EXHIBIT 1
FORM OF UNDERWRITING AGREEMENT
__________, 1995
Sysco Corporation
1390 Enclave Parkway
Houston, Texas 77077-2099
Ladies and Gentlemen:
We ([COLLECTIVELY,] the "Manager") are acting on behalf of the
underwriter or underwriters (including ourselves) named below (such underwriter
or underwriters being herein called the "Underwriters"), and we understand that
Sysco Corporation, a Delaware corporation (the "Company"), proposes to issue and
sell [CURRENCY AND PRINCIPAL AMOUNT] aggregate principal amount of [FULL TITLE
OF DEBT SECURITIES] (the "Offered Securities"). (The Offered Securities may also
be referred to herein as the "Debt Securities.") The Offered Securities will be
issued pursuant to the provisions of a [SENIOR OR SUBORDINATED] Debt Indenture
dated as of __________, 1995 (the "Indenture") between the Company and [NAME OF
TRUSTEE], as Trustee (the "Trustee").
Subject to the terms and conditions set forth or incorporated by
reference herein, the Company hereby agrees to sell and the Underwriters agree
to purchase, severally and not jointly, the respective principal amounts of
Offered Securities set forth below opposite their names at a purchase price of
______% of the principal amount of Offered Securities [, PLUS ACCRUED INTEREST,
IF ANY, FROM [DATE OF OFFERED SECURITIES] TO THE DATE OF PAYMENT AND
DELIVERY]:(1)
Principal Amount of
Name Offered Securities
---- -------------------
Total .................
[THE AGGREGATE PRINCIPAL AMOUNT OF OFFERED SECURITIES TO BE
PURCHASED BY THE SEVERAL UNDERWRITERS SHALL BE REDUCED BY THE AGGREGATE
PRINCIPAL AMOUNT OF OFFERED SECURITIES SOLD PURSUANT TO DELAYED DELIVERY
CONTRACTS.](2)
- -------------------
1 To be added only if the transaction does not close flat.
2 To be added only if delayed delivery contracts are contemplated.
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The Underwriters will pay for the Offered Securities [(LESS ANY
OFFERED SECURITIES SOLD PURSUANT TO DELAYED DELIVERY CONTRACTS)](2) upon
delivery thereof at the offices of _______________________________, at ____ a.m.
(__________ time) on __________, 199__, or at such other time, not later than
5:00 p.m. (__________ time) on __________, 199__, as shall be designated by the
Manager. The time and date of such payment and delivery are hereinafter referred
to as the Closing Date.
The Offered Securities shall have the terms set forth in the
Prospectus dated __________, 199__, and the Prospectus Supplement dated
__________, 199__, including the following:
Terms of Offered Securities
Maturity Date:
Interest Rate:
Interest Payment Dates: __________ and
__________ commencing
__________
[(INTEREST ACCRUES FROM
__________)](3)
Redemption Provisions:
Form and Denomination:
[OTHER TERMS:]
[THE COMMISSION TO BE PAID TO THE UNDERWRITERS IN RESPECT OF THE
OFFERED SECURITIES PURCHASED PURSUANT TO DELAYED DELIVERY CONTRACTS ARRANGED BY
THE UNDERWRITERS SHALL BE ____% OF THE PRINCIPAL AMOUNT OF THE OFFERED
SECURITIES SO PURCHASED.](4)
All provisions contained in the document entitled Sysco Corporation
Underwriting Agreement Standard Provisions (Debt Securities) dated June 1995, a
copy of which is attached hereto, are herein incorporated by reference in their
entirety and shall be deemed to be a part of this Agreement to the same extent
as if such provisions had been set forth in full herein, except that (i) if any
term defined in such document is otherwise defined herein, the definition set
forth herein shall control, (ii) all references in such document to a type of
security that is not an Offered Security shall not be deemed to be a part of
this Agreement and (iii) all references in such document to a type of
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3 To be added only if the transaction does not close flat.
4 To be added only if delayed delivery contracts are contemplated.
2
agreement that has not been entered into in connection with the transactions
contemplated hereby shall not be deemed to be a part of this Agreement.
Please confirm your agreement by having an authorized officer sign a
copy of this Agreement in the space set forth below.
Very truly yours,
[NAME OF LEAD MANAGERS]
Acting severally on behalf of
themselves and the several
Underwriters named herein
By:[NAME OF EXECUTING LEAD MANAGER]
By: ___________________________
Name:
Title:
Accepted:
SYSCO CORPORATION
By: ___________________________
Name:
Title:
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SYSCO CORPORATION
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
(DEBT SECURITIES)
June 1995
From time to time, Sysco Corporation, a Delaware corporation (the
"Company"), may enter into one or more underwriting agreements that provide for
the sale of designated securities to the several underwriters named therein. The
standard provisions set forth herein may be incorporated by reference in any
such underwriting agreement (an "Underwriting Agreement"). The Underwriting
Agreement, including the provisions incorporated therein by reference, is herein
sometimes referred to as this Agreement. Terms defined in the Underwriting
Agreement are used herein as therein defined.
The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement, including a prospectus, relating to
the Debt Securities and has filed with, or transmitted for filing to, or shall
promptly hereafter file with or transmit for filing to, the Commission a
prospectus supplement (the "Prospectus Supplement") specifically relating to the
Offered Securities pursuant to Rule 424 under the Securities Act of 1933, as
amended (the "Securities Act"). The term Prospectus Supplement includes any
abbreviated term sheet, confirmation or any other documents required to be filed
in accordance with Rule 434 of the Securities Act which supplement or amend the
Basic Prospectus as hereinafter defined. The term "Registration Statement" means
the registration statement, including the exhibits thereto, as amended to the
date of this Agreement. The term "Basic Prospectus" means the prospectus
included in the Registration Statement in the form included therein or, if
different, in the form first filed pursuant to Rule 424(b) under the Securities
Act in respect of the Offered Securities. The term "Prospectus" means, except
where specifically provided otherwise herein, the Basic Prospectus together with
the Prospectus Supplement. The term "preliminary prospectus" means the Basic
Prospectus together with a preliminary prospectus supplement specifically
relating to the Offered Securities. As used herein, the terms "Basic
Prospectus," "Prospectus" and "preliminary prospectus" shall include in each
case the documents incorporated by reference therein. The terms "supplement,"
"amendment" and "amend" as used herein shall include all documents deemed to be
incorporated by reference in the Prospectus that are filed subsequent to the
date of this Agreement by the Company with the Commission pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act").
The term Contract Securities means the Offered Securities, if any,
to be purchased pursuant to the delayed delivery contracts substantially in the
form of Schedule I hereto, with such changes therein as the Company may approve
(the "Delayed Delivery Contracts"). The term "Underwriters' Securities" means
the Offered Securities other than Contract Securities.
