency or body of the United States of America or
the State of New York is required for the issue and sale of
the Securities or the consummation by the Company of the
transactions contemplated by this Agreement, the Securities or
the Indenture, except the registration of the Securities under
the Act and the qualification of the Indenture under the Trust
Indenture Act, each of which has been obtained or made, and
such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or
Blue Sky laws in connection with the purchase and distribution
of the Securities by the Underwriters;
(xi) The statements set forth in the Prospectuses
under the caption "Description of Notes We Are Offering",
insofar as they purport to constitute a summary of the terms
of the Securities described therein, and in the Initial
Offering Prospectus under the caption "Underwriting", insofar
as they purport to describe the provisions of the documents
referred to therein, are accurate, complete and fair; and
(xii) The Registration Statement and the Prospectuses
and any further amendments and supplements thereto made by the
Company prior to the Time of Delivery (other than the
financial statements and related schedules therein, other
financial data therein derived from the Company's accounting
records and the statement of the eligibility and qualification
of the Trustee under the Indenture, as to which such counsel
need not express any opinion) comply as to form in all
material respects with the requirements of the Act and the
Trust Indenture Act and the rules and regulations thereunder;
although he does not assume any responsibility for the
accuracy, completeness or fairness of the statements contained
in the Registration Statement or the Prospectuses, except for
those referred to in the opinion in paragraphs (ii) and (xi)
of this Section 8(d), he has no reason to believe (i) that, as
of its effective date, the Registration Statement or any
further amendment thereto made by the Company prior to the
Time of Delivery (other than the financial statements and
related schedules therein, other financial data therein
derived from the Company's accounting records and the
statement of the eligibility and qualification of the Trustee
under the Indenture, as to which such counsel need not express
any opinion) 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, (ii) that, as of their date, the Prospectuses or
any further amendment or supplement thereto made by the
Company prior to the Time of Delivery (other than the
financial statements and related schedules therein, other
financial data therein derived
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from the Company's accounting records and the statement of the
eligibility and qualification of the Trustee under the
Indenture, as to which such counsel need not express any
opinion) contained an untrue statement of a material fact or
omitted to state a material fact necessary to make the
statements therein, in the light of the circumstances under
which they were made, not misleading or (iii) that, as of the
Time of Delivery, either the Registration Statement or the
Prospectuses or any further amendment or supplement thereto
made by the Company prior to the Time of Delivery (other than
the financial statements and related schedules therein, other
financial data therein derived from the Company's accounting
records and the statement of the eligibility and qualification
of the Trustee under the Indenture, as to which such counsel
need not express any opinion) contains an untrue statement of
a material fact or omits to state a material fact necessary to
make the statements therein, in the light of the circumstances
under which they were made, not misleading; and he does not
know of any amendment to the Registration Statement required
to be filed or of any contracts or other documents of a
character required to be filed as an exhibit to the
Registration Statement or required to be described in the
Registration Statement or the Prospectuses which are not filed
or described as required. Such counsel may state that he
assumes that any Rule 462(b) Registration Statement was filed
with the Commission prior to the time that any confirmations
of the sale of any of the Securities were sent or given to
investors.
In rendering such opinion, such counsel may state that he
expresses no opinion as to the laws of any jurisdiction other than the
Federal laws of the United States, the laws of the State of New York
and the General Corporation Law of the State of Delaware; that, insofar
as such opinion involves factual matters, he has relied upon
certificates of officers of the Company and its subsidiaries and
certificates of public officials and other sources believed by such
counsel to be responsible; that he has assumed that the Indenture has
been duly authorized, executed and delivered by the Trustee, that the
Securities conform to the form thereof examined by him (or members of
the Company's legal department acting under his supervision), that the
Trustee's certificates of authentication of the Securities have been
manually signed by one of the Trustee's authorized signatories and that
the signatures on all documents examined by him (or members of the
Company's legal department acting under his supervision) are genuine
(assumptions that he has not independently verified); and that a
judgment for money in an action based on any Security denominated in a
foreign currency may not be enforced in such currency. In addition,
such counsel may state that he has examined, or has caused members of
the Company's legal department to examine, such corporate and
partnership records, certificates and other documents, and such
questions of law, as he has considered necessary or appropriate for the
purposes of such opinion;
(e) Linklaters & Paines, United Kingdom counsel for the
Company, shall have furnished to you their written opinion (a draft of
such opinion is attached as Xxxxx XX(d) hereto), dated the Time of
Delivery, in form and substance satisfactory to you, to the effect
that:
(i) Xxxxxxx Xxxxx International has been duly
incorporated and is validly existing as a private unlimited
company, in good standing under the laws of England; and
(ii) All of the issued shares of Xxxxxxx Xxxxx
International have been duly and validly authorized and
issued, are fully paid and are owned by Xxxxxxx Xxxxx Holdings
(U.K.), Xxxxxxx Xxxxx Investments Europe and Xxxxxxx Xxxxx
(U.K.) L.L.C.,
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which are themselves indirectly owned by the Company, free and
clear from all liens, encumbrances, equities or claims.
