Exhibit 1
UNDERWRITING AGREEMENT
(Capital Securities)
__________, 199_
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, DISCOVER & CO.
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
We (the "Manager") are acting on behalf of the underwriter or
underwriters (including ourselves) named below (such underwriter or
underwriters being herein called the "Underwriters"), and we understand that
MSDW Capital Trust ( ) (the "Issuer Trust"), a statutory business trust
created under the Delaware Business Trust Act, proposes to issue and sell
(number and title of capital securities) Capital Securities (the "Firm
Capital Securities"). (The Issuer Trust also proposes to issue and sell to
the several Underwriters not more than an additional ( )
Capital Securities (the "Additional Capital Securities") if and to the extent
that we, as Manager of the offering, shall have determined to exercise, on
behalf of the Underwriters, the right to purchase such Additional Capital
Securities granted to the Underwriters herein.) The Firm Capital Securities
(and the Additional Capital Securities) are hereinafter collectively referred
to as the "Offered Capital Securities."
It is understood that substantially contemporaneously with the closing
of the sale of the Offered Capital Securities to the Underwriters
contemplated hereby, (i) the Issuer Trust, its trustees (the "Issuer
Trustees"), its administrators (the "Administrators") and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇▇, Discover & Co. (the "Company") shall enter into an Amended and
Restated Trust Agreement in substantially the form of the Form of the Amended
and Restated Trust Agreement attached as Exhibit 4-l to the Registration
Statement referred to below (the "Trust Agreement"), pursuant to which the
Issuer Trust shall (x) issue and sell the Offered Capital Securities to the
Underwriters pursuant hereto and (y) issue shares of its Common Securities
(the "Common Securities" and, together with the Offered Capital Securities,
the "Trust Securities") to the Company, in each case with such rights and
obligations as shall be set forth in such Trust Agreement, (ii) the Company
and The Bank of New York, as Trustee, acting pursuant to a Junior
Subordinated Debt Indenture dated as of ( ), 1998 shall provide for the
issuance of $ principal amount of the Company's % Junior Subordinated
Deferrable Interest Debentures due (the "Junior Subordinated Debentures"),
(iii) the Company shall sell such Junior Subordinated Debentures to the
Issuer Trust and the Issuer Trust shall purchase such Junior Subordinated
Debentures with proceeds of the sale of the Offered Capital Securities to the
Underwriters contemplated hereby and of the Common Securities to the Company
and (iv) the Company and The Bank of New York, as Guarantee Trustee, shall
enter into a Guarantee Agreement in substantially the form of the Form of the
Guarantee Agreement attached as Exhibit 4-x of the Registration Statement
referred to below (the "Guarantee") for the benefit of holders from time to
time of the Offered Capital Securities.
Subject to the terms and conditions set forth or incorporated by
reference herein, the Issuer Trust hereby agrees to sell and the Underwriters
agree to purchase, severally and not jointly, the aggregate number of Firm
Capital Securities set forth below opposite their names at a purchase price
of $ per Firm Capital Security, (the "Purchase Price"), provided, that the
Company shall pay to the Underwriters' compensation equal to $ per Firm
Capital Security:
Number of
Firm Capital Securities
Underwriter To Be Purchased
(▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Inc.)
(▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated)
(Insert syndicate list)
___________________
Total...... =================
(Subject to the terms and conditions set forth or incorporated by reference
herein, the Issuer Trust hereby agrees to sell to the Underwriters the
Additional Capital Securities and the Underwriters shall have a one-time
right to purchase, severally and not jointly, up to ( )
Additional Capital Securities at the Purchase Price plus accrued dividends,
if any, from ( ) to the date of payment and delivery,
provided, that the Company shall pay to the Underwriters' compensation equal
to $ per Additional Capital Security. Additional Capital Securities may be
purchased as provided herein solely for the purpose of covering over-
allotments made in connection with the offering of the Firm Capital
Securities. If any Additional Capital Shares are to be purchased, each
Underwriter agrees, severally and not jointly, to purchase the number of
Additional Capital Securities (subject to such adjustments to eliminate
fractional Additional Capital Securities as you may determine) that bears the
same proportion to the total number of Additional Capital Securities to be
purchased as the number of Firm Capital Securities set forth above opposite
the name of such Underwriter bears to the total number of Firm Capital
Securities.)
The Underwriters will pay for the Firm Capital Securities upon delivery
thereof at the offices of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ at 10:00 a.m. (New York time) on , 199_, or at such other
time, not later than 5:00 p.m. (New York time) on , 199_, as shall be
designated by us. The time and date of such payment and delivery are
hereinafter referred to as the Closing Date.
(Payment for any Additional Capital Securities shall be made to the
Issuer Trust in immediately available funds at the offices referred to above
on such date (which may be the same as the Closing Date but shall in no event
be earlier than the Closing Date nor later than ten business days after the
giving of the notice hereinafter referred to) shall be designated in a
written notice from us to the Company of our determination, on behalf of the
Underwriters, to purchase a number, specified in said notice, of Additional
Capital Securities, or on such other date, in any event not later than (
), as shall be designated in writing by us. The time
and date of such payment are hereinafter referred to as the "Option Closing
Date." The notice of the determination to exercise the option to purchase
Additional Capital Securities and of the Option Closing Date may be given at
any time within 30 days after the date of this Agreement.
The several obligations of the Underwriters to purchase Additional
Capital Securities hereunder are subject to the delivery to us on the Option
Closing Date of such documents as we may reasonably request with respect to
the good standing of the Company, the due authorization and issuance of
Additional Capital Securities and other matters related to the issuance of
the Additional Capital Securities.)
The Offered Securities shall have the terms set forth in the Prospectus
dated , 1998, and the Prospectus Supplement dated , 199_,
including the following:
Terms of Offered Capital Securities
Designation of the Series of Capital Securities:
Issuer of Offered Capital Securities: MSDW Capital Trust ( )
Aggregate Number of Capital Securities:
Price to Public:
Purchase Price:
Underwriters' Compensation per Capital Security:
Closing Date:
Form:
Other Terms:
Capitalized terms used above and not defined herein shall have the
meanings set forth in the Prospectus and Prospectus Supplement referred to
above.
Except as set forth below, all provisions contained in the document
entitled Underwriting Agreement Standard Provisions dated ( ), 1998 relating
to the Debt Securities of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, Discover & Co. and the
Capital Securities of MSDW Capital Trust I, MSDW Capital Trust II, MSDW
Capital Trust III, MSDW Capital Trust IV and MSDW Capital Trust V (fully and
unconditionally guaranteed to the extent described therin by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇▇, Discover & Co. (the "Standard Provisions"), a copy of which is
attached hereto, are herein incorporated by reference in their entirety and
shall be deemed to be a part of this Agreement to the same extent as if such
provisions had been set forth in full herein, except that (i) if any term
defined in such document is otherwise defined herein, the definition set
forth herein shall control, (ii) all references in such document to a type of
security that is not an Offered Capital Security or a related Junior
Subordinated Debenture shall not be deemed to be a part of this Agreement and
(iii) all references in such document to a type of agreement that has not
been entered into in connection with the transactions contemplated hereby
shall not be deemed to be a part of this Agreement.
Please confirm your agreement by having an authorized officer sign a
copy of this Agreement in the space set forth below.
Very truly yours,
(▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ INC.)
(▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO.
INCORPORATED)
(Name of Other Lead Managers)
On behalf of themselves and the other Underwriters
named herein
By ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO.
INCORPORATED
By:
Name:
Title:
Accepted:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇,
DISCOVER & CO.
By:
Name:
Title:
MSDW CAPITAL TRUST ( )
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇,
Discover & Co., as Depositor
By:
Name:
Title:
UNDERWRITING AGREEMENT
(Debt Securities)
_____________, 199_
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, Discover & Co.
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
We (the "Manager") are acting on behalf of the underwriter or
underwriters (including ourselves) named below (such underwriter or
underwriters being herein called the "Underwriters"), and we understand that
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, Discover & Co., a Delaware corporation (the
"Company"), proposes to issue and sell $ aggregate principal amount of
(the "Offered Debt Securities").
Subject to the terms and conditions set forth or incorporated by
reference herein, the Company hereby agrees to sell and the Underwriters
agree to purchase, severally and not jointly, the aggregate principal amount
of the Offered Debt Securities set forth below opposite their names at a
purchase price of , plus accrued interest, if any, from to
the date of payment and delivery (the "Purchase Price").
Number of
Offered Debt Securities
Underwriter To Be Purchased
(▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Inc.)
(▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated)
(Insert syndicate list)
___________________
Total...... =================
The Underwriters will pay for the Offered Debt Securities upon delivery
thereof at the offices of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ at 10:00 a.m. (New York time) on , 199_, or at such other
time, not later than 5:00 p.m. (New York time) on , 199_, as shall be
designated by us. The time and date of such payment and delivery are
hereinafter referred to as the Closing Date.
