Exhibit 1.1
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XXXXXXX XXXXX & CO., INC.
(a Delaware corporation)
XXXXXXX XXXXX PREFERRED FUNDING , L.P.
(a Delaware limited partnership)
XXXXXXX XXXXX PREFERRED CAPITAL TRUST
(a Delaware business trust)
% Trust Originated Preferred Securities-SM- ("TOPrS-SM- ")
PURCHASE AGREEMENT
Dated: ________ __, 1998
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Table of Contents
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Page
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SECTION 1. Representations and Warranties............................... 5
(a) Representations and Warranties by the Company..................... 5
(i) Compliance with Registration Requirements................. 5
(ii) Incorporated Documents.................................... 6
(iii) Independent Accountants................................... 6
(iv) Financial Statements...................................... 6
(v) No Material Adverse Change in Business.................... 7
(vi) Good Standing of the Company.............................. 7
(vii) Good Standing of Subsidiaries............................. 7
(viii) Authorization of Agreement................................ 8
(ix) Authorization of the Debentures and Indentures............ 8
(x) Authorization of Investment Guarantees.................... 8
(xi) Due Authorization of Additional Agreements................ 8
(xii) Description of Additional Agreements...................... 9
(xiii) Absence of Defaults and Conflicts......................... 9
(xiv) Absence of Labor Dispute.................................. 10
(xv) Absence of Proceedings.................................... 10
(xvi) Exhibits.................................................. 10
(xvii) Absence of Further Requirements........................... 10
(xviii) Possession of Intellectual Property....................... 11
(xix) Possession of Licenses and Permits........................ 11
(xx) Title to Property......................................... 11
(xxi) Rating of Securities...................................... 12
(xxii) Investment Company Act.
(xxiii) Authorization of Trust Guarantee.......................... 12
(xxiv) Authorization of Partnership Guarantee.................... 13
(b) Officers' Certificates............................................ 13
(c) Representations and Warranties by the Trust, Partnership and
Company................................................... 13
(i) Good Standing of Trust.................................... 13
(ii) Authorization of Declaration.............................. 13
(iii) Authorization of Trust Common Securities.................. 14
(iv) Authorization of Trust Preferred Securities............... 14
(v) Regular Trustees.......................................... 14
(vi) Good Standing of the Partnership.......................... 14
(vii) Authorization of Partnership Agreement.................... 15
(viii) Authorization of Partnership Preferred
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Table of Contents (cont'd)
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Page
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Securities............................................. 15
(ix) General Partner Status.................................... 15
(x) Investment Company Act.................................... 15
(xi) Absence of Conflicts...................................... 15
(xii) Absence of Further Requirements........................... 16
(xiii) Absence of Proceedings.................................... 16
SECTION 2. Sale and Delivery to Underwriters; Closing................... 16
(a) Securities........................................................ 16
(b) Payment........................................................... 17
(c) Denominations; Registration....................................... 18
SECTION 3. Covenants of the Offerors.................................... 18
(a) Compliance with Securities Regulations and Commission Requests.... 18
(b) Filing of Amendments.............................................. 18
(c) Delivery of Registration Statements............................... 19
(d) Delivery of Prospectuses.......................................... 19
(e) Continued Compliance with Securities Laws......................... 19
(f) Blue Sky Qualifications........................................... 20
(g) Rule 158.......................................................... 20
(h) Use of Proceeds................................................... 20
(i) Listing........................................................... 21
(j) Reporting Requirements............................................ 21
SECTION 4. Payment of Expenses.......................................... 21
(a) Expenses.......................................................... 21
(b) Termination of Agreement.......................................... 21
SECTION 5. Conditions of Underwriters' Obligations...................... 22
(a) Effectiveness of Registration Statement........................... 22
(b) Opinion of Counsel for Company.................................... 22
(c) Opinion of Counsel for Underwriters............................... 22
(d) Opinion of Counsel for the Property Trustee....................... 23
(e) Officers' Certificate............................................. 23
(f) Accountant's Comfort Letter....................................... 23
(g) Bring-down Comfort Letter......................................... 24
(h) Maintenance of Rating............................................. 24
(i) Approval of Listing............................................... 24
(j) Additional Documents.............................................. 24
(k) Terminatio Agreement.............................................. 24
(l) No Objection...................................................... 25
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Table of Contents (cont'd)
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Page
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(a) Indemnification of Underwriters................................... 25
(b) Indemnification of Offerors, Directors and Officers............... 26
(c) Actions against Parties; Notification............................. 26
(d) Settlement without Consent if Failure to Reimburse................ 27
SECTION 7. Contribution................................................. 27
SECTION 8. Representations, Warranties and Agreements to
Survive Delivery........................................ 29
SECTION 9. Termination of Agreement..................................... 29
(a) Termination; General.............................................. 29
(b) Liabilities....................................................... 30
SECTION 10. Default by One or More of the Underwriters................... 30
SECTION 11. Notices...................................................... 31
SECTION 12. Parties...................................................... 31
SECTION 13. Governing Law and Time....................................... 31
SECTION 14. Effect of Headings........................................... 31
SCHEDULE A........................................................Schedule A-1
SCHEDULE B........................................................Schedule B-1
EXHIBIT A..................................................................A-1
EXHIBIT B..................................................................B-1
EXHIBIT C..................................................................C-1
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XXXXXXX XXXXX & CO., INC.
(a Delaware corporation)
XXXXXXX XXXXX PREFERRED FUNDING , L.P.
(a Delaware limited partnership)
XXXXXXX XXXXX PREFERRED CAPITAL TRUST
(a Delaware business trust)
__________ Trust Preferred Securities
% Trust Originated Preferred SecuritiesSM ("TOPrSSM")
(Liquidation Amount of $25 per Preferred Security)
PURCHASE AGREEMENT
________ __, 1998
Xxxxxxx Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
[syndicate members]
as Representatives of the several Underwriters
x/x Xxxxxxx Xxxxx & Xx.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
Xxxxxxx Xxxxx Preferred Capital Trust (the "Trust"), a statutory
business trust organized under the Business Trust Act (the "Delaware Trust
Act") of the State of Delaware (Chapter 38, Title 12, of the Delaware Code,
12 Del. C. Sections 3801 et seq.), Xxxxxxx Xxxxx Preferred Funding , L.P.
(the "Partnership"), a limited partnership organized under the Revised
Uniform Limited Partnership Act (the "Delaware Partnership Act") of the State
of Delaware (Chapter 17, Title 6, of the Delaware
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-SM- "Trust Originated Preferred Securities" and "TOPrS" are service marks of
Xxxxxxx Xxxxx & Co., Inc.
Code, 6 Del. C. Sections 17101 et seq.), and Xxxxxxx Xxxxx & Co., Inc., a
Delaware corporation (the "Company" and, together with the Trust and the
Partnership, the "Offerors"), confirm their agreement (the "Agreement") with
Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
("Xxxxxxx Xxxxx") 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 Xxxxxxx Xxxxx, [syndicate members], are acting as representatives (in
such capacity, they shall hereinafter be referred to as the
"Representatives"), with respect to the issue and sale by the Trust and the
purchase by the Underwriters, acting severally and not jointly, of the
respective numbers of % Trust Originated Preferred Securities (liquidation
amount of $25 per preferred security) representing preferred undivided
beneficial ownership interests in the assets of the Trust ("TOPrS" or the
"Trust Preferred Securities") set forth in said Schedule A. The Company will
own all the common securities (the "Trust Common Securities" and, together
with the Trust Partnership Securities, the "Trust Securities"), representing
undivided beneficial ownership interests in the assets of the Trust. The
Trust Preferred Securities and the Trust Common Securities will be issued
pursuant to the amended and restated declaration of trust of the Trust, dated
as of ________ __, 1998 (the "Declaration"), among the Company, as Sponsor,
Xxxxxxx Xxxx and Xxxxxxx Xxxxxxxx, as regular trustees (the "Regular
Trustees"), The Chase Manhattan Bank, a national banking association, as
institutional trustee (the "Property Trustee") and Chase Manhattan Bank
Delaware, a Delaware corporation, as Delaware trustee (the "Delaware Trustee"
and, together with the Regular Trustees and the Property Trustee, the "Issuer
Trustees"), and the holders from time to time of undivided beneficial
interests in the assets of the Trust. The Trust Preferred Securities will be
guaranteed by the Company, to the extent set forth in the Prospectus with
respect to distributions and payments upon liquidation, redemption and
otherwise pursuant to the Trust Preferred Securities Guarantee Agreement (the
"Trust Guarantee"), to be dated as of ________ __, 1998, between the Company
and The Chase Manhattan Bank, as trustee (the "Guarantee Trustee").