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1. REPRESENTATIONS AND WARRANTIES. The Company represents and warrants to
and agrees with each of the Underwriters that:
(a) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect,
and no proceedings for such purpose are pending before or threatened by
the Commission.
(b) (i) Each document filed or to be filed pursuant to the Exchange
Act and incorporated by reference in the Prospectus complied or will
comply when so filed in all material respects with the Exchange Act and
the applicable rules and regulations of the Commission thereunder, (ii)
the Registration Statement and the Prospectus comply, and, as amended or
supplemented, if applicable, will comply in all material respects with the
Securities Act, the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act") and the applicable rules and regulations of the Commission
thereunder, (iii) the Registration Statement did not or does not contain,
as of its effective date, as of the date of filing of any subsequent
Annual Report on Form 10-K of the Company or as of the date of this
Agreement, any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading and (iv) the Prospectus does not contain
and, as amended or supplemented, if applicable, will not contain any
untrue statement of a material fact or omit to state a material fact
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, except that the representations and warranties set forth in
this Section 1(b) do not apply (A) to statements or omissions in the
Registration Statement or the Prospectus based upon information relating
to any Underwriter furnished to the Company in writing by or on behalf of
such Underwriter expressly for use therein or (B) to that part of the
Registration Statement that constitutes the Statement of Eligibility (Form
T-1) under the Trust Indenture Act of each of the Trustees.
(c) The Company and each subsidiary has been duly incorporated, is
validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation. The Company and each subsidiary has the
corporate power and authority, and has obtained all necessary
authorizations, approvals, orders, licenses, franchises, certificates and
permits of and from all governmental regulatory officials and bodies
("Permits"), to own, lease and operate its property and to conduct its
business as described in the Registration Statement and Prospectus, except
where the failure to have obtained such Permits would not have a material
adverse effect on the Company and its subsidiaries taken as a whole. The
Company and each subsidiary has fulfilled and performed all its current
material obligations with respect to such Permits, and no event has
occurred that allows, or after notice or lapse of time, or both, would
allow, revocation or termination thereof or result in any other material
impairment of the rights of the holder of any such Permit, except for such
failures to perform or such revocations, terminations or material
impairments would not have a material adverse effect on the Company and
its subsidiaries taken as a whole, subject in each case to such
qualification as may be set forth in the Registration Statement and the
Prospectus. The Company and each subsidiary is duly qualified to transact
business and is in good standing in each jurisdiction in which the conduct
of its business or its ownership or leasing of property requires such
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qualification, except where the failure to be so qualified would not have
a material adverse effect on the Company and its subsidiaries, taken as a
whole. All of the issued and outstanding capital stock of each such
subsidiary has been duly authorized and validly issued and is fully paid
and non-assessable, and all such capital stock (other than directors'
qualifying shares) is owned by the Company, directly or through
subsidiaries, free and clear of any mortgage, pledge, lien, encumbrance,
claim or equity. The Company and each of its subsidiaries own, or possess
adequate rights to use, all trademarks, service marks and other rights
necessary for the conduct of their business as presently conducted and
described in the Registration Statement and the Prospectus, and neither
the Company nor any of its subsidiaries has received any notice of
conflict with the asserted rights of others in any such respect that would
materially adversely affect the business of the Company and its
subsidiaries taken as a whole and neither the Company nor any of its
subsidiaries knows of any basis therefor. The property and business of the
Company and its subsidiaries, taken as a whole, conform in all material
respects to the descriptions thereof contained in the Registration
Statement and the Prospectus.
(d) This Agreement has been duly authorized, executed and delivered
by the Company.
(e) Each of the Senior Debt Indenture (together with any amendment
or supplement thereto, the "Senior Debt Indenture") and the Subordinated
Debt Indenture (together with any amendment or supplement thereto, the
"Subordinated Debt Indenture"), as applicable, has been duly qualified
under the Trust Indenture Act and has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement of the
Company, 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.
(f) The Delayed Delivery Contracts, if any, have been duly
authorized, executed and delivered by the Company and are valid and
binding agreements of the Company, enforceable in accordance with their
respective terms except as (i) the enforceability thereof may be limited
by bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (ii) the availability of equitable remedies may be limited
by equitable principles of general applicability.
(g) The Offered Securities have been duly authorized and, when
executed and authenticated in accordance with the provisions of the
relevant Indenture and delivered to and paid for by the Underwriters in
accordance with the terms of this Agreement, in the case of the
Underwriters' Securities, or by institutional investors in accordance with
the terms of the Delayed Delivery Contracts, in the case of the Contract
Securities, will be entitled to the benefits of the relevant Indenture and
will be valid and binding obligations of the Company, in each case
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, if any, and the availability of equitable remedies may be
limited by equitable principles of general applicability; and the Offered
Securities and the applicable Indenture conform to the descriptions
thereof in the Prospectus.
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(h) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement, the
Delayed Delivery Contracts, the Senior Debt Indenture, the Subordinated
Debt Indenture and the Offered Securities (each to the extent applicable)
(A) will not contravene (i) any provision of applicable law or (ii) the
certificate of incorporation or by-laws of the Company or any subsidiary
or (iii) any agreement or other instrument binding upon the Company or any
of its subsidiaries that is material to the Company and its subsidiaries,
taken as a whole, or (iv) any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Company or
any subsidiary, (B) will not 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 the terms of any agreement or
instrument to which any of them is a party or by which any of them may be
bound or to which any of the property or assets of any of them is subject
which would have a material adverse effect on the Company and its
subsidiaries, taken as a whole, and (C) does not require any consent,
approval, authorization or order of, or qualification with, any
governmental body or agency for the performance by the Company of its
obligations under this Agreement, the Delayed Delivery Contracts, the
Senior Debt Indenture, the Subordinated Debt Indenture or the Offered
Securities, except such as may be required by the securities or Blue Sky
laws of the various states in connection with the offer and sale of the
Offered Securities.
(i) There has not occurred any material adverse change in the
condition, financial or otherwise, or in the earnings, business,
operations or business prospects of the Company and its subsidiaries,
taken as a whole, from that set forth in the Prospectus.
(j) There are no legal or governmental proceedings pending to which
the Company or any of its subsidiaries is a party or to which any of the
properties of the Company or any of its subsidiaries is subject that are
required to be described in the Registration Statement or the Prospectus
and are not so described and, to the best of the Company's knowledge, no
such proceedings are threatened. There are no statutes, regulations,
contracts or other documents that are required to be described in the
Registration Statement or the Prospectus or to be filed or incorporated by
reference as exhibits to the Registration Statement or a document
incorporated or deemed incorporated by reference therein that are not
described, filed or incorporated as required.
