EXHIBIT 1
XXXX ATLANTIC - WASHINGTON, D.C., INC.
DEBT SECURITIES
UNDERWRITING AGREEMENT
----------------------
New York, New York
, 1998
To the Representatives
named in Schedule I
hereto of the Underwriters
named in Schedule II hereto
Dear Sirs:
Xxxx Atlantic - Washington, D.C., Inc., a New York corporation
("Company"), may issue and sell from time to time series of its debt securities
registered under the registration statement referred to in Paragraph 1(a)
hereof ("Securities" and individually "Security"). The Company proposes to sell
to the underwriters named in Schedule II hereto ("Underwriters"), for whom you
are acting as representatives ("Representative"), a series of Securities, of
the designation, with the terms and in the aggregate principal amount specified
in Schedule I hereto ("Underwritten Securities" and individually "Underwritten
Security"). If the firm or firms listed in Schedule II hereto include only the
firm or firms listed in Schedule I hereto, then the terms "Underwriters" and
"Representative" shall each be deemed to refer to such firm or firms.
1. The Company represents, warrants and agrees that:
(a) [A] [R]egistration statement[s] (No[s]. [and ]), including a
prospectus, with respect to the Securities has [have] been prepared by the
Company in conformity with the requirements of the Securities Act of 1933,
as amended ("Act"), and the rules and regulations ("Rules and
Regulations") of the Securities and Exchange Commission ("Commission")
thereunder and has [have] become effective. As used in this Agreement, (i)
"Registration Statement" means [each] such registration statement, as
amended and supplemented to the date hereof; (ii) "Preliminary Prospectus"
means each prospectus (including all documents incorporated therein by
reference) included in that [the most recently filed] Registration
Statement, or amendments or supplements thereof, before it became
effective under the Act, including any prospectus filed with the
Commission pursuant to Rule 424(a) of the Rules and Regulations; (iii)
"Basic Prospectus" means the prospectus (including all documents
incorporated therein by reference) included in the [most recently filed]
Registration Statement; and (iv) "Prospectus" means the Basic Prospectus,
together with any prospectus amendment or supplement (including in each
case all documents incorporated therein by reference) specifically
relating to the Underwritten Securities, as filed with the Commission
pursuant to paragraph (b) of Rule 424 of the Rules and Regulations. The
Commission has not issued any order suspending the effectiveness of the
Registration Statement or preventing or suspending the use of any
Prospectus, and no proceedings for such purposes have been instituted or
are pending or, to the knowledge of the Company, are contemplated by the
Commission, and any request on the part of the Commission for additional
information has been complied with.
(b) The Registration Statement and each Prospectus contains, and (in the
case of any amendment or supplement to any such document, or any material
incorporated by reference in any such document, filed with the Commission
after the date as of which this representation is being made) will contain
at all times during the period specified in Paragraph 7(c) hereof, all
statements which are required by the Act, the Securities Exchange Act of
1934, as amended ("Exchange Act"), the Trust Indenture Act of 1939, as
amended ("Trust Indenture Act"), and the rules and regulations of the
Commission under such Acts; the indenture, including any amendments and
supplements thereto, pursuant to which the Underwritten Securities will be
issued ("Indenture") will conform with the requirements of the Trust
Indenture Act and the rules and regulations of the Commission thereunder;
and the Registration Statement and each Prospectus does not, and (in the
ase of any amendment or supplement to any such document, or any material
incorporated by reference in any such document, filed with the Commission
after the date as of which this representation is being made) will not, at
any time during the period specified in Paragraph 7(c) hereof, contain any
untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements
therein not misleading; provided that the Company makes no representation
or warranty as to information contained in or omitted from the Registration
Statement or any Prospectus in reliance and based upon information
furnished to the Company through the Representative by or on behalf of any
Underwriter, or as to any statements in or omissions from the Statement of
Eligibility of the Trustee under the Indenture.
(c) The Company is not in violation of its corporate charter or by-laws
or in default under any agreement, indenture or instrument, except for
such defaults that would not result in a material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company, whether or not arising in the ordinary
course of business (a "Material Adverse Effect"); and the execution,
delivery and performance of this Agreement, the Indenture, the
Underwritten Securities, and any Delayed Delivery Contracts (as defined in
Paragraph 3 hereof) and the consummation of the transactions contemplated
herein, and in the Prospectus (including the issuance and sale of the
Underwritten Securities and the use of the proceeds from the sale thereof
as described in the Prospectus under the caption "Use of Proceeds") have
been duly authorized by all necessary corporate action and do not and will
not conflict with or constitute a breach of, or default under, or result
in the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company pursuant to, any material agreement,
indenture or instrument to which the Company is a party or by which it is
bound or to which its properties or assets is subject, nor will such
action result in a material violation of the charter or by-laws of the
Company or any order, rule or regulation of any court or governmental
agency having jurisdiction over the Company, or its properties; and except
as required by the Act, the Trust Indenture Act, the Exchange Act and
applicable state securities laws and except as set forth in Paragraph 1(m)
hereof, no consent, authorization or order of, or filing or registration
with, any court or governmental agency is required for the execution,
delivery and performance of this Agreement, the Delayed Delivery Contracts
and the Indenture or the consummation of the transactions contemplated
hereby and thereby.
(d) Except as described in or contemplated by the Registration Statement
and each Prospectus, there has been no Material Adverse Effect from the
dates as of which information is given in the Registration Statement and
each Prospectus.
(e) PricewaterhouseCoopers (formerly Coopers & Xxxxxxx), whose report
appears in the Company's most recent Annual Report on Form 10-K which is
incorporated by reference in each Prospectus, are independent accountants
as required by the Act and the Rules and Regulations.
(f) On the Delivery Date (as defined in Paragraph 6 hereof) (i) the
Indenture will have been validly authorized, executed and delivered by the
Company and duly qualified under the Trust Indenture Act and will
constitute the legally binding obligation of the Company, (ii) the
Underwritten Securities will have been validly authorized and executed
and, upon payment therefor as provided in this Agreement, will be validly
issued and outstanding, and will constitute legally binding obligations of
the Company entitled to the benefits of the Indenture, and (iii) the
Underwritten Securities and the Indenture will conform to the descriptions
thereof contained in the Prospectus.