The proceeds from the sale of the Trust Securities will be used by
the Trust to purchase partnership preferred securities ("Partnership
Preferred Securities"), representing all of the limited partner interests of
the Partnership. All of the general partner interests will be owned by the
Company, which initially shall be sole general partner (in such capacity, the
"General Partner"). The Partnership Preferred Securities will be issued
pursuant to an amended and restated agreement of limited partnership, to be
dated as of ________ __, 1998 (the "Partnership Agreement"), among the
Company, as general partner, and Xxxxxxx Xxxxx Group, Inc., as initial
limited partner, and
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such other persons who become limited partners thereto, and will be
guaranteed by the Company, to the extent set forth in the Prospectus, with
respect to distributions and payments upon liquidation and redemption
pursuant to the Partnership Guarantee Agreement (the "Partnership Guarantee"
and, together with the Trust Guarantee, the "Guarantees"). The Trust
Preferred Securities and the related Trust Guarantee, together with the
Partnership Preferred Securities and the related Partnership Guarantee, are
referred to herein as the "Offered Securities."
The Partnership will use the proceeds from the sale of the
Partnership Preferred Securities and the capital contribution of the General
Partner to acquire, among other things, (i) a subordinated debenture (the
"Company Debenture") of the Company and (ii) senior debentures of one or more
wholly-owned subsidiaries of the Company (the "Investment Subsidiaries", and
together with the Company, the "Investment Affiliates"). The debentures to
be issued by the Investment Subsidiaries (collectively, the "Subsidiary
Debentures" and, together with the Company Debenture, the "Debentures") are
to be fully and unconditionally guaranteed (the "Investment Guarantees") by
the Company (the "Debenture Guarantor"). Each of the Debentures shall be
issued pursuant to an indenture (each an "Indenture"), dated as of December
17, 1996, among the applicable Investment Affiliate and The Chase Manhattan
Bank, as trustee (the "Debt Trustee").
The Offerors understand that the Underwriters propose to make a
public offering of the Offered Securities as soon as the Representatives deem
advisable after this Agreement has been executed and delivered and the
Declaration, Trust Guarantee, Indenture relating to the Company Debenture and
the Investment Guarantees have been qualified under the Trust Indenture Act
of 1939, as amended (the "1939 Act").
The Offerors have filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 (No. 333-42859)
covering the registration under the Securities Act of 1933, as amended (the
"1933 Act"), of (i) the Trust Preferred Securities, (ii) the Trust Guarantee,
(iii) the Partnership Preferred Securities, (iv) the Partnership Guarantee,
(v) the Company Debenture and (vi) the Investment Guarantees. Promptly after
execution and delivery of this Agreement, the Offerors will either (i)
prepare and file a prospectus in accordance with the provisions of Rule 430A
("Rule 430A") of the rules and regulations of the Commission under the 1933
Act (the "1933 Act Regulations") 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
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the case may be, that was 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." Each
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, and the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the 1933 Act, at the time it
became effective and including the Rule 430A Information and the Rule 434
Information, as applicable, 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 Securities is
herein called the "Prospectus". If Rule 434 is relied on, the term
"Prospectus" shall refer to the preliminary prospectus dated _______ __, 1998
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, any preliminary
prospectus, 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 state-ments and
schedules and other information which are "contained", "included" or "stated"
in the Registration Statement, any preliminary prospectus or the Prospectus
(or other references of like import) shall be deemed to mean and include all
such financial statements and schedules and other information which are
incorporated by reference in the Registration Statement, any preliminary
prospectus or the Prospectus, as the case may be; and all references in this
Agreement to amendments or supplements to the Registration Statement, any
preliminary prospectus or the Prospectus shall be deemed to mean and 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, such preliminary prospectus or the Prospectus, as the
case may be.
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SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company. The Company represents
and warrants to each Underwriter as of the date hereof, and as of the Closing
Time referred to in Section 2(b) hereof, and agrees with each underwriter, as
follows:
(i) Compliance with Registration Requirements. The Offerors
meet 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 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, 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 and at the Closing Time, the Registration Statement, any 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 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. At the date of the Prospectus and at the Closing Time, the
Prospectus and any amendments or supplements thereto did not and will not
include an untrue statement of a material fact or 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 Offerors will comply with the requirements of Rule 434. The representations
and warranties in this subsection shall not apply to (A) statements in or
omissions from the Registration Statement or Prospectus made in reliance upon
and in conformity with information furnished to the Company in writing by any
Underwriter through Xxxxxxx Xxxxx expressly for use in the Registration
Statement or Prospectus or (B) that part of the Registration Statement that
constitutes the Statement of Eligibility on Form T-1 (the "Form T-1") under the
1939 Act of a trustee.
Each preliminary prospectus and the 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 each preliminary prospectus
and the
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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 time
the Prospectus was issued and at the Closing Time, 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.
(iii) Independent Accountants. The accountants who certified the
financial statements and any supporting Schedules thereto 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 of the
Company 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
statements of consolidated earnings, consolidated stockholders' equity and
consolidated 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 of the Company required to be stated therein. The selected
financial data and the summary financial information included in the
Registration Statement and the Prospectus present fairly the information shown
therein and have been compiled on a basis consistent with that of the audited
financial statements incorporated by reference in the Registration Statement and
the Prospectus.
(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
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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 arising in the ordinary course of business, which are material
with respect to the Company and its subsidiaries considered as one enterprise
and (C) except for regular quarterly dividends on its outstanding common stock,
par value $1.331/3 per share, of the Company and regular dividends on its
outstanding preferred stock in amounts per share that are consistent with the
terms of such preferred stock, there has been no dividend or distribution of any
kind declared, paid or made by the Company on any class of its capital stock.
(vi) Good Standing of the Company. The Company has been duly
organized and is validly existing as a corporation in good standing under the
laws of the State of Delaware and has corporate power and authority to own,
lease and operate its properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under this Agreement;
and the Company is duly qualified as a foreign corporation to transact business
and is in good standing in each other 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 result in a Material Adverse Effect.
(vii) Good Standing of Subsidiaries. Each subsidiary of the
Company which is a "significant subsidiary" as defined in Rule 1-02 of
Regulation S-X under the 1933 Act (each a "Subsidiary" and, collectively, the
"Subsidiaries") has been duly organized and is validly existing as a corporation
in good standing under the laws of the jurisdiction of its incorporation, has
corporate power and authority to own, lease and operate its properties and to
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 result in a Material
Adverse Effect; except as otherwise disclosed in the Registration Statement, all
of the issued and outstanding capital stock of each Subsidiary has been duly
authorized and validly issued and 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; and none of the
outstanding shares of capital stock of any Subsidiary was issued in violation of
preemptive or similar rights of any securityholder of such Subsidiary. The only
subsidiaries of the Company are (A) the subsidiaries listed in Exhibit 21 to the
Annual Report on Form 10-K of the Company filed with the Commission under
Section 13 of the 1934 Act and (B) certain other
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subsidiaries which, considered in the aggregate as a single subsidiary, do not
constitute a "significant subsidiary" as defined in Rule 1-02 of Regulation S-X
under the 1933 Act.
(viii) Authorization of Agreement. This Agreement has been duly
authorized, executed and delivered by the Offerors.
(ix) Authorization of the Debentures and Indentures. Each
Indenture has been duly authorized, duly executed and delivered by the
applicable Investment Affiliate and, when duly executed and delivered by the
Debt Trustee, will constitute a valid and binding agreement of such Investment
Affiliate enforceable against such Investment Affiliate in accordance with its
terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency, 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) (the "Bankruptcy Exceptions"). The Indenture
of the Company has been duly qualified under the 1939 Act. The Debentures have
been duly authorized for issuance and sale pursuant to this Agreement and, at
the Closing Time, will have been duly executed by the applicable Investment
Affiliate and, when authenticated, issued and delivered in the manner provided
for in the applicable Indenture and delivered against payment of the purchase
price therefor as provided in this Agreement, will constitute valid and legally
binding obligations of such Investment Affiliate, enforceable against such
Investment Affiliate in accordance with their terms, except as the enforcement
thereof may be limited by the Bankruptcy Exceptions.
