Exhibit 1
PURCHASE AGREEMENT
THE COLONIAL BANCGROUP, INC.
(a Delaware corporation); and
COLONIAL CAPITAL TRUST III
(a Delaware statutory business trust)
4,000,000 Preferred Securities
__% Preferred Securities
(Liquidation Amount $25 Per Preferred Security)
Dated: ____________, 2002
Table of Contents
Page
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SECTION 1. Representations and Warranties. .............................. 3
(a) Representations and Warranties by the Company and the Trust .. 3
(i) Compliance with Registration Requirements ........... 3
(ii) Incorporated Documents .............................. 4
(iii) Independent Accountants ............................. 5
(iv) Financial Statements ................................ 5
(v) No Material Adverse Change in Business .............. 5
(vi) Good Standing of the Company and its Significant
Subsidiary .......................................... 5
(vii) Existence of Trust .................................. 6
(viii) Authorization of Declaration ........................ 6
(ix) Common Securities ................................... 6
(x) Preferred Securities ................................ 6
(xi) Guarantee Agreement ................................. 6
(xii) Authorization of Indenture .......................... 7
(xiii) Authorization of Debentures ......................... 7
(xiv) Authorization of Agreement .......................... 7
(xv) Capitalization ...................................... 7
(xvi) Absence of Defaults and Conflicts ................... 7
(xvii) Absence of Proceedings .............................. 8
(xviii) Possession of Licenses and Permits .................. 8
(xix) Investment Company Act .............................. 9
(xx) Absence of Further Requirements ..................... 9
(b) Officers' Certificates ....................................... 9
SECTION 2. Sale and Delivery to Underwriters; Closing. .................. 9
(a) Initial Preferred Securities ................................. 9
(b) Option Preferred Securities .................................. 9
(c) Payment ...................................................... 10
(d) Denominations; Registration .................................. 11
SECTION 3. Covenants of the Company and the Trust ....................... 11
(a) Compliance with Securities Regulations and Commission
Requests ..................................................... 11
(b) Filing of Amendments ......................................... 11
(c) Delivery of Registration Statements .......................... 11
(d) Delivery of Prospectus ....................................... 12
(e) Continued Compliance with Securities Laws .................... 12
(f) Blue Sky Qualifications ...................................... 12
(g) Reporting Requirements ....................................... 13
(h) Rule 158 ..................................................... 13
(i) DTC .......................................................... 13
(j) Use of Proceeds .............................................. 13
i
(k) Restriction on Sale of Securities ............................. 13
(l) Listing ....................................................... 13
SECTION 4. Payment of Expenses. .......................................... 13
(a) Expenses ...................................................... 13
(b) Termination of Agreement ...................................... 14
SECTION 5. Conditions of Underwriters' Obligations ....................... 14
(a) Effectiveness of Registration Statement ....................... 14
(b) Opinion of Counsel for Company ................................ 14
(c) Opinion of Special Tax Counsel for the Trust and the Company .. 15
(d) Opinion of Special Delaware Counsel for the Trust ............. 15
(e) Opinion of Counsel for The Bank of New York ................... 15
(f) Opinion of Counsel for Underwriters ........................... 15
(g) Officers' Certificates ........................................ 15
(h) Accountant's Comfort Letter ................................... 16
(i) Bring-down Comfort Letter ..................................... 16
(j) Maintenance of Rating ......................................... 16
(k) Over-allotment Option ......................................... 17
(l) Additional Documents .......................................... 17
(m) Termination of Agreement ...................................... 17
(n) Approval of Listing ........................................... 18
SECTION 6. Indemnification. .............................................. 18
(a) Indemnification of Underwriters ............................... 18
(b) Indemnification of Trust by Company ........................... 19
(c) Indemnification of Trust, Company, Directors and Officers ..... 19
(d) Actions against Parties; Notification ......................... 19
(e) Settlement without Consent if Failure to Reimburse ............ 20
SECTION 7. Contribution .................................................. 20
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery ...................................................... 21
SECTION 9. Termination of Agreement. ..................................... 21
(a) Termination; General .......................................... 21
(b) Liabilities ................................................... 22
SECTION 10. Default by One or More of the Underwriters .................... 22
SECTION 11. Notices ....................................................... 23
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SECTION 12. Parties ..................................................... 23
SECTION 13. Governing Law and Time ...................................... 23
SECTION 14. Effect of Headings .......................................... 23
SCHEDULES
Schedule A-- List of Underwriters ...................... Sch. A-1
EXHIBITS
Exhibit A-- Form of Opinion of Company's Counsel ....... A-1
Exhibit B-- Form of Opinion of Trust's Special
Delaware Counsel ........................... B-1
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THE COLONIAL BANCGROUP, INC.
(a Delaware corporation)
COLONIAL CAPITAL TRUST III
(a Delaware statutory business trust)
4,000,000 Preferred Securities
__% Preferred Securities
(Liquidation Amount $25 Per Preferred Security)
PURCHASE AGREEMENT
____________, 2002
Xxxxxx Brothers Inc.
Xxxxxx, Xxxxxxxx & Company Incorporated
as Representatives of the several Underwriters
c/x Xxxxxx Brothers Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
Colonial Capital Trust III (the "Trust"), a statutory business trust
created under the Business Trust Act (the "Delaware Act") of the State of
Delaware (Chapter 38, Title 12 of the Delaware Code, 12 Del. Sections 3801 et
seq.) confirms its agreement with Xxxxxx Brothers Inc. ("Xxxxxx"), Xxxxxx,
Xxxxxxxx & Company, Incorporated ("Stifel") and each of the other Underwriters
named in Schedule A hereto (collectively the "Underwriters," which term shall
also include any underwriter substituted as hereinafter provided in Section 10
hereof), for whom Xxxxxx and Stifel are acting as Representatives (in such
capacity, the "Representatives") with respect to the issue and sale by the Trust
and the purchase by the Underwriters, acting severally and not jointly, of __%
Preferred Securities (liquidation amount $25 per preferred security) in the
respective numbers set forth in said Schedule A hereto (the "Initial Preferred
Securities"), and with respect to the grant by the Trust to the Underwriters,
acting severally and not jointly, of the option described in Section 2(b) hereof
to purchase all or any part of the additional Preferred Securities to cover
over-allotments, if any. The aforesaid 4,000,000 Initial Preferred Securities
and all or part of the 600,000 Preferred Securities subject to the option
described in Section 2(b) hereof (the "Option Preferred Securities") are
hereinafter collectively called the "Preferred Securities". The Preferred
Securities are more fully described in the Prospectus (as defined below).
The Preferred Securities will be guaranteed by The Colonial BancGroup,
Inc., a Delaware corporation (the "Company"), to the extent set forth in the
Prospectus, with respect to distributions and amounts payable upon liquidation
or redemption (the "Preferred Securities Guarantee") pursuant to the Preferred
Securities Guarantee Agreement (the "Preferred Securities
Guarantee Agreement"), to be dated as of Closing Time (as defined below),
executed and delivered by the Company and The Bank of New York (the "Guarantee
Trustee"), a New York banking corporation, not in its individual capacity but
solely as trustee, for the benefit of the holders from time to time of the
Preferred Securities. The entire proceeds from the sale of the Preferred
Securities will be combined with the entire proceeds from the sale by the Trust
to the Company of its common securities (the "Common Securities") guaranteed by
the Company, to the extent set forth in the Prospectus, with respect to
distributions and amounts payable upon liquidation or redemption pursuant to the
Common Securities Guarantee Agreement (the "Common Securities Guarantee
Agreement" and, together with the Preferred Securities Agreement, the "Guarantee
Agreements"), to be dated as of Closing Time, executed and delivered by the
Company for the benefit of the holders from time to time of the Common
Securities, and will be used by the Trust to purchase $103,092,800 aggregate
principal amount of __% Junior Subordinated Debentures due 2032 (the "Initial
Debentures") issued by the Company and, if all or part of the Option Preferred
Securities are purchased, up to approximately an additional $15,463,925
aggregate principal amount of Debentures (the "Option Debentures"). The
aforesaid Initial Debentures and Option Debentures are hereinafter collectively
called the "Debentures." The Preferred Securities and the Common Securities will
be issued pursuant to the Amended and Restated Declaration of Trust of the
Trust, to be dated as of Closing Time (the "Declaration"), among the Company, as
Sponsor, The Bank of New York, as institutional trustee (the "Institutional
Trustee"), The Bank of New York (Delaware), as Delaware trustee (the "Delaware
Trustee"), and Xxxx X. Xxxxxx, Xxxxxxx X. XxXxxxx and X. Xxxxx Oakley as regular
trustees (the "Regular Trustees," and together with the Institutional Trustee
and the Delaware Trustee, the "Trustees"), and the holders from time to time of
undivided beneficial interests in the assets of the Trust. The Debentures will
be issued pursuant to an Indenture, dated as of March __, 2002 (the "Base
Indenture"), between the Company and The Bank of New York, as trustee (the
"Indenture Trustee"), as supplemented by the First Supplemental Indenture, to be
dated as of Closing Time (the "First Supplemental Indenture," and together with
the Base Indenture, the "Indenture") between the Company and the Indenture
Trustee. The Preferred Securities, the Preferred Securities Guarantee and the
Debentures are collectively referred to herein as the "Securities." Capitalized
terms used herein without definition have the respective meanings specified in
the Prospectus.
