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EXHIBIT 2.h
AUTOMATIC COMMON EXCHANGE SECURITY TRUST II
(subject to exchange into shares of common stock of Republic Industries, Inc.)
$______ TRUST AUTOMATIC COMMON EXCHANGE SECURITIES
Underwriting Agreement
May , 1997
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.,
As representatives of the several Underwriters
named in Schedule I hereto,
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
Ladies and Gentlemen:
Automatic Common Exchange Security Trust II, a trust duly created under
the laws of the State of New York (such trust and the trustees thereof acting in
their capacities as such being referred to herein as the "Trust"), proposes,
subject to the terms and conditions stated herein, to issue and sell to the
Underwriters named in Schedule I hereto (the "Underwriters") an aggregate of
8,700,000 shares of the $___.__ Automatic Common Exchange Securities of the
Trust specified above (the "Firm Securities") and, at the election of the
Underwriters, up to an aggregate of 1,234,235 additional shares of the
$___.__ Automatic Common Exchange Securities (the "Optional Securities")
(the Firm Securities and the Optional Securities which the Underwriters elect
to purchase pursuant to Section 2 hereof are herein collectively called the
"Securities").
The $___.__ Automatic Common Exchange Securities of the Trust to be
outstanding after giving effect to the sales contemplated hereby are hereinafter
called the "Automatic Common Exchange Securities". Each Automatic Common
Exchange Security will be exchanged for one or fewer shares of Common Stock, par
value $0.01 per share ("Stock"), of Republic Industries, Inc., a Delaware
corporation (the "Company"), or for cash pursuant to the Cash Settlement
Alternative (as such term is defined in the Trust Prospectus) (as defined in
Section 1(c)(i) hereof) on _________, 2000 (the "Exchange Date") to be delivered
pursuant to forward purchase contracts (the "Contracts"), dated June __, 1997,
among the Trust and one or more existing stockholders of the Company (the
"Sellers"). The Trust has entered into a Contract with each Seller obligating
that Seller to deliver to the Trust on the Exchange Date a number of shares of
Stock equal to the product of the Exchange Rate (as such term is defined in the
Trust Prospectus) times the initial number of shares of Stock subject to such
Contract. The Sellers' obligations under the Contracts will be secured by
pledges of collateral pursuant to the terms of
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collateral agreements, dated June __, 1997, among each of the Sellers, The Bank
of New York ("BONY"), as collateral agent (in such capacity, the "Collateral
Agent"), and the Trust (the "Collateral Agreements").
1. (a) The Company represents and warrants to, and agrees with, each of
the Underwriters, the Trust and the Sellers that:
(i) A registration statement on Form S-3 (File No.
333-23415) (the "Initial Company Registration Statement") in respect of
the shares of Stock deliverable pursuant to the Contracts has been
filed with the Securities and Exchange Commission (the "Commission");
the Initial Company Registration Statement and any post-effective
amendment thereto, each in the form heretofore delivered to you, and,
excluding exhibits thereto but including all documents incorporated by
reference in the prospectus contained therein, to you for each of the
other Underwriters, have been declared effective by, or have been filed
with, as the case may be, the Commission in such form; no other
document with respect to the Initial Company Registration Statement has
heretofore been filed with the Commission; and no stop order suspending
the effectiveness of the Initial Company Registration Statement or any
post-effective amendment thereto has been issued and no notice has been
received from the Commission by the Company that any proceeding for
that purpose has been initiated (any preliminary prospectus included in
the Initial Company Registration Statement or filed with the Commission
pursuant to Rule 424(a) of the rules and regulations of the Commission
under the Act is hereinafter called a "Company Preliminary Prospectus";
the various parts of the Initial Company Registration Statement,
including all exhibits thereto and including (A) the information
contained in the form of final prospectus filed with the Commission
pursuant to Rule 424(b) under the Securities Act of 1933, as amended
(the "Act"), in accordance with Section 5(a) hereof and deemed by
virtue of Rule 430A under the Act to be part of the Initial Company
Registration Statement at the time it was declared effective and (B)
the documents incorporated by reference in the prospectus contained in
the Initial Company Registration Statement at the time such part of the
Initial Company Registration Statement became effective as amended at
the time such part of the Initial Company Registration Statement became
effective, are hereinafter collectively called the "Company
Registration Statement"; such final prospectus, in the form first filed
pursuant to Rule 424(b) under the Act, is hereinafter called the
"Company Prospectus"; the Trust Registration Statement (as defined in
Section 1(c)(i) hereof) and the Company Registration Statement are
hereinafter collectively called the "Registration Statements" and the
Trust Prospectus and the Company Prospectus are hereinafter
collectively called the "Prospectuses"; any reference herein to any
Company Preliminary Prospectus or the Company Prospectus shall be
deemed to refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the Act, as of the date
of such Company Preliminary Prospectus or Company Prospectus, as the
case may be; any reference to any amendment or supplement to any
Company Preliminary Prospectus or the Company Prospectus shall be
deemed to refer to and include any documents filed after the date of
such Company Preliminary Prospectus or Company Prospectus, as the case
may be, under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and
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incorporated by reference in such Company Preliminary Prospectus or
Company Prospectus, as the case may be; and any reference to any
amendment to the Company Registration Statement shall be deemed to
refer to and include any annual report of the Company filed pursuant to
Section 13(a) or 15(d) of the Exchange Act after the effective date of
the Initial Company Registration Statement that is incorporated by
reference in the Company Registration Statement);
(ii) No order preventing or suspending the use of
any Company Preliminary Prospectus has been issued by the Commission,
and each Company Preliminary Prospectus, at the time of filing thereof,
conformed in all material respects to the requirements of the Act and
the rules and regulations of the Commission thereunder, and did 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, in the light of the circumstances under which they
were made, not misleading; provided, however, that this representation
and warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in writing
to the Company by the Underwriters or the Sellers expressly for use
therein;
(iii) The documents incorporated by reference in the
Company Prospectus, when they became effective or were filed with the
Commission, as the case may be, conformed in all material respects to
the requirements of the Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder, and none of such
documents contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to
make the statements therein not misleading; and any further documents
so filed and incorporated by reference in the Company Prospectus or any
further amendment or supplement thereto, when such documents become
effective or are filed with the Commission, as the case may be, will
conform in all material respects to the requirements of the Act or the
Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder 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;
provided, however, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by the
Underwriters or the Sellers expressly for use therein;
(iv) The Company Registration Statement conforms,
and the Company Prospectus and any further amendments or supplements to
the Company Registration Statement or the Company Prospectus, when they
become effective or are filed with the Commission, will conform, in all
material respects to the requirements of the Act and the rules and
regulations of the Commission thereunder and do not and will not, as of
the applicable effective date as to the Company Registration Statement
and any amendment thereto, and as of the applicable filing date as to
the Company Prospectus and any amendment or supplement thereto, 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; provided, however, that this representation and
warranty shall not apply to any state-
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ments or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by the Underwriters or
the Sellers expressly for use therein;
(v) Except as disclosed in the Company Prospectus
or any document incorporated by reference therein, the Company
and its subsidiaries, taken as a whole, has not sustained since the
date of the latest audited financial statements included or
incorporated by reference in the Company Prospectus any material loss
or interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree; and, since
the latest dates as of which information is given in the Company
Registration Statement and the Company Prospectus or any document
incorporated by reference therein, there has not been any change in the
outstanding capital stock in excess of 100,000,000 shares or long-term
debt (net of current maturities) and long-term revenue earning vehicle
debt (net of current maturities) in excess of $300,000,000 of the
Company on a consolidated basis, any material adverse change, or any
development involving a prospective material adverse change, in or
affecting the general affairs, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, taken as a whole, otherwise than as set forth or
contemplated in the Company Prospectus;
(vi) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws of
Delaware, with power and authority to own its properties and conduct
its business as described in the Company Prospectus, and has been duly
qualified as a foreign corporation for the transaction of business and
is in good standing under the laws of each other jurisdiction in which
it owns or leases properties or conducts any business so as to require
such qualification, or is subject to no material liability or
disability by reason of the failure to be so qualified in any such
jurisdiction; and substantially all of the subsidiaries of the Company
(the "significant subsidiaries") have been duly incorporated and are
validly existing as corporations in good standing under the laws of
their respective jurisdictions of incorporation;
(vii) The Company had, at the time of filing, an
authorized capitalization as set forth in the Company Prospectus, and
all of the issued shares of capital stock of the Company, including the
Stock, have been duly and validly authorized and issued, are fully paid
and non-assessable and conform to the description of the Stock
contained in the Company Prospectus; and all of the issued shares of
capital stock of each significant subsidiary of the Company have been
duly and validly authorized and issued, are fully paid and
non-assessable and (except for directors' qualifying shares) are owned
directly or indirectly by the Company, free and clear of all material
liens, encumbrances, equities or claims;
(viii) The compliance by the Company with all of the
provisions of this Agreement and the consummation of the transactions
herein contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default
under, any material indenture, mortgage, deed of trust,
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loan agreement or other material agreement or instrument to which the
Company or any of its significant subsidiaries is a party or by which
the Company or any of its significant subsidiaries is bound or to
which the material property or assets of the Company and its
significant subsidiaries, taken as a whole, is subject, nor will such
action result in any violation of the provisions of the Third Amended
and Restated Certificate of Incorporation or By-laws of the Company or
any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or
any of its significant subsidiaries or any of their material
properties, taken as a whole; and no consent, approval, authorization,
order, registration or qualification of or with any such court or
governmental agency or body is required for the performance by the
Company of its obligations under this Agreement, except such as may be
required by the National Association of Securities Dealers, Inc. (the
"NASD") or the registration under the Act of the Securities and such
consents, approvals, authorizations, registrations or qualifications
as may be required under state securities or Blue Sky laws in
connection with the purchase and distribution of the shares of
Securities pursuant to the Contracts;
(ix) Neither the Company nor any of its significant
subsidiaries is in violation of its certificate of incorporation or
by-laws or in material default in the performance or observance of any
material obligation, agreement, covenant or condition contained in any
material indenture, mortgage, deed of trust, loan agreement, lease or
other material agreement or instrument to which it is a party or by
which it may be bound which default would individually or in the
aggregate have a material adverse effect on the current or future
consolidated financial position, stockholders' equity or results of
operations of the Company and its subsidiaries;
(x) The statements set forth in the Company
Prospectus under the caption "Description of Capital Stock", as
modified by the Company's Form 8-K dated May 14, 1997, insofar as they
purport to constitute a summary of the terms of the Stock, are
accurate, complete and fair in all material respects;
(xi) Other than as set forth in the Company
Prospectus, there are no legal or governmental proceedings
pending to which the Company or any of its subsidiaries is a party or
of which any property of the Company or any of its subsidiaries is the
subject which, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a material
adverse effect on the current or future consolidated financial
position, stockholders' equity or results of operations of the
Company and its subsidiaries; and, to the best of the Company's
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(xii) The Company is not an "investment company" or
an entity "controlled" by an "investment company", as such terms are
defined in the Investment Company Act of 1940, as amended (the
"Investment Company Act" and, together with the Act, the "Acts");
(xiii) The Stock is listed on The Nasdaq Stock
Market -- National Market ("Nasdaq");
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(xiv) Neither the Company nor any of its affiliates
does business with the government of Cuba or with any person or
affiliate located in Cuba within the meaning of Section 517.075,
Florida Statutes; and
(xv) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, who have certified certain
financial statements of the Company and its subsidiaries, are
independent public accountants as required by the Act and the rules and
regulations of the Commission thereunder.