(x) Authorization of Investment Guarantees. The Investment
Guarantees have been duly authorized and, at the Closing Time, will have been
duly executed and delivered by the Debenture Guarantor, and, when authenticated
in the manner provided in the Investment Guarantee, will constitute a valid and
binding obligation of the Debenture Guarantor, enforceable against the Debenture
Guarantor in accordance with its terms, except to the extent that enforcement
thereof may be limited by the Bankruptcy Exceptions. The Investment Guarantees
have been duly qualified under the 0000 Xxx.
(xi) Due Authorization of Additional Agreements. Each of the
Trust Guarantee, Partnership Guarantee and Investment Guarantees (the
"Transaction Documents") and the Debentures and Indentures has been duly
authorized, executed and delivered by the applicable Investment Affiliate, and
each agreement constitutes a valid and binding agreement of the applicable
Investment Affiliate, except as enforcement thereof may be limited by the
Bankruptcy Exceptions.
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(xii) Description of Additional Agreements. The Offered
Securities and the Declaration, the Partnership Agreement, the Trust Guarantee
and the Partnership Guarantee will conform in all material respects to the
respective statements relating thereto contained in the Prospectus and will be
in substantially the respective forms filed or incorporated by reference, as the
case may be, as exhibits to the Registration Statement.
(xiii) Absence of Defaults and Conflicts. Neither the Company nor
any of its subsidiaries is in violation of its charter or by-laws 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 or any of its subsidiaries is a party or by which it or any of them may
be bound, or to which any of the property or assets of the Company or any
subsidiary is subject (collectively, "Agreements and Instruments"), except for
such defaults that would not result in a Material Adverse Effect; and the
execution, delivery and performance of the Transaction Documents by the Company,
the Debentures and the Indentures by the Company or the applicable Investment
Subsidiary, as the case may be, and any other agreement or instrument entered
into or issued or to be entered into or issued by the Company in connection with
the transactions contemplated hereby or thereby or in the Registration Statement
and the Prospectus and the consummation of the transactions contemplated herein
and in the Registration Statement and the Prospectus (including the issuance and
sale of the Offered Securities and the use of the proceeds from the sale of the
Offered Securities as described in the Prospectus under the caption "Use of
Proceeds") and compliance by the Company with its obligations hereunder and
thereunder do not and will not, whether with or without the giving of notice or
passage of time or both, conflict with or constitute a breach of, or a default
or Repayment Event (as defined below) under or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of the
Company or any subsidiary of the Company pursuant to, the Agreements and
Instruments (except for such conflicts, breaches, defaults, events, liens,
charges or encumbrances that would not result in a Material Adverse Effect), nor
will such action result in any violation of the provisions of the charter or
by-laws of the Company or any Subsidiary or any applicable law, statute, rule,
regulation, judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over the
Company or any Subsidiary or any of their assets, properties or operations. As
used herein, a "Repayment Event" means any event or condition which gives the
holder of any note, debenture or other evidence of indebtedness of the Company
or any of its subsidiaries (or any person acting on such holder's behalf) the
right to require the
9
repurchase, redemption or repayment of all or a portion of such indebtedness by
the Company or any of its subsidiaries.
(xiv) Absence of Labor Dispute. No labor dispute with the
employees of the Company or any of its subsidiaries exists or, to the knowledge
of the Company, is imminent, which may reasonably be expected to result in a
Material Adverse Effect.
(xv) Absence of Proceedings. There is not any 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, threatened, against or affecting the Company or any of
its subsidiaries, which is required to be disclosed in the Registration
Statement and the Prospectus (other than as stated 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 assets,
properties, or operations thereof or the consummation of the transactions
contemplated in the Transaction Documents and the Debentures and the Indentures
or the performance by the Company and the applicable Investment Affiliate,
respectively, of their obligations hereunder and thereunder; and the aggregate
of all pending legal or governmental proceedings to which the Company or any of
its subsidiaries is a party or of which any of their respective assets,
property, or operations is the subject which are not described in the
Registration Statement and the Prospectus, including ordinary routine litigation
incidental to the business, could not reasonably be expected to result in a
Material Adverse Effect.
(xvi) Exhibits. There are no contracts or documents which are of
a character required to be described in the Registration Statement, the
Prospectus or the documents incorporated by reference therein or to be filed as
exhibits thereto which have not been so described and filed as required.
(xvii) 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 of its obligations under this
Agreement, in connection with the offering, issuance or sale of the Offered
Securities hereunder or the consummation of the transactions contemplated under
this Agreement, or the due execution, delivery or performance of any Indenture
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.
(xviii) Possession of Intellectual Property. The Company and
its subsidiaries own or possess, or can acquire on
10
reasonable terms, adequate trademarks, service marks, trade names and other
intellectual property (collectively, "Intellectual Property") necessary to carry
on the business now operated by them, except where the failure to own or possess
or the lack of ability to acquire such Intellectual Property, singly or in the
aggregate, would not result in a Material Adverse Effect, and neither the
Company nor any of its subsidiaries has received any notice or is otherwise
aware of any infringement of or conflict with asserted rights of others with
respect to any Intellectual Property or of any facts or circumstances which
would render any Intellectual Property invalid or inadequate to protect the
interest of the Company or any of its subsidiaries therein, and which
infringement or conflict (if the subject of any unfavorable decision, ruling or
finding) or invalidity or inadequacy, singly or in the aggregate, would result
in a Material Adverse Effect.
(xix) 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 where the failure to so
possess such Governmental Licenses would not, singly or in the aggregate, have 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 would not, singly or in the aggregate, have a Material
Adverse Effect; all of the Governmental Licenses are valid and in full force and
effect, except where the invalidity of such Governmental Licenses or the failure
of such Governmental Licenses to be in full force and effect would not have a
Material Adverse Effect; and 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, singly or in the aggregate, if the subject
of an unfavorable decision, ruling or finding, would result in a Material
Adverse Effect.
(xx) Title to Property. The Company and its subsidiaries have
good and marketable title to all real property owned by the Company and its
subsidiaries and good title to all other properties owned by them, in each case,
free and clear of all mortgages, pledges, liens, security interests, claims,
restrictions or encumbrances of any kind, except such as (A) are described in
the Registration Statement and the Prospectus or (B) do not, singly or in the
aggregate, materially affect the value of such property, do not interfere with
the use made and proposed to be made of such property by the Company or any
11
of its subsidiaries and do not, singly or in the aggregate have a Material
Adverse Effect; and all of the leases and subleases material to the business of
the Company and its subsidiaries, considered as one enterprise, and under which
the Company or any of its subsidiaries holds properties described in the
Prospectus, are in full force and effect, except where the failure of such
leases or subleases to be in full force and effect would not have a Material
Adverse Effect, and neither the Company nor any subsidiary has any notice of any
material claim of any sort that has been asserted by anyone adverse to the
rights of the Company or any subsidiary under any of the leases or subleases
mentioned above, or affecting or questioning the rights of the Company or such
subsidiary to the continued possession of the leased or subleased premises under
any such lease or sublease.
(xxi) Rating of Securities. Subsequent to the execution and
delivery of this Agreement and prior to the Closing Time (i) no downgrading
shall have occurred in the rating accorded the Trust Preferred Securities or the
Company's senior long-term debt securities by any "nationally recognized
statistical rating organization", as that term is defined by the Commission for
purposes of Rule 436(g)(2) under the Act and (ii) no such organization shall
have publicly announced that it has under surveillance or review, with possible
negative implications, its rating of the Trust Preferred Securities or any of
the Company's debt securities.
(xxii) Investment Company Act. The Company is not, and upon the
issuance and sale of the Trust Preferred Securities as herein contemplated and
the application of the net proceeds therefrom as described in the Prospectus
will not 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").
(xxiii) Authorization of Trust Guarantee. The Trust
Guarantee 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 Trust Guarantee by the Guarantee Trustee, will constitute a
valid and binding obligation of the Company, enforceable against the Company
in accordance with its terms except to the extent that enforcement thereof
may be limited by the Bankruptcy Exceptions; the Trust Guarantee will conform
to all statements relating thereto contained in the Prospectus; and the Trust
Preferred Guarantee Agreement, at the Closing Time, will have been duly
qualified under the 1939 Act.