(k) The Company has complied with all provisions of Section 517.075,
Florida Statutes (Chapter 92-198, Laws of Florida) and all regulations
promulgated thereunder relating to issuers doing business with the
Government of Cuba or with any person or any affiliate located in Cuba.
(l) The consolidated financial statements included in the
Registration Statement and the Prospectus present fairly, in all material
respects, the consolidated financial position of the Company and its
consolidated subsidiaries as of the dates indicated and the results of
their operations for the periods specified; such 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 financial statement schedules incorporated by
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reference in the Registration Statement present fairly, in all material
respects, the information required to be stated therein.
(m) Neither the Company nor any of its subsidiaries (i) is in
violation of its or any of their charters or bylaws, or (ii) is in
violation of any law, ordinance, administrative or governmental rule or
regulation applicable to the Company or any of its subsidiaries or of any
judgment or decree of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries, except for such
violations as would not have a material adverse effect on the Company and
its subsidiaries taken as a whole, or (iii) is in default (and no event
has occurred that with notice or lapse of time, or both, would constitute
a default) in any respect in the due performance or observance of any
obligation, agreement, covenant or condition contained in any 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 for such defaults as would not have a
material adverse effect on the Company and its subsidiaries taken as a
whole.
(n) The Company has not distributed and, prior to the latest to
occur of (i) the Closing Date and (ii) the completion of the Company's
distribution of the Securities, will not distribute any offering material
in connection with the offering and sale of the Securities other than the
Registration Statement, the Prospectus or other materials permitted by the
Act.
(o) Neither the Company nor any of its subsidiaries is an
"investment company" within the meaning of such term under the Investment
Company Act of 1940, as amended, and the Rules and Regulations thereunder.
(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 registration 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) Neither the Company nor any of its subsidiaries is involved in
any labor dispute nor, to the knowledge of the Company, is any such
dispute threatened that would require disclosure in a Prospectus
(including documents incorporated by reference therein).
(r) Each of the Company and its subsidiaries has filed all federal,
state and local tax returns that are required to be filed or has obtained
extensions thereof, and has paid all taxes shown on such returns and all
assessments received by it to the extent that the same have become due or
is contesting such taxes in good faith by appropriate proceedings.
(s) The Company is in compliance in all material respects with all
presently applicable provisions of the Employee Retirement Income Security
Act of 1974, as amended, including the regulations and published
interpretations thereunder ("ERISA"); no "reportable event"
5
(as defined in ERISA) has occurred with respect to any "pension plan" (as
defined in ERISA) for which the Company would have any liability; the
Company has not incurred and does not expect to incur any material
liability under (A) Title IV of ERISA with respect to termination of, or
withdrawal from, any "pension plan" or (B) Sections 412 or 4971 of the
Internal Revenue Code of 1986, as amended, including the regulations and
published interpretations thereunder (the "Code"); and each "pension plan"
for which the Company would have any liability that is intended to be
qualified under Section 401(a) of the Code is so qualified in all material
respects and nothing has occurred, whether by action or by failure to act,
which would cause the loss of such qualification.
(t) There has been no storage, disposal, generation, manufacture,
refinement, transportation, handling or treatment of solid wastes,
hazardous wastes or hazardous substances by the Company or any of its
subsidiaries (or, to the knowledge of the Company, any of their
predecessors in interest) at, upon or from any of the property now or
previously owned or leased by the Company or its subsidiaries in violation
of any applicable law, ordinance, rule, regulation, order, judgment,
decree or permit or which would require remedial action under any
applicable law, ordinance, rule, regulation, order, judgment, decree or
permit, except for any violation or remedial action which would not have,
or would not be reasonably likely to have, singularly or in the aggregate
with all such violations and remedial actions, a material adverse effect
on the condition (financial or other), business, properties, net worth or
results of operations of the Company and its subsidiaries, taken as a
whole; there has been no material spill, discharge, leak, emission,
injection, escape, dumping or release of any kind onto such property or
into the environment surrounding such property of any solid wastes,
hazardous wastes or hazardous substances due to or caused by the Company
or any of its subsidiaries or with respect to which the Company has
knowledge, except for any such spill, discharge, leak, emission,
injection, escape, dumping or release which would not have or would not be
reasonably likely to have, singularly or in the aggregate with all such
spills, discharges, leaks, emissions, injections, escapes, dumpings and
releases, a material adverse effect on the condition (financial or other),
business, properties, net worth or results of operations of the Company
and its subsidiaries, taken as a whole; and the terms "solid wastes",
"hazardous wastes" and "hazardous substances" shall have the meanings
specified in any applicable local, state, federal and foreign laws or
regulations with respect to environmental protection.
2. DELAYED DELIVERY CONTRACTS. If the Prospectus provides for sales of
Offered Securities pursuant to Delayed Delivery Contracts, the Company hereby
authorizes the Underwriters to solicit offers to purchase Contract Securities
pursuant to Delayed Delivery Contracts on the terms and subject to the
conditions set forth in the Prospectus. Delayed Delivery Contracts may be
entered into only with institutional investors approved by the Company of the
types set forth in the Prospectus. On the Closing Date, the Company will pay to
the Manager as compensation for the accounts of the Underwriters the commission
set forth in the Underwriting Agreement in respect of the Contract Securities.
The Underwriters will not have any responsibility in respect of the validity or
the performance of any Delayed Delivery Contracts.
The Manager shall submit to the Company, at least two business days prior
to the Closing Date, the names of any institutional investors with which it is
proposed that the Company enter into Delayed Delivery Contracts and the
principal amount of Offered Securities to be
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purchased by each of them, and the Company will advise the Manager, at least one
business day prior to the Closing Date, of the names of the institutions with
which the making of Delayed Delivery Contracts is approved by the Company and
the principal amount of Offered Securities to be covered by each such Delayed
Delivery Contract.
If the Company executes and delivers Delayed Delivery Contracts with
institutional investors, the aggregate amount of Offered Securities to be
purchased by the several Underwriters shall be reduced by the aggregate amount
of Contract Securities; such reduction shall be applied to the commitment of
each Underwriter pro rata in proportion to the amount of Offered Securities set
forth opposite such Underwriter's name in the Underwriting Agreement, except to
the extent that the Manager determines that such reduction shall be applied in
other proportions and so advises the Company; PROVIDED, HOWEVER, that the total
amount of Offered Securities to be purchased by all Underwriters shall be the
aggregate amount set forth above, less the aggregate amount of Contract
Securities.
