EXHIBIT 1.1
XXXXX CAPITAL
____% CUMULATIVE QUARTERLY INCOME PREFERRED SECURITIES ("QUIPS")
(LIQUIDATION AMOUNT $25 PER PREFERRED SECURITY)
_______________
UNDERWRITING AGREEMENT
----------------------
______________, 1995
Xxxxxxx, Xxxxx & Co.,
Xxxx. Xxxxx & Sons Incorporated,
Xxxxxx Brothers Inc.,
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated,
Xxxxx Xxxxxx Inc.
As representatives of the several Underwriters
named in Schedule I hereto,
c/x Xxxxxxx, Xxxxx & Co.,
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
Ladies and Gentlemen:
Xxxxx Capital, a statutory business trust formed under the laws of the State
of Delaware (the "Trust"), and The Xxxxx Company, a Maryland corporation, as
depositor of the Trust and as guarantor ("Xxxxx"), propose, subject to the terms
and conditions stated herein, that the Trust issue and sell to the Underwriters
named in Schedule I hereto (the "Underwriters") an aggregate of 4,000,000 (the
"Firm Securities") and, at the election of the Underwriters, up to an additional
600,000 (the "Optional Securities") .....% Cumulative Quarterly Income Preferred
Securities (liquidation amount $25 per preferred security) representing
undivided beneficial interests in the assets of the Trust, guaranteed on a
subordinated basis by Xxxxx as to the payment of distributions, and as to
payments on liquidation or redemption, to the extent set forth in a guarantee
agreement (the "Guarantee") between Xxxxx and The First National Bank of
Chicago, as trustee (the "Guarantee Trustee"). The Firm Securities and the
Optional Securities that the Underwriters elect to purchase pursuant to Section
2 hereof are referred to collectively as the "Securities". The Trust is to
purchase, with the proceeds of the sale of the Securities and up to 123,712 (or
142,268 assuming full exercise by the Underwriters of the over-allotment option
described herein) of its Common Securities (liquidation amount $25 per common
security) (the "Common Securities"), .....% Junior Subordinated Debentures due
2025 (the "Subordinated Debentures") of Xxxxx, to be issued pursuant to an
Indenture (the "Indenture") between Xxxxx and The First National Bank of
Chicago, as trustee (the "Debenture Trustee").
1. Each of the Trust and Xxxxx, jointly and severally, represents and
warrants to, and agrees with, each of the Underwriters that:
(a) A registration statement on Form S-3 (File Nos. 33-63279 and 33-63279-01)
(the "Initial Registration Statement") in respect of the Securities, the
Subordinated Debentures and the Guarantee (collectively, the "Registered
Securities") has been filed with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Act"); the
Initial Registration Statement and any post-effective amendment thereto, each in
the form heretofore delivered to you, and, excluding exhibits thereto but
including all documents incorporated by reference in the prospectus contained
therein, 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 Act which became effective upon filing,
no other document with respect to the Initial Registration Statement or document
incorporated by reference therein has heretofore been filed, or transmitted for
filing, 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 462(b) Registration
Statement, if any, including all exhibits thereto and including (i) the
information contained in the form of final prospectus filed with the Commission
pursuant to Rule 424(b) under the Act in accordance with Section 5(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 and (ii) the
documents incorporated by reference in the prospectus contained in the
registration statement at the time such part of the registration statement
became effective, each as amended at the time such part of the 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"; such final prospectus, in the
form first filed pursuant to Rule 424(b) under the Act, is hereinafter called
the "Prospectus"; any reference herein to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the Act, as of the date
of such Preliminary Prospectus or Prospectus, as the case may be; and any
reference to any amendment or supplement to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include any documents filed after the
date of such Preliminary Prospectus or Prospectus, as the case may be, under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
incorporated by reference in such Preliminary Prospectus or Prospectus, as the
case may be; and any reference to any amendment to the Registration Statement
shall be deemed to refer to and include any annual report of Xxxxx filed
pursuant to Section 13(a) or 15(d) of the Exchange Act after the effective date
of the Initial Registration Statement that is incorporated by reference in the
Registration Statement);
(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 rules and regulations of the Commission thereunder, and did not
contain an untrue statement of a
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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 and in conformity with information furnished in writing to the
Trust and Xxxxx by an Underwriter through Xxxxxxx, Xxxxx & Co. expressly for use
therein;
(c) The documents incorporated by reference in the Prospectus, when they
became effective or were filed with the Commission, as the case may be,
conformed in all material respects to the requirements of the Act or the
Exchange Act, as applicable, and the rules and regulations of the Commission
thereunder, and none of such documents 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; and any further
documents so filed and incorporated by reference in the Prospectus or any
further amendment or supplement thereto, when such documents become effective or
are filed with the Commission, as the case may be, will conform in all material
respects to the requirements of the Act or the Exchange Act, as applicable, and
the rules and regulations of the Commission thereunder and will not contain an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading;
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 Trust and Xxxxx by an Underwriter through Xxxxxxx,
Xxxxx & Co. expressly for use therein;
(d) The Registration Statement conforms, and the Prospectus and any further
amendments or supplements to the Registration Statement or the Prospectus will
conform, in all material respects to the requirements of the Act and the Trust
Indenture Act of 1939, as amended (the "TIA"), 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 the Prospectus and any amendment or
supplement thereto, contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein 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 Trust and
Xxxxx by an Underwriter through Xxxxxxx, Xxxxx & Co. expressly for use therein;
(e) Neither the Trust nor Xxxxx and its subsidiaries, taken as a whole, has
sustained since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus 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 Prospectus, there has not been any change in the
capital stock (other than issuances of capital stock pursuant to bonus stock
awards granted in the ordinary course of business, or upon exercise of options
and stock appreciation rights and upon conversions of convertible securities, in
each case, except with respect to bonus stock awards granted in the ordinary
course of business, which were
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outstanding as of the date of the latest audited financial statements included
or incorporated by reference in the Prospectus), or any material and adverse
change in the long-term debt of Xxxxx and its subsidiaries, taken as a whole (it
being understood that, absent unusual circumstances, an increase in long-term
debt of Xxxxx and its subsidiaries, taken as a whole, of less than 5% would not
be a material and adverse change to Xxxxx and its subsidiaries, taken as a
whole), or any material and adverse change, or any development involving a
prospective material adverse change, in or affecting the general affairs,
management, financial position or securityholders' equity of the Trust or
general affairs, management, current value basis shareholders' equity or results
of operations (based on earnings before depreciation and deferred taxes from
operations) of Xxxxx and its subsidiaries, taken as a whole, otherwise than as
set forth or contemplated in the Prospectus;
(f) Xxxxx and its subsidiaries have, or in those cases where such subsidiary
is a general partner in a partnership, such partnership has, good and marketable
fee simple and/or leasehold title (as the case may be) to all real property
(except for those lesser estates in real property which, in the aggregate, are
not material in value to Xxxxx and its subsidiaries, taken as a whole), subject
only to (i) those liens and encumbrances which have been reflected generally or
in the aggregate in the financial statements of Xxxxx as disclosed in the
Prospectus or as are described specifically, generally or in the aggregate in
the Prospectus, or (ii) such liens and encumbrances (A) not required by
generally accepted accounting principles to be disclosed in the financial
statements of Xxxxx which (1) if all material covenants and conditions thereof
are observed or performed, will not materially interfere with the use made or
proposed to be made of such property by Xxxxx and its subsidiaries or (2) are
reasonable and customary with regard to the normal operation of land and
improvements held for commercial purposes by first class owners and operators of
commercial real estate, or (B) which were incurred after the date of the latest
audited financial statements included or incorporated by reference in the
Prospectus in the ordinary course of business (including financings) and which,
in the aggregate (on a net basis), are not material to Xxxxx and its
subsidiaries, taken as a whole. Xxxxx and its subsidiaries have title to the
personal property owned by it or them and, subject to the continued performance
of the material covenants and conditions of liens and encumbrances thereon, have
the right to use such personal property without interference in the normal
course of business, except for such interference as would not have a material
adverse effect on Xxxxx and its subsidiaries taken as a whole;
(g) The Trust has been duly created and is validly existing as a statutory
business trust in good standing under the Business Trust Act of the State of
Delaware (the "Delaware Business Trust Act") with the power and authority (trust
and other) to own property and conduct its business as described in the
Prospectus, and has conducted and will conduct no business other than the