The Offered Debt Securities shall be issued pursuant to the (Senior)
(Junior) (Subordinated) Indenture and shall have the terms set forth in the
Prospectus dated , 1998, and the Prospectus Supplement dated , 199_,
including the following:
Terms of Offered Securities
Maturity Date:
Interest Rate:
Redemption Provisions:
Interest Payment Dates: _________________,
commencing ____________ (Interest accrues from ____________)
Form and Denomination:
Ranking:
Other Terms:
Capitalized terms used above and not defined herein shall have the
meanings set forth in the Prospectus and Prospectus Supplement referred to
above.
Except as set forth below, all provisions contained in the document
entitled Underwriting Agreement Standard Provisions dated , 1998 relating to
the Debt Securities of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, Discover & Co. and the
Capital Securities of MSDW Capital Trust I, MSDW Capital Trust II, MSDW
Capital Trust III, MSDW Capital Trust IV and MSDW Capital Trust V (fully and
unconditionally guaranteed to the extent described therein by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇▇, Discover & Co.(the "Standard Provisions"), a copy of which is
attached hereto, are herein incorporated by reference in their entirety and
shall be deemed to be a part of this Agreement to the same extent as if such
provisions had been set forth in full herein, except that (i) if any term
defined in such document is otherwise defined herein, the definition set
forth herein shall control, (ii) all references in such document to a type of
security that is not an Offered Debt Security shall not be deemed to be a
part of this Agreement and (iii) all references in such document to a type of
agreement that has not been entered into in connection with the transactions
contemplated hereby shall not be deemed to be a part of this Agreement.
Please confirm your agreement by having an authorized officer sign a
copy of this Agreement in the space set forth below.
Very truly yours,
(▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ INC.)
(▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO.
INCORPORATED)
(Name of Other Lead Managers)
On behalf of themselves and the other Underwriters named
herein
By ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO.
INCORPORATED
By:
Name:
Title:
Accepted:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇,
DISCOVER & CO.
By:
Name:
Title:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, DISCOVER & CO.
DEBT SECURITIES
MSDW CAPITAL TRUST I
MSDW CAPITAL TRUST II
MSDW CAPITAL TRUST III
MSDW CAPITAL TRUST IV
MSDW CAPITAL TRUST V
CAPITAL SECURITIES
(Fully and unconditionally guaranteed, to the extent described herein, by
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, Discover & Co.)
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
, 1998
From time to time, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, Discover & Co., a
Delaware corporation (the "Company"), may, either itself or together with any
one of MSDW Capital Trust I, MSDW Capital Trust II, MSDW Capital Trust III,
MSDW Capital Trust IV or MSDW Capital Trust V (each an "Issuer Trust," and
collectively the "Issuer Trusts"), enter into one or more underwriting
agreements that provide for the sale of designated securities to the several
underwriters named therein. The standard provisions set forth herein may be
incorporated by reference in any such underwriting agreement (an
"Underwriting Agreement"). The Underwriting Agreement, including the
provisions incorporated therein by reference, is herein referred to as this
Agreement. Terms defined in the Underwriting Agreement are used herein as
therein defined.
The Company proposes from time to time (a) to issue its debt securities
(the "Debt Securities") or (b) to cause one or more of the Issuer Trusts to
issue its capital securities ("Capital Securities") guaranteed by the Company
to the extent described in the Prospectus (as defined below) with respect to
distributions and amounts payable upon liquidation or redemption pursuant to
a Capital Securities Guarantee Agreement to be dated as of a date specified
in the Underwriting Agreement executed and delivered by the Company and The
Bank of New York, as trustee (the "Guarantee Trustee"), for the benefit of
the holders from time to time of the Capital Securities (the "Guarantee").
If the Company proposes to issue Capital Securities, the specified
Issuer Trust will use the proceeds from the sale of the Capital Securities
and the sale of Common Securities (as defined below) to purchase from the
Company an aggregate principal amount of its Junior Subordinated Deferrable
Interest Debentures (the "Junior Subordinated Debentures") equal to the
aggregate liquidation amount of the Capital Securities and Common Securities
issued by such Issuer Trust. The Junior Subordinated Debentures will be
issued under a Junior Subordinated Indenture to be dated as of ,
1998 between the Company and The Bank of New York, as trustee (the "Debt
Securities Trustee") (as amended and supplemented from time to time the
"Junior Subordinated Debt Indenture"). With respect to any issuance of
Capital Securities by an Issuer Trustee, the Company will also be the holder
of one hundred percent of the common securities representing undivided
beneficial interests in the assets of the specified Issuer Trust (the "Common
Securities" and together with the Capital Securities, the "Trust
Securities"). Each Issuer Trust will have been created under Delaware law
pursuant to the filing of a Certificate of Trust (each, a "Certificate of
Trust") with the Secretary of State of the State of Delaware, and will be
governed by an Amended and Restated Trust Agreement (each, a "Trust
Agreement") among the Company, as depositor, The Bank of New York, as
Property Trustee (the "Property Trustee"), The Bank of New York (Delaware),
as Delaware Trustee (the "Delaware Trustee") (collectively, the "Issuer
Trustees"), and two individuals who will be selected by the holders of the
Common Securities and the holders from time to time of the Trust Securities.
The Company, as holder of the Common Securities of each Issuer Trust, has
appointed the Issuer Trustees and two individuals who are employees or
officers of or affiliated with the Company to act as administrators with
respect to the Issuer Trust (the "Administrators"). The Bank of New York, as
Property Trustee, will act as Indenture Trustee for the purposes of the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act").
If the Company proposes to issue Debt Securities, such Debt Securities
will be issued pursuant to one of the following indentures: (i) the Senior
Debt Indenture dated as of April 15, 1989, as supplemented by a First
Supplemental Senior Indenture dated as of May 15, 1991, a Second Supplemental
Senior Indenture dated as of April 15, 1996 and a Third Supplemental Senior
Indenture dated as of June 1, 1997 (as so supplemented, the "Senior Debt
Indenture"), (ii) the Subordinated Debt Indenture dated as of April 15, 1989,
as supplemented by a First Supplemental Subordinated Indenture dated as of
May 15, 1991, a Second Supplemental Subordinated Indenture dated as of April
15, 1996 and a Third Supplemental Subordinated Indenture dated as of June 1,
1997 (as so supplemented, the "Senior Subordinated Debt Indenture") or (iii)
the Junior Subordinated Debt Indenture.
The Company and the Issuer Trusts have filed with the Securities and
Exchange Commission (the "Commission") a registration statement including a
prospectus relating to the Debt Securities, the Capital Securities and the
Guarantee (collectively, the "Securities") and has filed with, or transmitted
for filing to, or shall promptly hereafter file with or transmit for filing
to, the Commission a prospectus supplement (the "Prospectus Supplement")
pursuant to Rule 424 under the Securities Act of 1933, as amended (the
"Securities Act"), specifically relating to the Securities offered pursuant
to this Agreement ("Offered Debt Securities," the "Offered Capital
Securities" and the "Offered Guarantee" and, together, the "Offered
Securities"). The term Registration Statement means the registration
statement as amended to the date of this Agreement. The term Basic
Prospectus means the prospectus included in the Registration Statement. The
term Prospectus means the Basic Prospectus together with the Prospectus
Supplement. The term preliminary prospectus means a preliminary prospectus
supplement specifically relating to the Offered Securities, together with the
Basic Prospectus. As used herein, the terms "Basic Prospectus", "Prospectus"
and "preliminary prospectus" shall include in each case the documents, if
any, incorporated by reference therein. The terms "supplement", "amendment"
and "amend" as used herein shall include all documents deemed to be
incorporated by reference in the Prospectus that are filed subsequent to the
date of the Basic Prospectus by the Company with the Commission pursuant to
the Securities Exchange Act of 1934, as amended (the "Exchange Act").
The term "Contract Securities" means the Offered Securities, if any, to
be purchased pursuant to the delayed delivery contracts substantially in the
form of Schedule I hereto, with such changes therein as the Company may
approve (the "Delayed Delivery Contracts"). The term "Underwriters'
Securities" means the Offered Securities other than Contract Securities.
1. Representations and Warranties. Each of the specified
------------------------------
Issuer Trust and the Company jointly and severally represents and warrants to
each of the Underwriters as of the date of the Underwriting Agreement (except
in the case of an offering of Debt Securities only, in which case only the
Company will so represent and warrant and those representations and
warranties related to any Issuer Trust or offering of Capital Securities
shall not apply):
(a) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect, and
no proceedings for such purpose are pending before or threatened by the
Commission.