3. PUBLIC OFFERING. The Company is advised by the Manager that the
Underwriters propose to make a public offering of their respective portions of
the Underwriters' Securities as soon after this Agreement has been entered into
as in the Manager's judgment is advisable. The terms of the public offering of
the Underwriters' Securities are set forth in the Prospectus.
4. PURCHASE AND DELIVERY. Except as otherwise provided in this Section or
in the Underwriting Agreement, payment for the Underwriters' Securities shall be
made by wire transfer or by certified or official bank check or checks payable
to the order of the Company in immediately available funds at the time and place
set forth in the Underwriting Agreement, upon delivery to the Manager for the
respective accounts of the several Underwriters of the Underwriters' Securities,
registered in such names and in such denominations as the Manager shall request
in writing not less than one full business day prior to the date of delivery,
with any transfer taxes payable in connection with the transfer of the
Underwriters' Securities to the Underwriters duly paid. The obligations of the
Underwriters to purchase the Underwriters' Securities are several and not joint.
Delivery on the Closing Date of any Underwriters' Securities that are Debt
Securities in bearer form shall be effected by delivery of a single temporary
global Debt Security without coupons (the "Global Debt Security") evidencing the
Underwriters' Securities that are Debt Securities in bearer form to a common
depositary for Morgan Guaranty Trust Company of New York, Brussels office, as
operator of the Euro-clear System ("Euro-clear"), and for Centrale de Livraison
de Valeurs Mobilieres S.A. ("CEDEL") for credit to the respective accounts at
Euro-clear or CEDEL of each Underwriter or to such other accounts as such
Underwriter may direct. Any Global Debt Security shall be delivered to the
common depositary for the account of the several Underwriters not later than the
Closing Date, against payment of funds to the Company in the net amount due to
the Company for such Global Debt Security by the method and in the form set
forth in the Underwriting Agreement. The Company shall cause definitive Debt
Securities in bearer form to be prepared and delivered in exchange for such
Global Debt Security in such manner and at such
7
time as may be provided in or pursuant to the relevant Indenture; PROVIDED,
HOWEVER, that the Global Debt Security shall be exchangeable for definitive Debt
Securities in bearer form only on or after the date specified for such purpose
in the Prospectus.
5. CONDITIONS TO CLOSING. The several obligations of the Underwriters
hereunder are subject to the following conditions:
(a) Subsequent to the execution and delivery of the Underwriting
Agreement and prior to the Closing,
(i) there shall not have occurred any downgrading in the
rating accorded any of the Company's securities by any "nationally
recognized statistical rating organization," as such term is defined
for purposes of Rule 436(g)(2) under the Securities Act, nor any
public announcement that any such organization has under
surveillance or review its rating of any of the Company's securities
with implications of a downgrading in such rating;
(ii) there shall not have occurred any change in the
condition, financial or otherwise, or in the earnings, business,
operations or business prospects, of the Company and its
subsidiaries, taken as a whole, from that set forth in the
Prospectus (which for purposes of this Section 5 (a)(ii) is
comprised of the Basic Prospectus, as amended and supplemented as of
the date of this Agreement), that, in the reasonable judgment of the
Manager, is material and adverse; and
(iii) there shall not have been issued any stop order
suspending the effectiveness of the Registration Statement or of any
part thereof and no proceedings for that purpose shall have been
instituted or pending or, to the knowledge of the Company, shall be
contemplated by the Commission.
(b) The Manager shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer of
the Company, to the effect set forth in clause (a) above and to the effect
that (A) the representations and warranties of the Company contained in
this Agreement are true and correct in all material respects as of the
Closing Date; PROVIDED, that for purposes of such certificate, the term
"Prospectus" in the representation and warranty contained in Section
1(b)(i) hereof shall mean the Basic Prospectus, as amended and
supplemented as of the date of this Agreement, and (B) that the Company
has complied with all of the agreements and satisfied all of the
conditions on its part to be performed or satisfied on or before the
Closing Date. The officer signing and delivering such certificate may rely
upon the best of his knowledge as to proceedings threatened.
(c) The Manager shall have received on the Closing Date an opinion
of Thomas P. Kurz, Esquire, General Counsel for the Company, dated the
Closing Date, to the effect that:
8
(i) the Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation and has the corporate power and
authority to own, lease and operate its property and to conduct its
business as described in the Registration Statement and Prospectus
and is duly registered and qualified to conduct its business and is
in good standing in each jurisdiction or place where the nature of
its properties or the conduct of its business requires such
registration or qualification, except where the failure to be so
registered and qualified would not have a material adverse effect on
the Company and its subsidiaries taken as a whole;
(ii) each of the subsidiaries of the Company is a corporation
duly organized and validly existing in good standing under the laws
of the jurisdiction of its organization, with full corporate power
and authority to own, lease and operate its properties and to
conduct its business as described in the Registration Statement and
the Prospectus and is duly registered and qualified to conduct its
business and is in good standing in each jurisdiction or place where
the nature of its properties or the conduct of its business requires
such registration or qualification, except where the failure to be
so registered and qualified would not have a material adverse effect
on the Company and its subsidiaries taken as a whole, and all of the
outstanding shares of capital stock of, or other equity securities
in, each of the subsidiaries have been duly authorized and validly
issued, are fully paid and nonassessable, and are owned by the
Company directly, or indirectly through one of the other
subsidiaries, free and clear of any perfected security interest, or,
to the best knowledge of such counsel, any other security interest,
lien, adverse claim, equity or other encumbrance;
(iii) all the outstanding shares of capital stock of the
Company have been duly authorized and validly issued and are fully
paid and nonassessable;
(iv) this Agreement has been duly authorized, executed and
delivered by the Company;
(v) the Senior Debt Indenture or the Subordinated Debt
Indenture, as applicable, has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed and delivered
by the Company and is a valid and binding agreement of the Company,
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;
(vi) the Delayed Delivery Contracts have been duly authorized,
executed and delivered by the Company and are valid and binding
agreements of the Company, enforceable in accordance with their
respective terms except as (A) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting
creditors' rights generally and (B) the availability of equitable
remedies may be limited by equitable principles of general
applicability;
9
(vii) the Offered Securities have been duly authorized and,
when executed and authenticated in accordance with the provisions of
the relevant Indenture and delivered to and paid for by the
Underwriters in accordance with the terms of this Agreement, in the
case of Underwriters' Securities, or by institutional investors in
accordance with the terms of the Delayed Delivery Contracts, in the
case of the Contract Securities, will be entitled to the benefits of
the relevant Indenture and will be valid and binding obligations of
the Company, in each case enforceable in accordance with their 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; and, to the best knowledge of such counsel, there are
