EXHIBIT 1.1
XXXXXX'X OPERATING COMPANY, INC.
GUARANTEED DEBT SECURITIES
PAYMENT OF PRINCIPAL, INTEREST AND PREMIUM, IF ANY
GUARANTEED BY
XXXXXX'X ENTERTAINMENT, INC.
STANDARD UNDERWRITING PROVISIONS
JANUARY 12, 1999
From time to time, Xxxxxx'x Operating Company, a Delaware corporation
(the "COMPANY"), and Xxxxxx'x Entertainment, Inc., a Delaware corporation (the
"GUARANTOR"), may enter into one or more underwriting agreements, in the form of
Annex I hereto, that provide for the sale of designated securities to the
several underwriters named therein. The standard provisions set forth herein may
be incorporated by reference in any such underwriting agreement (an
"UNDERWRITING AGREEMENT"). The Underwriting Agreement, including the provisions
incorporated therein by reference, is herein sometimes referred to as this
Agreement. Terms defined in the Underwriting Agreement are used herein as
therein defined.
The terms and rights of any particular issuance of Debt Securities shall
be as specified in the Underwriting Agreement relating thereto and in or
pursuant to the particular indenture, including any supplement thereto (the
"INDENTURE") identified in such Underwriting Agreement.
The Company has filed with the Securities and Exchange Commission (the
"COMMISSION") a registration statement, including a prospectus, relating to the
Debt Securities and has filed with, or transmitted for filing to, or shall
promptly hereafter file with or transmit for filing to, the Commission a
prospectus supplement (the "PROSPECTUS SUPPLEMENT") specifically relating to the
Offered Securities pursuant to Rule 424 under the Securities Act of 1933, as
amended (the "SECURITIES ACT"). The term "REGISTRATION STATEMENT" means the
registration statement, including the exhibits thereto, as amended to the date
of this Agreement. The term "BASIC PROSPECTUS" means the prospectus included in
the Registration Statement. The term "PROSPECTUS" means the Basic Prospectus
together with the Prospectus Supplement. The term "PRELIMINARY PROSPECTUS" means
a preliminary prospectus supplement specifically relating to the Offered
Securities, together with the Basic Prospectus. As used herein, the terms "Basic
Prospectus," "Prospectus" and "preliminary prospectus" shall include in each
case the documents, if any, incorporated by reference therein. The terms
"SUPPLEMENT," "AMENDMENT" and "AMEND" as used herein shall include all documents
deemed to be incorporated by reference in the Prospectus that are filed
subsequent to the date of the Basic Prospectus by the Company with the
Commission pursuant to the Securities Exchange Act of 1934, as amended (the
"EXCHANGE ACT").
The term "GAMING LAWS" means any foreign, federal, state or local law
and the rules and regulations thereunder and any similar laws and regulations
governing any aspect of legalized gambling in any foreign, federal, state or
local jurisdiction in which the Company or the Guarantor or any of their
respective subsidiaries conducts business.
1. REPRESENTATIONS AND WARRANTIES. The Company and the Guarantor,
jointly and severally, represent and warrant to and agree with each of the
Underwriters that:
(a) The Registration Statement Nos. 333-69263 and
000-00000-00 has become effective; no stop order suspending the
effectiveness of the Registration Statement is in effect, and no
proceedings for such purpose are pending before or threatened by the
Commission;
(b) (i) Each document, if any, filed or to be filed pursuant
to the Exchange Act and incorporated by reference in the Prospectus
complied or will comply when so filed in all material respects with the
Exchange Act and the applicable rules and regulations of the Commission
thereunder, (ii) each part of the Registration Statement, when such part
became effective, did not contain, and each such part, as amended or
supplemented, 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 therein not misleading,
(iii) the Registration Statement and the Prospectus comply, and, as
amended or supplemented, if applicable, will comply in all material
respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder and (iv) the Prospectus does
not contain and, as amended or supplemented, if applicable, will not
contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading, except
that the representations and warranties set forth in this paragraph do
not apply (A) to statements or omissions in the Registration Statement
or the Prospectus based upon information relating to any Underwriter
furnished to the Company in writing by such Underwriter through the
Manager expressly for use therein or (B) to that part of the
Registration Statement that constitutes the Statement of Eligibility
(Form T-1) under the Trust Indenture Act of 1939, as amended (the "TRUST
INDENTURE ACT"), of the Trustee;
(c) Each of the Company and the Guarantor has been duly
incorporated, is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, has the
corporate power and authority to own its property and to conduct its
business as described in the Prospectus and is duly qualified to
transact business and is in good standing in each jurisdiction in which
the conduct of its business or its ownership or leasing of property
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 or the Guarantor and their respective
subsidiaries, taken as a whole;
(d) Each subsidiary of the Company and the Guarantor,
respectively, has been duly organized, is validly existing as a
corporation, limited liability company or partnership in good standing
under the laws of the jurisdiction of its organization, has the power
and authority to own its property and to conduct its business as
described in the Prospectus and is duly qualified to transact business
and is in good standing in each jurisdiction in which the conduct of its
business or its ownership or leasing of property 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 or the Guarantor and their respective subsidiaries, taken as a
whole; all of the issued shares of capital stock or other equity
interests of each subsidiary of the Company and the Guarantor,
respectively, have been duly and validly authorized and issued, are
fully paid and non-assessable. Except as set forth in or as
incorporated by reference in the Registration Statement, all of the
shares of capital stock or other equity or partnership interests of each
subsidiary of the Company or the Guarantor which would be considered a
"significant subsidiary" for purposes of Rule 1-02 under Regulation S-X
pursuant to the Securities Act (the "Significant Subsidiaries") are
owned directly or indirectly by the Company or the Guarantor,
respectively. Except as set forth in or as incorporated by reference in
the Registration Statement, all of the shares of capital stock or other
equity or partnership interests of subsidiaries of the Company or the
Guarantor held by the Company or the Guarantor are held free and clear
of all liens, encumbrances, equities or claims except such liens,
encumbrances, equities or claims imposed by Gaming Laws, the terms of
any partnership agreement pertaining to any partnership that is a
subsidiary of the Company or which would not would not have a material
adverse effect on the Company or the Guarantor and their respective
subsidiaries, taken as a whole;
(e) This Agreement has been duly authorized, executed and
delivered by each of the Company and the Guarantor;
(f) The Indenture has been duly qualified under the Trust
Indenture Act and has been, or will be by the Closing Date, duly
authorized, executed and delivered by each of the Company and the
Guarantor and, assuming due authorization, execution and delivery
