Exhibit 10.2
COPELCO CAPITAL FUNDING TRUST 1998-A
___% CLASS E LEASE-BACKED NOTES
___% CLASS R-1 LEASE RESIDUAL BACKED NOTES
___% CLASS R-2 LEASE RESIDUAL BACKED NOTES
SERIES 1998-A
PLACEMENT AGENT AGREEMENT
August __, 1998
FIRST UNION CAPITAL MARKETS CORP.
000 Xxxxx Xxxxxxx Xxxxxx
Xxx Xxxxx Xxxxx Xxxxxx, XX-0
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Ladies and Gentlemen:
Copelco Capital Funding Trust 1998-A, a business trust
organized and existing under the laws of Delaware (the "Issuer") and Copelco
Capital, Inc., a corporation organized and existing under the laws of Delaware
("Copelco"), hereby agree with you as follows:
Section 1. Issuance and Sale of Notes. The Issuer has
authorized the issuance of $________ of ___% Class E Lease-Backed Notes,
$______ of ___% Class R-1 Lease Residual Backed Notes and $______ of ___%
Class R-2 Lease Residual Backed Notes (collectively, the "Class R Notes")
Series 1998-A (the "Notes"). The Notes will be issued on August __, 1998 or
such other date as we shall mutually agree upon (the "Closing Date") pursuant
to an Indenture, dated as of August __, 1998 (the "Indenture"), between the
Issuer and Manufacturers and Traders Trust Company (the "Trustee"). The Notes
are more fully described in the Private Placement Memorandum (as defined
below), a copy of which the Issuer is furnishing to you. The Notes will
evidence secured debt obligations of the Issuer. The assets of the Issuer will
include a pool of business and healthcare equipment lease contracts, including
all payments due thereunder (the "Leases") and certain interests in the
underlying equipment (the "Equipment"). The Issuer has also authorized the
issuance of $________ aggregate principal amount of the Issuer's ___% Class
A-1 Lease-Backed Notes, Series 1998-A (the "Class A-1 Notes"), $_______
aggregate principal amount of the Issuer's ___% Class A-2 Lease-Backed Notes,
Series 1998-A (the "Class A-2 Notes"), $___________ aggregate principal amount
of the Issuer's ___% Class A-3 Lease-Backed Notes, Series 1998-A (the "Class
A-3 Notes"), $________ aggregate principal amount of the Issuer's ___% Class
A-4 Lease-Backed Notes, Series 1998-A (the "Class A-4 Notes"; together with
the
Class A-1 Notes, Class A-2 Notes and Class A-3 Notes, the "Class A Notes")
$________ of the ___% Class B Lease-Backed Notes, Series 1998-A (the "Class B
Notes") $_______ of the ___% Class C Lease-Backed Notes, Series 1998-A and
$________ of the ___% Class D Leased-Backed Notes Series 1998-A. The Class A
Notes and the Class B Notes are being sold in a public offering and are not
included in this private placement. A copy of the Prospectus dated August __,
1998 (the "Prospectus") relating to such public offering is included in the
Private Placement Memorandum (as defined below). Capitalized terms used and
not defined herein shall have the meanings specified in the Indenture.
Section 2. Appointment of Placement Agent; Placement of
Notes.
(a) The Issuer hereby appoints you as exclusive Placement
Agent in connection with the placement of all of the Notes (the "Placement
Agent") for the period (the "Offering Period") from the date hereof until such
date as may be agreed between us (the "Offering Termination Date"). Subject to
the performance in all material respects by the Issuer of its obligations to
be performed hereunder, and to the completeness and accuracy in all material
respects of all of the representations and warranties of the Issuer and
Copelco contained herein, you hereby accept such agency and agree on the terms
and conditions herein set forth to purchase, or to find qualified purchasers
("Purchasers") for, all of the Notes on the Closing Date. Your agency
hereunder is not terminable, except as provided herein, by the Issuer or
Copelco without your permission and shall continue until the close of business
on the Offering Termination Date.
(b) In the event the offering is commenced but no Notes
shall have been subscribed for prior to the Offering Termination Date, your
agency and this Agreement shall terminate without obligation on your part or
on the part of the Issuer except as provided in Section 7 hereof and except
that the indemnification and contribution referred to in Section 8 hereof
shall continue after such termination of this Agreement.
Section 3. Delivery. Delivery of the Notes to the purchasers
thereof (the "Purchasers") shall be made at the offices of Xxxxx Xxxxxxxxxx,
0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx at 10:00 A.M., New York time,
on the Closing Date. The denominations of the Notes to be delivered and the
name in which each such Note is to be registered will be set forth in a notice
to be delivered by you on behalf of the Purchasers to the Trustees. The Issuer
agrees to have the Notes available for inspection, checking and packaging by
the Placement Agent in New York, New York, not later than 1:00 P.M., New York
City time, on the Business Day prior to the Issuance Date.