no preemptive or similar rights that entitle any person to acquire
any Securities upon the issuance thereof by the Company;
(viii) the Registration Statement and all post-effective
amendments, if any, have become effective under the Act and, to the
best knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceedings for that purpose are pending before or contemplated by
the Commission;
(ix) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement,
the Delayed Delivery Contracts, the relevant Indenture and the
Offered Securities will not contravene any provision of applicable
law or the certificate of incorporation or by-laws of the Company
or, to the best of such counsel's knowledge, any agreement or other
instrument binding upon the Company or any of its subsidiaries that
is material to the Company and its subsidiaries, taken as a whole,
or, to the best of such counsel's knowledge, any judgment, order or
decree of any governmental body, agency or court having jurisdiction
over the Company or any subsidiary, and no consent, approval,
authorization or order of, or qualification with, any governmental
body or agency is required for the performance by the Company of its
obligations under this Agreement, the Delayed Delivery Contracts,
the relevant Indenture or the Offered Securities, except such as may
be required by the securities or Blue Sky laws of the various states
in connection with the offer and sale of the Offered Securities;
(x) to the best knowledge of such counsel, neither the Company
nor any of its subsidiaries (A) is in violation of its certificate
or articles of incorporation or bylaws, or other organizational
documents, (B) is in breach of, or in default (nor has an event
occurred that with notice, lapse of time or both would constitute
such a default) under, any indenture, mortgage, deed of trust, note,
bond, debenture, bank loan or credit agreement, or any other
evidence of indebtedness, agreement or instrument to which the
Company or any of its subsidiaries is a party or by which any of
them or any of their property is or may be bound or affected, (C) is
in violation of any law, ordinance, administrative or governmental
rule or regulation applicable to the Company or any of its
subsidiaries or of any decree of any court or governmental agency or
body having jurisdiction over the Company or any of the Subsidiaries
or (D) has received any notice of conflict with the asserted rights
of others in respect of trademarks, service marks or other rights
necessary for the conduct of their
10
business, in each case in which such breach, default, violation or
conflict would have a material adverse effect on the condition
(financial or other), business, properties, net worth or results of
operations of the Company and its subsidiaries, taken as a whole;
(xi) no consent, approval, authorization or other order of, or
registration or filing with, any court, regulatory body,
administrative agency or other governmental body, agency or official
is required on the part of the Company for the valid issuance and
sale of the Offered Securities to you pursuant to this Agreement
other than (A) the registration of the Offered Securities under the
Act, (B) qualification of the Indenture under the Trust Indenture
Act and (C) compliance with the securities or Blue Sky laws of
various jurisdictions;
(xii) the statements (1) in the Prospectus under the captions
"Description of Debt Securities" and "Plan of Distribution", (2) in
"Item 3 - Legal Proceedings" of the Company's most recent annual
report on Form 10-K incorporated by reference in the Prospectus and
(3) in "Item 1 - Legal Proceedings" of Part II of the Company's
quarterly reports on Form 10-Q, if any, filed since such annual
report, in each case insofar as such statements constitute summaries
of the legal matters, documents or proceedings referred to therein,
fairly present the information called for with respect to such legal
matters, documents and proceedings and fairly summarize the matters
referred to therein;
(xiii) after due inquiry, such counsel does not know of any
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 or any of its subsidiaries is subject that
are required to be described in the Registration Statement or the
Prospectus and are not so described or of any statutes, regulations,
contracts or other documents that are required to be described in
the Registration Statement or the Prospectus or to be filed or
incorporated by reference as exhibits to the Registration Statement
or a document incorporated or deemed incorporated by reference
therein that are not described, filed or incorporated as required;
(xiv) except as described in the Prospectus, such counsel does
not know of any holder of any securities of the Company or any other
person who has the right, contractual or otherwise, to cause the
Company to issue to such holder or such person, or permit such
holder or such person to underwrite the sale of, any shares of
capital stock or other securities of the Company upon and as the
result of the issuance and sale of the Offered Securities to you
hereunder or the right to require registration under the Act of an
offering of shares of capital stock or other securities of the
Company as a result of the filing of the Registration Statement;
(xv) (A) such counsel (1) is of the opinion that each
document, if any, filed pursuant to the Exchange Act and
incorporated by reference in the Prospectus (except for financial
statements and schedules included therein as to which such counsel
need not express any opinion) complied when so filed as to form in
all material respects with the
11
Exchange Act and the applicable rules and regulations of the
Commission thereunder and (2) is of the opinion that the
Registration Statement and Prospectus (except for financial
statements and schedules included therein as to which such counsel
need not express any opinion), comply as to form in all material
respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder and (B) nothing has come to
the attention of such counsel that causes such counsel to believe
that (except for financial statements and schedules as to which such
counsel need not express any belief and except for that part of the
Registration Statement that constitutes a Form T-1) (1) the
Registration Statement, as of the date of filing of any subsequent
Annual Report on Form 10-K of the Company or as of the date of this
Agreement, contained or contains any untrue statement of a material
fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading,
and (2) the Prospectus as of the date thereof and the date such
opinion is delivered contains any untrue statement of a material
fact or omits to state a material fact required to be stated therein
or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(xvi) to the best knowledge of such counsel, each of the
Company and its subsidiaries holds all necessary governmental
authorizations, approvals, orders, licenses, certificates,
franchises and permits of and from all governmental regulatory
officials and bodies for the conduct of the material businesses in
which it is engaged and owns, or possesses adequate rights to use,
all material rights necessary for the conduct of such businesses,
and to such counsel's knowledge, none of the Company or its
subsidiaries has received any notice of conflict with the asserted
rights of others in respect thereto, except where the failure to
hold, or the conflict with the asserted rights of others with
respect to, such authorizations, approvals, orders, licenses,
certificates, franchises or permits, would not have a material
adverse effect on the condition (financial or other), business,
properties, net worth or results of operations of the Company and
its subsidiaries, taken as a whole.
In rendering the opinions described in this Section 5(c) as to the
enforceability of the Senior Debt Indenture, the Subordinated Debt Indenture,
the Delayed Delivery Contracts and the Offered Securities, such counsel may
assume that the laws of the State of Texas are the same as the laws of the State
of New York and that such enforcement is sought in an action brought in any
Federal or state court in the borough of Manhattan, city of New York, having
jurisdiction of the subject matter and applying the laws of the State of New
York.