(g) This Agreement has been validly authorized, executed and delivered by
the Company.
(h) The Company has been duly incorporated and is validly existing and in
good standing under the laws of the State of New York, is duly qualified
to do business and in good standing as a foreign corporation in each
jurisdiction in which its ownership of properties or the conduct of its
business requires such qualification, except where the failure to so
qualify would not have a Material Adverse Effect, and has power and
authority necessary to own or hold its properties and to conduct the
business in which it is engaged and to enter into and perform its
obligations under this Agreement.
(i) There is no material action, suit or proceeding before any court or
governmental agency or body, domestic or foreign, now pending, or, to the
knowledge of the Company, threatened, against or affecting the Company,
which is required to be disclosed in any Prospectus (other than as
disclosed therein), or which might reasonably be expected to result in a
Material Adverse Effect, or which might reasonably be expected to
materially and adversely affect the properties or assets thereof or the
consummation of the transactions contemplated in this Agreement or the
performance by the Company of its obligations hereunder.
(j) The financial statements filed as part of the Registration Statement
or included in any Preliminary Prospectus present, or (in the case of any
amendment or supplement to any such document, or any material incor-
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porated by reference in any such document, filed with the Commission after
the date as of which this representation is being made) will present at all
times during the period specified in Paragraph 7(c) hereof, fairly, the
financial condition and results of operations of the Company, at the dates
and for the periods indicated, and have been, and (in the case of any
amendment or supplement to any such document, or any material incorporated
by reference in any such document, filed with the Commission after the date
as of which this representation is being made) will be at all times during
the period specified in Paragraph 7(c) hereof, prepared in conformity with
generally accepted accounting principles ("GAAP") applied on a consistent
basis throughout the periods involved. The supporting schedules incorporated
by reference in the Prospectus present fairly in accordance with GAAP the
information required to be stated therein. The pro forma financial
statements and the related notes thereto incorporated by reference in the
Registration Statement and the Prospectus present fairly the information
shown therein, have been prepared in accordance with the Commission's rules
and guidelines with respect to pro forma financial statements and have been
properly compiled on the bases described therein, and the assumptions used
in the preparation thereof are reasonable and the adjustments used therein
are appropriate to give effect to the transactions and circumstances
referred to therein.
(k) The documents incorporated by reference into any Preliminary
Prospectus or Prospectus have been, and (in the case of any amendment or
supplement to any such document, or any material incorporated by reference
in any such document, filed with the Commission after the date as of which
this representation is being made) will be at all times during the period
specified in Paragraph 7(c) hereof, prepared by the Company in conformity
with the applicable requirements of the Act and Rules and Regulations and
the Exchange Act and the rules and regulations of the Commission
thereunder and such documents have been, or (in the case of any amendment
or supplement to any such document, or any material incorporated by
reference in any such document, filed with the Commission after the date
as of which this representation is being made) will be at all times during
the period specified in Paragraph 7(c) hereof, timely filed as required
thereby.
(l) There are no contracts or other documents which are required to be
filed as exhibits to the Registration Statement by the Act or by the Rules
and Regulations, or which were required to be filed as exhibits to any
document incorporated by reference in any Prospectus by the Exchange Act
or the rules and regulations of the Commission thereunder, which have not
been filed as exhibits to the Registration Statement or to such document
or incorporated therein by reference as permitted by the Rules and
Regulations or the rules and regulations of the Commission under the
Exchange Act as required.
(m) The Company has filed a petition or petitions with the District of
Columbia Public Service Commission ("PSC") with respect to the issue and
sale of securities, including the Underwritten Securities. The PSC has
entered its order authorizing the issuance and sale thereof, subject to
the limitations on the terms and conditions of such issuance and such sale
set forth in such order, and such order has become final and
non-appealable.
(n) The Company has good and valid title to all or substantially all of
its properties.
(o) The Company is not, and upon the issuance and sale of the
Underwritten Securities as herein contemplated and the application of the
net proceeds therefrom as described in the Prospectus will not 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 "1940 Act").
2. Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company agrees to sell to
each Underwriter, severally and not jointly, and each Underwriter agrees,
severally and not jointly, to purchase from the Company, at the purchase price
and on the other terms set forth in Schedule I hereto, the principal amount of
the Underwritten Securities set forth opposite its name in Schedule II hereto.
3. Any offer to purchase Underwritten Securities by institutional
investors solicited by the Underwriters for delayed delivery shall be made
pursuant to contracts substantially in the form of Exhibit A attached hereto,
with such changes therein as the Company and the Representative may approve
("Delayed Delivery Contracts"). The Company shall have the right, in its sole
discretion, to approve or disapprove each such institutional investor.
Underwritten Securities which are subject to Delayed Delivery Contracts are
herein sometimes called "Delayed Delivery Underwritten Securities" and
Underwritten Securities which are not subject to Delayed Delivery Contracts are
herein sometimes called "Immediate Delivery Underwritten Securities".
Contemporaneously with the purchase on the Delivery Date by the
Underwriters of the Immediate Delivery Underwritten Securities pursuant to this
Agreement, the Company will pay to the Representative, for the account
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of the Underwriters, the compensation specified in Schedule I hereto for
arranging the sale of Delayed Delivery Underwritten Securities. The
Underwriters shall have no responsibility with respect to the validity or
performance of any Delayed Delivery Contracts.
For the purposes of determining the principal amount of Immediate Delivery
Underwritten Securities to be purchased by each Underwriter, there shall be
deducted from the principal amount of Underwritten Securities to be purchased
by such Underwriter as set forth in Schedule II hereto that portion of the
aggregate principal amount of Delayed Delivery Underwritten Securities that the
principal amount of Underwritten Securities to be purchased by such Underwriter
as set forth in Schedule II hereto bears to the aggregate principal amount of
Underwritten Securities set forth there to be purchased by all of the
Underwriters (in each case as adjusted by the Representative to avoid fractions
of the minimum principal amount in which the Underwritten Securities may be
issued), except to the extent that the Representative determines, in its
discretion, that such deduction shall be otherwise than in such proportion and
so advises the Company.