(b) (i) Each document, if any, filed or to be filed pursuant to the
Exchange Act and incorporated by reference in the Prospectus complied or will
comply when so filed in all material respects with the Exchange Act and the
applicable rules and regulations of the Commission thereunder, (ii) each part
of the Registration Statement, when such part became effective, did not
contain and each such part, as amended or supplemented, if applicable, will
not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, (iii) the Registration Statement and the
Prospectus comply, and, as amended or supplemented, if applicable, will
comply, in all material respects with the Securities Act and the applicable
rules and regulations of the Commission thereunder and (iv) the Prospectus
does not contain and, as amended or supplemented, if applicable, will not
contain any untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that the
representations and warranties set forth in this Section 1(b) do not apply
(A) to statements or omissions in the Registration Statement or the
Prospectus based upon information concerning any Underwriter furnished to the
Company in writing by such Underwriter through the Manager expressly for use
therein or (B) to those parts of the Registration Statement that constitute
the Statements of Eligibility (Form T-1) under the Trust Indenture Act of the
trustees referred to in the Registration Statement.
(c) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the State of Delaware, has the
corporate power and authority to own its property and to conduct its business
as described in the Prospectus and is duly qualified to transact business and
is in good standing in each jurisdiction in which the conduct of its business
or its ownership or leasing of property requires such qualification, except
to the extent that the failure to be so qualified or be in good standing
would not have a material adverse effect on the Company and its consolidated
subsidiaries, taken as a whole.
(d) Each subsidiary of the Company has been duly incorporated, is
validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and authority to
own its property and to conduct its business as described in the Prospectus
and is duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or leasing
of property requires such qualification, except to the extent that the
failure to be so qualified or be in good standing would not have a material
adverse effect on the Company and its consolidated subsidiaries, taken as a
whole.
(e) The Issuer Trust has been duly created and is validly existing in
good standing as a business trust under the Delaware Business Trust Act, is a
"grantor trust" for Federal income tax purposes, has the power and authority
to conduct its business as presently conducted and as described in the
Prospectus and is not required to be authorized to do business in any other
jurisdiction.
(f) This Agreement has been duly authorized, executed and delivered
by each of the Issuer Trust and the Company.
(g) Each of the Senior Debt Indenture, the Senior Subordinated Debt
Indenture and the Junior Subordinated Debt Indenture has been duly qualified
under the Trust Indenture Act and each of the Senior Debt Indenture and the
Senior Subordinated Debt Indenture has been duly authorized, executed and
delivered by the Company or by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Group Inc. (a predecessor to
the Company) ("▇▇▇▇▇▇ ▇▇▇▇▇▇▇") and assumed by the Company and the Junior
Subordinated Debt Indenture has been duly authorized by the Company and each
of the Senior Debt Indenture and the Senior Subordinated Debt Indenture is,
and, upon execution and delivery by the Company of the Junior Subordinated
Debt Indenture will be, a valid and binding agreement of the Company,
enforceable in accordance with its terms except as (i) the enforceability
thereof may be limited by bankruptcy, insolvency, reorganization,
liquidation, moratorium and other similar laws affecting creditors' rights
generally and (ii) is subject to general principles of equity, regardless of
whether such enforceability is considered in a proceeding in equity or at
law.
(h) The Offered Debt Securities or, in the case of an offering of
Capital Securities, the Junior Subordinated Debentures have been duly
authorized and, when executed and authenticated in accordance with the
provisions of the relevant Indenture, and delivered to and paid for by the
Underwriters in accordance with the terms of the Underwriting Agreement, in
the case of the Underwriters' Securities (or, in the case of an offering of
Capital Securities, paid for as described in the Prospectus), or by
institutional investors in accordance with the terms of the Delayed Delivery
Contracts, in the case of Contract Securities, will be entitled to the
benefits of the relevant Indenture, and will be valid and legally binding
obligations of the Company, in each case enforceable in accordance with their
respective terms except as (i) the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization, liquidation, moratorium and other
similar laws affecting creditors' rights generally and (ii) is subject to
general principles of equity, regardless of whether such enforceability is
considered in a proceeding in equity or at law.
(i) The Delayed Delivery Contracts, if any, have been duly authorized,
executed and delivered by the Company and are valid and binding agreements of
the Company, enforceable in accordance with their respective terms except as
(i) the enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, liquidation, moratorium and other similar laws affecting
creditors' rights generally and (ii) is subject to general principles of
equity, regardless of whether such enforceability is considered in a
proceeding in equity or at law.
(j) The Guarantee has been qualified under the Trust Indenture Act
and has been duly authorized by the Company and, upon execution and delivery
thereof by the Company (and assuming due authorization, execution
and delivery by the Guarantee Trustee), will, as of the Closing Date, be
a valid and binding agreement of the Company, enforceable in accordance
with its terms except as (i) the enforceability thereof may be limited
by bankruptcy, insolvency, reorganization, liquidation, moratorium and
other similar laws affecting creditors' rights generally and (ii) is subject
to general principles of equity, regardless of whether such enforceability
is considered in a proceeding in equity or at law.
(k) The Trust Agreement has been qualified under the Trust Indenture
Act and has been duly authorized by the Company and, upon execution and
delivery thereof by the Company (and assuming due authorization, execution
and delivery thereof by each party thereto other than the Company), will, as
of the Closing Date, be a valid and binding agreement of the Company, the
Issuer Trustees and the Administrators, enforceable in accordance with its
terms except as (i) the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, liquidation, moratorium and other similar laws
affecting creditors' rights generally and (ii) is subject to general
principles of equity, regardless of whether such enforceability is considered
in a proceeding in equity or at law and except as rights to indemnification
may be limited under applicable law.
(l) The Offered Capital Securities have been duly authorized by the
Trust Agreement and, when executed and authenticated in accordance with the
provisions of the Trust Agreement and delivered to and paid for by the
Underwriters in accordance with the terms of this Agreement, will be validly
issued and (subject to the terms of the Trust Agreement) fully paid and
non-assessable undivided beneficial interests in the assets of the Issuer
Trust, and the issuance of such Offered Capital Securities will not be
subject to any preemptive or similar rights. Holders of the Offered Capital
Securities will be entitled to the same limitation of personal liability as
that extended to stockholders of private corporations for profit organized
under the General Corporation Law of the State of Delaware. The Common
Securities have been duly authorized by the Trust Agreement and, when issued
and delivered to the Company against payment therefor as described in the
Prospectus, will be validly issued undivided beneficial interests in the
assets of the Issuer Trust, and the issuance of such Common Securities will
not be subject to any preemptive rights.
(m) The execution and delivery by the Company of, and the performance
by the Company of its obligations under, this Agreement, the Senior Debt
Indenture, the Senior Subordinated Debt Indenture, the Junior Subordinated
Indenture, the Trust Agreement, the Guarantee, the Debt Securities, the
Junior Subordinated Debentures and any Delayed Delivery Contracts, will not
contravene any provision of applicable law, the Trust Agreement or the
certificate of incorporation or by-laws of the Company or any agreement or
other instrument binding upon the Company or any of its subsidiaries that is
material to the Company and its consolidated subsidiaries, taken as a whole,
or any judgment, order or decree of any governmental body, agency or court
having jurisdiction over the Company or any of its consolidated subsidiaries,
and no consent, approval, authorization or order of, or qualification with,
any governmental body or agency is required for the performance by the
Company of its obligations under this Agreement, the Senior Debt Indenture,
the Senior Subordinated Debt Indenture, the Junior Subordinated Indenture,
the Trust Agreement, the Guarantee, the Debt Securities, the Junior
Subordinated Debentures and any Delayed Delivery Contracts, except such as
may be required by the securities or blue sky laws of the various states in
connection with the offer and sale of the Offered Securities; provided,
however, that no representation is made as to whether the purchase of the
Offered Securities constitutes a "prohibited transaction" under Section 406
of the Employee Retirement Income Security Act of 1974, as amended, or
Section 4975 of the Internal Revenue Code of 1986, as amended.
(n) The execution and delivery by the Issuer Trust of, and the
performance by the Issuer Trust of its obligations under, this Agreement will
not contravene any provision of applicable law or the Trust Agreement or any
agreement or other instrument binding upon the Issuer Trust, or any judgment,
order or decree of any governmental body, agency or court having jurisdiction
over the Issuer Trust, and no consent, approval, authorization or order of,
or qualification with, any governmental body or agency is required for the
performance by the Issuer Trust of its obligations under this Agreement,
except such as may be required by the securities or Blue Sky laws of the
various states in connection with the offer and sale of the Offered
Securities; provided, however, that no representation is made as to whether
the purchase of the Offered Capital Securities constitutes a "prohibited
transaction" under 406 of the Employment Retirement Income Security Act of
1974, as amended, or Section 4975 of the Internal Revenue Code of 1986, as
amended.
(o) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or operations
of the Issuer Trust or the Company and its subsidiaries, taken as a whole,
from that set forth in the Prospectus (exclusive of any amendments or
supplements thereto effected subsequent to the date of the Underwriting
Agreement).
(p) The Issuer Trust is not, and after giving effect to the offering
and sale of the Offered Capital Securities and the application of the
proceeds thereof as described in the Prospectus, will not be an "investment
company" as such term is defined under the Investment Company Act of 1940, as
amended.
