EXHIBIT 1.1
$385,000,000
X.X. XXXXXX, INC.
8% Senior Notes due 2009
UNDERWRITING AGREEMENT
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February 1, 1999
XXXXXXXXX, LUFKIN & XXXXXXXX
SECURITIES CORPORATION
XXXXXXX XXXXX BARNEY INC.
BT ALEX. XXXXX INCORPORATED
c/x Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
X.X. Xxxxxx, Inc., a Delaware corporation (the "Company"), proposes to
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issue and sell $385,000,000 aggregate principal amount of its 8% Senior Notes
due 2009 (the "Notes") to Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation,
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Xxxxxxx Xxxxx Barney Inc. and BT Alex. Xxxxx Incorporated (collectively, the
"Underwriters"). The Notes are to be issued pursuant to the provisions of an
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Indenture dated as of June 9, 1997, as supplemented the ("Indenture"), among the
Company, the subsidiaries of the Company listed on the signature pages hereof
(the "Guarantors") and the American Stock Transfer and Trust Company, as Trustee
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(the "Trustee"). The Company's obligations under the Indenture and the Notes
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will be unconditionally guaranteed (the "Guarantees"), jointly and severally, by
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each of the Guarantors. The Company and the Guarantors are collectively
referred to herein as the "Issuers" and the Notes and the Guarantees are
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collectively referred to herein as the "Securities."
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1. Registration Statement and Prospectus. The Company has prepared
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and filed with the Securities and Exchange Commission (the "Commission") in
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accordance with the provisions of the Securities Act of 1933, as amended, and
the published rules and regulations of the Commission thereunder (collectively,
the "Act"), a registration statement on Form S-3
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(No 333-57193), including a base prospectus relating to the Securities. The
registration statement as amended at the time it became effective on July 1,
1998, including information (if any) deemed to be part of the registration
statement at the time of effectiveness pursuant to Rule 430A under the Act, is
hereinafter referred to as the "Registration Statement"; and the base prospectus
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dated July 1, 1998 (the "Base Prospectus"), as supplemented by the prospectus
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supplement relating to the Securities in the form first used to confirm sales of
Notes (the "Prospectus Supplement"), is hereinafter referred to as the
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"Prospectus." Any reference herein to the Registration Statement, a preliminary
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prospectus or the Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the Act, as of the effective date of the Registration Statement or the
date of such preliminary prospectus or the Prospectus (the "Incorporated
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Documents"), and, except as otherwise indicated, when reference is made to
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information "in" (including by use of the terms "set forth in," "described in"
and similar terms) the Prospectus or the Registration Statement, such reference
shall be deemed to include information incorporated by reference in the
Prospectus or the Registration Statement, as the case may be.
2. Agreements To Sell and Purchase. The Company agrees to issue and
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sell, and, on the basis of the representations and warranties contained in this
Underwriting Agreement (the "Agreement") and subject to its terms and
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conditions, each Underwriter, severally and not jointly, agrees to purchase from
the Company, the principal amount of Notes set forth after such Underwriter's
name on Schedule A hereto, at 97.957% of the principal amount thereof (the
"Purchase Price").
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3. Terms of Public Offering. The Company is advised by you that the
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Underwriters propose (i) to make a public offering of their respective portions
of the Securities as soon after the execution and delivery of this Agreement as
in your judgment is advisable and (ii) initially to offer the Securities upon
the terms set forth in the Prospectus Supplement.
4. Delivery and Payment. Delivery to the Underwriters of and
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payment for the Notes shall be made at 10:00 A.M., New York City time, on
February 4, 1999 (the "Closing Date"), at such place as you shall designate. The
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Closing Date and the location of delivery of and the form of payment for the
Notes may be varied by agreement between you and the Company.
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Certificates for the Notes shall be registered in such names and
issued in such denominations as you shall request in writing not later than two
full business days prior to the Closing Date. Such certificates shall be made
available to you for inspection not later than 9:30 A.M., New York City time, on
the business day next preceding the Closing Date. Certificates in definitive
form evidencing the Notes shall be delivered to you on the Closing Date with any
transfer taxes thereon duly paid by the Company, for the account of the
Underwriters, against payment of the Purchase Price therefor by wire or
certified or official bank checks payable in Federal funds to the order of the
Company. If the Notes will be issued in book-entry form, the Company shall
deposit the global certificate(s) representing the Notes with the Depository
Trust Company ("DTC"), or its designated custodian, at the Closing Date, and the
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Company will deliver such global certificate(s) to the Underwriters by causing
DTC to credit the Notes to the account of the Underwriters at DTC against
payment therefor as set forth above.
5. Agreements of the Issuers. The Issuers, jointly and severally,
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agree with the Underwriters as follows:
(a) The Issuers will, if necessary or required by law, file an
amendment to the Registration Statement or, if necessary pursuant to Rule
430A under the Act, a post-effective amendment to the Registration
Statement, as soon as practicable after the execution and delivery of this
Agreement, and will use their best efforts to cause the Registration
Statement or such post-effective amendment to become effective at the
earliest possible time. The Company will comply fully and in a timely
manner with the applicable provisions of Rule 424 and Rule 430A under the
Act.
(b) The Issuers will advise you promptly and, if requested by you,
will confirm such advice in writing: (i) of the effectiveness of any
amendment to the Registration Statement; (ii) of the transmission to the
Commission for filing of any supplement to the Prospectus (including any
document that would as a result of such filing become an Incorporated
Document) and to furnish you with copies thereof; (iii) of the receipt of
any comments from the Commission that relate to the Registration Statement
or of any request by the Commission for amendment of or a supplement to the
Registration Statement or the Prospectus or for additional information;
(iv) of the issuance by the Commission of any stop order suspending the
effectiveness
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of the Registration Statement or any order preventing or suspending the use
of the Prospectus or of the suspension of qualification of the Securities
for offering or sale in any jurisdiction or the initiation or the
threatening of any proceeding for such purpose; and (v) within the period
of time referred to in paragraph (e) below, of any change in the Company's
condition (financial or other), business, prospects, properties, net worth
or results of operations, or of the happening of any event, which makes any
statement of a material fact made in the Registration Statement or the
Prospectus (as then amended or supplemented) untrue or which requires the
making of any additions to or changes in the Registration Statement or the
Prospectus (as then amended or supplemented) in order to state a material
fact required to be stated therein or necessary in order to make the
statements therein not misleading, or of the necessity to amend or
supplement the Prospectus (as then amended or supplemented) to comply with
the Act or any other law. If at any time any stop order suspending the
effectiveness of the Registration Statement or any order preventing or
suspending the use of the Prospectus or suspending any such qualification
shall be issued, the Issuers will promptly use their best efforts to obtain
the withdrawal of such order at the earliest possible time.