transactions contemplated by this Agreement and described in the Prospectus; the
Trust is not a party to or bound by any agreement or instrument other than this
Agreement, the Amended and Restated Trust Agreement (the "Trust Agreement")
between Xxxxx and the trustees named therein (the "Trustees") and the agreements
and instruments contemplated by the Trust Agreement and described in the
Prospectus; the Trust has no liabilities or obligations other than those arising
out of the transactions contemplated by this Agreement and the Trust Agreement
and described in the Prospectus; based on expected operations and current law,
the Trust is not and will not
4
be classified as an association taxable as a corporation for United States
federal income tax purposes; and the Trust is not a party to or subject to any
action, suit or proceeding of any nature;
(h) Xxxxx has been duly incorporated and is validly existing as a corporation
in good standing under the laws of Maryland, with power and authority (corporate
and other) to own its properties and conduct its business as described in the
Prospectus, 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 the failure so to qualify and maintain good standing would
have a material adverse effect on Xxxxx and its subsidiaries, taken as a whole;
and each subsidiary of Xxxxx has been duly incorporated and is validly existing
as a corporation in good standing under the laws of its jurisdiction of
incorporation except for such failures to maintain good standing as would not
have a material adverse effect on Xxxxx and its subsidiaries, taken as a whole;
(i) Xxxxx has an authorized capitalization as set forth in the Prospectus,
and all of the issued shares of capital stock of Xxxxx have been duly and
validly authorized and issued and are fully paid and non-assessable; and all of
the outstanding beneficial interests in the assets of the Trust have been duly
authorized and issued, are fully paid and non-assessable and conform to the
descriptions thereof contained in the Prospectus; and all of the issued shares
of capital stock of each corporate subsidiary and partnership interests of each
partnership subsidiary of Xxxxx have been duly and validly authorized and
issued, are fully paid and non-assessable and are owned (with exceptions that
are not material to Xxxxx and its subsidiaries, taken as a whole) directly or
indirectly by Xxxxx, free and clear of all liens, encumbrances, security
interests, equities or claims (collectively, "Liens") except (i) Liens relating
to debt which have been disclosed specifically, generally or in the aggregate in
the Prospectus or incurred after the date of the latest audited financial
statements included or incorporated by reference in the Prospectus in the
ordinary course of business (including financings), (ii) Liens incurred in the
ordinary course of business which are not materially adverse to the operations
of Xxxxx and its subsidiaries, taken as a whole, and (iii) restrictions on the
transfer or use of the stock of any corporate subsidiary under any partnership,
joint venture or lease agreements to which Xxxxx or any of its subsidiaries is a
party;
(j) The Securities have been duly and validly authorized by the Trust, and,
when issued and delivered against payment therefor as provided herein, will be
duly and validly issued and fully paid and non-assessable undivided beneficial
interests in the assets of the Trust and will conform to the description thereof
contained in the Prospectus; the issuance of the Securities is not subject to
preemptive or other similar rights; the Securities will have the rights set
forth in the Trust Agreement, and the terms of the Securities are valid and
binding on the Trust; the holders of the Securities (the "Securityholders") will
be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware;
(k) The Common Securities have been duly and validly authorized by the Trust
and upon delivery by the Trust to Xxxxx against payment therefor as described in
the Prospectus, will be duly and validly issued undivided beneficial interests
in the assets of the Trust and will conform to the description thereof contained
in the Prospectus; the issuance of the Common Securities is not subject to
preemptive or other similar rights; and at each
5
Time of Delivery (as defined in Section 4 hereof), all of the issued and
outstanding Common Securities of the Trust will be directly owned by Xxxxx free
and clear of any Lien; and the Common Securities and the Securities are the only
interests authorized to be issued by the Trust;
(l) The Guarantee, the Subordinated Debentures, the Trust Agreement, the
Agreement as to Expenses and Liabilities between Xxxxx and the Trust (the
"Expense Agreement") and the Indenture (collectively, the "Guarantor
Agreements") have each been duly authorized and when validly executed and
delivered by Xxxxx and, in the case of the Guarantee, by the Guarantee Trustee,
in the case of the Trust Agreement, by the Trustees and, in the case of the
Indenture, by the Debenture Trustee, and, in the case of the Subordinated
Debentures, when validly authenticated and delivered by the Debenture Trustee,
will constitute valid and legally binding obligations of Xxxxx, enforceable in
accordance with their respective terms, subject, as to enforcement, to
bankruptcy, insolvency, moratorium, reorganization and similar laws of general
applicability relating to or affecting creditors' rights and to general equity
principles (whether considered at a proceeding in equity or at law); the Trust
Agreement, the Indenture and the Guarantee have been duly qualified under the
TIA; the Subordinated Debentures are entitled to the benefits of the Indenture;
and the Guarantor Agreements will conform to the descriptions thereof in the
Prospectus;
(m) The issue and sale of the Securities and the Common Securities by the
Trust, the compliance by the Trust with all of the provisions of this Agreement,
the purchase of the Subordinated Debentures by the Trust, the distribution of
the Subordinated Debentures by the Trust in the circumstances contemplated by
the Trust Agreement and the consummation of the transactions contemplated herein
and in the Trust Agreement 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 agreement or instrument to which the Trust is a party or by which the Trust
is bound or to which any of the property or assets of the Trust is subject, nor
will such actions result in any violation of the provisions of the Trust
Agreement or any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Trust or any of its
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 and the Common Securities by
the Trust, the purchase of the Subordinated Debentures by the Trust or the
consummation by the Trust of the transactions contemplated by this Agreement and
the Trust Agreement, except the registration under the Act and the Exchange Act
of the Registered Securities, the qualification of the Trust Agreement, the
Indenture and the Guarantee under the TIA, 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;
(n) The issue and sale of the Securities and the Common Securities by the
Trust, the issuance by Xxxxx of the Guarantee, the compliance by Xxxxx and the
Trust with all of the provisions of this Agreement, the execution, delivery and
performance by Xxxxx of the Guarantor Agreements, the distribution of the
Subordinated Debentures by the Trust in the circumstances contemplated by the
Trust 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 Xxxxx or any of its subsidiaries is a party or by which Xxxxx
6
or any of its subsidiaries is bound or to which any of the property or assets of
Xxxxx or any of its subsidiaries is subject except for such conflict, breach,
violation or default which does not have a material adverse effect on Xxxxx and
its subsidiaries, taken as a whole, nor will such action require a consent or
approval of any holder of Xxxxx'x capital stock or result in any violation of
the provisions of the Articles of Incorporation (or any articles supplementary
thereto) or by-laws of Xxxxx or the charter or by-laws of any of its corporate
subsidiaries or any organizational document of any other subsidiary or any
statute or any order, rule or regulation of any court or governmental agency or
body having jurisdiction over Xxxxx or any of its 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 of the Guarantee, the issuance and sale of the
Subordinated Debentures, the distribution of the Subordinated Debentures by the
Trust in the circumstances contemplated by the Trust Agreement or the
consummation by Xxxxx of the other transactions contemplated by this Agreement
and the Guarantor Agreements, except the registration under the Act of the
Registered Securities and the qualification of the Trust Agreement, the
Indenture and the Guarantee under the TIA and such consents, approvals,
authorizations, registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase of the Securities
and distribution of the Securities by the Underwriters;
(o) Other than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which Xxxxx or any of its subsidiaries is a
party or to which any property of Xxxxx or any of its subsidiaries, is subject,
which are likely, individually or in the aggregate, to have a material adverse
effect on Xxxxx and its subsidiaries, taken as a whole, and, to the best of
Xxxxx'x knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(p) Neither the Trust nor Xxxxx is nor, after giving effect to the offering
and sale of the Securities, will be an "investment company" or an entity
"controlled" by an "investment company", as such terms are defined in the
Investment Company Act of 1940, as amended (the "Investment Company Act");
(q) Neither the Trust, Xxxxx nor any of Xxxxx'x affiliates does business with
the government of Cuba or with any person or affiliate located in Cuba within
the meaning of Section 517.075, Florida Statutes;
(r) There are no contracts, agreements or understandings between the Trust or
Xxxxx and any person that grant such person the right to require the Trust or
Xxxxx to file a registration statement under the Act with respect to any
beneficial interests in the assets of the Trust owned or to be owned by such
person or to require the Trust or Xxxxx to include such securities in the
securities registered pursuant to the Registration Statement or in any
securities being registered pursuant to any other registration statement filed
by the Trust or Xxxxx under the Act; and
(s) KPMG Peat Marwick LLP, who have certified certain financial statements of
Xxxxx and its subsidiaries, are independent public accountants as required by
the Act and the rules and regulations of the Commission thereunder.