Section 4. Representations and Warranties.
(a) The Issuer hereby represents and warrants to, and agrees
with you, as follows:
(i) The Issuer, with your assistance, will prepare and
furnish to you by the Closing Date a copy of a Private Placement
Memorandum dated August __, 1998 relating to the Class E Notes and a copy
of a Private Placement Memorandum dated August __, 1998 related to the
Class R Notes (collectively, as supplemented and amended, the "Private
Placement Memorandum") relating to the Notes. The Private Placement
2
Memorandum does not, as its date, and as of the date hereof will not,
contain any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
provided, however, that the Issuer makes no representations or warranties
as to the Underwriting Information (as defined in Section 8(b) hereof).
(ii) This Agreement has been duly authorized, executed and
delivered by the Issuer and constitutes a legal, valid and binding
agreement of the Issuer enforceable in accordance with its terms, except
that the provisions hereof relating to indemnification of the Placement
Agent may be subject to limitations of public policy.
(iii) Each of the Indenture and the Sales and Servicing
Agreement have been duly authorized by the Issuer, and, when executed and
delivered by the Issuer, will constitute the legal, valid and binding
obligation of the Issuer, enforceable in accordance with its terms.
(iv) The issuance of the Notes has been duly authorized by
the Issuer and, when duly and validly executed, authenticated and
delivered in accordance with the Indenture, will be the legal, valid and
binding obligations of the Issuer, enforceable in accordance with their
terms, and entitled to the benefits of the Indenture.
(v) The issue and sale of the Notes and the performance of
this Agreement, the Indenture and the Sales and Servicing Agreement by
the Issuer will (A) not conflict with or result in a breach of, and will
not constitute a default under any of the provisions of, its certificate
of incorporation or any law, governmental rule or regulation, or any
judgment, decree or order binding on the Issuer or its properties, or any
of the provisions of any indenture, mortgage, deed of trust, contract or
other agreement or instrument to which the Issuer is a party or by which
it is bound or (B) not result in the creation or imposition of any
Adverse Claim and no consent, approval, authorization, order,
registration or qualification of or with any such court or governmental
agency or body is required for the issue and sale of the Notes or the
consummation by the Issuer of the transactions contemplated by this
Agreement, except such consents, approvals, authorizations, registrations
or qualifications as may be required under state securities or Blue Sky
laws in connection with the purchase of the Notes by the Purchasers.
(vi) The Issuer is not, and will not, as of the Issuance
Date, be an "investment company" under the Investment Company Act of
1940, as amended (the "1940 Act").
(vii) The Issuer hereby makes and repeats each of the
representations and warranties set forth in Article Eleven of the
Indenture. Such representations and warranties are incorporated by
reference in this Section 4(a) and the Placement Agent and the Purchasers
may rely thereon as if such representations and warranties were fully set
forth herein.
3
(b) Copelco hereby represents and warrants to and agrees
with the Placement Agent as follows:
(i) This Agreement has been duly authorized, executed and
delivered, the Sales and Servicing Agreement has been duly authorized,
executed and delivered, and this Agreement constitutes, and when executed
and delivered, the Sales and Servicing Agreement will constitute, the
legal, valid and binding obligations of Copelco, enforceable in
accordance with their respective terms, except that the provisions hereof
relating to indemnification of the Placement Agent may be subject to
limitations of public policy.
(ii) The performance of this Agreement by Copelco, and the
consummation by Copelco of the transactions herein contemplated, will (A)
not conflict with or result in a breach of, and will not constitute a
default under any of the provisions of its certificate of incorporation
or by-laws or any law, governmental rule or regulation, or any judgment,
decree or order binding on Copelco or its properties, or any of the
provisions of any indenture, mortgage, deed of trust, contract or other
agreement or instrument to which Copelco is a party or by which it is
bound or (B) not result in the creation or imposition of any Adverse
Claim and no consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body is
required for the consummation by Copelco of the transactions contemplated
by this Agreement, except such consents, approvals, authorizations,
registrations or qualifications as may be required under state securities
or Blue Sky laws in connection with the purchase of the Notes by the
Purchasers.
(iii) Copelco hereby makes and repeats the representations
and warranties set forth in Section 2 of the Sales and Servicing
Agreement. Such representations and warranties are incorporated by
reference in this Section 4(b), and the Placement Agent and the
Purchasers may rely thereon as if such representations and warranties
were fully set forth herein.
