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Exhibit 1
DEALER MANAGER AGREEMENT
February , 0000
XXXXXXX XXXXX & XX.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
Xxxxxxx Xxxxx World Headquarters
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
MBNA Capital C (the "Trust"), a statutory business trust
organized under the Business Trust Act (the "Delaware Act") of the State of
Delaware (Chapter 38, Title 12 of the Delaware Code, 12 Del. C. (Section) 3801
et. seq.), pursuant to the Amended and Restated Declaration of Trust of the
Trust, to be dated as of the Exchange Date (as defined herein) (the
"Declaration"), among MBNA Corporation (the "Company"), as Sponsor, The Bank of
New York, as property trustee (the "Property Trustee"), The Bank of New York
(Delaware), as Delaware trustee (the "Delaware Trustee"), and
___________________, _______________ and _______________, as regular trustees
(the "Regular Trustees" and together with the Property Trustee and the Delaware
Trustee, the "Trustees"), and the holders from time to time of undivided
beneficial ownership interests in the assets of the Trust, proposes to issue its
% Trust Originated Preferred Securities* ("TOPrS(sm)"), Series C (the "Preferred
Securities"), in exchange for up to 6,000,000 shares (the "Target Securities")
of 7.50% Cumulative Preferred Stock, Series A ("the Series A Preferred Stock"),
of the Company. The Preferred Securities will be guaranteed (the "Guarantee") by
the Company to the extent described in the Prospectus (as hereinafter defined).
The exchange described above is herein referred to as the "Exchange Offer" and
any exchange of Preferred Securities for Target Securities pursuant to the
Exchange Offer is herein referred to as an "Exchange". In connection with the
Exchange Offer, the Company will deposit in the Trust as trust assets its %
Junior Subordinated Deferrable Interest Debentures, Series C, due 2027 (the
"Debentures") as set
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*(sm) "Trust Originated Preferred Securities" and "TOPrS" are service marks
of Xxxxxxx Xxxxx & Co., Inc.
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forth in the Prospectus, to be issued pursuant to an Indenture, dated April ,
1997, between the Company and The Bank of New York, as trustee (the "Indenture
Trustee"), as supplemented by a Supplemental Indenture to be dated as of the
Exchange Date (the "Supplemental Indenture"), between the Company and the
Indenture Trustee (collectively, the "Indenture").
Each of the Company and the Trust hereby confirms its
agreement with Xxxxxxx Xxxxx & Co. (the "Dealer Manager") as follows:
1. Registration Statement, Prospectus and Offering Materials.
The Company and the Trust have prepared and filed with the Securities and
Exchange Commission (the "Commission"), under the Securities Act of 1933, as
amended (the "Securities Act"), and the rules and regulations of the Commission
promulgated thereunder (the "Securities Act Regulations"), a registration
statement on Form S-4 covering the registration of the Preferred Securities, the
Guarantee and the Debentures, including the related preliminary prospectus, and
will prepare and file, on or prior to the effective date of such registration
statement, amendments to such registration statement, including a final
prospectus. Each prospectus used before the time such registration statement
becomes effective is herein called a "preliminary prospectus". Such registration
statement, including the exhibits thereto and any documents incorporated by
reference therein, as amended at the time it becomes effective or as thereafter
amended or supplemented from time to time, is herein called the "Registration
Statement". The final prospectus included in the Registration Statement
(including any documents incorporated in the prospectus by reference) is herein
called the "Prospectus", except that if the final prospectus furnished to the
Dealer Manager for use in connection with the Exchange Offer differs from the
prospectus set forth in the Registration Statement (whether or not such
prospectus is required to be filed pursuant to Rule 424 (b)), the term
"Prospectus" shall refer to the final prospectus furnished to the Dealer Manager
for such use. The terms "supplement" and "amendment" or "amend" as used herein
with respect to the Prospectus shall include all documents deemed to be
incorporated by reference in the Prospectus that are filed subsequent to the
date of the Prospectus and prior to the termination of the Exchange Offer by the
Company and the Trust with the Commission pursuant to the Securities Exchange
Act of 1934, as amended, and the rules and regulations of the Commission
promulgated thereunder (collectively, the "Exchange Act").
The Registration Statement, Prospectus and the related letters
from the Dealer Manager to securities brokers, dealers, commercial banks, trust
companies and other nominees, letters to beneficial owners of Target Securities,
letters of transmittal (the "Letters of Transmittal"), notices of guaranteed
delivery (the "Notices of Guaranteed Delivery") and any newspaper announcements,
press releases and other offering materials and information the Company may use
or prepare, approve or authorize for use in connection with the Exchange Offer,
as amended or supplemented from time to time, are herein collectively referred
to as the "Offering Materials".
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2. Exchange Offer; Agreement to Act as Dealer Manager. (a) The
Company and the Trust intend to commence the Exchange Offer as soon as
practicable after the Registration Statement becomes effective under the
Securities Act by publicly announcing its commencement and by mailing, or
causing to be mailed on its behalf, copies of the Prospectus, the related
Letters of Transmittal and such of the other Offering Materials as is required
or as the Company and the Trust elect to each holder of Target Securities (the
date of the commencement of such distribution being herein called the
"Commencement Date").
(b) The Company hereby retains the Dealer Manager to advise
the Company and the Trust with respect to the terms and timing of the Exchange
Offer and to assist them in the preparation of the Offering Materials and
retains and authorizes the Dealer Manager to act as dealer manager and to assist
the Company and the Trust with the solicitation of Exchanges (each a
"Solicitation" and collectively the "Solicitations"). On the basis of the
representations and warranties and agreements of the Company and the Trust
herein contained and subject to and in accordance with the terms and conditions
hereof and of the Offering Materials, the Dealer Manager agrees to advise the
Company and the Trust with respect to the terms and timing of the Exchange
Offer, to assist them in the preparation of the Offering Materials, to act as
dealer manager in connection with the Exchange Offer and to assist the Company
and the Trust with the Solicitations. The Dealer Manager agrees to use its
reasonable best efforts to solicit Exchanges.
(c) The Company shall furnish the Dealer Manager, or cause the
transfer agent or registrar for the Target Securities (respectively, the
"Transfer Agent" and "Registrar") to furnish the Dealer Manager, as soon as
practicable after the date hereof (to the extent not previously furnished), with
cards or lists in reasonable quantities or copies thereof showing the names of
persons who were the holders of record or, to the extent available to the
Company, the beneficial owners of the Target Securities as of a recent date,
together with their addresses, and the number of shares of Target Securities
held by them. Additionally, the Company shall use its reasonable best efforts to
update, or to cause the Transfer Agent or Registrar to update, such information
from time to time during the term of this Agreement as may be reasonably
requested by the Dealer Manager. Except as otherwise provided herein, the Dealer
Manager agrees to use such information only in connection with the
Solicitations. The Dealer Manager shall act hereunder as an independent
contractor and nothing herein contained shall make the Dealer Manager an agent
of the Company or any of its subsidiaries or the Trust in connection with any
Solicitation. Nothing contained in this Agreement shall constitute the Dealer
Manager a partner of or joint venturer with the Company or any of its
subsidiaries or the Trust.
(d) The Company and the Trust authorize the Dealer Manager to
use the Offering Materials in connection with the Solicitations and for such
period of time as any Offering Materials are required by law to be delivered in
connection therewith. The Dealer Manager shall not have any obligation to cause
any Offering Materials to be transmitted generally to the holders of the Target
Securities. The Dealer Manager agrees not to give
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any written information and not to make any representations to holders of the
Target Securities in connection with any Solicitation other than as contained in
the Offering Materials.