(xxiv) Authorization of Partnership Guarantee. The Partnership
Guarantee has been duly authorized by the Company and, when validly executed and
delivered by the Company will constitute a valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms except to
the extent that enforcement thereof may be limited by the Bankruptcy Exceptions.
12
(b) Officers' Certificates. Any certificate signed by any officer of the
Company or any of its subsidiaries and delivered to any Underwriter or to
counsel for the Underwriters in connection with the offering of the Underwritten
Securities shall be deemed a representation and warranty by the Company 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.
(c) Representations and Warranties by the Trust, Partnership and Company.
The Offerors, jointly and severally, represent and warrant to each Underwriter
as of the date hereof, and as of the Closing Time referred to in Section 2(b)
herein, as follows:
(i) Good Standing of Trust. The Trust has been duly created and
is validly existing in good standing as a business trust under the Delaware
Trust Act with the power and authority to own property and to conduct its
business as described in the Registration Statement and Prospectus and to enter
into and perform its obligations under this Agreement, the Trust Preferred
Securities, the Trust Common Securities and the Declaration; the Trust is duly
qualified to transact business as a foreign business trust and is in good
standing in any other jurisdiction in which such qualification is necessary,
except to the extent that the failure to so qualify or be in good standing would
not have a material adverse effect on the Trust; the Trust is not a party to or
otherwise bound by any agreement other than those described in the Prospectus;
and the Trust is and will be treated as a consolidated subsidiary of the Company
pursuant to generally accepted accounting principles.
(ii) Authorization of Declaration. The Declaration has been duly
authorized by the Company and, at the Closing Time, will have been duly executed
and delivered by the Company, as Sponsor, and the Trustees, and assuming due
authorization, execution and delivery of the Declaration by the Property
Trustee, the Declaration will, at the Closing Time, be a valid and binding
obligation of the Company, enforceable against the Company in accordance with
its terms, except to the extent that enforcement thereof may be limited by the
Bankruptcy Exceptions, and will conform to all statements relating thereto in
the Prospectus; and at the Closing Time, the Declaration will have been duly
qualified under the 1939 Act.
(iii) Authorization of Trust Common Securities. The Trust Common
Securities have been duly authorized by the Declaration and, when issued and
delivered by the Trust to the Company against payment therefor as described in
the Registration Statement and Prospectus, will be validly issued and (subject
to the terms of the Declaration) fully paid undivided beneficial interests in
the assets of the Trust and will conform to all
13
statements relating thereto contained in the Prospectus; the issuance of the
Trust Common Securities is not subject to preemptive or other similar rights;
and at the Closing Time all of the issued and outstanding Trust 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.
(iv) Authorization of Trust Preferred Securities. The Trust
Preferred Securities have been duly authorized by the Declaration and, when
issued and delivered against payment of the consideration set forth in this
Agreement, will be validly issued and (subject to the terms of the Declaration)
fully paid and nonassessable undivided beneficial interests in the Trust, will
be entitled to the benefits of the Declaration and will conform to all
statements relating thereto contained in the Prospectus; the issuance of the
Trust Preferred Securities is not subject to preemptive or other similar rights;
and (subject to the terms of the Declaration) holders of Trust Preferred
Securities will be entitled to the same limitation of personal liability under
Delaware law as extended to stockholders of private corporations for profit.
(v) Regular Trustees. Each of the Regular Trustees of the Trust
is an employee of the Company; the Declaration has been duly executed and
delivered by the Regular Trustees and is a valid and binding obligation of each
Regular Trustee, enforceable against such Regular Trustee in accordance with its
terms except to the extent that enforcement thereof may be limited by the
Bankruptcy Exceptions.
(vi) Good Standing of the Partnership. The Partnership has been
duly formed and is validly existing in good standing as a limited partnership
under the Delaware Partnership Act with the power and authority to own property
and to conduct its business as described in the Registration Statement and
Prospectus and to enter into and perform its obligations under this Agreement,
the Partnership Preferred Securities and the Partnership Agreement; the
Partnership is duly qualified to transact business as a foreign limited
partnership and is in good standing in any other jurisdiction in which such
qualification is necessary, except to the extent that the failure to so qualify
or be in good standing would not have a material adverse effect on the
Partnership; the Partnership is not a party to or otherwise bound by any
agreement other than those described in the Prospectus; and the Partnership is
and will be treated as a consolidated subsidiary of the Company pursuant to
generally accepted accounting principles.
(vii) Authorization of Partnership Agreement. The Partnership
Agreement has been duly authorized by the Company as general partner and, on the
Closing Date, will have been duly
14
executed and delivered by the Company, and will be a valid and legally binding
obligation of the Company, enforceable against the Company in accordance with
its terms, except to the extent that enforcement thereof may be limited by the
Bankruptcy Exceptions, and will conform to the description thereof in the
Prospectus.
(viii) Authorization of Partnership Preferred Securities. The
Partnership Preferred Securities have been duly authorized by the Partnership
Agreement and, when issued and delivered pursuant to the Partnership Agreement
against payment of the consideration set forth therein, will be duly issued and
fully paid and not subject to assessment for additional capital contributions,
will be entitled to the benefits of the Partnership Agreement and will conform
to the description thereof in the Prospectus; the issuance of the Partnership
Preferred Securities is not subject to preemptive or other similar rights;
assuming that the holders of Partnership Preferred Securities in their
capacities as such do not participate in the control of the business of the
Company, the holders of the Partnership Preferred Securities, in their
capacities as such, will have no liability in excess of their obligations to
make payments provided for in the Limited Partnership Agreement (subject to the
obligation of a holder of Partnership Preferred Securities to repay any funds
distributed to it).
(ix) General Partner Status. The Company is the sole general
partner of the Partnership.
(x) Investment Company Act. Neither the Trust nor the
Partnership is and, after giving effect to the offering and sale of the Trust
Preferred Securities and the application of the proceeds thereof as described in
the Prospectus, neither will be an "investment company" under the 1940 Act.
(xi) Absence of Conflicts. The Trust is not in violation of the
Declaration or its certificate of trust filed with the State of Delaware, dated
December 19, 1997 (the "Certificate of Trust"); the Partnership is not in
violation of the Partnership Agreement or the certificate of limited
partnership, dated December 19, 1997 (the "Certificate of Partnership"); and the
execution, delivery and performance of applicable Transaction Documents by the
Partnership and the Trust and the consummation of the transactions contemplated
herein and therein and compliance by the Partnership and the Trust with their
respective obligations hereunder and thereunder have been duly authorized by all
necessary action on the part of the Partnership and the Trust and do not and
will not result in any violation of the Declaration or Certificate of Trust or
the Partnership Agreement or the Certificate of Partnership and do not and will
not conflict with, or result in a breach of any of the terms or provisions of,
or constitute a default under, or
15
result in the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Trust or the Partnership under any existing applicable
law, rule, regulation, judgment, order or decree of any government, governmental
instrumentality or court, domestic or foreign, or any regulatory body or
administrative agency or other governmental body having jurisdiction over the
Trust or the Partnership of their respective properties.
(xii) Absence of Further Requirements. No authorization,
approval, consent or order of any court or governmental authority or agency is
necessary in connection with the issuance, offer and sale of the Trust
Securities and the Partnership Preferred Securities, the consummation of the
transactions contemplated by this Agreement by the Partnership or the Trust, or
the execution, delivery, and performance by the Partnership or the Trust of the
applicable Transaction Documents, except such as may be required under the 1933
Act or the 1933 Act Regulations, the 1934 Act or the 1934 Act Regulations or
state securities laws and the qualification of the Declaration and the Trust
Guarantee under the 1939 Act.