thereof by the Trustee, is, or will be by the Closing Date, a valid and
binding agreement of each of the Company and the Guarantor,
respectively, enforceable in accordance with its terms, subject to
applicable bankruptcy, insolvency or similar laws affecting creditors'
rights generally and general principles of equity;
(g) The Offered Securities have been duly authorized and,
when executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Underwriters in
accordance with the terms of the Underwriting Agreement, (assuming due
authorization, execution and delivery thereof by the Trustee) will be
entitled to the benefits of the Indenture, and will be valid and binding
obligations of the Company and the Guarantor, respectively, in each case
enforceable in accordance with their respective terms, subject to
applicable bankruptcy, insolvency or similar laws affecting creditors'
rights generally and general principles of equity;
(h) The execution and delivery by each of the Company and
the Guarantor of, and the performance by each of the Company and the
Guarantor of its respective obligations under, this Agreement and the
Indenture, the Offered Securities will not contravene any provision of
applicable law or the certificate of incorporation or by-laws of the
Company or the Guarantor, respectively, or any agreement or other
instrument binding upon the Company or any of its subsidiaries, or the
Guarantor or any of its subsidiaries, respectively, that is material to
the Company or the Guarantor and their respective subsidiaries, taken as
a whole, or any judgment, order or decree of any governmental body,
agency or court having jurisdiction over the Company or the Guarantor
and any of their respective subsidiaries, and no consent, approval,
authorization or order of, or qualification with, any governmental body
or agency is required for the performance by the Company or the
Guarantor of its respective obligations under this Agreement, the
Indenture, the Offered Securities, except such as has been obtained
under the Securities Act, the Exchange Act, and the rules and
regulations thereunder, or as may be required by the securities or Blue
Sky laws of the various states in connection with the offer and sale of
the Offered Securities or as may be required pursuant to Gaming Laws;
(i) There has not occurred any material adverse change, or
any development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company or the Guarantor and their respective
subsidiaries, taken as a whole, from that set forth in the Prospectus
(exclusive of any amendments or supplements thereto subsequent to the
date of this Agreement);
(j) There are no legal or governmental proceedings pending
or threatened to which the Company or the Guarantor and any of their
respective subsidiaries is a party or to which any of the properties of
the Company or the Guarantor or any of their respective subsidiaries is
subject that are required to be described in the Registration Statement
or the Prospectus and are not so described or any statutes, regulations,
contracts or other documents that are required to be described in the
Registration Statement or the Prospectus or to be filed or incorporated
by reference as exhibits to the Registration Statement that are not
described, filed or incorporated as required. Neither the Company nor
the Guarantor has any reason to believe that any governmental agency
with authority pursuant to any Gaming Law is investigating the Company,
the Guarantor or any of their respective subsidiaries, other than in
ordinary course administrative reviews, in connection with the Indiana
Gaming Commission's review of the Company and the Guarantor following
the Company's acquisition of Showboat, Inc. and proposed acquisition of
an additional equity interest in the entities which own the East Chicago
Showboat casino or in any ordinary course review of the transactions
contemplated hereby;
(k) Each preliminary prospectus filed as part of the
registration statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the Securities Act,
complied when so filed in all material respects with the Securities Act
and the applicable rules and regulations of the Commission thereunder;
(l) Neither the Company nor the Guarantor is and, after
giving effect to the offering and sale of the Offered Securities and the
application of the proceeds thereof 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;
(m) The Company and the Guarantor and their respective
subsidiaries (i) are in compliance with any and all applicable foreign,
federal, state and local laws and regulations relating to the protection
of human health and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants ("ENVIRONMENTAL LAWS"),
(ii) have received all permits, licenses or other approvals required of
them under applicable Environmental Laws to conduct their respective
businesses and (iii) are in compliance with all terms and conditions of
any such permit, license or approval, except where such noncompliance
with Environmental Laws, failure to receive required permits, licenses
or other approvals or failure to comply with the terms and conditions of
such permits, licenses or approvals would not, individually or in the
aggregate, have a material adverse effect on the Company or the
Guarantor and their respective subsidiaries, taken as a whole;
(n) There are no costs or liabilities associated with
Environmental Laws (including, without limitation, any capital or
operating expenditures required for clean-up, closure of properties or
compliance with Environmental Laws or any permit, license or approval,
any related constraints on operating activities and any potential
liabilities to third parties) which would, individually or in the
aggregate, have a material adverse effect on the Company or the
Guarantor and their respective subsidiaries, taken as a whole;
(o) Except as disclosed in the Prospectus, each of the
Company and the Guarantor and their respective subsidiaries has
sufficient trademarks, trade names, patent rights, copyrights, or
licenses to conduct their businesses as now conducted in all material
respects;
(p) Except as disclosed in or specifically contemplated by
the Prospectus, each of the Company and the Guarantor and their
respective subsidiaries has sufficient licenses, approvals and
authorizations required pursuant to Gaming Laws to conduct their
businesses except such licenses, approvals and authorizations required
pursuant to Gaming Laws the absence of which, either individually or in
the aggregate, would not have a material adverse effect on the Company
or the Guarantor and their respective subsidiaries, taken as a whole;
(q) Each of the Company's and Guarantor's and their
respective subsidiaries' controlling persons, key employees, and, to the
Company's or the Guarantor's knowledge, stockholders, have all necessary
permits, licenses and other authorizations required by Gaming Laws for
the Company, the Guarantor and their respective subsidiaries to
conduct their businesses as now conducted in all material respects; and
neither the Company nor the Guarantor has any knowledge that any of
their respective stockholders is unsuitable or may be deemed unsuitable
by any authorities pursuant to Gaming Laws; and
(r) No labor dispute with the employees of the Company or
the Guarantor or any of their respective subsidiaries exists, or to the
knowledge of the Company or the Guarantor, respectively, is imminent
which would, individually or in the aggregate, have a material adverse
effect on the Company or the Guarantor and their respective
subsidiaries, taken as a whole.