7
2. Subject to the terms and conditions herein set forth, (a) the Trust and
Xxxxx agree that the Trust shall issue and sell to each of the Underwriters, and
each of the Underwriters agrees, severally and not jointly, to purchase from the
Trust, at a purchase price per share of $................. per Security, the
number of Firm Securities set forth opposite the name of such Underwriter in
Schedule I hereto and (b) in the event and to the extent that the Underwriters
shall exercise the election to purchase Optional Securities as provided below,
the Trust and Xxxxx agree to issue and sell to each of the Underwriters, and
each of the Underwriters agrees, severally and not jointly, to purchase, at the
purchase price per Security set forth in clause (a) of this Section 2, that
portion of the number of Optional Securities as to which such election shall
have been exercised (to be adjusted by you so as to eliminate fractional
Securities) determined by multiplying such number of Optional Securities by a
fraction, the numerator of which is the maximum number of Optional Securities
which such Underwriter is entitled to purchase as set forth opposite the name of
such Underwriter in Schedule I hereto and the denominator of which is the
maximum number of Optional Securities that all of the Underwriters are entitled
to purchase hereunder.
The Trust and Xxxxx hereby grant to the Underwriters the right to purchase at
their election up to 600,000 Optional Securities, at the purchase price per
Security set forth in the paragraph above, for the sole purpose of covering
over-allotments in the sale of the Firm Securities. Any such election to
purchase Optional Securities may be exercised only by written notice from you to
Xxxxx, given within a period of 30 calendar days after the date of this
Agreement, setting forth the aggregate number of Optional Securities to be
purchased and the date on which such Optional Securities are to be delivered, as
determined by you but in no event earlier than the First Time of Delivery (as
defined in Section 4 hereof) or, unless you and Xxxxx otherwise agree in
writing, earlier than two or later than ten business days after the date of such
notice.
As compensation to the Underwriters for their commitments hereunder, and in
view of the fact that the proceeds of the sale of the Securities will be used by
the Trust to purchase the Subordinated Debentures of Xxxxx, Xxxxx at each Time
of Delivery will pay to Xxxxxxx, Xxxxx & Co., for the accounts of the several
Underwriters, an amount equal to $.............. per Security for the Securities
to be delivered by Xxxxx hereunder at such Time of Delivery.
3. Upon the authorization by you of the release of the Firm Securities,
the several Underwriters propose to offer the Firm Securities for sale upon the
terms and conditions set forth in the Prospectus.
4. (a) The Securities to be purchased by each Underwriter hereunder
will be represented by one or more definitive global Securities in book-
entry form which will be deposited by or on behalf of the Trust with The
Depository Trust Company ("DTC") or its designated custodian. The Trust
will deliver the Securities to Xxxxxxx, Xxxxx & Co., for the account of
each Underwriter, against payment by or on behalf of such Underwriter of
the purchase price therefor in next day funds, by causing DTC to credit
the Securities to the account of Xxxxxxx, Xxxxx & Co. at DTC. The Trust
will cause the certificates representing the Securities to be made
available to Xxxxxxx, Xxxxx & Co. for checking at least twenty-four hours
prior to the Time of Delivery at the office of DTC or its designated
custodian (the
8
"Designated Office"). The time and date of such delivery and payment shall
be, with respect to the Firm Securities, 9:30 a.m., New York time, on
...................., 1995 or such other time and date as Xxxxxxx, Xxxxx &
Co. and Xxxxx may agree upon in writing, and, with respect to the Optional
Securities, 9:30 a.m., New York time, on the date specified by Xxxxxxx,
Xxxxx & Co. in the written notice given by Xxxxxxx, Xxxxx & Co. of the
Underwriters' election to purchase such Optional Securities, or such other
time and date as Xxxxxxx, Xxxxx & Co. and Xxxxx may agree upon in writing.
Such time and date for delivery of the Firm Securities is herein called the
"First Time of Delivery", such time and date for delivery of the Optional
Securities, if not the First Time of Delivery, is herein called the "Second
Time of Delivery", and each such time and date for delivery is herein
called a "Time of Delivery".
At each Time of Delivery, Xxxxx will pay, or cause to be paid, the
commission payable at such Time of Delivery to the Underwriters under
Section 2 hereof in next day funds.
(b) The documents to be delivered at each Time of Delivery by or on
behalf of the parties hereto pursuant to Section 7 hereof, including the
cross-receipt for the Securities and any additional documents requested by
the Underwriters pursuant to Section 7(n) hereof, and the check or checks
specified in subsection (a) above, will be delivered at the offices of
Xxxxxxxx & Xxxxxxxx, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the
"Closing Location"), and the Securities will be delivered at the Designated
Office, all at such Time of Delivery. A meeting will be held at the
Closing Location at ......... p.m., New York City time, on the New York
Business Day next preceding such 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 is not a day on which banking
institutions in New York are generally authorized or obligated by law or
executive order to close.