(e) The Company and the Trust authorize the Dealer Manager to
communicate with any information agent (the "Information Agent") or exchange
agent (the "Exchange Agent") appointed by the Company and/or the Trust to act in
such capacity in connection with the Exchange Offer with respect to matters
relating to the Exchange Offer.
(f) The Company and the Trust agree that any reference to the
Dealer Manager in any Offering Materials or in any newspaper announcement or
press release or other public document or communication is subject to the Dealer
Manager's prior consent.
3. Compensation. (a) The Company hereby agrees to pay to the
Dealer Manager for services rendered and to be rendered by them in connection
with the Exchange Offer a fee (the "Management Fee") equal to $____ per share of
Target Securities validly submitted for exchange and not withdrawn in connection
with the Exchange Offer. The Management Fee shall be paid only if the Exchange
Offer is consummated, and shall be paid within one week of the consummation of
the Exchange Offer.
(b) The Company agrees to pay, or cause to be paid to, each
soliciting dealer (including the Dealer Manager acting as a soliciting dealer)
whose name has been inserted in the space provided in the Letter of Transmittal
for that purpose a fee (the "Soliciting Dealer Fee") equal to $___ per share of
Target Securities ($___ per share of Target Securities with respect to the
solicitation of beneficial holders of 10,000 or more shares) validly submitted
for exchange and not withdrawn in connection with the Exchange Offer; provided,
however, that no such fee shall be paid with respect to Target Securities
tendered, directly or indirectly, by soliciting dealers for their own account
and such fee shall not be remitted, in whole or in part, to the beneficial owner
of such Target Securities. The Soliciting Dealer Fee shall be paid only if the
Exchange Offer is consummated and shall be paid to the soliciting dealers within
one week of the consummation of the Exchange Offer.
4. Expenses, Reimbursement. The Company agrees to reimburse
the Dealer Manager directly for all of its reasonable out-of-pocket expenses
incurred in connection with the Exchange Offer, including, without limitation,
the reasonable fees and expenses of the law firm acting as legal counsel for the
Dealer Manager.
5. Certain Covenants of the Trust and the Company. Each of the
Company and the Trust covenants jointly and severally with the Dealer Manager:
(a) To use reasonable efforts to cause the Registration
Statement, including any post-effective amendment thereto, to become effective
and will notify the Dealer Manager as soon as practicable and, if requested by
the Dealer Manager, will
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confirm the notice in writing, (i) when any post-effective amendment to the
Registration Statement shall have become effective, or any supplement to the
Prospectus or any amended Prospectus or any amended or additional Offering
Materials shall have been filed, (ii) of the receipt of any comments from the
Commission relating to the Exchange Offer, (iii) of any request by the
Commission to amend the Registration Statement or amend or supplement the
Prospectus or the other Offering Materials or for additional information
relating to the Exchange Offer and (iv) of (A) the issuance by the Commission of
any stop order suspending the effectiveness of the Registration Statement or (B)
the issuance by the Commission of any order preventing or suspending the use of
any of the Offering Materials or (C) the suspension of the qualification of the
Preferred Securities for offering or sale in connection with the Exchange Offer
in any jurisdiction or (D) the institution or threatening of any proceedings for
any of such purposes or (E) the occurrence of any event which could cause the
Company or the Trust to withdraw, rescind, terminate or modify the Exchange
Offer or would permit the Company or the Trust to exercise any right not to
accept the Target Securities tendered pursuant to the Exchange Offer. The
Company and the Trust will make every reasonable effort to prevent the issuance
of any such stop order, the issuance of any order preventing or suspending such
use and the suspension of any such qualification and, if any such order is
issued or qualification suspended, to obtain the lifting of such order or
suspension at the earliest practicable time.
(b) Prior to the termination of the Exchange Offer, before
amending or supplementing the Registration Statement or the Prospectus, to
furnish copies of drafts to, and consult with, the Dealer Manager and its
counsel within a reasonable time in advance of filing with the Commission of any
amendment or supplement to the Registration Statement, the Prospectus or the
other Offering Materials. Neither the Company nor the Trust shall file any such
amendment or supplement to which the Dealer Manager shall reasonably object in
writing; provided, however, that the foregoing shall not apply to any of the
Company's filings with the Commission required to be filed pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act, copies of which such filings the
Company will cause to be delivered to the Dealer Manager promptly after being
transmitted for filing with the Commission.
(c) To furnish promptly to the Dealer Manager, without charge,
one signed copy of the Registration Statement, all amendments thereto and any
other filing with the Commission in connection with the Exchange Offer, whether
filed before or after the Registration Statement becomes effective.
(d) To furnish promptly to the Dealer Manager, without charge,
from time to time until the effective date of the Registration Statement, as
many copies of each preliminary prospectus as the Dealer Manager may request,
and the Company and the Trust hereby consent to the use of such copies for
purposes permitted by the Securities Act and the Exchange Act. The Company will
furnish promptly to the Dealer Manager, without charge, as soon as the
Registration Statement shall have become effective and during the
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period mentioned in the second sentence of paragraph (e) below such number of
copies of the Prospectus and the other Offering Materials (as supplemented or
amended) as the Dealer Manager may request and will cause all amendments and
supplements filed with the Commission to be distributed to holders of Target
Securities as may be required by the Securities Act and the Exchange Act.
(e) To comply in all material respects with the Securities
Act, the Exchange Act and the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"), in connection with the Offering Materials, the Exchange
Offer and the transactions contemplated hereby and thereby, as applicable. If at
any time when the Prospectus is required by the Securities Act or the Exchange
Act to be delivered in connection with any Solicitation or Exchange any event
shall occur or condition shall exist as a result of which it is necessary, in
the reasonable opinion of counsel for the Dealer Manager or counsel for the
Company and the Trust, to amend the Registration Statement or amend or
supplement the Prospectus or any other Offering Materials in order that the
Prospectus or such other Offering Materials will not include an untrue statement
of a material fact or omit to state a material fact necessary in order to make
the statements in the Prospectus or such other Offering Materials, in the light
of the circumstances under which they were made, not misleading or if, in the
reasonable opinion of either such counsel, it shall be necessary to amend the
Registration Statement or amend or supplement the Prospectus or any other
Offering Materials to comply with the requirements of the Securities Act or the
Exchange Act, the Company and the Trust will promptly prepare, file with the
Commission, subject to Section 5(b) of this Agreement, and furnish, at its own
expense, to the Dealer Manager and to the dealers (whose names and address will
be furnished to the Company by the Dealer Manager) to which Preferred Securities
may have been exchanged, such amendment or supplement as may be necessary to
correct such untrue statement or omission or to make the Registration Statement
or the Prospectus or such other Offering Materials comply with such
requirements.
(f) To endeavor, in cooperation with the Dealer Manager, to
qualify the Preferred Securities for offering and sale in connection with the
Exchange Offer under the applicable securities or Blue Sky laws of such
jurisdictions as the Company and the Trust may elect and to maintain such
qualifications in effect for such time as may be required for the consummation
of the Exchange Offer; provided, however, that neither the Company nor the Trust
shall be obligated to file any general consent to service of process or to
qualify as a foreign corporation or as a dealer in securities in any
jurisdiction in which it is not so qualified or to subject itself to taxation in
respect of doing business in any jurisdiction in which it is not otherwise so
subject; provided, further, that the Dealer Manager shall not be obligated to
solicit tenders in jurisdictions where the Preferred Securities are not
qualified for offer and sale. The Company and the Trust will file such
statements and reports as may be required by the laws of each jurisdiction in
which the Preferred Securities have been qualified as above provided.