(iv) Copelco represents and warrants it has delivered to the
Placement Agent complete and correct copies of its balance sheet and
statements of income and retained earnings reported by Copelco Capital
Inc. and Copelco Financial Services Group, Inc. (the "Copelco Entities")
for the year ended December 31, 1996. Except as set forth in or
contemplated in the Final Memorandum, there has been no material adverse
change in the condition (financial or otherwise) of the Copelco Entities
since December 31, 1996.
(v) Any taxes, fees and other governmental charges arising
from the execution and delivery of this Agreement, the Sales and
Servicing Agreement and the Indenture and in connection with the
execution, delivery and issuance of the Notes and with the transfer of
the Leases and the Equipment, have been paid or will be paid by Copelco.
(c) Each of the Issuer and Copelco represents and warrants
to you that there is no pending or threatened action, suit or proceeding
against or affecting it in any court or tribunal or before any arbitrator of
any kind or before or by any Governmental Authority (i) asserting the
invalidity of this Agreement, the Sales and Servicing Agreement, the Indenture
or the Notes, (ii) seeking to prevent the issuance of the Notes or the
consummation of any of the transactions
4
contemplated by this Agreement, the Sales and Servicing Agreement or the
Indenture or (iii) seeking any determination or ruling that might materially
and adversely affect (A) its performance of its obligations under this
Agreement, the Sales and Servicing Agreement or the Indenture (as applicable)
or (B) the validity or enforceability of this Agreement, the Sales and
Servicing Agreement, the Indenture or the Notes.
(d) Each of the Placement Agent represents and warrants to,
and agrees with Copelco and the Issuer that:
(i) It understands that the Notes have not been registered
under the 1933 Act, in reliance upon the exemption provided in Section
4(2) of the 1934 Act, and it hereby covenants and agrees that it will not
offer or sell the Notes in a manner that would cause such exemption to be
inapplicable. Such Placement Agent has not utilized and will not utilize
any form of general solicitation or general advertising in connection
with the placement of the Notes, including any advertisement, article,
notice or other communication published in any newspaper, magazine or
similar medium or broadcast over television or radio, or conduct any
seminar or meeting with respect to the Notes whose attendees have been
invited by general solicitation or advertising.
(ii) The Notes will only be offered and sold by the
Placement Agent to Purchasers to whom the Placement Agent have delivered
a Final Memorandum.
(iii) It is understood that Copelco and the Issuer have only
authorized the Placement Agent to distribute the Private Placement
Memorandum, the information specifically referred to therein and any
other documents authorized by Copelco or the Issuer and each of the
Placement Agent agrees and covenants to Copelco and the Issuer that it
shall offer and sell the Notes only pursuant to delivery of such
materials.
(iv) The Placement Agent shall advise Copelco and the Issuer
of the jurisdictions in which it desires to sell the Notes.
Section 5. Covenants of the Issuer and Copelco. The Issuer
and Copelco, jointly and severally, hereby covenant and agree with you as
follows:
(a) The Issuer will promptly advise the Placement Agent of
the receipt by the Issuer of any notification with respect to the suspension
of the qualification of the Notes for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose. The Issuer will
not prepare any amendment or supplement to the Final Memorandum to which the
Placement Agent reasonably object.
(b) If, at any time when a Final Memorandum relating to the
Notes is to be delivered to a potential Purchaser, any event occurs as a
result of which the Final Memorandum as then supplemented would include any
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, or if it shall be necessary, in
the opinion of the Placement Agent, to supplement such Final Memorandum, the
Issuer promptly will prepare and deliver to the Placement Agent or any such
potential Purchaser, subject to paragraph (a) of this Section 5, a supplement
which will correct such statement or omission.
5
(c) The Issuer understands that pursuant to its Subscription
Agreement each potential Purchaser may request documents or information in
addition to those referred to in Section 5(b) relating to Copelco, the Issuer,
and the Leases. Copelco will provide to you and such Purchaser all such
documents and opportunities to meet with officials of Copelco as such
potential Purchasers shall reasonably request or have requested; it being
understood that all such documents and disclosures may be subject to
appropriate confidentiality agreements. Upon request, Copelco and the Issuer
will make available to Noteholders and to the Placement Agent such information
as will satisfy the provisions of Rule 144A under the Securities Act in order
to effect resales of the Notes pursuant thereto.
(d) Copelco and the Issuer will furnish to the Placement
Agent, so long as delivery of a placement memorandum is desired by the
Placement Agent, as many copies of the Private Placement Memorandum relating
to the Notes and any supplement thereto as the Placement Agent may reasonably
request.
(e) Copelco and the Issuer will take all reasonable actions
requested by the Placement Agent to arrange for the qualification of the Notes
for sale under the laws of such jurisdictions within the United States and as
the Placement Agent may designate, will maintain such qualifications in effect
so long as required for the completion of the placement of the Notes;
provided, that the Issuer shall not be required to register the Notes under
the Securities Act in connection therewith the Issuer shall not be required to
qualify as a foreign corporation doing business in any jurisdiction.