(q) There are no legal or governmental proceedings pending or
threatened to which the Issuer Trust or the Company or any of its
consolidated subsidiaries is a party or to which any of the properties of the
Issuer Trust or the Company or any of its consolidated subsidiaries is
subject that are required to be described in the Registration Statement or
the Prospectus and are not so described or any statutes, regulations,
contracts or other documents that are required to be described in the
Registration Statement or the Prospectus or to be filed or incorporated by
reference as exhibits to the Registration Statement that are not described,
filed or incorporated as required.
(r) Each of the Issuer Trust and the Company and its consolidated
subsidiaries has all necessary consents, authorizations, approvals, orders,
certificates and permits of and from, and has made all declarations and
filings with, all federal, state, local and other governmental authorities,
all self-regulatory organizations and all courts and other tribunals, to own,
lease, license and use its properties and assets and to conduct its business
in the manner described in the Prospectus, except to the extent that the
failure to obtain or file would not have a material adverse effect on the
Company and its consolidated subsidiaries, taken as a whole.
(s) ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Inc. is registered as a broker-dealer and
investment adviser with the Commission, is registered with the Commodity
Futures Trading Commission as a futures commission merchant and is a member
of the New York Stock Exchange, Inc. and the National Association of
Securities Dealers, Inc.
(t) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated is registered as a broker-dealer
and investment adviser with the Commission, is registered with the Commodity
Futures Trading Commission as a futures commission merchant and is a member
of the New York Stock Exchange, Inc. and the National Association of
Securities Dealers, Inc.
(u) The Company has complied with all provisions of Section 517.075,
Florida Statutes relating to doing business with the Government of Cuba or
with any person or affiliate located in Cuba.
2. Delayed Delivery Contracts. If the Prospectus provides
--------------------------
for sales of Offered Securities pursuant to Delayed Delivery Contracts, the
Company hereby authorizes the Underwriters to solicit offers to purchase
Contract Securities on the terms and subject to the conditions set forth in
the Prospectus pursuant to Delayed Delivery Contracts. Delayed Delivery
Contracts may be entered into only with institutional investors approved by
the Company of the types set forth in the Prospectus. On the Closing Date,
the Company will pay to the Manager as compensation for the accounts of the
Underwriters the commission set forth in the Underwriting Agreement in
respect of the Contract Securities. The Underwriters will not have any
responsibility in respect of the validity or the performance of any Delayed
Delivery Contracts.
If the Company executes and delivers Delayed Delivery Contracts with
institutional investors, the aggregate amount of Offered Securities to be
purchased by the several Underwriters shall be reduced by the aggregate
amount of Contract Securities; and such reduction shall be applied to the
commitment of each Underwriter pro rata in proportion to the amount of
Offered Securities set forth opposite such Underwriter's name in the
Underwriting Agreement, except to the extent that the Manager determines that
such reduction shall be applied in other proportions and so advises the
Company; provided, however, that the total amount of Offered Securities to be
purchased by all Underwriters shall be the aggregate amount set forth above,
less the aggregate amount of Contract Securities.
3. Public Offering. The Issuer Trust and the Company are
---------------
advised by the Manager that the Underwriters propose to make a public
offering of their respective portions of the Underwriters' Securities as soon
after this Agreement has been entered into as in the Manager's judgment is
advisable. The terms of the public offering of the Underwriters' Securities
are set forth in the Prospectus.
4. Purchase and Delivery. Except as otherwise provided in
---------------------
this Section 4, payment for the Underwriters' Securities shall be made to the
Issuer Trust or the Company, as applicable, in immediately available funds
at the time and place set forth in the Underwriting Agreement, upon delivery
to the Manager for the respective accounts of the several Underwriters of the
Underwriters' Securities registered in such names and in such denominations
or amounts, as the case may be, as the Manager shall request in writing not
less than one full business day prior to the date of delivery, with any
transfer taxes payable in connection with the transfer of the Underwriters'
Securities to the Underwriters duly paid.
Delivery on the Closing Date of any Underwriters' Securities (i) that
are Debt Securities in bearer form or Capital Securities in bearer form shall
be effected by delivery of a single temporary global Security without coupons
(the "Temporary Global Security") evidencing the Offered Securities that are
Debt Securities in bearer formor Capital Securities in bearer form to a
common depositary for ▇▇▇▇▇▇ Guaranty Trust Company of New York, Brussels
office, as operator of the Euro-clear System ("Euro-clear"), and for Cedel
Bank, Soci t Anonyme ("Cedel") for credit to the respective accounts at
Euro-clear or Cedel of each Underwriter or to such other accounts as such
Underwriter may direct. Any Temporary Global Security shall be delivered to
the Manager not later than the Closing Date, against payment of funds to the
Issuer Trust or the Company, as applicable, in the amount (or the net amount,
if applicable, in the case of Offered Debt Securities) due to the Issuer
Trust or the Company for such Temporary Global Security by the method and in
the form set forth herein. The Issuer Trust or the Company, as applicable,
shall cause global and, if applicable, definitive Debt Securities in bearer
form or Capital Securities in bearer form to be prepared and delivered in
exchange for such Temporary Global Security in such manner and at such time
as may be provided in or pursuant to the Senior Debt Indenture, the Senior
Subordinated Debt Indenture or the Junior Subordinated Debt Indenture, as the
case may be; provided, however, that the Temporary Global Security shall be
exchangeable for other Debt Securities in bearer form or Capital Securities
in bearer form only on or after the date specified for such purpose in the
Prospectus.
5. Conditions to Closing. The several obligations of the
---------------------
Underwriters hereunder are subject to the following conditions:
(a) Subsequent to the execution and delivery of the Underwriting
Agreement and prior to the Closing Date,
(i) there shall not have occurred any downgrading, nor shall any
notice have been given of any intended or potential downgrading or of
any review for a possible change that does not indicate the direction of
the possible change, in the rating accorded any of the Company's
securities by any "nationally recognized statistical rating
organization," as such term is defined for purposes of Rule 436(g)(2)
under the Securities Act;
(ii) there shall not have occurred any change, or any development
involving a prospective change, in the condition, financial or
otherwise, or in the earnings, business or operations of the Company and
its consolidated subsidiaries, taken as a whole, or, with respect to an
offering of Capital Securities, the Issuer Trust, from that set forth in
the Prospectus (exclusive of any amendments or supplements thereto
effected subsequent to the execution and delivery of the Underwriting
Agreement), that, in the judgment of the Manager, is material and
adverse and that makes it, in the judgment of the Manager, impracticable
to market the Offered Securities on the terms and in the manner
contemplated in the Prospectus; and
(iii) the Manager shall have received on the Closing Date a
certificate, dated the Closing Date and signed by the Chairman of the
Board, the President, the Chief Financial Officer, the Chief Strategic
and Administrative Officer, the Chief Legal Officer, the Treasurer, any
Assistant Treasurer of the Company, or any other person authorized by
the Board of Directors of the Company to execute any such written
statement (an "Executive Officer"), and, in the case of an offering of
Capital Securities, a certificate, dated the Closing Date and signed by
an Administrator of the Issuer Trust,
(A) to the effect set forth in clause (i) above (in the case
of the certificate signed by an executive officer of the Company);
and
(B) to the effect that the representations and warranties of
the Company and, in the case of an offering of Capital Securities,
the Issuer Trust contained in this Agreement are true and correct
as of the Closing Date and that each of the Company and the Issuer
Trust, as applicable, has complied with all of the agreements and
satisfied all of the conditions on its part to be performed or
satisfied on or before the Closing Date.
The Executive Officer or Administrator signing and delivering such
certificate may rely upon the best of his or her knowledge as to proceedings
threatened.