4. The Company shall not be obligated to deliver any Underwritten
Securities except upon payment for all Immediate Delivery Underwritten
Securities to be purchased pursuant to this Agreement as hereinafter provided.
5. If any Underwriter defaults in the performance of its obligations under
this Agreement, the remaining non-defaulting Underwriters, if any, shall be
obligated to purchase the Immediate Delivery Underwritten Securities which the
defaulting Underwriter agreed but failed to purchase in the respective
proportions which the principal amount of Underwritten Securities set forth in
Schedule II hereto to be purchased by each remaining non-defaulting Underwriter
set forth therein bears to the aggregate principal amount of Underwritten
Securities set forth therein to be purchased by all the remaining
non-defaulting Underwriters; provided that the remaining non-defaulting
Underwriters shall not be obligated to purchase any Immediate Delivery
Underwritten Securities if the aggregate principal amount of Immediate Delivery
Underwritten Securities which the defaulting Underwriter or Underwriters agreed
but failed to purchase exceeds 9.09% of the total principal amount of
Underwritten Securities, and any remaining non-defaulting Underwriter shall not
be obligated to purchase more than 110% of the principal amount of Underwritten
Securities set forth in Schedule II hereto to be purchased by it. If the
foregoing maximums are exceeded, the remaining non-defaulting Underwriters, or
those other underwriters satisfactory to the Representative who so agree, shall
have the right, but shall not be obligated, to purchase, in such proportion as
may be agreed upon among them, all the Immediate Delivery Underwritten
Securities. If the remaining Underwriters or other underwriters satisfactory to
the Representative do not elect to purchase the Immediate Delivery Underwritten
Securities which the defaulting Underwriter or Underwriters agreed but failed
to purchase, this Agreement shall terminate without liability on the part of
any non-defaulting Underwriter or the Company, except that the Company will
continue to be liable for the payment of expenses as set forth in Paragraph
7(k) hereof.
Nothing contained in this Paragraph 5 shall relieve a defaulting
Underwriter of any liability it may have to the Company for damages caused by
its default. If other underwriters are obligated or agree to purchase the
Immediate Delivery Underwritten Securities of a defaulting or withdrawing
Underwriter, either the Representative or the Company may postpone the Delivery
Date for up to seven full business days in order to effect any changes that in
the opinion of counsel for the Company or counsel for the Underwriters may be
necessary in the Registration Statement, any Prospectus or in any other
document or arrangement.
6. Delivery of and payment for the Immediate Delivery Underwritten
Securities shall be made at such address, date and time as may be specified in
Schedule I hereto. This date and time are sometimes referred to as the
"Delivery Date". On the Delivery Date the Company shall deliver the Immediate
Delivery Underwritten Securities to The Depository Trust Company, on behalf of
the Representative, for the account of each Underwriter against payment to the
Company by wire transfer of immediately available funds to a bank account
designated by the Company. Time shall be of the essence, and delivery at the
time and place specified pursuant to this Agreement is a further condition of
the obligation of each Underwriter hereunder. Upon delivery, the Immediate
Delivery Underwritten Securities shall be in registered form and in such
denominations as may be set forth on Schedule I hereto. The certificates
representing the Immediate Delivery Underwritten Securities shall be registered
in the name of Cede & Co. and shall be made available for inspection by the
Representative in New York, New York not later than 2:00 P.M., local time, on
the business day prior to the Delivery Date.
7. The Company agrees:
(a) To furnish promptly to the Representative and to counsel for the
Underwriters a conformed copy of the Registration Statement as originally
filed and each amendment or supplement thereto filed prior to the date
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hereof or relating to or covering the Underwritten Securities, and a copy of
each Prospectus filed with the Commission, including all documents
incorporated therein by reference and all consents and exhibits filed
therewith;
(b) To deliver promptly to the Representative such reasonable number of
the following documents as the Representative may request: (i) conformed
copies of the Registration Statement (excluding exhibits other than the
computation of the ratio of earnings to fixed charges, the Indenture and
this Agreement), (ii) each Prospectus and (iii) any documents incorporated
by reference in any Prospectus;
(c) During such period following the date hereof as, in the opinion of
counsel for the Underwriters, any Prospectus is required by law to be
delivered, to comply with the Act, the Exchange Act, the Trust Indenture
Act and the rules and regulations under each thereof, so as to permit the
completion of the distribution of the Underwritten Securities as
contemplated in this Agreement and in each Prospectus. If at any time when
a prospectus is required by the Act to be delivered in connection with
sales of the Underwritten Securities, any event shall occur or condition
shall exist as a result of which it is necessary, in the reasonable
opinion of counsel for the Underwriters or for the Company, to amend the
Registration Statement or amend or supplement any Prospectus in order that
such Prospectus will not include any untrue statements of a material fact
or omit to state a material fact necessary in order to make the statements
therein not misleading in the light of the circumstances existing at the
time it is delivered to a purchaser, or if it shall be necessary, in the
opinion of such counsel, at any such time to amend the Registration
Statement or amend or supplement any Prospectus in order to comply with
the requirements of the Act or the Rules and Regulations, the Company will
promptly prepare and file with the Commission, subject to Paragraph (d)
below, such amendment or supplement as may be necessary to correct such
statement or omission or to make the Registration Statement or any such
Prospectus comply with such requirements, and the Company will furnish to
the Underwriters such number of copies of such amendment or supplement as
the Underwriters may reasonably request.