(d) The Manager shall have received on the Closing Date an opinion of
Arnall, Golden & Gregory, special counsel for the Company, dated the Closing
Date, covering the matters referred to in subparagraphs (iv), (v), (vi), (vii)
(other than the final clause thereof), (xii) (but only as to the statements in
the Prospectus under "Description of Debt Securities" and "Plan of
Distribution") and (xv)(A)(2) and (B) of paragraph (c) above and to the effect
that the Registration Statement has become effective under the Securities Act,
the Prospectus was filed with the Commission pursuant to Rule 424(b) on the date
specified in such opinion, and, to the best of the knowledge of such counsel, no
stop order suspending the effectiveness of the Registration Statement
12
or of any part thereof has been issued and no proceedings for that purpose have
been instituted or pending under the Securities Act and to the effect that such
counsel is of any opinion ascribed to it in the Prospectus with respect to tax
matters; PROVIDED, HOWEVER, that in rendering opinions as to the enforceability
of the Senior Debt Indenture, the Subordinated Debt Indenture, the Delayed
Delivery Contracts and the Offered Securities, such counsel may assume that the
laws of the State of Georgia are the same as the laws of the State of New York
and that such enforcement is sought in an action brought in any Federal or state
court in the borough of Manhattan, city of New York, having jurisdiction of the
subject matter and applying the laws of the State of New York.
(e) The Manager shall have received on the Closing Date an opinion of
Baker & Botts, L.L.P., special counsel for the Underwriters, dated the Closing
Date, covering the matters referred to in subparagraphs (iv), (v), (vi), (vii)
(other than the final clause thereof), (xii) (but only as to the statements in
the Prospectus under "Description of Debt Securities" and "Plan of
Distribution") and (xv)(A)(2) and (B) (but only as of the date of this
Agreement) of paragraph (c) above and to the effect that the Registration
Statement has become effective under the Securities Act, the Prospectus was
filed with the Commission pursuant to Rule 424(b) on the date specified in such
opinion, and, to the best of the knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement or of any part
thereof has been issued and no proceedings for that purpose have been instituted
or are pending under the Securities Act.
With respect to the subparagraph (xv) of paragraph (c) above, the General
Counsel for the Company, the special counsel for the Company and special counsel
for the underwriters may state that their opinion and belief 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 are without independent check or verification,
except as specified.
(f) The Manager shall have received on the day that pricing of the Offered
Securities is determined, a letter, dated such date, in form and substance
satisfactory to the Manager, from the Company's independent public accountants,
containing statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect to the financial
statements and certain financial information contained in or incorporated by
reference into the Prospectus.
(g) The Manager shall have received on Closing Date a letter, dated the
Closing Date, in form and substance satisfactory to the Manager, from the
Company's independent public accountants, containing statements and information
of the type ordinarily included in accountants' "bring down comfort letters" to
underwriters with respect to the financial statements and certain financial
information contained in or incorporated by reference into the Prospectus.
(h) The Prospectus Supplement shall have been filed or transmitted for
filing with the Commission pursuant to Rule 424(b) under the Securities Act
within the applicable time period described therefor by the rules and
regulations under the Securities Act.
13
6. COVENANTS OF THE COMPANY. In further consideration of the agreements of
the Underwriters herein contained, the Company covenants as follows:
(a) To furnish the manager and counsel for the Underwriters, without
charge, a signed copy of the Registration Statement and three conformed copies
(including exhibits thereto) and for delivery to each other Underwriter a
conformed copy of the Registration Statement (without exhibits thereto) and,
during the period mentioned in paragraph (c) below, as many copies of the
Prospectus, any documents incorporated by reference therein and any supplements
and amendments thereto or to the Registration Statement as the Manager may
reasonably request.
(b) Before amending or supplementing the Registration Statement or the
Prospectus with respect to the Offered Securities, to furnish to the Manager a
copy of each such proposed amendment or supplement, to afford the Manager a
reasonable opportunity to comment thereon and not to file any such proposed
amendment or supplement to which the Manager reasonably objects. The Company
shall give notice to the Manager of the filing of any such amendment or
supplement.
(c) To advise the Manager promptly of the institution by the Commission of
any stop order proceedings with respect to the Registration Statement or of any
part thereof and to use its best efforts to prevent the issuance of any such
stop order and to obtain as soon as possible its lifting, if issued.
(d) During the period of five years hereafter, the Company will furnish to
the Manager 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 the Manager (i) 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, and (ii) from time to time, such other information concerning the
Company as you may reasonably request.
(e) If, during such period after the first date of the public offering of
the Offered Securities as in the opinion of counsel for the Underwriters the
Prospectus is required by law to be delivered in connection with sales by an
Underwriter or dealer any event shall occur or condition exist as a result of
which it is necessary to amend or supplement the Prospectus in order to make the
statements therein, in the light of the circumstances when the Prospectus is
delivered to a purchaser, not misleading, or if, in the opinion of counsel for
the Underwriters, it is necessary to amend or supplement the Prospectus to
comply with law, forthwith to prepare, file with the Commission and furnish to
the Underwriters, and to the dealers (whose names and addresses the Manager will
furnish to the Company) to which Offered Securities may have been sold by the
Manager on behalf of the Underwriters and to any other dealers upon request,
either amendments or supplements to the Prospectus so that the statements in the
Prospectus as so amended or supplemented will not, in the light of the
circumstances when the Prospectus is delivered to a purchaser, be misleading or
so that the Prospectus, as amended or supplemented, will comply with law.
Neither the Manager's consent
14
to, nor the Underwriters' delivery of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section 5.
(f) To endeavor to qualify the Offered Securities for offer and sale under
the securities or Blue Sky laws of such jurisdictions as the Manager shall
reasonably request and to maintain such qualification for as long as the Manager
shall reasonably request.
(g) To make generally available to its security holders and to the Manager
as soon as practicable an earning statement covering a twelve-month period
beginning on the first day of the first full fiscal quarter after the date of
this Agreement, which earning statement shall satisfy the provisions of Section
11(a) of the Securities Act and the rules and regulations of the Commission
thereunder. If the date of this Agreement is within the last fiscal quarter of
the Company's fiscal year, such earning statement shall be made available not
later than 90 days after the close of the period covered thereby and in all
other cases shall be made available not later than 45 days after the close of
the period covered thereby.
(h) During the period beginning on the date of the Underwriting Agreement
and continuing to and including the date 14 days after the Closing Date, not to
offer, sell, contract to sell or otherwise dispose of any debt securities of the
Company or warrants to purchase debt securities of the Company similar to the
Offered Securities (other than (i) the Offered Securities and (ii) commercial
paper issued in the ordinary course of business), without the prior written
consent of the Manager.
(i) To apply the net proceeds from the sale of the Securities as set forth
in the Prospectus.
(j) To not 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 its capital stock or debt securities to facilitate the sale or
resale of the Offered Securities.