(b) The Manager shall have received on the Closing Date an opinion of
▇▇▇▇▇ & ▇▇▇▇ LLP, counsel to the Company, or of other counsel satisfactory to
the Manager and who may be an officer of the Company, dated the Closing Date,
to the effect that:
(i) the Company has been duly incorporated, is validly existing as
a corporation in good standing under the laws of the State of Delaware,
has the corporate power and authority to own its property and to conduct
its business as described in the Prospectus and is duly qualified to
transact business and is in good standing in each jurisdiction in which
the conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to be
so qualified or be in good standing would not have a material adverse
effect on the Company and its consolidated subsidiaries, taken as a
whole;
(ii) each of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Inc., Greenwood Trust Company,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ International
Incorporated (the "Material Subsidiaries") has been duly incorporated,
is validly existing as a corporation in good standing under the laws of
the jurisdiction of its incorporation, has the corporate power and
authority to own its property and to conduct its business as described
in the Prospectus and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its business
or its ownership or leasing of property requires such qualification,
except to the extent that the failure to be so qualified or be in good
standing would not have a material adverse effect on the Company and its
consolidated subsidiaries, taken as a whole;
(iii) each of the Company and its Material Subsidiaries has all
necessary consents, authorizations, approvals, orders, certificates and
permits of and from, and has made all declarations and filings with, all
federal, state, local and other governmental authorities, all
self-regulatory organizations and all courts and other tribunals, to
own, lease, license and use its properties and assets and to conduct its
business in the manner described in the Prospectus, except to the extent
that the failure to obtain or file would not have a material adverse
effect on the Company and its consolidated subsidiaries, taken as a
whole;
(iv) (A) each of the Senior Debt Indenture, the Senior
Subordinated Debt Indenture and the Junior Subordinated Debt Indenture
has been duly qualified under the Trust Indenture Act, (B) each of the
Third Supplemental Senior Indenture, the Third Supplemental Subordinated
Indenture and the Junior Subordinated Debt Indenture has been duly
authorized, executed and delivered by the Company, (C) each of the
Senior Debt Indenture and the Senior Subordinated Debt Indenture has
been assumed by the Company and (D) each of the Senior Debt Indenture,
the Subordinated Indenture and the Junior Subordinated Indenture is a
valid and binding agreement of the Company, enforceable in accordance
with its terms except in each case as (a) the enforceability thereof may
be limited by bankruptcy, insolvency, reorganization, liquidation,
moratorium and other similar laws affecting creditors' rights generally
and (b) is subject to general principles of equity, regardless of
whether such enforceability is considered in a proceeding in equity or
at law;
(v) the Offered Debt Securities or, in the case of an offering of
Capital Securities, the Junior Subordinated Debentures, have been duly
authorized and, when executed and authenticated in accordance with the
provisions of the relevant Indenture and delivered to and paid for (A)
in the case of an offering of Debt Securities by the Underwriters in
accordance with the terms of the Underwriting Agreement, in the case of
the Underwriters' Securities, or by institutional investors in
accordance with the terms of the Delayed Delivery Contracts, in the case
of the Contract Securities, and (B) in the case of an offering of
Capital Securities, as described in the Prospectus, will be entitled to
the benefits of the relevant Indenture and will be valid and binding
obligations of the Company, in each case enforceable in accordance with
their terms except as the enforceability thereof (a) may be limited by
bankruptcy, insolvency, reorganization, liquidation, moratorium and
other similar laws affecting creditors' rights generally and (b) is
subject to general principles of equity, regardless of whether such
enforceability is considered in a proceeding in equity or at law;
(vi) the Underwriting Agreement has been duly authorized, executed
and delivered by the Company;
(vii) the Guarantee has been duly authorized, executed and
delivered by the Company and is a valid and binding obligation of the
Company enforceable in accordance with its terms except as the
enforceability thereof (a) may be limited by bankruptcy, insolvency,
reorganization, liquidation, moratorium and other similar laws affecting
creditors' rights generally and (b) is subject to general principles of
equity, regardless of whether such enforceability is considered in a
proceeding in equity or at law;
(ix) the Delayed Delivery Contracts, if any, have been duly
authorized, executed and delivered by the Company and are valid and
binding agreements of the Company enforceable in accordance with their
respective terms except as the enforceability thereof (a) may be limited
by bankruptcy, insolvency, reorganization, liquidation, moratorium and
other similar laws affecting creditors' rights generally and (b) is
subject to general principles of equity, regardless of whether such
enforceability is considered in a proceeding in equity or at law;
(x) the execution and delivery by the Issuer Trust of, and the
performance of its obligations under, the Underwriting Agreement and the
execution and delivery by the Company of, and the performance by the
Company of its obligations under, the Underwriting Agreement, the
relevant Indenture and the Offered Debt Securities (and, in the case of
an offering of Capital Securities, , the Trust Agreement, the Guarantee)
and any Delayed Delivery Contracts, will not contravene any provisions
of applicable law or the certificate of incorporation or by-laws of the
Company or the Trust Agreement, if applicable, or any agreement or other
instrument binding upon the Issuer Trust, if applicable, the Company or
any of its subsidiaries that is material to the Company and its
consolidated subsidiaries, taken as a whole, or, to the best of such
counsel's knowledge, any judgment, order or decree of any governmental
body, agency or court having jurisdiction over the Issuer Trust, if
applicable, the Company or any of its consolidated subsidiaries, and no
consent, approval or authorization or order of or qualification with any
governmental body or agency is required for the performance by the
Issuer Trust, if applicable, or the Company of its obligations under the
Underwriting Agreement, the relevant Indenture and the Offered Debt
Securities (and, in the case of an offering of Capital Securities, the
Capital Securities and the Guarantee) and any Delayed Delivery
Contracts, except such as may be required by the securities or blue sky
laws of the various states in connection with the offer and sale of the
Offered Securities; provided, however, that such counsel need not
express an opinion as to whether the purchase of the Offered Securities
constitutes a "prohibited transaction" under Section 406 of the Employee
Retirement Income Security Act of 1974, as amended, or Section 4975 of
the Internal Revenue Code of 1986, as amended;
(xi) in the case of an offering of Capital Securities, the Trust is
not and, after giving effect to the offering and sale of the Capital
Securities and the application of the proceeds thereof as described in
the Prospectus, will not be an "investment company" as such term is
defined in the Investment Company Act of 1940, as amended;
(xi) such counsel is of the opinion ascribed to it under the
caption "Certain Federal Income Tax Consequences" in the Prospectus
Supplement;
(xii) the statements (1) in the Basic Prospectus under the
captions "The Issuer Trusts," "Description of Debt Securities,"
"Description of Capital Securities," "Description of Guarantees," and
"Plan of Distribution," (2) in the Prospectus Supplement under
"Description of Capital Securities," "Description of Junior Subordinated
Debentures," "Description of Guarantee," "Relationship Among the Capital
Securities, the Junior Subordinated Debentures and the Guarantee" and
"Underwriting," (3) in the Registration Statement under Item 15, (4) in
"Item 3 - Legal Proceedings" of the most recent annual reports on Form
10-K incorporated by reference in the Prospectus and (5) in "Item 1 -
Legal Proceedings" of Part II of the quarterly reports on Form 10-Q, if
any, filed since such annual reports and incorporated by reference in
the Prospectus, in each case insofar as such statements constitute
summaries of the legal matters, documents or proceedings referred to
therein, fairly present the information called for with respect to such
legal matters, documents and proceedings and fairly summarize the
matters referred to therein;
(xiii) after due inquiry, such counsel does not know of any
legal or governmental proceedings pending or threatened to which the
Company or any of its consolidated subsidiaries or, if applicable, the
Issuer Trust is a party or to which any of the properties of the Company
or any of its consolidated subsidiaries or, if applicable, the Issuer
Trust is subject that are required to be described in the Registration
Statement or the Prospectus and are not so described or of any statutes,
regulations, contracts or other documents that are required to be
described in the Registration Statement or the Prospectus or to be filed
or incorporated by reference as exhibits to the Registration Statement
that are not described, filed or incorporated by reference as required;
and
(xiv) such counsel (1) is of the opinion that each document, if
any, filed pursuant to the Exchange Act and incorporated by reference in
the Registration Statement and the Prospectus (except as to financial
statements and schedules included therein as to which such counsel need
not express any opinion) complied when so filed as to form in all
material respects with the Exchange Act and the applicable rules and
regulations of the Commission thereunder, (2) has no reason to believe
that any part of the Registration Statement (except as to financial
statements and schedules included therein, as to which such counsel need
not express any belief, and except for that part of the Registration
Statement that constitutes Forms T-1), on the date such part became
effective contained, and the Registration Statement (except as to
financial statements and schedules included therein, as to which such
counsel need not express any belief, and except for the part of the
Registration Statement that constitutes Forms T-1) as of the date such
opinion is delivered contains any untrue statement of a material fact or
omitted or omits to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, (3) is of
the opinion that the Registration Statement and Prospectus (except as to
financial statements and schedules included therein, as to which such
counsel need not express any opinion) comply as to form in all material
respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder and (4) has no reason to
believe that the Prospectus (except as to financial statements and
schedules included therein as to which such counsel need not express any
belief) as of the date such opinion is delivered contains any untrue
statement of a material fact or omits to state a material fact necessary
in order to make the statements therein, in light of the circumstances
under which they were made, not misleading
; provided that, in the case of an offering of Debt Securities only, such
counsel may exclude any such opinion relating to the Issuer Trust or the
offering of Capital Securities.
(c) The Manager shall have received on the Closing Date an opinion of
▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, special counsel for the Underwriters, dated the
Closing Date, covering the matters referred to in subparagraphs (iv), (v),
(vi), (vii), (viii), (xii) (but only as to statements in the Basic Prospectus
under "Description of Debt Securities," "Description of Capital Securities,"
"Description of Guarantees" and "Plan of Distribution" and in the Prospectus
Supplement under "Description of Capital Securities," "Description of Junior
Subordinated Debentures," "Description of the Guarantees," "Relationship
Among the Capital Securities, the Junior Subordinated Indenture and the
Guarantees" and "Underwriting"), and (xiv) (2), (3) and (4) of paragraph (b)
above; provided that, in the case of an offering of Debt Securities only,
such counsel may exclude any such opinion relating to the Issuer Trust or the
offering of Capital Securities.