(f) For so long as the Notes are outstanding, the Issuer and
Copelco shall deliver to the Placement Agent by first-class mail and as soon
as practicable a copy of all reports and notices delivered to the Trustee or
the Noteholders under the Indenture.
(g) For so long as the Notes are outstanding, the Issuer and
Copelco will furnish to the Placement Agent as soon as practicable after
filing any other information concerning the Issuer or Copelco filed with any
government or regulatory authority which is otherwise publicly available.
(h) To the extent, if any, that any rating provided with
respect to the Notes set forth in Section 6(e) hereof is conditional upon the
furnishing of documents reasonably available to the Issuer or Copelco, the
Issuer and Copelco shall furnish such documents.
Section 6. Conditions of Placement Agents' Obligation. The
obligations of the Placement Agent to act as Placement Agent for the Notes on
the Closing Date shall be subject to the accuracy in all material respects of
the representations and warranties of the Issuer and Copelco herein, in the
Sales and Servicing Agreement and in the Indenture, to the performance by the
Issuer and Copelco in all material respects of their obligations hereunder and
to the following additional conditions:
(a) The Issuer and Copelco shall each have delivered a
certificate (an "Officer's Certificate"), dated the Closing Date, signed by
its President and its Chief Financial Officer to the effect that:
6
(i) the representations and warranties made by the Issuer or
Copelco (as the case may be) in this Agreement, the Indenture and the
Sales and Servicing Agreement are true and correct in all material
respects at and as of the date of such Officer's Certificate as if made
on and as of such date (except to the extent they expressly relate to an
earlier date);
(ii) the Issuer or Copelco (as the case may be) has complied
with all the agreements and satisfied all the conditions on its part to
be performed or satisfied under this Agreement, the Indenture and the
Sales and Servicing Agreement at or prior to the date of such Officer's
Certificate;
(iii) nothing has come to such officer's attention that
would lead him to believe that the Final Memorandum contains any untrue
statement of a material fact or omits to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and
(iv) such officer is not aware of any notification with
respect to the suspension of the qualification of the Notes for sale in
any jurisdiction or the envision or threatening of any proceeding for
that purpose.
(b) You shall have received from Xxxxxxx X. Xxxxxxx, Esq., a
favorable opinion (subject to customary and usual qualifications), dated the
Closing Date and reasonably satisfactory in form and substance to the
Placement Agent and their counsel with respect to, or to the effect that: (i)
the due formation and qualification of each of the Issuer and Copelco and that
the Issuer and Copelco, as applicable, have the corporate power and authority
to perform this Agreement, the Sales and Servicing Agreement and the Indenture
and the transactions contemplated herein and therein; (ii) the due
authorization, execution, delivery and enforceability of this Agreement, the
Sales and Servicing Agreement and the Indenture, as applicable, by the Issuer
and Copelco; (iii) each of this Agreement, the Sales and Servicing Agreement
and the Indenture are the legal, valid and binding obligation of the Issuer
and Copelco, as applicable, enforceable against each of them in accordance
with its terms (subject to customary exceptions relating to bankruptcy and
laws affecting creditors' rights); (iv) the Notes have been duly authorized,
executed and delivered by the Issuer and constitute the legal, valid and
binding obligations of the Issuer, enforceable in accordance with their terms
(subject to customary exceptions as to bankruptcy and laws affecting
creditors' rights) and are entitled to the benefits of the Indenture; (v) the
issuance and sale of the Notes by the Issuer, the performance of this
Agreement by the Issuer and Copelco and the compliance by the Issuer and
Copelco with the terms of the Indenture and the Sales and Servicing Agreement,
as applicable, and the consummation of the transactions contemplated herein
and therein will not conflict with the organizational documents of the Issuer
or Copelco, or to the best of such counsel's knowledge, any other contracts to
which the Issuer or Copelco is party or by which either of them is bound; (vi)
to the best of such counsel's knowledge, there is no legal or governmental
proceeding threatened or pending against the Issuer or Copelco which would
have a material adverse effect on the issuance of the Notes; (vii) (other than
with respect to financial data, as to which such counsel need not express an
opinion) nothing has come to such counsel's attention that leads such counsel
to believe that the Final Memorandum (as of its date or the Closing Date)
contained or contains an untrue statement of a material fact or omitted or
omits to state a material fact required to be stated therein or necessary to
make the statements therein, in light of the
7
circumstances under which they were made, not misleading; (viii) in the event
a court disregarded the intent of the parties and characterized the transfers
of the Leases and the Equipment (or interests therein) by Copelco to the
Issuer as a pledge of collateral rather than as a sale or absolute assignment,
the Sales and Servicing Agreement and accompanying documentation creates a
valid security interest in the Leases and the Equipment (or interests therein)
under New Jersey law; and (ix) assuming no prior financing statements covering
the Leases are in effect, that financing statements covering the Leases and
naming (A) the Issuer as secured party and Copelco as debtor and (B) the
Issuer as debtor and the Trustee as secured party are being filed in the
appropriate filing offices of the State of New Jersey, and that the Trustee
has taken possession of the Leases, the Trustee has a first priority perfected
security interest in all right, title and interest of Copelco and the Issuer
in the Leases. In rendering such opinion, counsel may rely, to the extent
deemed proper and as stated therein, as to matters of fact on certificates of
responsible officers of the Issuer or Copelco and public officials and as to
matters of state law of jurisdictions other than the jurisdictions in which
such counsel is admitted to practice, on opinions of local counsel
satisfactory to the Placement Agent.