(xiii) Absence of Proceedings. Except as disclosed in the
Prospectus, there is no action, suit or proceeding before or by any government,
governmental instrumentality or court, domestic or foreign, now pending or, to
the knowledge of the Trust or the Partnership, threatened against or affecting
the Trust or the Partnership that is required to be disclosed in the Prospectus
or that would result in any material adverse change in the condition (financial
or otherwise), earnings or business affairs of the Trust or the Company and its
subsidiaries, taken as a whole, or that would materially and adversely affect
the properties or assets of the Trust or the Partnership, or that could
adversely affect the consummation of the transactions contemplated in this
Agreement.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) 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 Trust, at
the initial public offering price set forth in Schedule B, the number of Trust
Preferred Securities set forth in Schedule A opposite the name of such
Underwriter, plus any additional number of Trust Preferred Securities which such
Underwriter may become obligated to purchase pursuant to the provisions of
Section 10 hereof.
(b) Payment. Payment of the purchase price for, and delivery of
certificates for, the Trust Preferred Securities
16
shall be made at the offices of (i) Xxxxx & Xxxx llp, or at such other place as
shall be agreed upon by the Representatives and the Company, at 9:00 A.M.
(Eastern time) on ________ __, 1998 (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 Representatives and the Company
(such time and date of payment and delivery being herein called "Closing Time").
Payment shall be made to the Trust by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery to
such persons designated by the Representatives for the respective accounts of
the Underwriters of a certificate in global form for the Trust 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 Trust Preferred Securities
which it has agreed to purchase. Xxxxxxx Xxxxx, individually and not as
representative of the Underwriters, may (but shall not be obligated to) make
payment of the purchase price for the Trust Preferred Securities to be purchased
by any Underwriter whose funds have not been received by the Closing Time, but
such payment shall not relieve such Underwriter from its obligations hereunder.
The purchase price per Trust Preferred Security to be paid by the
several Underwriters for the Trust Preferred Securities shall be an amount equal
to the initial public offering price as set forth in Schedule B. The initial
public offering price per Trust Preferred Security shall be a fixed price to be
determined by agreement between the Representatives and the Offerors. The
initial public offering price and the purchase price, when so determined, shall
be set forth in Schedule B.
As compensation to the Underwriters for their commitments hereunder
and in view of the fact that the proceeds of the sale of the Trust Preferred
Securities will ultimately be used to purchase the Debentures of the Company and
the Investment Subsidiaries, the Company hereby agrees to pay at Closing Time to
the Representatives, for the accounts of the several Underwriters, a commission
per Trust Preferred Security set forth on Schedule B.
At the Closing Time, the Company will pay, or cause to be paid, the
commission payable at such time to the Underwriters under Section 2 hereof by
wire transfer of immediately available funds to a bank account designated by
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated for the account of the
Underwriters.
17
(c) Denominations; Registration. Certificates for the Trust 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. The Trust Preferred Securities will be made available for
examination and packaging by the Representatives in The City of New York not
later than 9:00 A.M. (Eastern time) on one business day prior to the Closing
Time.
SECTION 3. Covenants of the Offerors. The Offerors covenant with each
Underwriter as follows:
(a) Compliance with Securities Regulations and Commission Requests. The
Offerors, subject to Section 3(b), will comply with the requirements of Rule
430A or Rule 434, as applicable, and will notify the Representatives
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, or of the suspension of the qualification of the Offered
Securities for offering or sale in any jurisdiction, or of the initiation or
threatening of any proceedings for any of such purposes. The Offerors will
promptly effect the filings necessary pursuant to Rule 424(b) and will take such
steps they deem 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 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. During the period when the Underwriters are
required to deliver a prospectus with respect to the Offered Securities, the
Offerors 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
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
18
which the Representatives or counsel for the Underwriters shall reasonably
object.
(c) Delivery of Registration Statements. The Offerors have furnished or
will deliver to the Representatives and counsel for the Underwriters, without
charge, conformed copies of the Registration Statement as originally filed and
of each amendment thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated or deemed to be incorporated by
reference therein) and conformed copies of all consents and certificates of
experts, 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 Underwriters. 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 Prospectuses. The Offerors have delivered to each
Underwriter, without charge, as many copies of each preliminary prospectus as
such Underwriter reasonably requested, and the Offerors hereby consent to the
use of such copies for purposes permitted by the 1933 Act. The Offerors 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 Offerors will comply
with the 1933 Act and the 1933 Act Regulations, the 1934 Act and the 1934 Act
Regulations and the 1939 Act and the 1939 Act Regulations with respect to the
offer of the Offered Securities so as to permit the completion of the
distribution of the Trust Preferred 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 Trust 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,
to amend the Registration Statement or amend or supplement the Prospectus in
order that the Prospectus will not include any untrue statements 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
19
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 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 will use its best efforts, in
cooperation with the Underwriters, to qualify the Offered Securities for
offering and sale under the applicable securities laws of such states and other
jurisdictions as the Representatives 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 the Company shall not be
obligated to file any general consent to service of process or to qualify as a
foreign corporation or as a dealer in securities in any jurisdiction in which it
is not so qualified or to subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so subject. In each
jurisdiction in which the Offered Securities have been so qualified, the Company
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 effective date of the Registration Statement and any Rule
462(b) Registration Statement.
(g) 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.
(h) Use of Proceeds. The Company will use or cause to be used the net
proceeds received by and from the sale of the Offered Securities in the manner
specified in the Prospectus under "Use of Proceeds".
(i) Listing. The Company will use its best efforts to effect the listing
of the Trust Preferred Securities on the New York Stock Exchange.
(j) Reporting Requirements. The Company, 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.
20
SECTION 4. Payment of Expenses.
(a) Expenses. The Company will pay all expenses incident to the
performance of its 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, the Declaration, the Partnership Agreement, and the
Indentures and such other documents as may be required in connection with the
offering, purchase, sale, issuance or delivery of the Securities, (iii) the
preparation, issuance and delivery of the certificates for the Trust
Preferred Securities to the Underwriters, (iv) the fees and disbursements of
the Company's counsel, accountants and other advisors, (v) the qualification
of the Offered Securities under 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, (vi) the printing and delivery to the Underwriters of
copies of each preliminary prospectus, any Term Sheets and of the Prospectus
and any amendments or supplements thereto, (vii) the copying of the Agreement
Among Underwriters (viii) the preparation, printing and delivery to the
Underwriters of copies of the Blue Sky Survey and any supplement thereto,
(ix) the fees and expenses of the Property Trustee, the Regular Trustees, the
Delaware Trustee and the Trust Guarantee Trustee, including the fees and
disbursements of counsel for the Trustees in connection with the Indentures,
the Investment Guarantees and the Debentures, (x) any fees payable in
connection with the rating of the Trust Preferred Securities, and (xi) the
fees and expenses incurred in connection with the listing of the Offered
Securities on the New York Stock Exchange; provided, however that the
Underwriters shall reimburse the Company for certain expenses incurred in
connection with the transactions contemplated by this Agreement as may be
agreed upon in writing.
(b) Termination of Agreement. If this Agreement is terminated by the
Representatives 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 Offerors contained in Section 1 hereof
or in certificates of any officer of the Company, the Trust, the Partnership
or any subsidiary of the Company delivered pursuant to the provisions hereof,
to the performance by the Offerors of their covenants and
21
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 containing the Rule 430A Information 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 in accordance with the requirements of Rule 430A) 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 Closing Time, the
Representatives shall have received the favorable opinion, dated as of
Closing Time, of (i) Xxxxx & Xxxx llp, counsel to the Company, the Trust and
the Partnership, in form and substance satisfactory to counsel for the
Underwriters, 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 (ii) Skadden, Arps, Slate, Xxxxxxx & Xxxx (Delaware), special Delaware
counsel to the Company, the Trust, and the Partnership, in form and substance
satisfactory to counsel for the Underwriters, together with signed or
reproduced copies of such letter for the Company and each of the Underwriters
to the effect set forth in Exhibit B hereto. 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.
(c) Opinion of Counsel for Underwriters. At Closing Time, the
Representatives shall have received the favorable opinion, dated as of
Closing Time, of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the
Underwriters, together with signed or reproduced copies of such letter for
each of the other Underwriters in form and substance satisfactory to the
Underwriters. 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 and the General
Corporation Law of the State of Delaware, upon the opinions of counsel
satisfactory to the Representatives. 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
22
Company and its subsidiaries and certificates of public officials.