(b) Each Seller represents and warrants to, and agrees with,
each of the Underwriters, the Company and the Trust that:
(i) The compliance by such Seller with all of the
provisions of this Agreement, the Contract to which such Seller is a
party and the Collateral Agreement to which such Seller is a party and
the consummation of the transactions herein and therein contemplated
will not conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which such Seller is a party or by which such Seller is
bound or to which any of the property or assets of such Seller is
subject, nor will such action result in any violation of the provisions
of any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over such Seller or any
of the property of such Seller; and no consent, approval,
authorization, order, registration or qualification of or with any such
court or governmental agency or body is required for the compliance by
such Seller with or the consummation by such Seller of the transactions
contemplated by this Agreement, the Contract to which such Seller is a
party or the Collateral Agreement to which such Seller is a party,
except such as may be required by the NASD or the registration under
the Act of the Securities and such consents, approvals, authorizations,
registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase and
distribution of the Stock by the Trust pursuant to the Contracts;
(ii) This Agreement has been duly authorized (in
the case of each Non-Individual Seller (as defined in Section 7(j)
hereof)), executed and delivered by such Seller; the Contract to which
such Seller is a party and the Collateral Agreement to which such
Seller is a party have been duly authorized (in the case of each
Non-Individual Seller), executed and delivered by such Seller and,
assuming due authorization, execution and delivery by the other parties
thereto, constitute valid and legally binding agreements of such
Seller, enforceable in accordance with their respective terms, subject,
as to enforcement, to bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting creditors'
rights and to general equity principles;
(iii) Such Seller has, and immediately prior to each
Time of Delivery (as defined in Section 4(a) hereof) such Seller will
have, good and valid title to the shares of Stock to be pledged and
assigned by it under the Collateral Agreement to which such Seller is a
party, free and clear of all liens, encumbrances, equities or claims
other than those created pursuant to such Collateral Agreement; all
consents, approvals, authorizations and orders necessary for such
Seller to pledge and
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assign the shares of Stock to be pledged and assigned by such Seller
pursuant to such Collateral Agreement have been obtained; such Seller
has full right, power and authority to pledge and assign the shares of
Stock to be pledged and assigned by such Seller pursuant to such
Collateral Agreement to which such Seller is a party; and upon delivery
of such shares of Stock and payment therefor pursuant to the Contracts
to which such Seller is a party, good and valid title to such shares of
Stock, free and clear of all liens, encumbrances, equities or claims,
will pass to the Trust;
(iv) The representations and warranties of such
Seller set forth in Section 3 of such Collateral Agreement are true and
correct on and as of the date hereof with the same effect as though
such representations and warranties had been set forth in full in this
Agreement;
(v) During the period beginning from the date
hereof and continuing to and including the date 90 days after the date
of the Trust Prospectus, such Seller will not offer, sell, contract to
sell or otherwise dispose of, except as provided hereunder, any Stock
or any securities of the Company that are substantially similar to the
Stock, including but not limited to any securities that are convertible
into or exchangeable for, or that represent the right to receive, Stock
or any such substantially similar securities without your prior written
consent, provided, however, that if the Underwriters have not exercised
their right to purchase all the Optional Securities pursuant to
subsection 2(b) hereof as of the 30th calendar day after the date of
the Trust Prospectus, the agreement of the Sellers in this paragraph
(v) of subsection 1(b) shall not apply to those Optional Securities the
Underwriters have not purchased by such date;
(vi) Such Seller has not taken, nor will such
Seller take, directly or indirectly, any action which is designed to or
which has constituted or which might reasonably be expected to cause or
result in stabilization or manipulation of the price of any security of
the Company to facilitate the sale or resale of the Securities; and
(vii) To the extent that any statements or omissions
made in the Registration Statements, any Preliminary Prospectus, the
Prospectuses or any amendment or supplement thereto are made in
reliance upon and in conformity with written information furnished to
the Company by such Seller expressly for use therein, such Preliminary
Prospectus and the Registration Statements did, and the Prospectuses
and any further amendments or supplements to the Registration
Statements and the Prospectuses, when they become effective or are
filed with the Commission, as the case may be, will conform in all
material respects to the requirements of the Acts and the rules and
regulations of the Commission thereunder and will not contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading.
(c) The Trust represents and warrants to, and agrees
with, each of the Underwriters, the Sellers and the Company that:
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(i) A notification on Form N-8A (the
"Notification") of registration of the Trust as an investment company
has been filed with the Commission; a registration statement on Form
N-2 (File No. 333-22289 and File No. 811-08069) (the "Initial Trust
Registration Statement") in respect of the Securities has been filed
with the Commission; the Initial Trust Registration Statement and any
post-effective amendment thereto, each in the form heretofore delivered
to you, and, excluding exhibits thereto, to you for each of the other
Underwriters, have been declared effective by the Commission in such
form; no other document with respect to the Initial Trust Registration
Statement has heretofore been filed with the Commission; and no stop
order suspending the effectiveness of the Initial Trust Registration
Statement, or any post-effective amendment thereto has been issued and
no proceeding for that purpose has been initiated or threatened by the
Commission (any preliminary prospectus included in the Initial Trust
Registration Statement or filed with the Commission pursuant to Rule
424(a) of the rules and regulations of the Commission under the Act, is
hereinafter called a "Trust Preliminary Prospectus"; the various parts
of the Initial Trust Registration Statement including all exhibits
thereto and including the information contained in the form of final
prospectus filed with the Commission pursuant to Rule 424(b) under the
Act in accordance with Section 5(a) hereof and deemed by virtue of Rule
430A under the Act to be part of the Initial Trust Registration
Statement at the time it was declared effective, as amended at the time
such part of the registration statement became effective, are
hereinafter collectively called the "Trust Registration Statement"; and
such final prospectus, in the form first filed pursuant to Rule 424(b)
under the Act, is hereinafter called the "Trust Prospectus");
(ii) No order preventing or suspending the use of
any Trust Preliminary Prospectus has been issued by the Commission, and
each Trust Preliminary Prospectus, at the time of filing thereof,
conformed in all material respects to the requirements of the Acts, and
the rules and regulations of the Commission thereunder, and did 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, in the light of the circumstances under which they
were made, not misleading; provided, however, that this representation
and warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in writing
to the Trust by the Underwriters or the Sellers expressly for use
therein;
(iii) The Notification and the Trust Registration
Statement conform, and the Trust Prospectus and any further amendments
or supplements to the Notification, the Trust Registration Statement or
the Trust Prospectus will conform, in all material respects to the
requirements of the Acts and the rules and regulations of the
Commission thereunder and do not and will not, as of the applicable
effective date as to the Trust Registration Statement and any amendment
thereto and as of the applicable filing date as to the Trust Prospectus
and any amendment or supplement thereto, 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;
provided, however, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in
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conformity with information furnished in writing to the Trust by the
Underwriters or the Sellers expressly for use therein;
(iv) Since the respective dates as of which
information is given in the Trust Registration Statement and the Trust
Prospectus, there has not been any material adverse change, or any
development involving a prospective material adverse change, in or
affecting the general affairs, management, financial position, results
of operations, prospects, investment objectives, investment policies,
liabilities of the Trust, otherwise than as set forth or contemplated
in the Trust Prospectus and there have been no transactions entered
into by the Trust which are material to the Trust other than those in
the ordinary course of its business or as described in the Trust
Prospectus;
(v) The Trust has been duly created, is validly
existing as a trust under the laws of the State of New York, with power
and authority to own its properties and conduct its business as
described in the Trust Prospectus and to enter into and perform its
obligations under this Agreement and the Fundamental Agreements (as
defined in Section 1(c)(vii) hereof); the Trust has all necessary
consents, approvals, authorizations, orders, registrations or
qualifications, of and from, and has made all declarations and filings
with, all courts and governmental agencies and bodies, to own and use
its assets and to conduct its business in the manner described in the
Trust Prospectus, except to the extent that the failure to obtain or
file the foregoing would not have a material adverse effect on the
Trust and except such as may be required by the NASD or the
registration under the Act of the Securities and such consents,
approvals, authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection with the
purchase and distribution of the Securities by the Underwriters; the
Trust has no subsidiaries;
(vi) The Trust is registered with the Commission as
a non-diversified, closed-end management investment company under the
Investment Company Act and no order of suspension or revocation of such
registration has been issued or proceedings therefor initiated or, to
the knowledge of the Trust, threatened by the Commission; no person is
serving or acting as an officer or trustee of the Trust except in
accordance with the provisions of the Investment Company Act;
(vii) Each of the Contracts, the Collateral
Agreements, the Administration Agreement between BONY and the Trust
(the "Administration Agreement"), the Custodian Agreement between BONY
and the Trust (the "Custodian Agreement"), the Paying Agent Agreement
between BONY and the Trust (the "Paying Agent Agreement"), the Fund
Expense Agreement between ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. and BONY (the "Fund
Expense Agreement") and the Fund Indemnity Agreement between ▇▇▇▇▇▇▇,
Sachs & Co. and the Trust (the "Fund Indemnity Agreement") (the
Contracts, the Collateral Agreements, the Administration Agreement, the