The Company and the Trust each understand that the Underwriters propose to
make a public offering of the Preferred Securities as soon as the
Representatives deem advisable after this Agreement has been executed and
delivered.
The Company and the Trust have filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (No.
333-____), including the relevant forms of prospectus and preliminary
prospectus, covering the registration of the Securities under the Securities Act
of 1933, as amended (the "1933 Act"), and regulations of the Commission under
the 1933 Act (the "1933 Act Regulations"). Promptly after execution and delivery
of this Agreement, the Company will either (i) prepare and file a prospectus in
accordance with the provisions of Rule 430A ("Rule 430A") of the 1933 Act
Regulations, if applicable, and paragraph (b) of Rule 424 ("Rule 424(b)") of the
1933 Act Regulations or (ii) if the Company has elected to rely upon Rule 434
("Rule 434") of the 1933 Act Regulations, prepare and file a term sheet (a "Term
Sheet") in accordance with the provisions of Rule 434 and Rule 424(b). The
information included in such prospectus or in such Term Sheet, as the case may
be, that was
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omitted from such registration statement at the time it became effective but
that is deemed to be part of such registration statement at the time it became
effective (a) pursuant to paragraph (b) of Rule 430A is referred to as "Rule
430A Information" or (b) pursuant to paragraph (d) of Rule 434 is referred to as
"Rule 434 Information." Any prospectus used before such registration statement
became effective, and any prospectus that omitted, as applicable, the Rule 430A
Information or the Rule 434 Information, that was used after such effectiveness
and prior to the execution and delivery of this Agreement, is herein called a
"preliminary prospectus." Such registration statement, including the exhibits
thereto, schedules thereto, if any, the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the 1933 Act, the Rule 430A
Information and the Rule 434 Information, if any, at the time it became
effective, is herein called the "Registration Statement." Any registration
statement filed pursuant to Rule 462(b) of the 1933 Act Regulations is herein
referred to as the "Rule 462(b) Registration Statement," and after such filing
the term "Registration Statement" shall include the Rule 462(b) Registration
Statement. The final prospectus, including the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the 1933 Act, in the
form first furnished to the Underwriters for use in connection with the offering
of the Preferred Securities, is herein called the "Prospectus." If Rule 434 is
relied on, the term "Prospectus" shall refer to the preliminary prospectus
together with the Term Sheet and all references in this Agreement to the date of
the Prospectus shall mean the date of the Term Sheet. For purposes of this
Agreement, all references to the Registration Statement, the Prospectus or any
Term Sheet or any amendment or supplement to any of the foregoing shall be
deemed to include the copy filed with the Commission pursuant to its Electronic
Data Gathering, Analysis and Retrieval system ("XXXXX").
All references in this Agreement to financial statements and schedules and
other information which is "contained," "included" or "stated" in the
Registration Statement, any preliminary prospectus or the Prospectus (or other
references of like import) shall include all such financial statements and
schedules and other information which is incorporated by reference in the
Registration Statement, any preliminary prospectus or the Prospectus, as the
case may be, prior to the execution and delivery of this Agreement; and all
references in this Agreement to amendments or supplements to the Registration
Statement, any preliminary prospectus or the Prospectus shall include the filing
of any document under the Securities Exchange Act of 1934, as amended (the "1934
Act"), which is incorporated by reference in the Registration Statement, any
preliminary prospectus or the Prospectus, as the case may be, at or after the
execution and delivery of this Agreement.
SECTION 1. Representations and Warranties.
------------------------------
(a) Representations and Warranties by the Company and the Trust. The
-----------------------------------------------------------
Company and the Trust jointly and severally represent and warrant to each
Underwriter as of the date hereof and as of the Closing Time and, if applicable,
as of each Date of Delivery (as defined below) (in each case, a "Representation
Date"), and agrees with each Underwriter, as follows:
(i) Compliance with Registration Requirements. The Company meets the
requirements for use of Form S-3 under the 1933 Act. Each of the Registration
Statement and any Rule 462(b) Registration Statement has become effective under
the 1933 Act and no stop order suspending the effectiveness of the Registration
Statement or any Rule 462(b) Registration
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Statement has been issued under the 1933 Act and no proceedings for that purpose
have been instituted or are pending or, to the knowledge of the Company and the
Trust, are contemplated by the Commission, and any request on the part of the
Commission for additional information has been complied with.
At the respective times the Registration Statement, any Rule 462(b)
Registration Statement and any post-effective amendments thereto became
effective, at the date hereof, and at each Representation Date, the Registration
Statement, the Rule 462(b) Registration Statement and any amendments and
supplements thereto complied and will comply in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations and the Trust
Indenture Act of 1939 (the "1939 Act") and the rules and regulations of the
Commission under the 1939 Act (the "1939 Act Regulations") and did not and will
not contain an 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. Neither the Prospectus nor any amendment or supplement thereto,
at the time the Prospectus or any such amendment or supplement was issued or at
the Closing Time and at each Date of Delivery, if any, included or will include
an untrue statement of a material fact or omitted or will omit to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading. If Rule 434 is
used, the Company and the Trust will comply with the requirements of Rule 434.
The representations and warranties in this subsection shall not apply (A) to
statements in or omissions from the Registration Statement or Prospectus made in
reliance upon and in conformity with information furnished to the Trust or the
Company in writing by any Underwriter through Xxxxxx expressly for use in the
Registration Statement or the Prospectus or (B) to that part of the Registration
Statement that constitutes the Statements of Eligibility on Form T-1 (the "Forms
T-1") under the Trust Indenture Act of the Indenture Trustee, the Institutional
Trustee and the Guarantee Trustee.
The relevant forms of prospectus filed as part of the Registration
Statement as originally filed or as part of any amendment thereto, or filed
pursuant to Rule 424 under the 1933 Act, complied when so filed in all material
respects with the 1933 Act Regulations and any preliminary prospectus and the
Prospectus delivered to the Underwriters for use in connection with this
offering was identical to the electronically transmitted copies thereof filed
with the Commission pursuant to XXXXX, except to the extent permitted by
Regulation S-T.
(ii) Incorporated Documents. The documents incorporated or deemed to
be incorporated by reference in the Registration Statement and the Prospectus,
at the time they were or hereafter are filed with the Commission, complied and
will comply in all material respects with the requirements of the 1934 Act and
the rules and regulations of the Commission thereunder (the "1934 Act
Regulations") and, when read together with the other information in the
Prospectus, at the time the Registration Statement became effective, at the date
hereof, at the time the Prospectus or any amendment or supplement thereto was
issued and at the Closing Time and at each Date of Delivery, if any, did not and
will not include an untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
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(iii) Independent Accountants. The accountants who certified the
financial statements and supporting schedules included in the Registration
Statement and the Prospectus are independent public accountants as required by
the 1933 Act and the 1933 Act Regulations.