(d) Prior to filing with the Commission during the period referred to in
(c) above (i) any amendment or supplement to the Registration Statement,
(ii) any Prospectus or any amendment or supplement thereto or (iii) any
document incorporated by reference in any of the foregoing or any
amendment or supplement to such incorporated document, to furnish a copy
thereof to the Representative and to counsel for the Underwriters and not
to file any document that shall have been disapproved by the
Representative;
(e) To advise the Representative promptly (i) when any post-effective
amendment to the Registration Statement relating to or covering the
Underwritten Securities becomes effective or any supplement to any
Prospectus shall have been filed, (ii) of any comments from the Commission
or any request or proposed request by the Commission for an amendment or
supplement to the Registration Statement (insofar as the amendment or
supplement relates to or covers the Underwritten Securities), to any
Prospectus, to any document incorporated by reference in any of the
foregoing or for any additional information, (iii) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or any order directed to any Prospectus or any
document incorporated therein by reference or the initiation or threat of
any stop order proceeding or of any challenge to the accuracy or adequacy
of any document incorporated by reference in any Prospectus, (iv) of
receipt by the Company of any notification with respect to the suspension
of the qualification of the Underwritten Securities for sale in any
jurisdiction or the initiation or threat of any proceeding for that
purpose and (v) of the happening of any event which makes untrue any
statement of a material fact made in the Registration Statement (insofar
as the Registration Statement relates to or covers the Underwritten
Securities) or any Prospectus or which requires the making of a change in
the Registration Statement or any Prospectus in order to make any material
statement therein not misleading;
(f) If, during the period referred to in (c) above, the Commission shall
issue a stop order suspending the effectiveness of the Registration
Statement, to make every reasonable effort to obtain the lifting of that
order at the earliest possible time;
(g) As soon as practicable, to make generally available to its security
holders and to deliver to the Representative an earnings statement,
conforming with the requirements of Section 11(a) of the Act, covering a
period of at least twelve months beginning after the latest of (i) the
effective date of the Registration Statement, (ii) the effective date of
the most recent post-effective amendment to the Registration Statement
that became effective prior to the date of this Agreement and (iii) the
date of the Company's most recent Annual Report on Form 10-K filed with
the Commission prior to the date of this Agreement.
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(h) So long as any of the Underwritten Securities are outstanding, to
furnish to the Representative copies of all reports and financial
statements furnished by the Company to each securities exchange on which
securities issued by the Company may be listed pursuant to requirements of
or agreements with such exchange or to the Commission pursuant to the
Exchange Act or any rule or regulation of the Commission thereunder;
(i) To endeavor to qualify the Underwritten Securities for offer and sale
under the securities laws of such jurisdictions as the Representative may
reasonably request and to maintain such qualifications in effect for as
long as may be required for the distribution of the Underwritten
Securities; provided, however, that the Company shall not be obligated to
file any general consent to service of process or to qualify as a foreign
corporation or as a dealer in securities in any jurisdiction in which it
is not so qualified or to subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so subject;
(j) To use its best efforts to obtain the listing of the Underwritten
Securities on the securities exchange, if any, set forth on Schedule I
("Stock Exchange") on or prior to the Delivery Date and to cause such
listing to be continued so long as any amount of the Securities remains
outstanding; to furnish from time to time any and all documents,
instruments, information and undertakings that may be necessary in order
to effect such listing; and to maintain the same until none of the
Underwritten Securities is outstanding or until such time as payment of
principal of and premium, if any, and interest on all the Underwritten
Securities has been duly provided for, whichever is earlier; provided that
if the Company can no longer reasonably maintain such listing, the Company
shall use its best efforts to obtain and maintain the quotation for, or
listing of, the Underwritten Securities on such other securities exchange
or exchanges as the Company may, with the approval of the Representative,
determine;
(k) To pay the costs incident to the authorization, issuance, sale and
delivery of the Underwritten Securities and any taxes payable in that
connection; the costs incident to the preparation, printing and filing
under the Act of the Registration Statement and any amendments,
supplements and exhibits thereto; the costs incident to the preparation,
printing and filing of any document and any amendments and exhibits
thereto required to be filed by the Company under the Exchange Act; the
costs of distributing the Registration Statement as originally filed and
each amendment and post-effective amendment thereof (including exhibits),
any Preliminary Prospectus, each Prospectus and any documents incorporated
by reference in any of the foregoing documents; the costs of printing this
Agreement and the Delayed Delivery Contracts, if any; the fees and
disbursements of the Company's counsel, accountants and other advisors;
the fees and expenses of the Trustee, including the fees and disbursements
of counsel for the Trustee in connection with the Indenture and the
Underwritten Securities, to the extent the Trustee or its counsel, as the
case may be, requires reimbursement thereof; the costs of any filings with
the National Association of Securities Dealers, Inc.; fees paid to rating
agencies in connection with the rating of the Securities, including the
Underwritten Securities; the fees and expenses of qualifying the
Underwritten Securities under the securities laws of the several
jurisdictions as provided in this Paragraph and of preparing and printing
a Blue Sky Memorandum (including fees of counsel to the Underwriters); the
cost of listing the Underwritten Securities on the Stock Exchange; and all
other costs and expenses incident to the performance of the Company's
obligations under this Agreement; provided that, except as provided in
this Paragraph and in Paragraph 11 hereof, the Underwriters shall pay
their own costs and expenses, including the fees and expenses of their
counsel, any transfer taxes on the Underwritten Securities which they may
sell and the expenses of advertising any offering of the Underwritten
Securities made by the Underwriters;
(l) Until the termination of the offering of the Underwritten Securities,
to timely file all documents, and any amendments to previously filed
documents, required to be filed by the Company pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act; and
(m) During the period beginning on the date hereof and continuing to the
Delivery Date, without the consent of the Representative, not to offer,
sell, contract to sell or otherwise dispose of any debt securities of the
Company with maturities longer than one year, other than the Underwritten
Securities to the Underwriters.