5. The Trust and Xxxxx, jointly and severally, agree with each of the
Underwriters:
(a) To prepare the Prospectus in a form approved by you and to file such
Prospectus pursuant to Rule 424(b) under the Act not later than the close
of business on the 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 Prospectus prior to the last
Time of Delivery 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 Prospectus or any
amended Prospectus has been filed and to furnish you with copies thereof;
in the case of Xxxxx, to file promptly all reports and any definitive proxy
or information statements required to be filed by Xxxxx with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act
subsequent to the date of the Prospectus and for so long as the delivery of
a prospectus is required in connection with the offering or
9
sale of the Securities; 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 Registered
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 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 relating to the Registered
Securities or suspending any such qualification, promptly to 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 Registered 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
neither the Trust nor Xxxxx shall 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 use
its best efforts to furnish the Underwriters with copies of the Prospectus
in New York 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 Prospectus in connection with
the offering or sale of the Securities and if at such time any event shall
have occurred as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or omit
to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made when
such Prospectus is delivered, not misleading, or, if for any other reason
it shall be necessary during such period to amend or supplement the
Prospectus or to file under the Exchange Act any document incorporated by
reference in the Prospectus in order to comply with the Act, the Exchange
Act or the TIA, to notify you and upon your request to file such document
and 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 Prospectus or a supplement to the 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 months or more after the
time of issue of the 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 Prospectus complying with
Section 10(a)(3) of the Act;
(d) In the case of Xxxxx, to make generally available to its shareholders
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
10
earnings statement of Xxxxx and its subsidiaries (which need not be
audited) complying with Section 11(a) of the Act and the rules and
regulations thereunder (including, at the option of Xxxxx, as the case may
be, Rule 158);
(e) During the period beginning from the date hereof and continuing to
and including the earlier of (i) the date, after the First Time of
Delivery, on which the distribution of the Securities ceases, as determined
by you, and (ii) 90 days after the First Time of Delivery, not to offer,
sell, contract to sell or otherwise dispose of, any other beneficial
interests in the Trust, or any other securities of the Trust or Xxxxx, as
the case may be, that are substantially similar to the Securities
(including any guarantee of such Securities) or any securities that are
convertible into or exchangeable for, or that represent the right to
receive, any such substantially similar securities of either the Trust or
Xxxxx, without the prior written consent of Xxxxxxx, Xxxxx & Co.;
(f) To furnish to Securityholders as soon as practicable after the end of
each fiscal year ending prior to the third anniversary of the First Time of
Delivery an annual report (including a balance sheet and statements of
income, securityholders' equity and cash flows of Xxxxx and its
consolidated subsidiaries certified by independent public accountants) and,
as soon as practicable after the end of each of the first three quarters of
each fiscal year (beginning with the fiscal quarter ending after the
effective date of the Registration Statement), consolidated summary
financial information of Xxxxx and its subsidiaries for such quarter in
reasonable detail;
(g) During a period of five years from the effective date of the
Registration Statement, to furnish to Xxxxxxx, Xxxxx & Co., on your behalf,
copies of all reports or other communications (financial or other)
furnished to shareholders of Xxxxx, and to deliver to you (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 any class of securities of the Trust or Xxxxx is listed;
and (ii) such additional information concerning the business and financial
condition of the Trust or Xxxxx as you may from time to time reasonably
request (such financial statements to be on a consolidated basis to the
extent the accounts of the Trust and Xxxxx and its subsidiaries are
consolidated in reports furnished to their securityholders generally or to
the Commission);
(h) In the case of Xxxxx, to issue the Guarantee concurrently with the
issue and sale of the Securities as contemplated herein;
(i) To use the net proceeds received by it from the sale of the
Securities, in the case of the Trust, and the Subordinated Debentures, in
the case of Xxxxx, pursuant to this Agreement in the manner specified in
the Prospectus under the caption "Use of Proceeds"; and
(j) To use all reasonable efforts to list the Securities on the New York
Stock Exchange.
6. Xxxxx covenants and agrees with the several Underwriters that Xxxxx
will pay or cause to be paid the following: (i) the fees, disbursements and
expenses of the Trust's and Xxxxx'x counsel and their accountants in connection
with the registration of the
11
Registered 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 Prospectus 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, the Trust Agreement, the Guarantee,
the Legal Investment and Blue Sky Memoranda, closing documents (including any
compilations thereof) and any other documents in connection with the offering,
purchase, sale and delivery of the Registered Securities; (iii) all expenses in
connection with the qualification of the Registered Securities for offering and
sale under state securities laws as provided in Section 5(b) hereof, including
the fees and disbursements of counsel for Xxxxx and the Trust in connection with
such qualification and in connection with the Legal Investment and Blue Sky
surveys; (iv) any fees charged by securities rating services for rating the
Securities; (v) all fees and expenses in connection with listing the Securities
on the New York Stock Exchange and the cost of registering the Securities under
Section 12 of the Exchange Act; (vi) the filing fees incident to, and the
reasonable fees and disbursements of counsel for the Underwriters in connection
with, securing any required review by the National Association of Securities
Dealers, Inc. of the terms of the sale of the Securities; (vii) the cost of
preparing certificates for the Securities and the Subordinated Debentures;
(viii) the cost and charges of any transfer agent or registrar; (ix) the cost
and charges of qualifying the Securities with The Depository Trust Company; (x)
the fees and expenses of the Trustees, the Debenture Trustee and Guarantee
Trustee and any agent thereof and the fees and disbursements of their counsel;
and (xi) 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 8 and 11 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.
7. The obligations of the Underwriters hereunder, as to the Securities to
be delivered at each Time of Delivery, shall be subject, in their discretion, to
the condition that all representations and warranties and other statements of
the Trust and Xxxxx herein are, at and as of such Time of Delivery, true and
correct, the condition that the Trust and Xxxxx shall have performed all of
their respective obligations hereunder theretofore to be performed, and the
following additional conditions:
(a) The 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; no stop order suspending the effectiveness of the Registration
Statement or any part thereof shall have been issued and no proceeding for
that purpose shall have been initiated or 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) Xxxxxxxx & Xxxxxxxx, counsel for the Underwriters, shall have
furnished to you such opinion or opinions (a draft of each such opinion is
attached as Xxxxx XX(a) hereto), dated such Time of Delivery, with respect
to: the incorporation of Xxxxx and the formation of the Trust; insofar as
the federal laws of the United States and the
12
laws of the State of New York or the State of Delaware are concerned, the
validity of the Registered Securities, the Registration Statement and the
Prospectus; and 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; provided that
in rendering such opinion, Xxxxxxxx & Xxxxxxxx may rely upon the opinion of
Xxxxxxxx, Xxxxxx & Xxxxxx delivered pursuant to subsection (e) hereof as to
certain matters of Delaware law and the opinion of Xxxxx & Xxxxxxx
delivered pursuant to subsection (f) hereof as to certain matters of
Maryland law;
(c) Xxxxx X. Xxxxxxxxxx, Vice President and General Counsel of Xxxxx
shall have furnished to you his written opinion (a draft of such opinion is
attached as Xxxxx XX(b) hereto) (which may be limited to the laws of the
State of Maryland and, with respect to clauses (viii)-(xiv) below, the
federal laws of the United States), dated such Time of Delivery, in form
and substance satisfactory to you, to the effect that:
(i) Xxxxx has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Maryland
with power and authority (corporate and other) to own its properties
and conduct its business as described in the Prospectus;
(ii) Xxxxx has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of Xxxxx
have been duly and validly authorized and issued and are fully paid
and non-assessable and all of the issued and outstanding Common
Securities are directly owned by Xxxxx free and clear of any Lien;
(iii) Xxxxx 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 the failure so to qualify and
maintain good standing would have a material adverse effect on Xxxxx
and its subsidiaries, taken as a whole, (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 Xxxxx, provided that such counsel shall state that they
believe that both you and they are justified in relying upon such
opinions and certificates);
(iv) Each Significant Subsidiary (as defined below) of Xxxxx that
is incorporated under the laws of the State of Maryland has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of the State of Maryland; and all of the
issued shares of capital stock or partnership interests of each such
subsidiary have been duly and validly authorized and issued, are
fully paid and non-assessable, and are owned (with exceptions that
are not material to Xxxxx and its subsidiaries, taken as a whole)
directly or indirectly by Xxxxx, free and clear of all Liens except
(i) Liens relating to debt which has been disclosed specifically,
generally or in the aggregate in the Prospectus or incurred after the
date of the latest audited financial statements included or
incorporated by reference in the Prospectus in the ordinary course of
business (including financings),
13
(ii) Liens incurred in the ordinary course of business which are not
materially adverse to the operations of Xxxxx and its subsidiaries,
taken as a whole, or (iii) restrictions on the transfer or use of the
stock of any corporate subsidiary under any partnership, joint
venture agreements or lease agreements to which Xxxxx or any of its
subsidiaries is a party (such counsel being entitled to rely in
respect of the opinion in this clause upon opinions of local counsel
and in respect to matters of fact upon certificates of officers of
Xxxxx or its subsidiaries, provided that such counsel shall state
that they believe that both you and they are justified in relying
