$100,000,000
XXXXXXX ENTERPRISES, INC.
6.70% Notes due 2003
UNDERWRITING AGREEMENT
December 4,1996
NationsBanc Capital Markets, Inc.
Bear, Xxxxxxx & Co. Inc.
Citicorp Securities, Inc.
c/o NationsBanc Capital Markets, Inc.
NationsBank Corporate Center
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Dear Sirs:
SECTION 1. Introductory. Xxxxxxx Enterprises,
Inc., a Louisiana corporation (the "Company"), proposes to
issue and sell to the several Underwriters named in Schedule
I hereto (the "Underwriters"), $100,000,000 principal amount
of its 6.70% Notes due 2003 (the "Notes"). The Notes are to
be issued pursuant to the provisions of an indenture dated
as of December 1, 1996 (the "Indenture") between the Company
and Citibank, N.A., as Trustee (the "Trustee"). The Company
hereby agrees with the Underwriters as follows:
SECTION 2. Representations, Warranties and
Agreements of the Company. The Company represents and
warrants to, and agrees with, the several Underwriters that:
1 (a) A registration statement on Form S-3
(File No. 333-14467) with respect to an aggregate
of $300,000,000 principal amount of debt
securities (including the Notes) (i) has been
prepared by the Company in conformity with the
requirements of the Securities Act of 1933, as
amended (the "Act"), and the rules and regulations
(the "Rules and Regulations") of the Securities
and Exchange Commission (the "Commission")
thereunder, (ii) has been filed with the
Commission under the Act and (iii) has become
effective under the Act and either is not proposed
to be amended or is proposed to be amended by
amendment or post-effective amendment. If any
post-effective amendment to such registration
statement has been filed with the Commission prior
to the execution and delivery of this Agreement,
the most recent such amendment has been declared
effective by the Commission. Copies of such
registration statement as amended to date have
been delivered by the Company to you. For
purposes of this Agreement, "Effective Time" means
the date and the time as of which such
registration statement, or the most recent post-
effective amendment thereto, if any, was declared
effective by the Commission; "Effective Date"
means the date of the Effective Time; "Preliminary
Prospectus" means each prospectus included in such
registration statement, or amendments thereof,
before it became effective under the Act and any
prospectus filed with the Commission by the
Company with the consent of the Underwriters
pursuant to Rule 424(a) of the Rules and
Regulations prior to the filing of the Prospectus;
"Registration Statement" means such registration
statement, as amended at the Effective Time,
including any documents incorporated by reference
therein but excluding that part of the
registration statement that constitutes the
Statement of Eligibility and Qualification ("Form
T-1") under the Trust Indenture Act of 1939, as
amended (the "1939 Act"), of the Trustee;
"Prospectus" means the prospectus relating to the
Notes, in the form in which it has most recently
been filed, or transmitted for filing, with the
Commission on or prior to the date of this
Agreement; any reference herein to any Preliminary
Prospectus or the Prospectus shall be deemed to
refer to and include the documents incorporated by
reference therein as of the date of such
Preliminary Prospectus or Prospectus, as the case
may be; 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; any reference to
any amendment to the Registration Statement shall
be deemed to refer to and include any annual
report of the Company filed pursuant to Section
13(a) or 15(d) of the Exchange Act after the
effective date of the Registration Statement that
is incorporated by reference in the Registration
Statement; and any reference to the Prospectus as
amended or supplemented shall be deemed to refer
to the Prospectus as amended or supplemented in
relation to the Notes in the form in which it is
filed with the Commission pursuant to Rule 424(b)
under the Act in accordance with Section 5(a)
hereof, including any documents incorporated by
reference therein as of the date of such filing.
The Commission has not issued any order preventing
or suspending the use of any Preliminary
Prospectus or the Prospectus.
(b) The Registration Statement and the Prospectus
conform, and any amendments or supplements thereto will
conform, in all material respects with the requirements
of the Act and the Rules and Regulations, and at the
Effective Time, the Registration Statement did not
include 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, and the Prospectus, as amended or
supplemented at the Closing Date, if applicable, will
not contain any untrue statement of a material fact or
omit to state a material fact required to be stated
therein or necessary to make the statements contained
therein, in the light of the circumstances under which
they were made, not misleading; except that the
foregoing does not apply to statements in or omissions
from the Registration Statement or the Prospectus, as
amended or supplemented if applicable, based upon
written information furnished to the Company by any
Underwriter through you specifically for use therein.
(c) The consolidated financial statements included
in the Registration Statement and Prospectus present
fairly the consolidated financial position of the
Company and its consolidated subsidiaries as at the
dates indicated and the results of their operations and
the changes in their cash flow for the periods
specified; said financial statements have been prepared
in conformity with generally accepted accounting
principles applied on a consistent basis during the
periods involved, except as indicated therein; and the
supporting schedule included in the Registration
Statement presents fairly the information required to
be stated therein.
(d) Since the respective dates as of which
information is given in the Registration Statement and
the Prospectus, except as otherwise stated therein, (i)
there has been no material adverse change in the
condition, financial or otherwise, earnings, affairs or
business prospects of the Company and its subsidiaries
considered as a whole, whether or not arising in the
ordinary course of business and (ii) there have been no
material transactions entered into by the Company or
any of its subsidiaries other than those, including
acquisitions, in the ordinary course of business.
(e) The Company has been duly incorporated and is
validly existing as a corporation in good standing
under the laws of the State of Louisiana with corporate
power and authority to own, lease and operate its
properties and conduct its business as described in the
Registration Statement; and the Company is duly
qualified as a foreign corporation to transact business
and is in good standing in each jurisdiction in which
it owns or leases properties or in which the conduct of
its business requires such qualification, except to the
extent that the failure to be so qualified or be in
good standing would not have a material adverse effect
on the Company and its subsidiaries considered as a
whole.