(d) Opinion of Counsel for the Property Trustee. At Closing Time, the
Representatives shall have received the favorable opinion, dated as of
Closing Time, of Xxxxxx & Xxxxxx, counsel for the Property Trustee in form
and substance satisfactory to counsel for the Underwriters, together with
signed or reproduced copies of such letters for each of the other
Underwriters to the effect set forth in Exhibit C hereto and to such further
effect as counsel to the Underwriters may reasonably request.
(e) Officers' Certificate. At 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 except as stated therein, 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 taken as a
whole, whether or not arising in the ordinary course of business, and the
Representatives shall have received a certificate of the President or a Vice
President of the Company or of the chief financial or chief accounting
officer of the Company, dated as of Closing Time, to the effect that (i)
there has been no such material adverse change, (ii) the representations and
warranties in Section 1(a) hereof are true and correct in all material
respects with the same force and effect as though expressly made at and as of
Closing Time, (iii) the Company has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied at or prior
to 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 contemplated by the Commission.
(f) Accountant's Comfort Letter. At the time of the execution of this
Agreement, the Representatives shall have received from Deloitte & Touche
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 other Underwriters containing statements and information of the
type ordinarily included in accountants' "comfort letters" to underwriters
with respect to the financial statements and certain financial information
contained in the Registration Statement and the Prospectus in a form
acceptable to the Representatives.
(g) Bring-down Comfort Letter. At Closing Time, the Representatives
shall have received from Deloitte & Touche llp a letter, dated as of Closing
Time, to the effect that they reaffirm the statements made in the letter
furnished pursuant to subsection (f) of this Section, except that the
specified date
23
referred to shall be a date not more than three business days prior to
Closing Time.
(h) Maintenance of Rating. At Closing Time, the Trust Preferred
Securities shall be rated at least "aa3" by Xxxxx'x Investors Service Inc.
and "A" by Standard & Poor's Ratings Services, a division of the XxXxxx-Xxxx
Companies, Inc.; and since the date of this Agreement, there shall not have
occurred a downgrading in the rating assigned to the Trust Preferred
Securities or the Company's 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 Trust Preferred Securities or any of the Company's debt securities.
(i) Approval of Listing. At Closing Time, the Trust Preferred
Securities shall have been approved for listing on the New York Stock
Exchange, subject only to official notice of issuance.
(j) Additional Documents. At Closing Time, counsel for the Underwriters
shall have been furnished with such documents and opinions as they may
reasonably require for the purpose of enabling them to pass upon the issuance
and sale of the Securities as herein contemplated, 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 in connection with the issuance and sale of the Securities as herein
contemplated shall be reasonably satisfactory in form and substance to the
Representatives and counsel for the Underwriters.
(k) Termination of Agreement. If any condition specified in this
Section shall not have been fulfilled when and as required to be fulfilled,
this Agreement may be terminated by the Representatives by notice to the
Company at any time at or prior to Closing Time, 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, 7 and 8 shall survive any such
termination and remain in full force and effect.
(l) No Objection. The NASD has confirmed that it has not raised any
objection with respect to the fairness and reasonableness of the underwriting
terms and arrangements.
SECTION 6. Indemnification.
(a) Indemnification of Underwriters. The Offerors agree jointly and
severally to indemnify and hold harmless each Underwriter and each person, if
any, who controls any Underwriter
24
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 contained 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(d)
below) any such settlement is effected with the written consent of the
Company; and
(iii) against any and all expense whatsoever, as incurred
(including, subject to Section 6(c) hereof, the fees and disbursements of
counsel chosen by Xxxxxxx Xxxxx), 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
Offerors by any Underwriter through Xxxxxxx Xxxxx expressly for use in the
Registration Statement (or any amendment thereto), including the Rule 430A
Information and the Rule 434 Information, if applicable, or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto).
(b) Indemnification of Offerors, Directors and Officers. Each
Underwriter severally agrees to indemnify and hold harmless
25
the Offerors, directors of the Company, the General Partner of the
Partnership, the Issuer Trustees of the Trust, each of the officers of the
Offerors who signed the Registration Statement, and each person, if any, who
controls any of the Offerors 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 the 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 Xxxxxxx Xxxxx expressly for use in the
Registration Statement (or any amendment thereto) or such preliminary
prospectus or the Prospectus (or any amendment or supplement thereto).
(c) 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
Xxxxxxx Xxxxx, and, in the case of parties indemnified pursuant to Section
6(b) above, counsel to the indemnified parties shall be selected by the
Company. 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
26
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.
(d) 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 reasonable 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
Offeror on the one hand and the Underwriters on the other hand from the
offering of the Trust 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
Offerors on the one hand and of 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 Offerors on the one hand and
the Underwriters on the other hand in connection with the offering of the
Trust 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 Trust Preferred Securities pursuant to this Agreement (before
deducting expenses but after deducting the total underwriting commission
received by the Underwriters) received by the Offerors and the total
underwriting commission 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
27
price of the Trust Preferred Securities as set forth on such cover.
The relative fault of the Offerors 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 Offerors or by the Underwriters and
the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Offerors 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 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.
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 Trust Preferred 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, the General Partner of the Partnership, the
Issuer Trustees of the Trust, each officer of the Offerors who signed the
Registration Statement, and each person, if any, who controls any of the
Offerors 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. The
Underwriters' respective
28
obligations to contribute pursuant to this Section 7 are several in
proportion to the principal amount of 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 Offerors or any of its 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 Offerors, and
shall survive delivery of the Trust Preferred Securities to the Underwriters.
SECTION 9. Termination of Agreement.
(a) Termination; General. The Representatives may terminate this
Agreement, by notice to the Company, at any time at or prior to Closing Time
(i) if 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 or business affairs or business prospects of the Company and its
subsidiaries taken as a whole, whether or not arising in the ordinary course
of business, or (ii) if there has occurred any material adverse change in the
financial markets in the United States or the international financial
markets, any outbreak of hostilities or escalation thereof or other calamity
or crisis or any change or development involving a prospective change in
national or international political, financial or economic conditions, in
each case the effect of which is such as to make it, in the judgment of the
Representatives, impracticable to market the Trust Preferred Securities or to
enforce contracts for the sale of the Trust Preferred Securities, or (iii) if
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 (iv) if a banking moratorium has been
declared by either Federal or New York State 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, 7 and 8 shall survive such termination and remain in full
force and effect.
29
SECTION 10. Default by One or More of the Underwriters. If one or more of
the Underwriters shall fail at Closing Time to purchase the Trust 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
aggregate number of the Securities to be purchased hereunder, 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 aggregate
number of the Securities to be purchased hereunder, this Agreement
shall terminate without liability on the part of any non-defaulting
Underwriter.
No action taken pursuant to this Section shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in a
termination of this Agreement, either the Representatives or the Company
shall have the right to postpone Closing Time 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
Underwriters shall be directed to the Representatives at Xxxxx Xxxxx, Xxxxx
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, attention of Office of IBK
Counsel; and notice to the Offerors shall be directed to it at 000 Xxxxxx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, attention of the Secretary
with a copy to the Treasurer at World Financial Center, South Tower, 000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000.
30
SECTION 12. Parties. This Agreement shall inure to the benefit of and be
binding upon the Underwriters and the Offerors 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 and the Offerors and their respective successors and the
controlling persons and officers 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 and the
Offerors and their respective successors, and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Trust
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. EXCEPT
AS OTHERWISE SET FORTH HEREIN, 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.
31
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
among the Underwriters and the Offerors in accordance with its terms.
Very truly yours,
XXXXXXX XXXXX & CO., INC.
By:____________________
Name:
Title:
XXXXXXX XXXXX PREFERRED
FUNDING , L.P.
By: XXXXXXX XXXXX & CO., INC.,
as General Partner
By:____________________
Name:
Title:
XXXXXXX XXXXX PREFERRED
CAPITAL TRUST
By:____________________
Name:
Title: Regular Trustee
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
By: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By:__________________________________
Authorized Signatory
For themselves and as Representatives of the other Underwriters named in
Schedule A hereto.
32
SCHEDULE A
Number of
Trust Preferred
Name of Underwriter Securities
------------------- ---------------
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated..............
[syndicate members]
Total...........................................................
Schedule A-1
SCHEDULE B
1. The initial public offering price per security for the Trust Preferred
Securities, determined as provided in said Section 2, shall be $25.00.
2. The purchase price per security for the Trust Preferred Securities to
be paid by the several Underwriters shall be $25.00, being an amount equal to
the initial public offering price set forth above.