8. (a) The Company agrees to indemnify and hold harmless each Underwriter
and each person, if any, who controls any Underwriter within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement (or
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any amendment thereto) or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to make the
statements therein not misleading or arising out of any untrue statement
or alleged untrue statement of a material fact contained in any
Preliminary Prospectus or Prospectus (or any amendment or supplement
thereto), or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Paragraph
8(d) below) any such settlement is effected with the written consent of
the Company; and
(iii) against any and all expense whatsoever, as incurred (including the
fees and disbursements of outside counsel chosen by the Representative),
reasonably incurred in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency
or body, commenced or threatened, or any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue statement
or omission, to the extent that any such expense is not paid under (i) or
(ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through the Representative expressly for use in the Registration
Statement (or any amendment thereto) or any Preliminary Prospectus or
Prospectus (or any amendment or supplement thereto).
(b) Each Underwriter severally agrees to indemnify and hold harmless the
Company, its directors, each of its officers who signed the Registration
Statement, and each person, if any, who controls the Company within the meaning
of Section 15 of the Act or Section 20 of the Exchange Act against any and all
loss, liability, claim, damage and expense described in the indemnity contained
in subsection (a) of this Paragraph 8, as incurred, but only with respect to
untrue statements or omissions, or alleged untrue statements or omissions, made
in the Registration Statement (or any amendment thereto) or any Preliminary
Prospectus or Prospectus (or any amendment or supplement thereto) in reliance
upon and in conformity with written information furnished to the Company by
such Underwriter through the Representative expressly for use in the
Registration Statement (or any amendment thereto) or such Preliminary
Prospectus or Prospectus (or any amendment or supplement thereto).
(c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any liability
hereunder to the extent it is not materially prejudiced as a result thereof and
in any event shall not relieve it from any liability which it may have
otherwise than on account of this indemnity agreement. In the case of parties
indemnified pursuant to Paragraph 8(a) above, counsel to the indemnified
parties shall be selected by the Representative, and, in the case of parties
indemnified pursuant to Paragraph 8(b) above, counsel to the indemnified
parties shall be selected by the Company. An indemnifying party may participate
at its own expense in the defense of any such action; provided, however, that
counsel to the indemnifying party shall not (except with the consent of the
indemnified party) also be counsel to the indemnified party. In no event shall
the indemnifying parties be liable for fees and expenses of more than one
counsel (in addition to any local counsel) separate from their own counsel for
all indemnified parties in connection with any one action or separate but
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances. No indemnifying party shall, without the
prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever in respect of which indemnification or
contribution could be sought under this Paragraph 8 (whether or not the
indemnified parties are actual or potential parties thereto), unless such
settlement, compromise or consent (i) includes an unconditional release of each
indemnified party from all liability arising out of such litigation,
investigation, proceeding 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 at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel, such indemnifying party agrees that it shall be liable for any
settlement of
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the nature contemplated by Section 6(a)(ii) effected without its written
consent if (i) such settlement is entered into more than 45 days after receipt
by such indemnifying party of the aforesaid request, (ii) such indemnifying
party shall have received notice of the terms of such settlement at least 30
days prior to such settlement being entered into and (iii) such indemnifying
party shall not have reimbursed such indemnified party in accordance with such
request prior to the date of such settlement.
(e) If the indemnification provided for in this Paragraph 8 is for any
reason unavailable to or insufficient to hold harmless an indemnified party in
respect of any losses, liabilities, claims, damages or expenses referred to
therein, then each indemnifying party shall contribute to the aggregate amount
of such losses, liabilities, claims, damages and expenses incurred by such
indemnified party, as incurred, (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand and the
Underwriters on the other hand from the offering of the Underwritten Securities
pursuant to this Agreement or (ii) if the allocation provided by clause (i) is
not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but also
the relative fault of the Company on the one hand and of the Underwriters on
the other hand in connection with the statements or omissions which resulted in
such losses, liabilities, claims, damages or expenses, as well as any other
relevant equitable considerations.
The relative benefits received by the Company on the one hand and the
Underwriters on the other hand in connection with the offering of the
Underwritten Securities pursuant to this Agreement shall be deemed to be in the
same respective proportions as the total net proceeds from the offering of the
Underwritten Securities pursuant to this Agreement (before deducting expenses)
received by the Company and the total underwriting discount received by the
Underwriters, bear to the aggregate initial offering price of the Underwritten
Securities.
The relative fault of the Company on the one hand and the Underwriters on
the other hand shall be determined by reference to, among other things, whether
any such untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by
the Company or by the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Paragraph 8(e) 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 Paragraph 8(e). The
aggregate amount of losses, liabilities, claims, damages and expenses incurred
by an indemnified party and referred to above in this Paragraph 8(e) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Paragraph 8(e), no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the Underwritten 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
any 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.
For purposes of this Paragraph 8(e), each person, if any, who controls an
Underwriter within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act shall have the same rights to contribution as such Underwriter,
and each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act
shall have the same rights to contribution as the Company. The Underwriters'
respective obligations to contribute pursuant to this Paragraph 8(e) are
several in proportion to the principal amount of Underwritten Securities set
forth opposite their respective names in Schedule II hereto and not joint.
(f) The indemnity agreements contained in this Paragraph and the
representations, warranties and agreements of the Company in Paragraph 1 and
Paragraph 7 hereof shall survive the delivery of the Underwritten Securities
and shall remain in full force and effect, regardless of any termination or
cancellation of this Agreement or any investigation made by or on behalf of any
indemnified party.
8
9. (a) The Representative may terminate this Agreement, by notice to the
Company, at any time at or prior to the delivery of and payment for the
Immediate Delivery Underwritten Securities, (i) if there has been, since the
time of execution of this Agreement or since the respective dates as of which
information is given in the Prospectus, any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company, whether or not arising in the ordinary
course of business, the effect of which is such as to make it, in the judgment
of the Representative, impracticable to market the Underwritten Securities or
to enforce contracts for the sale of the Underwritten Securities, or (ii) if
there has occurred any material adverse change in the financial markets in the
United States, any outbreak of hostilities or escalation thereof or other
calamity or crisis or any change or development involving a prospective change
in national or international political, financial or economic conditions, in
each case the effect of which is such as to make it, in the judgment of the
Representative, impracticable to market the Underwritten Securities or to
enforce contracts for the sale of the Underwritten Securities, or (iii) if
trading in any securities of the Company or Xxxx Atlantic Corporation has been
suspended or materially limited by the Commission, or if trading generally on
the American Stock Exchange or the New York Stock Exchange or in the Nasdaq
National Market has been suspended or materially limited, or minimum or maximum
prices for trading have been fixed, or maximum ranges for prices have been
required, by any of said exchanges or by such system or by order of the
Commission, the National Association of Securities Dealers, Inc. or any other
governmental authority, or (iv) if a banking moratorium has been declared by
either Federal or New York authorities.