In rendering such opinion, such counsel may state that they
express no opinion as to the laws of any jurisdiction other than the
Companies Act of England. Such counsel may also state that, insofar as
such opinion involves factual matters, they have relied upon
certificates of officers of the Company and certificates of public
officials and other sources believed by such counsel to be responsible;
(f) On the date of the Initial Offering Prospectus at a time
prior to the execution of this Agreement, at 9:30 a.m., New York City
time, on the effective date of any post-effective amendment to the
Registration Statement filed subsequent to the date of this Agreement
and also at the Time of Delivery, PricewaterhouseCoopers LLP shall have
furnished to you a letter or letters, dated the respective dates of
delivery thereof, in form and substance satisfactory to you, to the
effect set forth in Annex I hereto (the executed copy of the letter
delivered prior to the execution of this Agreement is attached as Annex
I(a) hereto and a draft of the form of letter to be delivered on the
effective date of any post-effective amendment to the Registration
Statement and as of each Time of Delivery is attached as Annex I(b)
hereto);
(g) (i) Neither the Company nor any of its Significant
Subsidiaries shall have sustained since the date of the latest audited
financial statements included in the Initial Offering 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 Initial Offering Prospectus,
and (ii) since the respective dates as of which information is given in
the Initial Offering Prospectus there shall not have been any change in
the capital stock or partners' capital, as applicable, or long-term
debt of the Company or any of its Significant 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
Initial Offering Prospectus, the effect of which, in any such case
described in clause (i) or (ii), is in the judgment of Xxxxxxx Xxxxx
International so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Securities on the terms and in the manner contemplated in the Initial
Offering Prospectus;
(h) On or after the date hereof (i) no downgrading shall have
occurred in the rating accorded the Company's debt securities by any
"nationally recognized statistical rating organization", as that term
is defined by the Commission for purposes of Rule 436(g)(2) under the
Act, and (ii) no such organization shall have publicly announced that
it has under surveillance or review, with possible negative
implications, its rating of any of the Company's debt securities;
(i) On or after the date hereof there shall not have occurred
any of the following: (i) a suspension or material limitation in
trading in securities generally on the New York Stock Exchange; (ii) a
suspension or material limitation in trading in the Company's
securities on the New York Stock Exchange; (iii) a general moratorium
on commercial banking activities declared by either Federal or New York
State authorities; (iv) the outbreak or escalation of hostilities
involving the United States or the declaration by the United States of
a national emergency or war, if the effect of any such event specified
in this clause (iv) in the judgment of Xxxxxxx Xxxxx International
makes it impracticable or inadvisable to proceed with the public
offering or the
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delivery of the Securities on the terms and in the manner contemplated
in the Initial Offering Prospectus; or (v) the occurrence of any
material adverse change in the existing financial, political or
economic conditions in the United States or elsewhere which, in the
judgment of Xxxxxxx Xxxxx International, would materially and adversely
affect the financial markets or the market for the Securities and other
debt securities;
(j) The Company shall have complied with the provisions of
Section 5(c) hereof with respect to the furnishing of prospectuses on
the New York Business Day next succeeding the date of this Agreement;
and
(k) The Company shall have furnished or caused to be furnished
to you at the Time of Delivery, certificates of officers of the Company
satisfactory to you as to the accuracy of the representations and
warranties of the Company herein at and as of the Time of Delivery, as
to the performance by the Company of all of its obligations hereunder
to be performed at or prior to the Time of Delivery, as to the matters
set forth in subsections (a) and (g) of this Section and as to such
other matters as you may reasonably request.