3. The compensation per Trust Preferred Security to be paid by the
Company to the several Underwriters in respect of their commitments hereunder
shall be $ ; provided, however, that the compensation per Trust Preferred
Security for sales of 10,000 or more Trust Preferred Securities to a single
purchaser shall be $ . Xxxxxxx Xxxxx on behalf of the Underwriters will
advise the Company by the close of business one business day prior to the
Closing Time of the number of sales of 10,000 or more Trust Preferred Securities
to a single purchaser.
Schedule A-2
EXHIBIT A
FORM OF OPINION OF XXXXX & WOOD LLP
COMPANY COUNSEL TO BE DELIVERED
PURSUANT TO SECTION 5(b)
1. The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware.
2. The Company has corporate power and authority to own, lease and operate
its properties and to conduct its business as described in the Prospectus and to
enter into and perform its obligations under the Purchase Agreement.
3. The Company 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 result in a Material Adverse Effect (as defined in
Section 1(a)(v) of the Purchase Agreement).
4. Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated ("MLPF&S") has been
duly incorporated and is validly existing as a corporation in good standing
under the laws of the State of Delaware, has corporate power and authority to
own, lease and operate its properties and to 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 the State of New York; all of the issued and
outstanding capital stock of MLPF&S has been duly authorized and validly issued,
is fully paid and non-assessable and, to the best of our knowledge, 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 MLPF&S was issued in violation of
preemptive or other similar rights of any securityholder of MLPF&S.
5. The Purchase Agreement has been duly authorized, executed and delivered
by the Company.
6. Each Indenture has been duly authorized, executed, and delivered by
the applicable Investment Affiliate and, in the case of the Subsidiary
Debentures, the Debenture Guarantor and, when duly authorized, executed and
delivered by the Debt Trustee, will constitute a valid and legally binding
obligation of such Investment Affiliate and, in the case of the Subsidiary
Debentures, the Debenture Guarantor, enforceable against such Investment
Affiliate and, in the case of the Subsidiary Debentures, the Debenture
Guarantor, in accordance with its terms, except as the enforcement thereof may
be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws
relating to or affecting creditors' rights generally and except as enforcement
thereof is subject to general principles of equity (regardless of whether the
enforcement is considered in a proceeding in equity or at law). The Indenture
in respect of the Company Debentures has been duly qualified under the 1939 Act.
(i) The Debentures have been duly authorized, executed and delivered
by the applicable Investment Affiliate and, when duly authenticated by the Debt
Trustee and upon payment and delivery as described in the Purchase Agreement
will constitute valid and legally binding obligations of such Investment
Affiliate enforceable against such Investment Affiliate in accordance with their
terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws relating to or affecting
creditors' rights generally and except as enforcement thereof is subject to
general principles of equity (regardless of whether the enforcement is
considered in a proceeding in equity or at law).
(ii) The Investment Guarantees in respect of each of the Subsidiary
Debentures have been duly authorized, executed and issued by the Debenture
Guarantor and, when duly authorized, executed and delivered by the Debt Trustee
and upon payment and delivery as described in the Purchase Agreement will
constitute valid and legally binding obligations of the Debenture Guarantor
enforceable against the Debenture Guarantor in accordance with their terms
except
A-1
as the enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or affecting creditors'
rights generally and except as enforcement thereof is subject to general
principles of equity (regardless of whether the enforcement is considered in a
proceeding in equity or at law). The Investment Guarantee has been duly
qualified under the 1939 Act.
(iii) The Trust Preferred Securities Guarantee Agreement has been duly
authorized, executed and delivered by the Company and assuming due
authorization, execution and delivery by the Guarantee Trustee, will constitute
a valid and legally binding obligation of the Company, enforceable against the
Company in accordance with its terms except as the enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar laws
relating to or affecting creditors' rights generally and except as enforcement
thereof is subject to general principles of equity (regardless of whether the
enforcement is considered in a proceeding in equity or at law). The Trust
Preferred Securities Guarantee Agreement has been duly qualified under the 1939
Act.
(iv) The Partnership Guarantee Agreement has been duly authorized,
executed and delivered by the Company and constitutes a valid and legally
binding obligation of the Company, enforceable against the Company in accordance
with its terms except as the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws relating to or affecting
creditors' rights generally and except as enforcement thereof is subject to
general principles of equity (regardless of whether the enforcement is
considered in a proceeding in equity or at law).
(v) The Declaration has been duly authorized, executed and delivered
by the Company and has been duly qualified under the 1939 Act.
(vi) The Partnership Agreement has been duly authorized, executed and
delivered by the Company.
(vii) No consent, approval, authorization, order, registration or
qualification of or with any Federal or New York governmental agency or body or
any Delaware governmental agency or body acting pursuant to the Delaware General
Corporation Law or, to our knowledge, any Federal or New York court or any
Delaware court acting pursuant to the Delaware General Corporation Law is
required for the issue and sale by the Offerors of the Offered Securities, the
issuance by the Investment Affiliates of the Debentures, the issuance of the
Investment Guarantees, the Partnership Guarantee and the Trust Guarantee by the
Company and the compliance by the Offerors with all of the provisions of the
Purchase Agreement, except for (a) the registration under the 1933 Act and the
1934 Act of the Offered Securities and (b) such consents, approvals,
authorizations, registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase and distribution of
the Trust Preferred Securities and the Trust Preferred Securities Guarantee by
the Underwriters.
(viii) The statements made in the Prospectus under the captions "Xxxxxxx
Xxxxx Preferred Capital Trust ", "Xxxxxxx Xxxxx Preferred Funding , L.P.",
"Description of Trust Preferred Securities", "Description of Trust Guarantee",
"Description of Partnership Preferred Securities", and "Description of the
Partnership Guarantee", insofar as such statements purport to constitute
summaries of the terms of the Offered Securities, constitute accurate summaries
of the terms of the Offered Securities.
(ix) We hereby confirm (a) our opinions set forth in the Prospectus
under the caption "Certain Federal Income Tax Considerations" and (b) that,
subject to the qualifications set forth therein, the discussion set forth in the
Prospectus under such caption is an accurate summary of the United States
federal income tax matters described therein.
(x) The Registration Statement has been declared effective under the
1933 Act. Any required filing of the Prospectus pursuant to Rule 424(b) has
been made in the manner and within the time period required by Rule 424(b); and
to the best of our knowledge, no stop order suspending the effectiveness of the
A-2
Registration Statement has been issued under the 1933 Act and no proceedings
for that purpose have been initiated or are pending or threatened by the
Commission.
(xi) Neither the Trust nor the Partnership is required to be
registered as an "investment company" under the 1940 Act.
(xii) Each of the Company and the Investment Subsidiaries is not, and
after giving effect to the offering and sale of the Trust Preferred Securities
and the application of the net proceeds therefrom as described in the Prospectus
will not be, an "investment company" as such term is defined in the 1940 Act.
We have participated in conferences with officers and representatives of
the Company, representatives of the independent accountants of the Company and
the Underwriters at which the contents of the Registration Statement and
Prospectus and related matters were discussed and, although we are not passing
upon or assuming responsibility for the accuracy, completeness or fairness of
the statements contained or incorporated by reference in the Registration
Statement and Prospectus and have made no independent check or verification
thereof, on the basis of the foregoing, nothing has come to our attention that
would lead us to believe that the Registration Statement or any post-effective
amendment thereto (except for financial statements and schedules and other
financial data included or incorporated by reference therein or omitted
therefrom and the Form T-1s, as to which we make no statement), at the time the
Registration Statement or any post-effective amendment thereto (including the
filing of the Company's Annual Report on Form 10-K with the Commission) became
effective or at the date of the applicable Terms Agreement, contained an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading or
that the Prospectus or any amendment or supplement thereto (except for financial
statements and schedules and other financial data included or incorporated
therein or omitted therefrom, as to which we make no statement), at the time the
Prospectus was issued, at the time any such amended or supplemented prospectus
was issued or at the Closing Time, included or includes an untrue statement of a
material fact or omitted or omits 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.
In rendering such opinion, such counsel may rely, as to matters of fact
(but not as to legal conclusions), to the extent they deem proper, on
certificates of responsible officers of the Company and public officials. In
addition, 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 and the General Corporation Law of the State of Delaware, upon
the opinions of counsel satisfactory to the Representatives.