(iv) Financial Statements. The financial statements included in the
Registration Statement and the Prospectus, together with the related schedules
and notes, present fairly the financial position of the Company and its
consolidated subsidiaries at the dates indicated and the statement of
operations, stockholders' equity and cash flows of the Company and its
consolidated subsidiaries for the periods specified. Said financial statements
have been prepared in conformity with generally accepted accounting principles
("GAAP") applied on a consistent basis throughout the periods involved. The
supporting schedules, if any, included in the Registration Statement present
fairly in accordance with GAAP the information required to be stated therein.
The selected financial data and the summary financial information included in
the Prospectus present fairly the information shown therein and have been
compiled on a basis consistent with that of the audited financial statements
included in the Registration Statement and no pro-forma financial statements of
the Company and its subsidiaries are required to be included in the Registration
Statement under Regulation S-K.
(v) 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 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 Company or any of its subsidiaries, other than those in the
ordinary course of business, which are material with respect to the Company and
its subsidiaries considered as one enterprise and (C) there has been no dividend
or distribution of any kind declared, paid or made by the Company on any class
of its capital stock, except for dividends paid by the Company in the ordinary
course of business consistent with past practice.
(vi) Good Standing of the Company and its Significant Subsidiary.
Each of the Company and its subsidiary, Colonial Bank, an Alabama banking
corporation, has been duly incorporated and is validly existing as a corporation
or national banking association in good standing under the laws of the
jurisdiction in which it is chartered or organized, with full corporate power
and authority to own its properties and conduct its business as described in the
Prospectus and is duly qualified as a foreign corporation to transact business
and is in good standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or the
conduct of business (except where the failure to so qualify or be in good
standing would not have a Material Adverse Effect). All of the issued and
outstanding capital stock of Colonial Bank has been duly authorized and validly
issued, is fully paid and non-assessable and is owned by the Company, directly
or through subsidiaries, free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity. None of the outstanding shares of
capital stock of Colonial Bank was issued in violation of the preemptive or
similar rights of any securityholder of Colonial Bank. Other than Colonial Bank,
there is no other "significant subsidiary" (as defined in Rule 1-02 of
Regulation S-X), individually or in the aggregate, of the Company. The Company
is duly registered as a financial holding company under the Bank Holding Company
Act of 1956, as amended.
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(vii) Existence of Trust. The Trust has been duly created and is
validly existing in good standing as a business trust under the Delaware Act, is
and will be treated as a "grantor trust" for federal income tax purposes under
existing law, has the business trust power and authority to conduct its business
as presently conducted and as described in the Prospectus and is not required to
be authorized to do business in any other jurisdiction.
(viii) Authorization of Declaration. The Declaration has been duly
authorized by the Company and duly qualified under the 1939 Act and, when
validly executed and delivered by the Company and the Regular Trustees, and
assuming the due authorization, execution and delivery of the Declaration by the
Delaware Trustee and the Institutional Trustee, the Declaration will constitute
a valid and binding obligation of the Company and the Regular Trustees,
enforceable against the Company and the Regular Trustees in accordance with its
terms, except as enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar laws affecting enforcement of creditors'
rights generally and except as enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is considered in a
proceeding in equity or at law).
(ix) Common Securities. The Common Securities have been duly
authorized by the Declaration and, when issued and delivered by the Trust to the
Company in accordance with the terms of the Declaration and against payment
therefor as described in the Prospectus, will be validly issued and (subject to
the terms of the Declaration) fully paid and nonassessable undivided beneficial
interests in the assets of the Trust. The issuance of the Common Securities is
not subject to preemptive or other similar rights. No holder of Common
Securities will be subject to personal liability by reason of being such a
holder. At the Closing Time, all of the issued and outstanding Common Securities
of the Trust will be directly owned by the Company free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or equity.
(x) Preferred Securities. The Preferred Securities have been duly
authorized by the Declaration and, when authenticated in the manner provided for
in the Declaration and issued and delivered pursuant to this Agreement against
payment of the consideration set forth herein, will be validly issued and
(subject to the terms of the Declaration) fully paid and nonassessable undivided
beneficial interests in the assets of the Trust entitled to the benefits of the
Declaration and the Preferred Securities Guarantee Agreement. The issuance of
the Preferred Securities is not subject to preemptive or other similar rights.
Holders of Preferred Securities will be entitled to the same limitation of
personal liability extended to stockholders of private corporations for profit
incorporated under the General Corporation Law of the State of Delaware.
(xi) Guarantee Agreement. The Guarantee Agreement has been duly
authorized by the Company and, when validly executed and delivered by the
Company, and assuming due authorization, execution and delivery of the Preferred
Securities Guarantee Agreement by the Guarantee Trustee, will constitute a valid
and binding obligation of the Company, enforceable against the Company in
accordance with its terms, except as enforcement thereof may be limited by
bankruptcy, insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or similar laws affecting
enforcement of creditors' rights generally and except as enforcement thereof is
subject to general principles of
6
equity (regardless of whether enforcement is considered in a proceeding in
equity or at law). The Preferred Securities Guarantee Agreement has been duly
qualified under the 1939 Act.
(xii) Authorization of Indenture. The Indenture has been duly
authorized by the Company and duly qualified under the 1939 Act and, when duly
executed and delivered by the Company and assuming the due authorization,
execution and delivery of the Indenture by the Indenture Trustee, will
constitute a valid and binding agreement of the Company, enforceable against the
Company in accordance with its terms, except as enforcement thereof may be
limited by bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization, moratorium or similar laws
affecting enforcement of creditors' rights generally and except as enforcement
thereof is subject to general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law).
(xiii) Authorization of Debentures. The Debentures have been duly
authorized by the Company and, when executed, authenticated, issued and
delivered in the manner provided for in the Indenture and sold and paid for as
contemplated in this Agreement, will constitute valid and binding obligations of
the Company entitled to the benefits of the Indenture and enforceable against
the Company in accordance with their terms, except as enforcement thereof may be
limited by bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization, moratorium or similar laws
affecting enforcement of creditors' rights generally and except as enforcement
thereof is subject to general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law).
(xiv) Authorization of Agreement. This Agreement has been duly
authorized, executed and delivered by each of the Company and the Trust.
(xv) Capitalization. The authorized, issued and outstanding capital
stock of the Company is as set forth in the Prospectus in the column entitled
"Actual" under the caption "Capitalization" (except for subsequent issuances, if
any, pursuant to this Agreement, pursuant to reservations, agreements or
employee benefit plans referred to in the Prospectus or pursuant to the exercise
of convertible securities or options referred to in the Prospectus). The shares
of issued and outstanding capital stock of the Company have been duly authorized
and validly issued and are fully paid and non-assessable. None of the
outstanding shares of capital stock of the Company was issued in violation of
the preemptive or other similar rights of any securityholder of the Company.
(xvi) Absence of Defaults and Conflicts. None of the Company, its
subsidiaries or the Trust is in violation of its charter or by-laws or other
organizational documents, or in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note, lease or
other agreement or instrument to which the Company, any such subsidiary or the
Trust is a party or by which any of them may be bound, or to which any of the
property or assets of the Company, any such subsidiary or the Trust is subject,
except for such defaults that would not result in a Material Adverse Effect. The
execution and delivery by the Company and the Trust of, and the performance by
the Company and the Trust of their obligations under, this Agreement, the
Declaration, the Preferred Securities Guarantee Agreement, the Indenture and the
Debentures, the issuance and delivery by the Trust of the Common Securities and
Preferred
7
Securities, the consummation of the sale of the Preferred Securities and the
issuance and sale by the Company of the Debentures to the Trust and the
fulfillment of the terms herein and therein contemplated do not and will not,
whether with or without the giving of notice or passage of time or both,
conflict with or result in a breach of any of the terms or provisions of, or
constitute a default under (in each case material to the Company and its
subsidiaries (including the Trust) considered as a whole or as to the Trust
separately), any indenture, mortgage, deed of trust, loan agreement, guarantee,
lease, financing agreement or other similar agreement or instrument to which the
Company or any of its subsidiaries (including the Trust) is a party or by which
the Company or any of its subsidiaries (including the Trust) is bound or to
which any of the property or assets of the Company or any of its subsidiaries
(including the Trust) is subject, nor will such actions result in any violation
of the provisions of the charter or by-laws of the Company or the Declaration of
the Trust, nor will such actions result in any violation (in each case material
to the Company and its subsidiaries (including the Trust) considered as a whole
or as to the Trust separately) of any statute or any order, rule or regulation
of any court or regulatory authority or other governmental body having
jurisdiction over the Trust or the Company or any of its subsidiaries or any of
their properties. No consent, approval, authorization or order of, or
qualification with, any governmental body or agency is required for, and the
absence of which would materially affect, the performance by the Company and the
Trust of their obligations under this Agreement, the Declaration, the Preferred
Securities Guarantee Agreement and the Indenture and the issuance and sale of
the Preferred Securities and the Debentures, except such approvals as will be
obtained under the 1933 Act, the 1934 Act or the 1939 Act and as may be required
by the securities or Blue Sky laws of the various states or the securities laws
of non-U.S. jurisdictions in connection with the sale of the Preferred
Securities.