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(g) To make generally available to the holders of the
Preferred Securities and the Debentures as soon as practicable, but in any event
not later than 45 days after the end of the fiscal quarter of the Company during
which the first anniversary of the effective date of the Registration Statement
occurs (or 90 days in case the period covered corresponds to a fiscal year of
the Company) an earnings statement of the Company (in form complying with the
provisions of Rule 158 of the Securities Act) covering such twelve-month period.
(h) To use its reasonable best efforts to effect the listing
of the Preferred Securities on the New York Stock Exchange, Inc. (the "NYSE"),
subject to official notice of issuance, as soon as practicable after the date
hereof.
(i) To timely file any report or other document required to be
filed by the Company or the Trust with the Commission pursuant to Section 13, 14
or 15 of the Exchange Act during the period of time referred to in the second
sentence of Section 5(e) hereof.
(j) Subject to Section 4(a) of this Agreement, to pay all
costs and expenses incurred in connection with the performance of its
obligations in connection with this Agreement and the Solicitations including,
without limitation, (i) the preparation, printing and filing of the Registration
Statement (including financial statements and exhibits), as originally filed and
as amended, the preliminary prospectuses, the Prospectus and the other Offering
Materials and any amendments or supplements to any of the foregoing, and the
cost of furnishing copies thereof to the Dealer Manager, (ii) the preparation
and distribution of this Agreement and any Blue Sky surveys and the printing of
certificates for the Preferred Securities, (iii) the distribution of the
Offering Materials to the holders of the Target Securities, (iv) the fees and
disbursements of counsel to the Company and the Trust, counsel to the Dealer
Manager and the Company's and the Trust's accountants, (v) the qualification of
the Preferred Securities under the applicable securities laws in accordance with
Section 5(f) of this Agreement and any filing for review of the Exchange Offer
with the National Association of Securities Dealers, Inc. (the "NASD")
(including filing fees and fees and disbursements of counsel for the Dealer
Manager in connection with such filing with the NASD), (vi) the fees and
expenses of the Transfer Agent, the Registrar, the Trustees, the Indenture
Trustee (as defined herein), the trustee under the Guarantee (the "Guarantee
Trustee"), the Information Agent and the Exchange Agent and (vii) all other
costs and expenses incident to the Solicitations incurred by the Trust and the
Company and its subsidiaries. The Company agrees to pay all of the
aforementioned costs and expenses whether or not the Exchange Offer is
consummated.
(k) To advise or cause the Exchange Agent to advise the Dealer
Manager at 5:00 P.M., New York City time, or as promptly as practicable
thereafter, daily (or more frequently if requested), by telephone or facsimile
transmission, as of 4:00 P.M. on such day with respect to Target Securities
tendered as follows:
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(i) the number of shares of Target Securities validly
tendered represented by certificates physically held by the Exchange Agent (or
for which the Exchange Agent has received confirmation of receipt of book-entry
transfer of such Target Securities into the Exchange Agent's account at a
Depository Institution (as defined in the Prospectus) pursuant to the procedures
set forth in the Exchange Offer) on such day;
(ii) the number of shares of Target Securities
represented by Notices of Guaranteed Delivery on such day;
(iii) the number of shares of Target Securities
properly withdrawn on such day;
(iv) the cumulative number of shares of Target
Securities in categories (i) through (iii) above.
On the day following such oral communication, the Company
shall furnish or cause the Exchange Agent to furnish to the Dealer Manager a
written report confirming the above information which has been communicated
orally. The Company shall furnish or cause the Exchange Agent to furnish to the
Dealer Manager such reasonable information on the tendering holders of Targeted
Securities as may be requested from time to time.
(l) To give the Dealer Manager notice of any change of the
expiration time of the Exchange Offer (the "Expiration Time").
6. Representations and Warranties of the Company and the
Trust. Each of the Company and the Trust jointly and severally represent and
warrant to and agrees with the Dealer Manager that:
(a) Compliance with Registration Requirements. Each prospectus
filed as part of the Registration Statement as originally filed or as part of
any amendment thereto, or filed pursuant to Rule 424 of the Securities Act, will
comply when so filed, in all material respects, as to form with the Securities
Act, the Exchange Act and the Trust Indenture Act; the Registration Statement at
the time it becomes effective and the Prospectus and any other Offering
Materials, on the Commencement Date and on the date on which the Company
commences delivery of the Preferred Securities for exchange of the Target
Securities pursuant to the Exchange Offer (such date, the "Exchange Date"), will
comply, in all material respects, as to form with the Securities Act and the
Exchange Act; each part of the Registration Statement when such part becomes
effective will not contain, and each such part, as amended, if applicable, will
not contain, any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading; and as of the Commencement Date and the Exchange Date, none of
the Prospectus or the other Offering Materials or any amendments or supplements
to such Offering Materials will contain any untrue statement of a material fact
or omit to state a
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material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; provided, however,
that the representations and warranties set forth in this Section 6(a) shall not
apply to statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Trust or the Company by the Dealer
Manager expressly for use in the Registration Statement, Prospectus, any other
Offering Materials or any amendments or supplements to any of the foregoing.
(b) Incorporated Documents. The documents incorporated by
reference or deemed to be incorporated by reference in the Registration
Statement and the Prospectus, when they became effective or were filed with the
Commission, as the case may be, conformed in all material respects to the
requirements of the Securities Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder, and none of such documents
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading; and any further documents so filed and incorporated by reference
or deemed to be incorporated by reference in the Registration Statement and the
Prospectus or any further amendment or supplement thereto, when such documents
become effective or are filed with the Commission, as the case may be, will
conform in all material respects to the requirements of the Securities Act or
the Exchange Act, as applicable, and the rules and regulations of the Commission
thereunder, and will not contain an untrue statement or a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that the representations
and warranties set forth in this Section 6(b) shall not apply to any statements
or omissions made in reliance upon and in conformity with information furnished
in writing to the Trust or the Company by the Dealer Manager expressly for use
in the Registration Statement and the Prospectus as amended or supplemented.
(c) No Material Adverse Change in Business. Since the
respective dates as of which information is given in the Registration Statement
and the Prospectus, except as otherwise stated therein, (A) there has been no
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Trust, or of the Company
and its subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business (a "Material Adverse Effect"), (B) there have been
no transactions entered into by the Trust, or by the Company or any of its
subsidiaries, other than those in the ordinary course of business, which are
material with respect to the Trust, or to the Company and its subsidiaries
considered as one enterprise, (C) except for regular dividends, there has been
no dividend or distribution of any kind declared, paid or made by the Company on
any class of its capital stock and (D) there has been no material increase in
the long-term debt of the Company, except such increases as are set forth in the
Prospectus.
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(d) Good Standing of the Company. The Company has been duly
incorporated and is validly existing as a corporation in good standing under the
laws of the State of Maryland, with power and authority (corporate and other) to
own its properties and conduct its business as described in the Prospectus.
(e) Good Standing of Significant Subsidiaries. Each subsidiary
of the Company which is a significant subsidiary, as defined in Rule 405 of
Regulation C of the regulations promulgated under the Securities Act (each, a
"Significant Subsidiary") has been duly incorporated and is validly existing as
a corporation in good standing under the laws of its jurisdiction of
incorporation except for MBNA America Bank, National Association (the "Bank")
and any other national bank subsidiary, each of which has been duly organized
and is validly existing as a national bank under the laws of the United States,
with power and authority (corporate and other) to own its properties and to
conduct its business as described in the Prospectus.