9. (a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, the Registration
Statement or any Prospectus, or any amendment or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse each Underwriter for any legal or
other expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such action or claim as such expenses are
incurred; provided, however, that the Company shall not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Prospectus, the Registration Statement
or any Prospectus or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by any Underwriter
through Xxxxxxx Xxxxx International expressly for use therein.
(b) Each Underwriter will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, the Registration Statement or any
Prospectus, or any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
in each case to the extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission was made in any
Preliminary Prospectus, the Registration Statement or any Prospectus or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through Xxxxxxx Xxxxx
International expressly for use therein; and will reimburse the Company for any
legal or other expenses reasonably incurred by the Company in connection with
investigating or defending any such action or claim as such expenses are
incurred.
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(c) Promptly after receipt by an indemnified party under subsection (a)
or (b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and,
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under such subsection for any legal expenses of
other counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the written consent
of the indemnified party, effect the settlement or compromise of, or consent to
the entry of any judgment with respect to, any pending or threatened action or
claim in respect of which indemnification or contribution may be sought under
this Section 9 (whether or not the indemnified party is an actual or potential
party to such action or claim) unless such settlement, compromise or judgment
(i) includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to act, by or
on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 9 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
on the other from the offering of the Securities contemplated by the Initial
Offering Prospectus. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law or if the indemnified
party failed to give the notice required under subsection (c) above, then each
indemnifying party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company on the one hand and
the Underwriters on the other in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities (or actions in
respect thereof), as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the Underwriters
on the other shall be deemed to be in the same proportion as the total net
proceeds from the offering (before deducting expenses) received by the Company
bear to the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover page of the
Initial Offering Prospectus. The relative fault shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company on the one hand or the
Underwriters on the other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and equitable
if contribution pursuant to this subsection (d) were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this subsection (d). The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to above in this
subsection
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(d) shall be deemed to include any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this subsection (d), no
Underwriter shall 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 such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations in
this subsection (d) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(e) The obligations of the Company under this Section 9 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section 9 shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each officer and director of the Company and to each
person, if any, who controls the Company within the meaning of the Act.
10. (a) If any Underwriter shall default in its obligation to purchase
the Securities which it has agreed to purchase hereunder, you may in your
discretion arrange for you or another party or other parties to purchase such
Securities on the terms contained herein. If within thirty-six hours after such
default by any Underwriter you do not arrange for the purchase of such
Securities, then the Company shall be entitled to a further period of thirty-six
hours within which to procure another party or other parties satisfactory to you
to purchase such Securities on such terms. In the event that, within the
respective prescribed periods, you notify the Company that you have so arranged
for the purchase of such Securities, or the Company notifies you that it has so
arranged for the purchase of such Securities, you or the Company shall have the
right to postpone the Time of Delivery for a period of not more than seven days,
in order to effect whatever changes may thereby be made necessary in the
Registration Statement or the Prospectus, or in any other documents or
arrangements, and the Company agrees to file promptly any amendments to the
Registration Statement or the Prospectus which in your opinion may thereby be
made necessary. The term "Underwriter" as used in this Agreement shall include
any person substituted under this Section with like effect as if such person had
originally been a party to this Agreement with respect to such Securities.
(b) If, after giving effect to any arrangements for the purchase of the
Securities of a defaulting Underwriter or Underwriters by you and the Company as
provided in subsection (a) above, the aggregate principal amount of such
Securities which remains unpurchased does not exceed one-eleventh of the
aggregate principal amount of all the Securities, then the Company shall have
the right to require each non-defaulting Underwriter to purchase the principal
amount of Securities which such Underwriter agreed to purchase hereunder and, in
addition, to require each non-defaulting Underwriter to purchase its pro rata
share (based on the principal amount of Securities which such Underwriter agreed
to purchase hereunder) of the Securities of such defaulting Underwriter or
Underwriters for which such arrangements have not been made; but nothing herein
shall relieve a defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Securities of a defaulting Underwriter or Underwriters by you and the Company as
provided in subsection (a) above, the aggregate principal amount of Securities
which remains unpurchased exceeds one-eleventh of the aggregate
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principal amount of all the Securities, or if the Company shall not exercise the
right described in subsection (b) above to require non-defaulting Underwriters
to purchase Securities of a defaulting Underwriter or Underwriters, then this
Agreement shall thereupon terminate, without liability on the part of any
non-defaulting Underwriter or the Company, except for the expenses to be borne
by the Company and the Underwriters as provided in Section 7 hereof and the
indemnity and contribution agreement in Section 9 hereof; but nothing herein
shall relieve a defaulting Underwriter from liability for its default.