2. TERMS OF PUBLIC OFFERING. The Company is advised by the Manager
that the Underwriters propose to make a public offering of their respective
portions of the Offered Securities as soon after this Agreement has been entered
into as in the Manager's judgment is advisable. The terms of the public
offering of the Offered Securities are set forth in the Prospectus.
3. PAYMENT AND DELIVERY. Except as otherwise provided in this
Section 3, payment for the Offered Securities shall be made to the Company in
Federal or other funds immediately available at the time and place set forth in
the Underwriting Agreement, upon delivery to the Manager for the respective
accounts of the several Underwriters of the Offered Securities registered in
such names and in such denominations as the Manager shall request in writing not
less than one full business day prior to the date of delivery, with any transfer
taxes payable in connection with the transfer of the Offered Securities to the
Underwriters duly paid.
4. CONDITIONS TO THE UNDERWRITERS' OBLIGATIONS. The several
obligations of the Underwriters are subject to the following conditions:
(a) Subsequent to the execution and delivery of the
Underwriting Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading,
nor shall any notice have been given of any intended or
potential downgrading or of any review for a possible change
that does not indicate the direction of the possible change, in
the rating accorded any of the Company's or the Guarantor's
securities by any "nationally recognized statistical rating
organization," as such term is defined for purposes of Rule
436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change, or any
development involving a prospective change, in the condition,
financial or otherwise, or in the earnings, business or
operations of the Company or the Guarantor and their respective
subsidiaries, taken as a whole, from that set forth in the
Prospectus (exclusive of any amendments or supplements thereto
subsequent to the date of this Agreement) that, in the judgment
of the Manager, is material and adverse and
that makes it, in the judgment of the Manager, impracticable to
market the Offered Securities on the terms and in the manner
contemplated in the Prospectus.
(b) The Underwriters shall have received on the Closing Date
a certificate, dated the Closing Date and signed by an executive officer
of each of the Company and the Guarantor, to the effect set forth in
Section 4(a)(i) above and to the effect that the representations and
warranties of the Company and the Guarantor, respectively, contained in
this Agreement are true and correct as of the Closing Date and that the
Company and the Guarantor, respectively, have complied with all of the
agreements and satisfied all of the conditions on its part to be
performed or satisfied hereunder on or before the Closing Date. The
officer signing and delivering such certificate may rely upon the best
of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date
an opinion of X.X. Xxxxxxxx, Xx., Senior Vice President and General
Counsel of the Company and the Guarantor, dated the Closing Date, to the
effect that:
(i) each of the Company, the Guarantor and the
Significant Subsidiaries has been duly organized, is validly
existing as a corporation, limited liability company or
partnership in good standing under the laws of the jurisdiction
of its organization, has the power and authority to own its
property and to conduct its business as described in the
Prospectus and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its
business or its ownership or leasing of property 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 or the Guarantor and their
respective subsidiaries, taken as a whole;
(ii) after inquiry of the members of the legal
department of the Company, to the best of such counsel's
knowledge, (A) there are no legal or governmental proceedings
pending or threatened to which the Company or the Guarantor and
any of their respective subsidiaries is a party or to which any
of the properties of the Company or the Guarantor or any of
their respective subsidiaries is subject that are required to be
described in the Registration Statement or the Prospectus and
are not so described, (B) there are no statutes, regulations,
contracts or other documents that are required to be described
in the Registration Statement or the Prospectus or to be filed
or incorporated by reference as exhibits to the Registration
Statement that are not described, filed or incorporated as
required, and (C) there is no investigation of the Company, the
Guarantor or any of their respective subsidiaries, by any
governmental agency with authority pursuant to any Gaming Law,
other than in ordinary administrative reviews in connection with
the Indiana Gaming Commission's review of the Company and the
Guarantor following the Company's acquisition of Showboat, Inc.
and proposed acquisition of an additional equity interest in the
entities which own the
East Chicago Showboat casino or in any ordinary course review of
the transactions contemplated hereby;
(iii) Each of the Company's and Guarantor's and their
respective subsidiaries' controlling persons, key employees,
and, to the best of such counsel's knowledge, their
stockholders, have all necessary permits, licenses and other
authorizations required by Gaming Laws for the Company, the
Guarantor and their respective subsidiaries to conduct their
businesses as now conducted except such licenses, approvals and
authorizations required pursuant to Gaming Laws the absence of
which, either individually or in the aggregate, would not have a
material adverse effect on the Company or the Guarantor and
their respective subsidiaries, taken as a whole; and to the best
of such counsel's knowledge none of the respective stockholders
of the Company or the Guarantor is unsuitable or may be deemed
unsuitable by any authorities pursuant to Gaming Laws;
(iv) the statements (A) in the Prospectus under the
caption "Regulation and Licensing," (B) in "Item 3 - Legal
Proceedings" of the Company's most recent annual report on Form
10-K incorporated by reference in the Prospectus and (C) in
"Item 1 - Legal Proceedings" of Part II of the Company's
quarterly reports on Form 10-Q filed since such annual report,
in each case insofar as such statements constitute summaries 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 and fairly summarize
the matters referred to therein;
(v) no consent, approval, authorization of, or
qualification with any authority pursuant to Gaming Laws is
required with respect to the issuance of the Offered Securities
or the transactions contemplated by this Agreement and the
Indenture, except as has already been obtained;
(vi) the execution and delivery by each of the
Company and the Guarantor of, and the performance by the Company
and the Guarantor of its respective obligations under, this
Agreement, the Indenture and the Offered Securities will not
contravene, to the best of such counsel's knowledge, any
agreement or other instrument binding upon the Company or the
Guarantor and any of their respective subsidiaries that is
material to the Company or the Guarantor and their respective
subsidiaries, taken as a whole, or, to the best of such
counsel's knowledge, any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the
Company or the Guarantor or any of their respective
subsidiaries, including without limitation, pursuant to any
Gaming Laws; and
(vii) to the best of such counsel's knowledge, each
document filed by the Guarantor pursuant to the Exchange Act and
incorporated by reference in the Prospectus (except for
financial statements and schedules included therein as to
which such counsel need not express any opinion) complied when
so filed as to form in all material respects with the Exchange
Act and the applicable rules and regulations of the Commission
thereunder.