(f) Each of the subsidiaries of the Company has
been duly incorporated or formed and is validly
existing in good standing under the laws of the
jurisdiction of its incorporation or formation, with
full power and authority to own, lease and operate its
properties and conduct its business as described in the
Registration Statement and is duly qualified to
transact business and is in good standing in each
jurisdiction in which it owns or leases properties or
in which the conduct of its business requires such
qualification, except to the extent that the failure to
be so qualified or be in good standing would not have a
material adverse effect on the Company and its
subsidiaries considered as a whole; all of the issued
and outstanding capital stock of each corporate
subsidiary has been duly authorized and validly issued
and is fully paid and nonassessable and, except as set
forth in Schedule II hereto, all of the outstanding
capital stock or partnership interests of each
subsidiary are owned by the Company, directly or
through subsidiaries, free and clear of any mortgage,
pledge, lien, encumbrance or claim.
(g) Neither the Company nor any of its
subsidiaries is (i) in violation of its or any of their
charters, by-laws, partnership agreements or other
governing documents or (ii) in default in the
performance or observance of any obligation, agreement,
covenant or condition contained in any material
contract, indenture, mortgage, loan agreement, note,
lease or other instrument to which it or any of them is
a party or by which it or any of them or their
properties may be bound (except in the case of defaults
that, individually or in the aggregate, would not have
a material adverse effect on the condition, financial
or otherwise, earnings, affairs or business prospects
of the Company and its subsidiaries considered as a
whole); no consent, approval, authorization or order of
any court or governmental authority or agency is
required for the consummation by the Company of the
transactions contemplated by this Agreement, except
such as may be required under the Act, the 1939 Act,
the Rules and Regulations or state securities or blue
sky laws; and the execution and delivery of this
Agreement, the Indenture and the Notes and the
consummation of the transactions contemplated herein
and therein will not conflict with or constitute a
breach of, or default under, or result in the creation
or imposition of any lien, charge or encumbrance upon
any property or assets of the Company or any of its
subsidiaries pursuant to, any material contract,
indenture, mortgage, loan agreement, note, lease or
other instrument to which the Company or any of its
subsidiaries is a party or by which it or any of them
may be bound or to which any of the property or assets
of the Company or any of its subsidiaries is subject,
nor will such action result in any violation of or
conflict with the provisions of the charter or by-laws
of the Company or any law, administrative regulation or
administrative or court decree.
(h) The Company and its subsidiaries possess
adequate certificates, authorities, licenses or permits
issued by the appropriate state, federal or foreign
regulatory agencies or bodies necessary to conduct the
business now operated by them, and neither the Company
nor any of its subsidiaries has received any notice of
proceedings relating to the revocation or modification
of any such certificate, authority, license or permit
that, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would
materially adversely affect the condition, financial or
otherwise, earnings, affairs or business prospects of
the Company and its subsidiaries considered as a whole.
(i) Except as set forth in the Prospectus, there
is no action, suit or proceeding before or by 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 or any of
its subsidiaries, that might result in any material
adverse change in the condition, financial or
otherwise, earnings, affairs or business prospects of
the Company and its subsidiaries considered as a whole,
or might materially and adversely affect the offering
of the Notes; and there are no material contracts or
other documents that are required to be filed as
exhibits to the Registration Statement by the Act or by
the Rules and Regulations that have not been so filed.
(j) The Company and each of its subsidiaries has
good and marketable title in fee simple to all real
property and good and marketable title to all personal
property owned by it and necessary in the conduct of
the business of the Company or such subsidiary in each
case free and clear of all liens, encumbrances and
defects except (i) such as are referred to in the
Prospectus or (ii) such as do not individually or in
the aggregate have a material adverse effect on the
Company and its subsidiaries taken as a whole.
(k) This Agreement has been duly authorized,
executed and delivered by the Company and is a valid
and binding agreement of the Company, except as rights
to indemnity hereunder may be limited by applicable law
and except as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or
other laws relating to or affecting enforcement of
creditors' rights generally or by general equity
principles.
(l) The Indenture has been duly qualified under
the 1939 Act, has been duly authorized and, when
executed and delivered by the Company, will be a valid
and binding agreement of the Company enforceable
against the Company in accordance with its terms,
except as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or
other laws relating to or affecting enforcement of
creditors' rights generally or by general equity
principles.
(m) The Notes have been duly and validly
authorized by the Company for issuance and sale to the
Underwriters pursuant to this Agreement and, when
executed by the Company and authenticated by the
Trustee in accordance with the Indenture and delivered
to the Underwriters against payment therefor in
accordance with the terms hereof, will have been
validly issued and delivered, free of any preemptive or
similar rights, and will constitute valid and binding
obligations of the Company, will be entitled to the
benefits of the Indenture and enforceable against the
Company in accordance with their terms, except as
enforcement thereof may be limited by bankruptcy,
insolvency, reorganization or other similar laws
relating to or affecting the enforcement of creditors'
rights generally or by general equity principles. The
Notes conform, or will conform, to the description
thereof in the Registration Statement and the
Prospectus. Neither the filing of the Registration
Statement nor the offering or sale of the Notes as
contemplated by this Agreement gives rise to any
rights, other than those that have been duly waived or
satisfied, for or relating to the registration of any
securities of the Company. The capitalization of the
Company as of the date of the most recent balance
sheet included in the Prospectus is as set forth in the
Prospectus. The Company has all requisite corporate
power and authority to issue, sell and deliver the
Notes in accordance with and upon the terms and
conditions set forth in this Agreement and in the
Registration Statement and Prospectus. All corporate
action required to be taken by the Company for the
authorization, issuance, sale and delivery of the Notes
to be sold by the Company hereunder has been validly
and sufficiently taken.
SECTION 3. Purchase, Sale and Delivery of Notes.
On the basis of the representations, warranties and
agreements herein contained, but subject to the terms and
conditions herein set forth, the Company agrees to issue and
sell to the Underwriters, and each Underwriter agrees,
severally and not jointly, to purchase from the Company at a
purchase price of 99.375% of the principal amount per Note
(the "purchase price per Note") plus accrued interest, if
any, from December 9, 1996 to the date of payment and
delivery, the respective principal amount of Notes set forth
opposite such Underwriter's name in Schedule I hereto.