With respect to subparagraph (xiv) of paragraph (b) above, if such
opinion is given by counsel who is also an officer of the Company, such
counsel may state that his or her opinion and belief are based upon his or
her participation, or the participation of someone under his or her
supervision, in the preparation of the Registration Statement and Prospectus
and documents incorporated therein by reference and review and discussion of
the contents thereof, but are without independent check or verification,
except as specified. With respect to subparagraph (xiv) of paragraph (c)
above, ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ and, if ▇▇▇▇▇ & Wood LLP is giving such opinion,
▇▇▇▇▇ & ▇▇▇▇ LLP may state that their opinion and belief are based upon their
participation in the preparation of the Registration Statement and Prospectus
(but not including documents incorporated therein by reference) and review
and discussion of the contents thereof (including documents incorporated
therein by reference), but are without independent check or verification,
except as specified.
(d) In the case of an offering of Capital Securities, the Manager shall
have received on the Closing Date an opinion dated the Closing Date of
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Issuer
Trust or the Company, or of other counsel satisfactory to the Manager, to the
effect that:
(i) the Issuer Trust has been duly created and is validly existing
in good standing as a business trust under the Delaware Business Trust
Act and under the Trust Agreement and the Delaware Business Trust Act
has the trust power and authority to conduct its business, all as
described in the Registration Statement and Prospectus;
(ii) assuming due authorization, execution and delivery of the
Trust Agreement by the Company, the Administrators and the Issuer
Trustees, the Trust Agreement is a legal, valid and binding agreement of
the Company, the Administrators and the Issuer Trustees and is
enforceable against the Company, the Administrators and the Issuer
Trustees, in accordance with its terms, subject, as to enforcement, to
the effect upon the Trust Agreement of (i) bankruptcy, insolvency,
moratorium, receivership, reorganization, liquidation, fraudulent
conveyance and transfer, and other similar laws relating to or affecting
the rights and remedies of creditors generally, (ii) principles of
equity, including applicable law relating to fiduciary duties
(regardless of whether considered and applied in a proceeding in equity
or at law), and (iii) the effect of applicable public policy on the
enforceability of provisions relating to indemnification or
contribution;
(iii) under the Trust Agreement and the Delaware Business Trust
Act, the execution and delivery of the Underwriting Agreement by the
Issuer Trust, and the performance by the Issuer Trust of its obligations
thereunder, have been duly authorized by all necessary trust action on
the part of the Issuer Trust;
(iv) the Capital Securities have been duly authorized by the Trust
Agreement and are duly and validly issued and, subject to the
qualifications set forth herein, will be fully paid and nonassessable
undivided beneficial interests in the assets of the Issuer Trust; the
holders of Capital Securities, as beneficial owners of the Issuer Trust,
will be entitled to the same limitation of personal liability extended
to stockholders of private corporations for profit organized under the
General Corporation Law of the State of Delaware;
(v) the Common Securities have been duly authorized by the Trust
Agreement and are duly and validly issued undivided beneficial interests
in the assets of the Trust;
(vi) under the Trust Agreement and the Delaware Business Trust Act,
the issuance of the Trust Securities is not subject to preemptive
rights;
(vii) the statements in the Basic Prospectus and the Prospectus
Supplement under the caption "The Issuer Trusts" and "Description of
Capital Securities" and the statements in the Prospectus Supplement
under the caption "Relationship Among the Capital Securities, the Junior
Subordinated Debentures and the Guarantee," insofar as such statements
constitute statements of Delaware law, are fairly presented;
(viii) the issuance and the sale of the Trust Securities by the
Issuer Trust, the execution, delivery and performance by the Issuer
Trust of the Underwriting Agreement, the consummation by the Issuer
Trust of the transactions contemplated by the Underwriting Agreement and
compliance by the Issuer Trust with its obligations under the
Underwriting Agreement do not violate (A) the Certificate or the Trust
Agreement, or (B) any applicable Delaware law or Delaware administrative
regulation;
(ix) after due inquiry, limited to, and solely to the extent
disclosed on (a date immediately prior to) the Closing Date, the court
dockets for active cases of the Court of Chancery of the State of
Delaware in and for New Castle County, Delaware, of the Superior Court
of the State of Delaware in and for New Castle County, Delaware, and of
the United States Federal District Court sitting in the State of
Delaware, we do not know of any legal or governmental proceeding pending
against the Issuer Trust;
(x) no authorization, approval, consent or order of any Delaware
court or any Delaware governmental authority or Delaware agency is
required to be obtained by the Issuer Trust solely in connection with
the issuance and sale of the Trust Securities; and
(xi) the Capital Security Holders (other than those Capital
Security Holders who reside or are domiciled in the State of Delaware)
will have no liability for income taxes imposed by the State of Delaware
solely as a result of their participation in the Issuer Trust, and the
Issuer Trust will not be liable for any income tax imposed by the State
of Delaware.
In rendering such opinion, such counsel may note that Holders of Trust
Securities may be obligated, pursuant to the Trust Agreement, to (i) provide
indemnity and security in connection with and pay taxes or other governmental
charges arising from transfers of certificates for Trust Securities and the
issuance of replacement certificates for Trust Securities, (ii) provide
security and indemnity in connection with requests of or directions to the
Property Trustee to exercise its rights and remedies under the Trust
Agreement and (iii) undertake as a party litigant to pay costs in any suit
for the enforcement of any right or remedy under the Trust Agreement or
against the Property Trustee, to the extent provided in the Trust Agreement.
(e) The Manager shall have received on the Closing Date a letter, dated
the Closing Date, in form and substance satisfactory to the Manager, from the
Company's independent auditors, containing statements and information of the
type ordinarily included in accountants' "comfort letters" to underwriters
with respect to the financial statements and certain financial information
contained in or incorporated by reference into the Prospectus.
6. Covenants of the Company and the Issuer Trust. In
---------------------------------------------
further consideration of the agreements of the Underwriters contained herein,
each of the Company and the Issuer Trust (or the Company alone in the case of
an offering of Debt Securities) covenants as follows:
(a) To furnish the Manager, without charge, a conformed copy of the
Registration Statement (including exhibits and all amendments thereto) and
for delivery to each other Underwriter a conformed copy of the Registration
Statement (without exhibits thereto) and, during the period mentioned in
paragraph (c) below, as many copies of the Prospectus, any documents
incorporated by reference therein and any supplements and amendments thereto
or to the Registration Statement as the Manager may reasonably request.
(b) Before amending or supplementing the Registration Statement or the
Prospectus with respect to the Offered Securities, to furnish to the Manager
a copy of each such proposed amendment or supplement and not to file any such
proposed amendment or supplement to which the Manager reasonably objects.
(c) If, during such period after the first date of the public offering
of the Offered Securities as in the opinion of counsel for the Underwriters
the Prospectus is required by law to be delivered in connection with sales by
an Underwriter or dealer, any event shall occur or condition exist as a
result of which it is necessary to amend or supplement the Prospectus in
order to make the statements therein, in the light of the circumstances
existing when the Prospectus is delivered to a purchaser, not misleading, or
if in the opinion of counsel for the Underwriters, it is necessary to amend
or supplement the Prospectus to comply with law, forthwith to prepare and
furnish, at its own expense, to the Underwriters and to the dealers (whose
names and addresses the Manager will furnish to the Company and the Issuer
Trust) to which Offered Securities may have been sold by the Manager on
behalf of the Underwriters and to any other dealers upon request, either
amendments or supplements to the Prospectus, satisfactory in all respects to
the Manager, so that the statements in the Prospectus as so amended or
supplemented will not, in the light of the circumstances existing when the
Prospectus is delivered to a purchaser, be misleading or so that the
Prospectus, as so amended or supplemented, will comply with law and to cause
such amendments or supplements to be filed promptly with the Commission.
(d) To endeavor to qualify the Offered Securities and, in the case of
an offering of Capital Securities, the Capital Securities and the Guarantees
for offer and sale under the securities or blue sky laws of such
jurisdictions as the Manager shall reasonably request and to maintain such
qualifications for as long as the Manager shall reasonably request.
(e) To make generally available to the Company's security holders and
to the Manager as soon as practicable an earning statement covering a twelve
month period beginning on the first day of the first full fiscal quarter
after the date of the Underwriting Agreement, which earning statement shall
satisfy the provisions of Section 11(a) of the Securities Act and the rules
and regulations of the Commission thereunder. If such fiscal quarter is the
last fiscal quarter of the Company's fiscal year, such earning statement
shall be made available not later than 90 days after the close of the period
covered thereby and in all other cases shall be made available not later than
45 days after the close of the period covered thereby.
(f) During the period beginning on the date of the Underwriting
Agreement and continuing to and including the Closing Date, not to offer,
sell, contract to sell or otherwise dispose of any debt securities of the
Company or any securities with characteristics similar to those of the
Capital Securities (other than (i) the Offered Securities and (ii) commercial
paper issued in the ordinary course of business), without the prior written
consent of the Manager.