Custodian Agreement, the Paying Agent Agreement, the Fund Expense
Agreement and the Fund Indemnity Agreement are herein collectively
called the "Fundamental Agreements") has been duly authorized, executed
and delivered by the Trust and, assuming due authorization, execution
and delivery by the other parties thereto,
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constitutes a valid and legally binding agreement of the Trust,
enforceable in accordance with its terms, subject, as to enforcement,
to bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to general
equity principles;
(viii) The Trust Agreement and the Fundamental
Agreements comply with all applicable provisions of the Acts, and all
approvals of such agreements required under the Investment Company Act
by the holders of the Automatic Common Exchange Securities and the
trustees have been obtained and are in full force and effect;
(ix) All of the outstanding Automatic Common
Exchange Securities have been duly and validly authorized and issued
and are fully paid and non-assessable, and the form of certificates
used to evidence the Automatic Common Exchange Securities is in due and
proper form and complies with all provisions of applicable law; the
Trust Agreement and the Fundamental Agreements conform to the
description thereof contained in the Trust Prospectus;
(x) The Securities have been duly authorized and,
when issued and delivered pursuant to this Agreement, will be validly
issued, fully paid and non-assessable; the Securities will conform to
the description thereof in the Trust Prospectus; no person has rights
to registration of any securities because of the filing of the Trust
Registration Statement;
(xi) The issue and sale of the Securities and the
compliance by the Trust with all of the provisions of the Securities,
this Agreement and each Fundamental Agreement and the consummation of
the transactions herein and therein contemplated will not conflict with
or result in a breach or violation of any of the terms or provisions
of, or constitute a default under, the Trust Agreement or any
indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument to which the Trust is a party or by which the Trust is
bound or to which any of the property or assets of the Trust is
subject, nor will such action result in any violation of any statute or
any order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Trust or any of its properties; and
no consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body
is required for the issue and sale of the Securities or the
consummation by the Trust of the transactions contemplated by this
Agreement or the Fundamental Agreements, except such as may be required
by the NASD or the registration under the Act of the Securities and
such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue Sky
laws in connection with the purchase and distribution of the Securities
by the Underwriters;
(xii) The Fundamental Agreements are in full force
and effect and the Trust is not in default in the performance or
observance of any obligation, covenant or condition thereunder and, to
the knowledge of the Trust, no event has occurred which with the
passage of time or the giving of notice or both would constitute a
default thereunder; the Trust is not in default in the performance or
observance of
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any obligation, covenant or condition contained in any other agreement
or instrument to which it is a party or by which it or any of its
properties may be bound;
(xiii) The statements set forth in the Trust
Prospectus under the caption "Description of the Securities", insofar
as they purport to constitute a summary of the terms of the Securities,
under the caption "Certain Federal Income Tax Considerations", and
under the caption "Underwriting", insofar as they purport to describe
the provisions of the laws and agreements referred to therein, are
accurate, complete and fair;
(xiv) Other than as set forth in the Trust
Prospectus, there are no legal or governmental proceedings pending to
which the Trust is a party or of which any property of the Trust is the
subject which, if determined adversely to the Trust, would individually
or in the aggregate have a material adverse effect on the current or
future financial position, or results of operations of the Trust; and,
to the best of the Trust's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened by
others;
(xv) There are no material restrictions,
limitations or regulations with respect to the ability of the Trust to
invest its assets as described in the Trust Prospectus, other than as
described therein;
(xvi) The Securities and any Automatic Common
Exchange Securities outstanding prior to the issuance of the Securities
have been approved for listing on the New York Stock Exchange subject
to notice of issuance; the Trust's Registration Statement on Form 8-A
under the Exchange Act is effective;
(xvii) The Trust does not do business with the
government of Cuba or with any person or affiliate located in Cuba
within the meaning of Section 517.075, Florida Statutes; and
(xviii) Coopers & ▇▇▇▇▇▇▇ L.L.P., who have certified
certain financial statements and supporting schedules included in the
Trust Registration Statement, are independent public accountants as
required by the Act and the rules and regulations of the Commission
thereunder.
2. Subject to the terms and conditions herein set forth, (a) the Trust
agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Trust, at a
purchase price of $___.___ per Security, the number of Firm Securities set forth
opposite the name of such Underwriter in Schedule I hereto and (b) in the event
and to the extent that the Underwriters shall exercise the election to purchase
Optional Securities as provided below, the Trust agrees to issue and sell to
each of the Underwriters, and each of the Underwriters agrees, severally and not
jointly, to purchase from the Trust, at the same purchase price set forth in
clause (a) of this Section 2, that portion of the aggregate number of Optional
Securities as to which such election shall have been exercised (to be adjusted
by you so as to eliminate fractional securities) determined by multiplying such
number of Optional Securities by a fraction, the numerator of which is the
maximum aggregate number of Optional Securities which such
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Underwriter is entitled to purchase as set forth opposite the name of such
Underwriter in Schedule I hereto and the denominator of which is the maximum
aggregate number of Optional Securities that all of the Underwriters are
entitled to purchase hereunder. The agreements in this Section made by the Trust
are for the benefit of and enforceable by the Underwriters and the Sellers. The
agreements in this Section made by the Underwriters are for the benefit of and
are enforceable by the Sellers and the Trust.
The Trust hereby grants to the Underwriters the right to purchase at
their election up to 1,234,235 Optional Securities, at the purchase price set
forth in clause (a) of the first paragraph of this Section 2, for the sole
purpose of covering overallotments in the sale of the Firm Securities. Any such
election to purchase Optional Securities may be exercised only by written notice
from you to the Trust (with copies to ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇, 500
▇▇▇▇▇▇▇ Building, 321 South Boston, Tulsa, Oklahoma 74103), given within a
period of 30 calendar days after the date of this Agreement, setting forth the
aggregate principal amount of Optional Securities to be purchased and the date
on which such Optional Securities are to be delivered, as determined by you but
in no event earlier than the First Time of Delivery (as defined in Section 4(a)
hereof) or, unless you and the Trust otherwise agree in writing, earlier than
two or later than ten business days after the date of such notice.
As compensation to the Underwriters for their commitments hereunder,
and in view of the fact that the proceeds of the sale of the Securities will be
used by the Trust as specified in the Contracts, the Sellers at each Time of
Delivery will pay to ▇▇▇▇▇▇▇, Sachs & Co., for the accounts of the several
Underwriters, an amount equal to $___.___ per Security for the Securities to be
delivered at such Time of Delivery; provided that the aggregate amount payable
to ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. by the Sellers shall be paid by the Sellers on a pro
rata basis according to the number of shares of Stock pledged by each Seller
pursuant to the Collateral Agreement to which such Seller is a party.
Alternatively, as a matter of convenience, ▇▇▇▇▇▇▇, Sachs & Co. may deduct such
amount from the purchase price of the Securities, and in such event the Sellers
shall be deemed to have paid the same.
3. Upon the authorization by you of the release of the Firm Securities,
the several Underwriters propose to offer the Firm Securities for sale upon the
terms and conditions set forth in the Trust Prospectus.
4. (a) The Securities to be purchased by each Underwriter hereunder, in
definitive form, and in such authorized denominations and registered in such
names as ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. may request upon at least forty-eight hours' prior
notice to the Trust, shall be delivered by or on behalf of the Trust to ▇▇▇▇▇▇▇,
Sachs & Co., for the account of such Underwriter, against payment by or on
behalf of such Underwriter of the purchase price therefor by wire transfer or
certified or official bank check or checks, payable to the order of the Trust
in Federal (same day) funds. The Trust will cause the certificates representing
the Securities to be made available for checking and packaging at least
twenty-four hours prior to the Time of Delivery (as defined below) at the
office of ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ (the
"Designated Office"). The time and date of such delivery and payment shall be,
with respect to the Firm Securities, 9:30 a.m., New York City time, on June __,
1997 or such other time and date as ▇▇▇▇▇▇▇, Sachs & Co.
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and the Trust may agree upon in writing, and, with respect to the Optional
Securities, 9:30 a.m., New York City time, on the date specified by ▇▇▇▇▇▇▇,
▇▇▇▇▇ & Co. in the written notice given by ▇▇▇▇▇▇▇, Sachs & Co. of the
Underwriters' election to purchase such Optional Securities, or such other time
and date as ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. and the Trust may agree upon in writing. Such
time and date for delivery of the Firm Securities is herein called the "First
Time of Delivery", such time and date for delivery of the Optional Securities,
if not the First Time of Delivery, is herein called the "Second Time of
Delivery", and each such time and date for delivery is herein called a "Time of
Delivery".
(b) The documents to be delivered at each Time of Delivery by
or on behalf of the parties hereto pursuant to Section 7 hereof, including the
cross-receipt for the Securities and any additional documents requested by the
Underwriters pursuant to Section 7(p) hereof, will be delivered at the offices
of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇ (the "Closing Location"), and the Securities will be delivered at the
Designated Office, all at such Time of Delivery. A meeting will be held at the
Closing Location at _____ p.m., New York City time, on the New York Business Day
next preceding such Time of Delivery, at which meeting the final drafts of the
documents to be delivered pursuant to the preceding sentence will be available
for review by the parties hereto. For the purposes of this Section 4, "New York
Business Day" shall mean each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in New York City are generally
authorized or obligated by law or executive order to close.