The Notes to be purchased by each Underwriter
hereunder will be represented by one or more definitive
Global Certificates in book-entry form which will be
deposited by or on behalf of the Company with The Depository
Trust Company ("DTC") or its designated custodian. The
Company will deliver the Notes to NationsBanc Capital
Markets, Inc. ("NationsBanc") for the account of each
Underwriter, against payment by or on behalf of such
underwriter of the purchase price therefor by wire transfer
of immediately available funds to the account specified by
the Company, by causing DTC to credit the Notes to the
account of NationsBanc at DTC. The Company will cause the
certificates representing the Notes to be made available to
NationsBanc for checking at least twenty-four hours prior to
the Closing Date at the office of DTC or its designated
custodian. The Closing Date and time shall be 10:00 a.m.,
New Orleans time, on December 9, 1996, or at such other date
and time not later than seven full business days thereafter
as you and the Company determine. The documents (other than
the certificate(s) representing the Notes) to be delivered
on the Closing Date will be delivered at the offices of
Jones, Walker, Waechter, Poitevent, Carrere & Xxxxxxx
L.L.P., and the Notes will be delivered at the office of DTC
or its designated custodian.
SECTION 4. Offering by Underwriters. The several
Underwriters will offer the Notes for sale to the public on
the terms as set forth in the Prospectus as amended or
supplemented.
SECTION 5. Covenants of the Company. The Company
covenants and agrees with the several Underwriters that:
(a) The Company will prepare a final prospectus
supplement with respect to the Notes in a form approved
by you and will file such prospectus supplement
pursuant to Rule 424(b) under the Act by the time
required pursuant to Rule 424(b) under the Act. The
Company will advise you promptly of the filing or
effectiveness of any amendment or supplement to the
Registration Statement or the Prospectus, the receipt
of any comments from the Commission with respect to the
Registration Statement or the Prospectus or any
amendment or supplement thereto, and of receipt of
notification of the institution by the Commission or
any State of any stop order proceedings in respect of
the Registration Statement or the initiation or
threatening of any proceeding for such purpose, and
will use every reasonable effort to prevent the
issuance of any such stop order and to obtain as soon
as possible its lifting, if issued. The Company will
also notify you promptly of any request by the
Commission for any amendment of or supplement to the
Registration Statement or the Prospectus or for
additional information; the Company will prepare and
file with the Commission, promptly upon your request,
any amendments or supplements to the Registration
Statement or the Prospectus which, in your opinion, may
be necessary or advisable in connection with the
distribution of the Notes; and the Company will not
file any amendment or supplement to the Registration
Statement or the Prospectus or file any document under
the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), before the termination of the offering
of the Notes by the Underwriters if such document would
be deemed to be incorporated by reference into the
Prospectus, which filing is not consented to by you
after reasonable notice thereof, such consent not to be
unreasonably withheld or delayed.
(b) If, during such period of time after the first
date of the public offering of the Notes as in the
opinion of counsel for the Underwriters a prospectus
relating to the Notes is required by law to be
delivered in connection with sales by an Underwriter or
dealer, any event occurs as a result of which the
Prospectus as then amended or supplemented would, in
the judgment of the Underwriters and their counsel,
include an untrue statement of a material fact, or omit
to state a material fact necessary to make the
statements therein, in light of the circumstances under
which they were made, not misleading, or if it is
necessary at any time to amend the Prospectus to comply
with the Act or any other law, the Company promptly
will prepare and file with the Commission an amendment
or supplement that will correct such statement or
omission or an amendment that will effect such
compliance and will notify you and, upon your request,
prepare and furnish without charge to each Underwriter
and to any dealer in the Notes as many copies as you
may from time to time reasonably request of an amended
Prospectus or a supplement to the Prospectus that will
correct such statement or omission or effect such
compliance.
(c) The Company will make generally available to
the Company's security holders (and shall deliver to
you), in the manner contemplated by Rule 158(b) under
the Act or otherwise, as soon as practicable but in any
event not later than 45 days after the end of its
fiscal quarter in which the first anniversary date of
the Effective Date occurs (or not later than 90 days
after the end of such fiscal quarter if such fiscal
quarter is the last fiscal quarter of the fiscal year),
an earnings statement satisfying the requirements of
Section 11(a) of the Act and the Rules and Regulations
and covering a period of at least 12 consecutive months
beginning after the Effective Date.
(d) The Company will deliver to each of you as
many conformed copies of the Registration Statement (as
originally filed) and of each amendment thereto
(including exhibits filed therewith or incorporated by
reference therein) and of the Prospectus as you may
reasonably request, including a conformed copy of the
Registration Statement and each amendment thereto for
each of the Underwriters. In addition, the Company
will deliver to Xxxxx & Xxxxx, L.L.P. one original
executed version of the Registration Statement and each
amendment thereto, including exhibits.
(e) The Company will endeavor, in cooperation with
you, to qualify the Notes for offering and sale under
the applicable securities laws of such states and other
jurisdictions of the United States as you may
designate, and will maintain such qualifications in
effect for as long as may be required for the
distribution of the Notes.
(f) During the period of three years hereafter,
the Company will furnish to you, and upon request to
each of the other Underwriters, as soon as practicable
after the end of each fiscal year, a copy of its annual
report to stockholders for such year, and the Company
will furnish to you as soon as available, a copy of
each report or definitive proxy statement of the
Company filed with the Commission under the Exchange
Act or mailed to stockholders.
(g) Until the termination of the offering of the
Notes, the Company shall timely file all documents and
amendments to previously filed documents required to be
filed by it pursuant to Section 12, 13, 14 or 15(d) of
the Exchange Act.
(h) The Company shall apply the net proceeds from
the sale of the Notes as set forth in the Prospectus.