(f) Foreign Qualification. The Company and each Significant
Subsidiary has been duly qualified as a foreign corporation for the transaction
of business and is in good standing under the laws of each other jurisdiction in
which it owns or leases properties or conducts any business so as to require
qualification.
(g) Authorized Capitalization. The Company has an authorized
capitalization as set forth in the Prospectus, and all of the issued shares of
capital stock of the Company have been duly and validly authorized and issued
and are fully paid and non-assessable.
(h) Existence of Trust. The Trust has been duly created and is
validly existing as a business trust in good standing under the Delaware Act,
with power and authority to own, lease and operate its properties and conduct
its business as described in the Prospectus, and is not required to be
authorized to do business in any other jurisdiction; all the outstanding
beneficial ownership interests in the assets of the Trust have been duly and
validly authorized and issued, are fully paid and non-assessable and conform to
the descriptions thereof contained in the Prospectus; and the Trust is and will
be treated as a "grantor trust" for federal income tax purposes under existing
law.
(i) Preferred Securities. The Preferred Securities have been
duly and validly authorized, and, when the Preferred Securities are issued and
delivered pursuant to this Agreement, such Preferred Securities will be duly and
validly issued and fully paid and non-assessable beneficial interests in the
Trust entitled to the benefits provided by the Declaration; the Preferred
Securities conform to the description thereof contained in the Registration
Statement and the Preferred Securities will conform to the description thereof
contained in the Prospectus as amended or supplemented with respect to such
Preferred Securities;
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(j) Common Securities. The Common Securities of the Trust have
been duly authorized and when issued and delivered by the Trust to the Company
against payment therefor as set forth in the Declaration, will be duly and
validly issued and non-assessable beneficial interests in the Trust and will
conform to the description thereof contained in the Prospectus;
(k) Authorization of Company Agreements. The Guarantee, the
Declaration, the Debentures and the Indenture (the Guarantee, the Declaration,
the Debentures and the Indenture being collectively referred to as the "Company
Agreements") have each been duly authorized and when validly executed and
delivered by the Company and, in the case of the Guarantee, by the Guarantee
Trustee (as defined in the Guarantee), in the case of the Declaration, by the
Trustees (as defined in the Declaration) and, in the case of the Indenture, by
the Trustee named therein (the "Debenture Trustee"), and, in the case of the
Debentures, when validly issued by the Company and duly authenticated and
delivered by the Debenture Trustee against payment therefore as contemplated by
the Company Agreements, will constitute valid and legally binding obligations of
the Company, enforceable in accordance with their respective terms, subject, as
to enforcement, to bankruptcy, insolvency, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights generally, equitable
principles (regardless of whether considered in a proceeding in equity or at
law) and an implied covenant of good faith and fair dealing; the Debentures are
entitled to the benefits of the Indenture; and the Company Agreements, which
will be in substantially the form filed as an exhibit to the Registration
Statement, will conform to the descriptions thereof in the Prospectus as amended
or supplemented;
(l) Absence of Defaults and Conflicts by the Company. The
issuance by the Company of the Guarantee and the Debentures; the compliance by
the Company with all of the provisions of this Agreement, the Guarantee and the
Debentures; the execution, delivery and performance by the Company of the
Company Agreements; and the consummation of the transactions contemplated herein
and therein, 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 agreement or instrument to
which the Company is a party or by which the Company is bound or to which any of
the material propertY or assets of the Company is subject, nor will such action
result in any violation of the provisions of the Certificate of Incorporation or
By-laws of the Company or any statute or any order, rule or regulation of any
court or governmental agency or body (including, without limitation, the Board
of Governors of the Federal Reserve System, the Office of the Comptroller of the
Currency and the Federal Deposit Insurance Corporation) having Jurisdiction over
the Company or any of its properties; and no consent, approval, authorization,
order, registration or qualification of or with any such court or governmental
agency or body is required for the issue of the Guarantee or the Debentures or
the consummation by the Company of the other transactions contemplated by this
Agreement or the Company Agreements, except such as have been or will have been,
prior to the Commencement Date and the Exchange Date, respectively, obtained
under the Act of the
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Trust Indenture Act and such consents, approvals, authorizations, registrations
or qualifications as may be required under state securities or Blue Sky laws in
connection with the issuance by the Company of the Guarantee and the Debentures;
(m) Absence of Defaults or Conflicts by the Trust. The issue
and sale of the Preferred Securities by the Trust; the compliance by the Trust
with all of the provisions of this Agreement and the Preferred Securities; the
purchase of the Debentures by the Trust; the execution, delivery and performance
by the Trust of the Declaration and the consummation of the transactions
contemplated herein and therein, 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 agreement or
instrument to which such Trust is a party or by which such Trust is bound or to
which any of the material property or assets of such Trust is subject, nor will
such action result in any violation of the provisions of the Declaration or any
statute or any order, rule or regulation of any court or governmental agency or
body having jurisdiction over such Trust or any of its properties; and no
consent, approval, authorization, order, registration or qualification of or
with any such court or governmental agency or body is required for the issue and
sale of the Preferred Securities and the Common Securities by such Trust, the
purchase of the Debentures by the such Trust or the consummation by such Trust
of the transactions contemplated by this Agreement or the Declaration, except
such as have been, or will have been, prior to the Commencement Date and the
Exchange Date, respectively, obtained under the Act and the Trust Indenture Act
and such consents, approvals, authorizations, registrations or qualifications as
may be required under state securities or Blue Sky laws in connection with the
purchase and distribution of the Preferred Securities;
(n) Absence of Proceedings. Other than as set forth in the
Prospectus, there are no legal or governmental proceedings pending to which the
Trust, the Company or any of its subsidiaries is a party or of which any
property of the Company or any of its subsidiaries is the subject, which, if
determined adversely to the Trust, the Company or any of its subsidiaries, would
individually or in the aggregate have a material adverse effect on the
consolidated financial position, stockholders' equity (or net assets, as the
case may be) or results of operations of the Trust, or the Company and its
subsidiaries; and, to the best of the Trust's and the Company's knowledge, no
such proceedings are threatened or contemplated by governmental authorities or
threatened by others;
(o) Compliance with Laws. Each of the Company, the Bank and
the Trust is in substantial compliance with, and conducts its business in
substantial conformity with, all applicable laws and governmental regulations.
(p) Select Sections of Registration Statement. The statements
set forth in (i) the Prospectus under the captions "Description of the Junior
Subordinated Debentures", "Description of the Preferred Securities",
"Description of Guarantee", "Relationship Among the Preferred Securities, the
Junior Subordinated Debentures and the Guarantee" and
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"Description of the Series A Preferred Stock", insofar as they constitute a
summary of the terms of the Preferred Securities, Debentures, the Guarantee, the
Indenture, the Declaration and the Series A Preferred Stock, fairly summarize
the information required to be disclosed therein.
(q) Investment Company Act. Neither the Company nor the Trust
is, and after giving effect to the consummation of the Exchange Offer as herein
contemplated and the application of the net proceeds therefrom as described in
the Prospectus neither will be, an "investment company" or an entity
"controlled" by an "investment company" as such terms are defined in the
Investment Company Act of 1940, as amended (the "1940 Act").