(c) The Placement Agent shall have received from Xxxxx
Xxxxxxxxxx, special counsel for the Placement Agent, such opinion or opinions,
dated the Issuance Date, with respect to the validity of the Notes, the Final
Memorandum, true sale, nonconsolidation and other related matters as the
Placement Agent may require.
(d) On the date hereof and at the Closing Date, KMPG-Peat
Marwick shall have furnished to the Placement Agent a letter or letters, dated
the date of this Agreement and the Closing Date, respectively, in form and
substance satisfactory to the Placement Agent.
(e) The Notes shall have been rated at least BBB+ by Xxxx &
Xxxxxx Credit Rating Co. ("DCR") and Fitch Investors Service, L.L.P.
("Fitch"), respectively, which rating shall not have been reduced or withdrawn
as evidenced by the Officer's Certificate referred to in Section 6(b).
(f) Counsel to the Trustee shall have delivered a favorable
opinion (subject to customary and usual exceptions), dated the Closing Date,
as the case may be, and satisfactory in form and substance to the Placement
Agent and counsel for the Placement Agent and to the Issuer and Copelco and
their counsel with respect to, or to the effect that: (i) the due
incorporation and valid existence of the Trustee, (ii) the due authorization,
execution and delivery by the Trustee of the Indenture, (iii) the Indenture is
the legal, valid and binding obligation of the Trustee, enforceable against
the Trustee in accordance with its terms (subject to customary and usual
exceptions) and (iv) the execution, delivery and performance of the Indenture
will not conflict with the Trustee's organizational documents.
(g) All proceedings in connection with the transactions
contemplated by this Agreement and all documents incident hereto shall be
reasonably satisfactory in form and substance to you, and you and your special
counsel shall have received such other information, certificates and documents
as you or they may reasonably request.
(h) The issuance and sale of the Class A Notes shall have
occurred.
8
Section 7. Fees and Expenses. In consideration of the
Placement Agent' services in acting as exclusive Placement Agent for the
placement of the Notes on a firm commitment basis, the Company hereby agrees
to pay to the Placement Agent a fee in an amount equal to 0.86% of the Initial
Principal Amount. In the event that (x) no closing of the sale of the Notes
occurs by the Closing Date through no fault of the Issuer or Copelco or (y)
the Placement Agent terminate the engagement pursuant to Section 10 or because
any conditions precedent in Section 6 (other than Section 6(d)) have not been
fulfilled, then the Issuer and Copelco's liability to the Placement Agent
shall be limited to the reimbursement of the Placement Agent' expenses
incurred through the date of termination for its reasonable out-of-pocket and
incidental expenses. In addition, whether or not the Notes are issued or sold:
(a) Copelco shall pay the reasonable fees and expenses
associated with the transactions contemplated hereby not paid by the Placement
Agent in accordance with the provisions of Section 7(b), including, without
limitation, the following fees and expenses:
(i) Rating Agency fees payable to DCR and Fitch with
respect to each of their ratings of the Notes;
(ii) Fees charged by the firm of independent public
accountants referred to in Section 6(d);
(iii) Filing fees in connection with the transactions
contemplated hereby;
(iv) Fees and expenses of counsel to the Placement Agent;
(v) Trustee's fees and fees of counsel to the Trustee;
(vi) the costs and expenses of printing any Private
Placement Memorandum;
(vii) the costs of printing or reproducing this Agreement,
the Blue Sky Survey and any other documents in connection with the offer,
sale and delivery of the Notes;
(viii) all expenses in connection with the qualification of
the Notes under state securities laws as provided in Section 4(a)(v),
including the fees and disbursements of counsel in connection with the
Blue Sky Survey;
(ix) the filing fees incident to securing any required
review with the National Association of Securities Dealers, Inc.;
(x) the cost of preparing the Notes;
(xi) the cost or expenses of any transfer agent or
registrar; and
(xii) all other costs and expenses incident to the
performance of their obligations hereunder which are not otherwise
specifically provided for in this Section 7; provided, however, that
Copelco does not hereby waive any rights to reimbursement from
9
the Placement Agent in the event of the Placement Agent' failure to perform in
accordance with this Agreement.