SECTION 6. Conditions of the Obligations of the
Underwriters. The obligations of the several Underwriters
to purchase and pay for the Notes on the Closing Date will
be subject to the accuracy of the representations and
warranties on the part of the Company herein as of the date
hereof and as of the Closing Date with the same force and
effect as if made as of that date, to the performance by the
Company of its obligations hereunder and to the following
additional conditions precedent:
(a) The Registration Statement shall have become
effective (or if a post-effective amendment is required
to be filed under the Act, such post-effective
amendment shall have become effective) not later than
5:00 p.m., New York time, on the date of this
Agreement, or such later time or date as shall have
been consented to by you; and prior to the Closing
Date, no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no
proceedings for that purpose shall have been
instituted, or to the knowledge of the Company or you,
shall be contemplated by the Commission.
(b) You shall not have advised the Company that
the Registration Statement or Prospectus, or any
amendment or supplement thereto, contains an untrue
statement of fact or omits to state a fact which, you
have concluded, is material and in the case of an
omission is required to be stated therein or is
necessary to make the statements therein not
misleading.
(c) You shall have received a favorable opinion of
Jones, Walker, Waechter, Poitevent, Carrere & Xxxxxxx,
L.L.P., counsel for the Company ("Xxxxx, Xxxxxx"),
dated the Closing Date, to the effect that:
(i) The Company has been duly incorporated
and is validly existing as a corporation in good
standing under the laws of Louisiana with
corporate power and authority to own, lease and
operate its properties and conduct its business as
described in the Registration Statement; and, to
such counsel's knowledge after due inquiry, the
Company is duly qualified as a foreign corporation
to transact business and is in good standing in
each jurisdiction in which it owns or leases
property or in which the conduct of its business
requires such qualification, except to the extent
that the failure to be so qualified or be in good
standing would not have a material adverse effect
on the Company and its subsidiaries considered as
a whole.
(ii) Each of the subsidiaries of the Company
listed on Schedule III hereto (the "Significant
Subsidiaries") has been duly incorporated and is
validly existing as a corporation in good standing
under the laws of the jurisdiction of its
incorporation, has corporate power and authority
to own, lease and operate its properties and
conduct its business as described in the
Registration Statement and, to such counsel's
knowledge, is duly qualified as a foreign
corporation to transact business and is in good
standing in each jurisdiction in which it owns or
leases properties or in which the conduct of its
business requires such qualification, except to
the extent that the failure to be so qualified or
be in good standing would not have a material
adverse effect on the condition, financial or
otherwise, or the earnings, business affairs or
business prospects of the Company and its
subsidiaries considered as a whole; all of the
issued and outstanding capital stock of each
Significant Subsidiary is held of record by the
Company or a wholly owned subsidiary of the
Company and has been duly authorized and validly
issued and is fully paid and non-assessable, and
all of such capital stock, to their knowledge
after due inquiry, is owned by the Company or a
wholly owned subsidiary of the Company free and
clear of any mortgage, pledge, lien, encumbrance,
claim or equity (other than those mortgages,
pledges, liens, encumbrances, claims or equities
specifically noted in such opinion).
(iii) All of the outstanding shares of
capital stock of the Company have been duly
authorized and are validly issued, fully paid and
nonassessable. To such counsel's knowledge after
due inquiry, neither the filing of the
Registration Statement nor the offering or sale of
the Notes as contemplated by this Agreement gives
rise to any rights, other than those which have
been waived or satisfied, for or relating to the
registration of any securities of the Company or
any of its subsidiaries and, to their knowledge,
no person or entity (other than the Underwriters)
has the right, contractual or otherwise, to cause
the Company to sell or otherwise issue to such
person or entity, or permit such person or entity
to underwrite the sale of, any of the Notes. The
authorized capital stock of the Company is as set
forth in the Prospectus, and the Notes conform as
to legal matters to the description thereof
contained in the Prospectus. The Company has all
requisite corporate power and authority to issue,
sell and deliver the Notes in accordance with and
upon the terms and conditions set forth in this
Agreement and in the Registration Statement and
Prospectus.
(iv) This Agreement has been duly authorized,
executed and delivered by the Company. The courts
of Louisiana will give effect to the choice of law
provisions of this Agreement.
(v) The Indenture has been duly authorized,
executed and delivered by the Company and has been
duly qualified under the 1939 Act. The courts of
Louisiana will give effect to the choice of law
provisions of the Indenture applicable to the
Indenture and the Notes.
(vi) The Notes have been duly authorized and
executed by the Company for issuance and sale to
the Underwriters.
(vii) The Registration Statement is effective
under the Act and, to their knowledge after due
inquiry, no stop order suspending the
effectiveness of the Registration Statement has
been issued under the Act or proceedings therefor
initiated or threatened by the Commission. All
required filings by the Company under Rule 424(b)
of the Rules and Regulations with respect to the
Notes have been timely made.
(viii) Statements set forth in the Prospectus
under the headings "Description of the Notes" and
"Description of Debt Securities," in the
Registration Statement in Item 15, under the
headings "Legal Proceedings" and "Regulation" in
the Company's Annual Report on Form 10-K for the
fiscal year ended October 31, 1995, and under the
heading "Legal Proceedings" in each of the
Company's Quarterly Reports on Form 10-Q filed
with the Commission since that time, which are
incorporated by reference into the Prospectus,
insofar as such statements constitute a summary of
the legal matters, documents or proceedings
referred to therein, fairly present the
information called for with respect to such legal
matters, documents and proceedings.
(ix) To such counsel's knowledge after due
inquiry, no consent, approval, authorization or
order of any court or governmental authority or
agency is required in connection with the
transactions contemplated by this Agreement,
except such as may be required under the Act, the
1939 Act, the Rules and Regulations or state
securities or Blue Sky laws; and, to their
knowledge after due inquiry, the execution and
delivery of this Agreement, the Notes and the
Indenture and the consummation of the transactions
contemplated herein will not conflict with or
constitute a breach of, or default under, or
result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets
of the Company or any of its subsidiaries pursuant
to, any material contract, indenture, mortgage,
loan agreement, note, lease or other instrument
known to such counsel to which the Company or any
of its subsidiaries is a party or by which it or
any of them may be bound or to which any of the
property or assets of the Company or any of its
subsidiaries is subject; nor will such action
result in any violation of the provisions of the
charter or by-laws of the Company, or any law,
administrative regulation or administrative or
court decree known by such counsel to be
applicable to the Company.