(c) The Issuers will furnish to you, without charge, (i) five copies
of the registration statement as originally filed with the Commission and
of each amendment thereto, including all exhibits thereto, (ii) the
Prospectus and any amendment or supplement thereto, (iii) such number of
copies of the registration statement as originally filed and of each
amendment thereto, but without exhibits, as you may request, (iv) such
number of copies of the Incorporated Documents, without exhibits, as you
may request, and (v) five copies of the exhibits to the Incorporated
Documents.
(d) The Issuers will not file any amendment to the Registration
Statement or make any amendment or supplement to the Prospectus or, prior
to the end of the period of time referred to in paragraph (e) below, file
any document which, upon filing becomes an Incorporated Document, of which
you shall not previously have been advised or to which, after you shall
have received a copy of the document proposed to be filed, you shall
reasonably object.
(e) As soon after the execution and delivery of this Agreement as
possible and thereafter from time to time for
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such period as in the opinion of counsel for the Underwriters a prospectus
is required by the Act to be delivered in connection with sales by the
Underwriters or any dealer, the Issuers will expeditiously deliver to the
Underwriters and each dealer, without charge, as many copies of the
Prospectus (and of any amendment or supplement thereto) as you may
reasonably request. The Issuers consent to the use of the Prospectus (and
of any amendment or supplement thereto) in accordance with the provisions
of the Act and with the securities or Blue Sky laws of the jurisdictions in
which the Securities are offered by the Underwriters and by all dealers to
whom Securities may be sold, both in connection with the offering and sale
of the Securities and for such period of time thereafter as the Prospectus
is required by the Act to be delivered in connection with sales by the
Underwriters or any dealer.
(f) If during the period of time referred to in paragraph (e) above
any event shall occur as a result of which, in the judgment of the Issuers
or in the opinion of counsel for the Underwriters, it becomes 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 it is necessary to amend or supplement the
Prospectus to comply with the Act or any other law, the Issuers will
forthwith prepare and, subject to the provisions of paragraph (d) above,
file with the Commission an appropriate amendment or supplement to the
Prospectus so that the statements in the Prospectus, as so amended or
supplemented, will not, in the light of the circumstances when it is so
delivered, be misleading, or so that the Prospectus will comply with law,
and to furnish to the Underwriters and to such dealers as you shall specify
such number of copies thereof as the Underwriters or such dealers may
reasonably request. In the event that the Issuers and you agree that the
Prospectus should be amended or supplemented, the Issuers, if requested by
you, will promptly issue a press release announcing or disclosing the
matters to be covered by the proposed amendment or supplement.
(g) The Issuers will cooperate with you and with counsel for the
Underwriters in connection with the registration or qualification of the
Securities for offering and sale by the Underwriters and by dealers under
the securities or Blue Sky laws of such jurisdictions as you may designate
and will file such consents to service of process or other documents
necessary or appropriate in order
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to effect such registration or qualification; provided, however, that in no
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event shall any Issuer be obligated to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action which
would subject it to service of process in suits, other than those arising
out of the offering or sale of the Securities, in any jurisdiction where it
is not now so subject.
(h) The Issuers will make generally available to its security
holders a consolidated earnings statement, which need not be audited,
covering a twelve-month period commencing after the date the Registration
Statement is declared effective by the Commission (the "Effective
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Date") and ending not later than 15 months thereafter, as soon as
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practicable after the end of such period, which consolidated earnings
statement shall satisfy the provisions of Section 11(a) of the Act and Rule
158 thereunder, and to advise you in writing when such statement has been
made available.
(i) During the period of five years hereafter, the Issuers will
furnish to you as soon as available, a copy of all public materials
furnished by the Company to its stockholders and all public reports and
financial statements furnished by the Company to the principal national
securities exchange upon which the Common Stock may be listed pursuant to
requirements of or agreements with such exchange or to the Commission.
(j) The Company will apply the net proceeds from the sale of the
Notes in accordance with the description set forth in the Prospectus under
the caption "Use of Proceeds."
(k) Neither the Company nor any of its subsidiaries has taken, or
will take, directly or indirectly, any action designed to or that might
reasonably be expected to cause or result in stabilization or manipulation
of the price of the Notes to facilitate the sale or resale of the Notes.
(l) The Issuers will pay all costs, expenses, fees and taxes
incident to (i) the preparation, printing, filing and distribution under
the Act of the Registration Statement (including financial statements and
exhibits), and all amendments and supplements thereto prior to or during
the period specified in paragraph (e) above, (ii) the printing and delivery
of the Prospectus and all
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amendments or supplements thereto during the period specified in paragraph
(e) above, (iii) the printing and delivery of this Agreement, the
Preliminary and Supplemental Blue Sky Memoranda and all other agreements,
memoranda, correspondence and other documents printed and delivered in
connection with the offering of the Securities (including in each case any
disbursements of counsel for the Underwriters relating to such printing and
delivery), (iv) the registration or qualification of the Securities for
offer and sale under the securities or Blue Sky laws of the several states
(including in each case the reasonable fees and disbursements of counsel
for the Underwriters relating to such registration or qualification and
memoranda relating thereto), (v) filings and clearance with the National
Association of Securities Dealers, Inc. in connection with the offering,
(vi) the listing, if any, of the Securities on any national securities
exchange, and (vii) furnishing such copies of the Registration Statement,
the Prospectus and all amendments and supplements thereto as may be
requested for use in connection with the offering or sale of the Securities
by the Underwriters or by dealers to whom Securities may be sold.
(m) The Issuers will not during the period beginning on the date
hereof and continuing to and including the Closing Date, offer, sell,
contract to sell or otherwise dispose of any debt securities of the Company
or any warrants, options or other rights to purchase or acquire debt
securities of the Company or any securities convertible into or
exchangeable for debt securities of the Company (other than (i) the
Securities and (ii) commercial paper issued in the ordinary course of
business), without the prior written consent of Xxxxxxxxx, Lufkin &
Xxxxxxxx Securities Corporation.