A-3
EXHIBIT B
FORM OF OPINION OF [TO BE DECIDED] (Delaware)
SPECIAL DELAWARE COUNSEL TO THE COMPANY, THE TRUST,
AND THE PARTNERSHIP TO BE DELIVERED
PURSUANT TO SECTION 5(b).
(i) The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Trust Act with the power and
authority to own property and to conduct its business as described in the
Registration Statement and Prospectus and to enter into and perform its
obligations under each of the Purchase Agreement, the Trust Preferred
Securities, the Trust Common Securities and the Declaration; the Trust is duly
qualified to transact business as a foreign company and is in good standing in
any other jurisdiction in which such qualification and good standing is
necessary, except to the extent that the failure to so qualify or be in good
standing would not have a material adverse effect on the Trust; the Trust is not
a party to or otherwise bound by any agreement other than those described in
thee Prospectus.
(ii) The Trust Common Securities have been duly authorized by the
Declaration and, when issued and delivered by the Trust to the Company against
payment therefor as described in the Registration Statement and Prospectus, will
be validly issued and (subject to the terms of the Declaration) fully paid
undivided beneficial interests in the assets of the Trust and will conform to
all statements relating thereto contained in the Prospectus; the issuance of the
Trust Common Securities is not subject to preemptive or other similar rights.
(iii) The Trust Preferred Securities have been duly authorized by the
Declaration and, when issued and delivered against payment of the consideration
as set forth in the Purchase Agreement, will be validly issued and (subject to
the terms of the Declaration) fully paid and non-assessable undivided beneficial
interests in the Trust, will be entitled to the benefits of the Declaration and
will conform to all statements relating thereto contained in the Prospectus;
under the Declaration or Delaware law the Trust Preferred Securities are not
subject to preemptive or other similar rights; and holders of Trust Preferred
Securities will be entitled to the same limitation of personal liability under
Delaware law as extended to stockholders of private corporations for profit.
(iv) The Partnership has been duly created and is validly existing in
good standing as a limited partnership under the Delaware Partnership Act with
the power and authority to own property and to conduct its business as described
in the Registration Statement and Prospectus and to enter into and perform its
obligations under each of the Purchase Agreement, the Partnership Preferred
Securities and the Partnership Agreement; the Partnership is duly qualified to
transact business as a foreign company and is in good standing in any other
jurisdiction in which such qualification is necessary, except to the extent that
the failure to so qualify or be in good standing would not have a material
adverse effect on the Partnership; the Partnership is not a party to or
otherwise bound by any agreement other than those described in the Prospectus.
(v) The Partnership Preferred Securities have been duly authorized
and, when issued and delivered pursuant to the Partnership Agreement against
payment of the consideration set forth therein, will represent valid partnership
interests in the Partnership will be entitled to the benefits of the Partnership
Agreement and will conform to the description thereof in the Prospectus; the
issuance of the Partnership Preferred Securities is not subject to preemptive or
other similar rights; assuming that the holders of Partnership Preferred
Securities in their capacities as such do not participate in the control of the
business of the Partnership, the holders of the Partnership Preferred
Securities, in their capacities as such, will have no liability to third parties
in excess of their obligations to make payments provided for in the Limited
Partnership Agreement; to our knowledge, there are no provisions in the
Partnership Agreement which would permit the holders of Partnership Preferred
Securities in their capacities as such to participate in the control of the
business of the Partnership.
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(vi) Assuming the Declaration has been duly authorized by the Company,
the Declaration has been duly executed and delivered by the Company and the
Trustees, and assuming due authorization, execution and delivery of the
Declaration by the Institutional Trustee, the Declaration constitutes 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 to the extent that enforcement thereof may be limited by the Bankruptcy
Exceptions and conforms to all statements relating thereto in the Prospectus.
(vii) Assuming the Partnership Agreement has been duly authorized by
the Company, the Partnership Agreement has been duly executed and delivered by
the Company and constitutes a valid and legally binding obligation of the
Company, enforceable against the Company in accordance with its terms, except to
the extent that enforcement thereof may be limited by the Bankruptcy Exceptions
and conforms to the description thereof in the Prospectus.
(viii) The execution, delivery and performance of the Transaction
Documents by the Offerors and the consummation of the transactions contemplated
herein and therein and compliance by the Offerors with their respective
obligations do not and will not result in any violation of the Declaration or
Certificate of Trust or the Partnership Agreement or the Certificate of
Partnership and do not and will not conflict with, or result in a breach of any
of the terms or provisions of, or constitute a default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any property or
assets of the Trust or the Partnership under (A) any contract, indenture,
mortgage, loan agreement, note, lease or other agreement or instrument in each
case governed by Delaware law to which the Trust or the Partnership is a party
or by which they may be bound or to which any of their properties may be subject
(except for such conflicts, breaches or defaults or liens, charges or
encumbrances that would not have a material adverse effect on the condition
(financial or otherwise), earnings, business affairs or business prospects of
the Company subsidiaries taken as a whole or (B) any existing applicable law,
rule, regulation, judgment, order or decree of any Delaware government,
governmental instrumentality or court, domestic or foreign, or any Delaware
regulatory body or administrative agency or other governmental body having
jurisdiction over the Offerors of their respective properties.
(ix) No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any Delaware court or Delaware
governmental authority or agency (other than as may be required under the
securities or blue sky laws of the state of Delaware, as to which we need
express no opinion) is necessary or required in connection with the due
authorization, execution and delivery of the Purchase Agreement or the due
execution, delivery or performance of the Transaction Documents by the Offerors
or for the offering, issuance, sale or delivery of the Offered Securities.
B-2
EXHIBIT C
FORM OF OPINION OF XXXXXX & XXXXXX
COUNSEL FOR THE PROPERTY TRUSTEE TO BE
DELIVERED PURSUANT TO SECTION 5(d)
(i) The Chase Manhattan Bank is a national banking association with
trust powers, is duly organized, is validly existing and is in good standing
under the laws of the United States with all necessary power and authority to
execute, deliver and to carry out and perform its obligations under the terms of
the Declaration and each of the Trust Preferred Guarantees.
(ii) Chase Manhattan Bank Delaware is a Delaware banking corporation
with trust powers, is duly organized, is validly existing and is in good
standing under the laws of the State of Delaware with all necessary power and
authority to execute, deliver and to carry out and perform its obligations under
the terms of the Declaration.
(iii) The execution, delivery and performance by the Property Trustee
and the Delaware Trustee of the Declaration and the execution, delivery and
performance by the Guarantee Trustee of the Trust Preferred Guarantee have been
duly authorized by all necessary corporate action on the part of the
Institutional Trustee and the Delaware Trustee, in the case of the Declaration,
and the Guarantee Trustee, in the case of the Trust Preferred Guarantee. The
Declaration and the Trust Preferred Guarantee have been duly executed and
delivered by the Property Trustee and the Delaware Trustee, in the case of the
Declaration, and the Guarantee Trustee, in the case of the Trust Preferred
Guarantee, and constitute the legal, valid and binding obligations of the
Property Trustee and the Delaware Trustee, in the case of the Declaration, and
the Guarantee Trustee, in the case of the Trust Preferred Guarantee, enforceable
against the Property Trustee and the Delaware Trustee, in the case of the
Declaration, and the Guarantee Trustee, in the case of the Trust Preferred
Guarantee, in accordance with their terms, except as enforcement thereof may be
limited by the Bankruptcy Exceptions.
(iv) The execution, delivery and performance of the Declaration and
the Trust Preferred Guarantee by the Property Trustee and the Delaware Trustee,
in the case of the Declaration, and the Guarantee Trustee, in the case of the
Trust Preferred Guarantee, do not conflict with or constitute a breach of the
Articles of Organization or Bylaws of the Property Trustee or the Delaware
Trustee, in the case of the Declaration, or the Guarantee Trustee, in the case
of the Trust Preferred Guarantee.
(v) No consent, approval or authorization of, or registration with or
notice to, any Illinois, Delaware or federal banking authority is required for
the execution, delivery or performance by the Property Trustee or the Delaware
Trustee of the Declaration or by the Guarantee Trustee of the Trust Preferred
Guarantee.
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