(x) To such counsel's knowledge after due
inquiry, there are no legal or governmental
proceedings pending or threatened to which the
Company or any of its subsidiaries is a party or
to which any of the properties of the Company is
subject that are required to be described, in the
Registration Statement or the Prospectus and are
not so described or any material contracts or
other documents that are required to be described
in the Registration Statement or the Prospectus or
to be filed as an exhibit to the Registration
Statement that are not so described or filed as
required; and
(xi) The Registration Statement and any
further amendments thereto made by the Company at
the time the Registration Statement and each
amendment thereto became effective and the
prospectus and any amendment or supplement
thereto, on the date of filing thereof with the
Commission (except that in each case no opinion
need be expressed as to the financial statements,
financial statement schedule or notes to such
financial statements and other financial and
statistical data contained therein) and the Form
T-1 complied as to form in all material respects
with the applicable requirements of the Act and
the Rules and Regulations and the 1939 Act and the
rules and regulations thereunder. Each document
incorporated by reference in the Registration
Statement 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 or
notes thereto and other financial or statistical
data contained therein). The Company has
satisfied the conditions for the use of Form S-3
set forth in the general instructions thereto.
Such counsel shall also state that they have no
reason to believe that (i) the Registration Statement,
as of the Effective Time, or any amendment thereto, at
the time it became effective, including in each case
any document filed under the Exchange Act and
incorporated by reference therein, contained any untrue
statement of a material fact or omitted to state any
material fact required to be stated therein or
necessary in order to make the statements therein not
misleading, or (ii) the Prospectus or any supplement or
amendment thereto, including in each case any document
filed under the Exchange Act and incorporated by
reference therein, on such Closing Date or at the time
such Prospectus or supplement or amendment thereto was
issued contains or contained any untrue statement of a
material fact or omits or omitted to state any material
fact required to be stated therein or necessary in
order to make the statements therein, in light of the
circumstances under which they were made, not
misleading.
Xxxxx, Xxxxxx shall be entitled to rely on the
opinion of Xxxxxxx Xxxxx & Cleveland in rendering the
opinions expressed in (ii) with respect to Empresas Xxxxxxx
Funeraria, Inc., in (vii) with respect to litigation
involving Osiris Holding Co., in the second clause of (ix)
with respect to the Company's four revolving credit
agreements described in the Prospectus and the Company's
agreements with the holders of its 6.04% Senior Notes and
its Senior Notes, Series A, B and C. Any opinions of Xxxxx,
Xxxxxx or Xxxxxxx Xxxxx & Cleveland with respect to
litigation involving the Company, when such litigation is
not being handled by the firm rendering the opinion, may be
based solely upon discussions with the law firm that has
been retained by the Company to handle the litigation.
(d) You shall have received from Xxxxx & Xxxxx,
L.L.P., counsel for the Underwriters, an opinion, dated
such Closing Date, with respect to the matters set
forth in (iv) (excluding the last sentence), (v)
(excluding the last sentence), (vi) and (viii) (but
only as to the statements in the Prospectus under
"Description of Notes"), with respect to the
enforceability of this Agreement, the Indenture and the
Notes (containing such exceptions as you shall
approve), and with respect to the matters set forth in
(xi) (excluding the last sentence) and to the effect of
the first unnumbered paragraph following numbered
paragraph (xi) of subsection (c) of this Section.
With respect to the penultimate unnumbered
paragraph of subsection (c) above and the similar
provision of subsection (d) above, Jones, Walker,
Waechter, Poitevent, Carrere & Xxxxxxx, L.L.P. and
Xxxxx & Xxxxx, L.L.P. may state that their opinions and
beliefs are based upon their participation in the
preparation of the Registration Statement and
Prospectus and any amendments or supplements thereto
and review and discussion of the contents thereof, but
is without independent check or verification except as
specified.
(e) At the Closing Date, there shall not have
been, since the date of this Agreement or since the
respective dates as of which information is given in
the Registration Statement, any material adverse change
in the condition, financial or otherwise, earnings,
business affairs or business prospects of the Company
and its subsidiaries considered as a whole, whether or
not arising in the ordinary course of business, and you
shall have received a certificate of an executive
officer of the Company, dated as of the Closing Date,
to the effect that (i) the representations and
warranties of the Company contained in Section 2 are
true and correct with the same force and effect as
though expressly made on and as of the Closing Date,
(ii) the Company has performed or complied with all
agreements and satisfied all conditions on its part to
be performed or satisfied at or prior to the Closing
Date and (iii) no stop order suspending the
effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been
initiated or threatened by the Commission or any State.
(f) You shall have received from Coopers & Xxxxxxx
L.L.P., independent public accountants, two letters,
the first delivered the day of but prior to the
execution of, and dated the date of, this Agreement and
the other dated the Closing Date, addressed to the
Underwriters (with conformed copies for each of the
Underwriters), in form and substance satisfactory to
you, to the effect that:
(i) They are independent public accountants
with respect to the Company and its subsidiaries
within the meaning of the Act and the Rules and
Regulations.
(ii) In their opinion, the consolidated
financial statements and supporting schedule of
the Company and its subsidiaries examined by them
and included or incorporated by reference in the
Registration Statement comply as to form in all
material respects with the applicable accounting
requirements of the Act and the Rules and
Regulations with respect to registration
statements on Form S-3 and the Exchange Act and
the rules and regulations promulgated thereunder
(the "Exchange Act Regulations").