5. (a) The Trust agrees with each of the Underwriters:
(i) To prepare the Trust Prospectus in a form
approved by you and to file such Trust Prospectus pursuant to Rule
497(h) under the Act not later than the Commission's close of business
on the second business day following the execution and delivery of this
Agreement, or, if applicable, such earlier time as may be required by
Rule 430A(a)(3) under the Act; to make no further amendment or any
supplement to the Trust Registration Statement or Trust Prospectus
prior to the last Time of Delivery which shall be disapproved by you
promptly after reasonable notice thereof; to advise you, promptly after
it receives notice thereof, of the time when any amendment to the Trust
Registration Statement has been filed or becomes effective or any
supplement to the Trust Prospectus or any amended prospectus has been
filed and to furnish you with copies thereof; to file promptly all
reports and any definitive proxy or information statements required to
be filed by the Trust with the Commission pursuant to the Acts and the
Exchange Act subsequent to the date of the Trust Prospectus and for so
long as the delivery of a prospectus is required in connection with the
offering or sale of the Securities; to advise you, promptly after it
receives notice thereof, of the issuance by the Commission of any stop
order or of any order preventing or suspending the use of any Trust
Preliminary Prospectus or prospectus or any order pursuant to Section
8(e) of the Investment Company Act, of the suspension of the
qualification of the Securities for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for
any such purpose, or of any request by the Commission for the amending
or supplementing of the Trust Registration Statement or Trust
Prospectus or for additional information; and, in the event of the
issuance of any stop order or
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of any order preventing or suspending the use of any Trust Preliminary
Prospectus or prospectus or suspending any such qualification or order
pursuant to Section 8(e) of the Investment Company Act, promptly to use
its best efforts to obtain the withdrawal of such order;
(ii) Promptly from time to time to take such action
as you may reasonably request to qualify the Securities for offering
and sale under the securities laws of such jurisdictions as you may
request and to comply with such laws so as to permit the continuance of
sales and dealings therein in such jurisdictions for as long as may be
necessary to complete the distribution of the Securities, provided that
in connection therewith the Trust shall not be required to qualify as a
foreign trust or association or to file a general consent to service of
process in any jurisdiction;
(iii) Prior to 10:00 a.m., New York City time, on the
New York Business Day next succeeding the date of this Agreement and
from time to time, at the expense of the Sellers, to furnish the
Underwriters with copies of the Trust Prospectus in New York City in
such quantities as you may reasonably request, and, if the delivery of
a prospectus is required at any time prior to the expiration of nine
months after the time of issue of the Trust Prospectus in connection
with the offering or sale of the Securities and if at such time any
event shall have occurred as a result of which the Trust Prospectus as
then amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made when such Trust Prospectus is delivered, not
misleading, or, if for any other reason it shall be necessary during
such period to amend or supplement the Trust Prospectus in order to
comply with the Act, to notify you and upon your request to prepare and
furnish without charge to each Underwriter and to any dealer in
securities as many copies as you may from time to time reasonably
request of an amended Trust Prospectus or a supplement to the Trust
Prospectus which will correct such statement or omission or effect such
compliance; and in case any Underwriter is required to deliver a
prospectus in connection with sales of any of the Securities at any
time nine months or more after the time of issue of the Trust
Prospectus, upon your request but at the expense of such Underwriter,
to prepare and deliver to such Underwriter as many copies as you may
request of an amended or supplemented Trust Prospectus complying with
Section 10(a)(3) of the Act;
(iv) To make generally available to the Trust's
securityholders as soon as practicable, but in any event not later than
eighteen months after the effective date of the Trust Registration
Statement (as defined in Rule 158(c) under the Act), an earnings
statement of the Trust (which need not be audited) complying with
Section 11(a) of the Act and the rules and regulations of the
Commission thereunder (including, at the option of the Trust, Rule
158);
(v) To use the net proceeds received by it from the
sale of the Securities pursuant to this Agreement in the manner
specified in the Trust Prospectus under the caption "Use of Proceeds";
and
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(vi) To use its best efforts to list, subject to
notice of issuance, the Securities on the New York Stock Exchange.
(b) The Company agrees with each of the Underwriters:
(i) To prepare the Company Prospectus in a form
approved by you and to file such Company Prospectus pursuant to Rule
424(b) under the Act not later than the Commission's close of business
on the second business day following the execution and delivery of this
Agreement, or, if applicable, such earlier time as may be required by
Rule 430A(a)(3) under the Act; to make no further amendment or any
supplement to the Company Registration Statement or Company Prospectus
prior to the last Time of Delivery which shall be disapproved by you
promptly after reasonable notice thereof; to advise you, promptly after
it receives notice thereof, of the time when any amendment to the
Company Registration Statement has been filed or becomes effective or
any supplement to the Company Prospectus or any amended Company
Prospectus has been filed and to furnish you with copies thereof; to
file promptly all reports and any definitive proxy or information
statements required to be filed by the Company with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act
subsequent to the date of the Company Prospectus and for so long as the
delivery of a prospectus is required in connection with the offering or
sale of the Securities; to advise you, promptly after it receives
notice thereof, of the issuance by the Commission of any stop order or
of any order preventing or suspending the use of any Company
Preliminary Prospectus or prospectus, of the suspension of the
qualification of the shares of Stock to be delivered pursuant to the
Contracts for offering or sale in any jurisdiction, of the initiation
or threatening of any proceeding for any such purpose, or of any
request by the Commission for the amending or supplementing of the
Company Registration Statement or Company Prospectus or for additional
information; and, in the event of the issuance of any stop order or any
order preventing or suspending the use of any Company Preliminary
Prospectus or prospectus or suspending any such qualification, to
promptly use its best efforts to obtain the withdrawal of such order;
(ii) Prior to 10:00 a.m. New York City time, on the
New York Business Day next succeeding the date of this Agreement and
from time to time, at the expense of the Sellers, to furnish the
Underwriters with copies of the Company Prospectus in New York City in
such quantities as you may reasonably request, and, if the delivery of
a prospectus is required at any time prior to the expiration of nine
months after the time of issue of the Company Prospectus in connection
with the offering or sale of the Securities and if at such time any
events shall have occurred as a result of which the Company Prospectus
as then amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary in order to
make the statements therein, in light of the circumstances under which
they were made when such Company Prospectus is delivered, not
misleading, or, if for any other reason it shall be necessary during
such same period to amend or supplement the Company Prospectus or to
file under the Exchange Act any document incorporated by reference in
the Company Prospectus in order to comply with the Act or the Exchange
Act, to notify you and
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upon your request to file such document and to prepare and, at the
expense of the Sellers, furnish, without charge to each Underwriter and
to any dealer in securities as many copies as you may from time to time
reasonably request of an amended Company Prospectus or a supplement to
the Company Prospectus which will correct such statement or omission or
effect such compliance; and in case any Underwriter is required to
deliver a prospectus in connection with sales of any of the Securities
at any time nine months or more after the time of issue of the Company
Prospectus, upon your request but at the expense of such Underwriter,
to prepare and deliver to such Underwriter as many copies as you may
request of an amended or supplemented Company Prospectus complying with
Section 10(a)(3) of the Act;
6. Except as otherwise disclosed in the Prospectuses, the Trust, the
Company and the Sellers covenant and agree with the several Underwriters that
(a) the Sellers will pay or cause to be paid (i) the fees, disbursements and
expenses of the Company's counsel and the Sellers' counsel and the Company's
accountants in connection with the registration of the Securities under the Act
and all other expenses in connection with the preparation, printing and filing
of the Notification, Trust Registration Statement, any Trust Preliminary
Prospectus and the Trust Prospectus and amendments and supplements thereto and
the Supplement dated May 22, 1997 to the Company Prospectus and the mailing and
delivering of copies thereof to the Underwriters and dealers; (ii) the cost of
printing or producing any Agreement among Underwriters, this Agreement and Blue
Sky Memorandum, closing documents (including any compilations thereof) and any
other documents in connection with the offering, purchase, sale and delivery of
the Securities; (iii) all expenses in connection with the qualification of the
Securities for offering and sale under state securities laws as provided
in Section 5(b)(ii) hereof, including the fees and disbursements of counsel for
the Underwriters in connection with such qualification and in connection with
the Blue Sky survey up to a maximum of $2,500; (iv) the filing fees incident
to, and the fees and disbursements of counsel for the Underwriters in
connection with, securing any required review by the NASD of the terms of the
sale of the Securities; (v) all fees and expenses in connection with the
preparation and filing of a registration statement under the Exchange Act
relating to the Securities and all costs and expenses incident to the listing
of the Securities on the New York Stock Exchange or other national or regional
exchange; (vi) the cost of preparing certificates representing the Securities;
(vii) the cost and charges of any transfer agent or registrar for the
Securities; (viii) all expenses and taxes incident to the sale and delivery of
the shares of Stock to be sold or pledged by the Sellers; (ix) all fees,
expenses and costs in connection with the marketing of the Securities; and (x)
all other costs and expenses incident to the performance by the Trust, the
Company and the Sellers of their respective obligations hereunder which are not
otherwise specifically provided for in this Section; (b) the Company will pay
or cause to be paid (i) the cost of preparing Stock certificates; and (ii) the
cost and charges of any transfer agent or registrar for the Stock; and (c)
▇▇▇▇▇▇▇, Sachs & Co. will pay or cause to be paid all fees, disbursements and
expenses of the Trust's counsel and the Trust's accountants in connection with
the registration of the Securities under the Acts. It is understood, however,
that, except as provided in this Section, and Sections 8 and 11 hereof, the
Underwriters will pay all of their own costs and expenses, including the fees
of their counsel, transfer taxes on resale of any of the Securities by them,
and any advertising expenses connected with any offers they may make.