(k) Whether or not any sale of Offered Securities is consummated, to pay
all expenses incident to the performance of its obligations under this
Agreement, including: (i) the preparation and filing of the Registration
Statement and the Prospectus and all amendments and supplements thereto, (ii)
the preparation, issuance and delivery of the Offered Securities, (iii) the
reasonable fees and disbursements of the Company's counsel and accountants and
of the Trustee and its counsel, (iv) the qualification of the Offered Securities
under securities or Blue Sky laws in accordance with the provisions of Section
6(f), including filing fees and the reasonable fees and disbursements of counsel
for the Underwriters in connection therewith and in connection with the
preparation of any Blue Sky Memoranda, (v) the printing and delivery to the
Underwriters in quantities as hereinabove stated of copies of the Registration
Statement and all amendments thereto and of the Prospectus and any amendments or
supplements thereto, (vi) the printing and delivery to the Underwriters of
copies of any Blue Sky Memoranda, (vii) any fees charged by rating agencies for
the rating of the Offered Securities and (viii) the fees and expenses, if any,
in connection with the listing of the Offered Securities on any securities
exchange.
15
7. INDEMNIFICATION AND CONTRIBUTION. (a) The Company agrees to indemnify
and hold harmless each Underwriter and each person, if any, who controls such
Underwriter within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act from and against any and all losses, claims,
damages and liabilities (including, without limitation, any legal or other
expenses reasonably incurred by any Underwriter or any such controlling person
in connection with investigating, preparing or defending any such action or
claim, which shall be reimbursed as incurred) caused by or arising out of any
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement or any amendment thereof, any preliminary prospectus or
the Prospectus (as amended or supplemented if the Company shall have furnished
any amendments or supplements thereto), or caused by or arising out of any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages or liabilities are caused by any
such untrue statement or omission or alleged untrue statement or omission based
upon information furnished in writing to the Company by or on behalf of such
Underwriter expressly for use therein; PROVIDED, HOWEVER, that the foregoing
indemnity with respect to the preliminary prospectus shall not inure to the
benefit of any Underwriter from whom the person asserting any such losses,
claims, damages or liabilities purchased Offered Securities, or any person
controlling such Underwriter, if a copy of the Prospectus as then amended or
supplemented, if the Company shall have furnished any amendments or supplements
thereto (exclusive of material incorporated by reference), was not sent or given
by or on behalf of such Underwriter to such person, if required by law so to
have been delivered, at or prior to the written confirmation of the sale of the
Offered Securities to such person, and if the Prospectus (as so amended or
supplemented) would have cured the defect giving rise to such losses, claims,
damages or liabilities, unless the Company shall not have provided copies of
such Prospectus (as so amended or supplemented) in compliance with Section 6(d).
(b) Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless 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 Section 15 of the Securities Act or Section 20 of the Exchange Act to
the same extent as the foregoing indemnity from the Company to such Underwriter,
but only with reference to information furnished in writing to the Company by or
on behalf of such Underwriter expressly for use in the Registration Statement,
any preliminary prospectus, the Prospectus or any amendments or supplements
thereto.
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to either paragraph (a) or (b) above, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have
16
mutually agreed to the retention of such counsel or (ii) the named parties to
any such proceeding (including any impleaded parties) include both the
indemnifying party and the indemnified party and representation of both parties
by the same counsel would be inappropriate due to actual or potential differing
interests between them. It is understood that the indemnifying party shall not,
in respect of the legal expenses of any indemnified party in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any local
counsel) for all such indemnified parties and that all such fees and expenses
shall be reimbursed as they are incurred. Such firm shall be designated in
writing by the Manager, in the case of parties indemnified pursuant to paragraph
(a) above, and by the Company, in the case of parties indemnified pursuant to
paragraph (b) above. The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent, or if there be a final judgment for the plaintiff,
the indemnifying party agrees to indemnify the indemnified party from and
against any loss or liability by reason of such settlement or judgment. 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
or claims that are the subject matter of such proceeding.
(d) To the extent the indemnification provided for in paragraph (a) or (b)
of this Section is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
each indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on the
other hand from the offering of the Offered Securities or (ii) if the allocation
provided by clause (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 of the Underwriters on the other hand in connection with the statements
or omissions that resulted in such losses, claims, damages or liabilities, as
well as any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Underwriters on the other hand
in connection with the offering of the Offered Securities shall be deemed to be
in the same respective proportions as the net proceeds from the offering of such
Offered Securities (before deducting expenses) received by the Company and the
total underwriting discounts and commissions received by the Underwriters, in
each case as set forth in the table on the cover of the Prospectus Supplement
bear to the aggregate pubic offering price of the Offered Securities. The
relative fault of the Company on the one hand and of the Underwriters on the
other hand shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
or by the Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Underwriters' respective obligations to contribute pursuant to this Section
7 are several in proportion to the respective principal amounts of Offered
Securities they have purchased hereunder, and not joint.
17
(e) The Company and the Underwriters agree that it would not be just or
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in paragraph (d) above. The amount paid or
payable by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in the immediately preceding paragraph shall be deemed
to include, subject to the limitations set forth above, any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 7, no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which the Offered
Securities underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages that such Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The remedies provided for in this Section 7 are not exclusive
and shall not limit any rights or remedies which may otherwise be available to
any indemnified party at law or in equity.
8. TERMINATION. This Agreement shall be subject to termination, by notice
given by the Manager to the Company, if after the execution and delivery of the
Underwriting Agreement and prior to the Closing (a) trading generally shall have
been suspended or materially limited on or by the New York Stock Exchange, (b)
trading of any securities of the Company shall have been suspended on the
principal exchange or market on which any such securities are traded, (c) a
general moratorium on commercial banking activities in New York shall have been
declared by either Federal or New York State authorities or (d) there shall have
occurred any outbreak or escalation of hostilities or any change in financial
markets that, in the reasonable judgment of the Manager, is material and adverse
and makes it, in the reasonable judgment of the Manager, impracticable to market
the Offered Securities on the terms and in the manner contemplated in the
Prospectus.