(iii) They have performed specified
procedures, not constituting an audit, including a
reading of the latest available interim financial
statements of the Company and its indicated
subsidiaries, a reading of the minute books of the
Company and such subsidiaries since the end of the
most recent fiscal year with respect to which an
audit report has been issued, inquiries of and
discussions with certain officials of the Company
and such subsidiaries responsible for financial
and accounting matters with respect to the
unaudited consolidated financial statements
included or incorporated by reference in the
Registration Statement and Prospectus and the
latest available interim unaudited financial
statements of the Company and its subsidiaries in
accordance with Statement of Financial Accounting
Standards No. 71, and such other inquiries and
procedures as may be specified in such letters,
and on the basis of such inquiries and procedures
nothing came to their attention that caused them
to believe that: (A) the unaudited consolidated
financial statements of the Company and its
subsidiaries included or incorporated by reference
in the Registration Statement and Prospectus do
not comply as to form in all material respects
with the applicable accounting requirements of the
Exchange Act and the Exchange Act Regulations or
were not fairly presented in conformity with
generally accepted accounting principles in the
United States applied on a basis substantially
consistent with that of the audited financial
statements included or incorporated by reference
therein, or (B) at a specified date not more than
five days prior to the date of such letters, there
was any change in the consolidated capital stock
or any increase in consolidated long-term debt of
the Company and its subsidiaries or any decrease
in the consolidated net current assets or net
assets of the Company and its subsidiaries or any
increases or decreases in any other items
specified by the Underwriters, in each case as
compared with the amounts shown on the most recent
balance sheet of the Company and its subsidiaries
included or incorporated by reference in the
Registration Statement and Prospectus or, during
the period from the date of such balance sheet to
a specified date not more than five days prior to
the date of such letters, there were any
decreases, as compared with the corresponding
period in the preceding year, in consolidated net
revenues or the total or per share amounts of
consolidated net income of the Company and its
subsidiaries or any increases or decreases in any
other items specified by the Underwriters, except
in each such case as set forth in or contemplated
by the Registration Statement and Prospectus or
except for such exceptions enumerated in such
letters as shall have been agreed to by the
Underwriters and the Company.
(iv) In addition to the examination referred
to in their report included or incorporated by
reference in the Registration Statement and the
Prospectus, and the limited procedures referred to
in clause (iii) above, they have carried out
certain other specified procedures, not
constituting an audit, with respect to certain
amounts, percentages and financial information
which are included or incorporated by reference in
the Registration Statement and Prospectus and
which are specified by the Underwriters, and have
found such amounts, percentages and financial
information to be in agreement with the relevant
accounting, financial and other records of the
Company and its subsidiaries identified in such
letters.
(g) At the Closing Date, counsel for the
Underwriters shall have been furnished with such other
documents and opinions as they may reasonably require.
(h) At the time of the Closing, the Notes shall
have a rating of at least Baa3 by Xxxxx'x Investors
Service, Inc. and BBB by Standard & Poor's Ratings
Services, and the Company shall have delivered to the
Underwriters a letter, dated the Closing Date, from
each such rating agency or other evidence satisfactory
to the Underwriters, confirming such ratings. Since
the Effective Date, there shall not have occurred any
downgrading with respect to any debt securities of the
Company or any of its subsidiaries 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 or any public announcement that
any such organization has under surveillance or review
its rating of any such debt securities (other than an
announcement with no implication of a possible
downgrading of such rating).
All such opinions, certificates, letters and
documents shall be in compliance with the provisions
hereof only if they are satisfactory in form and
substance to you and to counsel for the Underwriters in
your and such counsel's reasonable discretion. The
Company shall furnish to you conformed copies of such
opinions, certificates, letters and other documents in
such number as you shall reasonably request. If any of
the conditions specified in this Section 6 shall not
have been fulfilled when and as required by this
Agreement, this Agreement and all obligations of the
Underwriters hereunder may be canceled at, or at any
time prior to, the Closing Date, by you. Any such
cancellation shall be without liability of the
Underwriters to the Company. Notice of such
cancellation shall be given to the Company in writing,
or by telegraph or telephone and confirmed in writing.
SECTION 7. Payment of Expenses. The Company will
pay all costs, expenses, fees and taxes incident to (i) the
preparation by the Company, printing, filing and
distribution under the Act of the Registration Statement
(including financial statements and exhibits), the
Prospectus, each preliminary prospectus and all amendments
and supplements to any of them prior to or during the period
specified in Section 5(b), (ii) the preparation, printing
and delivery of this Agreement, the Indenture, the Statement
of Eligibility and Qualification of the Trustee on Form T-1,
Preliminary and Supplemental Blue Sky Memoranda, the Notes
and all other agreements, memoranda, correspondence and
other documents printed and delivered in connection with the
offering of the Notes, (iii) the registration with the
Commission, and the issuance by the Company of the Notes
(iv) the registration or qualification of the Notes for
offer and sale under the securities or Blue Sky laws of the
several states as described in Section 5(e) (including the
reasonable fees and disbursements of your counsel relating
to such registration or qualification), (v) any fees or
expenses relating to the use of book-entry notes, (vi) the
fees, costs and charges of the Trustee, including the fees
and disbursements of counsel for the Trustee, (vii) the fees
and expenses of rating agencies, and (viii) all other costs
and expenses incident to the performance by the Company of
its other obligations under this Agreement.
If this Agreement is terminated by you in
accordance with the provisions of Section 6 or Section
10(i), the Company shall reimburse you for all of your
out-of-pocket expenses, including the reasonable fees and
disbursements of counsel for the Underwriters.
SECTION 8. Indemnification and Contribution. (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, from and against any and all
losses, claims, damages, liabilities and judgments
(including, without limiting the foregoing, the reasonable
legal and other expenses incurred in connection with any
action, suit or proceeding or any claim asserted) arising
out of or caused by any untrue statement or alleged untrue
statement in Section 2 hereof or any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement or the Prospectus or any Preliminary
Prospectus, or caused by any omission or alleged omission to
state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages, liabilities
or expenses are caused by any such untrue statement or
omission or alleged untrue statement or omission based upon
information furnished in writing to the Company by any
Underwriter through you expressly for use therein. This
indemnity agreement will be in addition to any liability
which the Company may otherwise have to the persons referred
to above in this Section 8(a).