upon such opinions and certificates); "Significant Subsidiary" is
defined to be any subsidiary of Xxxxx that holds assets that have a
value, on a current value basis, in excess of 3% of Xxxxx'x Total
Common Stock and Other Shareholders' Equity, on a current value
basis, as reported in Xxxxx'x most recent Annual Report on Form 10-K
or Annual Report to Shareholders;
(v) To the best of such counsel's knowledge and other than as set
forth in the Prospectus, there are no legal or governmental
proceedings pending to which Xxxxx or any of its subsidiaries is a
party or of which any property of Xxxxx or any of its subsidiaries is
the subject which are likely, individually or in the aggregate, to
have a material adverse effect on Xxxxx and its subsidiaries, taken
as a whole, and, to the best of such counsel's knowledge, no such
proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(vi) To the best of such counsel's knowledge, the Trust is not a
party to or bound by any agreement or instrument other than the Trust
Agreement, this Agreement, the Trust Agreement and the agreements and
instruments contemplated by the Trust Agreement and described in the
Prospectus; and to the best of such counsel's knowledge, there are no
legal or governmental proceedings pending to which the Trust is a
party or of which any property of the Trust is the subject and no
such proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(vii) This Agreement has been duly authorized, executed and
delivered by Xxxxx;
(viii) The Guarantor Agreements each have been duly authorized,
executed and delivered by Xxxxx and such Agreements constitute valid
and legally binding obligations of Xxxxx, enforceable in accordance
with their respective terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws relating to or
affecting creditors' rights and to general equitable principles; the
Subordinated Debentures are entitled to the benefits provided by the
Indenture;
(ix) The issue and sale of the Securities and the Common Securities
by the Trust, the issuance by Xxxxx of the Guarantee and the
Subordinated Debentures, the compliance by Xxxxx and the Trust with
all of the provisions of this Agreement, the execution, delivery and
performance by
14
Xxxxx of the Guarantor Agreements, the distribution of the
Subordinated Debentures by the Trust in the circumstances
contemplated by the Trust Agreement and the consummation of the
transactions herein and therein contemplated will not (i) to the best
of such counsel's knowledge, 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 known to such counsel to which Xxxxx
or any of its subsidiaries is a party or by which Xxxxx or any of its
subsidiaries is bound or to which any of the property or assets of
Xxxxx or any of its subsidiaries is subject, except for such
conflict, breach, violation or default which does not have a material
adverse effect on Xxxxx and its subsidiaries, taken as a whole, nor
(ii) will such action result in any violation of the provisions of
the Articles of Incorporation (including any articles supplementary
thereto) or By-laws of Xxxxx or any statute or any order, rule or
regulation known to such counsel of any court or governmental agency
or body having jurisdiction over Xxxxx or any of its subsidiaries or
any of their properties;
(x) The issue and sale of the Securities and the Common Securities
by the Trust, the compliance by the Trust with all of the provisions
of this Agreement, the purchase of the Subordinated Debentures by the
Trust, the distribution of the Subordinated Debentures by the Trust
in the circumstances contemplated by the Trust Agreement and the
consummation of the transactions contemplated herein and in the Trust
Agreement 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 agreement or instrument to which the Trust is a party or by which
the Trust is bound or to which any of the property or assets of the
Trust is subject, nor will such action result in any violation of the
provisions of the Trust Agreement or any statute or any order, rule
or regulation of any court or governmental agency or body having
jurisdiction over the Trust or any of its properties; and, to the
best of such counsel's knowledge, 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 and the Common Securities by the Trust,
the purchase of the Subordinated Debentures by the Trust or the
consummation by the Trust of the transactions contemplated by this
Agreement and the Trust Agreement, except the registration under the
Act and the Exchange Act of the Registered Securities, the
qualification of the Trust Agreement, the Indenture and the Guarantee
under the TIA, 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) To the best of such counsel's knowledge, no consent, approval,
authorization, order, registration or qualification of or with any
such court or governmental agency or body is required for the issue
of the Guarantee, the issuance and sale of the Subordinated
Debentures, the distribution of the
15
Subordinated Debentures by the Trust in the circumstances
contemplated by the Trust Agreement or the consummation by Xxxxx of
the transactions contemplated herein and in the Guarantor Agreements,
except the registration under the Act of the Registered Securities,
the qualification of the Trust Agreement, the Indenture and the
Guarantee under the TIA, 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;
(xii) Xxxxx is not an "investment company" or an entity
"controlled" by an "investment company", as such terms are defined in
the Investment Company Act; and
(xiii) The documents incorporated by reference in the Prospectus
or any further amendment or supplement thereto made by Xxxxx or the
Trust prior to such Time of Delivery (other than the financial
statements, related notes and schedules and financial data included
therein or omitted therefrom, as to which such counsel need express
no opinion), when they were filed with the Commission, appeared on
their face to be appropriately responsive as to form in all material
respects to the requirements of the Exchange Act and the rules and
regulations of the Commission thereunder; and such counsel has no
reason to believe that any of such documents, when such documents
were so filed, contained an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made when such documents were so filed, not misleading; and
(xiv) The Registration Statement and the Prospectus and any
further amendments and supplements thereto made by the Trust or Xxxxx
prior to such Time of Delivery (other than the financial statements
and related schedules therein and Form T-1, as to which such counsel
need express no opinion) comply as to form in all material respects
with the requirements of the Act and the TIA and the rules and
regulations thereunder; although such counsel does not assume any
responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement or the Prospectus,
such counsel has no reason to believe that, as of its effective date,
the Registration Statement or any further amendment thereto made by
the Trust or Xxxxx prior to such Time of Delivery (other than the
financial statements, related notes and schedules and other financial
data contained or incorporated by reference therein or omitted
therefrom and Form T-1, as to which such counsel need express no
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 or that, as of its
date, the Prospectus or any further amendment or supplement thereto
made by the Trust or Xxxxx prior to such Time of Delivery (other than
the financial statements, related notes and schedules and other
financial data contained or incorporated by reference therein or
omitted therefrom and Form T-1, as to which such counsel need express
no
16
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 that, as of such Time of Delivery, either the
Registration Statement or the Prospectus or any further amendment or
supplement thereto made by the Trust or Xxxxx prior to such Time of
Delivery (other than the financial statements, related notes and
schedules and other financial data contained or incorporated by
reference therein or omitted therefrom and Form T-1, as to which such
counsel need express no 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 such counsel 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
incorporated by reference into the Prospectus or required to be
described in the Registration Statement or the Prospectus which are
not filed or incorporated by reference or described as required;
(d) Xxxxx, Xxxxx, Xxxxxx, Xxxxxxx & Xxxxxxxx, counsel for the Trust and
Xxxxx, shall have furnished to you their written opinion (a draft of such
opinion is attached as Xxxxx XX(c) hereto), dated such Time of Delivery, in
form and substance satisfactory to you to the effect that:
(i) This Agreement has been duly executed and delivered by the
Trust (as to the due authorization of this Agreement by the Trust,
Xxxxx, Xxxxx, Xxxxxx, Xxxxxxx & Xxxxxxxx may rely on the opinion of
Xxxxxxxx, Xxxxxx & Xxxxxx);
(ii) The Indenture, the Subordinated Debentures and the Guarantee
each constitute valid and legally binding obligations of Xxxxx,
enforceable in accordance with their respective terms, subject, as to
enforcement, to bankruptcy, insolvency, fraudulent transfer,
fraudulent conveyance, reorganization, moratorium or other laws now
or hereafter in effect affecting creditors' rights generally, and
general principles of equity (whether such principles are considered
in a proceeding in equity or at law); the Subordinated Debentures are
entitled to the benefits provided by the Indenture; and the Trust
Agreement, the Indenture and the Guarantee conform in all material
respects to the descriptions thereof contained in the Prospectus and
have been duly qualified under the TIA;
(iii) The Securities and the Common Securities conform in all
material respects to the descriptions thereof contained in the
Prospectus;
(iv) To the best of such counsel's knowledge, 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 and the Common Securities, the compliance
by the Trust with all
17
of the provisions of this Agreement, the purchase by the Trust of the
Subordinated Debentures, the distribution of the Subordinated
Debentures by the Trust in the circumstances contemplated by the
Trust Agreement and the consummation of the transactions contemplated
herein and in the Trust Agreement except the registration under the
Act of the Registered Securities, the qualification of the Trust
Agreement, the Indenture and the Guarantee under the TIA, 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;
(v) The statements set forth in the Prospectus under the captions
"Description of the Preferred Securities", "Description of the
Guarantee", "Description of the Junior Subordinated Debentures" and
"Relationship Among the Preferred Securities, Junior Subordinated
Debentures and the Guarantee", insofar as they purport to constitute
a summary of the terms of the securities, documents and instruments
therein described, and under the captions "Certain United States
Federal Income Tax Considerations", insofar as they purport to
describe the provisions of the laws referred to therein, fairly
present the information disclosed therein in all material respects;
(vi) The Trust is not an "investment company" or an entity
"controlled" by an "investment company" as such terms are defined in
the Investment Company Act; and
(vii) The Registration Statement and the Prospectus and any
further amendments and supplements thereto made by the Trust or Xxxxx
prior to such Time of Delivery (other than the financial statements,
related notes and schedules and other financial data contained or
incorporated by reference therein or omitted therefrom and Form T-1,
as to which such counsel need not express an opinion), appear on
their face to be responsive as to form in all material respects to
the requirements of the Act and the TIA and the rules and regulations
thereunder.