(d) The Underwriters shall have received on the Closing Date
an opinion of Xxxxxx & Xxxxxxx, outside counsel for the Company and the
Guarantor, dated the Closing Date, to the effect that:
(i) this Agreement has been duly authorized,
executed and delivered by each of the Company and the Guarantor;
(ii) the Indenture has been duly qualified under the
Trust Indenture Act and has been duly authorized, executed and
delivered by each of the Company and the Guarantor and, assuming
due authorization, execution and delivery thereof by the
Trustee, is the legally valid and binding agreement of each of
the Company and the Guarantor, enforceable against the Company
and the Guarantor in accordance with its terms, subject to
applicable bankruptcy, insolvency or similar laws affecting
creditors' rights generally and general principles of equity;
(iii) the Offered Securities have been duly authorized
and, when executed and authenticated in accordance with the
terms of the Indenture and delivered to and paid for by the
Underwriters in accordance with the terms of this Agreement,
assuming due authorization, execution and delivery thereof by
the Trustee, will be entitled to the benefits of the Indenture,
will conform in all material respects as to legal matters to the
descriptions thereof contained in the Prospectus under the
heading "Description of Notes" and "Description of the Debt
Securities" and will be legally valid and binding obligations of
the Company and the Guarantor, respectively, enforceable against
the Company and the Guarantor in accordance with their
respective terms, subject to applicable bankruptcy, insolvency
or similar laws affecting creditors' rights generally and
general principles of equity;
(iv) the execution and delivery of this Agreement,
the Indenture and the Offered Securities by each of the Company
and the Guarantor, and the performance by each of the Company
and the Guarantor on or prior to the date hereof of its
respective obligations under, this Agreement, the Indenture and
the Offered Securities, will not violate the certificate of
incorporation or by-laws of each of the Company or the
Guarantor, respectively, the Delaware General Corporation law,
or any provision of any applicable federal or New York statute,
rule or regulation (other than federal securities laws, which
are specifically addressed elsewhere herein, or state securities
laws or Gaming Laws), and no consent, approval, authorization or
order of, or filing with, any federal or New York or Delaware
court or governmental agency or body is required for the
performance by each of the Company and the Guarantor on or prior
to the date hereof of its obligations under this Agreement, the
Indenture and the Offered Securities, except such as have been
obtained under the Act and such as may be
required under state securities or Blue Sky laws in connection
with the offer and sale of the Offered Securities or as may be
required by Gaming Laws;
(v) the statements under the headings "Description
of the Debt Securities," "Description of Notes" and "Plan of
Distribution" in the Prospectus, and Item 15 of the Registration
Statement, insofar as such statements constitute summaries 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 and fairly summarize
the matters referred to therein; and
(vi) the Registration Statement and the Prospectus
comply as to form in all material respects with the requirements
for registration statements on Form S-3 under the Act and the
applicable rules and regulations of the Commission thereunder;
it being understood, however, that such counsel need express no
opinion with respect to documents incorporated by reference in
the Registration Statement or the Prospectus or the financial
statements and schedules and other financial data included or
incorporated by reference in, or omitted from, the Registration
Statement or the Prospectus; and
Such counsel shall also state that, in addition, no
facts have come to such counsel's attention that cause such
counsel to believe that the Registration Statement, at the time
it became effective, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading, or that the Prospectus, as of its date and as of the
Closing Date, contained or contains an untrue statement of a
material fact or omitted or omits to state a material fact
required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under
which they were made, not misleading, it being understood that
such counsel need express no belief with respect to the
financial statements and schedules or other financial data
included or incorporated by reference in, or omitted from, the
Registration Statement or the Prospectus or with respect to the
Form T-1.
(e) The Underwriters shall have received on the Closing Date
an opinion of Xxxxxx, Xxxx & Xxxxxxxx LLP, special counsel for the
Underwriters, dated the Closing Date, covering the matters referred to
in Sections 4(d)(i), 4(d)(ii), 4(d)(iii), 4(d)(v) (but only as to the
statements in the Prospectus under "Description of the Debt Securities",
"Description of Notes" and "Plan of Distribution") and the last
paragraph of Section 4(d) above.
With respect to the last paragraph of Section 4(d) above, Xxxxxx
& Xxxxxxx may state that its opinion and belief are based upon its
participation in the preparation of the Registration Statement and
Prospectus and any amendments or supplements thereto (but not including
documents incorporated therein by reference) and review and discussion
of
the contents thereof (including documents incorporated by reference),
but are without independent check or verification (except to the extent
set forth in Section 4(d)(v)). With respect to the last paragraph of
Section 4(d) above, Xxxxxx, Xxxx & Xxxxxxxx LLP may state that its
opinion and belief are based upon its participation in the preparation
of the Registration Statement and Prospectus and any amendments or
supplements thereto (but not including documents incorporated therein by
reference) and review and discussion of the contents thereof (including
documents incorporated therein by reference), but are without
independent check or verification (except to the extent set forth in
Section 4(d)(v)).
The opinion of Xxxxxx & Xxxxxxx described in Section 4(d) above
shall be rendered to the Underwriters at the request of the Company and
the Guarantor and shall so state therein.
(f) The Underwriters shall have received on the Closing Date
one or more letters, dated prior to and on the Closing Date, in form and
substance satisfactory to the Underwriters, from the Company's
independent public accountants, containing statements and information of
the type ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and certain
financial information contained in or incorporated by reference into the
Prospectus.
5. COVENANTS OF THE COMPANY AND THE GUARANTOR. In further
consideration of the agreements of the Underwriters herein contained, each of
the Company and the Guarantor covenants with each Underwriter as follows:
(a) To furnish the Manager, without charge, one signed copy
of the Registration Statement (including exhibits thereto) and for
delivery to each other Underwriter a conformed copy of the Registration
Statement (without exhibits thereto) and to furnish the Manager in New
York City, without charge, prior to 10:00 a.m. New York City time on the
business day next succeeding the date of this Agreement and during the
period mentioned in Section 5(c) below, as many copies of the
Prospectus, any documents incorporated by reference therein and any
supplements and amendments thereto or to the Registration Statement as
the Manager may reasonably request.