(b) It is understood and agreed that, except as provided in
Sections 8 and 9, the Placement Agent will pay securities transfer taxes on
resale of any of the Notes by them, and any expenses connected with any
placements they may make.
Section 8. Indemnification and Contribution.
(a) The Issuer and Copelco, jointly and severally, will
indemnify and hold harmless each Placement Agent against any losses, claims,
damages or liabilities, joint or several, to which such Placement Agent may
become subject, under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon an untrue statement or alleged untrue statement of a material
fact contained in any Private Placement Memorandum, or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will promptly
reimburse each Placement Agent for any legal or other expenses reasonably
incurred by such Placement Agent in connection with investigating, preparing
to defend or defending, or appearing as a third party witness in connection
with, any such action or claim; provided, however, that the Issuer and Copelco
shall not be liable in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in the Private
Placement Memorandum or any such amendment or supplement in reliance upon and
in conformity with the Underwriting Information.
(b) The Placement Agent agrees severally and not jointly to
indemnify and hold harmless the Issuer and Copelco against any losses, claims,
damages or liabilities to which the Issuer or Copelco may become subject,
under the Securities Act or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon
an untrue statement or alleged untrue statement of a material fact contained
in the Private Placement Memorandum, or any amendment or supplement thereto,
or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made in the Private Placement Memorandum or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Issuer or Copelco by or on behalf of such
Placement Agent expressly for use therein; and will reimburse the Issuer or
Copelco for any legal or other expenses reasonably incurred by the Issuer or
Copelco in connection with the investigating, preparing to defend or
defending, or appearing as a third party witness in connection with, any such
action or claim. The Issuer and Copelco acknowledge that the statements set
forth in the last paragraph of the cover page and under the heading
"Underwriting" in the Prospectus, which is included with the Private Placement
Memorandum, constitute the only information furnished in writing by or on
behalf of the Placement Agent for inclusion in the Private Placement
Memorandum (the "Underwriting Information"), and each of you confirm that such
statements are correct.
10
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against
the indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have
to any indemnified party otherwise than under such subsection. In case any
such action shall be brought against any indemnified party and it shall notify
the indemnifying party of the commencement thereof, the indemnifying party
shall be entitled to participate therein and, to the extent that it shall
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel satisfactory to such indemnified party;
provided, however, that if the defendants in any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have been advised by counsel that representation of such indemnified party and
the indemnifying party may be inappropriate under applicable standards of
professional conduct due to actual or potential differing interests between
them, the indemnified party or parties shall have the right to select separate
counsel to defend such action on behalf of such indemnified party or parties.
It is understood that the indemnifying party shall, in connection with any
such action or separate but substantially similar or related actions in the
same jurisdiction arising out of the same general allegations or
circumstances, be liable for the reasonable fees and expenses of only one
separate firm of attorneys together with appropriate local counsel at any time
from all indemnified parties not having actual or potential differing
interests with any other indemnified party. Upon receipt of notice from the
indemnifying party to such indemnified party of its election so to appoint
counsel to defend such action and approval by the indemnified party of such
counsel, the indemnifying party will not be liable for any settlement entered
into without its consent and will not be liable to such indemnified party
under this Section 8 for any legal or other expenses subsequently incurred by
such indemnified party in connection with the defense thereof unless (i) the
indemnified party shall have employed separate counsel in accordance with the
proviso to the next preceding sentence, (ii) the indemnifying party shall not
have employed counsel reasonably satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after notice of
commencement of the action or (iii) the indemnifying party has authorized the
employment of counsel for the indemnified party at the expense of the
indemnifying party; and except that, if clause (i) or (iii) is applicable,
such liability shall be only in respect of the counsel referred to in such
clause (i) or (iii). Notwithstanding the immediately preceding sentence and
the first sentence of this paragraph, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel, the indemnifying party agrees that it shall
be liable for any settlement of any proceeding effected without its written
consent if (i) such settlement is entered into more than 30 days after receipt
by such indemnifying party of the aforesaid request and (ii) such indemnifying
party shall not have reimbursed the indemnified party in accordance with such
request prior to the date of such settlement.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) referred to
therein, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages
or liabilities (or actions or proceedings in respect thereof) in such
proportion as is appropriate to reflect the relative benefits received by the