7. Indemnification and Contribution. (a) Each of the Company
and the Trust jointly and severally agrees: (A) to indemnify and hold the Dealer
Manager harmless against any loss, damage, expense, liability or claim (i) which
(1) with respect to the Registration Statement, is caused by any untrue
statement or alleged untrue statement of a material fact contained therein or
which is caused by the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, or (2) with respect to the Offering Materials or in any
amendment or supplement thereto, is caused by any untrue statement or alleged
untrue statement of a material fact contained in such Offering Materials or
which is caused by the omission or alleged omission to state therein a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except, in any such
case, as to the Dealer Manager insofar as such loss, damage, expense, liability
or claim is caused by any such untrue statement or omission or alleged untrue
statement or omission based upon information relating to the Dealer Manager
furnished to the Company or the Trust in writing by the Dealer Manager expressly
for use in the Registration Statement or in such Offering Materials or (ii)
which arises out of or is based upon a withdrawal, rescission or modification of
or a failure to make or consummate the Exchange Offer; and (B) to indemnify and
hold the Dealer Manager harmless against any other loss, damage, expense,
liability or claim which otherwise arises out of or is related to this Agreement
or the Exchange Offer or the services provided by the Dealer Manager in
connection with this Agreement or the Exchange Offer, except to the extent any
such loss, damage, expense, liability or claim referred to in this clause (B) is
found by a final judgment of a court of competent jurisdiction to have resulted
from the Dealer Manager's gross negligence, bad faith or willful misconduct. The
Company and the Trust each jointly and severally agree to indemnify and hold the
Dealer Manager harmless against and reimburse the Dealer Manager for any and all
reasonable expenses (including reasonable legal fees and expenses) as such
expenses are incurred by it in connection with investigating, preparing for or
defending against any such loss, damage, expense, liability or claim, whether or
not resulting in any liability, whether or not such person is a named party in
connection therewith and whether or not such loss, damage, expense, liability or
claim results from action initiated or brought by or on behalf of the Company or
any of its subsidiaries (including the Trust), and any amount paid in settlement
of any litigation, commenced or
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threatened, or of any claim whatsoever as set forth herein if such settlement is
effected with the prior written consent of the Company; provided, however, with
respect to clause (B) above, that neither the Company nor the Trust shall be
liable for any of the foregoing expenses and any amounts previously paid shall
be promptly repaid to the extent that any loss, damage, liability or claim is
found by a final judgment of a court of competent jurisdiction to have resulted
from the Dealer Manager's gross negligence, bad faith or willful misconduct. In
the event that you become involved in any capacity in any action, proceeding or
investigation brought by or against any person, including stockholders of the
Company, in connection with any matter referred to in this Agreement or arising
out of the Exchange Offer for which you would be entitled to indemnification
pursuant to the preceding sentence, the Company and the Trust also agree to
indemnify and hold you harmless against and to reimburse you for any amount paid
in settlement of any litigation commenced or threatened or of any claim
whatsoever as set forth herein if such settlement is effected with the written
consent of the Company and the Trust, which shall not be unreasonably withheld.
The Company and the Trust also agree that the Dealer Manager shall not have any
liability (whether direct or indirect, in tort, contract or otherwise) to the
Company or any of its subsidiaries (including the Trust) or its or their
security holders or creditors related to or arising out of this Agreement or the
Exchange Offer or the services provided by the Dealer Manager in connection with
this Agreement or the Exchange Offer, except (i) for failure to perform its
obligations under this Agreement, (ii) to the extent such liability is found by
a final judgment of a court of competent jurisdiction to have resulted from the
Dealer Manager's gross negligence, bad faith or willful misconduct or (iii) as
expressly provided in the next succeeding paragraph.
The Dealer Manager agrees to indemnify and hold harmless the
Company and the Trust to the same extent as the foregoing indemnity from the
Company and the Trust to the Dealer Manager contained in Section 7(a)(A)(i)
above, but only with reference to information relating to the Dealer Manager
furnished to the Company in writing by the Dealer Manager expressly for use in
the Registration Statement or the Offering Materials.
(b) Promptly after receipt by a person indemnified under this
Section 7 of notice of any suit, action, proceeding or investigation with
respect to which an indemnified party may be entitled to indemnification
hereunder, such indemnified person shall notify the person against whom such
indemnity may be sought in writing of the commencement or the written assertion
thereof; but the omission so to notify such indemnifying person shall not
relieve such indemnifying person from any liability which it may have to such
indemnified person unless the indemnifying person has been materially prejudiced
by such omission. Following such notification, such indemnifying person may
elect in writing to assume the defense of such suit, action, proceeding or
investigation and, upon such election, such indemnifying person shall not be
liable for any legal costs subsequently incurred by such indemnified person
(other than reasonable costs of investigation and providing evidence) in
connection therewith, unless (i) such indemnifying person has failed to provide
counsel reasonably satisfactory to such indemnified person in
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a timely manner, (ii) counsel which has been provided by such indemnifying
person reasonably determines that its representation of such indemnified person
would present it with a conflict of interest or (iii) such indemnified person
reasonably determines that there may be legal defenses available to it which are
different from or in addition to those available to such indemnifying person. In
the event of a determination pursuant to clause (i), (ii) or (iii) above, such
indemnified person shall be entitled to retain separate counsel of their choice
and the fees and expenses of such separate counsel shall be borne by such
indemnifying person. Such indemnifying person shall not in any event be liable
for the fees and expenses of more than one separate firm of attorneys (in
addition to any local counsel) for the Dealer Manager in any one action or group
of related actions, except as provided in the immediately preceding sentence.
Whether or not such indemnifying person shall have assumed the defense of any
suit, action, proceeding or investigation, the Company, the Trust and the Dealer
Manager agree to cooperate in the defense thereof and shall furnish such
records, information and testimony, and attend such conferences, discovery
proceedings, hearings, trials and appeals, as may be reasonably requested in
connection therewith.
(c) If the indemnification provided for in this Section 7 is
unavailable to or insufficient to hold harmless an indemnified person to the
extent provided under subsection (a) above in respect of any losses, damages,
expenses, liabilities or claims referred to therein, then the indemnifying
person shall contribute to the amount paid or payable by such indemnified person
as a result of such losses, damages, expenses, liabilities or claims (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company and its subsidiaries (including the Trust) on the one hand and the
Dealer Manager on the other from the Exchange Offer 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) but also the relative fault of the Company and its subsidiaries
(including the Trust) on the one hand and the Dealer Manager on the other in
connection with any statements or omissions or any other matters which resulted
in such losses, damages, expenses, liabilities or claims, as well as any other
relevant equitable considerations. The relative benefits received by the Company
and its subsidiaries (including the Trust) on the one hand and the Dealer
Manager on the other shall be deemed to be in the same proportion as the maximum
aggregate liquidation preference of the Preferred Securities issuable pursuant
to the Exchange Offer bears to the maximum amount of fees payable to the Dealer
Manager pursuant to Section 3 hereof (less any expenses payable by the Dealer
Manager to the Company pursuant to Section 4 hereof). The relative fault of the
Company and its subsidiaries (including the Trust) on the one hand and the
Dealer Manager on the other (i) in the case of any untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact, shall be determined by reference to, among other things, whether
such statement or omission relates to information supplied by the Company or any
of its subsidiaries (including the Trust) or their affiliates or the Dealer
Manager, and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission and (ii) in the
case of any other action or omission, shall be determined by reference to, among
other
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things, whether such action or omission was taken or omitted to be taken by the
Company or any of its subsidiaries (including the Trust) or their affiliates or
by the Dealer Manager, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such action or omission. The
Company and the Dealer Manager agree that it would not be just and equitable if
contribution pursuant to this subsection (c) 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 this subsection (c). Notwithstanding
the provisions of this Section 7(c), the Dealer Manager shall not be required to
contribute any amount in excess of the fee paid to the Dealer Manager pursuant
to Section 3 hereof (less any expenses payable by the Dealer Manager to the
Company pursuant to Section 4 hereof). 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.