(b) Before amending or supplementing the Registration
Statement or the Prospectus with respect to the Offered Securities, to
furnish to the Manager a copy of each such proposed amendment or
supplement and not to file any such proposed amendment or supplement to
which the Manager reasonably objects.
(c) If, during such period after the first date of the
public offering of the Offered Securities as in the opinion of counsel
for the Underwriters the Prospectus is required by law to be delivered
in connection with sales by an Underwriter or dealer, any event shall
occur or condition exist as a result of which it is necessary to amend
or supplement the Prospectus in order to make the statements therein, in
the light of the circumstances when the Prospectus is delivered to a
purchaser, not misleading, or if, in
the opinion of counsel for the Underwriters, it is necessary to amend or
supplement the Prospectus to comply with applicable law, forthwith to
prepare, file with the Commission and furnish, at its own expense, to
the Underwriters and to the dealers (whose names and addresses the
Manager will furnish to the Company) to which Offered Securities may
have been sold by the Manager on behalf of the Underwriters and to any
other dealers upon request, either amendments or supplements to the
Prospectus so that the statements in the Prospectus as so amended or
supplemented will not, in the light of the circumstances when the
Prospectus is delivered to a purchaser, be misleading or so that the
Prospectus, as amended or supplemented, will comply with law.
(d) To endeavor to qualify the Offered Securities for offer
and sale under the securities or Blue Sky laws of such jurisdictions as
the Manager shall reasonably request.
(e) To make generally available to the Company's security
holders and to the Manager as soon as practicable an earning statement
covering a twelve month period beginning on the first day of the first
full fiscal quarter after the date of this Agreement, which earning
statement shall satisfy the provisions of Section 11(a) of the
Securities Act and the rules and regulations of the Commission
thereunder. If such fiscal quarter is the last fiscal quarter of the
Company's fiscal year, such earning statement shall be made available
not later than 90 days after the close of the period covered thereby and
in all other cases shall be made available not later than 45 days after
the close of the period covered thereby.
(f) During the period beginning on the date of the
Underwriting Agreement and continuing until the date which is thirty
(30) days after the Closing Date, not to offer, sell, contract to sell
or otherwise dispose of any debt securities of the Company or warrants
to purchase debt securities of the Company substantially similar to the
Offered Securities (other than (i) the Offered Securities and (ii)
commercial paper issued in the ordinary course of business), without the
prior written consent of the Manager.
(g) Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, to pay or
cause to be paid all expenses incident to the performance of the
Company's and the Guarantor's obligations under this Agreement,
including: (i) the fees, disbursements and expenses of the Company's and
Guarantor's counsel and the Company's and Guarantor's accountants in
connection with the registration and delivery of the Offered Securities
under the Securities Act and all other fees or expenses in connection
with the preparation and filing of the Registration Statement, any
preliminary prospectus, the Prospectus and amendments and supplements to
any of the foregoing, including all printing costs associated therewith,
and the mailing and delivering of copies thereof to the Underwriters and
dealers, in the quantities hereinabove specified, (ii) all costs and
expenses related to the transfer and delivery of the Offered Securities
to the Underwriters, including any transfer or other taxes payable
thereon (but excluding any transfer taxes on resale of any of the
Offered Securities by the Underwriters), (iii) the cost of printing or
producing any Blue Sky or legal investment memorandum in connection with
the offer and sale of the Offered Securities under state
law and all expenses in connection with the qualification of the Offered
Securities for offer and sale under state law as provided in Section
5(d) hereof, including filing fees and the reasonable fees and
disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky or legal investment
memorandum, (iv) the fees and disbursements of the Company's and
Guarantor's counsel and accountants and of the Trustee and its counsel,
(v) all filing fees and the reasonable fees and disbursements of counsel
to the Underwriters incurred in connection with the review and
qualification of the offering of the Offered Securities by the National
Association of Securities Dealers, Inc., (vi) any fees charged by the
rating agencies for the rating of the Offered Securities, (vii) the
costs and expenses of the Company and the Guarantor relating to investor
presentations on any "road show" undertaken in connection with the
marketing of the offering of the Offered Securities, including, without
limitation, expenses associated with the production of road show slides
and graphics, fees and expenses of any consultants engaged in connection
with the road show presentations with the prior approval of the Company,
travel and lodging expenses of the representatives and officers of the
Company and the Guarantor and any such consultants, and the cost of any
aircraft chartered in connection with the road show, and (viii) all
other costs and expenses incident to the performance of the obligations
of the Company and the Guarantor hereunder for which provision is not
otherwise made in this Section. It is understood, however, that except
as provided in this Section, Section 6 entitled "Indemnity and
Contribution", and the last paragraph of Section 8 below, the
Underwriters will pay all of their costs and expenses, including fees
and disbursements of their counsel, and any advertising expenses
connected with any offers they may make.
6. INDEMNITY AND CONTRIBUTION.
(a) The Company and the Guarantor, jointly and severally,
agree to indemnify and hold harmless each Underwriter and each person, if any,
who controls any Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act from and against any and all
losses, claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) caused by any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement or any amendment thereof, any preliminary prospectus or the Prospectus
(as amended or supplemented if the Company or the Guarantor shall have furnished
any amendments or supplements thereto), 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 or liabilities are caused by any such untrue statement
or omission or alleged untrue statement or omission based upon information
relating to any Underwriter furnished to the Company in writing by such
Underwriter through the Manager expressly for use therein.
(b) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company and the Guarantor, and their respective
directors, officers who sign the Registration Statement and each person, if any,
who controls the Company or the Guarantor, respectively, within the meaning of
either Section 15 of the Securities Act or Section 20 of the
Exchange Act to the same extent as the foregoing indemnity from the Company and
the Guarantor to such Underwriter, but only with reference to information
relating to such Underwriter furnished to the Company in writing by such
Underwriter through the Manager expressly for use in the Registration Statement,
any preliminary prospectus, the Prospectus or any amendments or supplements
thereto.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to either Section 6(a) or 6(b), such person
(the "INDEMNIFIED PARTY") shall promptly notify the person against whom such
indemnity may be sought (the "INDEMNIFYING PARTY") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceeding.