Issuer and Copelco on the one hand and the Placement Agent on the other from
the offering of the Notes. If, however, the allocation provided by the
immediately preceding
11
sentence is not permitted by applicable law or if the indemnified party failed
to give the notice required under subsection (c) above, then each indemnifying
party shall contribute to such amount paid or payable by such indemnified
party in such proportion as is appropriate to reflect not only such relative
benefits but also the relative fault of the Issuer or Copelco on the one hand
and the respective Placement Agent on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof), as well as any
other relevant equitable considerations. The relative benefits received by the
Issuer or Copelco on the one hand and each of the Placement Agent on the other
shall be deemed to be in the same proportion as the total net proceeds from
the offering (before deducting expenses) received by the Issuer and Copelco
bear to the total commissions received by the Placement Agent. The relative
fault shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by
the Issuer or Copelco or one or both of the Placement Agent on the other and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. The Issuer, Copelco and the
Placement Agent agree that it would not be just and equitable if contributions
pursuant to this subsection (d) were determined by pro rata allocation or by
any other method of allocation which does not take into account the equitable
considerations referred to above in this subsection (d). The amount paid or
payable by an indemnified party as a result of the losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) referred to above
in this subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating, preparing to defend or defending, or appearing as a third party
witness in connection with, any such action or claim. Notwithstanding the
provisions of this subsection (d), neither of the Placement Agent shall be
required to contribute any amount in excess of the fee paid to the respective
Placement Agent pursuant to Section 7 hereof. No person guilty of fraudulent
misrepresentation (within the meaning of Section 10(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
(e) The obligations of the Issuer and Copelco under this
Section 8 shall be in addition to any liability which the Issuer or Copelco
may otherwise have and shall extend, upon the same terms and conditions, to
each person, if any, who controls the Placement Agent within the meaning of
the Securities Act; and the obligations of the Placement Agent under this
Section 8 shall be in addition to any liability which the Placement Agent may
otherwise have and shall extend, upon the same terms and conditions, to each
officer and director of the Issuer and Copelco and to each person, if any, who
controls the Issuer or Copelco within the meaning of the Securities Act.
Section 9. Survival. The respective representations,
warranties and agreements of the Issuer, Copelco and the Placement Agent set
forth or made pursuant to this Agreement will remain in full force and effect,
notwithstanding any investigation heretofore or hereafter made by or on behalf
of the Issuer, Copelco or the Placement Agent, and such representations,
warranties and agreements made by the Issuer and Copelco shall survive the
delivery and payment for the Notes. The provisions of Section 7 and 8 shall
survive the termination or cancellation of this Agreement.
12
(a) No other person will have any right or obligation
hereunder, except that the provisions of this Agreement, including, without
limitation, the representations and warranties and the covenants and
agreements of the Issuer and Copelco contained herein are intended to be for
the benefit of all Purchasers and shall be enforceable against Copelco by any
such Purchaser, whether or not an express assignment to such Purchaser of
rights under this Agreement has been made by you, any intervening Purchaser or
any of your or their successors and assigns.
Section 10. Termination.
(a) This Agreement may be terminated by you at any time upon
the giving of notice at any time prior to the Closing Date: (i) if there has
been, since December 31, 1996, any material adverse change in the condition,
financial or otherwise, of Copelco or the Issuer, or in the earnings, business
affairs or business prospects of Copelco or the Issuer, whether or not arising
in the ordinary course of business, or (ii) if there has occurred any outbreak
or escalation of hostilities or other calamity or crisis the effect of which
on the financial markets of the United States is such as to make it, in your
reasonable judgment, impracticable to market the Notes or enforce contracts
for the sale of the Notes, or (iii) if trading generally on either the
American Stock Exchange or the New York Stock Exchange has been suspended, or
minimum or maximum prices for trading have been fixed, or maximum ranges for
prices for securities have been required, by either of said exchanges or by
order of the Commission or any other governmental authority, or (iv) if a
banking moratorium has been declared by either federal or New York
authorities. In the event of any such termination, no party will have any
liability to any other party hereto, except as otherwise provided in Section 7
or 8 hereof.
(b) This Agreement may not be terminated by the Issuer or
Copelco, except in accordance with law, without the written consent of the
Placement Agent.
(c) Notwithstanding anything herein to the contrary, in the
event the Issuer or Copelco does not perform any obligation under this
Agreement or any representation and warranty hereunder is incomplete or
inaccurate in any material respect, this Agreement and all of the Placement
Agent' obligations hereunder may be immediately cancelled by the Placement
Agent by notice thereof to the Issuer or Copelco. Any such cancellation shall
be without liability of any party to any other party except that the
provisions of Sections 8 and 9 hereof shall survive any such cancellation.