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7. The obligations of the Underwriters hereunder, as to the Securities
to be delivered at each Time of Delivery, shall be subject, in their discretion,
to the condition that all representations and warranties and other statements of
the Trust, the Company and the Sellers herein are, at and as of such Time of
Delivery, true and correct, the condition that the Trust, the Company and the
Sellers shall have performed all of their respective obligations hereunder
theretofore to be performed, and the following additional conditions:
(a) The Prospectuses shall have been filed with the Commission
pursuant to Rule 424(b) or Rule 497(h), as applicable, within the applicable
time period prescribed for such filing by the rules and regulations under the
Act and in accordance with Sections 5(a)(i) and 5(b)(i) hereof; no stop order
suspending the effectiveness of the Registration Statements or any part thereof,
and no order pursuant to Section 8(e) of the Investment Company Act, shall have
been issued and no proceeding for that purpose shall have been initiated or
threatened by the Commission; and all requests for additional information on the
part of the Commission shall have been complied with to your reasonable
satisfaction;
(b) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the
Underwriters, shall have furnished to you such opinion or opinions, dated such
Time of Delivery, with respect to paragraphs (i), (ii), (iii), (v), (vi) and
(viii) of subsection (c) below and paragraphs (i), (ii), (vi) and (xi) of
subsection (e) below, as well as such other related matters as you may
reasonably request, and such counsel shall have received such papers and
information as they may reasonably request to enable them to pass upon such
matters;
(c) ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Trust, shall have
furnished to you their written opinion or opinions, dated such Time of Delivery,
in form and substance satisfactory to you, to the effect that:
(i) The Trust (x) has been duly formed and is
validly existing as a trust under the laws of the State of New York and
(y) is registered with the Commission under the Investment Company Act
as a non-diversified, closed-end management investment company;
(ii) The Securities have been duly authorized and
validly issued and are fully paid and non-assessable and are entitled
to the benefits provided by the Trust Agreement;
(iii) The Securities will be exchanged for shares of
Stock in accordance with the terms of the Trust Agreement and the
Contracts (unless a Reorganization Event (as such term is defined in
the Contracts) occurs or a Seller elects the Cash Settlement
Alternative), subject to bankruptcy, insolvency, reorganization and
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similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles;
(iv) All regulatory consents, authorizations,
approvals and filings required to be obtained or made by the Trust
under the Federal laws of the United States and the laws of the State
of New York for the issuance, sale and delivery of the Securities by
the Trust to you have been obtained or made;
(v) This Agreement has been duly authorized,
executed and delivered by the Trust;
(vi) Each Fundamental Agreement has been duly
authorized, executed and delivered by the Trust and, assuming due
authorization, execution and delivery by the other parties thereto,
constitutes a valid and legally binding agreement of the Trust,
enforceable in accordance with its terms, subject to bankruptcy,
insolvency, reorganization, and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles;
(vii) The statements in the Trust Prospectus under
the caption "Certain Federal Income Tax Considerations", to the extent
that such statements constitute summaries of the legal matters referred
to therein, fairly represent their opinion as to such matters;
(viii) On the basis of information which was reviewed
in the course of the performance of the services referred to in their
opinion considered in the light of their understanding of the
applicable law (including the requirements of Form N-2 and the
character of the Prospectus contemplated thereby) and the experience
they have gained through their practice under the Acts, such counsel
are of the opinion that the Trust Registration Statement, as of its
effective date, and the Trust Prospectus, as of the date of the Trust
Prospectus, appeared on their face to be appropriately responsive in
all material respects to the requirements of the Acts and the
applicable rules and regulations of the Commission thereunder; and that
nothing that came to their attention in the course of such review has
caused them to believe that the Trust Registration Statement, as of its
effective date, contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein or
necessary to make the statements therein not misleading or that the
Trust Prospectus, as of the date of the Trust Prospectus, contained any
untrue statement of a material fact or omitted to state any material
fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; also,
nothing that has come to such counsel's attention in the course of
certain procedures (as described in such opinion) has caused such
counsel to believe that the Trust Prospectus, as of the date and time
of delivery of such opinion, contained any untrue statement of a
material fact or omitted to state any material fact necessary in order
to make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that such
opinion may state that the limitations inherent in the independent
verification of factual matters and the character of determinations
involved in the registration process are such, however, that such
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counsel do not assume any responsibility for the accuracy, completeness
or fairness of the statements contained in the Trust Registration
Statement or the Trust Prospectus except for those made under the
captions "Underwriting", "Investment Objective and Policies", and
"Descriptions of the Securities" in the Trust Prospectus insofar as
they relate to provisions of documents therein described, and that such
counsel need not express any opinion or belief as to the financial
statements or other financial data, or as to information under the
captions "Prospectus Summary--The Company", "Investment Objectives and
Policies--The Company" and "Risk Factors--Risks Relating to the Company
and the Company's Industry", contained in the Trust Registration
Statement or the Trust Prospectus.
(d) ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Trust, shall have
furnished to the Sellers their written opinion, dated such Time of Delivery,
with respect to paragraphs (i)(y), (iv) and (vii) of subsection (c) above and,
in addition, to the effect that the statements in the Trust Prospectus under the
captions "Underwriting", "Investment Objective and Policies" and "Description of
Securities", insofar as such statements summarize provisions of documents
referred to therein, are accurate in all material respects and fairly summarize
the matters referred to therein.
(e) Akerman, Senterfitt & ▇▇▇▇▇▇, P.A., counsel for the
Company, shall have furnished to you their written opinion or opinions, dated
such Time of Delivery, in form and substance reasonably satisfactory to you, to
the effect that:
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws of
Delaware, with power and authority to own its properties and conduct
its business as described in the Company Prospectus;
(ii) The Company has an authorized capitalization as
set forth in the Company Prospectus, as modified by the Company's
Form 8-K dated May 14, 1997; the shares of Stock listed in
the Selling Stockholders Table in the Supplement dated May 22, 1997 to
the Company Prospectus have been duly authorized by all necessary
corporate action on the part of the Company and are validly issued,
fully paid and non-assessable; and the shares of Stock conform in all
material respects to the description of the Stock contained in the
Company Prospectus under the caption "Description of Capital Stock"
(such counsel being entitled to rely in respect of the opinion in this
clause upon the opinion of in-house counsel to the Company, provided
that such counsel shall state that they believe that both you and the
Company's counsel are justified in relying upon such opinion);
(iii) The Company has been duly qualified as a
foreign corporation for the transaction of business and is in good
standing under the laws of each other jurisdiction in which it owns or
leases properties or conducts any business so as to require such
qualification, or is subject to no material liability or disability by
reason of failure to be so qualified in any such jurisdiction (such
counsel being entitled to rely in respect of the opinion in this clause
upon opinions of local counsel or in-house counsel to the Company and
in respect of matters of fact upon certificates of
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officers of the Company, provided that such counsel shall state that
they believe that both you and the Company's counsel are justified in
relying upon such opinions and certificates);
(iv) Each of Alamo Rent-a-Car, Inc. and National
Car Rental Systems, Inc. (referred to as the "Car Rental Subsidiaries")
has been duly incorporated and is validly existing as a corporation in
good standing under the laws of its jurisdiction of incorporation; and
all of the issued shares of capital stock of each such subsidiary have
been duly and validly authorized and issued, are fully paid and
non-assessable, and are owned directly or indirectly by the Company,
free and clear of all liens, encumbrances, equities or claims (such
counsel being entitled to rely in respect of the opinion in this clause
upon opinions of local counsel or counsel to the Company and in respect
of matters of fact upon certificates of officers of the Company or its
subsidiaries, provided that such counsel shall state that they believe
that both you and the Company's counsel are justified in relying upon
such opinions and certificates);
(v) To the best of such counsel's knowledge and
other than as set forth or incorporated by reference in the Company
Prospectus, there are no legal or governmental proceedings pending to
which the Company or any of its subsidiaries is a party or of which any
property of the Company or any of its subsidiaries is the subject
which, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a material
adverse effect on the current or future consolidated financial
position, stockholders' equity or results of operations of the Company
and its subsidiaries; and, to the best of such counsel's knowledge, no
such proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(vi) This Agreement has been duly authorized,
executed and delivered by the Company;
(vii) The compliance by the Company with all of the
provisions of this Agreement and the consummation of the transactions
herein contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default
under, any material indenture, mortgage, deed of trust, loan agreement
or other material agreement or instrument known to such counsel to
which the Company or any of the Car Rental Subsidiaries is a party or
by which the Company or any of the Car Rental Subsidiaries is bound or
to which the material property or assets of the Company or any of the
Car Rental Subsidiaries is subject, nor will such action result in any
violation of the provisions of the Third Amended and Restated
Certificate of Incorporation or By-laws of the Company or any statute
or any order, rule or regulation known to such counsel of any court or
governmental agency or body having jurisdiction over the Company or any
of the Car Rental Subsidiaries or any of their material properties;
(viii) To the best knowledge of such counsel, neither
the Company nor any of its Car Rental Subsidiaries is in violation of
its certificate of incorporation or by-laws or in material default in
the performance or observance of any material
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obligation, agreement, covenant or condition contained in any
material indenture, mortgage, deed of trust, loan agreement, lease or
material agreement or other instrument to which it is a party or by
which it may be bound which default would individually or in the
aggregate have a material adverse effect on the current or future
consolidated financial position, stockholders' equity or results of
operations of the Company and its subsidiaries;
(ix) The statements set forth in the Company
Prospectus as modified by the Company's Form 8-K dated May 14,
1997 under the caption "Description of Capital Stock", to the extent
that such statements purport to constitute a summary of the terms of
the Stock, are accurate, complete and fair in all material respects;
(x) The Company is not an "investment company" or an
entity "controlled" by an "investment company", as such terms are
defined in the Investment Company Act; and
(xi) On the basis of information which was reviewed
in the course of the performance of the services referred to in their
opinion considered in the light of their understanding of the
applicable law and the experience they have gained through their
practice under the Act, such counsel are of the opinion that the
Company Registration Statement, the Company Prospectus and the
documents incorporated by reference in the Company Prospectus or any
further amendment or supplement thereto made by the Company prior to
such Time of Delivery (other than the financial statements and related
schedules therein, as to which such counsel need express no opinion),
when they became effective or were filed with the Commission, as the
case may be, appeared on their face to be appropriately responsive in
all material respects to the requirements of the Act or the Exchange
Act, as applicable, and the rules and regulations of the Commission
thereunder; and that nothing that came to their attention in the course
of such review has caused them to believe that any of such documents,
when such documents became effective or were so filed, as the case may
be, 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.
(f) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for (x) ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇, ▇▇.; ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., ▇▇▇ Contributing; ▇▇▇▇ ▇. ▇▇▇▇▇▇; ▇▇▇▇▇ ▇.
▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, joint tenants with right of survivorship; ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇; ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇; and ▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇▇▇▇-▇▇▇▇▇▇, joint
tenants with right of survivorship (collectively, the "Individual Sellers") and
(y) Brion Properties, a limited partnership organized under the laws of the
State of Louisiana; ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Frame Trust, a trust organized under the
laws of the State of Oklahoma; ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Trust, a trust organized
under the laws of the State of Oklahoma; ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Trust, a
trust organized under the laws of the State of Oklahoma; National Car Rental,
Inc., an Arizona corporation; National Car Rental of Oklahoma City, Inc., an
Oklahoma corporation; and Sleepy Lagoon, Ltd., a Texas limited partnership
(collectively, the "Non-Individual Sellers"), shall have furnished to you their
written opinion, dated such Time of Delivery, in form and substance satisfactory
to you, to the effect that:
(i) This Agreement has been duly executed and
delivered by or on behalf of each of the Individual Sellers; each of
the Contracts and the Collateral Agreements to which an Individual
Seller is a party has been duly executed and
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delivered by or on behalf of such Seller and, assuming due
authorization, execution and delivery by the other parties thereto,
constitutes a valid and legally binding agreement of such Individual
Seller, enforceable against such Individual Seller in accordance with
its terms, subject to bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally, general equitable principles
(whether considered in a proceeding in equity or at law) and an implied
covenant of good faith and fair dealing); and the compliance by each
Individual Seller with all of the provisions of this Agreement, the
Contract to which such Individual Seller is a party and the Collateral
Agreement to which such Individual Seller is a party and the
consummation of the transactions herein and therein contemplated will
not breach or result in a default under any indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument identified on
an annexed schedule furnished by such Individual Seller and which such
Individual Seller has represented lists all material agreements and
instruments to which such Individual Seller is a party or by which such
Individual Seller is bound or to which any of the property or assets of
such Individual Seller is subject, nor will such action violate any
Federal or New York statute or any rule or regulation issued pursuant
to any Federal or New York statute or any order known to such counsel
issued pursuant to any Federal or New York statute by any court or
governmental agency or body having jurisdiction over any Individual
Seller or any of its properties;
(ii) No consent, approval, authorization or order of
any Federal or New York governmental agency or body or, to such
counsel's knowledge, any Federal or New York court is required for the
compliance by each Seller with all of the provisions of this Agreement,
the Contract to which such Seller is a party and the Collateral
Agreement to which such Seller is a party, except for the registration
of the Securities and the Stock, under the Acts and such consents,
approvals, authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection with the
purchase and distribution of the Securities and the Stock;
(iii) Assuming due authorization, execution and
delivery thereof by the Trust and the Collateral Agent, each Collateral
Agreement, together with the delivery of (x) the certificates in
registered form representing the Stock pledged thereunder by the Seller
party thereto and (y) undated stock powers with respect thereto duly
endorsed in blank, to the Collateral Agent for the benefit of the Trust
in the State of New York creates in favor of the Collateral Agent for
the benefit of the Trust a perfected security interest in such Stock
under the Uniform Commercial Code as in effect in the State of New York
(the "New York UCC"); upon such delivery, at the First Time of
Delivery, assuming that (A) the Collateral Agent and the Trust will
acquire the security interest in such shares in good faith and without
notice of any adverse claim (within the meaning of the New York UCC)
and (B) such Seller has rights in the shares of Stock subject to such
Collateral Agreement, the Collateral Agent will acquire such security
interest in such shares of Stock for the benefit of the Trust free of
any adverse claims (within the meaning of the New York UCC); and
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(iv) Upon payment for and delivery of the shares of
Stock in accordance with the Purchase Agreement and Collateral
Agreement to which each Seller is a party, assuming due authorization,
execution and delivery thereof by the Trust and, in the case of each
Collateral Agreement, the Collateral Agent, and assuming that (A) each
Seller continues to be the sole registered owner of the shares of Stock
to be sold by it, (B) the certificates representing such shares do not
contain any notation of liens or restrictions and (C) the purchasers of
Securities will acquire such shares in good faith and without notice of
any adverse claims (within the meaning of the New York UCC), the
purchasers will acquire all of the rights of such Seller in such shares
and will also acquire their interest in such shares free of any adverse
claims (within the meaning of the New York UCC).
(g) (i) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, as Louisiana counsel
for Brion Properties, shall have furnished to you his written opinion,
dated such Time of Delivery, with respect to paragraph (i) of
subsection (f) above;
(ii) ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇, as Oklahoma counsel
for ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Frame Trust, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Trust, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Trust and National Car Rental of
Oklahoma City, Inc., shall have furnished to you their written
opinion, dated such Time of Delivery, with respect to paragraph (i) of
subsection (f) above;
(iii) Hill & Savoy, as Arizona counsel for National
Car Rental, Inc., shall have furnished to you their written opinion,
dated such Time of Delivery, with respect to paragraph (i) of
subsection (f) above; and
(iv) Fulbright & ▇▇▇▇▇▇▇▇, as Texas counsel for
Sleepy Lagoon, Ltd., shall have furnished to you their written opinion,
dated such Time of Delivery, with respect to paragraph (i) of
subsection (f) above.
(h) On the date of the Trust Prospectus at a time prior to the
execution of this Agreement, at 9:30 a.m., New York City time, on the effective
date of any post-effective amendment to the Trust Registration Statement filed
subsequent to the date of this Agreement and also at each Time of Delivery,
Coopers & ▇▇▇▇▇▇▇ L.L.P. shall have furnished to you a letter or letters, dated
the respective dates of delivery thereof, in form and substance satisfactory to
you;
(i) On the date of the Company Prospectus at a time prior to
the execution of this Agreement, at 9:30 a.m., New York City time, on the
effective date of any post-effective amendment to the Company Registration
Statement filed subsequent to the date of this Agreement and also at each Time
of Delivery, the accounting firm listed in Section 1(a)(xv) hereof shall have
furnished to you a letter or letters, dated the respective dates of delivery
thereof, in form and substance satisfactory to you, to the effect set forth in
Annex I hereto;
(j) (i) Since the respective dates as of which information is
given in the Trust Registration Statement and the Trust Prospectus, there shall
not have been any change, or any development involving a prospective change, in
or affecting the general
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affairs, management, financial position, results of operations, prospects,
investment objectives, investment policies or liabilities of the Trust,
otherwise than as set forth or contemplated in the Trust Prospectus, (ii) the
Company and its subsidiaries, taken as a whole, shall not have sustained since
the date of the latest audited financial statements included or incorporated by
reference in the Company Prospectus any loss or interference with its business
from fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action, order or
decree, otherwise than as set forth or contemplated in the Company Prospectus,
and (iii) since the latest date as of which information is given in the Company
Prospectus or any document incorporated by reference therein, there shall not
have been any change in the outstanding capital stock in excess of 100,000,000
shares or long-term debt (net of current maturities) and long-term revenue
earning vehicle debt (net of current maturities) of the Company in excess of
$300,000,000 on a consolidated basis or any change, or any development
involving a prospective change, in or affecting the general affairs,
management, financial position, stockholders' equity or results of operations
of the Company and its subsidiaries, taken as a whole, otherwise than as set
forth or contemplated in the Company Prospectus, the effect of which, in any
such case described in clause (i), (ii) or (iii), is in the judgment of the
Underwriters so material and adverse as to make it impracticable or inadvisable
to proceed with the public offering or the delivery of the Securities being
issued at such Time of Delivery on the terms and in the manner contemplated in
the Trust Prospectus;
(k) On or after the date hereof (i) no downgrading shall have
occurred in the rating accorded the Company's debt securities or preferred stock
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 any
of the Company's debt securities or preferred stock;
(l) On or after the date hereof there shall not have occurred
any of the following: (i) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange, the American Stock Exchange
or Nasdaq; (ii) a suspension or material limitation in trading in the securities
of the Company or the Trust on Nasdaq or the New York Stock Exchange; (iii) a
general moratorium on commercial banking activities declared by either Federal
or New York State authorities; or (iv) the outbreak or escalation of hostilities
involving the United States or the declaration by the United States of a
national emergency or war, if the effect of any such event specified in this
clause (iv) in the judgment of the Underwriters makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Securities being issued at such Time of Delivery on the terms and in the manner
contemplated in the Trust Prospectus;
(m) The Securities shall have been duly listed, subject to
notice of issuance, on the New York Stock Exchange;
(n) Each Fundamental Agreement shall have been executed and
delivered by all parties thereto and each Seller shall have delivered to the
Collateral Agent the number of shares of Stock required by the Collateral
Agreement to which such Seller is a party to be initially pledged thereunder in
accordance with the requirements of such Collateral Agreement;
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(o) The Trust and the Company shall have complied with the
provisions of Section 5(a)(iii) and 5(b)(ii) hereof with respect to the
furnishing of prospectuses on the New York Business Day next succeeding the date
of this Agreement; and
(p) The Trust, the Company and the Sellers shall have
furnished or caused to be furnished to you at such Time of Delivery certificates
of officers of the Trust, the Company and the Sellers satisfactory to you as to
the accuracy of the representations and warranties of the Trust, the Company and
the Sellers, respectively, herein and in the Contracts and Collateral Agreements
at and as of such Time of Delivery, as to the satisfaction and performance by
the Trust, the Company and the Sellers of all of their respective obligations
hereunder and thereunder to be performed at or prior to such Time of Delivery,
as to the matters set forth in subsections (a) and (i) of this Section (except
in the case of the Sellers) and as to such other matters as you may reasonably
request.
8. (a) The Company will indemnify and hold harmless the Trust, each
Seller and each Underwriter against any losses, claims, damages or liabilities,
joint or several, to which the Trust, such Seller or such Underwriter may become
subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Company Preliminary Prospectus, the Company Registration Statement or the
Company Prospectus, or any amendment or supplement thereto, or arise out of or
are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse the Trust, each Seller and each Underwriter for
any legal or other expenses reasonably incurred by the Trust, such Seller or
such Underwriter in connection with investigating or defending any such action
or claim as such expenses are incurred; provided, however, that the Company
shall not be liable in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in any Company
Preliminary Prospectus, the Company Registration Statement or the Company
Prospectus, or any such amendment or supplement thereto, in reliance upon and in
conformity with written information furnished to the Company by any Underwriter
through ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. expressly for use therein; provided, further, that
the Company shall not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission relating
only to the Sellers made in any Company Preliminary Prospectus, the Company
Registration Statement or the Company Prospectus, or any amendment or supplement
thereto, in reliance upon and in conformity with information furnished to the
Company by the Sellers expressly for use therein.