In rendering such opinion, such counsel may state that their opinion is
limited to the laws of the State of New York, the Delaware Business Trust
Act and the federal laws of the United States.
(e) Xxxxxxxx, Xxxxxx & Xxxxxx, special Delaware counsel to the Trust and
Xxxxx, shall have furnished to you, Xxxxx and the Trust their written
opinion (a draft of such opinion is attached as Xxxxx XX(d) hereto), dated
such Time of Delivery, in form and substance satisfactory to you, to the
effect that:
(i) The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Business Trust Act,
and all filings required under the laws of the State of Delaware with
respect to the creation and valid existence of the Trust as a
business trust have been made;
18
(ii) Under the Delaware Business Trust Act and the Trust Agreement,
the Trust has the power and authority to own property and conduct its
business, all as described in the Prospectus;
(iii) The Trust Agreement constitutes a valid and binding
obligation of Xxxxx and the Trustees, enforceable against Xxxxx and
the Trustees in accordance with its terms, and the Expense Agreement
constitutes a valid and binding obligation of Xxxxx and the Trust,
enforceable against Xxxxx and the Trust in accordance with its terms,
each subject, as to enforcement, to (A) bankruptcy, insolvency,
moratorium, receivership, liquidation, fraudulent conveyance,
reorganization and other laws of general applicability relating to or
affecting creditors' remedies and rights, (B) general equity
principles, including applicable laws relating to fiduciary duties
(regardless of whether considered or applied in a proceeding at
equity or at law) and (C) the effect of applicable public policy on
the enforceability of provisions relating to indemnification or
contribution;
(iv) Under the Delaware Business Trust Act and the Trust Agreement,
the Trust has the power and authority to (a) execute and deliver, and
to perform its obligations under, this Agreement and (b) issue and
perform its obligations under the Securities and the Common
Securities;
(v) Under the Delaware Business Trust Act and the Trust Agreement,
the execution and delivery by the Trust of this Agreement, and the
performance by the Trust of its obligations hereunder, have been duly
authorized by all necessary action on the part of the Trust; and this
Agreement has been duly authorized by the Trust;
(vi) The Securities have been duly authorized by the Trust and are
duly and validly issued and, subject to the qualifications set forth
therein, fully paid and non-assessable undivided beneficial interests
in the assets of the Trust; the Securityholders, as beneficial owners
of the Trust, will be entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit
organized under the General Corporation Law of the State of Delaware;
provided that such counsel may note that the Securityholders may be
obligated, pursuant to the Trust Agreement, to (a) provide indemnity
and/or security in connection with and pay a sum sufficient to cover
any taxes or governmental charges arising from transfers or exchanges
of Securities certificates and the issuance of replacement Securities
certificates and (b) provide security and/or indemnity in connection
with requests of or directions to the Property Trustee (as defined in
the Trust Agreement) to exercise its rights and powers under the
Trust Agreement;
(vii) The Common Securities have been duly authorized by the Trust
Agreement and are duly and validly issued and represent undivided
beneficial interests in the assets of Trust;
(viii) Under the Delaware Business Trust Act and the Trust
Agreement, the issuance of the Securities and the Common Securities
is not subject to preemptive rights;
19
(ix) The issuance and sale by the Trust of the Securities and the
Common Securities, the execution, delivery and performance by the
Trust of this Agreement, the consummation by the Trust of the
transactions contemplated thereby and compliance by the Trust with
its obligations hereunder will not violate (a) any of the provisions
of the Certificate of Trust of the Trust or the Trust Agreement, or
(b) any applicable Delaware law or administrative regulation;
(x) Assuming that the Trust derives no income from or connected
with sources within the State of Delaware and has no assets,
activities (other than having a Delaware trustee as required by the
Delaware Business Trust Act and the filing of documents with the
Secretary of State of the State of Delaware) or employees in the
State of Delaware, no authorization, approval, consent or order of
any Delaware court or governmental authority or agency is required to
be obtained by the Trust solely in connection with the issuance and
sale of the Securities and the Common Securities; and
(xi) Assuming that the Trust derives no income from or connected
with sources within the State of Delaware and has no assets,
activities (other than having a Delaware trustee as required by the
Delaware Business Trust Act and the filing of documents with the
Secretary of State of the State of Delaware) or employees in the
State of Delaware, and assuming that the Trust is treated as a
grantor trust or partnership for federal income tax purposes, the
Securityholders (other than those holders of the Securities who
reside or are domiciled in the State of Delaware) will have no
liability for income taxes imposed by the State of Delaware solely as
a result of their participation in the Trust, and the Trust will not
be liable for any income tax imposed by the State of Delaware.
In rendering the opinion expressed in this paragraph (e), such counsel need
express no opinion concerning the securities laws of the State of Delaware.
(f) Piper & Marbury, special Maryland counsel for the Trust and Xxxxx,
shall have furnished to you their written opinion (a draft of such opinion
is attached as Xxxxx XX(e) hereto), dated such Time of Delivery, in form
and substance satisfactory to you, to the effect that:
(i) The Guarantor Agreements each have been duly authorized,
executed and delivered by Xxxxx; and
(ii) The issue and sale of the Securities and the Common
Securities by the Trust will not require a consent or approval of any
holder of Xxxxx'x capital stock or result in any violation of the
provisions of the Articles of Incorporation (including any articles
supplementary thereto) or By-laws of Xxxxx.