8. Conditions to Dealer Manager's Obligations. The obligations
of the Dealer Manager hereunder are subject as of the Commencement Date and as
of the Exchange Date to the accuracy of the representations and warranties of
the Company and the Trust contained herein or in certificates of any officer of
the Company or Trustee of the Trust delivered pursuant to the provisions hereof,
to the performance, in all material respects, by the Company and the Trust of
their obligations hereunder to be performed, and to the following additional
conditions:
(a) On the Commencement Date and the Exchange Date, the
Registration Statement shall have become effective under the Securities Act; no
stop order suspending the effectiveness of the Registration Statement shall be
in effect, and no proceedings for such purpose shall be pending before or, to
the Company's or the Trust's knowledge, threatened by the Commission.
(b) On the Commencement Date and the Exchange Date, since the
respective dates as of which information is given in the Prospectus as amended
or supplemented, there shall not have occurred any material adverse change, or
any development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise whether or not arising in the ordinary course of business.
(c) The Dealer Manager shall have received on the Commencement
Date and the Exchange Date a certificate, dated such date and signed by an
executive officer of the Company, to the effect (i) set forth in clause (b)
above, (ii) that the representations and warranties of the Company contained in
this Agreement are true and correct with the same force and effect as though
expressly made as of such date (except for representations and warranties which
by their terms speak as of a different date or dates), (iii) that the Company
has complied in all material respects with all of the agreements and satisfied
all of the
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conditions on its part to be performed or satisfied on or before such date and
(iv) no stop order suspending the effectiveness of the Registration Statement
has been issued and no proceedings for that purpose have been instituted or are
pending or are, to the best of the Company's knowledge, threatened by the
Commission. The officer signing and delivering such certificate may rely upon
the best of such officer's knowledge as to proceedings threatened.
(d) On the Commencement Date and the Exchange Date, there
shall not have been since the respective dates as of which information is given
in the Prospectus, any material adverse change, or any development involving a
prospective material adverse change, in the condition, financial or otherwise,
or in the earnings or business affairs of the Trust.
(e) The Dealer Manager shall have received on the Commencement
Date and the Exchange Date a certificate, dated such date and signed by a
Regular Trustee of the Trust, to the effect (i) set forth in clause (d) above,
(ii) that the representations and warranties of the Trust contained in this
Agreement are true and correct with the same force and effect as though
expressly made as of such date (except for representations and warranties which
by their terms speak as of a different date or dates), (iii) that the Trust has
complied in all material respects with all of the agreements and satisfied all
of the conditions on its part to be performed or satisfied on or before such
date and (iv) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or are pending or are, to the best of the Trust's knowledge,
threatened by the Commission. The Regular Trustee signing and delivering such
certificate may rely upon knowledge as to proceedings threatened.
(f) Xxxx X. Xxxxxxxx, Executive Vice President and General
Counsel of the Company or other counsel for the Company satisfactory to the
Dealer Manager shall have furnished to the Dealer Manager their written
opinions, dated the Commencement Date and the Exchange Date, respectively, in
form and substance satisfactory to the Dealer Manager, 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
jurisdiction of its incorporation, with power and authority (corporate and
other) to own its properties and conduct its business as described in the
Prospectus;
(ii) Each Significant Subsidiary of the Company has
been duly incorporated and is validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation, except for the Bank and any
other national bank subsidiary, which has been duly organized and is validly
existing under the laws of the United States, with power and authority
(corporate and other) to own its properties and conduct its business as
described in the Prospectus (such counsel being entitled to rely in respect of
the opinion
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in this clause upon opinions of local counsel and in respect of matters of fact
upon certificates of officers of the Company or its subsidiaries, provided that
such counsel shall state that he believes that both you and he are justified in
relying upon such opinions and certificates);
(iii) The Company and each Significant Subsidiary has
been duly qualified as a foreign corporation for the transaction of business and
is in good standing under the laws of each other jurisdiction in which it owns
or leases properties or conducts any business so as to require qualification, or
is subject to no material liability or disability by reason of failure to be so
qualified in any such jurisdiction (such counsel being entitled to rely in
respect of the opinion in this clause upon opinions of local counsel and in
respect of matters of fact upon certificates of officers of the Company or its
subsidiaries, provided that such counsel shall state that they believe that both
you and they are justified in relying upon such opinions and certificates);
(iv) The Company has an authorized capitalization as
set forth in the Prospectus as amended or supplemented, and all of the issued
shares of capital stock of the Company have been duly and validly authorized and
issued and are fully paid and non-assessable;
(v) To such counsel's knowledge and other than as set
forth 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 of the Company or any of its subsidiaries is the subject which, if
determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a material adverse effect on the
consolidated financial position, stockholders' equity or results of operations
of the Company and its subsidiaries; to such counsel's knowledge, there are no
legal or governmental proceedings pending to which the Trust is a party or of
which any property of the Trust is the subject; and to such counsel's knowledge,
no such proceedings are threatened or contemplated by governmental authorities
or threatened by others;
(vi) This Agreement has been duly authorized,
executed and delivered by the Company;
(vii) The issuance by the Company of the Guarantee
and the Debentures, the compliance by the Company with all of the provisions of
this Agreement, the execution, delivery and performance by the Company of each
of the Guarantee, the Declaration, the Debentures and the Indenture and the
consummation of the transactions herein and therein contemplated 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 agreement or instrument known to such counsel to
which the Company is a party or by which the Company is bound or to which any of
the property or assets of the Company is subject; nor will such actions result
in any violation
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of the provisions of the Certificate of Incorporation or By-laws of the Company
or any statute or any order, rule or regulation known to such counsel of any
court or governmental agency or body (including, without limitation, the Board
of Governors of the Federal Reserve System, the Office of the Comptroller of the
Currency and the Federal Deposit Insurance Corporation) having jurisdiction over
the Company or any of its properties; and
(viii) The Registration Statement, as of its
effective date, and the Prospectus, as of its date, (other than the financial
statements and related schedules and other financial data therein and the Form
T-1 Statements of Eligibility and Qualification of the Trustees, as to which
such counsel need express no opinion) comply as to form in all material respects
with requirements of the Act and the Trust Indenture Act and the rules and
regulations thereunder; although he has not independently verified and does not
assume any responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement or the Prospectus, he has no
reason to believe that, as of its effective date, the Registration Statement or
any further amendment thereto made by the Designated Trust or the Company (other
than the financial statements and related schedules and other financial data
therein and the Form T-1 Statements of Eligibility and Qualification of the
Trustees, as to which such counsel need express no opinion) contained an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading or
that, as of its date, the Prospectus or any amendment or supplement thereto made
by the Trust or the Company (other than the financial statements and related
schedules and other financial data therein and the Form T-1 Statements of
Eligibility and Qualification of the Trustees, as to which such counsel need
express no opinion) contained an untrue statement of a material fact or omitted
to state a material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading or that, as of
the Commencement Date and the Exchange Date, respectively, either the
Registration Statement or the Prospectus or any amendment or supplement thereto
made by the Trust or the Company (other than the financial statements and
related schedules and other financial data therein and the Form T-1 Statements
of Eligibility and Qualification of the Trustees, as to which such counsel need
express no opinion) contains an untrue statement of a material fact or omits to
state a material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading; and he does not
know of any contracts or other documents of a character required to be filed as
an exhibit to the Registration Statement or required to be incorporated by
reference into the Prospectus or required to be described in the Registration
Statement or the Prospectus which are not filed or incorporated by reference or
described as required.