(b) If this Agreement is terminated pursuant to this Paragraph 9, such
termination shall be without liability of any party to any other party except
as provided in Paragraph 11 hereof, and provided further that Paragraphs 1 and
8 shall survive such termination and remain in full force and effect.
10. The respective obligations of the Underwriters under the Agreement
with respect to the Underwritten Securities are subject to the accuracy, on the
date hereof and on the Delivery Date, of the representations and warranties of
the Company contained herein, to performance by the Company of its obligations
hereunder, and to each of the following additional terms and conditions
applicable to the Underwritten Securities.
(a) At or before the Delivery Date, no stop order suspending the
effectiveness of the Registration Statement nor any order directed to any
document incorporated by reference in any Prospectus shall have been
issued and prior to that time no stop order proceeding shall have been
initiated or threatened by the Commission and no challenge shall have been
made to the accuracy or adequacy of any document incorporated by reference
in any Prospectus; any request of the Commission for inclusion of
additional information in the Registration Statement or any Prospectus or
otherwise shall have been complied with; and after the date hereof the
Company shall not have filed with the Commission any amendment or
supplement to the Registration Statement or any Prospectus (or any
document incorporated by reference therein) that shall have been
disapproved by the Representative.
(b) No Underwriter shall have discovered and disclosed to the Company on
or prior to the Delivery Date that the Registration Statement or any
Prospectus contains an untrue statement of a fact which, in the opinion of
counsel for the Underwriters, is material or omits to state a fact which,
in the opinion of such counsel, is material and is required to be stated
therein or is necessary to make the statements therein not misleading.
(c) All corporate proceedings and other legal matters incident to the
authorization, form and validity of this Agreement, the Underwritten
Securities and the Indenture and the form of the Registration Statement,
each Prospectus (other than financial statements and other financial data)
and all other legal matters relating to this Agreement and the
transactions contemplated hereby shall be satisfactory in all respects to
Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the Underwriters, and the Company
shall have furnished to such counsel all documents and information that
such counsel may reasonably request to enable it to pass upon such
matters.
(d) The General Counsel of the Company shall have furnished to the
Representative his opinion addressed to the Underwriters and dated the
Delivery Date, as General Counsel of the Company, to the effect that:
(i) The Company has been duly incorporated and is validly existing
and in good standing under the laws of the State of New York;
(ii) The Company is duly qualified to do business and is in good
standing as a foreign corporation in all jurisdictions in which its
ownership of property or the conduct of its business requires such
qualification (except where the failure to so qualify would not have a
Material Adverse Effect), and has all power and authority necessary to
own its properties and conduct the business in which it is engaged as
described in the Prospectus;
9
(iii) The Indenture has been duly authorized, executed and delivered
by the Company and duly qualified under the Trust Indenture Act and,
assuming due authentication, execution and delivery by the Trustee,
constitutes a valid and legally binding instrument of the Company
enforceable in accordance with its terms;
(iv) The Immediate Delivery Underwritten Securities have been duly
authorized, executed and issued by the Company and, assuming due
authentication thereof by the Trustee and upon payment and delivery in
accordance with this Agreement, will constitute valid and legally
binding obligations of the Company enforceable in accordance with their
terms and entitled to the benefits of the Indenture;
(v) The Delayed Delivery Underwritten Securities, if any, have been
duly authorized and, when duly executed and issued by the Company and,
assuming due authentication thereof by the Trustee and upon payment and
delivery by the respective purchasers thereof in accordance with the
terms of the related Delayed Delivery Contracts, will constitute valid
and legally binding obligations of the Company, enforceable in
accordance with their terms and entitled to the benefits of the
Indenture;
(vi) The Delayed Delivery Contracts, if any, have been duly
authorized, executed and delivered by the Company and, assuming due
authorization, execution and delivery by the purchasers thereunder, are
valid and legally binding obligations of the parties thereto;
(vii) The statements made in each Prospectus under the caption
"Description of Securities" (or a comparable caption), insofar as they
purport to constitute summaries of the documents referred to therein,
constitute accurate summaries of the terms of such documents in all
material respects;
(viii) The Registration Statement is effective under the Act and, to
the knowledge of such counsel, no stop order suspending its
effectiveness has been issued and no proceeding for that purpose is
pending or threatened by the Commission;
(ix) No order issued by the Commission directed to any document
incorporated by reference in any Prospectus has been issued and, to the
knowledge of such counsel, no challenge has been made by the Commission
to the accuracy or adequacy of any such document;
(x) Such counsel does not know of any litigation or any governmental
proceeding pending or threatened against the Company which would affect
the subject matter of this Agreement or is required to be disclosed in
any Prospectus (including the documents incorporated by reference
therein) which is not disclosed and correctly summarized therein;
(xi) To the best of such counsel's knowledge, the Company is not in
violation of its corporate charter or by-laws, or in default under any
material agreement, indenture or instrument;
(xii) This Agreement has been duly authorized, executed and delivered
by the Company;
(xiii) The execution, delivery and performance of this Agreement and
the Delayed Delivery Contracts, if any, and compliance by the Company
with the provisions of the Underwritten Securities and the Indenture
will not conflict with, or result in the creation or imposition of any
lien, charge or encumbrance upon any of the assets of the Company
pursuant to the terms of, or constitute a default under, any agreement,
indenture or instrument known to such counsel, or result in a violation
of the corporate charter or by-laws of the Company or, to the best of
such counsel's knowledge, any order, rule or regulation of any court or
governmental agency having jurisdiction over the Company or its
property;
(xiv) All legally required proceedings in connection with the
authorization, issue and validity of the Underwritten Securities and the
sale of the Underwritten Securities by the Company in accordance with
this Agreement have been taken, and all legally required orders,
consents or other authorizations or approvals of the PSC and of any
other public boards or bodies have been obtained; and
(xv) The Company is not an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in
the 1940 Act.