(xvii) Absence of Proceedings. There is no action, suit, proceeding,
inquiry or investigation before or brought by any court or governmental agency
or body, domestic or foreign, now pending, or, to the knowledge of the Company
or the Trust, threatened, against or affecting the Company or any subsidiary,
which is required to be disclosed in the Registration Statement (other than as
disclosed therein), or which might reasonably be expected to result in a
Material Adverse Effect, or which might reasonably be expected to materially and
adversely affect the properties or assets of the Company and its subsidiaries
taken as a whole or the consummation of the transactions contemplated in this
Agreement or the performance by the Company or the Trust of its obligations
hereunder. The aggregate of all pending legal or governmental proceedings to
which the Company or any subsidiary is a party or of which any of their
respective property or assets is the subject which are not described in the
Registration Statement, including ordinary routine litigation incidental to the
business, could not reasonably be expected to result in a Material Adverse
Effect.
(xviii) Possession of Licenses and Permits. The Company and its
subsidiaries possess such permits, licenses, approvals, consents and other
authorizations (collectively, "Governmental Licenses") issued by the appropriate
federal, state, local or foreign regulatory agencies or bodies necessary to
conduct the business now operated by them, except for such Governmental Licenses
the absence of which would not cause a Material Adverse Effect. The Company and
its subsidiaries are in compliance with the terms and conditions of all such
Governmental Licenses, except where the failure so to comply could not, singly
or in the aggregate, reasonably be expected to result in a Material Adverse
Effect. All of the Governmental Licenses are valid and in full force and effect,
except when the invalidity of such
8
Governmental Licenses or the failure of such Governmental Licenses to be in full
force and effect could not reasonably be expected to result in a Material
Adverse Effect. Neither the Company nor any of its subsidiaries has received any
notice of proceedings relating to the revocation or modification of any such
Governmental Licenses which could, singly or in the aggregate, if the subject of
an unfavorable decision, ruling or finding, reasonably be expected to result in
a Material Adverse Effect.
(xix) Investment Company Act. Neither the Company nor the Trust is,
and upon the issuance and sale of the Preferred Securities 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").
(xx) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration, qualification or
decree of, any court or governmental authority or agency is necessary or
required for the performance by the Company or the Trust of its obligations
hereunder, in connection with the offering, issuance or sale of the Securities
hereunder or the consummation of the transactions contemplated by this
Agreement, the Declaration or the Indenture or for the execution, delivery or
performance of this Agreement, the Declaration, the Preferred Securities, the
Preferred Securities Guarantee Agreement, the Indenture or the Debentures,
except such as have been already obtained or as may be required under the 1933
Act or the 1933 Act Regulations or state securities laws and except for the
qualification of the Declaration, the Preferred Securities Guarantee Agreement
and the Indenture under the 1939 Act.
(b) Officers' Certificates. Any certificate signed by any officer of the
----------------------
Company or the Trust delivered to Underwriters or to counsel for the
Underwriters shall be deemed a representation and warranty by the Company or the
Trust, respectively, to each Underwriter as to the matters covered thereby on
the date of such certificate and, unless subsequently amended or supplemented,
at each Representation Date subsequent thereto.
SECTION 2. Sale and Delivery to Underwriters; Closing.
------------------------------------------
(a) Initial Preferred Securities. On the basis of the representations and
----------------------------
warranties herein contained and subject to the terms and conditions herein set
forth, the Trust agrees to sell to each Underwriter, severally and not jointly,
and each Underwriter, severally and not jointly, agrees to purchase from the
Company, at the purchase price of $25 per Preferred Security, the number of
Initial Preferred Securities set forth in Schedule A opposite the name of such
Underwriter, plus any additional number of Initial Preferred Securities which
such Underwriter may become obligated to purchase pursuant to the provisions of
Section 10 hereof, subject, in each case, to such adjustments among the
Underwriters as they in their sole discretion shall make to eliminate any sales
or purchases of fractional securities.
(b) Option Preferred Securities. In addition, on the basis of the
---------------------------
representations, warranties and agreements herein contained and subject to the
terms and conditions herein set forth, the Trust hereby grants an option to the
Underwriters, severally and not jointly, to purchase up to an additional 600,000
Preferred Securities (the "Option Preferred Securities") at a price per
9
Option Preferred Security equal to the price per Initial Preferred Security plus
accumulated distributions, if any, from _______, 2002 to the date of delivery
and payment. Such option will expire 30 days after the date of this Agreement
and may be exercised in whole or in part from time to time only for the purpose
of covering over-allotments which may be made in connection with the offering
and distribution of the Initial Preferred Securities upon notice by Xxxxxx to
the Trust and the Company setting forth the number of Option Preferred
Securities as to which the several Underwriters are then exercising the option
and the time, date and place of payment and delivery for such Option Preferred
Securities. Any such time and date of payment and delivery (each, a "Date of
Delivery") shall be determined by Xxxxxx, the Trust and the Company, but shall
not be later than seven full business days after the exercise of said option,
nor in any event prior to the Closing Time, unless otherwise agreed upon by
Xxxxxx, the Trust and the Company. If the option is exercised as to all or any
portion of the Option Preferred Securities, each of the Underwriters, severally
and not jointly, will purchase that proportion of the total number of Option
Preferred Securities then being purchased which the number of Initial Preferred
Securities each such Underwriter has severally agreed to purchase bears to the
total number of Initial Preferred Securities, subject to such adjustments as
Xxxxxx in its discretion shall make to eliminate any sales or purchases of a
fractional number of Option Preferred Securities.
(c) Payment. As compensation to the Underwriters for their commitments
-------
hereunder and in view of the fact that the proceeds of the sale of the Preferred
Securities will be used to purchase the Debentures, the Company hereby agrees to
pay at the Closing Time and at each Date of Delivery to the Underwriters a
commission of $____ per Preferred Security purchased by the Underwriters.
Payment of the purchase price for, and delivery of certificates for, the
Preferred Securities shall be made at the offices of Sidley Xxxxxx Xxxxx & Xxxx
LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place as shall
be agreed upon by the Underwriters, the Company and the Trust, at 9:00 A.M.
(Eastern time) on the third (fourth, if the pricing occurs after 4:30 p.m.
(Eastern time) on any given day) business day after the date hereof (unless
postponed in accordance with the provisions of Section 10), or such other time
not later than ten business days after such date as shall be agreed upon by the
Underwriters, the Company and the Trust (such time and date of payment and
delivery being herein called the "Closing Time"). In addition, in the event that
the Underwriters have exercised their option to purchase any or all of the
Option Preferred Securities, payment of the purchase price for, and delivery of
such Option Preferred Securities, shall be made at the above-mentioned offices
of Sidley Xxxxxx Xxxxx & Xxxx LLP, or at such other place as shall be agreed
upon by the Underwriters, the Trust and the Company, on the relevant Date of
Delivery as specified in the notice from Xxxxxx to the Trust and the Company.