(g) Whether or not any sale of Offered Securities is consummated, to
pay all expenses incident to the performance of the Company's and the Issuer
Trust's obligations under this Agreement, including: (i) the preparation and
filing of the Registration Statement and the Prospectus and all amendments
and supplements thereto, (ii) the preparation, issuance and delivery of the
Offered Securities, (iii) the fees and disbursements of the Company's counsel
and accountants, of the Issuer Trust's counsel and of the Trustees and their
counsel, (iv) the qualification of the Offered Securities and, in the case of
an offering of Capital Securities, the Capital Securities and the Guarantees
under securities or blue sky laws in accordance with the provisions of
Section 6(d), including filing fees and the fees and disbursements of counsel
for the Underwriters in connection therewith and in connection with the
preparation of any blue sky or Legal Investment Memoranda, (v) the printing
and delivery to the Underwriters in quantities as hereinabove stated of
copies of the Registration Statement and all amendments thereto and of the
Prospectus and any amendments or supplements thereto, (vi) the printing and
delivery to the Underwriters of copies of any blue sky or Legal Investment
Memoranda, (vii) any fees charged by rating agencies for the rating of the
Offered Securities, (viii) any expenses incurred by the Company or the Issuer
Trust in connection with a "road show" presentation to potential investors,
(ix) all document production charges of counsel to the Underwriters (but not
including their fees for professional services in connection with the
preparation of this Agreement) and (x) any filing fees in connection with any
review of the offering of the Offered Securities by the National Association
of Securities Dealers, Inc.
7. Covenants of the Underwriters. Each of the several
-----------------------------
Underwriters represents and agrees with the Company that:
(a) except to the extent permitted under U.S. Treas. Reg. Section
1.163-5(c)(2)(i)(D) (the "D Rules"), (i) it has not offered or sold, and
during the restricted period will not offer or sell, Debt Securities in
bearer form (including any Debt Security in global form that is exchangeable
for Debt Securities in bearer form) to a person who is within the United
States or its possessions or to a United States person and (ii) it has not
delivered and will not deliver within the United States or its possessions
definitive Debt Securities in bearer form that are sold during the restricted
period;
(b) it has, and throughout the restricted period will have, in effect
procedures reasonably designed to ensure that its employees or agents who are
directly engaged in selling Debt Securities in bearer form are aware that
such Debt Securities may not be offered or sold during the restricted period
to a person who is within the United States or its possessions or to a United
States person, except as permitted by the D Rules;
(c) if it is a United States person, it is acquiring the Debt
Securities in bearer form for purposes of resale in connection with their
original issuance and if it retains Debt Securities in bearer form for its
own account, it will only do so in accordance with the requirements of U.S.
Treas. Reg. Section 1.163-5(c)(2)(i)(D)(6);
(d) if it transfers to any affiliate Debt Securities in bearer form for
the purpose of offering or selling such Debt Securities during the restricted
period, it will either (i) obtain from such affiliate for the benefit of the
Company the representations and agreements contained in clauses (a), (b) and
(c) above or (ii) repeat and confirm the representations and agreements
contained in clauses (a), (b) and (c) above on such affiliate's behalf and
obtain from such affiliate the authority to so obligate it;
(e) it will obtain for the benefit of the Company the representations
and agreements contained in clauses (a), (b), (c) and (d) above from any
person other than its affiliate with whom it enters into a written contract,
as defined in U.S. Treas. Reg. Section 1.163-5(c)(2)(i)(D)(4) for the offer
or sale during the restricted period of Debt Securities in bearer form; and
(f) it will comply with or observe any other restrictions or
limitations set forth in the Prospectus on persons to whom, or the
jurisdictions in which, or the manner in which, the Debt Securities may be
offered, sold, resold or delivered.
The restricted period is defined at U.S. Treas. Reg. Section
1.163-5(c)(2)(i)(D)(7). All other terms used in the preceding paragraph have
the meaning given to them by the U.S. Internal Revenue Code and regulations
thereunder, including the D Rules.
8. Indemnification and Contribution. The Company, or in the
--------------------------------
case of an offering of Capital Securities, each of the Company and the Issuer
Trust jointly and severally, agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act from and against any and all losses, claims, damages and
liabilities (including, without limitation, any legal or other expenses
reasonably incurred in connection with defending or investigating any such
action or claim) caused by any untrue statement or allegedly untrue statement
of a material fact contained in the Registration Statement or any amendment
thereof, any preliminary prospectus or the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or
supplements thereto), or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any such untrue statement or omission or
allegedly untrue statement or omission based upon information relating to any
Underwriter furnished to the Company and the Issuer Trust in writing by such
Underwriter through the Manager expressly for use therein; provided, however,
that the foregoing indemnity agreement with respect to any preliminary
prospectus shall not inure to the benefit of any Underwriter from whom the
person asserting any such losses, claims, damages or liabilities purchased
Offered Securities, or any person controlling such Underwriter, if a copy of
the Prospectus (as then amended or supplemented if the Company or the Issuer
Trust shall have furnished any amendments or supplements thereto) was not
sent or given by or on behalf of such Underwriter to such person, if required
by law so to have been delivered, at or prior to the written confirmation of
ts to such person, and if the Prospectus (as so amended or supplemented)
would have cured the defect giving rise to such losses, claims, damages or
liabilities.
Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Issuer Trust, the Issuer Trustees, the Administrators, the
Company, its directors, its officers who sign the Registration Statement and
each person, if any, who controls the Issuer Trust or Company within the
meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act to the same extent as the foregoing indemnity from the Company
and the Issuer Trust to each Underwriter, but only with reference to
information relating to such Underwriter furnished to the Company or the
Issuer Trust by such Underwriter in writing through the Manager expressly for
use in the Registration Statement, any preliminary prospectus, the Prospectus
or any amendments or supplements thereto.
In case any proceeding (including any governmental investigation) shall
be instituted involving any person in respect of which indemnity may be
sought pursuant to either of the two preceding paragraphs, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may designate in such
proceeding and shall pay the fees and disbursements of such counsel related
to such proceeding. In any such proceeding, any indemnified party shall have
the right to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such indemnified party unless (i) the
indemnifying party and the indemnified party shall have mutually agreed to
the retention of such counsel or (ii) the named parties to any such
proceeding (including any impleaded parties) include both the indemnifying
party and the indemnified party and representation of both parties by the
same counsel would be inappropriate due to actual or potential differing
interests between them. It is understood that the indemnifying party shall
not, in respect of the legal expenses of any indemnified party in connection
with any proceeding or related proceedings in the same jurisdiction, be
liable for the fees and expenses of more than one separate firm (in addition
to any local counsel) for all such indemnified parties and that all such fees
and expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by the Manager, in the case of parties indemnified
pursuant to the second preceding paragraph, and by the Company and the Issuer
Trust, in the case of parties indemnified pursuant to the first preceding
paragraph. The indemnifying party shall not be liable for any settlement of
anitten consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any
time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel as
contemplated by the third sentence of this paragraph, the indemnifying party
agrees that it shall be liable for any settlement of any proceeding effected
without its written consent if (i) such settlement is entered into more than
30 days after receipt by such indemnifying party of the aforesaid request and
(ii) such indemnifying party shall not have reimbursed the indemnified party
in accordance with such request prior to the date of such settlement. No
indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of
such proceeding.
To the extent the indemnification provided for in the first or second
paragraph in this Section 8 is unavailable to an indemnified party or
insufficient in respect of any losses, claims, damages or liabilities
referred to therein, then each indemnifying party under such paragraph, in
lieu of indemnifying such indemnified party thereunder, shall contribute to
the amount paid or payable by such indemnified party as a result of such
losses, claims, damages or liabilities (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company and the
Issuer Trust on the one hand and the Underwriters on the other hand from the
offering of the Offered Securities or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Company and the Issuer Trust on
the one hand and the Underwriters on the other hand in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Company and the Issuer Trust on the one
hand and the Underwriters on the other hand in connection with the offering
of the Offered Securities shall be deemed to be in the same respective
proportions as the net proceeds from the offering of such Offered Securities
(before deducting expenses) received by the Company and the Issuer Trust and
the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover of the
Prospectus Supplement, bear to the aggregate public offering price of the
Offered Securities. The relative fault of the Company and the Issuer Trust
on the one hand and of the Underwriters on the other hand shall be determined
by reference to, among other things, whether the untrue or allegedly untrue
statement of a material fact or tlleged omission to state a material fact
relates to information supplied by the Company and the Issuer Trust or by the
Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company, the Issuer Trust and the Underwriters agree that it would
not be just or equitable if contribution pursuant to this Section 8 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 that does
not take account of the equitable considerations referred to in the
immediately preceding paragraph. The amount paid or payable by an
indemnified party as a result of the losses, claims, damages and liabilities
referred to in the immediately preceding paragraph shall be deemed to
include, subject to the limitations set forth above, 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 Section 8, no Underwriter shall be required to contribute
any amount in excess of the amount by which the total price at which the
Offered Securities underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages that such Underwriter
has otherwise been required to pay by reason of such untrue or allegedly
untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' respective
obligations to contribute pursuant to this Section 8 are several in
proportion to the respective amounts of Offered Securities purchased by each
of such Underwriters and not joint. The remedies provided for in this
Section 8 are not exclusive and shall not limit any rights or remedies which
may otherwise be available to any indemnified party at law or in equity.