[In giving such opinion, such counsel may rely on the opinion of New York
counsel satisfactory to counsel for the Underwriters as to matters of New York
law. In giving such opinion, such counsel need not express any opinion
regarding any order, consent or other authorization or approval which may be
legally required pursuant to any state securities law.]
10
Such counsel may state that the opinions set forth in paragraphs (iii),
(iv), (v) and (vi) above are subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing.
Such opinion shall also state that the Registration Statement and each
Prospectus as of their respective effective and issue dates complied as to form
in all material respects with the requirements of the Act and the Trust
Indenture Act and the rules and regulations of the Commission under said Acts
(except that no opinion need be expressed as to the financial statements and
other financial data contained herein) and each document incorporated by
reference in each Prospectus as filed under the Exchange Act complied when so
filed as to form in all material respects with the applicable requirements of
the Exchange Act and the rules and regulations of the Commission thereunder
(except that no opinion need be expressed as to the financial statements and
other financial data contained therein).
Such opinion shall also contain a statement that such counsel has no
reason to believe that (i) the Registration Statement, on the date it became
effective (or, with respect to the Registration Statement, if the Company has
filed an Annual Report on Form 10-K since its effective date, the date of the
Company's most recent Annual Report on Form 10-K), contained an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary in order to make the statements therein not
misleading, or (ii) the Prospectus, as of its date and as of the Delivery Date,
contains an untrue statement of a material fact or omits to state a material
fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(e) At the Delivery Date, there shall not have been, since the date hereof
or since the respective dates as of which information is given in the
Prospectus, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Company, whether or not arising in the ordinary course of business, and the
Representative shall have received a certificate of the Chairman of the Board,
the President, the Chief Financial Officer or a Vice President of the Company,
and the Treasurer or an Assistant Treasurer of the Company, dated the Delivery
Date, to the effect that (i) there has been no such material adverse change,
(ii) the representations and warranties in Paragraph 1 hereof are true and
correct with the same force and effect as though expressly made at and as of
the Delivery Date, (iii) the Company has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied at or prior
to the Delivery Date, and (iv) no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings for that purpose
have been instituted or are pending or are contemplated by the Commission.
(f) If Underwritten Securities in bearer form are being delivered by the
Company on the Delivery Date in a jurisdiction other than the United States,
the Company shall have furnished to the Representative such legal opinion or
opinions as the Representative may reasonably request addressed to the
Underwriters and dated the Delivery Date, with respect to matters relating to
the offering, sale and delivery of the Underwritten Securities in such
jurisdiction.
(g) The Company shall have furnished to the Representative (i) a letter of
PricewaterhouseCoopers, addressed to the Underwriters and dated the date hereof
of the type described in the American Institute of Certified Public
Accountants' Statement on Auditing Standards No. 72 and covering such specified
financial statement items as counsel for the Underwriters may reasonably have
requested and (ii) a letter of PricewaterhouseCoopers, addressed to the
Underwriters and dated the Delivery Date, stating, as of the date of such
letter (or, with respect to matters involving changes or developments since the
respective dates as of which specified financial information is given in the
Prospectus, as of a date not more than five days prior to the date of such
letter), the conclusions and findings of such firm with respect to the
financial information and other matters covered by its letter referred to in
subclause (i) above, confirming in all material respects the conclusions and
findings set forth in such prior letter.
(h) Xxxxxxx Xxxxxxx & Xxxxxxxx shall have furnished to the Representative
its opinion addressed to the Underwriters and dated the Delivery Date, as
counsel for the Underwriters, covering the matters set forth in Paragraph
10(d), except clauses (ii), (viii), (ix), (x), (xi) and (xiii) thereof.
(i) The PSC shall have granted authorization, and on the Delivery Date
such authorization shall be in full force and effect, permitting the issuance
and sale of the Underwritten Securities upon the terms and conditions hereunder
set forth or contemplated and containing no provision unacceptable to the
Underwriters, and, all conditions precedent to the issuance and sale of the
Underwritten Securities contained therein shall have been fulfilled.
(j) The Underwritten Securities shall have been accepted for listing on
the Stock Exchange (if any), subject to official notice of issuance.
11
(k) At the Delivery Date, the Underwritten Securities shall be rated at
least "Aa3" by Moody's Investor's Service Inc., "AA" by Standard & Poor's
Ratings Group, a division of XxXxxx-Xxxx, Inc., and "AA-" by Duff & Xxxxxx
Credit Rating Co., and the Company shall have delivered to the Representative a
letter dated the Delivery Date, from each such rating agency, or other evidence
satisfactory to the Representative, confirming that the Underwritten Securities
have such ratings; and since the date of this Agreement, there shall not have
occurred a downgrading in the rating assigned to the Underwritten Securities or
any of the Company's other debt securities by any such rating agency, and no
such rating agency shall have publicly announced that it has withdrawn or has
put under surveillance or review with negative implications, including putting
on what is commonly termed a "watch list," its rating of the Underwritten
Securities or any of the Company's other debt securities.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance satisfactory to
counsel for the Underwriters.
11. If the Company shall fail to tender the Immediate Delivery
Underwritten Securities for delivery to the Underwriters for any reason
permitted under this Agreement, or if the Underwriters shall decline to
purchase the Immediate Delivery Underwritten Securities for any reason
permitted under this Agreement (other than pursuant to Paragraph 5 hereof). the
Company shall reimburse the Underwriters for reasonable fees and expenses of
their counsel and for such other out-of-pocket expenses as shall have been
incurred by them in connection with this Agreement and the proposed purchase of
Immediate Delivery Underwritten Securities and the solicitation of any
purchases of the Delayed Delivery Underwritten Securities, and upon demand the
Company shall pay the full amount thereof to the Representative. If this
Agreement is terminated pursuant to Paragraph 5 hereof by reason of the default
of one or more Underwriters, the Company shall not be obligated to reimburse
any defaulting Underwriter on account of those expenses.