Payment shall be made to the Trust by wire transfer of immediately
available funds to the order of the Trust, against delivery to the Underwriters
of certificates for the Preferred Securities to be purchased by them. It is
understood that each Underwriter has authorized the Representatives, for its
account, to accept delivery of, receipt for, and make payment of the purchase
price for the Preferred Securities which it has agreed to purchase. Xxxxxx,
individually and not as Representative of the Underwriters, may (but shall not
be obligated to) make payment of the purchase price for the Preferred Securities
to be purchased by any Underwriter whose funds have not been received by the
Closing Time or the relevant Date of Delivery, as the case may be, but such
payment shall not relieve such Underwriter from its obligations hereunder.
10
At the Closing Time or the Date of Delivery, as the case may be, the
Company will pay, or cause to be paid, the commission payable to the
Underwriters at such time under this Section 2 to Xxxxxx on behalf of the
Underwriters by wire transfer of immediately available funds.
(d) Denominations; Registration. Certificates for the Preferred Securities
---------------------------
shall be in such denominations and registered in such names as the
Representatives may request in writing at least two full business days before
the Closing Time or the relevant Date of Delivery, as the case may be. The
certificates for the Preferred Securities will be made available for examination
and packaging by the Representatives in The City of New York not later than
10:00 A.M. (Eastern time) on the business day prior to the Closing Time or the
relevant Date of Delivery, as the case may be.
SECTION 3. Covenants of the Company and the Trust. The Company and the
--------------------------------------
Trust jointly and severally covenant with each Underwriter as follows:
(a) Compliance with Securities Regulations and Commission Requests. The
--------------------------------------------------------------
Company and the Trust, subject to Section 3(b), will comply with the
requirements of Rule 424, Rule 430A or Rule 434, as applicable, and will notify
the Underwriters immediately, and confirm the notice in writing, (i) when any
post-effective amendment to the Registration Statement shall become effective,
or any supplement to the Prospectus or any amended Prospectus shall have been
filed, (ii) of the receipt of any comments from the Commission, (iii) of any
request by the Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or for additional information and (iv)
of the issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or of any order preventing or suspending the use
of any preliminary prospectus, any prospectus, or of the suspension of the
qualification of the Preferred Securities for offering or sale in any
jurisdiction or of the initiation or threatening of any proceedings for any of
such purposes. The Company and the Trust will promptly effect the filings
necessary pursuant to Rule 424(b) and will take such steps as it deems necessary
to ascertain promptly whether the form of prospectus transmitted for filing
under Rule 424(b) was received for filing by the Commission and, in the event
that it was not, it will promptly file such prospectus. The Company and the
Trust will make every reasonable effort to prevent the issuance of any stop
order and, if any stop order is issued, to obtain the lifting thereof at the
earliest possible moment.
(b) Filing of Amendments. The Company and the Trust will give the
--------------------
Representatives notice of their intention to file or prepare any amendment to
the Registration Statement (including any filing under Rule 462(b)), any Term
Sheet or any amendment, supplement or revision to either the prospectus included
in the Registration Statement at the time it became effective or to the
Prospectus, whether pursuant to the 1933 Act, the 1934 Act or otherwise, will
furnish the Representatives with copies of any such documents to, and consult
with, the Representatives and their counsel within a reasonable amount of time
prior to such proposed filing or use, as the case may be, and will not file or
use any such document to which the Representatives or counsel for the
Representatives shall reasonably object.
(c) Delivery of Registration Statements. The Company has furnished or
-----------------------------------
will deliver to the Representatives and counsel for the Representatives, without
charge, signed copies of the Registration Statement as originally filed and of
each amendment thereto (including exhibits
11
filed therewith and, upon request, documents incorporated or deemed to be
incorporated by reference therein), and will also deliver to the
Representatives, without charge, a conformed copy of the Registration Statement
as originally filed and of each amendment thereto (without exhibits) for each of
the Representatives. The copies of the Registration Statement and each amendment
thereto furnished to the Underwriters will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to XXXXX, except
to the extent permitted by Regulation S-T.
(d) Delivery of Prospectus. The Company has delivered to each Underwriter,
----------------------
without charge, as many copies of each preliminary prospectus as such
Underwriter reasonably requested, and the Company hereby consents to the use of
such copies for purposes permitted by the 1933 Act. The Company will deliver to
each Underwriter, without charge, as many copies of the Prospectus and any
amendment or supplement thereto as such Underwriter reasonably requests, and the
Company and the Trust hereby consent to the use of such copies for purposes
permitted by the 1933 Act. The Company will furnish to each Underwriter, without
charge, during the period when the Prospectus is required to be delivered under
the 1933 Act or the 1934 Act, such number of copies of the Prospectus (as
amended or supplemented) as such Underwriter may reasonably request. The
Prospectus and any amendments or supplements thereto furnished to the
Underwriters will be identical to the electronically transmitted copies thereof
filed with the Commission pursuant to XXXXX, except to the extent permitted by
Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company and the Trust
-----------------------------------------
will comply with the 1933 Act and the 1933 Act Regulations and the 1934 Act and
the 1934 Act Regulations so as to permit the completion of the distribution of
the Securities as contemplated in this Agreement and in the Prospectus. If, at
any time when a prospectus is required by the 1933 Act to be delivered in
connection with sales of the Preferred Securities, any event shall occur or
condition shall exist as a result of which it is necessary, in the opinion of
counsel for the Underwriters and for the Company or the Trust, to amend the
Registration Statement or amend or supplement the Prospectus in order that the
Prospectus will not include any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein not
misleading in the light of the circumstances existing at the time it is
delivered to a purchaser, or if it shall be necessary, in the opinion of such
counsel, at any such time to amend the Registration Statement or amend or
supplement the Prospectus in order to comply with the requirements of the 1933
Act or the 1933 Act Regulations, the Company and the Trust will promptly prepare
and file with the Commission, subject to Section 3(b), such amendment or
supplement as may be necessary to correct such statement or omission or to make
the Registration Statement or the Prospectus comply with such requirements, and
the Company will furnish to the Underwriters such number of copies of such
amendment or supplement as the Underwriters may reasonably request.
(f) Blue Sky Qualifications. The Company and the Trust will each use its
-----------------------
best efforts, in cooperation with the Underwriters, to qualify the Preferred
Securities and the Debentures for offering and sale under the applicable
securities laws of such states and other jurisdictions (domestic or foreign) as
the Underwriters may designate and to maintain such qualifications in effect for
a period of not less than one year from the later of the effective date of the
Registration Statement and any Rule 462(b) Registration Statement; provided,
however, that neither the Company nor the Trust shall be obligated to file any
general consent to service of process or to
12
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. In each jurisdiction in which the Preferred Securities and the
Debentures have been so qualified, the Company and the Trust will file such
statements and reports as may be required by the laws of such jurisdiction to
continue such qualification in effect for a period of not less than one year
from the date hereof. The Company and the Trust will also supply the
Underwriters with such information as is necessary for the determination of the
legality of the Preferred Securities for investment under the laws of such
jurisdictions as the Underwriters may request.
(g) Reporting Requirements. The Company and the Trust, during the period
----------------------
when the Prospectus is required to be delivered under the 1933 Act or the 1934
Act, will file all documents required to be filed with the Commission pursuant
to the 1934 Act within the time periods required by the 1934 Act and the 1934
Act Regulations.
(h) Rule 158. The Company will timely file such reports pursuant to the
--------
1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for the purposes
of, and to provide the benefits contemplated by, the last paragraph of Section
11(a) of the 1933 Act.
(i) DTC. The Trust and the Company will cooperate with the Underwriters
---
and use their best efforts to permit the Preferred Securities and, if
applicable, the Debentures, to be eligible for clearance and settlement through
the facilities of The Depository Trust Company.
(j) Use of Proceeds. The Trust and the Company will use the proceeds
----------------
referred to in the Prospectus under "Use of Proceeds" in the manner described
therein.
(k) Restriction on Sale of Securities. During a period of 30 days from the
---------------------------------
date of the Prospectus, neither the Company nor the Trust will, without the
prior written consent of Xxxxxx, directly or indirectly, sell, offer to sell,
grant any option for sale of, or otherwise dispose of, any Preferred Securities,
any security convertible into or exchangeable into or exercisable for Preferred
Securities or Debentures or any debt securities substantially similar to the
Debentures or equity securities substantially similar to the Preferred
Securities. The foregoing sentence shall not apply to the Preferred Securities
or Debentures to be sold hereunder.