(n) The Issuers will use their best efforts to do and perform all
things required or necessary to be done and performed under this Agreement
by the Issuers prior to the Closing Date and to satisfy all conditions
precedent to the delivery of the Notes.
6. Representations and Warranties of the Issuers. The Issuers,
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jointly and severally, represent and warrant to the Underwriters that:
(a) Each preliminary prospectus included as part of the registration
statement as originally filed or as part of any amendment or supplement
thereto, or filed pursuant
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to Rule 424 under the Act, complied when so filed in all material respects
with the provisions of the Act. The Commission has not issued any order
preventing or suspending the use of any preliminary prospectus.
(b) The Registration statement has become effective and at the date
of the Prospectus (if different), including at the date of any post-
effective amendment or supplement, the Registration Statement will comply
in all material respects with the provisions of the Act, and will not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading; the Prospectus (and any supplements or
amendments thereto) will at all such times comply in all material respects
with the provisions of the Act and will not at any such time contain any
untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
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however, that no representation or warranty is made as to information
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contained in or omitted from the Registration Statement or the Prospectus
in reliance upon and in conformity with written information furnished to
the Issuers with respect to the Underwriters specifically for inclusion
therein.
(c) The Incorporated Documents, at the time they were filed with the
Commission or, to the extent such documents were subsequently amended prior
to the date hereof, at the time so amended, complied in all material
respects with the requirements of the Act or the Securities Exchange Act of
1934, as amended, and the published rules and regulations of the Commission
thereunder (collectively, the "Exchange Act"), as applicable, and such
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documents do not on the date hereof and will not on the Closing Date
contain an untrue statement of a material fact and do not on the date
hereof and will not on the Closing Date omit to state a material fact
required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading.
(d) The financial statements (including the related notes and
supporting schedules) in the Registration Statement or the Prospectus
present fairly the consolidated financial position and results of
operations of the entities purported to be shown thereby, at the dates and
for the
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periods indicated, and have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis throughout the
periods involved.
(e) Each of Ernst & Young, LLP and Xxxxxx Xxxxxxxx LLP who have
reported on the financial statements of the Company, are independent public
accountants with respect to the Company and its subsidiaries as required by
the Act.
(f) The material assumptions used in the preparation of the pro
forma financial statements and other pro forma information in the
Prospectus are set forth therein and were reasonable when made, and the
adjustments used therein are appropriate to give pro forma effect to the
transactions or circumstances referred to therein.
(g) The Company and each of its subsidiaries have been duly formed
and are validly existing in good standing under the laws of their
respective jurisdictions of organization, are duly qualified to do business
and are in good standing in each jurisdiction in which their respective
ownership or lease of property or the conduct of their respective
businesses requires such qualification except where the failure to so
qualify, singly or in the aggregate, would not have a material adverse
effect on the financial condition, results of operations, business or
prospects of the Company and its subsidiaries taken as a whole (a "Material
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Adverse Effect"), and have all power and authority necessary to own or hold
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their respective properties and to conduct the businesses in which they are
engaged.
(h) The Company has an authorized capitalization as set forth in the
Prospectus; and all of the issued equity interests of each subsidiary of
the Company have been duly authorized and validly issued and, as to shares
of capital stock of any corporation constituting a subsidiary, are fully
paid and non-assessable and (except for directors' qualifying shares) are
owned directly or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims other than restrictions on transfer
imposed by applicable securities laws.
(i) The execution, delivery and performance of this Agreement, the
Indenture and the Securities by the issuers, compliance by the Issuers of
all the provisions hereof and thereof and the consummation of the transac-
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tions contemplated hereby will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement or other
material agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its subsidiaries
is bound or to which any of the property or assets of the Company or any of
its subsidiaries is subject, nor will such actions result in any violation
of the provisions of the organizational documents of the Company or any of
its subsidiaries or any statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the Company
or any of its subsidiaries or any of their property or assets; and except
for such consents, approvals, authorizations, registrations or
qualifications as may be required under the Act or applicable state or
foreign securities laws in connection with the purchase and distribution of
the Securities by the Underwriters, no consent, approval, authorization or
order of, or filing or registration with, any such court or governmental
agency or body is required for the execution, delivery and performance of
this Agreement, the Indenture and the Securities by the Issuers, compliance
by the Issuers of all the provisions hereof and thereof and the
consummation of the transactions contemplated hereby.
(j) This Agreement has been duly authorized, executed and delivered
by the Issuers and is a valid and binding agreement of the Issuers
enforceable in accordance with its terms (except as rights to indemnity and
contribution hereunder may be limited by applicable law).
(k) The Indenture has been duly qualified under the Trust Indenture
Act of 1939, as amended (the "TIA"), and has been duly authorized, executed
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and delivered by the Issuers and is a valid and binding agreement of the
Issuers, enforceable in accordance with its terms except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency or similar
laws affecting creditors' rights generally and (ii) rights of acceleration
and the availability of equitable remedies may be limited by equitable
principles of general applicability.
(l) The Notes have been duly authorized and, when executed and
authenticated in accordance with the provisions of the Indenture and
delivered to the Underwriters against payment therefor as provided by this
Agreement,
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will be entitled to the benefits of the Indenture, and will be valid and
binding obligations of the Company, enforceable in accordance with their
terms except as (i) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (ii) rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general applicability.
(m) The Guarantees have been duly authorized and, upon endorsement
on the Notes by the Guarantors, execution and authentication of the Notes
in accordance with the provisions of the Indenture and delivery of the
Notes to the Underwriters against payment therefor as provided by this
Agreement, will be entitled to the benefits of the Indenture, and will be
valid and binding obligations of the Guarantors, enforceable in accordance
with their terms except as (i) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (ii) rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general applicability.
(n) The Securities and the Indenture conform to the description
thereof in the Prospectus.
(o) Neither the Company nor any of its subsidiaries has sustained,
since the date of the latest audited financial statements in the
Prospectus, any loss or interference with the business of the Company and
its subsidiaries taken as a whole from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as set forth
or contemplated in the Prospectus, resulting in a Material Adverse Effect;
and, since such date, there has not been any change in the capital stock or
long-term debt of the Company or any of its subsidiaries or any material
adverse change, or any development involving a prospective material adverse
change, in or affecting the general affairs, management, financial
position, stockholders' equity or results of operations of the Company and
its subsidiaries taken as a whole, otherwise than as set forth or
contemplated in the Prospectus.