9. Termination. This Agreement shall be subject to
-----------
termination by notice given by the Manager to the Company, if (a) after the
execution and delivery of the Underwriting Agreement and prior to the Closing
Date (i) trading generally shall have been suspended or materially limited on
or by, as the case may be, any of the New York Stock Exchange, the American
Stock Exchange, the National Association of Securities Dealers, Inc., the
Chicago Board of Options Exchange, the Chicago Mercantile Exchange or the
Chicago Board of Trade, (ii) trading of any securities of the Company or, in
the case of an offering of Capital Securities, the Issuer Trust shall have
been suspended on any exchange or in any over-the-counter market, (iii) a
general moratorium on commercial banking activities in New York shall have
been declared by either Federal or New York State authorities, or (iv) there
shall have occurred any outbreak or escalation of hostilities or any change
in financial markets or any calamity or crisis that, in the judgment of the
Manager, is material and adverse and (b) in the case of any of the events
specified in clauses (a)(i) through (iv), such event, singly or together with
any other such event, makes it, in the judgment of the Manager, impracticable
to market the Offered Securities on the terms and in the manner contemplated
in the Prospectus.
10. Defaulting Underwriters. If, on the Closing Date or the
-----------------------
Option Closing Date, as the case may be, any one or more of the Underwriters
shall fail or refuse to purchase Offered Securities that it has or they have
agreed to purchase hereunder on such date, and the aggregate number of
Offered Securities which such defaulting Underwriter or Underwriters agreed
but failed or refused to purchase is not more than one-tenth of the aggregate
number of the Offered Securities to be purchased on such date, the other
Underwriters shall be obligated severally in the proportions that the number
of Firm Capital Securities set forth opposite their respective names herein
bears to the aggregate number of Firm Capital Securities set forth opposite
the names of all such non-defaulting Underwriters, or in such other
proportions as we may specify, to purchase the Offered Capital Securities
which such defaulting Underwriter or Underwriters agreed but failed or
refused to purchase on such date; provided that in no event shall the number
of Offered Capital Securities that any Underwriter has agreed to purchase
pursuant to this Agreement be increased pursuant to this Section 10 by an
amount in excess of one-ninth of such number of Offered Capital Securities
without the written consent of such Underwriter. If, on the Closing Date,
any Underwriter or Underwriters shall fail or refuse to purchase Firm Capital
Securities and the aggregate number of Firm Capital Securities with respect
to which such default occurs is more than one-tenth of the aggregate number
of Firm Capital Securities to be purchased, and arrangements satisfactory to
us and the Company for the purchase of such Firm Capital Securities are not
made within 36 hours after such default, this Agreement shall terminate
without liability on the part of any non-defaulting Underwriter or the
Company. In any such case either we or the Company shall have the right to
postpone the Closing Date, but in no event for longer than seven days, in
order that the required changes, if any, in the Registration Statement and in
the Prospectus or in any other documents or arrangements may be effected.
If, on the Option Closing Date, any Underwriter or Underwriters shall fail or
refuse to purchase Additional Capital Securities and the aggregate number of
Additional Capital Securities with respect to which such default occurs is
more than one-tenth of the aggregate number of Additional Capital Securities
to be purchased, the non-defaulting Underwriters shall have the option to (i)
terminate their obligation hereunder to purchase Additional Capital
Securities or (ii) purchase not less than the number of Additional Capital
Securities that such non-defaulting Underwriters would have been obligated to
purchase in the absence of such default. Any action taken under this
paragraph shall not relieve any defaulting Underwriter from liability in
respect of any default of such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of the Company or the
Issuer Trust to comply with the terms or to fulfill any of the conditions of
this Agreement, or if for any reason the Company or the Issuer Trust shall be
unable to perform its obligations under this Agreement, the Company and the
Issuer jointly and severally agree to reimburse the Underwriters or such
Underwriters as have so terminated this Agreement with respect to themselves,
severally, for all out-of-pocket expenses (including the fees and
disbursements of their counsel) reasonably incurred by such Underwriters in
connection with this Agreement or the offering of the Offered Securities.
11. Representations and Indemnities to Survive. The
------------------------------------------
respective indemnity and contribution agreements and the representations,
warranties and other statements of the Issuer Trust, the Administrators, the
Company, its officers and the Underwriters set forth in this Agreement will
remain in full force and effect, regardless of (i) any termination of this
Agreement, (ii) any investigation made by or on behalf of any Underwriter or
any person controlling any Underwriter or by or on behalf of the Company, its
officers or directors or any person controlling the Company or on behalf of
the Issuer Trust, the Issuer Trustee, the Administrators, or any person
controlling the Issuer Trust and (iii) acceptance of and payment for any of
the Offered Securities.
12. Successors. This Agreement will inure to the benefit of
----------
and be binding upon the parties hereto and their respective successors and
the officers, directors, Administrators and Issuer Trustees and controlling
persons referred to in Section 8, and no other person will have any right or
obligation hereunder.
13. Counterparts. The Underwriting Agreement may be signed
------------
in any number of counterparts, each of which shall be an original, with the
same effect as if the signatures thereto and hereto were upon the same
instrument.
14. Applicable Law. This Agreement shall be governed by and
--------------
construed in accordance with the internal laws of the State of New York.
15. Headings. The headings of the sections of this Agreement
--------
have been inserted for convenience of reference only and shall not be deemed
a part of this Agreement.
SCHEDULE I
DELAYED DELIVERY CONTRACT
________, 19__
Dear Sirs:
The undersigned hereby agrees to purchase from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇, Discover & Co., a Delaware corporation (the "Company"), and the
Company agrees to sell to the undersigned the Company's securities described
in Schedule A annexed hereto (the "Securities"), offered by the Company's
Prospectus dated , 19__ and Prospectus Supplement dated , 19__,
receipt of copies of which are hereby acknowledged, at a purchase price
stated in Schedule A and on the further terms and conditions set forth in
this agreement. The undersigned does not contemplate selling Securities
prior to making payment therefor.
The undersigned will purchase from the Company Securities in the
principal amount and numbers on the delivery dates set forth in Schedule A.
Each such date on which Securities are to be purchased hereunder is
hereinafter referred to as a "Delivery Date".
Payment for the Securities which the undersigned has agreed to purchase
on each Delivery Date shall be made in immediately available funds at the
office of , New York, N.Y., at
10:00 A.M. (New York time) on the Delivery Date, upon delivery to the
undersigned of the Securities to be purchased by the undersigned on the
Delivery Date, in such denominations and registered in such names as the
undersigned may designate by written or telegraphic communication addressed
to the Company not less than five full business days prior to the Delivery
Date.
The obligation of the undersigned to take delivery of and make payment
for the Securities on the Delivery Date shall be subject to the conditions
that (1) the purchase of Securities to be made by the undersigned shall not
at the time of delivery be prohibited under the laws of the jurisdiction to
which the undersigned is subject and (2) the Company shall have sold, and
delivery shall have taken place to the underwriters (the "Underwriters")
named in the Prospectus Supplement referred to above of, such part of the
Securities as is to be sold to them. Promptly after completion of sale and
delivery to the Underwriters, the Company will mail or deliver to the
undersigned at its address set forth below notice to such effect, accompanied
by a copy of the opinion of counsel for the Company delivered to the
Underwriters in connection therewith.
Failure to take delivery of and make payment for Securities by any
purchaser under any other Delayed Delivery Contract shall not relieve the
undersigned of its obligations under this agreement.
This agreement will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
If this agreement is acceptable to the Company, it is requested that the
Company sign the form of acceptance below and mail or deliver one of the
counterparts hereof to the undersigned at its address set forth below. This
will become a binding agreement, as of the date first above written, between
the Company and the undersigned when such counterpart is so mailed or
delivered.
This agreement shall be governed by and construed in accordance with the
laws of the State of New York.
Yours very truly,
(Purchaser)
By:
Name:
Title:
Address:
Accepted:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇,
DISCOVER & CO.
By:
Name:
Title:
PURCHASER -- PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone and department of the representative of the
Purchaser with whom details of delivery on the Delivery Date may be discussed
is as follows: (Please print.)
Telephone
(including area
Name code) Department
---- ---------------- ----------
_______________________ ______________________ ___________________
_______________________ ______________________ ___________________
_______________________ ______________________ ___________________
_______________________ ______________________ ___________________
SCHEDULE A
Securities:
----------
Principal amounts or Numbers to be Purchased:
--------------------------------------------
Purchase Price:
--------------
Delivery Dates:
--------------