In giving such opinion, such counsel may rely as to all
matters governed by the laws of the State of New York, on the opinion delivered
pursuant to Section 8(g) hereof by Xxxxxxx Xxxxxxx & Xxxxxxxx.
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(g) Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the Company, shall
have furnished to the Dealer Manager their written opinions, dated the
Commencement Date and the Exchange Date, respectively, in form and substance
satisfactory to the Dealer Manager, 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 Maryland;
(ii) This Agreement has been duly authorized,
executed and delivered by the Company;
(iii) No consent, approval, authorization, order,
registration or qualification of or with any such court or governmental agency
or body is required for the issue and sale of the Preferred Securities being
delivered at the Exchange Date, as the case may be, or the issuance of the
Guarantee and the Debentures or the consummation by the Trust or the Company of
the transactions contemplated by this Agreement and each of the Guarantee, the
Declaration, the Debentures and the Indenture, except such as have been obtained
under the Act and the Trust Indenture Act and such consents, approvals,
authorizations, registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase and distribution of
the Preferred Securities by the Underwriters or the issuance of the Guarantee
and Debentures by the Company;
(iv) The statements set forth in the Prospectus under
the captions "Description of the Junior Subordinated Debentures", "Description
of the Preferred Securities", "Description of Guarantee" and "Relationship Among
the Preferred Securities, the Junior Subordinated Debentures and the Guarantee",
insofar as they purport to constitute summaries of certain terms of the
Preferred Securities and each of the Guarantee, the Declaration, the Debentures
and the Indenture, in each case constitute accurate summaries of each of the
Guarantee, the Declaration, the Debentures and the Indenture and of the terms of
such securities, as set forth in each of the Guarantee, the Declaration, the
Debentures and the Indenture, in all material respects;
(v) The Debentures are in the form prescribed in or
pursuant to the Indenture, have been duly and validly authorized by the Company
by all necessary corporate action and, when completed, executed and
authenticated as specified in or pursuant to the Indenture and issued and
delivered against payment therefore as specified in each of the Guarantee, the
Declaration, the Debentures and the Indenture, will be valid and legally binding
obligations of the Company, enforceable in accordance with their terms, subject
to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally, to general equitable principles (whether considered in a proceeding
in equity or at law) and by an implied covenant of good faith and fair dealing;
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(vi) The Indenture, the Guarantee and the Declaration
have each been duly authorized, executed and delivered by the Company and,
assuming due authorization, execution and delivery by the Debenture Trustee (in
the case of the Indenture), by the Guarantee Trustee (in the case of the
Guarantee) and by the Trustees (in the case of the Declaration) constitute valid
and legally binding obligations of the Company, enforceable in accordance with
their respective terms, subject to bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally, to general equitable principles (whether
considered in a proceeding in equity or at law) and an implied covenant of good
faith and fair dealing; and the Indenture, the Guarantee and the Declaration
have been duly qualified under the Trust Indenture Act;
(vii) The Trust is not an "investment company" or an
entity "controlled" by an "investment company", as such terms are defined in the
Investment Company Act of 1940, as amended; and
(viii) Such counsel has been advised by the
Commission that the Registration Statement was declared effective and that; to
such counsel's knowledge, no stop order suspending effectiveness of the
Registration Statement has been issued by the Commission and no proceeding for
that purpose is pending or threatened by the Commission.
(ix) The Registration Statement, as of its effective
date, and the Prospectus, as of its date, (other than the financial statements
and related schedules and other financial data therein and the Form T-1
Statements of Eligibility and Qualification of the Trustees, as to which such
counsel need express no opinion), comply as to form in all material respects
with requirements of the Act and the Trust Indenture Act and the rules and
regulations thereunder; although they have not independently verified and do not
assume any responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement or the Prospectus, except for
those referred to in the opinion in subsection (iii) of this Section 8(g), they
have no reason to believe that, as of its effective date, the Registration
Statement or any amendment thereto made by the Trust or the Company (other than
the financial statements and related schedules and other financial data therein
and the Form T-1 Statements of Eligibility and Qualification of the Trustees, as
to which such counsel need express no opinion), contained an untrue statement of
a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading or that, as
of its date, the Prospectus or any amendment or supplement thereto made by the
Trust or the Company (other than the financial statements and related schedules
and other financial data therein and the Form T-1 Statements of Eligibility and
Qualification of the Trustees, as to which such counsel need express no
opinion), contained an untrue statement of a material fact or omitted to state a
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading or that, as of the
Commencement Date and the Exchange Date,
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respectively, either the Registration Statement or the Prospectus or any
amendment or supplement thereto made by the Trust or the Company (other than the
financial statements and related schedules and other financial data therein and
the Form T-1 Statements of Eligibility and Qualification of the Trustees, as to
which such counsel need express no opinion), contains an untrue statement of a
material fact or omits to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; and they do not know of any contracts or other documents of a
character required to be filed as an exhibit to the Registration Statement or
required to be incorporated by reference into the Prospectus or required to be
described in the Registration Statement or the Prospectus which are not filed or
incorporated by reference or described as required.
In giving such opinion, such counsel may rely as to all
matters governed by the laws of the State of Maryland, on the opinion delivered
pursuant to Section 8(f) hereof by Xxxx X. Xxxxxxxx.