Section 11. Notices. All communications provided for or
permitted hereunder shall be in writing and shall be deemed to have been duly
given if personally delivered to or mailed by certified or registered mail,
postage prepaid, or transmitted by telex or telegraph and confirmed by a
similar mailed writing, if to you, addressed to you, at the address first
stated in this Agreement, or to such other address as you may designate in
writing to the Issuer and Copelco, if to Copelco addressed to Copelco at East
Gate Center, 000 Xxxx Xxxx Xxxxx, Xxxxx Xxxxxx, Xxx Xxxxxx 00000-0000 and if
to the Issuer addressed to the Issuer at Wilmington Trust Company, c/o
Wilmington Trust Company, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxx Xxxxxx Xxxxx,
Xxxxxxxxxx, Xxxxxxxx 19890 with a copy to Copelco or to such other address as
Copelco or the Issuer may have designated in writing to you.
13
Section 12. Successors. This Agreement will inure to the
benefit of and be binding upon the Issuer and Copelco and their successors and
assigns and the Placement Agent and its successors and assigns.
Section 13. Entire Agreement. This Agreement and the
documents referred to herein and to be delivered pursuant hereto constitute
the entire agreement between the parties pertaining to the subject matter
hereof and supersede all prior agreements, understandings, negotiations and
discussions, whether oral or written, of the parties.
Section 14. Governing Law.
(a) THIS AGREEMENT IS TO BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE INTERNAL LAWS (AS OPPOSED TO CONFLICT OF LAWS PROVISIONS)
OF THE STATE OF NEW YORK.
(b) THE ISSUER AND COPELCO HEREBY SUBMIT TO THE NONEXCLUSIVE
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND THE UNITED STATES
DISTRICT COURT LOCATED IN THE BOROUGH OF MANHATTAN IN NEW YORK CITY, AND EACH
WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS UPON IT AND CONSENTS THAT ALL
SUCH SERVICE OF PROCESS BE MADE BY REGISTERED MAIL DIRECTED TO THE ADDRESS SET
FORTH IN SECTION 11 HEREOF AND SERVICE SO MADE SHALL BE DEEMED TO BE COMPLETED
FIVE DAYS AFTER THE SAME SHALL HAVE BEEN DEPOSITED IN THE U.S. MAILS, POSTAGE
PREPAID. THE ISSUER AND COPELCO HEREBY WAIVE ANY OBJECTION BASED ON FORUM NON
CONVENIENS, AND ANY OBJECTION TO VENUE OF ANY ACTION INSTITUTED HEREUNDER AND
CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED
APPROPRIATE BY THE COURT. NOTHING IN THIS SECTION SHALL AFFECT THE RIGHT OF
THE ISSUER OR COPELCO TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY
LAW OR AFFECT EITHER'S RIGHT TO BRING ANY ACTION OR PROCEEDING IN THE COURTS
OF ANY OTHER JURISDICTION.
(c) THE ISSUER AND COPELCO HEREBY WAIVE ANY RIGHT TO HAVE A
JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT,
OR OTHERWISE ARISING OUT OF, CONNECTED WITH, RELATED TO, OR IN CONNECTION WITH
THIS AGREEMENT. INSTEAD, ANY DISPUTE RESOLVED IN COURT WILL BE RESOLVED IN A
BENCH TRIAL WITHOUT A JURY.
Section 15. Counterparts. This Agreement may be executed in
two or more counterparts, each of which when so executed and delivered shall
be an original, but all of which together shall constitute one and the same
instrument.
14
Section 16.
Miscellaneous. Neither this Agreement nor any term hereof
may be changed, waived, discharged or terminated orally, but only by an
instrument in writing signed by the party against whom enforcement of the
change, waiver, discharge or termination is sought. The headings in this
Agreement are for purposes of reference only and shall not limit or otherwise
affect the meaning hereof. If you are in agreement with the foregoing, please
sign a counterpart hereof and return the same to the Issuer or Copelco,
whereupon this Agreement shall become a binding agreement between you, and the
Issuer and Copelco.
Very truly yours,
COPELCO CAPITAL, INC.
By:
----------------------------------
Name: XXXXXXX X. XXXXXXX
Title: VICE PRESIDENT
COPELCO CAPITAL FUNDING TRUST 1998-A
By: WILMINGTON TRUST COMPANY
By:
---------------------------------
Name:
Title:
15
The foregoing Agreement is
hereby accepted and entered
into as of the date hereof.
FIRST UNION CAPITAL MARKETS CORP.
As Placement Agent
By:
------------------------------
Name:
Title:
[PLACEMENT AGENT AGREEMENT]
16