(p) There are no contracts, agreements or understandings between the
Company and any person granting such person the right to require the
Company to file a regis-
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tration statement under the Act with respect to any securities of the
Company owned or to be owned by such person or to require the Company to
include such securities in the securities registered pursuant to the
Registration Statement or in any securities being registered pursuant to
any other registration statement filed by the Company under the Act.
(q) The Company and its subsidiaries own the items of real property
and personal property purported to be owned by them which are material to
the conduct of the business of the Company and its subsidiaries taken as a
whole, free and clear of all liens, encumbrances and defects, except such
as are described in the Prospectus or such as would not have a Material
Adverse Effect. All real property held under lease by the Company and its
subsidiaries are held by them under valid, subsisting and enforceable
leases, with such exceptions as are described in the Prospectus or such as
would not have a Material Adverse Effect.
(r) Except as described in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property or assets of the Company
or any of its subsidiaries is the subject which are reasonably likely to
have a Material Adverse Effect; and to the Issuers' knowledge, no such
proceedings are threatened by governmental authorities or by others.
(s) The conditions for use of Form S-3, as set forth in the General
Instructions thereto, have been satisfied.
(t) To the Issuers' knowledge, all real property owned (either
presently or at any time in the past) or presently leased by the Company
and its subsidiaries in connection with the operation of their business,
including, without limitation, any subsurface soils and ground water
(collectively, the "Realty"), is free of contamination from any substance
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or material presently known to be toxic or hazardous, including, without
limitation, any radioactive substance, methane, volatile hydrocarbons or
industrial solvents (each, a "Hazardous Substance"), which could reasonably
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be expected to materially impair the beneficial use thereof by the Company
and its subsidiaries or constitute or cause a significant health, safety or
other environmental hazard to occupants or users (except for contaminations
which would not have a Material Adverse
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Effect); and to the Issuers' knowledge, the Realty does not contain any
underground storage or treatment tanks, active or abandoned water, gas or
oil xxxxx, or any other underground improvements or structures, other than
the foundations, footings or other supports for the improvements located
thereon, the presence of which would have a Material Adverse Effect.
Notwithstanding the foregoing, Hazardous Substances shall be deemed not to
include any supplies or substances maintained, used, stored or held on the
Realty which are (i) naturally occurring, (ii) installed by public
utilities or (iii) used in the ordinary course of the Company's or its
subsidiaries' business, provided that such supplies or substances are
stored, used, maintained and held in all material respects in accordance
with any applicable governmental requirements and with restrictions,
conditions and standards suggested by the manufacturer and the Company's
insurance carriers.
(u) The Company and its subsidiaries carry, or are covered by,
insurance in such amounts and covering such risks as is adequate for the
conduct of their respective businesses.
(v) The Company and its subsidiaries own or possess adequate rights
to use all material patents, patent applications, trademarks, service
marks, trade names, trademark registrations, service xxxx registrations,
copyrights and licenses necessary for the conduct of their respective
businesses the absence of which would have a Material Adverse Effect and
have no reason to believe that the conduct of their respective businesses
will conflict with, and have not received any notice of any claim of
conflict with, any such rights of others.
(w) There are no contracts or other documents which are required to
be described in the Prospectus or filed as exhibits to the Registration
Statement by the Act which have not been described in the Prospectus or
filed as exhibits to the Registration Statement or incorporated therein by
reference as permitted by the Act.
(x) No labor disturbance by the employees of the Company or any of
its subsidiaries exists or, to the Issuers' knowledge, is imminent which
could reasonably be expected to have a Material Adverse Effect.
(y) The Company and its subsidiaries have filed all federal, state
and local income and franchise tax returns
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required to be filed through the date hereof and has paid all taxes due
thereon, and no tax deficiency has been determined adversely to the Company
or any of its subsidiaries which has had (nor does any Issuer have any
knowledge of any tax deficiency which would reasonably likely have) a
Material Adverse Effect.
(z) Since the date as of which information is given in the
Prospectus, and except as may otherwise be disclosed in the Prospectus,
neither the Company nor any of its subsidiaries has (i) entered into any
material transaction not in the ordinary course of business or (ii) except
for the dividend of $.03 per share declared in January 1999, declared or
paid any dividend on its capital stock from the date of the Prospectus,
neither the Company nor any of its subsidiaries has incurred any material
liability other than in the ordinary course of business.
(aa) The Company is in full compliance with Section 13(b)(2) of the
Exchange Act.
(bb) Neither the Company nor any of its subsidiaries (i) is in
violation of its organizational documents, (ii) is in default in any
material respect, and no event has occurred which, with notice or lapse of
time or both, would constitute such a default, in the due performance or
observance of any term, covenant or condition contained in any indenture,
mortgage, deed of trust, loan agreement or other material agreement or
instrument to which it is a party or by which it is bound or to which any
of its properties or assets is subject as a result of which default there
would be a Material Adverse Effect or (iii) is in violation of any law,
ordinance, governmental rule, regulation or court decree to which it or its
property or assets may be subject or has failed to obtain any license,
permit, certificate, franchise or other governmental authorization or
permit necessary to the ownership of its property or to the conduct of its
business which violation or failure would have a Material Adverse Effect.
(cc) Neither the Company nor any of its subsidiaries is an
"investment company" or an entity "controlled" by an "investment company"
within the meaning of the Investment Company Act of 1940, as amended, and
the rules and regulations of the Commission thereunder.
7. Indemnification. (a) The Issuers, jointly and severally, agree
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to indemnify and hold harmless the Underwrit-
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ers 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 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, except insofar as such losses, claims,
damages, liabilities or judgments are caused by any such untrue statement or
omission or alleged untrue statement or omission based upon information relating
to the Underwriters furnished in writing to the Issuers by or on behalf of the
Underwriters expressly for use therein; provided, however, that the foregoing
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indemnity agreement with respect to any preliminary prospectus shall not inure
to the benefit of any Underwriter or any person controlling such Underwriter
asserted by a person with respect to any such losses, claims, damages and
liabilities and judgments, if a copy of the Prospectus (as then amended or
supplemented if the Issuers shall have furnished such amendment or supplement
thereto in the requisite quantity on a timely basis to permit such sending or
giving) was not sent or given by or on behalf of the Underwriters to such
person, if required by law so to have been delivered, at or prior to the written
confirmation of the sale of Notes to such person, and if the Prospectus (as so
amended and supplemented) would have cured the defect giving rise to such loss,
claim, damage, liability or judgment. Notwithstanding anything to the contrary
herein, the Underwriters shall not be obligated to send or give any Incorporated
Document, or any amendment or supplement thereto, to any person in order to
benefit from the indemnity provisions herein or otherwise. The foregoing
indemnity agreement shall be in addition to any liability that the Issuers may
otherwise have.