12. The Company shall be entitled to act and rely upon any request,
consent, notice or agreement by, or on behalf of, the Representative. Any
notice by the Company to the Underwriters shall be sufficient if given in
writing or by telegraph addressed to the Representative at its address set
forth in Schedule I hereto, and any notice by the Underwriters to the Company
shall be sufficient if given in writing or by telegraph addressed to the
Company at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention of
the Treasurer.
13. This Agreement shall be binding upon the Underwriters, the Company,
and their respective successors. This Agreement and the terms and provisions
hereof are for the sole benefit of only those persons, except that (a) the
representations, warranties, indemnities and agreements of the Company
contained in this Agreement shall also be deemed to be for the benefit of the
person or persons, if any, who control any Underwriter within the meaning of
Section 15 of the Act, and (b) the indemnity agreement of the Underwriters
contained in Paragraph 8 hereof shall be deemed to be for the benefit of
directors of the Company, officers of the Company who have signed the
Registration Statement and any person controlling the Company. Nothing in this
Agreement is intended or shall be construed to give any person, other than the
persons referred to in this Paragraph, any legal or equitable right, remedy or
claim under or in respect of this Agreement or any provision contained herein.
14. For purposes of this Agreement, "business day" means any day on which
the New York Stock Exchange, Inc. is open for trading.
15. This Agreement shall be governed by and construed in accordance with
the laws of New York.
12
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this Agreement shall represent a binding agreement among the Company
and the several Underwriters.
Very truly yours,
XXXX ATLANTIC - WASHINGTON, D.C., INC.
By
---------------------------------------
Name:
Title:
The foregoing Agreement is hereby confirmed
and accepted as of the date first above
written.
[ ]
--------------------
By
--------------------------
Name:
Title:
For itself and as Representative of the other Underwriters named in Schedule II
to the foregoing Agreement.
13
SCHEDULE I
Underwriting Agreement dated , 1998.
Registration Statement Nos.
Representatives and Addresses:
Underwritten Securities Designation:
Principal amount: $
Indenture: Indenture dated as of February 1, 1993 from Xxxx
Atlantic - Washington, D.C., Inc., to Crestar Bank, as
Trustee.
Date of Maturity:
Interest Rate:
Purchase Price: % of the principal amount thereof.
Redemption Provisions:
Authorized Denominations: $1,000 and integral multiples thereof.
Stock Exchange Listing: None.
Delivery Date, Time and Location: , 1998 at 10:00 a.m. at the offices of Xxxxxxx
Xxxxxxx & Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx,
XX 00000.
SCHEDULE II
Principal
Amount of
Underwritten
Name of Underwriter Securities
--------------------- ---------------
$
Total
------------
$
============
EXHIBIT A
$
XXXX ATLANTIC - WASHINGTON, D.C., INC.
DEBT SECURITIES
DELAYED DELIVERY CONTRACT
[DATE]
XXXX ATLANTIC - WASHINGTON, D.C., INC.
0000 X Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Dear Sirs:
The undersigned hereby agrees to purchase from Xxxx Atlantic - Washington,
D.C., Inc., a New York corporation ("Company"), and the Company hereby agrees
to sell to the undersigned,
$
principal amount of the Company's above-captioned securities ("Securities"),
offered by the Company's prospectus dated , 199 , as supplemented by the
prospectus supplement dated , 199 (collectively, the "Prospectus"),
receipt of a copy of which is hereby acknowledged, at a purchase price of % of
the principal amount thereof plus accrued interest from , 199 to the
Delivery Date (as defined in the next paragraph) and on the further terms and
conditions set forth in this Contract.
Payment for and delivery of the Securities to be purchased by the
undersigned shall be made on , 199 , herein called the "Delivery Date".
At 10:00 A.M., New York time, on the Delivery Date, the Securities to be
purchased by the undersigned hereunder will be delivered by the Company to the
undersigned, and the undersigned will accept delivery of such Securities and
will make payment to the Company of the purchase price therefor, at the office
of . Payment will be certified or official bank check payable in next-day
funds settled through the New York Clearing House to or upon the order of the
Company.
This Contract will terminate and be of no further force and effect after
, 199 , unless (i) on or before such date it shall have been executed and
delivered by both parties hereto or (ii) the Company shall have sold to the
Underwriters named in the Prospectus the Immediate Delivery Underwritten
Securities (as defined in the Underwriting Agreement referred to in the
Prospectus) and the Company shall have mailed or delivered to the undersigned
at its address set forth below a notice to that effect, stating the date of the
occurrence thereof, accompanied by copies of the opinion of counsel for the
Company delivered to such Underwriters pursuant to Paragraph 10(d) of the
Underwriting Agreement.
The obligation of the undersigned to accept delivery and make payment for
the Securities on the Delivery Date will be subject to the condition that the
Securities shall not, on the Delivery Date, be an investment prohibited by the
laws of the jurisdiction to which the undersigned is subject, the undersigned
hereby representing that such an investment is not so prohibited on the date
hereof. This Contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors but will not be assignable by
either party hereto without the written consent of the other.
It is understood that acceptance of any Delayed Delivery Contract (as
defined in said Underwriting Agreement) is in the Company's sole discretion
and, without limiting the foregoing, need not be on a first-come, first-served
basis. If this Contract is acceptable to the Company, it is requested that the
Company sign the form of acceptance below and mail or deliver one of the
counterparts hereof to the undersigned at its address set forth below. This
will become a binding contract between the Company and the undersigned when
such counterpart is so mailed or delivered.
Very truly yours,
By
---------------------------------------
-----------------------------------------
Title
-----------------------------------------
Address
Accepted as of
XXXX ATLANTIC - WASHINGTON, D.C., INC.
By
--------------------------------------
Title