In any such 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 respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the fees and expenses of more than one separate firm (in addition
to any local counsel) for all such indemnified parties and that all such fees
and expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by the Manager, in the case of parties indemnified
pursuant to Section 6(a) above, and by the Company, in the case of parties
indemnified pursuant to Section 6(b) above. 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.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified arty for
fees and expenses of counsel as contemplated by the second and third sentences
of this paragraph, the indemnifying party agrees that it shall be liable for any
settlement of any proceeding effected without its written consent if (i) such
settlement is entered into more than 30 days after receipt by such indemnifying
party of the aforesaid request and (ii) such indemnifying party shall not have
reimbursed the indemnified party in accordance with such request prior to the
date of such settlement. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened proceeding in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of
such proceeding.
(d) To the extent the indemnification provided for in
Section 6(a) or 6(b) is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or
liabilities referred to therein, then each indemnifying party under such
paragraph, in lieu of indemnifying such indemnified party thereunder, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (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 Offered
Securities or (ii) if the allocation provided by clause 6(d)(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 6(d)(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 that resulted in such
losses, claims, damages or liabilities, 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
Offered Securities shall be deemed to be in the same respective proportions as
the net proceeds from the offering of such Offered Securities (before deducting
expenses) received by the Company and the total underwriting discounts and
commissions received by the Underwriters, in each case as set forth in the table
on the cover of the Prospectus Supplement, bear to the aggregate Public Offering
Price of the Offered 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 the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Underwriters' respective obligations to
contribute pursuant to this Section 6 are several in proportion to the
respective principal amounts of Offered Securities they have purchased
hereunder, and not joint.
(e) The Company, the Guarantor and the Underwriters agree
that it would not be just or equitable if contribution pursuant to this Section
6 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 that does
not take account of the equitable considerations referred to in Section 6(d).
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 6, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Offered Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages that such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The remedies provided for in this
Section 6 are not exclusive and shall not limit any rights or remedies which may
otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in
this Section 6 and the representations, warranties and other statements of the
Company and the Guarantor contained in this Agreement shall remain operative and
in full force and effect regardless of (i) any termination of this Agreement,
(ii) any investigation made by or on behalf of any Underwriter or any person
controlling any Underwriter or the Company or the Guarantor, or their respective
officers or directors or any person controlling the Company or the Guarantor,
respectively, and (iii) acceptance of and payment for any of the Offered
Securities.
7. TERMINATION. This Agreement shall be subject to termination by
notice given by the Manager to the Company, if (a) after the execution and
delivery of the Underwriting Agreement and prior to the Closing Date (i) trading
generally shall have been suspended or materially limited on or by, as the case
may be, any of the New York Stock Exchange, the American Stock Exchange, the
National Association of Securities Dealers, Inc., the Chicago Board of Options
Exchange, the Chicago Mercantile Exchange or the Chicago Board of Trade, (ii)
trading of any securities of the Company or the Guarantor shall have been
suspended on any exchange or in any over-the-counter market, (iii) a general
moratorium on commercial banking activities in New York shall have been declared
by either Federal or New York State authorities or (iv) there shall have
occurred any outbreak or escalation of hostilities or any change in financial
markets or any calamity or crisis that, in the judgment of the Manager, is
material and adverse and (b) in the case of any of the events specified in
clauses 7(a)(i) through 7(a)(iv), such event, individually or together with any
other such event, makes it, in the judgment of the Manager, impracticable to
market the Offered Securities on the terms and in the manner contemplated in the
Prospectus.
8. DEFAULTING UNDERWRITERS. If, on the Closing Date, any one or
more of the Underwriters shall fail or refuse to purchase Offered Securities
that it has or they have agreed to purchase hereunder on such date, and the
aggregate amount of Offered Securities which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase is not more than one-tenth
of the aggregate amount of the Offered Securities to be purchased on such date,
the other Underwriters shall be obligated severally in the proportions that the
amount of Offered Securities set forth opposite their respective names in the
Underwriting Agreement bears to the aggregate amount of Offered Securities set
forth opposite the names of all such non-defaulting Underwriters, or in such
other proportions as the Manager may specify, to purchase the Offered Securities
which such defaulting Underwriter or Underwriters agreed but failed or refused
to purchase on such date; PROVIDED that in no event shall the amount of Offered
Securities that any Underwriter has agreed to purchase pursuant to this
Agreement be increased pursuant to this Section 8 by an amount in excess of
one-ninth of such amount of Offered Securities without the written consent of
such Underwriter. If, on the Closing Date, any Underwriter or Underwriters shall
fail or refuse to purchase Offered Securities and the aggregate amount of
Offered Securities with respect to which such default occurs is more than
one-tenth of the aggregate amount of Offered Securities to be purchased on such
date, and arrangements satisfactory to the Manager and the Company for the
purchase of such Offered Securities 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 the Manager
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.
If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of the Company or the
Guarantor to comply with the terms or to fulfill any of the conditions of this
Agreement, or if for any reason the Company or the Guarantor shall be unable to
perform its obligations under this Agreement, the Company and the Guarantor will
reimburse the Underwriters or such Underwriters as have so terminated this
Agreement with respect to themselves, severally, for all out-of-pocket expenses
(including the fees and disbursements of their counsel) reasonably incurred by
such Underwriters in connection with this Agreement or the offering contemplated
hereunder.
9. COUNTERPARTS. 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.
10. APPLICABLE LAW. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York.
11. HEADINGS. The headings of the sections of this Agreement have
been inserted for convenience of reference only and shall not be deemed a part
of this Agreement.
ANNEX 1
TO
STANDARD UNDERWRITING PROVISIONS
UNDERWRITING AGREEMENT
[Date]
Xxxxxx'x Entertainment, Inc.
Xxxxxx'x Operating Company, Inc.
0000 Xxxxxx Xxxx
Xxxxxxx, Xxxxxxxxx 00000
Dear Sirs and Mesdames:
We (the "MANAGER") are acting on behalf of the underwriter or underwriters
(including ourselves) named below (such underwriter or underwriters being herein
called the "UNDERWRITERS"), and we understand that Xxxxxx'x Operating Company,
Inc., a Delaware corporation (the "COMPANY") and Xxxxxx'x Entertainment, Inc., a
Delaware corporation (the "GUARANTOR"), propose to issue and sell [Currency and
Principal Amount] aggregate initial offering price of [Full title of Debt
Securities] (the "DEBT SECURITIES") [(The Debt Securities are collectively
referred to herein as the "OFFERED SECURITIES.")] The Debt Securities will be
issued pursuant to the provisions of an Indenture dated as of December 18, 1998
(the "INDENTURE") between the Company and IBJ Xxxxxxxx Bank & Trust Company (the
"TRUSTEE").