(b) In case any action shall be brought against any Underwriter or any
person controlling any Underwriter, based upon any preliminary prospectus, the
Registration Statement or the Prospectus or any amendment or supplement thereto
and with respect to which indemnity may be sought against the Issuers, such
Underwriter shall promptly notify the Issuers in writing and the Issuers shall
assume the defense thereof, including the employment of counsel reasonably
satisfactory to such indemnified party and payment of all fees and expenses. The
Underwriters or any such controlling person shall have the right to employ
separate counsel in any such action and participate in
-16-
the defense thereof, but the fees and expenses of such counsel shall be at
the expense of such Underwriter or such controlling person unless (i) the
employment of such counsel shall have been specifically authorized in
writing by the Issuers, (ii) the Issuers shall have failed to assume the
defense and employ counsel or (iii) the named parties to any such action
(including any impleaded parties) include both such Underwriter or such
controlling person and the Issuers and such Underwriter or such controlling
person shall have been advised by such counsel that there may be one or
more legal defenses available to it which are different from or additional
to those available to the Issuers (in which case the Issuers shall not have
the right to assume the defense of such action on behalf of such
Underwriter or such controlling person, it being understood, however, that
the Issuers shall not, in connection with any one such action or separate
but substantially similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances, be liable for
the fees and expenses of more than one separate firm of attorneys (in
addition to any local counsel) for the Underwriters and all such
controlling persons, which firm shall be designated in writing by
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation and that all such fees
and expenses shall be reimbursed as they are incurred). The Issuers shall
not be liable for any settlement of any such action effected without the
Company's written consent but if settled with the written consent of the
Company, the Issuers agree to indemnify and hold harmless the Underwriters
and any such controlling person from and against any loss or liability by
reason 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.
(c) Each Underwriter, severally and not jointly, agrees to indemnify
and hold harmless the Issuers, their directors, their officers who sign the
Registration Statement and any person controlling the Issuers within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, to the
same extent as the foregoing indemnity from the Issuers to the Underwriters
but only with reference to information relating to such Underwriter
furnished in writing by or on behalf of the Underwriter expressly for use
in the Registration Statement, the Prospectus or any preliminary
prospectus. In case any ac-
-17-
tion shall be brought against the Issuers, any of its directors, any such
officer or any person controlling the Issuers based on the Registration
Statement, the Prospectus or any preliminary prospectus and in respect of which
indemnity may be sought against the Underwriters, the Underwriters shall have
the rights and duties given to the Issuers (except that if the Issuers shall
have assumed the defense thereof, the Underwriters shall not be required to do
so, but may employ separate counsel therein and participate in the defense
thereof but the fees and expenses of such counsel shall be at the expense of the
Underwriters), and the Issuers, their directors, any such officers and any
person controlling the Issuers shall have the rights and duties given to the
Underwriters, by Section 7(b) hereof.
(d) If the indemnification provided for in this Section 7 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 judgments (i) in such proportion as is appropriate to
reflect the relative benefits received by the Issuers on the one hand and the
Underwriters on the other hand from the offering of the Securities 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 Issuers and
the Underwriters in connection with the statements or omissions which resulted
in such losses, claims, damages, liabilities or judgments, as well as any other
relevant equitable considerations. The relative benefits received by the Issuers
and the Underwriters shall be deemed to be in the same proportion as the total
net proceeds from the offering (before deducting expenses) received by the
Company, and the compensation received by the Underwriters (based on discount to
investors on resale), bear to the sum of such total net proceeds and such
compensation. The relative fault of the Issuers and the Underwriters 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 Issuers or the Underwriters and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
The Issuers and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Sec-
-18-
tion 7(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 this
Section 7, the Underwriters shall not 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 such Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
(e) The Underwriters confirm and the Issuers acknowledge that the
statements with respect to the public offering of the Securities by the
Underwriters set forth in the third paragraph of the section entitled
"Underwriting" in the Prospectus Supplement are correct and constitute the only
information concerning such Underwriter furnished in writing to the Issuers by
or on behalf of the Underwriters specifically for inclusion in the Registration
Statement and the Prospectus.
8. Conditions of Underwriters' Obligation. The obligation of the
--------------------------------------
Underwriters to purchase the Securities under this Agreement is subject to the
satisfaction of each of the following conditions:
(a) All the representations and warranties of the Issuers contained
in this Agreement shall be true and correct on the Closing Date with the
same force and effect as if made on and as of the Closing Date. The Issuers
shall have performed or complied with all of their agreements herein
contained and required to be performed or complied with by them at or prior
to the Closing Date.
(b) (i) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been commenced or shall be pending before or threatened
by the Commis-
-19-
sion, (ii) every request for additional information on the part of the
Commission shall have been complied with in all material respects, and
(iii) no stop order suspending the sale of the Securities in any
jurisdiction referred to in Section 6(g) shall have been issued and no
proceeding for that purpose shall have been commenced or shall be pending
or threatened which would, in your reasonable judgment, make it
impracticable or inadvisable to market the Securities or to enforce
contracts for the sale of the Securities.
(c) Subsequent to the execution and delivery of this Agreement and
prior to the Closing Date, there shall not have been 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 Issuer's debt by any
"nationally recognized statistical rating organization," as such term is
defined for purposes of Rule 436(g)(2) under the Act.