(l) Listing. The Company will use its best efforts to effect the listing
-------
of the Preferred Securities and, if applicable, the Debentures, on the New York
Stock Exchange.
SECTION 4. Payment of Expenses.
-------------------
(a) Expenses. The Company will pay all expenses incident to the
--------
performance of its and the Trust's obligations under this Agreement, including
(i) the preparation, printing and filing of the Registration Statement
(including financial statements and exhibits) as originally filed and of each
amendment thereto, (ii) the preparation, printing and delivery to the
Underwriters of this Agreement, any Agreement among Underwriters and such other
documents as may be required in connection with the offering, purchase, sale,
issuance or delivery of the Preferred Securities, (iii) the preparation,
issuance and delivery of the certificates for the Preferred Securities to the
Underwriters, including any stock or other transfer taxes and any
13
stamp or other duties payable upon the sale, issuance or delivery of the
Preferred Securities to the Underwriters, (iv) the fees and disbursements of the
Company's and the Trust's counsel, accountants and other advisors, (v) the
qualification of the Preferred Securities and the Debentures under state
securities laws in accordance with the provisions of Section 3(f) hereof,
including filing fees and the reasonable fees and disbursements of counsel for
the Underwriters in connection therewith and in connection with the preparation
of the Blue Sky Survey and any supplement thereto, if any, (vi) the printing and
delivery to the Underwriters of copies of any preliminary prospectus, any Term
Sheet and the Prospectus and any amendments or supplements thereto, (vii) the
printing and delivery to the Underwriters of copies of the Blue Sky Survey and
any supplement thereto, if any, (viii) the fees and expenses of any transfer
agent or registrar for the Preferred Securities, (ix) the fees and expenses of
the Indenture Trustee, the Institutional Trustee and the Guarantee Trustee,
including the fees and disbursements of their counsel, (x) any fees payable in
connection with the rating of the Preferred Securities and the Debentures, (xi)
the cost and charges associated with the approval of the Preferred Securities by
The Depository Trust Company for clearance and settlement, (xii) any filing fees
required by the National Association of Securities Dealers, Inc., and (xiii) the
fees and expenses incurred in connection with the listing of the Preferred
Securities and, if applicable, the Debentures on the New York Stock Exchange.
(b) Termination of Agreement. If this Agreement is terminated in
------------------------
accordance with the provisions of Section 5 or Section 9(a)(i) hereof, the
Company shall reimburse the Underwriters for all of their out-of-pocket
expenses, including the reasonable fees and disbursements of counsel for the
Underwriters.
SECTION 5. Conditions of Underwriters' Obligations. The obligations of the
---------------------------------------
several Underwriters hereunder are subject to the accuracy of the
representations and warranties of the Company and the Trust contained herein or
in certificates of any officer or representative of the Company or any Trustee
delivered pursuant to the provisions hereof, to the performance by the Company
and the Trust of their respective covenants and other obligations hereunder, and
to the following further conditions:
(a) Effectiveness of Registration Statement. The Registration Statement,
---------------------------------------
including any Rule 462(b) Registration Statement, has become effective and at
Closing Time no stop order suspending the effectiveness of the Registration
Statement shall have been issued under the 1933 Act or proceedings therefor
initiated or threatened by the Commission, and any request on the part of the
Commission for additional information shall have been complied with to the
reasonable satisfaction of counsel to the Underwriters. A prospectus shall have
been filed with the Commission in accordance with Rule 424(b) (or a
post-effective amendment providing such information shall have been filed and
declared effective) or, if the Company has elected to rely upon Rule 434, a Term
Sheet shall have been filed with the Commission in accordance with Rule 424(b).
(b) Opinion of Counsel for Company. At the Closing Time, the
------------------------------
Representatives shall have received the favorable opinion, dated the Closing
Time, of Miller, Hamilton, Xxxxxx & Xxxx, L.L.C., counsel for the Company,
together with signed or reproduced copies of such letter for each of the other
Underwriters, to the effect set forth in Exhibit A hereto and to such further
effect as counsel to the Underwriters may reasonably request. Such counsel may
also state that,
14
insofar as such opinion involves factual matters, they have relied, to the
extent they deem proper, upon certificates of officers of the Company and its
subsidiaries and certificates of public officials.
(c) Opinion of Special Tax Counsel for the Trust and the Company. At the
------------------------------------------------------------
Closing Time, the Representatives shall have received an opinion, dated the
Closing Time, of Miller, Hamilton, Xxxxxx & Xxxx, L.L.C., special tax counsel to
the Trust and the Company, that (i) the Debentures will be classified for United
States federal income tax purposes as indebtedness of the Company, (ii) the
Trust will be classified for United States federal income tax purposes as a
grantor trust and not as an association taxable as a corporation and (iii)
although the discussion set forth in the Prospectus under the heading "United
States Federal Income Taxation" does not purport to discuss all possible United
States federal income tax consequences of the purchase, ownership and
disposition of the Preferred Securities, such discussion constitutes, in all
material respects, a fair and accurate summary of the United States federal
income tax consequences of the purchase, ownership and disposition of the
Preferred Securities under current law. 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 and its
subsidiaries and certificates of public officials.
(d) Opinion of Special Delaware Counsel for the Trust. At the Closing
-------------------------------------------------
Time, the Representatives shall have received the favorable opinion, dated the
Closing Time, of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to
the Trust, together with signed or reproduced copies of such letter for each of
the Underwriters, to the effect set forth in Exhibit B hereto and to such
further effect as counsel to the Underwriters may reasonably request.
(e) Opinion of Counsel for The Bank of New York. At the Closing Time, the
-------------------------------------------
Representatives shall have received an opinion, dated the Closing Time, of
Xxxxx, Xxxxxx & Xxxxxx, LLP, counsel to The Bank of New York, as Institutional
Trustee, Indenture Trustee and Guarantee Trustee, in form and substance
satisfactory to the Underwriters.
(f) Opinion of Counsel for Underwriters. At the Closing Time, the
-----------------------------------
Representatives shall have received the favorable opinion, dated the Closing
Time, of Sidley Xxxxxx Xxxxx & Xxxx LLP, counsel for the Underwriters, together
with signed or reproduced copies of such letter for each of the other
Underwriters with respect to the validity of the Securities, the disclosure in
the Registration Statement and the Prospectus and such other matters as the
Underwriters may reasonably request. 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 the federal law of the United States, upon the
opinions of counsel satisfactory to the Underwriters. 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 and
its subsidiaries and certificates of public officials.
(g) Officers' Certificates. At the Closing Time, there shall not have
----------------------
been, since the date hereof or since the respective dates as of which
information is given in the Prospectus, (A) any 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, and the
Representatives shall have
15
received a certificate of the President, Chief Executive Officer or Chairman of
the Board of the Company and of the Chief Financial Officer of the Company,
dated the Closing Time, to the effect that (i) there has been no such material
adverse change, (ii) the representations and warranties contained herein are
true and correct with the same force and effect as though expressly made at and
as of the Closing Time (except for representations or warranties which by their
terms speak as of a different date or dates), (iii) the Company has complied
with all agreements and satisfied all conditions on its part to be performed or
satisfied at or prior to the Closing Time 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, or (B) any material adverse
change in the condition, financial or otherwise, or in the earnings or business
affairs of the Trust, and the Representatives shall have received a certificate
of a Regular Trustee of the Trust, dated the Closing Time, to the effect that
(i) there has been no such material adverse change, (ii) the representations and
warranties contained herein are true and correct with the same force and effect
as though expressly made at and as of the Closing Time (except for
representations or warranties which by their terms speak as of a different date
or dates), (iii) the Trust has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied at or prior to the Closing
Time 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.