(g) On the date of the Prospectus at a time prior to the execution of
this Agreement, at 10:00 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 each Time of Delivery, KPMG Peat
Marwick LLP shall have furnished to you a letter or letters, dated the
respective dates of delivery
20
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 Xxxxx X(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);
(h) The Trust Agreement, the Guarantee and the Indenture shall have been
executed and delivered, in each case in a form reasonably satisfactory to
you;
(i) (i) Neither the Trust nor Xxxxx and its subsidiaries, taken as a
whole, shall have sustained since the date of the latest audited financial
statements included or incorporated by reference in the Prospectus 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 (ii) since the respective
dates as of which information is given in the Prospectus, there shall not
have been any change in the capital stock (other than issuances of capital
stock pursuant to bonus stock awards granted in the ordinary course of
business or upon exercise of options and stock appreciation rights and upon
conversion of convertible securities, in each case, except with respect to
bonus stock awards granted in the ordinary course of business, which were
outstanding as of the date of the latest audited financial statements
included or incorporated by reference in the Prospectus) or any material
adverse change in the long-term debt of Xxxxx and its subsidiaries, taken
as a whole, or any material adverse change, or any development involving a
prospective material adverse change, in or affecting the general affairs,
management, financial position or securityholders' equity of the Trust, or
the general affairs, management, current value basis shareholders' equity
or results of operations (based on earnings before depreciation and
deferred taxes from operations) of Xxxxx and its subsidiaries, taken as a
whole, otherwise than as set forth or contemplated in the Prospectus, the
effect of which, in any such case described in Clause (i) or (ii), is in
the reasonable judgment of the Representatives so material and adverse as
to make it impracticable or inadvisable to proceed with the public offering
or the delivery of the Securities being delivered at such Time of Delivery
on the terms and in the manner contemplated in the Prospectus;
(j) On or after the date hereof (i) no downgrading shall have occurred in
the rating accorded the Securities or any of Xxxxx'x debt securities or
preferred stock 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 Securities or any of
Xxxxx'x debt securities or preferred stock;
(k) 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 general moratorium on
commercial banking activities declared by either federal or New York State
authorities; or (iii) 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
21
specified in this Clause (iii) in the reasonable judgment of the
Representatives makes it impracticable or inadvisable to proceed with the
public offering or the delivery of the Securities being delivered at such
Time of Delivery on the terms and in the manner contemplated in the
Prospectus;
(l) The Securities to be sold by the Trust at such Time of Delivery shall
have been duly listed, subject to notice of issuance, on the New York Stock
Exchange;
(m) 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
(n) The Trust and Xxxxx shall have furnished or caused to be furnished to
you at such Time of Delivery certificates of officers of Xxxxx and the
Trust satisfactory to you as to the accuracy of the representations and
warranties of the Trust and Xxxxx herein at and as of such Time of
Delivery, as to the performance by the Trust and Xxxxx of all their
obligations hereunder to be performed at or prior to such Time of Delivery,
as to the matters set forth in subsections (a) and (i) of this Section and
as to such other matters as you may reasonably request.
8. (a) The Trust and Xxxxx, jointly and severally, 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 the 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 neither the Trust nor Xxxxx shall
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 the Prospectus, or any amendment or supplement
thereto in reliance upon and in conformity with written information furnished to
the Trust and Xxxxx by any Underwriter through Xxxxxxx, Xxxxx & Co. expressly
for use therein.
(b) Each Underwriter will indemnify and hold harmless the Trust and Xxxxx
against any losses, claims, damages or liabilities to which the Trust or Xxxxx
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 the
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 the Prospectus, or any
amendment or
22
supplement thereto in reliance upon and in conformity with written information
furnished to the Trust and Xxxxx by such Underwriter through Xxxxxxx, Xxxxx &
Co. expressly for use therein; and will reimburse the Trust and Xxxxx for any
legal or other expenses reasonably incurred by the Trust or Xxxxx in connection
with investigating or defending any such action or claim as such expenses are
incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) 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 under such subsection which it may have to any
indemnified party unless and to the extent the indemnifying party is actually
prejudiced by such omission or failure. 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. If the indemnifying party does not assume the defense
of such action, it is understood that the indemnifying party shall not, in
connection with any one such action or separate but substantially similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the fees and expenses of more than
one separate firm of attorneys (in addition to one separate firm of local
attorneys in each such jurisdiction) at any time for all such indemnified
parties, which firms shall be designated in writing by you, if the indemnified
parties under this Section consist of any Underwriter or any of their respective
controlling persons, or by the Trust or Xxxxx, if the indemnified parties under
this Section consist of the Trust or Xxxxx or any of their directors, officers,
administrative trustees or controlling persons. The indemnifying party shall
not be liable for any settlement of an action or claim for monetary damages
which an indemnified party may effect without the consent of the indemnifying
party, which consent shall not be unreasonably withheld. 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 hereunder (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 8 is unavailable to
or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above in respect of any losses, claims, damages or liabilities (or actions
in respect thereof) referred
23
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 Trust and Xxxxx on the one hand
and the Underwriters on the other from the offering of the Securities. 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 Trust and Xxxxx 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 Trust and Xxxxx 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 Trust and Xxxxx
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
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 Trust and Xxxxx 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 Trust, Xxxxx
and the Underwriters agree that it would not be just and equitable if
contributions pursuant to this subsection (d) were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this subsection (d). The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to above in this
subsection (d) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any such action or claim. 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 Trust and Xxxxx under this Section 8 shall be in
addition to any liability which the Trust and Xxxxx 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 8 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
24
Xxxxx, each administrative trustee of the Trust and to each person, if any, who
controls the Trust or Xxxxx within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase the
Securities which it has agreed to purchase hereunder at a Time of Delivery,
Xxxxxxx, Xxxxx & Co. may in their discretion arrange for Xxxxxxx, Xxxxx & Co. 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 Xxxxxxx, Xxxxx & Co. do not arrange for the purchase of such
Securities, then Xxxxx shall be entitled to a further period of thirty-six hours
within which to procure another party or other parties satisfactory to Xxxxxxx,
Xxxxx & Co. to purchase such Securities on such terms. In the event that,
within the respective prescribed periods, Xxxxxxx, Xxxxx & Co. notify Xxxxx that
Xxxxxxx, Xxxxx & Co. have so arranged for the purchase of such Securities, or
the Trust or Xxxxx notifies Xxxxxxx, Xxxxx & Co. that it has so arranged for the
purchase of such Securities, Xxxxxxx, Xxxxx & Co. or Xxxxx shall have the right
to postpone such 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 Trust and Xxxxx agree to file promptly any amendments to
the Registration Statement or the Prospectus which in Xxxxxxx, Xxxxx & Co.'s
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 Xxxxxxx, Xxxxx & Co.
and Xxxxx as provided in subsection (a) above, the aggregate number of such
Securities which remains unpurchased does not exceed one-eleventh of the
aggregate number of all the Securities to be purchased at such Time of Delivery,
then Xxxxx shall have the right to require each non-defaulting Underwriter to
purchase the number of Securities which such Underwriter agreed to purchase
hereunder at such Time of Delivery and, in addition, to require each non-
defaulting Underwriter to purchase its pro rata share (based on the number 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 Xxxxxxx, Xxxxx & Co.
and Xxxxx as provided in subsection (a) above, the aggregate number of such
Securities which remains unpurchased exceeds one-eleventh of the aggregate
number of all the Securities to be purchased at such Time of Delivery, or if
Xxxxx 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 (or, with respect to the Second Time of
Delivery, the obligations of the Underwriters to purchase and of the Trust and
Xxxxx to sell the Optional Securities) shall thereupon terminate, without
liability on the part of any non-defaulting Underwriter, the Trust or Xxxxx,
except for the expenses to be borne by Xxxxx and the Underwriters as provided in
Section 6 hereof and the indemnity and contribution agreements in Section 8
hereof; but nothing herein shall relieve a defaulting Underwriter from liability
for its default.
25
10. The respective indemnities, agreements, representations, warranties
and other statements of the Trust, Xxxxx 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 Trust,
Xxxxx or any officer, director, administrative trustee or controlling person of
the Trust or Xxxxx, and shall survive delivery of and payment for the
Securities.