(d) (i) Since the date of the latest balance sheet included in the
Registration Statement and the Prospectus, there shall not have been any
material adverse change, or any development involving a prospective
material adverse change, in the condition, financial or otherwise, or in
the earnings, affairs or business prospects, whether or not arising in the
ordinary course of business, of the Company and its subsidiaries taken as a
whole, (ii) since the date of the latest balance sheet included in the
Registration Statement and the Prospectus there shall not have been any
change, or any development involving a prospective material adverse change,
in the capital stock or in the long-term debt of the Company or any of its
subsidiaries from that set forth in the Registration Statement and
Prospectus and (iii) the Company and its subsidiaries shall have no
liability or obligation, direct or contingent, which is material to the
Company and its subsidiaries, taken as a whole, other than those reflected
in the Registration Statement and the Prospectus.
(e) You shall have received on the Closing Date a certificate dated
the Closing Date, signed by Xxxxxx X. Xxxxxx, Xxxxxx X. Xxxxxxx or Xxxxxxx
Xxxxxxxx and Xxxxx X. Xxxxxx, in their capacities as the Chairman of the
Board, Chief Executive Officer or President and Chief Financial Officer of
the Company, respectively, confirming the mat-
-20-
ters set forth in paragraphs (a), (b), (c) and (d) of this Section 8.
(f) You shall have received on the Closing Date an opinion
(satisfactory to you and counsel for the Underwriters), dated the Closing
Date, of Xxxxxx Xxxx & Xxxxxxxx LLP, special counsel for the Company, 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 the State
of Delaware, is duly qualified to do business and is in good standing
as a foreign corporation in each jurisdiction in which its ownership
or lease of property or the conduct of its business requires such
qualification, except where the failure to be so qualified would not
have a material adverse effect on the business, operations or
financial condition of the Company and its subsidiaries taken as a
whole, and has all corporate power and authority necessary to own or
hold its properties and conduct its business as described in the
Prospectus.
(ii) To such counsel's knowledge and other than as described
in the Prospectus, there are no legal or governmental proceedings
pending to which the Company or any of its subsidiaries is a party or
of which any property or assets of the Company or any of its
subsidiaries is the subject which is of a character which is required
to be disclosed in the Prospectus; and, to such counsel's knowledge,
no such proceedings are threatened by governmental authorities or by
others.
(iii) The Registration Statement was declared effective under
the Act as of the date and time specified in such opinion, the
Prospectus was filed with the Commission pursuant to the subparagraph
of Rule 424(b) under the Act on the date specified therein, and, to
such counsel's knowledge, no stop order suspending the effectiveness
of the Registration Statement has been issued and no proceeding for
that purpose is pending or threatened by the Commission.
(iv) The Registration Statement and the Prospectus and any
further amendments or supplements thereto made by the Company prior to
the Closing Date
-21-
(other than the financial and pro forma data (and the related notes
thereto) and statistical data and the financial statements and related
schedules therein, as to which such counsel need express no opinion)
appear on their face to comply as to form in all material respects
with the requirements of the Act; the documents incorporated by
reference in the Prospectus and any further amendment or supplement to
any such incorporated document made by the Company prior to the
Closing Date (other than the financial and pro forma data (and the
related notes thereto) and statistical data and the financial
statements, and related schedules therein, as to which such counsel
need express no opinion), when they were filed with the Commission
appear on their face to have been appropriately responsive in all
material respects to the requirements of the Act and the Exchange Act.
(v) To such counsel's knowledge, there are no contracts or
other documents of a character which are required to be described in
the Prospectus or filed as exhibits to the Registration Statement by
the Act which have not been described or filed as exhibits to the
Registration Statement or incorporated therein by reference as
permitted by the Act.
(vi) This Agreement has been duly authorized, executed and
delivered by the Issuers.
(vii) The execution, delivery and performance of this
Agreement, the Indenture and the Securities by the Issuers and the
compliance by the Issuers with all of the provisions of this Agreement
and the consummation by the Issuers of the transactions contemplated
hereby and thereby will not, to such counsel's knowledge, conflict
with or result in a material breach or violation of any of the terms
or provisions of, or constitute a material default under, any
indenture, mortgage, deed of trust, loan agreement or other material
agreement or instrument listed as an exhibit to its Annual Report on
Form 10-K for the fiscal year ended September 30, 1998 or to any
subsequent filing under the Exchange Act, nor will such actions result
in any violation of the provisions of the charter or by-laws of any
Issuer or any statute or, to such counsel's knowledge, any order, rule
or regulation known to such counsel of any court or governmental
agency or body having jurisdiction over any
-22-
Issuer or any of their property or assets; and, except for such
consents, approvals, authorizations, registrations or qualifications
as may be required under the Act and applicable state or foreign
securities laws in connection with the purchase and distribution of
the Securities by the Underwriters, no consent, approval,
authorization or order of, or filing or registration with, any such
court or governmental agency or body is required for the execution,
delivery and performance of this Agreement, the Indenture and the
Securities by the Issuers and the valid issuance and sale of the
Securities by the Issuers.
(viii) The Indenture has been duly qualified under the TIA and
has been duly authorized, executed and delivered by the Issuers and is
a valid and binding agreement of the Issuers, enforceable in
accordance with its terms except as (a) the enforceability thereof may
be limited by bankruptcy, insolvency or similar laws affecting
creditors, rights generally and (b) rights of acceleration and the
availability of equitable remedies may be limited by equitable
principles of general applicability.
(ix) The Notes have been duly authorized and executed by the
Company and, when authenticated in accordance with the provisions of
the Indenture and delivered to the Underwriters against payment
therefor as provided by this Agreement, will be entitled to the
benefits of the Indenture, and will be valid and binding obligations
of the Company, enforceable in accordance with their terms except as
(i) the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights generally and
(ii) rights of acceleration and the availability of equitable remedies
may be limited by equitable principles of general applicability.
(x) The Guarantees have been duly authorized and endorsed on
the Notes by the Guarantors, and, upon execution and authentication of
the Notes in accordance with the provisions of the Indenture and
delivery thereof to the Underwriters against payment therefor as
provided by this Agreement, will be entitled to the benefits of the
Indenture, and will be valid and binding obligations of the
Guarantors, enforceable in accordance with their terms except as (i)
the enforceability thereof may be limited by
-23-
bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (ii) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of general
applicability.
(xi) The Securities and the Indenture conform in all material
respects to the descriptions thereof in the Prospectus.