(h) Special Delaware Counsel to the Trust and the Company
satisfactory to the Dealer Manager, shall have furnished to you, the Company and
the Trust their written opinion, dated the Commencement Date and the Exchange
Date, respectively, in form and substance satisfactory to you, to the effect
that
(i) The Trust has been duly created and is validly
existing in good standing as a business trust under the Delaware Act, and all
filings required under the laws of the State of Delaware with respect to the
creation and valid existence of the Trust as a business trust have been made;
(ii) Under the Delaware Act and the Declaration, the
Trust has the power and authority to own property and conduct its business, all
as described in the Prospectus:
(iii) The Declaration constitutes a valid and legally
binding obligation of the Company and the Trustees, enforceable against the
Company and the Trustees in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles;
(iv) Under the Delaware Act and the Declaration, the
Trust has the power and authority to (a) execute and deliver, and to perform its
obligations under, this Agreement and (b) issue and perform its obligations
under the Preferred Securities and the Common Securities of the Trust;
(v) Under the Delaware Act and the Declaration, the
execution and delivery by the Trust of this Agreement, and the performance by
the Trust of its obligations
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thereunder and thereunder, have been duly authorized by all necessary action on
the part of the Trust;
(vi) The Preferred Securities have been duly
authorized by the Declaration and are duly and validly issued and, subject to
the qualifications set forth herein, fully paid and non-assessable beneficial
interests in the Trust and are entitled to the benefits provided by the
Declaration; the Securityholders, as beneficial owners of the Trust, will be
entitled to the same limitation of personal liability extended to stockholders
of private corporations for profit organized under the General Corporation Law
of the State of Delaware; provided that such counsel may note that the
Securityholders may be obligated, pursuant to the Declaration, to (a) provide
indemnity and/or security in connection with and pay taxes or governmental
charges arising from transfers or exchanges of Securities certificates and the
issuance of replacement Securities certificates and (b) provide security and
indemnity in connection with requests of or directions to the Property Trustee
(as defined in the Declaration) to exercise its rights and remedies under the
Declaration;
(vii) The Common Securities of the Trust have been
duly authorized by the Declaration and are validly issued and represent
beneficial interests in the Trust;
(viii) Under the Delaware Act and the Declaration,
the issuance of the Preferred Securities and the Common Securities of the Trust
is not subject to preemptive rights;
(ix) The issuance and sale by the Trust of Preferred
Securities and the Common Securities of the Trust, the execution, delivery and
performance by the Trust of this Agreement, the consummation by the Trust of the
transactions contemplated thereby and compliance by the Trust with its
obligations thereunder will not violate (a) any of the provisions of the
Certificate of Trust of the Trust or the Declaration, or (b) any applicable
Delaware law or administrative regulation;
(x) Assuming that the Trust derives no income from or
connected with services provided within the State of Delaware and has no assets,
activities (other than maintaining the Delaware Trustee and the filing of
documents with the Secretary of State of the State of Delaware) or employees in
the State of Delaware, no authorization, approval, consent or order of any
Delaware court or governmental authority or agency is required to be obtained by
the Trust solely in connection with the issuance and sale of the Preferred
Securities and the Common Securities of the Trust. (in rendering the opinion
expressed in this paragraph (x), such counsel need express no opinion concerning
the securities laws of the State of Delaware); and
(xi) Assuming that the Trust derives no income from
or connected with services provided within the State of Delaware and has no
assets, activities (other than maintaining the Delaware Trustee and the filing
of documents with the Secretary of State of
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the State of Delaware) or employees in the State of Delaware, the
Securityholders (other than those holders of the Securities who reside or are
domiciled in the State of Delaware) will have no liability for income taxes
imposed by the State of Delaware solely as a result of their participation in
the Trust, and the Trust will not be liable for any income tax imposed by the
State of Delaware.
(i) Tax counsel for the Trust and the Company satisfactory to
the Dealer Manager shall have furnished to you their written opinion, dated the
Commencement Date and the Exchange Date, respectively, in form and substance
satisfactory to you, to the effect that such firm confirms its opinion set forth
in the Prospectus under the caption "Certain Federal Income Tax Consequences";
(j) The Dealer Manager shall have received the favorable
opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Dealer
Manager, dated as of the Commencement Date and the Exchange Date, with respect
to the validity of the Preferred Securities, the Registration Statement, the
Prospectus and other related matters as the Dealer Manager may reasonably
require. In giving such opinion such counsel may rely, as to all matters
governed by the laws of jurisdictions other than the law of the State of New
York and Delaware, and the federal law of the United States, upon the opinions
of counsel satisfactory to the Dealer Manager. Such counsel may also state that,
insofar as such opinion involves factual matters, they have relied, to the
extent they deem proper, upon certificates of officers of the Company, trustees
of the Trust and certificates of public officials.
(k) On the Commencement Date, the Dealer Manager shall have
received from the Company's independent public accountants, in form and
substance reasonably satisfactory to the Dealer Manager and dated as of such
date, containing statements and information of the type ordinarily included in
accountants' "comfort letters" to dealer manager with respect to the financial
statements and certain financial information contained in or incorporated by
reference into the Prospectus.
(l) At the Exchange Date, the Dealer Manager shall have
received from the Company's independent public accountants, in form and
substance reasonably satisfactory to the Dealer Manager and dated as of such
dates, to the effect that such accountants reaffirm the statements made in the
letter furnished pursuant to Section 8(j).
(m) At the Exchange Date, the Preferred Securities shall have
been duly listed, subject to official notice of issuance, on the NYSE.
(n) By the Exchange Date, the Company shall have entered into
appropriate agreements with the Information Agent and the Exchange Agent for
purposes of the Exchange Offer.
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9. Termination.
(a) This Agreement shall terminate upon the earliest to occur
of (i) the Exchange Date, (ii) the date on which the Dealer Manager gives notice
to the Company and the Trust that any of the conditions specified in Section 8
have not been fulfilled as of any date such conditions are required to be
fulfilled pursuant to Section 8 or (iii) the date on which the Company
terminates or withdraws the Exchange Offer for any reason (the earliest to occur
of clauses (i), (ii) or (iii) being referred to as the "Termination Date").
(b) Notwithstanding termination of this Agreement pursuant to
subsection (a) of this Section 9, the obligations of the Company to compensate
and/or reimburse, as applicable, the Dealer Manager pursuant to Section 3, 4 or
5, the representations and warranties contained in Section 6 and the provisions
of Section 7 shall survive any termination of this Agreement.
10. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the Dealer
Manager shall be directed to it at Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated, World Financial Center, Xxxxx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000-0000, Attention: Syndicate Operations; notices to the Trust shall be
directed to it at The Bank of New York, 000 Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Corporate Trust Administrator and notices to
the Company shall be directed to it at MBNA Corporation, Xxxxxxxxxx, Xxxxxxxx
00000, Attention: General Counsel.
11. Tombstone. The Company and the Trust acknowledge that the
Dealer Manager may, with the prior review and approval of the Company, which
approval shall not be unreasonably withheld, place an announcement in such
newspapers and periodicals as the Dealer Manager may choose, stating that the
Dealer Manager is or was acting as dealer manager and financial advisor to the
Company and the Trust in connection with the Exchange Offer. The costs relating
to any such tombstone shall be borne by the Dealer Manager.
12. Survival of Certain Provisions. The representations,
warranties, indemnities and agreements of the Company and the Trust will remain
operative and in full force and effect regardless of any investigation made by
or on behalf of the Dealer Manager or any affiliate or controlling person
thereof and, subject to Section 9(b), will survive the consummation of the
Exchange Offer.
13. Governing Law. This Agreement shall be construed in
accordance with and governed by the internal laws of the State of New York.
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14. Counterparts. This Agreement may be executed in one or
more counterparts, and by different parties hereto on separate counterparts,
each of which counterparts, when so executed and delivered, shall be deemed to
be an original and all of which counterparts, taken together, shall constitute
one and the same Agreement.
15. Successors. This Agreement is made solely for the benefit
of the Dealer Manager, the Company and the Trust and, to the extent expressed,
the parties indemnified pursuant to Section 7, and no other persons shall
acquire or have any right under or by virtue of this Agreement. Nothing in this
Agreement, expressed or implied, is intended to confer on any person other than
the parties hereto or their respective successors and assigns, and, to the
extent expressly set forth herein, the parties indemnified pursuant to Section 7
hereof, any rights or remedies under or by reason of this Agreement. Without
limiting the generality of the foregoing, the parties acknowledge that nothing
in this Agreement, expressed or implied, is intended to confer on holders of the
securities of the Trust, the Company or any of its subsidiaries or creditors of
the Company or any of its subsidiaries or the respective successors and assigns
of such creditors, any rights or remedies under or by reason of this Agreement.
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If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us a counterpart hereof, whereupon this
instrument will become a binding agreement among the Company, the Trust and the
Dealer Manager in accordance with its terms.
Very truly yours,
MBNA CORPORATION.
By:
MBNA CAPITAL C
By:________________________
Name:
Title: Regular Trustee
By:________________________
Name:
Title: Regular Trustee
Confirmed and accepted as of the date first above written:
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By:________________________________________
Authorized Signatory
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