11. The respective indemnities, agreements, representations, warranties
and other statements of the Company and the several Underwriters, as set forth
in this Agreement or made by or on behalf of them, respectively, pursuant to
this Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company,
or any officer or director or controlling person of the Company, and shall
survive delivery of and payment for the Securities.
Anything herein to the contrary notwithstanding, the indemnity
agreement of the Company in subsection (a) of Section 9 hereof, the
representations and warranties in subsections (b) and (c) of Section 1 hereof
and any representation or warranty as to the accuracy of the Registration
Statement or any Prospectus contained in any certificate furnished by the
Company pursuant to Section 8 hereof, insofar as they may constitute a basis for
indemnification for liabilities (other than payment by the Company of expenses
incurred or paid in the successful defense of any action, suit or proceeding)
arising under the Act, shall not extend to the extent of any interest therein of
a controlling person or partner of an Underwriter who is a director or officer
of the Company who signed the Registration Statement or a controlling person of
the Company when the Registration Statement has become effective, except in each
case to the extent that an interest of such character shall have been determined
by a court of appropriate jurisdiction as not against public policy as expressed
in the Act. Unless in the opinion of counsel for the Company the matter has been
settled by controlling precedent, the Company will, if a claim for such
indemnification is asserted, submit to a court of appropriate jurisdiction the
question of whether such interest is against public policy as expressed in the
Act and will be governed by the final adjudication of such issue.
12. If this Agreement shall be terminated pursuant to Section 10
hereof, the Company shall not then be under any liability to any Underwriter
except as provided in Sections 7 and 9 hereof; but, if for any other reason, the
Securities are not delivered by or on behalf of the Company as provided herein,
the Company will reimburse the Underwriters through you for all out-of-pocket
expenses approved in writing by you, including fees and disbursements of
counsel, reasonably incurred by the Underwriters in making preparations for the
purchase, sale and delivery of the Securities, but the Company shall then be
under no further liability to any Underwriter except as provided in Sections 7
and 9 hereof.
13. In all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by you jointly or by Xxxxxxx Xxxxx International on behalf of you as the
representatives.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to you as the representatives in care of Xxxxxxx Xxxxx
International, Peterborough Court, 000 Xxxxx Xxxxxx, Xxxxxx XX0X 0XX, Xxxxxxx,
Attention: Registration Department; and if to the Company shall be delivered or
sent
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by mail, telex or facsimile transmission to the address of the Company set forth
in the Registration Statement, Attention: Secretary; provided, however, that any
notice to an Underwriter pursuant to Section 9(c) hereof shall be delivered or
sent by mail, telex or facsimile transmission to such Underwriter at its address
set forth in its Underwriters' Questionnaire, or telex constituting such
Questionnaire, which address will be supplied to the Company by you upon
request. Any such statements, requests, notices or agreements shall take effect
upon receipt thereof.
14. This Agreement shall be binding upon, and inure solely to the
benefit of, the Underwriters, the Company and, to the extent provided in
Sections 9 and 11 hereof, the officers and directors of the Company and each
person who controls the Company or any Underwriter, and their respective heirs,
executors, administrators, successors and assigns, and no other person shall
acquire or have any right under or by virtue of this Agreement. No purchaser of
any of the Securities from any Underwriter shall be deemed a successor or assign
by reason merely of such purchase.