(b) Each Underwriter agrees, severally and not
jointly, to indemnify and hold harmless the Company, the
directors of the Company, the officers of the Company who
sign the Registration Statement and each person, if any, who
controls the Company within the meaning of either Section 15
of the Act or Section 20 of the Exchange Act from and
against any and all losses, claims, damages, liabilities and
judgments (including, without limiting the foregoing, the
reasonable legal and other expenses incurred in connection
with any action, suit or proceeding or any claim asserted)
arising out of or caused by any untrue statement or alleged
untrue statement of a material fact contained in the
Registration Statement or the Prospectus (as amended or
supplemented if the Company shall have furnished any
amendments or supplements thereto) or any Preliminary
Prospectus, or caused by any omission or alleged omission to
state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading,
but only with reference to and only to the extent of
information furnished to the Company in writing by such
Underwriter through you expressly for use in the
Registration Statement, the Prospectus, any amendment or
supplement thereto, or any Preliminary Prospectus.
(c) In case any action or proceeding (including
any governmental or regulatory investigation or proceeding)
shall be instituted involving any person in respect of which
indemnity may be sought pursuant to either of the two
preceding paragraphs, such person (hereinafter called the
indemnified party) shall promptly notify the person against
whom such indemnity may be sought (hereinafter called the
indemnifying party) in writing and the indemnifying party
shall be entitled to assume the defense thereof and, upon
request of the indemnified party, shall assume the defense
thereof, including the employment of counsel reasonably
satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may
designate and shall pay the fees and disbursements of such
counsel related to such proceeding. In any such action or
proceeding, any indemnified party shall have the right to
retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such indemnified party
unless (i) the indemnifying party and the indemnified party
shall have mutually agreed to the retention of such counsel
or (ii) the named parties to any such proceeding (including
any impleaded parties) include both the indemnifying party
and the indemnified party and representation of both parties
by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood
that the indemnifying party shall not, in connection with
any proceeding or related proceedings in the same
jurisdiction, be liable for (a) the reasonable fees and
expenses of more than one separate firm (in addition to one
local counsel for each jurisdiction involved) for all
Underwriters and all persons, if any, who control
Underwriters within the meaning of either Section 15 of the
Act or Section 20 of the Exchange Act and (b) the reasonable
fees and expenses of more than one separate firm (in
addition to one local counsel for each jurisdiction
involved) for the Company, its directors, its officers who
sign the Registration Statement and each person, if any, who
controls the Company within the meaning of either such
Section and that all such fees and expenses shall be
reimbursed as they are incurred. In the case of any such
separate firm for the Underwriters and such control persons
of Underwriters, such firm shall be designated in writing by
NationsBanc Capital Markets, Inc. In the case of any such
separate firm for the Company, and such directors, officers
and control persons of the Company, such firm shall be
designated in writing by the Company. The indemnifying party
shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with
such consent or if there be a final judgment for the
plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by
reason of such settlement or judgment. No indemnifying party
shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or
could have been a party and indemnity could have been sought
hereunder by such indemnified party, unless such settlement
includes an unconditional release of such indemnified party
from all liability on claims that are the subject matter of
such proceeding.
(d) If the indemnification provided for in this
Section 8 is unavailable to an indemnified party in respect
of any losses, claims, damages, liabilities or judgments
referred to therein, then each indemnifying party, in lieu
of indemnifying such indemnified party, shall contribute to
the amount paid or payable by such indemnified party as a
result of such losses, claims, damages, liabilities and
expenses (i) in such proportion as is appropriate to reflect
the relative benefits received by the Company on the one
hand and the Underwriter on the other from the offering of
the Notes or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion
as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault
of the Company on the one hand and the Underwriter on the
other in connection with the statements or omissions which
resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable
considerations. The relative benefits received by the
Company on the one hand and the Underwriter on the other
shall be deemed to be in the same proportions as the total
net proceeds from the offering (before deducting expenses)
received by the Company bear to the total underwriting
discounts and commissions received by the Underwriter, in
each case as set forth in the table on the cover page of the
Prospectus. The relative fault of the Company on the one
hand and the Underwriter on the other shall be determined by
reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission
to state a material fact relates to information supplied by
the Company or by the Underwriter and the parties' relative
intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
(e) The Company and the Underwriters agree that
it would not be just and equitable if contribution pursuant
to Section 8(d) were determined by pro rata allocation or by
any other method of allocation which does not take account
of the equitable considerations referred to in the
immediately preceding paragraph. The amount paid or payable
by an indemnified party as a result of the losses, claims,
damages, liabilities or judgments referred to in the
immediately preceding paragraph shall be deemed to include,
subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of Section
8(d), in no event shall any Underwriter be required to
contribute any amount in excess of the amount by which the
total price at which the Notes underwritten by it and
distributed to the public were offered to the public exceeds
the amount of any damages which each 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
to contribute pursuant to Section 8(d) are several in
proportion to the respective number of Notes set forth
opposite their names in Schedule I hereto.
SECTION 9. Representations, Warranties and
Agreements to Survive Delivery. All representations,
warranties and agreements contained in this Agreement, or
contained in certificates of officers of the Company
submitted hereto, including indemnity and contribution
agreements, shall remain operative and in full force and
effect, regardless of any termination of this Agreement, or
any investigation made by or on behalf of any Underwriter or
any person controlling any Underwriter by or on behalf of
the Company, its officers or directors, and shall survive
acceptance and payment for the Notes hereunder.
SECTION 10. Effectiveness of Agreement and
Termination. This Agreement shall become effective upon
execution and delivery hereof by the parties hereto.
