$200,000,000
XXXXXXX ENTERPRISES, INC.
6.40% REMARKETABLE OR REDEEMABLE SECURITIES{SM} ("ROARS"{SM})
DUE MAY 1, 2013
UNDERWRITING AGREEMENT
April 21, 1998
NationsBanc Xxxxxxxxxx Securities LLC
Bear, Xxxxxxx & Co. Inc.
Citicorp Securities, Inc.
c/o NationsBanc Xxxxxxxxxx Securities LLC
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"), $200,000,000
principal amount of its 6.40% Remarketable or Redeemable Securities (ROARS)
due May 1, 2013 (Remarketing Date May 1, 2003) (the "Notes"). The Notes
are to be issued pursuant to the provisions of an indenture dated as of
December 1, 1996 between the Company and Citibank, N.A., as Trustee (the
"Trustee"), as supplemented by the First Supplemental Indenture (the
"Supplemental Indenture") to be dated as of April 24, 1998 between the
Company and the Trustee (as supplemented, the "Indenture"). 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:
(a) A registration statement on Form S-3 (File No. 333-14467)
with respect to an aggregate of $300,000,000 initial public offering
price 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 date hereof and the Closing Date, if
applicable, does not and 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 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 violations or defaults that,
individually or in the aggregate, would not have a material adverse
effect on the condition, financial or otherwise, earnings, affairs or
business 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 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 reasonably be expected to result in any
material adverse change in the condition, financial or otherwise,
earnings, affairs or business 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 is 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. The Supplemental Indenture to be executed on the
Closing Date will have been duly authorized and 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 equitable 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
99.077% of the principal amount per Note (the "purchase price per Note")
plus accrued interest, if any, from April 24, 1998 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 Company's obligation to
sell the Notes to the Underwriters on the Closing Date is conditioned upon
the execution and delivery on or prior to the Closing Date by the Company
and NationsBanc Xxxxxxxxxx Securities LLC ("NationsBanc") of the
Remarketing Agreement described in the preliminary prospectus supplement
relating to the Notes and upon the receipt by the Company of $5.8 million
from NationsBanc in connection therewith.
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 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 9:00 a.m.,
New Orleans time, on April 24, 1998, 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 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 date the
Notes are released for sale 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 date the Notes are released for sale.
(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.
(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 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 and the Supplemental Indenture have 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 such counsel's 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 ROARS" 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,
1997, 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, the Indenture and the Supplemental
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 Xxxxxx
Xxxxxxx S.E.N.C. in rendering the opinions expressed in (ii) with respect
to Le Groupe Xxxxxxx Inc.-Xxxxxxx Group Inc. and on the opinion of Xxxxxxx
Xxxxx & Cleveland L.L.P. in rendering the opinions expressed in (vii) with
respect to litigation, in the second clause of (ix) with respect to the
Company's 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, L.L.P. 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 the
ROARS"), 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 Prospectus, any material adverse change in
the condition, financial or otherwise, earnings, business affairs or
business 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 Auditing 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 Supplemental
Indenture, 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 Xxxxxxxxxx Securities LLC 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 Xxxxxxxxxx Securities LLC 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 Prospectus, 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 Xxxxxxxxxx Securities LLC,
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 Xxxxxxxxxx
Securities LLC, 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 L.L.P., 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. Xxxxxxx, III
--------------------------------
Name: Xxxxxx X. Xxxxxxx, III
Title: Chief Executive Officer and
Vice Chairman of the Board
Confirmed and Accepted, as of the date first above written:
NATIONSBANC XXXXXXXXXX SECURITIES LLC
BEAR, XXXXXXX & CO. INC.
CITICORP SECURITIES, INC.
Acting severally on behalf of
themselves and the several
Underwriters named herein.
By: NATIONSBANC XXXXXXXXXX SECURITIES LLC
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Managing Director