9. DEFAULTING UNDERWRITERS. If, on the Closing Date, any one or more of
the Underwriters shall fail or refuse to purchase Underwriters' Securities that
it has or they have agreed to purchase hereunder on such date, and the aggregate
amount of Underwriters' Securities which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase is not more than one-tenth
of the aggregate amount of the Underwriters' Securities to be purchased on such
date, the other Underwriters shall be obligated severally in the proportions
that the amount of Underwriters' Securities set forth opposite their respective
names in the Underwriting Agreement bears to the aggregate amount of
Underwriters' Securities set forth opposite the names of all such nondefaulting
Underwriters, or in such other proportions as the Manager may specify, to
purchase the Underwriters' Securities which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date; PROVIDED
that in no event shall the amount of Underwriters' Securities that any
Underwriter has agreed to purchase pursuant to this Agreement be increased
pursuant to this Section 9 by an amount in excess of one-ninth of such amount of
Underwriters' Securities without the written consent of such Underwriter. If, on
the Closing Date, any Underwriter or Underwriters shall fail or refuse to
purchase Underwriters' Securities and the
18
aggregate amount of Underwriters' Securities with respect to which such default
occurs is more than one-tenth of the aggregate amount of Underwriters'
Securities to be purchased on such date, and arrangements satisfactory to the
Manager and the Company for the purchase of such Underwriters' Securities are
not made within 36 hours after such default, this Agreement shall terminate
without liability on the part of any nondefaulting Underwriter or the Company.
In any such case, either the Manager or the Company shall have the right to
postpone the Closing Date but in no event for long than seven days, in order
that the required changes, if any, in the Registration Statement and in the
Prospectus or in any other documents or arrangements may be effected. Any action
taken under this paragraph shall not relieve any defaulting Underwriter from
liability in respect of any default of such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of them,
pursuant to Section 8(b) or if the purchase of the Underwriters' Securities by
the Underwriters is not consummated because of any failure or refusal on the
part of the Company to comply with the terms or because any of the conditions of
this Agreement are not fulfilled, or if for any reason the Company shall be
unable to perform its obligations under this Agreement, the Company will
reimburse the Underwriters or such Underwriters as have so terminated this
Agreement with respect to themselves, severally, for all out-of-pocket expenses
(including the fees and disbursements of their counsel) reasonably incurred by
such Underwriters in connection with this Agreement or the offering of the
Offered Securities.
10. REPRESENTATIONS AND INDEMNITIES TO SURVIVE. The respective indemnity
and contribution agreements and the representations, warranties and other
statements of the Company and the Underwriters set forth in this Agreement will
remain in full force and effect, regardless of any termination of this
Agreement, any investigation (or any statement as to the results thereof) made
by or on behalf of any Underwriter or the Company or any of the officers,
directors or controlling persons referred to in Section 7 and delivery of and
payment for the Offered Securities.
11. SUCCESSORS. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers,
directors and controlling persons referred to in Section 7, and no other person
will have any right or obligation hereunder. No purchaser of Offered Securities
from any Underwriter shall be deemed to be a successor by reason merely of such
purchase.
12. COUNTERPARTS. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
13. APPLICABLE LAW. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York.
14. HEADINGS. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
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15. NOTICES. All communications hereunder will be in writing and, if sent
to the Underwriters, will be mailed, delivered or faxed and confirmed to the
Manager at the address set forth in any related underwriting agreement, or, if
sent to the Company, will be mailed, delivered or faxed and confirmed to it at
Sysco Corporation, 1390 Enclave Parkway, Houston, Texas 77077-2099, Attention:
General Counsel; PROVIDED, HOWEVER, that any notice to an Underwriter pursuant
to Section will be mailed, delivered or faxed and confirmed to such Underwriter.
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Schedule I
DELAYED DELIVERY CONTRACT
__________, 199__
Ladies and Gentlemen:
The undersigned hereby agrees to purchase from Sysco Corporation, a
Delaware corporation (the "Company"), and the Company agrees to sell to the
undersigned the Company's securities described in Schedule A annexed hereto (the
"Securities"), offered by the Company's Prospectus dated __________, 19___ and
Prospectus Supplement dated __________, 19___, receipt of copies of which are
hereby acknowledged, at a purchase price stated in Schedule A and on the further
terms and conditions set forth in this Agreement.
The undersigned will purchase from the Company Securities in the
amounts and on the delivery dates set forth in Schedule A. Each such date on
which Securities are to be purchased hereunder is hereinafter referred to as a
"Delivery Date."
Payment for the Securities, which the undersigned has agreed to
purchase on each Delivery Date, shall be made to the Company or its order by
wire transfer or by certified or official bank check or checks in immediately
available funds at the office of ____________________,
_________________________________________________, at _____ A.M. (__________
time) on the Delivery Date, upon delivery to the undersigned of the Securities
to be purchased by the undersigned on the Delivery Date, in such denominations
and registered in such names as the undersigned may designate by written or
facsimile communication addressed to the Company not less than five full
business days prior to such Delivery Date.
The obligation of the undersigned to take delivery of and make
payment for the Securities on each Delivery Date shall be subject only to the
conditions that (i) the purchase of Securities to be made by the undersigned
shall not at the time of delivery be prohibited under the laws of the
jurisdiction to which the undersigned is subject and (ii) the Company shall have
sold, and delivery shall have taken place to the underwriters (the
"Underwriters") named in the Prospectus Supplement referred to above of, such
part of the Securities as is to be sold to them. The undersigned represents that
its purchase of Securities is not, as of the date hereof, prohibited under the
laws of any jurisdiction to which the undersigned is subject. Promptly after
completion of sale and delivery to the Underwriters, the Company will mail or
deliver to the undersigned at its address set forth below notice to such effect,
accompanied by a copy of the opinions of counsel for the Company referred to in
Sections 5 (c) and (d) of the Underwriting Agreement and delivered to the
Underwriters in connection therewith.
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Failure to take delivery of and make payment for Securities by any
purchaser under any other Delayed Delivery Contract shall not relieve the
undersigned of its obligations under this Agreement.
This Agreement will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
It is understood that the acceptance of this Agreement and any
similar Delayed Delivery Contract is in the Company's sole discretion, and,
without limiting the foregoing, need not be on a first-come , first-served
basis. If this Agreement is acceptable to the Company, it is requested that the
Company sign the form of acceptance below and mail or deliver one of the
counterparts hereof to the undersigned at its address set forth below. This will
become a binding agreement, as of the date first above written, between the
Company and the undersigned when such counterpart is so mailed or delivered.
This Agreement shall be governed by and construed in accordance with
the internal laws of the State of New York.
Yours very truly,
________________________________
(Purchaser)
By: ____________________________
Name:
Title:
________________________________
________________________________
________________________________
(Address)
ACCEPTED:
SYSCO CORPORATION
By: ______________________________
Name:
Title:
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PURCHASER --- PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone and department of the representative of
the Purchaser with whom details of delivery on the Delivery Date may be
discussed is as follows: (Please Print)
Telephone No.
Name (Including Area Code) Department
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SCHEDULE A
PRINCIPAL AMOUNTS
SECURITIES TO BE PURCHASED PURCHASE PRICE DELIVERY
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