11. If this Agreement shall be terminated pursuant to Section 9 hereof,
neither the Trust nor Xxxxx shall then be under any liability to any Underwriter
except as provided in Sections 6 and 8 hereof; but, if for any other reason any
Securities are not delivered by or on behalf of the Trust as provided herein,
the Trust and Xxxxx will reimburse the Underwriters through Xxxxxxx, Xxxxx & Co.
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 not so
delivered, but the Trust and Xxxxx shall then be under no further liability to
any Underwriter except as provided in Sections 6 and 8 hereof.
12. 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 & Co. 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 & Co., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Registration
Department; and if to the Trust or Xxxxx shall be sufficient in all respects
when delivered or sent by facsimile transmission or registered mail to The Xxxxx
Company, 00000 Xxxxxx Xxxxxxxx Xxxxxxx, Xxxxxxxx, Xxxxxxxx 00000-3456,
Attention: Treasurer, with a copy to the General Counsel, Facsimile Transmission
No. (000) 000-0000; provided, however, that any notice to an Underwriter
pursuant to Section 8(c) hereof shall be delivered or sent by mail, telex or
facsimile transmission to such Underwriter at its address set forth in its
Underwriters' Questionnaire, or telex constituting such Questionnaire, which
address will be supplied to the Trust and Xxxxx by you upon request. Any such
statements, requests, notices or agreements shall take effect upon receipt
thereof.
13. This Agreement shall be binding upon, and inure solely to the benefit
of, the Underwriters, the Trust, Xxxxx and, to the extent provided in Sections 8
and 10 hereof, the officers, directors and administrative trustees of the Trust,
Xxxxx and each person who controls the Trust, Xxxxx 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.
14. 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.
26
15. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.
16. 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 counterparts shall together constitute one and the same
instrument.
If the foregoing is in accordance with your understanding, please sign and
return to us one for the Trust, Xxxxx and each of the Representatives plus one
for each counsel 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 between each of the Underwriters and the Trust
and Xxxxx. 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 Trust
and Xxxxx for examination upon request, but without warranty on your part as to
the authority of the signers thereof.
Very truly yours,
Xxxxx Capital
By: The Xxxxx Company, as Depositor
By: . . . . . . . . . . . . . . . . .
Name:
Title:
The Xxxxx Company
By: . . . . . . . . . . . . . . . . .
Name:
Title:
27
Accepted as of the date hereof:
Xxxxxxx, Xxxxx & Co.
Xxxx. Brown & Sons Incorporated
Xxxxxx Brothers Inc.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxx Xxxxxx Inc.
By: . . . . . . . . . . . . . . . . .
(Xxxxxxx, Xxxxx & Co.)
On behalf of each of the Underwriters
28
SCHEDULE I
Number of
Optional
Securities to be
Total Number of Purchased if
Firm Securities Maximum Option
Underwriter to be Purchased Exercised
----------- --------------- ----------------
Xxxxxxx, Xxxxx & Co. ...................
Xxxx. Xxxxx & Sons Incorporated ........
Xxxxxx Brothers Inc. ...................
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx
Incorporated ..........................
Xxxxx Xxxxxx Inc. ......................
--------------- ----------------
Total
=============== ================
29
ANNEX I
Pursuant to Section 7(g) 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
Xxxxx and its subsidiaries within the meaning of the Act and the applicable
published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any supplementary
financial information and schedules (and, if applicable, financial
forecasts and/or pro forma financial information) examined by them and
included or incorporated by reference in the Registration Statement or the
Prospectus comply as to form in all material respects with the applicable
accounting requirements of the Act or the Exchange Act, as applicable, and
the related published rules and regulations thereunder; and, if applicable,
they have made a review in accordance with standards established by the
American Institute of Certified Public Accountants of the consolidated
interim financial statements, selected financial data, pro forma financial
information, financial forecasts and/or condensed financial statements
derived from audited financial statements of Xxxxx for the periods
specified in such letter, as indicated in their reports thereon, copies of
which have been separately 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 income, consolidated balance sheets
and consolidated statements of cash flows included in the Prospectus and/or
included in Xxxxx'x quarterly report on Form 10-Q incorporated by reference
into the Prospectus as indicated in their reports thereon copies of which
have been separately furnished to the Representatives; and on the basis of
specified procedures including inquiries of officials of Xxxxx who have
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 Exchange Act and
the related published rules and regulations, nothing came to their
attention that caused 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
Exchange Act and the related published rules and regulations;
(iv) The unaudited selected financial information with respect to the
consolidated results of operations and financial position of Xxxxx for the
five most recent fiscal years included in the Prospectus and included or
incorporated by reference in Item 6 of Xxxxx'x Annual Report on Form 10-K
for the most recent fiscal year agrees with the corresponding amounts
(after restatement where applicable) in the audited consolidated financial
statements for such five fiscal years which were included or incorporated
by reference in Xxxxx'x Annual Reports on Form 10-K for such fiscal years;
(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, 402 and
503(d), respectively, of Regulation S-K;
(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 Xxxxx and its subsidiaries, inspection of the minute books of
Xxxxx and its subsidiaries since the date of the latest audited financial
statements included or incorporated by reference in the Prospectus,
inquiries of officials of Xxxxx 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 condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included in the Prospectus and/or included or incorporated by
reference in Xxxxx'x Quarterly Reports on Form 10-Q incorporated by
reference in the Prospectus do not comply as to form in all material
respects with the applicable accounting requirements of the Exchange
Act and the related published rules and regulations, or (ii) any
material modifications should be made to the unaudited condensed
consolidated statements of income, consolidated balance sheets and
consolidated statements of cash flows included in the Prospectus or
included in Xxxxx'x Quarterly Reports on Form 10-Q incorporated by
reference in the Prospectus, for them to be in conformity with
generally accepted accounting principles;
(B) any other unaudited income statement data and balance sheet
items included in the Prospectus do not agree with the corresponding
items in the unaudited consolidated financial statements from which
such data and items were derived, and any such unaudited data and
items were not determined on a basis substantially consistent with
the basis for the corresponding amounts in the audited consolidated
financial statements included or incorporated by reference in Xxxxx'x
Annual Report on Form 10-K for the most recent fiscal year;
(C) the unaudited financial statements which were not included in
the Prospectus but from which were derived the unaudited condensed
financial statements referred to in Clause (A) and any unaudited
income statement data and balance sheet 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
financial statements included or incorporated by reference in Xxxxx'x
Annual Report on Form 10-K for the most recent fiscal year;
(D) any unaudited pro forma consolidated condensed financial
statements included or incorporated by reference 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 consolidated
capital stock (other than
2
issuances of capital stock upon exercise of options and stock
appreciation rights, upon earn-outs of performance shares and upon
conversions of convertible securities, in each case which were
outstanding on the date of the latest balance sheet included or
incorporated by reference in the Prospectus) or any increase in
excess of 1% in the consolidated long-term debt of Xxxxx and its
subsidiaries, or any decreases in consolidated net current assets or
stockholders' equity 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 or incorporated by reference in the Prospectus, except in
each 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 or incorporated by reference in the Prospectus to the
specified date referred to in Clause (E) there were any decreases in
consolidated earnings before depreciation and deferred taxes from
operations 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 increases or decreases 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 or incorporated by reference in the Prospectus and the limited
procedures, inspection of minute books, inquiries and other procedures
referred to in paragraphs (iii) and (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
Xxxxx and its subsidiaries, which appear in the Prospectus (excluding
documents incorporated by reference) or in Part II of, or in exhibits and
schedules to, the Registration Statement specified by the Representatives
or in documents incorporated by reference in the Prospectus specified by
the Representatives, and have compared certain of such amounts, percentages
and financial information with the accounting records of Xxxxx and its
subsidiaries and have found them to be in agreement.
3