In rendering such opinion, such counsel may state that its opinion is
limited to the Federal laws of the United States of America, the laws of the
States of Texas and New York and the General Corporation Law of the State of
Delaware. Such counsel shall also have furnished to the Underwriters a written
statement, addressed to the Underwriters and dated the Closing Date, in form and
substance satisfactory to the Underwriters and counsel for the Underwriters, to
the effect that (x) such counsel has acted as special counsel to the Company in
connection with the preparation of the Registration Statement and during the
course of the preparation of the Registration Statement and Prospectus, such
counsel participated in conferences with representatives of the Company, the
Company's internal counsel, and its accountants and the representatives of the
Underwriters and at which conferences the contents of the Registration Statement
and the Prospectus and related matters were discussed, and (y) based on the
foregoing, no facts have come to the attention of such counsel which lead it to
believe that (I) the Registration Statement (except as to financial and pro
forma data (and related notes thereto) and statistical data and the financial
statements and related schedules contained or incorporated by reference
therein), as of the date the Registration Statement became effective, contained
any untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary in order to make the statements
therein not misleading, or that the Prospectus (except as to financial and pro
forma data (and related notes thereto) and statistical data and the financial
statements and
-24-
related schedules contained or incorporated by reference therein) contains any
untrue statement of a material fact or omits to state a 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 or (II)
any Incorporated Document or any amendment or supplement thereto made by the
Company prior to such Closing Date, when they were filed with the Commission, as
the case may be, contained (except as to financial and pro forma data (and
related notes thereto) and statistical data and the financial statements and
related schedules contained or incorporated by reference therein) 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 under which
they were made, not misleading. The foregoing opinion and statement may be
qualified by a statement to the effect that such counsel has not independently
verified the accuracy, completeness or fairness of the statements contained in
the Registration Statement or Prospectus or incorporated by reference therein,
and such counsel is not passing upon and such counsel does not assume any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Prospectus.
(g) You shall have received on the Closing Date, an opinion of
Xxxxxxx X. Xxxxxx, Esq., General Counsel of the Company, dated the Closing
Date and addressed to you, to the effect that:
(i) The issue and sale of the Securities by the Issuers and
the compliance by the Issuers with all of the provisions of this
Agreement and the consummation by the Issuers of the transactions
contemplated hereby will not, to such counsel's knowledge, conflict
with or result in a material breach or violation of any of the terms
or provisions of, or constitute a material default under, any
indenture, mortgage, deed or trust, loan agreement or other material
agreement or instrument known to such counsel to which the Company or
any of its subsidiaries is a party or by which the Company or any of
its subsidiaries is bound or to which any of the property or assets of
the Company or any of its subsidiaries is subject, nor will such
actions result in any violation of the provisions of the charter or
by-laws of any Issuer or any order, rule or regulation known to such
counsel of any court or governmental agency or body having
jurisdiction over any Issuer or any of their property or assets.
(ii) Each Guarantor that is a corporation has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of its state of incorporation, is duly qualified to do
business and is in good standing as a foreign corporation in each
jurisdiction in which its ownership or lease of its property or the
conduct of its business requires such qualification, except where the
failure
-25-
to be so qualified would not have a material adverse effect on the
business, operations or financial condition of the Company and its
subsidiaries taken as a whole, and has all corporate power and
authority necessary to own or hold its properties and conduct its
business as described in the Prospectus. The outstanding shares of
capital stock of each such Guarantor is duly authorized, validly
issued, fully paid and nonassessable and (except for directors'
qualifying shares) are owned of record, directly or indirectly by the
Company. Each Guarantor that is a limited partnership has been duly
formed and is validly existing as a limited partnership in good
standing under the laws of the state of its organization, is duly
qualified to do business and is in good standing as a foreign limited
partnership in each jurisdiction in which its ownership or lease of-
its property or the conduct of its business requires such
qualification, except where the failure to be so qualified would not
have a material adverse effect on the business, operation or financial
condition of the Company and its subsidiaries taken as a whole, and
has all partnership power and authority necessary to own or hold its
properties and conduct its business as described in the Prospectus.
(h) You shall have received on the Closing Date an opinion, dated
the Closing Date, of Xxxxxx Xxxxxx and Xxxxxxx, counsel for the
Underwriters, in form and substance satisfactory to the Underwriters.
(i) You shall have received a letter on and as of the Closing Date,
in form and substance satisfactory to you, from Ernst & Young, LLP,
independent public accountants, with respect to the financial statements
and certain financial information contained in the Registration Statement
and the Prospectus and substantially in the form and substance of the
letter delivered to you by Ernst & Young, LLP, on the date of this
Agreement.
(j) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements in the
Prospectus any loss or interference with its business from fire, explosion,
flood or other calamity, whether or not covered by insurance, or from any
labor dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Prospectus or (ii) since such date
there
-26-
shall not have been any change in the capital stock, net revenues, per
share or total amounts of income before extraordinary income or of net
income or long-term debt of the Company or any of its subsidiaries or any
change, or any development involving a prospective change, in or affecting
the general affairs, management, financial position, stockholders' equity
or results of operations of the Company and its subsidiaries, otherwise
than as set forth or contemplated in the Prospectus, the effect of which,
in any such case described in clause (i) or (ii), is, in the judgment of
the Underwriters, so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Securities being delivered on the Closing Date on the terms and in the
manner contemplated in the Prospectus.
(k) The Issuers shall have furnished to you such other documents and
certificates as to the accuracy and completeness of any statement in the
Registration Statement or the Prospectus as you reasonably may request.
(l) You shall have been furnished with such additional documents and
certificates as you or counsel for the Underwriters may reasonably request.
All such opinions, certificates, letters and other documents will be
in compliance with the provisions hereof only if they are reasonably
satisfactory in form and substance to you and your counsel.
Any certificate or document signed by any officer of the Issuers and
delivered to you or to your counsel shall be deemed a representation and
warranty by the Issuers to each Underwriter as to the statements made therein.