Subject to the terms and conditions set forth or incorporated by reference
herein, the Company hereby agrees to sell to the several Underwriters, and each
Underwriter agrees, severally and not jointly, to purchase from the Company the
respective principal amounts of Debt Securities set forth below opposite their
names at a purchase price of ____% of the principal amount of Debt Securities [,
plus accrued interest, if any, from [Date of Offered Securities] to the date of
payment and delivery](1):
---------------
(1) To be added only if the transaction does not close "flat" (i.e., when
the purchaser pays accrued interest on the debt security at closing). Unless
otherwise provided in the Debt Securities, accrued interest, if any, will be
computed on the basis of a 360-day year of twelve 30-day months.
PRINCIPAL AMOUNT OF
NAME DEBT SECURITIES
--------------------------------------------------- --------------------
Xxxxxx Xxxxxxx & Co. Incorporated
[Insert syndicate list]
Total............................................
--------------------------------------------------- --------------------
The Underwriters will pay for the Offered Securities upon delivery thereof
at [office] at ______ a.m. (New York City time) on ___________, 199_, or at such
other time, not later than 5:00 p.m. (New York City time) on __________, 199_,
as shall be designated by the Manager. The time and date of such payment and
delivery are hereinafter referred to as the Closing Date.
The Offered Securities shall have the terms set forth in the Prospectus
dated December __, 1998, and the Prospectus Supplement dated ____________,
199__, including the following:
Terms of Debt Securities
Maturity Date: _____________ ___, _____
Interest Rate: _____________ ___, _____
Redemption Provisions: _____________ ___, _____
Interest Payment Dates: ______________ ___ and
______________ ___
commencing
_____________ ___, _____
[(Interest accrues from: ________________,_____)](2)
Form and Denomination: ______________
---------------
(2) To be added only if the transaction does not close flat.
[Other Terms:]
All provisions contained in the document entitled Xxxxxx'x Operating
Company, Inc. Underwriting Agreement Standard Provisions (Debt Securities) dated
December __, 1998, a copy of which is attached hereto, are herein incorporated
by reference in their entirety and shall be deemed to be a part of this
Agreement to the same extent as if such provisions had been set forth in full
herein, except that (i) if any term defined in such document is otherwise
defined herein, the definition set forth herein shall control, (ii) all
references in such document to a type of security that is not an Offered
Security shall not be deemed to be a part of this Agreement and (iii) all
references in such document to a type of agreement that has not been entered
into in connection with the transactions contemplated hereby shall not be deemed
to be a part of this Agreement.
Please confirm your agreement by having an authorized officer sign a copy
of this Agreement in the space set forth below.
Very truly yours,
XXXXXX XXXXXXX & CO. INCORPORATED
Acting severally on behalf of itself and the
several Underwriters named herein
By:
--------------------------------------
Name:
Title:
Accepted:
XXXXXX'X OPERATING COMPANY, INC.
By:
-----------------------------
Name:
Title:
XXXXXX'X ENTERTAINMENT, INC.
By:
-----------------------------
Name:
Title:
UNDERWRITING AGREEMENT
January 12, 1999
Xxxxxx'x Entertainment, Inc.
Xxxxxx'x Operating Company, Inc.
0000 Xxxxxx Xxxx
Xxxxxxx, Xxxxxxxxx 00000
Dear Sirs and Mesdames:
We (the "MANAGER") are acting on behalf of the underwriters (including
ourselves) named below (such underwriters being herein called the
"UNDERWRITERS"), and we understand that Xxxxxx'x Operating Company, Inc., a
Delaware corporation (the "COMPANY"), and Xxxxxx'x Entertainment, Inc., a
Delaware corporation (the "GUARANTOR"), propose to issue and sell Five Hundred
Million Dollars ($500,000,000) aggregate initial offering price of 7.50% Senior
Notes due January 15, 2009 (the "DEBT SECURITIES" or "NOTES"). The Debt
Securities will be issued pursuant to the provisions of an Indenture, dated as
of December 18, 1998, and a Supplemental Indenture, dated as of January 20, 1999
(the "INDENTURE") among the Company, the Guarantor and IBJ Whitehall Bank &
Trust Company (the "TRUSTEE").
Subject to the terms and conditions set forth or incorporated by reference
herein, the Company and the Guarantor hereby agree to sell to the several
Underwriters, and each Underwriter agrees, severally and not jointly, to
purchase from the Company and the Guarantor the respective principal amounts of
Debt Securities set forth below opposite their names at a purchase price of
98.923% of the principal amount of Debt Securities, plus accrued interest, if
any, from January 20, 1999 to the date of payment and delivery.
PRINCIPAL AMOUNT OF
NAME DEBT SECURITIES
--------------------------------------------- -------------------------
Xxxxxx Xxxxxxx & Co. Incorporated $290,000,000
BancBoston Xxxxxxxxx Xxxxxxxx Inc. $30,000,000
Bear, Xxxxxxx & Co. Inc. $30,000,000
Credit Suisse First Boston Corporation $30,000,000
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities $30,000,000
Corporation
Xxxxxx Brothers Inc. $30,000,000
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx $30,000,000
Incorporated
Prudential Securities Incorporated $30,000,000
--------------------------------------------- -------------------------
Total................................ $500,000,000
The Underwriters will pay for such Debt Securities upon delivery thereof at
the facilities of The Depositary Trust Company at 10:00 a.m. (New York City
time) on January 20, 1999, or at such other time, not later than 5:00 p.m. (New
York City time) on January 20, 1999, as shall be designated by the Manager. The
time and date of such payment and delivery are hereinafter referred to as the
Closing Date.