15. In respect of any judgment or order given or made for any amount
due hereunder that is expressed and paid in a currency (the "judgment currency")
other than United States dollars, the Company will indemnify each Underwriter
against any loss incurred by such Underwriter as a result of any variation as
between (i) the rate of exchange at which the United States dollar amount is
converted into the judgment currency for the purpose of such judgment or order
and (ii) the rate of exchange at which an Underwriter is able to purchase United
States dollars, as soon as is practicable after the date of such judgment, with
the amount of judgment currency actually received by such Underwriter. The
foregoing indemnity shall constitute a separate and independent obligation of
the Company and shall continue in full force and effect notwithstanding any such
judgment or order as aforesaid. The term "rate of exchange" shall include any
premiums and costs of exchange payable in connection with the purchase of or
conversion into United States dollars.
16. Time shall be of the essence of this Agreement. As used herein, the
term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
17. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
18. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such respective counterparts shall together constitute one and
the same instrument.
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If the foregoing is in accordance with your understanding, please sign
and return to us_____ counterparts hereof, and upon the acceptance hereof by
you, on behalf of each of the Underwriters, this letter and such acceptance
hereof shall constitute a binding agreement among each of the Underwriters and
the Company. It is understood that your acceptance of this letter on behalf of
each of the Underwriters is pursuant to the authority set forth in a form of
Agreement among Underwriters, the form of which shall be submitted to the
Company for examination upon request, but without warranty on your part as to
the authority of the signers thereof.
Very truly yours,
The Xxxxxxx Xxxxx Group, Inc.
By:
--------------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
Accepted as of the date hereof at ,
------------
Xxxxxxx Xxxxx International
[INSERT NAMES OF OTHER REPRESENTATIVES]
By:
----------------------------------------------------
(Xxxxxxx Xxxxx International)
On behalf of each of the Underwriters
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SCHEDULE I
PRINCIPAL
AMOUNT OF
SECURITIES
TO BE
UNDERWRITER PURCHASED
----------- ------------
Xxxxxxx Xxxxx International (euro)
[INSERT NAMES OF OTHER REPRESENTATIVES]
[NAMES OF OTHER UNDERWRITERS]
--------------------
Total (euro) 1,000,000,000
====================
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ANNEX I
Pursuant to Section 8(f) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with
respect to Group and its subsidiaries and the Company within the
meaning of the Act and the applicable rules and regulations adopted by
the Commission;
(ii) In their opinion, the financial statements, the Selected
Consolidated Financial Data with respect to the consolidated results of
operations and financial position of Group for the five most recent
fiscal years, management's discussion and analysis of financial
condition and results of operations and any supplementary financial
information and schedules (and, if applicable, financial forecasts
and/or pro forma financial information) examined by them and included
in the Prospectus or the Registration Statement comply as to form in
all material respects with the applicable accounting requirements of
the Act, Item 301 of Regulation S-K under the Act, Item 303 of
Regulation S-K under the Act and the related rules and regulations
adopted by the Commission; and, if applicable, they have made an
examination or a review in accordance with standards established by the
American Institute of Certified Public Accountants of the unaudited
consolidated interim financial statements, selected financial data, pro
forma financial information, financial forecasts, management's
discussion and analysis of financial condition and results of
operations and/or condensed financial statements derived from audited
financial statements of the Company for the periods specified in such
letter, as indicated in their reports thereon, copies of which have
been furnished to the representatives of the Underwriters (the
"Representatives");
(iii) They have made a review in accordance with standards
established by the American Institute of Certified Public Accountants
of the unaudited condensed consolidated statements of earnings,
consolidated statements of financial condition, consolidated statements
of changes in partners' capital and consolidated statements of cash
flows included in the Prospectus as indicated in their reports thereon
copies of which have been furnished to the Representatives; and on the
basis of specified procedures including inquiries of officials of Group
who had responsibility for financial and accounting matters regarding
whether the unaudited condensed consolidated financial statements
referred to in paragraph (vi)(A)(i) below comply as to form in all
material respects with the applicable accounting requirements of the
Act and the related rules and regulations adopted by the Commission,
nothing came to their attention that cause them to believe that the
unaudited condensed consolidated financial statements do not comply as
to form in all material respects with the applicable accounting
requirements of the Act and the related rules and regulations adopted
by the Commission;
(iv) The unaudited selected financial information with respect