9. Termination.
-----------
This Agreement may be terminated at any time prior to the Closing Date
by you by written notice to the Issuers if any of the following has occurred:
(i) since the respective dates as of which information is given in the
Registration Statement and the Prospectus, any material adverse change or
development involving a prospective material adverse change in the condition,
financial or otherwise, of the Issuers and its subsidiaries or the earnings,
affairs, or business prospects of the Issuers or any of its subsidiaries taken
as a whole, whether or not arising in the ordinary course of business, which
would, in your judgment, make it impracticable to market the Securities
-27-
on the terms and in the manner contemplated in the Prospectus, (ii) any outbreak
or escalation of hostilities or other national or international calamity or
crisis or change in economic conditions or in the financial markets of the
United States or elsewhere that, in your judgment, is material and adverse and
would, in your judgment, make it impracticable to market the Shares on the terms
and in the manner contemplated in the Prospectus, (iii) the suspension or
material limitation of trading in securities on the New York Stock Exchange, the
American Stock Exchange or the Nasdaq National Market or limitation on prices
for securities on any such exchange, (iv) the enactment, publication, decree or
other promulgation of any federal or state statute, regulation, rule or order of
any court or other governmental authority which in your opinion materially and
adversely affects, or will materially and adversely affect, the business or
operations of the Company and its subsidiaries taken as a whole, (v) the
declaration of a banking moratorium by either federal or New York State
authorities or (vi) the taking of any action by any federal, state or local
government or agency in respect of its monetary or fiscal affairs which in your
opinion has a material adverse effect on the financial markets in the United
States.
10. Miscellaneous. Notices given pursuant to any provision of this
-------------
Agreement shall be addressed as follows: (a) if to the Issuers, to X.X. Xxxxxx,
0000 Xxxxxxxxx Xxxx., Xxxxx 000 Xxxxxxxxx, Xxxxx 00000, and (b) if to the
Underwriters, to Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation, 000 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Syndicate Department, or in any
case to such other address as the person to be notified may have requested in
writing.
The respective indemnities, contribution agreements, representations,
warranties and other statements of the Company, its officers and directors (in
their capacities as such) and of the Underwriters set forth in or made pursuant
to this Agreement shall remain operative and in full force and effect, and will
survive delivery of and payment for the Notes, regardless of (i) any
investigation, or statement as to the results thereof, made by or on behalf of
any Underwriter or by or on behalf of the Company, the officers or directors of
the Company or any controlling person of the Company (in their capacities as
such), (ii) acceptance of the Notes and payment for them hereunder and (iii)
termination of this Agreement.
If this Agreement shall be terminated by the Underwriters because of
any failure or refusal on the part of any Issuer to perform any of its
agreements in this Agreement or to
-28-
fulfill any of the conditions of Section 8 of this Agreement, the Issuers,
jointly and severally, agree to reimburse the Underwriters for all out-of-pocket
expenses (including the fees and disbursements of counsel) reasonably incurred
by it.
Except as otherwise provided, this Agreement has been and is made
solely for the benefit of and shall be binding upon the Issuers, the
Underwriters, any controlling persons referred to herein and their respective
successors and assigns, all as and to the extent provided in this Agreement, and
no other person shall acquire or have any right under or by virtue of this
Agreement. The term "successors and assigns" shall not include a purchaser of
any of the Notes from the Underwriters merely because of such purchase.
This Agreement shall be governed and construed in accordance with the
laws of the State of New York.
This Agreement may be signed in various counterparts which together
shall constitute one and the same instrument.
-29-
Please confirm that the foregoing correctly sets forth the agreement
between the Issuers and the Underwriters.
Very truly yours,
X.X. XXXXXX, INC.
By:
---------------------------------
Name: Xxxxx X. Xxxxxx
Title: Treasurer
GUARANTORS:
DRHI, Inc.
Xxxxxxx I, Ltd.
Xxxxxxx II, Ltd.
Xxxxxxx IX, Inc.
Xxxxxxx X, Inc.
X.X. Xxxxxx, Inc.-Birmingham
X.X. Xxxxxx, Inc.-Denver
X.X. Xxxxxx, Inc.-Greensboro
X.X. Xxxxxx, Inc.-Louisville
X.X. Xxxxxx, Inc.-Minnesota
X.X. Xxxxxx, Inc.-New Jersey
X.X. Xxxxxx, Inc.-Portland
X.X. Xxxxxx, Inc.-Sacramento
X.X. Xxxxxx, Inc.-Torrey
X.X. Xxxxxx San Diego Holding Company, Inc.
X.X. Xxxxxx Los Angeles Holding Company, Inc.
X.X. Xxxxxx Los Angeles Management Company, Inc.
X.X. Xxxxxx San Diego Management Company, Inc.
DRH Construction, Inc.
X. X. Xxxxxx Atlanta, Ltd.
DRH Cambridge Homes, Inc. (formerly X.X. Xxxxxx Sacramento
Management Company, Inc.)
C. Xxxxxxx Xxxxxx Builders, Inc.
Land Development, Inc.
DRH Tucson Construction, Inc.
Continental Homes, Inc.
KDB Homes, Inc.
L&W Investments, Inc.
Continental Ranch, Inc.
Continental Homes of Florida, Inc.
CHI Construction Company
-30-
CHTEX of Texas, Inc.
CH Investments of Texas, Inc.
By:
---------------------------------
Name: Xxxxx X. Xxxxxx
Title: Treasurer
SGS COMMUNITIES AT GRANDE QUAY, LLC
By: Xxxxxxx IX, Inc., a member
By:
----------------------------
Name: Xxxxx X. Xxxxxx
Title: Treasurer
and
By: Xxxxxxx X, Inc., a member
By:
----------------------------
Name: Xxxxx X. Xxxxxx
Title: Treasurer
X.X. XXXXXX MANAGEMENT COMPANY, LTD.
X.X. XXXXXX - TEXAS, LTD.
By: Xxxxxxx I, Ltd.,
its general partner
By:
----------------------------
Name: Xxxxx X. Xxxxxx
Title: Treasurer
-00-
XXXXXXXXXXX XXXXX XX XXXXX, L.P.
By: CHTEX of Texas, Inc.,
its general partner
By:
----------------------------
Name: Xxxxx X. Xxxxxx
Title: Treasurer
-32-
Agreed and accepted as of the
date first written above:
XXXXXXXXX, LUFKIN & XXXXXXXX
SECURITIES CORPORATION
XXXXXXX XXXXX BARNEY INC.
BT ALEX. XXXXX INCORPORATED
By:
----------------------------
Name:
Title:
-33-
Schedule A
Principal Amount
Underwriter of Notes
----------- ----------------
Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation...... $154,000,000
Xxxxxxx Xxxxx Barney Inc...... 154,000,000
BT Alex. Xxxxx Incorporated... 77,000,000
------------
Total............... $385,000,000
============