(b) Each Seller will indemnify and hold harmless the Trust,
the Company and each Underwriter against any losses, claims, damages or
liabilities to which the Trust, the Company or such Underwriter may become
subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Trust Preliminary Prospectus, the Trust Registration Statement or the Trust
Prospectus, or any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or
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necessary to make the statements therein not misleading, and will reimburse the
Trust, the Company and each Underwriter for any legal or other expenses
reasonably incurred by the Trust, the Company or such Underwriter in connection
with investigating or defending any such action or claim; provided, however,
that no Seller shall be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
any Trust Preliminary Prospectus, the Trust Registration Statement or the Trust
Prospectus, or any such amendment or supplement thereto, in reliance upon and in
conformity with written information furnished by any Underwriter through
▇▇▇▇▇▇▇, Sachs & Co. expressly for use therein; provided, further, that no
Seller shall be liable in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission relating only to the
Company made in any Trust Preliminary Prospectus, the Trust Registration
Statement or the Trust Prospectus, or any amendment or supplement thereto, in
reliance upon and in conformity with information furnished by the Company
expressly for use therein; provided, further, that in no event shall any
Seller's liability under this Section 8 exceed such Seller's gross proceeds from
the transactions contemplated by this Agreement and the Fundamental Agreements;
provided still further that each Seller shall have the obligation to reimburse
the Trust, the Company and each Underwriter for any legal or other expenses
provided for above (i) on a periodic basis as such expenses are incurred if such
action or claim is based upon or relates solely to the Trust; and (ii) at the
conclusion of such action or claim if such action or claim is based upon or
relates to both the Company and the Trust.
(c) Each Underwriter will indemnify and hold harmless the
Company, the Trust and the Sellers against any losses, claims, damages or
liabilities to which the Company, the Trust or the Sellers may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Company Preliminary Prospectus or Trust Preliminary Prospectus, either of the
Registration Statements or either of the Prospectuses, or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in any Company Preliminary
Prospectus or Trust Preliminary Prospectus, either of the Registration
Statements or either of the Prospectuses, or any amendment or supplement
thereto, in reliance upon and in conformity with written information furnished
to the Trust or the Company by such Underwriter through ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
expressly for use therein; and will reimburse the Company, the Trust and the
Sellers for any legal or other expenses reasonably incurred by the Company, the
Trust or the Sellers in connection with investigating or defending any such
action or claim as such expenses are incurred.
(d) Each Seller will indemnify and hold harmless the Company,
the Trust and the Underwriters against any losses, claims, damages or
liabilities to which the Company, the Trust or the Underwriters may become
subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in
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any Company Preliminary Prospectus, the Company Registration Statement or the
Company Prospectus, or any amendment or supplement thereto, or arise out of or
are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was made
in any Company Preliminary Prospectus, the Company Registration Statement or the
Company Prospectus, or any amendment or supplement thereto, in reliance upon and
in conformity with written information furnished to the Company by the Sellers
expressly for use therein; and will reimburse the Company, the Trust and the
Underwriters for any legal or other expenses reasonably incurred by the Company,
the Trust or the Underwriters in connection with investigating or defending any
such action or claim as such expenses are incurred.
(e) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party shall
not be liable to such indemnified party under such subsection for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof other
than reasonable costs of investigation. No indemnifying party shall, without the
written consent of the indemnified party, effect the settlement or compromise
of, or consent to the entry of any judgment with respect to, any pending or
threatened action or claim in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified party is an actual or
potential party to such action or claim) unless such settlement, compromise or
judgment (i) includes an unconditional release of the indemnified party from all
liability arising out of such action 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.
(f) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company, the Trust and the Sellers on the one
hand and the Underwriters on the other from the offering of the Securities. If,
however, the allocation provided by the immediately preceding sentence is not
permitted by applicable law or if the indemnified party failed to give the
notice required under subsection (e) above, then each indemnifying
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party shall contribute to such amount paid or payable by such indemnified party
in such proportion as is appropriate to reflect not only such relative benefits
but also the relative fault of the Company, the Trust and the Sellers on the one
hand and the Underwriters on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities (or
actions in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company, the Trust and the
Sellers on the one hand and the Underwriters on the other shall be deemed to be
in the same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Company, the Trust and the Sellers bear to
the total underwriting discounts and commissions received by the Underwriters,
in each case as set forth in the table on the cover page of the Trust
Prospectus. The relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company, the Trust or the Sellers on the one hand or the
Underwriters on the other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company, the Trust, the Sellers and the Underwriters agree that it would not
be just and equitable if contribution pursuant to this subsection (f) 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
subsection (f). The amount paid or payable by an indemnified party as a result
of the losses, claims, damages or liabilities (or actions in respect thereof)
referred to above in this subsection (f) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (f), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the Securities underwritten by it and distributed to the public were offered to
the public exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of 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 Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this subsection (f) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(g) The obligations of the Company, the Trust and the Sellers
under this Section 8 shall be in addition to any liability which the Company,
the Trust and the Sellers may otherwise have and shall extend, upon the same
terms and conditions, to each person, if any, who controls any Underwriter
within the meaning of the Act; and the obligations of the Underwriters under
this Section 8 shall be in addition to any liability which the respective
Underwriters may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Company or the Sellers (if any),
to each trustee of the Trust and to each person, if any, who controls the
Company, the Trust or the Sellers within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase
the Securities which it has agreed to purchase hereunder, you may in your
discretion arrange for you or another party or other parties to purchase such
Securities on the terms contained herein at
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a Time of Delivery. If within thirty-six hours after such default by any
Underwriter you do not arrange for the purchase of such Securities, then the
Company, the Trust and the Sellers shall be entitled to a further period of
thirty-six hours within which to procure another party or other parties
satisfactory to you to purchase such Securities on such terms. In the event
that, within the respective prescribed periods, you notify the Company, the
Trust and the Sellers that you have so arranged for the purchase of such
Securities, or the Company, the Trust and the Sellers notify you that it has so
arranged for the purchase of such Securities, you or the Company, the Trust and
the Sellers shall have the right to postpone such Time of Delivery for a period
of not more than seven days, in order to effect whatever changes may thereby be
made necessary in the Registration Statements or the Prospectuses, or in any
other documents or arrangements, and the Company, the Trust and the Sellers
agree to file promptly any amendments to the Registration Statements or the
Prospectuses which in your opinion may thereby be made necessary. The term
"Underwriter" as used in this Agreement shall include any person substituted
under this Section with like effect as if such person had originally been a
party to this Agreement with respect to such Securities.
(b) If, after giving effect to any arrangements for the
purchase of the Securities of a defaulting Underwriter or Underwriters by you
and the Company, the Trust and the Sellers as provided in subsection (a) above,
the aggregate principal amount of such Securities which remains unpurchased does
not exceed one-eleventh of the aggregate principal amount of all the Securities
to be purchased at such Time of Delivery, then the Company, the Trust and the
Sellers shall have the right to require each non-defaulting Underwriter to
purchase the principal amount of Securities which such Underwriter agreed to
purchase hereunder at such Time of Delivery and, in addition, to require each
non-defaulting Underwriter to purchase its pro rata share (based on the
principal amount of Securities which such Underwriter agreed to purchase
hereunder) of the Securities of such defaulting Underwriter or Underwriters for
which such arrangements have not been made; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the
purchase of the Securities of a defaulting Underwriter or Underwriters by you
and the Company, the Trust and the Sellers as provided in subsection (a) above,
the aggregate principal amount of such Securities which remains unpurchased
exceeds one-eleventh of the aggregate principal amount of all the Securities to
be purchased at such Time of Delivery, or if the Company, the Trust and the
Sellers shall not exercise the right described in subsection (b) above to
require non-defaulting Underwriters to purchase Securities of a defaulting
Underwriter or Underwriters, then this Agreement (or, with respect to the Second
Time of Delivery, the obligations of the Underwriters to purchase and of the
Trust to sell the Optional Securities) shall thereupon terminate, without
liability on the part of any non-defaulting Underwriter or the Company, the
Trust and the Sellers, except for the expenses to be borne by the Company, the
Trust, the Sellers and the Underwriters as provided in Section 6 hereof and the
indemnity and contribution agreements in Section 8 hereof; but nothing herein
shall relieve a defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Company, the Trust, the Sellers and the several
Underwriters, as set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this
29
30
Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company,
the Trust or the Sellers or any officer or director or controlling person of the
Company, the Trust or the Sellers and shall survive delivery of and payment for
the Securities.
11. If this Agreement shall be terminated pursuant to Section 9 hereof,
neither the Company, the Trust nor the Sellers shall then be under any liability
to any Underwriter except as provided in Sections 6 and 8 hereof; but, if for
any other reason, any Securities are not delivered by or on behalf of the Trust
as provided herein, the Sellers will reimburse the Underwriters through you for
all out-of-pocket expenses approved in writing by you, including fees and
disbursements of counsel, reasonably incurred by the Underwriters in making
preparations for the purchase, sale and delivery of the Securities not so
delivered, but the Company, the Trust and the Sellers shall then be under no
further liability to any Underwriter in respect of the Securities not so
delivered except as provided in Sections 6 and 8 hereof.