The Debt Securities shall have the terms set forth in the Prospectus dated
December 31, 1998, and the Prospectus Supplement dated January 12, 1999,
including the following:
TERMS OF DEBT SECURITIES:
MATURITY DATE: January 15, 2009
INTEREST RATE: 7.50%
INTEREST PAYMENT DATES: July 15 and January 15
commencing July 15, 1999
INTEREST ACCRUES FROM: January 20, 1999
FORM AND DENOMINATION: Registered, $1,000
REDEMPTION PROVISIONS:
The Notes are redeemable, in whole or in part, at the option of the
Company at any time, at a redemption price equal to the greater of (a) 100%
of the principal amount of the Notes then outstanding to be redeemed or (b)
the sum of the present values of the remaining scheduled payments of
principal and interest thereon (not including any portion of such payments
of interest accrued as of the date of redemption) discounted to
such date of redemption on a semiannual basis (assuming a 360-day year
consisting of twelve 30-day months) at the Adjusted Treasury Rate, plus 25
basis points, as calculated by an Independent Investment Banker, plus, in
either of the above cases, accrued and unpaid interest thereon on the date
of redemption (the "Redemption Date").
As used herein:
"Adjusted Treasury Rate" means, with respect to any Redemption Date:
(a) the yield, under the heading which represents the average for the
immediately preceding week, appearing in the most recently published
statistical release designated "H.15(519)" or any successor publication
which is published weekly by the Board of Governors of the Federal Reserve
System and which establishes yields on actively traded United States
Treasury securities adjusted to constant maturity under the caption
"Treasury Constant Maturities," for the maturity corresponding to the
Comparable Treasury Issue (if no maturity is within three months before or
after the Remaining Life (as defined below), yields for the two published
maturities most closely corresponding to the Comparable Treasury Issue
shall be determined and the Adjusted Treasury Rate shall be interpolated or
extrapolated from such yields on a straight-line basis, rounding to the
nearest month); or (b) if such release (or any successor release) is not
published during the week preceding the calculation date or does not
contain such yields, the rate per annum equal to the semi-annual equivalent
yield to maturity of the Comparable Treasury Issue, calculated using a
price for the Comparable Treasury Issue (expressed as a percentage of its
principal amount) equal to the Comparable Treasury Price for such
Redemption Date. The Treasury Rate shall be calculated on the third
Business Day preceding the Redemption Date.
"Comparable Treasury Issue" means the United States Treasury security
selected by an Independent Investment Banker as having a maturity
comparable to the remaining term of the securities to be redeemed that
would be utilized, at the time of selection and in accordance with
customary financial practice, in pricing new issues of corporate debt
securities of comparable maturity to the remaining term of the Notes (the
"Remaining Life").
"Comparable Treasury Price" means, with respect to any Redemption
Date, (1) the average of five Reference Treasury Dealer Quotations for such
Redemption Date, after excluding the highest and lowest Reference Treasury
Dealer Quotations, or (2) if the Independent Investment Banker obtains
fewer than five such Reference Treasury Dealer Quotations, the average of
all such quotations.
"Independent Investment Banker" means one of the Reference Treasury
Dealers appointed by the Company.
"Reference Treasury Dealer" means (a) each of Xxxxxx Xxxxxxx & Co.
Incorporated, BancBoston Xxxxxxxxx Xxxxxxxx Inc., Bear, Xxxxxxx & Co. Inc.,
Credit Suisse First Boston Corporation, Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation, Xxxxxx Brothers Inc., Xxxxxxx Lynch, Pierce, Xxxxxx
& Xxxxx Incorporated and
Prudential Securities Incorporated, and their respective successors;
provided that, if the foregoing ceases to be a primary U.S. Government
securities dealer in New York City (a "Primary Treasury Dealer"), the
Company will substitute therefor another Primary Treasury Dealer and (b)
any other Primary Treasury Dealer selected by the Company.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any Redemption Date, the average, as
determined by the Independent Investment Banker, of the bid and asked
prices for the Comparable Treasury Issue (expressed in each case as a
percentage of its principal amount) quoted in writing to the Independent
Investment Banker at 5:00 p.m., New York City time, on the third Business
Day preceding such Redemption Date.
The Company will mail a notice of redemption at least 30 days but not
more than 60 days before the Redemption Date to each holder of Notes to be
redeemed. If the Company elects to partially redeem the Notes, the Trustee
will select in a fair and appropriate manner the Notes to be redeemed.
Unless the Company defaults in payment of the redemption price, on and
after the Redemption Date, interest will cease to accrue on the Notes or
portions thereof called for redemption.
The mandatory disposition pursuant to gaming laws provisions of the
Indenture will also be applicable to the Notes.
GUARANTEE:
The Guarantor will irrevocably and unconditionally guarantee, on an
unsecured senior basis, the payment of all obligations of the Company under
the Notes. If the Company defaults in the payment of the principal of,
premium, if any, or interest on such Notes when and as the same shall
become due, whether upon maturity, acceleration, call for redemption or
otherwise, without the necessity of action by the Trustee or any holder of
such Notes, the Guarantor shall be required promptly and fully to make such
payment.
SINKING FUND PROVISIONS:
No sinking fund provisions.
OTHER TERMS:
All provisions contained in the document entitled Xxxxxx'x Operating
Company, Inc. Underwriting Agreement Standard Provisions (Debt Securities)
dated January 12, 1999, a copy of which is attached hereto, are herein
incorporated by reference in their entirety and shall be deemed to be a
part of this Agreement to the same extent as if such provisions had been
set forth in full herein, except that (i) if any term defined in such
document is otherwise defined herein, the definition set forth herein shall
control, (ii) all references in such document to a type of security that is
not a Debt Security shall not be deemed to be a part of this Agreement and
(iii) all references in such document to a type of agreement that has not
been entered into in connection with the transactions contemplated hereby
shall not be deemed to be a part of this Agreement.
[Remainder of Page Intentionally Left Blank]
Please confirm your agreement by having an authorized officer sign a copy
of this Agreement in the space set forth below.
Very truly yours,
XXXXXX XXXXXXX & CO. INCORPORATED
Acting severally on behalf of itself and the
several Underwriters named herein
By: /s/ Xxxxxxx Xxxxx
--------------------------------------
Name: Xxxxxxx Xxxxx
Title: Vice President
Accepted:
XXXXXX'X OPERATING COMPANY, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
XXXXXX'X ENTERTAINMENT, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