This Agreement may be terminated at any time prior
to the Closing Date by NationsBanc Capital Markets, Inc.
upon the giving of written notice of such termination to the
Company, if at or prior to the Closing Date (i) the Company
shall have failed, refused or been unable to perform any
agreement on its part to be performed hereunder, (ii) any
other condition of the Underwriters' obligation hereunder is
not fulfilled, (iii) there has been, since the respective
dates as of which information is given in the Registration
Statement, any material adverse change in the condition,
financial or otherwise, earnings, business affairs or
business prospects of the Company and its subsidiaries
considered as a whole, whether or not arising in the
ordinary course of business, (iv) there has occurred any
outbreak or escalation of hostilities involving the United
States or the declaration by the United States of a national
emergency or war, or other calamity or crisis or material
change in existing financial, political, economic or
securities market conditions, the effect of which is such as
to make it, in the judgment of NationsBanc Capital Markets,
Inc., impracticable or inadvisable to market the Notes in
the manner contemplated in the Prospectus or enforce
contracts for the sale of the Notes, (v) reporting of bid
and asked prices of the Common Stock of the Company has been
suspended by the Commission or by the National Association
of Securities Dealers, Inc. or trading generally on either
the American Stock Exchange or the New York Stock Exchange
has been suspended, or minimum or maximum prices for trading
have been fixed, or maximum ranges for prices for securities
have been required, by either of said exchanges or by order
of the Commission or any other governmental authority, or if
a banking moratorium has been declared by Federal, New York
or Louisiana authorities or (vi) if there shall have come to
the attention of the Underwriters any facts that would cause
the Underwriters to believe that the Prospectus (as amended
or supplemented), at the time it was required to be
delivered to a purchaser of Notes, included an untrue
statement of a material fact or omitted to state a material
fact necessary in order to make the statements therein, in
light of the circumstances existing at the time of such
delivery, not misleading. In the event of any such
termination, the provisions of Section 7, the indemnity
agreement and contribution provisions set forth in Section
8, and the provisions of Sections 9 and 14 shall remain in
effect.
SECTION 11. Default. If, on the Closing Date, any
one or more of the Underwriters shall fail or refuse to
purchase Notes that it or they have agreed to purchase
hereunder on such date, and the aggregate principal amount
of Notes which such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase is not more than
one-tenth of the aggregate principal amount of the Notes to
be purchased on such date, the other Underwriters shall be
obligated severally in the proportions that the principal
amount of Notes set forth opposite their respective names in
Schedule I bears to the aggregate principal amount of Notes
set forth opposite the names of all such non-defaulting
Underwriters, or in such other proportions as you may
specify, to purchase the Notes which such defaulting
Underwriter or Underwriters agreed but failed or refused to
purchase on such date; provided that in no event shall the
principal amount of Notes that any Underwriter has agreed to
purchase pursuant to Section 3 be increased pursuant to this
Section 11 by an amount in excess of one-ninth of such
principal amount of Notes without the written consent of
such Underwriter. If, on the Closing Date any Underwriter
or Underwriters shall fail or refuse to purchase Notes and
the aggregate principal amount of Notes with respect to
which such default occurs is more than one-tenth of the
aggregate principal amount of Notes to be purchased on such
date, and arrangements satisfactory to you and the Company
for the purchase of such Notes are not made within 36 hours
after such default, this Agreement shall terminate without
liability on the part of any non-defaulting Underwriter or
the Company. In any such case either you or the Company
shall have the right to postpone the Closing Date, but in no
event for longer than seven days, in order that the required
changes, if any, in the Registration Statement and in the
Prospectus or in any other documents or arrangements may be
effected. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from liability in respect
of any default of such Underwriter under this Agreement.
SECTION 12. Notices. All notices and other
communications hereunder shall be in writing and shall be
deemed to have been duly given when received via mail or any
standard form of telecommunication. Notices to the
Underwriters shall be directed to you c/o NationsBanc
Capital Markets, Inc., 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx,
Xxxxx Xxxxxxxx 00000; Attention: Syndicate; notices to the
Company shall be directed to it at Xxxxxxx Enterprises,
Inc., 000 Xxxxxxxx Xxxxxxxxx, Xxxxxxxx, Xxxxxxxxx 00000, to
the attention of the Chief Executive Officer with a copy to
the Xxxxxx X. Xxxxxx, Xxxxxxx, Xxxxx & Cleveland, 000
Xxxxxxxx Xxxxxxxxx, Xxxxx 0000, Xxxxxxxx, Xxxxxxxxx 00000.
SECTION 13. Parties. This Agreement shall inure
to the benefit of and be binding upon the Company, the
Underwriters, any controlling persons referred to herein and
their respective successors and assigns. Nothing expressed
or mentioned in this Agreement is intended or shall be
construed to give any other person, firm or corporation any
legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained.
This Agreement and all conditions and provisions hereof are
intended to be for the sole and exclusive benefit of the
parties hereto and respective successors and said
controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no
other person, firm or corporation. No purchaser of Notes
from any Underwriter shall be deemed to be a successor by
reason merely of such purchase.
SECTION 14. Governing Law. This Agreement and all
the rights and obligations of the parties shall be governed
by and construed in accordance with the laws of the State of
New York applicable to agreements made and to be performed
in such State.
This Agreement may be signed in two or more counterparts
each of which shall be an original, with the same effect as
if the signatures thereto and hereto were upon the same
instrument.
If the foregoing is in accordance with your
understanding of our agreement, please sign this Agreement
and return a counterpart hereof to us, whereupon this
instrument, along with all counterparts, will become a
binding agreement between the Underwriters and the Company
in accordance with its terms.
Very truly yours,
XXXXXXX ENTERPRISES, INC.
By: /s/ Xxxxxx X. Patron
________________________
Name: Xxxxxx X. Patron
Title: Chief Financial Officer
President-Corporate Division
and Executive Vice President
Confirmed and Accepted, as of the date first above written:
NATTIONSBANC CAPITAL MARKETS, INC.
BEAR, XXXXXXX & CO. INC.
CITICORP SECURITIES, INC.
Acting severally on behalf of
themselves and the several
Underwriters named herein.
By: NATIONSBANC CAPITAL MARKETS, INC.
By: /s/ Xxxxxx X. Xxxxxx
______________________________
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President
SCHEDULE I
PRINCIPAL AMOUNT
OF NOTES
UNDERWRITER TO BE PURCHASED
NationsBanc Capital Markets, Inc. $ 34,000,000
Bear, Xxxxxxx & Co. Inc. $ 33,000,000
Citicorp Securities, Inc. $ 33,000,000
Total $ 100,000,000