to the consolidated results of operations and financial position of
Group for any interim period included in the Prospectus agrees with the
corresponding amounts (after restatements where applicable) in the
unaudited consolidated financial statements for such interim period(s);
(v) They have compared the information in the Prospectus under
selected captions with the disclosure requirements of Regulation S-K
and on the basis of limited procedures specified in such letter nothing
came to their attention as a result of the foregoing procedures that
caused them to believe that this information does not conform in all
material respects with the disclosure requirements of Items 301, 302
and 402, respectively, of Regulation S-K;
27
(vi) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available
interim financial statements of Group and its subsidiaries, inspection
of the minute books of the Management Committee of Group and of the
Board of Directors of the Company and of the general partner, of
Xxxxxxx, Xxxxx & Co. since the date of the latest audited financial
statements included in the Prospectus, inquiries of officials of Group
and its subsidiaries responsible for financial and accounting matters
and such other inquiries and procedures as may be specified in such
letter, nothing came to their attention that caused them to believe
that:
(A) (i) the unaudited consolidated statements of
earnings, consolidated statements of financial position,
consolidated statements of changes in partners' capital and
consolidated statements of cash flows included in the
Prospectus do not comply as to form in all material respects
with the applicable accounting requirements of the Act and the
related rules and regulations adopted by the Commission, or
(ii) any material modifications should be made to the
unaudited condensed consolidated statements of earnings,
consolidated statements of financial position, consolidated
statements of changes in partners' capital and consolidated
statements of cash flows included in the Prospectus for them
to be in conformity with generally accepted accounting
principles;
(B) any other unaudited statement of earnings data
and statement of financial position items included in the
Prospectus do not agree with the corresponding items in the
unaudited consolidated financial statements from which such
data and items were derived, and any such unaudited data and
items were not determined on a basis substantially consistent
with the basis for the corresponding amounts in the audited
consolidated financial statements included in the Prospectus;
(C) the unaudited financial statements which were not
included in the Prospectus but from which were derived any
unaudited condensed financial statements referred to in clause
(A) and any unaudited statement of earnings data and statement
of financial position items included in the Prospectus and
referred to in clause (B) were not determined on a basis
substantially consistent with the basis for the audited
consolidated financial statements included in the Prospectus;
(D) any unaudited pro forma consolidated condensed
financial statements included in the Prospectus do not comply
as to form in all material respects with the applicable
accounting requirements of the Act and the published rules and
regulations thereunder or the pro forma adjustments have not
been properly applied to the historical amounts in the
compilation of those statements;
(E) as of a specified date not more than five days
prior to the date of such letter, there have been any changes
in the partners' capital or any increase in the consolidated
long-term debt of the Company and its subsidiaries, or any
decreases in consolidated net current assets or other items
specified by the Representatives, or any increases in any
items specified by the Representatives, in each case as
compared with amounts shown in the latest balance sheet
included in the Prospectus, except in each
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case for changes, increases or decreases which the Prospectus
discloses have occurred or may occur or which are described in
such letter; and
(F) for the period from the date of the latest
financial statements included in the Prospectus to the
specified date referred to in clause (E) there were any
decreases in consolidated total revenues or consolidated
revenues, net of interest expense, or pre-tax earnings or
other items specified by the Representatives, or any increases
in any items specified by the Representatives, in each case as
compared with the comparable period of the preceding year and
with any other period of corresponding length specified by the
Representatives, except in each case for decreases or
increases which the Prospectus discloses have occurred or may
occur or which are described in such letter; and
(vii) In addition to the examination referred to in their
report(s) included in the Prospectus and the limited procedures,
inspection of minute books, inquiries and other procedures referred to
in paragraphs (iii) and (vi) above, they have carried out certain
specified procedures, not constituting an examination in accordance
with generally accepted auditing standards, with respect to certain
amounts, percentages and financial information specified by the
Representatives, which are derived from the general accounting records
of Group and its subsidiaries, which appear in the Prospectus, or in
Part II of, or in exhibits and schedules to, the Registration Statement
specified by the Representatives, and have compared certain of such
amounts, percentages and financial information with the accounting
records of Group and its subsidiaries and have found them to be in
agreement.
3