(h) Accountant's Comfort Letter. At the time of the execution of this
---------------------------
Agreement, the Representatives shall have received from PricewaterhouseCoopers
LLP a letter dated such date, in form and substance satisfactory to the
Representatives, together with signed or reproduced copies of such letter for
each of the Underwriters containing statements and information of the type
ordinarily included in accountants' "comfort letters" to underwriters with
respect to the financial statements and financial information contained in the
Registration Statement and the Prospectus.
(i) Bring-down Comfort Letter. At the Closing Time, the Representatives
-------------------------
shall have received from PricewaterhouseCoopers LLP a letter, dated as of the
Closing Time, to the effect that they reaffirm the statements made in the letter
furnished pursuant to subsection (h) of this Section 5, except that the
specified date referred to shall be a date not more than three business days
prior to the Closing Time.
(j) Maintenance of Rating. At the Closing Time, the Preferred Securities
---------------------
shall be rated _____ by Standard & Poor's Ratings Group, a division of
XxXxxx-Xxxx, Inc., and _____ by Xxxxx'x Investors Service, Inc., and the Company
shall have delivered to the Underwriters a letter, dated the Closing Time, from
each such rating agency, or other evidence satisfactory to the Representatives,
confirming that the Preferred Securities have such rating; and since the
execution of this Agreement, there shall not have occurred a downgrading in or
withdrawal of the rating assigned to the Preferred Securities or any of the
Company's preferred or debt securities by any "nationally recognized statistical
rating agency," as that term is defined by the Commission for purposes of Rule
436(g)(2) under the 1933 Act, and no such organization shall have publicly
announced that it has under surveillance or review its rating of the Preferred
Securities or any of the Company's preferred or debt securities.
16
(k) Over-allotment Option. In the event that the Underwriters exercise
---------------------
their option to purchase all or any portion of the Option Preferred Securities,
the representations and warranties of the Trust and the Company contained herein
and the statements in any certificates furnished by the Trust or the Company or
any of its subsidiaries hereunder shall be true and correct as of each Date of
Delivery, and, at the relevant Date of Delivery, the Representatives shall have
received:
(i) A certificate, dated such Date of Delivery, of the Chairman, the
President, a Vice Chairman or a Vice President of the Company and of the chief
financial officer or chief accounting officer of the Company and of a
Administrative Trustee of the Trust, confirming that the certificates delivered
at the Closing Time pursuant to Section 5(g) hereof remain true and correct as
of such Date of Delivery.
(ii) The opinions of (i) Miller, Hamilton, Xxxxxx & Xxxx, L.L.C.,
counsel for the Company and (ii) Xxxxxxxx, Xxxxxx & Finger, P.A., special
Delaware, counsel to the Trust, each in form and substance reasonably
satisfactory to the Representatives, dated such Date of Delivery, relating to
the Option Preferred Securities and otherwise to the same effect as the opinions
required by Sections 5(b) and 5(d) hereof.
(iii) The opinion of Miller, Hamilton, Xxxxxx & Xxxx, L.L.C., special
tax counsel to the Trust and the Company, in form and substance reasonably
satisfactory to the Representatives, dated such Date of Delivery, relating to
the Option Preferred Securities and otherwise to the same effect as the opinions
required by Section 5(c) hereof.
(iv) The opinion of Sidley Xxxxxx Xxxxx & Xxxx LLP, counsel for the
Underwriters, dated such Date of Delivery, relating to the Option Preferred
Securities and otherwise to the same effect as the opinion required by Section
5(f) hereof.
(v) A letter from PricewaterhouseCoopers LLP, in form and substance
reasonably satisfactory to the Representatives and dated such Date of Delivery,
substantially in the same form and substance as the letter furnished to the
Underwriters pursuant to Section 5(h) hereof, except that the "specified date"
on the letter furnished pursuant to this paragraph shall be a date not more than
three business days prior to such Date of Delivery.
(l) Additional Documents. At the Closing Time and at each Date of
--------------------
Delivery, counsel for the Underwriters shall have been furnished with such
documents and opinions as they may require for the purpose of enabling them to
render the opinion referred to in Section 5(f), or in order to evidence the
accuracy of any of the representations or warranties, or the fulfillment of any
of the conditions, herein contained; and all proceedings taken by the Company
and Trust in connection with the issuance and sale of the Securities as herein
contemplated shall be satisfactory in form and substance to the Underwriters.
(m) Termination of Agreement. If any condition specified in this Section 5
------------------------
shall not have been fulfilled when and as required to be fulfilled, this
Agreement (or, with respect to the Underwriters' exercise of their
over-allotment option for the purchase of Option Preferred Securities on a Date
of Delivery after Closing Time, the obligations of the Underwriters to purchase
Option Preferred Securities on such Date of Delivery) may be terminated by the
17
Underwriters by notice to the Company at any time at or prior to the Closing
Time (or such Date of Delivery, as applicable), and such termination shall be
without liability of any party to any other party except as provided in Section
4 and except that Sections 1, 6 and 7 shall survive any such termination and
remain in full force and effect.
(n) Approval of Listing. At the Closing Time, the Preferred Securities
-------------------
and, if applicable, the Debentures shall have been approved for listing on the
New York Stock Exchange, subject only to official notice of issuance.
SECTION 6. Indemnification.
---------------
(a) Indemnification of Underwriters. Each of the Company and the Trust
-------------------------------
jointly and severally agrees to indemnify and hold harmless each Underwriter and
each person, if any, who controls any Underwriter within the meaning of Section
15 of the 1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement (or any
amendment thereto), including the Rule 430A Information and the Rule 434
Information, if applicable, or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to make the statements
therein not misleading or arising out of any untrue statement or alleged untrue
statement of a material fact included in any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto), or the omission or alleged
omission therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim whatsoever
based upon any such untrue statement or omission, or any such alleged untrue
statement or omission provided that (subject to Section 6(e) below) any such
settlement is effected with the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by the Representatives), reasonably
incurred in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, to the extent that
any such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through Xxxxxx expressly for use in the Registration Statement (or
any amendment thereto), including the Rule 430A Information and
18
the Rule 434 Information, if applicable, or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto).
(b) Indemnification of Trust by Company. The Company agrees to indemnify
-----------------------------------
the Trust against all loss, liability, claim, damage and expense whatsoever as
due from the Trust under Section 6(a) hereunder.
(c) Indemnification of Trust, Company, Directors and Officers. Each
---------------------------------------------------------
Underwriter severally agrees to indemnify and hold harmless the Company and the
Trust, the Company's directors, each of the Company's officers and Trustees of
the Trust who signed the Registration Statement, and each person, if any, who
controls the Company and the Trust within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act against any and all loss, liability, claim,
damage and expense described in the indemnity contained in subsection (a) of
this Section, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto), including the Rule 430A Information and
Rule 434 Information, if applicable, or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Company by such Underwriter
through Xxxxxx expressly for use in the Registration Statement (or any amendment
thereto) or such preliminary prospectus, if any, or the Prospectus (or any
amendment or supplement thereto).
(d) Actions against Parties; Notification. Each indemnified party shall
-------------------------------------
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by the Representatives,
and, in the case of parties indemnified pursuant to Section 6(c) above, counsel
to the indemnified parties shall be selected by the Company, in each case
reasonably acceptable to the indemnifying party. An indemnifying party may
participate at its own expense in the defense of any such action; provided,
however, that counsel to the indemnifying party shall not (except with the
consent of the indemnified party) also be counsel to the indemnified party. In
no event shall the indemnifying parties be liable for fees and expenses of more
than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or Section
7 hereof (whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party.
19
(e) Settlement without Consent if Failure to Reimburse. If at any time an
--------------------------------------------------
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(ii) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
SECTION 7. Contribution. If the indemnification provided for in Section 6
------------
hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein; then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company and the
Trust, on the one hand, and the Underwriters, on the other hand, from the
offering of the Preferred Securities pursuant to this Agreement or (ii) if the
allocation provided by clause (i) 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 and the Trust,
on the one hand, and the Underwriters, on the other hand, in connection with the
statements or omissions, which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company and the Trust, on the one
hand, and the Underwriters, on the other hand, in connection with the offering
of the Preferred Securities pursuant to this Agreement shall be deemed to be in
the same respective proportions as the total net proceeds from the offering of
the Preferred Securities pursuant to this Agreement (before deducting expenses)
indirectly received by the Company and the total underwriting discount received
by the Underwriters, in each case as set forth on the cover of the Prospectus,
or, if Rule 434 is used, the corresponding location on the Term Sheet, bear to
the aggregate initial public offering price of the Preferred Securities as set
forth on such cover.