12. In all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by you jointly or by ▇▇▇▇▇▇▇, Sachs & Co. on behalf of you as the
representatives.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to you as the representatives at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Registration Department; if to the Trust shall
be delivered or sent by mail, telex or facsimile transmission in care of ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Associates, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇; if to the Company shall be delivered or sent by mail to the
address of the Company set forth in the Registration Statement, Attention:
Secretary (with a copy to Akerman, Senterfitt & ▇▇▇▇▇▇, P.A., ▇▇▇ ▇.▇. ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.);
and if to the Sellers shall be delivered or sent by mail, telex or facsimile
transmission to each Seller in care of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇, 500
▇▇▇▇▇▇▇ Building, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇; provided, however,
that any notice to an Underwriter pursuant to Section 8(c) hereof shall be
delivered or sent by mail, telex or facsimile transmission to such Underwriter
at its address set forth in its Underwriters' Questionnaire, or telex
constituting such Questionnaire, which address will be supplied to the Company
by you upon request. Any such statements, requests, notices or agreements shall
take effect upon receipt thereof.
13. This Agreement shall be binding upon, and inure solely to the
benefit of, the Underwriters, the Company, the Trust, the Sellers and, to the
extent provided in Sections 8 and 10 hereof, the officers and directors of the
Company, the Trust, the Sellers and each person who controls the Company or any
Underwriter, and their respective heirs, executors, administrators, successors
and assigns, and no other person shall acquire or have any right under or by
virtue of this Agreement. No purchaser of any of the Securities from any
Underwriter shall be deemed a successor or assign by reason merely of such
purchase.
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31
14. Time shall be of the essence of this Agreement. As used herein, the
term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
15. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
16. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one and the same
instrument.
If the foregoing is in accordance with your understanding,
please sign and return to us ten counterparts hereof, and upon the acceptance
hereof by you, on behalf of each of the Underwriters, this letter and such
acceptance hereof shall constitute a binding agreement between each of the
Underwriters, the Trust, the Company and the Sellers. It is understood that your
acceptance of this letter on behalf of each of the Underwriters is pursuant to
the authority set forth in a form of Agreement among Underwriters, the form of
which shall be submitted to the Company for examination upon request, but
without warranty on your part as to the authority of the signers thereof.
Very truly yours,
REPUBLIC INDUSTRIES, INC.
By:
-------------------------------------
Name:
Title:
AUTOMATIC COMMON EXCHANGE SECURITY
TRUST II
By:
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
By:
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ III
By:
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
each a trustee of Automatic Common
Exchange Security Trust II
31
32
BRION PROPERTIES
By: ▇▇▇▇▇▇▇ 1995 Trust, as General Partner
By:
----------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, as Trustee
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ FRAME TRUST
By:
----------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, as Trustee
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ TRUST
By:
----------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., as Trustee
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ TRUST
By:
----------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, as Trustee
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., ▇▇▇ CONTRIBUTING
By:
----------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
32
33
NATIONAL CAR RENTAL, INC.
By:
----------------------------------
Name:
Title:
NATIONAL CAR RENTAL OF OKLAHOMA CITY,
INC.
By:
------------------------------------
Name:
Title:
▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
joint tenants with right of survivorship
----------------------------------------
----------------------------------------
SLEEPY LAGOON, LTD.
By:
-------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, as General Partner
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
33
34
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇▇▇▇-▇▇▇▇▇▇,
joint tenants with right of survivorship
----------------------------------------
34
35
Accepted as of the date hereof:
▇▇▇▇▇▇▇, SACHS & CO.
----------------------------------
36
SCHEDULE I
Number of Optional
Shares to be
Total Number of Purchased if
Firm Shares Maximum Option
Underwriter to be Purchased Exercised
----------- --------------- ---------
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
Total
37
ANNEX I
Pursuant to Section 7(i) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public
accountants with respect to the Company and its subsidiaries within the
meaning of the Act and the applicable published rules and regulations
thereunder;
(ii) In their opinion, the financial statements and
any supplementary financial information and schedules (and, if
applicable, financial forecasts and/or pro forma financial information)
examined by them and included or incorporated by reference in the
Registration Statement or the Prospectus comply as to form in all
material respects with the applicable accounting requirements of the
Act or the Exchange Act, as applicable, and the related published rules
and regulations thereunder; and, if applicable, they have made a review
in accordance with standards established by the American Institute of
Certified Public Accountants of the consolidated interim financial
statements, selected financial data, pro forma financial information,
financial forecasts and/or condensed financial statements derived from
audited financial statements of the Company for the periods specified
in such letter, as indicated in their reports thereon, copies of which
have been furnished to the representatives of the Underwriters (the
"Representatives") and are attached hereto;
(iii) They have made a review in accordance with
standards established by the American Institute of Certified Public
Accountants of the unaudited condensed consolidated statements of
income, consolidated balance sheets and consolidated statements of cash
flows included in the Prospectus and/or included in the Company's
quarterly report on Form 10-Q incorporated by reference into the
Prospectus as indicated in their reports thereon copies of which are
attached hereto; and on the basis of specified procedures including
inquiries of officials of the Company who have responsibility for
financial and accounting matters regarding whether the unaudited
condensed consolidated financial statements referred to in paragraph
(vi)(A)(i) below comply as to form in all material respects with the
applicable accounting requirements of the Act and the Exchange Act and
the related published rules and regulations, nothing came to their
attention that caused them to believe that the unaudited condensed
consolidated financial statements do not comply as to form in all
material respects with the applicable accounting requirements of the
Act and the Exchange Act and the related published rules and
regulations;
(iv) The unaudited selected financial information
with respect to the consolidated results of operations and financial
position of the Company for the five most recent fiscal years included
in the Prospectus and included or incorporated by reference in Item 6
of the Company's Annual Report on Form 10-K for the most recent fiscal
year agrees with the corresponding amounts (after restatement where
applicable) in the audited consolidated financial statements for such
five fiscal years which were included or incorporated by reference in
the Company's Annual Reports on Form 10-K for such fiscal years;
(v) They have compared the information in the
Prospectus under selected captions with the disclosure requirements of
Regulation S-K and on the basis of limited procedures specified in such
letter nothing came to their attention as a result of the foregoing
procedures that caused them to believe that this information does not
conform in
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38
all material respects with the disclosure requirements of Items 301,
302, 402 and 503(d), respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not
constituting an examination in accordance with generally accepted
auditing standards, consisting of a reading of the unaudited financial
statements and other information referred to below, a reading of the
latest available interim financial statements of the Company and its
subsidiaries, inspection of the minute books of the Company and its
subsidiaries since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus, inquiries of
officials of the Company and its subsidiaries responsible for financial
and accounting matters and such other inquiries and procedures as may
be specified in such letter, nothing came to their attention that
caused them to believe that:
(A) (i) the unaudited condensed consolidated
statements of income, consolidated balance sheets and
consolidated statements of cash flows included in the
Prospectus and/or included or incorporated by reference in the
Company's Quarterly Reports on Form 10-Q incorporated by
reference in the Prospectus do not comply as to form in all
material respects with the applicable accounting requirements
of the Exchange Act as it applies to Form 10-Q and the related
published rules and regulations, or (ii) any material
modifications should be made to the unaudited condensed
consolidated statements of income, consolidated balance sheets
and consolidated statements of cash flows included in the
Prospectus or included in the Company's Quarterly Reports on
Form 10-Q incorporated by reference in the Prospectus, for
them to be in conformity with generally accepted accounting
principles;
(B) any other unaudited income statement data and
balance sheet items included in the Prospectus do not agree
with the corresponding items in the unaudited consolidated
financial statements from which such data and items were
derived, and any such unaudited data and items were not
determined on a basis substantially consistent with the basis
for the corresponding amounts in the audited consolidated
financial statements included or incorporated by reference in
the Company's Annual Report on Form 10-K for the most recent
fiscal year;
(C) the unaudited financial statements which were not
included in the Prospectus but from which were derived the
unaudited condensed financial statements referred to in
Clause (A) and any unaudited income statement data and
balance sheet items included in the Prospectus and referred
to in Clause (B) were not determined on a basis substantially
consistent with the basis for the audited financial
statements included or incorporated by reference in the
Company's Annual Report on Form 10-K for the most recent
fiscal year;
(D) any unaudited pro forma consolidated condensed
financial statements included or incorporated by reference in
the Prospectus do not comply as to form in all material
respects with the applicable accounting requirements of the
Act and the published rules and regulations thereunder or the
pro forma adjustments have not been properly applied to the
historical amounts in the compilation of those statements;
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39
(E) as of a specified date not more than five days
prior to the date of such letter, there have been any changes
in the consolidated capital stock (other than issuances of
capital stock upon exercise of options and stock appreciation
rights, upon earn-outs of performance shares and upon
conversions of convertible securities, in each case which
were outstanding on the date of the latest balance sheet
included or incorporated by reference in the Prospectus) or
any increase in the consolidated long-term debt of the
Company and its subsidiaries, or any decreases in
consolidated net current assets or stockholders' equity or
other items specified by the Representatives, or any
increases in any items specified by the Representatives, in
each case as compared with amounts shown in the latest
balance sheet included or incorporated by reference in the
Prospectus, except in each case for changes, increases or
decreases which the Prospectus discloses have occurred or may
occur or which are described in such letter; and
(F) for the period from the date of the latest
financial statements included or incorporated by reference in
the Prospectus to the specified date referred to in Clause
(E) there were any decreases in consolidated net revenues or
operating profit or the total or per share amounts of
consolidated net income or other items specified by the
Representatives, or any increases in any items specified by
the Representatives, in each case as compared with the
comparable period of the preceding year and with any other
period of corresponding length specified by the
Representatives, except in each case for increases or
decreases which the Prospectus discloses have occurred or may
occur or which are described in such letter; and
(vii) In addition to the examination referred to in
their report(s) included or incorporated by reference in the Prospectus
and the limited procedures, inspection of minute books, inquiries and
other procedures referred to in paragraphs (iii) and (vi) above, they
have carried out certain specified procedures, not constituting an
examination in accordance with generally accepted auditing standards,
with respect to certain amounts, percentages and financial information
specified by the Representatives which are derived from the general
accounting records of the Company and its subsidiaries, which appear in
the Prospectus (excluding documents incorporated by reference) or in
Part II of, or in exhibits and schedules to, the Registration Statement
specified by the Representatives or in documents incorporated by
reference in the Prospectus specified by the Representatives, and have
compared certain of such amounts, percentages and financial information
with the accounting records of the Company and its subsidiaries and
have found them to be in agreement.
III