The relative fault of the Company and the Trust, on the one hand, and the
Underwriters, on the other hand, shall be determined by reference to, among
other things, whether any such untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact relates to
information supplied by the Company or the Trust or by the Underwriters and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
The Company, the Trust and the Underwriters agree that it would not be just
and 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 which does not take account of the
equitable considerations referred to above in this Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or
20
defending against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever
based upon any such untrue or alleged untrue statement or omission or alleged
omission.
The Underwriters' respective obligations to contribute pursuant to this
Section 7 are several in proportion to the number of Preferred Securities set
forth opposite their respective names in Schedule A hereto and not joint.
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 Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of any 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 0000 Xxx) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company and Trustee of the
Trust who signed the Registration Statement, and each person, if any, who
controls the Company or the Trust within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act shall have the same rights to contribution as
the Company and the Trust. The Underwriters' respective obligations to
contribute pursuant to this Section 7 are several in proportion to the number of
Initial Preferred Securities set forth opposite their respective names in
Schedule A hereto and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.
--------------------------------------------------------------
All representations, warranties and agreements contained in this Agreement or in
certificates of officers of the Company or the Trustees of the Trust or any of
its other subsidiaries submitted pursuant hereto shall remain operative and in
full force and effect, regardless of any investigation made by or on behalf of
any Underwriter or controlling person, or by or on behalf of the Company, and
shall survive delivery of the Preferred Securities to the Underwriters.
SECTION 9. Termination of Agreement.
------------------------
(a) Termination; General. The Representatives may terminate this
--------------------
Agreement, by notice to the Company and the Trust, at any time at or prior to
the Closing Time or any relevant Date of Delivery if (i) there has been, since
the time of execution of this Agreement or since the respective dates as of
which information is given in the Prospectus, any material adverse change in the
condition, financial or otherwise, 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, (ii)
there has occurred any material adverse change in the financial markets in the
United States, any outbreak of hostilities or escalation thereof, including,
without limitation, an act of terrorism, or other calamity or crisis or any
change or development involving a prospective change in national or
international political, financial or economic conditions, in
21
each case the effect of which is such as to make it, in the judgment of the
Representatives, impracticable or inadvisable to market the Preferred Securities
or to enforce contracts for the sale of the Preferred Securities, (iii) trading
in any securities of the Company has been suspended or materially limited by the
Commission or the New York Stock Exchange, or if trading generally on the
American Stock Exchange or the New York Stock Exchange or in the Nasdaq National
Market has been suspended or materially limited, or minimum or maximum prices
for trading have been fixed, or maximum ranges for prices have been required, by
any of said exchanges or by such system or by order of the Commission, the
National Association of Securities Dealers, Inc. or any other governmental
authority, or a material disruption has occurred in commercial banking or
securities settlement or clearance services in the United States or (iv) a
banking moratorium has been declared by either Federal, New York or Alabama
authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this Section,
-----------
such termination shall be without liability of any party to any other party
except as provided in Section 4 hereof, and provided further that Sections 1, 6
and 7 shall survive such termination and remain in full force and effect.
SECTION 10. Default by One or More of the Underwriters. If one or more of
------------------------------------------
the Underwriters shall fail at the Closing Time or the relevant Date of
Delivery, as the case may be, to purchase the Preferred Securities which it or
they are obligated to purchase under this Agreement (the "Defaulted
Securities"), the Representatives shall have the right, within 24 hours
thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth; if, however, the Representatives shall not have
completed such arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the
number of Preferred Securities to be purchased on such date, each of the
non-defaulting Underwriters shall be obligated, severally and not jointly, to
purchase the full amount thereof in the proportions that their respective
underwriting obligations hereunder bear to the underwriting obligations of all
non-defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the number of
Preferred Securities to be purchased on such date, this Agreement (or, with
respect to the Underwriters' exercise of the over-allotment option for the
purchase of Option Preferred Securities on a Date of Delivery after Closing
Time, the obligations of the Underwriters to purchase, and the Trust to sell,
such Option Preferred Securities on such Date of Delivery) shall terminate
without liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section 10 shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in (i) a termination
of this Agreement or (ii) in the case of a Date of Delivery after the Closing
Time, a termination of the obligations of the Underwriters and the Trust with
respect to the related Option Preferred Securities, as the case may be, either
the Representatives or the Company shall have the right to postpone Closing Time
or the relevant Date of Delivery, as the case may be, either the
22
Representatives or the Company shall have the right to postpone the Closing Time
or the relevant Date of Delivery, as the case may be, for a period not exceeding
seven days in order to effect any required changes in the Registration Statement
or Prospectus or in any other documents or arrangements. As used herein, the
term "Underwriter" includes any person substituted for an Underwriter under this
Section 10.
SECTION 11. 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
Representatives shall be directed to Xxxxxx at Xxxxxx Brothers Inc., 000 Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, attention of Fixed Income Syndicate (with a
copy to the General Counsel); notices to the Trust shall be directed to it at
The Bank of New York, c/o The Bank of New York Trust Company of Florida, N.A.,
00000 Xxxxxxxxx Xxxxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000, attention of Corporate
Trust Administration and notices to the Company shall be directed to it at The
Colonial BancGroup, Inc., Xxx Xxxxxxxx Xxxxxx, X.X. Xxx 0000, Xxxxxxxxxx,
Xxxxxxx 00000-0000, attention of Xxxxxxx X. XxXxxxx, Senior Counsel.
SECTION 12. Parties. This Agreement shall inure to the benefit of and be
-------
binding upon the Underwriters, the Company and the Trust and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Underwriters, the Company and the Trust and their respective successors and the
controlling persons and officers, trustees and directors referred to in Sections
6 and 7 and their heirs and legal representatives, any legal or equitable right,
remedy or claim under or in respect of this Agreement or any provision herein
contained. This Agreement and all conditions and provisions hereof are intended
to be for the sole and exclusive benefit of the Underwriters, the Company and
the Trust and their respective successors, and said controlling persons and
officers, trustees and directors and their heirs and legal representatives, and
for the benefit of no other person, firm or corporation. No purchaser of
Preferred Securities from any Underwriter shall be deemed to be a successor by
reason merely of such purchase.
SECTION 13. Governing Law and Time. This Agreement shall be governed by
----------------------
and construed in accordance with the laws of the State of New York, without
regard to the conflicts of laws principles thereof. Specified times of day refer
to New York City time.
SECTION 14. Effect of Headings. The Article and Section headings herein
------------------
and the Table of Contents are for convenience only and shall not affect the
construction hereof.
23
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company and the Trust a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement among the Underwriters, the Company and the Trust in accordance with
its terms.
Very truly yours,
THE COLONIAL BANCGROUP, INC.
By:___________________________________________
Name: X. Xxxxx Oakley
Title: Chief Financial Officer
COLONIAL CAPITAL TRUST III
By:___________________________________________
Name: Xxxxxxx X. XxXxxxx
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXX BROTHERS INC.
XXXXXX, XXXXXXXX & COMPANY INCORPORATED
as Representatives of the several Underwriters
By: XXXXXX BROTHERS INC.
By:___________________________________________
Authorized Signatory
By: XXXXXX, XXXXXXXX & COMPANY INCORPORATED
By:___________________________________________
Authorized Signatory
24
SCHEDULE A
--------------------------------------------------------------------------------
Number of
Name of Underwriter Preferred Securities
----------------------------------------------------- ---------------------
Xxxxxx Brothers Inc. ................................
Xxxxxx, Xxxxxxxx & Company Incorporated .............
Xxxxxx Xxxxxx & Company, Inc. .......................
Sandler X'Xxxxx & Partners, L.P. ....................
Sterne, Agee and Xxxxx, Inc. ........................
---------------------
Total ............................ __,000,000
Sch. A-1
